Case 2:13-cv-01303-SFC-RSW ECF No. 156 filed 09/23/20 PageID.6036 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`IN RE: AUTOMOTIVE PARTS ANTITRUST
`LITIGATION
`In Re: Heater Control Panels
`In Re: Occupant Safety Systems
`In Re: Switches
`In Re: Ignition Coils
`In Re: Steering Angle Sensors
`In Re: Electric Powered Steering Assemblies
`In Re: Fuel Injection Systems
`In Re: Valve Timing Control Devices
`In Re: Air Conditioning Systems
`In Re: Automotive Constant Velocity Joint Boot Products
`In Re: Automotive Hoses
`In Re: Shock Absorbers
`In Re: Body Sealing Products
`In Re: Interior Trim Products
`In Re: Automotive Brake Hoses
`In Re: Exhaust Systems
`In Re: Ceramic Substrates
`In Re: Power Window Switches
`In Re: Automotive Steel Tubes
`In Re: Side-Door Latches
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`THIS DOCUMENT RELATES TO:
`End-Payor Actions
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`
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`No. 12-md-02311
`Hon. Sean F. Cox
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`Case No. 2:12-cv-00403
`Case No. 2:12-cv-00603
`Case No. 2:13-cv-01303
`Case No. 2:13-cv-01403
`Case No. 2:13-cv-01603
`Case No. 2:13-cv-01903
`Case No. 2:13-cv-02203
`Case No. 2:13-cv-02503
`Case No. 2:13-cv-02703
`Case No. 2:14-cv-02903
`Case No. 2:15-cv-03203
`Case No. 2:15-cv-03303
`Case No. 2:16-cv-03403
`Case No. 2:16-cv-03503
`Case No. 2:16-cv-03603
`Case No. 2:16-cv-03703
`Case No. 2:16-cv-03803
`Case No. 2:16-cv-03903
`Case No. 2:16-cv-04003
`Case No. 2:17-cv-04303
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`ORDER REGARDING END-PAYOR PLAINTIFFS’ MOTION FOR AN
`AWARD OF ATTORNEYS’ FEES AND PAYMENT OF INCENTIVE
`AWARDS TO CLASS REPRESENTATIVES IN CONNECTION
`WITH THE ROUND 4 SETTLEMENTS
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` 1
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`Case 2:13-cv-01303-SFC-RSW ECF No. 156 filed 09/23/20 PageID.6037 Page 2 of 11
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`End-Payor Plaintiffs’ (“EPPs”) have filed their Motion for an Award of Attorneys’ Fees
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`and Payment of Incentive Awards to Class Representatives in Connection with the Round Four
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`Settlements.
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`The Court has reviewed the memorandum submitted by EPPs in support of their motion
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`and has also reviewed all of the declarations and submissions relating to the motion filed with the
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`Court. Pursuant to notice given to the Settlement Classes in accordance with the Court’s order,
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`the Court held a hearing by video conference on September 17, 2020 to consider the motion.1
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`Based on the entire record of these proceedings and in consideration of all of the
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`submissions and filings made with respect to EPPs’ application, and good cause appearing
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`therefor,
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`IT IS HEREBY ORDERED as follows:
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`1.
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`The Court has granted final approval to the settlements referred to by the parties
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`and the Court as the Round 4 Settlements in its Order Granting Final Approval of the Round 4
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`Settlements.2 The Court has considered the submissions of the parties and the relevant case law
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`and authority relating to the motion and concludes that awards of attorneys’ fees, reimbursement
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`of expenses to Co-Lead Counsel from the litigation fund, and incentive awards to be paid out of
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`1 Defined terms not otherwise defined herein shall have the meanings ascribed to those
`terms as noted in End-Payor Plaintiffs’ Motion for an Award of Attorneys’ Fees and Payment of
`Incentive Awards to Class Representatives in Connection with the Round Four Settlements and
`the papers associated with that motion. See, e.g., Exhaust Systems, Case No. 2:16-cv-03703, ECF
`No. 174.
`2 EPPs filed their motion for an award of attorneys’ fees and for incentive awards to Class
`Representatives in the cases that are being settled as to the Settling Defendants that are parties to
`the Round 4 Settlements. This Order will accordingly be separately entered as an order in each
`specific case docket to which it applies. The litigation expenses that are the subject of EPPs’
`motion will be paid from the litigation expense fund previously approved by the Court. If, at the
`conclusion of this litigation, funds remain in that fund, they will be added to the Settlement Funds
`for distribution to authorized Class member claimants.
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`Case 2:13-cv-01303-SFC-RSW ECF No. 156 filed 09/23/20 PageID.6038 Page 3 of 11
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`the proceeds of the Round 4 Settlements are appropriate under Federal Rules of Civil Procedure
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`23(h) and 54(d)(2). Notice of the motion for fees and incentive awards was provided to the
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`potential Settlement Class members pursuant to, and in compliance with, the order of the Court
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`by direct and published notice and a settlement website that identified and made available for
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`inspection the Court’s long-form notice and filings in this litigation. The notice given regarding
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`the motion fully satisfied the requirements of Rule 23 and constitutional Due Process.
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`2.
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`The Court has considered the reaction of class members to the fee request. Out of
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`the millions of potential class members who were given notice or who were made aware of the
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`settlements and the fee request, the Court received no objections to EPPs’ motion.
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`3.
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`The Court engages in a two-part analysis when assessing the reasonableness of a
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`petition seeking an award of attorneys’ fees to be paid out of the proceeds of a class action
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`settlement. In re Cardinal Health Inc. Sec. Litig., 528 F. Supp. 2d 752, 760 (S.D. Ohio 2007).
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`The Court first determines the method of calculating the attorneys’ fees: it applies either the
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`percentage-of-the-fund approach or the lodestar/multiplier method. Id.; Van Horn v. Nationwide
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`Prop. & Cas. Inc. Co., 436 F. App’x 496, 498 (6th Cir. 2011).
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`4.
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`The Court has the discretion to select the appropriate method for calculating
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`attorneys’ fees “in light of the unique characteristics of class actions in general, and of the unique
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`circumstances of the actual cases before them.” Rawlings v. Prudential-Bache Properties, Inc., 9
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`F.3d 513, 516 (6th Cir. 1993). In common fund cases, whichever method is used, the award of
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`attorneys’ fees need only “be reasonable under the circumstances.” Id. The Court also analyzed
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`and weighed the six factors described in Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1196
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`(6th Cir. 1974).
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`Case 2:13-cv-01303-SFC-RSW ECF No. 156 filed 09/23/20 PageID.6039 Page 4 of 11
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`5.
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`Consistent with prior attorneys’ fees awards in this litigation, the Court will award
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`fees to EPPs using the percentage-of-the-fund approach. This method of awarding attorneys’ fees
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`is preferred in this District because it conserves judicial resources and aligns the interests of class
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`counsel and the class members. Rawlings, 9 F.3d at 515; In re Packaged Ice Antitrust Litig., No.
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`08-md-01952, 2011 WL 6209188, at *16 (E.D. Mich. Dec. 13, 2011); In re Delphi Corp. Sec.,
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`Derivative & “ERISA” Litig., 248 F.R.D. 483, 502 (E.D. Mich. 2008); Cardinal, 528 F. Supp. 2d
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`at 762 (the Sixth Circuit has “explicitly approved the percentage approach in common fund
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`cases”); In re Skelaxin (Metaxalone) Antitrust Litig., No. 12-md-2343, 2014 WL 2946459, *1
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`(E.D. Tenn. Jun. 30, 2014).
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`6.
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`The Court hereby authorizes Co-Lead Counsel to pay the expenses of the
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`settlement notice and claims administration from the Round 4 Settlements on a pro rata basis.
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`7.
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`Co-Lead Counsel have requested a fee award equal to 22% of the Settlement
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`Funds. The award requested is within the range of fee awards made by courts in this Circuit. In
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`re Prandin Direct Purchaser Antitrust Litig., No. 10-cv-12141, 2015 WL 1396473, *5 (E.D.
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`Mich. Jan. 20, 2015) (awarding one-third of the common fund); In re Packaged Ice Antitrust
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`Litig., 2011 WL 6209188, at *19; Skelaxin, 2014 WL 2946459, at *1; In re Southeastern Milk
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`Antitrust Litig., No. 08-md-1000, 2013 WL 2155387, at *8 (E.D. Tenn. May 17, 2013); Thacker
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`v. Chesapeake Appalachia, L.L.C., 695 F. Supp. 2d 521, 528 (E.D. Ky. 2010); Bessey v.
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`Packerland Plainwell, Inc., No. 4:06-CV-95, 2007 WL 3173972, at *4 (W.D. Mich. 2007);
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`Delphi, 248 F.R.D. at 502-03; In re National Century Financial Enterprises, Inc. Investment
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`Litig., 2009 WL 1473975, *3 (S.D. Ohio, May 27, 2009); Kogan v. AIMCO Fox Chase, L.P., 193
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`F.R.D. 496, 503 (E.D. Mich. 2000).
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`Case 2:13-cv-01303-SFC-RSW ECF No. 156 filed 09/23/20 PageID.6040 Page 5 of 11
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`8.
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`As noted below, the Court has previously made interim fee awards equal to 20%
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`of the principal amount of the Round 1 Settlements; 20% of the Round 2 Settlements, net of
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`litigation expenses; and 25% of the Round 3 Settlements, net of litigation expenses.
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`9.
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`The Court has considered the six Ramey factors in weighing a fee award to Co-
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`Lead Counsel: (1) the value of the benefits rendered to the class; (2) society’s stake in rewarding
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`attorneys who produce such benefits in order to maintain an incentive to others; (3) whether the
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`services were undertaken on a contingent fee basis; (4) the value of the services on an hourly basis
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`[i.e., the lodestar cross-check]; (5) the complexity of the litigation; and (6) the professional skill
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`and standing of counsel on both sides. Ramey, 508 F.2d at 1196.
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`10.
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`The Court has carefully analyzed the settlements and applied the Ramey factors to
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`EPPs’ motion and concludes that the factors are met and justify an interim fee award to Co-Lead
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`Counsel. The Round 4 Settlements collectively total $183,958,000,3 and provide substantial cash
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`and non-monetary benefits, including, with few exceptions, extensive discovery cooperation from
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`all Settling Defendants and injunctive relief prohibiting certain conduct at issue in the litigation
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`from all but a few of the Settling Defendants who are parties to the Round 4 Settlements.4
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`3 Pursuant to a settlement with the Reorganized TK Holdings Trust (“TKH”) in bankruptcy
`proceeding, Co-Lead Counsel have secured a $53,200,000 authorized claim against TKH, but
`they expect to receive only a small fraction of this amount for distribution to the classes. Because
`the ultimate settlement amount in connection with the TKH settlement remains undetermined at
`this time, this figure was not included in Co-Lead Counsel’s calculation of the Round 4 settlement
`proceeds. TKH is also the only Settling Defendant which is not required to provide cooperation
`under its settlement agreement.
`4 Cooperation obligations of certain defendants are in certain cases deemed mostly
`satisfied once final judgment as to all defendants in those cases has been entered and all appeals,
`if any, have been exhausted. However, even in these circumstances, the Settling Defendants are
`still required to provide cooperation in the form of providing vehicle lists and to produce to the
`EPPs documents that they produce to other parties.
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`Case 2:13-cv-01303-SFC-RSW ECF No. 156 filed 09/23/20 PageID.6041 Page 6 of 11
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`11.
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`Courts in the Sixth Circuit weigh “society’s stake in rewarding attorneys who
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`[obtain favorable outcomes for a class] in order to maintain an incentive to others,” and counsel’s
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`success in complex antitrust litigation “counsels in favor of a generous fee.” Cardizem, 218
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`F.R.D. at 534 (internal quotation marks omitted). The substantial recoveries obtained by EPPs to
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`date serve the strong public policy of holding accountable those who violate the antitrust laws,
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`thereby promoting fair competition and honest pricing.
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`12.
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`EPP Class Counsel have worked on a contingent basis and the results of this
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`litigation have never been certain.
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`13.
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`The legal and factual issues in this litigation are complex and the parties have
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`zealously asserted their claims and defenses. Co-Lead Counsel have asserted a number of claims
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`under both federal and state antitrust laws, as well as state consumer protection and unjust
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`enrichment laws. Likewise, issues attendant to serving and conducting discovery against
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`numerous foreign defendants located around the world compound the complexity of this case.
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`14.
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`The Court is satisfied that these settlements were the result of arm’s-length
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`negotiations conducted in good faith by informed and experienced counsel, and, in many cases,
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`with the assistance of highly experienced mediators.
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`15.
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`The Ramey factors and a cross-check of the lodestar incurred by EPP Class
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`Counsel suggest that EPP Class Counsel are entitled to appropriate compensation to take into
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`account the risks they assumed, the magnitude of work done, and the benefits achieved for the
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`members of the Settlement Classes. Here, Co-Lead Counsel reviewed all EPPs’ attorney time
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`submissions received through September 30, 2019, and included detailed information about the
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`resulting lodestar in EPPs’ motion. EPP Class Counsels’ lodestar in this litigation totals
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`$154,782,333.18, from March 23, 2012 through September 30, 2019, calculated in accordance
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`Case 2:13-cv-01303-SFC-RSW ECF No. 156 filed 09/23/20 PageID.6042 Page 7 of 11
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`with EPP Class Counsels’ current hourly rates.5 These hours and rates are reasonable and justified
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`given the length and complexity of this litigation and EPP Class Counsels’ many years of
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`experience in prosecuting complex antitrust class actions. Further, the defendants in these cases
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`are represented by some of the most prominent antitrust defense lawyers in the world. EPP Class
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`Counsels’ hourly rates are also in-line with the market. In each of the EPP Class Counsel firm’s
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`declarations, only the most senior attorneys list hourly rates above $700. These rates are well in
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`line with the market, with recent reports explaining that senior lawyers at top law firms routinely
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`charge well over $1,000. See Sara Randazzo & Jacqueline Palank, Legal Fees Cross New Mark:
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`$1,500 an Hour, WALL ST. J., Feb. 9, 2016, available at https://www.wsj.com/articles/legal-
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`fees-reach-new-pinnacle-1-500-anhour-1454960708 (“Despite low inflation and weak demand
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`for legal services, rates at large corporate law firms have risen by 3% to 4% a year since the
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`economic downturn”).
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`16.
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`Accordingly, the Court GRANTS an award of attorneys’ fees to Co-Lead Counsel
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`equal to 22% of the Round 4 Settlements including a pro rata share of the interest earned thereon,
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`excluding the yet to be determined TKH settlement amount. This award, taken together with the
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`prior awards from the Round 1 Settlements, Round 2 Settlements, and Round 3 Settlements will
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`result in a total award equal to 22.05% of the proceeds of the four rounds of settlements, excluding
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`5 The Court determines that the time included in connection with the Round 1, Round 2,
`and Round 3 Settlement fee requests should be included in the lodestar/multiplier cross-check for
`the Round 4 Settlements. In calculating the lodestar for purposes of the cross-check, it would be
`impractical to compartmentalize and isolate the work that EPP Class Counsel did in any particular
`case at any particular time because all of their work assisted in achieving all of the settlements and
`has provided and will continue to provide a significant benefit to all of the EPP classes. See
`Southeastern Milk, 2013 WL 2155387, at *7-8 (rejecting objection based on the proposition that
`the calculation of class counsel’s lodestar should be limited to work performed after the period
`covered by a prior fee award); Lobatz v. U.S. West Cellular of California, Inc., 222 F.3d 1142 (9th
`Cir. 2000) (same).
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`Case 2:13-cv-01303-SFC-RSW ECF No. 156 filed 09/23/20 PageID.6043 Page 8 of 11
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`the TKH settlement. The Round 4 attorneys’ fees, totaling $40,470,760.00, together with a pro
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`rata share of the interest earned thereon, shall be paid on a pro rata basis from the net settlement
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`funds provided by each of the Round 4 Settlements currently before the Court.
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`17.
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`Using the lodestar/multiplier cross-check methodology and reviewing the total
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`fees awarded against the lodestar generated on these cases from March 23, 2012 to September 30,
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`2019, the 22% fee awarded results in an overall lodestar/multiplier of 1.74, excluding the TKH
`settlement. Such a multiplier is well within, if not substantially below, the range of reasonable
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`multipliers awarded in similar contingent fee cases. See In re Prandin, 2015 WL 1396473, at *14
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`(awarding attorneys’ fees in the amount of one-third of a $19 million settlement fund, which
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`equaled a multiplier of 3.01); Bailey v. AK Steel Corp., No. 1:06-cv-468, 2008 WL 553764, at *3
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`(S.D. Ohio Feb. 28, 2008) (awarding attorneys’ fees with a multiplier of approximately 3). This
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`interim fee award is reasonable in light of the complexity of this litigation, the results achieved
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`for the class members to date, the work and labor of EPP Class Counsel, and the risks assumed
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`by EPP Class Counsel.
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`18.
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`Co-Lead Counsel are hereby authorized to allocate the attorneys’ fees awarded
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`herein among EPP Class Counsel who performed work on behalf of EPPs in accordance with Co-
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`Lead Counsel’s assessment of each firm’s contribution to the prosecution and settlement of these
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`actions.
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`19.
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`Co-Lead Counsel have also requested a total of $565,000 in incentive awards to
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`be paid to fifty-nine named Class Representatives. Co-Lead Counsel have split those Class
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`Representatives into two groups based on their contributions to the cases.
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`20.
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`The first group (“Group 1”) is comprised of the following five individuals: (1)
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`Jane Butler; (2) Melissa Croom; (3) Theresia Dillard; (4) James Phelps; and (5) Bonnie Vander
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`Case 2:13-cv-01303-SFC-RSW ECF No. 156 filed 09/23/20 PageID.6044 Page 9 of 11
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`Meulen. Co-Lead Counsel have proposed that each of these individuals would receive a single
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`$5,000 award per person.
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`21.
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`The second group (“Group 2”) is comprised of the following fifty-four individuals:
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`(1) Ifeoma Adams; (2) Halley Ascher; (3) Gregory Asken; (4) Melissa Barron; (5) Kimberly
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`Bennett; (6) David Bernstein; (7) Ron Blau; (8) Tenisha Burgos; (9) Kent Busek; (10) Jennifer
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`Chase; (11) Rita Cornish; (12) Nathan Croom; (13) Lori Curtis; (14) Jessica DeCastro; (15) Alena
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`Farrell; (16) Jane Fitzgerald; (17) Frances H. Gammell-Roach; (18) Carroll Gibbs; (19) Dori
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`Gilels; (20) Jason Grala; (21) Ian Groves; (22) Curtis Gunnerson; (23) Paul Gustafson; (24) Tom
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`Halverson; (25) Curtis Harr; (26) Andrew Hedlund; (27) Gary Arthur Herr; (28) John W.
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`Hollingsworth; (29) Carol Ann Kashishian; (30) Elizabeth Kaufman; (31) Robert P. Klingler; (32)
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`Kelly Klosterman; (33) James E. Marean; (34) Michelle McGinn; (35) Rebecca Lynn Morrow;
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`(36) Edward T. Muscara; (37) Stacey R. Nickell; (38) Sophie O’Keefe-Zelman; (39) Roger D.
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`Olson; (40) William Dale Picotte; (41) Whitney Porter; (42) Cindy Prince; (43) Janne Rice; (44)
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`Robert M. Rice, Jr.; (45) Darrel Senior; (46) Meetesh Shah; (47) Darcy C. Sherman; (48) Erica J.
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`Shoaf; (49) Arthur Stukey; (50) Kathleen A. Tawney; (51) Jane Taylor; (52) Keith Uehara; (53)
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`Michael Wick; and (54) Phillip G. Young. Co-Lead Counsel have proposed that each of these
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`individuals would receive a single $10,000 award per person.
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`22.
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`This is the first time Co-Lead Counsel have requested incentive awards on behalf
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`of the Class Representatives. Notice that EPPs would be requesting incentive awards for the Class
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`Representatives was included in the published notice given to the Settlement Classes. And Co-
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`Lead Counsel have only requested $565,000 in incentive awards, which is equal to approximately
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`0.3% of the Round 4 Settlement Funds, excluding the TKH settlement.
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`Case 2:13-cv-01303-SFC-RSW ECF No. 156 filed 09/23/20 PageID.6045 Page 10 of 11
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`23.
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`The Sixth Circuit has noted that incentive awards are typically awarded to class
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`representatives for their extensive involvement with a lawsuit. Hadix v. Johnson, 322 F.3d 895,
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`897 (6th Cir. 2003). Awards encourage members of a class to become class representatives and
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`reward their efforts taken on behalf of the class. Id. Payment of incentive awards to class
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`representatives is a reasonable use of settlement funds. Moulton v. U.S. Steel Corp., 581 F.3d 344,
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`351 (6th Cir. 2009). Courts have approved incentive awards of up to $15,000 for individual
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`plaintiff class representatives for providing information to class counsel, receiving and approving
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`pleadings, assisting in discovery, and participating in settlement discussions. See In re CMS
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`Energy ERISA Litig., No. 02-72834, 2006 WL 2109499, at *3 (E.D. Mich. June 27, 2006). Courts
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`have also provided awards of $10,000 for class representatives who “searched their personal
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`records multiple times to locate documents” in addition to “testif[ying] via depositions” and
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`awards of $5,000 for class representatives who “participated in discovery by locating and
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`producing documents.” The Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, Case No.
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`2:10-cv-14360-DPH-MKM, ECF No. 364 at pp. 27.
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`24.
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`After reviewing the request for incentive awards, the Court finds that the awards
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`requested are reasonable. Here, Class Representatives provided discovery and assistance in a
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`litany of cases, sometimes in as many as forty-one cases.
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`25.
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`As to the individual awards to Group 1, these Class Representatives provided
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`important and indispensable service to the Settlement Class. They searched their personal records
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`to locate documents responsive to discovery requests and provided information to Co-Lead
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`Counsel. They also came forward to serve as named plaintiffs. The Court finds that the requested
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`incentive awards for this set of Class Representatives are reasonable in light of their participation
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`during the discovery phase of the litigation. Their participation in this litigation benefitted the
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`Classes.
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`26.
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`As to the individual awards to Group 2, the individuals in this group participated
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`in discovery by locating and producing documents, came forward as Class Representatives in
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`many, if not all, of the EPP cases, provided Co-Lead Counsel with information, in most cases
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`provided verified responses to interrogatories and, most importantly, testified in a deposition. In
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`light of these significant contributions, the Court finds that their services in the litigation supports
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`the requested incentive awards.
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`27.
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`These incentive awards, totaling $565,000, shall be paid on a pro rata basis from
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`the net settlement funds provided by each of the Round 4 Settlements currently before the Court.
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`IT IS SO ORDERED.
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`Dated: September 23, 2020
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`s/Sean F. Cox
`Sean F. Cox
`U. S. District Judge
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`11
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