2:09-md-02042-SFC Doc # 460 Filed 01/09/14 Pg 1 of 6 Pg ID 11402
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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` ORDER GRANTING PRELIMINARY APPROVAL OF PROPOSED CLASS ACTION
`SETTLEMENT BETWEEN DIRECT PURCHASER CLASS PLAINTIFFS AND THE
`TECUMSEH, EMBRACO, DANFOSS AND PANASONIC DEFENDANTS,
`AUTHORIZING THE DISSEMINATION OF NOTICE AND CLAIM FORM AND
`SCHEDULING A FINAL APPROVAL HEARING
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`Direct Purchaser Plaintiffs having filed and served a Motion for Preliminary Approval of
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`Proposed Class Action Settlements Between Direct Purchaser Class Plaintiffs and Tecumseh
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`Products Company, Tecumseh Compressor Company, Tecumseh do Brasil, Ltda. and their
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`subsidiaries and affiliates (collectively, “Tecumseh Defendants”), Embraco North America Inc.
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`and Whirlpool S.A and their subsidiaries and affiliates (collectively, “Embraco Defendants”),
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`Danfoss Flensburg GmbH, formerly Danfoss Compressors GmbH (“Danfoss Flensburg”) and
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`Panasonic Corporation, Panasonic Corporation of North America and their subsidiaries and
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`affiliates (collectively, “Panasonic Defendants”), those Defendants concurring in the relief
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`sought therein, and the Court being otherwise fully advised in the premises, it is hereby
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`ORDERED:
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`1.
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`2.
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`The Motion is GRANTED.
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`The Court finds that the proposed settlements with the Tecumseh Defendants, as
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`set forth in the Tecumseh Settlement Agreement, Exhibit A to the Declaration of David H. Fink
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`sworn to December 26, 2013 (Fink Decl.), with the Embraco Defendants as set forth in the
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`MDL No. 2:09-md-02042
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`HONORABLE SEAN F. COX
`UNITED STATES DISTRICT JUDGE
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`IN RE: REFRIGERANT COMPRESSORS
`ANTITRUST LITIGATION
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`This Document Relates to
`ALL DIRECT PURCHASER ACTIONS
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`2:09-md-02042-SFC Doc # 460 Filed 01/09/14 Pg 2 of 6 Pg ID 11403
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`Embraco Settlement Agreement, Exhibit B to the Fink Decl., with Danfoss Flensburg, as set
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`forth in the Danfoss Settlement Agreement, Exhibit C to the Fink Decl., and with the Panasonic
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`Defendants, as set forth in the Panasonic Settlement Agreement, Exhibit D to the Fink Decl.,
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`subject to final determination following a hearing after notice to the Settlement Class (defined in
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`Paragraph 4 below), are sufficiently fair, reasonable, and adequate to authorize dissemination of
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`notice and a claim form to the Settlement Class as defined in paragraph 4 below.
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`3.
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`For purpose of the settlements: the Settlement Class satisfies the requirements of
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`Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure with respect to numerosity,
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`common questions, typicality, adequacy and predominance.
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`4.
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`Pursuant to Rule 23 of the Federal Rules of Civil Procedure the Settlement Class
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`is defined as:
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`All persons or entities (but excluding government entities and Defendants, their
`officers, directors and employees, as well as Defendants’ parents, predecessors,
`successors, subsidiaries, or affiliates) who purchased Compressors in the United
`States, its territories and possessions, directly from any Defendant including
`Settling Defendants, or from any of their parents, predecessors, successors,
`subsidiaries, or affiliates, at any time during the period from and including
`February 25, 2005 up to and including December 31, 2008. Compressors include
`compressors of less than one horsepower, excluding compressors used in air
`conditioners.
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`5.
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`The Court’s certification of the Settlement Class as provided herein is without
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`prejudice to, or waiver of: (i) the rights of any non-settling Defendant to contest certification of
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`any class proposed in these consolidated actions; or (ii) the rights or arguments asserted by any
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`Defendant in defending against these claims. The Court’s findings in this Order shall have no
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`effect on the Court’s ruling on any motion to certify any class in these actions and no party may
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`cite or refer to the Court’s approval of the Settlement Class as persuasive or binding authority
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`with respect to any motion to certify any such class or with respect to any defense asserted by
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`any Defendant.
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`6.
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`David H. Fink, Fink + Associates Law and The Miller Law Firm, P.C. are
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`adequate and are appointed as Class Counsel for the Settlement Class.
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`7.
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`The Court approves the form and contents of: (a) Notice of Proposed Settlement
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`of Class Action with the Settling Defendants and Hearing on Settlement Approval (“Notice”),
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`attached as Exhibit 3 to Direct Purchaser Class Plaintiffs’ Motion for Preliminary Approval of
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`Proposed Class Action Settlements between Direct Purchaser Class Plaintiffs and the Tecumseh
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`Defendants, Embraco Defendants, Danfoss Flensburg and Panasonic Defendants (“Motion for
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`Preliminary Approval”); (b) the claim form attached as Exhibit 4 to the Motion for Preliminary
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`Approval; and (c) Summary Notice of Proposed Settlement of Class Action with the Settling
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`Defendants and Hearing on Settlement Approval (“Summary Notice”), attached as Exhibit 5 to
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`the Motion for Preliminary Approval.
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`8.
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`The Court finds that the mailing and publication of the notices in the manner set
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`forth herein constitute the best notice practicable under the circumstances, is due and sufficient
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`notice to all persons entitled thereto, and complies fully with the requirements of Federal Rule of
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`Civil Procedure 23 and the due process requirements of the Constitution of the United States.
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`9.
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`The Notice in substantially the form attached as Exhibit 3 to the Motion for
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`Preliminary Approval and the claim form attached hereto as Exhibit 4 to the Motion for
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`Preliminary Approval shall be mailed by first class mail, postage prepaid, on or before February
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`7, 2014, to all persons identified on Defendants’ customer lists as having purchased Compressors
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`from Defendants in the United States during the Settlement Class Period (“Notice Date”). The
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`Notice and claim form shall further be provided to all persons who request them in response to
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`the published Summary Notice provided for in Paragraph 10 herein.
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`10.
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`Class Counsel are hereby directed to cause a Summary Notice, in substantially the
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`form attached hereto as Exhibit 5 to the Motion for Preliminary Approval, to be published, on or
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`before February 17, 2014, on one occasion in the national edition of the Wall Street Journal.
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`Class Counsel shall also cause such a Summary Notice to be published on one occasion in
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`advertisements
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`in
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`the Air Conditioning, Heating and Refrigeration News and on
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`ApplianceMagazine.com.
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`11.
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`On or before January 20, 2014, all Non-Settling Defendants shall provide to Class
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`Counsel, in an electronic format, and if not reasonably available in electronic format then in hard
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`copy format, the names and addresses of their customers who directly purchased Compressors
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`from the Defendants during the Settlement Class Period. If the Non-Settling Defendants do not
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`produce their customer lists to Class Counsel on or before January 20, 2014, Class Counsel will
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`not be required to mail notices to the customers of Non-Settling Defendants, but all remaining
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`notice requirements in this Order will remain in effect.
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`12.
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`On or before March 24, 2014, putative settlement class members shall serve any
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`requests for exclusion from one or more of the settlements as set forth in the Notice.
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`13.
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`The Court will hold a hearing (the “Final Approval Hearing” or “Hearing”) on
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`June 12, 2014 at 2:00 p.m., at the United States District Court for the Eastern District of
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`Michigan, Theodore Levin U.S. Courthouse, 231 W. Lafayette Blvd., Room 257, Detroit, MI
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`48226, to determine the fairness, reasonableness, and adequacy of the proposed settlement and
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`whether the settlement should be approved by the Court and a final judgment entered thereon.
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`Any member of the Settlement Class who follows the procedure set forth in the notices may
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`appear and be heard at the Hearing. The Hearing may be continued without further notice.
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`14.
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`Class Counsel shall file with the Court and serve on the parties their motion for
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`final approval and other supporting papers on or before May 13. 2014.
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`15.
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`Any member of the Class who objects to the settlement with the Settling
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`Defendants must do so in writing. The objection must include the caption of this case, be signed
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`and received by the Court and Class Counsel on or before May 23, 2014, and shall otherwise
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`comply with the requirements set forth in the notices.
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`16.
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`Settlement Class members who wish to participate in one or more of the
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`settlements shall submit claim forms as set forth in the Notice on or before June 9, 2014.
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`17.
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`Class Counsel shall cause to be filed with the Clerk of this Court, and served upon
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`counsel for the Settling Defendants, affidavits or declarations of the person under whose general
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`direction the mailing of the Notice and the publication of Summary Notice were made, showing
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`that mailing and publication were made in accordance with this Order ten (10) days prior to the
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`Final Approval Hearing.
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`18.
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`The Court approves the escrow accounts, as set forth in the Settlement
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`Agreements, as “Qualified Settlement Funds” pursuant to Treas. Reg. §1.468B-1. The Court
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`retains continuing jurisdiction over any issues regarding the administration of the escrow
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`accounts. Class Counsel and their designees are authorized to expend funds from the escrow
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`account to pay taxes, tax expenses and notice costs, as set forth in the Settlement Agreements.
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`19.
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`The Garden City Group, Inc. is approved to serve as Claims Administrator.
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`20. All proceedings against the Settling Defendants, and their corporate parents,
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`subsidiaries and affiliates, in these Actions are stayed until the Court renders a final decision
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`regarding the approval of the Settlement Agreements and, if it approves the Settlement
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`Agreements, enters a final judgment.
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`21.
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`Terms used in this Order that are defined in the various Settlement Agreements
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`are, unless otherwise defined herein, to be interpreted as to each separate Settling Defendant as
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`defined in each Settling Defendant’s respective Settlement Agreement.
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`IT IS SO ORDERED.
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`Dated: January 9, 2014
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`s/ Sean F. Cox
`Sean F. Cox
`U. S. District Judge
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` hereby certify that the above document was served on counsel and/or the parties of record by
`electronic means.
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`Dated: January 9, 2014
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`s/ Jennifer McCoy
`Case Manager
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