Case 2:12-md-02311-SFC-RSW ECF No. 2208, PageID.40045 Filed 05/12/22 Page 1 of 19
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`Case: 20-2260 Document: 36-1 Filed: 05/12/2022 Page: 1
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`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`100 EAST FIFTH STREET, ROOM 540
`POTTER STEWART U.S. COURTHOUSE
`CINCINNATI, OHIO 45202-3988
`
`Tel. (513) 564-7000
`www.ca6.uscourts.gov
`
`Deborah S. Hunt
`Clerk
`
`
`
`Filed: May 12, 2022
`
`
`
`Mr. Chanler A. Langham
`Susman Godfrey
`1000 Louisiana Street
`Suite 5100
`Houston, TX 77002
`
`Mr. Aaron Martin Panner
`Kellogg, Hansen, Todd, Figel & Frederick
`1615 M Street, N.W.
`Suite 400
`Washington, DC 20036
`
`Mr. Marc M. Seltzer
`Susman Godfrey
`1900 Avenue of the Stars, Suite 1400
`Los Angeles, CA 90067
`
`
`
`Re: Case No. 20-2260, In re: Auto Parts Antitrust Litig
`Originating Case No. : 2:12-md-02311
`
`Dear Counsel,
`
` The court today announced its decision in the above-styled case.
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` Enclosed is a copy of the court’s published opinion together with the judgment which has
`been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
`
`
`
`
`
`
`
`
`Yours very truly,
`
`Deborah S. Hunt, Clerk
`
`
`Cathryn Lovely
`Deputy Clerk
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2208, PageID.40046 Filed 05/12/22 Page 2 of 19
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`Case: 20-2260 Document: 36-1 Filed: 05/12/2022 Page: 2
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`cc: Ms. Kinikia D. Essix
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`Enclosures
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`Mandate to issue.
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`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2208, PageID.40047 Filed 05/12/22 Page 3 of 19
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`Case: 20-2260 Document: 36-2 Filed: 05/12/2022 Page: 1
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`RECOMMENDED FOR PUBLICATION
`Pursuant to Sixth Circuit I.O.P. 32.1(b)
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`File Name: 22a0102p.06
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`UNITED STATES COURT OF APPEALS
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`FOR THE SIXTH CIRCUIT
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`
`
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`IN RE: AUTOMOTIVE PARTS ANTITRUST LITIGATION,
`End-Payor Actions.
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`___________________________________________
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`END-PAYOR PLAINTIFFS,
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`Plaintiffs-Appellees,
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`v.
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`FINANCIAL RECOVERY SERVICES, LLC,
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`Proposed Intervenor-Appellant.
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`
`
`No. 20-2260
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`┐
`│
`│
`│
`│
`>
`│
`│
`│
`│
`│
`│
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`│
`┘
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`
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`Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
`No. 2:12-md-02311—Sean F. Cox, District Judge.
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`Argued: April 27, 2022
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`Decided and Filed: May 12, 2022
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`Before: SUTTON, Chief Judge; MOORE and GILMAN, Circuit Judges.
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`_________________
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`COUNSEL
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`ARGUED: Aaron M. Panner, KELLOGG, HANSEN, TODD, FIGEL & FREDERICK,
`P.L.L.C., Washington, D.C., for Appellant. Chanler A. Langham, SUSMAN GODFREY L.L.P.,
`Houston, Texas, for Appellees. ON BRIEF: Aaron M. Panner, KELLOGG, HANSEN, TODD,
`FIGEL & FREDERICK, P.L.L.C., Washington, D.C., for Appellant. Chanler A. Langham,
`SUSMAN GODFREY L.L.P., Houston, Texas, Marc M. Seltzer, SUSMAN GODFREY L.L.P.,
`Los Angeles, California, for Appellees.
`
`
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2208, PageID.40048 Filed 05/12/22 Page 4 of 19
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`Case: 20-2260 Document: 36-2 Filed: 05/12/2022 Page: 2
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`No. 20-2260
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`In re Automotive Parts Antitrust Litig.
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`Page 2
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`
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`_________________
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`OPINION
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`_________________
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`KAREN NELSON MOORE, Circuit Judge. More than a year and a half after final
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`approval of third-round settlements in a billion-dollar multidistrict litigation, Financial Recovery
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`Services, LLC (FRS), a company that manages and files claims on behalf of its insurer clients,
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`moved to intervene. The district court denied FRS’s motion, finding FRS’s intervention
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`untimely. Because the district court did not abuse its discretion, we AFFIRM the district court’s
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`judgment.
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`I. BACKGROUND
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`
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`The parties dispute FRS’s claims to a subset of class-action settlement recoveries in the
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`Automotive Parts Antitrust multi-district litigation. In those actions, a subset of consumers and
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`businesses known as the End-Payor Plaintiffs (Appellees in this case), alleged that defendant
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`automotive-part manufacturers fixed prices in violation of antitrust laws. See, e.g., R. 229 (No.
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`2:12-cv-00403) (Third Am. Compl. ¶ 1, 210–21) (Page ID #8250–51, 8304–06). End-Payor
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`Plaintiffs alleged that they paid elevated prices for defendants’ parts or purchased or leased
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`vehicles containing defendants’ parts. Id. ¶ 3–4 (Page ID #8251–52).
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`After eight years of motion practice, negotiations, approval hearings, and objections, the
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`district court granted final approval to settlements between End-Payor Plaintiffs and defendants
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`in four rounds, on June 20, 2016, September 25, 2017, November 8, 2019, and September 17,
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`2020. In re Auto. Parts Antitrust Litig., No. 12-MD-2311, 2020 WL 6737545, at *1, 3 (E.D.
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`Mich. Nov. 17, 2020). The settlement agreements, as well as the class notices and plans of
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`allocation for each settlement agreement, defined the classes of plaintiffs to include consumers
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`and businesses that bought or leased certain qualifying vehicles or paid to replace certain
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`qualifying vehicle parts during designated time periods. See, e.g., R. 2027-231 (Round 3
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`Settlement Class Notice at 9)
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`(Page ID #37485); R. 112-1
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`(No. 2:16-cv-03703)
`
`
`1Unless indicated otherwise, record cites in this opinion refer to the Automotive Parts multi-district
`litigation docket, Case No. 2:12-md-02311.
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2208, PageID.40049 Filed 05/12/22 Page 5 of 19
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`Case: 20-2260 Document: 36-2 Filed: 05/12/2022 Page: 3
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`No. 20-2260
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`In re Automotive Parts Antitrust Litig.
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`Page 3
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`
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`(Exhaust Systems Settlement Agreement ¶ 13, 15) (Page ID #3819). The class definitions did
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`not include insurers, assignees, or subrogees.
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`In May 2018, FRS, a third-party company that manages and files claims for its clients,
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`began to submit claims on behalf of eight insurers. R. 2060-3 (12/13/2019 Letter from FRS to
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`Judge Battani at 1) (Page ID #37734); R. 2060-2 (Leibell Decl. ¶ 9) (Page ID #37728–29).
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`These insurers sought to recover portions of the settlement based on two theories. First, and only
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`marginally relevant to this appeal, FRS submitted claims on behalf of insurers that purchased or
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`leased eligible vehicles for company use (what the parties call “Fleet Vehicles”). R. 2060-2
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`(Leibell Decl. ¶ 9) (Page ID #37728–29). Second, FRS submitted claims that are at issue in this
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`appeal based on what it perceived as its clients’ subrogation rights to class members’ claims. Id.
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`¶ 10–11) (Page ID #37729); R. 2060-3 (12/13/2019 Letter from FRS to Judge Battani at 1–2)
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`(Page ID #37734–35). Under the common-law theory of equitable subrogation, an insurer who
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`compensated its insureds for injuries that another party inflicted may assume the right of the
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`insureds to sue the party that caused the injury. Nat’l Sur. Corp. v. Hartford Cas. Ins. Co.,
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`493 F.3d 752, 756 (6th Cir. 2007). FRS alleges that the insurance companies that FRS represents
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`paid insured class members for vehicles that were deemed a “total loss” due to theft or damage.
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`R. 2060-3 (12/13/2019 Letter from FRS to Judge Battani at 1–2, 4–7) (Page ID #37734–35,
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`37737–40). The insurers allegedly paid an inflated market value for these vehicles when the cost
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`of repairing them exceeded the value of these so-called “Total Loss Vehicles.” As a result, FRS
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`argues, the insurers are equitably subrogated to their insureds’ claims against defendants. Id.
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`Under the settlement plan of allocation, each claimant was required to submit information
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`about the vehicle that the claimant purchased or leased, the date the claimant purchased the
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`vehicle, and the residence of the claimant. See, e.g., R. 2005-2 (Plan of Allocation at 2) (Page ID
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`#36629). Because FRS represented eight insurance companies with many clients, retrieving and
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`submitting all the information needed to support these claims would expend much time and
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`resources. R. 2060-5 (11/14/2018 Email from FRS to End-Payor Plaintiffs) (Page ID #37777);
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`R. 2114-2 (Third Leibell Decl. ¶ 11) (Page ID #38342–43). Thus, when FRS submitted these
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`Total Loss Vehicle claims to the claims administrator between May 2018 and March 2020, it did
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`not provide any of this supporting information with the claims. R. 2060-2 (Leibell Decl. ¶ 9–10)
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2208, PageID.40050 Filed 05/12/22 Page 6 of 19
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`Case: 20-2260 Document: 36-2 Filed: 05/12/2022 Page: 4
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`No. 20-2260
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`In re Automotive Parts Antitrust Litig.
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`Page 4
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`
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`(Page ID #37728–29). Instead, FRS submitted so-called “placeholder claims,” hoping that the
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`claims administrator would allow FRS to supplement those claims later. Id. ¶ 10 (Page ID
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`#37729).
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`Shortly after FRS began submitting claims, in August 2018, the district court issued a
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`decision that, according to FRS, “invited . . . a claim based on subrogation” in the Automotive
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`Parts litigation. Reply Br. at 6–7 (citing GEICO Corp. v. Autoliv, Inc., 345 F. Supp. 3d 799
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`(E.D. Mich. 2018)). Two years earlier, the insurance company GEICO had opted out of the first
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`round of End-Payor Plaintiff settlements and pursued individual claims against a subset of
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`defendants. GEICO, 345 F. Supp. 3d at 808. GEICO pursued theories of recovery based on its
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`own purchase of automotive parts in its own Fleet Vehicles and its reimbursement of insureds for
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`the full value of total-loss vehicles, similar to the theories FRS now advances. Id. at 809. The
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`defendants moved to dismiss, and the district court allowed GEICO to amend its complaint to
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`include a claim based on equitable subrogation. Id. at 830–34. In granting GEICO leave to
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`amend its complaint, however, the district court did not “determine the viability” of GEICO’s
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`“potential subrogation rights.” Id. at 830, 833.
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`A couple of months after the GEICO decision, in November 2018, FRS contacted End-
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`Payor Plaintiffs’ class counsel to discuss the most efficient way to supplement FRS’s placeholder
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`claims. R. 2060-5 (11/14/2018 Email from FRS to End-Payor Plaintiffs) (Page ID #37777). The
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`following month, FRS discussed its subrogation claims with class counsel, and in January 2019,
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`sent class counsel a research memorandum outlining the legal support for its theory. R. 2060-6
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`(1/14/2019 Email from FRS to End-Payor Plaintiffs) (Page ID #37779).
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`During a later January 2019 phone call between the parties, End-Payor Plaintiffs
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`“disagreed with FRS that the Insurers may recover from the End-Payor Settlements as
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`subrogees.” R. 2060-2 (Leibell Decl. ¶ 6) (Page ID #37727–28). FRS inquired about potential
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`ways to raise this issue with the district court should the disagreement continue. Id. End-Payor
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`Plaintiffs responded that “the [i]nsurers should file claims, wait for them to be rejected, and then
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`appeal that rejection to the [district court].” Id. FRS protested that submitting claims for “many
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`thousands” of vehicles would be impractical. Id. The parties agreed to revisit the matter later.
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`Id.
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2208, PageID.40051 Filed 05/12/22 Page 7 of 19
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`Case: 20-2260 Document: 36-2 Filed: 05/12/2022 Page: 5
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`No. 20-2260
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`In re Automotive Parts Antitrust Litig.
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`Page 5
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`FRS did not contact End-Payor Plaintiffs again until October 17, 2019, nine months later.
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`R. 2060-7 (10/17/2019 Email from FRS to End-Payor Plaintiffs) (Page ID #37818). The district
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`court in August 2019 had set a December 31, 2019 deadline to file claims. R. 291 (No. 2:12-cv-
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`00403) (8/2/2019 Order ¶ 16) (Page ID #10401). With the claims-filing deadline “approaching,”
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`FRS again asked End-Payor Plaintiffs about their position on subrogation. R. 2060-7
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`(10/17/2019 Email from FRS to End-Payor Plaintiffs) (Page ID #37818–19). FRS provided
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`counsel with a draft letter that it intended to file with the district court, seeking resolution of
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`these issues. Id.
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`End-Payor Plaintiffs responded in a letter on November 2, 2019, rejecting FRS’s claims
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`to recovery based on a subrogation theory. R. 2060-8 (11/2/2019 Letter from End-Payor
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`Plaintiffs to FRS at 1) (Page ID #37822). End-Payor Plaintiffs insisted that “there is no question
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`that Auto Insurers are not class members and therefore have no rights as class members or as
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`subrogees of class members.” Id. Following a November 26, 2019 call, the parties agreed to a
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`briefing schedule before the district court on the issue, “subject of course to the [district court]’s
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`approval.” R. 2060-9 (11/25–26/2019 Emails between FRS and End-Payor Plaintiffs) (Page ID
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`#37901–02).
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`After this discussion, FRS did not formally enter an appearance in the case, let alone
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`enter a stipulation and briefing schedule on the docket or move to intervene as a party. Instead,
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`on December 13, 2019, FRS sent a letter to the district judge via FedEx, requesting a declaration
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`that FRS may recover from the settlements under an equitable-subrogation theory. R. 2060-3
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`(12/13/2019 Letter from FRS to Judge Battani) (Page ID #37734). FRS did not electronically
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`file the letter pursuant to local court rules, nor did it serve the letter on all the parties.
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`Recognizing a week later that the district court had not docketed its letter, FRS contacted the
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`district court’s chambers. The district court’s law clerk advised FRS that it “may need to
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`intervene to perfect the submission of its motion and obtain the relief it sought.” R. 2060-12
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`(Alarcon Decl. ¶ 3) (Page ID #37921–22). End-Payor Plaintiffs responded to the letter “out of an
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`abundance of caution,” filing their opposition electronically. R. 2034 (Resp. to FRS Letter Br. at
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`1 & n.1) (Page ID #37518). Although End-Payor Plaintiffs’ response appeared on the docket,
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`FRS’s reply—which FRS again sent to the district judge via FedEx despite chambers’ suggestion
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2208, PageID.40052 Filed 05/12/22 Page 8 of 19
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`Case: 20-2260 Document: 36-2 Filed: 05/12/2022 Page: 6
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`No. 20-2260
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`In re Automotive Parts Antitrust Litig.
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`Page 6
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`
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`to intervene—did not. R. 2060-4 (1/3/2020 Reply Letter from FRS to Judge Battani) (Page ID
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`#37768).
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`Meanwhile, on December 20, 2019, the district court had granted End-Payor Plaintiffs’
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`request to extend the claims-filing deadline to March 16, 2020. R. 2032 (12/20/2019 Order ¶ 12)
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`(Page ID #37511). One week before that deadline, on March 9, 2020, FRS sent a letter to the
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`claims administrator, informing it of FRS’s intent to supplement its claims with the appropriate
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`vehicle data once the district court ruled on the subrogation issue. R. 2060-10 (3/9/2020 Letter
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`from FRS to Claims Administrator) (Page ID #37915–16). FRS forwarded this letter to End-
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`Payor Plaintiffs the next day. R. 2060-10 (3/10/2020 Email from FRS to End-Payor Plaintiffs)
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`(Page ID #37914). End-Payor Plaintiffs did not respond to this request. The district court did
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`not rule on the briefing letter or approve FRS’s plan to supplement its claims.
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`Around the same time, End-Payor Plaintiffs again requested an extension of the claims-
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`filing deadline to June 18, 2020, and the district court granted their request. R. 2044 (3/24/2020
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`Order) (Page ID #37658). On the day of that already twice-postponed deadline—one and a half
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`years after End-Payor Plaintiffs first informed FRS that they rejected FRS’s subrogation
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`theory—FRS moved to intervene as of right pursuant to Federal Rule of Civil Procedure 24(a).
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`R. 2060 (Mot. to Intervene) (Page ID #37695). FRS argued that it was intervening “solely to
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`give effect” to its earlier “letter motion” asking for the district court to determine that FRS may
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`assert its subrogation rights. Id. at 2–3 (Page ID #37703–04). End-Payor Plaintiffs opposed the
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`motion, arguing both that the motion was untimely and that FRS lacked a cognizable interest in
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`the action. R. 2066 (Opp’n to Mot. to Intervene at 1–5) (Page ID #38036–41).
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`The district court denied the intervention motion as untimely. Auto. Parts, 2020 WL
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`6737545, at *4. Although the district court questioned in a footnote whether FRS claimed a
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`valid interest to intervene by virtue of its subrogation right, the court declined to address any
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`other intervention requirements except timeliness. Id. at *2 & n.1. FRS timely appealed. After
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`the parties briefed the issues, End-Payor Plaintiffs moved to strike references in FRS’s briefs to
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`facts that were not before the district court.
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2208, PageID.40053 Filed 05/12/22 Page 9 of 19
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`Case: 20-2260 Document: 36-2 Filed: 05/12/2022 Page: 7
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`No. 20-2260
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`In re Automotive Parts Antitrust Litig.
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`Page 7
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`II. STANDARD OF REVIEW
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`A party seeking intervention as of right under Federal Rule of Civil Procedure 24(a)(2)
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`must show that “1) the application [to intervene] was timely filed; 2) the applicant possesses a
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`substantial legal interest in the case; 3) the applicant’s ability to protect its interest will be
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`impaired without intervention; and 4) the existing parties will not adequately represent the
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`applicant’s interest.” Blount-Hill v. Zelman, 636 F.3d 278, 283 (6th Cir. 2011). We review
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`under the abuse-of-discretion standard a district court’s denial of intervention as of right based
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`on timeliness. Grutter v. Bollinger, 188 F.3d 394, 398 (6th Cir. 1999). Only if we are convinced
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`that the district court misapplied the law, relied on clearly erroneous factual findings, improperly
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`applied the law to the facts, or made a clear error of judgment can we conclude that a district
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`court abused its discretion. Pittington v. Great Smoky Mountain Lumberjack Feud, LLC,
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`880 F.3d 791, 799 (6th Cir. 2018).
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`III. TIMELINESS OF INTERVENTION
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`
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`We evaluate five factors in determining whether an intervention motion was timely:
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`1) the point to which the suit has progressed; 2) the purpose for which
`intervention is sought; 3) the length of time preceding the application during
`which the proposed intervenors knew or should have known of their interest in the
`case; 4) the prejudice to the original parties due to the proposed intervenors’
`failure to promptly intervene after they knew or reasonably should have known of
`their interest in the case; and 5) the existence of unusual circumstances militating
`against or in favor of intervention.
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`Blount-Hill, 636 F.3d at 284 (quoting Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir.
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`1990)). In evaluating these factors, we view them “in the context of all relevant circumstances.”
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`Id. (quoting Stupak-Thrall v. Glickman, 226 F.3d 467, 472–73 (6th Cir. 2000)).
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`A. Stage of Litigation
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`The first factor that we consider is the point to which the suit had progressed at the time
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`of intervention. The absolute duration of the litigation matters little to this inquiry; “the stage of
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`the proceedings and the nature of the case” govern the analysis. United States v. City of Detroit,
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`712 F.3d 925, 931 (6th Cir. 2013); see also Stupak-Thrall, 226 F.3d at 475. Litigation is in its
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2208, PageID.40054 Filed 05/12/22 Page 10 of 19
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`Case: 20-2260 Document: 36-2 Filed: 05/12/2022 Page: 8
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`No. 20-2260
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`In re Automotive Parts Antitrust Litig.
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`Page 8
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`
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`final stages when the district court has already ruled on dispositive motions, Salem Pointe Cap.,
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`LLC v. BEP Rarity Bay, LLC, 854 F. App’x 688, 696 (6th Cir. 2021), closed discovery, Stupak-
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`Thrall, 226 F.3d at 475, certified classes, Clarke v. Baptist Mem’l Healthcare Corp., 427 F.
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`App’x 431, 437 (6th Cir. 2011), or held fairness hearings that lead to settlement approval, In re
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`S. Ohio Corr. Facility, 24 F. App’x 520, 532 (6th Cir. 2001).
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`
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`All those benchmarks had long passed in this case when FRS moved to intervene.
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`By any measure, FRS sought intervention at the final stage of the “litigation continuum.” See
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`Stupak-Thrall, 226 F.3d at 475. FRS did not intervene or otherwise participate during the class-
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`certification process, settlement negotiations, and final-approval hearings in over forty-one
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`coordinated cases. Instead, FRS waited to intervene until the final claims submission deadline—
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`which had already been twice postponed—after the district court had approved the final version
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`of the third round of settlement.
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`
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`Recognizing that the case was nearing its final stages at the time of intervention,
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`FRS asks us to zoom into the remedial stages of litigation. The parties here resolved the merits
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`through settlement, but the remedial claims-administration process, FRS argues, was just
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`beginning at the time it sought intervention. In FRS’s view, its decision to intervene at the
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`beginning, rather than the end, of the claims-processing stage thus tips the first factor in its favor.
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`
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`In support, FRS cites United States v. City of Detroit, in which we indeed recognized that
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`limited intervention may sometimes foster efficiency in a case’s remedial stages. 712 F.3d at
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`932. In that case, a union sought to intervene in a lawsuit involving a consent decree between
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`the City of Detroit and the Environmental Protection Agency after the district court entered an
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`order that affected the union’s contractual rights. Id. at 928–30. Because the union could
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`participate in new matters without relitigating settled issues, we held that the district court should
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`allow intervention for the limited purpose of “shaping future remedial efforts.” Id. at 933. FRS
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`argues that here, like in City of Detroit, “future progress remains” on the remedial front, and that
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`it merely seeks to clarify its rights in those prospective remedial efforts. Id. at 931.
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`
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`FRS’s comparison fails for two reasons. First, the finish line of litigation remained out of
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`sight in City of Detroit; in which we acknowledged that “despite significant progress, [the case]
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2208, PageID.40055 Filed 05/12/22 Page 11 of 19
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`Case: 20-2260 Document: 36-2 Filed: 05/12/2022 Page: 9
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`No. 20-2260
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`In re Automotive Parts Antitrust Litig.
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`Page 9
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`cannot be expected to end any time soon.” Id. The parties in this case face none of the moving
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`targets that extend the remedial process in litigation implementing injunctive relief—namely
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`organization, compliance, and human resources challenges. After the claims-administration
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`process, there remains “very little” for the district court to do in this case. See United States v.
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`Tennessee, 260 F.3d 587, 592 (6th Cir. 2001).
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`
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`Second, unlike in City of Detroit, allowing intervention would revisit settled issues. Cf.
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`id., 712 F.3d at 932. If it were to allow intervention, the district court would have to decide
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`whether FRS has a right to any of the settlement proceeds. This would require, for all practical
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`purposes, revisiting the class definition and the plan of allocation, issues that have long been
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`resolved. See R. 2097 (Pinkerton Decl. ¶ 24–26) (Page ID #38200–01). Intervention would thus
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`require the parties to “re-litigate issues that [FRS] watched from the sidelines.” See City of
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`Detroit, 712 F.3d at 932. Because the district court did not abuse its discretion in finding that
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`“the suit has progressed to a very advanced stage,” Auto. Parts, 2020 WL 6737545, at *4, this
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`factor weighs against FRS.
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`B. Purpose of Intervention
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`
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`The second relevant factor is the purpose of the intervention. Our approach to this factor
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`has been “somewhat inconsistent”—at times, we have peeked behind the timeliness curtain at the
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`legitimacy of the intervenors’ purported interest, and at others, we have analyzed whether the
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`would-be intervenors acted promptly in light of their stated purposes. See Kirsch v. Dean, 733 F.
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`App’x 268, 275–76 (6th Cir. 2018). Here, although the district court briefly mused about the
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`legitimacy of FRS’s subrogation interests in a footnote, its opinion addressed timeliness only.
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`Auto. Parts, 2020 WL 6737545, at *2 & n.1. Because we review the district court’s opinion
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`under the abuse-of-discretion standard, Grutter, 188 F.3d at 397, we view the “purpose” inquiry
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`as the district court did: through the lens of timeliness. Without deciding the legitimacy of the
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`underlying subrogation right, we ask whether FRS promptly intervened to pursue its stated
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`interest.
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`
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`FRS argues that its interest is “narrow”—it seeks merely to clarify whether its insurer
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`clients have a right to equitable subrogation. Appellant Br. at 29. We are indeed more inclined
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`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2208, PageID.40056 Filed 05/12/22 Page 12 of 19
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`Case: 20-2260 Document: 36-2 Filed: 05/12/2022 Page: 10
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`No. 20-2260
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`In re Automotive Parts Antitrust Litig.
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`Page 10
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`
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`to grant intervention when the purpose of intervention is limited in scope. See City of Detroit,
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`712 F.3d at 931–32. As End-Payor Plaintiffs point out, however, FRS’s purpose for intervention
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`is broader than FRS suggests on appeal. If the district court were to find that FRS possesses a
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`subrogation right, FRS would also have to seek to supplement its claims with the requisite
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`supporting information. See R. 2060 (Mem. in Supp. of Mot. to Intervene at 3) (Page ID
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`#37704) (requesting that the district court “clarify that the [i]nsurers may supplement their
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`claims in accordance with the [district court]’s resolution of the threshold legal issue”). Because
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`of the practical consequences of processing the supplemental information, the ultimate end-goal
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`of FRS’s intervention—to determine whether it had a subrogation right and to assert that right if
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`it did—reaches far beyond mere clarification of a legal issue. Due to the likelihood of delay that
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`would result from such a far-reaching request, FRS should have asserted its interest as early as
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`possible to avoid the resulting prejudice to class members. As discussed in the next section,
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`however, FRS waited far too long to assert its claimed interest.
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`C. Length of Time Between Knowledge of Interest and Intervention
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`
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`Under the next factor, we evaluate how long the intervenor took to move after it knew or
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`should have known that its interests in the case were implicated. Stupak-Thrall, 226 F.3d at 477.
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`More precisely, we ask when the intervenor should have known that the parties in the case would
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`not protect its interests. Cameron v. EMW Women’s Surgical Ctr., P.S.C., 142 S. Ct. 1002, 1012
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`(2022). The district court did not clearly articulate when FRS should have intervened. In any
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`event, multiple triggering points—all significantly earlier than June 2020—should have alerted
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`FRS that it needed to act.
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`
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`We note that FRS was aware of this litigation by at least May 2018, when it submitted
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`claims for the first two rounds of settlement. Even at that point, it was clear that the litigation
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`impacted FRS’s interests and that End-Payor Plaintiffs’ interests were not aligned with FRS’s
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`interests. Allowing FRS to claim subrogation rights after settlement would uproot earlier efforts
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`to define classes, expend considerable resources to amend allocation plans, and increase costs
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`associated with the claims-administration process, thereby reducing the amount of settlement
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`proceeds available. Recognizing that FRS’s “interests were implicated,” even at that juncture,
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`would not require “unusual prescience.” Cuyahoga Valley Ry. Co. v. Tracy, 6 F.3d 389, 396
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`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2208, PageID.40057 Filed 05/12/22 Page 13 of 19
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`Case: 20-2260 Document: 36-2 Filed: 05/12/2022 Page: 11
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`No. 20-2260
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`In re Automotive Parts Antitrust Litig.
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`Page 11
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`
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`(6th Cir. 1993). In other words, FRS should have been aware by at least May 2018 that End-
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`Payor Plaintiffs would inadequately represent its subrogation interests. Cf. Jansen, 904 F.2d at
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`341 (intervention proper when parties’ interests were aligned at the beginning of the litigation);
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`see also CE Design Ltd. v. King Supply Co., 791 F.3d 722, 726 (7th Cir. 2015). Rather than
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`participating in settlement discussions, or at least in the fairness hearings approving the
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`settlement agreements, FRS watched from the sidelines. See S. Ohio Corr. Facility, 24 F. App’x
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`at 532.
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`
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`FRS argues that the district court recognized the legitimacy of its clients’ subrogation
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`rights in its GEICO decision, so FRS reasonably believed before its January 2019 call that End-
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`Payor Plaintiffs would too. But FRS reads too much into the GEICO opinion. As the district
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`court correctly observed in its opinion denying intervention, the court in GEICO did not
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`“determine the viability” of the subrogation theory; it merely allowed GEICO to amend its
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`complaint to plead it. Auto. Parts, 2020 WL 6737545, at *2 n.1 (citing GEICO, 345 F. Supp. 3d
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`at 830–34). The district court in GEICO was equivocal on the legal basis for the theory and
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`recognized that it needed more facts to evaluate the theory. See GEICO, 345 F. Supp. 3d at 833–
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`34 (referring to GEICO’s “potential” or “claimed” subrogation rights). Nothing in the GEICO
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`opinion suggests that FRS could recover a portion of the settlement proceeds without filing its
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`own complaint with its own allegations to give the parties notice of the facts underlying FRS’s
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`claims. In fact, GEICO suggests just the opposite: GEICO was required to replead the facts
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`supporting its claims and “properly assert[]” its theory in an amended complaint. Id. That
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`GEICO could potentially include a claim in a 2018 complaint by opting out of the settlement
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`does not mean that FRS was secure in knowing that End-Payor Plaintiffs would represent its
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`clients’ interests.
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`
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`Even if we find reasonable FRS’s belief that End-Payor Plaintiffs would not object to its
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`assertion of subrogation rights before January 2019, that still leaves a year and a half before
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`FRS’s intervention. During the January 2019 call, End-Payor Plaintiffs made clear that they did
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`not recognize FRS’s clients’ asserted subrogation rights. R. 2060-2 (Leibell Decl. ¶ 6) (Page ID
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`#37727). At that point, FRS knew that End-Payor Plaintiffs’ interests were adverse. Even so,
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`FRS waited nine more months, until October 2019, to broach the subject with End-Payor
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`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2208, PageID.40058 Filed 05/12/22 Page 14 of 19
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`Case: 20-2260 Document: 36-2 Filed: 05/12/2022 Page: 12
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`No. 20-2260
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`In re Automotive Parts Antitrust Litig.
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`Page 12
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`
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`Plaintiffs again, R. 2060-7 (10/17/2019 Email from FRS to End-Payor Plaintiffs) (Page ID
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`#37818), and waited two months beyond that before asking the district court to resolve the
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`dispute. R. 2060-3 (12/13/2019 Letter from FRS to Judge Battani at 1) (Page ID #37734).
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`
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`FRS protests that its communications with counsel obviated any need to intervene. First,
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`it argues that insurers are class members by virtue of their purchases of their own Fleet Vehicles,
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`and this class membership gives rise to class counsel’s duty to represent insurers’ subrogation
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`interests. Any entreaty to the district court would have been premature, even inappropriate,
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`according to FRS, until class counsel formally rejected any duty to represent those interests.
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`FRS claims that such a rejection did not happen until class counsel told FRS that its clients were
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`not class members in November 2019.
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`
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`On this point, FRS mischaracterizes the law and the facts. Class counsel indeed have a
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`fiduciary duty to protect the interests of all class members; counsel cannot, for example, place
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`their own interests and the interests of named class members above unnamed class members.
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`See In re Dry Max Pampers Litig., 724 F.3d 713, 718 (6th Cir. 2013). None of our precedent
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`suggests, however, that class counsel’s fiduciary duty extends to a class member’s interests
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`outside of its status as a class member, especially when those interests conflict with those of
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`existing class members. In any case, class counsel did reject any perceived duty to represent
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`FRS’s interests in January 2019 when they told FRS that they did not recognize FRS’s claimed
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`subrogation right. R. 2060-2 (Leibell Decl. ¶ 6) (Page ID #37727). Even if class counsel
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`formally told FRS only in November 2019 that they did not recognize FRS’s clients as class
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`members, the January 2019 rejection should have tipped off FRS that End-Payor Plaintiffs’
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`interests were not aligned.
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`