Case 2:12-md-02311-SFC-RSW ECF No. 2101, PageID.38264 Filed 11/17/20 Page 1 of 7
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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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`Case No. 12-md-2311
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`Sean F. Cox
`United States District Court Judge
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`OPINION AND ORDER DENYING FINANCIAL RECOVERY SERVICES, LLC’S
`MOTION TO INTERVENE
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`Financial Recovery Services, LLC (“FRS”) seeks to intervene in this long-running
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`multidistrict antitrust litigation. FRS—which says it was retained by several auto insurers from the
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`end-payor settlement classes—filed its motion on June 18, 2020, more than a year and a half after
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`the Court granted Round 3 settlement approval. FRS argues that it may intervene as of right and
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`that the insurers should be permitted to further document their claims after the Court’s ruling. By
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`contrast, end-payor plaintiffs (“Plaintiffs”) object and say that the request is both untimely and
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`futile and that permissive intervention would be improper.
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`The parties have briefed the issues and the Court concludes that oral argument is not
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`necessary. Thus, the Court orders that the motion will be decided without a hearing. See E.D. Mich.
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`LR 7.1(f). For the reasons explained below, the Court denies the motion to intervene.
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`I.
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`To recap, the Court approved settlements on June 20, 2016 (Round 1), September 25, 2017
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`(Round 2), and November 8, 2018 (Round 3). Between the final approvals of the Round 2 and
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`Round 3 settlements, the Court issued an opinion regarding automobile insurers in this litigation.
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`See GEICO Corp. v. Autoliv, Inc., 345 F. Supp. 3d 799 (E.D. Mich. 2018). As for FRS, it contacted
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`Case 2:12-md-02311-SFC-RSW ECF No. 2101, PageID.38265 Filed 11/17/20 Page 2 of 7
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`Class Counsel via email on November 14, 2018, seeking a method for submitting documentation
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`of the insureds’ claims. (ECF No. 2060-5.) In response, Class Counsel for Plaintiffs suggested that
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`FRS file claims and then appeal rejections. (ECF No. 2060-2, PageID.37727.) Instead, in January
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`2019, FRS sent a letter to Class Counsel regarding the subrogation arguments that it later explained
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`in its motion to intervene. (ECF No. 2060-6.) At that point, Class Counsel disputed FRS’s
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`contention that FRS had a right to settlement proceeds. (ECF No. 2060-2, PageID.27727.)
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`It took nine more months—until October 2019—for FRS to contact Class Counsel again.
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`(ECF No. 2060-7.) In that email, FRS’s chief legal and financial officer stated: “With the
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`December 31, 2019 filing deadline approaching, we believe that it is now time either to reach an
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`agreement or to seek the Court’s assistance.” (Id.) FRS and Class Counsel agreed on a briefing
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`schedule relative to their dispute. However, rather than filing anything to the docket, FRS sent a
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`letter to chambers via Federal Express. Randi Alarcon, a research analyst at FRS, was told on a
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`phone call with Court staff that FRS may need to intervene. (ECF No. 2060-12.)
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`Class Counsel docketed a response “out of an abundance of caution” on January 16, 2020.
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`(ECF No. 2034, PageID.37518.) But once again, FRS mailed its filing rather than docketing it—
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`this time the reply brief—on January 30, 2020. Many more months passed without FRS actually
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`filing a motion to intervene. It was not until June 18, 2020, which was the eventual claims deadline,
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`that FRS filed the motion at issue. The matter is now fully briefed. The Court also grants the motion
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`for leave to supplement the record (ECF No. 2098) and has considered that material in its opinion.
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`Case 2:12-md-02311-SFC-RSW ECF No. 2101, PageID.38266 Filed 11/17/20 Page 3 of 7
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`II.
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`A.
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`The court must permit intervention to any party that “claims an interest relating to the
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`property or transaction that is the subject of the action, and is so situated that disposing of the
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`action may as a practical matter impair or impede the movant’s ability to protect its interest, unless
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`existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). When a party applies
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`to intervene as of right, the Sixth Circuit has mandated four requirements: “the application was
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`timely filed,” “the applicant possesses a substantial legal interest in the case,” “the applicant’s
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`ability to protect its interest will be impaired without intervention,” and “the existing parties will
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`not adequately represent the applicant's interest.” Blount-Hill v. Zelman, 636 F.3d 278, 283 (6th
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`Cir. 2011).
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`Furthermore, five criteria apply when a district court determines the timeliness of an
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`application to intervene. Namely, the court must consider
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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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`Id. at 284 (quoting Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990)). “No one factor
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`is dispositive, but rather the ‘determination of whether a motion to intervene is timely should be
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`evaluated in the context of all relevant circumstances.’” Id. (quoting Stupak–Thrall v. Glickman,
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`226 F.3d 467, 472–73 (6th Cir. 2000)). 
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`Case 2:12-md-02311-SFC-RSW ECF No. 2101, PageID.38267 Filed 11/17/20 Page 4 of 7
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`B.
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`FRS argues that it meets each of the four elements articulated by the Sixth Circuit. First,
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`they say the insurers have a substantial legal interest in this case “because the Insurers have claims,
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`as subrogees, to funds in the End-Payor Settlements, and FRS has a contractual right to share in
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`the proceeds of those claims.” (ECF No. 2060, PageID.37712.) Next, FRS and the insurers argue
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`that they are not adequately represented by the current plaintiffs and that their ability to protect its
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`interest will be impaired otherwise. (Id. at PageID.37713.) Finally, they say the motion is timely.
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`(Id. at PageID.37717.)
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`Plaintiffs dispute these points. First, they say that FRS does not have a substantial legal
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`interest here; rather, its only interest is “based on its potential contingent fee interest in the recovery
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`of insurance companies based on subrogation rights to the claims of certain unidentified class
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`members if this Court determines that the insurance companies may recover from the EPP
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`Settlements as subrogees.” (ECF No. 2066, PageID.38044.) Second, Plaintiffs say there is no
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`impairment because “FRS has not identified a single automobile insurance policy that provides
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`coverage for overcharges caused by antitrust violations.” (Id. at PageID.38048.) Plaintiffs also
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`argue extensively that the timeliness factors weigh against the motion. (Id. at PageID.38049.)
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`Finally, they assert the Class Counsel adequately represents the class members’ interests. (Id. at
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`PageID.38054.)
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`C.
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`Based on the factors articulated in Blount-Hill and other Sixth Circuit opinions, the Court
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`holds that the motion is untimely and, therefore, does not require the Court to permit intervention
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`Case 2:12-md-02311-SFC-RSW ECF No. 2101, PageID.38268 Filed 11/17/20 Page 5 of 7
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`by FRS. Since FRS is unable to meet its burden of demonstrating timeliness, the Court need not
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`analyze the remaining three factors.1
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`As discussed above, the Sixth Circuit counsels consideration of five factors regarding
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`timeliness. FRS does not explicitly analyze these factors. Rather, its brief argues that the motion’s
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`timeliness is clear based on “the context of all relevant circumstances.” The Court disagrees.
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`FRS argues that this case is analogous to an unpublished out-of-district case: Boettcher v.
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`Loosier, No. 14-2796, 2016 WL 2654384 (W.D. Tenn. May 4, 2016). However, that case does not
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`help FRS. In Boettcher, the party seeking to intervene had “participated in all proceedings thus far,
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`as if it were a party.” See 2016 WL 2654384, at *3. That court acknowledged the “unique posture”
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`of the case, in which a misunderstanding occurred regarding which state’s law controlled. See id.
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`at *5. Indeed, Boettcher noted that because 18 months had passed since the case was filed,
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`“[o]rdinarily, this factor would weigh against intervention.” Id. at *3. As that court cogently
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`explained: “Often, the intervention of a third party late in proceedings would disrupt the schedule
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`or delay the conclusion of the case.” Id. In that case, the court placed “minimal weight” on that
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`factor since intervention “would not delay the resolution of this matter, but would, in fact, allow
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`the case to proceed to trial and to conclude in a timely manner.” Id.
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`1 To be sure, Plaintiffs also make a compelling argument that FRS lacks sufficient interest to
`intervene. FRS devotes less than a page to this key issue in its brief; they argue that subrogees can
`have a sufficient interest to invoke intervention as of right. But while some subrogees may have
`such an interest in some cases, see, e.g., Maricco v. Meco Corp., 316 F. Supp. 2d 524, 527 (E.D.
`Mich. 2004), it is unclear whether these subrogees have such an interest. Plaintiffs’ brief notes that
`FRS has not identified any insurance policy that covers the overcharges at issue here or any insured
`members who submitted such claims to their insurance companies. Nor did GEICO explicitly
`“determine the viability” of the subrogation theory in that context. See 345 F. Supp. 3d at 830–34.
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`Case 2:12-md-02311-SFC-RSW ECF No. 2101, PageID.38269 Filed 11/17/20 Page 6 of 7
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`Here, FRS plainly has not participated in all proceedings as if it were a party. Nor does
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`FRS explain how its intervention at this late stage would allow this case to conclude in a timely
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`matter. According to its brief, “FRS did not believe formal intervention was necessary once it
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`reached agreement with Class Counsel to present (and did present) the dispute to the Court.” (ECF
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`No. 2060, PageID.37718.) But in the next sentence, FRS acknowledges that it “received contrary
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`guidance” when it contacted court chambers. (Id.) As Randi Alarcon recalls, she was advised on
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`that December 2019 phone call “that FRS may need to intervene to perfect the submission of its
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`motion and obtain the relief it sought.” (ECF No. 2060-12, PageID.37922.) FRS recognized that
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`“its letter briefs”—which had been mailed to the Court—“remained undocketed.” (ECF No. 2060,
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`PageID.37718.)
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`Yet, FRS did not file this motion until June 18, 2020. This was the very last day of the
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`deadline to file claims in the first three rounds, which itself had been delayed twice since December
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`31, 2019. The hearing also had been adjourned before finally taking place on September 17, 2020,
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`at which time the Court granted final approval for Round 4 settlements in the end-payor plaintiffs’
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`action. That litigation is completely resolved with the exception of one defendant in one part. FRS
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`did not participate in the final approval hearing or file any objection to the settlements. FRS notes
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`that the litigation has slowed down because of the COVID-19 pandemic. However, there was no
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`stipulation and order entered on the docket regarding the briefing schedule; after the Court
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`informed FRS that a letter sent to chambers was not a proper means by which to proceed, seven
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`months passed before FRS got around to taking action. This situation clearly is not analogous to
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`another case cited by FRS, which applied to a situation in which intervenors “assert[ed] a good-
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`faith position that they could not have moved to intervene any earlier.” Peterson v. Islamic
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`Case 2:12-md-02311-SFC-RSW ECF No. 2101, PageID.38270 Filed 11/17/20 Page 7 of 7
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`Republic of Iran, 290 F.R.D. 54, 59 (S.D.N.Y. 2013). By contrast, FRS does not give any good-
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`faith explanation for its failure to intervene before June 18, 2020.
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`Applying the Blount-Hill factors here clearly indicates that the motion was untimely. For
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`one, the suit has progressed to a very advanced stage after years of litigation. Likewise, the length
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`of time between FRS’ knowledge of its interest in the case and the June 18 motion weighs against
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`intervention; FRS does not point to any unusual circumstances that prevented it from docketing
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`the motion several months earlier. Furthermore, the prejudice to the original parties is clear:
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`intervention would delay the distribution of settlement proceeds. Claims processing has been
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`ongoing, and completion would be delayed if the Court were to allow potentially thousands of
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`claims to be submitted after the deadline.
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`So after evaluating the relevant circumstances, the Court concludes that the application to
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`intervene is untimely.
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`III.
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`For the reasons stated above, FRS’ motion to intervene is untimely. Since FRS does not
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`meet the standard for intervention as of right, the application under Rule 24 is hereby DENIED.
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`IT IS SO ORDERED.
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`Dated: November 17, 2020
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`s/Sean F. Cox
`Sean F. Cox
`United States District Judge
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