Case 2:12-md-02311-SFC-RSW ECF No. 2232, PageID.40130 Filed 09/19/22 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`IN RE AUTOMOTIVE PARTS
`ANTITRUST LITIGATION
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`Master File No. 12-md-02311
`Honorable Sean F. Cox
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`THIS DOCUMENT RELATES TO:
`ALL END-PAYOR ACTIONS
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`END-PAYOR PLAINTIFFS’ OPPOSITION TO
`SUR-REPLY MEMORANDUM AND REQUEST FOR SPECIAL MASTER
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`End-Payor Plaintiffs, by and through their Court-appointed counsel (“Settlement Class
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`Counsel”), respectfully oppose the request for appointment of a special master filed by Enterprise
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`Fleet Management, Inc. (“EFM”). EFM, an automotive fleet management company, seeks a ruling
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`that it and its customers can both seek payments from the End-Payor Plaintiffs’ class settlements
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`based on the same vehicles. EFM claims it is entitled to share in the settlements based on vehicles
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`it purchased on behalf of its customers for the purpose of leasing those vehicles to its customers,
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`and that EFM’s customers are also entitled to share in the settlements based on the very same
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`vehicles that EFM leased to those customers.
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`Enterprise Fleet Management Seeks Many Tens of Millions of Dollars in Duplicate Recoveries
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`To put it mildly, this is not a small matter. The settlements, which were achieved after years
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`of hard fought litigation, total more than $1.2 billion. EFM, by the law firm of Crowell & Moring
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`L.L.P. (“Crowell”), which has made it part of its practice to submit claims in numerous class
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`actions, has asserted that it purchased more than 1 million vehicles. Of the 1 million vehicles
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`Case 2:12-md-02311-SFC-RSW ECF No. 2232, PageID.40131 Filed 09/19/22 Page 2 of 5
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`covered by the claim Crowell filed for EFM, Crowell also filed duplicate claims on behalf of
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`EFM’s customers based on more than 500,000 of the very same vehicles. . If both sets of claims
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`are allowed, many tens of millions of dollars from the class settlement funds may ultimately be
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`paid out to claimants who base their claims on the same vehicles, resulting in duplicate recoveries
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`for those claimants and thus diluting the recoveries of end-payor class members who properly
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`submitted valid claims based on the purchase or lease of a single vehicle. Settlement Class Counsel
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`take their duties as fiduciaries to the classes with great seriousness and have opposed this effort by
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`those they believe are not entitled to share in the settlements to obtain which warranted recoveries.
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`The End-Payor Plaintiffs classes are defined to include persons who purchased or leased
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`qualifying new vehicles. Those persons who leased vehicles from EFM—the lessees—are the end
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`payors entitled to share in the settlements—not EFM, the lessor. Thus, EFM is not entitled to
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`share in the settlements because it is not an end payor class member.
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`Enterprise Fleet Management Is the Only Claimant That Seeks Duplicate Recoveries
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`Class Action Capital, in the stipulation approved by the Court, acknowledged and agreed
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`that two claimants cannot make a claim based on the same vehicle. This is significant because
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`Class Action Capital, like Crowell, submitted claims on behalf of multiple fleet management
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`companies that purchased and leased vehicles to end payors. Those fleet management companies
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`who include four of the largest fleet management companies in the country, with a much larger
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`total share of the market than EFM, agreed that any settlement proceeds they receive must be
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`passed on to their customers, namely, the end payors. No claimant, other than EFM, has asserted
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`that two claimants at different levels of the distribution chain may seek duplicate recoveries based
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`on the same vehicle.
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`Case 2:12-md-02311-SFC-RSW ECF No. 2232, PageID.40132 Filed 09/19/22 Page 3 of 5
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`Settlement Class Counsel offered to enter into the same stipulation with EFM, but it
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`rejected that offer. Instead, Crowell attacked the stipulation and says EFM “remains steadfast in
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`its position that it is entitled to full payment on its valid, timely claims to the end-payor
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`settlements.” Sur-reply at 1. EFM thus continues to seek duplicative recoveries that will result in
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`it obtaining many millions of dollars of settlement funds to which Settlement Class Counsel do not
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`believe it is entitled to receive.
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`Appointment of a Special Master Would Be Unnecessary and Inappropriate
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`After having briefed and argued its motion, and heard the remarks of the Court at the
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`hearing held on September 15, 2022, Crowell suggested to Settlement Class Counsel for the first
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`time after the hearing was over that the Court should not decide its motion, but rather refer the
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`matter to a special master. We advised Crowell that we did not agree with that proposal. Without
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`filing a motion seeking this appointment, Crowell has now asked the Court to appoint a special
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`master in a post-hearing sur-reply memorandum. The asserted basis for this post-hearing, gambit
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`is Fed. R. Civ. P. 53(a)(1)(C), which provides a special master may be appointed “only to . . .
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`address pretrial and trial matters that cannot be effectively and timely addressed by an available
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`district judge or magistrate judge of the district.” This provision does not apply here for reasons
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`that are obvious.
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`Further, appointing a special master would only needlessly delay these proceedings. If a
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`special master were to be appointed, all of the time-consuming matters encompassed by a proposed
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`order of appointment mandated by Rule 53(b) would have to be complied with, including
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`conducting a hearing regarding the process for selecting a special master, specifying the special
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`master’s duties, and dealing with all of the other requirements of the Rule. And, regardless of
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`whatever report and recommendation the special master makes, that recommendation would be
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`subject to a further hearing by the Court and be subject to de novo review. In short, the proposal
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`makes no sense.
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`As far as the possibility of ADR, we wish to note that Settlement Class Counsel engaged
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`in multiple discussions with Crowell in an effort to resolve the issue raised by the instant motion,
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`all to no avail. Settlement Class Counsel remain willing to speak further to Crowell about this
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`matter, but see no realistic prospect of a resolution given Crowell’s and EFM’s “steadfast” position
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`that they and its customers, are both entitled to be paid class settlement funds with no obligation
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`by EFM to pass on any proceeds it receives to the end-payor class members. While Settlement
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`Class Counsel believe the appointment of a special master would be inappropriate under the terms
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`of Rule 53, and that the instant motion that was the subject of the hearing is ripe for decision, we
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`would be pleased to engage in whatever further discussions that the Court believes to be
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`appropriate.
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`Dated: September 19, 2022
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`Respectfully submitted,
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`SUSMAN GODFREY L.L.P.
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`/s/ Chanler A. Langham
`Marc M. Seltzer
`Steven G. Sklaver
`1900 Avenue of the Stars, Suite 1400
`Los Angeles, California 90067-6029
`Telephone: (310) 789-3100
`mseltzer@susmangodfrey.com
`ssklaver@susmangodfrey.com
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`Chanler A. Langham
`SUSMAN GODFREY LLP
`1000 Louisiana Street, 5100
`Houston, Texas 77002
`Telephone: (713) 651-9366
`clangham@susmangodfrey.com
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`Case 2:12-md-02311-SFC-RSW ECF No. 2232, PageID.40134 Filed 09/19/22 Page 5 of 5
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`Floyd G. Short
`Jenna G. Farleigh
`SUSMAN GODFREY LLP
`1201 Third Avenue, Suite 3800
`Seattle, Washington 98101
`Telephone: (206) 516-3880
`fshort@susmangodfrey.com
`jfarleigh@susmangodfrey.com
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`Adam J. Zapala
`Elizabeth Castillo
`COTCHETT, PITRE & McCARTHY, LLP
`San Francisco Airport Office Center
`840 Malcolm Road, Suite 200
`Burlingame, California 94010
`Telephone: (650) 697-6000
`azapala@cpmlegal.com
`ecastillo@cpmlegal.com
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`William V. Reiss
`ROBINS KAPLAN LLP
`399 Park Avenue, Suite 3600
`New York, New York 10022
`Telephone: (212) 980-7400
`wreiss@ robinskaplan.com
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`Attorneys for End-Payor Plaintiffs-
`Appellees
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`CERTIFICATE OF SERVICE
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`I hereby certify that on September 19, 2022, a true and correct copy of the foregoing
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`document was filed with the Court and served on all counsel of records via the Electronic Case
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`Filing (ECF) system
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`/s/ Chanler A. Langham
`Chanler A. Langham
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