Case 2:12-md-02311-SFC-RSW ECF No. 2114-2, PageID.38334 Filed 02/17/21 Page 1 of 21
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`EXHIBIT 1
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`Case 2:12-md-02311-SFC-RSW ECF No. 2114-2, PageID.38335 Filed 02/17/21 Page 2 of 21
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`IN RE: AUTOMOTIVE PARTS
` Master File No. 12-md-02311
`ANTITRUST LITIGATION
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`THIS DOCUMENT RELATES TO:
`ALL END-PAYOR ACTIONS
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`Hon. Sean F. Cox
`Mag. Judge R. Steven Whalen
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`DECLARATION OF JEFFREY N. LEIBELL IN SUPPORT OF
`FINANCIAL RECOVERY SERVICES, LLC’S EMERGENCY MOTION
`TO COMPEL ACCEPTANCE AND PROCESSING OF VEHICLE DATA
`I, Jeffrey N. Leibell, declare:
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`1.
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`I am Chief Legal and Financial Officer of Financial Recovery Services,
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`LLC d/b/a Financial Recovery Strategies (“FRS”). I previously submitted two
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`1 I submit this declaration in
`declarations in support of FRS’s motion to intervene.0F
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`support of FRS’s Emergency Motion to Compel Acceptance and Processing of
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`Vehicle Data. This declaration is based on my personal knowledge and that of FRS
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`1 Declaration of Jeffrey N. Leibell, No. 2:12-md-02311, PageID.37726-919,
`ECF No. 2060-2 (“Leibell Decl.”); Reply Declaration of Jeffrey N. Leibell,
`No. 2:12-md-02311, PageID.38083-88, ECF No. 2073-1 (“Leibell Reply Decl.”).
`All terms with initial capitalization that are not defined in this declaration have the
`same meanings as those set forth in the Memorandum of Law in Support of Financial
`Recovery Services, LLC’s Motion to Intervene, No. 2:12-md-02311, PageID.37697-
`721, ECF No. 2060.
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`personnel acting under my supervision, as well as my extensive experience with
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`class action settlements and their distribution.
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`RELEVANT EXPERIENCE
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`2.
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`I joined FRS in June 2014 with more than 35 years of experience
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`litigating class and other actions, providing expert legal advice concerning class
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`action settlements and their administration and distribution, managing corporate risk
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`and compliance, and auditing companies of all sizes. I am responsible for handling
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`all of FRS’s legal matters, including, when necessary, challenging the adverse
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`treatment of proofs of claim that, on behalf of its clients, FRS submits to settlement
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`administrators like Epiq Class Action & Claims Solutions (“Epiq”), the Court-
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`appointed Settlement Administrator for the End-Payor Settlements.
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`3.
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`Before joining FRS, I spent more than six years at the Garden City
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`Group, Inc. (“GCG”) as its Vice President of Class Action Services. When I left
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`GCG at the end of 2013, GCG was one of the nation’s leading claims administrators,
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`having been retained by defense and plaintiff counsel alike, as well as by federal,
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`state and municipal government agencies, to design, implement and oversee notice
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`and claims administration programs for class actions settlements, including some of
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`the largest and most complex class action settlements on record, that collectively
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`involved tens of billions of dollars and tens of millions of class members. GCG was
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`2
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`appointed as the Settlement Administrator for the End-Payor Actions in this MDL;
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`GCG was subsequently acquired by Epiq.
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`4.
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`As GCG’s Vice President of Class Action Services, and as relevant
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`here, I:
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`a.
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`regularly provided to its executives and class counsel advice on
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`complex class action settlement, allocation and distribution legal issues;
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`b.
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`developed and presented to lawyers across the U.S. continuing
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`legal education programs concerning class action settlements and their
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`administration and distribution;
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`c.
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`supervised and developed protocols and procedures for GCG’s
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`“Attorney Team,” a group of approximately 125 lawyers who, in connection
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`with GCG’s retention by Kenneth Feinberg to administer the $20 billion Gulf
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`Coast Claims Facility, addressed all legal representation and related issues for
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`over 350,000 putative claimants;
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`d.
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`successfully defended GCG’s determinations concerning
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`thousands of proofs of claim before courts in the U.S. and Canada; and
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`e.
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`managed GCG’s risk and compliance matters.
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`5.
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`Prior to joining GCG, I spent 13 years at Bernstein Litowitz Berger &
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`Grossmann, LLP, one of the nation’s preeminent class action law firms, where I
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`prosecuted complex class and other actions and became nationally recognized as a
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`3
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`leading authority on class action settlement‐ and distribution‐related legal issues.1F
`2
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`For example, I:
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`a.
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`was the partner responsible for negotiating, documenting,
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`administering and developing the allocation plans for over $16.4 billion of
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`class action settlements, including five of the ten largest securities class action
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`settlements in U.S. history to that time;
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`b. managed the pre-distribution reviews that independent auditors
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`conducted on the processes and results employed by the claims administrators
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`for major securities settlements to determine claims processing accuracy and
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`adherence to plans of allocation;
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`c.
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`consulted with the SEC concerning its distributions and worked
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`closely with that agency in connection with numerous coordinated joint
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`claims administration and distributions; and
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`2 See, e.g., GCG Press Release, “The Garden City Group Names Jeffrey N.
`Leibell Vice President, Class Action Services (Apr. 22, 2009) (“A nationally
`recognized expert in class action settlements, Leibell joined GCG in September 2008
`. . . . ‘GCG has been successful at identifying and attracting the nation’s best minds
`and litigators in class actions. The experience Jeff brings as an acknowledged leader
`in class actions will enhance the level of service provided to our clients. We
`recognize his abilities and expertise and are proud to add him to our team’ said Chief
`Executive Officer David Isaac. . . . [And according to Neil Zola, GCG’s President,]
`‘Jeff possesses the expertise and experience that distinguishes our organization and
`enables us to deliver exceptional quality, particularly in the most complex cases.’”);
`see also https://www.linkedin.com/in/jeffrey-leibell/.
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`4
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`d.
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`worked with damages experts to develop highly complex plans
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`of allocation, including, as described above, in settlements that have involved
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`multiple securities with different federal securities claims against different
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`settling defendants for varying claims periods.
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`6.
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`I received my law degree from Columbia Law School, where I was a
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`Harlan Fiske Stone Scholar and the Senior Notes Editor of the Columbia Business
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`Law Review.
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`BACKGROUND
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`7.
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`On December 13, 2019, after reaching an impasse with Class Counsel
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`concerning the rights of Insurers to subrogate to their clients’ rights to participate in
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`the End-Payor Settlements, FRS sought a judicial confirmation of its Insurer clients’
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`3 Both Class Counsel and the Court were on notice of those subrogation rights
`rights.2F
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`as early as 2016, when GEICO opted out of the End-Payor Settlements to pursue
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`claims that were, in substance, based on principles of subrogation. Notwithstanding
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`the events surrounding GEICO’s opt outs, each notice disseminated to the End-Payor
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`Settlement classes was silent as to the legal rights of subrogees and their potential
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`impact on subrogors.
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`3 See Leibell Decl. ¶¶ 7-8 & Ex. A.
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`5
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`8.
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`GEICO submitted its request for exclusion from the Round 1 End-
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`4 which opt out was not challenged by any party
`Payor Settlements on April 11, 2016,3F
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`and was approved by the Court.4F
`5 GEICO’s opt-out request described that GEICO
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`suffered significant damages as a result of, among other things, reimbursing insureds
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`6 GEICO’s opt-out
`and claimants for the full value of their Total Loss Vehicles.5F
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`complaint, which was filed on September 2, 2016, asserted subrogation-based
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`7
`claims against the Round 1 defendants for Total Loss Vehicles.6F
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`4 See 2:16-cv-13189, Compl., PageID.53, ECF No. 1 ¶ 183.
`5 See, e.g., GEICO Corp. v. Autoliv, Inc., 345 F. Supp. 3d 799, 808 (E.D. Mich.
`2018) (Battani, J.); 2:12-cv-00603, EPPs’ Mot. to Amend Op. & Order Granting
`Final Approval of Class Action Settlements, PageID.5231, ECF No. 150 (requesting
`that the Court amend its opinion and order to reflect that there were opt outs,
`including GEICO); Final J. Approving Settlement Agreement between End-Payor
`Pls. and AutoLiv and Entering Dismissal with Prejudice as to Autoliv, PageID.5299,
`ECF No. 158 ¶ 12 & PageID.5301, Ex. A (including GEICO as an approved opt out).
`6 See, e.g., 2:12-cv-00403, GEICO Putative Opt Out Letter, July 11, 2018,
`PageID.9752, ECF No. 266-2 (Round 3).
`7 See, e.g., 2:16-cv-13189, Compl., PageID.6-8, ECF No. 1 ¶ 8 (“GEICO paid
`and reimbursed its insured . . . for artificially inflated prices for Auto Parts . . . .”);
`id. ¶ 190 (“GEICO has been injured . . . because it paid—either directly or through
`reimbursement to its insureds or claimants—inflated, supra-competitive price for
`Auto Parts and for vehicles declared a total loss.”); GEICO, 345 F. Supp. 3d at 830-
`34 (“As explained by the Sixth Circuit, the doctrine of equitable subrogation, ‘as
`applied in the insurance context, allows an insurer to sue a third party for injuries
`that the third party caused to the insured, when the insurer compensated the insured
`for those injuries.’”) (quoting National Surety Corp. v. Hartford Cas. Ins. Co., 493
`F.3d 752, 756 (6th Cir. 2007)).
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`6
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`9.
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`GEICO thus advised Class Counsel and the Court that, for GEICO to
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`pursue its own claims based on indemnification payments for Total Loss Vehicles,
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`GEICO first had to opt out of the Round 1 End-Payor Settlement classes.7F
`8 Although
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`GEICO chose to opt out, it was just one of at least hundreds of automobile insurers
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`in the United States. Accordingly, GEICO’s opt out highlighted a substantial
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`likelihood that many such insurers, including FRS’s Insurer clients, had not opted
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`out because they believed that they could recover from the End-Payor Settlements
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`and preferred recovery via those Settlements to pursuing their own litigation.
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`10. Nevertheless, Class Counsel neglected to address the subrogation issue
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`when crafting the settlement class definitions. Given how Class Counsel and the
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`Court treated GEICO’s opt out, Class Counsel could have modified the notices
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`disseminated to the End-Payor Settlement classes to make clear that auto insurers
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`may recover for their indemnification of Total Loss Vehicles, as class counsel have
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`9 Alternatively, Class
`done in other settlements that involved indemnity payments.8F
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`8 See, e.g., 2:12-cv-00603, Final J. Approving Settlement Agreement between
`End-Payor Pls. and AutoLiv and Entering Dismissal with Prejudice as to Autoliv,
`PageID.5298, ECF 158 ¶ 7.
`9 See, e.g., In re Zurn Pex Plumb. Prods. Liab. Litig., No. 08-md-1958, 2012
`WL 5055810, at *3 (D. Minn. Oct. 18, 2012) (“Insurance carriers are members of
`the Settlement Class . . . if they paid insurance claims . . . .”); Klug v. Watts Regulator
`Co., 8:15-cv-00061, 2016 WL 7156480, at *1-2, *5 (D. Neb. Dec. 07, 2016) (“notice
`plan . . . apprise[d] . . . subrogated insurers of the pendency of the Action”; proof of
`claim sent to insurers).
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`7
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`Counsel either could have sought an order to modify the settlement class definitions
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`to exclude insurers expressly,9F
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`10 or, at the least, could have included an appropriate
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`disclosure in settlement notices so that automobile insurers and all other Settlement
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`Class members would know whether they were included or excluded from the End-
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`11 Because Class Counsel chose neither option, and instead
`Payor Settlement classes.10F
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`said nothing about subrogation, Insurers were unable to determine conclusively from
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`the class definitions alone whether, by standing in the shoes of their End-Payor
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`Settlement class member insureds, they were de facto members of the End-Payor
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`Settlement classes. Accordingly, Insurers required a judicial determination to
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`resolve the matter.
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`11. When Class Counsel suggested that the resolution of the subrogation
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`issue should occur only after the Insurers submitted data for Total Loss Vehicles and
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`10 Based on my experience, such a modification likely would have been
`strenuously opposed by the Round 1 defendants, which collectively paid
`approximately $225 million to settle the claims that the EPPs had asserted against
`them, and those defendants likely would have sought to renegotiate the Round 1
`settlements. That is, the Round 1 defendants paid what they did at least in part
`because they were getting complete peace with respect to these alleged overcharges.
`And expressly excluding subrogated insurers from the settlement classes likely
`would have reduced the amounts that the remaining defendants were willing to pay
`to settle with the End-Payors.
`11 See, e.g., Roberts v. Electrolux Home Prods., Inc., Master File
`No. SACV12-1644, 2014 WL 4568632, at *13 (C.D. Cal. Sept. 11, 2014)
`(“Excluded from the Settlement Class are . . . (c) subrogees or entities claiming to
`be subrogated to the rights of Dryer purchasers, owners, or a Settlement Class
`Members”).
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`8
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`those proofs of claim were rejected, I advised them of the impracticality and burden
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`on Insurers and Epiq of Insurers collecting and submitting data for hundreds of
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`thousands of Total Loss Vehicles without first having a judicial resolution of the
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`12 To do so would have taken an enormous amount of
`threshold subrogation issue.11F
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`time and required the expenditure of substantial sums both by the Insurers and by
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`Epiq.12F
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`13 Class Counsel agreed with the procedure and timing that FRS proposed to
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`14 And although Class Counsel opposed FRS’s
`obtain that judicial determination.13F
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`position on subrogation, they did not, in their opposition to the relief that FRS sought
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`in its December 13, 2019 letter to the Court, argue that FRS first needed to intervene
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`as a party to obtain the relief it sought.14F
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`15
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`12. When FRS’s letter brief did not appear on the docket for the MDL, I
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`asked my colleague, Randi Alarcon, to contact Judge Battani’s Chambers to inquire
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`12 See Leibell Decl. ¶¶ 6-7.
`13 In the wake of the Court’s denial of FRS’s motion to intervene, the appeal
`of which is pending, FRS and Insurers have begun collecting the relevant vehicle
`data without such a resolution. Given the enormity of the task, FRS has consulted
`economic experts to assist. In addition to the time spent by FRS and each Insurer,
`the total out-of-pocket costs incurred to date and those estimated by the economic
`experts to be incurred may exceed $525,000.
`14 See Leibell Decl. ¶¶ 6-7.
`15 See 2:12-md-02311, EPPs’ Resp. to FRS’s Req. Decl. Relief …,
`PageID.37513, ECF No. 2034.
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`9
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`about the status of that letter brief.15F
`16 Ms. Alarcon advised me that Molly Roehrig,
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`the clerk responsible for all MDL matters assigned to Judge Battani, had suggested
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`17 Upon further
`that we may need to intervene to obtain the relief sought in our letter.16F
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`inquiry of Ms. Alarcon, I learned that Ms. Roehrig:
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`a.
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`did not advise Ms. Alarcon that Ms. Roehrig had conferred with
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`the Court on the matter or that she was speaking on behalf of the Court, but
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`instead was expressing her own views;
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`b.
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`advised that Chambers did not file on the docket letters received
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`from non-parties;
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`c.
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`had further advised that FRS would need to file its letter on each
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`of the scores of dockets in the MDL; and
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`d.
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`remarked about the possibility of intervention solely because she
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`did not know how else FRS administratively could accomplish docketing the
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`letter.
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`Given Class Counsel’s agreement to the briefing process and their lack of objection
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`to it based on any asserted need by FRS to intervene, and given the docketing of
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`Class Counsel’s letter brief, I understood Ms. Roehrig’s statements to be her own
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`16 See 2:12-md-02311, Decl. of Randi E. Alarcon, PageID.37921-22, ECF
`No. 260-12.
`17 See id.
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`10
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`“advice” and not a direction from the Court. That advice also was contrary both to
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`my extensive experience in class action settlement matters and to my understanding
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`of the relevant legal principles. I understood Ms. Roehrig’s statements to relate
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`solely to the ministerial step of docketing FRS’s letter, not to any further action FRS
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`was required to take to have the legal issue—as to which Class Counsel also sought
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`guidance in a letter to the Court that had been docketed—heard by the Court.
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`13.
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`In this regard, in the scores of class actions I have prosecuted and
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`settled, class action settlements I have administered, and class action settlements in
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`which I have managed proofs of claim, I have never been advised by a Court that it
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`would disregard correspondence from putative class members absent their
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`intervention. On the contrary, such correspondence is customarily docketed, either
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`on its own or attached to an order directing class counsel to respond to it; I have been
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`on both the sending and receiving ends of such correspondence. To do otherwise—
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`that is, to impose upon putative class members the practical and financial burdens of
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`seeking intervention in order to have their status as class members adjudicated—
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`18
`would erect obstacles contrary to the purpose of class actions.17F
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`14.
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`In addition, I was then, and continue to be, unaware of any legal
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`precedent that requires a putative or actual class member to intervene in a class
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`18 FRS thus far has paid in excess of $250,000 in legal fees attempting to
`obtain a judicial determination whether it and the Insurers may recover from the
`End-Payor Settlements.
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`11
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`action either to object to the adverse treatment of a proof of claim or to have a court
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`determine its class membership. After all, it is fundamental to due process that
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`persons potentially affected by the prosecution and settlement of a class action be
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`able to determine from reading the class definition whether they are class members
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`and, if so, their corresponding benefits, including participating in any settlement, and
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`burdens, including releasing their claims. As a result, FRS, in accordance with the
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`agreement we reached with Class Counsel, submitted its reply letter on January 20,
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`19 Given the foregoing, and that the Court took no official action regarding
`2020.18F
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`FRS’s letters, such as issuing an order directing FRS to seek intervention or striking
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`Class Counsel’s docketed opposition as moot, FRS believed that the Court would
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`rule on FRS’s request for relief in due course.
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`15. On March 9, 2020, without any response from the Court and with the
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`then-current March 16, 2020 claim filing deadline approaching, FRS submitted to
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`Epiq, with a copy sent to Class Counsel, a letter that supplemented each of the claim
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`20 FRS submitted its
`forms that FRS had already timely filed for the Insurers.19F
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`March 9 letter in an abundance of caution. At that time, Class Counsel had agreed
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`to have the equitable subrogation issue resolved by the Court prior to the Insurers
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`being compelled to incur the burden and expense of collecting and marshalling an
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`19 See Leibell Decl. ¶ 8 & Ex. B.
`20 See id. ¶ 10 & Ex. H.
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`12
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`enormous amount of data for Total Loss Vehicles.20F
`21 But out of an abundance of
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`caution, FRS took the additional step of sending to Class Counsel and Epiq a letter
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`that explained (again) why no data for Total Loss Vehicles had been submitted, and
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`advised that FRS would supplement each such claim in a reasonable amount of time
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`22 Although FRS and Class
`after the Court granted the relief that FRS was seeking.21F
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`Counsel had previously agreed that the legal issue should be resolved before vehicle
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`data was submitted, FRS’s March 9 letter was the first time that FRS ever
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`communicated with either Epiq or Class Counsel about submitting after the claim-
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`filing deadline vehicle data for Total Loss Vehicles in support of timely filed
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`claims.22F
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`23 And although FRS expressly requested that it be contacted immediately if
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`Class Counsel or Epiq had any objection to that approach, so that we could bring the
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`matter to the Court’s attention, no response was received either from Epiq or from
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`Class Counsel.
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`16. Had Class Counsel or Epiq harbored any objection to FRS’s March 9
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`proposal, it would have been consistent with their prior course of conduct with FRS
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`to voice that objection promptly. Over the years that FRS has corresponded with
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`Class Counsel and Epiq in these End-Payor Actions, it has been the practice and
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`21 See id. ¶¶ 6-7.
`22 See id.
`23 See Leibell Reply Decl. ¶¶ 3-8.
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`13
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`habit of Class Counsel and Epiq promptly to respond, including when they disagree
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`with FRS. Accordingly, when I solicited objections to my March 9 proposal and
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`received none, I understood that silence to mean that Class Counsel and Epiq had no
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`objections and had acquiesced in our proposed course of action, which was plainly
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`in the interests of putative members of the End-Payor Settlement classes. FRS was
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`not surprised that neither Class Counsel nor Epiq raised any objection to the
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`approach described in the March 9 letter because that approach was consistent both
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`with the Plan of Allocation, which does not address “placeholder” claims, and with
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`our prior agreement with Class Counsel.
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`17.
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`In my experience, so-called “placeholder” claims are a necessary and
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`common occurrence in substantially all class action settlement administrations,
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`especially in those that require large amounts of data from long class periods that
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`began well before the claims filing period, and courts that have addressed them have
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`so found. The example provided by In re Electrical Carbon Products Antitrust
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`Litigation, in which the court rejected class plaintiffs’ argument that timely
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`submitting blank proofs of claim demonstrated bad faith, addresses directly the
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`situation presented here:
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`It is certainly understandable and likely that a claimant would become
`aware of its class membership before it was able to calculate its claims.
`The fact that these claimants attempted to notify the Administrator that
`claims would be forthcoming by filing blank forms, instead of waiting
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`14
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`until all the information was gathered, does not appear to be an act of
`bad faith.23F
`24
`Another holding in a situation similar to the circumstances present here was the
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`district court’s finding in In re Crazy Eddie Securities Litigation, where “the Notice
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`of Claim did not advise claimants of the right to cure and the importance of simply
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`25
`filing a claim within the original deadline, even if the claim were incomplete.”24F
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`Neither Class Counsel nor Epiq responded to FRS’s March 9, 2020 letter before the
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`then-imminent March 16, 2020 claims filing deadline, and no response from either
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`of them was received prior to the new (and last) June 18, 2020 claims filing deadline.
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`Given these facts and each of Class Counsel’s and Epiq’s fiduciary duty to members
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`of the End-Payor Settlement classes, FRS understood and relied on their silence as
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`agreement with the approach set forth in the March 9 letter.
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`SUBMISSION OF SUPPLEMENTAL DATA
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`18. On or about December 22, 2020, FRS submitted supplemental data for
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`seven timely filed claim forms. Epiq did not respond to that submission except to
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`confirm that it had “downloaded the files” FRS had sent. A true and correct copy of
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`this email exchange is attached as Exhibit A.
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`24 622 F. Supp.2d 144, 165 (D.N.J. 2007).
`25 906 F. Supp. 840, 843 (E.D.N.Y. 1995).
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`15
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`19. On January 4, 2021, FRS submitted supplemental data for fourteen
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`timely filed claim forms. For the first time, FRS received a response that appeared
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`to state that the data submitted would not be “accepted”:
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`Please be aware that we are no longer accepting new data for the
`settlements. We will file the records submitted, but please be aware that
`any new data will be considered untimely.
`In response to FRS’s follow-up inquiry, Epiq confirmed that, as expected, there
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`would be a process of notifying claimants who submitted deficient vehicle
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`information to afford them an opportunity to cure those deficiencies, but that “the
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`project is simply not at that point yet.” Epiq further advised that, for claims that
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`“have been submitted timely, any data submitted after the claims deadline will be
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`considered untimely.” Epiq stopped short of saying that such supplemental data
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`would not be processed. A true and correct copy of this email exchange is attached
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`as Exhibit B.
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`20. On February 10, 2021, in response to supplemental data that FRS had
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`submitted the prior day for two timely filed claim forms, Epiq stated that, contrary
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`both to the Court-approved Plan of Allocation and to each judgment entered by the
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`Court in the End-Payor MDL, data submitted after the claims filing deadline would
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`not be processed in support of timely filed claim forms if such data pertained to so-
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`called “placeholder” claims like those that FRS filed for the Insurers:
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`[A]s you know, the claims deadline expired on June 18, 2020. For
`claimants who identified no vehicles or only one placeholder vehicle
`
`16
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2114-2, PageID.38351 Filed 02/17/21 Page 18 of 21
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`before the claims deadline expired, and have identified vehicles for the
`first time after the claims deadline expired, the submission of such
`claims are late and will not be allowed. Claimants who have previously
`submitted vehicle data and have some deficiency in the information or
`documentation that was submitted for those claims, may submit
`additional information to correct the deficiency. However, claimants
`who merely registered their name with no vehicle information, and did
`not identify the requisite vehicle information by the June 18, 2020
`claims deadline have not timely submitted a valid claim, and late‐filed
`claims will not be accepted.
`A true and correct copy of this email exchange is attached as Exhibit C. As was
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`made evident by the court in Electrical Carbon Products, the failure to process data
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`when received is tantamount to a constructive, but extra-judicial, rejection of the
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`corresponding proof of claim:
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`Further, the Administrator processed the claims when supplemented
`with the required information. Therefore, the fact that these claimants
`first filed blank forms is irrelevant—both in calculating their filing date
`and in determining whether they acted in good faith.25F
`26
`21. No basis was provided for Epiq’s or Class Counsel’s authority without
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`the Court’s prior approval:26F
`27 (a) to refuse to process for timely claims data submitted
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`26 622 F. Supp.2d 144, 165 (D.N.J. 2007); see Lyngaas v. Curaden AG, 2019
`WL 6210690, at *19 (E.D. Mich. Nov. 21, 2019) (Goldsmith, J.) (claims
`administrator “shall afford an individual claimant a second chance to fill out an
`incomplete form”); Krakauer v. Dish Network, LLC, 2017 WL 3206324, at *11
`(M.D.N.C. July 27, 2017) (same); Lessard v. City of Allen Park, 2005 WL 3671354,
`at *3 (E.D. Mich. Nov. 28, 2005) (Feikens, J.) (claimants who submitted incomplete
`claim forms were given “an opportunity to cure any defects in their submissions”).
`27 Class Counsel and Epiq previously acknowledged that they do not have the
`authority to act outside of the parameters of the Plan of Allocation. In response to
`FRS’s June 19, 2020 email, Epiq responded as follows:
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`17
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`

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`after the claims filing deadline, especially given the fact that the deficiency process
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`has not begun; or (b) to define a new category of claims called “placeholder” claims
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`and treat them differently than all other timely filed claims, especially given that no
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`28 Epiq also did
`such distinction appears in the Court-approved Plan of Allocation.27F
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`It will be up to the parties to determine whether to accept late claims.
`They will be marked as late, and will be treated in accordance with the
`Court’s direction based on recommendations from the Parties.
`A true and correct copy of this email exchange is attached as Exhibit D. The issue
`whether late claim forms would be accepted is not present here, because all of the
`Insurers’ claim forms were submitted before the claims filing deadline. But Class
`Counsel and Epiq thus acknowledged that they may only make recommendations to
`the Court, which has the final authority whether to accept late claim forms. Class
`Counsel and Epiq likewise surely lack the authority unilaterally to refuse to process
`data submitted after the claims filing deadline for timely filed claim forms.
`28 As was the case in Crazy Eddie, Class Counsel provided no notification to
`members of the End-Payor Settlement classes that all of their vehicle data must be
`submitted prior to the claims filing deadline or their claims would be rejected. See
`906 F. Supp. at 843 (quoted above). Had Class Counsel desired to compel members
`of the End-Payor Settlement classes to submit all of their vehicle data before the
`deadline for filing claim forms, they should have made that requirement clear in the
`several notices and in the proof of claim form that were disseminated to them. But
`they did not. An example of such a notification is provided by the proof of claim
`form that the Illinois Attorney General used in connection with the settlement of the
`parens patriae action it prosecuted and settled on behalf of purchasers of cathode
`ray tubes. The notice states, in response to question 13 “Can I submit an incomplete
`claim form by the deadline and supply further information later?”:
`No. In order to be a valid claim, your claim form must be complete at
`the time of filing. You should not leave any part of the claim form blank
`or include inaccurate information that you intend to update later.
`And the proof of claim form states in highlighted typeface: “Incomplete or
`inaccurate claim forms submitted as placeholders to be completed later will not be
`valid.” True and correct copies of the notice and the proof of claim form are attached
`as Exhibit E and Exhibit F, respectively.
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`18
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`

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`not provide any reasoning for treating so-called “placeholder” claims differently
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`than any other claim that lacks complete vehicle data, given that neither kind of claim
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`form can be used to calculate a claim amount without additional data. A distinction
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`between a “p