Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39289 Filed 05/15/21 Page 1 of 26
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`IN RE AUTOMOTIVE PARTS
`ANTITRUST LITIGATION
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`Master File No. 12-md-02311
`Hon. Sean F. Cox
`Mag. Judge R. Steven Whalen
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`THIS DOCUMENT RELATES TO:
`ALL END-PAYOR ACTIONS
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`END-PAYOR PLAINTIFFS’
`MOTION TO STRIKE
`FINANCIAL RECOVERY
`SERVICES, LLC’S MOTION
`FOR RECONSIDERATION OF
`THE COURT’S APRIL 28
`OPINION AND ORDER
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`IN RE AUTOMOTIVE PARTS
`ANTITRUST LITIGATION
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`Master File No. 12-md-02311
`Hon. Sean F. Cox
`Mag. Judge R. Steven Whalen
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`THIS DOCUMENT RELATES TO:
`ALL END-PAYOR ACTIONS
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`END-PAYOR PLAINTIFFS’
`MOTION TO STRIKE
`FINANCIAL RECOVERY
`SERVICES, LLC’S MOTION
`FOR RECONSIDERATION OF
`THE COURT’S APRIL 28
`OPINION AND ORDER
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39290 Filed 05/15/21 Page 2 of 26
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`END-PAYOR PLAINTIFS’ MOTION TO STRIKE FINANCIAL
`RECOVERY SERVICES, LLC’S IMPROPER MOTION FOR
`RECONSIDERATION OF THE
`COURT’S APRIL 28 OPINION AND ORDER
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`End-Payor Plaintiffs (“EPPs”), by and through their Court-appointed counsel,
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`hereby respectfully move the Court to strike non-party Financial Recovery Services,
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`LLC’s (“FRS’s”) Motion for Reconsideration of the Court’s April 28 Opinion and
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`Order. ECF No. 2137. EPPs move to strike FRS’s improper motion because it
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`violates both the Federal Rules of Civil Procedure and this Court’s Local Rules.
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`Dated: May 15, 2021
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`Respectfully submitted,
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`/s/ William Reiss
`William V. Reiss
`ROBINS KAPLAN LLP
`399 Park Avenue, Suite 3600
`New York, NY 10022
`Telephone: (212) 980-7400
`Facsimile: (212) 980-7499
`WReiss@RobinsKaplan.com
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`/s/ Adam J. Zapala
`Adam J. Zapala
`Elizabeth T. Castillo
`COTCHETT, PITRE & McCARTHY, LLP
`San Francisco Airport Office Center
`840 Malcolm Road, Suite 200
`Burlingame, CA 94010
`Telephone: (650) 697-6000
`Facsimile: (650) 697-0577
`azpala@cpmlegal.com
`ecastillo@cpmlegal.com
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39291 Filed 05/15/21 Page 3 of 26
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`/s/ Jenna G. Farleigh
`Marc M. Seltzer
`Steven G. Sklaver
`SUSMAN GODFREY L.L.P.
`1900 Avenue of the Stars, Suite 1400
`Los Angeles, CA 90067-6029
`Telephone: (310) 789-3100
`Facsimile: (310) 789-3150
`mseltzer@susmangodfrey.com
`ssklaver@susmangodfrey.com
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`Terrell W. Oxford
`Chanler A. Langham
`SUSMAN GODFREY L.L.P.
`1000 Louisiana, Suite 5100
`Houston, TX 77002
`Telephone: (214) 754-1900
`Facsimile: (214)754-1933
`toxford@susmangodfrey.com
`clangham@susmangodfrey.com
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`Floyd G. Short
`Jenna Farleigh
`SUSMAN GODFREY L.L.P.
`1201 3rd Ave., Suite 3800
`Seattle, WA 98101
`Telephone: (206) 373-7381
`Facsimile: (206) 516-3883
`fshort@susmangodfrey.com
`jfarleigh@susmangodfrey.com
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`Co-Lead Class Counsel for End-Payor Plaintiffs
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39292 Filed 05/15/21 Page 4 of 26
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`STATEMENT OF ISSUE PRESENTED
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`1. Should this Court strike the procedurally improper Motion for
`Reconsideration filed by non-party FRS in violation of the Federal
`Rules of Civil Procedure and this Court’s Local Rules?
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`Yes.
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39293 Filed 05/15/21 Page 5 of 26
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`TABLE OF MOST CONTROLLING AUTHORITIES
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` Newberg on Class Actions § 9:37
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`Taylor v. KeyCorp, 680 F.3d 609, 616 (6th Cir. 2012)
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`Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)
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`E.D. Mich. Local Rule 7.1(h)
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39294 Filed 05/15/21 Page 6 of 26
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`TABLE OF CONTENTS
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`2.
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`Page
`INTRODUCTION ..................................................................................................... 1
`LEGAL STANDARD ................................................................................................ 4
`ARGUMENT ............................................................................................................. 5
`I.
`THE COURT SHOULD STRIKE FRS’S MOTION FOR
`RECONSIDERATION ......................................................................... 5
`A.
`FRS Was Required to Be Granted Intervenor Status to
`File the Motion in Question—A Motion That FRS
`Already Lost and That Is Currently on Appeal. ......................... 5
`1.
`Rule 23 Does Not Grant FRS Authority to File a
`Motion to Extend the Claims-Filing Deadline. ................ 6
`The Court Lacks Jurisdiction to Hear the Motion
`Because the Relief Requested in FRS’s Motion
`to Compel Was Subsumed
`in
`the Relief
`Requested in Its Motion to Intervene. ............................ 11
`The Motion to Reconsider Was Filed in Violation of
`the Local Rules. ......................................................................... 13
`Late Claims Filed by FRS on Behalf of Insurers as
`Vehicle Purchasers or Lessees on Their Own Account
`Are Already Being Processed Despite Being Late. .................. 15
`CONCLUSION ........................................................................................................ 15
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`B.
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`C.
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39295 Filed 05/15/21 Page 7 of 26
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
`Carpenter v. City of Flint,
`723 F.3d 700 (6th Cir. 2013) .............................................................................. 13
`Dep’t of Treasury v. Michalec,
`181 F. Supp. 2d 731 (E.D. Mich. 2002) ............................................................. 14
`Faber v. Ciox Health, LLC,
`944 F.3d 593 (6th Cir. 2019) ................................................................................ 9
`Franklin Cty. v. Travelers Prop. Cas. Ins. Co. of Am.,
`No. CIV.A 3:08-52-DCR, 2008 WL 4787401 (E.D. Ky. Oct. 30,
`2008) ..................................................................................................................... 5
`GEICO Corp. v. Autoliv, Inc.,
`345 F. Supp. 3d 799 (E.D. Mich. 2018) ............................................................. 10
`Griggs v. Provident Consumer Discount Co.,
`459 U.S. 56 (1982) ...................................................................................... v, 4, 12
`Grimes v. Bessner,
`No. 17-CV-12860, 2018 WL 3956356 (E.D. Mich. Aug. 17, 2018) ................. 13
`In re Fine Paper Antitrust Litig.,
`695 F.2d 494 (3d Cir. 1982) ................................................................................. 9
`Johnson v. Bauman,
`No. 2:19-CV-12423, 2020 WL 6867787 (E.D. Mich. Nov. 23,
`2020) ............................................................................................................... 3, 14
`Knowles v. Butz,
`358 F. Supp. 228 (N.D. Cal. 1973) ....................................................................... 9
`Larsen v. Pine Ridge Operator, LLC,
`No. 14-CV-12101, 2014 WL 6686777 (E.D. Mich. Nov. 26, 2014) ................... 5
`Moulton v. U.S. Steel Corp.,
`581 F.3d 344 (6th Cir. 2009) ................................................................................ 9
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39296 Filed 05/15/21 Page 8 of 26
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`Ordos City Hawtai Autobody Co., Ltd. v. Dimond Rigging Co., LLC,
`695 F. App’x 864 (6th Cir. 2017) ......................................................................... 5
`Phillips Petroleum Co. v. Shutts,
`472 U.S. 797 (1985) .............................................................................................. 9
`Ramsey v. Arata,
`406 F. Supp. 435 (N.D. Tex. 1975) ...................................................................... 8
`Scottsdale Ins. Co. v. Flowers,
`513 F.3d 546 (6th Cir. 2008) ................................................................................ 7
`Scozzari v. City of Clare,
`723 F. Supp. 2d 974 (E.D. Mich. 2010) ............................................................. 14
`Snap! Mobile, Inc. v. Croghan,
`No. 18-CV-04686-LHK, 2019 WL 884177 (N.D. Cal. Feb. 22,
`2019) ..................................................................................................................... 4
`Taylor v. KeyCorp,
`680 F.3d 609 (6th Cir. 2012) .......................................................................... v, 12
`Toldy v. Fifth Third Mortg. Co.,
`No. 1:09 CV 377, 2010 WL 2640021 (N.D. Ohio June 29, 2010) ...................... 6
`Wainwright v. Kraftco Corp.,
`54 F.R.D. 532 (N.D. Ga. 1972) ............................................................................ 8
`Rules
`Fed. R. Civ. P. 12 ....................................................................................................... 4
`Fed. R. Civ. P. 23 ..............................................................................................passim
`Fed. R. Civ. P. 24 ................................................................................................... 7, 8
`L.R. 7.1 ..............................................................................................................passim
`Other Authorities
`3 Newberg on Class Actions § 9:37 ........................................................................... 7
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39297 Filed 05/15/21 Page 9 of 26
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`INTRODUCTION
`Financial Recovery Services, LLC (“FRS”) has filed a motion for
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`reconsideration without any right to do so since it is a non-party. It also provides no
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`basis for reconsideration: FRS points to no intervening authority that justifies a
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`change in this Court’s decision. It provides no arguments or facts that were not or
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`could not have been presented previously. It has failed to show that the order in
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`question suffers from any defect, let alone a “palpable defect.” The Court should
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`strike the motion.
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`The entire premise of FRS’s prior motions and the instant motion for
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`reconsideration is demonstrably incorrect. FRS failed to properly seek a ruling
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`regarding the potential validity of subrogation claims in time to submit those claims
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`before the expiration of not one, but two, interim claims-filing deadlines. Then
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`finally, on the last day permitted by the Court for class members to submit claims,
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`FRS filed a motion for leave to intervene to allow it to seek a ruling on the potential
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`validity of subrogation claims and if, but only if, it thereafter obtained a favorable
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`ruling to belatedly submit claims to share in the class settlements based on asserted
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`subrogation rights months after the court-established deadline for submitting claims
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`had passed. ECF No. 2060 at 37704. FRS admitted in its motion that it had not
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`submitted any subrogation claims before the deadline. Id. at 37719 (conceding that
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`it had not submitted any “vehicle-specific information because gathering and
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39298 Filed 05/15/21 Page 10 of 26
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`submitting data regarding many thousands of specific vehicles that underlie their
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`subrogation claims would be an enormous task”). Instead, it requested extraordinary
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`relief that has not been authorized for any putative class member: blanket permission
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`to submit late claims at an unknown and undetermined future date. Id. at 37720
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`(asking the Court for permission to allow Insurers to “complete the documentation
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`of their claims after the Court rules”). Class plaintiffs opposed the motion on the
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`basis that doing so would prejudice the classes they represent. This Court denied the
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`motion, finding as a matter of fact that allowing intervention for this purpose would
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`prejudice the original parties to these proceedings. The Court found that “claims
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`processing has been ongoing, and completion would be delayed if the Court were to
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`allow potentially thousands of claims to be submitted after the deadline.” ECF No.
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`2101 at 38270. FRS’s appeal of that order is pending. Yet nearly a year after the
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`expiration of the final claims-filing deadline, FRS has still not submitted claims by
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`any insurance carriers based on its subrogation theory. Pinkerton Decl. ¶¶ 10, 11, 14.
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`Despite this failure, FRS attempted a second bite at the apple and restyled its
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`initial intervention motion as an Emergency Motion to Compel Acceptance and
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`Processing of Vehicle Data. ECF No. 2114. That untimely motion sought the same
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`relief previously sought (and denied) through the motion to intervene: an order from
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`the Court requiring the Claims Administrator to accept and process late claim
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`submissions, including those made by FRS on behalf of insurance companies
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39299 Filed 05/15/21 Page 11 of 26
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`seeking to assert claims based on purported subrogation rights and deem those
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`submissions to be timely. Id. at 38314 (seeking to “(1) permit FRS and the Insurers
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`a reasonable opportunity to submit vehicle data . . . , and (2) deem that data timely”).
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`In effect, FRS sought a blanket extension of the claims filing deadlines for its clients.
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`The Court construed that motion as an untimely and unmeritorious “motion
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`for reconsideration” of the denial of FRS’s prior motion to intervene. ECF No. 2134
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`at 39178 (noting that FRS failed to show “the existance of a palpable defect”).
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`FRS now seeks a third bite of the apple. It has filed a motion for
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`reconsideration of the Court’s order denying its motion to compel—what this Court
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`previously construed as a motion for reconsideration. ECF No. 2137. But FRS’s stale
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`request for an extension of the claims-filing deadline disregards the Court’s well-
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`founded conclusion that FRS cannot satisfy the legal standard required for
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`reconsideration. ECF No. 2134 at 39178 (noting the Court could construe the
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`motion to compel as a motion for reconsideration under Local Rule 7.1(h) and
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`concluding that FRS failed to meet the requirements); see also Johnson v. Bauman,
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`No. 2:19-CV-12423, 2020 WL 6867787, at *1 (E.D. Mich. Nov. 23, 2020) (noting
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`motion to reconsider that “presents the same issues already ruled upon by the court,
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`either expressly or by reasonable implication, will not be granted”).
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`This Court should strike non-party FRS’s most recent effort to obtain the same
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`relief it has twice been denied. FRS previously admitted that intervention was
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39300 Filed 05/15/21 Page 12 of 26
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`required to allow it to file a motion. ECF No. 2060 at 37715. Now that the
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`intervention request and FRS’s recasted stylization of it as a motion to compel have
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`both been denied, FRS does a 180° and claims that that all along it had the right to
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`file a motion without being granted intervenor status. FRS is simply wrong as a
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`matter of law as is demonstrated below. Further, because FRS has appealed the
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`denial of its intervention request, this Court has no jurisdiction to grant it relief.
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`FRS’s motion should be denied for the sepearate reason that it violates this Court’s
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`Local Rules concerning motions for reconsideration. And finally, FRS’s claims of
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`prejudice are fiction: only suborgation claims—claims FRS has not yet filed—are
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`not being processed by the Claims Administrator because not only do they not exist,
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`the Court has already ruled that FRS has no right to submit these late claims. See
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`Pinkerton Decl. ¶ 15.
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`LEGAL STANDARD
`The Court has discretion to strike any “redundant, immaterial, impertinent, or
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`scandalous matter.” Fed. R. Civ. Pro. 12(f); see also Snap! Mobile, Inc. v. Croghan,
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`No. 18-CV-04686-LHK, 2019 WL 884177, at *3 (N.D. Cal. Feb. 22, 2019). That is
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`particularly true here where the Court has already determined that the filer lacks
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`standing. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)
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`(noting that the filing of an appeal “confers jurisdiction on the court of appeal and
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39301 Filed 05/15/21 Page 13 of 26
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`divests the district court of its control over those aspects of the case involved in the
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`appeal”); see also ECF No. 2134 (April 28, 2021 Order).
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`This Court also has discretion to strike a filing for untimeliness or failure to
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`comply with Local Rules. See Ordos City Hawtai Autobody Co., Ltd. v. Dimond
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`Rigging Co., LLC, 695 F. App’x 864, 870–72 (6th Cir. 2017) (affirming striking of
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`response brief); Larsen v. Pine Ridge Operator, LLC, No. 14-CV-12101, 2014 WL
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`6686777, at *5 (E.D. Mich. Nov. 26, 2014).
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`I.
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`ARGUMENT
`THE COURT SHOULD STRIKE FRS’S MOTION FOR
`RECONSIDERATION
`The Court should strike FRS’s third try at obtaining a blanket extension of
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`the claims-filing deadline for claims covering many thousands of vehicles
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`because: (1) FRS already sought the same relief by its motion for intervention,
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`and appealed the denial of that relief, and (2) FRS’s motion violates Local Rule
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`7.1 governing motions to reconsider. Additionally, the Court should strike FRS’s
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`motion for the additional reason that, as a matter of fact, FRS’s late-filed claims,
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`which do not include any subrogation claims, are already being processed.
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`A.
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`FRS Was Required to Be Granted Intervenor Status to File the
`Motion in Question—A Motion That FRS Already Lost and That
`Is Currently on Appeal.
`It is well-settled that before a non-party can insert itself into a lawsuit wherein
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`its interests may be affected, it must first successfully intervene. Franklin Cty. v.
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39302 Filed 05/15/21 Page 14 of 26
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`Travelers Prop. Cas. Ins. Co. of Am., No. CIV.A 3:08-52-DCR, 2008 WL 4787401,
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`at *2 (E.D. Ky. Oct. 30, 2008) (noting that intervention “allows non-parties to insert
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`themselves into lawsuits where their interests may be affected”); see also Toldy v.
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`Fifth Third Mortg. Co., No. 1:09 CV 377, 2010 WL 2640021, at *2 (N.D. Ohio June
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`29, 2010) (“[I]ntervention . . . allows a third party with an interest in the [] transaction
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`involved in the action to enter the suit and litigate it on the merits as a party.”).
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`Here, by filing its motion to intervene, FRS acknowledged that intervention
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`was a predicate to being able to seek its requested relief to allow FRS’s insurance
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`company clients to “complete the documentation of their claims” after the claims-
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`filing deadline. ECF No. 2060 at 37720. FRS even stated that intervention was
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`required. Id. at 37715.
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`Yet, despite its concession, FRS now claims that this Court committed
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`manifest error in its April 28 Opinion and Order by: (1) citing FRS’s status as a
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`“non-party” as a basis to deny FRS relief, and (2) concluding that FRS’s pending
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`appeal of the Court’s denial of intervention deprived the Court of jurisdiction, ECF
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`No. 2137 at 39192-93. Neither argument is correct.
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`1.
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`Rule 23 Does Not Grant FRS Authority to File a Motion to
`Extend the Claims-Filing Deadline.
`Until filing the instant motion to reconsider, FRS never suggested, much less
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`argued, that it could move for a blanket extension of the claims-filing deadline
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39303 Filed 05/15/21 Page 15 of 26
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`without first intervening.1 But FRS has argued that issue on appeal before the Sixth
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`Circuit. Farleigh Decl. ¶ 3, Ex. A (FRS’s brief stating that “FRS moved to intervene
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`under Rule 24 to expedite resolution of the subrogation question, even though, under
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`Rule 23, class members need not intervene”). Although plaintiffs disagree with
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`FRS’s argument or its ability to raise this new argument on appeal, that issue has
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`been presented to the Court of Appeals.
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`FRS’s new-found position is that Rule 23 alone entitles it “without intervening
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`under Rule 24” to file a motion to compel acceptance of late claims. See, e.g., ECF
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`No. 2137 at 39192. But this contention has no support. Although Rule 23 allows a
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`“class member [to] enter an appearance through an attorney if the member so
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`desires,” Fed. R. Civ. P. 23(c)(2)(B)(iv), that does not (as FRS contends) give the
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`Court “ample authority” to grant FRS’s motion. ECF No. 2137 at 39194. To the
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`contrary, the very authority cited by FRS states that Rule 23 does not obviate the
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`intervention requirement of Rule 24 and instead merely entitles counsel to be served
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`with papers filed in the action. See, e.g., 3 Newberg on Class Actions § 9:37; see also
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`1 FRS says it “cited Rule 23(c) in furtherance of th[is] argument,” but that is not true.
`ECF No. 2137 at 39195. FRS only noted (improperly and for the first time in a
`footnote to its reply brief on the motion to compel) that in some circumstances non-
`parties “can file motions.” ECF No. 2126 at 3107 n.4. But FRS did not argue that
`Rule 23 allowed it to file a motion to compel without intervening. And, in any event,
`arguments raised for the first time in a reply brief are disregarded as having been
`waived. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (“We
`have found issues to be waived when they are raised for the first time in . . . replies
`to responses.”).
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39304 Filed 05/15/21 Page 16 of 26
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`Ramsey v. Arata, 406 F. Supp. 435, 442 (N.D. Tex. 1975) (rejecting view that Rule
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`23(c)(2)(C) “establishes the equivalent of an absolute right to intervene without
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`regard to the normal intervention requirements of Rule 24”).
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`While it is true that absent class members have certain rights, such as the right
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`to opt out, the right to object to a settlement, the right to be heard if they do timely
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`object to a settlement, as well as the right to take an appeal from an order overruling
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`their objections and approving a settlement, they are not deemed parties to the
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`proceeding. For example, unlike parties they do not have the right to conduct
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`discovery or file motions to compel without intervening. Wainwright v. Kraftco
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`Corp., 54 F.R.D. 532, 534 (N.D. Ga. 1972) (“Nothing in Rule 23 suggests that class
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`members are deemed ‘parties.’ . . . Indeed, if class members were automatically
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`deemed parties, all class actions would be converted into massive joinders. Such a
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`result would emasculate Rule 23.”).
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`Nor does the Court’s discretionary authority to issue orders pertaining to a
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`class action under Rule 23(d) give FRS the right to file a motion without first
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`intervening. Fed. R. Civ. Pro. 23(d)(1). FRS takes phrases from this rule out of
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`context. ECF No. 2137 at 39194. For example, Rule 23(d) gives the court authority
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`to issue orders that require “giving appropriate notice to some or all class members.”
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`Fed. R. Civ. Pro. 23(d)(1)(B)(iii) (emphasis added). It does not give a non-party the
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`right to file motions to compel.
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39305 Filed 05/15/21 Page 17 of 26
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`The remaining authority offered by FRS is likewise inapposite and does not
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`stand for the proposition that non-parties, even those whose attorneys have entered
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`a notice of appearance under Rule 23, may seek to compel an extension of the
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`claims-filing deadline without first intervening. See, e.g., Knowles v. Butz, 358 F.
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`Supp. 228, 230 (N.D. Cal. 1973) (noting only that absent class members would be
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`allowed to enter an appearance through counsel and participate as class members
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`where the originally named class representatives had now-moot claims to
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`“eliminate[] the delay that might otherwise be required before the court could enter
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`summary judgment on behalf of the class members”); see also Phillips Petroleum
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`Co. v. Shutts, 472 U.S. 797, 811-12 (1985) (noting only that absent class members
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`were entitled “to adequate notice, an opportunity to be heard [if objecting to a
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`settlement], an opportunity to opt out of the case, and adequate representation by the
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`named plaintiffs”—all things afforded in this case); In re Fine Paper Antitrust Litig.,
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`695 F.2d 494, 499 (3d Cir. 1982) (stating that, “[w]ithout intervention” alleged
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`putative class members “had no standing” to “seek alteration of the certification
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`order” and that all they could do was seek clarification from the Court that they were
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`not class members).2
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`2 The Sixth Circuit cases cited by FRS undermine its argument rather than support
`it. In Moulton v. U.S. Steel Corp., 581 F.3d 344, 353 (6th Cir. 2009), the Sixth Circuit
`noted that Rule 23 was limited and that the court “did not err by corralling” the
`involvement of an attorney appearing on behalf of class members. And Faber v.
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`9
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39306 Filed 05/15/21 Page 18 of 26
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`Even if Rule 23 did permit putative class members to file a motion to compel
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`the type of relief FRS requests, FRS’s argument would still fail. It is undisputed that
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`the Rule 23 features marshalled by FRS only apply to “class members.” Many of the
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`insurance companies FRS represents are not class members in their capacity as
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`insurers. This Court already held in related litigation that an insurance company
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`lacked antitrust standing in its capacity as an insurer for “payments to insureds or
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`third-party claimants for the full value of vehicles declared a total loss.” GEICO
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`Corp. v. Autoliv, Inc., 345 F. Supp. 3d 799, 829-30 (E.D. Mich. 2018). The Court
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`reasoned that “Total Loss Payments are not made in connection with the purchase
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`of auto parts,” and “the injury allegedly inflicted on GEICO does not occur in the
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`auto part markets in which Defendants allegedly conspired.” Id. at 829. This
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`rationale equally applies here. See ECF No. 2060 at 37714 (explaining “the Insurers
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`seek to stand in the shoes of class members whom the Insurers indemnified, and they
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`thereby seek to recover money that might otherwise be claimed by the already-
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`indemnified class members”).
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`FRS is also incorrect in suggesting that requiring intervention prevents “non-
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`party class members” from “participating and protecting their rights at later stages
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`Ciox Health, LLC, 944 F.3d 593, 604 (6th Cir. 2019), merely stands for the
`proposition that Rule 23’s notice requirement requiring class counsel to inform class
`members that they may enter an appearance through an attorney must be performed
`before the parties are aware of the district court’s judgment on the merits.
`10
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39307 Filed 05/15/21 Page 19 of 26
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`of the claims administration process.” ECF No. 2137 at 13. It appears that FRS
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`improperly combines the terms “non-party” and “class member” to suggest that
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`unnamed class members who purchased or leased vehicles for their own account
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`have no recourse in this action, which is not true. As discussed in Section I.C,
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`unnamed class members have ample opportunity to protect their rights during the
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`claims administration process. And late claims filed by insurance companies and
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`other class members based on purchases or leases of vehicles made for their own
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`account are being processed. Pinkerton Decl. ¶ 15. Insurers seeking to recover in
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`their capacity as insurers, on the other hand, cannot, as this Court has already held,
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`file late claims. ECF No. 2101 at 38270.
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`2.
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`The Court Lacks Jurisdiction to Hear the Motion Because the
`Relief Requested in FRS’s Motion to Compel Was Subsumed in
`the Relief Requested in Its Motion to Intervene.
`FRS next mischaracterizes its prior filings in an effort to circumvent this
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`Court’s Local Rules by contending that its “motion to compel raises issues about
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`processing class members’ claim information and is thus independent of FRS’s
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`motion to intervene, which was filed to obtain a ruling regarding Insurers’
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`subrogation rights.” ECF No. 2137 at 39197. But a comparison of FRS’s requested
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`relief in both motions reveals that FRS sought the same relief, namely to extend the
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`claims-filing deadline beyond June 18, 2020. Compare ECF No. 2060 at 37720
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`(intervention motion requesting permission to allow Insurers to “complete the
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`
`
`11
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39308 Filed 05/15/21 Page 20 of 26
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`documentation of their claims” after the claims-submission deadline), with ECF No.
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`2114 at 38329 (seeking order to compel giving “Insurers a reasonable opportunity
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`to submit vehicle data” after the claims-submission deadline).
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`In fact, FRS claims that the relief requested in its motion to compel was
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`“broader than” the request in its motion to intervene. ECF No. 2137 at 39193. FRS
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`does not deny that if the Court were to grant its motion to compel, it would in effect
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`be extending the claims-filing deadline allowing FRS to file late subrogation claims.
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`This was an integral component of FRS’s requested relief in its motion to intervene
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`that was denied and is on appeal. Since the filing of an appeal “confers jurisdiction
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`on the court of appeals and divests the district court of its control over those aspects
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`of the case involved in the appeal,” the Court cannot exercise jurisdiction over FRS’s
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`motion to reconsider, as this Court previously and correctly held. Taylor v. KeyCorp,
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`680 F.3d 609, 616 (6th Cir. 2012) (quoting Griggs v. Provident Consumer Discount
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`Co., 459 U.S. 56, 58 (1982)).
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`In its effort to distinguish the relief sought through the motion to compel and
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`the motion to intervene, FRS draws attention to its insurance clients with direct-
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`purchaser claims who are putative class members. ECF No. 2137 at 39193 (noting
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`that the “motion to compel deals with the procedural rights of claimants to have
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`their vehicle data processed”). But those insurers who qualify as class members will
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`have an opportunity to address the late-filing of claims in response to any
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`12
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39309 Filed 05/15/21 Page 21 of 26
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`recommended rejection of their claims in the ordinary course of the claims
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`administration process. And FRS ignores that the relief it requests also would allow
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`insurance company clients with subrogation claims (who are plainly neither
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`claimants nor class members) to file late claims in a manner that would entirely
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`circumvent the Court’s Order denying FRS’s motion to intervene, which ruled that
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`late subrogation claims cannot now be filed. ECF No. 2101 at 38270.
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`B.
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`The Motion to Reconsider Was Filed in Violation of the Local
`Rules.
`FRS’s motion should also be struck for the distinct reason that it constitutes a
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`violation of the Local Rules. This Court has recognized that “[a]ll attorneys
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`practicing in federal court have ‘a clear obligation to familiarize [themselves] with
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`a district court’s rules and to follow them.’” Grimes v. Bessner, No. 17-CV-12860,
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`2018 WL 3956356, at *2 (E.D. Mich. Aug. 17, 2018) (quoting Carpenter v. City of
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`Flint, 723 F.3d 700, 710 (6th Cir. 2013)). Here, FRS’s motion runs afoul of several
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`Local Rules. The Local Rules permit motions for rehearing or reconsideration under
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`very limited circumstances.
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`First, the Local Rules do not provide for motions for reconsideration of the
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`denial of a motion to reconsider. And yet, that is effectively what FRS’s motion is.
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`Accordingly, the motion is improper on this independently sufficient basis.
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`Second, a motion for reconsideration must be filed “within 14 days after entry
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`of the judgment or order.” E.D. Mich. Local Rule 7.1(h)(1). Here, the Court
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`13
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138, PageID.39310 Filed 05/15/21 Page 22 of 26
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`construed the motion to compel as a motion to reconsider the denial of FRS’s motion
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`to intervene and found that FRS failed to meet the 14-day filing requirement.
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`Third, the Local Rules require a reconsideration motion to be based on certain
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`specified grounds for relief. E.D. Mich. L.R. 7.1(h)(3). Those grounds require the
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`movant to show a “palpable defect by which the Court and the parties and other
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`persons entitled to be heard on the motion have been misled.” Id. “A ‘palpable
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`defect’
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`is a defect
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`that
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`is obvious, clear, unmistakable, manifest, or
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`plain.” See Scozzari v. City of Clare, 723 F. Supp. 2d 974, 981 (E.D. Mich. 2010).
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`Here, the Court already found that FRS failed to meet this requirement. See ECF No.
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`2134 at 39178. In the present motion, FRS further fails to demonstrate any such
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`defect in that order. Instead, FRS “presents the same issues already ruled upon by
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`the court, either expressly or by reasonable implication,” in defiance of the Local
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`Rules. Johnson v. Bauman, No. 2:19-CV-12423, 2020 WL 6867787, at *1 (E.D.
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`Mich. Nov. 23, 2020). The Local Rules also require the movant to show
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