FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN...
Transcript of FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN...
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
IN RE: AUTOMOTIVE PARTS ANTITRUST LITIGATION
Master File No. 12-md-02311 Hon. Marianne O. Battani
In re: Bearings Cases Case No. 2:14-cv-00507-MOB-MKM Case No. 2:14-cv-13356-MOB-MKM
THIS DOCUMENT RELATES TO:
Truck and Equipment Dealer Cases
TRUCK AND EQUIPMENT DEALER PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENTS WITH CERTAIN DEFENDANTS,
FOR PROVISIONAL CERTIFICATION OF SETTLEMENT CLASSES, AND TO AUTHORIZE DISSEMINATION OF CLASS NOTICE, AND MOTION TO REVISE
THE SKF USA INC. NOTICE AND FINAL APPROVAL SCHEDULE
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Truck and Equipment
Dealer Plaintiffs (“TED Plaintiffs”) respectfully move the Court for an order preliminarily
approving proposed Settlements in the amounts of $475,000 with Defendants Nachi-Fujikoshi
Corporation and Nachi America Inc. (collectively, “Nachi”) and $3,260,000 with Defendants
NSK Ltd. and NSK Americas, Inc. (“NSK” and collectively with Nachi, “Settling Defendants”),
provisionally certifying the proposed Settlement Classes, and approving the dissemination of
class notice and to conduct a hearing for final approval of the Settlements with Settling
Defendants.
Additionally, TED Plaintiffs move to revise the current schedule for Notice of
Settlement and Final Approval of TED Plaintiffs’ settlement with Defendant SKF USA Inc.
(“SKF USA”) as set forth in the Court’s June 1, 2017 Order Granting Truck and Equipment
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Dealer Plaintiff’s Motion for Preliminary Approval of Proposed Settlement with SKF USA Inc.,
Provisional Certification of Settlement Classes, and Authorization of Dissemination of Class
Notice, Case No. 2:14-cv-13356-MOB-MKM, ECF No. 75. TED Plaintiffs respectfully request
that their settlements with SKF USA, Nachi and NSK be tracked on the same schedule
culminating in one Fairness Hearing. As TED Plaintiffs have advised the Court, putting the final
settlements in the Bearings case all on the same schedule will save the class approximately
$70,000 in notice of settlement costs, as well as achieve various judicial efficiencies. See Case
No. 2:14-cv-13356-MOB-MKM, ECF No. 76.
In support of this Motion, TED Plaintiffs rely upon and incorporate by reference herein
the facts and legal arguments set forth in the accompanying Memorandum of Law and the
Declaration of William Wickersham.
The TED Plaintiffs and Settling Defendants do not request a hearing for this motion. The
Settling Defendants do not oppose this motion and consent to the entry of the Proposed Order
submitted herewith.
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Respectfully submitted,
Dated: June 19, 2017
/s/ J. Manly Parks Wayne A. Mack (PA Bar #46654) J. Manly Parks (PA Bar #74647) Sean P. McConnell (PA Bar #307740) Andrew R. Sperl (PA Bar #311467) Erica Lee Fruiterman (PA Bar #317289) William Shotzbarger (PA Bar #320490) DUANE MORRIS LLP 30 S. 17th Street Philadelphia, PA 19103 Phone: (215) 979-1000 Fax: (215) 979-1020 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Class Counsel for Truck and Equipment Dealer Plaintiffs
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
IN RE: AUTOMOTIVE PARTS ANTITRUST LITIGATION
Master File No. 12-md-02311 Hon. Marianne O. Battani
In re: Bearings Cases
Case No. 2:14-cv-00507-MOB-MKM Case No. 2:14-cv-13356-MOB-MKM
THIS DOCUMENT RELATES TO: Truck and Equipment Dealer Cases
MEMORANDUM OF LAW IN SUPPORT OF TRUCK AND EQUIPMENT DEALER
PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENTS WITH CERTAIN DEFENDANTS,
FOR PROVISIONAL CERTIFICATION OF SETTLEMENT CLASSES, AND TO AUTHORIZE DISSEMINATION OF CLASS NOTICE, AND MOTION TO REVISE
THE SKF USA INC. NOTICE AND FINAL APPROVAL SCHEDULE
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PRELIMINARY STATEMENT
Truck and Equipment Dealer Plaintiffs’ (“TED Plaintiffs”) move for preliminary
approval of proposed Settlements in the amounts of $475,000 with Defendants Nachi-Fujikoshi
Corporation and Nachi America Inc. (collectively, “Nachi”) and $3,260,000 with Defendants
NSK Ltd. and NSK Americas, Inc. (“NSK” and collectively with Nachi, “Settling Defendants”).
TED Plaintiffs also move to revise the Court’s June 1, 2017 Order granting Preliminary
Approval of TED Plaintiffs’ Settlement with SKF USA Inc. (“SKF USA”) to set the final three
settlements in TED Plaintiffs’ Bearings case on the same schedule, saving the Settlement Classes
approximately $70,000 in notice of settlement costs, as well as achieving various judicial
efficiencies.
STATEMENT OF ISSUES PRESENTED
1. Whether TED Plaintiffs’ settlement with Nachi, embodied in the Settlement Agreement entered into on May 11, 2017 (“Nachi Settlement Agreement”), and attached hereto as Exhibit 1, is fair, reasonable, and adequate, and should be preliminarily approved?
Suggested Answer: Yes.
2. Whether the Court should stay the proceedings by TED Plaintiffs against Nachi in accordance with the terms of the Nachi Settlement Agreement?
Suggested Answer: Yes.
3. Whether TED Plaintiffs’ settlement with NSK, embodied in the Settlement Agreement entered into on May 25, 2017 (“NSK Settlement Agreement”), and attached hereto as Exhibit 2, is fair, reasonable, and adequate, and should be preliminarily approved?
Suggested Answer: Yes.
4. Whether the Court should stay the proceedings by TED Plaintiffs against NSK in accordance with the terms of the NSK Settlement Agreement?
Suggested Answer: Yes.
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5. Whether the Court should authorize Settlement Class Counsel to provide notice of the Nachi Settlement Agreement and NSK Settlement Agreement to Members of the Bearings Settlement Classes (as it is defined in the respective Settlement Agreements)?
Suggested Answer: Yes.
6. Whether the Court should provisionally certify the Bearings Settlement Classes as they are defined herein under Federal Rule of Civil Procedure 23(a) and 23(b)(3)?
Suggested Answer: Yes. 7. Whether the Court should appoint Lead Class Counsel for TED Plaintiffs for the
respective Settlements?
Suggested Answer: Yes. 8. Whether the Court should revise its June 1, 2017 Order Granting Truck and Equipment
Dealer Plaintiff’s Motion for Preliminary Approval of Proposed Settlement with SKF USA Inc., Provisional Certification of Settlement Classes, and Authorization of Dissemination of Class Notice, Case No. 2:14-cv-13356-MOB-MKM, ECF No. 75, so that the final settlements in the Bearings case are all on the same schedule, saving the Settlement Classes approximately $70,000 in notice of settlement costs, as well as achieving various judicial efficiencies?
Suggested Answer: Yes.
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STATEMENT OF CONTROLLING OR MOST APPROPRIATE AUTHORITIES
Fed. R. Civ. P. 23
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997)
Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184 (2013)
Cason-Merenda v. VHS of Mich., Inc., 2013 U.S. Dist. LEXIS 131006 (E.D. Mich. Sept. 13, 2013)
Griffin v. Flagstar Bancorp, Inc., 2013 U.S. Dist. LEXIS 173702 (E.D. Mich. Dec. 12, 2013)
In re Am. Med. Sys., Inc., 75 F.3d 1069 (6th Cir. 1996)
In re Cardizem CD Antitrust Litig., 218 F.R.D. 508 (E.D. Mich. 2003)
In re Corrugated Container Antitrust Litig., 1981 WL 2093 (S.D. Tex. Jan. 27, 1981)
In re Foundry Resins Antitrust Litig., 242 F.R.D. 393 (S.D. Ohio 2007)
In re Linerboard Antitrust Litig., 292 F. Supp. 2d 631 (E.D. Pa. 2003)
In re Packaged Ice Antitrust Litig., 2011 U.S. Dist. LEXIS 17255 (E.D. Mich. Feb. 22, 2011)
In re Scrap Metal Antitrust Litig., 527 F.3d 517 (6th Cir. 2008)
In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838 (6th Cir. 2013)
IUE-CWA v. Gen. Motors Corp., 238 F.R.D. 583 (E.D. Mich. 2006)
Sheick v. Auto Component Carrier LCC, 2010 U.S. Dist. LEXIS 110411 (E.D. Mich. Oct. 18, 2010)
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ..................................................................................................... i
STATEMENT OF ISSUES PRESENTED ...................................................................................... i
STATEMENT OF CONTROLLING OR MOST APPROPRIATE AUTHORITIES .................. iii
INTRODUCTION ...........................................................................................................................1
THE BASIC TERMS AND BACKGROUND OF THE SETTLEMENT AGREEMENTS ..........4
ARGUMENT ...................................................................................................................................9
I. Preliminary Approval Should Be Granted Because the Proposed Settlements Fall Well Within the Range of Possible Approval. ............................. 9
A. The Settling Defendants’ Settlement Agreements Achieve an Excellent Result for the Proposed Settlement Classes, Particularly Given the Expense, Duration, and Uncertainty of Continued Litigation. .................................................................................................. 12
B. The Settlement Agreements are the Result of Thorough Arm’s-Length Negotiations Conducted by Highly Experienced Counsel. .......... 15
II. The Proposed Settlement Classes Should be Provisionally Certified Pursuant to Rule 23. .............................................................................................. 16
A. The Proposed Settlement Classes Meet the Requirements of Rule 23(a). ......................................................................................................... 18
i. The Proposed Settlement Classes are So Numerous that It is Impracticable to Bring All Class Members Before the Court. .............................................................................................18
ii. TEDP Class Representatives and the Proposed Settlement Classes Share Common Legal and Factual Questions. ..................19
iii. TEDP Class Representatives’ Claims Are Typical of the Claims of the Members of the Proposed Settlement Classes. ........21
iv. Proposed Settlement Class Counsel and TEDP Class Representatives Will Fairly and Adequately Protect the Interests of the Proposed Settlement Classes. ................................22
B. The Proposed Settlement Classes Meet the Requirements of Rule 23(b)(3). .................................................................................................... 23
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i. Common Questions of Law and Fact Predominate. ......................23
ii. A Class Action Is the Superior Method to Adjudicate These Claims. ...........................................................................................26
C. The Proposed Settlement Classes Meet the Requirements of Rule 23(b)(2). .................................................................................................... 27
III. The Court Should Approve the Form and Manner of Notice to the Members of the TED Settlement Classes. ............................................................ 27
IV. Notice Standards and Requirements. .................................................................... 27
V. The Proposed Manner of Notice Satisfies the Requirements of Fed. R. Civ. P. 23(c)(2)(B) and (e)(1). ...................................................................................... 29
VI. The Proposed Form of Notice Satisfies the Requirements of Fed. R. Civ. P. 23(c)(2)(B) and (e)(1). ...................................................................................... 30
VII. The Proposed Notices Provide Class Members with Sufficient Information about the Details of the Settlements. ..................................................................... 31
VIII. The Court Should Enter the Proposed Order, Which Schedules the Final Approval Hearing and Establishes Other Deadlines. ............................................ 35
IX. The Court’s June 1, 2017 Order Granting Truck and Equipment Dealer Plaintiff’s Motion for Preliminary Approval of Proposed Settlement with SKF USA Inc., Provisional Certification of Settlement Classes, and Authorization of Dissemination of Class Notice Should be Revised. .................. 36
CONCLUSION ..............................................................................................................................38
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TABLE OF AUTHORITIES
Page Cases
In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 145 (2d Cir. 1987) ........................................32
Agretti v. ANR Freight Sys., Inc., 982 F.2d 242 (7th Cir. 1992) ......................................................9
In re Air Cargo Shipping Serv. Litig., No. 06-md-1775 (JG) (VVP), 2011 WL 2909162 (E.D.N.Y., Jul. 15, 2011) ..........................................................................................34
Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185 (S.D. Fla. 2006) ............................33
In re Aluminum Phosphide Antitrust Litig., 160 F.R.D. 609 (D. Kan. 1995) ................................19
In re Am. Med. Sys., Inc., 75 F.3d 1069 (6th Cir. 1996) ..........................................................19, 21
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ..................................................... 23-24, 27
Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184 (2013) ................................17, 24
In re Ampicillin Antitrust Litig., 82 F.R.D. 652 (D.D.C. 1979) .....................................................15
In re Automotive Parts Antitrust Litigation, MDL No. 2311 ...................................................... 1-2
In Re: Bearings, No. 2:12-cv-00500 ...................................................................................... Passim
Berland v. Mack, 48 F.R.D. 121 (S.D.N.Y. 1969) .........................................................................29
Blades v. Monsanto Co., 400 F.3d 562 (8th Cir. 2005) .................................................................25
In re Blood Reagents Antitrust Litig., 283 F.R.D. 222 (E.D. Pa. 2012) ........................................25
Bobbitt v. Acad. of Reporting, No. 07–10742, 2009 WL 2168833 (E.D. Mich. Jul. 21, 2009) ..................................................................................................................................10
Bowers v. Windstream Ky. East, LLC, Civil Action No. 3:09-CV-440-H, 2013 U.S. Dist. LEXIS 157242 (W.D. Ky. Nov. 1, 2013) ...............................................................16
Brotherton v. Cleveland, 141 F. Supp. 2d 907 (S.D. Ohio 2001) ..................................................34
In re Cardizem CD Antitrust Litig., 200 F.R.D. ............................................................................26
In re Cardizem CD Antitrust Litig., 218 F.R.D. 508 (E.D. Mich. 2003) ............................... Passim
Carlough v. Amchem Prods., 158 F.R.D. 314 (E.D. Pa. 1993) .....................................................28
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Cason-Merenda v. VHS of Mich., Inc., 2013 U.S. Dist. LEXIS 131006 (E.D. Mich. Sept. 13, 2013) .............................................................................................17, 19, 21, 24
In re Chambers Dev. Sec. Litig., 912 F. Supp. 822 (W.D. Pa. 1995) ............................................13
Clark Equip. Co. v Int’l Union of Allied Industrial Workers of Am., 803 F.2d 878 (6th Cir. 1986) ..........................................................................................................................10
Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) ......................................................................24
Connectivity Systems Inc. v. National City Bank, 2011 WL 292008 (S.D. Ohio Jan. 26, 2011) ...........................................................................................................................34
Cook v. Niedert, 142 F.3d 1004 (7th Cir. 2008) ............................................................................33
Cordes & Co. Financial Services, Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91 (2d Cir. 2007) ...........................................................................................................................25
In re Corrugated Container Antitrust Litig., 1981 WL 2093 .................................................. 14-15
In re Corrugated Container Antitrust Litig., 643 F.2d 195 (5th Cir. 1981) ..................................22
Date v. Sony Elecs., Inc., Case No. 07-15474, 2013 U.S. Dist. LEXIS 108095 (E.D. Mich. July 31, 2013) ......................................................................................................19
In re Delphi Corp. Sec. Derivatives & ERISA Litig., 248 F.R.D. 483 (E.D. Mich. 2008) ..................................................................................................................................17, 32
In re Diet Drugs Prod. Liab. Litig., 2002 WL 32154197 (E.D. Pa. Oct. 3, 2002) ........................34
Dillworth v. Case Farms Processing, Inc., No. 5:08-cv-1694, 2010 U.S. Dist. LEXIS 20446 (N.D. Ohio Mar. 8, 2010) .................................................................................26
In re Domestic Air Transp. Antitrust Litig., 141 F.R.D. 534 (N.D. Ga. 1992) ........................ 28-29
In re Dynamic Random Access Memory (DRAM) Antitrust Litig., No. M 02-1486 PJH, 2006 U.S. Dist. LEXIS 39841 (N.D. Cal. June 5, 2006) ................................................19
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ......................................................................28
Enter. Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240 (S.D. Ohio 1991) ...............................................................................................................................34
In re Farmers Ins. Exchange, Claims Representatives’ Overtime Pay Litig., 481 F.3d 1119 (9th Cir. 2007) ........................................................................................................13
Fidel v. Farley, 534 F.3d 508 (6th Cir. 2008) ................................................................................28
In re Foundry Resins Antitrust Litig., 242 F.R.D. 393 (S.D. Ohio 2007).............................. Passim
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Golden v. City of Columbus, 404 F.3d 950 (6th Cir. 2005) ...........................................................18
Griffin v. Flagstar Bancorp, Inc., Case No. 2:10-cv-10610, 2013 U.S. Dist. LEXIS 173702 (E.D. Mich. Dec. 12, 2013) ............................................................9, 16, 19, 21
Grunin v. Int’l House of Pancakes, 513 F.2d 114 (8th Cir. 1975) .................................................28
Hainey v. Parrott, No. 1:02–cv–733, 2007 WL 3308027 (S.D. Ohio Nov. 6, 2007) ....................34
Hyland v. Homeservices of Am., Inc., Case No. 3:05-CV-612-R, 2008 U.S. Dist. LEXIS 90892 (W.D. Ky. Nov. 6, 2008) ..................................................................................18
Int’l Union, UAW v. Ford Motor Co., Case Nos. 05-74730, 06-10331, 2006 U.S. Dist. LEXIS 70471 (E.D. Mich. July 13, 2006) ................................................................10, 21
IUE-CWA v. Gen. Motors Corp., 238 F.R.D. 583 (E.D. Mich. 2006) .............................................9
In re Linerboard Antitrust Litig., 292 F. Supp. 2d 631 (E.D. Pa. 2003) ........................................14
Larson v. Sprint Nextel Corp., No. 07-5325, 2009 WL 1228443 (D. N.J. April 30, 2009) ........................................................................................................................................30
Leonhardt v. ArvinMeritor, Inc., 581 F. Supp. 2d 818 (E.D. Mich. 2008) ....................................16
Levva v. Medline Indus, Inc., 716 F.3d 510 (9th Cir. 2013) ..........................................................24
Liberte Capital Group v. Capwill, 2007 WL 2492461 (N.D. Ohio Aug. 29, 2007)......................34
Marcus v. Dep’t of Revenue, 206 F.R.D. 509 (D. Kan. 2002) .......................................................22
Miller v. Univ. of Cincinnati, 241 F.R.D. 285 (S.D. Ohio 2006) ..................................................18
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) ..............................................28
In re Packaged Ice Antitrust Litig., Case No. 08-MD-01952, 2011 U.S. Dist. LEXIS 17255 (E.D. Mich. Feb. 22, 2011) ....................................................................... Passim
In re Packaged Ice Antitrust Litig., Case No. 08-MDL-01952, 2011 U.S. Dist. LEXIS 150427 (E.D. Mich. Dec. 13, 2011) ............................................................................12
In re Packaged Ice Antitrust Litig., No. 08-MD-01952, 2010 U.S. Dist. LEXIS 140235 (E.D. Mich. Sept. 2, 2010) ..........................................................................................17
Peters v. Nat’l R.R. Passenger Corp., 966 F.2d 1483 (D.C. Cir. 1992) ........................................27
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) .................................................................28
In re Prandin Direct Purchaser Antitrust Litig., 2015 WL 1396473 (E.D. Mich. Jan. 20, 2015) ...........................................................................................................................33
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In re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F.Supp. 450 (D.N.J. 1997) ........................................................................................................................................31
In re Prudential Sec. Inc. Ltd. P’ships Litig., 164 F.R.D. 362 (S.D. N.Y. 1996) ..........................28
Rankin v. Rots, No. 02-cv-71045, 2006 U.S. Dist. LEXIS 45706 (E.D. Mich. June 28, 2006) ..................................................................................................................................10
Reed v. Advocate Health Care, 268 F.R.D. 573 (N.D. Ill. 2009) ..................................................25
In re Rent-Way Sec. Litig., 305 F. Supp. 2d 491 (W.D. Pa. 2003) ................................................13
In re Revco Sec. Litig., 1992 WL 118800 (N.D. Ohio May 6, 1992) ............................................34
Robbins v. Koger Props., Inc., 116 F.3d 1441 (11th Cir. 1997) ....................................................13
In re Scrap Metal Antitrust Litig., 527 F.3d 517 (6th Cir. 2008).............................................23, 25
Sheick v. Auto Component Carrier LCC, Case No. 2:09-cv-14429, 2010 U.S. Dist. LEXIS 110411 (E.D. Mich. Oct. 18, 2010) .............................................................................15
In re Skelaxin Antitrust Litig., No. 12–cv–83, 2014 WL 2946459 (E.D. Tenn. June 30, 2014) ..................................................................................................................................34
In re Southeastern Milk Antitrust Litig., 2013 WL 2155379 (E.D. Tenn. May 17, 2013) ........................................................................................................................................32
In re Southeastern Milk Antitrust Litig., Master File No. 2:09-MD-1000, 2010 U.S. Dist. LEXIS 94223 (E.D. Tenn. Sept. 7, 2010) ...............................................................18
In re Sterling Foster & Company, Inc. Sec. Litig., 238 F. Supp. 2d 480 (E.D.N.Y. 2002) ........................................................................................................................................34
Stout v. J.D. Byrider, 228 F.3d 709 (6th Cir. 2000).......................................................................21
In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig., Case No. 1:01-CV-9000, 2001 U.S. Dist. LEXIS 26714 (E.D. Ohio Oct. 19, 2001) .............................................11
Thacker v. Chesapeake Appalachia, L.L.C., 259 F.R.D. 262 (E.D. Ky. 2009) .............................15
In re Universal Serv. Fund Tel. Billing Practices Litig., 219 F.R.D. 661 (D. Kan. 2004) ........................................................................................................................................26
In re Uranium Antitrust Litig., 617 F.2d 1248 (7th Cir. 1980) ......................................................15
In re Urethane Antitrust Litig., 251 F.R.D. 629 (D. Kan. 2008) ...................................................25
In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001) ..............................25
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In re Vitamins Antitrust Litig., 209 F.R.D. 251 (D.D.C. 2002) .....................................................24
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ...............................................................17
In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir. 2004) ............................................13
In re Washington Public Power Supply System Sec. Litig., [1989 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶94,326, 1988 WL 158947 (W.D. Wash. July 28, 1988) ........................................................................................................................................33
Weigner v. The City of New York, 852 F.2d 646 (2d Cir. 1988) ....................................................29
In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838 (6th Cir. 2013) ........................................................................................................ 18-19, 23, 25
Rules and Statutes
15 U.S.C. § 1 ........................................................................................................................ 2, 20-22
Fed. R. Civ. P. 23 ................................................................................................................... Passim
Other Authorities
6A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1522 (2d ed. 1990) ..............................................................................................9
4 HERBERT B. NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS § 11.41 (4th ed. 2005) ...............................................................................................................10, 15, 19
MANUAL FOR COMPLEX LITIGATION (FOURTH) § 13.12 (2004) ............................................. Passim
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Truck and Equipment Dealer Plaintiffs (“TED Plaintiffs”), on behalf of themselves and
all others similarly situated, by and through undersigned counsel, respectfully submit this
memorandum in support of their motion seeking preliminary approval of Settlements with
Defendants Nachi-Fujikoshi Corporation and Nachi America Inc. (collectively, “Nachi”) and
Defendants NSK Ltd. and NSK Americas, Inc. (“NSK” and collectively with Nachi, “Settling
Defendants”), provisional certification of the proposed Settlement Class, and authorization to
disseminate class notice.
INTRODUCTION
This multidistrict litigation arises from alleged conspiracies to fix the prices of certain
vehicle parts. Bearings are among the vehicle parts at issue in these coordinated proceedings, In
re Automotive Parts Antitrust Litigation, MDL No. 2311 (“MDL Proceeding”). For the purpose
of the proposed Settlements, the following definitions shall apply:
“Trucks and/or Equipment” means heavy-duty (Class 8) trucks, medium-duty (Class 4,
5, 6, & 7) trucks, buses, commercial vehicles, construction equipment, mining equipment,
agricultural equipment, railway vehicles, and other similar vehicles.1
“Truck and Equipment Dealership” means any person or entity who has purchased
Trucks and/or Equipment for resale or lease.
“Bearings” refers to bearings used in heavy-duty (Class 8) trucks, medium duty (Class 4,
5, 6, & 7) trucks, buses, commercial vehicles, construction equipment, mining equipment,
agricultural equipment, railway vehicles, and other similar vehicles as set forth in Paragraph 2 of
the First Amended Class Action Complaint, Case No. 2:14-cv-13356 (July 24, 2015) [Doc. 23]
1 Although the Settlement Class definitions slightly vary between the Nachi Settlement
Agreement and NSK Settlement Agreement that are the subject of the instant Motion, the definition used here is sufficiently broad to encompass all of the Settlement Class definition variations.
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(“Bearings Complaint”), whether sold separately, in combination, or as part of a module,
assembly, or system.
The actions in the MDL Proceeding arise from alleged conspiracies by and among the
motor vehicle industry’s largest manufacturers, marketers, and sellers of vehicle parts to fix
prices, rig bids, and allocate the market and customers in the United States for the sale of vehicle
parts, including Bearings.
TED Plaintiffs were the first and have been the only plaintiffs to file class action
complaints involving Bearings (or any other vehicle parts) on behalf of Truck and Equipment
Dealerships. The Bearings Complaint asserts claims for relief under the Sherman Act, 15 U.S.C.
§ 1 and various State antitrust, unjust enrichment, and consumer protection laws. Counsel for
TED Plaintiffs have been appointed Interim Class Counsel for the putative class of Truck and
Equipment Dealerships in In Re: Bearings, No. 2:12-cv-00500 [Doc. 171], and pursuant to the
Case Management Order entered in In Re: Automotive Parts Antitrust Litigation [Doc. 271],
should be considered Interim Class Counsel for the similar putative classes in this case. From
the inception of these cases, undersigned counsel have represented the interests of the class of
Truck and Equipment Dealerships, including overseeing and directing the prosecution and
settlement of the claims brought against the Settling Defendants. These proposed settlements are
a result of those efforts.
TED Plaintiffs, and the class of Truck and Equipment Dealerships they represent,
purchased new Trucks and/or Equipment in the United States that included one or more Bearings
as a component part, or indirectly purchased one or more Bearings as a replacement part, which
were manufactured or sold by the Settling Defendants or any other Defendant in this case, or any
of their current or former subsidiaries, affiliates, or alleged co-conspirators.
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TED Plaintiffs allege that, in furtherance of the alleged conspiracy or conspiracies,
Defendants agreed, during meetings and conversations, to unlawfully fix, artificially raise,
maintain and/or stabilize prices, rig bids for, and allocate the supply of Bearings and then sold
those products at supracompetitive prices to Truck and Equipment OEMs, which in turn passed
along the overcharges to Truck and Equipment Dealerships in the United States and elsewhere.
See, e.g., Bearings Complaint at ¶¶ 197-208.
The United States Department of Justice (“DOJ”) has been investigating collusion by
automotive parts manufacturers since at least February 2010, and the Federal Bureau of
Investigation (“FBI”) has participated in raids carried out in some of the offices of the
Defendants and executed search warrants related to unfair competition, price-fixing, and bid
rigging of certain automotive parts.
The Settlements between the TED Plaintiffs and Settling Defendants are meaningful and
substantial and will result in a payment of $3,645,0002 for the benefit of the respective
Settlement Classes, a significant achievement in this litigation. Additionally, Nachi agreed to
(and did provide) substantial cooperation that was both timely and extremely useful in securing
settlements with other Defendants in the Bearings case. Should one or more of the other
settlements in this case not receive final approval, the sales of the Settling Defendants at issue in
this Motion will remain in this case for purposes of computing the treble damages claims against
the non-Settling Defendants and shall be part of any joint and several liability claims against
those Defendants. See Nachi Settlement Agreement ¶ 54; NSK Settlement Agreement ¶ 39. 2 This $3,645,000 total settlement amount reflects the $475,000 settlement payment from
Nachi, and a $3,170,000 net settlement payment from NSK after deduction of $90,000 pursuant to the most-favored nation provision in TED Plaintiffs’ Settlement Agreement with the JTEKT Defendants. See TED Plaintiffs’ First Round Mot. for Preliminary Approval, Case No. 14-cv-00507, ECF No. 44 at 6, n.2; see also JTEKT Settlement Agmt. ¶ 42, Case No. 14-cv-00507, ECF No. 44-3 at 28-29.
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Thus, the TED Plaintiffs and the proposed Settlement Classes would retain their ability to
recover from any non-Settling Defendants the entire damages caused by the alleged conspiracies,
even those attributable to Settling Defendants, less only the amount paid by Settling Defendants
in settlement.
TED Plaintiffs and their counsel believe, for all the reasons set forth, that the proposed
Settlements with Settling Defendants are in the best interest of the proposed members of the
Settlement Classes and merit the Court’s preliminary approval. TED Plaintiffs therefore request
the entry of an Order:
1. Preliminarily approving the Nachi Settlement Agreement and the NSK Settlement
Agreement;
2. Provisionally certifying the proposed Settlement Classes;
3. Staying the proceedings against Settling Defendants in accordance with the terms
of the Nachi Settlement Agreement and NSK Settlement Agreement;
4. Authorizing dissemination of class notice for the Settling Defendants’ Settlement
Agreement; and
5. Appointing undersigned counsel for TED Plaintiffs as Settlement Class Counsel
for the Settlements.
THE BASIC TERMS AND BACKGROUND OF THE SETTLEMENT AGREEMENTS
The Nachi Settlement Agreement and NSK Settlement Agreement are the result of arm’s
length and good faith negotiations. Counsel participated in fact-gathering sessions and
informational meetings, as well as extended negotiations that took place through in-person
meetings, telephone calls, and other communications.
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Bearings Settlement Classes: The Settling Defendants’ Settlement Agreements define
the Bearings Settlement Classes, which includes TED Plaintiffs, in nearly identical ways, as
follows:
all present and former Truck and/or Equipment dealers that, during the period January 1, 2000, through the Execution Date, inclusive, indirectly purchased Bearings manufactured or sold by a Defendant or any current or former subsidiary or affiliate thereof, or any alleged co-conspirator of a Defendant; or purchased new Trucks and/or Equipment containing Bearings manufactured or sold by a Defendant or any current or former subsidiary, affiliate or alleged co-conspirator of a Defendant.
(Nachi Settlement Agreement ¶ 15).
all Truck and/or Equipment dealers that, during the period January 1, 2000, through the Execution Date, indirectly purchased Bearings manufactured by one of the Defendants or any current or former subsidiary or affiliate thereof, or any alleged co-conspirator; or purchased new Trucks and/or Equipment containing Bearings manufactured by one of the Defendants or any current or former subsidiary, affiliate or alleged co-conspirator.
(NSK Settlement Agreement ¶ 8).
Settlement Amount: Nachi has agreed to pay $475,000 into an escrow account within
thirty (30) days following the date (a) the Court enters an order preliminary approving the Nachi
Settlement, or (b) Nachi is provided with the account number, account name, and wiring transfer
information for the Escrow Account, whichever is later. Nachi Settlement Agreement ¶ 30.
NSK has agreed to pay $3,260,000 into an escrow account thirty (30) days following the date the
Court enters an order preliminarily approving its Settlement. NSK Settlement Agreement ¶ 22.
TED Plaintiffs plan to use $90,000 of the proceeds from the $3,260,000 NSK Settlement
Amount to pay the JTEKT Defendants pursuant to the Most Favored Nation provision in the
JTEKT Settlement Agreement. See TED Plaintiffs’ First Round Mot. for Preliminary Approval,
Case No. 14-cv-00507, ECF No. 44 at 6, n.2; see also JTEKT Settlement Agmt. ¶ 42, Case No.
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14-cv-00507, ECF No. 44-3 at 28-29. TED Plaintiffs believe this represents a reasonable
outcome in the Bearings case because the NSK Settlement in the amount of $3,260,000 (or net
$3,170,000) still offers a substantial cash value for the proposed Settlement Class. TED
Plaintiffs vigorously negotiated with NSK as hard and as far as we could in terms of the NSK
Settlement Amount and were unable to obtain more despite several months of hard fought
negotiations. TED Plaintiffs believe that an infusion of $3,170,000 into the settlement fund for
distribution to the proposed Settlement Class is preferable to the continued expenditure of
resources by both sides on litigation of the case, especially considering the ongoing expenses that
would be incurred to continue the litigation against NSK—most notably the expert witness
expenses, costs to maintain access to the case document database (tens of thousands of dollars
per month), and travel and other expenses related to continued depositions, all of which would
have easily exceeded $100,000 per month for every month the case remained in active litigation.
This rationale is bolstered by the fact that NSK was the last remaining defendant in the Bearings
case with which TED Plaintiffs were actively litigating.
Cooperation: Nachi agreed to (and did) provide extensive cooperation to the proposed
Settlement Class. These pledges of cooperation, taken together with the pledges of cooperation
in the settlements with the other Bearings case defendants that received final approval,
significantly aided in the negotiation of settlement agreements with other Bearings Defendants
and led the parties to the threshold of a full and final resolution of all of the TED Plaintiffs’
claims in the Bearings case. The full extent of Nachi’s pledged cooperation is set forth in the
Nachi Settlement Agreement at ¶¶ 39-47.
Released Claims: As set forth more fully in the respective Settlement Agreements, the
Settlement Agreements release only the Settling Defendants and their past and present parents,
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subsidiaries, affiliates, partners, and insurers (and their respective past and present officers,
directors, employees, agents, stockholders, representatives, and insurers, and their respective
predecessors, successors, heirs, executors, administrators, and assigns) from Settlement Class
Members’ and other Releasors’ claims on account of, or in any way related to, the conduct
alleged in the Bearings Complaint, or any act or omission of Settling Defendants or any other
Releasee concerning Bearings.
The releases do not release: (a) any claims made by direct purchasers of Bearings based
solely on such direct purchases; (b) any claims made by Settlement Class Members in the End-
Payor case, Case No. 2:12-cv-00503-MOBMKM, as that term is defined in any Settlement
Agreement between Nachi and End-Payor Plaintiffs in that case; (c) any claims made by
Settlement Class Members in the Automobile Dealership case, Case No. 2:12-cv-00502-MOB-
MKM, as that term is defined in any Settlement Agreement between Nachi and Automobile
Dealership Plaintiffs in that case; (d) any claims made by any state, state agency, or
instrumentality or political subdivision of a state as to government purchases and/or penalties
relating to Bearings; (e) claims based on negligence, personal injury, breach of contract,
bailment, failure to deliver lost goods, damaged or delayed goods, product defect, warranty,
securities or similar claim relating to Bearings; (f) claims concerning any vehicle part other than
Bearings; and (g) claims under laws other than those of the United States and the states thereof
relating to purchases of Bearings made outside of the United States and the states thereof. Nachi
Settlement Agreement at ¶ 28. The Settlement Agreement also provides that the Settling
Defendants’ sales shall remain in the continuing litigation against the non-Settling Defendants,
who remain jointly and severally liable for all damages caused by the conspiracies. Nachi
Settlement Agreement at ¶ 54; NSK Settlement Agreement at ¶ 39.
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Plan for Dissemination of Notice to Potential Members of the Settlement Classes:
Settling Defendants’ Settlement Agreements provide cash benefits to dealerships that
purchased certain parts and/or purchased vehicles containing those parts in jurisdictions that the
TED Plaintiffs contend allow antitrust indirect purchasers to seek money damages: Arizona,
Arkansas, California, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kansas, Maine,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New
Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, South Carolina,
South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wisconsin (the “Included States”);
see Nachi Settlement Agreement ¶ 9; NSK Settlement Agreement ¶ 2. Through a class action
notice consultant, over 50,000 mailing and email addresses associated with potential class
members in the Included States have been identified. (See Declaration of William Wickersham,
attached hereto as Exhibit 3.)
To provide notice of this Settlement to potential class members, TED Plaintiffs propose a
multi-faceted notice program—that has already been previously approved by this Court—
intended to provide the best notice practicable under the circumstances. TED Plaintiffs retained
RG/2 Claims Administration LLC (“RG/2”), an experienced class action administration firm, to
design and implement the notice plan. RG/2 has proposed the notice plan that includes:
Direct mail and email notice to over 50,000 addresses related to dealerships potentially eligible for monetary benefits under the Settlements;
Published notice in periodicals like The Wall Street Journal, Automotive News, National Trailer Dealers Association E-newsletter, the American Truck Dealers Insider E-newsletter, and World Truck Magazine designed to target potential class members nationwide;
Electronic notice to dealerships that have already signed up for notifications related to other Auto Parts settlements; and
Earned media efforts through a national press release and the settlement website, www.TruckDealerSettlement.com.
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(See Wickersham Decl.) The notice plan proposed by TED Plaintiffs and RG/2 has been
previously approved by this Court. (See Case No. 2:14-cv-13356-MOB-MKM, ECF Nos. 71,
72; see also Case No. 2:14-cv-14451-MOB-MKM, ECF Nos. 119, 120).
ARGUMENT
The Settling Defendants’ Settlement Agreements are fair, reasonable, and adequate, and
are the result of arm’s length negotiations by experienced counsel. They are also thoughtfully
conceived resolutions of the proposed Settlement Classes’ claims that maximize their recovery.
Furthermore, Nachi has agreed to provide (and already provided) substantial cooperation in
prosecuting TED Plaintiffs’ claims against other Bearings case defendants.
I. Preliminary Approval Should be Granted Because the Proposed Settlements Fall Well Within the Range of Possible Approval.
It is well-established in the Sixth Circuit that there is an overriding public interest in
settling and quieting litigation, particularly class actions. See Griffin v. Flagstar Bancorp, Inc.,
Case No. 2:10-cv-10610, 2013 U.S. Dist. LEXIS 173702, at *6 (E.D. Mich. Dec. 12, 2013)
(citing UAW v. Gen. Motors. Corp., 497 F.3d 615, 631 (6th Cir. 2007) (noting “the federal policy
favoring settlement of class actions”)); see also IUE-CWA v. Gen. Motors Corp., 238 F.R.D.
583, 593 (E.D. Mich. 2006). “This policy applies with equal force whether the settlement is
partial, involving only some of the defendants, or complete.” In re Packaged Ice Antitrust Litig.,
Case No. 08-MD-01952, 2011 U.S. Dist. LEXIS 17255, at *44 (E.D. Mich. Feb. 22, 2011); see
also Agretti v. ANR Freight Sys., Inc., 982 F.2d 242, 247 (7th Cir. 1992) (“In complex litigation
with a plaintiff class, ‘partial settlements often play a vital role in resolving class actions.’”)
(quoting MANUAL FOR COMPLEX LITIGATION (SECOND) § 30.46 (1986)). In fact, “settlement
should be facilitated at as early a stage of the litigation as possible.” 6A CHARLES ALAN WRIGHT
& ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1522, at 225-26 (2d ed. 1990)
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(citing 1983 Advisory Committee Notes); see also MANUAL FOR COMPLEX LITIGATION (FOURTH)
§ 13.12 (2004) (“Manual”) (“[S]ettlement should be explored early in the case.”).
Approval of a proposed class action settlement proceeds in two steps. First, the court
grants preliminary approval to the settlement and provisionally certifies a settlement class.
Second, after notice of the settlement is provided to the class and the court conducts a fairness
hearing, the court may grant final approval to the settlement. See Manual § 21.63; see also
Bobbitt v. Acad. of Reporting, No. 07–10742, 2009 WL 2168833, at *1 (E.D. Mich. Jul. 21,
2009) (citing authorities).
A proposed settlement agreement should be preliminarily approved if “the preliminary
evaluation of the proposed settlement does not disclose grounds to doubt its fairness or other
obvious deficiencies . . . and [the settlement] appears to fall within the range of possible
approval.” Manual § 30.41 at 237; see also Int’l Union, UAW v. Ford Motor Co., Case Nos. 05-
74730, 06-10331, 2006 U.S. Dist. LEXIS 70471, at *11 (E.D. Mich. July 13, 2006). The District
Court’s role in reviewing settlements “must be limited to the extent necessary to reach a
reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion
between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and
adequate to all concerned.” Clark Equip. Co. v Int’l Union of Allied Industrial Workers of Am.,
803 F.2d 878, 880 (6th Cir. 1986). Courts adhere to “an initial presumption of fairness when a
proposed class settlement, which was negotiated at arm’s length by counsel for the class, is
presented for court approval.” 4 HERBERT B. NEWBERG & ALBA CONTE, NEWBERG ON CLASS
ACTIONS § 11.41 (4th ed. 2005) (“Newberg”) (collecting cases); cf. Rankin v. Rots, No. 02-cv-
71045, 2006 U.S. Dist. LEXIS 45706, at *9 (E.D. Mich. June 28, 2006) (“[T]he only
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question . . . is whether the settlement, taken as a whole, is so unfair on its face as to preclude
judicial approval.”) (internal quotation marks omitted).
In considering whether to grant preliminary approval, the Court is not required at this
point to make a final determination of the adequacy of the settlement or to delve extensively into
the merits of the settlement. See In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig.,
Case No. 1:01-CV-9000, 2001 U.S. Dist. LEXIS 26714, at *17 (E.D. Ohio Oct. 19, 2001)
(“Sulzer Hip”). These inquiries are reserved for the final approval stage of the class settlement
approval process. Nor will any class member’s substantive rights be prejudiced by preliminary
approval because the proposed preliminary approval is solely to provide authority for notifying
the class of the terms of the settlement agreement to set the stage for review of its final approval.
Id.; Newburg § 11.25. Consequently, courts generally engage only in a limited inquiry to
determine whether a proposed settlement falls within the range of possible approval and thus
should be preliminarily approved. Sulzer Hip, 2001 U.S. Dist. LEXIS 26714, at *17-18
(preliminary approval may be based on “informal presentations” because of “substantial judicial
processes that remain”) (quoting MANUAL FOR COMPLEX LITIGATION (THIRD) § 30.41, at 235
(1995)); see also Packaged Ice, No. 08-MD-01952, 2010 WL 3070161, at *4 (E.D. Mich. Aug.
2, 2010), quoting Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982) (inquiry limited to
settlement’s potential for final approval and propriety of class notice and fairness hearing).
In evaluating whether a settlement is fair, reasonable and adequate, courts in the Sixth
Circuit consider a number of factors:
(1) the likelihood of success on the merits weighed against the amount and form of relief in the settlement; (2) the complexity expense and likely duration of the 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. The Court
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may choose to consider only those factors that are relevant to the settlement at hand and may weigh particular factors according to the demands of the case.
Packaged Ice, 2011 U.S. Dist. LEXIS 17255, at *46-47 (quotation marks and citations omitted).
A court is not required, at the preliminary approval stage, to determine whether it
ultimately will finally approve the settlement. Nevertheless, as set forth in detail below,
preliminary consideration of the factors a court considers when evaluating the fairness of a
settlement for purposes of deciding whether to grant final approval supports this Court’s granting
preliminary approval of the Settling Defendants’ Settlement Agreements.
A. The Settling Defendants’ Settlement Agreements Achieve an Excellent Result for the Proposed Settlement Classes, Particularly Given the Expense, Duration, and Uncertainty of Continued Litigation.
Antitrust class actions are “arguably the most complex action(s) to prosecute. The legal
and factual issues involved are always numerous and uncertain in outcome.” In re Packaged Ice
Antitrust Litig., Case No. 08-MDL-01952, 2011 U.S. Dist. LEXIS 150427, at *76 (E.D. Mich.
Dec. 13, 2011) (quoting In re Linerboard Antitrust Litig., 292 F. Supp. 2d 631, 639 (E.D. Pa.
2003) (“Linerboard”)); see also In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 533 (E.D.
Mich. 2003) (“Cardizem”) (“Moreover, the complexity of this case cannot be overstated.
Antitrust class actions are inherently complex”). Motions have already been vigorously
contested, and the discovery process would be all the more complicated due to the unique issues
that attend discovery against foreign parties.
Settling Defendants have asserted and would continue to assert various defenses, and a
jury trial might well turn on close questions of proof, many of which would be the subject of
complicated expert testimony, particularly with regard to injury and damages, making the
outcome of such trial uncertain for both parties. See, e.g., Cardizem, 218 F.R.D. at 523 (in
approving settlement, noting that “the prospect of a trial necessarily involves the risk that
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Plaintiffs would obtain little or no recovery” and that “no matter how confident trial counsel may
be, they cannot predict with 100% accuracy a jury’s favorable verdict, particularly in complex
antitrust litigation”); Packaged Ice, 2011 U.S. Dist. LEXIS 17255, at *53-54 (noting the
“undeniable inherent risks” in antitrust class action litigation including “whether the class will be
certified and upheld on appeal, whether the conspiracies as alleged in the Complaint can be
established, whether Plaintiffs will be able to demonstrate class wide antitrust impact and
ultimately whether Plaintiffs will be able to prove damages”). Id. Given this uncertainty, “[a]
very large bird in the hand in this litigation is surely worth more than whatever birds are lurking
in the bushes.” In re Chambers Dev. Sec. Litig., 912 F. Supp. 822, 838 (W.D. Pa. 1995).
Moreover, given the stakes involved, an appeal is nearly certain to follow regardless of
the outcome at trial. This creates additional risk, as judgments following trial may be overturned
on appeal. See, e.g., In re Farmers Ins. Exchange, Claims Representatives’ Overtime Pay Litig.,
481 F.3d 1119 (9th Cir. 2007) ($52.5 million class action judgment following trial reversed on
appeal); Robbins v. Koger Props., Inc., 116 F.3d 1441 (11th Cir. 1997) (jury verdict of $81
million for plaintiffs reversed and judgment entered for defendant). And even if class members
were willing to assume all of the litigation risks, the passage of time would introduce still more
risks in terms of appeals and possible changes in the law that would, in light of the time value of
money, make future recoveries less valuable than recovery today. See In re Warfarin Sodium
Antitrust Litig., 391 F.3d 516, 536 (3d Cir. 2004) (“[I]t was inevitable that post-trial motions and
appeals would not only further prolong the litigation but also reduce the value of any recovery to
the class.”); In re Rent-Way Sec. Litig., 305 F. Supp. 2d 491, 501 (W.D. Pa. 2003) (“[A] future
recovery, even one in excess of the proposed Settlement, may ultimately prove less valuable to
the Class than receiving the benefits of the proposed Settlement at this time”). Hence, “the
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certain and immediate benefits to the Class represented by the Settlement outweigh the
possibility of obtaining a better result at trial, particularly when factoring in the additional
expense and long delay inherent in prosecuting this complex litigation through trial and appeal.”
Cardizem, 218 F.R.D. at 525.
Against this background, a settlement providing the substantial benefits afforded here
represents an excellent result for the members of the proposed Settlement Classes. Settling
Defendants’ $3,645,000 payment provides for significant compensation to the proposed
Settlement Class that will be available years earlier than would be the case if litigation against
Settling Defendants continued through trial and appeal. Settlements of this type, before
discovery has been completed, create value beyond their direct pecuniary benefit to the class.
See Packaged Ice, 2011 U.S. Dist. LEXIS 17255, at *50-51 (noting “significant value” of
icebreaker settlement); Linerboard, 292 F. Supp. 2d at 643; In re Corrugated Container Antitrust
Litig., 1981 WL 2093, *16 (S.D. Tex. Jan. 27, 1981 (“Corrugated Container”). In addition, the
Nachi Settlement Agreement provides for cooperation that will benefit, and has already
benefitted, TED Plaintiffs—specifically, Nachi has agreed to provide substantial cooperation,
including witness interviews and attorney proffers. See Nachi Settlement Agreement at ¶¶ 39-
47.
The Settling Defendants’ Settlement Agreements also specifically provide that they do
not alter the non-Settling Defendants’ joint and several liability for the full damages caused by
the alleged conspiracies, including all sales made by the Settling Defendants. Nachi Settlement
Agreement ¶ 54; NSK Settlement Agreement ¶ 39. In this regard, the Settlement Agreement is
similar to one of the settlements approved in Corrugated Container, where the court noted the
“valuable provision” under which plaintiffs reserved their right to recover full damages from the
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remaining defendants, less the actual amount of the initial settlement. 1981 WL 2093, at *17;
see also In re Uranium Antitrust Litig., 617 F.2d 1248 (7th Cir. 1980); In re Ampicillin Antitrust
Litig., 82 F.R.D. 652, 654 (D.D.C. 1979) (approving settlement where class will “relinquish no
part of its potential recovery” due to joint and several liability). Here too, should any of their
pending settlements in the Bearings case not receive final approval, the TED Plaintiffs would be
able to pursue their full damages, with no diminution other than deduction of the actual
Settlement Amounts in the settlements that do receive final approval.
B. The Settlement Agreements are the Result of Thorough Arm’s-Length Negotiations Conducted by Highly Experienced Counsel.
The Settlements are entitled to “an initial presumption of fairness” because they are the
result of arm’s-length negotiations among experienced counsel. Newberg § 11.41. The
judgment of proposed Settlement Class Counsel that a settlement is in the best interest of the
proposed Settlement Class “is entitled to significant weight, and supports the fairness of the class
settlement.” Sheick v. Auto Component Carrier LCC, Case No. 2:09-cv-14429, 2010 U.S. Dist.
LEXIS 110411, at *51 (E.D. Mich. Oct. 18, 2010) (quoting IUE-CWA, 238 F.R.D. at 597); see
also Cardizem, 218 F.R.D. at 525. Courts give great weight to the recommendation of
experienced counsel for the parties in evaluating the adequacy of a settlement.
“Preliminary approval of a proposed settlement is based upon the court’s familiarity with
the issues and evidence, as well as the arms-length nature of the negotiations prior to the
proposed settlement, ensuring that the proposed settlement is not illegal or collusive.” Thacker
v. Chesapeake Appalachia, L.L.C., 259 F.R.D. 262 (E.D. Ky. 2009) (quoting In re Dun &
Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 370 (S.D. Ohio 1990)). The Settling
Defendants’ Settlement Agreements here are the result of hard-fought negotiations between
counsel experienced in complex antitrust and consumer class action litigation. The Settling
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Defendants’ Settlement Agreements were negotiated by proposed Class Counsel in a process that
involved extensive discussions with counsel for Settling Defendants over a period of many
months, including several in-person meetings. Proposed Class Counsel undertook a diligent and
thorough investigation of the legal and factual issues posed by this litigation and consulted
extensively with experienced economists before finalizing this deal.
Counsel for the TED Plaintiffs were well-informed about the facts and the strength of the
claims asserted having had access to extensive discovery, including document productions,
interrogatory responses, and depositions, at the time the terms of the Settling Defendants’
Settlement Agreements were negotiated. See Packaged Ice, 2011 U.S. Dist. LEXIS 17255, at
*56 (“[T]he absence of formal discovery is not an obstacle [to settlement approval] so long as the
parties and the Court have adequate information in order to evaluate the relative position of the
parties.”) (quotation marks and citation omitted); Griffin v. Flagstar Bancorp, Inc., 2013 U.S.
Dist. LEXIS 173702 (same).
Moreover, these negotiations were adversarial and conducted in the utmost good faith.
“Courts presume the absence of fraud or collusion in class action settlements unless there is
evidence to the contrary.” Leonhardt v. ArvinMeritor, Inc., 581 F. Supp. 2d 818, 838 (E.D.
Mich. 2008); Bowers v. Windstream Ky. East, LLC, Civil Action No. 3:09-CV-440-H, 2013 U.S.
Dist. LEXIS 157242, at *5 (W.D. Ky. Nov. 1, 2013). There is nothing in the course of the
negotiations or the substance of the settlement that “disclose[s] grounds to doubt its fairness.”
Manual § 30.41.
II. The Proposed Settlement Classes Should be Provisionally Certified Pursuant to Rule 23.
The Manual notes the propriety of certifying a class solely for purposes of settlement, see
Manual § 21.32, and courts in this Circuit routinely provisionally approve a proposed settlement
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class before deciding plaintiffs’ motion for class certification. See, e.g., In re Delphi Corp. Sec.
Derivatives & ERISA Litig., 248 F.R.D. 483, 486 n. 2 (E.D. Mich. 2008) (granting final approval
to both ERISA and Securities settlement Class, noting the court’s earlier, preliminary approval of
the settlement Class granted prior to a hearing on defendants’ motions to dismiss); Cardizem,
218 F.R.D. at 516-17, 530 (granting final approval of proposed settlement, noting its earlier
preliminary approval of both the proposed settlement class and the proposed settlement
agreement granted prior to class certification and prior to hearing on motions to dismiss). A
court may grant provisional certification where, as here, the proposed Settlement Classes satisfy
the four prerequisites of Rule 23(a) (numerosity, commonality, typicality and adequacy), as well
as one of the three subsections of Rule 23(b). See In re Packaged Ice Antitrust Litig., No. 08-
MD-01952, 2010 U.S. Dist. LEXIS 140235, at *27-28 (E.D. Mich. Sept. 2, 2010).
While the Supreme Court recently reiterated that a trial court must conduct a “rigorous
analysis” to confirm that the requirements of Rule 23 have been met, Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541, 2551 (2011), “the requisite ‘rigorous analysis’ of the record and
consideration of the merits must be focused on and limited to the question whether the Rule’s
requirements have been established.” Cason-Merenda v. VHS of Mich., Inc., 2013 U.S. Dist.
LEXIS 131006, at *20-21 (E.D. Mich. Sept. 13, 2013) (citing In re Whirlpool Corp. Front-
Loading Washer Prods. Liab. Litig., 722 F.3d 838, 851-52 (6th Cir. 2013)). Permissible inquiry
into the merits of plaintiffs’ claims at the class certification stage is limited:
Rule 23 grants courts no license to engage in free-ranging merits inquiries at the class certification stage. Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.
Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1194-95 (2013) (“Amgen”)
(citing Dukes, 131 S. Ct. at 2552 n.6). “In other words, district courts may not turn the class
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certification proceedings into a dress rehearsal for the trial on the merits.” In re Whirlpool
Corp., 722 F.3d 838, 851-52 (internal quotation marks and citation omitted). Here, as
demonstrated below, even under a “rigorous analysis,” the requirements of Rule 23 are easily
met.
A. The Proposed Settlement Classes Meet the Requirements of Rule 23(a).
Horizontal price fixing class actions are routinely certified in this District and elsewhere.
TED Plaintiffs’ allegations of “a per se violation of the antitrust laws are exactly the kind of
allegations which may be proven on a class-wide basis through common proof.” In re
Southeastern Milk Antitrust Litig., Master File No. 2:09-MD-1000, 2010 U.S. Dist. LEXIS
94223, at *35 (E.D. Tenn. Sept. 7, 2010). “Courts have held that the existence of a conspiracy is
the predominant issue in price fixing cases, warranting certification of the class even where
significant individual issues are present.” Id. at *33 (internal quotation marks and citations
omitted). “As a rule of thumb, a price fixing antitrust conspiracy model is generally regarded as
well suited for class treatment.” In re Foundry Resins Antitrust Litig., 242 F.R.D. 393, 409 (S.D.
Ohio 2007); see also Hyland v. Homeservices of Am., Inc., Case No. 3:05-CV-612-R, 2008 U.S.
Dist. LEXIS 90892, at *12 (W.D. Ky. Nov. 6, 2008).
i. The Proposed Settlement Classes are So Numerous that It is Impracticable to Bring All Class Members Before the Court.
No magic number is required to satisfy the numerosity requirement of Rule 23(a)(1).
Miller v. Univ. of Cincinnati, 241 F.R.D. 285, 288 (S.D. Ohio 2006). A class representative need
only show that joining all members of the potential class is extremely difficult or inconvenient.
Golden v. City of Columbus, 404 F.3d 950, 965 (6th Cir. 2005). The “sheer number of potential
litigants in a class, especially if it is more than several hundred, can be the only factor needed to
satisfy Rule 23(a)(1).” In re Foundry Resins Antitrust Litig., 242 F.R.D. at 403 (citing Bacon v.
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Honda of America Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004)); see also In re Am. Med. Sys.,
Inc., 75 F.3d 1069, 1079 (6th Cir. 1996).
The proposed Settlement Classes at issue in this action involve all Truck and Equipment
Dealerships in the United States from January 1, 2000, through May 25, 2017 that purchased one
or more new vehicles containing a Bearing. Because there are a large number—estimated to be
over one thousand—of such Truck and Equipment dealerships geographically distributed
throughout the United States, joinder is highly impractical, if not impossible, for all members of
the proposed Settlement Classes.
ii. TEDP Class Representatives and the Proposed Settlement Classes Share Common Legal and Factual Questions.
Commonality only requires that “there are questions of law or fact common to the class.”
Fed. R. Civ. P. 23(a)(2). While Rule 23(a)(2) speaks of questions of law or fact in the plural,
“there need be only one common question to certify a class.” In re Whirlpool Corp. Front-
Loading Washer Prods. Liab. Litig., 722 F.3d at 853; see also Cason-Merenda, 2013 U.S. Dist.
LEXIS 131006, at *22 (one common question of law or fact is sufficient); Griffin v. Flagstar
Bancorp Inc., 2013 U.S. Dist. LEXIS 173702 (same); Date v. Sony Elecs., Inc., Case No. 07-
15474, 2013 U.S. Dist. LEXIS 108095, at *10 (E.D. Mich. July 31, 2013) (same).
This prerequisite is readily satisfied here because “antitrust price-fixing conspiracy cases,
by their nature, deal with common legal and factual questions about the existence, scope and
effect of the alleged conspiracy.” In re Aluminum Phosphide Antitrust Litig., 160 F.R.D. 609,
613 (D. Kan. 1995). Thus, in price fixing cases, courts “have consistently held that the very
nature of a conspiracy in an antitrust action compels a finding that common questions of law and
fact exist.” In re Dynamic Random Access Memory (DRAM) Antitrust Litig., No. M 02-1486
PJH, 2006 U.S. Dist. LEXIS 39841 (N.D. Cal. June 5, 2006); see also Newberg § 3:10 at 278
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(“[In an] antitrust action on behalf of purchasers who have bought defendants’ products at prices
that have been maintained above competitive levels by unlawful conduct, the courts have held
that the existence of an alleged conspiracy or monopoly is a common issue that will satisfy the
Rule 23(a)(2) prerequisite”).
Through the course of this litigation, TED Plaintiffs have already identified the following
issues common to the proposed Settlement Classes:
Whether Defendants and their alleged co-conspirators engaged in a combination and conspiracy among themselves to fix, raise, maintain or stabilize the prices of Bearings sold in the United States;
The identity of the participants of the alleged conspiracy;
The duration of the alleged conspiracy and the acts carried out by Defendants and their alleged co-conspirators in furtherance of the conspiracy;
Whether the alleged conspiracy violated the Sherman Act;
Whether the alleged conspiracy violated state antitrust and unfair competition law, and/or state consumer protection law;
Whether the conduct of Defendants and their co-conspirators, as alleged in the Bearings Complaint, caused injury to the business or property of Plaintiffs and the members of the Classes;
The effect of the alleged conspiracy on the prices of Bearings sold in the United States during the Class Periods, if any;
Whether the Defendants and their alleged co-conspirators fraudulently concealed the alleged conspiracy’s existence from the Plaintiffs and the members of the Classes;
Whether Defendants unjustly enriched themselves to the detriment of the Plaintiffs and the members of the Classes, thereby entitling Plaintiffs and the members of the Classes to disgorgement of all benefits derived by Defendants;
The appropriate injunctive and related equitable relief for the Nationwide Classes, if any; and
The appropriate class-wide measure of damages for the Damages Classes, if any.
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See Bearings Complaint ¶ 213. Any one of these substantive issues would, standing alone,
establish the requisite commonality under Rule 23(a)(2).
iii. TEDP Class Representatives’ Claims Are Typical of the Claims of the Members of the Proposed Settlement Classes.
Third, Rule 23(a) requires typicality of the class representatives’ claims. See Fed. R. Civ.
P. 23(a)(3). “The [typicality] requirement is not onerous,” Int’l Union, UAW v. Ford Motor Co.,
2006 U.S. Dist. LEXIS 70471, at *54, and courts liberally construe it. See In re Foundry Resins
Antitrust Litig., 242 F.R.D. at 403. “In the antitrust context, typicality is established when the
named plaintiffs and all class members allege[] the same antitrust violation by defendants.”
Cason-Merenda, 2013 U.S. Dist. LEXIS 131006, at *25 (quoting In re Foundry Resins Antitrust
Litig., 242 F.R.D. at 405); see also Stout v. J.D. Byrider, 228 F.3d 709, 717 (6th Cir. 2000); In re
Am. Med. Sys., 75 F.3d at 1082; Packaged Ice, 2011 U.S. Dist. LEXIS 17255, at *40-41. “If
there is a strong similarity of legal theories, the requirement [of typicality] is met, even if there
are factual distinctions among named and absent class members.” Griffin v. Flagstar Bancorp,
Inc., 2013 U.S. Dist. LEXIS 173702, at *17-18 (quotation marks and citation omitted); Packaged
Ice, 2011 U.S. Dist. LEXIS 17255, at *40 (same).
Because the TED Plaintiffs and the members of the proposed Settlement Classes believe
they are all victims of a common conspiracy to fix prices, rig bids, and allocate the market and
customers for the relevant parts and seek the same relief, Rule 23(a)(3) is satisfied. See Cason-
Merenda, 2013 U.S. Dist. LEXIS 131006, at *26 (finding typicality met where “the claims of the
named Plaintiffs and those of the remaining members of the proposed class all arise from the
same conspiracy and are based on the same theory of liability under the Sherman Act.”) (internal
quotation marks and citation omitted)); Packaged Ice, 2011 U.S. Dist. LEXIS 17255, at *40-41
(“Because all Class Members’ claims arise from . . . a conspiracy to allocate markets in violation
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of the Sherman Act, their claims are based on the same legal theory and the typicality
requirement . . . is met”).
iv. Proposed Settlement Class Counsel and TEDP Class Representatives Will Fairly and Adequately Protect the Interests of the Proposed Settlement Classes.
The final requirement of Rule 23(a) is that the representative parties “fairly and
adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The Sixth Circuit has
articulated two criteria for determining adequacy of representation: “‘1) [t]he representative
must have common interests with unnamed members of the class, and 2) it must appear that the
representatives will vigorously prosecute the interests of the class through qualified counsel.’”
In re Foundry Resins Antitrust Litig., 242 F.R.D. at 407 (quoting Senter v. Gen. Motors Corp.,
532 F.2d 511, 525 (6th Cir. 1976)). TED Plaintiffs submit that there are no conflicts between
them and the proposed Settlement Classes because the TED Plaintiffs and all Settlement Class
Members purchased new Trucks and/or Equipment in the United States that included one or
more Bearings as a component part, or indirectly purchased one or more Bearings as a
replacement part, and all seek damages for the ensuing overcharge. See In re Corrugated
Container Antitrust Litig., 643 F.2d 195, 208 (5th Cir. 1981) (certifying settlement class and
holding that “so long as all class members are united in asserting a common right, such as
achieving the maximum possible recovery for the class, the class interests are not antagonistic
for representation purposes” (internal quotation marks and citation omitted)).
Rule 23(g) requires the Court to examine the capabilities and resources of class counsel
to determine whether they will provide adequate representation to the class. The proposed
Settlement Classes are represented by counsel with extensive experience in antitrust and class
action litigation. They have vigorously prosecuted the class claims, and they will continue to do
so through all phases of the litigation, including trial, as may be necessary. See Marcus v. Dep’t
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of Revenue, 206 F.R.D. 509, 512 (D. Kan. 2002) (“In absence of evidence to the contrary, courts
will presume the proposed class counsel is adequately competent to conduct the proposed
litigation”). The Court should appoint them Settlement Class Counsel here.
B. The Proposed Settlement Classes Meet the Requirements of Rule 23(b)(3).
To qualify for certification under Rule 23(b)(3), a class must meet two requirements
beyond the Rule 23(a) prerequisites: (1) common questions must predominate over any
questions affecting only individual members; and (2) class resolution must be superior to other
available methods for the fair and efficient adjudication of the controversy. Amchem Prods., Inc.
v. Windsor, 521 U.S. 591, 615 (1997) (“Amchem”); see also In re Scrap Metal Antitrust Litig.,
527 F.3d 517, 535 (6th Cir. 2008). With respect to both requirements, the Court need not inquire
whether the “case, if tried, would present intractable management problems, for the proposal is
that there be no trial.” Amchem, 521 U.S. at 620 (internal citations omitted).
i. Common Questions of Law and Fact Predominate.
“Rule 23(b)(3) does not mandate that a plaintiff seeking class certification prove that
each element of the claim is susceptible to classwide proof.” In re Whirlpool Corp., 722 F.3d at
859. Instead, “‘[a] claim will meet the predominance requirement when there exists generalized
evidence which proves or disproves an element on a simultaneous, class-wide basis, since such
proof obviates the need to examine each class member’s individualized position.’” In re
Foundry Resins Antitrust Litig., 242 F.R.D. at 408 (quoting In re Cardizem CD Antitrust Litig.,
200 F.R.D. at 307). Common questions need only predominate; they need not be dispositive of
the litigation. Id. (citing In re Potash Antitrust Litig., 159 F.R.D. 682, 693 (D. Minn. 1995)); cf.
In re Scrap Metal Antitrust Litig., 527 F.3d at 535-36 (holding issues regarding the amount of
damages do not destroy predominance). “[T]he mere fact that questions peculiar to each
individual member of the class action remain after the common questions of the defendant’s
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liability have been resolved does not dictate the conclusion that a class action is impermissible.”
Cason-Merenda, 2013 U.S. Dist. LEXIS 131006, at *19-20 (quoting Powers v. Hamilton Cnty.
Public Defender Comm., 501 F.3d 595, 619 (6th Cir. 2007)). As pertinent to TED Plaintiffs’
request here to provisionally certify the proposed Settlement Classes under Rule 23(b)(3), the
Supreme Court very recently instructed that “Rule 23(b)(3) requires a showing that questions
common to the class predominate, not that those questions will be answered, on the merits, in
favor of the class.” Amgen, 133 S. Ct. at 1191.3
Because the proposed Settlement Classes allege conduct from which all proposed
Settlement Class Members’ alleged injuries arise, issues common to the proposed Settlement
Class Members—for example, the existence and scope of the alleged price-fixing conspiracy
among Defendants, the market impact of Defendants’ conspiracy, and the aggregate amount of
damage suffered by the class as a result of the alleged antitrust violations—predominate over any
individual questions, and therefore class treatment of the claims is appropriate for purposes of
this settlement. See Amchem, 521 U.S. at 625 (“Predominance is a test readily met in certain
cases alleging . . . violations of the antitrust laws.”); see also In re Vitamins Antitrust Litig., 209
F.R.D. 251, 254 (D.D.C. 2002) (“[A]s a rule, the allegation of a price-fixing conspiracy is
sufficient to establish predominance of common questions[.]”) (quoting NEWBERG ON CLASS
ACTIONS § 18.28 at 18-98 (3d ed. 1992)). This Circuit has also held “[p]redominance is a test
3 The Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), supports the appropriateness of class certification under Rule 23(b)(3) here. In Comcast, the Supreme Court found that the plaintiffs failed to establish that damages could be measured on a class-wide basis because only one of the plaintiffs’ four theories of antitrust impact could be proved in a manner common to the class. 133 S. Ct. at 1429-31. Under Comcast, plaintiffs must be able to show that their damages stemmed from the defendant’s actions that created the legal liability. See Levva v. Medline Indus, Inc., 716 F.3d 510 (9th Cir. 2013). Here, all of the proposed Settlement Classes’ claimed damages—the overcharge suffered as a result of inflated prices for Bearings—stem from the Defendants’ alleged price-fixing conspiracy.
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readily met in certain cases alleging . . . violations of the antitrust laws, because proof of the
conspiracy is a common question that is thought to predominate over the other issues of the
case.” In re Scrap Metal Antitrust Litig., 527 F.3d at 535 (quoting Amchem, 521 U.S. at 625).4
Furthermore, here the evidence that will prove a violation as to one Settlement Class Member is
common to the others and will be sufficient to prove it as to all—the anticompetitive conduct is
not dependent on the separate conduct of the individual Settlement Class Members. See
Packaged Ice, 2011 U.S. Dist. LEXIS 17255, at *43.
This is true even if there are individual state law issues, as long as the common issues still
outweigh the individual ones, e.g., as long as a common theory can be alleged as to liability and
impact that can be pursued by the class. See, e.g., In re Whirlpool Corp., 722 F.3d at 861 (“[I]t
remains the ‘black letter rule’ that a class may obtain certification under Rule 23(b)(3) when
liability questions common to the class predominate over damages questions unique to class
members.” (internal quotation marks and citation omitted)); Scrap Metal, 527 F.3d at 535 (where
common issues determine liability, fact that damages calculation may involve individualized
issues does not defeat predominance). Issues common to the proposed Settlement Classes
predominate in these cases—all TED Plaintiffs assert that they, along with the Truck and
Equipment Dealerships they represent, paid overcharges that were caused by the Defendants’
price-fixing activities. The presence of these common issues of liability and impact
4 Other courts have recognized that the existence and scope of an alleged antitrust conspiracy are matters susceptible to class-wide proof, and thus tend to support a finding that common issues predominate over individual ones as to at least the first element of an antitrust conspiracy claim. See, e.g., Cordes & Co. Financial Services, Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 105 (2d Cir. 2007); Blades v. Monsanto Co., 400 F.3d 562, 572 (8th Cir. 2005); In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001); In re Blood Reagents Antitrust Litig., 283 F.R.D. 222, 234 (E.D. Pa. 2012); Reed v. Advocate Health Care, 268 F.R.D. 573, 581 (N.D. Ill. 2009); In re Urethane Antitrust Litig., 251 F.R.D. 629, 634 (D. Kan. 2008); Foundry Resins, 242 F.R.D. at 408.
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predominates over any individual issues and strongly support provisional certification of the
proposed Settlement Classes.
ii. A Class Action Is the Superior Method to Adjudicate These Claims.
Rule 23(b)(3) also requires that a class action be superior to other available methods of
fairly adjudicating the controversy. The superiority of class certification over other available
methods is measured by consideration of certain factors, including: the class members’ interests
in controlling the prosecution of individual actions; the extent and nature of any litigation
concerning the controversy already begun by or against class members; the desirability of
concentrating the litigation of various claims in the particular forum; and the likely difficulties in
managing a class action. Dillworth v. Case Farms Processing, Inc., No. 5:08-cv-1694, 2010
U.S. Dist. LEXIS 20446 (N.D. Ohio Mar. 8, 2010).
Courts consistently hold that class actions are a superior method of resolving antitrust
claims like those alleged here. See In re Universal Serv. Fund Tel. Billing Practices Litig., 219
F.R.D. 661, 678 (D. Kan. 2004) (noting that individual litigation of antitrust claims would be
“grossly inefficient, costly, and time consuming”). Here, the interests of the members of the
Settlement Classes in individually controlling the prosecution of separate claims are outweighed
by the efficiency of the class mechanism. Cardizem, 200 F.R.D. at 325-26 (finding that class
action is superior because it ensures fair and efficient adjudication). Thousands of Truck and
Equipment dealerships purchased vehicles containing Bearings during the settlement class
periods; resolving these claims in the context of a class action would conserve both judicial and
private resources and would hasten the class members’ recovery. See, e.g., In re Foundry
Resins, 242 F.R.D. at 411-12 (“Repeatedly litigating the same issues in individual suits would
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produce duplicate efforts, unnecessarily increase litigation costs, impose an unwarranted burden
on this Court and other courts, and create a risk of inconsistent results”).5
C. The Proposed Settlement Classes Meet the Requirements of Rule 23(b)(2).
If the requirements of Rule 23(a) are met, the Court may also certify a class under Rule
23(b)(2) where “the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole . . . .” Claims for non-monetary relief, like those
asserted under state laws that do not recognize claims for money damages by indirect purchaser
in antitrust actions, are properly certified under Rule 23(b)(2).
III. The Court Should Approve the Form and Manner of Notice to the Members of the TED Settlement Classes.
Fed. R. Civ. P. 23(e)(1) provides that “[t]he court must direct notice in a reasonable
manner to all class members who would be bound by the [proposed settlement].” For
Rule 23(b)(3) actions, “the court must direct to class members the best notice that is practicable
under the circumstances, including individual notice to all members who can be identified
through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B).
IV. Notice Standards and Requirements.
The purpose of notice in a class action is to “afford members of the class due process
which, in the context of the Rule 23(b)(3) class action, guarantees them the opportunity to be
excluded from the class action and not be bound by any subsequent judgment.” Peters v. Nat’l
5 Another criterion of Rule 23(b)(3) is manageability. The Supreme Court has made clear that manageability need not be considered where, as here, a class is being certified for settlement purposes. Amchem, 521 U.S. at 620 (“Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, see Fed. R. Civ. P. 23(b)(3)(D), for the proposal is that there be no trial”).
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R.R. Passenger Corp., 966 F.2d 1483, 1486 (D.C. Cir. 1992) (citing Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 173-74 (1974)). 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).
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. See Fidel v. Farley, 534 F.3d 508, 514 (6th Cir.
2008); In re Domestic Air Transp. Antitrust Litig., 141 F.R.D. 534, 548-53 (N.D. Ga. 1992);
MANUAL FOR COMPLEX LITIGATION (Fourth) § 21.311, 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 due
process 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).
Where names and addresses of known or potential class members are reasonably
available, direct-mail notice should be provided. See, e.g., Eisen, 417 U.S. at 175-76; MANUAL,
§ 21.311, at 292. If the names and addresses of class members cannot be determined by
reasonable efforts, notice by publication is sufficient to satisfy the requirements of the Due
Process Clause and Rule 23. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 317-18
(1950); Carlough v. Amchem Prods., 158 F.R.D. 314, 325 (E.D. Pa. 1993).
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Due process is satisfied even if all class members do not receive actual notice, as long as
the plan was reasonably likely to inform the persons affected. See, e.g., Weigner v. The City of
New York, 852 F.2d 646, 649 (2d Cir. 1988). Whether a notice dissemination plan is reasonable
is a function of the plan’s anticipated results. In re Domestic Air Transp., 141 F.R.D. at 539; see
also Berland v. Mack, 48 F.R.D. 121, 129-30 (S.D.N.Y. 1969).
V. The Proposed Manner of Notice Satisfies the Requirements of Fed. R. Civ. P. 23(c)(2)(B) and (e)(1).
TED Plaintiffs propose providing notice through several different channels. Individual
notice (the “Mailing Notice,” Exhibit 1 to the Proposed Order) will be mailed to the more than
50,000 known postal and email addresses associated with current and former dealerships in the
Included States. The Mailing Notice will direct recipients to a settlement website (“Settlement
Website”) for additional information. (See Ex. 1 to Proposed Order)
A summary notice (the “Publication Notice,” Exhibit 2 to the Proposed Order) will be
published in: (1) one insertion in The Wall Street Journal, (2) one insertion in Automotive News,
and (3) one insertion in World Truck Magazine. (Wickersham Decl.) The content of the
Publication Notice will be the same as the Mailing Notice and will direct readers to the
Settlement Website for further information. (Id.) A press release on a national newswire will be
issued, directing readers to the Settlement Website for additional information. (Id.)
The Settlement Website will provide the definitions of the Settlement Classes, a detailed
description of the Settlements, the Nachi Settlement Agreement, the NSK Settlement Agreement,
and the long-form Mailing Notice (Ex. 1 to Proposed Order) that describes the options for
participating in, seeking exclusion from, or objecting to the Settlements. The Settlement Website
will also display, as the relevant information becomes available: (1) information about the
proposed methods for allocating the settlement funds (the “Plan of Allocation”); (2) deadlines
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and Proof of Claim forms; (3) relevant court documents and filings; and (4) updates on the status
of Court approval. The notices and the Settlement Website will also provide a toll-free telephone
number that can be called for assistance or more information. (See Exs. 1 & 2 to Proposed
Order).
To further supplement the Mailing and Publication notices, online notice efforts will also
be used. For example, the address of the Settlement Website will run in National Trailer Dealers
Association E-newsletter and American Truck Dealers Insider E-newsletter (Wickersham Decl.).
The methods of notice proposed here are the best available under the circumstances. The
proposed methods are well-designed to reach potential Settlement Class members and to comply
with due process. Nearly all potential Settlement Class members in the Included States will
receive direct, mailed notice. The substantial “reach” for these potential class members clearly
satisfies due process requirements. See, e.g., Larson v. Sprint Nextel Corp., No. 07-5325, 2009
WL 1228443, at *11 (D. N.J. April 30, 2009). The “reach” of the notice proposed here far
exceeds notice reach approved in other cases. Id. at *12 (“No case stands for the proposition that
a publication notice reach of 49-53 percent is disallowed.”). The Court has previously approved
of the plan in this case and similar plans in the Wire Harnesses and OSS cases with TED
Plaintiffs. (See Case No. 2:14-cv-13356-MOB-MKM, ECF Nos. 71, 72; see also Case No. 2:14-
cv-14451-MOB-MKM, ECF Nos. 119, 120). The Court should preliminarily approve the TED
Plaintiffs’ proposed notice plan and should allow the notice process to begin.
VI. The Proposed Form of Notice Satisfies the Requirements of Fed. R. Civ. P. 23(c)(2)(B) and (e)(1).
The content of a class action settlement notice “must clearly and concisely state in plain,
easily understood language” seven types of information: “(i) the nature of the action; (ii) the
definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member
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may enter an appearance through an attorney if the member so desires; (v) that the court will
exclude from the class any member who requests exclusion; (vi) the time and manner for
requesting exclusion; and (vii) the binding effect of a class judgment on members under
Rule 23(c)(3).” Fed. R. Civ. P. 23(c)(2)(B)(i)-(vii).
The long-form Mailing Notice and short-form Publication Notices are drafted in the
“plain language” format preferred by federal courts and provide the information required by
Rule 23. (See Wickersham Decl.) The notices were drafted with assistance from RG/2, an
experienced and well-regarded class action settlement administration firm. RG/2 believes that
these notices are understandable and compliant with due process. (Id.) The notices satisfy the
content requirements of Federal Rule of Civil Procedure 23. In re Prudential Ins. Co. of Am.
Sales Practices Litig., 962 F.Supp. 450, 496 (D.N.J. 1997); MANUAL at § 21.633.
At final approval, the TED Plaintiffs will show that the form and content of the notices,
together with the manners of dissemination, were reasonably calculated to reach the members of
the Settlement Classes and were the best form of notice available under the circumstances, in
satisfaction of federal law and due process.
VII. The Proposed Notices Provide Class Members with Sufficient Information about the Details of the Settlements.
The notice plan also provides potential members of the Settlement Classes with
information about the benefits available under the Settlements, their options, and the service
awards that may be requested at final approval.
Counsel for the TED Plaintiffs will seek reimbursement of certain of the litigation
expenses already incurred during the course of the litigation of the cases involved in the
Settlements. See, e.g., Fed. R. Civ. P. 23(h) (“In a certified class action, the court may award
reasonable attorneys’ fees and untaxable costs that are authorized by law or by the parties’
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agreement.”); In re Delphi Corp. Sec., Derivative & “ERISA” Litig., 248 F.R.D. 483, 504 (E.D.
Mich. 2008) (“Under the common fund doctrine, class counsel are entitled to reimbursement of
all reasonable out-of-pocket litigation expenses and costs in the prosecution of claims and in
obtaining settlement, including expenses incurred in connection with document production,
consulting with experts and consultants, travel and other litigation-related expenses.”) (citation
and internal quotation marks omitted).
The notice plan will also advise Settlement Class members that information about the
Plan of Allocation of the proceeds of the Settlements will be published on the Settlement
Website before the date that a decision about whether to participate in this Settlements must be
made. TED Plaintiffs do not yet ask the Court to approve the Plan of Allocation and the Court
may grant final approval before approving a plan of allocation. See, e.g., MANUAL § 21.312
(“Often . . . the . . . details of allocation and distribution are not established until after the
settlement is approved.”); In re Southeastern Milk Antitrust Litig., 2013 WL 2155379, at *3
(E.D. Tenn. May 17, 2013) (district court gave final approval to a settlement without a plan of
allocation, noting that “[o]nce the claim processing procedure is completed, plaintiffs will submit
a proposed plan of allocation of the settlement proceeds for the Court’s approval”); Packaged
Ice, 2011 WL 717519, at *2, *17 (E.D. Mich. Feb. 22, 2011) (“[c]lass Counsel explained at the
Fairness Hearing that the final plan of allocation was not included in the original Notice in part
because of the potential for additional settlements with other Defendants which may affect the
final plan of allocation,” and finally approving the settlements that were presented, retaining
jurisdiction to, among other things, “enter[] any Orders or conducting any hearings in connection
with any final plan of distribution or claims submission process . . . .”); see also In re “Agent
Orange” Prod. Liab. Litig., 818 F.2d 145, 170 (2d Cir. 1987) (“To impose an absolute
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requirement that a hearing on the fairness of a settlement follow adoption of a distribution plan
would immensely complicate settlement negotiations and might so overburden the parties and
the district court as to prevent either task from being accomplished.”); In re Washington Public
Power Supply Sys. Sec. Litig., [1989 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶94,326, at
92,143, 1988 WL 158947 (W.D. Wash. July 28, 1988) (“Such deferral 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.”). Information about how the settlement money will be allocated through
the Plan of Allocation will be published and submitted before the final approval hearing.
Class representatives are “an essential ingredient of any class action” and incentive
awards are appropriate to induce a business or consumer to participate in worthy class action
lawsuits. Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 2008). “Such “[i]ncentive awards
serve an important function, particularly where the named plaintiffs participated actively in the
litigation.” Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1218 (S.D. Fla. 2006)
(citing Denney v. Jenkens & Gilchrist, 230 F.R.D. 317, 2005 WL 388562, at *31 (S.D.N.Y. Feb.
18, 2005)).
The notice plan advises Settlement Class members that interim service awards will be
requested for the dealerships that have served as class representatives in these cases. These
dealerships have sustained a significant discovery burden during the course of this case, having
provided, through their common parent, significant document productions and a Rule 30(b)(6)
deposition. An award from the Court recognizing the class representatives’ efforts will be
appropriate. See In re Prandin Direct Purchaser Antitrust Litig., 2015 WL 1396473, at *5 (E.D.
Mich. Jan. 20, 2015) (in a $19 million settlement, award of $50,000 to each class representative);
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In re Skelaxin Antitrust Litig., No. 12–cv–83, 2014 WL 2946459 (E.D. Tenn. June 30, 2014)
(settlement of direct purchaser pharmaceutical antitrust action, awarding $50,000 to each class
representative); Connectivity Systems Inc. v. National City Bank, 2011 WL 292008, at *20 (S.D.
Ohio Jan. 26, 2011) (in $10 million settlement, awarding $50,000 each to three named plaintiffs);
Liberte Capital Group v. Capwill, 2007 WL 2492461, at *3 (N.D. Ohio Aug. 29, 2007)
(awarding $97,133.83 and $95,172.47 to two named plaintiffs representing subclasses that
received $11 million and $7 million); Hainey v. Parrott, No. 1:02–cv–733, 2007 WL 3308027
(S.D. Ohio Nov. 6, 2007) (approving service award of $50,000 for each class representative); In
re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 535-36 (E.D. Mich. 2003) (awarding $75,000
to each class representative); Brotherton v. Cleveland, 141 F. Supp. 2d 907, 913–14 (S.D. Ohio
2001) (granting a $50,000 service award out of a $5.25 million fund); In re Revco Sec. Litig.,
1992 WL 118800, *7 (N.D. Ohio May 6, 1992) ($200,000 incentive award to named plaintiff);
Enter. Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 251 (S.D. Ohio
1991) (approving service awards of $50,000 to six class representatives out of a settlement fund
of $56.6 million).
The notice plan also provides notice of counsel for the TED Plaintiffs’ intent to request
an interim award of attorneys’ fees and expenses as part of the final approval process. The Court
may award attorneys’ fees and expenses before the litigation is concluded. See In re Air Cargo
Shipping Serv. Litig., No. 06-md-1775 (JG) (VVP), 2011 WL 2909162, at *5-7 (E.D.N.Y. Jul.
15, 2011) (interim award granted); In re Sterling Foster & Company, Inc. Sec. Litig., 238 F.
Supp. 2d 480, 484-85, 489-90 (E.D.N.Y. 2002) (interim attorneys’ fees awarded). Counsel for
the TED Plaintiffs have litigated these cases for three years and will continue to vigorously
represent the interests of dealerships. See In re Diet Drugs Prod. Liab. Litig., 2002 WL
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32154197, at *12 (E.D. Pa. Oct. 3, 2002) (awarding an interim fee after four years of litigation
and noting “to make them wait any longer for at least some award would be grossly unfair”).
VIII. The Court Should Enter the Proposed Order, Which Schedules the Final Approval Hearing and Establishes Other Deadlines.
TED Plaintiffs respectfully request that the Court hold a single final approval hearing in
connection with the Settlements. At the hearing, the Court should consider whether the
Settlements are fair, reasonable, and adequate; whether to approve a request for interim
attorneys’ fees and reimbursement of litigation expenses; and whether to approve a request for
service awards for the named TED Plaintiffs.
The proposed order sets out the method and timing of requests for exclusion and for
submitting any objections to the Settlements. Other dates are also set out in the proposed order.
The TED Plaintiffs propose the following schedule:
Event Time for Compliance
Mailing and E-mailing Mailing Notice, Establishment of Settlement Website
30 days from Order allowing dissemination of notice
Commence Placement of Publication Notice
As soon as practicable from date of Order allowing dissemination of notice
Posting of information related to the Plan of Allocation on Settlement Website
August 14, 2017
Filing of Motion in Support of Request for Attorneys’ Fees, Reimbursement of Expenses, and Service Awards
August 14, 2017
Deadline for filing Opt-Outs or objections to Settlements August 23, 2017 Deadline for appearance of counsel regarding objections August 23, 2017 Deadline for counsel to file notice of intent to appear at Final Approval Hearing
August 23, 2017
Filing of Motion for Final Approval September 6, 2017
Final Approval Hearing September 13, 2017
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Event Time for Compliance
Proof of Claim deadline December 8, 2017
IX. The Court’s June 1, 2017 Order Granting Truck and Equipment Dealer Plaintiff’s Motion for Preliminary Approval of Proposed Settlement with SKF USA Inc., Provisional Certification of Settlement Classes, and Authorization of Dissemination of Class Notice Should be Revised.
TED Plaintiffs also move to revise the current schedule for Notice of Settlement and
Final Approval of TED Plaintiffs’ settlement with Defendant SKF USA Inc. (“SKF USA”) as set
forth in the Court’s June 1, 2017 Order Granting Truck and Equipment Dealer Plaintiff’s Motion
for Preliminary Approval of Proposed Settlement with SKF USA Inc., Provisional Certification
of Settlement Classes, and Authorization of Dissemination of Class Notice, Case No. 2:14-cv-
13356-MOB-MKM, ECF No. 75. TED Plaintiffs respectfully request that their settlements with
SKF USA, Nachi and NSK be tracked on the same schedule culminating in one Final Approval
hearing. As TED Plaintiffs have advised the Court, putting the final settlements in the Bearings
case all on the same schedule will save the class approximately $70,000 in notice of settlement
costs, as well as achieve various judicial efficiencies. See Case No. 2:14-cv-13356-MOB-MKM,
ECF No. 76; see also Wickersham Decl., ¶ 28.
The Court’s June 1, 2017 Order granting Preliminary Approval to TED Plaintiffs’
settlement with SKF USA set forth deadlines for various actions relating to the SKF USA
settlement, including deadlines for sending notice to settlement class members, filing a fee
petition, filing objections and opt-outs, and the date for the final approval hearing. See, e.g.,
Case No. 2:14-cv-13356-MOB-MKM, ECF No. 75. TED Plaintiffs respectfully ask that the
Court to modify the schedule previously approved by the Court for the SKF USA settlement to
align it with the schedule being proposed for the settlements with NSK and Nachi that are the
subject of the instant Motion. TED Plaintiffs make this request for a number of reasons.
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First, if TED Plaintiffs are able to combine the notice process for the SKF USA
settlement with the notice process for the settlements with NSK and Nachi, TED Plaintiffs will
save approximately $70,000 in notice/settlement administration costs. That sum represents a
substantial amount of money that can be paid to the settlement class, rather than to the settlement
administrator. TED Plaintiffs believe that this, standing alone, is a compelling reason for
granting the relief TED Plaintiffs seek. Moreover, the consolidation of the post-Preliminary
Approval schedules for these Settlements would have the added benefit of advancing judicial
efficiency because there would be one single consolidated Final Approval hearing for these
Settlements rather than two separate hearings. That not only unburdens the Court’s schedule by
adjourning the July 12, 2017 Final Approval hearing for SKF USA, but it also means that
counsel for the TED Plaintiffs, as well as SKF USA (and any other interested parties), would
need to travel to Detroit just one time, rather than two, for the Final Approval hearing, which will
result in less costs and legal fees for all parties concerned. It also means that there would be
common deadlines for objections and opt-outs for all of the settlements in question, rather than
two separate sets of deadlines, thus making the objection and opt-out process simpler for any
entity that might elect to participate in that. Consolidation of the schedule would also mean that
there would be a single motion for attorney’s fees relating to all of the settlements, rather than
two separate motions for attorney’s fees for counsel to prepare and for the court to consider and
decide.
Accordingly, TED Plaintiffs move to revise the Court’s June 1, 2017 Order Granting
Truck and Equipment Dealer Plaintiff’s Motion for Preliminary Approval of Proposed
Settlement with SKF USA Inc., Provisional Certification of Settlement Classes, and
Authorization of Dissemination of Class Notice so that the final settlements in the Bearings case
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are all on the same schedule. The relief TED Plaintiffs are seeking is reflected in the
accompanying Proposed Order.
CONCLUSION
For the foregoing reasons, TED Plaintiffs respectfully request that the Motion for
Preliminary Approval be granted and that the Court enter the accompanying Proposed Order:
1. Preliminarily approving the Nachi Settlement Agreement and NSK Settlement
Agreement;
2. Provisionally certifying the proposed Bearings Settlement Classes;
3. Staying the proceedings against Settling Defendants in accordance with the terms
of the respective Settlement Agreements;
4. Authorizing Settlement Class Counsel to provide notice of the Nachi Settlement
Agreement and NSK Settlement Agreement to members of the respective
Settlement Classes together with notice of the Settling Defendants’ settlement in
the form approved by the Court;
5. Appointing Interim Lead Class Counsel as the TED Plaintiffs as Settlement Class
Counsel for these Settlements; and
6. Revising the Court’s June 1, 2017 Order Granting Truck and Equipment Dealer Plaintiff’s Motion for Preliminary Approval of Proposed Settlement with SKF USA Inc., Provisional Certification of Settlement Classes, and Authorization of Dissemination of Class Notice, Case No. 2:14-cv-13356-MOB-MKM, ECF No. 75, so that the final settlements in the Bearings case are all on the same schedule.
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Respectfully submitted, Dated: June 19, 2017
/s/ J. Manly Parks Wayne A. Mack (PA Bar #46654) J. Manly Parks (PA Bar #74647) Sean P. McConnell (PA Bar #307740) Andrew R. Sperl (PA Bar #311467) Erica Lee Fruiterman (PA Bar #317289) William Shotzbarger (PA Bar #320490) DUANE MORRIS LLP 30 S. 17th Street Philadelphia, PA 19103 Phone: (215) 979-1000 Fax: (215) 979-1020 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]
Counsel for Truck and Equipment Dealer Plaintiffs
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DM1\7894880.1
CERTIFICATE OF SERVICE
I certify that today I served the Foregoing Truck and Equipment Dealer Plaintiffs’
Motion for Preliminary Approval of Proposed Settlements with Certain Defendants and
Provisional Certification of Settlement Classes, and Motion to Revise the SKF USA Inc. Notice
and Final Approval Schedule with the Clerk of the Court using the ECF system which will send
notification of such filing to all of the ECF participants in this action.
Dated: June 19, 2017 /s/ J. Manly Parks J. Manly Parks
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DM1\7895709.1
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
IN RE: AUTOMOTIVE PARTS ANTITRUST LITIGATION
Master File No. 12-md-02311 Hon. Marianne O. Battani
IN RE: BEARINGS
Case No. 2:14-cv-13356-MOB-MKM Case No. 2:14-cv-00507-MOB-MKM
THIS DOCUMENT RELATES TO TRUCK AND EQUIPMENT DEALER CASES
INDEX OF EXHIBITS TO
TRUCK AND EQUIPMENT DEALER PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENTS WITH CERTAIN DEFENDANTS,
FOR PROVISIONAL CERTIFICATION OF SETTLEMENT CLASSES, AND TO AUTHORIZE DISSEMINATION OF CLASS NOTICE, AND MOTION TO REVISE
THE SKF USA INC. NOTICE AND FINAL APPROVAL SCHEDULE
Exhibit Description
1 Settlement Agreement between Nachi-Fujikoshi Corporation and Nachi America Inc. and Truck and Equipment Dealer Plaintiffs
2 Settlement Agreement between NSK Ltd. and NSK Americas, Inc. and Truck and Equipment Dealer Plaintiffs
3 Declaration of William Wickersham
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EXHIBIT 1
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 1 of 40 Pg ID 3540
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
IN RE: AUTOMOTIVE PARTS ANTITRUST LITIGATION In re: Bearings Cases
Master File No. 12-md-02311 Hon. Marianne O. Battani
THIS DOCUMENT RELATES TO: Truck and Equipment Dealer Cases
2:12-cv-00500-MOB-MKM 2:14-cv-00507-MOB-MKM 2:14-cv-13356-MOB-MKM
SETTLEMENT AGREEMENT
This Settlement Agreement (“Agreement” or “Settlement”) is made and entered into
this 11th day of May, 2017 (“Execution Date”) by and between Nachi-Fujikoshi Corporation
and Nachi America Inc. (collectively, “Nachi”), and Truck and Equipment Dealer Class
Representatives (“Truck and Equipment Dealer Plaintiffs”), both individually and on behalf
of a class of Truck and Equipment dealership indirect purchasers of Bearings (“Settlement
Class”), as more particularly defined in Paragraph 15 below.
WHEREAS, Truck and Equipment Dealer Plaintiffs are prosecuting the above In Re
Automotive Parts Antitrust Litigation, Master File No. 12-md-02311 (E.D. Mich.) (“MDL
Litigation”), which includes Case No. 2:14-cv-00507-MOB-MKM and Case No. 2:14-cv-
13356-MOB-MKM (also known as Rush Truck Centers of Alabama, Inc., et al. v. JTEKT
Corp., et al.,) (collectively, the “Action”) on their own behalf and on behalf of the
Settlement Class against, among others, Nachi;
WHEREAS, Truck and Equipment Dealer Plaintiffs allege that they were injured as a
result of Nachi’s alleged participation in an unlawful conspiracy to raise, fix, maintain
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2
and/or stabilize prices, rig bids, and allocate markets and customers for Bearings (as defined
below) in violation of Section 1 of the Sherman Act and various state antitrust, unfair
competition, unjust enrichment, and consumer protection laws as set forth in Truck and
Equipment Dealer Plaintiffs’ First Amended Class Action Complaint in the Action
(“Complaint”);
WHEREAS, Nachi denies Truck and Equipment Dealer Plaintiffs’ allegations and
has asserted defenses to Truck and Equipment Dealer Plaintiffs’ claims in the Action;
WHEREAS, arm’s-length settlement negotiations have taken place between
Settlement Class Counsel (as defined below) and counsel for Nachi, and this Agreement has
been reached as a result of those negotiations;
WHEREAS, Truck and Equipment Dealer Plaintiffs, through their counsel, have
conducted an investigation into the facts and the law regarding the Action and have
concluded that resolving the claims asserted in this Action against Nachi, according to the
terms set forth below, is in the best interest of Truck and Equipment Dealer Plaintiffs and the
Settlement Class in light of the risks and expense of further litigation and because of the
payment of the Settlement Amount and the value of the Cooperation (as those terms are
defined below) that Nachi has agreed to provide pursuant to this Agreement;
WHEREAS, the Action will continue against Defendants (as defined below) that are
not Releasees (as defined below);
WHEREAS, Nachi, despite its belief that it is not liable for the claims asserted and
its belief that it has meritorious defenses thereto, has nevertheless agreed to enter into this
Agreement to avoid further expense, inconvenience, and the distraction of burdensome and
protracted litigation, and to obtain the releases, orders, and judgment contemplated by this
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3
Agreement, and to put to rest with finality all claims that have been or could have been
asserted against Nachi with respect to Bearings based on the allegations in the Action, as
more particularly set out below;
WHEREAS, Nachi has agreed to provide Cooperation to Truck and Equipment
Dealer Plaintiffs in the ongoing prosecution of the Action as set forth in this Agreement, and
such Cooperation will reduce Truck and Equipment Dealer Plaintiffs’ substantial burden and
expense associated with prosecuting the Action; and
WHEREAS, Truck and Equipment Dealer Plaintiffs recognize the benefits of Nachi’s
Cooperation and recognize that because of joint and several liability, this Agreement with
Nachi does not impair Truck and Equipment Dealer Plaintiffs’ ability to collect the full
amount of damages to which they and the Settlement Class may be entitled in the Action,
including any damages attributable to Nachi’s alleged conduct:
NOW, THEREFORE, in consideration of the covenants, agreements, and releases set
forth herein and for other good and valuable consideration, it is agreed by and among Nachi
and Truck and Equipment Dealer Plaintiffs, acting through their respective undersigned,
duly authorized counsel of record, that the Action and claims against Nachi and the other the
Releasees (as defined below) be settled, compromised, and dismissed on the merits with
prejudice as to Nachi and the other Releasees and except as hereinafter provided, without
costs as to Truck and Equipment Dealer Plaintiffs, the Settlement Class, or Nachi, subject to
the approval of the Court, on the following terms and conditions:
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A. Definitions.
1. “Automobile Dealership Settlement Class Counsel” shall refer to the law firms
identified as settlement class counsel in any settlement agreement between Nachi and settlement
class members in the Automobile Dealership case, Case No. 2:12-cv-00502-MOB-MKM.
2. “Bearings” shall have the same meaning as set forth in the operative Complaint at
the time this Agreement is executed.
3. “Cooperation” shall refer to those provisions set forth below in Section F,
Paragraphs 39-47.
4. “Cooperation Materials” means any information (including information from
attorney consultations and proffers and witness interviews), testimony, Documents (as defined
below) or other material provided by Nachi under the terms of this Agreement.
5. “Defendant” means any party named as a defendant in the Action at any time up
to and including the date when the Court has entered a final order certifying the Settlement Class
described in Paragraph 15, below and approving this Agreement under Federal Rule of Civil
Procedure 23(e).
6. “Document” is defined to be synonymous in meaning and equal in scope to the
usage of this term in Rule 34(a) of the Federal Rules of Civil Procedure, including, without
limitation, electronically stored information. A draft or non-identical copy is a separate
document within the meaning of this term.
7. “End Payor Settlement Class Counsel” shall refer to the law firms identified as
settlement class counsel in any settlement agreement between Nachi and settlement class
members in the End Payor case, Case No. 2:12-cv-00503-MOB-MKM.
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5
8. “Execution Date” means the date on which this Agreement has been fully signed
and executed on behalf of both Truck and Equipment Dealer Plaintiffs and Nachi and the last
signature to the Agreement has been delivered.
9. “Indirect Purchaser States” means Arizona, Arkansas, California, District of
Columbia, Florida, Hawaii, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota,
Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, New York, North
Carolina, North Dakota, Oregon, South Carolina, South Dakota, Tennessee, Utah, Vermont,
West Virginia, and Wisconsin.
10. “Opt-Out Deadline” means the deadline set by the Court for the timely
submission of requests by members of the Settlement Class to be excluded from the Settlement
Class and this Settlement.
11. “Released Claims” shall refer to the claims described in Paragraph 28 and
Paragraph 29, below.
12. “Releasees” shall refer to Nachi and to all of its respective past and present, direct
and indirect, parents, subsidiaries, associates, partnerships, and affiliates, including, but not
limited to, Nachi-Fujikoshi Corporation, Nachi America Inc., Nachi Technology, Inc., and Nachi
Europe GMBH; to the predecessors, successors, and assigns of each of the above; and to each
and all of the present and former principals, partners, officers, directors, supervisors, employees,
agents, stockholders, members, representatives, insurers, attorneys, heirs, executors,
administrators, and assigns of each of the foregoing. “Releasees” does not include any defendant
in the MDL Litigation other than Nachi and the other Releasees.
13. “Releasors” shall refer to Truck and Equipment Dealer Class Representatives and
Settlement Class Members, as defined in Paragraph 17, below, and to their respective past and
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6
present officers, directors, supervisors, employees, agents, stockholders, members, attorneys,
servants, representatives, parents, subsidiaries, affiliates, principals, partners, insurers, and all
other persons, partnerships or corporations with whom any of the former have been, or are now,
affiliated, and the predecessors, successors, heirs, executors, administrators and assigns of any of
the foregoing, and any other claimant to the extent that he, she or it seeks now or in the future to
assert, on their behalf or on behalf or for the benefit of one or more Releasors, claims for relief
against any Releasee where such claims arise out of, or are based in fact or in law on, in whole or
in part, the Released Claims (as defined above).
14. “Settlement Amount” shall be US $475,000.
15. “Settlement Class” shall mean all present and former Truck and/or Equipment
dealers that, during the period January 1, 2000, through the Execution Date, inclusive, indirectly
purchased Bearings manufactured or sold by a Defendant or any current or former subsidiary or
affiliate thereof, or any alleged co-conspirator of a Defendant; or purchased new Trucks and/or
Equipment containing Bearings manufactured or sold by a Defendant or any current or former
subsidiary, affiliate or alleged co-conspirator of a Defendant.
16. “Settlement Class Counsel” shall refer to the law firm of:
Duane Morris LLP 30 South 17th Street Philadelphia, PA 19103
17. “Settlement Class Member” means each member of the Settlement Class who has
not timely elected to be excluded from the Settlement Class.
18. “Settlement Fund” shall be the Settlement Amount plus any income or accrued
interest earned on that amount.
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19. “Trucks and/or Equipment” means heavy-duty (Class 8) trucks, medium-duty
(Class 4, 5, 6 & 7) trucks, buses, commercial vehicles, construction equipment, mining
equipment, agricultural equipment, railway vehicles, and other similar vehicles.
20. “Truck and Equipment Dealer Class Representatives” means those Settlement
Class Members, as defined in Paragraph 17, above, who are named plaintiffs in the Complaint.
B. Approval of this Agreement and Dismissal of Claims Against Nachi.
21. On the Execution Date, Truck and Equipment Dealer Plaintiffs and Nachi shall be
bound by its terms, and this Agreement shall not be rescinded except in accordance with
Paragraph 33(e) and Paragraph 48 of this Agreement. Except as provided in this Paragraph,
Nachi, Truck and Equipment Dealer Plaintiffs, and Settlement Class Counsel agree not to
disclose publicly or to any other person or entity the fact of or terms of this Agreement until this
Agreement is submitted to the Court for preliminary approval as set forth in Paragraph 23.
(a) Nachi and Truck and Equipment Dealer Plaintiffs may disclose the
Agreement itself and the terms and conditions thereof: (i) to persons for whom such
information is necessary to effectuate the provisions of the Agreement (and who shall
be advised of its confidentiality and be requested to agree to this provision); (ii) to
those employees and outside professional advisors (e.g., accountants, lawyers, tax
advisors, etc.) who need to be aware of this Agreement or its terms in the ordinary
course of business to perform their duties and to properly advise Nachi and Truck and
Equipment Dealer Plaintiffs; (iii) to the extent such disclosure is required for
enforcement of this Agreement; (iv) for the preparation of financial records (e.g., tax
returns, financial statements, etc.); (v) as required by law for the purpose of financial
reporting (e.g., securities notices, filings, and/or disclosures, etc.); or (vi) as
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otherwise required by law, including, for example, compliance with legally
authorized discovery procedures.
(b) Nachi may disclose the fact that it has settled with Truck and Equipment
Dealer Plaintiffs, without disclosing the settlement terms, to counsel for other Defendants
in the Action.
22. Truck and Equipment Dealer Plaintiffs and Nachi shall use their best efforts to
effectuate this Agreement, including cooperating in seeking the Court’s approval for the
establishment of procedures (including the giving of class notice under Federal Rules of Civil
Procedure 23(c) and (e)) to secure the complete release of the Releasees, and final dismissal with
prejudice of the Action as to Nachi and the other Releasees only. Notwithstanding anything to
the contrary contained in this Agreement, if, prior to the issuance of notice to the Settlement
Class of this Settlement, (a) the operative Complaint at the time of this Agreement is amended to
allege additional or broader claims, a larger class, or a longer alleged conspiracy period, or
(b) Truck and Equipment Dealer Plaintiffs and another Defendant enter into a settlement
agreement that provides for a larger settlement class or a broader release than set forth in this
Agreement, then the Settlement Class definition in this Agreement shall be immediately
modified to reflect any larger settlement class in the subsequent settlement and the release
contained herein shall be modified to give effect to any broader release in the subsequent
settlement, preserving any other material terms of the existing release.
23. Truck and Equipment Dealer Plaintiffs shall, within forty-five (45) days after the
Execution Date, submit to the Court a motion seeking preliminary approval of this Agreement
(“Preliminary Approval Motion”). The Preliminary Approval Motion shall include (i) the
proposed form of an order preliminarily approving this Agreement, as set forth below, and (ii) a
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proposed form of order and final judgment that shall include at least the terms set forth in
Paragraph 25, below. The text of these proposed orders shall be agreed upon by Truck and
Equipment Dealer Plaintiffs and Nachi before submission of the Preliminary Approval Motion.
Nachi shall have reasonable notice of and opportunity to review and comment on the Preliminary
Approval Motion, and Truck and Equipment Dealer Plaintiffs shall reasonably consider Nachi’s
comments. Truck and Equipment Dealer Plaintiffs shall not initiate any discovery against Nachi
or the other Releasees pending issuance of an order preliminarily approving this Agreement. The
terms of the proposed order preliminarily approving this Agreement will include, at a minimum,
the substance of the following provisions:
(a) preliminarily approving this Agreement as being fair, reasonable, and
adequate to the Settlement Class;
(b) preliminarily certifying the Settlement Class as meeting the standard
for a settlement class under Rule 23;
(c) appointing the law firm identified in Paragraph 16 of this Agreement
as Settlement Class Counsel;
(d) appointing Truck and Equipment Dealer Plaintiffs as class
representatives of the Settlement Class;
(e) directing that notice be given to the members of the Settlement Class
at a time and in a manner consistent with the terms of this Agreement;
(f) approving establishment of the Settlement Fund as defined in
Paragraph 18;
(g) providing that the Court’s preliminary approval of this Agreement and
preliminary certification of the Settlement Class will have no effect on the rights of
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any Defendant, including Nachi, to contest the certification of any other proposed
classes in the MDL Litigation; and
(h) staying the Action against Nachi and the other Releasees for all
purposes except those necessary to effectuate this Agreement.
24. After notice to Nachi, Truck and Equipment Dealer Plaintiffs shall submit to the
Court a motion for authorization to disseminate notice of the settlement and final judgment
contemplated by this Agreement to all members of the Settlement Class identified by Truck and
Equipment Dealer Plaintiffs (“Notice Motion”). In order to mitigate the costs of notice, the
Truck and Equipment Dealer Plaintiffs shall endeavor, to the fullest extent possible, to
disseminate a combined notice to the members of the Settlement class of this Settlement with any
other settlements that have been reached in the MDL Litigation and have been memorialized in a
written, fully executed settlement agreement at the time the Notice Motion is filed. The Notice
Motion shall include a proposed form of, method for, and date of dissemination of notice. Truck
and Equipment Dealer Plaintiffs shall provide Nachi with at least five (5) business days in which
to review and comment on the Notice Motion and proposed notice, and Truck and Equipment
Dealers shall reasonably consider Nachi’s comments before submission of the Notice Motion.
The proposed form of and method for dissemination of notice shall be similar to the form and
method of dissemination of notice approved by the Court for settlements between the Truck and
Equipment Dealer Plaintiffs and other Defendants in the Action.
25. Truck and Equipment Dealer Plaintiffs shall seek, and Nachi will not object
unreasonably to, the entry of an order and final judgment by the Court in the Action, the text of
which Truck and Equipment Dealer Plaintiffs and Nachi shall agree upon in advance. The terms
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of that proposed order and final judgment will include, at a minimum, the substance of the
following provisions:
(a) certifying the Settlement Class described in Paragraph 15, pursuant to
Rule 23 of the Federal Rules of Civil Procedure, solely for purposes of this Settlement as
a settlement class for the Action;
(b) as to the Action, approving finally this Settlement and its terms as being a
fair, reasonable and adequate settlement as to the Settlement Class Members within the
meaning of Rule 23 of the Federal Rules of Civil Procedure and directing its
consummation according to its terms;
(c) directing that all Releasors shall, by operation of law, be deemed to have
released all Releasees from the Released Claims, as described in Paragraph 28 and
Paragraph 29.
(d) as to Nachi, directing that the Action, including the claims of Settlement
Class Members, be dismissed with prejudice and, except as provided for in this
Agreement, without costs;
(e) reserving exclusive jurisdiction over the Settlement and this Agreement,
including the interpretation, administration and consummation of this Settlement, as well
as over Truck and Equipment Dealer Plaintiffs and Nachi, for the duration of Nachi’s
provision of Cooperation pursuant to this Agreement, to the United States District Court
for the Eastern District of Michigan;
(f) determining under Federal Rule of Civil Procedure 54(b) that there is no
just reason for delay and directing that the judgment of dismissal in the Action as to
Nachi shall be final;
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(g) providing that (i) the Court’s certification of the Settlement Class is
without prejudice to, or waiver of, the rights of any Defendant, including Nachi, to
contest certification of any other class proposed in the MDL Litigation, (ii) the Court’s
findings in this order shall have no effect on the Court’s ruling on any motion to certify
any class in the MDL Litigation or on the Court’s rulings concerning any party’s motion;
and (iii) no party may cite or refer to the Court’s approval of the Settlement Class as
persuasive or binding authority with respect to any motion to certify any such class or any
party’s motion; and
(h) enjoining all Settlement Class Members and the other Releasors, and their
counsel, from asserting or prosecuting any claim or action against Nachi or the other
Releasees that are released by this Agreement.
26. This Agreement shall become final and be deemed to have received “Final Court
Approval” within the meaning of this Agreement when (a) the Court has entered a final order in
the Action that is consistent with the requirements of Paragraph 25 above, including certifying
the Settlement Class described in Paragraph 15 above and approving this Agreement under
Federal Rule of Civil Procedure 23(e) and has entered a final judgment dismissing the Action
with prejudice as to Nachi and without costs to it other than those provided for in this
Agreement; and (b) the time for appeal or to seek permission to appeal from the Court’s approval
of this Agreement and entry of a final order and judgment as to Nachi described in (a) hereof has
expired and no motion or other pleading has been filed with the Court (or with any other court)
seeking to set aside, enjoin, or in any way alter the judgment or final approval order in the Action
or to toll the time for appeal of the judgment in the Action or, if appealed, approval of this
Agreement and the final judgment in the Action as to Nachi have been affirmed in their entirety
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by the Court of last resort to which such appeal has been taken and such affirmance has become
no longer subject to further appeal or review. It is agreed that the provisions of Rule 60 of the
Federal Rules of Civil Procedure shall not be taken into account in determining the above-stated
times.
27. Notwithstanding any other provision of this Agreement, the parties and their
counsel agree that this Agreement and any and all of its terms and provisions, and any and all
negotiations, Documents, and discussions associated with them, and any other statements made
by counsel for Nachi in connection with or as part of this Settlement shall be governed by
Federal Rule of Evidence 408 and deemed privileged and confidential. Neither this Agreement
(whether or not it should become final) nor the final judgment, nor any and all negotiations,
documents, and discussions associated with them (including Cooperation Materials provided
pursuant to Paragraphs 41-46), shall be deemed or construed to be an admission by Nachi or the
other Releasees, or evidence of any violation of any statute or law or of any liability or
wrongdoing whatsoever by Nachi or the other Releasees, or of the truth of any of the claims or
allegations contained in any complaint or any other pleading filed in the MDL Litigation, to be
used against Nachi or the other Releasees in any action or proceeding, and evidence thereof shall
not be discoverable or used in any way, directly or indirectly, whether in the MDL Litigation, or
in any other action, arbitration, or proceeding whatsoever against Nachi or the other Releasees.
Neither this Agreement, nor any of its terms and provisions, nor any of the negotiations or
proceedings connected with it, nor any other action taken to carry out this Agreement by Nachi,
shall be referred to, offered as evidence or received in evidence in any pending or future civil,
criminal, or administrative action, arbitration, or proceedings, except in a proceeding to enforce
this Agreement, or to defend against the assertion of Released Claims, or as otherwise required
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by law. Nothing in this Paragraph shall be construed to limit the use of this Agreement to
enforce its terms or to prevent Truck and Equipment Dealer Plaintiffs from using and/or
introducing into evidence the information, Documents, transactional data, or testimony provided
pursuant to Paragraphs 41-46 against any other defendants in the MDL Litigation, subject to the
limitations in those Paragraphs and the remainder of Section F, and subject to the terms and
conditions set forth in the Stipulation and Protective Order Governing Production and Exchange
of Confidential Information, ECF No. 200, Case No. 2:12-md-02311-MOB-MKM (filed
July 10, 2012), entered by the Court in the MDL Litigation (“MDL Protective Order”), and the
Stipulation and Protective Order Governing the Production and Exchange of Confidential
Information, ECF No. 85, Case No. 2:12-cv-00500-MOB-MKM, entered by the Court in the
Action (“Protective Order,” together with the MDL Protective Order, the “Protective Orders”).
C. Release, Discharge, and Covenant Not to Sue.
28. In addition to the effect of any final judgment entered in accordance with this
Agreement, upon Final Court Approval of this Agreement, as set out in Paragraph 26 of this
Agreement, and in consideration of payment of the Settlement Amount, as specified in
Paragraph 30 of this Agreement, into the Settlement Fund, the Cooperation provided pursuant to
Paragraphs 41-46, and for other valuable consideration, the Releasees shall be completely
released, acquitted, and forever discharged from any and all claims, demands, actions, suits, and
causes of action, whether class, individual, representative, or otherwise in nature (whether or not
any Settlement Class Member has objected to the Settlement or makes a claim upon or
participates in the Settlement Fund, whether directly, representatively, derivatively, or in any
other capacity), under any federal, state, or local law of any jurisdiction in the United States, or
under the law of any foreign jurisdiction, that Releasors, or each of them, ever had, now has, or
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hereafter can, shall, or may ever have, that now exist or may exist in the future, on account of, or
in any way arising out of, any and all known and unknown, foreseen and unforeseen, suspected
or unsuspected, actual or contingent, liquidated or unliquidated claims, injuries, damages, and the
consequences thereof in any way arising out of or relating in any way to any conduct alleged in
the Complaint or any act or omission of the Releasees (or any combination thereof), concerning
Bearings, including, but not limited to, any conduct and causes of action alleged or asserted, or
that could have been alleged or asserted, in any class action or other complaints filed in the
Action (“Released Claims”), provided however, that nothing herein shall release: (a) any claims
made by direct purchasers of Bearings based solely on such direct purchases; (b) any claims
made by Settlement Class Members in the End-Payor case, Case No. 2:12-cv-00503-MOB-
MKM, as that term is defined in the Settlement Agreement between Nachi and End-Payor
Plaintiffs in that case; (c) any claims made by Settlement Class Members in the Automobile
Dealership case, Case No. 2:12-cv-00502-MOB-MKM, as that term is defined in the Settlement
Agreement between Nachi and Automobile Dealership Plaintiffs in that case; (d) any claims
made by any state, state agency, or instrumentality or political subdivision of a state as to
government purchases and/or penalties relating to Bearings; (e) claims based on negligence,
personal injury, breach of contract, bailment, failure to deliver lost goods, damaged or delayed
goods, product defect, warranty, securities or similar claim relating to Bearings; (f) claims
concerning any vehicle part other than Bearings; and (g) claims under laws other than those of
the United States and the states thereof relating to purchases of Bearings made outside of the
United States and the states thereof. Releasors shall not, after the date of this Agreement, seek to
establish liability against any Releasee based, in whole or in part, upon any of the Released
Claims or conduct at issue in the Released Claims.
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29. In addition to the provisions of Paragraph 28 of this Agreement, Releasors hereby
expressly waive and release, upon Final Court Approval of this Agreement, as set out in
Paragraph 26 of this Agreement, any and all provisions, rights, and benefits, as to their claims
concerning Bearings, conferred by Section 1542 of the California Civil Code, which states:
CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR;
or by any law of any state or territory of the United States, or principle of common law, which
is similar, comparable, or equivalent to Section 1542 of the California Civil Code. Each
Releasor may hereafter discover facts other than or different from those which he, she, or it
knows or believes to be true with respect to the claims that are released pursuant to the
provisions of Paragraph 28 of this Agreement, but each Releasor hereby expressly waives and
fully, finally, and forever settles and releases, upon this Agreement becoming final, any
known or unknown, suspected or unsuspected, contingent or non-contingent claim that Nachi
and Truck and Equipment Dealer Plaintiffs have agreed to release pursuant to Paragraph 28,
whether or not concealed or hidden, without regard to the subsequent discovery or existence
of such different or additional facts.
D. Settlement Amount.
30. Subject to the provisions hereof, and in full, complete and final settlement of the
Action as provided herein, Nachi shall pay the Settlement Amount of US $475,000. Nachi shall
transfer the Settlement Amount to the Settlement Fund by wiring such funds to an escrow
account to be administered in accordance with the provisions of Paragraph 32 of this Agreement
(“Escrow Account”) within thirty (30) days following the date (a) the Court enters an order
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preliminarily approving this Settlement as set forth in Paragraph 23, or (b) Nachi is provided
with the account number, account name, and wiring transfer information for the Escrow
Account, whichever is later. No part of the Settlement Amount paid by Nachi shall constitute,
nor shall it be construed or treated as constituting, a payment for treble damages, fines, penalties,
forfeitures or punitive recoveries.
31. Settlement Class Counsel shall allocate the Settlement Amount among the
Settlement Class Members subject to approval by the Court after notice to the Settlement Class
as directed by the Court, less any court-approved reimbursements for costs and expenses, any
attorneys’ fee award, and any other awards, reimbursements, and expenditures approved by the
Court.
32. Escrow Account.
(a) The Escrow Account will be established at U.S. Bank with such Bank
serving as escrow agent (“Escrow Agent”) subject to escrow instructions mutually
acceptable to Settlement Class Counsel and Nachi, such escrow to be administered by the
Escrow Agent under the Court’s continuing supervision and control.
(b) The Escrow Agent shall cause the Settlement Amount deposited in the
Escrow Account and the resulting Settlement Fund to be held in cash or invested in
short-term instruments backed by the full faith and credit of the United States
Government or fully insured in writing by the United States Government, or money
market funds rated Aaa and AAA, respectively, by Moody’s Investor Services and
Standard and Poor’s, invested substantially in such instruments, and shall reinvest any
income from these instruments and the proceeds of these instruments as they mature in
similar instruments at their then-current market rates.
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(c) All funds held in the Escrow Account shall be deemed and considered to
be in custodia legis of the Court, and shall remain subject to the jurisdiction of the Court,
until such time as such funds shall be distributed pursuant to this Agreement and/or
further order(s) of the Court. Nachi shall bear no risk related to the funds in the Escrow
Account.
(d) The Settlement Fund is, and shall be operated in a manner so that it
qualifies as, a qualified settlement fund under Section 468B of the Internal Revenue
Code, as amended (“Code”), and Treas. Reg. § 1.468B-1, et seq. Truck and Equipment
Dealer Plaintiffs and Nachi agree to treat the Settlement Fund as being at all times a
Qualified Settlement Fund within the meaning of Treas. Reg. § 1.468B-1. In addition,
Settlement Class Counsel and the Escrow Agent shall timely take such actions as are
necessary to create and maintain the Settlement Fund’s status as a qualified settlement
fund, and shall timely make such elections as are necessary or advisable to carry out the
provisions of this Paragraph 32, including the relation-back election (as defined in Treas.
Reg. § 1.468B-1) back to the earliest permitted date. Such elections shall be made in
compliance with the procedures and requirements contained in such regulations. It shall
be the responsibility of Settlement Class Counsel and the Escrow Agent to timely and
properly prepare and deliver the necessary documentation for signature by all necessary
parties, and thereafter to cause the appropriate filing to occur.
(e) For the purpose of Section 468B of the Code, and the regulations
promulgated thereunder, the administrator shall be Settlement Class Counsel and the
Escrow Agent. Settlement Class Counsel shall be responsible for the timely and proper
performance of the undertakings specified in the regulations promulgated under
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Section 468B, including, but not limited to, filing all information and other tax returns
necessary or advisable with respect to the Settlement Fund (including without limitation
the information and tax returns described in Treas. Reg. §§ 1.468B-2(k)-(l)). Such
returns (as well as the election described in Paragraph 32(d)) shall be consistent with the
provisions of Paragraph 32(d) and in all events shall reflect that all Taxes, as defined
below (including any estimated Taxes, interest or penalties), on the income earned by the
Settlement Fund shall be paid out of the Settlement Fund as provided in Paragraph 32(f)
hereof.
(f) All (i) taxes (including any estimated taxes, interest or penalties) arising
with respect to the income earned by the Settlement Fund, including any taxes or tax
detriments that may be imposed upon Nachi or any other Releasee with respect to any
income earned by the Settlement Fund for any period during which the Settlement Fund
does not qualify as a Qualified Settlement Fund for federal or state income tax purposes
(“Taxes”); and (ii) expenses and costs incurred in connection with the operation and
implementation of Paragraphs 32(d) through 32(f) (including, without limitation,
expenses of tax attorneys and/or accountants and mailing and distribution costs and
expenses relating to filing (or failing to file) the returns described in Paragraph 32(e))
(“Tax Expenses”), shall be paid out of the Settlement Fund.
(g) Neither Nachi nor any other Releasee nor their respective counsel shall
have any liability or responsibility for Taxes or Tax Expenses. Further, Nachi and the
other Releasees and their respective counsel shall be indemnified and held harmless for
such amounts (including taxes payable by reason of such indemnification) by the Escrow
Agent and Settlement Class Counsel. Taxes and Tax Expenses shall be treated as, and
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considered to be, a cost of administration of the Settlement Fund and shall be timely paid
by the Escrow Agent out of the Settlement Fund without prior order from the Court and
the Escrow Agent shall be obligated (notwithstanding anything herein to the contrary) to
withhold from distribution to any claimants authorized by the Court any funds necessary
to pay such amounts including the establishment of adequate reserves for any Taxes and
Tax Expenses (as well as any amounts that may be required to be withheld under Treas.
Reg. § 1.468B-2(1)(2)). Neither Nachi nor any other Releasee shall be responsible or
have any liability therefor or for any reporting requirements that may relate thereto.
Truck and Equipment Dealer Plaintiffs and Nachi agree to cooperate with the Escrow
Agent, each other, and their tax attorneys and accountants to the extent reasonably
necessary to carry out the provisions of Paragraphs 32(d) through 32(f).
(h) If this Agreement does not receive Final Court Approval, including final
approval of the Settlement Class as defined in Paragraph 15, or if the Action is not
certified as a class action for settlement purposes, then all amounts paid by Nachi into the
Settlement Fund (other than costs expended or incurred in accordance with Paragraph 34
below), shall be returned to Nachi from the Escrow Account by the Escrow Agent along
with any interest accrued thereon within ten (10) calendar days of the denial of Final
Court Approval of the Agreement and/or Settlement Class.
33. Exclusions.
(a) Subject to Court approval, any person or entity seeking exclusion from the
Settlement Class must file a written request for exclusion by the Opt-Out Deadline. Any
person or entity that files such a request shall be excluded from the Settlement Class and
shall have no rights with respect to this Settlement. Subject to Court approval, a request
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for exclusion that does not comply with all of the provisions set forth in the applicable
Court-approved notice of settlement and final judgment to be disseminated to the
members of the Settlement Class will be invalid, and the person(s) or entity(ies) serving
such an invalid request shall be deemed Settlement Class Member(s) and shall be bound
by this Agreement upon Final Court Approval. Settlement Class Counsel shall, within
ten (10) business days of the Opt-Out Deadline, provide Nachi with a list and copies of
all opt-out requests it receives and shall file under seal with the Court a list of all
members of the Settlement Class who timely and validly opted out of the Settlement.
(b) Subject to Court Approval, any member of the Settlement Class who
submits a valid and timely request for exclusion will not be a Settlement Class Member
and shall not be bound by the terms of this Agreement. Nachi reserves all of its legal
rights and defenses with respect to any claim asserted by any excluded member of the
Settlement Class, including, but not limited to, any defenses relating to whether any
excluded member of the Settlement Class was qualified to be in the Settlement Class and
to benefit from any tolling of applicable statutes of limitation, is an indirect purchaser of
Bearings, or has standing to bring any claim against Nachi or the other Releasees.
(c) Subject to Court approval, the notice of settlement and final judgment to
be disseminated to the Settlement Class will require that all written requests for exclusion
from the Settlement Class include the full name, address and telephone number of the
member of the Settlement Class who is seeking exclusion, and a statement that the
member wishes to be excluded from the Settlement Class.
(d) Nachi or Settlement Class Counsel may dispute an exclusion request, and
the parties and the person or entity requesting to opt out shall, if possible, resolve the
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disputed exclusion request by agreement and shall inform the Court of their position, and,
if necessary, obtain a ruling thereon within thirty (30) days of the Opt-Out Deadline.
(e) Within twenty (20) business days following the Opt-Out Deadline, or as
soon thereafter as practicable, the parties shall, if necessary, determine the total number
of Truck and/or Equipment dealers in the Indirect Purchaser States, during the relevant
time period for the Settlement Class defined in Paragraph 15, that purchased Trucks
and/or Equipment containing Bearings (defined as the Total Number of Damages Class
Members for the Settlement Class for purposes of calculating the Total Opt-Out
Percentage defined below). The parties shall determine the Total Number of Damages
Class Members for the Settlement Class based upon reasonably available public
information, and each dealership location shall be counted as a separate Damages Class
Member for the purposes of this determination. In the event the parties mutually agree
that nonpublic information is required to determine the Total Number of Damages Class
Members for the Settlement Class, the parties shall identify an appropriate source of the
necessary information and any costs or expenses associated with securing such
information shall be paid pursuant to Paragraph 34 below. Within ten (10) business days
following the determination of the Total Number of Damages Class Members for the
Settlement Class, the parties shall, if necessary, calculate the Total Opt-Out Percentage,
which is defined as a fraction, the numerator of which is the Total Number of Damages
Class Members that have validly and timely requested to be excluded from the Settlement
Class, and the denominator of which is the Total Number of Damages Class Members for
the Settlement Class, provided that Nachi shall have the sole option to waive this
calculation and, by doing so, waive its rights under this Paragraph. If the parties are
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unable to agree on the Total Opt-Out Percentage, the Truck and Equipment Dealer
Plaintiffs and Nachi agree to submit their respective calculations of the Total Opt-Out
Percentage to the Court for decision as to which of the competing calculations is most
reasonable. Should the Total Opt-Out Percentage be more than ten percent (10%), Nachi
shall, at its sole discretion, have the option to rescind and terminate this Agreement.
Written notice of the exercise of such right to rescind and terminate this Agreement shall
be made in accordance with the terms of Paragraph 61.
34. Payment of Expenses.
(a) Nachi agrees to permit use of a portion of the Settlement Fund up to a
maximum of US $40,000 toward the cost of providing notice to the Settlement Class and
the costs of administration of the Settlement Fund. Any such notice and administration
costs paid out of the Settlement Fund (up to the maximum of US $40,000) are not
recoverable if this Settlement does not receive Final Court Approval or is rescinded or
terminated to the extent such costs have actually been paid or incurred. The Escrow
Agent shall return all remaining portions of the Settlement Fund to Nachi should this
Agreement not receive Final Court Approval or be rescinded or terminated. Other than as
set forth in this Paragraph 34, Nachi shall not be liable for any of the costs or expenses
incurred by Truck and Equipment Dealer Plaintiffs in the Action, including attorneys’
fees, fees and expenses of expert witnesses and consultants, and costs and expenses
associated with discovery, motion practice, hearings before the Court or Special Master,
appeals, trials or the negotiation of other settlements, or for class administration, notice
and/or costs.
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(b) In order to mitigate the costs of notice and administration, the Truck and
Equipment Dealer Plaintiffs shall use their best efforts, if practicable, to disseminate
notice of this Settlement with notice of other settlements reached with other defendants in
the MDL Litigation and to apportion the costs of notice and administration fairly across
the applicable settlements.
E. The Settlement Fund.
35. Releasors shall look solely to the Settlement Fund for settlement and satisfaction
against the Releasees of all Released Claims, and Releasors shall have no other recovery against
Nachi or any other Releasee.
36. After this Agreement receives Final Court Approval within the meaning of
Paragraph 26, the Settlement Fund shall be distributed in accordance with a plan to be submitted
to the Court at the appropriate time by Settlement Class Counsel, subject to approval by the
Court. In no event shall Nachi nor any other Releasee have any responsibility, financial
obligation, or liability whatsoever with respect to the investment, distribution, or administration
of the Settlement Fund, including, but not limited to, the costs and expenses of such distribution
and administration.
37. Truck and Equipment Dealer Plaintiffs and Settlement Class Counsel shall be
reimbursed and indemnified solely out of the Settlement Fund for their reasonable costs and
expenses, as provided by Court Order. Nachi and the other Releasees shall not be liable for any
costs, fees, or expenses of any of Truck and Equipment Dealer Plaintiffs or the Settlement
Class’s respective attorneys, experts, advisors, agents, or representatives, but all such costs, fees,
and expenses as approved by the Court shall be paid out of the Settlement Fund.
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 25 of 40 Pg ID 3564
25
38. Settlement Class Counsel’s Attorneys’ Fees, Reimbursement of Expenses, and
Incentive Awards for Class Representatives.
(a) Settlement Class Counsel may, after preliminary approval of this
Agreement by the Court as set forth in Paragraph 23 and notice to the Settlement Class,
submit an application or applications to the Court (“Fee and Expense Application”) for:
(i) an award of reasonable attorneys’ fees; plus (ii) reimbursement of expenses and costs
reasonably incurred in connection with prosecuting the Action and reasonable incentive
awards, plus interest on such attorneys’ fees, costs, and expenses at the same rate and for
the same period as earned by the Settlement Fund (until paid) as may be awarded by the
Court (“Fee and Expense Award”). Settlement Class Counsel reserves the right to make
additional applications for Court approval of fees and expenses reasonably incurred and
reasonable incentive awards, but in no event shall Nachi or any other Releasees be
responsible to pay any such additional fees and expenses.
(b) Subject to Court approval, Truck and Equipment Dealer Plaintiffs and
Settlement Class Counsel shall be reimbursed and paid solely out of the Settlement Fund
for all expenses including, but not limited to, attorneys’ fees and past, current, or future
litigation expenses and incentive awards. Attorneys’ fees and expenses awarded by the
Court shall be payable from the Settlement Fund upon award, notwithstanding the
existence of any timely filed objections thereto, or potential appeal therefrom, or
collateral attack on the Settlement or any part thereof, subject to Settlement Class
Counsel’s obligation to make appropriate refunds or repayments to the Settlement Fund
with interest, if and when, as a result of any appeal and/or further proceedings on remand,
or successful collateral attack, the fee or award of expenses is reduced or reversed, or in
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 26 of 40 Pg ID 3565
26
the event this Agreement does not receive Final Court Approval or is rescinded or
terminated pursuant to Paragraph 33(e) or Paragraph 48.
(c) The procedure for and the allowance or disallowance by the Court of the
application by Settlement Class Counsel for attorneys’ fees, costs and expenses, and
incentive awards for Truck and Equipment Dealer Plaintiffs to be paid out of the
Settlement Fund are not part of this Agreement, and are to be considered by the Court
separately from the Court’s consideration of the fairness, reasonableness, and adequacy
of the Settlement, and any order or proceeding relating to the Fee and Expense
Application, or any appeal from any such order, shall not operate to terminate or cancel
this Agreement, or affect or delay the finality of the judgment approving the Settlement.
(d) Neither Nachi nor any other Releasee under this Agreement shall have any
responsibility for, or interest in, or liability whatsoever with respect to any payment to
Settlement Class Counsel and/or Truck and Equipment Dealer Plaintiffs of any Fee and
Expense Award in the Action.
(e) Neither Nachi nor any other Releasee under this Agreement shall have any
responsibility for, or interest in, or liability whatsoever with respect to the allocation
among Settlement Class Counsel, Truck and Equipment Dealer Plaintiffs, and/or any
other person who may assert some claim thereto, of any Fee and Expense Award that the
Court may make in the Action.
F. Cooperation.
39. In return for the release, discharge, and covenant not to sue provided in this
Agreement, Nachi agrees to use its best efforts to provide Cooperation, as set forth specifically in
Paragraphs 41-46 below, until final judgment of all Bearings claims by Truck and Equipment
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 27 of 40 Pg ID 3566
27
Dealer Plaintiffs in the Action or dismissal with or without prejudice of all Bearings claims by
Truck and Equipment Dealer Plaintiffs in the Action, whichever is earlier. Cooperation will take
place consistent with the timing set forth specifically in this Section F. Truck and Equipment
Dealer Plaintiffs and Settlement Class Counsel agree to request such Cooperation only when and
only to the extent reasonably necessary to their prosecution of the Action. All Cooperation shall
be coordinated so as to avoid all unnecessary duplication and expense, shall otherwise be
reasonable, shall not impose undue burden and/or expense on Nachi and shall occur in a manner
that is in compliance with Nachi’s obligations to any Government Entities (as defined below), to
the extent that such compliance continues to be required. Nachi shall not be required to provide
Documents or information protected by the attorney-client privilege, the attorney work product
doctrine, any applicable privilege under foreign law, or whose disclosure is prohibited by court
order, any foreign or domestic law, or by a government entity.
40. Truck and Equipment Dealer Plaintiffs and Settlement Class Counsel agree they
will not use the Cooperation Materials and information provided by Nachi or its counsel or the
other Releasees or their representatives under this Agreement for any purpose other than the
prosecution of claims in the Action against parties other than Nachi and the other Releasees, and
will only use such Materials and information in the Action consistent with the Protective Orders,
and will not use them beyond what is reasonably necessary for the prosecution of such claims in
the Action or as otherwise required by law. All Documents and other Cooperation Materials and
information provided pursuant to this Agreement will be deemed “Highly Confidential,” as said
designation is described in the Protective Orders, and be subject to the Protective Orders as if
they had been produced in response to discovery requests and so designated.
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 28 of 40 Pg ID 3567
28
41. Within ten (10) business days of a written request from Settlement Class Counsel
after preliminary approval of this Agreement by the Court, counsel for Nachi shall provide
Settlement Class Counsel with the identity of and last known contact information for all current
and former employees, directors, and officers of Nachi who: (a) were interviewed by the United
States Department of Justice (“DoJ”), the Japanese Fair Trade Commission (“JFTC”), or the
European Commission (collectively, referred to as “Government Entities”) in connection with
alleged price-fixing, bid rigging, market allocation, and/or other unlawful anticompetitive
activity concerning the sale of Bearings in the United States or for Trucks or Equipment that
were sold in the United States; and/or (b) appeared before the grand jury in the DoJ’s
investigation into alleged antitrust violations with respect to Bearings. Nachi shall not be
required to disclose to Settlement Class Counsel the specific Government Entities to which each
such current or former employee of Nachi was identified or appeared before.
42. Counsel for Nachi counsel agrees to make themselves available by telephone or in
Portland, Oregon for reasonable questions from, and to consult with, Settlement Class Counsel
regarding the facts and conspiracy alleged in the Complaint or any other case-related facts that
may come to light during the pendency of the Action, including to provide previews of testimony
likely to be provided by Nachi witnesses, if any, at depositions and to provide guidance
regarding which Nachi employees and former employees are likely to possess relevant
information regarding facts pertinent to the Truck and Equipment Dealers’ claims in the Action.
It is understood that Nachi’s counsel has no obligation to seek new or additional information or
Documents from any of its employees, representatives, or agents with respect to such questions
and consultations. Settlement Class Counsel shall maintain all statements made by Nachi’s
counsel in the course of such attorney consultations as “Highly Confidential,” as said designation
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 29 of 40 Pg ID 3568
29
is described in the Protective Orders, and shall not use the information so received for any
purpose other than the prosecution of the Bearings claims against parties other than Nachi and
the other Releasees in the Action. Settlement Class Counsel shall not be permitted to attribute
any factual information obtained from the attorney consultations to Nachi or its counsel,
introduce such consultations into the record, or depose or subpoena any Nachi counsel regarding
any such consultation. Nachi, Truck and Equipment Dealer Plaintiffs, and their counsel further
agree that any statements made by Nachi’s counsel in connection with and/or as part of this
Settlement, including attorney consultations, shall not be disclosed to any other party and shall
be governed by Federal Rule of Evidence 408 and, otherwise, shall not be deemed admissible
into evidence or to be subject to discovery. Notwithstanding anything herein, Settlement Class
Counsel may use information contained in such statements in the prosecution of the Bearings
claims against parties other than Nachi and the other Releasees in the Action, and rely on such
information to certify that, to the best of Settlement Class Counsel’s knowledge, information,
and belief, such information has evidentiary support or will likely have evidentiary support after
a reasonable opportunity for further investigation or discovery.
43. Documents and Transactional Data. Nachi represents that in the course of
discovery in the Action, it has already produced to Truck and Equipment Dealer Plaintiffs:
(a) all non-privileged Documents in its possession, custody, or control that are responsive to
Truck and Equipment Dealer Plaintiffs’ current requests, as limited by the agreements Nachi
reached with Truck and Equipment Dealer Plaintiffs regarding the scope of the requests, and
found in the files of agreed-upon custodians; and (b) Nachi’s pre-existing transactional data that
are responsive to Truck and Equipment Dealer Plaintiffs’ current requests, as limited by the
agreements Nachi reached with Truck and Equipment Dealer Plaintiffs regarding the scope of the
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 30 of 40 Pg ID 3569
30
requests. To the extent Truck and Equipment Dealer Plaintiffs identify any material deficiencies
in, or have reasonable questions about, Nachi’s production of Documents or transactional data or
or its interrogatory responses, Nachi will attempt in good faith to resolve any deficiencies and/or
answer those questions in a timely manner. Nachi further agrees to provide Truck and
Equipment Dealers with a complete copy of any supplemental document productions,
supplemental interrogatory responses, or other discovery responses Nachi makes in the future in
connection with the Action.
44. Depositions. This Agreement does not restrict Settlement Class Counsel from
attending and participating in any depositions in the Action.
45. To the extent, if any, that Nachi provides any attorney proffers, witness
interviews, or depositions as part of any other settlement(s) entered into by Nachi in the MDL
Litigation, Nachi will provide Settlement Class Counsel with timely notice of such proffers,
interviews, or depositions and shall permit Settlement Class Counsel to attend those proffers,
interviews, or depositions.
46. Nachi shall make a good faith effort to assist Settlement Class Counsel in
identifying Nachi witnesses who possess information relevant to the claims being asserted by
Truck and Equipment Dealer Plaintiffs in the Action and to make up to four (4) such witnesses
available for interviews by Settlement Class Counsel. Each interview shall, to the extent
practicable, and subject to any applicable orders of the Court, be conducted in person or via
videoconference. Each such witness interview shall take place at a mutually agreeable location
and at a mutually agreed upon time, accommodating the schedules, residency, and geographic
limitations of the witness where it is possible to do so; provided, however, that Nachi will be
under no obligation to make such witnesses appear in person in the United States for such
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 31 of 40 Pg ID 3570
31
interviews. Each witness interview shall be limited to a total of seven (7) hours over one day;
provided, however, that to the extent that the person to be interviewed requests an interpreter, the
interview shall be limited to a total of twelve (12) hours. At the request of the person to be
interviewed, such twelve (12) hours of interview time may occur over two (2) consecutive days.
If an interview takes place in the United States, Settlement Class Counsel shall pay the economy
class fares and reasonable travel costs incurred by the witness, but in no event shall Settlement
Class Counsel be responsible for reimbursing the witness for their time or services rendered.
Nachi further agrees that each witness interviewed pursuant to the terms of this Agreement shall,
upon request of Settlement Class Counsel, timely provide Truck and Equipment Dealer Plaintiffs
with a sworn declaration memorializing information provided in such interview. Truck and
Equipment Dealer Plaintiffs shall withdraw all currently pending discovery requests to Nachi,
and shall seek no further discovery from any entity affiliated with Nachi or any current or former
director, officer, or employee of any entity affiliated with Nachi other than as provided for in this
Agreement. Except as provided herein, Nachi need not respond to discovery requests made
pursuant to the Federal Rules of Civil Procedure from Truck and Equipment Dealer Plaintiffs,
meet and confer, or otherwise negotiate with Truck and Equipment Dealer Plaintiffs regarding
discovery requests previously served in the Action or otherwise participate in the Action during
the pendency of the Agreement. Other than to enforce the terms of this Agreement, neither
Nachi nor Truck and Equipment Dealer Plaintiffs shall file motions against the other, in the
Action, during the pendency of the Agreement.
47. Nachi’s obligations to provide Cooperation shall not be affected by the releases
set forth in this Settlement Agreement. In the event that this Agreement fails to receive Final
Court Approval as contemplated in Paragraph 26 hereof, including final approval of the
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 32 of 40 Pg ID 3571
32
Settlement Class as defined in Paragraph 15, or in the event that this Agreement is rescinded or
terminated by either party under any provision herein, the parties agree that neither Truck and
Equipment Dealer Plaintiffs nor Settlement Class Counsel shall be permitted to introduce into
evidence against Nachi, at any hearing or trial, or in support of any motion, opposition, or other
pleading in the Action or in any other federal or state or foreign action or proceeding alleging a
violation of any law relating to the subject matter of the Action, any information, Documents, or
other Cooperation Materials provided by Nachi and/or the other Releasees, or their counsel.
Notwithstanding anything contained herein, Truck and Equipment Dealer Plaintiffs and the
Settlement Class are not relinquishing any rights to pursue discovery against Nachi in the event
that this Agreement fails to receive Final Court Approval, including final approval of the
Settlement Class as defined in Paragraph 15, or in the event that this Agreement is rescinded or
terminated by either party under any provision herein. Truck and Equipment Dealer Plaintiffs
further agree that, within sixty (60) days of this Agreement receiving Final Court Approval or
being rescinded or terminated by either party, Truck and Equipment Dealer Plaintiffs shall return
or destroy all Cooperation Materials received from Nachi.
G. Rescission if this Agreement is Not Approved or Final Judgment is Not Entered.
48. If the Court refuses to approve this Agreement or any part hereof, including if the
Court does not certify the Settlement Class in accordance with the specific Settlement Class
definition set forth in Paragraph 15, or if such approval is modified or set aside on appeal, or if
the Court does not enter the order and final judgment provided for in Paragraph 25 of this
Agreement, or if the Court enters the order and final judgment and appellate review is sought,
and on such review, such order and final judgment are not affirmed in its entirety, or if this
Agreement does not receive Final Court Approval as described in Paragraph 26, then Nachi and
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 33 of 40 Pg ID 3572
33
Truck and Equipment Dealer Plaintiffs shall each, in their sole discretion, have the option to
rescind and terminate this Agreement in its entirety. Written notice of the exercise of any such
right to rescind and terminate this Agreement shall be made in accordance with the terms of
Paragraph 61. A modification or reversal on appeal of any Fee and Expense Award or any
amount of Settlement Class Counsel’s fees and expenses awarded by the Court from the
Settlement Fund shall not be deemed a modification of all or a part of the terms of this
Agreement or such order and final judgment, or a basis to rescind and terminate this Agreement.
49. In the event that this Agreement does not receive Final Court Approval as set
forth in Paragraph 26, or this Agreement otherwise is rescinded and terminated pursuant to
Paragraph 33(e) or Paragraph 48, then: (a) this Agreement shall be of no force or effect, except
as expressly provided in this Agreement; (b) any and all parts of the Settlement Fund caused to
be deposited in the Escrow Account (including all interest accrued and earned thereon) shall be
returned forthwith by wire transfer to Nachi pursuant to written wire transfer instructions
provided by Nachi’s counsel, less only disbursements made in accordance with Paragraph 34 of
this Agreement; and (c) Nachi shall be entitled to any tax refunds owing to the Settlement Fund.
At the request of Nachi, Settlement Class Counsel shall file claims for any tax refunds owed to
the Settlement Fund and pay the proceeds, after deduction of any fees and expenses incurred
with filing such claims for tax refunds, to Nachi. Nachi expressly reserves all of its rights and
defenses if this Agreement does not receive Final Court Approval or is otherwise rescinded and
terminated.
50. Further, and in any event, Truck and Equipment Dealer Plaintiffs and Nachi agree
that this Agreement, whether or not it receives Final Court Approval, and any and all
negotiations, Documents, and discussions associated with it, shall not be deemed or construed to
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 34 of 40 Pg ID 3573
34
be an admission or evidence of (a) any violation of any statute or law or of any liability or
wrongdoing whatsoever by Nachi, or the other Releasees to be used against Nachi or the other
Releasees; or (b) the truth of any of the claims or allegations contained in the Complaint or any
other pleading filed in the MDL Litigation, or by any person or entity in any other action or
proceeding, to be used directly or indirectly against Nachi or the other Releasees, and evidence
thereof shall not be discoverable or used in any way, in the MDL Litigation or in any other action
or proceeding, against Nachi or the other Releasees. Nothing in this Paragraph shall prevent
Truck and Equipment Dealer Plaintiffs from using Cooperation Materials produced by Nachi
against any party other than Nachi and the other Releasees in the Action to establish any of the
above, subject to the limitations on any such use in Section F of this Agreement.
51. This Agreement shall be construed and interpreted to effectuate the intent of the
parties, which is to provide, through this Agreement, for a complete resolution of the relevant
claims with respect to each Releasee as provided in this Agreement as well as Cooperation by
Nachi.
52. The parties to this Agreement contemplate and agree that, prior to Final Court
Approval of the Settlement and this Agreement as provided for in Paragraphs 23-26 hereof,
appropriate notice (a) of the Settlement and this Agreement; and (b) of a hearing at which the
Court will consider the final approval of this Agreement, will be given to the Settlement Class.
H. Miscellaneous.
53. Within ten (10) days of the filing of the Preliminary Approval Motion, Nachi shall
submit all materials required to be sent to appropriate Federal and State officials pursuant to the
Class Action Fairness Act of 2005, 28 U.S.C. § 1715.
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 35 of 40 Pg ID 3574
35
54. This Agreement does not settle or compromise any claim by Truck and
Equipment Dealer Plaintiffs or any Settlement Class Member asserted in the Complaint or, if
amended, any subsequent complaint, against any Defendant or alleged co-conspirator other than
Nachi and the other Releasees. All rights against such other Defendants or alleged co-
conspirators are specifically reserved by Truck and Equipment Dealer Plaintiffs and the
Settlement Class. All rights of any Settlement Class Member against any and all former, current,
or future Defendants or alleged co-conspirators or any other person other than Nachi and the
other Releasees, for sales made by Nachi and Nachi’s alleged illegal conduct are specifically
reserved by Truck and Equipment Dealer Plaintiffs and Settlement Class Members. Nachi’s
indirect sales to the Settlement Class and its alleged illegal conduct shall, to the extent permitted
or authorized by law, remain in the Action as a potential basis for damage claims and shall be
part of any joint and several liability claims against other current or future Defendants in the
Action or other persons or entities other than Nachi and the other Releasees. Nachi shall not be
responsible for any payment to Truck and Equipment Dealer Plaintiffs other than the Settlement
Amount specifically agreed to in Paragraph 30 of this Agreement.
55. The United States District Court for the Eastern District of Michigan shall retain
jurisdiction over the interpretation, implementation, enforcement, and performance of this
Agreement, and shall have exclusive jurisdiction over any suit, action, proceeding, or dispute
arising out of or relating to this Agreement or the applicability of this Agreement that cannot be
resolved by negotiation and agreement by Truck and Equipment Dealer Plaintiffs and Nachi,
including challenges to the reasonableness of any party’s actions. This Agreement shall be
governed by and interpreted according to the substantive laws of the state of Michigan without
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 36 of 40 Pg ID 3575
36
regard to its choice of law or conflict of laws principles. Nachi will not object to complying with
any of the provisions outlined in this Agreement on the basis of jurisdiction.
56. This Agreement constitutes the entire, complete, and integrated agreement
between and among Truck and Equipment Dealer Plaintiffs, Settlement Class Members, and
Nachi pertaining to the Settlement of the Action against Nachi and the other Releasees, and
supersedes all prior and contemporaneous undertakings, communications, representations,
understandings, negotiations, and discussions, either oral or written, between Truck and
Equipment Dealer Plaintiffs and Nachi in connection herewith. This Agreement may not be
modified or amended except in writing executed by Truck and Equipment Dealer Plaintiffs and
Nachi and approved by the Court.
57. Settlement Class Members and Settlement Class Counsel, or any of them, may
hereafter discover facts other than or different from those that they know or believe to be true
with respect to the subject matter of this Settlement, but the subsequent discovery or existence of
such different or additional facts shall have no bearing on the validity of this Settlement and
Agreement once executed and shall not serve as a basis for any party to challenge or otherwise
seek to rescind, terminate, or cancel the Settlement or this Agreement.
58. This Agreement shall be binding upon, and inure to the benefit of, the successors
and assigns of Truck and Equipment Dealer Plaintiffs and Nachi and the other Releasees.
Without limiting the generality of the foregoing, each and every covenant and agreement made
herein by Truck and Equipment Dealer Plaintiffs and Settlement Class Counsel shall be binding
upon all Settlement Class Members and Releasors. Releasees (other than the Nachi entities
which are parties hereto) are third-party beneficiaries of this Agreement and are authorized to
enforce its terms applicable to them.
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 37 of 40 Pg ID 3576
37
59. This Agreement may be executed in counterparts by Truck and Equipment Dealer
Plaintiffs and Nachi, and a facsimile or emailed .pdf signature shall be deemed an original
signature for purposes of executing this Agreement.
60. Neither Truck and Equipment Dealer Plaintiffs nor Nachi shall be considered to
be the drafter of this Agreement or any of its provisions for the purpose of any statute, case law,
or rule of interpretation or construction that would or might cause any provision to be construed
against the drafter of this Agreement.
61. Where this Agreement requires either party to provide notice or any other
communication or document to the other, such notice shall be in writing, and such notice,
communication or document shall be provided by facsimile, or electronic mail, or letter by
overnight delivery to the undersigned counsel of record for the party to whom notice is being
provided.
[Remainder of page intentionally left blank—signature page to follow.]
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 38 of 40 Pg ID 3577
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 39 of 40 Pg ID 3578
62. Each of the undersigned attorneys represents that he is fully authorized to enter
into the terms and conditions of, and to execute, this Agreement subject to Court approval.
Dated: May_, 2017
Dated: Mayll,2017
J. Manly Parks Duane Morris LLP 30 S. 17th Street Philadelphia, PA 19103 Phone: (215) 979-1342 Fax: (215) 689-3682 Email: [email protected]
Class Counsel and Settlement Class Counsel
~ Kenneth R. Davis II Lane Powell PC 601 SW Second Ave, Suite 2100 Portland, OR 97204-3158 Phone: (503) 778-2121 Fax: (503)778-2200 Email: [email protected]
Attorney for Defendants Nachi-Fujikoshi Corporation and Nachi America Inc.
38
2:14-cv-00507-MOB-MKM Doc # 70-2 Filed 06/19/17 Pg 40 of 40 Pg ID 3579
EXHIBIT 2
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 1 of 28 Pg ID 3580
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 2 of 28 Pg ID 3581
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 3 of 28 Pg ID 3582
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 4 of 28 Pg ID 3583
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 5 of 28 Pg ID 3584
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 6 of 28 Pg ID 3585
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 7 of 28 Pg ID 3586
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 8 of 28 Pg ID 3587
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 9 of 28 Pg ID 3588
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 10 of 28 Pg ID 3589
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 11 of 28 Pg ID 3590
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 12 of 28 Pg ID 3591
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 13 of 28 Pg ID 3592
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 14 of 28 Pg ID 3593
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 15 of 28 Pg ID 3594
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 16 of 28 Pg ID 3595
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 17 of 28 Pg ID 3596
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 18 of 28 Pg ID 3597
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 19 of 28 Pg ID 3598
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 20 of 28 Pg ID 3599
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 21 of 28 Pg ID 3600
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 22 of 28 Pg ID 3601
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 23 of 28 Pg ID 3602
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 24 of 28 Pg ID 3603
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 25 of 28 Pg ID 3604
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 26 of 28 Pg ID 3605
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 27 of 28 Pg ID 3606
2:14-cv-00507-MOB-MKM Doc # 70-3 Filed 06/19/17 Pg 28 of 28 Pg ID 3607
EXHIBIT 3
2:14-cv-00507-MOB-MKM Doc # 70-4 Filed 06/19/17 Pg 1 of 8 Pg ID 3608
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re: Automotive Parts Antitrust Litigation
Master File No. 12-md-02311
Hon. Marianne O. Battani
In re: Bearings Cases
Case No. 2:12-cv-00507-MOB-MKM Case No. 2:14-cv-13356-MOB-MKM
THIS DOCUMENT RELATES TO:
Truck and Equipment Dealer Cases
DECLARATION OF WILLIAM W. WICKERSHAM
1. I am the Vice President of Business Development and Client Relations at RG/2
Claims Administration LLC (“RG/2 Claims”). In that role, I oversee the intake and management
of all ongoing class action settlements including the creation and implementation of legal notice
plans.
2. RG/2 Claims was established in 2002 as a full service class action notice and
claims administrator, providing notice and administration services for a broad range of collective
actions, including but not limited to antitrust, securities, consumer, and employment cases. RG/2
Claims specializes in the creation, development and implementation of legal notification plans.
Accordingly, RG/2 Claims is familiar with, and guided by Constitutional due process provisions,
2:14-cv-00507-MOB-MKM Doc # 70-4 Filed 06/19/17 Pg 2 of 8 Pg ID 3609
2
rules of states and local jurisdictions, and the relevant case law relating to legal notification.
Media plans designed and implemented by RG/2 Claims have included both domestic and
international newspapers and magazines, Internet-based banners, notices and websites, wire
service, point of purchase displays and direct mail.
3. I have been involved in the development and implementation of media plans for
class action notification for more than ten years.
4. I submit this declaration at the request of Class Counsel for the Truck and
Equipment Dealership Plaintiffs in order to describe the proposed notice plan and notice services
in the above-captioned litigation.
5. I have personal knowledge of the matters set forth in this declaration and, if called
as a witness, could and would testify competently thereto.
6. These coordinated multi-district lawsuits are brought as proposed class actions
against the Defendants, the suppliers of Truck and Equipment bearings and other automobile
component parts, for allegedly engaging in a conspiracy to unlawfully fix bids and artificially
raise the prices of these component parts.
7. The objective of the suggested Notice program is to provide the best notice
practicable—Rule 23-compliant notice to the relevant settlement class members—as defined in
the settlement class definition reflected in the preliminary approval documents in this case.
8. RG/2 Claims understands that the Truck and Equipment Dealer Plaintiffs bring
these actions on behalf of themselves and as putative class actions under Rule 23(a) and (b)(3) of
the Federal Rules of Civil Procedure, seeking damages pursuant to the state antitrust, unfair
2:14-cv-00507-MOB-MKM Doc # 70-4 Filed 06/19/17 Pg 3 of 8 Pg ID 3610
3
competition, and consumer protection laws of the states whose laws may recognize claims for
money damages brought by indirect purchasers in antitrust actions (the “Included States”). The
notice plan detailed herein meets the requirements of Rule 23(c)(2) and thus provides the best
notice practicable under the circumstances and complies with due process requirements because
it provides sufficient notice of: (a) the Settlement and its terms, (b) the right to opt out or object,
and (c) the final approval hearing to truck and equipment dealerships who indirectly purchased
for resale certain component parts and/or vehicles containing these parts and purchased such
vehicles or parts in Arizona, Arkansas, California, District of Columbia, Florida, Hawaii, Illinois,
Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana,
Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota,
Oregon, South Carolina, South Dakota, Tennessee, Utah, Vermont, West Virginia, and/or
Wisconsin and who are therefore entitled to receive such notice as potential members of the Rule
23(b)(3) Settlement Classes.
9. RG/2 Claims proposes a notice program with the following elements:
a. Direct notice via United States Postal Service Mail (“USPS Mail”) and email to
approximately 57,000 C-Level Executives who work at Medium and Heavy duty truck
dealerships, as well as all Agricultural, Construction, Mining, Railroad, and other Commercial
Vehicle/Equipment Dealers.
b. Summary Notice will be printed in The Wall Street Journal; Automotive News, and
Work Truck Magazine. Banner ads will be placed in the National Trailer Dealers Association
(“NTDA”) e-newsletter, the American Truck Dealers (“ATD”) Insider e-newsletters which will
link to the settlement website. In addition, the Summary Notice will be disseminated through a
national press release and additional information about the details of settlement will be posted at
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www.TruckDealerSettlement.com. Additionally, RG/2 Claims will maintain a toll-free number
to answer and address class member inquires.
c. Notice will be sent to those class members who have already registered through the
website (www.TruckDealerSettlement.com) in connection with prior Wire Harnesses, Occupant
Safety Systems, and Bearings settlements to receive information about future settlements in the
Auto Parts case.
10. RG/2 Claims believes the plan summarized above more than satisfies due process
standards given the parameters of the settlement, information learned from RG/2 Claims’s
research, and the fact that that this is an antitrust matter with not every defendant settling at the
current time.
11. The proposed notice plan provides the best practicable method to reach the
potential class members and is consistent with other class action notice plans that have been
approved by various federal courts for similarly situated matters.
12. Whenever practicable, direct USPS mail or email is the preferred form of notice
for class members in a class action. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 175-76 (1974).
For this plan, RG/2 Claims worked with a special direct marketing vendor to compile a list of
current Truck and Equipment dealerships in the Included States (and DC).
13. The foundation of the Notice plan will be to print and mail a full Notice to each
USPS address obtained and disseminate emails with Notice content to each email address
obtained.
14. For the USPS mailing addresses, RG/2 Claims will run the contact information
obtained through the USPS National Change of Address system (“NCOA”). The NCOA system
provides updated addresses for all mail recipients who have filed a change of address with the
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post office within the past four years and helps to ensure that we have the most current addresses
on file with the USPS. By this means, we will maximize the effectiveness of the direct mail and
minimize returned undeliverable mail.
15. After the NCOA update, RG/2 Claims will mail the Notice via USPS mail to all
database records associated with a mailing address.
16. All undeliverable mail will be sorted and scanned. For returned notices without a
forwarding address, RG/2 Claims will use Accurint (a division of Lexis-Nexis) to perform a
basic “skip trace” search in order to retrieve the most accurate and updated information. The
database will be updated with any new address found and the Notice will be re-mailed to the
updated addresses.
17. The Summary Notice will also be emailed to the list of Truck and Equipment
Dealer class members.
18. To supplement the direct notice efforts, RG/2 Claims has designed a publication
notice program to provide notice to class members who may not otherwise receive direct notice.
Publication will include the elements summarized in Paragraph 9 above and are described in
further detail below.
19. The notice plan contemplates inserting the Summary Notice in the print editions
of The Wall Street Journal, Automotive News, and Work Truck Magazine. Based on RG/2
Claim’s research and information provided by the counsel for the Truck and Equipment Dealer
Class Plaintiffs, I understand that these magazines target, and are read by, truck and equipment
dealerships and the individuals that work within them. They provide the best opportunity for the
Truck and Equipment Dealer class members to be exposed to the Summary Notice.
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20. The notice plan will also include insertion of a banner advertisement on the
NTDA and ATD Insider e-newsletters directing individuals to the Notice on the case website.
The e-newsletters in a daily electronic newsletter that is delivered to 9,000 Truck and Equipment
dealer professionals nationwide.
21. RG/2 Claims will release a party-neutral press release with information about the
litigation and the proposed Truck and Equipment Dealer settlement. A press release is one of the
most cost-effective means of transmitting notice; once released, a release remains available for
30 days to over 200,000 news outlets for distribution.
22. RG/2 Claims will publish the settlement documents filed in the above-captioned
matters on the website, www.TruckDealerSettlement.com, which is the online repository of case
and settlement related information for class members and the general public. The paid media
campaign and press release will direct individuals to the settlement website.
23. The notice for this settlement will also direct class members to a toll-free
telephone number established for the Truck and Equipment Dealer class members and the
general public where they may call-in and speak with a representative of RG/2 Claims who will
be trained in the details about the settlement and able to answer questions about the settlement
and how to get more information.
24. RG/2 Claims believes the notice program described above is suitable for this case
and is comparable to plans other federal courts have approved for similar cases. RG/2 Claims
also believes that both the full Notice and the Summary Notices are drafted in the “plain
language” format preferred by federal courts and provide the information required by Rule 23.
RG/2 Claims believes that the full Notice and the Summary Notice are understandable for
members of this Truck and Equipment Dealer settlement class and comply with due process.
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25. The objective of the proposed notice plan described above is to provide the best
notice practicable, consistent with the requirements set forth in Rule 23 and other applicable
State statutes, to reach a large percentage of the potential class while meeting or exceeding the
requirements of due process and all applicable state laws and court rules.
26. The recommended plan is centered on direct notice to a large majority, of the
settlement class members in the Included States and DC. Direct notice will be supplemented by
leveraging publication in print media specific to the auto industry (and new truck and equipment
dealerships in particular), auto industry newsletter publication, banner advertising on auto
industry websites, banner and text advertising on Facebook, social media outreach, a targeted
press release and case specific website with claims filing functionality.
27. To facilitate recognition of the auto part at issue, RG/2 Claims also recommends
branding a logo for the settlements to establish a consistent look-and-feel across campaign
materials.
28. Additionally, combining the notices for the proposed settlements with the
settlement with SKF USA Inc. that has already received preliminary approval, see Case No. 14-
cv-00507, ECF No. 67, would result in approximately $70,000 in savings for the classes.
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE UNITED
STATES THAT TO THE BEST OF MY KNOWLEDGE THE FOREGOING IS TRUE AND
CORRECT.
Executed on June 13, 2017 at New York, NY.
_________________________
William W. Wickersham, Declarant
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