Case 2:12-md-02311-SFC-RSW ECF No. 2126-2, PageID.39112 Filed 03/10/21 Page 1 of 28
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`EXHIBIT 1
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`Case 2:12-md-02311-SFC-RSW ECF No. 2126-2, PageID.39113 Filed 03/10/21 Page 2 of 28
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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 FURTHER 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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`declarations in support of FRS’s motion to intervene in this litigation (the
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`“Intervention Motion”),1 and a declaration in support of FRS’s Emergency Motion
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`to Compel Acceptance and Processing of Vehicle Data (the “Data Motion”).2 I
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`1 Unless otherwise specified, all references herein to docket entries are to the docket in 12-
`md-02311. See Declaration of Jeffrey N. Leibell (June 18, 2020), PageID.37726, ECF No. 2060-
`2 (“Leibell Intervention Mot. Decl.”); Reply Declaration of Jeffrey N. Leibell (July 9, 2020),
`PageID.38083, ECF No. 2073-1. 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 (PageID.37697, ECF No. 2060).
`2 Declaration of Jeffrey N. Leibell Supp. of FRS’s Emergency Mot. to Compel (Feb. 17,
`2021), PageID.38335, ECF No. 2114-2 (“Leibell Data Mot. Decl.”).
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`submit this declaration in further support of FRS’s Data Motion and, more
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`specifically, in response to the Declaration of Brian A. Pinkerton in support of Class
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`Counsel’s Opposition to FRS’s Data Motion (the “Pinkerton Declaration”) and the
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`Declaration of Chanler Langham in Support of Class Counsel’s Opposition to FRS’s
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`Data Motion (the “Langham Declaration”).3 This declaration is based on my
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`personal knowledge and, as described in the declaration that I submitted in support
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`of FRS’s Emergency Motion, the expertise that I gained in my two-and-a-half
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`decades of experience in class action settlements and their distributions.4
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`PLACEHOLDER CLAIMS
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`2.
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`As FRS’s Chief Legal Officer, as class counsel while at Bernstein
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`Litowitz Berger & Grossmann, LLP, and as Vice President of Class Action Services
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`at the Garden City Group, Inc. (“GCG”) (Mr. Pinkerton’s employer and the
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`predecessor to Epiq Class Action & Claims Solutions (“Epiq”)), I personally worked
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`on, or have direct personal knowledge of, hundreds of class action settlements and
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`their administrations. Other than in connection with the administration of a very few
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`settlements in which, unlike in this MDL, putative class members were explicitly
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`advised in the court-approved notices and proofs of claim that all proof of claim data
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`3 Declaration of Brian A. Pinkerton in Supp. of Pls.’ Opp. to FRS’s Mot. to Compel (Mar.
`3, 2021), PageID.38479, ECF No. 2120-1 (“Pinkerton Decl.”); Declaration of Chanler Langham
`in Supp. of Pls.’ Opp. to FRS’s Mot. to Compel (Mar. 3, 2021), PageID.38503, ECF No. 2120-2
`(“Langham Decl.”).
`4 Leibell Data Mot. Decl. ¶¶ 2-6, PageID.38336-38339.
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`must be submitted by the claims filing deadline,5 I know of no administration of a
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`class action settlement that did not treat timely filed placeholder claims the same as
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`timely filed claims that included partially incomplete data. Whether the claim form
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`was blank or partially incomplete, the claimant, as part of the claims administrator’s
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`regular and customary deficiency process, was sent a notice that advised that, to the
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`extent that missing data was not submitted by a deadline set forth in that notice, the
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`claim would be rejected.
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`3.
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`The reasoning for the identical treatment of the two types of claim
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`forms is practical: neither claim may be approved if data required for conducting
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`calculations and determining eligibility is missing. That is, there is no difference,
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`from the claim administrator’s perspective, between a timely filed partially
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`incomplete claim and a timely filed blank one. Once the deadline for data submission
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`lapses, only claim forms that are properly documented are considered.
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`4. Mr. Pinkerton, whose experience is the sole support for Class Counsel’s
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`assertions about placeholder claims, states that he has never personally worked on a
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`class action in which placeholder claims were permitted.6 But Mr. Pinkerton did not
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`5 See, e.g., Leibell Data Mot. Decl. ¶ 21 n.28, PageID.38352 (description of the Illinois
`Attorney General’s parens patriae action on behalf of purchasers of cathode ray tubes).
`6 Pinkerton Decl. ¶ 47, PageID.38495. Notably, Mr. Pinkerton does not state whether the
`issue of placeholder claims was actually presented in any of the settlements that he managed, nor
`does he state that blank claims and partially incomplete claims were treated differently. Also, while
`Class Counsel base their argument on Mr. Pinkerton’s “long career,” the Pinkerton Declaration
`does not describe the length of his career beyond stating that he has “managed dozens of class
`action settlement administrations” and has “served as the Project Manager on this matter since
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`provide information concerning the number of settlements administered either by
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`his employer, Epiq, or by its predecessor, GCG, in which timely placeholder claims
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`were treated differently than timely partially incomplete claims. That is a glaring
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`omission of information peculiarly within Class Counsel’s control, because, as Mr.
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`Pinkerton acknowledges, “Epiq has administered more than 4,500 settlements,”
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`while he has managed personally only a few dozen.7 That omission also is not
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`surprising because it is commonplace for both Epiq and GCG, as well as other claims
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`administrators, to treat placeholder claims the same as partially incomplete claims.
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`Attached as an Appendix hereto is a partial list of settlements in which FRS received
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`deficiency notices in connection with blank claim forms that FRS timely submitted
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`on behalf of its clients; Epiq and GCG administered 14 of those 48 settlements, and
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`Class Counsel here were class counsel in 7 of them. And while Class Counsel purport
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`to quote the Pinkerton Declaration as saying that “placeholder claims are ‘not
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`routinely allowed in the claims administration process,’”8 that statement does not
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`appear in the declaration Mr. Pinkerton signed. Given the information identified in
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`October 2015.” Pinkerton Decl. ¶ 2, PageID.38480; see End-Payor Pls.’ Mem. in Opp. to FRS’s
`Mot. to Compel (Mar. 3, 2021), PageID.38443, ECF No. 2120 (“EPPs’ Mem.”).
`7 Pinkerton Decl. ¶¶ 2-3, PageID.38479-38480.
`8 EPPs’ Mem. at 24, PageID.38471 (purporting to quote Pinkerton Decl. ¶ 47,
`PageID.38495).
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`the Appendix, the omission of that statement from his sworn declaration is
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`understandable.
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`5.
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`Class Counsel do not explain why, when their duty is to include in the
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`recovery as many class members as possible to the maximum amount possible, they
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`would prevent any class member from adding vehicles to their timely filed claims.9
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`Class Counsel’s position here is contrary to the position they took earlier when they
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`sought the Court’s approval to modify the Plan of Allocation to “distribute a
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`minimum payment amount of $100 per claimant to encourage the submission of
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`claims and more broadly distribute the benefits of the settlements,”10 and expand the
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`class definitions “to allow Settlement Class members who purchased or leased a new
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`Vehicle or purchased a replacement Automotive Part in a damages state to be entitled
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`to share in the Net Settlement Funds,”11 which they said would “broaden[]
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`9 See, e.g., Rubio‐Delgado v. Aerotek, Inc., 2015 WL 3623627, at *7 (N.D. Cal. June 10,
`2015) (“[T]he goal [of a class action settlement] should be to distribute settlement payments to as
`many class members as possible.”); Park v. The Thomson Corp., 2008 WL 4684232, at *5
`(S.D.N.Y. Oct. 22, 2008) (“Because the Amended Settlement enables as many Class Members as
`possible to receive a fair share of the settlement amount, the allocation plan is approved, and final
`approval is granted to the Amended Settlement.”); In re Currency Conversion Fee Antitrust Litig.,
`263 F.R.D. 110, 126 (S.D.N.Y. 2009), aff’d sub nom. Priceline.com, Inc. v. Silberman, 405 F.
`App’x 532 (2d Cir. 2010) (same).
`10 End-Payor Pls.’ Unopposed Mot. for Order Approving Proposed Further Revised Plan
`of Allocation at 3, No. 2:15-cv-03303, PageID.7054 (E.D. Mich. Dec. 10, 2019), ECF No. 136.
`11 Id. at 4-5, PageID.7055-7056.
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`eligibility, enabling more Settlement Class members to share in the settlement
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`funds.”12
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`6. Mr. Pinkerton (and Class Counsel) also point to the word “valid” in the
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`Plan of Allocation to argue that timely filed placeholder claims are not permitted.13
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`That position, however, proves too much. It would mean that any claim form that is
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`not complete by the claim-filing deadline—not just a placeholder claim—would not
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`be “valid,” and, therefore, the deficiency process would not be necessary. In other
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`words, under Mr. Pinkerton’s and Class Counsel’s contrived interpretation of the
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`Plan of Allocation, only claim forms containing all requested information filed by
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`the claim-filing deadline would be accepted. That would conflict with relevant legal
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`precedent,14 and Class Counsel’s stated approach for the deficiency process in this
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`MDL, which is to permit claimants to cure deficient claims.15 Whether or not a
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`timely filed claim form, including any timely filed placeholder claim, is “valid”
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`12 Id. at 8, PageID.7059 (citing Fairness Hr’g Tr. at 8:25-10:6 (Aug. 1, 2018), ECF
`No. 1937, PageID.36042-36044 (noting among other things that the low number of claims filed as
`of last summer “just didn’t ring well with me”)).
`13 See Pinkerton Decl. ¶ 14, PageID.38484; EPPs’ Mem. at 21, PageID.38468.
`14 See, e.g., Leibell Data Mot. Decl. ¶ 20 n.26, PageID.38351.
`15 See Langham Decl. ¶ 17, PageID.38509 (“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.”) (emphasis added);
`EPPs’ 2d Am. Unopp. Mot. Auth. Disem. July 2019 Notice to EPP Settlment. Class at 11,
`No. 2:15-cv-03303, PageID.6422 (“The Claim Form, meanwhile, has minor changes for ease of
`use and to allow claims to be filed with incomplete information, with the administrator to follow
`up on incomplete claims as necessary.”) (emphasis added), ECF No. 126.
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`should depend on whether the claim form is complete at the conclusion of the
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`deficiency process.
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`PLACEHOLDER CLAIM DATA
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`7. Mr. Pinkerton (and Class Counsel) also each cast aspersions on the data
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`included in the placeholder claims that FRS submitted.16 Mr. Pinkerton states that
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`he does not have any experience managing placeholder claims, but as anyone who
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`has been involved with placeholder claims will attest, the entire point of a
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`placeholder claim is to preserve the timeliness of the claim and to provide the claims
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`administrator with timely notice that the claimant is making a claim and intends to
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`submit additional information in support of that claim.17 The data, if any, included
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`in a placeholder claim at the time that it is filed is just that—a stand-in for
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`information to be provided later. No one, not the claimant nor the claims
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`administrator, expects any determinations to be made on the basis of that data. If the
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`claim is not timely updated with appropriate data, it either will be withdrawn or
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`rejected. Class Counsel’s and Mr. Pinkerton’s protestations are about the validity of
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`data that never purported to be the basis for recovery and was simply standing in
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`temporarily for data to be provided later.
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`16 See Pinkerton Decl. ¶¶ 30-37, 42, 46, PageID.38489-38492, 38494-38495; EPPs’ Mem.
`at 16-20, PageID.38463-38467.
`17 See, e.g., Leibell Data Mot. Decl. ¶ 17, PageID.38348-38349 (citing In re Electrical
`Carbon Prods. Antitrust Litig., 622 F. Supp. 2d 144, 165 (D.N.J. 2007)).
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`8.
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`Class Counsel also misrepresent the impact of allowing placeholder
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`claims. The opportunity to cure deficiencies, whether for a timely incomplete claim
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`or for a timely blank one, ends on the date set forth in the deficiency notices that
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`every claims administrator sends to affected claimants. Placeholder claims thus do
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`not cause an administration to go on “in perpetuity” or “delay claim payments
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`indefinitely.”18 That red herring is no more accurate than stating that conducting a
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`deficiency process for partially incomplete claims would extend the administration
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`indefinitely. Notably, the Pinkerton Declaration does not include this assertion.
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`INSURER SUPPLEMENTAL VEHICLE DATA
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`9.
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`FRS has consistently advised Class Counsel, Epiq, and the Court that
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`the task of identifying, collecting and marshalling the data necessary to complete
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`Insurers’ claim forms would require a huge expenditure of time and money both for
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`Insurers, which would need to do it, and for Epiq, which would need to process it,
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`and, therefore, that the task should not be undertaken until the Court rules on whether
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`the Insurers are subrogated to their insureds’ claims.19 The burden associated with
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`18 EPPs’ Mem. at 21, PageID.38468. Class Counsel use the contrived term “registration
`claimant” even though this settlement does not involve “registration,” and they use their own
`definition intentionally to refer to placeholder claims as “late.”
`19 See, e.g., Leibell Intervention Mot. Decl. ¶¶ 6, 10, PageID.37727-37728, 37729; Ex. A
`to Leibell Intervention Mot. Decl. at 2 (June 18, 2020), PageID.37735, ECF No. 2060-3; Ex. C to
`Leibell Intervention Mot. Decl. at 1 (June 18, 2020), PageID.37777, ECF No. 2060-5; Ex. E to
`Leibell Intervention Mot. Decl. at 1 (June 18, 2020), PageID.37818, ECF No. 2060-7; Leibell Data
`Mot. Decl. ¶ 17, PageID.38348-38349.
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`this vehicle data has two primary sources. The first is the sheer volume of vehicles
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`that each Insurer indemnified during the relevant 23-year period. FRS and the
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`Insurers must sift through that data to determine which indemnified vehicles are
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`eligible for recovery in the End-Payor Settlements. The second reason, as described
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`immediately below, is that auto insurers do not maintain or retain, in the ordinary
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`course of business, records designed easily to identify all of the information
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`requested by the claim form. Accordingly, FRS and the Insurers must supplement
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`the Insurers’ business records with commercially available data.
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`10. Although an insurance company’s claims department is likely to
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`maintain records of the vehicles deemed a total loss for which indemnity payments
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`were made, that department likely would not also maintain records of where the
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`purchaser/lessee of that vehicle resided at the time that the vehicle was purchased or
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`leased, nor would the claims department usually maintain records of whether that
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`vehicle was purchased or leased or whether it was new or used at the time it was
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`totaled. Such information would be maintained by an insurance company, if at all,
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`in its underwriting department. To the extent that an insurance company does not
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`now have each of those data points reasonably obtainable within its own records—
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`not all of that information is relevant to the business of insuring automobiles—they
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`will need to obtain it from their salvage vendors (each, a “Salvage Vendor”), which
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`track the vehicles that they handle that were deemed a total loss. And if their Salvage
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`Vendors do not have one or more of the data points, such as whether the vehicle was
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`new or used or where the purchaser resided at the time of purchase or lease, an
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`alternative source is needed for that missing information. And all of this data
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`gathering is made more complex by business combinations that each Insurer may
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`have completed during the 23-year relevant period, as well as by changes that, during
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`that timeframe, an Insurer made to its information technology and data storage
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`platforms.
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`11. As a result, FRS, in consultation with Insurers, identified and vetted
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`economic consultants that are well-versed in the automobile industry, and retained
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`one to assist in the following tasks: (a) identifying which data are available from the
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`Insurers’ claim and underwriting departments and from their Salvage Vendors;
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`(b) compiling, combining, and analyzing the data provided from those various
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`internal and external databases; (c) identifying which data was missing and locating
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`alternative sources for the data for each Insurer; (d) vetting those alternative sources
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`based on the information they maintain, and determining how easily and quickly that
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`information may be obtained and the cost of doing so; (e) selecting, based on the
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`foregoing criteria, the best alternative data source; and (f) coordinating with the
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`alternative source to obtain the data and then combine it with the data already
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`provided by each Insurer and its Salvage Vendors. Competently assembling
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`10
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`Insurers’ data for submission is thus a time-consuming, expensive, and cumbersome
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`undertaking that requires the coordinated participation of a variety of personnel.
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`12. Although neither FRS nor Insurers have tracked the time that has been
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`expended to date or have estimated the time likely needed to complete the task, a
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`good faith estimate would place the total number of person-hours in the several
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`hundred. And FRS estimates that the out-of-pocket cost of the economic consultant
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`and the alternative data sources may exceed $525,000. While that expense and the
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`amount of time spent are entirely justified to obtain a recovery based on recognized
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`rights of subrogation, it is quite another matter to incur those costs without any
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`confirmation of those rights.
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`FRS’S SOLICITATIONS
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`13. Mr. Langham’s assertions concerning FRS’s solicitations are
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`incomplete and misleading.20 He ignores the responsive letter that FRS’s counsel,
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`Matthew Huppert, sent to Class Counsel (with a copy to Mr. Langham) on
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`January 19, 2021.21 In that letter (at 2-3), FRS’s counsel corrected the many
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`misstatements Class Counsel had made in support of their accusations. Mr. Huppert,
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`quoting the relevant documents, (1) rebutted Class Counsel’s accusations by
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`explaining that the solicitations disseminated by an FRS independent contractor and
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`20 See Langham Decl. ¶¶ 17-18, PageID.38509.
`21 A true and correct photocopy of that letter is attached hereto as Exhibit J.
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`the information included on FRS’s website were neither misleading nor contrary to
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`any statements from the Court, from Class Counsel, or from Epiq, and (2) informed
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`Class Counsel that neither they nor Epiq has the authority to deny any claims because
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`the Court alone has that authority.
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`14. After advising Class Counsel that they had no basis for the threats
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`contained in their letter, Mr. Huppert advised (at 3) that FRS, as a gesture of good
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`faith to put the matter to rest, would:
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`(1) instruct the independent contractor who sent the Solicitation not to
`disseminate the Solicitation further, (2) remove from its website the
`“Class Action Summary” for the End-Payor Actions, and (3) send a
`further communication to recipients of the Solicitation that reiterates
`that (a) the deadline for submitting claim forms has passed, and
`(b) payment for claim forms filed after the deadline are subject to the
`court’s approval.
`FRS refused to take any of the many other actions demanded by Class Counsel. Class
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`Counsel never responded or took any further action, including carrying out their
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`threat to seek injunctive relief from this Court.22
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`EPIQ’S PURPORTED CONCERNS
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`General Observations
`15.
`The gravamen of much of the Pinkerton Declaration is that processing
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`the claims of Insurers to recover from the End-Payor Settlements would be too
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`administratively complicated for Epiq and result in less of the settlement funds being
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`22 Ex. C to Langham Decl. at 3, PageID.38523.
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`distributed to other members of the End-Payor Settlement classes.23 Although the
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`long list of purported complications he claims will accompany the inclusion of
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`Insurers’ claims takes up seven pages of his declaration, Mr. Pinkerton fails to
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`provide any rational explanation for why those hypothesized complications will, in
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`fact, materialize. In my experience, processing the claims of Insurers would not, as
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`Mr. Pinkerton claims, “substantially delay and prejudice the claims administration
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`process.”24
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`16. Even if processing Insurers’ claims would require additional work by
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`Epiq, the same could be said about any group of eligible claimants. While
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`Mr. Pinkerton acknowledges that “Epiq is responsible for,” inter alia, “ensur[ing]
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`the fair treatment of class members and all parties in interest,”25 which includes all
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`eligible claimants, he and Class Counsel ignore that those responsibilities are not
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`discretionary—they do not get to pick and choose which class members they treat
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`fairly and which they do not.
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`17. At the outset, Mr. Pinkerton does not claim that Epiq has completed any
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`steps in the claims-administration process. Two of the duties of the claims
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`administrator that Mr. Pinkerton lists are “analyzing whether claims are deficient or
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`23 See, e.g., Pinkerton Decl. ¶¶ 48-60, PageID.38495-38501.
`24 Id. ¶ 49, PageID.38495-38496.
`25 Id. ¶ 7, PageID.38482.
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`compliant” and “sending and handling notices of deficiency.”26 In my experience,
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`identifying and providing notice of deficiencies in proofs of claim is designed to
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`provide claimants an opportunity to cure deficiencies so that correctable errors in, or
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`omissions from, their claim forms do not deprive them of their right to recover. Class
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`Counsel has confirmed that this is the process that Epiq will follow.27 This notice-
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`and-cure process, which can take several months to complete, typically takes place
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`early on in the claims-administration process because a claims administrator must
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`first ascertain the universe of valid claims before it may complete the remainder of
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`its tasks, such as calculating claim amounts and pro rata shares.
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`18. Epiq has not yet provided FRS or any of the Insurers notice of any
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`deficiency in their proofs of claim, FRS is not aware of any other claimants that have
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`received such notices, and Mr. Pinkerton does not claim that Epiq has sent any such
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`notices. This suggests to me, based on my experience, that Epiq’s claims-
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`administration process for the End-Payor Settlements remains at an early stage. If
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`Epiq has not yet sent deficiency notices, it is nowhere close to completing the other
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`steps in the claims-administration process, including calculating claim amounts,
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`determining pro rata shares, making recommendations for payment, or distributing
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`26 Id. ¶ 9, PageID.38482-38483.
`27 Langham Decl. ¶ 17, PageID.38509 (“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.”).
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`settlement funds. The Insurers’ vehicle information could be processed alongside all
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`of the other vehicle information that will be submitted in connection with the notice-
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`and-cure process. Accordingly, there is no basis for Mr. Pinkerton’s assertion that
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`processing Insurers’ vehicle data would cause any delay in the distribution of
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`settlement funds.
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`19. Mr. Pinkerton also ignores that, prior to any distribution being
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`conducted, Insurers have the right to bring to this Court their objections to Epiq’s
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`rejection or diminution of their claims.28 In fact, that is exactly the process that Class
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`Counsel suggested to FRS for resolving the subrogation issue that is now pending
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`before the Court.29 That appeal process would take many months, at a minimum, to
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`conclude. First, Epiq would need to formally reject Insurers’ claims and make a
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`recommendation to the Court to deny recovery to them. That submission alone is not
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`likely to occur for several months. Second, FRS, other subrogees and other claimants
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`who object to the adverse treatment of their claims would need to file with the Court
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`objections to Epiq’s recommendations, and Epiq and Class Counsel would need to
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`28 See Reply Mem. of Law in Supp. of FRS’s Mot. to Intervene at 7 (July 9, 2020),
`PageID.38079, ECF No. 2073 (“If the Court denies intervention now, Insurers will continue to
`pursue subrogation claims for Total Loss Vehicles, the Claims Administrator will disallow those
`claims under a cloud of uncertainty, and the Court will still need to decide the subrogation issue
`many months from now. That delay, not FRS’s intervention, would prejudice class members.”)
`(footnotes omitted).
`29 See Leibell Intervention Mot. Decl. ¶ 6, PageID.37727-37728.
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`file their responses. Third, the Court would need to rule on those objections, which
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`ruling would be subject to appeal to the Sixth Circuit.
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`20. Mr. Pinkerton also claims that “any proof of claim information
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`submitted now would be several months late and properly treated as untimely.”30
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`Even if true, that statement is not a basis to reject or refuse to process such
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`information, given Mr. Pinkerton’s and Class Counsel’s acknowledgements that
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`Epiq plans to conduct a notice-and-cure process for deficient claim forms.31 That
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`process will necessarily involve Epiq accepting and processing “late” vehicle
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`information, and Mr. Pinkerton gives no reason for accepting and processing some
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`“late” vehicle information as timely, but refusing to process other “late” vehicle
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`information as “untimely.”
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`21. Mr. Pinkerton also offers legal argument concerning the effects of
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`subrogation on class participation, though he does not appear to assert that claims
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`from subrogees should be treated any differently, as a matter of timeliness, than
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`claims from non-subrogees.32 The question of whether Insurers are subrogated to the
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`claims of class members is a legal issue, and FRS’s position—that Insurers are
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`indeed subrogated to certain claims—is set forth in the pleadings before the Court.
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`
`30 Pinkerton Decl. ¶ 29, PageID.38489.
`31 See id. ¶ 9, PageID.38482-38483; Langham Decl. ¶ 17, PageID.38509.
`32 See Pinkerton Decl. ¶¶ 15, 18-20, PageID.38484, 38485-38486.
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`Although that question remains pending, Insurers’ vehicle information nevertheless
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`should be processed the same as that of all other claimants.
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`Mr. Pinkerton’s Specific Claims of Delay and Complication
`22. None of the specific concerns expressed by Mr. Pinkerton are valid.
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`They appear to have been concocted specifically to prejudice the Insurers’ interests
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`and for no other purpose.
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`a.
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`b.
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`Timing of Data Submissions.33 FRS will submit all vehicle data within
`90 days. Absent a showing of good cause, any placeholder claim that
`remains incomplete by that time will be withdrawn. This date certain
`for the submission of additional information alleviates any concern
`about an open-ended process for supplementing Insurers’ timely filed
`claim forms.
`Additional Proof for Subrogees.34 Within the time frame discussed
`above, FRS will provide for each vehicle included in each Insurer’s
`proof of claim precisely the information set forth on the Court-approved
`proof of claim: the year, make, model, VIN, residence or principal place
`of business of the purchaser/lessee at the time of purchase/lease, date
`of purchase or lease, and whether it was purchased or leased. As set
`forth below, there is no rational basis for the other information that
`Mr. Pinkerton asserts Epiq needs.
`Should Epiq determine that a VIN submitted by an Insurer also
`i.
`was claimed by another class member, that Insurer will withdraw
`its claim for that Total Loss Vehicle. FRS said as much in its
`December 13, 2019 letter to the Court.35 There is thus no need
`for Insurers to provide the identity and name of the purchaser, or
`for Epiq to contact class members regarding Insurers’ claims.
`
`
`33 See, e.g., id. ¶¶ 49, 51-52, PageID.38495-38496, 38497.
`34 See id. ¶ 50, PageID.38496-38497.
`35 See Ex. A to Leibell Intervention Mot. Decl. at 3 n.8, PageID.37736.
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`iii.
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`iv.
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`ii. Mr. Pinkerton fails to explain the need for Insurers to provide the
`time at which the purchase occurred.
`There is no need for Insurers to provide for each Total Loss
`Vehicle the existence of an insurance policy, including its
`contractual subrogation provision. Each Insurer’s possession of
`the VIN for each vehicle is prima facie proof that the Insurer
`insured the vehicle. Additionally, each Salvage Vendor and the
`commercial vendor with which FRS contracted to provide and
`confirm Insurers’ data (the “Commercial Vendor”) has reported
`each vehicle as a total loss. And because FRS is asserting that
`Insurers are entitled to recover under the equitable subrogation
`doctrine, rather than under contractual subrogation, the existence
`of a contractual subrogation provision is irrelevant.
`Nowhere in the proof of claim is any claimant required to prove
`that a vehicle claimed was new at the time that it was purchased
`or leased. Instead, all that is required of any other claimant is the
`checking of a box on that form that asks, “Are you making a new
`claim for the purchase or lease of a new vehicle?” Insurers will
`represent that all vehicles included in their supplemental
`information were new when purchased or leased. Further, the
`Commercial Vendor has identified whether the Total Loss
`Vehicle was new at the time of purchase or lease.
`v. Mr. Pinkerton asserts that if a Total Loss Vehicle was insured
`and deemed a total loss, that there is a possibility that the Insurer
`did not indemnify its insured; that is, that the Insurer breached its
`contract. Each Insurer will attest under penalty of perjur