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Case 2:12-md-02311-SFC-RSW ECF No. 2138-1, PageID.39315 Filed 05/15/21 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`IN RE AUTOMOTIVE PARTS
`ANTITRUST LITIGATION
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`THIS DOCUMENT RELATES TO:
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`ALL END-PAYOR ACTIONS
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`Master File No. 12-md-02311
`Hon. Sean F. Cox
`Mag. Judge R. Steven Whalen
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`DECLARATION OF BRIAN A.
`PINKERTON IN SUPPORT OF
`END-PAYOR PLAINTIFFS’
`MOTION TO STRIKE
`FINANCIAL RECOVERY
`SERVICES, LLC’S MOTION
`FOR RECONSIERATION OF
`THE COURT’S APRIL 28
`OPINION AND ORDER
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`I, BRIAN A. PINKERTON, declare under penalty of perjury:
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`1.
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`I am a Senior Project Manager at Epiq Class Action & Claim Solutions,
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`Inc. (“Epiq”) and a former Assistant Director of the Court-appointed claims
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`administrator, Garden City Group, LLC (“GCG”). GCG was acquired by Epiq in
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`2018. All references to “Epiq” herein incorporate the work performed while
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`operating as either GCG or Epiq.
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`2.
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`As the Project Manager for settlements reached by the End-Payor
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`Plaintiffs, I am responsible for the day-to-day supervision and management of the
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`claims-administration process. I am an attorney admitted to practice in the State of
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`1
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138-1, PageID.39316 Filed 05/15/21 Page 2 of 12
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`Washington and have personally managed dozens of class action settlement
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`administrations, including consumer, wage and hour, and large antitrust class
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`actions. I have extensive experience handling large data sets and developing creative
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`strategies for reviewing and assessing complex data. I have served as the Project
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`Manager on this matter since October 2015, when the Court appointed Epiq to serve
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`as the claims administrator.
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`3.
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`I submit this declaration in support of End-Payor Plaintiffs’ Motion to
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`Strike Financial Recovery Services, LLC’s Motion for Reconsideration of the
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`Court’s April 28 Opinion and Order. No. 2:12-md-2311, Dkt. 2137 The following
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`statements are based on my personal knowledge and/or information provided by
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`other experienced Epiq employees working under my supervision and, if called on
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`to do so, I could and would testify competently thereto.
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`4.
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`I incorporate by reference my prior declarations submitted in these
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`proceedings, including those dated November 11, 2020 (ECF No. 2097) and March
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`3, 2021 (ECF No 2020-1).
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`5.
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`Now that the final claims submission deadline passed in this matter on
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`June 18, 2020, Epiq’s duties further include: (1) receiving and processing claims, (2)
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`determining whether claims have been timely filed, (3) determining whether claims
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`qualify for payment under any of the terms of the settlements and plan of allocation,
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`(4) analyzing whether claims are deficient or compliant with the Court’s orders, (5)
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`2
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138-1, PageID.39317 Filed 05/15/21 Page 3 of 12
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`sending and handling notices of deficiency, (6) calculating the claim amounts of
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`qualifying claimants, (7) determining the qualifying claim amounts available to all
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`claimants, (8) determining the pro rata share of each qualifying claimant to be paid
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`out of the settlements, and (9) making recommendations for the payment or
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`disallowance of settlement shares to each qualifying claimant.
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`6.
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`Under this Court’s Orders, only class members are entitled to submit
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`claims to share in the settlements. Specifically, only persons or entities who
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`purchased or leased a qualifying new vehicle, not for resale, or purchased a
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`qualifying replacement part during the applicable class periods can submit a claim.
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`7.
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`Under this Court’s Orders, the last day to submit a claim was June 18,
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`2020. Specifically, in order to participate in the settlements, this Court’s Orders
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`required a class member to timely provide the following information regarding the
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`class member’s purchase or lease of a qualifying new vehicle by June 18, 2020:
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`(1) The make, model, model year, and VIN number of the qualifying
`new vehicle the class member purchased or leased;
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`(2) The date the class member purchased or leased the qualifying new
`vehicle; and
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`(3) The state where the purchase or lease was made or in which the
`class member resided or, for businesses that are class members, the
`state or state where the principal place of business was located at
`the time of the purchase or lease.
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`8.
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`The June 18, 2020, claims deadline was the third final claims deadline
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`as two prior extensions had been granted by the Court.
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`3
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138-1, PageID.39318 Filed 05/15/21 Page 4 of 12
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`Claims Filed by FRS
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`9.
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`Financial Recovery Services (“FRS”) is a third-party claims-filing
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`company. FRS does not claim to have purchased or leased any qualifying vehicle or
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`replacement part. FRS has not submitted any claim on its own behalf. FRS has not
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`asserted that it is a class member, only that it represents the interests of some class
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`members.
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`10.
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`Instead, prior to the passage of the June 18, 2020 claims-filing deadline,
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`FRS submitted claim forms on behalf of several companies, some of whom were
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`insurance companies. Correspondence from FRS indicates that the claims
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`information submitted for these insurance companies is for purchases or leases of
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`vehicles made for their own account. Nothing indicates that the claims information
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`submitted for these insurance companies contains any assertion of subrogation
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`rights.
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`11. Despite this, FRS has asserted in briefing that it has insurance company
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`clients who seek to share in the settlements as subrogees of class member insureds
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`whose vehicles were declared a total loss due to a collision or other accident.
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`However, FRS, has yet to submit any of the information that would be needed to
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`substantiate any claims based on subrogation.
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`12. FRS does not claim that the insurance companies are class members in
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`their capacity as insurers, or that any class definition includes insurance companies
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`4
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138-1, PageID.39319 Filed 05/15/21 Page 5 of 12
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`asserting subrogation claims based on insurance payments to class members for
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`vehicles declared a total loss. Thus, under the terms of the settlements and the plan
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`of allocation, FRS does not qualify as a class member, and no insurance company is
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`entitled to a share in the settlements based upon payments made by the insurance
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`company to a class member pursuant to the terms of an insurance policy.
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`13.
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`In addition, neither the settlements, nor the Plan of Allocation makes
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`any provision for insurance companies to submit claims to share in the settlements
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`as subrogees of class member insureds who may have received insurance payments
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`relating to vehicles that an insurance company deemed a total loss. Thus, under the
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`terms of the settlements and the plan of allocation, there is no provision for any
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`insurance company to share in the settlements as a subrogee of any class member.
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`14. To date, nearly a year after the expiration of the claims-filing deadline,
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`FRS has not submitted any information on behalf of any insurance company in
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`support of any subrogation claim. Thus, any proof of claim information submitted
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`now would be nearly a year late and properly treated as untimely. This Court has
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`already held that “claims processing has been ongoing, and completion would be
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`delayed if the Court were to allow potentially thousands of [subrogation] claims to
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`be submitted after the deadline.” ECF No. 2101 at 38270.
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`15. FRS has, however, continued to provide new vehicle information for
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`both insurance-company and non-insurance company clients for purchases or leases
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`5
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138-1, PageID.39320 Filed 05/15/21 Page 6 of 12
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`of vehicles made for their own account. Nothing indicates that the claims
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`information submitted for these insurance companies contains any assertion of
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`subrogation rights. This claims information received after the June 18, 2020 claims-
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`filing deadline, is being processed although it is late. This will be dealt with in the
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`ordinary course of the claims administration process.
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`Prejudice to Administration Process and Actual Class Members
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`16. Allowance of late claims has never been authorized by any order of the
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`Court and requires Court-approval.
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`17. To allow the submission of subrogation claims or information that for
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`the first time provides any information to substantiate subrogation claims now—
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`much less at some indefinite time in the future as FRS seeks—would substantially
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`delay and prejudice the claims administration process. Putting to one side the fact
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`that the Plan of Allocation does not include any provisions for accepting or
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`administering claims based on subrogation rights, the additional expense of
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`administering and processing subrogation claims would also substantially reduce the
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`recoveries to be paid to qualifying class member claimant because the additional
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`administration costs would have to be paid out of the settlement funds.
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`18. Validation of subrogation claims by an insurance company would at
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`least require satisfactory proof of the following:
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` the identification of each vehicle owned by an insured class member,
`including the year, make, and model of the vehicle, the VIN number,
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`6
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138-1, PageID.39321 Filed 05/15/21 Page 7 of 12
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`the identity and name of the purchaser, the time and place where the
`purchase occurred, the residence or principal place of business of the
`purchaser at the time of purchase, and the date when the vehicle was
`declared a total loss;
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` the existence of a policy of insurance between the insurance company
`and the class member covering each vehicle in question, including
`proof that the insurance policy provided for subrogation in the event
`that a vehicle was declared a total loss;
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` proof that the vehicle that was insured at the time of the loss was
`purchased or leased as a new vehicle by the insured, and had not been
`acquired by the insured as a used vehicle;
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` proof that a qualifying vehicle was in an accident and declared a total
`loss;
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` proof that the insurance carrier made a payment to a class member for
`the vehicle that was declared a total loss;
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` documentation showing the purchase price paid by an insured class
`member, or agreed-value of the vehicle at the time of lease;
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` documentation showing the value of the vehicle at the time of the loss;
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` documentation of the payments made to a class member by the
`insurance company;
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` documentation of any payments the insurance company obtained from
`a third-party or tortfeasor regarding the collision or accident that caused
`the total loss, because any such payments would reduce the amount of
`any subrogation claim.
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`19.
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`If subrogation claims were allowed at this late date, such claims and the
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`information necessary to support such claims would necessarily be provided more
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`than a year after the claims submission deadline has passed. In addition, Epiq would
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`still need to compare any additional claims information submitted by FRS to the
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`claims already submitted by class members to avoid duplicate claims and ensure that
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`7
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138-1, PageID.39322 Filed 05/15/21 Page 8 of 12
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`subrogation claims are only applied to class members that (a) submitted valid claims,
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`(b) were insured by one of the insurance companies identified by FRS, (c) received
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`a payment from one of those insurance companies for a qualifying vehicle that was
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`declared a total loss, and (d) have not reduced or eliminated any subrogation claim.
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`20. This additional claims administration process would likely require the
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`Court to approve additional procedures for Epiq to apply in (1) evaluating whether
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`any subrogation claim would be eligible for any payment under the terms of the
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`settlements, and (2) creating a proportionate sharing calculation for the potential split
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`of the settlement payment between the class member insured who purchased a
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`qualifying new vehicle at the full purchase price, and the insurance company that
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`made a total loss payment for the “actual cash value” of the vehicle, adjusted for
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`depreciation, physical deterioration, and obsolescence. Because the pro rata
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`distribution of settlement funds assumes that each class member has purchased a
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`qualifying new vehicle at the purchase price charged for the qualifying new vehicle,
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`and an insurance company would have only paid the actual cash value of a used
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`vehicle at the time of loss (adjusted for depreciation and deterioration), an insurance
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`company seeking to recover as a subrogee would have no claim based on the
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`purchase price a class member insured paid for a qualifying new vehicle.
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`21. Due to significant differences in a claims administration process for
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`subrogation claims, Epiq would need to contact class members whose claims were
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`8
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138-1, PageID.39323 Filed 05/15/21 Page 9 of 12
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`potentially affected by a subrogation claim and obtain additional information about
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`their vehicles, including vehicle identification numbers, purchase price information,
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`agreed-upon lease values, and vehicle valuations at the time of loss. Out of fairness
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`to class members, Epiq would also need to provide notice to class members that an
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`insurance company has claimed that it is entitled to receive all or a portion of the
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`settlement payments that would otherwise be paid to the class member, and provide
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`the class member an opportunity to challenge the insurance company’s claim. This
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`would add additional complexity and expense to the claims-administration process.
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`22. Processing subrogation claims would further require Epiq to create
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`procedures for handling subrogation claims that do not currently exist under the plan
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`of allocation as approved by the Court. If subrogation claims were allowed, Epiq
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`would need to:
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` Create and implement procedures for matching subrogation claims to
`class members who submitted claims;
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` Create and implement procedures for reviewing documentation
`concerning auto insurance coverage and total loss payments, including
`procedures for requesting additional documentation and information
`that is missing or incomplete;
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` Create and implement procedures for comparing the new vehicle
`purchase price to the depreciated, actual cash value of the vehicle
`declared to be a total loss;
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` Create and implement procedures for determining a proportional or
`pro-rated payment for subrogation claims that appropriately considers
`the depreciated, actual cash value of the vehicle at the time of loss;
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`9
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138-1, PageID.39324 Filed 05/15/21 Page 10 of 12
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` Create and implement procedures for determining whether an insurer
`previously obtained subrogation payments from a third-party tortfeasor
`involved in the loss, and determine how and in what proportions such
`payments should reduce the proportional recovery of any subrogation
`claim;
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` Create and implement procedures for class members to challenge the
`alleged subrogation claims of insurance companies, including a process
`for adjudicating or resolving such challenges;
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` Create and implement a secondary settlement payment calculation that
`excludes subrogation claims from the initial calculation in which each
`claimant is entitled to a minimum payment of $100 because the
`proportional payment
`required
`for subrogation claims would
`necessarily affect claims already included in the initial calculation.
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`23. The creation and implementation of each of these additional processes
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`and procedures will require significant time, expense, and resources. Currently, it is
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`difficult to assess the amount of additional time, expense, and resources it would
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`take to create and implement the above processes and procedures. It is also difficult
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`to estimate the additional time, expense, and resources it will require to process
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`subrogation claims that FRS might submit. However, Epiq anticipates that the time,
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`expense, and resources required to create and implement additional procedures for
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`subrogation claims would be significant. It may delay the claims administration
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`process a year or more.
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`24. At a minimum the processing and verification of subrogation claims
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`would add many additional months to the claims-administration process.
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`Distribution of the settlement funds would be further, and indefinitely, delayed by
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`10
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138-1, PageID.39325 Filed 05/15/21 Page 11 of 12
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`any objections or appeals filed by class members or Class Counsel to address
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`subrogation claims that are not contemplated by the existing plan of allocation.
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`25.
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`If a new notice to the classes of a revised Plan of Allocation and
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`informing class members that subrogation clams will now be allowed for the first
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`time would be required by the Court, the cost of the new notice would be substantial.
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`The additional administrative expenses would also cost many hundreds of thousands
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`of dollars. Indeed, the information required to validate subrogation claims would be
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`extensive and require considerable time and effort that goes well beyond the time
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`and effort required to vet the claims of individual class members who complied with
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`the Court’s order by timely submitting claims in accordance with the Court’s notice
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`requirements and the Court-ordered claims deadline.
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`26. Accordingly, the resources needed to process and verify late-filed
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`subrogation claims would be significant, require substantial additional expenses to
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`be paid out of the class settlement funds, and prejudice the efficient and cost-
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`effective administration of this already complex claims administration process.
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`I declare under penalty of perjury under the laws of the United States that the
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`foregoing is true and correct.
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`Executed this 14th day of May 2021, in Seattle Washington.
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`Brian A. Pinkerton
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`11
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138-1, PageID.39326 Filed 05/15/21 Page 12 of 12
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`CERTIFICATE OF SERVICE
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`I hereby certify that on May 15, 2021, I electronically filed the
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`foregoing document with the Clerk of the Court using the CM/ECF system
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`which will send notification of such filing to all parties of record.
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`/s/ Jenna G. Farleigh
`Jenna G. Farleigh
`SUSMAN GODFREY L.L.P.
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`12
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