Case 2:12-md-02311-SFC-RSW ECF No. 2182, PageID.39698 Filed 01/10/22 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`Master File No. 2:12-md-02311
`Honorable Sean F. Cox
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`IN RE AUTOMOTIVE PARTS
`ANTITRUST LITIGATION
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`ALL AUTOMOTIVE PARTS CASES
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`THIS DOCUMENT RELATES TO:
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`ALL END-PAYOR ACTIONS
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`STIPULATION AND ORDER
`REGARDING END-PAYOR PLAINTIFF SETTLEMENTS
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`This Stipulation is made in the above-captioned actions (the “Auto
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`Parts Litigation”), subject to the approval of the Court, by and between the
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`undersigned Settlement Class Counsel (“Settlement Class Counsel”), on
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`behalf of the End Payor Plaintiffs (“EPPs”), on the one hand, and Automotive
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`Rentals, Inc., Element Fleet Corporation, Wheels, Inc., Donlen LLC
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`(collectively, “FMC Claimants”), and Class Action Capital, LLC (“CAC”),
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`on the other hand (collectively, the “Stipulating Parties”), in light of the
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`following:
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`1
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`Master File No. 2:12-md-02311
`Honorable Sean F. Cox
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`IN RE AUTOMOTIVE PARTS
`ANTITRUST LITIGATION
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`ALL AUTOMOTIVE PARTS CASES
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`THIS DOCUMENT RELATES TO:
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`ALL END-PAYOR ACTIONS
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`STIPULATION AND ORDER
`REGARDING END-PAYOR PLAINTIFF SETTLEMENTS
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`This Stipulation is made in the above-captioned actions (the “Auto
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`Parts Litigation”), subject to the approval of the Court, by and between the
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`undersigned Settlement Class Counsel (“Settlement Class Counsel”), on
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`behalf of the End Payor Plaintiffs (“EPPs”), on the one hand, and Automotive
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`Rentals, Inc., Element Fleet Corporation, Wheels, Inc., Donlen LLC
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`(collectively, “FMC Claimants”), and Class Action Capital, LLC (“CAC”),
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`on the other hand (collectively, the “Stipulating Parties”), in light of the
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`following:
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`1
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`Case 2:12-md-02311-SFC-RSW ECF No. 2182, PageID.39699 Filed 01/10/22 Page 2 of 13
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`A.
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`The End-Payor Plaintiffs Settlement Classes consist of all
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`persons and entities that purchased or leased a new vehicle in the United States
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`not for resale, where the vehicle included one or more relevant automotive
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`parts, or indirectly purchased one or more relevant automotive parts as a
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`replacement part, which were manufactured or sold by a Defendant, any
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`current or former subsidiary of a Defendant, as defined in the respective EPPs’
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`settlement agreements, or any co-conspirator of a Defendant, during the
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`relevant period.1
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`B.
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`The Plan of Allocation provides that qualifying purchasers or
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`lessees of qualifying new vehicles, or qualifying purchasers of qualifying
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`replacement automotive parts, may be members of the Settlement Classes
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`entitled to share in the net settlement funds established by the EPPs’ class
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`settlements. The Plan further provides that (1) as to individuals, only those
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`Settlement Class Members who purchased or leased a new Vehicle or
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`purchased a replacement Automotive Part in certain enumerated states, or
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`purchased or leased a new Vehicle or purchased a replacement Automotive
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`1 See, e.g., End-Payor Plaintiffs’ Settlement Agreement with Toyoda Gosei
`Defendants ¶ 12, No. 2:12-cv-00603, ECF No. 197-1 (the specific relevant
`automotive parts and relevant periods are set forth in each settlement
`agreement).
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`Case 2:12-md-02311-SFC-RSW ECF No. 2182, PageID.39700 Filed 01/10/22 Page 3 of 13
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`Part while residing in one of the enumerated states, will be entitled to share in
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`the net settlement funds; and (2) as to businesses, only those Settlement Class
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`Members who purchased or leased a new Vehicle or purchased a replacement
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`Automotive Part in one of the enumerated states, or had their principal place
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`of business at the time of such purchase or lease in one of the enumerated
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`states, will be entitled to share in the net settlement funds.2
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`C.
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`Fleet Management Companies (“FMCs”) are companies that
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`provide fleet management services to businesses that operate fleets of
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`vehicles. In certain, but not all instances, FMCs purchased new vehicles and
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`then leased those vehicles to their customers (“FMC Customers”). In other
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`instances, FMC Customers purchased or leased new vehicles directly from an
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`automobile dealer or other third party either on their own or with an FMC’s
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`administrative assistance, and the FMC performed fleet management services
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`to the FMC customers relating to those vehicles.
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`2 See Order Granting End-Payor Plaintiffs’ Unopposed Motion for An Order
`Approving the Proposed Further Revised Plan of Allocation and for
`Authorization to Disseminate Supplemental Notice of the Settlement Classes
`(No. 2:12-md-02311, ECF No. 2032); see also, e.g., Proposed Further Revised
`Plan of Allocation and Distribution of the Automotive Parts Settlement Funds,
`No. 2:12-cv-00403, ECF No. 301-2.
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`Case 2:12-md-02311-SFC-RSW ECF No. 2182, PageID.39701 Filed 01/10/22 Page 4 of 13
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`D. CAC has submitted claims on behalf of FMCs, including FMC
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`Claimants, to share in the monetary recovery from the EPP Class Settlements.
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`FMC Claimants represent that they are four of the five largest fleet
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`management companies in the United States, and collectively during the class
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`periods managed vehicles representing the overwhelming majority of the
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`corporate fleet market. Claims filed by CAC on behalf of FMCs can be
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`categorized into two types: (i) the FMC purchased a new vehicle which it
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`then leased to its FMC Customer; and (ii) the FMC provided fleet
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`management services to an FMC Customer relating to new vehicles purchased
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`or leased by the FMC Customer from an automobile dealer or other third party
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`(“Managed-Only Claims”).
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`E.
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`Certain businesses that are customers of FMC Claimants (“FMC
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`Customer Claimants”) have also submitted their own claims to share in the
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`net settlement funds established by the EPPs’ class settlements.
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`F.
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`In some instances, FMC Claimants and FMC Customer
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`Claimants have submitted claims based on the same vehicles with the same
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`Vehicle Identification Numbers (“VINs”).
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`G. A dispute has arisen as to whether FMCs that purchased vehicles
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`and then leased those vehicles (as lessors) to FMC Customers (as lessees) are
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`Case 2:12-md-02311-SFC-RSW ECF No. 2182, PageID.39702 Filed 01/10/22 Page 5 of 13
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`members of the EPP Settlement Classes and entitled to recover from the EPPs’
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`class settlements. It is undisputed that FMCs, to the extent they did not
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`purchase the vehicles, are not members of the Settlement Classes.
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`H.
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`The Stipulating Parties propose to resolve the dispute, for
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`purposes of settlement only, pursuant to the terms and conditions described
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`below.
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`I.
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`The Stipulating Parties stipulate and agree, for purposes of
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`settlement only, that two persons or entities cannot both have a claim to share
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`in the net settlement funds based on the purchase or lease of the same vehicle
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`and the Claims Administrator will only recognize one claim for each unique
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`vehicle VIN.
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`J.
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`The Stipulating Parties further acknowledge and understand that
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`Settlement Class Counsel and the Claims Administrator intend to apply the
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`guidelines and procedures set forth below to all claims that have been
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`submitted by or on behalf of any FMC or customer of an FMC in the Auto
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`Parts Litigation.
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`NOW, THEREFORE,
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`IT
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`IS HEREBY STIPULATED AND
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`AGREED, subject to the approval of the Court, by Settlement Class Counsel,
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`FMC Claimants and CAC, that claims submitted by FMC Claimants to
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`Case 2:12-md-02311-SFC-RSW ECF No. 2182, PageID.39703 Filed 01/10/22 Page 6 of 13
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`recover for eligible vehicles in the EPP Class Settlements shall be processed
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`and administered by the Claims Administrator pursuant to the following terms
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`and conditions:
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`1.
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`Valid and qualifying claims submitted by FMC Customer
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`Claimants who purchased or leased a new vehicle will be recognized and
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`neither CAC nor FMC Claimants shall be entitled to any portion of monies
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`paid to FMC Customer Claimants in connection with such claims.
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`2. Where both an FMC Claimant and an FMC Customer Claimant
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`have submitted claims based on the same vehicle with the same VIN, the
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`Claims Administrator will resolve the competing claims in favor of the FMC
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`Customer Claimant to the extent the FMC Customer Claimant has submitted
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`a valid and qualifying claim. In the event the FMC Customer Claimant has
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`not submitted a valid and qualifying claim, the Claims Administrator will
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`recognize the claim submitted by the FMC Claimant to the extent that such
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`claim is otherwise valid and qualifying. For avoidance of doubt, the Claims
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`Administrator will resolve competing claims so that no more than one claim
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`relating to a given VIN will be recognized for payment.
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`3.
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`In the event an FMC Claimant and an FMC Customer Claimant
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`have submitted claims based on the same vehicles with the same VINs, and
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`Case 2:12-md-02311-SFC-RSW ECF No. 2182, PageID.39704 Filed 01/10/22 Page 7 of 13
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`the Claims Administrator determines that the FMC Customer Claimant’s
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`claim is not eligible for payment (e.g., the FMC Customer Claimant’s
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`principal place of business is not located in an Indirect Purchaser State and
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`the vehicle was not purchased or leased by the FMC Customer Claimant in an
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`Indirect Purchaser State), neither the FMC Claimant’s claim nor the FMC
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`Customer Claimant’s claim shall be recognized.
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`4. Where only a single otherwise valid and qualifying claim has
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`been submitted for a particular VIN, and that claim was submitted by an FMC
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`Claimant that leased a vehicle to its FMC Customer, the claim shall be
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`recognized by the Claims Administrator for payment to the FMC Claimant.
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`5.
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`To the extent claims submitted by FMC Claimants based on
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`vehicles leased by FMC Claimants to their customers are recognized, FMC
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`Claimants shall be required to pass on the recoveries they obtain from the net
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`settlement funds to the FMC Claimants’ customers. If they are unable to do
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`so with respect to any FMC Claimant’s customer, the funds allocable to that
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`FMC Claimant’s customer shall be returned to the Claims Administrator for
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`deposit in the net settlement funds within eight (8) months of receipt of the
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`proceeds by the FMC Claimant. For avoidance of doubt, neither FMC
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`Claimants nor CAC shall be permitted to keep any portion of the net
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`Case 2:12-md-02311-SFC-RSW ECF No. 2182, PageID.39705 Filed 01/10/22 Page 8 of 13
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`settlement funds distributed to an FMC Claimant in instances where the
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`payment was not actually remitted to the applicable FMC Claimant’s
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`customer. To the extent CAC or an FMC Claimant received any portion of
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`such payments, they will be required to return those funds to the Claims
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`Administrator for deposit in the net settlement funds.
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`6.
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`FMC Claimants and CAC may collect an aggregate fee of not
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`greater than 20% for recoveries and deduct those amounts from the net
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`settlement funds that are passed on from an FMC Claimant to the FMC
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`Claimant’s customer. In no event, however, shall an FMC Claimant and CAC
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`collect an aggregate fee in excess of what an FMC Claimant or CAC
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`previously agreed to accept from an FMC Claimant’s customer or, as to CAC,
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`an FMC Claimant.
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`7.
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`The FMCs or CAC, as applicable, shall be required to submit
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`affidavits in a form satisfactory to Settlement Class Counsel establishing that
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`the funds paid to FMC Claimants were either passed on to their FMC
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`Claimants’ customers in full, minus any fees paid to CAC and/or the FMC
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`Claimant as described in Paragraph 6 above, or returned to the Claims
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`Administrator. All such affidavits shall be treated as “Highly Confidential” as
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`Case 2:12-md-02311-SFC-RSW ECF No. 2182, PageID.39706 Filed 01/10/22 Page 9 of 13
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`defined in the Protective Order (“Protective Order”) entered in the master
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`docket of the Auto Parts Litigation.
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`8.
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`To the extent that CAC has submitted Managed-Only Claims on
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`behalf of an FMC Claimant, CAC or the FMC Claimant will provide the
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`Claims Administrator with the names and addresses of the FMC Claimant’s
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`customers associated with such claims. Such information shall be treated as
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`“Highly Confidential” as defined in the Protective Order. For Managed-Only
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`Claims, eligibility will be determined based on the principal place of business
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`of the FMC Claimant’s customer or satisfactory evidence establishing the
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`place of the purchase transaction or lease by the FMC Claimant’s customer.
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`To the extent a Managed-Only Claim is otherwise timely and valid, the Claims
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`Administrator will cause payment to be made to the FMC Claimant’s
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`customer.
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`9. With respect to Managed-Only Claims, Settlement Class
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`Counsel shall cause CAC to be provided with a report detailing which FMC
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`Claimant’s customers were paid and how much.
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`10. FMC Claimants and CAC may seek to collect an aggregate fee
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`of not greater than 15% for Managed-Only Claims and deduct those amounts
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`from the net settlement funds that are passed on to the FMC Claimants’
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`9
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`Case 2:12-md-02311-SFC-RSW ECF No. 2182, PageID.39707 Filed 01/10/22 Page 10 of 13
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`customers. In no event, however, shall an FMC Claimant and CAC collect a
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`fee in excess of what an FMC Claimant or CAC previously agreed to accept
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`from an FMC Claimant’s customer or, as to CAC, an FMC Claimant.
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`11. Neither FMC Claimants nor CAC (on behalf of itself or any
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`claimant) shall be entitled to receive any payment from the net settlement
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`funds established by EPPs’ class settlements based on a vehicle for which the
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`FMC Claimant (or as to CAC, the same claimant) received a payment of
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`settlement funds in connection with the Automotive Dealer or Truck Dealer
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`actions in the Auto Parts Litigation.
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`12. All claims submitted to share in the net settlement funds
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`established by the EPPs’ class settlements shall be subject to satisfactory proof
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`of eligibility and may not be paid unless and until they are approved by the
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`Court.
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`13. Within twenty-four (24) hours of execution of this Stipulation
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`and Proposed Order, CAC and the FMC Claimants shall withdraw their
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`Motion to Enforce Settlement Agreements (Dkt. No. 2149) without prejudice
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`pending the Court’s consideration of this Stipulation and Proposed Order. In
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`the event the Court approves this Stipulation, CAC’s motion shall be deemed
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`to have been withdrawn with prejudice.
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`Case 2:12-md-02311-SFC-RSW ECF No. 2182, PageID.39708 Filed 01/10/22 Page 11 of 13
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`IT IS SO ORDERED.
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`Dated: January 10, 2022
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`Dated: December 22, 2021
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`s/Sean F. Cox
`Sean F. Cox
`U. S. District Judge
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`/s/ William V. Reiss
`William V. Reiss
`ROBINS KAPLAN LLP
`900 Third Ave, Suite 1900
`New York, NY 10022
`Telephone: (212) 980-7400
`Facsimile: (212) 980-7499
`WReiss@RobinsKaplan.com
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`Marc M. Seltzer
`Steven G. Sklaver
`SUSMAN GODFREY L.L.P.
`1900 Avenue of the Stars, Suite 1400
`Los Angeles, CA 90067-6029
`Telephone: (310) 789-3100
`Facsimile: (310) 789-3150
`mseltzer@susmangodfrey.com
`ssklaver@susmangodfrey.com
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`Terrell W. Oxford
`Chanler Langham
`SUSMAN GODFREY L.L.P.
`1000 Louisiana Street, Suite 5100
`Houston, TX 77002
`Telephone: (713) 651-9366
`Facsimile: (713) 654-6666
`toxford@susmangodfrey.com
`clangham@susmangodfrey.com
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`Floyd G. Short
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`Case 2:12-md-02311-SFC-RSW ECF No. 2182, PageID.39709 Filed 01/10/22 Page 12 of 13
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`Jenna G. Farleigh
`SUSMAN GODFREY LLP
`1201 Third Avenue, Suite 3800
`Seattle, Washington 98101
`Telephone: (206) 516-3880
`fshort@susmangodfrey.com
`jfarleigh@susmangodfrey.com
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`Adam J. Zapala
`Elizabeth T. Castillo
`Reid W. Gaa
`COTCHETT, PITRE &
`McCARTHY, LLP
`San Francisco Airport Office Center
`840 Malcolm Road, Suite 200
`Burlingame, CA 94010
`Telephone: (650) 697-6000
`Facsimile: (650) 697-0577
`azapala@cpmlegal.com
`ecastillo@cpmlegal.com
`rgaa@cpmlegal.com
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`Settlement Class Counsel for the End-
`Payor Plaintiff Classes
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`E. Powell Miller
`Devon P. Allard
`THE MILLER LAW FIRM, P.C.
`The Miller Law Firm, P.C.
`950 W. University Dr., Ste. 300
`Rochester, Michigan 48307
`epm@millerlawpc.com
`dpa@millerlawpc.com
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`Interim Liaison Counsel for the End-
`Payor Plaintiff Classes
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`12
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`Case 2:12-md-02311-SFC-RSW ECF No. 2182, PageID.39710 Filed 01/10/22 Page 13 of 13
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`/s/ L. Conrad Anderson IV
`L. Conrad Anderson IV
`BALCH & BINGHAM LLP
`1901 Sixth Avenue North, Suite
`1500 Birmingham, AL 35203
`Telephone: (205) 226-3415
`Facsimile: (205) 488-5729
`canderson@balch.com
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`Counsel for Automotive Rentals,
`Inc., Element Fleet Corporation,
`Wheels, Inc., Donlen LLC, and Class
`Action Capital, LLC
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`13
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