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`2:12-md-02311-MOB-MKM DOC # 1306-5 Filed O4/29/16 Pg 1 of 12
`Pg ID 23228
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`EXHIBIT “4”
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`EXHIBIT “4”
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`2:12-md-02311-MOB-MKM DOC # 1306-5 Filed O4/29/16 Pg 1 of 12
`Pg ID 23228
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`EXHIBIT “4”
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`EXHIBIT “4”
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`2:12-md-02311-MOB-MKM Doc # 1306-5 Filed 04/29/16 Pg 2 of 12 Pg ID 23229
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF
`MICHIGAN SOUTHERN DIVISION
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`: Master File No. 12-md-02311
`: Honorable Marianne O. Battani
`
`IN RE: AUTOMOTIVE
`PARTS
`ANTITRUST LITIGATION
`
`
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`: Case No. 2:12-cv-00103-MOB-MKM
`
`IN RE: WIRE HARNESS
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`IN RE: INSTRUMENT PANEL CLUSTERS: Case No. 2:12-cv-00203-MOB-MKN
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`IN RE: FUEL SENDERS
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`IN RE: HEATER CONTROL PANELS
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`: Case No. 2:12-cv-00303-MOB-MKM
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`: Case No. 2:12-cv-00403-MOB-MKM
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`
`
`
`
`
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`
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`IN RE: OCCUPANT SAFETY
`RESTRAINT SYSTEMS
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`: Case No. 2:12-cv-00603-MOB-MKM
`
`
`IN RE: ALTERNATORS
`
`IN RE: RADIATORS
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`IN RE: STARTERS
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`IN RE: SWITCHES
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`IN RE: IGNITION COILS
`
`IN RE: MOTOR GENERATORS
`
`IN RE: STEERING ANGLE SENSORS
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` IN RE: HID BALLASTS
`
`
`IN RE: INVERTERS
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`IN RE: AIR FLOW METERS
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`IN RE: FUEL INJECTION SYSTEMS
`
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`: Case No. 2:13-cv-00703-MOB-MKM
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`: Case No. 2:13-cv-01003-MOB-MKM
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`: Case No. 2:13-cv-01103-MOB-MKM
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`: Case No. 2:13-cv-01303-MOB-MKM
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`: Case No. 2:13-cv-01403-MOB-MKM
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`: Case No. 2:13-cv-01503-MOB-MKM
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`: Case No. 2:13-cv-01603-MOB-MKM
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`: Case No. 2:13-cv-01703-MOB-MKM
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`: Case No. 2:13-cv-01803-MOB-MKM
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`: Case No. 2:13-cv-02003-MOB-MKM
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`: Case No. 2:13-cv-02203-MOB-MKM
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`
`
`1
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`
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`2:12-md-02311-MOB-MKM Doc # 1306-5 Filed 04/29/16 Pg 3 of 12 Pg ID 23230
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`IN RE: AUTOMATIC TRANSMISSION : Case No. 2:13-cv-02403-MOB-MKM
`FLUID WARMERS
`
`IN RE: VALVE TIMING CONTROL : Case No. 2:13-cv-02503-MOB-MKN
`DEVICES
`
` IN RE: ELECTRONIC THROTTLE
` BODIES
`THIS DOCUMENT RELATES TO
` ALL END - PAYOR ACTIONS
`
`
`: Case No. 2:13-cv-02603-MOB-MKM
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`
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`
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`OBJECTION TO PROPOSED CLASS ACTION SETTLEMENT
`
`Class Member, Thomas Saris, hereby objects to the proposed class action
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`settlement in the proceeding known as In Re: Automotive Parts Antitrust Litigation as
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`referenced above and as to the defendants with respect to the unique facts of this objector.
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`My name is Thomas Saris, and I reside at 24 Ames Street, Lynn, Massachusetts
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`01905, telephone no. (781)598-3531. On August 25, 2010, I purchased from
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`Commonwealth Honda in Lawrence, Massachusetts a 2010 Honda CR-V 5DR 4WD
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`EX-L, VIN # JHLRE4H76AC012755, in the amount of $28,525.00, plus fees,
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`maintenance contract, license, etc. for a total financed amount of $19,866.60, plus a
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`$10,000.00 deposit, for a total final cost in the amount of $29,866.60. Attached as
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`Exhibit “A” is my Motor Vehicle Retail Installment Contract and Honda Automobile
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`Sticker as proof of my purchase during the relevant time period. I am a Class Member.
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`I have reviewed the Class Notice and settlements referenced in the Notice and find the
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`settlements to be unfair, unreasonable and inadequate.
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`The Court should deny Final Approval due to the many deficiencies of the
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`
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`2:12-md-02311-MOB-MKM Doc # 1306-5 Filed 04/29/16 Pg 4 of 12 Pg ID 23231
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`Settlements, including:
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`1.
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`The Class definition is not sufficiently definite and is not sufficiently
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`definite so as to be administratively feasible for the court to determine whether a
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`particular individual is a member of the proposed class. See Young v. Nationwide Mut.
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`Ins. Co., 693 F.3d 532 (6th Cir. 2012) (citing 5 James W. Moore et al., Moore’s Federal
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`Practice § 23.21[1] (Matthew Bender 3d ed. 1997); see also John v. Nat’l Sec. Fire &
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`Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007). In the context of these settlements, for a
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`class to be sufficiently defined, the court must be able to resolve the question of whether
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`class members are included or excluded from the class by reference to specifically related
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`objective criteria. Here, the Class is defined as anyone who at any time from 1998 to
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`2015: (1) bought or leased a new motor vehicle in the U.S. (not for resale), or (2) paid to
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`replace one or more of the new motor vehicle parts identified in the settlement
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`agreements (not for resale). The Class definition is overbroad, over inclusive and void
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`of any objective criteria that would put an absent Class Member on notice that his or her
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`rights are before the Court. Because the Class definition is not sufficiently definite, the
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`Court should deny Final Approval.
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`2.
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`The Court should deny Final Approval pursuant to Rule 23(b)(3)(D)
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`because the proposed Settlement create incurable manageability issues, even in the
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`settlement context, that invite mini-trials and fraudulent claims. The function of the Class
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`Action device is to aggregate individual claims for the purpose of judicial and economic
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`efficiency. In order to do so, the Court must be able to ascertain the Class. See e.g. Kent
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`
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`2:12-md-02311-MOB-MKM Doc # 1306-5 Filed 04/29/16 Pg 5 of 12 Pg ID 23232
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`v. SunAmerica Life Ins. Co., 190 F.R.D. 271, 278 (D. Mass. 2000) (ascertainablity is
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`“essential . . . for a court to decide and declare . . . who will share in any recovery”). “It
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`is unfair to absent class members if there is a significant likelihood their recovery
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`will be diluted by fraudulent or inaccurate claims.” Carrera v. Bayer Corp., 727 F.3d
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`300, 310 (3rd Cir. 2013); see also Jenkins v. White Castle Mgmt. Co., No. 12 CV 7273,
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`2015 WL 832409, *3 (N.D. Ill. Feb. 25, 2015) (“[P]roceeding with an ascertainable class
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`safeguards the rights of both the parties and absent class members.”). “A trial court
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`should ensure that class members can be identified without extensive and individualized
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`fact-finding or ‘mini-trials,’ a determination which must be made at the class certification
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`stage.” Carrera at 307 (internal quotation marks omitted) (quoting Marcus v. BMW of
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`North America LLC, 687 F.3d 583, 594). Rule 23(b)(3) also requires a finding that
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`common questions of law or fact predominate over any questions affecting only
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`individual members, and that a class action is superior to other available methods for
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`fairly and efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). The Court
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`cannot reasonably make such a finding.
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`The Court must gather the requisite information to ascertain and manage the
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`proposed class. See e.g. Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015) (affirming
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`class certification where there was a “reliable and administratively feasible” method for
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`assessing class membership). If class members are impossible to identify without
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`extensive and individualized fact-finding or ‘mini-trials,’ then a class action is not
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`appropriate. Marcus v. BMW of North America, LLC, 687 F.3d 583, 593. Here, the
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`Settlement Administrator has no reliable, reasonable and administratively feasible
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`
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`2:12-md-02311-MOB-MKM Doc # 1306-5 Filed 04/29/16 Pg 6 of 12 Pg ID 23233
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`method for verifying and processing claims, and calculating the amount of the recovery
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`for each Claimant.
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`The Parties cannot rely on Claimants to self-identify as valid Class Members. See
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`e.g. Young v. Nationwide; see also Karhu v. Vital Pharmaceuticals, Inc., No. 14-11648,
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`2015 WL 3560722, at *2-4 (11th Cir. June 9, 2015) (unpublished) (holding that plaintiffs
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`cannot satisfy the ascertainability requirement by proposing that class members self-
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`identify, such as with sworn affidavits, without first establishing that self-identification
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`would be “administratively feasible and not otherwise problematic”). The lack of internal
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`data from Defendants means that the only way the Court and the Administrator could
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`confirm class membership is through the use of either claimant affidavits or mini-trials.
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`Here, based on the Class definition in the proposed Settlement Agreements, anyone could
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`claim class membership and take advantage of settlement relief, which harms valid
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`legitimate Class Members. In addition, the Class is overbroad, unrelated, and not
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`cohesive such that tis unwieldy nature results in a huge dilution of persons such as myself
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`and other class members that have legitimate claims. Similarly, some Class Members
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`may want to pursue litigation on their own. Because the proposed Settlements demand
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`individualized procedures to determine class membership, the Class is neither
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`ascertainable nor manageable and mini-trials would be necessary to determine class
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`membership, which would suffocate any reasonably efficient manageability class action
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`mechanism. The inability to determine who is and is not a related and appropriate Class
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`Member also means that individual issues predominate over class issues. Defendants
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`have no internal data to identify class member status and, based on Sixth Circuit
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`
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`2:12-md-02311-MOB-MKM Doc # 1306-5 Filed 04/29/16 Pg 7 of 12 Pg ID 23234
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`precedent, it would be an abuse of discretion to certify the Class and grant final approval.
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`The Court should deny Final Approval because the Court cannot ascertain and manage
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`the proposed Class and because individual issues predominate over Class issues.
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`3.
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`The Class Notice and Class Notice Program fail to meet due process
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`requirements and violate the procedural substantive due process rights of myself and
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`other appropriate class members. It is unfair to subject people to a binding judicial
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`proceeding in which their rights or interests are at stake without providing sufficient
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`procedural and substantive safeguards. Mullane v. Central Hanover Bank & Trust Co.,
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`339 U.S. 306 (1950). “Ascertainability . . . allow[s] potential class members to identify
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`themselves for purposes of opting out of a class.” Carrera v. Bayer Corp., 727 F.3d 300,
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`307 (3d Cir. 2013); see also Cunningham Charter Corp. v. Learjet, Inc., 258 F.R.D. 320,
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`325 (S.D. Ill. 2009) (finding that the ascertainability requirement “is necessary to provide
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`the best notice that is practicable under the circumstances”) (internal quotation marks
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`omitted); Manual for Complex Litigation § 21.222 (4th ed. 2004) (“The membership of
`
`the class must be ascertainable . . . [b]ecause individual class members must receive the
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`best notice practicable and have an opportunity to opt out . . . .”); 1 Rubenstein, supra
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`note 14, § 3:2, at 157 (explaining that some courts impose an ascertainability requirement
`
`to facilitate notice). Since due process also requires the best notice practicable under the
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`circumstances. “Ascertainability is needed for properly enforcing the preclusive effect
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`of a final judgment. The class definition must be clear in its applicability so that it will
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`be clear later on whose rights are merged into the judgment, that is, who gets the benefit
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`of any relief and who gets the burden of any loss.” Xavier v. Philip Morris USA Inc., 787
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`
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`2:12-md-02311-MOB-MKM Doc # 1306-5 Filed 04/29/16 Pg 8 of 12 Pg ID 23235
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`F. Supp. 2d 1075, 1089 (N.D. Cal. 2011). Ascertainability is supposed to clarify claim
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`preclusion not just for the court, but for potential litigants who need to reach their own
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`conclusion about whether individual litigation is possible. The Third Circuit noted that
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`“[i]f a class cannot be ascertained in an economical and ‘administratively feasible’
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`manner[,] significant benefits of a class action are lost.” Carerra, 727 F.3d 300, 307 (3d
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`Cir. 2013). Here, the Notice provided to the Class is not the best notice practicable
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`because the Class is not clearly defined or related and potential legitimate class members
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`cannot read it, determine class membership, and decide whether or not to participate in
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`the settlement. The Notice deficiencies are so egregious that they harm any party who
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`may be entitled participate in the Settlements.
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`The parties have failed to provide any meaningful application of subclasses or
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`means communicated to class member to, for example, identify what specific makes and
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`models that contain Defendants’ products. The Class Notice evidence a complete lack of
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`reasonable cohesion between class members.
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`
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`4.
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`Class Counsel’s request for attorneys’ fees and costs is excessive,
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`unreasonable and unfair. Class counsel has not met its burden of demonstrating that its fee
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`request of 30% of the settlement benefits is reasonable. See Bowling v. Pfizer, Inc., 132
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`F.3d 1147, 1152 (6th Cir. 1998) (“The district court should pay particularly close attention
`
`to counsel’s fee requests, because this money comes from the beneficiaries, not from the
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`defendants.”). If the Court approves the Settlements, which it should not, the Court should
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`limit Class Counsel’s fee award to the value attributed to it as opposed to the Department
`
`of Justice. See, e.g., Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 53-54 (2d Cir.
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`
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`2:12-md-02311-MOB-MKM Doc # 1306-5 Filed 04/29/16 Pg 9 of 12 Pg ID 23236
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`2000) (4% fee awarded, in part because counsel benefitted from work done by federal
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`authorities); see also Quantum Health Resources, Inc., 962 F. Supp. 1254, 1259 (C.D. Cal.
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`1997) (court reduced “benchmark” percentage to 10% due to government’s involvement).
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`Class Counsel owes the Department of Justice significant credit; the Department of Justice
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`engaged in significant pre-complaint investigation efforts, prosecuted defendants for their
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`antitrust violations, and secured convictions.
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`
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`As the Supreme Court cautioned in Amchem, supra, “Rule 23’s requirements must
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`be interpreting in keeping with Article III constraints, and with the Rules Enabling Act,
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`which instructs that rules of procedure ‘shall not abridge, enlarge or modify any substantive
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`right.” Id. At 613. Rather than inquiring into whether residents of non-Illinois Brick-
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`repealer states share one or more issues in common with class members from repealer state
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`(they do), the Court should first determine who has standing to allege claims for damages
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`against the defendants, and then proceed to determine whether the claims of all such
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`persons can be tried, or resolved, together.
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`
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` Indeed, a proper class definition should permit a court to determine who is in the
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`class and who is not. Therefore, a class should be defined in terms of claims, not in broad,
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`general terms, as was done here. The proposed class includes persons who have no claims.
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`Such a class definition guarantees that predominance will be lacking, and that the class is
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`not sufficiently cohesive to warrant adjudication by representation.
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`
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`Persons who reside in states that do not provide a right to relief are not properly
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`included in a class with persons who reside in states that do. Where persons from both
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`categories of states are combined in one class, commonality and predominance are
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`
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`2:12-md-02311-MOB-MKM Doc # 1306-5 Filed 04/29/16 Pg 10 of 12 Pg ID 23237
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`lacking.1
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`
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`If this class is appropriately narrowed to include only those states that permit
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`indirect purchaser recovery in some form, objectors stand to recover at least 60% more
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`from the settlement, closer to their maximum treble damages permitted by their state
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`statutes.
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`
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`The thirty percent (30%) fee award requested by Counsel is excessive and unfair to
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`class members, and is not based upon a lodestar. At thirty percent (30%) of gross recovery,
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`their request also ignores the longstanding principle that fee awards should be reduced
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`when class funds exceed $100 million so that class members can benefit from the
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`economies of scale afforded by class treatment. See In re Synthroid Marketing Litig., 325
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`F.3d 974, 980 (7th Circuit 2003)(“Synthroid II”). This lawsuit is hardly the exception to the
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`rule: class counsel’s burden was significantly lightened thank to the Government’s
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`cooperation; the case was never tried; and the lodestar has not been tested.
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`
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`The case law supports Objector position. In Wal-Mart Stores v. Visa U.S.A., Inc.,
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`(approving district court’s fees award of 6.5%), the world’s largest retailer led a class of
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`approximately five million merchants challenging the practices of Visa U.S.A. and
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`MasterCard Internation as illegal tying arrangements and anti-competitve practices under
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`the Sherman Acti, 15 U.S.C. §§ 1, 2. The plaintiff’s class sought billions of dollars in
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`1 The dilemma now confronting the Court could have been avoided by the prudent use of
`subclasses. The parties should have proposed an injunctive relief subclass that includes all indirect
`purchasers in all 50 states, and a smaller damages subclass that includes the indirect purchasers
`from the 25 repealer states, as was done in the LCD Litigation and all other indirect purchaser
`antitrust cases in the Ninth Circuit.
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`
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`2:12-md-02311-MOB-MKM Doc # 1306-5 Filed 04/29/16 Pg 11 of 12 Pg ID 23238
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`damages. Wal-Mart, 396 F.3d at 101.
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`
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`Applying the same percentage methodology recovery protocol to the present case
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`would lead to a similar result. The chasm between 6.5% and 30% of fund fees is too wide
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`not to bend even the tolerance level affords by the abuse of discretion standard.
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`
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`The point is that Civil Rule 23 promotes not only opportunities for – but efficiency
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`in-class representation. While the size of the present fee request may create an incentive
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`for other litigators to follow, it violates other policy consideration designed to protect
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`absent class members.
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`
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`Courts police fee awards to assure that the mere size of the class action does not
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`create a fee, whether termed windfall, set aside for costs, or not, that is based more on the
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`arbitrary size of the class or the recovery, than on the efforts of counsel. See Goldberger,
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`209 F.3d at 52 (“Obviously, it is not ten times as difficult to prepare, and try or settle a 10
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`million dollar case as it is to try a 1 million dollar case.” (internal quotation omitted)); In
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`re Prudential Ins. Co., 148 F.3d 283, 339 (reducing percentage of fee due to size of fund,
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`explaining “the basis for this inverse relationship is the belief in many instances the
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`increase [in recovery] is merely a factor of the size of the class and has no direct
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`relationship to the efforts of counsel.”). While Objectors readily acknowledge a fee
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`reduction is not mandated in every megafund case, neither is a formulaic application of the
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`Ninth Circuit’s benchmark. See, e.g., Six Mexican Workers v. Arizona Growers, 904 F.2d
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`1301, 1311 (9th Cir. 1990) (district courts may consider unusual circumstances that would
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`“indicate that the percentage recovery would be either too small or too large in light of the
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`hours devoted to the case or other relevant factors.”); see also Vizcaino, 290 F.3d at 1047
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`
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`2:12-md-02311-MOB-MKM Doc # 1306-5 Filed 04/29/16 Pg 12 of 12 Pg ID 23239
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`(fund size may make 25% benchmark rate “inappropriate…starting point for analysis…”)
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`To the extent that class counsel seeks to use its claimed lodestar amount to justify
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`an upward departure from the megafund benchmark of 17%, the Court must perform a
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`detailed review of class counsel’s claimed hours and rates, and not simply accept their
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`asserted lodestar total.
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`CONCLUSION
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`For the foregoing reasons, this Court should DENY approval of the proposed
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`settlement class certification and the proposed settlement.
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