Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38443 Filed 03/03/21 Page 1 of 36
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`IN RE AUTOMOTIVE PARTS
`ANTITRUST LITIGATION
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`Master File No. 12-md-02311
`Honorable Sean F. Cox
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`THIS DOCUMENT RELATES TO:
`ALL END-PAYOR ACTIONS
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`END-PAYOR PLAINTIFFS’
`MEMORANDUM IN
`OPPOSITION TO FINANCIAL
`RECOVERY SERVICES,
`LLC’S IMPROPER MOTION
`TO COMPEL ACCEPTANCE
`AND PROCESSING OF
`VEHICLE DATA
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`IN RE AUTOMOTIVE PARTS
`ANTITRUST LITIGATION
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`Master File No. 12-md-02311
`Honorable Sean F. Cox
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`THIS DOCUMENT RELATES TO:
`ALL END-PAYOR ACTIONS
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`END-PAYOR PLAINTIFFS’
`MEMORANDUM IN
`OPPOSITION TO FINANCIAL
`RECOVERY SERVICES,
`LLC’S IMPROPER MOTION
`TO COMPEL ACCEPTANCE
`AND PROCESSING OF
`VEHICLE DATA
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38444 Filed 03/03/21 Page 2 of 36
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`STATEMENT OF ISSUE PRESENTED
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`1. Should non-party FRS be allowed to file untimely vehicle claims
`more than eight months after expiration of the claims-filing
`deadline where the addition of those claims would prejudice the
`class and delay payment and where FRS has not intervened in this
`litigation and is not itself a class member?
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`No.
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38445 Filed 03/03/21 Page 3 of 36
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`TABLE OF MOST CONTROLLING AUTHORITIES
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`Jennings v. Fuller, 659 F. App’x 867 (6th Cir. 2016)
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`Lewis v. Alexander, 987 F.2d 392 (6th Cir. 1993)
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`Med. & Chiropractic Clinic, Inc. v. Oppenheim, 981 F.3d 983 (11th Cir. 2020)
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`ii
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38446 Filed 03/03/21 Page 4 of 36
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`TABLE OF CONTENTS
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`INTRODUCTION ..................................................................................................... 1
`BACKGROUND FACTS .......................................................................................... 6
`ARGUMENT ........................................................................................................... 13
`I.
`FRS’ Motion is Procedurally Improper. .............................................. 13
`A.
`This Court Has No Jurisdiction to Hear this Motion ................ 14
`Even if the Merits Are Considered, FRS Is Still Not Entitled
`to Relief ............................................................................................... 15
`A.
`FRS’ Improperly Attempts to Submit Late Claims .................. 16
`B.
`This Court’s Prior Orders Do Not Allow FRS to Submit
`Late Claims, Particularly Claims Based on a
`Subrogation Theory................................................................... 20
`Estoppel Is Not Warranted Since FRS Has Long Been
`On Notice that Late Claims Would Not Be Accepted
`and that “Placeholder” Claims Could Not Be Used ................. 22
`Class Counsel Has Fulfilled Its Fiduciary Duties ..................... 25
`D.
`III. Allowing FRS to Submit Late Claims Would Delay
`Settlement Distribution and Severely Prejudice the Class .................. 26
`CONCLUSION ........................................................................................................ 27
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`II.
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`C.
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`iii
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38447 Filed 03/03/21 Page 5 of 36
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
`Acuity Ins. Co. v. Higdon’s Sheet Metal & Supply Co., Inc.,
`No. 3:06–CV–162–H, 2007 WL 1034986 (W.D. Ky. Apr. 3, 2007) ................. 22
`GEICO Corp. v. Autoliv, Inc.,
`345 F. Supp. 3d 799 (E.D. Mich. 2018) ............................................................... 6
`In Re: Automotive Parts Antitrust Litigation,
`Master File No. 2:12-md-02311-SFC-RSW, ECF No. 2060 ............................... 1
`Jennings v. Fuller,
`659 F. App’x 867 (6th Cir. 2016) ....................................................................... 14
`Lewis v. Alexander,
`987 F.2d 392 (6th Cir. 1993) .............................................................................. 14
`Med. & Chiropractic Clinic, Inc. v. Oppenheim,
`981 F.3d 983 (11th Cir. 2020) ............................................................................ 25
`Meyer Goldberg, Inc. v. Goldberg,
`717 F.2d 290 (6th Cir. 1983) .............................................................................. 16
`Pioneer Inv. Servs. v. Brunswick Assoc. Ltd.,
`507 U.S. 380 (1993) ............................................................................................ 25
`Rules
`Fed. R. Civ. P. 23 ..................................................................................................... 14
`Other Authorities
`www.autopartsclass.com .................................................................................... 10, 22
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`iv
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38448 Filed 03/03/21 Page 6 of 36
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`INTRODUCTION
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`On June 18, 2020, more than eight months ago, non-party Financial Recovery
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`Services, LLC (“FRS”), on the last day permitted for class members to submit claims
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`to participate in the settlements reached in this exceptionally complex litigation,
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`moved for leave to intervene. The stated purpose for requesting intervention was as
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`follows: First, to obtain a ruling from this Court that automobile insurance
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`companies would have the right to submit claims to participate in those settlements
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`based on the contention that their rights were subrogated to the rights of unidentified
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`class members who were their insureds. ECF No. 2060 at 25.1 Second, to allow FRS
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`on behalf of those insurers to supplement their claims “consistent with the Court’s
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`resolution of subrogation issue.” Id. FRS admitted in its motion that it had not
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`submitted any vehicle-specific subrogation information because it had chosen not to
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`do so to avoid doing that work until it had obtained a ruling in favor of the insurance
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`companies on the subrogation issue. See id. Indeed, as noted below, by the June 18,
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`2020 claims-filing deadline, FRS had submitted direct-purchase (non-subrogation)
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`claims information on behalf of five insurance companies to the claims
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`administrator. Pinkerton Decl. ¶ 24. For another insurance company, it had failed to
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`provide any vehicle information whatsoever. Pinkerton Decl. ¶ 25. For the seventh
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`1 In Re: Automotive Parts Antitrust Litigation, Master File No. 2:12-md-02311-SFC-
`RSW, ECF No. 2060. All references to “ECF No.” that do not denote a particular
`case number are in reference to the main case number.
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`1
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38449 Filed 03/03/21 Page 7 of 36
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`insurance company, it submitted general information for a single vehicle—the same
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`exact vehicle submitted by FRS in conjunction with 147 other purported claimants.
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`Id. The submission of such scant and likely fraudulent “placeholder” information by
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`FRS on behalf of two of the insurance companies did not satisfy the claim
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`submission requirements established by this Court’s orders, such as providing the
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`make, model and year of the specific new vehicles purchased or leased by a class
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`member, the date of purchase or lease, and the place of purchase or residence at the
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`time the vehicle was purchased or leased. FRS also did not submit anything close to
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`that which would be necessary to assess and process a subrogation claim for any
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`claimant, if such claims were even allowed: It did not expressly state that
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`subrogation was the theory under which recovery was based. It did not provide
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`information (e.g., policy information) that would imply that the claim was based on
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`a subrogation theory. And it did not provide any documentation that would support
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`a subrogation claim, such as which insured class member’ vehicles were declared a
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`total loss. See Pinkerton Decl. ¶ 50.
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`Class counsel opposed FRS’ motion to intervene on multiple grounds,
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`including because allowing claims to be submitted on behalf of insurance companies
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`would prejudice the rights of the classes they represent and delay completion of the
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`claims administration process by many months. ECF No. 2066. Class counsel also
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`believed that the motion for leave to intervene should be denied as untimely. Id.
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`2
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38450 Filed 03/03/21 Page 8 of 36
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`Class counsel explained why allowing such claims would prejudice the claims
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`administration process, supported by a detailed declaration from the Court-appointed
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`claims administrator. See ECF No. 2097. In its reply in support of the motion, FRS
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`admitted that class counsel had never agreed that FRS could submit so-called
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`“placeholder claims” on behalf of insurance carriers, which could later be
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`supplemented if the Court were to allow claims based on subrogation rights to be
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`submitted at all. ECF No. 2073 at 9 & n. 6. Instead, FRS argued that its motion for
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`leave to intervene should not be denied on untimeliness grounds because class
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`counsel did not reject its proposal made in its letter of March 9, 2020 to allow FRS
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`to further supplement insurance company claims if it were allowed to submit claims
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`based on subrogation rights. Id. & ECF No. 2060-2 at 5. FRS neglected to mention
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`that class counsel had long since rejected the proposal made by FRS to allow it to
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`submit placeholder claims. ECF No. 2066 at 26. FRS did not argue that class
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`counsel’s lack of response to the March 9, 2020, letter somehow estopped class
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`plaintiffs from opposing intervention or arguing that the proposal to supplement
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`“placeholder claims” should be rejected as untimely.
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`In its order of November 17, 2020, the Court denied FRS’ motion for leave to
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`intervene because it was untimely. ECF No. 2101. That order is now on appeal to
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`the Sixth Circuit. In January of this year, FRS filed a motion before the Sixth Circuit
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`asking the Court to stay the appeal based on the proposition that it would be
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`3
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38451 Filed 03/03/21 Page 9 of 36
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`supplementing claims on behalf of insurers and that, if those claims were
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`subsequently denied by this Court, it would have a second right of appeal from that
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`denial, rendering the current appeal unnecessary. Class counsel opposed the motion
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`and pointed out why the premise of the motion was unsound and that FRS had no
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`right to supplement the claims in question. The Sixth Circuit denied the motion.
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`The instant motion should be denied for several independently sufficient
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`reasons.
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`First, FRS isn’t a party to these proceedings and has no right to file any
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`motions absent being granted intervenor status.
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`Second, this motion seeks the same relief it sought in FRS’ motion to seek to
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`leave to intervene. That motion was denied and is now on appeal. Having lost the
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`motion for leave to intervene, this motion cannot be acted upon, much less granted,
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`unless FRS is granted intervenor status. However, that issue is now on appeal and is
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`subject to the jurisdiction of the Sixth Circuit. For this reason, this Court lacks
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`jurisdiction to revisit its order denying the motion for leave to intervene, which
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`would be a necessary predicate to considering the instant motion.
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`Third, the stated basis of the motion, namely, that class plaintiffs and the
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`claims administrator are estopped from contending that the submission of vehicle-
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`specific data after the June 18, 2020 claim submission deadline would be untimely
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`is not only incorrect as a matter of law and fact, it is based on many of the same
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`4
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38452 Filed 03/03/21 Page 10 of 36
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`arguments made in FRS’ motion for leave to intervene, which this Court denied.
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`Indeed, given the passage of time, it would, if anything, be even more prejudicial to
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`the classes to allow claims to be supplemented than it was when intervention was
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`denied last year.
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`Fourth, so-called “placeholder claims” were not allowed by this Court’s prior
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`orders regarding class notice and claims-administration matters. And, in fact, the
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`submissions made by FRS that it calls “placeholder claims” were wholly insufficient
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`to constitute claims at all. All that was submitted were the names of certain
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`companies (only five of whom were insurance companies), using the Florida address
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`of FRS as each if their places of business. Pinkerton Decl. ¶¶ 24-37. The submissions
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`contained none of the required information about the vehicles upon which the claims
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`were based, with one incredible exception: As to three groups of unrelated
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`companies, the “placeholder claims” are based on the same vehicle. For example, as
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`set for forth in the accompanying declaration from the Brian Pinkerton, the case
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`manager of this litigation for the claims administrator, FRS identified a “1996
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`Mercedes-Benz M-Class” automobile purchased in Florida as providing the sole
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`basis of the claims of 148 different claimants. See Pinkerton Decl. ¶¶ 24, 33. And all
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`of these cars submitted by FRS on behalf of claimants were allegedly purchased on
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`January 1st. Id. ¶ 34. Worse yet, some of the claimants were not even in existence
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`when the supposed purchase took place. Id. ¶ 35. Of course, all of this is impossible
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`5
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38453 Filed 03/03/21 Page 11 of 36
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`and are obvious badges of fraud. The small set of late “supplements” provided by
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`FRS further prove the fraud in the so-called “placeholder” claims since none of the
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`supplements, which appear to list the actual vehicles associated with a particular
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`claimant, contain the Florida-purchased vehicle named in the original submission.
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`Id. ¶ 41. In other words, the “placeholder claims” may and properly should be
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`considered a nullity.
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`For all of these reasons, and as demonstrated below, it is respectfully
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`submitted that the motion should be denied.
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`BACKGROUND FACTS
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`In this long-running multidistrict antitrust litigation, this Court approved
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`settlements on June 20, 2016 (Round 1); September 25, 2017 (Round 2); November
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`8, 2019 (Round 3); and September 23, 2020 (Round 4). ECF No. 2101 at p. 1. On
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`August 30, 2018, this Court issued an order that automobile insurers lacked antitrust
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`standing to recover payments made to insureds for vehicles declared a total loss. See
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`GEICO Corp. v. Autoliv, Inc., 345 F. Supp. 3d 799, 829-30 (E.D. Mich. 2018). With
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`knowledge of this order, FRS—a third-party claims-filing company that says it
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`represents automobile insurers—contacted class counsel in November 2018,
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`contending it could nonetheless recover payments the insurers made to insured
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`settlement class members for vehicles declared a total loss. ECF No. 2101 at 2. FRS
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`does not contend that it or the automobile insurers are settlement class members.
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38454 Filed 03/03/21 Page 12 of 36
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`Instead, FRS contends that the insurers made payments to End-Payor settlement
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`class members for eligible vehicles that were deemed a total loss and that the insurers
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`are entitled to recover under principles of subrogation. See ECF No. 2114; ECF No.
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`2060.
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`During its contact with class counsel on the subrogation issue, FRS also asked
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`if it could submit so-called “placeholder” claims that it would later supplement on
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`behalf of subrogation claimants. See also ECF No. 2060-2 ¶¶ 5-7. EPPs flatly
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`rejected FRS’ request to file these null claims in an effort to preserve the right to
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`augment them later. ECF No. 2060-2 ¶ 6. Class counsel instructed FRS to identify
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`the claimed vehicles and comply with the remaining claims-filing procedures before
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`the claim submission deadline. ECF No. 2060-2 ¶ 6. Instead, in January 2019, FRS
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`sent a letter to EPPs regarding the subrogation arguments. ECF No. 2010 at 2. Class
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`counsel disputed FRS had any right to settlement proceeds based on subrogation. Id.
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`Another nine months passed—until October 17, 2019—before FRS contacted
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`class counsel again. Id. FRS sent class counsel a draft letter that FRS claimed it
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`would send to the Court. ECF No. 2060-7. On November 2, 2019, class counsel
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`responded in writing and unequivocally informed FRS that its insurance company
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`clients “have no rights as class members or as subrogees of class members,” and
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`extensively cited authority supporting that position. ECF No. 2060-8.
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38455 Filed 03/03/21 Page 13 of 36
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`On November 25, 2019, FRS inquired about a briefing schedule “subject of
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`course to the Court’s approval.” ECF No. 2060-9. FRS and class counsel conferred
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`on November 26, 2019, and generally agreed on a briefing schedule regarding the
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`subrogation issue. But FRS never sought approval to submit any brief to the Court.
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`FRS did not seek leave to intervene. And FRS did not even attempt to file its brief
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`on the Court’s docket. Instead, on December 13, 2019, FRS simply sent a letter to
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`the Court “by Federal Express.” ECF No. 2060-4. Even then, FRS did not seek
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`intervention, did not seek permission to submit placeholder claims, and did not
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`request permission to identify claimed vehicles or information substantiating
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`subrogation claims after the claim submission deadline. ECF No. 2060-3.
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`On December 20, 2019, FRS claims it contacted the Court to inquire about
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`the status of its December 13, 2019 letter. ECF No. 2060-12 ¶ 2. FRS further claims
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`that someone in Judge Battani’s chambers advised FRS that, in order to seek a ruling,
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`FRS would need to file a motion seeking leave to intervene to perfect its submission.
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`Id. In apparent disregard of this advice, FRS failed to seek intervention at that time.
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`Class counsel opposed FRS’ letter but, unlike FRS, EPPs filed that opposition with
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`the Court. ECF No. 2034. Ignoring its own prior procedural misstep, FRS then sent
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`a reply letter to the Court on January 30, 2020 “by Federal Express,” and still did
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`not move for intervention. ECF No. 2060, Ex. B. None of FRS’ letters were ever
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`docketed.
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38456 Filed 03/03/21 Page 14 of 36
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`A few months later, on March 9, 2020, FRS sent the claims administrator a
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`letter stating that FRS would not be able to comply with the then-in-effect claims
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`administration deadline (set to expire on March 16, 2020) “because identifying,
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`collecting, and marshaling the Total Loss Vehicle data necessary to update each
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`Auto Insurer’s proof of claim will be a considerable undertaking.” ECF No. 2060-
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`10. It then went on to state, not seek permission, that FRS would “supplement[] each
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`Auto Insurer’s proof of claim” after the claims-filing deadline even though that
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`procedure had previously been rejected by EPPs. Id. EPPs did not respond: FRS had
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`not moved the Court for relief, EPPs had already made their position on so-called
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`“placeholder” claims clear, and FRS’ legal questions could not be answered as part
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`of the claims administration process. Even when the Court extended the claims
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`submission deadline by two months, from March 16, 2020 to June 18, 2020, FRS
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`did nothing to timely supplement its claims. Instead, FRS sat on its hands until days
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`before the final deadline to submit claims to participate in the EPP Settlements—
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`June 18, 2020.
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`On June 15, 2020, FRS’ counsel called class counsel asking the following
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`questions: (1) whether EPPs class counsel would oppose a motion to intervene by
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`FRS; (2) whether EPP class counsel would object to FRS submitting so-called “place
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`holder” claims; and (3) whether there was liaison counsel for the Defendants who
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`FRS could contact about the intervention issue. That same day, class counsel
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`9
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38457 Filed 03/03/21 Page 15 of 36
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`responded by email and confirmed that EPPs did oppose FRS’ proposed motion to
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`intervene, that EPPs objected to the use of so-called “placeholder” claims, and that
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`EPPs were not aware of any liaison counsel. Langham Decl. ¶ 11, Ex. A.
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`The claims-filing deadline, which was set by the Court, expired on June 18,
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`2020. See ECF No. 2097 ¶¶ 11, 19 (noting that “any proof of claim information
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`submitted now would be several months late and properly treated as untimely”). The
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`official claims website was updated that same day to state the following: “The
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`deadline to file a claim has passed. All claims must have been submitted online or
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`postmarked by June 18, 2020.” See www.autopartsclass.com.
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`On the day the claims-filing deadline lapsed, FRS filed a Motion to Intervene
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`for the express purpose of obtaining an order from the Court permitting FRS to
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`submit and recover on claims in this litigation based on subrogation rights, and to
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`allow “Insurers . . . to complete the documentation of their claims” after the now-
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`passed claims-filing deadline. ECF No. 2060 at 19. EPPs opposed that motion. ECF
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`No. 2066. On November 11, 2020, EPPs filed a declaration of the claims
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`administrator in opposition to FRS’ Untimely Motion to Intervene. ECF No. 2097.
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`That declaration noted that “FRS has not submitted any proof of claims information
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`on behalf of any insurance company in support of any subrogation claim.” Id. ¶ 19.
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`In his declaration, the claims administrator reiterated that FRS could not
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`“supplement” any of its information to add new vehicles because “any proof of claim
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38458 Filed 03/03/21 Page 16 of 36
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`information submitted now would be several months late and properly treated as
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`untimely.” Id. Following a hearing, on November 17, 2020, the Court denied FRS’
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`motion to intervene as untimely. ECF No. 2101.
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`Following the adverse decision, FRS appealed the Court’s decision. ECF No.
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`2105. Curiously, shortly after filing its notice of appeal, FRS filed a motion in the
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`Court of Appeals for the Sixth Circuit seeking to hold the appeal in abeyance
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`pending the anticipated denial of its so-called “supplemental” subrogation claims—
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`claims FRS still has not submitted to the claims administrator. Langham Decl. ¶ 20.
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`EPPs opposed that motion and the Sixth Circuit denied the request.
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`During the pendancy of the motions discussed above, at the end of 2020 and
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`into early 2021, FRS attempted to submit thousands of untimely vehicle claims to
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`the claims administrator. Pinkerton Decl. ¶ 38. First, on December 22, 2020, FRS
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`sent the claims administrator a link to an FTP site with claims data for seven non-
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`insurance company claimants. Id. ¶ 39. Second, on January 4, 2021, FRS sent the
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`claims administrator a link to an FTP site with claims data for fourteen non-
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`insurance company claimants. Id. ¶ 40. Although these so-called placeholder
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`registrations had been filed prior to the claims-filing deadline for all twenty-one
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`claimants for whom “supplements” were received, nineteen of those original
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`registrations had claimed a single vehicle (one of the three vehicles claimed for
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`virtually all claimants, which is clearly fraudulent) and two of the original
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38459 Filed 03/03/21 Page 17 of 36
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`registrations failed to provide any vehicle information at all. Pinkerton Decl. ¶ 44.
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`Accordingly, the late-provided vehicle claims dwarfed the timely (and seemingly,
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`fraudulent) ones. See id. Third, on January 7, 2021, FRS sent the claims
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`administrator an email with a “claim addendum” for the insurance company WR
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`Berkley. Id. ¶ 43. But besides receipt of this “addendum,” Epiq had never received
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`any substantive submission for this entity. Id. All of these late submissions attempted
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`to identify previously unidentified vehicles and go well beyond correcting errors or
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`deficiencies. Id. ¶ 45.
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`In response to receipt of some of this late information, a Project Coordinator
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`from Epiq responded to FRS and noted that “we are no longer accepting new data
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`for the settlements” and said that although Epiq would “file the records submitted”
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`“any new data will be considered untimely.” ECF No. 2114-5. On January 8, 2021,
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`counsel for FRS emailed class counsel and claimed (incorrectly) that FRS learned
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`“for the first time on Wednesday, January 6 that ‘any data submitted after the claims
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`deadline will be considered untimely.’” ECF No. 2114-10. Class counsel responded
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`by naming all of the instances in which FRS was put on notice that late claims or so-
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`called “placeholder” claims would not be accepted. Id. Contrary to FRS’ revisionist
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`recitation of the facts, EPP class counsel did not note that FRS could “‘submit
`
`additional [vehicle] information’ if they ‘previously submitted vehicle data and have
`
`some deficiency in the information or documentation that was submitted.’” ECF No.
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`12
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`
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38460 Filed 03/03/21 Page 18 of 36
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`
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`2114 at 18. Instead class counsel said that only deficiencies in vehicle information
`
`for vehicles that were timely identified could be corrected:
`
`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.
`
`ECF No. 2114-10.
`
`Around the same time, EPPs learned that FRS had been sending out
`
`misleading solicitations telling would-be claimants, including insurance companies,
`
`that “[l]ate claims are still being accepted in the Automobile /Automotive Parts Class
`
`Action Settlment.” Langham Decl. ¶ 16, Exs. B & C. That was entirely false and
`
`contrary to all the information the claims administrator had provided FRS. Class
`
`counsel sent a cease and desist letter regarding this issue on January 12, 2021. Id.
`
`That same day, the parties held a meet and confer. Consistent with all of EPPs
`
`prior filings and representations, class counsel once again stated that so-called
`
`“placeholder” claims would not be accepted. Langham Decl. ¶ 19. On February 17,
`
`2021, FRS then proceeded to file this improper motion. ECF No. 2114.
`
`ARGUMENT
`
`I.
`
`FRS’ Motion is Procedurally Improper.
`
`FRS’ motion is already foreclosed by this Court’s previous denial of its motion
`
`13
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`
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`to intervene.2
`
`In addition, to the degree FRS is seeking permission to file late claims on
`
`behalf of non-insurance clients, this motion is likewise an improper vehicle for that
`
`request. FRS has never before sought this type of relief and has never attempted to
`
`intervene on that basis. Once again, intervention is the appropriate mechanism
`
`through which a non-party can attempt to seek such relief. FRS has failed to pursue
`
`that avenue and any attempt to do so now would be untimely.
`
`A. This Court Has No Jurisdiction to Hear this Motion
`
`Worse yet, this Court has no jurisdiction to even entertain FRS’ motion. “As
`
`a general rule, the district court loses jurisdiction over an action once a party files a
`
`notice of appeal, and jurisdiction transfers to the appellate court.” Lewis v.
`
`Alexander, 987 F.2d 392, 394 (6th Cir. 1993); see also Jennings v. Fuller, 659 F.
`
`App’x 867, 868 (6th Cir. 2016). Here, FRS filed its notice of appeal on the denial
`
`of its motion to intervene on December 16, 2020. ECF No. 2105. At that point,
`
`jurisdiction over FRS’ request to intervene in order to compel the claims
`
`
`2 To the extent FRS is relying on the fact that this is a class action, such an argument
`similarly fails. As an initial matter, it is undisputed that FRS, and the alleged
`subrogation insurers it represents, are not settlement class members. Moreover,
`while Rule 23 permits class members to object to the fairness and reasonableness of
`a proposed settlement, it does not otherwise grant putative class members wide-
`ranging party rights to file motions and take other actions before the district court.
`See Fed. R. Civ. P. 23 (permitting objecting class members only the right to object
`to a proposed settlement).
`
`14
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`
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`
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`administrator to accept FRS’ late-filed claims transferred to the Sixth Circuit.
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`Accordingly, this Court cannot now entertain non-party FRS’ improper motion
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`without invading the jurisdiction of the Court of Appeals.
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`II. Even if the Merits Are Considered, FRS Is Still Not Entitled to Relief
`
`Even if this Court could consider FRS’ improper motion, FRS is still not
`
`entitled to relief. By way of its motion, FRS seeks an order from the Court that would
`
`direct the claims administrator to accept belated “[new] vehicle data” from FRS, at
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`least on behalf of companies for whom FRS identified the claimant name prior to
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`June 18, 2020.3 ECF No. 2114 at 18. Creatively recasting the past, FRS argues that—
`
`despite the consistent position taken by the claims administrator and class counsel
`
`over years of litigating this class action—the Court should force the claims
`
`administrator to accept these late claims because FRS ignored the ample notice
`
`informing it that such late claims and “placeholder” claims would not be accepted.
`
`See id. at 10-15. FRS’ argument boils down to an untrue and unsubstantiated
`
`accusation that class counsel breached some sort of fiduciary duty owed to non-class
`
`member FRS by failing to futilely repeat that FRS’ late claim information for wholly
`
`new vehicles would not be accepted. Not only is no fiduciary duty owed to FRS but
`
`even assuming arguendo one was, class counsel in no way breached any duty, and
`
`
`3 Notably, this request extends even beyond FRS’ request for relief in its motion to
`intervene, which appeared to be limited to a request to consider late-filed
`information relating only to subrogation claims.
`
`15
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`
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38463 Filed 03/03/21 Page 21 of 36
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`
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`estoppel is not warranted. Meyer Goldberg, Inc. v. Goldberg, 717 F.2d 290, 293 (6th
`
`Cir. 1983) (noting that FRS bears the burden of proving inadequate representation
`
`by class counsel).
`
`A.
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`FRS’ Improperly Attempts to Submit Late Claims
`
`At the outset, it is important to acknowledge that FRS’ argument is based
`
`entirely on chicanery. In an attempt to dodge a determination that FRS’ late
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`submissions amount to late claims, FRS contends that it merely wishes to
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`“supplement[] vehicle data . . . in support of timely filed claim forms.” ECF No.
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`2114 at ii. This is blatantly false.
`
`What FRS is really seeking to do is to sneak in thousands of new vehicle
`
`claims under the cloak of timely filed “claim forms.” But FRS overlooks that each
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`claim form it seeks to “supplement” is invalid as not complying with the Court’s
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`orders and thus are not “claims” themselves. As a result, there is no “claim” to
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`“supplement.” And the “supplementation” FRS seeks, is really a dump of entirely
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`late claims. Pinkerton Decl. ¶¶ 31, 34, 36. The data demonstrates the reality.
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`First, FRS filed claim forms on behalf of only seven insurance companies
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`prior to the deadline. Pinkerton Decl. ¶ 24. Five claims submitted for insurance
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`companies identified purchases or leases of vehicles made by the insurance
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`companies for their own account; nothing indicated that the claims information
`
`contained any assertion of subrogation rights, which is the basis for the claims FRS
`
`16
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`
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`Case 2:12-md-02311-SFC-RSW ECF No. 2120, PageID.38464 Filed 03/03/21 Page 22 of 36
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`
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`now seeks to make. Id. ¶ 24; see also ECF No. 2114 (noting that FRS seeks to file
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`claims on behalf of insurance companies “at least in part, on the basis of equitable
`
`subrogation”). FRS still has not attempted to provide any subrogation claims to the
`
`claims administrator and any purported “supplementation” for subrogation claims
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`have no connection whatsoever to vehicle previously identified as purchases made
`
`by insurance companies for their own account. See Pinkerton Decl. ¶ 24.
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` In addition, it remains the case that, even if submitted and deemed timely, the
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`subrogation claims would still be invalid. FRS did not claim that the insurance
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`companies qualify as class members in their capacity as insurers or that any class
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`definition included insurance companies that made insurance payments to class
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`members for total loss vehicles. Irrespective of the claims’ untimeliness, the claims
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`themselves wou
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