UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :

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1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION IN RE AUTOMOTIVE PARTS ANTITRUST LITIGATION IN RE WIRE HARNESS IN RE INSTRUMENT PANEL CLUSTERS IN RE FUEL SENDERS IN RE HEATER CONTROL PANELS IN RE OCCUPANT SAFETY RESTRAINT SYSTEMS IN RE ALTERNATORS IN RE RADIATORS IN RE STARTERS IN RE SWITCHES IN RE IGNITION COILS IN RE MOTOR GENERATORS IN RE STEERING ANGLE SENSORS IN RE HID BALLASTS IN RE INVERTERS IN RE AIR FLOW METERS IN RE FUEL INJECTION SYSTEMS IN RE AUTOMATIC TRANSMISSION FLUID WARMERS IN RE VALVE TIMING CONTROL DEVICES IN RE ELECTRONIC THROTTLE BODIES THIS DOCUMENT RELATES TO ALL END-PAYOR ACTIONS Master File No. 12-md Honorable Marianne O. Battani Case No. 212-cv MOB-MKM Case No. 212-cv MOB-MKM Case No. 212-cv MOB-MKM Case No. 212-cv MOB-MKM Case No. 212-cv MOB-MKM Case No. 213-cv MOB-MKM Case No. 213-cv MOB-MKM Case No. 213-cv MOB-MKM Case No. 213-cv MOB-MKM Case No. 213-cv MOB-MKM Case No. 213-cv MOB-MKM Case No. 213-cv MOB-MKM Case No. 213-cv MOB-MKM Case No. 213-cv MOB-MKM Case No. 213-cv MOB-MKM Case No. 213-cv MOB-MKM Case No. 213-cv MOB-MKM Case No. 213-cv MOB-MKM Case No. 213-cv MOB-MKM END-PAYOR PLAINTIFFS OMNIBUS RESPONSE TO OBJECTIONS TO SETTLEMENTS WITH CERTAIN DEFENDANTS

2 TABLE OF CONTENTS BACKGROUND...3 I. Notice and Objections...3 II. EPP Discovery of Objectors...6 ARGUMENT...7 III. The Court Should Overrule the Objections and Approve the Settlements....7 A. The Settlement Classes Are Defined by Objective Criteria....7 B. Several Class Members Lack Standing...11 C. Class Notice Satisfied Due Process Requirements D. Rule 23 Is Satisfied E. Class Member Recoveries...14 F. The Scope of the Release of Claims is Reasonable and Limited by the Claims and Products Alleged in the Complaints G. Requested Attorneys Fees are Reasonable and Not Excessive H. Miscellaneous Objections Should Also be Rejected IV. The Court Should View With Skepticism the Arguments of Serial or Professional Objector Counsel...27 CONCLUSION...28 i

3 TABLE OF AUTHORITIES Cases Allapattah Servs. v. Exxon Corp., 454 F. Supp. 2d 1185 (S.D. Fla 2006) Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) Auto. Refinishing Paint Antitrust Litig., 2004 U.S. Dist. LEXIS 29161, at *26 (E.D. Pa. Sept. 27, 2004) Barnes v. Fleetboston Fin. Corp., No. CA NG, 2006 WL (D. Mass. Aug. 22, 2006) Barton v. Drummond Co., 636 F.2d 978 (5th Cir. 1981) Bessey v. Packerland Plainwell, Inc., No. 06-cv-95, 2007 WL (W.D. Mich. Oct. 26, 2007) Blech Sec. Litig., No. 94 Civ. 7696, 2002 U.S. Dist. LEXIS 23170, at *5 (S.D.N.Y. Nov. 27, 2002) Bowling v. Pfizer, 102 F.3d 777 (6th Cir. 2006) Burns v. Elrod, 757 F.2d 151 (7th Cir. 1985)... 8 Carerra v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) Carroll v. Stettler, No , 2011 U.S. Dist. LEXIS , at *26 (E.D. Pa. Oct. 19, 2011) Fears v. Wilhelmina Model Agency, Inc., No. 02 Civ. 4911, 2003 WL (S.D.N.Y. July 15, 2003)... 7 Fidel v. Farley, 534 F.3d 508 (6th Cir. 2008) Geier v. Alexander, 801 F.2d 799 (6th Cir.1986) Gooch v. Life Inv'rs Ins. Co. of Am., 672 F.3d 402 (6th Cir. 2012) ii

4 Griffin v. Flagstar Bancorp, Inc., No. 210-cv-10610, 2013 WL (E.D. Mich. Dec. 12, 2013)... 2 Grunin v. Int l House of Pancakes, 513 F.2d 114 (8th Cir. 1975)... 13, 19 Hnot v. Willis Group Holdings Ltd., 228 F.R.D. 476 (S.D.N.Y.2005)... 9 In re Ampicillin Antitrust Litig., 526 F. Supp. 494 (D.D.C. 1981) In re Brand Name Prescription Drugs Antitrust Litig., No. 94 C 897, 1996 WL (N.D. Ill. Apr. 4, 1996)... 15, 26 In re Cardinal Health Inc. Sec. Litig., 528 F. Supp. 2d 752 (S.D. Ohio 2007) In re Cardinal Health, Inc. Sec. Litig., 550 F. Supp. 2d 751 (S.D. Ohio 2008) In re Cardizem CD Antitrust Litig., 218 F.R.D. 508 (E.D. Mich. 2003)... 2, 4, 5 In re Cement & Concrete Antitrust Litig., 817 F.2d 1435 (9th Cir. 1987)... 8 In re Databank Antitrust Litigation, 209 F. Supp. 2d 96 (D.D.C. 2002) In re Delphi Corp. Sec., Derivative & ERISA Litig., 248 F.R.D. 483 (E.D. Mich. 2008)... 17, 18, 19 In re Domestic Air Transp. Antitrust Litig., 141 F.R.D. 534 (N.D. Ga. 1992) In re Drexel Burnham Lambert Group, Inc., 130 B.R. 910 (S.D.N.Y.1991)... 15, 26 In re Equity Funding Corp. of Am. Sec. Litig., 438 F. Supp (C.D. Cal. 1977) In re Ins. Brokerage Antitrust Litig., 579 F.3d 241 (3d Cir. 2009) In re Iowa Ready-Mix Concrete Antitrust Litig., No. 10-cv-4038, 2011 WL (N.D. Iowa Nov. 9, 2011) iii

5 In re Kendavis Holding Co., 249 F.3d 383 (5th Cir. 2001) In re Packaged Ice Antitrust Litig., No. 08-md-01952, 2011 WL (E.D. Mich. Dec. 13, 2011)... 17, 18 In re Packaged Ice Antitrust Litig., No. 08-MD-01952, 2011 WL (E.D. Mich. Feb. 22, 2011)... 2 In re Painewebber Ltd. Partnerships Litig., No. 94 CIV (SHS), 2003 WL (S.D.N.Y. Aug. 4, 2003) In re Prandin Direct Purchaser Antitrust Litig., No. 10-cv-12141, 2015 WL (E.D. Mich. Jan. 20, 2015) In re Prudential Sec. Inc. Ltd. P ships Litig., 164 F.R.D. 362 (S.D.N.Y. 1996) In re S.E. Milk Antitrust Litig., No. 08-md-1000, 2013 WL (E.D. Tenn. May 17, 2013) In re Skelaxin (Metaxalone) Antitrust Litig., No. 12-md-2343, 2014 WL (E.D. Tenn. June 30, 2014) In re Southeastern Milk Antitrust Litig., 2013 U.S. Dist. LEXIS 70167, *29-31 (E.D. Mich. May 17, 2013) In re Southern Fla. Waste Disposal Antitrust Litig., 896 F.2d 493 (11th Cir. 1990)... 8 In re Vitamins Antitrust Litig., No. 99-md-1285, 2001 WL (D.D.C. July 16, 2001) In re Washington Pub. Power Supply Sys. Sec. Litig., [1989 Transfer Binder] Fed. Sec. L. Rep. (CCH) 94,326 (W.D. Wash. 1988)... 15, 26 Kogan v. AIMCO Fox Chase, L.P., 193 F.R.D. 496 (E.D. Mich. 2000) Lessard v. City of Allen Park, 372 F. Supp. 2d 1007 (E.D. Mich. 2005)... 2 Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015) iv

6 Olden v. LaFarge Corp., 472 F.Supp.2d 922 (E.D. Mich. 2007)... 25, 27 Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) Rawlings v. Prudential-Bache Properties, 9 F.3d 513 (6th Cir. 1993)... 17, 18 Rikos v. Procter & Gamble Co., 799 F.3d 497 (6th Cir. 2015) Saunders v. Berks Credit Collections, Inc., No , 2002 U.S. Dist. LEXIS 12718, at *42 (E.D. Pa. July 12, 2002) Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, No. 10-cv-14360, 2015 WL (E.D. Mich. Mar. 31, 2015) Stoffels v. SBC Commc'ns, 238 F.R.D. 446 (W.D. Tex. 2006)... 7 TD Ameritrade Account Holder Litig., 2011 U.S. Dist. LEXIS , at *24-25 (N.D. Cal. Sept. 12, 2011) UAW v. General Motors Corp., 497 F.3d 615 (6th Cir. 2007)... 2, 12, 19 Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632 (5th Cir. 2012)... 7 Walsh v. Great Atl. & Pac. Tea Co., 726 F.2d 956 (3d Cir. 1983) Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518 (1st Cir. 1991)... 20, 21 Williams v. Vukovich, 720 F.2d 909 (6th Cir. 1983)... 2 Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 (6th Cir. 2012) Zoran Corp. Derivative Litig., 2008 U.S. Dist. LEXIS 48246, at *31 (N.D. Cal. Apr. 7, 2008) Statutes Fed. R. Civ. P , 21 v

7 Fed. R. Civ. P. 23(b)(3) Fed. R. Civ. P. 23(c)(2)(B) Fed. R. Civ. P. 23(e) Other Authorities 3 ALBA CONTE & HERBERT B. NEWBERG, NEWBERG ON CLASS ACTIONS MANUAL FOR COMPLEX LITIGATION (Fourth) , at 288 (2004) vi

8 For the reasons set forth in End-Payor Plaintiffs ( EPPs ) papers filed in support of approval of the settlements and application for fees and costs that have thus far been reached in this very complex MDL litigation, the settlements readily meet all applicable tests for approval. They are plainly fair, reasonable, and adequate to the Settlement Classes, and EPPs respectfully submit they should be approved by the Court. A handful of objections have been made to the settlements. Only five objections on behalf of ten objectors are under consideration from a universe comprised of millions of potential class members. 1 This minuscule number of objections some of which were made by lawyers who have made it a cottage industry to object to class action settlements regardless of the merits of the settlements make boilerplate arguments that do not correspond to the settlements before the Court. The settlements before the Court represent a remarkable achievement for the Settlement Classes. They provide a total of approximately $225 million in cash for the benefit of the Settlement Classes and also provide for very extensive discovery cooperation to EPPs, which has and will assist them in prosecuting this litigation against the non-settling defendants. Certain of the settlements also provide for injunctive relief to prevent future wrongdoing. It is important to recognize that the settlements are partial in nature. EPPs retain the right to seek from the Non- Settling Defendants three times all of the damages the classes have suffered, less only the amounts paid in settlement. In addition, the settlements avoid the delay, risk of non-recovery, and additional expense inherent in complex antitrust litigation such as this. Several of the objections focus on the definitions of the Settlement Classes and make mistaken arguments about the alleged lack of clarity in those definitions. These objections are 1 As noted below, infra at 6, two additional objections on behalf of three objectors have since been withdrawn entirely. Additionally, one objector has withdrawn from her joint objection with several other individuals. 1

9 meritless. As discussed below, the class definitions clearly and objectively define the criteria for membership in the classes. The objectors also complain about how the settlement funds will be distributed. However, claims administration and distribution issues are not relevant to the Court s consideration of whether it should grant final approval of the settlements. Instead, the correct standard is whether the settlements as a whole are fair, adequate, and reasonable. Lessard v. City of Allen Park, 372 F. Supp. 2d 1007, 1009 (E.D. Mich. 2005) (citing Williams v. Vukovich, 720 F.2d 909, (6th Cir. 1983)). The factors to be considered by the Court, and which are not implicated by the objections raised here, are (1) the likelihood of success on the merits weighed against the amount and form of the relief offered in the settlement; (2) the complexity, expense, and likely duration of further litigation; (3) the opinions of class counsel and class representatives; (4) the amount of discovery engaged in by the parties; (5) the reaction of absent class members; (6) the risk of fraud or collusion; and (7) the public interest. In re Packaged Ice Antitrust Litig., No. 08-MD-01952, 2011 WL , at *8 (E.D. Mich. Feb. 22, 2011); see also UAW v. General Motors Corp., 497 F.3d 615, 631 (6th Cir. 2007); Griffin v. Flagstar Bancorp, Inc., No. 210-cv-10610, 2013 WL , at *3 (E.D. Mich. Dec. 12, 2013); In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 522 (E.D. Mich. 2003). The objections to EPPs application for an award of attorneys fees and expenses also lack merit for the reasons set forth in EPPs moving papers and below. Accordingly, the Court should overrule the objections filed in this case and grant final approval to the settlements and grant EPPs application for an award of attorneys fees and expenses. 2

10 BACKGROUND I. Notice and Objections The Court previously found each of the settlements to be sufficiently fair, reasonable and adequate to warrant sending notice of the settlements to the Settlement Classes. 2 The Court scheduled a fairness hearing for May 11, 2016, and set an April 11, 2016 deadline for objections to the settlements. See, e.g., Combined Notice Order, 212-cv-00103, ECF No The paucity of objections is telling in light of the extensive notice of the settlements given to the classes in this litigation and the large number of class members. Kinsella Media, LLC ( Kinsella ), a nationally preeminent class action expert, recommended and implemented a class notice program utilizing print, paid, and earned media along with individual notice where possible. Using syndicated data available from the GfK MediaMark Research, Inc. s ( GfK MRI ) 2015 Doublebase Study, 3 Kinsella selected a target 2 See Orders preliminarily approving settlements between End-Payor Plaintiffs and Nippon Seiki [Case No. 12-cv-00203, ECF No. 75] (Feb. 13, 2014); Lear [Case No. 12-cv-00103, ECF No. 209] (July 3, 2014); KL Sales [Case No. 12-cv-00103, ECF No. 209] (July 3, 2014); Autoliv [Case No. 12-cv-00603, ECF No. 83] (July 2, 2014); Yazaki [Case No. 12-cv-00103, ECF No. 231] (Oct. 16, 2014); [Case No. 12-cv-00203, ECF No. 103; and Case No. 12-cv-00303, ECF No. 95] (Oct. 10, 2014); TRW [Case No. 12-cv-00603, ECF No. 88] (Oct. 10, 2014); Panasonic [Case No. 13-cv-01303, ECF No. 46; Case No. 13-cv-01603, ECF No. 28; Case No. 13-cv ; ECF No. 95] (April 10, 2015); HIAMS [Case No. 13-cv , ECF No. 23; Case No. 13-cv-00703, ECF No. 38; Case No. 13-cv-01103, ECF No. 48; Case No. 13-cv-01403, ECF No. 33; Case No. 13-cv-01503, ECF No. 49; Case No. 13-cv-01803, ECF No. 47; Case No. 13-cv , ECF No. 23; Case No. 13-cv-02203, ECF No. 90; Case No. 13-cv-02503, ECF No. 83; Case No. 13-cv-02603; ECF No. 23] (April 13, 2015); T.RAD [Case No. 13-cv-01003, ECF No. 96; Case No. 13-cv-02403; ECF No. 24] (Sept. 24, 2015); Fujikura [Case No. 12-cv-00103; ECF No. 420] (Jan. 26, 2016); and Sumitomo [Case No. 12-cv-00103, ECF No. 419] (Jan. 21, 2016)). 3 GfK MRI is a nationally accredited media and marketing research firm that provides syndicated data on audience size, composition, and other relevant factors pertaining to major media, including broadcast, magazines, newspapers, and outdoor advertising. See Declaration of Katherine Kinsella on Adequacy of Combined Notice and Notice Plan, Dkt. 414 at 10 & n.1. It provides a single-source measurement of major media, products, services, and in-depth consumer demographic and lifestyle/psychographic characteristics. GfK MRI produces the annual Doublebase Survey, a study of over 50,000 adults consisting of two full years of data. The 3

11 audience with demographics that encompass the characteristics of members of the Settlement Classes. See Case No. 12-cv-00103, ECF No The multi-faceted class notice program included published notice in publications like Sports Illustrated, Time, The Wall Street Journal and Automotive News, and online media efforts through banner advertisements on outlets like Facebook and Yahoo!. See Declaration of Katherine Kinsella ( Kinsella Decl. ), filed March 28, 2016, Case No. 12-cv-00103, ECF No The banner advertisements delivered a total estimated 356,962,620 gross impressions to date. 4 Id. The earned media component of the class notice program was equally comprehensive and included a multimedia news release ( MNR ) distributed on PR Newswire s US1 National Circuit. Id. The release was republished across 260 news websites and received over 15,603 views. Id. A total of 425 journalists engaged with the MNR, contributing to coverage of the settlements in major national outlets like Reuters, USA Today, NBC Money, Consumer Reports, and Automotive Weekly. Id. Other earned media efforts included statewide press releases in the indirect purchaser Illinois Brick repealer states as well as outreach to 435 national and local reporters for print and television that generated two national news stories and nineteen local outlet reprints. Id. Kinsella also registered sponsored keywords and phrases (e.g., Auto Parts Settlement ) with all major search engines, including Google AdWords, Bing Microsoft Advertising, and their search partners. Id. sample includes over 26,000 respondents. Fieldwork is done in two waves per year, each lasting six months and consisting of 13,000 interviews. At the end of the interview, the fieldworker presents a self-administered questionnaire that measures approximately 500 product/service categories, 6,000 brands, and various lifestyle activities. Id. 4 Gross impressions are the total number of times a medium containing a notice is seen. This figure does not represent the total number of unique viewers of the notice, as some viewers or readers will see the notice in more than one media vehicle. 4

12 Members of the Settlement Classes can also contact a toll-free helpline or register online at the settlement website, both of which are maintained by Garden City Group, LLC ( GCG ). See Declaration of Lori Castaneda ( GCG Decl. ), filed March 28, 2016, Case No. 12-cv-00103, ECF No The website provides answers to frequently asked questions, information about important deadlines, a list of the settling defendants, as well as provides access to documents relevant to the settlements, including the long form notice. Id. The website has been operational since October 12, 2015, and is accessible 24 hours a day, seven days a week. Id. As of March 24, 2016, the website had received visits from 568,744 unique visitors. Id. Starting February 8, 2016, GCG sent an or mailed notice to those individuals who previously registered on the website to notify them about updates, such as new settlements, in the case. Potential Settlement Class members who provided a valid address received an alert that directed them to visit the website to read updated information about the settlements. GCG mailed the Summary (Publication) Notice to Potential Settlement Class members who provided only a mailing address. Kinsella Decl., 6. Despite the overwhelming number of registrants and unique viewers of the notice noted above, as of March 24, 2016, the day before the claims administrator signed its final declaration, EPPs had not received a single objection to the proposed settlements. Since then, only the following objections have been submitted, two of which were withdrawn entirely Objector(s) Counsel Dkt. Dkt. Date Status No. 1. Jim Sciaroni Joseph J. Dadich /25/16 Withdrawn 2. Steven F. pro se /6/16 Helfand 3. Carlene Cross, N. Albert /11/16 Withdrawn Albert Graham Bacharach, Jr. 4. Patrick S. Sweeney pro se /25/16 5

13 Objector(s) Counsel Dkt. No. Dkt. Date Status 5. Olen York, Amy Olen York 4/25/16 York, Nancy York 6. William Thompson, Benjamin Feury, David Dishman 4/25/16 Margaret Marasco s Withdrawn Margaret Marasco, Shawn Odweyer, Sylvia Thompson 7. Thomas Saris David Dishman 5 4/26/16 6 On May 2, 2016, the objections filed on behalf of Carlene Cross and Albert Graham by serial objector counsel, N. Albert Bacharach, Jr., were withdrawn. On May 3, 2016, the Sciaroni objection was withdrawn. On May 5, 2016, Objector Marasco withdrew her objection, although the other objectors with whom she filed continue to object. II. EPP Discovery of Objectors The EPPs have attempted to pursue discovery from the various objectors believed to be serial or professional objectors, or who are working with such serial or professional objector counsel, many of whom filed motions to quash to avoid being deposed or have otherwise refused to accept service. One deposition has already taken place; an additional deposition for Objector Helfand is scheduled to take place on May 5, The one deposition that did proceed was of Objector Sciaroni. At his deposition, Sciaroni explained that he learned of the case through an attorney, who the witness refused to identify, who asked him to object. When the objector agreed, the unidentified attorney introduced the objector to another attorney who decided what to 5 Mr. Saris s objection does not say whether he appears pro se or has counsel. The objection, however, is nearly identical (word for word in many places) to the Thompson objection filed by David Dishman, and Mr. Dishman has now affirmed that he is representing Mr. Saris. 6 Mr. Saris did not certify in his objection that he mailed the objection to the Court before or on April 11, Plaintiffs therefore do not know whether Mr. Saris timely submitted his objection. 6

14 object to and then filed the objection. Sciaroni Dep. Tr. at 82-97; That objection has now been withdrawn. ARGUMENT III. The Court Should Overrule the Objections and Approve the Settlements. The objections involve several overlapping issues. The following responds, by issue, to the objections. A. The Settlement Classes Are Defined by Objective Criteria. The primary argument advanced by a number of the objectors is that the settlement class definitions are not sufficiently clear. The language of the settlement class definitions shows, however, that the Settlement Classes are defined entirely by objective criteria. The class notice provided sufficient information to allow individuals to determine whether or not they are class members and to learn about the benefits of the settlements. The professed lack of clarity in the class definitions is belied by the objectors own actions and statements. Indeed, in order to lodge their objections, these objectors evidently had no trouble in determining that they fall within the definition of the Settlement Classes. 7 An identifiable class exists if its members can be ascertained by reference to objective criteria. Fears v. Wilhelmina Model Agency, Inc., No. 02 Civ. 4911, 2003 WL , at *2 (S.D.N.Y. July 15, 2003); see also Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 639 (5th Cir. 2012) (noting that membership must be clearly ascertainable by reference to objective criteria ); Stoffels v. SBC Commc'ns, 238 F.R.D. 446, (W.D. Tex. 2006) (finding class to be sufficiently definite where members could be identified by looking to records or other objective criteria). A class settlement notice need only describe the plaintiff class and generally describe the basic terms of the settlement so as to alert members with adverse 7 Two objectors, however, are not in fact class members Odweyer and W. Thompson See discussion infra at 12. 7

15 viewpoints to investigate and to come forward and be heard. In re Cement & Concrete Antitrust Litig., 817 F.2d 1435, 1440 (9th Cir. 1987); see also In re Southern Fla. Waste Disposal Antitrust Litig., 896 F.2d 493, 495 (11th Cir. 1990) (holding that notice is adequate if it identifies the potential class and informs its members of the proposed settlement); Burns v. Elrod, 757 F.2d 151, (7th Cir. 1985) (determining settlement is sufficient if class members are informed of their rights under the agreement). Each of the Settlement Agreements spells out with precision the definition of the class to which it applies. The notice here summarizes those classes in a way that puts all potential members on notice as to who might be in the class, and then directs potential class members to the individual Settlement Agreements themselves. Indeed, the very first bullet of the very first page in the Updated Settlement Notice informs recipients that they should read the notice and the Settlement Agreements available at carefully, and that the notice does not include all of the specific details, the Settlement Agreements do. GCG Decl., Ex. A (Updated Long Form Notice). The notice describes class members as those who from 1998 to 2015,... (1) bought or leased a new motor vehicle in the U.S. (not for resale), or (2) indirectly paid for a motor vehicle replacement part (not for resale). Indirectly means you bought the vehicle replacement part from someone other than the manufacturer of the part. Id. The Settlement Agreements in turn spell out the precise years, geographical limitations, and type of purchase for each part that would lead to inclusion in the class. For example, the Panasonic Agreement includes three separate classes for three different types of parts. Panasonic Settlement Agreement, 11 (defining the Switches Settlement Class as all persons who from January 1, 2000 through the Execution Date [February 25, 2015], purchased or leased a new vehicle in the United States not for resale that included one or more Switch(es) as a component 8

16 part, or indirectly purchased one or more Switch(es) as a replacement part, which were manufactured or sold by a Defendant, any current or former parent, subsidiary, or affiliate of Defendant or any co-conspirator of the Defendants ). Thus, the class definitions clearly spell out that the classes consist of indirect purchasers or lessees of new motor vehicles or purchasers of replacement parts in the United States that contain automotive parts made by defendants or their co-conspirators during precisely defined time periods, and not for resale. The notice also describes in detail the specific automotive parts in question that are covered by the Settlement Agreements, which in turn inform class members of their application. The Court s preliminary approval orders and the applicable complaints, to which the class notice refers, further describe those parts and are available on the settlement website. The class notice and Settlement Agreements expressly state that the settlements provide money for consumers in thirty states and the District of Columbia and lists those applicable states. Thus, all of these criteria for class membership time period, geographic region, and type of purchase are completely objective in nature and give clear notice of who is included in the Settlement Classes. To the extent objectors argue they personally cannot identify each member of the Settlement Classes, that inability does not make the class definition defective; it is for the Court to determine whether a class is defined by objective criteria. See Hnot v. Willis Group Holdings Ltd., 228 F.R.D. 476, (S.D.N.Y.2005) (determining that [t]he class that plaintiffs seek to certify must be readily identifiable so that the court can determine who is in the class, and thus, who is bound by the ruling ) (emphasis added) (citations omitted). To the extent objectors assert they cannot determine the contours of the classes, such an argument cannot be taken seriously. Each of the objectors found the definition sufficiently clear, objective, and precise to 9

17 enable them to assert, without any equivocation or uncertainty, that they are each members of the Settlement Classes. 8 Certain objectors have argued that the definition is unclear because members might experience difficulty determining if a part made by a defendant is in their car. This concern has no relationship to the adequacy of the class definition. Membership is determined entirely by objective criteria and there is no need to tie a part to a particular vehicle for two reasons. First, class members who wish to proceed separately are told they must opt out. In this respect, any over-inclusiveness only works to provide fair warning to opt out. And second, the distribution plan will take into account the vehicles that have the parts in question. All class members who submit qualifying claims will share in the respective net settlement funds on a pro rata or other basis as approved by the Court so there will be no uncertainty about what will be distributed. The plan of allocation will be separate and apart from the settlements. Settlement Class members will be provided with notice of the proposed plan of allocation and will have the right to be heard at a subsequent time about the proposed plan. The speculation about low turnout or uncertainty over the class definitions is just that, speculation. Furthermore, the claims process has not even begun and won t until later in the litigation. Several objectors rely on questionable Third Circuit law from Carerra v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) applying a heightened ascertainability inquiry, even though the Bayer opinion was rejected by the Sixth Circuit in Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015) for the reasons expressed by the Seventh Circuit in Mullins v. Direct Digital, LLC, 795 F.3d 654, 662 (7th Cir. 2015). But even if Bayer applies, it offers no help to the objectors. Bayer held that if class members are allowed to self-identify without supporting 8 The fact that some of them are not, in fact, class members does not contradict this point; having purchased used cards, they are clearly excluded under the definition of the class, as discussed below. 10

18 proof-of-purchase information, the class is not ascertainable. Here, class members in most instances will have signed contracts or other documentation to prove their purchases or leases. The class notice gives sufficient notice to any purchaser or lessee of a new motor vehicle or purchaser of a replacement part during the relevant time period that he or she must opt out to proceed separately on any individual claims they may have. There is thus no ambiguity in the class definitions that could induce any class member who wishes to separately pursue individual claims to refrain from opting out. See Snell v. Allianz Life Ins. Co. of N. Am., No. CIV RLE, 2000 WL , at *18 n.15 (D. Minn. Sept. 8, 2000) (rejecting objections to proposed class action settlement because the court did not understand how that omission could prejudice any specific Class Member, who was at liberty to elect to remain in the Class, or to opt-out, and who could select the avenue of relief that best suited his or her needs ). Because the classes are identifiable and ascertainable by objective criteria, see Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012), and because there is nothing preventing any Settlement Class member from opting out, the objections to the class definitions lack merit. B. Several Class Members Lack Standing Objectors Odweyer and W. Thompson each lack standing to object to the settlements because neither of them bought or leased a new vehicle as plainly required by the class definition. Objector Odweyer s papers show that he purchased a used Nissan Altima in Dkt. 453 at Pg ID Similarly, Objector W. Thompson identified three separate Honda models that he claims he purchased, but the supporting documentation reflects all three were used. He purchased a used 2010 Honda Accord in 2013, id. at 15228, a used 2010 Honda Odyssey in 2012, id. at 15320, and a used 2012 Honda Pilot in 2015, id. at He too is thus not a class member and therefore lacks standing to challenge the settlements. 11

19 Objector Helfand s standing is also questionable. His objection does not provide any evidence (or even sworn testimony) that he purchased or leased a new car or purchased a replacement part. Dkt at 2, 5. Without such averments, he has not satisfied the notice that an objector is required to provide in order to make a valid objection and may lack standing to proceed. C. Class Notice Satisfied Due Process Requirements. Several objectors also object to the class notice, contending that it does not satisfy due process requirements. Under Rule 23(e) of the Federal Rules of Civil Procedure, a class settlement notice must contain a summary sufficient to apprise interested parties of the pendency of the settlement proposed and to afford them an opportunity to present their objections. UAW, 497 F.3d at 629 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). The notice must clearly and concisely state (1) the nature of the action; (2) the class definition; (3) the class claims, issues, or defenses; (4) that a class member may enter an appearance through counsel; (5) that the court will exclude from the class any member who requests exclusion; (6) the time and manner for requesting exclusion; and (7) the binding effect of a class judgment on class members. See Fed. R. Civ. P. 23(c)(2)(B). Similarly, due process requires that absent class members be provided the best notice practicable, reasonably calculated to apprise them of the pendency of the action, and affording them the opportunity to opt out or object. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985); see also UAW, 497 F.3d at 629 (quoting Mullane, 339 U.S. at 314). The best notice practicable does not mean actual notice, nor does it require individual, mailed notice where there are no readily available records of class members individual addresses or where it is otherwise impracticable to send notice by mail. Fidel v. Farley, 534 F.3d 508, 514 (6th Cir. 2008); In re Domestic Air Transp. Antitrust Litig., 141 F.R.D. 534, (N.D. Ga. 1992); 12

20 MANUAL FOR COMPLEX LITIGATION (Fourth) , at 288 (2004) ( MANUAL ). The mechanics of the notice process are left to the discretion of the court subject only to the broad reasonableness standard imposed by due-process. Grunin v. Int l House of Pancakes, 513 F.2d 114, 121 (8th Cir. 1975). Each class member need not receive actual notice for the dueprocess standard to be met, so long as class counsel acted reasonably in selecting means likely to inform persons affected. In re Prudential Sec. Inc. Ltd. P ships Litig., 164 F.R.D. 362, 368 (S.D.N.Y. 1996). The undisputed evidence shows the notice program in this case was developed and implemented by a nationally recognized preeminent expert in class action notice matters. The class notice program was extensive and specifically structured to reach most potential class members and did, in fact, reach approximately 80.5% of class members. Kinsella Decl. at 8. The program was based on a scientific methodology customarily used in the advertising industry. Specifically, to reach the identified targets directly and efficiently, the notice program utilized a multi-layered approach, which included national magazines, magazines specifically appropriate to the targeted audiences, and newspapers. Also, the notice program was massive, generating over 350 million gross impressions. Accordingly, any claim that notice was insufficient is contradicted by the record. In fact, the objectors knowledge of the settlements and their submission of objections according to the terms of the notice illustrate the effectiveness of the notice program used in this case. See In re Kendavis Holding Co., 249 F.3d 383, 387 (5th Cir. 2001) (determining that one usually has adequate notice that his rights could be jeopardized and should take steps to protect his rights when one knows of legal proceeding); Walsh v. Great Atl. & Pac. Tea Co., 726 F.2d 956, 964 (3d Cir. 1983) (noting that objector's vigorous objection to 13

21 the settlement, and that of the other objectors, demonstrates that the notice selected was adequate ). The notice program easily satisfied the requirements of due process. D. Rule 23 Is Satisfied. The York and Thompson Objectors assert that the Settlement Classes have incurable manageability issues and will require individualized fact finding, defeating commonality requirements under Rule 23(b)(3). 9 This assertion, however, is based entirely on the objectors speculative argument that class members cannot be identified. As discussed, the classes are identifiable by reference to objective criteria. It also ignores the fact that a showing of manageability is not required to certify a settlement class. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 593 (1997) ( Whether trial would present intractable management problems... is not a consideration when settlement-only certification is requested.... ). Moreover, the Court has already found that the Rule 23 requirements have been satisfied for certification of settlement classes. In doing so, the Court expressly found there to be predominating, common issues such as whether defendants engaged in combinations and conspiracies among themselves to fix, raise, maintain, or stabilize the prices of the settled automotive parts and whether unlawful overcharges of the prices of the settled parts were passed-through to the indirect purchasers. These objectors have provided no reason for the Court to reverse its ruling. E. Class Member Recoveries. Objector Helfand alone objects to the settlements because, he contends, the class notice does not permit class members to estimate their individual recoveries. But class notices rarely tell class members what their individual recoveries under the settlement will be. Indeed, it is well settled that [i]t is not necessary for the settlement distribution formula to specify precisely the 9 Sciaroni also objected on this basis, but he withdrew his objection. 14

22 amount that each class member may expect to recover. 3 ALBA CONTE & HERBERT B. NEWBERG, NEWBERG ON CLASS ACTIONS at 265 (4th ed. 2002). Also, knowledge as to the amount of individual recoveries is impossible in a case such as this where there is likely to be a pro rata distribution to class members who submit approved claims and based upon the number of qualifying purchases included in those claims. In such cases, individual recoveries cannot be ascertained until all of the claims are in and have been approved. Moreover, it is well recognized that [d]eferral of allocation decisions is routinely followed in partial settlements where the appropriate allocation among class members can best be determined when further settlements have been achieved or the litigation is completely resolved. In re Brand Name Prescription Drugs Antitrust Litig., No. 94 C 897, 1996 WL , at *5 (N.D. Ill. Apr. 4, 1996) (quoting In re Washington Pub. Power Supply Sys. Sec. Litig., [1989 Transfer Binder] Fed. Sec. L. Rep. (CCH) 94,326 at 92,143 (W.D. Wash. 1988)). At the soonest appropriate time, EPPs will seek approval from the Court to issue a subsequent notice regarding a proposed plan of allocation. The procedures that will govern distribution of the settlement proceeds will be subject to the Court s approval. Settlement Class members will then have the right to be heard about and object to the proposed plan of allocation. See In re Drexel Burnham Lambert Group, Inc., 130 B.R. 910, 925 (S.D.N.Y.1991), aff'd, 960 F.2d 285 (2d Cir. 1992) ( It is not an impediment to approval of the Settlement that the actual amounts to be distributed to Class members will be subject to further allocation procedures. ). But ultimately, the overall fairness of the partial settlements does not hinge upon a preliminary analysis of the precise manner in which the proceeds of a settlement are to be distributed. Prescription Drugs, 1996 WL , at *6. 15

23 F. The Scope of the Release of Claims is Reasonable and Limited by the Claims and Products Alleged in the Complaints. Objector Sweeney contends, without citing any specific language in the settlements, that the releases in the settlement agreements are unconscionable because they ostensibly release future claims based on the purchase of new products. This is simply not true. Each of the releases is limited entirely to the past conduct alleged in the applicable complaints and relates only to purchases and leases made during the relevant time periods. The settlement agreements do not release claims based on future misconduct. Generally, released claims relate to claims asserted in the operative complaints and those closely related thereto. See, e.g., In re Zoran Corp. Derivative Litig., 2008 U.S. Dist. LEXIS 48246, at *31 (N.D. Cal. Apr. 7, 2008). Here, the releases comply with this standard and generally provide, in part, as follows [T]he Releasees shall be completely released, acquitted, and forever discharged from any claims... under any federal, state or local law of any jurisdiction in the United States, that Releasors, or each of them, ever had, now has, or hereafter can, shall, or may ever have, that now exist or may exist in the future, on account of... any conduct alleged in the Complaint... concerning Automotive Wire Harness Systems The releases therefore are plainly limited to past conduct alleged in the applicable complaints and to the particular automotive part or parts at issue. The releases expressly preserve claims based on the purchase of any automotive part other than the automotive part or parts at issue in the agreements. Thus, the objectors assertion that the releases extend to future conduct or other parts is simply incorrect. 10 See, e.g., Fujikura Settlement Agreement 22 (emphasis added). 16

24 G. Requested Attorneys Fees are Reasonable and Not Excessive. The objectors also take issue with EPPs application for an award of attorneys fees. An award of attorneys fees is a matter separate and apart from the determination whether a proposed settlement is fair, adequate, and reasonable. See Bowling v. Pfizer, 102 F.3d 777, 779 (6th Cir. 2006). Therefore, none of these objections should have any impact on whether the Court should approve the settlements. Settlement Class Counsel have provided detailed support for the fees requested in the papers filed with the Court on March 10, See, e.g., Case No. 12-cv , ECF No EPPs have applied for fees using the percentage-of-the-fund approach, specifically requesting 30% of the settlement amount, which is also supported by an attorneys fee lodestar cross-check. To that end, EPPs provided a summary of the total lodestar incurred in this litigation supported by attorney declarations that further demonstrated the reasonableness of the application. Objector Helfand urges that the Court should only use the lodestar method to determine a fee award, citing In re Equity Funding Corp. of Am. Sec. Litig., 438 F. Supp. 1303, 1327 (C.D. Cal. 1977), an old, out-of-circuit case rejecting the percentage approach and applying a lodestar multiplier instead. But courts in this District generally use the percentage-of-the-fund approach in common fund cases. 11 See, e.g., Rawlings v. Prudential-Bache Properties, 9 F.3d 513, 515 (6th Cir. 1993); In re Caraco Pharm. Labs., Ltd. Sec. Litig., No. 09-cv-12830, Docket No. 96 (E.D. Mich. June 26, 2013); In re Packaged Ice Antitrust Litig., No. 08-md-01952, 2011 WL (E.D. Mich. Dec. 13, 2011); In Re General Motors Corp. Sec. and Derivative Litig., No. 06-md-1749, Docket No. 139 (E.D. Mich. Jan. 6, 2009); In re Delphi Corp. Sec., Derivative & ERISA Litig., 248 F.R.D. 483, (E.D. Mich. 2008); In re Cardizem CD 11 And as the lodestar cross-check demonstrates, discussed infra at 21, applying the lodestar method would likely result in a greater fee than what Settlement Class Counsel is requesting. 17

25 Antitrust Litig., No. 99-md-1278, Order No. 49 (E.D. Mich. Nov. 26, 2002). Using the percentage-of-the-fund approach provides the significant benefit of conserving judicial resources because it eliminates the need for detailed consideration of attorney time devoted to the litigation; it also aligns the interests of class counsel and the class. See, e.g., Rawlings, 9 F.3d at 515; Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, No. 10-cv-14360, 2015 WL at *15 (E.D. Mich. Mar. 31, 2015); Packaged Ice, 2011 WL , at *16; Delphi, 248 F.R.D. at 502. The lodestar-multiplier method, on the other hand, is too time-consuming of scarce judicial resources, requiring courts to pore over time sheets, arrive at a reasonable hourly rate, and consider numerous factors in deciding whether to award a multiplier. Rawlings, 9 F.3d at The lodestar-multiplier approach emphasizes the number of hours expended by counsel rather than the results obtained, [and] it... provides incentives for overbilling and the avoidance of early settlement. Id. at 517. The percentage-of-the-fund approach eliminates these perverse incentives by more accurately reflect[ing] the result achieved. Id. at 516. Should the Court use a percentage-of-the-fund approach, Objectors Helfand and Sweeney and the York and Thompson Objectors propose various percentages, from 10% to 17%. But they overlook the fact that courts in this District and Circuit routinely approve attorneys fees of onethird of a settlement class common fund. See, e.g., In re Automotive Parts Antitrust Litigation, Order Regarding Auto Dealers Motion for an Award of Attorneys Fees, Reimbursement of Litigation Expenses, and Service Awards, No. 12-md-02311, Dkt. 401 (E.D. Mich.) (awarding fees of one-third of common fund); see also Packaged Ice, 2011 WL , at *19; In re Prandin Direct Purchaser Antitrust Litig., No. 10-cv-12141, 2015 WL (E.D. Mich. Jan. 20, 2015); In re Skelaxin (Metaxalone) Antitrust Litig., No. 12-md-2343, 2014 WL , at 18

26 *1 (E.D. Tenn. June 30, 2014); In re Caraco Pharm. Labs., No. 09-cv-12830, Docket No. 96 (E.D. Mich. June 26, 2013); Bessey v. Packerland Plainwell, Inc., No. 06-cv-95, 2007 WL , at *4 (W.D. Mich. Oct. 26, 2007); Delphi, 248 F.R.D. at ; Kogan v. AIMCO Fox Chase, L.P., 193 F.R.D. 496, 503 (E.D. Mich. 2000). An award equal to 30% of the settlement funds is also consistent with awards made in antitrust class actions generally. See, e.g., In re S.E. Milk Antitrust Litig., No. 08-md-1000, 2013 WL (E.D. Tenn. May 17, 2013) (awarding one-third of $158 million settlement fund); In re Iowa Ready-Mix Concrete Antitrust Litig., No. 10-cv-4038, 2011 WL (N.D. Iowa Nov. 9, 2011) (awarding fee equal to 36% of the recovery); In re Vitamins Antitrust Litig., No. 99-md-1285, 2001 WL , at *10 (D.D.C. July 16, 2001) (awarding fee of one-third of recovery); In re Ampicillin Antitrust Litig., 526 F. Supp. 494, 498 (D.D.C. 1981) (awarding 45% of recovery). See also Allapattah Servs. v. Exxon Corp., 454 F. Supp. 2d 1185, (S.D. Fla 2006) (awarding 31.5% of a $1.06 billion settlement fund and citing fourteen cases involving settlement funds between $ million with fee awards between 25 35% of the fund). Objector Helfand also argues that the Court should perform a lodestar cross-check on the amount requested by the EPPs, and Objector Sweeney argues that the fee request is not reasonable absent detailed billing records. A lodestar cross-check is an optional tool for the Court. See In re Cardinal Health Inc. Sec. Litig., 528 F. Supp. 2d 752, 767 (S.D. Ohio 2007). EPPs have provided the information needed to perform that cross-check, including the hourly rates, hours accumulated, and reasonable costs incurred, which Objector Sweeney erroneously claimed were lacking. 12 Additional details on the billing and time records remain available to the 12 Objector Helfand argues, similarly, that the Court should require an evidentiary hearing where each claimant would be subject to cross-examination, citing Grunin v. Int l House of Pancakes, 513 F.2d 114, 127 (8th Cir. 1975). Although Grunin notes that some courts require evidentiary hearings (many do not), there is certainly no such requirement in the Sixth Circuit. See Int'l Union, United Auto., Aerospace, & Agr. Implement Workers of Am. v. 19

27 Court upon request, but are neither necessary nor required. Settlement Class Counsel undertook substantial effort to perform a detailed analysis of all EPP attorney time submissions received to date and included information about the resulting lodestar in EPPs fee motion. Those results show that the amount requested to be awarded will yield a negative lodestar-multiplier of Thus, the lodestar cross-check confirms the reasonableness of the requested fee and that the amount requested will not, in any way, result in a windfall. Id. Indeed, where, as here, the lodestar cross-check reveals a negative lodestar, courts routinely grant attorneys fees of at least 30% the settlement amount. See, e.g., In re Blech Sec. Litig., No. 94 Civ. 7696, 2002 U.S. Dist. LEXIS 23170, at *5 (S.D.N.Y. Nov. 27, 2002) ( The requested attorneys fees... representing 33-1/3% of the Settlement Fund is consistent with awards made in similar cases. This fee is also reasonable under the lodestar approach.... The fee requested is less than the cumulative lodestar ); Carroll v. Stettler, No , 2011 U.S. Dist. LEXIS , at *26 (E.D. Pa. Oct. 19, 2011) ( A lodestar multiplier of less than one reveals that the fee request constitutes only a fraction of the work that the attorneys billed and is within the accepted range.... Therefore, the lodestar cross-check confirms the reasonableness of class counsel's fee request in this case ). Objector Helfand also argues that the settlements contain an impermissible clear sailing agreement, citing Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 525 (1st Cir. 1991). But Helfand s concern is misplaced. Weinberger stands for the proposition that in noncommon fund cases where a defendant agrees to pay plaintiff counsel s fee itself and not contest the request, the district court should nonetheless still scrutinize the fee to make sure it is fair and Gen. Motors Corp., 497 F.3d 615, (6th Cir. 2007) (quoting Geier v. Alexander, 801 F.2d 799, 809 (6th Cir.1986)) ( To allow the objectors to disrupt the settlement on the basis of nothing more than their unsupported suppositions would completely thwart the settlement process... [U]nless the objectors have made a clear and specific showing that vital material was ignored by the District Court[,] [t]here is no need for the District Court to hold an additional evidentiary hearing on the propriety of the settlement. ). The objectors have not made such a showing here in light of the detailed time and expense records provided by Settlement Class Counsel in support of their application. 20

28 reasonable rather than the product of collusion. Id. at 526. See also Gooch v. Life Inv'rs Ins. Co. of Am., 672 F.3d 402, 425 (6th Cir. 2012) (granting fee application where defendant agreed to pay fees up to $3,500,000 and to not object to plaintiff s request for that amount). Helfand s objection fails because (1) this is a common fund case, and (2) the very excerpt from the settlement agreements he cites confirms that there is no such clear sailing clause in any of the settlement agreements. The settlements state, as he notes, that the releasing defendant has no liability for or interest in any fee awarded by the court. This is not contrary to Gooch or Weinberger and presents no inference or suggestion of collusion among counsel. Two novel arguments proposed by Objector Sweeney are (1) that the amount of fees awarded should somehow be tied to the amount class members ultimately receive, and (2) that the Court should withhold a portion of the fee it determines is reasonable to ensure EPPs continued oversight in this matter because the claims administration process on its own fails to require reliable future oversight. Neither of Mr. Sweeney s points is sound, and he provides no support for these arguments. Indeed, these proposals are contrary to the principles underlying the common fund doctrine. See, e.g., Barton v. Drummond Co., 636 F.2d 978, 982 (5th Cir. 1981) (noting that it is well settled that the common benefit or common fund equitable doctrine allows for the assessment of attorneys' fees against a common fund created by the attorneys efforts ). The limitations that Objector Sweeney proposes would result in an enormous disincentive to counsel in future cases a result which runs counter to the very purpose of Rule 23. See, e.g., Saunders v. Berks Credit Collections, Inc., No , 2002 U.S. Dist. LEXIS 12718, at *42 (E.D. Pa. July 12, 2002) (concluding that an inadequate award of attorneys fees would deter counsel from undertaking such socially beneficial litigation ). 21