Case 2:12-md-02311-SFC-RSW ECF No. 2138-4, PageID.39334 Filed 05/15/21 Page 1 of 59
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`EXHIBIT A
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2138-4, PageID.39335 Filed 05/15/21 Page 2 of 59
`Case: 20-2260 Document: 19 Filed: 04/21/2021 Page: 1
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`No. 20-2260
`_______________
`
`UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
`_______________
`IN RE: AUTOMOTIVE PARTS ANTITRUST LITIGATION
`
`--------------------------------------------
`
`THIS RELATES TO: END-PAYOR ACTIONS
`
`
`--------------------------------------------
`
`
`END-PAYOR PLAINTIFFS,
`Plaintiffs-Appellees,
`
`v.
`FINANCIAL RECOVERY SERVICES, LLC,
`Intervenor-Appellant.
`_______________
`On Appeal from the United States District Court for the
`Eastern District of Michigan, No. 2:12-md-02311 (Hon. Sean F. Cox)
`_______________
`OPENING BRIEF FOR APPELLANT
`FINANCIAL RECOVERY SERVICES, LLC
`_______________
`AARON M. PANNER
`MATTHEW R. HUPPERT
`DANIEL S. SEVERSON
`KELLOGG, HANSEN, TODD,
` FIGEL & FREDERICK, P.L.L.C.
`1615 M Street, N.W., Suite 400
`Washington, D.C. 20036
`(202) 326-7921
`
`Counsel for Appellant Financial
`Recovery Services, LLC
`
`
`
`
`
`
`
`
`
`
`
`April 21, 2021
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`
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`
`
`

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`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`
`Disclosure of Corporate Affiliations
`and Financial Interest
`
`Sixth Circuit
`Case Number:
`
`Name of counsel:
`
`20-2260
`Aaron M. Panner
`
`Case Name:
`
`In re Auto Parts Antitrust Litigation
`
`Pursuant to 6th Cir. R. 26.1,
`
`Financial Recovery Services, LLC
`Name of Party
`
`makes the following disclosure:
`
`Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the
`identity of the parent corporation or affiliate and the relationship between it and the named
`party:
`
`1.
`
`No
`
`2.
`
`Is there a publicly owned corporation, not a party to the appeal, that has a financial interest
`in the outcome? If yes, list the identity of such corporation and the nature of the financial
`interest:
`No publicly owned company "has a substantial financial interest in the outcome of litigation" "by
`reason of insurance, a franchise agreement, or indemnity agreement." However, the following
`publicly owned companies are settlement claimants or have corporate affiliates that are
`settlement claimants: Mercury General Corporation, MAPFRE Insurance, Liberty Mutual
`Holding Company, Inc., American International Group, Inc., W. R. Berkley Corporation, and
`Selective Insurance Company of America.
`
`CERTIFICATE OF SERVICE
`
`April 21, 2021
`I certify that on _____________________________________ the foregoing document was served on all
`parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not,
`by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.
`
`Aaron M. Panner
`s/
`Counsel for Appellant Financial
`Recovery Services, LLC
`
`This statem ent is filed twice: when the appeal is initially opened and later, in the principal briefs,
`im m ediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form .
`
`6CA-1
`8/08
`
`Page 1 of 2
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`

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`TABLE OF CONTENTS
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`Page
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`DISCLOSURE OF CORPORATE AFFILIATIONS
`AND FINANCIAL INTEREST ................................................................................. i
`
`TABLE OF AUTHORITIES .................................................................................... iv
`
`STATEMENT IN SUPPORT OF ORAL ARGUMENT ....................................... vii
`
`PRELIMINARY STATEMENT ............................................................................... 1
`
`STATEMENT OF JURISDICTION.......................................................................... 3
`
`STATEMENT OF THE ISSUES............................................................................... 4
`
`STATEMENT OF THE CASE .................................................................................. 4
`
`I.
`
`II.
`
`The End-Payor Settlements and the GEICO Subrogation Claims .................. 4
`
`FRS and the Insurers Submit Claims To Recover as Subrogees
`from the End-Payor Settlements ...................................................................... 7
`
`III. Class Counsel Dispute the Insurers’ Subrogation Rights, and
`FRS and Class Counsel Seek a Ruling from the District Court ...................... 8
`
`IV. Class Counsel and the Claims Administrator Acquiesce in
`FRS’s Proposal To Defer Submission of Vehicle Information ..................... 12
`
`V.
`
`The District Court Denies FRS’s Motion To Intervene ................................ 13
`
`SUMMARY OF ARGUMENT ............................................................................... 17
`
`STANDARD OF REVIEW ...................................................................................... 18
`
`ARGUMENT ........................................................................................................... 19
`
`I.
`
`FRS’s Motion To Intervene Was Timely ...................................................... 22
`
`A.
`
`FRS Diligently Pursued a Ruling on the Insurers’
`Subrogation Rights .............................................................................. 22
`
`
`
`ii
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`B.
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`The District Court’s Untimeliness Ruling Ignored the
`Litigation Context and Erred in Finding Prejudice ............................. 27
`
`II.
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`FRS and the Insurers Have Subrogation Rights That Permit
`Them To Recover from the End-Payor Settlements ..................................... 39
`
`A.
`
`B.
`
`FRS and the Insurers Have a Substantial Legal Interest in
`Recovering as Subrogees from the End-Payor
`Settlements .......................................................................................... 40
`
`The Arguments Raised by Class Counsel and Cited by
`the District Court Against FRS’s and the Insurers’
`Subrogation Rights Are Incorrect ....................................................... 43
`
`CONCLUSION ........................................................................................................ 45
`
`CERTIFICATE OF COMPLIANCE
`
`CERTIFICATE OF SERVICE
`
`ADDENDUM: Designation of Documents
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`
`
`
`iii
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`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`
`Allstate Ins. Co. v. Mazzola, 175 F.3d 255 (2d Cir. 1999) ...................................... 40
`
`Blount-Hill v. Zelman, 636 F.3d 278 (6th Cir. 2011) .................................. 17, 19, 39
`
`Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123 (2d Cir. 2001) .......................... 18, 20
`
`Capers v. Cuyahoga Cty. Bd. of Election, 472 F.2d 1225
`(6th Cir. 1973) ............................................................................................... 37
`
`Devlin v. Scardelletti, 536 U.S. 1 (2002) ................................................................. 31
`
`Dry Max Pampers Litig., In re, 724 F.3d 713 (6th Cir. 2013) ................................ 24
`
`Fine Paper Antitrust Litig., In re, 695 F.2d 494 (3d Cir. 1982) .............................. 26
`
`GEICO Corp. v. Autoliv, Inc., 345 F. Supp. 3d 799
`(E.D. Mich. 2018) ........................................................................ 5, 6, 7, 40, 44
`
`Grubbs v. Norris, 870 F.2d 343 (6th Cir. 1989) ................................................ 19, 28
`
`Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999) ................................................. 18
`
`Jansen v. City of Cincinnati, 904 F.2d 336 (6th Cir. 1990) ............................... 24, 29
`
`Knowles v. Butz, 358 F. Supp. 228 (N.D. Cal. 1973) .............................................. 26
`
`Krueger v. Cartwright, 996 F.2d 928 (7th Cir. 1993) ....................................... 19, 39
`
`McDonald v. E.J. Lavino Co., 430 F.2d 1065 (5th Cir. 1970) .......................... 20, 39
`
`Mich. State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997) ............ 18, 20, 21, 39
`
`Moulton v. U.S. Steel Corp., 581 F.3d 344 (6th Cir. 2009) ............................... 26-27
`
`Nat’l Surety Corp. v. Hartford Cas. Ins. Co., 493 F.3d 752
`(6th Cir. 2007) ................................................................................... 18, 40, 43
`
`
`
`iv
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`NLRB v. Newcor Bay City Div. of Newcor, Inc., 219 F. App’x 390
`(6th Cir. 2007) ......................................................................................... 24-25
`
`Pittington v. Great Smoky Mountain Lumberjack Feud, LLC,
`880 F.3d 791 (6th Cir. 2018) ......................................................................... 19
`
`Price v. Jefferson Cty., 9 F. App’x 369 (6th Cir. 2001) .................................... 19, 21
`
`Sales v. Marshall, 873 F.2d 115 (6th Cir. 1989) ....................................................... 4
`
`Turn Key Gaming, Inc. v. Oglala Sioux Tribe, 164 F.3d 1080
`(8th Cir. 1999) ............................................................................................... 20
`
`United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977) ........................................ 24
`
`United States v. City of Detroit, 712 F.3d 925
`(6th Cir. 2013) ......................................................................17, 22, 27, 29, 30,
`
`31, 32, 33, 35, 36, 37
`
`US Airways, Inc. v. McCutchen, 569 U.S. 88 (2013) .............................................. 40
`
`Weaver v. Univ. of Cincinnati, 970 F.2d 1523 (6th Cir. 1992) ............................... 21
`
`Williams v. Gen. Elec. Capital Auto Lease, Inc., 159 F.3d 266
`(7th Cir. 1998) ............................................................................................... 19
`
`
`
`STATUTES AND RULES
`
`15 U.S.C. § 4 .............................................................................................................. 3
`
`28 U.S.C. § 1291 ........................................................................................................ 3
`
`28 U.S.C. § 1331 ........................................................................................................ 3
`
`28 U.S.C. § 1337 ........................................................................................................ 3
`
`Fed. R. App. P. 4(a)(1)(A) ......................................................................................... 4
`
`Fed. R. Civ. P. 12(b)(6) ............................................................................................ 44
`
`
`
`v
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`Fed. R. Civ. P. 23 ........................................................................................... 2, 26, 27
`
`Fed. R. Civ. P. 23(c)(2)(B)(iv) ................................................................................. 26
`
`Fed. R. Civ. P. 24 ................................................................................................. 2, 17
`
`Fed. R. Civ. P. 24(a) ................................................................................................. 18
`
`Fed. R. Civ. P. 24(a)(2) ....................................................................14, 19, 20, 21, 40
`
`
`
`OTHER AUTHORITIES
`
`16 Couch on Insurance (3d ed.) ............................................................................... 40
`
`3 Newberg on Class Actions (5th ed.) ...................................................................... 26
`
`
`
`vi
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`

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`STATEMENT IN SUPPORT OF ORAL ARGUMENT
`
`
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`FRS requests oral argument under 6 Cir. R. 34(a). Oral argument likely will
`
`prove helpful to the Court because this case involves important legal issues related
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`to class action procedure and equitable subrogation of insurers.
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`
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`vii
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`PRELIMINARY STATEMENT
`In the underlying class action litigation pending before the district court,
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`auto parts manufacturers, accused of fixing prices, agreed to pay $1.2 billion to
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`settle the antitrust claims of consumers in 30 states and the District of Columbia—
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`“End-Payor Plaintiffs”—who purchased overpriced replacement parts or new cars
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`that included overpriced parts. Financial Recovery Services, LLC (“FRS”) is a
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`class action claims management firm that prepares, submits, and manages its
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`clients’ claims to recover amounts that are due to them under class action
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`settlements like the ones in this case. This appeal involves the claims of insurers
`
`(including claims assigned to FRS itself) that made payments to insureds for
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`vehicles that, as the result of theft or damage, were deemed a “total loss.” FRS
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`maintains (and no one seriously questions as a factual matter) that these market-
`
`value payments included compensation to the vehicle owners for their antitrust
`
`overcharges. Accordingly, the insurers (and FRS as assignee) are subrogated to
`
`the claims of their insureds, and have a right to recover damages on account of
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`those total loss vehicles.
`
`Counsel for the End-Payor Plaintiffs (“Class Counsel”) disputed that the
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`insurers have any right to recover as subrogees, arguing that, because the relevant
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`insurance policies did not specifically cover antitrust losses, the insurers could not
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`recover any amounts paid to insureds. FRS disagreed, arguing that the key
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`
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`

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`question for purposes of the insurers’ subrogation rights is whether compensation
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`was paid to indemnify the insureds for the injuries compensated via the settlements
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`(as it admittedly was), not whether the policies, by their terms, insured against the
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`particular type of loss.
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`FRS and Class Counsel were unable to resolve this issue and accordingly
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`agreed to submit the question to the district court, which they did through an
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`exchange of briefs beginning in December 2019. In June 2020, with the deadline
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`for submission of settlement claims imminent and with no ruling from the court,
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`FRS moved to intervene under Rule 24 to expedite resolution of the subrogation
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`question, even though, under Rule 23, class members need not intervene to
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`ascertain their membership in the class or their right to recover from a class
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`settlement. The district court declined to consider FRS’s earlier briefing on the
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`subrogation issue and denied FRS’s motion to intervene exclusively on the ground
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`that the motion was untimely. Citing Class Counsel’s terms-of-coverage
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`argument, the court also questioned (though it did not resolve) whether the insurers
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`had a substantial legal interest to protect. FRS—to avoid any risk of waiver—
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`appealed the district court’s ruling, while continuing to pursue recovery through
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`the court-approved claims process.
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`This Court should reverse the district court’s ruling. First, the ruling that
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`FRS’s motion to intervene was untimely is incorrect because FRS acted diligently
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`
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`2
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`to obtain a ruling on the subrogation question, and, in any event, there was no
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`prejudice to any party from the timing of FRS’s intervention motion. Indeed, FRS
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`should not have been required to intervene to obtain a legal ruling concerning the
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`insurers’ status as members of the class, an issue that, by agreement, FRS and
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`Class Counsel had appropriately placed before the district court months earlier.
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`Second, Appellees cannot defend the decision below on the ground that FRS
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`lacks a substantial legal interest based on subrogation. The district court did not
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`rule on this ground or resolve this issue, and this Court need not resolve it either:
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`All that is required for intervention is a claimed legal interest—here, a claim to
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`recover settlement funds based on a subrogation interest—which FRS
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`unquestionably has. In any event, the claimed subrogation interest is valid:
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`Because subrogation turns on whether the subrogee compensated an injured party
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`for its injuries under a legal duty—as the insurers did—the insurers have a right to
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`stand in the shoes of their insureds to the extent of the compensation that the
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`insurers paid.
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`STATEMENT OF JURISDICTION
`The district court had jurisdiction under 28 U.S.C. §§ 1331, 1337, and 15
`
`
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`U.S.C. § 4 because the End-Payor Plaintiffs’ claims arise under the federal antitrust
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`laws, including the Sherman Act. This Court has jurisdiction under 28 U.S.C.
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`§ 1291 over a timely appeal of a complete denial of a motion to intervene. “[A]n
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`3
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`

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`order completely denying intervention is immediately reviewable by way of an
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`interlocutory appeal.” Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989). The
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`present appeal is timely because the district court issued its order denying
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`intervention on November 17, 2020, Op. and Order, RE 2101, Page ID ## 38264-
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`38270, and FRS filed its notice of appeal on December 16, 2020, Notice of Appeal,
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`RE 2105, Page ID ## 38278-38279. See Fed. R. App. P. 4(a)(1)(A).
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`STATEMENT OF THE ISSUES
`1. Whether the district court erred in denying FRS’s motion to intervene
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`solely on the grounds that it was untimely, when FRS diligently sought
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`clarification of putative class members’ legal right to recover settlement amounts
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`based on subrogation, and the timing of its motion did not prejudice any party.
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`
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`2. Whether the district court’s order denying intervention may properly
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`be affirmed based on the conclusion that FRS—which claims a valid subrogation
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`interest in settlement funds—lacks a substantial legal interest, a question that the
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`district court did not resolve.
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`STATEMENT OF THE CASE
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`I.
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`The End-Payor Settlements and the GEICO Subrogation Claims
`This appeal arises from a series of settlements reached in a subset of class
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`actions, known as the “End-Payor Actions,” in the Automotive Parts Antitrust
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`multi-district litigation. The plaintiffs in those actions (the End-Payor Plaintiffs,
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`4
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`

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`Appellees here) are consumers and businesses that purchased or leased vehicles
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`containing certain automotive parts, or who indirectly purchased certain
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`replacements parts. They alleged that the defendant manufacturers and suppliers
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`unlawfully agreed to fix prices of auto parts and that, as a result, the plaintiffs paid
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`elevated prices for their vehicles or replacement parts. See, e.g., Third Am.
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`Compl., No. 2:12-cv-00403, RE 229, Page ID ## 8250-8252, 8294-8300 (¶¶ 1, 3-4,
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`179-196).
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`From December 2013 to July 2019, the End-Payor Plaintiffs, on behalf of
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`nationwide classes, settled claims against 73 defendants or groups of defendants,
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`and the district court approved each of those class settlements (collectively, the
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`“End-Payor Settlements”) in four groups, or “rounds,” starting in 2016. Op. and
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`Order, RE 2101, Page ID ## 38264, 38269. The End-Payor Settlements, which
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`totaled approximately $1.2 billion, encompassed thousands of vehicle makes and
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`models sold in, or purchased or leased by residents of, 30 states and the District of
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`Columbia over a 30-year period.
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`In 2016, GEICO, one of the largest writers of automobile insurance policies
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`in the United States, opted out of the first round of the End-Payor Settlements and
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`instead pursued individual claims against 14 defendants. GEICO Corp. v. Autoliv,
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`Inc., 345 F. Supp. 3d 799, 808 (E.D. Mich. 2018). GEICO was a “putative
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`member of the proposed classes” in the End-Payor Actions by virtue of (1) “its
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`
`
`5
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`

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`own purchase of [certain] auto parts for use in a fleet of vehicles that it owns,”
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`often called “fleet vehicles,” and (2) “its reimbursement of insureds and third-party
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`claimants,” including for “the full value of a vehicle that has been declared a total
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`loss,” often called “total loss vehicles.” Id. at 809.
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`In April 2017, the Round 1 End-Payor defendants moved to dismiss
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`GEICO’s opt-out claims. The district court held that GEICO’s claims based on
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`payments for total loss vehicles were “properly analyzed under the law governing
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`an insurer’s right of subrogation.” Id. at 831. Subrogation “allows insurers to
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`‘stand in the shoes’ of their insured” and “require[s] the party who caused the
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`damage [to the insured] to reimburse the insurer for the payment the insurer has
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`made to its insured.” Id. GEICO alleged that the total loss payments it made to its
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`insureds included overcharges that resulted from defendants’ anticompetitive
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`conduct, and that GEICO therefore had a subrogation right to recover those
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`overcharges from defendants. Notwithstanding GEICO’s subrogation rights, the
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`defendants argued that GEICO’s insureds had, in the first round of settlements
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`resolving the End-Payor classes’ claims against the moving defendants, released
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`the claims on which GEICO’s subrogation rights depended. See id. at 830-31.
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`In August 2018, the district court denied defendants’ motion to dismiss as to
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`GEICO’s subrogation-based claims, holding that the affirmative defense of release
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`depended on factual questions not addressed by GEICO’s complaint. Id. at
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`6
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`833-34. The district court therefore permitted GEICO “to pursue its claimed right
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`of subrogation” in an amended complaint. Id. GEICO repleaded its subrogation
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`theory of recovery in December 2018, see Am. Compl., GEICO Corp. v. Alps Elec.
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`Co., No. 2:16-cv-13189 (E.D. Mich. Dec. 20, 2018), RE 77-8, Page ID ## 3123-
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`3124 (¶¶ 111-114), and settled with defendants in December 2019 for an
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`undisclosed amount.
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`II.
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`FRS and the Insurers Submit Claims To Recover as Subrogees from the
`End-Payor Settlements
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`Appellant FRS manages its clients’ claims to recover funds they are entitled
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`to receive from class action settlements. Ltr. Br., RE 2060-3, Page ID # 37734.
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`Eight automobile insurers (the “Insurers”) retained FRS to file and manage their
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`claims in the End-Payor Settlements. Leibell Decl., RE 2060-2, Page ID ##
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`37728-37729 (¶ 9). One Insurer (Selective) also assigned its claims in the End-
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`Payor Actions, and all related interests, to FRS. Assignment, RE 2064-3, Page ID
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`## 38024-38025. All of the Insurers made contractually required payments to End-
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`Payor Settlement class members for eligible total loss vehicles (the “Total Loss
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`Vehicles”)—that is, the Insurers paid the market value of class members’ damaged
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`vehicles when the cost of repairing those vehicles exceeded that value. Ltr. Br.,
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`RE 2060-3, Page ID # 37737. Several Insurers also purchased or leased eligible
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`vehicles for their own use (the “Fleet Vehicles”). Leibell Decl., RE 2060-2, Page
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`ID # 37729 (¶ 9).
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`
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`7
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`Just as GEICO made claims both as a subrogee and as a purchaser of
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`vehicles, the Insurers seek to recover from the End-Payor Settlements both as
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`subrogees—based on their payments for Total Loss Vehicles—and as purchasers
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`or lessees of Fleet Vehicles. See id. (Their claims for Fleet Vehicles are not
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`implicated in this appeal.) Accordingly, between May 4, 2018, and March 12,
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`2020, FRS, on behalf of the Insurers, submitted claim forms for Total Loss
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`Vehicles and Fleet Vehicles to Epiq Class Action & Claims Solutions (“Epiq” or
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`the “Claims Administrator”), id., Page ID # 37728 (¶ 9), which the district court
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`appointed to administer claims in the End-Payor Settlements, see Pinkerton Decl.,
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`RE 2098-1, Page ID # 38210 (¶ 1).
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`III. Class Counsel Dispute the Insurers’ Subrogation Rights, and FRS and
`Class Counsel Seek a Ruling from the District Court
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`In November 2018, shortly after FRS had begun submitting claim forms on
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`behalf of the Insurers, FRS contacted Class Counsel to discuss an efficient process
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`for the Insurers to collect and submit vehicle information in support of their claims.
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`R. Niemiec 11/14/18 Email, RE 2060-5, Page ID # 37777 (asking “to address now
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`any data collection issues that may exist so that the process is more efficient”).
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`The Insurers’ claim forms did not initially contain vehicle information because, as
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`the Insurers’ claims encompass hundreds of thousands of vehicles that their
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`insureds purchased or leased over the course of decades, it is costly and time-
`
`consuming to identify, collect, and properly evaluate for eligibility the volume of
`
`
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`8
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`data associated with that many vehicles. Id.; see also Leibell Decl., RE 2114-2,
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`Page ID # 38343 (¶ 11 n.13) (estimating it could cost hundreds of thousands of
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`dollars to complete this work). In December 2018, FRS continued to discuss these
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`issues with Class Counsel via email and sent to them a memorandum setting forth
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`the legal bases for the Insurers’ right, as subrogees, to recover from the End-Payor
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`Settlements. 1/14/19 Email and Research Mem., RE 2060-6, Page ID ## 37779-
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`37816.
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`In January 2019, FRS and Class Counsel met and conferred by phone to
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`discuss the Insurers’ claims. Leibell Decl., RE 2060-2, Page ID # 37727 (¶ 5).
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`During that call, Class Counsel disagreed with FRS that the Insurers, as subrogees,
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`may recover from the End-Payor Settlements, and they referred FRS to legal
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`authority they believed supported their position. Id. (¶ 6). The parties also
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`“discussed potential mechanisms for bringing the legal issue regarding subrogation
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`to the attention of the Court in the event [they] continued to disagree.” Id. Class
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`Counsel originally “suggested that the Insurers should file claims, wait for them to
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`be rejected, and then appeal that rejection to the Court,” but FRS objected to that
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`approach because “it would not be practical to submit claims for many thousands
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`of total loss vehicles before resolving the threshold legal question whether such
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`claims would be permitted.” Id., Page ID ## 37727-37728 (¶ 6). The parties
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`
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`9
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`ultimately agreed to defer any further discussion of the subrogation issue and the
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`potential mechanism for raising it with the court. Id., Page ID # 37728 (¶ 6).
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`In August 2019, the district court authorized Class Counsel to disseminate to
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`potential class members notice of the fourth round of End-Payor Settlements and
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`ruled that “all members of the Round 1, 2, 3, and 4 Settlement Classes who have
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`not previously filed claims” could do so on or before December 31, 2019. See
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`Order, No. 2:12-cv-00403, RE 291, Page ID ## 10398-10399, 10401. The Court,
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`at Class Counsel’s request, later extended that deadline twice—once on December
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`20, 2019 to provide additional time to disseminate a supplemental class notice, and
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`again on March 24, 2020 due to a cyber attack experienced by the Claims
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`Administrator—and ultimately set June 18, 2020 as the deadline for filing claim
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`forms. See Order, RE 2032, Page ID # 37511; Order, RE 2044, Page ID # 37658.
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`In October 2019, “[w]ith the [then-current] December 31, 2019 filing
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`deadline approaching,” FRS once again contacted Class Counsel “to reach an
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`agreement or to seek the Court’s assistance” regarding “whether auto insurers may
`
`recover from the [End-Payor] settlements the indemnity payments they made for
`
`eligible vehicles that were deemed a total loss.” Leibell 10/17/19 Email, RE 2060-
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`7, Page ID ## 37818-37819. FRS tried one last time to persuade Class Counsel of
`
`its position, providing them with a draft letter that FRS intended to submit to the
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`district court about the Insurers’ subrogation claims. Id., Page ID # 37818. On
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`
`
`10
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`November 2, 2019, however, Class Counsel responded: “[T]here is no question
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`that Auto Insurers are not class members and therefore have no rights as class
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`members or as subrogees of class members.” Class Counsel 11/2/19 Ltr., RE
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`2060-8, Page ID # 37822.
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`Although Class Counsel’s November 2 letter invited FRS “to further discuss
`
`these matters if [it] would like,” id., Page ID # 37828, it had become clear by then,
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`especially as the claim filing deadline approached, that the parties’ dispute about
`
`the subrogation issue would need to be resolved by the district court. FRS and
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`Class Counsel agreed to submit the subrogation issue to the district court right
`
`away, which would defer the burden of submitting vehicle information until after
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`the court resolved the threshold legal dispute. 11/25-26/19 Email Exchange, RE
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`2060-9, Page ID ## 37901-37902. The parties therefore agreed to a “briefing
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`schedule for FRS’s letter to the Court.” Id., Page ID # 37901.
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`In accordance with that schedule, FRS submitted to the district court a letter
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`brief on December 13, 2019, asking for “an order declaring that” the Insurers “are
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`subrogees” of End-Payor Settlement class members “and, therefore, may recover
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`from the [End-Payor] Settlements to the extent of their indemnity payments.” Ltr.
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`Br., RE 2060-3, Page ID ## 37734-37735. Although FRS’s letter was not
`
`docketed, the response of Class Counsel, filed on January 16, 2020, was docketed.
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`Pls.’ Resp. Br., RE 2034, Page ID ## 37513-37539. In that response, Class
`
`
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`11
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`Counsel opposed on the merits FRS’s request for a ruling confirming the Insurers’
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`subrogation rights. Class Counsel did not argue that such a request was untimely
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`or that FRS or the Insurers were required to intervene to obtain a legal ruling on
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`the subrogation issue. As agreed, FRS submitted its reply letter brief on
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`January 30, 2020. Reply Ltr. Br., RE 2060-4, Page ID ## 37768-37775.
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`IV. Class Counsel and the Claims Administrator Acquiesce in FRS’s
`Proposal To Defer Submission of Vehicle Information
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`On March 9, 2020, several weeks after the parties had completed briefing
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`FRS’s request for a ruling on the subrogation issue, and one week before the then-
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`current deadline for filing claims, FRS notified the Claims Administrator and Class
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`Counsel in writing that FRS would “supplement the timely-filed proof of claim for
`
`each Auto Insurer” with vehicle information once the district court ruled that the
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`Insurers could recover as subrogees. Leibell 3/9/20 Ltr., RE 2060-10, Page ID #
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`37916. FRS proposed this course of action, which is commonplace in class action
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`settlement administration, in light of (1) the pending threshold dispute about
`
`Insurers’ subrogation rights, (2) the “considerable undertaking” required to
`
`“i