exhibit a › media › 2345291 › 04.01... · , the parties estimate that the average...

EXHIBIT A

Case 3:17-cv-01114 Document 63-1 Filed 06/28/19 of 78 PageID #: 1106

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

MICHELLE NELSON, individually and )

on behalf of all others similarly situated, )

)

Plaintiff, ) No. 3-17-1114

)

v. ) Hon. Eli Richardson

)

NISSAN NORTH AMERICA, INC., )

A California corporation, )

)

Defendant. )

SETTLEMENT AGREEMENT & RELEASE

____________________________________________________


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TABLE OF CONTENTS

Section Page

1. DEFINITIONS ......................................................................................................................4

2. FED. R. CIV. P. 23(b)(3) SETTLEMENT CLASS ...........................................................11

3. SETTLEMENT RELIEF ....................................................................................................10

4. NOTICE TO THE CLASS .................................................................................................14

5. REQUESTS FOR EXCLUSION ........................................................................................19

6. OBJECTIONS TO SETTLEMENT ...................................................................................20

7. PRELIMINARY APPROVAL ORDER, FINAL APPROVAL ORDER,

AND RELATED ORDERS ...............................................................................................21

8. THE DISMISSALS AND RELEASES ..............................................................................24

9. PAYMENTS TO PLAINTIFFS AND CLASS COUNSEL ...............................................27

10. DENIAL OF WRONGDOING AND LIABILITY ...........................................................28

11. CONTINGENCIES, EFFECT OF DISAPPROVAL, OR

TERMINATION OF SETTLEMENT ...............................................................................29

12. MISCELLANEOUS .........................................................................................................30


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EXHIBITS

EXHIBIT 1 – PROPOSED PRELIMINARY APPROVAL ORDER

EXHIBIT 2 – SHORT FORM NOTICE

EXHIBIT 3 – SUMMARY SETTLEMENT NOTICE

EXHIBIT 4 – LONG FORM NOTICE

EXHIBIT 5 – PROPOSED FINAL APPROVAL ORDER

EXHIBIT 6 – CAFA NOTICE


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This Settlement Agreement and Release (“Settlement Agreement” or “Agreement”) is

entered into between Plaintiff Michelle Nelson and Plaintiff John Anglin (“Plaintiffs”), on behalf

of themselves individually and as the representatives of a nationwide class of Persons defined

below, and Nissan North America, Inc. (“NNA”). Plaintiffs and NNA are collectively referred to

in this Agreement as the “Parties.” This Agreement is intended by the Parties to fully, finally, and

forever resolve, discharge, and settle the claims asserted in the Underlying Actions, upon and

subject to the terms and conditions hereof.

RECITALS

WHEREAS, the following putative class actions (the “Underlying Actions”) were filed

against NNA in the United States District Court for the Middle District of Tennessee and the

United States District Court for the Northern District of Illinois:

1. Nelson v. Nissan North America, Inc., Case No. 3:17-cv-01114 (M.D. Tenn.); and

2. Anglin v. Nissan North America, Inc., Case No. 1:17-cv-04240 (N.D. Ill.).

WHEREAS, in the Underlying Actions, Plaintiffs contend that NNA has manufactured,

marketed, distributed, supplied, and sold automotive vehicles with defective exterior paint

application, such that, after a period of time the paint peels off in whole parts;

WHEREAS, the Parties have engaged in substantial litigation in both Underlying Actions,

including litigation over Plaintiff Anglin’s purported obligation to arbitrate his claims, and

litigation over the legal viability of Plaintiff Nelson’s claims;

WHEREAS, the Anglin Action is currently stayed in the Seventh Circuit Court of Appeals,

(No. 18-2189), NNA having appealed the District Court’s denial of its motion to compel

arbitration;


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WHEREAS, the Nelson Action is currently stayed and administratively closed, due to the

Parties’ Notice of Settlement provided to the Court (Dkt. No. 51);

WHEREAS, the Parties conducted arms’ length settlement negotiations through numerous

in-person and telephonic meetings with Joel N. Shapiro, Chief Circuit Mediator of the United

States Court of Appeals for the Seventh Circuit in September and October 2018 in an effort to

resolve the Underlying Actions without further litigation and expense;

WHEREAS, the Parties and their respective Counsel have explored and discussed at

length the factual and legal issues in the Underlying Actions, and practical benefits to be gained

by settlement for all Parties as opposed to continued litigation;

WHEREAS, under the Settlement, NNA shall provide Settlement Class Members with a

vehicle repaint or the equivalent value thereof in the form of reimbursement; payment, or

reimbursement, for related rental car expenses during the repaint process; and, if elected, eligibility

in NNA’s Vehicle Purchase Program, which offers pre-negotiated pricing on new Nissan and

Infiniti vehicles;

WHEREAS, the Parties estimate that the Subject Vehicles encompass at least 16,000

Nissan Rogues and Infiniti QX56s;

WHEREAS, the Parties estimate that the average out-of-pocket cost to a consumer to

repaint a Nissan Rogue is $5,800;

WHEREAS, the Parties estimate that the average out-of-pocket cost to a consumer to

repaint an Infiniti QX56 is $10,000;

WHEREAS, the Parties estimate that the value of financial benefits made available to

Settlement Class Members under this Settlement exceeds $30 million;


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WHEREAS, Class Counsel and other counsel who have appeared in the Underlying

Actions have conducted substantial discovery, have investigated the facts and underlying events

relating to the subject matter of the claims, have carefully analyzed the applicable legal principles,

and have concluded, based upon their investigation, and taking into account the risks, uncertainties,

burdens and costs of further prosecution of their claims, and taking into account the substantial

benefits to be received under this Agreement as described more fully below—including a

Settlement affecting more than 16,000 Subject Vehicles—that a resolution and compromise on the

terms set forth herein is fair, reasonable, adequate, and in the best interests of NNA, the Plaintiffs

and the Settlement Class;

WHEREAS, Class Counsel are experienced in this type of class litigation, and therefore

recognize the costs and risks of prosecuting the Underlying Actions and believe that it is in the

Plaintiffs’ interest, and in the interest of all Settlement Class Members, to resolve the Underlying

Actions in the manner set forth in this Agreement;

WHEREAS, Class Counsel represent and warrant that they are fully authorized to enter

into this Agreement on behalf of Plaintiffs and the Settlement Class, and that Class Counsel have

consulted with and confirmed that all Plaintiffs support and have no objection to this Agreement;

WHEREAS, NNA, without admitting or conceding any wrongdoing or liability, and for

the purpose of avoiding the burden, expense, risk, and uncertainty of continuing to litigate the

claims, and for the purpose of resolving the Underlying Actions, shall offer substantial benefits to

Plaintiffs and the Settlement Class, beyond the relief sought in the Underlying Actions;

WHEREAS, it is agreed that this Agreement shall not be deemed or construed to be an

admission, concession, or evidence of any violation of any federal, state, or local statute,

regulation, rule, or other law, or principle of common law or equity, or of any liability or


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wrongdoing whatsoever by NNA, or of the truth or legal or factual validity or viability of any of

the claims Plaintiffs have or could have asserted, which claims and all liability therefore are

expressly denied; and

WHEREAS, Plaintiffs and their counsel believe the claims asserted in the Underlying

Actions have merit, but they have concluded that the benefits provided in this Agreement are

substantial, and therefore that the terms of this Agreement are fair, reasonable, adequate, and in

the best interests of Plaintiffs and the Settlement Class considering the risks, costs, uncertainties

and delays of further litigation;

NOW, THEREFORE, it is agreed, by and among the undersigned, that the Underlying

Actions shall be settled on the terms and conditions set forth herein, subject to judicial approval.

1. DEFINITIONS

For purposes of this Agreement, including the Recitals stated above, the following terms

will have the following meanings:

1.1. “Agreement” or “Settlement Agreement” means this settlement agreement plus all

Exhibits appended hereto.

1.2. “Anglin Action” means Anglin v. Nissan North America Inc., Case No. 1:17-cv-

04240 (N.D. Ill., filed June 5, 2017), currently stayed in the Seventh Circuit Court of Appeals

pending interlocutory appeal (No. 18-2189).

1.3. “Authorized NNA Dealer” means an automotive dealership in the United States

and its territories including Puerto Rico that holds an active franchise with NNA entitling the

dealership to sell new Nissan or Infiniti vehicles.


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1.4. “CAFA Notice” means notice of this Settlement to the appropriate federal and state

officials, as required by the Class Action Fairness Act of 2005, 28 U.S.C. § 1715, in a form

substantially similar to that attached as Exhibit 6.

1.5. “Class Counsel” means Lead Class Counsel and Plaintiffs’ Counsel.

1.6. “Class Members” means individuals who fall under the definition of the Settlement

Class.

1.7. “Class Notice” means the notice plan described in Section 4.

1.8. “Court” means the United States District Court for the Middle District of

Tennessee, Nashville Division, the Honorable Eli Richardson, or his duly-appointed successor,

presiding.

1.9. “Effective Date” means the date of Final Settlement Approval.

1.10. “Extended Warranty” means the exterior paint benefits provided by NNA as

consideration for the Settlement, as described below. These benefits are one repaint or

reimbursement for one repaint, and rental car coverage as described in Section 3.2.

1.11. “Extended Warranty Period” means four (4) years beyond the expiration of the

standard warranty, such that Nissan Rogue Subject Vehicles shall have a seven (7) year total

exterior paint peel warranty, and Infiniti QX56 Subject Vehicles have an eight (8) year total

exterior paint peel warranty.

1.12. “Fee Award” means the amount of attorneys’ fees and reimbursement of costs

awarded by the Court to Class Counsel described in Section 9.1 of this Agreement.

1.13. “Final” means, when referring to a judgment or order: that:

1.13.1. The judgment is a final, appealable judgment; and


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1.13.2. Either no appeal has been taken from the judgment relating to the merits of

the Settlement (as opposed to any appeals relating solely to the payments to Plaintiffs and Class

Counsel, which will not affect finality as defined herein) as of the date on which all times to appeal

therefrom have expired, or an appeal or other review proceeding of the judgment relating to the

merits of the Settlement having been commenced, such appeal or other review is finally concluded

and no longer is subject to review by any court, whether by appeal, petitions for rehearing or re-

argument, petitions for rehearing en banc, petitions for writ of certiorari, or otherwise, and such

appeal or other review has been finally resolved in a manner that affirms the Final Judgment in all

material respects.

1.14. “Final Approval Hearing” means the final hearing to be held by the Court to

consider the fairness, reasonableness, and adequacy of the Settlement.

1.15. “Final Approval Order” means an Order entered by the Court that approves the

Settlement, dismisses the Underlying Actions in accordance with the terms set forth herein, and

provides that the Settlement Class and Plaintiffs have released NNA as set forth below, and is

similar in all material respects to Exhibit 5.

1.16. “Incentive Award” means the payment made to both the Settlement Class

Representatives as described in Section 9.2 of this Agreement.

1.17. “Lead Class Counsel” means Myles McGuire, Evan M. Meyers, and David L.

Gerbie of McGuire Law, P.C.

1.18. “Long Form Notice” means the Long Form Notice substantially in the form

attached as Exhibit 4.

1.19. “Mediator” means Joel N. Shapiro, Chief Circuit Mediator of the United States

Court of Appeals for the Seventh Circuit.


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1.20. “Nelson Action” means Nelson v. Nissan North America, Inc., Case No. 3:17-cv-

01114 (M.D. Tenn., filed Aug. 4, 2017).

1.21. “NNA” means Nissan North America, Inc.

1.22. “NNA Counsel” means NNA’s counsel of record in the Underlying Actions.

1.23. “Notice” means the notices (in the forms substantially similar to that attached as

Exhibits 2, 3, and 4 and approved by the Court) to the Settlement Class as further described below.

1.24. “Notice Date” shall mean the date by which the Court orders Notice to be issued.

1.25. “Notice Plan” means the plan for providing notice of this Settlement to the

Settlement Class under Fed. R. Civ. Pro. 23.

1.26. “Parties” means Plaintiffs, on behalf of themselves and the Settlement Class, and

NNA.

1.27. “Plaintiffs” means Michelle Nelson and John Anglin.

1.28. “Plaintiffs’ Counsel” means Robert A. Cox and Edwin E. Wallis of Glassman,

Wyatt, Tuttle & Cox, P.C.; Scott A. Morgan of Morgan Law Firm, Ltd.; and John Sawin of Sawin

Law Firm, Ltd

1.29. “Preliminary Approval Order” means an Order substantially in the form attached

hereto as Exhibit 1, setting a hearing date for the Final Approval Hearing, certifying the Settlement

Class defined below, appointing Class Counsel as class counsel, and approving the Notice Plan by

the means provided for herein.

1.30. “Recital” means each statement of facts and/or procedural history made prior to

Section 1 of this Agreement. The Parties acknowledge and agree that the Recitals enumerate

important facts and procedural history, are true and accurate, and are hereby made a part of this

Agreement.


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1.31. “Reimbursement Period” means the time period in which Settlement Class

members may submit documentation for reimbursement of a prior repaint. The Reimbursement

Period shall last one year from the Effective Date.

1.32. “Released Parties” means NNA and Nissan Motor Co., Ltd., and, for each of such

corporations, all of their past and present officers, directors, agents, designees, servants, sureties,

attorneys, employees, parents, associates, shareholders, general or limited partners or partnerships,

subsidiaries, divisions, affiliates, insurers, franchises, suppliers, dealers and all of their

predecessors or successors in interest, assigns, or legal representatives, as well as any other person,

company, or entity in the chain of distribution of a Subject Vehicle or component of such Subject

Vehicle.

1.33. “Released Claims” means all claims dismissed, relinquished, or waived under the

terms of the Dismissals and Release described in Section 8 of this Agreement.

1.34. “Repaint” means the replacement of the exterior white paint coating on a Subject

Vehicle.

1.35. “Repaint Claim Period” means the time period in which those Settlement Class

Members who have not already had their Subject Vehicles repainted must bring their Subject

Vehicles to an Authorized NNA dealer to determine eligibility for a repaint. The Repaint Claim

Period shall run from the date of the Court’s Preliminary Approval Order until the expiration of

the Extended Warranty.

1.36. “Response Deadline” means the date by which a written objection to this Settlement

Agreement or a request for exclusion submitted by a person within the Settlement Class must be

postmarked and/or filed with the Court, which shall be designated as a date approximately sixty

(60) days after the Notice Date, or such other date as ordered by the Court.


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1.37. “Settlement” means the compromise and arrangement between the Parties

embodied in this Agreement.

1.38. “Settlement Administrator” means the third-party administrator agreed to by the

Parties and appointed by the Court to implement the settlement requirements of this Agreement.

1.39. “Settlement Class” means the class defined below in Section 2.

1.40. “Settlement Class Member” means any individual included in the Settlement Class

defined below in Section 2 who does not validly opt out of the Settlement Class under the

procedure set forth in the Court’s Preliminary Approval Order.

1.41. “Settlement Class Representatives” means Plaintiffs Michelle Nelson and John

Anglin.

1.42. “Settlement Website” means the Internet website to be established by the

Settlement Administrator as part of the Notice Plan as set forth herein.

1.43. “Short Form Notice” means the summary notice distributed to potential Settlement

Class Members, as provided herein, and substantially in the form attached as Exhibit 2.

1.44. “Subject Vehicle” means any White-painted Nissan Rogue produced between

January 11, 2013 and April 23, 2013 and/or any White-painted Infiniti QX56 produced between

November 20, 2009 and December 12, 2012.

1.45. “Summary Settlement Notice” means the summary notice intended for publication

in periodicals and on the Internet, substantially in the form attached as Exhibit 3.

1.46. “Underlying Actions” means Nelson v. Nissan North America, Inc., Case No. 3:17-

cv-01114 (M.D. Tenn.) and Anglin v. Nissan North America, Inc., Case No. 1:17-cv-04240 (N.D.

Ill.).


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1.47. “White” or “White-painted” means any Subject Vehicle with QAA or QAB

exterior paint color, as designated on the Subject Vehicle’s certification label. The certification

label is located on the driver’s side door pillar on each Subject Vehicle.

1.48. “Vehicle Purchase Program” or “VPP” means Nissan’s Vehicle Purchase Program

as described in Section 3.

2. FED. R. CIV. P. 23(b)(3) SETTLEMENT CLASS

For purposes of settlement only, and upon the express terms and conditions set forth in this

Agreement, Plaintiffs and NNA agree to seek certification of a nationwide Settlement Class in the

Nelson Action under Federal Rule of Civil Procedure 23(b)(3) as follows:

All persons in the United States and its territories including Puerto Rico who

purchased any White-painted Nissan Rogue produced between January 11, 2013

and April 23, 2013, and/or any White-painted Infiniti QX56 produced between

November 20, 2009 and December 12, 2012.

Excluded from the Settlement Class are: NNA; any entity that is a subsidiary of or

is controlled by NNA; anyone employed by Class Counsel; any judge to whom the

Underlying Actions are assigned, his or her spouse, and members of the judge’s

staff.

2.1. Class Certified for Settlement Purposes Only

The certification of the Settlement Class, and the appointment of Class Counsel for

settlement purposes only under this Agreement, shall not constitute in the Underlying

Actions or any other proceeding, an admission by NNA of any kind or a determination that

certification of a class or subclass for trial purposes is appropriate or proper, or that

appointment of Class Counsel for trial purposes is appropriate or proper. In the event that

the Agreement is not approved by the Court, or if the Agreement does not become final, is

terminated or canceled, fails to become effective in accordance with its terms, or otherwise

is rendered null and void, the certification of the Settlement Class and appointment of Class


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Counsel shall automatically be vacated, and the Parties shall be restored to their respective

positions in the Underlying Actions before the Agreement was signed, and the Parties shall

proceed in all respects as if this Agreement and any related orders had not been entered.

3. SETTLEMENT RELIEF

In consideration for the dismissal of the Underlying Actions and Released Claims with

prejudice and entry of the Final Approval Order, NNA agrees to provide an Extended Warranty to

Settlement Class Members, covering the Subject Vehicles, on the terms described below.

3.1. Extended Warranty for Vehicle Repainting

NNA’s Repaint Claim Period shall be effective on the date of the Court’s Preliminary

Approval Order and run for the term of the Extended Warranty. NNA’s Reimbursement Period

shall be effective on the Effective Date, and shall run for one year.

3.1.1. Nissan Rogues

During the Extended Warranty Period, NNA shall provide one full vehicle repaint, subject

to a ten percent (10%) copay by the Settlement Class Members during the first two (2) years of the

Repaint Claim Period, or a thirty percent (30%) copay by the Settlement Class Members during

the final two years of the Repaint Claim Period. Settlement Class Members need only bring their

Subject Vehicle(s) to an Authorized NNA dealer, which will inspect the vehicle to confirm the

vehicle has a paint peel issue and confirm the vehicle is a Subject Vehicle to ensure it qualifies to

obtain the repaint provided under this subsection. In addition, during the Reimbursement Period,

NNA shall reimburse any Settlement Class Member who purchased a vehicle repaint during the

Extended Warranty Period but prior to the Notice Date, provided that the Settlement Class Member

timely provides NNA with documentation proving the earlier repaint during the Reimbursement

Period. Any such reimbursement will be subject to the copay amounts set forth herein.


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3.1.2. Infiniti QX56s

The Extended Warranty covers one full vehicle repaint, subject to a ten percent (10%)

copay by the Settlement Class Members during the first two (2) years of the Repaint Claim Period,

or a thirty percent (30%) copay by the Settlement Class Members during the final two years of the

Repaint Claim Period. Settlement Class Members need only bring their Subject Vehicle(s) to an

Authorized NNA dealer, which will inspect the vehicle to confirm the vehicle has a paint peel

issue and confirm the vehicle is a Subject Vehicle to ensure it qualifies to obtain the repaint

provided under this subsection. In addition, during the Reimbursement Period, NNA shall

reimburse any Settlement Class Member who purchased a vehicle repaint during the Extended

Warranty Period but prior to the Notice Date, provided that the Settlement Class Member timely

provides NNA with documentation proving the earlier repaint during the Reimbursement Period.

Any such reimbursement will be subject to the copay amounts set forth herein.

3.2. Rental Car Cost Reimbursement During the Repaint Period

NNA agrees to provide Settlement Class Members who choose to exercise their option to

repaint their Subject Vehicles, consistent with the terms set forth above, with limited rental car

coverage on the following terms:

3.2.1. Nissan Rogues

NNA will provide rental car coverage up to and including four hundred dollars ($400) to

Settlement Class Members who act on their eligibility for a repaint during the Repaint Claim

Period. During the Reimbursement Period, NNA shall reimburse, up to that same amount, any

Settlement Class Member who provides proof of payment for rental car services in connection

with a repaint of a Subject Vehicle during the Extended Warranty Period that occurred prior to the


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Notice Date, subject to the Settlement Class Member timely providing NNA with documentation

proving costs incurred on a car rental in relation to their earlier repaint.

3.2.2. Infiniti QX56s

NNA will provide rental car coverage up to and including six hundred dollars ($600) to

Settlement Class Members who act on their eligibility for a repaint during the Repaint Claim

Period. During the Reimbursement Period, NNA shall reimburse, up to that same amount, any

Settlement Class Member who provides proof of payment for rental car services in connection

with a repaint of a Subject Vehicle during the Extended Warranty Period that occurred prior to the

Notice Date, subject to the Settlement Class Member timely providing NNA with documentation

proving costs incurred on a car rental in relation to their earlier repaint.

3.3. Nissan’s Vehicle Purchase Program

Settlement Class Members will be eligible for Nissan’s Vehicle Purchase Program (“VPP”)

for a three (3) month period, beginning upon notice being issued to Settlement Class Members of

the three (3) month period starting after the Effective Date. To obtain this benefit, Settlement Class

Members need only bring that notice document to an Authorized NNA Dealer during the three (3)

month period and state they wish to be purchase a new Nissan or Infiniti vehicle and act on their

VPP eligibility.

3.4. Settlement Contingent Upon Final Approval.

Any and all benefits under the Settlement set forth herein are contingent upon the Court

entering a Final Approval Order in the Underlying Actions.

3.5 Determination of Settlement Benefits.

Should any Settlement Class Member be denied any benefit by an Authorized NNA Dealer

under the Settlement then such Settlement Class Member may contact Class Counsel to challenge


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such decision by providing sufficient evidence to demonstrate such denial was unwarranted. If

Class Counsel determine from such evidence that such denial may have been unwarranted, Class

Counsel will meet and confer with NNA Counsel for their reconsideration of such denial. If Class

Counsel and NNA Counsel cannot agree about such denial then the matter will be referred to the

Settlement Administrator whose decision will be final and binding.

4. NOTICE TO THE SETTLEMENT CLASS

4.1. Notice Required by the Class Action Fairness Act.

NNA shall serve CAFA Notice on the appropriate federal and state officials not later than

ten (10) days after the filing of this Agreement with the Court. NNA shall file with the Court a

certification of the date upon which the CAFA Notice was served within ten (10) days of its service

of the Notice (or the next business day if the tenth day falls on a weekend or holiday).

4.2. Components and Cost of Class Notice

Class Notice will be accomplished through a combination of mailed Short Form Notices,

publication of the Summary Settlement Notice in at least one national publication chosen by the

Settlement Administrator, and publication of the Long Form Notice on the Settlement Website, as

specified in the Preliminary Approval Order and this Agreement in order to comply with all

applicable laws, including but not limited to, Fed. R. Civ. P. 23, the Due Process Clause of the

United States Constitution, and any other applicable statute, law, or rule. NNA shall pay the

Settlement Administrator all costs for Notice and claims administration.

4.3. Short Form Notices

Consistent with the Court’s Preliminary Approval Order, the Settlement Administrator

shall send the Short Form Notices, substantially in the form attached hereto as Exhibit 2, by U.S.

Mail, proper postage prepaid, to current or previously registered owners of the Subject Vehicles,


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as identified by data to be forwarded to the Settlement Administrator by NNA. This will be done

as part of efforts to notify Settlement Class Members who may be eligible for the benefits set forth

in Section 3 above. The Short Form Notice shall inform potential Settlement Class Members on

how to obtain or review a Long Form Notice. In addition, the Settlement Administrator shall: (a)

re-mail any notices returned by the United States Postal Service with a forwarding address no later

than the deadline found in the Preliminary Approval Order; (b) research supplemental addresses

for any returned mail and promptly mail copies of the applicable notice to any addresses so found.

4.4. Summary Settlement Notice

Consistent with the Preliminary Approval Order, the Settlement Administrator shall cause

the publication of the Summary Settlement Notice in such newspapers, magazines and/or other

media outlets as it shall choose (subject to agreement by the Parties), including at least one widely-

read and widely-circulated national publication. The form of the Summary Settlement Notice

agreed upon by the Parties is in the form substantially similar to the one attached as Exhibit 3.

4.5. Settlement Website

The Settlement Administrator shall establish a Settlement Website that will inform

Settlement Class Members of the terms of this Agreement, their rights, dates, and deadlines and

related information. The website shall include, in .pdf format, materials agreed upon by the Parties

and/or required by the Court. The website shall explain prospective class members’ rights to

exclude themselves from the Settlement or object.

4.6. Long Form Notice

4.6.1. Contents of the Long Form Notice

The Long Form Notice shall be in a form substantially similar to the document attached to

this Agreement as Exhibit 4 and shall advise the Settlement Class Members of the following:


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4.6.1.1. General Terms

The Long Form Notice shall contain a plain and concise description

of the nature of the Underlying Actions, the history of the litigation of the

claims, the preliminary certification of the Settlement Class for settlement

purposes, and the proposed Settlement, including information on the

identity of the Settlement Class Members, how the proposed Settlement

would provide relief to the Settlement Class and Settlement Class Members,

what claims are released under the proposed Settlement and other relevant

terms and conditions, and the amount of fees and cost reimbursement

requested by Class Counsel.

4.6.1.2. Opt-Out Rights

The Long Form Notice shall inform Settlement Class Members that

they have the right to opt out of the Settlement. The Long Form Notice shall

provide the deadlines and procedures for exercising this right.

4.6.1.3. Objection to Settlement

The Long Form Notice shall inform Settlement Class Members of

their right to object to the proposed Settlement and appear at the Final

Approval Hearing. The Long Form Notice shall provide the deadlines and

procedures for exercising these rights.

4.6.1.4. Payments to Plaintiffs and Class Counsel

The Long Form Notice shall inform Settlement Class Members

about the amounts that Plaintiffs and Class Counsel may seek under this


17

Agreement, and shall explain that NNA will pay such amounts subject to

Court approval.

4.7. Toll Free Telephone Number

The Settlement Administrator shall establish a toll-free telephone number that will provide

settlement-related information to Settlement Class Members.

4.8. Duties of the Settlement Administrator

4.8.1. Responsibilities

The Settlement Administrator shall be responsible for, without limitation:

4.8.1.1. Printing, mailing or arranging the mailing of the Short Form

Notices;

4.8.1.2. Handling returned mail not delivered to Settlement Class

Members;

4.8.1.3. Attempting to obtain updated address information for any

Short Form Notices returned without a forwarding address;

4.8.1.4. Making any additional mailings based on updated address

information;

4.8.1.5. Receiving and maintaining on behalf of the Court any

Settlement Class Member correspondence regarding requests for exclusion

and/or objections to the Settlement;

4.8.1.6. Forwarding written inquiries to Class Counsel or their

designee for a response, if warranted;

4.8.1.7. Establishing a post-office box for the receipt of any

correspondence;


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4.8.1.8. Responding to requests from Class Counsel and/or NNA’s

Counsel;

4.8.1.9. Establishing the Settlement Website, an e-mail address, and

toll-free voice response unit with message capabilities to which Settlement

Class Members may refer for information about the Underlying Actions and

the Settlement; and

4.8.1.10. Otherwise implementing and/or assisting with the

dissemination of the notice of the Settlement.

4.8.2. Replacement

If the Settlement Administrator makes a material or fraudulent misrepresentation to, or

conceals requested material information from Class Counsel or NNA Counsel, then the Party to

whom the misrepresentation is made shall, in addition to any other appropriate relief, have the

right to demand that the Settlement Administrator immediately be replaced. If the Settlement

Administrator fails to perform adequately on behalf of NNA or the Settlement Class, the Parties

may agree to remove the Settlement Administrator. Under such circumstances, the other Party

shall not unreasonably withhold consent to remove the Settlement Administrator, but this event

shall occur only after Class Counsel and NNA Counsel have attempted to resolve any disputes

regarding the retention or dismissal of the Settlement Administrator in good faith, and, if they are

unable to do so, after the matter has been referred to the Court for resolution.

4.9. Additional Communications

Nothing in this Settlement Agreement shall prevent (1) NNA from communicating with

Authorized NNA Dealers and/or customers (including Settlement Class Members) at any time for

purposes of customer satisfaction, as NNA generally communicates with its Authorized Dealers


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and/or customers in the regular course of business, or (2) Class Counsel from responding to

inquiries from Settlement Class Members after entry of the Preliminary Approval Order.

Nothing in this Settlement Agreement shall prevent NNA from communicating, and it is

contemplated that NNA may communicate after Preliminary Approval of the Settlement, with

Authorized NNA Dealers and customers (including Settlement Class Members) concerning the

Extended Warranty and NNA may indicate that the Extended Warranty is being provided as a

customer satisfaction effort to address customer concerns, including those expressed by the named

Plaintiffs in the Underlying Actions.

5. REQUESTS FOR EXCLUSION

Any potential Settlement Class Member who wishes to be excluded from the Settlement

Class must mail a written request for exclusion to the Settlement Administrator at the address

provided in the Long Form Notice, postmarked by the Response Deadline, which must include

his/her name, address, and telephone number, and which must specify that he or she wishes to be

excluded and otherwise comply with the terms stated in the Long Form Notice and Preliminary

Approval Order. The Settlement Administrator shall forward copies of any written requests for

exclusion to Class Counsel and NNA Counsel. A list reflecting all requests for exclusion shall be

filed with the Court as part of the submissions made by Plaintiffs in anticipation of the Final

Approval Hearing no later than fourteen (14) days before that hearing. If a potential Settlement

Class Member files a request for exclusion, he or she may not file an objection. Any potential

Settlement Class Member who does not file a timely, valid written request for exclusion shall be

bound by all subsequent proceedings, orders, and judgments, including, but not limited to, the

Released Claims and Final Approval Order in the Underlying Actions, even if the potential


20

Settlement Class Member has litigation pending or subsequently initiates litigation against NNA

relating to the claims released in the Underlying Actions.

If more than 160 Settlement Class Members file requests for exclusion, NNA reserves its

right to elect to terminate this Settlement under Section 11.2.6.

6. OBJECTIONS TO SETTLEMENT

Any Settlement Class Member who has not filed a timely, valid written request for

exclusion and who wishes to object to the fairness, reasonableness, or adequacy of the proposed

Settlement, or to the payments to Plaintiffs and Class Counsel as set forth in Section 9, must deliver

to the Settlement Administrator, Plaintiffs’ Counsel, and Defense Counsel, as identified in the

Class Notice, a written statement of his or her objections.

Any papers submitted in support of said objection shall be received by the Court at the

Final Approval Hearing, only if, on or before the Response Deadline approved by the Court, the

person making an objection shall send copies of such papers via United States mail, hand delivery,

or overnight delivery to Class Counsel, Defendant’s Counsel, and the Settlement Administrator.

Any Settlement Class Member who intends to object to this Settlement Agreement must

include in any such objection: (a) his/her full name, address and current telephone number; (b) the

case name and number of this Litigation; (c) the VIN of the Nissan or Infiniti vehicle covered by

the Settlement Class definition; (d) reasons for his/her objection to the Settlement along with any

supporting materials; (e) the identification of any other objections he/she has filed, or has had filed

on his/her behalf, in any other class action cases in the last four years; and (f) the objector’s

signature. If represented by counsel, the objecting Settlement Class Member must also provide the

name and telephone number of his/her counsel.


21

6.1. Effect of Failing to Object

Any Settlement Class Member who fails to comply with Section 6 above shall waive and

forfeit any and all rights he or she may have to appear separately and/or to object, and shall be

bound by all the terms of this Agreement and by all proceedings, orders, and judgment, including,

but not limited to, the Released Claims and the Final Approval Order in the Underlying Actions.

The exclusive means for any challenge to this Settlement shall be through the provisions of Section

6. Without limiting the foregoing, any challenge to the Settlement or to the Final Approval Order

shall be pursuant to appeal under the Federal Rules of Appellate Procedure and not through a

collateral attack.

Any Settlement Class Member who objects to the Settlement shall be entitled to all of the

benefits of the Settlement if this Agreement and the terms contained herein are approved, as long

as the objecting Settlement Class Member complies with all the requirements of this Agreement

applicable to Settlement Class Members.

7. PRELIMINARY APPROVAL ORDER, FINAL APPROVAL ORDER, AND

RELATED ORDERS

7.1. Preliminary Approval

Promptly after the execution of this Agreement, Plaintiffs shall move for (i) preliminary

approval of the Settlement, including entry of a preliminary approval order identical in all material

respects to the form of the Preliminary Approval Order attached hereto as Exhibit 1; (ii)

preliminary appointment of Plaintiffs as Settlement Class Representatives and preliminary

appointment of Class Counsel; and (iii) for purposes of this Settlement only, preliminary and

conditional certification of the Settlement Class. The proposed Preliminary Approval Order

submitted to the Court shall, among other things:


22

7.1.1. Preliminarily certify, for the purposes of this Settlement only, a nationwide

Settlement Class, approve Plaintiffs as class representatives and appoint Class Counsel as counsel

for the Settlement Class, pursuant to Fed. R. Civ. P. 23;

7.1.2. Preliminarily approve the Settlement;

7.1.3. Require the dissemination of the components of the Notice Plan and the

taking of all necessary and appropriate steps to accomplish this task;

7.1.4. Determine that the components of the Notice Plan comply with all legal

requirements, including, but not limited to, the Due Process Clause of the Constitution of the

United States;

7.1.5. Schedule a date and time for a Final Approval Hearing to determine whether

the Settlement should be finally approved by the Court;

7.1.6. Require Settlement Class Members who wish to exclude themselves to

submit an appropriate and timely written request for exclusion as directed by Section 5 of this

Agreement and that a failure to do so shall bind those Settlement Class Members who remain in

the Settlement Class;

7.1.7. Require all Settlement Class Members who wish to object to this Settlement

to submit an appropriate and timely written objection as directed in Section 6 of this Agreement;

7.1.8. Require attorneys representing Settlement Class Members who wish to

object to this Settlement to file a notice of appearance;

7.1.9. Appoint the Settlement Administrator; and

7.1.10. Issue other related orders to effectuate the preliminary approval of the

Agreement.


23

7.2. Final Approval

After the Final Approval Hearing, the Parties shall seek to obtain from the Court a Final

Approval Order, identical in all material respects to the form of the Final Approval Order attached

hereto as Exhibit 5, which shall, among other things:

7.2.1. Find that the Court has personal jurisdiction over all Plaintiffs and

Settlement Class Members, that the Court has subject matter over the claims asserted in the

Underlying Actions, and that venue is proper;

7.2.2. Finally approve the Agreement and the Settlement, pursuant to Fed. R. Civ.

P. 23;

7.2.3. Finally certify the Settlement Class, for settlement purposes only;

7.2.4. Find that the Notice Plan and notice dissemination methodology complied

with all laws, including, but not limited to, the Due Process Clause of the Constitution of the United

States;

7.2.5. Dismiss all claims made by Plaintiffs against NNA in the Underlying

Actions with prejudice and without costs and fees (except as provided for herein as to costs and

fees);

7.2.6. Incorporate the Released Claims set forth below in this Agreement and

make the releases incorporated into the Released Claims effective as of the date of the Final

Approval Order;

7.2.7. Issue a permanent injunction, pursuant to the All Writs Act, 28 U.S.C. §

1651, and the Anti-Injunction Act, 28 U.S.C. § 2283, against Settlement Class Members instituting

or prosecuting any claims released under this Settlement;

7.2.8. Authorize the Parties to implement the terms of the Agreement;


24

7.2.9. Retain jurisdiction relating to the administration, consummation,

enforcement, and interpretation of the Agreement, the Final Approval Order, and for any other

necessary purpose; and

7.2.10. Issue related orders to effectuate the final approval of the Agreement and

its implementation.

8. THE DISMISSALS AND RELEASES

8.1. The Underlying Actions

Upon the entry of the Final Approval Order, the Plaintiffs’ claims in the Underlying

Actions shall be dismissed with prejudice.

8.2. Releases

In consideration for the Settlement, Plaintiff and each Settlement Class Member agree on

behalf of themselves and any other legal or natural persons who may claim, by, through, or under

them, to fully, finally and forever release, relinquish, acquit, discharge and hold harmless the

Released Parties from any and all claims, demands, suits, petitions, liabilities, causes of action,

rights, and damages of any kind and/or type regarding the subject matter of the Underlying

Actions, including, but not limited to, compensatory, exemplary, punitive, expert and/or attorneys’

fees or by multipliers, whether past, present, or future, mature, or not yet mature, known or

unknown, suspected or unsuspected, contingent or non-contingent, derivative or direct, asserted or

un-asserted, whether based on federal, state or local law, statute, ordinance, regulation, code,

contract, common law, or any other source, or any claim of any kind arising from, related to,

connected with, and/or in any way involving the Underlying Actions.

The claims released, settled, and compromised by this Settlement Agreement include

known and unknown claims relating to the claims in the Lawsuits, and this Settlement Agreement


25

is expressly intended to cover and include all such injuries or damages relating to the claims in the

Lawsuits, including all rights of action thereunder. Settlement Class Members and Plaintiffs,

including Plaintiff Anglin and Plaintiff Nelson, expressly, knowingly, and voluntarily waive the

provisions of Section 1542 of the California Civil Code, which provides as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR

DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF

EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE

MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

Settlement Class Members and Plaintiffs, including Plaintiff Anglin and Plaintiff Nelson,

expressly waive and relinquish any and all rights and benefits which they may have under, or

which may be conferred upon them by, the provisions of Section 1542 of the California Civil Code,

or any other law of any state or territory which is similar, comparable, or equivalent to Section

1542, to the fullest extent that they may lawfully waive such rights or benefits pertaining to the

Released Claims. In connection with such waiver and relinquishment, the Settlement Class

Members and Plaintiffs, including Plaintiff Anglin and Plaintiff Nelson, acknowledge that they are

aware that they or their attorneys may hereafter discover claims or facts in addition to or different

from those which they now know or believe to exist with respect to the Released Claims, but that

it is their intention to fully, finally, and forever settle and release all of the Released Claims known

or unknown, suspected or unsuspected, which they have against NNA or Related Parties. In

furtherance of such intention, the release herein given by the Settlement Class Members and

Plaintiffs, including Plaintiff Anglin and Plaintiff Nelson, to NNA and Related Parties shall be and

remain in effect as a full and complete general release of the Released Claims notwithstanding the

discovery or existence of any such additional different claims or facts.


26

In addition, Settlement Class Members and Plaintiffs, including Plaintiff Anglin and

Plaintiff Nelson, also expressly waive and relinquish any and all rights and benefits which they

may have under, or which may be conferred upon them by, the provisions of Section 1793.22 of

the California Civil Code, or any other law of any state or territory which is similar, comparable,

or equivalent to Section 1793.22, to the fullest extent that they may lawfully waive such rights or

benefits pertaining to the Released Claims.

Plaintiffs and Settlement Class Members expressly agree that this release and the Final

Approval Order is, will be, and may be raised as a complete defense to, and will preclude any

action or proceeding encompassed by this release. Plaintiffs and Settlement Class Members shall

not now or hereafter institute, maintain, prosecute, assert, and/or cooperate in the institution,

commencement, filing, or prosecution of any suit, action and/or proceeding against the Released

Parties either directly or indirectly, on their own behalf, on behalf of a class or on behalf of any

other person or entity with respect to the claims, causes of action and/or any other matters released

through this Settlement.

Plaintiffs represent and warrant that they are the sole and exclusive owners of all claims

that they are personally releasing under this Agreement. Plaintiffs further acknowledge that they

have not assigned, pledged, or in any manner whatsoever, sold, transferred, assigned or

encumbered any right, title, interest or claim arising out of or in any way whatsoever pertaining to

the Underlying Actions, including without limitation, any claim for benefits, proceeds or value

under the Underlying Actions, and that Plaintiffs are not aware of anyone other than themselves

claiming any interest, in whole or in part, in the Underlying Actions or in any benefits, proceeds

or values under the Underlying Actions.


27

8.2.1. Binding Release

Upon entry of the Final Approval Order, no default by any person in the performance of

any covenant or obligation under this Agreement or any order entered in connection therewith

shall affect the dismissal of the Underlying Actions, the res judicata effect of the Final Approval

Order, the foregoing releases, or any other provision of the Final Approval Order; provided,

however, that all other legal and equitable remedies for violation of a court order or breach of this

Agreement shall remain available to the Parties.

9. CLASS COUNSEL FEES, PLAINTIFFS’ INCENTIVE AWARDS AND COSTS.

9.1. Defendant agrees to pay Class Counsel, subject to Court approval, One Million

Seven Hundred Eighty Thousand Dollars ($1,780,000.00), in total, in compensation for Plaintiffs’

attorneys’ fees and reimbursement of all costs and expenses associated with the Underlying

Actions. Defendant agrees that this Fee Award is fair and reasonable and Defendant will not object

to or otherwise challenge Class Counsel’s application for reasonable attorneys’ fees and for

reimbursement of costs and other expenses if limited to this Fee Award amount. Class Counsel

has, in turn, agreed to seek no more than this Fee Award amount from the Court.

9.2. Defendant shall pay the Fee Award approved by the Court within the later of thirty

(30) days after the Effective Date, or seven (30) days after Lead Class Counsel provide taxpayer

ID and W-9 documentation after the Effective Date, by wire transfer to an account designated by

Lead Class Counsel. Subject to Court approval, and in addition to any benefits made available to

Settlement Class Members under the Agreement, and in recognition of their efforts on behalf of

the Settlement Class, Plaintiffs Michelle Nelson and John Anglin, subject to Court approval, shall

each receive an award in the amount of Ten Thousand Dollars ($10,000) as appropriate

compensation for their time and effort serving as the Settlement Class Representatives in the


28

Underlying Actions. Defendant shall pay such amounts to the Settlement Class Representatives by

check delivered to Lead Class Counsel, within the later of thirty (30) days after the Effective Date,

or thirty (30) days after Plaintiffs provide check payee details, taxpayer ID, and W-9s after the

Effective Date.

9.3. Plaintiffs and Lead Class Counsel shall take full and complete responsibility for,

and shall hold harmless and indemnify NNA and Released Parties from any and all tax liability,

costs, penalties, and fines that may now or in the future be incurred resulting from the payment of

the Fee Award and Incentive Awards, including but not limited to federal, state, or local taxes.

9.4. Plaintiffs and their counsel will rely on their own tax advisors as to the tax

consequences of the Settlement funds. Plaintiffs and Lead Class Counsel represent that they will

fully and properly report their portions of the payment of the Settlement funds to the IRS and any

other required authority.

10. DENIAL OF WRONGDOING AND LIABILITY

NNA denies and continues to deny (a) each and all of the claims alleged by Plaintiffs in

the Underlying Actions, and (b) all allegations that anyone suffered damage or was otherwise

injured or harmed in any way by the conduct alleged in the Underlying Actions. NNA’s agreement

to enter into or carry out the terms of this Agreement shall not be construed as, or be deemed to be

evidence of, an admission or concession by NNA of any fault or liability whatsoever, and shall not

be offered or received in evidence in any action or proceeding in any court, administrative agency,

or other tribunal for any purpose whatsoever except as necessary to enforce the provisions of this

Agreement and the Exhibits hereto or the provisions of any related agreement or release. Without

conceding any infirmity in the denials or defenses NNA asserted or intended to assert in the

Underlying Actions, NNA states that it is in its best interests that the Underlying Actions be


29

dismissed in the manner and upon the terms and conditions set forth herein to avoid the expense

and inconvenience of further legal proceedings and to resolve the claims asserted by Plaintiffs

individually and on behalf of the Settlement Class.

11. CONTINGENCIES, EFFECT OF DISAPPROVAL, OR TERMINATION OF

SETTLEMENT

11.1. Option to Terminate

If the Court or, in the event of an appeal, any appellate court, refuses to approve, or

otherwise modifies any material aspect of this Agreement, the proposed Preliminary Approval

Order, or the Final Approval Order, either Party may elect to terminate this Agreement and the

Settlement as stated below.

11.2. Events Giving Rise to Option to Terminate

This Agreement and Settlement shall terminate and be cancelled if either Party provides to

the other Parties written notification of its election of a right to terminate arising under Section

11.2 within ten (10) business days after any of the following events:

11.2.1. The Court declines to enter or materially modifies the contents of

the Preliminary Approval Order attached hereto;

11.2.2. The Court declines to enter or materially modifies the contents of

the Final Approval Order attached hereto;

11.2.3. The Court’s Final Approval Order is vacated, reversed, or modified

in any material respect on any appeal or other review or in a collateral proceeding

occurring prior to the Effective Date;

11.2.4. The Effective Date does not occur for some other reason. For

purposes of this Agreement and this Section, no order of the Court, or modification

or reversal of any order of the Court, concerning the amount of payments made to


30

Plaintiffs and Class Counsel under this Agreement shall constitute grounds for

cancellation or termination of the Agreement;

11.2.5. Any federal or state authorities object to or request material

modifications to the Agreement; or

11.2.6. More than 160 Settlement Class Members request exclusion under

Section 5.

11.3. Effect of Termination

If, for any reason, this Agreement is terminated or fails to become effective, then the Parties

shall be deemed to have reverted to their respective status in the Underlying Actions before the

Agreement was signed, and the Parties shall proceed in all respects as if this Agreement and any

related orders had not been entered. Further, neither this Agreement, nor any order issued by the

Court in furtherance of this Agreement, shall have any effect if this Agreement is terminated nor

shall this Agreement, or any order issued by the Court in furtherance of this Agreement, be used

as evidence, or be used to support any argument of waiver, estoppel (including collateral, judicial,

or promissory estoppel), or res judicata.

12. MISCELLANEOUS

12.1. Public Statements

Class Counsel (and any affiliate counsel) shall not issue a press release or hold a press

conference to discuss this Agreement (or information learned in the Underlying Actions).

However, notwithstanding the foregoing, Class Counsel may explain to Settlement Class Members

that the Underlying Actions have been settled and to explain settlement benefits when contacted

by Settlement Class Members. Class Counsel and Plaintiffs hereby agree not to engage in any

communications with the media, the press, on the internet, or in any public forum, either orally or


31

in writing, that undermine or contradict the Settlement. Subject to the foregoing, Class Counsel

may refer to the Underlying Actions for the purposes of establishing their experience handling

litigation on a class basis. NNA reserves the right to communicate with their customers, business

contacts, and members of the public in the ordinary course of business.

This Section shall not be construed to limit or impede the requirements of the Notice Plan

set forth above. Class Counsel warrant and represent to NNA that Class Counsel: (a) do not

currently represent any client or clients that plan to, or are considering whether to, seek exclusion

from the Settlement, and shall not advocate for same (or assist those who are so advancing); (b)

are not currently aware of any Settlement Class Members that plan to, or are considering whether

to, seek exclusion from the Settlement; and (c) will not solicit, or assist others in soliciting,

Settlement Class Members to exclude themselves from the Settlement.

12.2. Notices

Unless otherwise provided for herein, any notice, request, instruction, application for Court

approval, or application for Court order sought in connection with the Agreement, other than

documents electronically filed with the Court, shall be in writing and sent by electronic mail, or

else delivered personally or sent by certified mail or overnight delivery service, postage pre-paid,

with copies by e-mail to the attention of Class Counsel and NNA Counsel (as well as to any other

recipients that a court may specify). As of the date hereof, the respective representative are as

follows:

For Defendants: William R. Sampson

Shook Hardy & Bacon, LLP

2555 Grand Blvd.

Kansas City, MO 64108

Tel: (816) 558-2482

[email protected]


32

For Plaintiffs: Myles McGuire

McGuire Law, P.C.

55 W. Wacker Drive, 9th Fl.

Chicago, IL 60601

Tel: (312) 893-7002

[email protected]

12.3. Tax Consequences

The Parties acknowledge and agree that no opinion concerning the tax consequences of the

proposed Settlement to Settlement Class Members is given or will be given by the Parties, nor are

any representations or warranties in this regard made by virtue of this Agreement. Each Settlement

Class Member’s tax obligations, and the determination thereof, are the sole responsibility of the

Class Member, and it is understood that the tax consequences may vary depending on the particular

circumstance of each individual Settlement Class Member.

12.4. Not Evidence

This Agreement, whether or not it shall become final, and any and all negotiations,

communications, and discussions associated with it, shall not be:

12.4.1. Offered or received by or against any Party as evidence of, or be construed

as or deemed to be evidence of, any presumption, concession, or admission by a Party of the truth

of any fact alleged by Plaintiffs or defense asserted by NNA, of the validity of any claim that has

been or could have been asserted in the Underlying Actions, or the deficiency of any defense that

has been or could have been asserted in the Underlying Actions, or of any liability, negligence,

fault, or wrongdoing on the part of the Released Parties;

12.4.2. Offered or received by or against Plaintiffs or the Released Parties as a

presumption, concession, admission, or evidence of any violation of any state or federal statute,

law, rule, or regulation or of any liability or wrongdoing by the Released Parties, or of the truth of


33

any of the claims, and evidence thereof shall not be directly or indirectly, in any way (whether in

the Underlying Actions or in any other action or proceeding), except for purposes of enforcing this

Agreement and the Final Approval Order including, without limitation, asserting as a defense the

release and waivers provided herein;

12.4.3. Offered or received by or against Plaintiffs or the Released Parties as

evidence of a presumption, concession, or admission with respect to a decision by any court

regarding the certification of a class, or for purposes of proving any liability, negligence, fault, or

wrongdoing; or in any way referred to for any other reason as against the Released Parties, in any

other civil, criminal, or administrative action or proceeding, other than such proceedings as may

be necessary to effectuate the terms of this Agreement; provided, however, that if this Settlement

and Agreement are approved by the Court, then Plaintiffs or the Released Parties may refer to it to

enforce their rights hereunder; or

12.4.4. Construed as an admission or concession by Plaintiffs, the Settlement Class,

or the Released Parties that the consideration to be given hereunder represents the relief that could

or would have been obtained through trial in the Underlying Actions.

12.5. Integration

This Agreement, complete with its Exhibits, sets forth the sole and entire agreement among

the Parties with respect to the subject matter, and it may not be altered, amended, or modified

except by written instrument executed by Class Counsel and NNA. The Parties expressly

acknowledge that no other agreements, arrangements, or undertakings not expressed in this

Agreement exist among or between them, and that in deciding to enter into this Agreement, they

rely solely upon their judgment and knowledge. This Agreement supersedes any prior agreements,


34

understandings, or undertakings (written or oral) by and between the Parties regarding the subject

matter of this Agreement.

12.6. Exhibits

All of the Exhibits attached hereto are hereby incorporated by reference as though fully set

forth herein.

12.7. Headings for Convenience Only

The headings in this Agreement are for the convenience of the reader only and shall not

affect the meaning or interpretation of this Agreement.

12.8. No Party Is Drafter

None of the Parties to this Agreement shall be considered to be the primary drafter of the

Agreement or any provision for the purpose of any rule of interpretation or construction that might

cause any provision to be construed against the drafter.

12.9. Recitals

The Parties hereby agree that each of the recitals set forth above is true and correct. Each

of the Parties agree not to contest the accuracy of any of the recitals set forth above.

12.10. Continuing Jurisdiction

The Court shall retain jurisdiction with respect to implementation and enforcement of the

terms of this Settlement. The Court shall also retain exclusive jurisdiction over any subsequent

claim against NNA arising from or relating to this Agreement. Any such subsequent suit against

NNA necessarily raises the threshold question of whether the plaintiff in such suit is a Settlement

Class Member under this Agreement such that his or her subsequent suit is one of the kind

prohibited under the terms of this Agreement. All Parties to this Agreement, and their respective


35

counsel, hereby submit to the jurisdiction of the Court for purposes of implementing or enforcing

the Settlement embodied in this Agreement.

12.11. Extensions

The Parties reserve the right, subject to the Court’s approval, to agree to any reasonable

extensions of time that might be necessary to carry out any of the provisions of this Agreement.

12.12. Good Faith in Execution

The Parties, their successors and assigns, and their respective counsel undertake to

implement the terms of this Agreement in good faith, and to use good faith in resolving any

disputes that may arise in the implementation of the terms of this Agreement.

12.13. Governing Law

This Agreement shall be governed by and construed in accordance with the laws of

Tennessee without giving effect to any conflict of law provisions that would cause the application

of the laws of any jurisdiction other than Tennessee.

12.14. Waiver

The waiver by one Party of any breach of this Agreement by another Party shall not be

deemed a waiver of any prior or subsequent breach of this Agreement.

12.15. Severability

In the event any one or more of the provisions contained in this Agreement shall for any

reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or

unenforceability shall not affect any other provision if the Parties mutually agree in writing to

proceed as if such invalid, illegal, or unenforceable provision had never been included in this

Agreement. Any such agreement shall be reviewed and approved by the Court before it becomes

effective.


36

12.16. Execution in Counterparts

Plaintiffs, Class Counsel, NNA, and NNA’s Counsel may execute this Agreement in

counterparts, and the execution in counterparts shall have the same effect as if all Parties had

signed the same instrument. Facsimile and scanned .PDF signatures transmitted by email shall

thereafter be appended to the Agreement. This Agreement shall not be deemed executed until

signed by Plaintiffs, Class Counsel NNA’s Counsel, and a representative of NNA.

12.17. Costs and Expenses

Except as provided above, each of the Plaintiffs, Class Counsel, and NNA shall be

responsible for his, her, or its own costs and expenses.

IN WITNESS WHEREOF, the undersigned have caused this Settlement Agreement to

be executed as of the dates set forth below.

[The remainder of this page is intentionally left blank.]


37

ON BEHALF OF PLAINTIFFS AND SETTLEMENT CLASS:

MICHELLE NELSON

____________________________________________

Date:

JOHN ANGLIN

___________________________________________ Date:

ON BEHALF OF CLASS COUNSEL:

Myles McGuire Evan M. Meyers David L. Gerbie MCGUIRE LAW, P.C. 55 West Wacker Drive, Suite 900 Chicago, Illinois 60601 [email protected] [email protected] [email protected] Tel: (312) 893-7002 Scott A. Morgan MORGAN LAW FIRM, LTD. 55 West Wacker Drive, Suite 900 Chicago, Illinois 60601 [email protected] Tel: (312) 327-3386 John Sawin SAWIN LAW FIRM, LTD. 55 West Wacker Drive, Suite 900 Chicago, Illinois 60601 [email protected] Tel: (312) 853-2490


06/25/2019

ON BEHALF OF PLAINTIFFS AND SETTLEMENT CLASS:

MICHELLE NELSON

Date:

JOHN ANGLIN

ON BEHALF OF CLASS COUNSEL:

Myles McGiiircEvan M. MeyersDavid L. Gerbie

McGuire Law, P.C.55 West Wackcr Drive, Suite 900Chicago, Illinois [email protected]@[email protected]: (312) 893-7002

Scott A. MorganMorgan Law Firm, Ltd.55 West Wacker Drive, Suite 900Chicago, Illinois [email protected]: (312) 327-3386

John Sawin

Sawin Law Firm, Ltd.55 West Wacker Drive, Suite 900Chicago, Illinois [email protected]: (312) 853-2490

37Case 3:17-cv-01114 Document 63-1 Filed 06/28/19 of 78 PageID #: 1147

EXHIBIT 1


1

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

MICHELLE NELSON, individually and ) on behalf of all others similarly situated, )

) Plaintiff, ) No. 3-17-1114

) v. )

) Hon. Eli Richardson NISSAN NORTH AMERICA, INC., ) A California corporation, )

) Defendant. )

[PROPOSED] ORDER PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT AGREEMENT, CONDITIONALLY CERTIFYING SETTLEMENT

CLASS, AND DIRECTING NOTICE OF PROPOSED CLASS SETTLEMENT

WHEREAS, Michelle Nelson and John Anglin (“Plaintiffs”), and Defendant, Nissan North

America, Inc. (“NNA” or “Nissan”) have reached a proposed settlement and compromise of the

claims in the above-captioned matter, which is embodied in the Settlement Agreement filed with

the Court; and

WHEREAS, the Parties have applied to the Court for preliminary approval of the proposed

Settlement, the terms and conditions of which are set forth in the Settlement Agreement; and

WHEREAS, the Capitalized Terms herein shall have the same meaning as in the Settlement

Agreement;

NOW, THEREFORE, the Court, having read and considered the Settlement Agreement

and accompanying documents, as well as the Motion for Preliminary Approval of Class Settlement

and supporting papers, and the Parties to the Settlement Agreement having consented to the entry

of this order (the “Order”), AND GOOD CAUSE APPEARING,


2

IT IS HEREBY ORDERED:

1. Subject to further consideration by the Court at the time of the Final Approval

Hearing, the Court preliminarily approves the Settlement as fair, reasonable, and adequate to the

Settlement Class, as falling within the range for possible final approval, and as meriting submission

to members of the Settlement Class for their consideration.

2. For purposes of the Settlement only, the Court conditionally certifies the Settlement

Class, defined as:

All persons in the United States and its territories including Puerto Rico whopurchased any White-painted Nissan Rogue produced between January 11, 2013and April 23, 2013, and/or any White-painted Infiniti QX56 produced betweenNovember 20, 2009 and December 12, 2012.

Excluded from the Settlement Class are NNA; any entity that is a subsidiary of or is

controlled by NNA; anyone employed by Class Counsel; any judge to whom the Underlying

Actions are assigned, his or her spouse, and members of the judge’s staff.

3. The Court preliminarily finds, solely for the purposes of considering this

Settlement, that the requirements of Federal Rule of Civil Procedure 23 appear to be satisfied,

including requirements for the existence of numerosity, typicality, commonality, adequacy of

representation, and manageability of the Settlement Class; that common issues of law and fact

predominate over individualized issues; and that settlement and certification of the Settlement

Class is superior to alternative means of resolving the claims and disputes at issue in the

Underlying Actions.

4. Plaintiffs Michelle Nelson and John Anglin shall serve as Class Representatives of

the Settlement Class.

5. The Court appoints the following counsel as Class Counsel for purposes of this

settlement:


3

Lead Class Counsel:

Myles McGuire Evan M. Meyers David L. Gerbie MCGUIRE LAW, P.C. 55 W. Wacker Drive, 9th Fl. Chicago, IL 60601 Tel: (312) 893-7002 [email protected] [email protected] [email protected]

Plaintiffs’ Steering Committee:

Robert A. Cox Edwin E. Wallis III GLASSMAN, WYATT, TUTTLE & COX, P.C. 26 North Second Street Memphis, TN 38103 Tel:901-527-4673 Fax: 901-527-5320 [email protected] [email protected]

Scott A. Morgan MORGAN LAW FIRM, LTD. 55 West Wacker Drive, Suite 900 Chicago, Illinois 60601 Tel: (312) 327-3386 [email protected]

John Sawin SAWIN LAW FIRM, LTD. 55 West Wacker Drive, Suite 900 Chicago, Illinois 60601 Tel: (312) 853-2490 [email protected]


4

The Court preliminarily finds that Plaintiffs and Class Counsel have and will fairly and

adequately represent and protect the interests of the absent members of the Settlement Class in

accordance with Federal Rule of Civil Procedure 23.

6. The Court approves the nomination of KCC to administer notice to the class.

7. A Final Approval Hearing shall be held before this Court at INSERT TIME on

INSERT DATE, in Courtroom INSERT NUMBER, 801 Broadway, Nashville, Tenn. 37203, to

address: (a) whether the proposed Settlement should be finally approved as fair, reasonable and

adequate; (b) whether the Final Approval Order and Judgment should be entered; (c) whether Class

Counsel’s application for attorney’s fees, expenses, and Class Representatives’ Incentive Awards

should be approved; and (d) any other matters that the Court deems appropriate.

8. With the exception of such proceedings as are necessary to implement, effectuate

and grant final approval to the terms of the Settlement Agreement, all proceedings with respect to

the claims in the Underlying Actions are stayed and all members of the Settlement Class are

enjoined from commencing or continuing any action or proceeding in any court or tribunal

asserting any claims encompassed by the Settlement Agreement.

9. The Court has reviewed and approves, as to form and content, the Summary

Settlement Notice, the Short Form Notice, and the Long Form Notice, all of which are attached to

the Settlement Agreement. The Summary Settlement Notice shall be posted on the Settlement

website and published in at least one national publication.

10. The Court finds that the Parties’ plan for providing notice to the Settlement Class

described in Section 4 of the Settlement Agreement constitutes the best notice practicable under

the circumstances and shall constitute due and sufficient notice to the Settlement Class of the

pendency of the Underlying Actions, certification of the Settlement Class, the terms of the


5

Settlement Agreement, and the Final Approval Hearing, and complies fully with the requirements

of the Federal Rules of Civil Procedure, the United States Constitution, and any other applicable

law. The Settlement Administrator shall complete dissemination of notice in the manner prescribed

in Section 4 of the Settlement Agreement no later than INSERT NUMBER days after the date of

this Order.

11. The Court further finds that the Notice Plan in Section 4 of the Settlement

Agreement will adequately inform members of the Settlement Class of their right to exclude

themselves from the Settlement Class so as not to be bound by the terms of the Settlement

Agreement should they so choose. Any member of the Settlement Class who desires to be excluded

from the Settlement Class, and therefore not bound by the terms of the Settlement Agreement,

must submit to the Settlement Administrator, pursuant to the instructions set forth in the Notice, a

timely and valid written request for exclusion no later than INSERT DATE, 2019.

12. Any member of the Settlement Class who elects to be excluded shall not be

entitled to receive any of the benefits of the Settlement, shall not be bound by the release of

claims under the Settlement Agreement, and shall not be entitled to object to the Settlement or

appear at the Final Approval Hearing. The names of all person and entities timely submitting

valid requests for exclusion shall be provided to the Court before the Final Approval Hearing.

13. Any member of the Settlement Class who does not submit a valid and timely

request for exclusion may object to the Settlement Agreement; to Class Counsel’s application for

attorneys’ fees, expenses, and costs; to the Class Representatives’ Incentive Awards; or to the

proposed Final Approval Order. All objections must be postmarked by INSERT DATE, 2019. All

objections must be submitted to the Parties’ counsel and the Settlement Administrator, and

postmarked by INSERT DATE, 2019. The Parties shall file such objections with the Court 14 days


6

before the Final Approval Hearing. No member of the Settlement Class shall have the right to

appear and to be heard at the Final Approval Hearing, either personally or through an attorney,

unless written notice of the Settlement Class Member’s objection and any brief in support of the

objection have been submitted in conformance with the procedure set out in the detailed Long

Form Notice, which is Exhibit 4 to the Settlement Agreement.

14. Service of all papers on counsel for the Parties shall be made as follows to the

counsel listed in paragraph 12.2 of the Settlement Agreement: for Class Counsel, Myles McGuire,

McGuire Law, P.C., 55 W. Wacker Dr., 9th Floor, Chicago IL 60601; for Defendants’ Counsel,

William R. Sampson, Shook Hardy & Bacon, LLP, 2555 Grand Blvd., Kansas City MO 64108.

15. Any member of the Settlement Class who does not make an objection in the time

and manner provided in the detailed Long Form Notice, which is Exhibit 4 to the Settlement

Agreement, shall be deemed to have waived such objection and be forever foreclosed from making

any objection to the fairness or adequacy of the proposed settlement as incorporated in the

Settlement Agreement; the payment of attorney’s fees, costs, and expenses; the Class

Representatives’ Incentive Awards; or the Final Approval Order.

16. In the event that the proposed Settlement is not approved by the Court, or in the

event that the Settlement Agreement becomes null and void pursuant to its terms, this Order and

all orders entered in connection therewith shall become null and void, shall be of no further force

and effect, and shall not be used or referred to for any purposes whatsoever in the Underlying

Actions or in any other case or controversy; in such event, the Settlement Agreement and all

negotiations and proceedings directly related thereto shall be deemed to be without prejudice to

the rights of any and all of the Parties, who shall be restored to their respective positions as of the

date and time immediately preceding the execution of the Settlement Agreement.


7

17. Class Counsel may file a motion seeking an award of attorneys’ fees, costs and

expenses, as well as Incentive Awards for the Class Representatives, no later than INSERT DATE,

2019.

18. All papers in support of the final approval of the proposed Settlement shall be filed

no later than INSERT NUMBER days before the Final Approval Hearing.

19. The Court may, for good cause, extend any of the scheduled dates or deadlines set

forth in this Order without further notice to the members of the Settlement Class. The Final

Approval Hearing may, from time to time and without further notice to the Settlement Class, be

continued by order of the Court.

20. For clarity, the deadlines set forth above and in the Settlement Agreement are as

follows:

Notice to be completed by: INSERT DATE, 2019

Fee and Expense Application: INSERT DATE, 2019

Objection and Exclusion Deadline: INSERT DATE, 2019

Final Approval Submissions: INSERT DATE, 2019

Final Approval Hearing: INSERT DATE, 2019 at INSERT TIME a.m.

Reimbursement Claims Deadline: INSERT DATE, 2020

IT IS SO ORDERED.

Dated:

_____________________________ Hon. Eli Richardson U.S. District Court Judge


EXHIBIT 2


Short Form Notice If you bought any White Nissan Rogue produced between January 11, 2013 and April 23, 2013 and/or any White Infiniti QX56 produced between November 20, 2009 and December 12, 2012, you may be eligible for benefits under a class action settlement.

A proposed settlement has been reached in two class actions against Nissan North America, Inc. (“NNA”) involving allegations that certain vehicles were painted with white exterior paint that peeled off in whole parts. The cases are Nelson v. Nissan North America, Inc., Case No. 3:17-cv-01114 (M.D. Tenn.), and Anglin v. Nissan North America, Inc., Case No. 1:17-cv-04240 (N.D. Ill.). These cases were brought as class actions alleging that NNA knew about the paint defects but refused to honor warranties and replace the paint if the affected vehicle owners requested a repaint. NNA denies the allegations. The Court has not decided who is right, and the Parties have chosen to settle their dispute. This notice provides only a summary of the allegations. Records available to NNA indicate that you may be a Class Member. If you are a Class Member, your rights may be affected, even if you take no action. You must take action to receive Settlement benefits or to protect your rights. If you are a Class Member, you may be eligible for a full vehicle repaint (subject to a copay), rental car coverage, or reimbursement for repaint or rental car services you have previously purchased, and eligibility in Nissan’s Vehicle Purchase Program. If you think you may be a Class Member, you should immediately review the Long Form Notice at www.INSERT.com for more information. Please visit www.INSERT.com for information about the benefits available to you under this Settlement, including your options and the deadlines for exercising them.


EXHIBIT 3


If you bought any White Nissan Rogue produced between January 11, 2013 and April 23, 2013 or any White Infiniti QX56 produced between November 20, 2009 and December 12, 2012,

You May Be Eligible for Benefits Under A Class Action Settlement

The United States District Court for the Middle District of Tennessee has authorized this notice.

This is not an advertisement and not a solicitation from a lawyer.

A proposed settlement has been reached in two class actions against Nissan North America, Inc. (“NNA”) regarding certain vehicles that were painted with white paint that peeled off in whole parts. The cases are Nelson v. Nissan North America, Inc., Case No. 3:17-cv-01114 (M.D. Tenn.), and Anglin v. Nissan North America, Inc., Case No. 1:17-cv-04240 (N.D. Ill.). These cases were brought as class actions alleging that NNA knew about the paint defects but refused to honor warranties and replace the paint if the affected vehicle owners requested a repaint. NNA denies the allegations. The Court has not decided who is right, and the Parties have chosen to settle their dispute. This notice provides only a summary of the allegations.

Am I Included? You may be entitled to reimbursement or other benefits of this Settlement if you fall within the following Settlement Class:

All persons in the United States and its territories including Puerto Rico who purchased any White-painted Nissan Rogue produced between January 11, 2013 and April 23, 2013, and/or any White-painted Infiniti QX56 produced between November 20, 2009 and December 12, 2012 (collectively, “Settlement Class Members”).

What Does the Settlement Provide?

NNA has agreed to provide Settlement Class Members with an Extended Warranty, which includes:

1. An extended warranty for your vehicle’s exterior paint for four years entitling you to one repaint of your vehicle, subject to a copay. If you have already repainted your vehicle at your own expense, you may be eligible for compensation.

2. Rental car coverage or reimbursement up to $400 for Settlement Class Members who possess an in-scope Nissan Rogue

and $600 for Settlement Class Members who possess an in-scope Infiniti QX56 while completing a vehicle repaint. In addition, NNA has agreed to provide Settlement Class Members eligibility in Nissan’s Vehicle Purchase Program for a 3-month period. This program offers pre-negotiated pricing on new Infiniti and Nissan vehicle purchases.

Your Rights May Be Affected. Settlement Class Members who do not want to be legally bound by the Settlement must exclude themselves by INSERT DATE. Settlement Class Members who do not exclude themselves will release their claims against NNA, as more fully described in the Settlement. The detailed notice (also known as the “Long Form Notice”) available at www.INSERT.com provides further details, including an explanation of how to exclude yourself or object. The Court is scheduled to hold a hearing on INSERT DATE, 2019 to consider whether to approve the Settlement, Class Counsel’s request for attorneys’ fees of up to $1,780,000 including costs and expenses, and Incentive Awards for the Class Representatives of $10,000 each. You can appear at the hearing, but you do not have to. You can hire your own attorney, at your own expense, to appear or speak for you at the hearing.

How Can You Get More Information?

Please do not contact the Court or NNA’s counsel regarding this Settlement. If you have questions or want a detailed notice or other documents about this lawsuit and your rights, visit www.INSERT.com. You may also contact the Settlement Administrator by calling INSERT NUMBER.

Visit www.INSERT.com or call INSERT NUMBER for more information.


EXHIBIT 4


Visit www.INSERT.com or call INSERT NUMBER for more information. 1

LEGAL NOTICE BY ORDER OF COURT (LONG FORM NOTICE)

This Notice describes rights you may have in connection with the settlement of a lawsuit.

The United States District Court for the Middle District of Tennessee has authorized this Notice.

This is not a solicitation from a lawyer. This is not a legal action against you.

This Notice describes a proposed settlement in a class action lawsuit brought against Nissan North America, Inc. (“NNA”) regarding paint-peeling occurring on White-painted Nissan Rogues and Infiniti QX56s. Please read this Notice carefully. It summarizes your rights and options under the Settlement, which are affected whether or not you act. The full Settlement Agreement can be accessed at www.INSERT.com. If you bought a new or used White-painted Nissan Rogue and/or Infiniti QX56, and if you fit the description of a member of the Settlement Class, then you have the following options:

• You can claim one of the benefits provided by the Settlement. Under the Settlement, you may be eligible for a subsidized repaint of your vehicle and rental car coverage, as well as eligibility in Nissan’s Vehicle Purchase Program. If you have already repainted your vehicle at your own expense, you may be eligible for compensation.

• You can exclude yourself from the Settlement. If you pursue this option, you will not receive any of the settlement benefits described above, but you retain the right to bring your own lawsuit. Your request to exclude yourself must be submitted no later than INSERT DATE. You must follow the process described in part 8 below. If the Settlement is approved and you do not exclude yourself, you will be bound by the Settlement and will release certain claims described below.

• You can object to the Settlement. The deadline for objecting to the Settlement is INSERT DATE. All objections must be mailed to the Settlement Administrator, Class Counsel, and NNA’s counsel. See part 7 below for details.

NOTE: PLEASE DO NOT CALL OR WRITE THE COURT, THE COURT CLERK’S OFFICE, OR NNA’S COUNSEL FOR MORE INFORMATION. THEY WILL NOT BE ABLE TO ASSIST YOU. If you have questions, please call INSERT NUMBER or visit www.INSERT.com



BASIC INFORMATION

In two purported class actions known as Nelson v. Nissan North America, Inc., Case No. 3:17-cv-01114 (M.D. Tenn.) and Anglin v. Nissan North America, Inc., Case No. 1:17-cv-04240 (N.D. Ill.), the Plaintiffs alleged that they bought vehicles that NNA had defectively painted. Specifically, they alleged that their vehicles’ paint peeled in whole parts after only a few years of use and that NNA refused to provide repaints. NNA denies that it did anything wrong. The Court has not decided who is right. A settlement of the lawsuits (“Settlement”) has been negotiated which, if approved by the Court, gives you options, including the ability to get a repaint (subject to co-pay) or reimbursement for a repaint you already completed, car rental coverage (or reimbursement), and eligibility for Nissan’s Vehicle Purchase Program, which would allow you to purchase new Nissan or Infiniti vehicles at a pre-negotiated price. By entering into the Settlement, NNA has not admitted the truth or validity of any of the claims against it. Your rights and options under the Settlement—and the deadlines to exercise them—are explained below.

YOUR LEGAL RIGHTS AND OPTIONS

SUBMIT A REIMBURSEMENT CLAIM OR VISIT AN AUTHORIZED NISSAN OR INFINITI

DEALERSHIP

These are the only ways to receive benefits from the Settlement. Class Members who have completed a repaint must submit a valid reimbursement claim by the deadline of INSERT DATE to receive a payment and will give up certain rights as described below. Class Members who have not yet completed a repaint may visit an Authorized Nissan or Infiniti dealer to complete a repaint and/or exercise their eligibility in Nissan’s Vehicle Purchase Program.

DO NOTHING If you do nothing, you will receive nothing from the Settlement, but you will still give up your rights to sue NNA as described below.

EXCLUDE YOURSELF FROM THE SETTLEMENT If you exclude yourself, you can sue NNA on your own and at your own expense, but you will not receive anything from the Settlement. The deadline for excluding yourself is INSERT DATE.

OBJECT You may file an objection if you wish to object to the Settlement. The deadline to object to the Settlement is INSERT DATE.

GO TO A HEARING

Ask to speak in Court about the fairness of the Settlement. The Court has set a hearing for INSERT DATE at INSERT TIME subject to change.



These rights and options—and the deadlines to exercise them— are explained in this Notice. The Court in charge of this Settlement still has to decide whether to approve the Settlement. If approved, benefits will be distributed to those who qualify. Please be patient.

WHAT THIS NOTICE CONTAINS

1. Who is in the Settlement Class? ......................................................................... 4

2. What is this litigation about? .............................................................................. 4

3. Who represents me? ............................................................................................ 4

4. What benefits can I receive from the Settlement? .............................................. 5

5. Do I have to pay the lawyers representing me? .................................................. 6

6. What am I agreeing to by remaining in the Settlement Class in this case? ........ 6

7. What if I don’t agree with the Settlement? ......................................................... 6

8. How do I exclude myself from the Settlement Class? ........................................ 7

9. What is the difference between objecting and asking to be excluded? .............. 7

10. What if I do nothing at all? ................................................................................. 7

11. What will be decided at the Final Approval Hearing? ....................................... 8

12. Is this the entire Settlement Agreement? ........................................................... 9

13. Where can I get more information? ................................................................... 9



1. Who is in the Settlement Class? The United States District Court for the Middle District of Tennessee (Honorable Eli Richardson) has conditionally certified, for settlement purposes only, a Settlement Class in Nelson v. Nissan North America, Inc., Case No. 3:17-cv-01114. If you received a notice of the Settlement directed to you, then you may be a member of the Settlement Class. But even if you did not receive a notice, you may still be a member of the Settlement Class. The “Settlement Class” is defined as:

All persons in the United States and its territories including Puerto Rico who purchased any White-painted Nissan Rogue produced between January 11, 2013 and April 23, 2013, and/or any White-painted Infiniti QX56 produced between November 20, 2009 and December 12, 2012.

Excluded from the Settlement Class are NNA; any entity that is a subsidiary of or is controlled by NNA; anyone employed by Class Counsel; any judge to whom the Underlying Actions are assigned, his or her spouse, and members of the judge’s staff.

If you are not sure whether you are in the Settlement Class, or have any other questions about the Settlement, visit the Settlement website at www.INSERT.com or call the toll-free number INSERT NUMBER. 2. What is this litigation about? These two cases were brought as class actions alleging that NNA produced vehicles with defective exterior paint that peeled off in whole parts after a relatively short period of use. This is just a summary of the allegations. The complaints in these lawsuits are posted at www.INSERT.com and contain all of the allegations. NNA denies these allegations; however, to avoid the expense, inconvenience, and distraction of continued litigation, NNA has agreed to the Settlement described in this Notice.

3. Who represents me? In a class action, one or more people or entities called class representatives sue on behalf of people and entities who have similar claims. In this case, Michelle Nelson and John Anglin sued NNA in a representative capacity, and the Court has appointed them to be Settlement Class Representatives for all Class Members. The Court also approved the law firms McGuire Law, P.C.; Glassman, Wyatt, Tuttle & Cox, P.C.; Morgan Law Firm, Ltd.; and Sawin Law Firm, Ltd. to represent the Settlement Class. If you want to be represented by your own lawyer, you may hire one at your own expense.



4. What benefits can I receive from the Settlement? Under the Settlement, NNA has agreed to provide an Extended Warranty for the members of the Settlement Class. The Extended Warranty increases the exterior paint warranty coverage for the vehicles subject to this Settlement. Under the Extended Warranty, you have two options, depending on whether you have already repainted your Nissan or Infiniti vehicle that is subject to the Settlement. The Extended Warranty extends your vehicle’s exterior paint warranty—specifically for paint peeling issues—for four years. A. Repaint You are eligible for one repaint (or reimbursement of a repaint) of your vehicle, subject to the co-pays described below. To act on this eligibility, if you have not already had your vehicle repainted, you must bring your vehicle to any authorized Nissan or Infiniti dealer and inform the staff that you are a member of this Settlement Class. The dealer will inspect your vehicle to confirm its eligibility for a repaint. If confirmed, the dealer will coordinate to obtain a repaint estimate that it will share with you and NNA to confirm acceptance of the estimate. Once the estimate has been accepted by you and NNA, the repaint will proceed and you will be offered a rental car (subject to a maximum spending cap), as necessary. The dealer will coordinate the delivery of your vehicle to the paint shop and, once the repaint is performed, will contact you to pick up your vehicle. Because the repaint process is a multi-step process, please be patient as your dealer coordinates your repaint. During the first two years of the Extended Warranty, NNA will cover 90% of the cost of the repaint (you pay a 10% co-pay). During the final two years of the Extended Warranty, NNA will cover 70% of the cost of the repaint (you pay a 30% co-pay). If you need to rent a car during the repaint process, NNA will provide up to $400 of rental car coverage for Nissan Rogue repaints and up to $600 for Infiniti QX56 repaints. B. Reimbursement If you already repainted your vehicle at your own expense before notice of the benefits under this Settlement was issued, you may be eligible for reimbursement for the repaint expenses you incurred, including reimbursement for rental car expenses. Reimbursement amounts will be in the same co-pay percentages as shown in the Repaint option described above. To apply for reimbursement under the Settlement, you must submit your reimbursement request to NNA within one year of the Effective Date of the Settlement. You will receive notice of the Effective Date once the Settlement has been approved, and that notice will provide the contact information for such submissions. This process will require vehicle owners to provide documentation proving their earlier repaint (e.g., repaint invoices) as well as any earlier rental car expenses. VPP Eligibility In addition to either repainting your vehicle or reimbursing you for a previous repaint, as described above, NNA will provide you with 3-months of eligibility in Nissan’s Vehicle Purchase Program starting after the Effective Date of the Court’s final approval of the Settlement. Nissan’s Vehicle Purchase Program offers pre-negotiated pricing on new Infiniti and Nissan vehicle purchases. If this Settlement is approved by the Court, you will receive a separate notice in the mail with more details about your ability to participate in the Vehicle Purchase Program.



5. Do I have to pay the lawyers representing me? No. Class Counsel will apply to the Court for an award of attorneys’ fees and expenses for investigating the facts, litigating the cases, and negotiating the Settlement. To date, Class Counsel have not received any payment for their services in litigating the cases on behalf of the Class Representatives and the Settlement Class, nor have Class Counsel been reimbursed for their costs and expenses directly relating to their representation of the Settlement Class. Class Counsel will also request that an Incentive Award be awarded to each of the Class Representatives in recognition of their service to the Settlement Class. The amount of any fee or Incentive Award will be determined by the Court. You may contact Lead Class Counsel for further information at the following address: Myles McGuire Evan M. Meyers David L. Gerbie MCGUIRE LAW, P.C. 55 West Wacker Drive, Suite 900 Chicago, Illinois 60601 [email protected] [email protected] [email protected] Tel: (312) 893-7002 6. What am I agreeing to by remaining in the Settlement Class in this case? Unless you exclude yourself, you will be a member of the Settlement Class, and you will be bound by the release of claims in the Settlement. This means that if the Settlement is approved, you cannot sue, continue to sue, or be part of any lawsuit against NNA involving or relating in any way to the claims made in the lawsuits covered by the Settlement. The released claims include all claims that were or could have been asserted in the lawsuits, regardless of whether those claims are known or unknown, filed or unfiled, asserted or as yet unasserted, existing or contingent. These include claims under provisions of Section 1793.22 of the California Civil Code. 7. What if I don’t agree with the Settlement? If you are a member of the Settlement Class, you may object to the Settlement or any part of the Settlement that you think the Court should reject; if so, the Court will consider your views. To object, you must send your objection to the Settlement Administrator, Class Counsel, and NNA’s Counsel providing:

a) The case name and case number of this litigation (Nelson v. Nissan North America, Inc., M.D. Tenn., Case No. 3:17-cv-01114);

b) Your full name, current address, and phone number, and the name, current address, and phone number of your counsel, if any;

c) The VIN of your Nissan or Infiniti vehicle covered by the Settlement Class definition; d) The reasons why you object to the Settlement along with any supporting materials; e) Information about other objections you or your lawyer(s) have made in other class action cases in

the last four (4) years; and f) Your signature.

Your objection must be postmarked on or before INSERT DATE. Objections must be mailed to: Settlement Administrator INSERT ADDRESS



Plaintiffs’ Counsel Defendant’s Counsel Myles McGuire William R. Sampson MCGUIRE LAW, P.C. SHOOK, HARDY & BACON, LLP 55 W. Wacker Drive, 9th Fl. 2555 Grand Blvd. Chicago, IL 60601 Kansas City, MO 64108 8. How do I exclude myself from the Settlement Class? If you want to exclude yourself from the Settlement Class, sometimes referred to as “opting-out,” you will not be eligible to receive any benefits as a result of this Settlement. However, you will keep the right to sue or continue to sue NNA on your own and at your own expense concerning any of the claims that will be released as part of this Settlement. To exclude yourself from the Settlement Class, you must send a letter to the Settlement Administrator providing:

a) The case name and case number of this Litigation (Nelson v. Nissan North America, Inc., M.D. Tenn., Case No. 3:17-cv-01114);

b) Your full name, current address, and phone number; c) A statement that you wish to exclude yourself from the Settlement Class; and d) Your signature.

If you wish to exclude yourself, you must submit the above information to the following address so that it is postmarked no later than INSERT DATE. Settlement Administrator INSERT ADDRESS Requests for exclusion from the Class that are not postmarked on or before INSERT DATE will not be honored. You cannot exclude yourself from the Settlement Class by telephone, email or on the Settlement Website. You cannot exclude yourself by mailing a request to any other location or after the deadline above. Your exclusion notice must be signed by you. 9. What is the difference between objecting and asking to be excluded? Objecting is telling the Court that you do not like something about the Settlement. Excluding yourself is telling the Court that you do not want to be part of the Settlement. If you exclude yourself, you have no basis to object to the Settlement because it no longer affects you.

10. What if I do nothing at all? You will remain a member of the Settlement Class. However, to have the potential for benefits under the Settlement, you will need to exercise your rights under the Settlement consistent with the process described in Part 4 above.



11. What will be decided at the Final Approval Hearing? The Court will hold a Final Approval Hearing to decide whether to approve the Settlement and any requests for fees, expenses, and Incentive Awards. The Final Approval Hearing is currently set for INSERT DATE at INSERT TIME at the United States District Court for the Middle District of Tennessee, Nashville Division, located in Courtroom 874, 801 Broadway, Nashville, TN 37203. The hearing may be moved to a different date or time without additional notice, so you should check www.INSERT.com and the Court’s docket for updates. At the Final Approval Hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. The Court will also consider the request by Class Counsel for attorneys’ fees and expenses of up to $1,780,000, and for the Class Representatives’ Incentive Awards of $10,000 each. If there are any objections, the Court will consider them at the Final Approval Hearing. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long that decision may take. You may attend the hearing, at your own expense, but you do not have to do so. You may ask the Court for permission to speak at the hearing. To do so, you must send a letter saying that you intend to appear and will seek to be heard. This “Notice of Intention to Appear” must include the following:

a) The case name and case number of this Litigation (Nelson v. Nissan North America, Inc., M.D. Tenn., Case No. 3:17-cv-01114);

b) Your full name, current address, and phone number; c) The VIN of your Nissan or Infiniti vehicle covered by the Settlement Class definition; d) A statement that this is your “Notice of Intention to Appear” at the Final Approval Hearing in

this case; e) Copies of any papers, exhibits, or other evidence or information that you will present to the

Court; f) The reasons you want to be heard; and g) Your signature.

You must send copies of you notice of intent to appear, postmarked by INSERT DATE, to: (1) United States District Court for the Middle District of Tennessee Clerk of Court Estes Kefauver Federal Building & Courthouse 801 Broadway Nashville, TN 37203 (2) Plaintiff’s Counsel (3) Defendant’s Counsel Myles McGuire William R. Sampson MCGUIRE LAW, P.C. SHOOK, HARDY & BACON, LLP 55 W. Wacker Drive, 9th Fl. 2555 Grand Blvd. Chicago, IL 60601 Kansas City, MO 64108 You cannot speak at the hearing if you exclude yourself from the Settlement.



12. Does this Notice contain the entire Settlement Agreement? No. This is only a summary of the Settlement. If the Settlement is approved and you do not exclude yourself from the Settlement Class, you will be bound by the release contained in the Settlement Agreement, and not just by the terms of this Notice. Capitalized terms in this Notice are defined in the Settlement Agreement. You can view the full Settlement Agreement online at www.INSERT.com, or call INSERT NUMBER for more information.

13. Where can I get more information? For more information, visit www.INSERT.com or call the Settlement Administrator at INSERT NUMBER, or you may contact Class Counsel as set forth in Section 5, above. NOTE: PLEASE DO NOT CALL OR WRITE THE COURT, THE COURT CLERK’S OFFICE, OR NNA’S COUNSEL. THEY WILL NOT BE ABLE TO ASSIST YOU.


EXHIBIT 5


1

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

MICHELLE NELSON, individually and ) on behalf of all others similarly situated, ) ) Plaintiff, ) No. 17-cv-1114 ) v. ) ) Hon. Eli Richardson NISSAN NORTH AMERICA, INC., ) A California corporation, ) ) Defendant. )

[PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENTAND FINAL JUDGMENT

WHEREAS, on ___________, this Court entered an Order Preliminarily Approving Class

Action Settlement Agreement, Conditionally Certifying Settlement Class, And Directing Notice

of Proposed Class Settlement, preliminarily approving the proposed Settlement pursuant to the

terms of the Settlement Agreement and directing that notice be given to the members of the

Settlement Class;

WHEREAS, pursuant to the Parties’ plan for providing notice to the Settlement Class (the

“Notice Plan”), the Settlement Class was notified of the terms of the proposed Settlement and of a

Final Approval Hearing to determine, inter alia, whether the terms and conditions of the

Settlement Agreement are fair, reasonable, and adequate for the release and dismissal of the claims

against Defendant in the Underlying Actions; and

WHEREAS, a Final Approval Hearing was held on _____________. Prior to the Final

Approval Hearing, proof of compliance with the Notice Plan was filed with the Court. Settlement


2

Class Members were therefore notified of the terms of the proposed Settlement and their right to

appear at the hearing in support of or in opposition to the proposed Settlement;

NOW, THEREFORE, the Court, having heard the oral presentations made at the Final

Approval Hearing; having reviewed all of the submissions presented with respect to the proposed

Settlement; having determined that the Settlement is fair, adequate, and reasonable; and having

reviewed the materials in connection therewith,

IT IS HEREBY ORDERED:

1. The capitalized terms in this Order and Judgment shall have the same meaning as

defined in the Settlement Agreement except as may otherwise be ordered.

2. The Court has jurisdiction over the subject matter of the Underlying Actions, all

claims raised therein, and all Parties thereto, including the members of the Settlement Class.

3. The Court finds, solely for the purposes of considering this Settlement, that the

requirements of Federal Rule of Civil Procedure 23 are satisfied, including requirements for the

existence of numerosity, commonality, typicality, adequacy of representation, manageability of

the Settlement Class for settlement purposes, that common issues of law and fact predominate over

individual issues, and that settlement and certification of the Settlement Class are superior to

alternative means of resolving the claims and disputes at issue in the Underlying Actions.

4. The Settlement Class, which will be bound by this Final Approval Order, shall

include all members of the Settlement Class who did not submit a timely and valid request for

exclusion. The members of the Settlement Class who have requested exclusion are identified in

Exhibit A hereto.

5. Plaintiffs Michelle Nelson and John Anglin shall serve as Class Representatives of

the Settlement Class.


3

6. For purposes of the Settlement and this Final Approval Order, the Settlement Class

is:

All persons in the United States and its territories including Puerto Rico who purchased any White-painted Nissan Rogue produced between January 11, 2013 and April 23, 2013, and/or any White-painted Infiniti QX56 produced between November 20, 2009 and December 12, 2012. Excluded from the Settlement Class are NNA; any entity that is a subsidiary of or is

controlled by NNA; anyone employed by Class Counsel; any judge to whom the Underlying

Actions are assigned, his or her spouse, and members of the judge’s staff.

7. The Court appoints the following counsel as Class Counsel for purposes of this

settlement:

Lead Class Counsel: Myles McGuire Evan M. Meyers David L. Gerbie MCGUIRE LAW, P.C. 55 W. Wacker Drive, 9th Fl. Chicago, IL 60601 Tel: (312) 893-7002 [email protected] [email protected] [email protected]

Plaintiffs’ Steering Committee:

Robert A. Cox Edwin E. Wallis III GLASSMAN, WYATT, TUTTLE & COX, P.C. 26 North Second Street Memphis, TN 38103 Tel: (901) 527-4673 Fax: (901) 527-5320 [email protected] [email protected]

Scott A. Morgan MORGAN LAW FIRM, LTD.


4

55 West Wacker Drive, Suite 900 Chicago, Illinois 60601 Tel: (312) 327-3386 [email protected] Tel: (312) 327-3386 John Sawin SAWIN LAW FIRM, LTD. 55 West Wacker Drive, Suite 900 Chicago, Illinois 60601 Tel: (312) 853-2490 [email protected]

The Court finds that the Plaintiffs and Class Counsel have and will fairly and adequately

represent and protect the interests of the absent members of the Settlement Class in accordance

with Federal Rule of Civil Procedure 23.

8. The Court finds that the Notice Plan set forth in Section 4 of the Settlement

Agreement and effectuated pursuant to the Preliminary Approval Order constitutes the best notice

practicable under the circumstances and shall constitute due and sufficient notice to the Settlement

Class of the pendency of the Underlying Actions, certification of the Settlement Class for

settlement purposes only, the terms of the Settlement Agreement, and the Final Approval Hearing,

and satisfies the requirements of the Federal Rules of Civil Procedure, the United States

Constitution, and any other applicable law. The Court further finds that Defendant has fully and

timely met the requirements for notice to appropriate federal and state officials under 28 U.S.C. §

1715, and that this Order is issued 90 or more days after the service of such notice.

9. The Settlement, as set forth in the Settlement Agreement and this Order is in all

respects fair, reasonable, adequate, and in the best interests of the Settlement Class, taking into

account the risks that both sides faced with respect to the merits of the claims alleged and remedies

requested, the risks of maintaining a class action, and the expense and duration of further litigation,


5

and therefore the Settlement is approved. The Parties shall effectuate the Settlement Agreement

according to its terms. The Settlement Agreement and every term and provision thereof shall be

deemed incorporated herein as if explicitly set forth and shall have the full force of an Order of

this Court.

10. Upon the Effective Date, the claims against Defendant, by operation of this Final

Approval Order, shall be fully, finally, and forever released, relinquished, and discharged pursuant

to Section 8 of the Settlement Agreement.

11. This Final Approval Order, the Settlement Agreement, the Settlement which it

reflects, and any and all acts, statements, documents or proceedings relating to the Settlement are

not, and shall not be construed as or used as an admission by or against NNA of any fault,

wrongdoing, or liability on its part, or of the validity of any claim in the Underlying Actions or of

the existence or amount of damages.

12. The claims of the Plaintiff Class Representatives and all members of the Settlement

Class in this case are hereby dismissed in their entirety with prejudice. Except as otherwise

provided in this Order and/or in this Court’s Order Awarding Attorneys’ Fees and Expenses in this

case, entered in response to Class Counsel’s motion therefor brought in connection with the

Settlement, the parties shall bear their own costs and attorneys’ fees. The Court reserves

jurisdiction over the implementation of the Settlement, including enforcement and administration

of the Settlement Agreement, including any releases in connection therewith and any other matters

related or ancillary to the foregoing.

13. Having reviewed the unopposed Motion for Fee Award, the Court approves

payment of attorneys’ fees, costs and expenses to Class Counsel in the amount of $1,780,000. This

amount shall be paid by Defendant in accordance with the terms of the Settlement Agreement. The


6

Court, having considered the materials submitted by Class Counsel in support of their Motion for

Final Approval and Motion for Fee Award, and the fact that no objections have been filed to the

attorneys’ fees, costs and expenses sought by Class Counsel, finds the award of attorneys’ fees,

costs and expenses appropriate and reasonable for the following reasons: first, the Court finds that

the Settlement provides substantial and extraordinary benefits to the Settlement Class. Second, the

Court finds the payment fair and reasonable in light of the substantial work performed by Class

Counsel. Third, the Court concludes that the Settlement was negotiated at arms-length without

collusion, and that the negotiation of attorneys’ fees only followed agreement on the settlement

benefit for the Settlement Class Members. Finally, the Court notes that the Class Notice

specifically and clearly advised the Settlement Class that Class Counsel would seek an award up

to the amount sought.

14. The Court approves an incentive award of $10,000 for each of the Class

Representatives and specifically finds such amounts to be reasonable in light of the services

performed by the Class Representatives for the Settlement Class, including taking on the risks of

litigation and helping achieve the benefits being made available to the Settlement Class. These

amounts shall be paid by Defendant in accordance with the terms of the Settlement Agreement.

15. The Court finds that no reason exists for delay in entering this Final Approval

Order. Accordingly, the Clerk is hereby directed forthwith to enter this Final Approval Order.

16. The Parties, without further approval from the Court, are hereby permitted to agree

to and adopt such amendments, modifications and expansions of the Settlement Agreement and its

implementing documents (including all exhibits to the Settlement Agreement) so long as they are

consistent in all material respects with the Final Approval Order and do not limit the rights of the

Settlement Class Members.


7

17. Without affecting the finality of this Final Approval Order for purposes of appeal,

the Court retains jurisdiction as to all matters related to the administration, consummation,

enforcement, and interpretation of the Settlement Agreement and this Final Approval Order, and

for any other necessary purpose.

IT IS SO ORDERED.

Dated:

_____________________________ Hon. Eli Richardson U.S. District Court Judge


EXHIBIT 6


MAIL DATE

VIA PRIORITY MAIL

«First» «Last»

«Company»

«Address_1»

«Address_2»

«City», «State» «Zip»

Re: Notice of Proposed Class Action Settlement Pursuant to 28 U.S.C. § 1715

Dear «First» «Last»:

SHOOK HARDY & BACON, LLP represents Nissan North America, Inc. (“Defendant”)

in a putative class action lawsuit entitled Michelle Nelson v. Nissan North America, Inc., Case

No. 3:17-cv-01114 (“Nelson Action”). This lawsuit is pending before the Honorable Eli

Richardson in the United States District Court for the Middle District of Tennessee, Nashville

Division. This letter is to advise you that Plaintiff filed a Motion for Preliminary Approval of

Class Action Settlement in conjunction with this class action lawsuit on INSERT DATE OF

FILING. There is an additional class action lawsuit entitled John Anglin v. Nissan North

America, Inc., Case No. 1:17-cv-04240 (“Anglin Action”) pending before the Honorable Elaine

E. Bucklo in the United States District Court for the Northern District of Illinois, Eastern

Division, that will also be resolved by the settlement.

Case Name: Michelle Nelson v. Nissan North America, Inc.

Case Number: 3:17-cv-01114

Jurisdiction: United States District Court,

Middle District of Tennessee, Nashville Division

Date Settlement

Filed with Court: INSERT DATE OF FILING

Defendant denies any wrongdoing or liability whatsoever, but has decided to settle this

action solely in order to eliminate the burden, expense, and uncertainties of further litigation. In

compliance with 28 U.S.C. § 1715(b), the following documents referenced below are included

on the CD-ROM that is enclosed with this letter:


«First» «Last»

INSERT MAIL DATE

Page 2

1. 28 U.S.C. § 1715(b)(1) – Complaint and Related Materials: A copy of the

First Amended Class Action Complaint in the Nelson Action and the Second

Amended Class Action Complaint in the Anglin Action1 are included on the

enclosed CD-ROM.

2. 28 U.S.C. § 1715(b)(2) – Notice of any Scheduled Judicial Hearing: As of the

date of this mailing, the Court has not yet scheduled a final fairness hearing in this

matter. A copy of the [Proposed] Order Preliminarily Approving Class Action

Settlement Agreement, Conditionally Certifying Settlement Class, and Directing

Notice of Proposed Class Settlement is included on the enclosed CD-ROM.

3. 28 U.S.C. § 1715(b)(3) – Notification to Class Members: A copy of the

Summary Settlement Notice, Long Form Notice and Short Form Notice to be

provided to the class members is included on the enclosed CD-ROM.

4. 28 U.S.C. § 1715(b)(4) – Class Action Settlement Agreement: A copy of the

Settlement Agreement and Release is included on the enclosed CD-ROM.

5. 28 U.S.C. § 1715(b)(5) – Any Settlement or Other Agreement: As of the date

of this mailing, no other settlements or agreements have been entered into by the

parties to the Nelson Action or Anglin Action.

6. 28 U.S.C. § 1715(b)(6) – Final Judgment: No final judgment has been reached

as of the date of this mailing, nor have any notices of dismissal been granted at

this time.

7. 28 U.S.C. § 1715(b)(7)(A)-(B) – Names of Class Members/Estimate of Class

Members: While Defendant is gathering information on this issue pursuant to 28

U.S.C. § 1715(b)(7)(A), at this time a complete list of class members’ names and

State of residence is not available, because the parties will not learn this

information until the Settlement is preliminarily approved and the Court

authorizes Class Notice.

8. 28 U.S.C. § 1715(b)(8) – Judicial Opinions Related to the Settlement: As of

the date of the mailing of this CAFA Notice, the settlement is pending final approval

by the Court. Furthermore, there have been no other written judicial opinions

related to the settlement. A copy of the [Proposed] Order Granting Final

1 All documents included on the enclosed CD-ROM were filed in the “Nelson Action,” unless otherwise stated.


«First» «Last»

INSERT MAIL DATE

Page 3

Approval of Class Action Settlement and Final Judgment is included on the

enclosed CD-ROM.

If for any reason you believe the enclosed information does not fully comply with 28

U.S.C. § 1715, please contact William Sampson, Esq. of SHOOK HARDY & BACON L.L.P. at

816-559-2482 immediately so that Defendant can address any concerns or questions you may

have. Thank you.

Sincerely,

/s/

Patrick Passarella

KCC CLASS ACTION SERVICES

Enclosure – CD-ROM


exhibit a › media › 2345291 › 04.01... · , the parties estimate that the average...

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