Case 2:12-md-02311-MOB-MKM ECF No. 2032 filed 12/20/19 PageID.37505 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT MICHIGAN
`SOUTHERN DIVISION
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`IN RE: AUTOMOTIVE PARTS ANTITRUST LITIGATION
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`
`In Re: Heater Control Panels
`In Re: Occupant Safety Systems
`In Re: Switches
`In Re: Ignition Coils
`In Re: Steering Angle Sensors
`In Re: Electric Powered Steering Assemblies
`In Re: Fuel Injection Systems
`In Re: Valve Timing Control Devices
`In Re: Air Conditioning Systems
`In Re: Automotive Constant Velocity Joint Boot Products
`In Re: Automotive Hoses
`In Re: Shock Absorbers
`In Re: Body Sealing Products
`In Re: Interior Trim Products
`In Re: Automotive Brake Hoses
`In Re: Exhaust Systems
`In Re: Ceramic Substrates
`In Re: Power Window Switches
`In Re: Automotive Steel Tubes
`In Re: Side-Door Latches
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`THIS DOCUMENT RELATES TO:
`End-Payor Actions
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`No. 12-md-02311
`Hon. Marianne O. Battani
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`Case No. 2:12-cv-00403
`Case No. 2:12-cv-00603
`Case No. 2:13-cv-01303
`Case No. 2:13-cv-01403
`Case No. 2:13-cv-01603
`Case No. 2:13-cv-01903
`Case No. 2:13-cv-02203
`Case No. 2:13-cv-02503
`Case No. 2:13-cv-02703
`Case No. 2:14-cv-02903
`Case No. 2:15-cv-03203
`Case No. 2:15-cv-03303
`Case No. 2:16-cv-03403
`Case No. 2:16-cv-03503
`Case No. 2:16-cv-03603
`Case No. 2:16-cv-03703
`Case No. 2:16-cv-03803
`Case No. 2:16-cv-03903
`Case No. 2:16-cv-04003
`Case No. 2:17-cv-04303
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`ORDER GRANTING END-PAYOR PLAINTIFFS’ UNOPPOSED MOTION FOR AN
`ORDER APPROVING THE PROPOSED FURTHER REVISED PLAN OF
`ALLOCATION AND FOR AUTHORIZATION TO DISSEMINATE SUPPLEMENTAL
`NOTICE TO THE SETTLEMENT CLASSES
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`Case 2:12-md-02311-MOB-MKM ECF No. 2032 filed 12/20/19 PageID.37506 Page 2 of 7
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`The above matter is duly before the Court on the unopposed motion of End-Payor Plaintiffs
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`(“EPPs”) for approval of the proposed revised Plan of Allocation and for authorization to
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`disseminate supplemental notice to the Settlement Classes.
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`The Court has reviewed the memorandum submitted by EPPs in support of their motion
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`and has also reviewed the various declarations and submissions relating to that motion. The Court
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`has also considered the July 2019 Notice Program and notice given to the Settlement Classes in
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`accordance with the Court’s orders, and the proposed Supplemental Notice.
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`Based on the entire record of these proceedings, and good cause appearing therefor,
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`IT IS HEREBY ORDERED as follows:
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`1.
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`The notice provided to the Settlement Classes advised the Settlement Classes of the
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`motion and of the date, time, and place of the hearing to consider the motion for approval of the
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`Plan of Allocation.1 The notice further advised that any objections to the Plan of Allocation were
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`required to be received by the Court and the Claims Administrator by November 19, 2019. Given
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`that there are no pending objections to the Plan of Allocation and that the proposed Plan of
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`Allocation, as revised, is fair, reasonable and adequate, the Court hereby approves the revised Plan
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`of Allocation and gives EPPs authorization to disseminate supplemental notice to the settlement
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`classes for the reasons stated below.
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`2.
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`Pursuant to and in compliance with Rule 23 of the Federal Rule of Civil Procedure,
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`and the requirements of constitutional due process, the Court finds that due and adequate notice
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`was directed to the Settlement Classes of the proposed Plan of Allocation and of the right of
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`1 The hearing was originally scheduled for December 10, 2019, but was continued to March 18,
`2020. The website and notice forms have been updated to reflect this change.
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`2
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`Case 2:12-md-02311-MOB-MKM ECF No. 2032 filed 12/20/19 PageID.37507 Page 3 of 7
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`Settlement Class members to be heard or object thereto, and a full and fair opportunity was
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`accorded to Settlement Class members to be heard with respect to the Plan of Allocation.
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`3.
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`Under Rule 23, “[a]pproval of a plan of allocation of a settlement fund in a class
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`action is governed by the same standards of review applicable to approval of the settlement as a
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`whole; the distribution plan must be fair, reasonable and adequate.” In re Packaged Ice Antitrust
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`Litig., No. 08-MD-01952, 2011 WL 6209188, at *15-16 (E.D. Mich. Dec. 13, 2011) (quoting
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`Meijer, Inc. v. 3M, Civ. No. 04-5871, 2006 WL 2382718, at*17 (E.D. Pa. 2006)); In re Ikon Office
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`Solutions Sec. Litig., 194 F.R.D. 166, 184 (E.D. Pa. 2000)). The purpose of a plan of allocation is
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`to create a method that will permit the equitable distribution of settlement proceeds to all eligible
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`members of the class.
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`4.
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`Accordingly, as courts have observed, “[a] district court’s ‘principal obligation’ in
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`approving a plan of allocation ‘is simply to ensure that the fund distribution is fair and reasonable
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`as to all participants in the fund.’” Sullivan v. DB Investments, Inc., 667 F.3d 273, 326 (3d Cir.
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`2011) (quoting Walsh v. Great Atl. & Pac. Tea Co., Inc., 726 F.2d 956, 964 (3d Cir. 1983)).
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`5.
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`“Typically, a class recovery in antitrust or securities suits will divide the common
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`fund on a pro rata basis among all who timely file eligible claims, thus leaving no unclaimed
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`funds.” In re Packaged Ice Antitrust Litig., at *12 (quoting 3 Newberg on Class Actions, § 8:45
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`(4th ed. 2011)); see also In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 531 (E.D. Mich.
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`2003) (approving a plan of allocation that adopted a pro rata method for calculating each class
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`member’s share of the settlement fund as fair and reasonable). As a result, courts in this district
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`have previously held that using a pro rata formula for calculating each class member’s share of a
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`settlement fund is fair and reasonable.
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`3
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`6.
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`Courts have also determined that a Plan of Allocation providing for a minimum
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`payment, to incentivize claims distribution and avoid de minimis settlement payments, can be fair
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`and reasonable. See, e.g., Downes v. Wis. Energy Corp. Ret. Account Plan, No. 09-C-0637, 2012
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`WL 1410023, at *3 (E.D. Wis. Apr. 20, 2012) ($250 minimum); In re Initial Pub. Offering Sec.
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`Litig., 671 F. Supp. 2d 467, 498 (S.D.N.Y. 2009) ($10 minimum); In re Ins. Brokerage Antitrust
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`Litig., 297 F.R.D. 136, 143 (D.N.J. 2013) ($10 minimum); Mehling v. N.Y. Life Ins. Co., 248
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`F.R.D. 455, 463-64 (E.D. Pa. 2008) ($50 minimum); Slipchenko v. Brunel Energy, Inc., No.
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`CIV.A. H-11-1465, 2015 WL 338358, at *21 (S.D. Tex. Jan. 23, 2015) ($100 minimum).
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`7.
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`Here, EPPs propose allocating the net settlement funds on a modified pro rata basis,
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`subject to the adjusted weighting of certain purchases or leases, based on the purchases or leases
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`of new vehicles not for resale which contain automotive parts manufactured or sold by a defendant
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`and purchases of replacement automotive parts which contain parts manufactured or sold by a
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`defendant. Under the Plan of Allocation, certain purchases or leases would be weighted more
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`heavily based on the evaluation by EPP’s Co-Lead Counsel of the vehicles that were specifically
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`targeted by the collusive conduct of defendants. Such weightings are appropriate in class action
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`cases. See, e.g., In re Airline Ticket Comm’n Antitrust Litig., 953 F. Supp. 280, 285 (D. Minn.
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`1997). This pro rata allocation would be modified by initially distributing $100 to all eligible class
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`members and then distributing the remaining funds to all class members whose weighted pro rata
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`allocation exceeds $100 (subject to their being sufficient funds for each class member claimant to
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`receive at least $100). If the net settlement funds are insufficient to allow a minimum payment of
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`$100 to each eligible class member claimant, the amount to be paid to all claimants shall be
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`adjusted so that claimants share in the net settlement funds on a pro rata basis based on the amounts
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`of their respective net allowed claim amounts.
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`4
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`8.
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`Additionally, the Court determines that inclusion of the place of purchase or lease
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`as an alternative criterion of eligible transactions is consistent with the law followed in some
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`jurisdictions that would allow a claimant, at his or her option, to invoke state antitrust laws
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`favorable to the claimant based on the laws of the state in which the injury was sustained. See In
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`re Relafen Antitrust Litig., 221 F.R.D. 260, 276–77 (D. Mass. 2004). Courts overseeing antitrust
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`actions have applied choice of law principles to conclude that the place of injury is the place of
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`purchase, which may or may not be the purchaser’s home state. See, e.g., In re Flonase Antitrust
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`Litig., 815 F.Supp.2d 867 (E.D. Pa. 2011) (holding that the law of the “purchase state” should be
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`applied); In re Wellbutrin XL Antitrust. Litig., No. 08–2433, 2011 WL 3563835, at *6-7 (E.D. Pa.
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`Aug. 15, 2011) (“The statutory language of the laws at issue here contain no prohibitions that
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`would indicate that a state has a policy of only covering transactions that involve in-state citizens,
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`rather than in-state transactions.”); Sheet Metal Workers Local 441 Health & Welfare Plan v.
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`GlaxoSmithKline, PLC, 737 F.Supp.2d 380, 390–93 (E.D. Pa. 2010); In re Suboxone
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`(Buprenorphine Hydrochloride and Naloxone) Antitrust Litig., 64 F.Supp.3d 665 (E.D. Pa. Dec.
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`3, 2014) (purchaser could sue under either the law of the home state or of the purchase state). This
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`is consistent with the general rule that choice of law principles take into account the facts and
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`circumstances of a particular case. Under those principles, a resident of a state that does not provide
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`a damages remedy to indirect purchasers who made purchases in a “non-repealer” or “non-
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`damages” state may properly invoke the more favorable antitrust laws of the state where the
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`defendant resides or engaged in conduct that violated the laws of the state where the conduct took
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`place. In appropriate circumstances, based on applicable choice-of-law rules, the laws of a single
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`“repealer” state may also be applied on a nationwide basis to all purchasers, regardless of where
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`they reside or where they made their purchases. These cases, however, involve multiple
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`5
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`Case 2:12-md-02311-MOB-MKM ECF No. 2032 filed 12/20/19 PageID.37510 Page 6 of 7
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`conspiracies with domestic and foreign defendants who participated in price-fixing and bid-rigging
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`conduct in various countries around the world.
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`9.
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`It is well-settled that “a Plan of Allocation need not be, and cannot be, perfect.” In
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`re Cendant Corp. Sec. Litig., 109 F. Supp. 2d 235, 272 (D.N.J. 2000), aff’d, 264 F.3d 201 (3d Cir.
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`2001), cert. denied, 535 U.S. 929 (2002); see also Meredith Corp. v. SESAC, LLC, 87 F. Supp. 3d
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`650, 667 (S.D.N.Y. 2015) (“As many courts have held, a plan of allocation need not be perfect.
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`Instead, “[a]n allocation formula need only have a reasonable, rational basis, particularly if
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`recommended by experienced and competent class counsel.” (internal quotations omitted)).
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`Although the satisfaction of everyone is generally unobtainable, In re Warfarin Sodium Antitrust
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`Litigation, 212 F.R.D. 231, 258 (E.D. Del. 2002), aff’d, 391 F.3d 516, 534 (3d Cir. 2004), a plan
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`of allocation should strive to obtain a delicate balance between precision and administrative
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`convenience, see, e.g., Sullivan v. DB Investments, Inc., 667 F.3d 273, 326 (3d Cir. 2011).
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`10.
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`Here, EPPs propose to revise the Plan of Allocation to allow Settlement Class
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`members who purchased or leased a new qualifying vehicle or purchased a replacement
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`automotive part in a damages state to be entitled to share in the Net Settlement Funds. The Court
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`finds that this is appropriate and consistent with the above-referenced case law. Pursuant to the
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`Plans of Allocation approved in connection with the Rounds 1, 2, and 3 settlements and the
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`preliminarily approved Plan of Allocation submitted in connection with the motion for approval
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`of the Round 4 settlements, individuals would be entitled to share in the Net Settlement Funds only
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`if they resided in, and businesses would be entitled to share in the Net Settlement Funds only if
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`their principal place of business was located in, a damages state at the time of such purchase or
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`lease. Under the further revised Plan of Allocation, Settlement Class members would be able to
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`seek to share in the monetary recovery provided by a settlement based on the place of purchase or
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`Case 2:12-md-02311-MOB-MKM ECF No. 2032 filed 12/20/19 PageID.37511 Page 7 of 7
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`lease in addition to their state of residence or principal place of business at the time of such
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`purchase or lease.
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`11.
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`EPPs also propose to further revise the Plan of Allocation by requiring potential
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`Settlement Class members who file claims based on their place of purchase or lease to provide
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`satisfactory evidence demonstrating that the purchase or lease took place in a damages state. The
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`Court finds this requirement to be appropriate given the broadened eligibility.
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`12.
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`Finally, EPPs propose extending the deadline for the submission of Claim Forms
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`from December 31, 2019 to March 16, 2020. This would provide additional time for the notice and
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`claims administrators to disseminate the Supplemental Notice to the Settlement Classes. The Court
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`finds that this is appropriate and provides sufficient time for Settlement Class members to submit
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`claims to share in the Net Settlement Funds.
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`13.
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`The Court hereby finds and concludes that the revised Plan of Allocation provides
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`a fair and reasonable basis upon which to allocate the proceeds of the Net Settlement Funds among
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`members of the respective Settlement Classes with due regard having been given to considerations
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`of administrative convenience.
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`14.
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`The Court now hereby approves the further revised Plan of Allocation and
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`authorizes EPPs to disseminate the Supplemental Notice to the Settlement Classes. EPP Co-Lead
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`Counsel are hereby authorized to carry out all steps, including dissemination of the Supplemental
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`Notice, as necessary to effectuate the revised Plan of Allocation.
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`IT IS SO ORDERED.
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`s/PAUL D. BORMAN for
`MARIANNE O. BATTANI
`United States District Judge
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`7
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