Case 2:12-md-02311-SFC-RSW ECF No. 2139-2, PageID.39443 Filed 05/18/21 Page 1 of 12
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`Case 2:12-md-02311-SFC-RSW ECF No. 2139-2, PageID.39444 Filed 05/18/21 Page 2 of 12
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`IN RE: AUTOMOTIVE PARTS
` Master File No. 12-md-02311
`ANTITRUST LITIGATION
`
`THIS DOCUMENT RELATES TO:
`ALL END-PAYOR ACTIONS
`
`Hon. Sean F. Cox
`Mag. Judge R. Steven Whalen
`
`DECLARATION OF JEFFREY N. LEIBELL
`IN RESPONSE TO THE
`DECLARATION OF BRIAN A. PINKERTON1
`I, JEFFREY N. LEIBELL, declare:
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`1.
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`I am Chief Legal and Financial Officer of Financial Recovery Services,
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`LLC d/b/a Financial Recovery Strategies (“FRS”). I previously submitted two
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`declarations in support of FRS’s motion to intervene in this litigation (the
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`“Intervention Motion”),2 and two declarations in support of FRS’s Emergency
`
`
`1 Declaration of Brian A. Pinkerton in Support of End-Payor Plaintiffs’ Motion to Strike
`Financial Recovery Services, LLC’s Motion for Reconsideration of the Court’s April 28, 2021
`Opinion and Order, ECF No. 2138-1, PageID.39315 (the “Pinkerton Declaration”). All terms with
`initial capitalization that are not defined in this declaration have the same meanings as those set
`forth in the Memorandum of Law in Support of FRS’s Intervention Motion, ECF No. 2060,
`PageID.37697, or in Declaration of Daniel W. Shoag, Ph.D., Concerning Total Loss Vehicle Data
`Submitted by Financial Recovery Services, LLC, ECF No. 2137-5, PageID.39225 (the “Shoag
`Declaration”). Unless otherwise specified, all references herein to docket entries are to the docket
`in 12-md-02311.
`2 Declaration of Jeffrey N. Leibell, ECF No. 2060-2, PageID.37726; Reply Declaration of
`Jeffrey N. Leibell, ECF No. 2073-1, PageID.38083.
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`

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`Case 2:12-md-02311-SFC-RSW ECF No. 2139-2, PageID.39445 Filed 05/18/21 Page 3 of 12
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`Motion to Compel Acceptance and Processing of Vehicle Data (the “Data
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`Motion”).3 This declaration, the primary purpose of which is to respond to the
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`Pinkerton Declaration, is based on my personal knowledge and, as described in the
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`declaration that I submitted in support of the Data Motion, the expertise that I gained
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`in my two-and-a-half decades of experience in class action settlements and their
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`distributions.4
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`TOTAL LOSS VEHICLE DATA
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`2.
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`In his declaration of May 7, 2021, Professor Shoag described the
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`process that, as of that date, he had undertaken to identify, process, and compile the
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`Total Loss Vehicle Data that, for each Total Loss Vehicle, would be submitted to
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`Epiq in support of the proof of claim form that, on or before June 18, 2020, FRS
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`submitted on behalf of each Insurer.5 At that time, Professor Shoag had identified
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`from among the over 3.5 million Indemnified Vehicles those that are Total Loss
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`Vehicles,6 but he had not yet completed his analysis of the data provided by the
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`3 Declaration of Jeffrey N. Leibell in Support of Financial Recovery Services LLC’s
`Emergency Motion, ECF No. 2114-2, PageID.38335 (“Leibell Declaration”); Declaration of
`Jeffrey N. Leibell in Further Support of Financial Recovery Services, LLC’s Emergency Motion,
`ECF No. 2126-2, PageID.39113 (“Leibell Further Reply Declaration”).
`4 Leibell Declaration ¶¶ 2-6, PageID.38336-39.
`5 See Shoag Declaration ¶¶ 20-26, PageID.39237-39240.
`6 See Shoag Declaration ¶ 26, PageID.39240.
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`2
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`Case 2:12-md-02311-SFC-RSW ECF No. 2139-2, PageID.39446 Filed 05/18/21 Page 4 of 12
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`Salvage Vendors and Experian to provide the Total Loss Vehicle Data necessary to
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`complete for each Insurer the fields requested by the Claim Form.7
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`3.
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`I previously represented to the Court that FRS would submit to Epiq,
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`for all Total Loss Vehicles, the data requested by the proof of claim form within 90
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`days of March 10, 2021, or by June 8, 2021.8 On May 17, 2021, well-before that
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`date, FRS submitted to Epiq, together with a supplemental declaration from
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`Professor Shoag, an Excel workbook that, in a separate tab for each of six Insurers,
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`provides complete Total Loss Vehicle Data.9 As requested by the proof of claim
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`form, the Excel workbook provides, for each of 627,880 Total Loss Vehicles, the
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`VIN; the vehicle’s year, make and model; its approximate date of purchase or lease;
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`whether it was purchased or leased; the state of residence or principal place of
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`business of the purchaser or lessee at the time it was purchased or leased; and that it
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`was new when purchased or leased.
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`4.
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`The highly reliable and independent sources for 100% of that Total
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`Loss Vehicle Data are records maintained by the Salvage Vendors in the ordinary
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`7 See Shoag Declaration ¶ 27, PageID.39240. The Total Loss Vehicle Data provided in the
`Shoag Declaration is based upon the data available to Professor Shoag as of the date of his
`declaration. He may review, analyze, and evaluate information that becomes available to him in
`the future.
`8 See Leibell Further Reply Declaration ¶ 22, PageID.39129.
`9 Those six Insurers are Liberty Mutual Holding Company, Inc.; CSAA Insurance Group;
`Mercury Insurance Services, LLC; American International Group, Inc.; Utica Mutual Insurance
`Company; and W.R. Berkley Corporation.
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`3
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`Case 2:12-md-02311-SFC-RSW ECF No. 2139-2, PageID.39447 Filed 05/18/21 Page 5 of 12
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`course of their businesses, and the Experian AutoCheck® platform. That Total Loss
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`Vehicle Data, which has now been submitted before Epiq disseminated audit or
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`deficiency letters, is easily uploaded by Epiq into its database for the administration
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`of the End-Payor Settlements, and, notwithstanding its volume, should require little,
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`if any, additional work.
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`THE PINKERTON DECLARATION
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`5.
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`This is the fourth declaration that Mr. Pinkerton has submitted in
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`support of Class Counsel’s attempts improperly to prevent Insurers from exercising
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`the most fundamental of rights afforded to members of a class certified under
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`Rule 23(b)(3): obtaining from this Court a determination of their membership in the
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`End-Payor Settlement classes.10
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`6. Mr. Pinkerton presents no new information, other than stating for the
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`first time (at ¶ 15, PageID.39319-39320), and in direct contradiction to each of
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`Epiq’s previous communications that data submitted after June 18, 2020 in support
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`10 Declaration of Brian A. Pinkerton in Support of End-Payor Plaintiffs’ Opposition to
`Financial Recovery Strategies, LLC’s Untimely Motion
`to Intervene, ECF No. 2097,
`PageID.38193; Declaration of Brian A. Pinkerton in Support of End-Payor Plaintiffs’ Opposition
`to Financial Recovery Strategies, LLC’s Untimely Motion to Intervene, ECF No. 2098-1,
`PageID.38210 (this declaration was filed to replace ECF No. 2097, which Class Counsel had filed
`improperly); Declaration of Brian A. Pinkerton in Support of End-Payor Plaintiffs’ Opposition to
`Financial Recovery Services, LLC’s Motion to Compel Acceptance & Processing of Vehicle Data,
`ECF No. 2120-1, PageID.38479.
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`4
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`Case 2:12-md-02311-SFC-RSW ECF No. 2139-2, PageID.39448 Filed 05/18/21 Page 6 of 12
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`of timely filed “placeholder” claims would not be processed,11 that Epiq is
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`processing all vehicle data submitted after the claim-filing deadline except the
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`Insurers’ Total Loss Vehicle Data. Though he repeats, again, purported concerns
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`about the delays that processing Total Loss Vehicle Data will cause, he does not
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`provide any facts to support that contention. Although Mr. Pinkerton surely has
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`access to relevant information, he does not state, for example, how many proof of
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`claim forms have been submitted to date and how many vehicles have been claimed
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`on them; how many claim forms have been completely processed, partially
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`processed, and not processed at all; how many will be sent deficiency notices and,
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`given the current status of Epiq’s administration, when he expects to disseminate
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`audit and deficiency notices; and when he expects Epiq’s administration to be
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`completed such that Epiq will be ready to make recommendations about the
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`distribution of settlement proceeds. And although he and Class Counsel have had
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`my Reply Declaration since March 10, 2021, he has never responded to it, including
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`to my point-by-point explanation about why his purported concerns regarding the
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`processing of the Insurers’ vehicle information are unfounded.12
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`11 Declaration of Robin M. Niemiec in Support of Financial Recovery Services, LLC’s
`Motion for Reconsideration of the Court’s April 28 Opinion and Order ¶¶ 2-3, ECF No. 2137-2,
`PageID.39206-39207, & Ex. A, ECF No. 2137-3, PageID.39210-39220.
`12 See Leibell Reply Declaration ¶¶ 15-22, PageID.39124-39133.
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`5
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`Case 2:12-md-02311-SFC-RSW ECF No. 2139-2, PageID.39449 Filed 05/18/21 Page 7 of 12
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`7.
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`Now that Total Loss Vehicle Data has been submitted, it is even clearer
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`that none of the specific concerns posited by Mr. Pinkerton have factual support. Set
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`forth below are point-by-point supplements to the responses provided in the Leibell
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`Reply Declaration.
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`Complaint
`
`Response
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`a. The submission of Total Loss
`Vehicle Data after June 18, 2020
`would cause delay; FRS provided no
`estimate on its timing. ECF No. 2120-
`1, ¶¶ 49, 51, PageID.38495-38496,
`38497.
`
`b. Subrogees will need to submit
`additional information. ECF No. 2120-
`1, ¶ 50, PageID.38496-38497.
`
`As described above, the Total Loss
`Vehicle Data is now submitted. Given
`its format,
`its completeness and
`accuracy, and its independent and
`reliable sources, as well as the fact
`that Epiq still has not disseminated
`deficiency or audit
`letters, and,
`therefore, is nowhere near competing
`its administration of the End-Payor
`Settlements, no delay or prejudice
`will occur as a result of processing the
`Total Loss Vehicle Data.
`
`The Total Loss Vehicle Data
`provides for each Total Loss Vehicle
`all of the information requested by the
`Claim Form approved by the Court.
`Moreover, each component of that
`information was provided by a
`reputable and reliable independent
`source. In addition to the requested
`information, the Total Loss Vehicle
`Data
`includes, as
`independently
`provided by the Salvage Vendors, the
`VIN for each Total Loss Vehicle. That
`confirms that the Insurer identified by
`the Salvage Vendor paid that Salvage
`Vendor to process that Total Loss
`Vehicle, which is evidence that the
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`6
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`Case 2:12-md-02311-SFC-RSW ECF No. 2139-2, PageID.39450 Filed 05/18/21 Page 8 of 12
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`Complaint
`
`Response
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`c. Epiq will need to establish, and
`the Court will need
`to approve,
`additional procedures
`to create a
`proportionate
`sharing process
`to
`address the splitting of recoveries if
`both an owner/lessee and one of the
`Six Insurers claim the same Eligible
`Vehicle. ECF No. 2120-1, ¶ 53,
`PageID.38498.
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`d. Because of a potential reduced
`payment to owners/lessees as a result
`of claimed Total Loss Vehicles, Epiq
`must contact and provide notice to any
`owner/lessee that claimed the same
`vehicle claimed by an Insurer to get
`from any such owner/lessee additional
`information, including its VIN. ECF
`PageID.38498-
`No. 2120-1, ¶ 54,
`38499.
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`vehicle was insured by that Insurer, it
`was deemed a total loss by that
`Insurer, and the Insurer indemnified
`the vehicle.13
`
`As previously represented,14 should
`Epiq determine that a VIN submitted
`by one of the Insurers also was
`claimed by another class member, that
`Insurer will withdraw its claim for
`that Total Loss Vehicle. In such an
`event, only the owner/lessee will
`recover, and, therefore, there is no
`need for any proportionate sharing
`process.
`
`As stated above and previously,
`each Insurer will withdraw its claim for
`any Total Loss Vehicle that also is
`claimed
`by
`the
`owner/lessee.
`Accordingly,
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`• there is no need for Epiq to
`contact, and potentially
`to
`confuse, the owner/lessee;
`
`the
`for
`is no need
`• there
`owner/lessee
`to challenge a
`claim by an Insurer; and
`
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`13 See Shoag Declaration ¶ 14, PageID.39232 (“The only VINs provided by the Salvage
`Vendors were for Indemnified Vehicles that, because one of the Insurers had a contractual
`obligation to indemnify it, the Salvage Vendors fully processed. Therefore, I find it reasonable to
`conclude that, for the vehicles identified by the Salvage Vendors for each of the Insurers, it was
`insured by the Insurer identified by the Salvage Vendor, it was deemed a total loss by that Insurer,
`and the Insurer indemnified the vehicle.”).
`14 See, e.g., Leibell Further Reply Declaration ¶ 22.b.i, PageID.39129.
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`7
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`Case 2:12-md-02311-SFC-RSW ECF No. 2139-2, PageID.39451 Filed 05/18/21 Page 9 of 12
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`Complaint
`
`Response
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`e. Processing claims for Total Loss
`Vehicles would
`require Epiq
`to
`develop procedures
`for handling
`claims based on equitable subrogation:
`i. to match vehicles to those
`claimed by owners/lessees, ECF
`No. 2120-1, ¶ 55, PageID.38499;
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`review documentation
`ii. to
`concerning
`insurance coverage
`and indemnity payments, ECF
`No. 2120-1, ¶ 55, PageID.38499;
`
`• there is no need to establish a
`procedure to address such a
`challenge.
`presumably
`Epiq
`Moreover,
`already has in place procedures to
`assure that, when the same vehicle is
`claimed by multiple claimants, only
`the original purchaser/lessee recovers.
`
`
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`Because FRS has provided VINs
`for every Total Loss Vehicle, there is
`nothing further that Epiq needs from
`any of the Insurers in order to enable
`Epiq to identify any overlap between
`Total Loss Vehicles and vehicles
`claimed by other class members.
`
`Because insurance coverage and
`indemnity payments for each Total
`Loss Vehicle
`are
`conclusively
`established by reliable information
`provided by independent sources—
`the Salvage Vendors and Experian’s
`AutoCheck® platform—there is no
`need for the Insurers to undertake the
`additional burden to provide, and no
`need
`for Epiq
`to
`review, any
`additional documentation.
`
`iii. to compare new vehicle
`purchase price to the indemnity
`payment
`and
`determine
`a
`
`Neither the Plan of Allocation nor
`the Claim
`Form
`contemplates
`submission or review of information
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`8
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`Case 2:12-md-02311-SFC-RSW ECF No. 2139-2, PageID.39452 Filed 05/18/21 Page 10 of 12
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`Complaint
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`Response
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`for
`payment
`proportional
`subrogated claims, No. 2120-1,
`¶ 55, PageID.38499;
`
`iv. to determine whether an
`Insurer received any value from a
`tortfeasor or another insurance
`company, No. 2120-1,
`¶ 55,
`PageID.38499;
`
`v. to permit an owner/lessee to
`challenge an Insurer’s claim to the
`same Eligible Vehicle, No. 2120-
`1, ¶ 55, PageID.38499; and
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`about the original purchase price of
`claimed vehicles or any payment or
`benefit that a class member later
`received
`in connection with
`the
`vehicle, such as by selling it, trading it
`in, donating it to charity, or being
`indemnified for its value. The Plan of
`Allocation contemplates distributing to
`one claimant 100% of the prorated
`antitrust
`losses for each claimed
`eligible vehicle without considering
`the price paid. Accordingly, if no
`owner/lessee also claims a Total Loss
`Vehicle, 100% of the prorated antitrust
`losses for that Total Loss Vehicle must
`be paid to the Insurer.
`
`See Item (e)(iii) above.
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`Because the Insurers will withdraw
`any claim for a Total Loss Vehicle
`that, based on VINs, also was claimed
`by an owner/lessee, there is no need to
`implement a procedure
`for an
`owner/lessee to challenge a claim by
`one of the Insurers.
`
`secondary
`a
`create
`vi. to
`settlement payment calculation
`that excludes subrogation claims,
`No. 2120-1, ¶ 55, PageID.38500.
`
`Based on the foregoing responses,
`there is no basis on which to exclude
`Total Loss Vehicles
`from any
`calculation of settlement payments.
`
`and
`creation
`f. The
`implementation of
`the additional
`
`As explained above, there is no
`need for any of
`the procedures
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`9
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`Case 2:12-md-02311-SFC-RSW ECF No. 2139-2, PageID.39453 Filed 05/18/21 Page 11 of 12
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`Complaint
`
`Response
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`procedures will (i) require significant
`time, expense, and resources; (ii) add
`many additional months
`to
`the
`administration process;
`(iii) delay
`indefinitely the distribution as a result
`of appeals or objections made by
`owners/lessees;
`and
`require
`the
`dissemination
`of
`notice
`to
`owners/lessees. No. 2120-1, ¶¶ 56-60,
`PageID.38500-38501.
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`Mr. Pinkerton hypothesizes. FRS has
`provided for each Total Loss Vehicle
`all of the information requested by the
`proof of claim form, as well as
`additional information that, though
`not
`requested,
`conclusively
`establishes
`Insurers’
`indemnity
`payments, which is all that is required
`to entitle an Insurer to equitable
`subrogation. Therefore, contrary to
`Mr. Pinkerton’s position, Epiq will
`not need to expend any time and
`effort,
`let
`alone
`“significant
`resources” or “substantial expenses,”
`to process claims for Total Loss
`Vehicles.
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`10
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`Case 2:12-md-02311-SFC-RSW ECF No. 2139-2, PageID.39454 Filed 05/18/21 Page 12 of 12
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`Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the
`foregoing is true and correct.
`Executed this 18th day of May 2021, in Great Neck, New York.
`
`
`
`
`
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`
`
`Jeffrey N. Leibell
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`11
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