2:12-md-02311-MOB-MKM Doc # 1287 Filed 04/11/16 Pg 1 of 10 Pg ID 23012
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`UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
`MICHIGAN SOUTHERN DIVISION
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`IN RE: AUTOMOTIVE PARTS ANTITRUST
`LITIGATION
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`Master File 12-md-02311
`Honorable, Marianne O. Battani
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`IN RE: WIRE HARNESS. . . . . . . . . . . . . . . . . . . . . . . . .
`IN RE: INSTRUMENT PANEL CLUSTERS.. . . . . . . . .
`IN RE: FUEL SENDERS. . . . . . . . . . . . . . . . . . . . . . .
`IN RE: HEATER CONTROL PANELS. . . . . . . . . . . . . .
`IN RE: OCCUPANT SAFETY RESTRAINT
`SYSTEMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`IN RE: ALTERNATORS. . . . . . . . . . . . . . . . . . . . . . . . .
`IN RE: RADIATORS. . . . . . . . . . . . . . . . . . . . . . . . . . . .
`IN RE: STARTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`IN RE: SWITCHES
`IN RE: IGNITION COILS. . . . . . . . . . . . . . . . . . . . . . . . .
`IN RE: MOTOR GENERATORS. . . . . . . . . . . . . . . . . . .
`IN RE: STEERING ANGLE SENSORS.. . . . . . . . . . . . .
`IN RE: HID BALLASTS. . . . . . . . . . . . . . . . . . . . . . . . . .
`IN RE: INVERTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`IN RE: AIR FLOW METERS. . . . . . . . . . . . . . . . . . . . . .
`IN RE: FUEL INJECTION SYSTEMS.. . . . . . . . . . . . . .
`IN RE: AUTOMATIC TRANSMISSION FLUID
`WARMERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`IN RE: VALVE TIMING CONTROL DEVICES.. . . . . .
`IN RE: ELECTRONIC THROTTLE BODIES. . . . . . . . .
`________________________________
`THIS DOCUMENT RELATES TO:
`ALL END-PAYOR ACTIONS
`________________________________
`
`Case No. 2:12-cv-00103-MOB-MKM
`Case No. 2:12-cv-00203-MOB-MKM
`Case No. 2:12-cv-00303-MOB-MKM
`Case No. 2:12-cv-00403-MOB-MKM
`
`Case No.2:12-cv-00603-MOB-MKM
`Case No. 2:13-cv-00703-MOB-MKM
`Case No. 2:13-cv-01003-MOB-MKM
`Case No. 2:13-cv-01103-MOB-MKM
`Case No. 2:13-cv-01303-MOB-MKM
`Case No. 2:13-cv-01403-MOB-MKM
`Case No. 2:13-cv-01503-MOB-MKM
`Case No. 2:13-cv-01603-MOB-MKM
`Case No. 2:13-cv-01703-MOB-MKM
`Case No. 2:13-cv-01803-MOB-MKM
`Case No. 2:13-cv-02003-MOB-MKM
`Case No. 2:13-cv-02203-MOB-MKM
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`Case No. 2:13-cv-02403-MOB-MKM
`Case No. 2:13-cv-02503-MOB-MKM
`Case No. 2:13-cv-02603-MOB-MKM
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`OBJECTIONS, PROOF OF MEMBERSHIP IN CLASS AND NOTICE OF INTENT TO
`APPEAR, BY COUNSEL, AT THE MAY 11, 2016 FAIRNESS HEARING
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`Objectors, Carlene Cross and Albert Graham, Jr., (hereinafter the Cross Objectors), by
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`and through undersigned counsel, hereby: provide the information needed to demonstrate their
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`membership in the settlement class; give Notice of Their Intent to Appear, by counsel, at the
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`Fairness Hearing; object to the proposed settlement; and say:
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`2:12-md-02311-MOB-MKM Doc # 1287 Filed 04/11/16 Pg 2 of 10 Pg ID 23013
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`PROOF OF MEMBERSHIP IN THE SETTLEMENT CLASS
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`As set forth in Exhibits A and B, attached hereto and incorporated herein by reference,
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`the Cross Objectors are members of one or more the settlement sub-classes.
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`NOTICE OF INTENT TO APPEAR
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`The Cross Objectors gives Notice of their intent to appear, by and through undersigned counsel,
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`at the Fairness Hearing before the Honorable, Marianne O. Battani, U.S. District Judge, on May
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`11, 2016 at 3:00PM, at the Theodore Levin United States Courthouse, 231 West Lafayette
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` Boulevard, Detroit, Michigan, Room 272 on May 11, 2016, at 3:00PM for the purpose of
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`cross-examining witnesses and presenting legal arguments addressing their objections. At this
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`time, the Cross Objectors are relying on the documents of record to demonstrate the defective
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`Notice provided to class members, and do not currently intend to offer additional documents into
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`evidence or call witnesses.
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`OBJECTIONS
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`1.
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`The Updated Notice on the proposed settlement website does not meet minimum
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`constitutional due process requirements with regard to providing class members with accurate
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`Notice and an opportunity to be heard.
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`2.
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`The Notice says at paragraph 7, pages 6-7, entitled, “How Do I Know If I May Be
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`Included in the Classes?”, that “Generally, you may be included in one or more Settlements if, at
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`any time from 1998 to 2015, you: (1) bought or leased a new motor vehicle in the U.S. (not for
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`resale), or (2) paid to replace one or more of the new motor vehicle parts listed in Question 5
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`above (not for resale). New motor vehicles include, but are not limited to, automobiles, cars, light
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`2:12-md-02311-MOB-MKM Doc # 1287 Filed 04/11/16 Pg 3 of 10 Pg ID 23014
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`trucks, pickup trucks, crossovers, vans, mini-vans, and sport utility vehicles.” (emphasis added)
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`3.
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`The Notice misinforms indirect purchaser class members, either intentionally or
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`ambiguously, that the class members either had to: (1) have purchased a new motor vehicle,
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`during the class period; or, (2) paid to replace one or more of their new motor vehicle’s parts.
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`4.
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`An exemplar of clear language would’ve been: : Generally, you may be included in one or
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`more Settlements if, at any time from 1998 to 2015, you: (1) bought or leased a new motor
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`vehicle in the U.S. (not for resale), or (2) purchased any of the replacement parts listed in
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`Question 5 above (new and not for resale).
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`5.
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`The Cross Objectors draw the courts attention to the specific language of the various
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`settlement agreements in this matter, set forth below, and note, that none of the settlements
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`include the defective language in the Notice; and none of the settlements referred to the purchase
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`of a new replacement part as a new motor vehicle part..
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`A.
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`Autolive, Inc., Autoliv ASP, Inc., Autoliv B.V & Co. KG, Autoliv Safety Technology,
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`Inc. and Autoliv Japan Ltd. (Together, “Autoliv”) “All persons and entities from
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`January 1, 2003 through the Execution Date who: (1) purchased or leased a new vehicle
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`in the United States for personal use and not for resale which included one or more
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`Occupant Safety Restraint System(s) as a component part, which were manufactured or
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`sold by a Defendant, any current or former parent, subsidiary or, affiliate of a Defendant
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`or any co-conspirator of the Defendants, or (2) indirectly purchased one or more
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`Occupant Safety Restraint System(s) as a replacement part, which were manufactured
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`or sold by a Defendant, any current or former parent, subsidiary or, affiliate of a
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`2:12-md-02311-MOB-MKM Doc # 1287 Filed 04/11/16 Pg 4 of 10 Pg ID 23015
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`Defendant or any co-conspirator of the Defendants...”
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`B.
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`Fujikura, Ltd. and Fujikura Automotive America LLC (together, “Fujikura”) “All
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`persons and entities from January 1, 1999, through the Execution Date who: purchased or
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`leased a new vehicle in the United States not for resale, which included one or more
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`Automotive Wire Harness Systems as a component part, or indirectly purchased one or
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`more Automotive Wire Harness Systems(s) as a stand-alone replacement part, which
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`were manufactured or sold by Fujikura, any current or former subsidiary of Fujikura, or
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`an co-conspirator of Fujikura...”
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`C.
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`Hitachi Automotive Systems, Ltd. (“HIAMS”) “‘Alternators [and all other referenced
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`parts] Settlement Class’ is defined as: All persons and entities from January 1, 2000
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`through the Execution Date of this Agreement between HIAMS and End-Payor Plaintiffs
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`who: indirectly purchased and/or leased one of more Alternators [and all other referenced
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`parts] in the United States not for resale (1) as a component in a new vehicle or (2) as a
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`stand-alone product...”
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`D.
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`Lear Corporation (“Lear”) and Kyungshin-Lear Sales and Engineering, LLC (“KL
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`Sales”)
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`“All persons and entities from January 1, 2000 through the Execution Date who: (1)
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`purchased or leased a new motor vehicle in the United States for personal use and not for
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`resale which included one or more Automotive Wire Harness System(s) as a component
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`part, which were manufactured or sold by a Defendant, any current or former subsidiary
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`of a Defendant, or any co-conspirator of the Defendants, or (2) indirectly purchased one
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`or more Automotive Wire Harness System(s) as a replacement part, which were
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`2:12-md-02311-MOB-MKM Doc # 1287 Filed 04/11/16 Pg 5 of 10 Pg ID 23016
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`manufactured or sold by a Defendant, any current or former subsidiary of a Defendant, or
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`any co-conspirator of the Defendants...”
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`E.
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`Nippon Seiki Co., Ltd., N.S. International, Ltd., and New Sabina Industries, Inc.
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`(collectively, “Nippon Seiki”) “All persons and entities (but excluding Defendants, their
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`parent companies, subsidiaries and affiliates, any coconspirators, federal government
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`entities and instrumentalities of the federal government, states and their subdivisions,
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`agencies and instrumentalities) that during the period from December 2002 up to and
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`including the date that the Court enters and Order granting the Notice Motion, as set forth
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`in Paragraph 16 of this Agreement, purchased or leased, in the United States, for personal
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`use and not for resale, and Instrument Panel Cluster including (I) as a component in a
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`motor vehicle, or (ii) as a stand-alone product.”
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`F.
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`Panasonic Corporation and Panasonic Corporation of North America (collectively,
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`“Panasonic”) “‘Switches [and all other referenced parts] Settlement Class’ is defined as:
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`All persons and entities who, from January 1. 200 through the Execution Date, purchased
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`or leased a new vehicle in the United States not for resale that included one or more
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`Switch9es) as a component part, or indirectly purchased one or more Switch(es) as a
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`replacement part, which were manufactured or sold by a Defendant, any current or former
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`parent, subsidiary, or affiliate of Defendant or any co-conspirator of the Defendants...”
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`G.
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`Sumitomo Electric Industries, Ltd. (“SEI”), Sumitomo Wiring Systems, Ltd.,
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`Sumitomo Electric Wiring Systems, Inc, Sumitomo Wiring Systems (U.S.A) Inc.,
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`(collectively, “Sumitomo”) “‘Wire Harness [and all other referenced parts] Settlement
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`Class’ is defined as: All persons and entities from January 1, 1999, through the Execution
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`2:12-md-02311-MOB-MKM Doc # 1287 Filed 04/11/16 Pg 6 of 10 Pg ID 23017
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`Date who purchased or leased a new vehicle in the United States not for resale, which
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`included one or more Automotive Wire Harness System(s) as a component part, or
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`indirectly purchased one or more Automotive Wire Harness System(s) as a replacement
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`part, which were manufactured or sold by a Defendant, any current or former subsidiary
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`of a Defendant, or any co-conspirators of the Defendants...”
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`H.
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`T.RAD Co., Ltd. And T.RAD North America, Inc. (together, “T.RAD”) “(a) ‘ATF
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`Warmers [and all other referenced parts] Settlement Class’ is defined as: All persons and
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`entities who, from November 1, 2001, through the execution date of this Agreement (the
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`“Execution Date”) purchased or leased a new vehicle in the United States not for resale,
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`which included one or more ATF Warmer(s) [or other referenced part] as a component
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`part, or indirectly purchased one or more ATF Warmer(s) [ or other referenced part] as a
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`replacement part, which were manufactured or sold by a Defendant, any current or
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`former subsidiary of a Defendant, or any co-conspirators of the Defendants...”
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`I.
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`TRW Deutschland Holding GmbH and TRW Automotive Holdings Corp.
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`(collectively, “TRW”) “All persons and entities from January 1, 2003 through the
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`Execution Date who: (1) purchased or leased a new vehicle in the United States for
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`personal and business use not for resale which included one or more Occupant Safety
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`Restraint Systems as a component part, which were manufactured or sold by any
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`Defendant, any current or former subsidiary of a Defendant or any co-conspirator of a
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`Defendant, or (2) indirectly purchased one or more Occupant Safety Systems(s) as a
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`replacement part, which were manufactured or sold by any Defendant, any current or
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`former subsidiary of a Defendant or any co-conspirator of a Defendant...”
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`2:12-md-02311-MOB-MKM Doc # 1287 Filed 04/11/16 Pg 7 of 10 Pg ID 23018
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`J.
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`Yazaki Corporation and Yazaki North America, Incorporated (together, “Yazaki”)
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`For Fuel Senders, Instrument Panel, and Wire Harness: All Persons and entities from
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`January 1, 1999, through the execution date of this Agreement between Yazaki and End-
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`Payor Plaintiffs (the “Execution Date”) who: purchased or leased a new vehicle in the
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`United States not for resale, which included one or more Fuel Senders [or other
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`referenced part] as a component part, or indirectly purchased one or more Fuel Senders as
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`a component part, or indirectly purchased one or more Fuel Senders as a replacement
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`part, which were manufactured or sold by a Defendant, any current or former subsidiary
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`of a Defendant, or any co-conspirators of the Defendants.”
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`6.
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`For the Court to evaluate whether the Proposed Settlement is Fair, Adequate or
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`Reasonable, it is necessary to quantify the net expected value of continued litigation to the class,
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`since a settlement for less than that value would not be adequate. Determining that value require
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`estimating the range of possible outcomes and ascribing a probability to each point on the range.
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`In re General Motors Corp. Engine Interchange Litigation, 594 F.2d 1106, 1132- 133 (7th
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`Cir.1979) Admittedly, a high degree of precision cannot be expected in valuing a litigation,
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`especially regarding the estimation of the probability of particular outcomes. One methodology
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`for estimating fair settlement value is to estimate the range of possible outcomes and assign
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`values to the range. For settlement purposes the lawyer estimates the chance of winning at 50/50
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`and assign a 50% chance of a zero verdict. Then the lawyer estimates a high, medium and low
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`outcome, and assigns a percentage (out of the remaining 50%) to each.
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`7. Respectfully, the Court is reminded that ordinarily, "a defendant is interested only in
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`disposing of the total claim asserted against it . . . the allocation between the class payment and
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`2:12-md-02311-MOB-MKM Doc # 1287 Filed 04/11/16 Pg 8 of 10 Pg ID 23019
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`the attorneys' fees is of little or no interest to the defense . . . ." In re GMC Pick-Up Truck Fuel
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`Tank Prods. Liab. Litig., 55 F.3d 768, at 819-20 (3d Cir. 1995).
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`8. The Proposed Settlement is not Fair, Adequate or Reasonable because the Notice is
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`constitutionally defective in the attorneys fees are too high.
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`9. As Judge Posner stated in Reynolds, V. Beneficial Natl. Bank 288 F.3d 277 (7th Cir.
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`2002) in discussing the judicial duty to protect the members of a class in class action litigation
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`from lawyers for the class who may, in derogation of their professional and fiduciary obligations,
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`place their pecuniary self-interest ahead of that of the class. “This problem, repeatedly remarked
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`by judges and scholars, see, e.g., Culver v. City of Milwaukee, 277 F.3d 908, 910 (7th Cir.
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`2002); Grass v. Household Bank (Illinois), N.A., 176 F.3d 1012, 1013 (7th Cir. 1999); Rand v.
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`Monsanto Co., 926 F.2d 596, 599 (7th Cir. 1991); Dahomey v. John Hancock Mutual Life Ins.
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`Co., 183 F.3d 1, 7 (1st Cir. 1999); John C. Coffee, Jr., "Class Action Accountability: Reconciling
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`Exit, Voice, and Loyalty in Representative Litigation," 100 Calum. L.Rev. 370, -385-93 (2000);
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`David L. Shapiro, "Class Actions: The Class as Party and Client," 73 Notre Dame L.Rev. 913,
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`958-60 and n. 132 (1998), requires district judges to exercise the highest degree of vigilance in
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`scrutinizing proposed settlements of class actions. We and other courts have gone so far as to
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`term the district judge in the settlement phase of a class action suit a fiduciary of the class, who is
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`subject therefore to the high duty of care that the law requires of fiduciaries. Culver v. City of
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`Milwaukee, supra, 277 F.3d at 915; Stewart v. General Motors Corp., 756 F.2d 1285, 1293 (7th
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`Cir. 1985); In re Cendant Corp. Litigation, 264 F.3d 201, 231 (3d Cir. 2001); Grant v. Bethlehem
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`Steel Corp., 823 F.2d 20, 22 (2d Cir. 1987)”
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`10. In this matter, based on the defective Notice, and the anticipated cost of re-noticing the
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`2:12-md-02311-MOB-MKM Doc # 1287 Filed 04/11/16 Pg 9 of 10 Pg ID 23020
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`class, extending the claims date, and resetting a fairness hearing, the requested attorney's fees are
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`excessive and unreasonable.
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`11. The Cross Objectors hereby adopt and incorporate all other meritorious and timely filed
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`objections that are not inconsistent with these objections, as if set forth fully herein.
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`WHEREFORE, the Cross Objectors respectfully request that this Court sustain these
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`Objections and enter such Orders as are necessary and just to adjudicate these Objections
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`including but not limited to an order:
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`A. disapproving the proposed settlement because it is not Fair, Adequate or Reasonable;
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`B. disapproving the proposed settlement because of the improper and constitutionally defective
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`Notice to the class;
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`C. Denying the requested attorney’s fees to Class Counsel;
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`D. requiring class counsel and the settling defendants to craft a new settlement and Notice
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`and then to re-Notice the class; and,
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`E. granting such other relief that this court deems necessary or proper so as to alleviate the
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`inherent unfairness, inadequacy and unreasonableness of the proposed Settlement.
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`Respectfully submitted,
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` /s/ N. Albert Bacharach, Jr.
`N. Albert Bacharach, Jr.
`Florida Bar Number: 209783
`N. ALBERT BACHARACH, JR., P.A.
`Attorney for Objectors Carlene Cross and
`Albert Graham, Jr.
`4128 NW 13th Street
`Gainesville, Florida 32609-1807
`Phone: 378-9859 FAX: (352) 338-1858
` N.A.Bacharach@att.net
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`2:12-md-02311-MOB-MKM Doc # 1287 Filed 04/11/16 Pg 10 of 10 Pg ID 23021
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that on the April 11, 2016, a PDF of the foregoing
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`was filed with the Clerk of the Court and that all parties will be Noticed and served by the
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`Court’s CM/ECF system.
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` /s/ N. Albert Bacharach, Jr.
`N. Albert Bacharach,.
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`10