Case 2:12-md-02311-MOB-MKM ECF No. 951 filed 04/23/15 PageID.12538 Page 1 of 40
`Preliminary Settlement Approval • April 9, 2015
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`_
`_
`_
`
`AUTOMOTIVE PARTS
`IN RE:
`ANTITRUST LITIGATION
`MDL NO. 2311
`_______________________________/
`
`PRELIMINARY SETTLEMENT APPROVAL
`BEFORE THE HONORABLE MARIANNE O. BATTANI
`United States District Judge
`Theodore Levin United States Courthouse
`231 West Lafayette Boulevard
`Detroit, Michigan
`Thursday, April 9, 2015
`
`APPEARANCES:
`Direct Purchaser Plaintiffs:
`
`DAVID H. FINK
`FINK & ASSOCIATES LAW
`100 West Long Lake Road, Suite 111
`Bloomfield Hills, MI
`48304
`(248) 971-2500
`
`LEWIS H. GOLDFARB
`McELROY, DEUTSCH, MULVANEY & CARPENTER, L.L.P.
`1200 Mount Kemble Avenue
`Morristown, NJ
`07962
`(973) 993-8100
`
`GREGORY P. HANSEL
`PRETI, FLAHERTY, BELIVEAU & PACHIOS, L.L.P.
`One City Center
`Portland, ME
`04112
`(207) 791-3000
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`Preliminary Settlement Approval • April 9, 2015
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`1
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`_
`_
`_
`
`AUTOMOTIVE PARTS
`IN RE:
`ANTITRUST LITIGATION
`MDL NO. 2311
`_______________________________/
`
`PRELIMINARY SETTLEMENT APPROVAL
`BEFORE THE HONORABLE MARIANNE O. BATTANI
`United States District Judge
`Theodore Levin United States Courthouse
`231 West Lafayette Boulevard
`Detroit, Michigan
`Thursday, April 9, 2015
`
`APPEARANCES:
`Direct Purchaser Plaintiffs:
`
`DAVID H. FINK
`FINK & ASSOCIATES LAW
`100 West Long Lake Road, Suite 111
`Bloomfield Hills, MI
`48304
`(248) 971-2500
`
`LEWIS H. GOLDFARB
`McELROY, DEUTSCH, MULVANEY & CARPENTER, L.L.P.
`1200 Mount Kemble Avenue
`Morristown, NJ
`07962
`(973) 993-8100
`
`GREGORY P. HANSEL
`PRETI, FLAHERTY, BELIVEAU & PACHIOS, L.L.P.
`One City Center
`Portland, ME
`04112
`(207) 791-3000
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`Case 2:12-md-02311-MOB-MKM ECF No. 951 filed 04/23/15 PageID.12539 Page 2 of 40
`Preliminary Settlement Approval • April 9, 2015
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`(Continued)
`APPEARANCES:
`Direct Purchaser Plaintiffs:
`JOSEPH C. KOHN
`KOHN, SWIFT & GRAF, P.C.
`One South Broad Street, Suite 2100
`Philadelphia, PA
`19107
`(215) 238-1700
`
`EUGENE A. SPECTOR
`SPECTOR, ROSEMAN, KODROFF & WILLIS, P.C.
`1818 Market Street, Suite 2500
`Philadelphia, PA
`19103
`(215) 496-0300
`
`End-Payor Plaintiffs:
`
`ADAM T. SCHNATZ
`THE MILLER LAW FIRM, P.C.
`950 West University Drive, Suite 300
`Rochester, MI
`48307
`(248) 841-2200
`
`STEVEN N. WILLIAMS
`COTCHETT, PITRE & McCARTHY, L.L.P.
`840 Malcolm Road
`Burlingame, CA
`94010
`(650) 697-6000
`
`Dealership Plaintiffs:
`
`GERARD V. MANTESE
`MANTESE, HONIGMAN, ROSSMAN & WILLIAMSON, P.C.
`1361 East Big Beaver Road
`Troy, MI
`48083
`(248) 457-9200
`
`12-md-2311
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`Case 2:12-md-02311-MOB-MKM ECF No. 951 filed 04/23/15 PageID.12540 Page 3 of 40
`Preliminary Settlement Approval • April 9, 2015
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`(Continued)
`APPEARANCES:
`For the Defendants:
`ALDEN L. ATKINS
`VINSON & ELKINS, L.L.P.
`2200 Pennsylvania Avenue NW, Suite 500 West
`Washington, D.C.
`20037
`(202) 639-6613
`
`GARY K. AUGUST
`ZAUSMER, AUGUST & CALDWELL, P.C.
`31700 Middlebelt Road, Suite 150
`Farmington Hills, MI
`48334
`(248) 851-4111
`
`EVA W. COLE
`WINSTON & STRAWN, L.L.P.
`200 Park Avenue
`New York, NY
`10166
`(212) 294-4609
`
`BRANDON W. DUKE
`WINSTON & STRAWN, L.L.P.
`1111 Louisiana Street, 25th Floor
`Houston, TX
`77002
`(713) 651-2600
`
`JASON R. GOURLEY
`BODMAN, P.L.C.
`1901 St. Antoine Street, 6th Floor
`Detroit, MI 48226
`(313) 259-7777
`
`HOWARD B. IWREY
`DYKEMA GOSSETT, P.L.L.C.
`39577 Woodward Avenue, Suite 300
`Bloomfield Hills, MI
`48304
`(248) 203-0526
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`12-md-2311
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`Case 2:12-md-02311-MOB-MKM ECF No. 951 filed 04/23/15 PageID.12541 Page 4 of 40
`Preliminary Settlement Approval • April 9, 2015
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`(Continued)
`APPEARANCES:
`For the Defendants:
`
`CRAIG SEEBALD
`VINSON & ELKINS, L.L.P.
`2200 Pennsylvania Avenue NW, Suite 500 West
`Washington, D.C.
`20037
`(202) 639-6585
`
`JOANNE GEHA SWANSON
`KERR, RUSSELL & WEBER, P.L.C.
`500 Woodward Avenue, Suite 2500
`Detroit, MI
`48226
`(313) 961-0200
`
`LINDSEY ROBINSON VAALA
`VINSON & ELKINS, L.L.P.
`2200 Pennsylvania Avenue NW, Suite 500 West
`Washington, D.C.
`20037
`(202) 639-6585
`
`12-md-2311
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`Preliminary Settlement Approval • April 9, 2015
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`TABLE OF CONTENTS
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`Page
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`SETTLEMENT REGARDING TRW
`by Mr. Kohn....................................... 10
`SETTLEMENT REGARDING PANASONIC & HITACHI
`by Mr. Williams................................... 19
`by Mr. Mantese.................................... 27
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`Case 2:12-md-02311-MOB-MKM ECF No. 951 filed 04/23/15 PageID.12543 Page 6 of 40
`Preliminary Settlement Approval • April 9, 2015
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`Detroit, Michigan
`Thursday, April 9, 2015
`At about 1:30 p.m.
`
`_
`_
`_
`(Court and Counsel present.)
`THE CASE MANAGER:
`Please rise.
`The United States District Court for the Eastern
`District of Michigan is now in session, the Honorable
`Marianne O. Battani presiding.
`You may be seated.
`The Court calls Case No. 12-md-02311, Automotive
`Parts Antitrust Litigation.
`THE COURT:
`Good afternoon.
`ATTORNEYS:
`(Collectively) Good afternoon, Your
`
`Honor.
`
`Hello, we
`
`More of you than I expected.
`THE COURT:
`have people on the phone?
`MS. COLE:
`Hello.
`THE COURT:
`Hi, this is Judge Battani.
`about ready to begin.
`Can you hear me?
`MS. COLE:
`Yes, I can hear you.
`MR. DUKE:
`Yes.
`THE COURT:
`Let's start with appearances while you
`are speaking, is it Ms. Cole on the phone?
`MS. COLE:
`Yes, Ms. Cole for the Panasonic
`
`We are just
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`Preliminary Settlement Approval • April 9, 2015
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`defendants from Winston & Strawn.
`And Mr. Duke?
`THE COURT:
`All right.
`MR. DUKE:
`Yes, also Brandon Duke.
`THE COURT:
`You had a little bit of bad weather
`today, is that what happened?
`I'm stuck
`MS. COLE:
`Unfortunately we are stuck.
`in O'Hare Airport due to weather delays, so I thank you very
`much for accommodating us telephonically.
`THE COURT:
`I'm very sorry.
`We have good
`weather --
`Nothing like spending the day in O'Hare.
`MS. COLE:
`We have good weather in the courtroom
`THE COURT:
`but not so good outside.
`All right.
`Let's start with the attorneys who are
`here so we can get everybody's appearances on the record
`starting with plaintiffs.
`You're on the wrong side, you
`always do this to me.
`Go ahead.
`MR. FINK:
`Your Honor, David Fink, liaison counsel,
`appearing on behalf of the direct plaintiffs.
`MR. KOHN:
`Joseph Kohn, Your Honor, for the direct
`plaintiffs.
`MR. SPECTOR:
`plaintiffs.
`MR. HANSEL:
`Your Honor.
`
`Greg Hansel for the direct plaintiffs,
`
`Eugene Spector for the direct
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`Preliminary Settlement Approval • April 9, 2015
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`And, Your Honor, Steve Kanner can meet
`MR. FINK:
`with Mr. Duke, I believe he's also at O'Hare.
`THE COURT:
`He's at O'Hare too?
`MR. FINK:
`Yeah, I think he's in O'Hare also, yes.
`THE COURT:
`Do you want to make an announcement,
`maybe we could get him on the phone?
`MR. DUKE:
`I'm not actually in O'Hare, sorry.
`THE COURT:
`See, the truth comes out.
`MR. WILLIAMS:
`Good afternoon, Your Honor.
`Steve Williams for the end-payor plaintiffs.
`MR. MANTESE:
`Your Honor, Gerard Mantese for the
`auto dealers.
`MR. SCHNATZ:
`the end payors.
`THE COURT:
`
`Okay.
`
`I have a Louis Goldfarb listed
`
`Your Honor, Adam Schnatz on behalf of
`
`here.
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`MR. GOLDFARB:
`purchasers.
`THE COURT:
`over to the defense.
`MS. SWANSON:
`Panasonic defendants.
`MR. IWREY:
`the TRW defendants.
`MR. SEEBALD:
`
`Yes, Your Honor, for the direct
`
`Direct purchasers.
`
`All right.
`
`We go
`
`Joanne Swanson, local counsel for the
`
`Your Honor, Howard Iwrey on behalf of
`
`Craig Seebald of Vinson & Elkins on
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`12-md-2311
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`Case 2:12-md-02311-MOB-MKM ECF No. 951 filed 04/23/15 PageID.12546 Page 9 of 40
`Preliminary Settlement Approval • April 9, 2015
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`Yes.
`Gary August for Mitsubishi Electric,
`
`behalf of the Hitachi defendants.
`MR. ATKINS:
`Aldin Atkins from Vinson & Elkins also
`on behalf of the Hitachi defendants.
`MS. VAALA:
`And Lindsey Vaala from Vinson & Elkins
`on behalf of the Hitachi defendants.
`THE COURT:
`I'm sorry.
`It's --
`MS. VAALA:
`Lindsey Vaala.
`THE COURT:
`I've got it, yes, and you are with
`Hitachi too?
`MS. VAALA:
`MR. AUGUST:
`Your Honor.
`And Jason Gourley?
`THE COURT:
`Jason Gourley, local counsel on
`MR. GOURLEY:
`behalf of T. Rad, Your Honor.
`THE COURT:
`On behalf of --
`MR. GOURLEY:
`T. Rad, Your Honor.
`THE COURT:
`Let's see, do we have auto dealer
`plaintiffs, that was Mr. Mantese?
`MR. MANTESE:
`Yes, Your Honor.
`THE COURT:
`I just want to make sure we have
`everyone represented.
`I know somebody has to take a flight
`out, who has got to leave first?
`MR. FINK:
`The directs with TRW, we are hoping to
`go first because they have multiple flights scheduled.
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`Preliminary Settlement Approval • April 9, 2015
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`Thank you, Your Honor.
`
`Joseph Kohn for
`
`I
`
`Anybody else have multiple flights?
`THE COURT:
`don't want to give preference especially since you are the
`last ones to file.
`I didn't miss that.
`All right.
`Okay.
`Let's take then the direct-purchaser plaintiffs and
`the TRW defendants.
`MR. KOHN:
`direct purchasers.
`Thank you for hearing us today, and thank you for
`hearing us first.
`I will try to move through this
`presentation promptly.
`This process of preliminary approval
`for class action settlement is not novel to the Court at this
`juncture.
`I don't want to repeat the law that is set forth
`in our memorandum but just a few highlights.
`With respect to where the direct purchasers are
`with the TRW settlement and this particular case, the
`occupant safety system piece of this larger MDL litigation,
`we believe we are at another significant mile marker in the
`road.
`With this settlement this is the first time that we
`are proposing that a claim form be included with the notice
`to the class members, and are proposing that in connection
`with the final approval hearing that the Court approve a plan
`of distribution of the settlement funds that have been
`received from TRW and from the prior settlement with AutoLiv
`and that there be a distribution to the class members.
`That
`is a mile marker.
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`Preliminary Settlement Approval • April 9, 2015
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`So you are asking for a final hearing
`THE COURT:
`with all of the bells and whistles beforehand?
`MR. KOHN:
`Correct, that we would propose be in
`July, and I can go through the dates.
`In connection with that process, we have also
`prepared a notice that would advise the class members that
`counsel would file a petition for an award of attorney fees
`and litigation expenses relative to these two settlements in
`this case.
`The class members would have the opportunity to
`comment, respond to that, in addition to the opportunity to
`comment on the distribution plan and the merits of the
`settlement.
`Your Honor, this case, occupant safety, the first
`complaints were filed in July of 2013, so a little less than
`two years ago, the motions to dismiss were denied August
`2014, the settlement with AutoLiv received final approval
`from the Court in January of this year, January 2015, and the
`settlement agreement with TRW was signed on February 25th.
`The settlement amount is $8 million in cash plus an
`extensive cooperation section that will bring the total funds
`received for the direct purchaser class in the occupant
`safety systems case to 43.6 million.
`We would point out just a few factors in support of
`the preliminary approval and also with the final approval we
`will brief these in more detail.
`This was the result of
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`Preliminary Settlement Approval • April 9, 2015
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`arm's-length litigation and fairly extensive litigation, and
`I know all of us on our side of the V have great respect and
`friendship for Mr. Iwrey and his colleagues but I will say
`that these negotiations did reach several moments where one
`side or the other was getting ready to walk or there were
`impasses and there were some difficult discussions both to
`strike the original terms of the deal and then to go over the
`finer points of the agreement.
`We would point out that the settlement amount to
`the direct purchasers is larger than the amount paid by TRW
`in its guilty plea fine, which was 5.1 million.
`That this
`settlement is the largest of the individual settlements with
`the other plaintiff classes.
`So, again, Your Honor, we have prepared as we have
`done in some other hearings -- the proposed agreed-upon
`preliminary approval order has a lot of blanks with dates
`with reference this could occur 20 days after approval or
`50 days after, so I have prepared a summary document that
`assuming that Your Honor is prepared to approve the order and
`it is entered tomorrow, the 10th of April, to actually put in
`the actual dates rather than have those blanks, so we
`prepared both a form of the order with those dates plugged in
`and a one-page sheet with those proposed dates, and Mr. Iwrey
`has reviewed them as well, so --
`THE COURT:
`Okay.
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`Preliminary Settlement Approval • April 9, 2015
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`I can hand up copies now to Your Honor
`MR. KOHN:
`and also submit them electronically or Mr. Fink could if that
`would be of some help?
`THE COURT:
`Yes, electronic would be fine.
`THE LAW CLERK:
`E-File them because they are
`
`orders.
`
`Kay.
`
`THE COURT:
`
`Oh, you will have to e-file them to
`
`It is not e-filing, it is e-mail.
`THE LAW CLERK:
`THE COURT:
`Whatever the electronic equivalent --
`MR. FINK:
`Right, there is a protocol we are
`supposed to follow that somebody smarter than me understands
`in my office, and we can do that.
`THE COURT:
`All right.
`MR. KOHN:
`So for the Court's convenience we did
`try to check these dates to make sure they don't fall on a
`Saturday or Sunday.
`Let's take a look at -- let's start
`THE COURT:
`with -- I know in your proposed order you had specifically
`like 30 days after the preliminary approval, et cetera, so
`let's see what you have here.
`MR. KOHN:
`These dates do mirror those proposed
`dates that they simply, you know, make the assumption, if you
`will, that we are working off an April 10th date to have a
`round number.
`There is one -- with one exception with the
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`Preliminary Settlement Approval • April 9, 2015
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`deadline of filing a claim form, we thought we should allow
`some longer time than we had originally proposed so we
`proposed essentially 120 days from tomorrow but it would be a
`little more than three months from the time the notice goes
`out.
`The objections or opt outs are due earlier, but to the
`extent that we are gathering the information and going over
`their records, submitting a claim, it is typical to have a
`longer period of time and be beyond the opt-out date.
`THE COURT:
`Okay.
`Mr. Iwrey, do you agree with
`
`these --
`
`Your Honor, that's acceptable.
`MR. IWREY:
`So let's look, I guess we need a final
`THE COURT:
`date for the hearing here in court.
`You have on or after
`Tuesday, July 14th.
`Kay, what do we look like?
`MR. FINK:
`That's Bastille Day, of course, Your
`Honor, so I don't know if the Court will be open.
`THE COURT:
`We better change it then.
`July 14th,
`do you want that in the morning?
`MR. KOHN:
`That would be fine, whatever is
`convenient for the Court.
`THE COURT:
`I don't think it would take long unless
`you get somebody who is objecting, but I could set it either
`at 1:30 or I could set it at 10:00, your choice?
`MR. KOHN:
`I think the 1:30 time does allow some of
`us to try to make it in a day trip and not have to stay over,
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`Case 2:12-md-02311-MOB-MKM ECF No. 951 filed 04/23/15 PageID.12552 Page 15 of 40
`15
`Preliminary Settlement Approval • April 9, 2015
`
`if that's acceptable to the Court?
`July 14th at 1:30.
`THE COURT:
`That's fine.
`MR. KOHN:
`Thank you, Your Honor.
`THE COURT:
`All right.
`MR. FINK:
`Your Honor, so we will -- we will submit
`the order putting in that -- including the hearing time and
`date that we just talked about and that again presumes that
`it is entered either today or tomorrow.
`If it is entered
`after tomorrow then Molly can contact us and we can replace
`all the dates if necessary.
`THE COURT:
`Is there any reason why we couldn't get
`it tomorrow?
`Not that I know of.
`MR. FINK:
`Okay.
`We should -- just a minute.
`THE COURT:
`Kay, are you here tomorrow?
`THE LAW CLERK:
`She's gone.
`THE COURT:
`Oh, she's not here.
`THE LAW CLERK:
`I can't get the calendar, I tried
`to check but I can't get it pulled up.
`THE COURT:
`It looks like it is going to be okay.
`I'm not here tomorrow but if you are telling me these are the
`orders exactly except with these dates I will look at them
`electronically and --
`MR. FINK:
`We will get the order to the Court by
`2:30 today.
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`Case 2:12-md-02311-MOB-MKM ECF No. 951 filed 04/23/15 PageID.12553 Page 16 of 40
`16
`Preliminary Settlement Approval • April 9, 2015
`
`THE COURT:
`MR. FINK:
`THE COURT:
`
`Oh, today?
`Yes, I can easily get it to the Court.
`Well, then that's not a problem.
`All
`
`right.
`
`If we change the rules regarding using
`MR. FINK:
`cell phones in the courtroom I could have it in ten minutes?
`THE COURT:
`You may use your cell phone.
`MR. FINK:
`Thank you.
`Okay.
`THE COURT:
`Make sure it doesn't ring.
`Well, let's go back in terms of this settlement.
`Mr. Iwrey, you don't have -- do you agree with the terms of
`the settlement?
`Maybe we should put the rest of the terms --
`I think we've got most of them on the record already.
`MR. KOHN:
`I think, Your Honor, from plaintiffs'
`perspective we touched the highlights, it is the cash payment
`and the extensive cooperation set forth in the document.
`THE COURT:
`Okay.
`Mr. Iwrey, anything?
`Let me
`MR. IWREY:
`Yes, Your Honor, I would agree.
`correct something that Mr. Kohn said, he said this is the
`product of arm's-length litigation, I think he meant
`negotiations.
`Yes.
`MR. KOHN:
`While the litigation was certainly
`MR. IWREY:
`arm's-length or even longer.
`THE COURT:
`All right.
`
`I have reviewed the
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`Case 2:12-md-02311-MOB-MKM ECF No. 951 filed 04/23/15 PageID.12554 Page 17 of 40
`17
`Preliminary Settlement Approval • April 9, 2015
`
`proposed -- well, I have reviewed the settlement agreement
`and I have reviewed the proposed orders obviously without the
`dates but I agree with the dates that have been put in here,
`and I think we have gone over these rules before but briefly
`I will state that I think the Court has to make a
`determination that the settlement is fair, reasonable and
`adequate.
`The Court has reviewed this and I find that the
`$8 million cash payment along with the -- this is true for
`all of these looking at the expense and the duration of
`these -- of this litigation, the complex issues, and the
`cooperation agreements which I think are very important are
`included in this.
`So the Court then goes to look at the proposed
`settlement class, and as in the other cases which the Court
`has reviewed under Rule 23 because as to the classes they
`pretty much all follow the same thing, obviously the class
`here is for the occupant safety -- yes, the occupant safety
`system as a component part.
`In terms of the class certification, certainly
`there is numerosity; there is commonality because anti-price
`fixing conspiracy cases by their nature deal with common
`legal and factual issues; there's typicality because it is
`satisfied here because the individual plaintiffs' injury
`arise from the same wrong that is incurred by the whole;
`there is adequacy of representation as to the named
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`Case 2:12-md-02311-MOB-MKM ECF No. 951 filed 04/23/15 PageID.12555 Page 18 of 40
`18
`Preliminary Settlement Approval • April 9, 2015
`
`plaintiffs, they have the same interest as other class
`members; and as to counsel, counsel is qualified, experienced
`and able to conduct litigation.
`The Court finds that there
`are common questions that predominate and that the class
`resolution is the superior method.
`So I think all of the Court Rules on class are
`satisfied in this case, and I do believe that it was a
`resolution that was resolved at arm's-length negotiations,
`and I think counsel, as the Court has indicated before,
`clearly are capable and have exhibited their capabilities
`here to come to this resolution, so the Court does, in fact,
`approve the -- preliminarily approve the proposed settlement.
`I provisionally certify the class as stated for in the
`pleadings.
`Class counsel, I think we need to do that too, and
`the Court will appoint class counsel for the settlement
`And
`class, the provisional class will be the class counsel.
`the notice the Court approves with the dates inserted in it.
`Did I forget anything, Counsel, anything else that
`we need --
`MR. KOHN:
`THE COURT:
`Mr. Iwrey?
`MR. IWREY:
`THE COURT:
`
`No, Your Honor.
`Thank you.
`That concludes that.
`
`No, Your Honor.
`-- Mr. Kohn?
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`Case 2:12-md-02311-MOB-MKM ECF No. 951 filed 04/23/15 PageID.12556 Page 19 of 40
`19
`Preliminary Settlement Approval • April 9, 2015
`
`Let's see, then we have Panasonic and Hitachi, who
`wants to go --
`Your Honor, Steve Williams for the
`MR. WILLIAMS:
`end payors.
`I will go first.
`The settlements for Hitachi and Panasonic are
`different but the standards are similar.
`THE COURT:
`Okay.
`Wait a minute, are we going to
`do them together?
`I was going to ask you if you have a
`MR. WILLIAMS:
`preference because I could set forth the material terms of
`the two settlements and then at one time address the
`standards for approval?
`Let me just
`THE COURT:
`I think that's reasonable.
`find those two.
`You are for end payors with Hitachi.
`Okay.
`You may proceed.
`The first settlement that was filed
`MR. WILLIAMS:
`with the Court was the Panasonic settlement, this is a
`settlement between the end payors and Panasonic.
`These
`proposed settlements in conjunction with the auto dealers'
`settlements I believe resolve all claims in this Court
`against Panasonic.
`Panasonic is a defendant in three cases; switches,
`steering angle sensors and HID ballasts.
`Panasonic has
`agreed to pay a total for the end-payor cases of $17,100,000
`to resolve those three cases.
`In our papers we provided the
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`Case 2:12-md-02311-MOB-MKM ECF No. 951 filed 04/23/15 PageID.12557 Page 20 of 40
`20
`Preliminary Settlement Approval • April 9, 2015
`
`specific allocations in those cases of what those dollars
`will be, I can recite that for the Court or, as I mentioned,
`it is in the papers as well.
`THE COURT:
`Okay.
`MR. WILLIAMS:
`In addition to the financial
`consideration, Panasonic has agreed to provide what is in our
`view very meaningful and important cooperation, cooperation
`that we believe goes beyond what we otherwise would have
`available to us, and this comment will apply equally to
`Hitachi.
`Given that these cases as we have alleged and as is
`we think confirmed in the plea agreements that have been
`reached involve conspiracies, involve destruction of
`evidence, involve secret meetings and code words, we think
`this is a case where this type of cooperation is even more
`meaningful and even more important than it might be in other
`cases.
`And I note as well finally for Panasonic as with
`Hitachi that they are the first defendant to settle in the
`cases in which they have settled.
`For Hitachi, similarly Hitachi has agreed to a
`settlement with the end payors and in conjunction with the
`auto dealers settlement that I believe resolves all
`outstanding or all pending claims in this Court that are
`brought against Hitachi.
`As with Panasonic, Hitachi has agreed to pay one
`lump sum to resolve all cases against it, and that sum is
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`Case 2:12-md-02311-MOB-MKM ECF No. 951 filed 04/23/15 PageID.12558 Page 21 of 40
`21
`Preliminary Settlement Approval • April 9, 2015
`
`divided amongst one, two, three, four, five --
`THE COURT:
`Nine parts.
`MR. WILLIAMS:
`-- nine cases that they are in.
`The Court may have noted that we have proposed --
`or that we intend to file a motion to consolidate two of
`those cases to make them one, it has not happened yet, if we
`do we will modify the orders to reflect if that's approved by
`the Court, that air flow meters and electronic throttle
`bodies have become a single case as we are alleging it rather
`than two, but other than that the settlement is to resolve
`all of those cases.
`And, again, the total settlement is I
`believe $46,700,000, and I'm just finding that number, I
`apologize.
`I had written down the separate numbers for each
`of the settlements which are also at page 10 of our motion,
`and I could go through each of those or if the Court wants
`that total number?
`THE COURT:
`$46,740,000 --
`Correct.
`MR. WILLIAMS:
`THE COURT:
`-- is that right?
`MR. WILLIAMS:
`Yes.
`THE COURT:
`You have those relegated to each of the
`nine parts that you have right now --
`MR. WILLIAMS:
`We do.
`THE COURT:
`-- your papers, in the agreement, so
`
`I have the total number as
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`Case 2:12-md-02311-MOB-MKM ECF No. 951 filed 04/23/15 PageID.12559 Page 22 of 40
`22
`Preliminary Settlement Approval • April 9, 2015
`
`the Court has reviewed that so unless there is an objection I
`don't think you need to separately set forth that on the
`record.
`
`I apologize.
`
`I do not or I do?
`MR. WILLIAMS:
`THE COURT:
`You do not.
`And as with Panasonic,
`MR. WILLIAMS:
`Thank you.
`Hitachi has also agreed to provide substantial and meaningful
`cooperation, it is the first settling defendants in these
`cases.
`And for the same reasons that I mentioned in relation
`to Panasonic, in these cases we think the value of this
`cooperation is particularly important and particularly
`meaningful and will be particularly beneficial to the class.
`In terms of the settlements themselves, both for
`Panasonic and for Hitachi, they were the result of protracted
`arm's-length negotiation between experienced counsel on both
`the Panasonic side and the Hitachi side, extremely
`experienced, extremely capable counsel who vigorously
`defended the interest of their clients.
`Negotiations in the
`case of Panasonic went over a period of at least six months,
`and with Hitachi I believe negotiations took place over a
`period of a year and a half.
`In the case of Hitachi, it also
`involved the assistance of Ken Feinberg, a very prominent,
`recognized mediator, multiple two-day sessions with
`Mr. Feinberg and with the parties were held before we reached
`the settlement terms, at all times the parties engaged in
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`Case 2:12-md-02311-MOB-MKM ECF No. 951 filed 04/23/15 PageID.12560 Page 23 of 40
`23
`Preliminary Settlement Approval • April 9, 2015
`
`arm's-length negotiations, and as a result of that we think
`that certainly suggests that the settlement should be
`preliminarily approved.
`Briefly, because it is in the papers and the Court
`has recited it, we know when there is a public interest in
`resolution of class actions and anti-trust actions, we think
`that in these cases for Panasonic and Hitachi there is no
`reason to doubt the fairness of the settlements, there is no
`obvious deficiencies in the settlements, the results in light
`of the risk of litigation both in this Court with the
`defenses made by defendants and the risk over time of
`potential changes in the law, the result is good in light of
`those risks.
`All of the requirements of both 23(a) and 23(b)(3)
`are met in these proposed settlements; there's numerosity,
`the legal and factual questions are common, the claims of the
`class members are typical of the claims of the class, the
`class reps and counsel will adequately protect the interest
`of the class members.
`And as to 23(b)(3) common questions
`certainly predominate in this horizontal price-fixing
`conspiracy, and we believe class resolution is the superior
`method to resolve these claims rather than individual
`litigation.
`We have not, unlike the settlement just presented
`to the Court, put forward a notice or a plan of distribution
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`Case 2:12-md-02311-MOB-MKM ECF No. 951 filed 04/23/15 PageID.12561 Page 24 of 40
`24
`Preliminary Settlement Approval • April 9, 2015
`
`but it is our intention to put those things before the Court
`very soon.
`We have been working with our claims
`administrator and with our notice provider to put that plan
`together, and it is our hope that within the next 30 days, if
`certainly not then by the May 6th hearing, we have an
`opportunity to present that to the Court for approval so that
`we can start to disseminate notice to our class members of
`the settlements and to bring the settlements we have reached
`to date and other settlements we may reach to finality.
`That is my presentation on Hitachi and Panasonic.
`I had a comment on T. Rad but I could wait to see if there
`are any questions first.
`THE COURT:
`I'm sorry, but I don't know about
`
`T. Rad.
`
`T. Rad at the last hearing we had,
`MR. WILLIAMS:
`which I think was January 28th, we had just reached agreement
`with them on essential terms.
`We had hoped to present it to
`the Court today.
`We are still finalizing the agreement, and
`I know counsel for T. Rad is here.
`THE COURT:
`Yes.
`MR. WILLIAMS:
`My understanding is we expect within
`a week to have those papers to the Court, and the parties
`would request that the Court consider approving that without
`oral argument, and if the Court certainly directs us we will
`intend to be here to answer any questions, but if the papers
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`25
`Preliminary Settlement Approval • April 9, 2015
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`are sufficient for the purpose of preliminary approval then
`we would be able to fold that into the notice program we are
`putting together at this time and somewhat accelerate that to
`catch up with the prior settlements.
`THE COURT:
`You scared me because I thought I
`missed reading something, there wasn't anything here for
`T. Rad?
`
`No, there are no papers before the
`
`MR. WILLIAMS:
`Court today but --
`Thank you.
`THE COURT:
`MR. WILLIAMS:
`-- we had suggested we might make it
`and we didn't make it.
`THE COURT:
`We try hard to keep up with everything
`here but -- and counsel for T. Rad, is that a correct
`statement, do you agree with what was said here?
`MR. GOURLEY:
`Yes, that's accurate.
`THE COURT:
`And you would agree to have it approved
`in writing?
`Yes, we would.
`MR. GOURLEY:
`Okay.
`I am assuming it is going to be
`THE COURT:
`just like all of these other ones so as a practical matter
`the Court basically, if it is the same, would simply accept
`your settlement agreement and make the findings that I do on
`the record here.
`That's all.
`Okay.
`MR. WILLIAMS:
`Thank you.
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`26
`Preliminary Settlement Approval • April 9, 2015
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`So do you think that would
`
`All right.
`THE COURT:
`be done by the May 6th meeting?
`MR. WILLIAMS:
`The T. Rad or the notice papers?
`THE COURT:
`Notice papers.
`MR. WILLIAMS:
`I believe it will, I expect it will,
`I would hope it would be done even before then although I
`recognize that's only now a little less than a month away,
`but it is our hope to have it to the Court before that
`hearing.
`
`Defendant for Panasonic and
`
`Because if there is anything we need to
`THE COURT:
`deal with that we can deal with then make sure you make a
`note of putting that on the agenda.
`MR. WILLIAMS:
`We will.
`THE COURT:
`All right.
`Hitachi, any comment?
`Your
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