Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39417 Filed 05/18/21 Page 1 of 25
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`Master File No. 12-md-02311
`IN RE: AUTOMOTIVE PARTS
`
`ANTITRUST LITIGATION
`
`
`Hon. Sean F. Cox
`
`Mag. Judge R. Steven Whalen
`
`
`THIS DOCUMENT RELATES TO:
`
`ALL END-PAYOR ACTIONS
`
`
`
`
`
`FINANCIAL RECOVERY SERVICES, LLC’S
`OPPOSITION TO END-PAYOR PLAINTIFFS’ MOTION TO STRIKE
`
`PLEASE TAKE NOTICE that, upon the accompanying memorandum,
`
`Financial Recovery Services, LLC d/b/a Financial Recovery Strategies (“FRS”), by
`
`its undersigned attorneys, opposes End-Payor Plaintiffs’ Motion To Strike FRS’s
`
`Motion for Reconsideration of the Court’s April 28 Opinion and Order (ECF No.
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`2138).
`
`WHEREFORE, FRS requests that the Court grant the following relief:
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`A. Deny End-Payor Plaintiffs’ Motion To Strike; and
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`B. Grant such further relief as the Court determines to be appropriate.
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`
`
`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39418 Filed 05/18/21 Page 2 of 25
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`Dated: May 18, 2021
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`Respectfully submitted,
`
`
`
`
`
`
`
`/s/ Laura S. Faussié
`Jonathan T. Walton, Jr. (P32969)
`Laura S. Faussié (P48933)
`FRASER TREBILCOCK
` DAVIS & DUNLAP, P.C.
`One Woodward Avenue, Suite 1550
`Detroit, MI 48226
`(313) 237-7300
`jwalton@fraserlawfirm.com
`lfaussie@fraserlawfirm.com
`
`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) 326-7900
`apanner@kellogghansen.com
`mhuppert@kellogghansen.com
`dseverson@kellogghansen.com
`
`Counsel for Financial Recovery
`Services, LLC
`
`ii
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39419 Filed 05/18/21 Page 3 of 25
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`Master File No. 12-md-02311
`IN RE: AUTOMOTIVE PARTS
`
`ANTITRUST LITIGATION
`
`
`Hon. Sean F. Cox
`
`Mag. Judge R. Steven Whalen
`
`
`THIS DOCUMENT RELATES TO:
`
`
`ALL END-PAYOR ACTIONS
`
`BRIEF IN SUPPORT OF FINANCIAL RECOVERY SERVICES, LLC’S
`OPPOSITION TO END-PAYOR PLAINTIFFS’ MOTION TO STRIKE
`
`
`
`
`iii
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39420 Filed 05/18/21 Page 4 of 25
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`TABLE OF CONTENTS
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`Page
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`TABLE OF AUTHORITIES ..................................................................................... v
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`ISSUE PRESENTED .............................................................................................. vii
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`CONTROLLING OR MOST APPROPRIATE AUTHORITIES ......................... viii
`
`LEGAL STANDARD ................................................................................................ 4
`
`ARGUMENT ............................................................................................................. 5
`
`I.
`
`The Court Should Deny Class Counsel’s Motion To Strike
`Because It Is an Unauthorized Response to FRS’s Motion for
`Reconsideration ............................................................................................... 5
`
`II.
`
`There Is No Basis To Strike FRS’s Motion for Reconsideration .................... 6
`
`A.
`
`FRS’s Motion Is Not a Pleading Subject to a Motion To
`Strike ...................................................................................................... 6
`
`B.
`
`FRS’s Motion Does Not Violate This Court’s Local Rules ................. 7
`
`C. Disagreement About the Court’s Jurisdiction Is Not a
`Basis To Strike FRS’s Motion .............................................................. 8
`
`III. Class Counsel’s Motion To Strike Presents No Basis To Deny
`FRS’s Motion for Reconsideration on the Merits ........................................... 9
`
`A. Under Rule 23, Non-Parties with Class-Member Interests
`May, Without Intervening, Seek Appropriate Relief in a
`Class Proceeding ................................................................................... 9
`
`B.
`
`FRS’s Motion To Compel Is Independent from FRS’s
`Prior Motion To Intervene and from FRS’s Pending
`Appeal.................................................................................................. 12
`
`IV. Class Counsel’s Change in Position Reinforces the Need To
`Process Data To Avoid Prejudicing Auto Insurers’ Claims .......................... 13
`
`CONCLUSION ........................................................................................................ 15
`
`iv
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39421 Filed 05/18/21 Page 5 of 25
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`TABLE OF AUTHORITIES
`
`Page
`
`CASES
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`Adelson v. Ocwen Fin., 2017 WL 2930991
`
`(E.D. Mich. July 10, 2017) .......................................................................... 4, 5
`
`Am. Civil Liberties Union of Ky. v. McCreary Cty., 607 F.3d 439
`(6th Cir. 2010) ................................................................................................. 4
`
`Brown & Williamson Tobacco Corp. v. United States,
`201 F.2d 819 (6th Cir. 1953) ....................................................................... 4, 7
`
`Dearborn Tree Serv., Inc. v. Gray’s Outdoorservices, LLC,
`2014 WL 5293098 (E.D. Mich. Oct. 15, 2014) ............................................... 5
`
`Faber v. Ciox Health, LLC, 944 F.3d 593 (6th Cir. 2019) ...................................... 11
`
`Fine Paper Antitrust Litig., In re, 695 F.2d 494 (3d Cir. 1982) .............................. 10
`
`Fox v. Mich. State Police Dep’t, 173 F. App’x 372 (6th Cir. 2006) ..................... 4, 7
`
`Glassbrook v. Rose Acceptance, Inc., 2014 WL 466154
`(E.D. Mich. Feb. 5, 2014) ................................................................................ 5
`
`Herrerra v. Mich. Dep’t of Corr., 2011 WL 3862426
`(E.D. Mich. July 22, 2011) .......................................................................... 4, 7
`
`Lentz v. Loxton, 2013 WL 449907 (E.D. Mich. Feb. 6, 2013) .................................. 8
`
`Moulton v. U.S. Steel Corp., 581 F.3d 344 (6th Cir. 2009) ..................................... 11
`
`Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ........................................... 10
`
`Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,
`507 U.S. 380 (1993)....................................................................................... 13
`
`Reid v. City of Detroit, 2020 WL 5878218 (E.D. Mich. Oct. 2, 2020) ................. 6-7
`
`Steele v. Punch Bowl Detroit, LLC, 2017 WL 2821970
`(E.D. Mich. June 29, 2017) ............................................................................. 5
`
`v
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39422 Filed 05/18/21 Page 6 of 25
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`United States v. Ruiz, 536 U.S. 622 (2002) ............................................................... 9
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`
`
`RULES
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`Fed. R. Civ. P.:
`
`Rule 7(a) .......................................................................................................... 7
`
`Rule 12(f) ............................................................................................ 3, 4, 6, 7
`
`Rule 23 ............................................................................................. 3, 9, 10, 11
`
`Rule 23(c) ...................................................................................................... 10
`
`Rule 23(d) ...................................................................................................... 11
`
`Rule 24 ................................................................................................... 3, 9, 10
`
`E.D. Mich. L.R.:
`
`
`
`
`
`
`
`
`
`
`
`Rule 7.1 cmt. .................................................................................................... 2
`
`Rule 7.1(a) ....................................................................................................... 5
`
`Rule 7.1(a)(2) ................................................................................................... 1
`
`Rule 7.1(h) ................................................................................... 1, 2, 4, 5, 6, 8
`
`
`
`vi
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39423 Filed 05/18/21 Page 7 of 25
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`ISSUE PRESENTED
`
`Should the Court deny Class Counsel’s “motion to strike,” which is, in substance,
`an unauthorized response to the merits of FRS’s motion for reconsideration, and
`which presents no proper basis to strike FRS’s motion?
`
`FRS says “Yes.”
`
`
`
`vii
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39424 Filed 05/18/21 Page 8 of 25
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`CONTROLLING OR MOST APPROPRIATE AUTHORITIES
`
`Fox v. Mich. State Police Dep’t, 173 F. App’x 372 (6th Cir. 2006)
`
`Adelson v. Ocwen Fin., 2017 WL 2930991 (E.D. Mich. July 10, 2017)
`
`E.D Mich. L.R. 7.1
`
`
`
`
`viii
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39425 Filed 05/18/21 Page 9 of 25
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`The Court should deny Class Counsel’s motion to strike because it is an
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`unauthorized response to FRS’s motion for reconsideration, which the Court’s
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`Local Rule 7.1(h) expressly prohibits.1 Class Counsel’s flouting of this Court’s
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`rules is by itself sufficient to deny their motion. The motion also should be denied
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`because it presents no basis for either striking or denying FRS’s motion for
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`reconsideration: it cites no circumstances that satisfy the exacting standard for
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`striking a pleading, and it fails to rebut FRS’s bases for seeking reconsideration of
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`this Court’s decision not to rule on FRS’s prior request to have the Insurers’
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`vehicle data—which has now been submitted in full2—processed in the same
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`manner as all other claimants’ data.
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`Indeed, Class Counsel now concede—for the first time, and in an about-face
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`from repeated representations made to FRS and this Court—that purported
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`untimeliness of the submission of vehicle data in support of timely filed claims (as
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`the Insurers’ claims were) is not a proper basis for refusing to process such data.
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`Accordingly, it is now undisputed that Class Counsel’s refusal to process Insurers’
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`Total Loss Vehicle data is based exclusively on the contention that equitable
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`subrogation is not a valid basis to recover from the End-Payor Settlements. The
`
`
`1 Class Counsel’s motion violates Local Rule 7.1(a)(2) also because Class
`Counsel failed to confer with FRS before filing it.
`2 On May 17, 2021, FRS submitted complete data for six auto insurer
`clients. See Exhibit 1 (Decl. of J. Leibell).
`
`
`
`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39426 Filed 05/18/21 Page 10 of 25
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`Court has thus far declined to decide that sharply disputed subrogation issue, and
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`Class Counsel therefore have no authority to decline to process vehicle
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`information—at the risk of prejudicing potentially valid claims—on that basis.
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`Class Counsel’s latest retreat highlights that they are administering the End-Payor
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`Settlements to target the Insurers, rather than to maximize recovery, and reinforces
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`the importance of this Court’s ordering the processing of the Insurers’ vehicle data.
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`First, Class Counsel’s motion to strike is nothing more than an unauthorized
`
`response to the merits of FRS’s motion for reconsideration (ECF No. 2137). All of
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`Class Counsel’s arguments for “striking” FRS’s motion take issue with FRS’s
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`grounds for seeking reconsideration: FRS has argued that non-party class
`
`members may seek relief in a class proceeding without intervening (Class Counsel
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`argue to the contrary), and FRS’s motion to compel is independent from its prior
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`motion to intervene and its pending appeal (again, Class Counsel argue to the
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`contrary). Local Rule 7.1(h) expressly prohibits such a response “unless the Court
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`orders” it. Class Counsel’s transparent attempt to circumvent that rule is a
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`sufficient basis to deny their motion to strike.3
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`Second, Class Counsel present no proper basis for striking FRS’s motion.
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`Disagreement with the merits of FRS’s motion is not a basis to strike it. Moreover,
`
`
`3 See also L.R. 7.1 cmt. (“Attempts to circumvent the LR in any way may be
`considered an abusive practice which may result in . . . sanctions being imposed
`under LR 11.1.”).
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`2
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39427 Filed 05/18/21 Page 11 of 25
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`FRS’s motion is not a “pleading” that may be stricken under Rule 12(f), and FRS’s
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`motion does not violate any local rule; it was timely filed and did not seek
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`reconsideration of a denial of reconsideration.
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`Third, Class Counsel’s motion fails as an attempt to oppose FRS’s motion
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`for reconsideration on the merits. In seeking reconsideration of the Court’s denial
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`of its motion to compel processing of vehicle data, FRS argued that (1) the Court
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`erred in holding that non-party class members must intervene under Rule 24 to
`
`seek relief, and (2) FRS’s motion to compel processing of vehicle data was
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`independent from FRS’s prior motion to intervene and, therefore, did not constitute
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`a request for reconsideration of the denial of that motion. On the first issue, Class
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`Counsel’s motion to strike misstates FRS’s prior arguments about intervention and
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`the law governing class actions. FRS has consistently argued that it need not
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`intervene to seek ascertainment or protection of its class-member interests, and that
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`position is well supported by Rule 23 and precedent. On the second issue, Class
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`Counsel’s argument rests entirely on their misreading of this Court’s order denying
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`intervention. They contend that this Court’s two-sentence statement about
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`prejudice in the context of evaluating the timeliness of FRS’s motion to intervene
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`purported to preclude all subrogated insurers from recovering from the End-Payor
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`Settlements. The Court made no such sweeping ruling, and FRS’s pending appeal
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`about intervention does not address the Claims Administrator’s refusal to process
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`3
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39428 Filed 05/18/21 Page 12 of 25
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`claimants’ vehicle information. The Court should deny Class Counsel’s motion to
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`strike.
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`LEGAL STANDARD
`
`This Court “may strike from a pleading an insufficient defense or any
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`redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f)
`
`(emphasis added). However, Rule 12(f) applies only to “pleadings,” not to briefs
`
`or other filings. See, e.g., Fox v. Mich. State Police Dep’t, 173 F. App’x 372, 375
`
`(6th Cir. 2006); Herrerra v. Mich. Dep’t of Corr., 2011 WL 3862426, at *2 (E.D.
`
`Mich. July 22, 2011) (“[T]he Federal Rules of Civil Procedure do not provide for a
`
`motion to strike documents or portions of documents other than pleadings,” and
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`“motions, briefs, and affidavits do not constitute ‘pleadings’ subject to
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`Rule 12(f).”). Striking a pleading “is a drastic remedy” that should occur “only
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`when the pleading to be stricken has no possible relation to the controversy.”
`
`Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir.
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`1953).
`
`The Court also possesses inherent authority to control its docket by striking
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`filings that violate its local rules. See, e.g., Am. Civil Liberties Union of Ky. v.
`
`McCreary Cty., 607 F.3d 439, 451 (6th Cir. 2010). For example, courts in this
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`district strike motions for violating Local Rule 7.1(h)’s prohibition on filing
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`responses to motions for reconsideration, see, e.g., Adelson v. Ocwen Fin., 2017
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`4
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39429 Filed 05/18/21 Page 13 of 25
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`WL 2930991, at *1 (E.D. Mich. July 10, 2017); Glassbrook v. Rose Acceptance,
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`Inc., 2014 WL 466154, at *3 (E.D. Mich. Feb. 5, 2014), and for violating Local
`
`Rule 7.1(a)’s requirement to seek concurrence in a motion before filing it, see, e.g.,
`
`Steele v. Punch Bowl Detroit, LLC, 2017 WL 2821970, at *2 (E.D. Mich. June 29,
`
`2017); Dearborn Tree Serv., Inc. v. Gray’s Outdoorservices, LLC, 2014 WL
`
`5293098, at *2 (E.D. Mich. Oct. 15, 2014); see also supra note 1.
`
`ARGUMENT
`
`I.
`
`The Court Should Deny Class Counsel’s Motion To Strike Because It Is
`an Unauthorized Response to FRS’s Motion for Reconsideration
`Local Rule 7.1(h) provides that “[n]o response to the motion [for
`
`reconsideration] . . . [is] permitted unless the Court orders otherwise.” Class
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`Counsel’s motion to strike is a (lengthy) response to FRS’s motion for
`
`reconsideration, which the Court never authorized. Accordingly, the Court should
`
`deny the motion to strike for violating Local Rule 7.1(h). See, e.g., Adelson, 2017
`
`WL 2930991, at *1; Glassbrook, 2014 WL 466154, at *3.
`
`Although captioned as a “motion to strike,” the arguments in Class
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`Counsel’s motion take issue with the merits of FRS’s motion for reconsideration.
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`For the most part, Class Counsel’s brief does not even purport to provide any basis
`
`for striking FRS’s motion. Rather, it contends that FRS’s arguments in support of
`
`reconsideration are not “correct,” ECF No. 2138 at 6, and that “FRS’s motion
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`should be denied,” id. at 4. See also id. at 1 (contending FRS’s motion “provides
`
`5
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39430 Filed 05/18/21 Page 14 of 25
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`no basis for reconsideration” and “is demonstrably incorrect”); id. at 4 (“FRS is
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`simply wrong as a matter of law”); id. at 5-13 (elaborating on merits arguments).
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`Such contentions are, quite plainly, a “response” to FRS’s motion for
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`reconsideration.
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`Class Counsel’s two purported bases to “strike” FRS’s motion—(1) that this
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`Court lacks jurisdiction over the motion, and (2) that the motion violates the Local
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`Rules—are likewise based in disagreements about the merits of FRS’s motion.
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`Whether this Court has jurisdiction over FRS’s motion and whether FRS’s motion
`
`to compel was a motion for reconsideration are two of the issues on which FRS
`
`seeks reconsideration. See ECF No. 2137 at 2, 6-8, PageID.39193, 39197-39199.
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`Thus, Class Counsel’s disagreement about those issues are a “response” under
`
`Local Rule 7.1(h) that goes to the merits of FRS’s motion. Class Counsel also
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`contend (at 14) that FRS’s motion does not “demonstrate any [palpable] defect,”
`
`but whether FRS satisfies the standard for reconsideration is also a merits
`
`question—indeed, it is the merits question.
`
`II. There Is No Basis To Strike FRS’s Motion for Reconsideration
`
`A.
`
`FRS’s Motion Is Not a Pleading Subject to a Motion To Strike
`
`Class Counsel’s motion to strike is not properly filed under Rule 12(f)
`
`because Rule 12(f) applies only to “pleading[s]”; “motions and briefs are not
`
`pleadings subject to a motion to strike.” Reid v. City of Detroit, 2020 WL
`
`6
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39431 Filed 05/18/21 Page 15 of 25
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`5878218, at *1 n.1 (E.D. Mich. Oct. 2, 2020) (Cox, J.); see Fox, 173 F. App’x at
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`375; Herrerra, 2011 WL 3862426, at *2; see also Fed. R. Civ. P. 7(a) (defining the
`
`“[o]nly . . . pleadings [that] are allowed” and distinguishing “pleadings” from
`
`“motions and other papers”).
`
`Moreover, Class Counsel neither cites nor attempts to satisfy the Sixth
`
`Circuit’s standard for striking a pleading: it must “ha[ve] no possible relation to
`
`the controversy.” Brown, 201 F.2d at 822. FRS’s motion for reconsideration
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`“relat[es] to the controversy,” because it raises important questions about how and
`
`under what circumstances absent class members, like FRS and the Insurers, may
`
`participate in this class proceeding to ascertain and protect their rights as class
`
`members. Accordingly, even if FRS’s motion were a “pleading” under Rule 12(f)
`
`(which it is not), there still would be no proper basis to strike it.
`
`B.
`
`FRS’s Motion Does Not Violate This Court’s Local Rules
`
`Class Counsel posit (at 13-15) two ways in which FRS’s motion for
`
`reconsideration purportedly “violated the Local Rules.” Neither of their arguments
`
`is correct.
`
`First, Class Counsel contend (at 13-14) that FRS’s motion for
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`reconsideration is a second, successive motion to reconsider the Court’s denial of
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`intervention, but that is not so. In seeking intervention, FRS sought to become a
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`party to this action for the sole purpose of obtaining a ruling that it had previously
`
`7
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39432 Filed 05/18/21 Page 16 of 25
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`requested about whether subrogated auto insurers may recover from the End-Payor
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`Settlements. See ECF No. 2060 at 3, 10, PageID.37704, 37711. The Court denied
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`intervention on the basis of timeliness and expressly declined to rule on the
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`subrogation issue. See ECF No. 2101. FRS appealed that ruling and did not seek
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`reconsideration of it. FRS’s motion to compel the processing of vehicle data did
`
`not seek to renew FRS’s requests to become a party or to obtain a ruling on the
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`subrogation issue, and, therefore, it was not a request to reconsider the denial of
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`intervention. See ECF No. 2137 at 6-8, PageID.39197-39199.
`
`Second, Class Counsel contend (at 14-15) that FRS’s motion does not satisfy
`
`Local Rule 7.1(h)’s substantive standard for granting reconsideration. Even if that
`
`were correct (which it is not), falling short of a substantive standard for relief is not
`
`a violation of any rule or a basis to strike a motion. See Lentz v. Loxton, 2013 WL
`
`449907, at *6 (E.D. Mich. Feb. 6, 2013) (party’s “disagreement with the legal
`
`arguments” in a motion “is not a proper basis upon which to strike” it). If
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`disagreement about satisfying the substantive standard for reconsideration were a
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`proper basis for moving to strike, then this Court’s rule barring the filing of
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`responses to such motions would be meaningless.
`
`C. Disagreement About the Court’s Jurisdiction Is Not a Basis To
`Strike FRS’s Motion
`Class Counsel also repeat their contention (at 4) that the Court “has no
`
`jurisdiction to grant [FRS] relief” because FRS “lacks standing.” That argument is
`
`8
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39433 Filed 05/18/21 Page 17 of 25
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`wrong for the reasons discussed below and in FRS’s motion for reconsideration.
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`Regardless, a ruling that a court lacks jurisdiction is not a basis to strike a motion
`
`seeking reconsideration of that ruling because this Court “always has jurisdiction
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`to determine its own jurisdiction.” United States v. Ruiz, 536 U.S. 622, 628
`
`(2002).
`
`III. Class Counsel’s Motion To Strike Presents No Basis To Deny FRS’s
`Motion for Reconsideration on the Merits
`A. Under Rule 23, Non-Parties with Class-Member Interests May,
`Without Intervening, Seek Appropriate Relief in a Class
`Proceeding
`As FRS explained in its motion for reconsideration, FRS is entitled under
`
`Rule 23, without intervening under Rule 24, to appear in this proceeding to seek
`
`protection of its and its clients’ class-member interests. See ECF No. 2137 at 3-6,
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`PageID.39194-39197. Class Counsel’s arguments to the contrary miss the mark.
`
`First, Class Counsel are wrong to claim (at 3) that FRS “admitted that
`
`intervention was required to allow it to file a motion.” FRS never stated that it
`
`needed to intervene to seek relief from the Court; on the contrary, it has
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`consistently taken the opposite position. See, e.g., ECF No. 2060 at 17,
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`PageID.37718 (“FRS did not believe formal intervention was necessary[.]”); id.
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`at 3, PageID.37704 (“[I]ntervention is intended solely to give effect to the
`
`procedure to which Class Counsel agreed[.]”); ECF No. 2073 at 6-7,
`
`9
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39434 Filed 05/18/21 Page 18 of 25
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`PageID.38078-38079 (FRS will file “objections to the Claims Administrator’s
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`determinations” even if “the Court denies intervention now[.]”).4
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`Second, Class Counsel mischaracterize the authorities interpreting
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`Rule 23(c) and that rule’s relationship to Rule 24. Their argument assumes its
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`premise that only parties may file motions, but they cite no case that has ever held
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`that. And they offer no distinction of cases, like In re Fine Paper Antitrust
`
`Litigation, 695 F.2d 494, 499 (3d Cir. 1982), that affirm the right of “purported
`
`members of the class” to “present . . . motion[s]” under Rule 23 that “s[eek] relief”
`
`from the court, namely to “request . . . that the court interpret the class order so as
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`to include [them] and on that basis direct the payment of [their] claims.”5 And, of
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`course, Rule 23 does not “obviate” Rule 24 or “automatically” make all class
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`members parties, ECF No. 2138 at 7-8, but that is beside the point. Rule 24
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`entitles people to become parties in a case, participate fully in it and assert their
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`own claims or defenses, but the possibility of full participation in a case does not
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`diminish the right that Rule 23 provides to absent class members to participate
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`
`4 It seems quite unlikely that Class Counsel are merely confused about
`FRS’s position; Class Counsel know best whether they are deliberately misstating
`FRS’s position.
`5 Class Counsel also misquote Phillips Petroleum Co. v. Shutts, 472 U.S.
`797 (1985). They quote (at 9) only a description of the holding by the lower court,
`and they omit the Supreme Court’s key holding that all “absent class plaintiffs”
`“must receive . . . an opportunity to be heard and participate in the litigation.” 472
`U.S. at 811-12 (emphasis added).
`
`10
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`meaningfully in class proceedings for the more narrow purpose of ensuring that
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`their interests are adequately protected.6
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`Third, Class Counsel relegate their discussion of applicable Sixth Circuit law
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`to a footnote (at 9 n.2), in which they fail to grapple with any of the relevant
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`portions of the cases FRS cited. As FRS established in its motion for
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`reconsideration, Sixth Circuit precedent contemplates meaningful participation in
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`class proceedings by absent class members and their counsel, including being
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`listed on the docket, having their filings accepted by the court, and having the
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`opportunity to be heard at proceedings that affect class members. See ECF No.
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`2137 at 5, PageID.39196 (citing Moulton v. U.S. Steel Corp., 581 F.3d 344, 353
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`(6th Cir. 2009), and Faber v. Ciox Health, LLC, 944 F.3d 593, 604 (6th Cir.
`
`2019)). Class Counsel’s contention (at 7) that Rule 23 “merely entitles counsel to
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`be served with papers filed in the action” cannot be squared with the Sixth
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`Circuit’s observation that an “appearance” under Rule 23 is “to obtain favorable
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`outcomes—not for its own sake.” Faber, 944 F.3d at 604.
`
`
`6 Class Counsel insist (at 8) that Rule 23(d) deals only with providing notice
`to class members, but that argument ignores the rule’s text. It empowers the Court
`to notify class members of, among other things, their “opportunity . . . to intervene
`and present claims or defenses, or to otherwise come into the action.” That
`language would be surplusage if, as Class Counsel contend, absent class members
`are never entitled to any such opportunity independent of intervention.
`
`11
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`

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`B.
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`FRS’s Motion To Compel Is Independent from FRS’s Prior
`Motion To Intervene and from FRS’s Pending Appeal
`Class Counsel are likewise wrong to suggest (at 11-13) that the Court lacks
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`jurisdiction to consider FRS’s motion for reconsideration; that motion stands on an
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`entirely different footing from FRS’s pending appeal. Class Counsel say (at 11)
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`that FRS’s motion to intervene also sought a reasonable opportunity for the
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`Insurers to submit vehicle data to supplement their timely filed claim forms. But
`
`FRS’s request in its motion to intervene to have its vehicle data considered timely
`
`was conditioned upon the Court ruling on the subrogation issue, which the Court
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`never did. See ECF No. 2060 at 18, PageID.37719 (“The Insurers Should Be
`
`Permitted To Further Document Their Claims After the Court Rules on FRS’s
`
`Motion for Declaratory Relief[.]”) (emphasis added). In denying intervention, the
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`Court did not reach the subrogation issue. And FRS’s appeal seeks review of the
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`denial of intervention, not any relief with respect to the processing of vehicle data.
`
`All of Class Counsel’s arguments to the contrary rely on a misreading of this
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`Court’s order denying intervention. They claim throughout their brief (at 2, 11, 13,
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`15) that two sentences of the Court’s order in which the Court evaluated the
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`timeliness of FRS’s intervention motion was actually a “rul[ing] that late
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`subrogation claims cannot now be filed,” id. at 13, which “precludes the claims
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`administrator from processing any untimely proof of subrogation claims,” id. at 15.
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`The Court made no such ruling. In concluding that “the application to intervene is
`
`12
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39437 Filed 05/18/21 Page 21 of 25
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`untimely,” the Court evaluated several factors, including “the prejudice to the
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`original parties” caused by the timing of the motion. ECF No. 2101 at 7,
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`PageID.38270; see id. at 3, PageID.38266 (listing factors). In evaluating prejudice,
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`the Court found that “intervention would delay the distribution of settlement
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`proceeds” and that “completion [of claims processing] would be delayed if the
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`Court were to allow potentially thousands of claims to be submitted after the
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`deadline.” Id. at 7, PageID.38270. These few words cannot bear the weight that
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`Class Counsel attempt to place on them. The Court did not purport to deny the
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`Insurer’s claims, which were submitted before the claim-filing deadline, and even
`
`if the Court considered those claims “late,” it did not evaluate whether to accept
`
`them under the applicable “excusable neglect” standard. See Pioneer Inv. Servs.
`
`Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). Nor was the
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`Court’s observation limited to claims based on subrogation—it was a general
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`observation about all “claims . . . submitted after the deadline.” ECF No. 2101
`
`at 7, PageID.38270.
`
`IV. Class Counsel’s Change in Position Reinforces the Need To Process
`Data To Avoid Prejudicing Auto Insurers’ Claims
`Through their motion to strike, Class Counsel changed their position (again)
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`about which claimants’ vehicle data will be “accepted” or “rejected” for
`
`processing. In opposing FRS’s motion to compel in March, Class Counsel
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`categorically stated that “placeholder claims would not be allowed” and
`
`13
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139, PageID.39438 Filed 05/18/21 Page 22 of 25
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`“late-submitted data for an otherwise unsupported initial claim would be rejected.”
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`ECF No. 2120 at 24, PageID.38471; see also id. at 6, PageID.38453 (contending
`
`“‘placeholder claims’ may and properly should be considered a nullity”). Class
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`Counsel similarly attested under oath that they had informed FRS in January 2021
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`that “so-called ‘placeholder’ claims”—meaning any claim that did not contain
`
`sufficient vehicle information by the claim-filing deadline—“would not be
`
`accepted.” ECF No. 2120-2 ¶ 19, PageID.38510; id. ¶¶ 21-22, PageID.38512-
`
`38513 (discussing supplemental vehicle information for non-subrogation claimants
`
`and stating “FRS is trying to add new vehicle claims through ‘placeholders’ that it
`
`has long known would not be accepted by Class Counsel”).7 Class Counsel thus
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`argued in unmistakable terms that vehicle information in support of any so-called
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`“placeholder” claims—whether or not based on a theory of subrogation—
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`submitted after the claim-filing deadline would not be processed.
`
`Class Counsel now reverse course (a reversal of which they did not
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`previously inform FRS) and acknowledge that they are required to process data
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`submitted in support of “placeholder” claims, at least so long as those claims are
`
`
`7 Class Counsel also directed Epiq to notify FRS that the vehicle data that
`FRS submitted after the June 18, 2020 deadline in support of 58 placeholder claims
`that FRS had timely filed for clients that were not relying on the equitable
`subrogation doctrine would not be processed. See Decl. of Robin M. Niemiec in
`Supp. of Financial Recovery Services, LLC’s Mot. for Recon. of Court’s April 28
`Op. & Order ¶¶ 2-3, ECF No. 2137-2, PageID.39206; id. Ex. A, ECF No. 2137-3,
`PageID.39210-39220.
`
`14
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`

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`not based on an