Case 2:12-md-02311-SFC-RSW ECF No. 2192-2, PageID.39760 Filed 03/17/22 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`__________________________________________________________________
`IN RE: AUTOMOTIVE PARTS
`
`
`
`
`No. 12-md-02311
`ANTITRUST LITIGATION
`
`
`
`
`
`Hon. Sean F. Cox
`__________________________________________________________________
`
` CASE NO. 2:12-CV-00103
`
`
`
`IN RE : WIRE HARNESS
` CASE NO. 2:12-CV-00203
`IN RE : INSTRUMENT PANEL CLUSTERS
` CASE NO. 2:12-CV-00303
`IN RE : FUEL SENDERS
`
`
`
` CASE NO. 2:12-CV-00403
`IN RE : HEATER CONTROL PANELS
`
` CASE NO. 2:12-CV-00503
`IN RE : BEARINGS
`
`
`
`
` CASE NO. 2:12-CV-00603
`IN RE : OCCUPANT SAFETY SYSTEMS
` CASE NO. 2:13-CV-00703
`IN RE : ALTERNATORS
`
`
`
`IN RE : ANTI-VIBRATIONAL RUBBER PARTS CASE NO. 2:13-CV-00803
`IN RE : WINDSHIELD WIPERS
`
`
` CASE NO. 2:13-CV-00903
`IN RE : RADIATORS
`
`
`
`
` CASE NO. 2:13-CV-01003
`IN RE : STARTERS
`
`
`
`
` CASE NO. 2:13-CV-01103
`IN RE : AUTOMOTIVE LAMPS
`
`
` CASE NO. 2:13-CV-01203
`IN RE : SWITCHES
`
`
`
`
` CASE NO. 2:13-CV-01303
`IN RE : IGNITION COILS
`
`
`
` CASE NO. 2:13-CV-01403
`IN RE : MOTOR GENERATOR
`
`
` CASE NO. 2:13-CV-01503
`IN RE : STEERING ANGLE SENSORS
`
` CASE NO. 2:13-CV-01603
`IN RE : HID BALLASTS
`
`
`
` CASE NO. 2:13-CV-01703
`IN RE : INVERTERS
`
`
`
`
` CASE NO. 2:13-CV-01803
`IN RE : ELECTRONIC POWERED
`
` CASE NO. 2:13-CV-01903
`STEERING ASSEMBLIES
`
`
`
`IN RE : AIR FLOW METERS
`
`
`IN RE : FAN MOTORS
`
`
`IN RE : FUEL INJECTION SYSTEMS
`
`IN RE : POWER WINDOW MOTORS
`IN RE : AUTOMATIC TRANSMISSION
`FLUID WARMERS
`
`
` CASE NO. 2:13-CV-02003
` CASE NO. 2:13-CV-02103
` CASE NO. 2:13-CV-02203
` CASE NO. 2:13-CV-02303
` CASE NO. 2:13-CV-02403
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`__________________________________________________________________
`IN RE: AUTOMOTIVE PARTS
`
`
`
`
`No. 12-md-02311
`ANTITRUST LITIGATION
`
`
`
`
`
`Hon. Sean F. Cox
`__________________________________________________________________
`
` CASE NO. 2:12-CV-00103
`
`
`
`IN RE : WIRE HARNESS
` CASE NO. 2:12-CV-00203
`IN RE : INSTRUMENT PANEL CLUSTERS
` CASE NO. 2:12-CV-00303
`IN RE : FUEL SENDERS
`
`
`
` CASE NO. 2:12-CV-00403
`IN RE : HEATER CONTROL PANELS
`
` CASE NO. 2:12-CV-00503
`IN RE : BEARINGS
`
`
`
`
` CASE NO. 2:12-CV-00603
`IN RE : OCCUPANT SAFETY SYSTEMS
` CASE NO. 2:13-CV-00703
`IN RE : ALTERNATORS
`
`
`
`IN RE : ANTI-VIBRATIONAL RUBBER PARTS CASE NO. 2:13-CV-00803
`IN RE : WINDSHIELD WIPERS
`
`
` CASE NO. 2:13-CV-00903
`IN RE : RADIATORS
`
`
`
`
` CASE NO. 2:13-CV-01003
`IN RE : STARTERS
`
`
`
`
` CASE NO. 2:13-CV-01103
`IN RE : AUTOMOTIVE LAMPS
`
`
` CASE NO. 2:13-CV-01203
`IN RE : SWITCHES
`
`
`
`
` CASE NO. 2:13-CV-01303
`IN RE : IGNITION COILS
`
`
`
` CASE NO. 2:13-CV-01403
`IN RE : MOTOR GENERATOR
`
`
` CASE NO. 2:13-CV-01503
`IN RE : STEERING ANGLE SENSORS
`
` CASE NO. 2:13-CV-01603
`IN RE : HID BALLASTS
`
`
`
` CASE NO. 2:13-CV-01703
`IN RE : INVERTERS
`
`
`
`
` CASE NO. 2:13-CV-01803
`IN RE : ELECTRONIC POWERED
`
` CASE NO. 2:13-CV-01903
`STEERING ASSEMBLIES
`
`
`
`IN RE : AIR FLOW METERS
`
`
`IN RE : FAN MOTORS
`
`
`IN RE : FUEL INJECTION SYSTEMS
`
`IN RE : POWER WINDOW MOTORS
`IN RE : AUTOMATIC TRANSMISSION
`FLUID WARMERS
`
`
` CASE NO. 2:13-CV-02003
` CASE NO. 2:13-CV-02103
` CASE NO. 2:13-CV-02203
` CASE NO. 2:13-CV-02303
` CASE NO. 2:13-CV-02403
`
`
`
`Case 2:12-md-02311-SFC-RSW ECF No. 2192-2, PageID.39761 Filed 03/17/22 Page 2 of 8
`
`IN RE : VALVE TIMING CONTROL DEVICES CASE NO. 2:13-CV-02503
`IN RE : ELECTRONIC THROTTLE BODIES
` CASE NO. 2:13-CV-02603
`IN RE : AIR CONDITIONING SYSTEM
`
` CASE NO. 2:13-CV-02703
`IN RE : WINDSHIELD WASHER
`
`
` CASE NO. 2:13-CV-02803
`IN RE : AUTOMOTIVE CONSTANT
`
` CASE NO. 2:14-CV-02903
`VELOCITY
`
` JOINT BOOT PRODUCTS
` CASE NO. 2:15-CV-03003
`
`
`IN RE : SPARK PLUGS
`
` CASE NO. 2:15-CV-03203
`
`
`IN RE : AUTOMOTIVE HOSES
` CASE NO. 2:15-CV-03303
`
`
`IN RE : SHOCK ABSORBERS
` CASE NO. 2:16-CV-03403
`
`IN RE : BODY SEALING PRODUCTS
` CASE NO. 2:16-CV-03503
`
`IN RE : INTERIOR TRIM PRODUCTS
` CASE NO. 2:16-CV-03603
`
`IN RE : BRAKE HOSES
`
`
` CASE NO. 2:16-CV-03703
`
`IN RE : EXHAUST SYSTEMS
`
` CASE NO. 2:16-CV-03803
`
`IN RE : CERAMIC SUBSTRATES
` CASE NO. 2:16-CV-03903
`
`IN RE : POWER WINDOW SWITCHES
` CASE NO. 2:16-CV-04003
`
`IN RE : AUTOMOTIVE STEEL TUBE
` CASE NO. 2:16-CV-04103
`IN RE : ACCESS MECHANISMS ACTIONS
` CASE NO. 2:17-CV-04303
`IN RE : DOOR LATCHES
`
`
`
`__________________________________________________________________
`THIS DOCUMENT RELATES TO:
`End-Payor Actions
`__________________________________________________________________
`
`
`
`DECLARATION OF EMMA K. BURTON IN SUPPORT OF MOTION TO
`ENFORCE SETTLEMENTS AND STRIKE CONTRADICTORY AND
`IMPROPER STIPULATION
`
`I, Emma K. Burton, declare as follows.
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`
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`1.
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`I am a partner at the law firm of Crowell & Moring LLP and represent
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`Enterprise Fleet Management, Inc. (“EFM”) in its claim to the End Payor
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`settlements in the class action litigation known as In re: Automotive Parts Antitrust
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`-2-
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`Case 2:12-md-02311-SFC-RSW ECF No. 2192-2, PageID.39762 Filed 03/17/22 Page 3 of 8
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`Litigation, MDL No. 2311 (E.D. Mich.) (“Auto Parts Matter”). Through my
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`representation of EFM, I have personal knowledge of information relating to the
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`company’s claim in this matter. All of the statements in this declaration are based
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`upon that information and, if called as a witness, I could and would testify
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`competently thereto.
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`2.
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`I submit this declaration in support of EFM’s Motion to Enforce the
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`Settlements and Strike the Contradictory and Improper Stipulation reached with
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`Class Action Capital, Inc. (“CAC”) and certain other fleet management companies
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`(“FMCs”).
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`3.
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`As a member of the End Payor class, EFM is entitled to settlement
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`funds and submitted a timely claim in advance of the June 18, 2020, claim filing
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`deadline for 1,043,056 qualifying vehicles purchased during the relevant time
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`period.
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`4.
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`On October 17, 2019, and in advance of EFM’s claim filing, I
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`corresponded with End Payor Class Counsel Marc Seltzer, Hollis Salzman, and
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`Adam Zapala in order to confirm that fleet management companies such as EFM
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`were included in the End Payor settlement class. On November 9, 2019, Class
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`Counsel Chanler Langham responded as follows:
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`“As discussed on our call, we will address many of the issues related
`to fleet management companies on a case-by-case basis. However,
`assuming for purposes of this response that the fleet management
`company at issue purchased new vehicles and retained title to those
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`-3-
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`Case 2:12-md-02311-SFC-RSW ECF No. 2192-2, PageID.39763 Filed 03/17/22 Page 4 of 8
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`new vehicles while leasing them to customers under long term leases,
`those fleet management companies would be included in the class.”
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` copy of this e-mail communication is attached hereto as Exhibit 1. EFM relied
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` A
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`on this acknowledgement by Class Counsel in pursuing its claim to the End Payor
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`settlements.
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`5.
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`To date, EFM has received no correspondence or communication
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`from the Claims Administrator denying, limiting, or otherwise indicating that its
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`claim is not in good standing.
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`6.
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`On September 15, 2021, a group of four other FMCs represented by
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`CAC filed a Motion to Enforce Settlement Agreements, referencing Class
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`Counsel’s intent to now exclude FMCs from the class. The FMCs’ motion
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`advocated for FMC inclusion in the End Payor class and raised substantially
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`similar arguments to those raised in the present Motion brought by EFM.
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`7.
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`On September 27, 2021, and again on October 4, 2021, I contacted
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`Class Counsel on EFM’s behalf to confirm that Class Counsel’s position with
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`respect to FMC membership in the End Payor class was unchanged from its 2019
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`correspondence.
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`8.
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`On October 6, 2021, I spoke with Class Counsel by phone and Class
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`Counsel indicated that it was in discussion with the other FMCs to try to reach a
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`resolution. On the same call, Class Counsel also raised concerns that the parties
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`-4-
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`Case 2:12-md-02311-SFC-RSW ECF No. 2192-2, PageID.39764 Filed 03/17/22 Page 5 of 8
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`could not have anticipated duplicate claims filed to the same vehicle—one by an
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`FMC owner and the other by the FMC’s customer lessee—and requested that EFM
`
`provide its proposal for resolution of the duplicate claim issue expeditiously.
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`9.
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`On October 12, 2021, I was copied on an e-mail to Class Counsel
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`written by my Crowell & Moring colleague Daniel Sasse, providing on behalf of
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`EFM a proposed resolution as requested by Class Counsel. The following day, I e-
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`mailed Class Counsel for an update in light of the then-pending Response deadline
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`to the other FMCs’ September 15, 2021, Motion. Class Counsel responded that
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`discussions continued and that Class Counsel “will keep you informed of
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`additional discussions and/or proposed written agreements.” A copy of this e-mail
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`communication is attached hereto as Exhibit 2.
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`10. Over the nearly three months that followed, I requested multiple status
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`updates and made multiple requests of Class Counsel to be included in resolution
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`of any perceived issues with FMC inclusion in the class. Those communications
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`have been summarized in the following table:
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`10/25/21 Counsel for EFM emailed Class Counsel to request a status
`update
`10/26/21 Class Counsel and counsel for EFM spoke by phone; Class
`Counsel indicated that discussions with the other FMCs
`continued, but provided no details
`
`11/01/21 Class Counsel and counsel for EFM spoke by phone; Class
`Counsel indicated that a joint stipulation for an order
`extending Response and Reply deadlines to FMC motion
`would be forthcoming
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`-5-
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`Case 2:12-md-02311-SFC-RSW ECF No. 2192-2, PageID.39765 Filed 03/17/22 Page 6 of 8
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`11/22/21 Counsel for EFM emailed Class Counsel to request a status
`update
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`11/24/21 Class Counsel indicated by email that it had made
`considerable progress in reaching an agreement with CAC
`but provided no details
`
`12/03/21 Counsel for EFM emailed Class Counsel to request a status
`update
`
`12/09/21 Class Counsel and counsel for EFM spoke by phone; Class
`Counsel refused to reveal any details of its discussions with
`CAC or counsel for the other FMCs, citing FRE 408
`
`12/22/21 Counsel for EFM emailed Class Counsel to request a status
`update
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`12/22/21 Class Counsel emailed counsel for EFM, forwarding the file copy
`of CAC’s motion to withdraw
`
`12/22/21 Counsel for EFM replied to Class Counsel to note that
`Class Counsel had provided no details of CAC’s proposed
`stipulation as referenced in CAC’s motion to withdraw
`
`12/23/21 Class Counsel emailed counsel for EFM to suggest a call in
`early January and again provided no details of CAC’s
`proposed stipulation
`
`01/03/22 Counsel for EFM emailed Class Counsel to request a call to
`discuss status and terms of CAC’s proposed stipulation;
`Class Counsel failed to respond to this request until after
`CAC Stipulation and Order was entered
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`01/10/22 CAC Stipulation and Order entered. As a condition of the
`CAC Stipulation, the four FMCs withdrew their September
`15, 2021 Motion to the Enforce the Settlement.
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`-6-
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`Case 2:12-md-02311-SFC-RSW ECF No. 2192-2, PageID.39766 Filed 03/17/22 Page 7 of 8
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`11. Despite EFM’s repeated requests to be included in the resolution of
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`any perceived issues with FMC inclusion in the class, Class Counsel refused to
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`disclose any of its discussions with the other FMCs, CAC, or any terms of a
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`proposed stipulation to resolve the other FMCs’ Motion.
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`12. The first time EFM learned of the terms of the Stipulation negotiated
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`by Class Counsel with the other FMCs and their third-party filer CAC was when
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`the CAC Stipulation Order was entered on January 10, 2022. The CAC Stipulation
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`was not docketed or otherwise made public prior to the Order being entered.
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`13. On January 12, 2022—two days after the CAC Stipulation Order was
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`entered—I spoke with Class Counsel, and Class Counsel expressed its intent to
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`apply the CAC Stipulation terms to all FMCs, including EFM. I expressed EFM’s
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`concern that it had been excluded from the discussions that resulted in the CAC
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`Stipulation. I also expressed EFM’s concern that the CAC Stipulation was
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`inconsistent with Class Counsel’s express position in 2019 that FMCs were class
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`members.
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`14. From mid-January to mid-February 2022, I spoke with Class Counsel
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`several more times in an effort to reach a resolution, and to express concerns that
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`the CAC Stipulation treated qualifying class members inequitably.
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`15. On February 15, 2022, the parties agreed that they had reached an
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`impasse and I informed Class Counsel of EFM’s intent to file this Motion.
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`Case 2:12-md-02311-SFC-RSW ECF No. 2192-2, PageID.39767 Filed 03/17/22 Page 8 of 8
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`I declare under penalty of perjury that the foregoing is true and correct.
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`Executed this 17th day of March, 2022, in Washington, D.C.
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`By: /s/ Emma K. Burton
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`Emma K. Burton
`Crowell & Moring LLP
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