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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
IN RE AUTOMOTIVE PARTS
ANTITRUST LITIGATION
In Re: Wire Harness
In Re: Instrument Panel Clusters
In Re: Fuel Senders
In Re: Heater Control Panels
In Re: Alternators
In Re: Windshield Wiper Systems
In Re: Radiators
In Re: Starters
In Re: Ignition Coils
In Re: Motor Generators
In Re: HID Ballasts
In Re: Inverters
In Re: Air Flow Meters
In Re: Fan Motors
In Re: Fuel Injection Systems
In Re: Power Window Motors
In Re: Automatic Transmission Fluid
Warmers
In Re: Valve Timing Control Devices
In Re: Electronic Throttle Bodies
In Re: Air Conditioning Systems
In Re: Windshield Washer Systems
In Re: Spark Plugs
In Re: Ceramic Substrates
THIS DOCUMENT RELATES TO
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Master File No. 12-md-02311
2:12-cv-00103
2:12-cv-00203
2:12-cv-00303
2:12-cv-00403
2:13-cv-00703
2:13-cv-00903
2:13-cv-01003
2:13-cv-01103
2:13-cv-01403
2:13-cv-01503
2:13-cv-01703
2:13-cv-01803
2:13-cv-02003
2:13-cv-02103
2:13-cv-02203
2:13-cv-02303
2:13-cv-02403
2:13-cv-02503
2:13-cv-02603
2:13-cv-02703
2:13-cv-02803
2:15-cv-03003
2:16-cv-11804
End-Payor Actions
END-PAYOR PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL
OF PROPOSED SETTLEMENT WITH DENSO DEFENDANTS AND
PROVISIONAL CERTIFICATION OF SETTLEMENT CLASSES
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that as soon as this motion may be heard before the Hon.
Marianne O. Battani, End-Payor Plaintiffs (“EPPs”) will and do hereby respectfully move the
Court for an order preliminarily approving a proposed settlement between EPPs and DENSO
Corporation, DENSO International America, Inc., DENSO International Korea Corporation,
DENSO Korea Automotive Corporation, DENSO Automotive Deutschland GmbH, ASMO Co.,
Ltd., ASMO North America, LLC, ASMO Greenville of North Carolina, Inc., and ASMO
Manufacturing, Inc. in the amount of $193,800,000.00, and provisional certification of the
proposed Settlement Classes in the above-captioned actions.
This motion is based on this Notice of Motion and Motion, the Memorandum of Law in
support thereof, all filings in this litigation, and such other arguments as may be presented to the
Court.
Date: July 14, 2016
Respectfully submitted,
/s/ Hollis Salzman
Hollis Salzman
Bernard Persky
William V. Reiss
ROBINS KAPLAN LLP
601 Lexington Avenue, Suite 3400
New York, NY 10022
Telephone: (212) 980-7400
Hsalzman@RobinsKaplan.com
Bpersky@RobinsKaplan.com
Wreiss@RobinsKaplan.com
/s/ Steven N. Williams
Steven N. Williams
Demetrius X. Lambrinos
Elizabeth Tran
COTCHETT, PITRE & McCARTHY, LLP
San Francisco Airport Office Center
840 Malcolm Road
2
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Burlingame, CA 94010
Telephone: (650) 697-6000
swilliams@cpmlegal.com
dlambrinos@cpmlegal.com
etran@cpmlegal.com
/s/ Marc M. Seltzer
Marc M. Seltzer
Steven G. Sklaver
SUSMAN GODFREY L.L.P.
1901 Avenue of the Stars, Suite 950
Los Angeles, CA 90067-6029
Telephone: (310) 789-3100
mseltzer@susmangodfrey.com
ssklaver@susmangodfrey.com
Terrell W. Oxford
Chanler A. Langham
Omar Ochoa
SUSMAN GODFREY L.L.P.
1000 Louisiana St., Suite 5100
Houston, TX 77002
Telephone: (713) 651-9366
Facsimile: (713) 654-6666
toxford@susmangodfrey.com
clangham@susmangodfrey.com
oochoa@susmangodfrey.com
Interim Co-Lead Class Counsel for the Proposed
End-Payor Plaintiff Classes
/s/ E. Powell Miller
E. Powell Miller
Devon P. Allard
THE MILLER LAW FIRM, P.C.
950 W. University Drive, Suite 300
Rochester, MI 48307
Telephone: (248) 841-2200
Facsimile: (248) 652-2852
epm@millerlawpc.com
dpa@millerlawpc.com
Interim Liaison Class Counsel for the Proposed
End-Payor Plaintiff Classes
3
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
IN RE AUTOMOTIVE PARTS
ANTITRUST LITIGATION
In Re: Wire Harness
In Re: Instrument Panel Clusters
In Re: Fuel Senders
In Re: Heater Control Panels
In Re: Alternators
In Re: Windshield Wiper Systems
In Re: Radiators
In Re: Starters
In Re: Ignition Coils
In Re: Motor Generators
In Re: HID Ballasts
In Re: Inverters
In Re: Air Flow Meters
In Re: Fan Motors
In Re: Fuel Injection Systems
In Re: Power Window Motors
In Re: Automatic Transmission Fluid
Warmers
In Re: Valve Timing Control Devices
In Re: Electronic Throttle Bodies
In Re: Air Conditioning Systems
In Re: Windshield Washer Systems
In Re: Spark Plugs
In Re: Ceramic Substrates
THIS DOCUMENT RELATES TO
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Master File No. 12-md-02311
2:12-cv-00103
2:12-cv-00203
2:12-cv-00303
2:12-cv-00403
2:13-cv-00703
2:13-cv-00903
2:13-cv-01003
2:13-cv-01103
2:13-cv-01403
2:13-cv-01503
2:13-cv-01703
2:13-cv-01803
2:13-cv-02003
2:13-cv-02103
2:13-cv-02203
2:13-cv-02303
2:13-cv-02403
2:13-cv-02503
2:13-cv-02603
2:13-cv-02703
2:13-cv-02803
2:15-cv-03003
2:16-cv-11804
End-Payor Actions
MEMORANDUM OF LAW IN SUPPORT OF END-PAYOR PLAINTIFFS’
MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT
WITH DENSO DEFENDANTS AND PROVISIONAL CERTIFICATION
OF SETTLEMENT CLASSES
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STATEMENT OF ISSUES PRESENTED
1. Whether End-Payor Plaintiffs’ (“EPPs”) settlement agreement with Defendants DENSO
Corporation, DENSO International America, Inc., DENSO International Korea
Corporation, DENSO Korea Automotive Corporation, DENSO Automotive Deutschland
GmbH, ASMO Co., Ltd., ASMO North America, LLC, ASMO Greenville of North
Carolina, Inc., and ASMO Manufacturing, Inc. (collectively, the “DENSO Defendants”),
entered into on July 14, 2016 (“Settlement Agreement”) and attached hereto as Exhibit 1,
is fair, reasonable, and adequate, and should be preliminarily approved;
2. Whether the Court should provisionally certify the Settlement Classes under Federal Rule
of Civil Procedure (“Rule”) 23(a) and (b)(3);
3. Whether the Court should stay the proceedings as to the EPPs against the DENSO
Defendants in accordance with the terms of the Settlement Agreement; and
4. Whether the Court should appoint Interim Co-Lead Class Counsel for the EPPs as
Settlement Class Counsel on behalf of the Settlement Classes.1
1
Unless otherwise defined, capitalized terms shall have the meaning ascribed to them in the
Settlement Agreement.
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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., 296 F.R.D. 528 (E.D. Mich. 2013)
Griffin v. Flagstar Bancorp, Inc., No. 2:10-cv-10610, 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., MDL No. 310, 1981 U.S. Dist. LEXIS 9687 (S.D.
Tex. June 4, 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., No. 08-MD-01952, 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, No. 09-cv-14429, 2010 U.S. Dist. LEXIS 110411 (E.D.
Mich. Oct. 18, 2010)
ii
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .................................................................................................... 1 THE BASIC TERMS AND BACKGROUND OF THE SETTLEMENT AGREEMENT ......... 11 ARGUMENT ................................................................................................................................ 23 I. II. Preliminary Approval Should be Granted Because the Proposed Settlement Falls Well
Within the Range of Possible Approval......................................................................... 23 A. The Settlement Agreement Achieves an Excellent Result for the Proposed
Settlement Classes, Particularly Given the Expense, Duration, and Uncertainty of
Continued Litigation. ............................................................................................ 26 B. The Settlement Agreement is the Result of Thorough Arm’s-Length Negotiations
Conducted By Highly Experienced Counsel With the Assistance of a Mediator. 30 The Proposed Settlement Classes Should Be Provisionally Certified Pursuant to
Rule 23. .......................................................................................................................... 32 A. The Proposed Settlement Classes Meet the Requirements of Rule 23(a). ............ 33 i. The Proposed Settlement Classes Are So Numerous That It Is Impracticable
to Bring All Class Members Before the Court............................................. 34 ii. End-Payor Plaintiff Class Representatives and the Proposed Settlement
Classes Share Common Legal and Factual Questions. ................................ 35 iii. End-Payor Plaintiff Class Representatives’ Claims Are Typical of the
Claims of the Members of the Proposed Settlement Classes. ...................... 36 iv. B. C.
Proposed Settlement Class Counsel and End-Payor Plaintiff Class
Representatives Will Fairly and Adequately Protect the Interests of the
Proposed Settlement Classes........................................................................ 37 The Proposed Settlement Classes Meet the Requirements of Rule 23(b)(3). ....... 39 i. Common Questions of Law and Fact Predominate. .................................... 39 ii. A Class Action is the Superior Method to Adjudicate These Claims. ......... 41 The Proposed Settlement Classes Meet the Requirements of Rule 23(b)(2). ....... 43 III. Notice to the Settlement Class Members. ...................................................................... 43 CONCLUSION ............................................................................................................................. 44 iii
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TABLE OF AUTHORITIES
Page(s)
Cases
Agretti v. ANR Freight Sys., Inc.,
982 F.2d 242 (7th Cir. 1992) ...................................................................................................24
Amchem Prods., Inc. v. Windsor,
521 U.S. 591 (1997) .....................................................................................................39, 40, 42
Amgen Inc. v. Conn. Ret. Plans & Trust Funds,
133 S. Ct. 1184 (2013) .......................................................................................................33, 40
Avio, Inc. v. Alfoccino, Inc.,
311 F.R.D. 434 (E.D. Mich. 2015) ....................................................................................35, 39
Blades v. Monsanto Co.,
400 F.3d 562 (8th Cir. 2005) ...................................................................................................40
Bobbitt v. Acad. of Reporting,
No. 07-cv-10742, 2009 U.S. Dist. LEXIS 62365 (E.D. Mich. Jul. 21, 2009) .........................24
Bowers v. Windstream Ky. East, LLC,
No. 09-cv-440, 2013 U.S. Dist. LEXIS 157242 (W.D. Ky. Nov. 1, 2013) .............................32
Cason-Merenda v. VHS of Mich., Inc.,
296 F.R.D. 528 (E.D. Mich. 2013), vacated, No. 13-0113, 2014 U.S. App.
LEXIS 4447 (6th Cir. Jan. 6, 2014), reinstated in full, No. 06-15601, 2014
U.S. Dist. LEXIS 29447 (E.D. Mich. Mar. 7, 2014) ...............................................................37
Clark Equip. Co. v Int’l Union of Allied Industrial Workers of Am.,
803 F.2d 878 (6th Cir. 1986) ...................................................................................................25
Cordes & Co. Fin. Services, Inc. v. A.G. Edwards & Sons, Inc.,
502 F.3d 91 (2d Cir. 2007).......................................................................................................40
Date v. Sony Elecs., Inc.,
No. 07-15474, 2013 U.S. Dist. LEXIS 108095 (E.D. Mich. July 31, 2013) ...........................35
Fidel v. Farley,
534 F.3d 508 (6th Cir. 2008) ...................................................................................................43
Golden v. City of Columbus,
404 F.3d 950 (6th Cir. 2005) ...................................................................................................34
iv
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Griffin v. Flagstar Bancorp, Inc.,
No. 2:10-cv-10610, 2013 U.S. Dist. LEXIS 173702
(E.D. Mich. Dec. 12, 2013) .............................................................................................. passim
Hyland v. Homeservices of Am., Inc.,
No. 05-cv-612-R, 2008 U.S. Dist. LEXIS 90892 (W.D. Ky. Nov. 6, 2008) ...........................34
In re Aluminum Phosphide Antitrust Litig.,
160 F.R.D. 609 (D. Kan. 1995)................................................................................................35
In re Am. Med. Sys., Inc.,
75 F.3d 1069 (6th Cir. 1996) .............................................................................................34, 36
In re Ampicillin Antitrust Litig.,
82 F.R.D. 652 (D.D.C. 1979)...................................................................................................30
In re Blood Reagents Antitrust Litig.,
No. 09-2081, 2015 U.S. Dist. LEXIS 141909 (E.D. Pa. Oct. 19, 2015) .................................40
In re Cardizem CD Antitrust Litig.,
218 F.R.D. 508 (E.D. Mich. 2003) .................................................................................. passim
In re Chambers Dev. Sec. Litig.,
912 F. Supp. 822 (W.D. Pa. 1995) ...........................................................................................27
In re Corrugated Container Antitrust Litig.,
643 F.2d 195 (5th Cir. 1981) ...................................................................................................38
In re Corrugated Container Antitrust Litig.,
MDL No. 310, 1981 U.S. Dist. LEXIS 9687 (S.D. Tex. June 4, 1981) ............................29, 30
In re Delphi Corp. Sec. Derivatives & ERISA Litig.,
248 F.R.D. 483 (E.D. Mich. 2008) ..........................................................................................32
In re Dynamic Random Access Memory (DRAM) Antitrust Litig.,
No. 02-1486, 2006 U.S. Dist. LEXIS 39841 (N.D. Cal. June 5, 2006) ...................................35
In re Farmers Ins. Exchange, Claims Representatives’ Overtime Pay Litig.,
481 F.3d 1119 (9th Cir. 2007) .................................................................................................28
In re Foundry Resins Antitrust Litig.,
242 F.R.D. 393 (S.D. Ohio 2007) .................................................................................... passim
In re Linerboard Antitrust Litig.,
292 F. Supp. 2d 631 (E.D. Pa. 2003) .................................................................................29, 30
v
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In re Packaged Ice Antitrust Litig.,
No. 08-MD-01952, 2011 U.S. Dist. LEXIS 17255
(E.D. Mich. Feb. 22, 2011) .............................................................................................. passim
In re Packaged Ice Antitrust Litig.,
No. 08-MDL-01952, 2011 U.S. Dist. LEXIS 150427
(E.D. Mich. Dec. 13, 2011) ......................................................................................................26
In re Packaged Ice Antitrust Litig.,
No. 08-MD-01952, 2010 U.S. Dist. LEXIS 140235 (E.D. Mich. Sept. 2, 2010) ....................32
In re Packaged Ice Antitrust Litig.,
No. 08-MD-01952, 2010 U.S. Dist. LEXIS 77645 (E.D. Mich. Aug. 2, 2010) ................25, 30
In re Pressure Sensitive Labelstock Antitrust Litig.,
584 F. Supp. 2d 697 (M.D. Pa. 2008) ......................................................................................30
In re Rent-Way Sec. Litig.,
305 F. Supp. 2d 491 (W.D. Pa. 2003) ......................................................................................28
In re Scrap Metal Antitrust Litig.,
527 F.3d 517 (6th Cir. 2008) .......................................................................................39, 40, 41
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) .......................................................................................................33
In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig.,
No. 01-cv-9000, 2001 U.S. Dist. LEXIS 26714 (E.D. Ohio Oct. 19, 2001) ...........................25
In re Universal Serv. Fund Tel. Billing Practices Litig.,
219 F.R.D. 661 (D. Kan. 2004)................................................................................................42
In re Uranium Antitrust Litig.,
617 F.2d 1248 (7th Cir. 1980) .................................................................................................30
In re Urethane Antitrust Litig.,
251 F.R.D. 629 (D. Kan. 2008)................................................................................................41
In re Vitamins Antitrust Litig.,
209 F.R.D. 251 (D.D.C. 2002).................................................................................................40
In re Warfarin Sodium Antitrust Litig.,
391 F.3d 516 (3d Cir. 2004).....................................................................................................28
In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig.,
722 F.3d 838 (6th Cir. 2013) .................................................................................33, 35, 39, 41
vi
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Int’l Union, UAW v. Ford Motor Co.,
Nos. 05-74730, 06-10331, 2006 U.S. Dist. LEXIS 70471
(E.D. Mich. July 13, 2006) ................................................................................................24, 36
IUE-CWA v. Gen. Motors Corp.,
238 F.R.D. 583 (E.D. Mich. 2006) ..........................................................................................23
Leonhardt v. ArvinMeritor, Inc.,
581 F. Supp. 2d 818 (E.D. Mich. 2008)...................................................................................32
Marcus v. Dep’t of Revenue,
206 F.R.D. 509 (D. Kan. 2002)................................................................................................38
Miller v. Univ. of Cincinnati,
241 F.R.D. 285 (S.D. Ohio 2006) ............................................................................................34
Powers v. Hamilton Cnty. Public Defender Comm.,
501 F.3d 595 (6th Cir. 2007) ...................................................................................................40
Rankin v. Rots,
No. 02-cv-71045, 2006 U.S. Dist. LEXIS 45706 (E.D. Mich. June 28, 2006) .......................25
Reed v. Advocate Health Care,
268 F.R.D. 573 (N.D. Ill. 2009) ...............................................................................................41
Robbins v. Koger Props., Inc.,
116 F.3d 1441 (11th Cir. 1997) ...............................................................................................28
Rotuna v. W. Customer Mgmt. Grp., LLC,
No. 09-cv-1608, 2010 U.S. Dist. LEXIS 58912 (N.D. Ohio June 15, 2010) ..........................42
Sheick v. Auto Component Carrier LCC,
No. 09-cv-14429, 2010 U.S. Dist. LEXIS 110411 (E.D. Mich. Oct. 18, 2010) ......................31
Stout v. J.D. Byrider,
228 F.3d 709 (6th Cir. 2000) ...................................................................................................36
Thacker v. Chesapeake Appalachia, L.L.C.,
259 F.R.D. 262 (E.D. Ky. 2009) ........................................................................................31, 43
Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2541 (2011) .............................................................................................................33
Other Authorities
4 Herbert B. Newberg & Alba Conte, NEWBERG ON CLASS ACTIONS (4th ed.
2005) ............................................................................................................................25, 31, 35
MANUAL FOR COMPLEX LITIGATION (FOURTH) (2004) ............................................................24, 32
vii
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Statutes
Antitrust Criminal Penalty Enforcement Reform Act, Pub. L. No. 108-237, §
213(a)-(b), 118 Stat. 661 (June 22, 2004), as amended by Pub. L. No. 111190, 124 Stat. 1275 (June 9, 2010) ..........................................................................................10
Fed. R. Civ. P. 16 Advisory Committee’s Note (1983) .................................................................24
Fed. R. Civ. P. 23 ................................................................................................................... passim
viii
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EPPs, on behalf of themselves and all others similarly situated, by and through the
undersigned Interim Co-Lead Class Counsel, respectfully submit this memorandum in support of
their motion seeking preliminary approval of a settlement with the DENSO Defendants and
provisional certification of the proposed Settlement Classes in the above-captioned actions.
PRELIMINARY STATEMENT
Automotive parts, including Automotive Wire Harness Systems, Instrument Panel
Clusters, Fuel Senders, Heater Control Panels, Alternators, Windshield Wiper Systems,
Radiators Starters, Ignition Coils, Motor Generators, HID Ballasts, Inverters, Air Flow Meters,
Fan Motors, Fuel Injection Systems, Power Window Motors, Automatic Transmission Fluid
Warmers, Oil Coolers, Valve Timing Control Devices, Electronic Throttle Bodies, Air
Conditioning Systems, Windshield Washer Systems, Spark Plugs, Oxygen Sensors and Air Fuel
Ratio Sensors, and Ceramic Substrates (collectively, the “Alleged Parts”), are among the parts at
issue in these coordinated multi-district proceedings, In re Automotive Parts Antitrust Litigation
(“Auto Parts Litigation”), MDL No. 2311. For the purpose of the proposed settlement, the
automotive parts generally and the various automotive parts that are the subject of the abovecaptioned actions are defined2 as follows:
“Automotive Parts” means any part or part assembly as defined in Paragraph 12 of the
Proposed Consolidated Amended Complaint, Case No. 2:13-cv-703 (Dec. 18, 2015), ECF No.
57-1, but without regard to whether or not it was sold directly to an OEM.
2
Unless otherwise defined herein, all capitalized terms shall have the same meaning as in the
settlement agreement between EPPs and the DENSO Defendants, dated July 14, 12016.
1
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“Automotive Wire Harness Systems” has the meaning of that term as used in Paragraph
3 of the Fourth Consolidated Class Action Complaint, Case No. 2:12-cv-00103 (Oct. 17, 2014),
ECF No. 234.
The Automotive Wire Harness Systems Defendants are:
DENSO Corporation
(“DENSO”), DENSO International America, Inc. (“DIAM”); Fujikura Ltd., Fujikura Automotive
America LLC; Furukawa Electric Co., Ltd., American Furukawa, Inc.; Lear Corporation; Kyungshin-Lear Sales and Engineering, LLC; Leoni Wiring Systems, Inc., Leonische Holding,
Inc.; Sumitomo Electric Industries, Ltd., Sumitomo Wiring Systems, Ltd., Sumitomo Electric
Wiring Systems, Inc., K&S Wiring Systems, Inc., Sumitomo Wiring Systems (U.S.A.) Inc.
(collectively, “Sumitomo”); Yazaki Corporation, Yazaki North America, Inc. (together,
“Yazaki”); Tokai Rika Co., Ltd., TRAM, Inc. d/b/a Tokai Rika U.S.A. Inc. (together, “Tokai
Rika”); GS Electech, Inc., G.S. Wiring Systems Inc., G.S.W. Manufacturing Inc.; Mitsubishi
Electric Corporation, Mitsubishi Electric US Holdings, Inc., Mitsubishi Electric Automotive
America, Inc. (collectively, “MELCO”), Chiyoda Manufacturing Corporation, and Chiyoda USA
Corporation.
“Instrument Panel Clusters” has the meaning of that term as used in Paragraph 2 of the
Second Consolidated Amended Class Action Complaint, Case No. 2:12-cv-00203 (Aug. 27,
2014), ECF No. 94.
The Instrument Panel Clusters Defendants are: Yazaki; DENSO, DIAM; Nippon Seiki
Co., Ltd., N.S. International, Ltd., New Sabina Industries, Inc.; Continental Automotive
Electronics LLC, Continental Automotive Korea Ltd., Continental Automotive Systems, Inc.
2
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“Fuel Senders” has the meaning of that term as used in Paragraph 2 of the Second
Consolidated Amended Class Action Complaint, Case No. 2:12-cv-00303 (Aug. 27, 2014), ECF
No. 86.
The Fuel Senders Defendants are: Yazaki; DENSO and DIAM.
“Heater Control Panels” has the meaning of that term as used in Paragraph 2 of the
Second Consolidated Amended Class Action Complaint, Case No. 2:12-cv-00403 (Aug. 25,
2014), ECF No. 103.
The Heater Control Panels Defendants are: DENSO, DIAM; Sumitomo; Tokai Rika;
Alps Electric Co., Ltd., Alps Electric (North America), Inc. and Alps Automotive Inc.
“Alternators” has the meaning of the term as used in Paragraph 2 of the Consolidated
Amended Class Action Complaint3, Case No. 2:13-cv-00703 (July 16, 2015), ECF No. 41.
The Alternators Defendants are:
DENSO, DIAM; MELCO; Hitachi, Ltd., Hitachi
Automotive Systems, Ltd. (together, “Hitachi”); Robert Bosch GmbH, Bosch Electrical Drives
Co., Ltd., Robert Bosch LLC (together, “Bosch”); Mitsuba Corporation and American Mitsuba
Corporation (together, “Mitsuba”).
“Windshield Wiper Systems” has the meaning of that term as used in Paragraph 2 of the
Corrected Consolidated Amended Class Action Complaint, Case No. 2:13-cv-00903 (Feb. 10,
2015), ECF No. 60.
3
End-Payor Plaintiffs operative complaints in the Alternators and Starters Actions are identical
to one another. End-Payor Plaintiffs intend to amend these complaints so as to, among other
things, limit one to Alternators and the other to Starters.
3
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The Windshield Wiper Systems Defendants are: DENSO, DIAM, DENSO International
Korea Corporation (“DIKR”), DENSO Korea Automotive Corporation, ASMO Co., Ltd., ASMO
North America, LLC, ASMO Greenville of North Carolina, Inc.; Mitsuba; and Bosch.
“Radiators” has the meaning of that term as used in Paragraph 3 of the Consolidated
Amended Class Action Complaint, Case No. 2:13-cv-01003 (June 13, 2014), ECF No. 28.
The Radiators Defendants are:
CalsonicKansei Corporation, CalsonicKansei North
America, Inc. (together, “Calsonic”); DENSO, DIAM; T.RAD Co., Ltd., T.RAD North America,
Inc. (together, “T.RAD”); and Mitsuba.
“Starters” has the meaning of the term as used in Paragraphs 3 of the Consolidated
Amended Class Action Complaint4, Case No. 2:13-cv-01103 (July 16, 2015), ECF No. 51.
The Starters Defendants are: DENSO, DIAM; MELCO; Hitachi; Bosch; and Mitsuba.
“Ignition Coils” has the meaning of that term as used in Paragraph 2 of the Consolidated
Amended Class Action Complaint, Case No. 2:13-cv-01403 (Aug. 11, 2015), ECF No. 40;
The Ignition Coils Defendants are: DENSO, DIAM; Diamond Electric Mfg. Co., Ltd.,
Diamond Electric Mfg. Corporation; Hitachi; MELCO; Toyo Denso Co. Ltd., and Weastec Inc.
“Motor Generators” has the meaning of that term as used in Paragraph 3 of the
Consolidated Amended Class Action Complaint, Case No. 2:13-cv-01503 (June 13, 2014), ECF
No. 11.
The Motor Generators Defendants are: DENSO, DIAM; and Hitachi.
“HID Ballasts” has the meaning of that term as used in Paragraph 3 of the Consolidated
Amended Class Action Complaint, Case No. 2:13-cv-01703 (June 13, 2014), ECF No. 10.
4
See n.3, supra.
4
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The HID Ballasts Defendants are: DENSO, DIAM; Panasonic Corporation, Panasonic
Corporation of North America (together, “Panasonic”); Stanley Electric Co., Ltd., Stanley
Electric U.S. Co., Inc., II Stanley Co., Inc.; Koito Manufacturing Co., Ltd., North American
Lighting, Inc.; and MELCO.
“Inverters” has the meaning of that term as used in Paragraph 2 of the Consolidated
Amended Class Action Complaint, Case No. 2:13-cv-01803 (Dec. 19, 2014), ECF No. 18.
The Inverters Defendants are: DENSO, DIAM; and Hitachi.
“Air Flow Meters” has the meaning of that term as used in Paragraph 3 of the Class
Action Complaint for Damages and Injunctive Relief, Case No. 2:13-cv-14198 (Oct. 2, 2013),
ECF No. 1.
The Air Flow Meters Defendants are: DENSO, DIAM; and Hitachi.5
“Fan Motors” have the meaning of the term as used in Paragraph 3 of the Consolidated
Amended Class Action Complaint, Case No. 2:13-cv-02003 (June 12, 2014), ECF No. 13.
The Fan Motors Defendant is: Presently, just Mitsuba6.
“Fuel Injection Systems” has the meaning of that term as used in Paragraph 2 of the
Corrected Consolidated Amended Class Action Complaint, Case No. 2:13-cv-02203 (Jan. 16,
2015), ECF No. 28.
5
Because End-Payor Plaintiffs’ operative complaint in the Fuel Injection Systems Action defines
Fuel Injection Systems to include Air Flow Meters, End-Payor Plaintiffs intend to consolidate
the Air Flow Meters and Fuel Injection Systems Actions. For the sole purpose of implementing
the Settlement Agreement, and subject to a reservation of all rights, the DENSO Defendants will
not oppose such consolidation.
6
End-Payor Plaintiffs intend to amend the Fan Motors complaint to name one or more of the
DENSO Defendants as a Defendant in the Fan Motors Action.
5
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The Fuel Injection Systems Defendants are: Aisan Industry Co., Ltd., Franklin Precision
Industry, Inc., Aisan Corporation of America, Hyundam Industrial Co., Ltd.; DENSO, DIAM,
DIKR; Hitachi; Keihin Corporation, Keihin North America, Inc.; Mikuni Corporation, Mikuni
American Corporation (together, “Mikuni”); Mitsuba; MELCO; and Bosch.
“Power Window Motors” has the meaning of that term as used in Paragraph 3 of the
Consolidated Amended Class Action Complaint, Case No. 2:13-cv-02303 (June 17, 2014), ECF
No. 18.
The Power Window Motors Defendants are: DENSO, DIAM; and Mitsuba.
“Automatic Transmission Fluid Warmers” and “Oil Coolers” have the meaning of
those terms as used in Paragraphs 2 and 3 of the Consolidated Amended Class Action Complaint,
Case No. 2:13-cv-02403 (Aug. 26, 2015), ECF No. 17.
The Automatic Transmission Fluid Warmers and Oil Coolers Defendants are: DENSO,
DIAM; T.RAD; and Calsonic.
“Valve Timing Control Devices” has the meaning of that term as used in Paragraph 2 of
the Second Corrected Consolidated Amended Class Action Complaint, Case No. 2:13-cv-02503
(Feb. 18, 2015), ECF No. 53.
The Valve Timing Control Devices Defendants are:
Aisin Seiki Co., Ltd., Aisin
Automotive Casting, LLC; DENSO, DIAM, DIKR; Hitachi; MELCO; and Mikuni.
“Electronic Throttle Bodies” has the meaning of that term as used in Paragraph 3 of the
Class Action Complaint for Damages and Injunctive Relief, Case No. 2:13-cv-14229 (Oct. 3,
2013), ECF No. 1.
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The Electronic Throttle Bodies Defendant is: Hitachi.7
“Air Conditioning Systems” has the meaning of that term as used in Paragraph 3 of the
Consolidated Class Action Complaint, Case No. 2:13-cv-02703 (Sept. 4, 2015), ECF No. 31.
The Air Conditioning Systems Defendants are: Valeo Japan Co., Ltd., Valeo Inc., Valeo
Electrical Systems, Inc., Valeo Climate Control Corp.; Mitsubishi Heavy Industries, Ltd.,
Mitsubishi Heavy Industries America, Inc., Mitsubishi Heavy Industries Climate Control, Inc.;
DENSO, DIAM; Sanden Automotive Components Corporation, Sanden Automotive Climate
Systems Corporation, Sanden International (U.S.A.) Inc.; Showa Denko K.K., Showa Aluminum
Corporation of America; Calsonic; Panasonic; MAHLE Behr GmbH & Co. KG and MAHLE
Behr USA Inc.
“Windshield Washer Systems” has the meaning of that term as used in Paragraph 3 of
the Consolidated Amended Class Action Complaint, Case No. 2:13-cv-02803 (June 12, 2014),
ECF No. 8.
The Windshield Washer Defendants are: DENSO, ASMO Co., Ltd., DIAM, ASMO
North America, LLC, ASMO Manufacturing, Inc.; and Mitsuba.
“Spark Plugs,” “Oxygen Sensors,” and “Air Fuel Ratio Sensors” have the meaning of
those terms as used in Paragraphs 2 through 4 of the Class Action Complaint, Case No. 2:15-cv11868 (May 22, 2015), ECF No. 2.
The Spark Plugs, Oxygen Sensors and Air Fuel Ratio Sensors Defendants are: DENSO,
DIAM, DENSO Automotive Deutschland GmbH; NGK Spark Plug Co. Ltd., NGK Spark Plugs
(U.S.A.), Inc.; Robert Bosch GmbH and Robert Bosch LLC.
7
Because End-Payor Plaintiffs’ operative complaint in the Fuel Injection Systems Action defines
Fuel Injection Systems to include Electronic Throttle Bodies, End-Payor Plaintiffs intend to
consolidate the Electronic Throttle Bodies and Fuel Injection Systems Actions.
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“Ceramic Substrates” has the meaning of that term as used in Paragraph 2 of the Class
Action Complaint, Case No. 2:16-cv-11804 (May 20, 2016), ECF No. 2.
The Ceramic Substrates Defendants are: DENSO Corporation, DIAM; NGK Insulators
Ltd., NGK Automotive Ceramics USA, Inc.; Corning International Kabushiki Kaisha and
Corning Incorporated.
These actions arise from conspiracies by and among the automotive industry’s largest
manufacturers, marketers, and sellers of automotive parts to fix prices, rig bids, and allocate the
market and customers in the United States for the sale of such products.
EPPs filed class action complaints involving the Alleged Parts against the abovereferenced Defendants between January 31, 2012 and May 20, 2016. The Complaints assert
claims for relief under the Sherman Act, 15 U.S.C. § 1, and various State antitrust, unjust
enrichment, and consumer protection laws. On December 18, 2015, EPPs filed a motion for
leave to file a Proposed Consolidated Amended Complaint, in which the EPPs alleged a broad
conspiracy as to “Automotive Parts,” as defined in Paragraph 12 of the Proposed Consolidated
Amended Complaint. See, e.g., Alternators, 2:13-cv-00703 (Dec. 18, 2015), ECF No. 57-1. On
April 13, 2016, the Court denied EPPs’ Motion to Consolidate and Amend Complaints and to
proceed with the Proposed Consolidated Amended Complaint. The Court’s decision is subject to
appeal.
EPPs’ Complaints involving the Alleged Parts were coordinated as part of the Auto Parts
Litigation. The Court also appointed the undersigned firms as Interim Co-Lead Class Counsel
and Interim Liaison Counsel for the End-Payor Plaintiffs in the Master Docket for MDL No.
2311. See Case Management Order No. 3, Master File No. 2:12-md-2311, Case No. 2:12-cv00100 (Aug. 7, 2012, ECF No. 271). From the inception of these cases, Interim Co-Lead Class
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Counsel have represented the interests of the classes of EPPs, including overseeing and directing
the prosecution and settlement of the claims brought against the DENSO Defendants. This
proposed settlement is a result of those efforts.
EPPs and the classes they represent are consumers and businesses who (i) purchased or
leased a new Vehicle (defined below) in the United States not for resale containing one or more
of the Alleged Parts manufactured or sold by DENSO, its co-defendant(s) or conspirator(s) or (ii)
indirectly purchased one or more of the Alleged Parts manufactured or sold by DENSO, its codefendant(s) or conspirator(s) as replacement parts.
EPPs allege that Defendants agreed to and did unlawfully fix, artificially raise, maintain
and/or stabilize prices, rig bids for, and allocate the supply of the Alleged Parts, and then sold
those products at supracompetitive prices to automobile manufacturers in the United States and
elsewhere. See, e.g., EPPs’ Corrected Consolidated Amended Complaint in In re Fuel Injection
Systems ¶¶ 1, 121.
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 and executed search warrants carried out in some
of Defendants’ offices. As a result of the DOJ investigation, DENSO Corporation (1) agreed to
plead guilty and pay a $78 million criminal fine for conspiring to suppress and eliminate
competition in the automotive parts industry by agreeing to rig bids for, and to fix, stabilize, and
maintain the prices of (a) certain electronic control units (“ECUs”) sold to an automobile
manufacturer in the United States and elsewhere from at least as early as January 2000 until at
least February 2010, in violation of the Sherman Act, 15 U.S.C. § 1, and (b) heater control panels
(“HCPs”) sold to an automobile manufacturer in the United States and elsewhere from at least as
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early as January 2000 until at least February 2010, in violation of the Sherman Act, 15 U.S.C. §
1, and (2) agreed to cooperate with the DOJ in its investigation into alleged antitrust violations as
to the manufacture and sale of ECUs and HCPs, and any litigation or other proceedings arising
or resulting from such investigation to which the United States is a party. See Plea Agreement at
¶ 4, 11, United States v. DENSO Corp., Case No. 2:12-cr-20063-GCS-PJK (E.D. Mich. Mar. 5,
2012) (ECF No. 9).
The settlement between the EPPs and the DENSO Defendants is meaningful and
substantial and will result in a payment of $193,800,000 for the benefit of the EPP Classes, a
very significant achievement in this litigation. The monetary component of the settlement is
particularly valuable in light of the fact that had the case proceeded to trial, DENSO would have
argued that it was subject to limited liability because, as the leniency applicant in many cases, it
would not have been subject to joint and several liability and treble damages in those cases under
the Antitrust Criminal Penalty Enforcement Reform Act (“ACPERA”). Pub. L. No. 108-237, §
213(a)-(b), 118 Stat. 661, 666-69 (June 22, 2004), as amended by Pub. L. No. 111-190, 124 Stat.
1275 (June 9, 2010). Standing alone, the monetary recovery from the DENSO Defendants is
remarkable, but the settlement is also valuable to the EPPs in that it requires the DENSO
Defendants to: (1) agree to an injunction prohibiting them for a period of two years beginning
on the date of entry of the final order and judgment, from engaging in any price-fixing, bidrigging, or market allocation as to any Automotive Part in violation of Section 1 of the Sherman
Act; and (2) provide comprehensive cooperation in the form of, inter alia, interviews with and
depositions of witnesses, and the production of certain documents (including transactional data),
related to the claims asserted in these cases. The ability to obtain such assistance without
protracted and expensive discovery is extremely valuable to the EPPs. The DENSO Defendants’
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cooperation agreement will greatly enhance the EPPs’ ability to prosecute their claims against
the remaining non-settling Defendants.
Additionally, the DENSO Defendants’ sales will remain in the case for purposes of
computing the treble damages claim against the non-settling Defendants in accordance with
governing law and shall be part of any joint and several liability claims against other current or
future defendants. See Settlement Agreement ¶ 62. The EPPs and the members of the proposed
Settlement Classes will retain their ability to recover from the remaining Defendants the entire
amount of damages caused by the alleged conspiracies, even those attributable to the DENSO
Defendants, less only the amount paid by the DENSO Defendants in settlement.
EPPs and their Interim Co-Lead Class Counsel believe, for all the reasons set forth
herein, that the settlement with the DENSO Defendants is in the best interest of the proposed
Settlement Classes and merits the Court’s preliminary approval. EPPs therefore request the entry
of an Order:
1.
Preliminarily approving the settlement;
2.
Provisionally certifying the proposed Settlement Classes;
3.
Staying the proceedings against the DENSO Defendants in accordance with the
terms of the Settlement Agreement; and
4.
Appointing Interim Co-Lead Class counsel for EPPs as Settlement Class Counsel
for this settlement.
THE BASIC TERMS AND BACKGROUND OF THE SETTLEMENT AGREEMENT
The Settlement Agreement with the DENSO Defendants arises from extensive arm’s
length and good faith negotiations in addition to a two-day in-person mediation with a highly
experienced mediator from JAMS, followed by continuing negotiations between the parties with
the assistance of the mediator. In connection with the mediation, EPPs’ counsel participated in
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intensive fact-gathering sessions and informational meetings, as well as extensive negotiations
that took place over several months through telephone calls, in-person meetings, and other
communications.
Settlement Classes: The Settlement Agreement defines the Settlement Classes in the
various actions as follows:
(a)
“Automotive Wire Harness Systems Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Automotive Wire Harness Systems as a component part, or indirectly
purchased one or more Automotive Wire Harness Systems as a replacement part,
which were manufactured or sold by a Defendant, any current or former
subsidiary of a Defendant, or any co-conspirator of a Defendant. Excluded from
the Automotive Wire Harness Systems Settlement Class are Defendants, their
parent companies, subsidiaries and affiliates, any co-conspirators, federal
governmental entities and instrumentalities of the federal government, states and
their subdivisions, agencies and instrumentalities, and persons who purchased
Automotive Wire Harness Systems directly or for resale.
(b)
“Instrument Panel Clusters Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Instrument Panel Clusters as a component part, or indirectly
purchased one or more Instrument Panel Clusters as a replacement part, which
were manufactured or sold by a Defendant, any current or former subsidiary of a
Defendant, or any co-conspirator of a Defendant. Excluded from the Instrument
Panel Clusters Settlement Class are Defendants, their parent companies,
subsidiaries and affiliates, any co-conspirators, federal governmental entities and
instrumentalities of the federal government, states and their subdivisions, agencies
and instrumentalities, and persons who purchased Instrument Panel Clusters
directly or for resale.
(c)
“Fuel Senders Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
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one or more Fuel Senders as a component part, or indirectly purchased one or
more Fuel Senders as a replacement part, which were manufactured or sold by a
Defendant, any current or former subsidiary of a Defendant, or any co-conspirator
of a Defendant. Excluded from the Fuel Senders Settlement Class are
Defendants, their parent companies, subsidiaries and affiliates, any coconspirators, federal governmental entities and instrumentalities of the federal
government, states and their subdivisions, agencies and instrumentalities, and
persons who purchased Fuel Senders directly or for resale.
(d)
“Heater Control Panels Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Heater Control Panels as a component part, or indirectly purchased
one or more Heater Control Panels as a replacement part, which were
manufactured or sold by a Defendant, any current or former subsidiary of a
Defendant, or any co-conspirator of a Defendant. Excluded from the Heater
Control Panels Settlement Class are Defendants, their parent companies,
subsidiaries and affiliates, any co-conspirators, federal governmental entities and
instrumentalities of the federal government, states and their subdivisions, agencies
and instrumentalities, and persons who purchased Heater Control Panels directly
or for resale.
(e)
“Alternators Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Alternators as a component part, or indirectly purchased one or more
Alternators as a replacement part, which were manufactured or sold by a
Defendant, any current or former subsidiary of a Defendant, or any co-conspirator
of a Defendant. Excluded from the Alternators Settlement Class are Defendants,
their parent companies, subsidiaries and affiliates, any co-conspirators, federal
governmental entities and instrumentalities of the federal government, states and
their subdivisions, agencies and instrumentalities, and persons who purchased
Alternators directly or for resale.8
(f)
“Windshield Wiper Systems Settlement Class” is defined as:
8
See n.3, supra.
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All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Windshield Wiper Systems as a component part, or indirectly
purchased one or more Windshield Wiper Systems as a replacement part, which
were manufactured or sold by a Defendant, any current or former subsidiary of a
Defendant, or any co-conspirator of a Defendant. Excluded from the Windshield
Wiper Systems Settlement Class are Defendants, their parent companies,
subsidiaries and affiliates, any co-conspirators, federal governmental entities and
instrumentalities of the federal government, states and their subdivisions, agencies
and instrumentalities, and persons who purchased Windshield Wiper Systems
directly or for resale.
(g)
“Radiators Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Radiators as a component part, or indirectly purchased one or more
Radiators as a replacement part, which were manufactured or sold by a
Defendant, any current or former subsidiary of a Defendant, or any co-conspirator
of a Defendant. Excluded from the Radiators Settlement Class are Defendants,
their parent companies, subsidiaries and affiliates, any co-conspirators, federal
governmental entities and instrumentalities of the federal government, states and
their subdivisions, agencies and instrumentalities, and persons who purchased
Radiators directly or for resale.
(h)
“Starters Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Starters as a component part, or indirectly purchased one or more
Starters as a replacement part, which were manufactured or sold by a Defendant,
any current or former subsidiary of a Defendant, or any co-conspirator of a
Defendant. Excluded from the Starters Settlement Class are Defendants, their
parent companies, subsidiaries and affiliates, any co-conspirators, federal
governmental entities and instrumentalities of the federal government, states and
their subdivisions, agencies and instrumentalities, and persons who purchased
Starters directly or for resale.9
9
See n.3, supra.
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(i)
“Ignition Coils Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Ignition Coils as a component part, or indirectly purchased one or
more Ignition Coils as a replacement part, which were manufactured or sold by a
Defendant, any current or former subsidiary of a Defendant, or any co-conspirator
of a Defendant. Excluded from the Ignition Coils Settlement Class are
Defendants, their parent companies, subsidiaries and affiliates, any coconspirators, federal governmental entities and instrumentalities of the federal
government, states and their subdivisions, agencies and instrumentalities, and
persons who purchased Ignition Coils directly or for resale.
(j)
“Motor Generators Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Motor Generators as a component part, or indirectly purchased one or
more Motor Generators as a replacement part, which were manufactured or sold
by a Defendant, any current or former subsidiary of a Defendant, or any coconspirator of a Defendant. Excluded from the Motor Generators Settlement
Class are Defendants, their parent companies, subsidiaries and affiliates, any coconspirators, federal governmental entities and instrumentalities of the federal
government, states and their subdivisions, agencies and instrumentalities, and
persons who purchased Motor Generators directly or for resale.
(k)
“HID Ballasts Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more HID Ballasts as a component part, or indirectly purchased one or
more HID Ballasts as a replacement part, which were manufactured or sold by a
Defendant, any current or former subsidiary of a Defendant, or any co-conspirator
of a Defendant. Excluded from the HID Ballasts Settlement Class are
Defendants, their parent companies, subsidiaries and affiliates, any coconspirators, federal governmental entities and instrumentalities of the federal
government, states and their subdivisions, agencies and instrumentalities, and
persons who purchased HID Ballasts directly or for resale.
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(l)
“Inverters Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Inverters as a component part, or indirectly purchased one or more
Inverters as a replacement part, which were manufactured or sold by a Defendant,
any current or former subsidiary of a Defendant, or any co-conspirator of a
Defendant. Excluded from the Inverters Settlement Class are Defendants, their
parent companies, subsidiaries and affiliates, any co-conspirators, federal
governmental entities and instrumentalities of the federal government, states and
their subdivisions, agencies and instrumentalities, and persons who purchased
Inverters directly or for resale.
(m)
“Fan Motors Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Fan Motors as a component part, or indirectly purchased one or more
Fan Motors as a replacement part, which were manufactured or sold by a
Defendant, any current or former subsidiary of a Defendant, or any co-conspirator
of a Defendant. Excluded from the Fan Motors Settlement Class are Defendants,
their parent companies, subsidiaries and affiliates, any co-conspirators, federal
governmental entities and instrumentalities of the federal government, states and
their subdivisions, agencies and instrumentalities, and persons who purchased Fan
Motors directly or for resale.10
(n)
“Fuel Injection Systems Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Fuel Injection Systems as a component part, or indirectly purchased
one or more Fuel Injection Systems as a replacement part, which were
manufactured or sold by a Defendant, any current or former subsidiary of a
Defendant, or any co-conspirator of a Defendant. Excluded from the Fuel
Injection Systems Settlement Class are Defendants, their parent companies,
subsidiaries and affiliates, any co-conspirators, federal governmental entities and
instrumentalities of the federal government, states and their subdivisions, agencies
10
See n. 6, supra.
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and instrumentalities, and persons who purchased Fuel Injection Systems directly
or for resale.11
(o)
“Power Window Motors Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Power Window Motors as a component part, or indirectly purchased
one or more Power Window Motors as a replacement part, which were
manufactured or sold by a Defendant, any current or former subsidiary of a
Defendant, or any co-conspirator of a Defendant. Excluded from the Power
Window Motors Settlement Class are Defendants, their parent companies,
subsidiaries and affiliates, any co-conspirators, federal governmental entities and
instrumentalities of the federal government, states and their subdivisions, agencies
and instrumentalities, and persons who purchased Power Window Motors directly
or for resale.
(p)
“Automatic Transmission Fluid Warmers and Oil Coolers Settlement
Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Automatic Transmission Fluid Warmers or Oil Coolers as a
component part, or indirectly purchased one or more Automatic Transmission
Fluid Warmers or Oil Coolers as a replacement part, which were manufactured or
sold by a Defendant, any current or former subsidiary of a Defendant, or any coconspirator of a Defendant. Excluded from the Automatic Transmission Fluid
Warmers and Oil Coolers Settlement Class are Defendants, their parent
companies, subsidiaries and affiliates, any co-conspirators, federal governmental
entities and instrumentalities of the federal government, states and their
subdivisions, agencies and instrumentalities, and persons who purchased
Automatic Transmission Fluid Warmers or Oil Coolers directly or for resale.
(q)
“Valve Timing Control Devices Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
11
Because the Fuel Injection Systems Settlement Class includes end-payor purchasers of Air
Flow Meters and Electronic Throttle Bodies, the Agreement does not provide for separate
settlement classes for end-payor purchasers of those products.
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one or more Valve Timing Control Devices as a component part, or indirectly
purchased one or more Valve Timing Control Devices as a replacement part,
which were manufactured or sold by a Defendant, any current or former
subsidiary of a Defendant, or any co-conspirator of a Defendant. Excluded from
the Valve Timing Control Devices Settlement Class are Defendants, their parent
companies, subsidiaries and affiliates, any co-conspirators, federal governmental
entities and instrumentalities of the federal government, states and their
subdivisions, agencies and instrumentalities, and persons who purchased Valve
Timing Control Devices directly or for resale.
(r)
“Air Conditioning Systems Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Air Conditioning Systems as a component part, or indirectly
purchased one or more Air Conditioning Systems as a replacement part, which
were manufactured or sold by a Defendant, any current or former subsidiary of a
Defendant, or any co-conspirator of a Defendant. Excluded from the Air
Conditioning Systems Settlement Class are Defendants, their parent companies,
subsidiaries and affiliates, any co-conspirators, federal governmental entities and
instrumentalities of the federal government, states and their subdivisions, agencies
and instrumentalities, and persons who purchased Air Conditioning Systems
directly or for resale.
(s)
“Windshield Washer Systems Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Windshield Washer Systems as a component part, or indirectly
purchased one or more Windshield Washer Systems as a replacement part, which
were manufactured or sold by a Defendant, any current or former subsidiary of a
Defendant, or any co-conspirator of a Defendant. Excluded from the Windshield
Washer Systems Settlement Class are Defendants, their parent companies,
subsidiaries and affiliates, any co-conspirators, federal governmental entities and
instrumentalities of the federal government, states and their subdivisions, agencies
and instrumentalities, and persons who purchased Windshield Washer Systems
directly or for resale.
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(t)
“Spark Plugs, Oxygen Sensors, and Air Fuel Ratio Sensors Settlement
Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Spark Plugs, Oxygen Sensors, or Air Fuel Ratio Sensors as a
component part, or indirectly purchased one or more Spark Plugs, Oxygen
Sensors, or Air Fuel Ratio Sensors as a replacement part, which were
manufactured or sold by a Defendant, any current or former subsidiary of a
Defendant, or any co-conspirator of a Defendant. Excluded from the Spark Plugs,
Oxygen Sensors, and Air Fuel Ratio Sensors Settlement Class are Defendants,
their parent companies, subsidiaries and affiliates, any co-conspirators, federal
governmental entities and instrumentalities of the federal government, states and
their subdivisions, agencies and instrumentalities, and persons who purchased
Spark Plugs, Oxygen Sensors, or Air Fuel Ratio Sensors directly or for resale.
(u)
“Ceramic Substrates Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Ceramic Substrates as a component part, or indirectly purchased one
or more Ceramic Substrates as a replacement part, which were manufactured or
sold by a Defendant, any current or former subsidiary of a Defendant, or any coconspirator of a Defendant. Excluded from the Ceramic Substrates Settlement
Class are Defendants, their parent companies, subsidiaries and affiliates, any coconspirators, federal governmental entities and instrumentalities of the federal
government, states and their subdivisions, agencies and instrumentalities, and
persons who purchased Ceramic Substrates directly or for resale.
Settlement Agreement at ¶ 20.
“Vehicle” is defined in the Agreement to mean “any automobile, car, light truck,
pickup truck, crossover, van, mini-van, sport utility vehicle, or similar motor vehicle.”
Settlement Amount: The DENSO Defendants have agreed to pay $193,800,000 by
wiring such funds to one or more escrow accounts (“Escrow Account(s)”) established at Wells
Fargo Bank within thirty (30) days following the later of (a) the date the Court grants preliminary
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approval of this proposed settlement or (b) the DENSO Defendants are provided with the
account number, account name, and wiring information for the Escrow Account(s). Id. ¶¶ at 34,
36. After the Settlement Amount has been paid into the Escrow Account(s) at Wells Fargo
Bank, EPPs shall allocate the Settlement Amount as follows:

for the Automotive Wire Harness Systems Settlement Class, $14,531,801;

for the Instrument Panel Clusters Settlement Class, $7,525,762;

for the Fuel Senders Settlement Class, $187,823;

for the Heater Control Panels Settlement Class, $14,676,679;

for the Alternators Settlement Class, $50,449,261;

for the Windshield Wiper Systems Settlement Class, $3,310,103;

for the Radiators Settlement Class, $15,760,989;

for the Starters Settlement Class, $9,709,228;

for the Ignition Coils Settlement Class, $16,746,824;

for the Motor Generators Settlement Class, $142,120;

for the HID Ballasts Settlement Class, $1,424,803;

for the Inverters Settlement Class, $142,120;

for the Fan Motors Settlement Class, $142,120;

for the Fuel Injection Systems Settlement Class, $19,392,650;

for the Power Window Motors Settlement Class, $142,120;

for the Automatic Transmission Fluid Warmers and Oil Coolers
Settlement Class, $1,662,943;

for the Valve Timing Control Devices Settlement Class, $4,362,039;

for the Air Conditioning Systems Settlement Class, $21,836,133;

for the Windshield Washer Systems Settlement Class, $362,978;
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
for the Spark Plugs, Oxygen Sensors and Air Fuel Ratio Sensors
Settlement Class, $9,760,366; and

for the Ceramic Substrates Settlement Class, $1,531,138.
Cooperation: In addition to the ACPERA cooperation that they have already provided
EPPs, the DENSO Defendants have agreed to provide extensive cooperation to the EPPs that
will significantly aid in their prosecution of claims against the remaining Defendants. A general
summary of the DENSO Defendants’ cooperation obligations is provided below. The terms of
this cooperation agreement are set forth in more detail in Section J (¶¶ 43-56) of the Settlement
Agreement. The DENSO Defendants’ obligation to cooperate includes, among many other
things, the duty to provide:
a. Transactional Data concerning the DENSO Defendants’ bids for and sales
of the Alleged Parts, to the extent that EPPs continue to pursue claims
against one or more other Defendants with respect to the respective part at
the time of production;
b. Additional Documents, if any, related to any Alleged Parts to the extent
End-Payor Plaintiffs continue to pursue claims against one or more other
Defendants with respect to the respective part at the time of production;
c. Subject to certain conditions, as set forth in the Settlement Agreement, a
list of current or former officers, directors, or employees who were
interviewed by any Government Entity, who testified before a grand jury
in connection with the DOJ’s investigation, or were disclosed to any
Government Entity as having knowledge of alleged antitrust violations as
to the Alleged Parts; and
d. Witness interviews, deposition testimony, declarations or affidavits, and
trial testimony in any of the Actions related to any Alleged Parts to the
extent End-Payor Plaintiffs continue to pursue claims against one or more
other Defendants.
Id. at ¶¶ 44, 45, 48.
Injunction: The Settlement Agreement provides that the terms of the order and final
judgment to be entered against the DENSO Defendants will include an injunction that prohibits
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the DENSO Defendants, “for a period of two years beginning on the date of entry of the final
order and judgment, from engaging in any price-fixing, bid-rigging, or market allocation as to
any Automotive Part in violation of Section 1 of the Sherman Act.” Id. at ¶ 29(g).
Released Claims: The Settlement Agreement releases only the DENSO Defendants (and
their respective past and present parents, subsidiaries, affiliates, partners, insurers, and all other
persons, partnerships or corporations with whom any of the foregoing have been, or are now,
affiliated, and each of their respective past and present officers, directors, employees, agents,
stockholders, attorneys, servants, representatives, and insurers, and the predecessors, successors,
heirs, executors, administrators and assigns of any of the foregoing) from all claims arising out
of or relating in any way to any conduct alleged in the Complaints, the Proposed Consolidated
Amended Complaint, or any act or omission of the DENSO Defendants, concerning any or all
Released Parts. See Settlement Agreement ¶¶ 18, 19, 32.
The release does not include (1) any claims based on direct purchases of Released Parts;
(2) any claims made in the MDL Proceeding with respect to an indirect purchase of a Released
Part, for resale; (3) 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 Released Parts; (4)
claims involving any 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 Released Parts; (5) claims concerning any product other than Released Parts; (6)
claims under laws other than those of the United States relating to purchases of Released Parts
made outside of the United States; and (7) damage claims under the state or local laws of any
jurisdiction other than an Indirect Purchaser State relating to purchases or leases made by
Releasors outside of an Indirect Purchaser State. Id. ¶ 32. The Settlement Agreement also
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provides that the DENSO 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. Id. ¶ 62.
ARGUMENT
The Settlement Agreement is not only fair, reasonable, and adequate—resulting from
extensive arm’s length negotiations by experienced counsel with the assistance of an experienced
mediator—but also a thoughtfully conceived resolution of the proposed Settlement Classes’
claims that maximizes their recovery. Indeed, the monetary component of the settlement with
the DENSO Defendants is the largest, to date, in the Auto Parts Litigation. Moreover, the
settlement with the DENSO Defendants effectively resolves EPPs’ claims against all defendants
in several cases12 and guarantees cooperation by the DENSO Defendants in the continued
prosecution of EPPs’ claims in all of the other outstanding cases subject to this Agreement.
I.
Preliminary Approval Should be Granted Because the Proposed Settlement Falls
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.,
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.,
12
The settlement with the DENSO Defendants resolves all of EPPs’ claims in the following
actions: (1) Fuel Senders, Case No. 2:12-cv-00303; (2) Motor Generators, Case No. 2:13-cv01503; and (3) Inverters, Case No. 2:13-cv-01803.
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No. 08-MD-01952, 2011 U.S. Dist. LEXIS 17255, at *44 (E.D. Mich. Feb. 22, 2011)
(“Packaged Ice”); 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.”
Fed. R. Civ. P. 16 Advisory Committee’s Note (1983) (citing 6A CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE
AND
PROCEDURE § 1522, at 225-26 (1971)); 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 U.S. Dist. LEXIS 62365, at *4 (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., 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
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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 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 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., No. 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 In re Packaged Ice
Antitrust Litig., No. 08-MD-01952, 2010 U.S. Dist. LEXIS 77645, at *35 (E.D. Mich. Aug. 2,
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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
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 Settlement Agreement.
A.
The Settlement Agreement Achieves 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., 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));
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”). Indeed, in the Auto Parts Litigation, the Court recognized that
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“EPPs face significant challenges” in litigating their claims. See, e.g., Opinion and Order
Granting Final Approval of Class Action Settlement, 2:13-cv-01803, ECF No. 97. 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.13 Additionally, the DENSO
Defendants would 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 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 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, as the Court recognized in granting final approval of EPPs’ settlements with
nine separate defendants and their affiliates, given the stakes involved, an appeal is nearly certain
13
Because Interim Co-Lead Class Counsel may have to litigate against the non-settling
Defendants through trial and appeal, their duties to the Classes preclude a more detailed
discussion of their potential litigation risks. Instead, Interim Co-Lead Class Counsel here recite
the arguments that have been and are expected to be raised by Defendants.
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to follow regardless of the outcome at trial. See Opinion and Order Granting Final Approval of
Class Action Settlement, Case No. 2:13-cv-01803, ECF No. 97. 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 Classes than receiving the benefits of the
proposed Settlement at this time”). Hence, “the 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. The DENSO
Defendants’ $193,800,000 payment provides for significant compensation to the proposed
Settlement Classes that will be available years earlier than would be the case if litigation against
the DENSO Defendants continued through trial and appeal.
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monetary component of the settlement is particularly valuable in light of the fact that DENSO
would have likely sought the ACPERA benefits of single as opposed to treble damages and
liability limited to their own sales as opposed to joint and several liability based on their sales
and those of their co-conspirators if the case proceeded to trial and EPPs were to obtain a
judgment against DENSO. 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); In re Linerboard
Antitrust Litig., 292 F. Supp. 2d 631, 643 (E.D. Pa. 2003); In re Corrugated Container Antitrust
Litig., MDL No. 310, 1981 U.S. Dist. LEXIS 9687, at *49 (S.D. Tex. June 4, 1981)
(“Corrugated Container”).
In addition, the settlement with the DENSO Defendants fully resolves EPPs’ claims in a
handful of actions. Specifically, the settlement with the DENSO Defendants resolves EPPs’
claims in the Fuel Senders, 2:12-cv-00303, Motor Generators, 2:13-cv-01503, and Inverters,
2:13-cv-01803, actions, allowing EPPs and Interim Co-Lead Class Counsel to focus their
litigation efforts on a smaller number of pending cases.
Of particular importance is the fact that, in addition to the cooperation already provided by
DENSO, the Settlement Agreement requires the DENSO Defendants to provide substantial
ongoing discovery cooperation, subject to certain limitations, to Interim Co-Lead Class Counsel
in the remaining cases by providing transactional data, interviews, documents, depositions, and
trial testimony, among other cooperation.
See Settlement Agreement § J (¶¶ 43-56). This
cooperation agreement is extremely valuable to the classes. The DENSO Defendants’
cooperation in the remaining cases will afford EPPs access to transactional data, documents, and
witnesses without protracted and expensive discovery—a significant class-wide benefit. See,
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e.g., In re Packaged Ice Antitrust Litig., No. 08-MD-01952, 2010 U.S. Dist. LEXIS 77645, at
*44 (E.D. Mich. Aug. 2, 2010) (“Particularly where, as here, there is the potential for a
significant benefit to the class in the form of cooperation on the part of the settling Defendant,
this Court is reluctant to refuse to consider the very preliminary approval that will trigger that
cooperation”); see also Linerboard, 292 F. Supp. 2d at 643; Corrugated Container, 1981 U.S.
Dist. LEXIS 9687, at *49; cf. In re Pressure Sensitive Labelstock Antitrust Litig., 584 F. Supp.
2d 697, 702 (M.D. Pa. 2008) (“[T]he benefit of obtaining the cooperation of the Settling
Defendants tends to offset the fact that they would be able to withstand a larger judgment.”).
The Settlement Agreement also specifically provides that it does not alter the non-settling
defendants’ joint and several liability for the full damages caused by the alleged conspiracies,
including all sales made by these Defendants. See Settlement Agreement ¶ 62. 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 remaining defendants, less the actual amount of the initial
settlement. 1981 U.S. Dist. LEXIS 9687, at *49; 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, the EPPs will be able to pursue their full damages, with no
diminution other than deduction of the actual DENSO settlement amount.
B.
The Settlement Agreement is the Result of Thorough Arm’s-Length
Negotiations Conducted By Highly Experienced Counsel With the Assistance
of a Mediator.
This settlement is entitled to “an initial presumption of fairness” because it is the result of
arm’s-length negotiations among experienced counsel with the assistance of an internationally30
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renowned mediator. Newberg § 11.41. The judgment of Interim Co-Lead Class Counsel that the
settlement is in the best interest of the proposed Settlement Classes “is entitled to significant
weight, and supports the fairness of the class settlement.” Sheick v. Auto Component Carrier
LCC, No. 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 Settlement
Agreement here is the result of lengthy and hard-fought negotiations between counsel
experienced in complex antitrust and consumer class action litigation.
The Settlement
Agreement, in its initial form, was negotiated for months by Interim Co-Lead Class Counsel in a
process that involved multiple discussions with counsel for the DENSO Defendants, including
in-person meetings.
Interim Co-Lead 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 negotiating this deal.
Interim Co-Lead Class Counsel for the EPPs was well-informed about the facts and the
strength of the claims asserted when the terms of the Settlement Agreement were initially
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
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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, No. 09-cv-440, 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
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 classes, noting the court’s earlier, preliminary approval
of the settlement classes 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 class satisfies
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. 08MD-01952, 2010 U.S. Dist. LEXIS 140235, at *27-28 (E.D. Mich. Sept. 2, 2010).
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While the Supreme Court reiterated that, particularly in the context of a litigated class
certification motion, 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), even in that context the requisite “rigorous analysis” of the record and consideration of
the merits must be focused on and limited to the question whether Rule 23’s requirements have
been established. 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
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 by the Courts in this District
and elsewhere. EPPs’ 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
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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., No. 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.
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).
Here, the proposed Settlement Classes consist of all persons and entities who, from
January 1, 1998, through the Execution Date of the Settlement Agreement between the DENSO
Defendants and the EPPs, purchased or leased a new Vehicle in the United States not for resale
which included one or more of the Alleged Parts as a component part or indirectly purchased one
or more of the Alleged Parts as a replacement part. It is beyond dispute that millions of persons
and entities throughout the United States have purchased or leased new Vehicles not for resale
containing the Alleged Parts. As a result of the large number of putative class members and their
geographic distribution throughout the United States, joinder is highly impractical – if not
impossible.
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ii.
End-Payor Plaintiff 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. FrontLoading Washer Prods. Liab. Litig., 722 F.3d at 853; see also Avio, Inc. v. Alfoccino, Inc., 311
F.R.D. 434, 444 (E.D. Mich. 2015) (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., No. 0715474, 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. 02-1486, 2006
U.S. Dist. LEXIS 39841 (N.D. Cal. June 5, 2006); see also Newberg § 3.10 at 278 (“[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”).
Here, EPPs have identified the following issues common to the proposed Settlement
Classes:

Whether Defendants engaged in combinations and conspiracies among themselves to fix,
raise, maintain, or stabilize the prices of the Alleged Parts sold in the United States;
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
Whether Defendants engaged in combinations and conspiracies among themselves to rig
bids quoted to customers of the Alleged Parts sold in the United States;

Whether Defendants engaged in combinations and conspiracies to allocate customers and
the markets for the Alleged Parts sold in the United States;

The duration of the illegal conspiracy or conspiracies;

Whether Defendants’ conduct resulted in unlawful overcharges on the prices of the
Alleged Parts; and

Whether unlawful overcharges on the price of the Alleged Parts were passed through to
the indirect purchasers of the Alleged Parts.
Any one of these substantive issues would, standing alone, establish the requisite
commonality under Rule 23(a)(2).
iii.
End-Payor Plaintiff 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.” In re
Foundry Resins Antitrust Litig., 242 F.R.D. 393, 405 (S.D. Ohio 2007) (citing Thomas &
Thomas Rodmakers, Inc. v. Newport Adhesives & Composites, Inc., 209 F.R.D. 159, 164 (C.D.
Cal. 2002)); 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
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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 End-Payor Plaintiffs and the members of the proposed Settlement Classes
believe they are all victims of the conspiracies to fix prices, rig bids, and allocate the market and
customers for the Alleged Parts and seek essentially the same relief, Rule 23(a)(3) is satisfied.
See Cason-Merenda v. VHS of Mich., Inc., 296 F.R.D. 528, 537 (E.D. Mich. 2013), vacated, No.
13-0113, 2014 U.S. App. LEXIS 4447 (6th Cir. Jan. 6, 2014), reinstated in full, No. 06-15601,
2014 U.S. Dist. LEXIS 29447 (E.D. Mich. Mar. 7, 2014) (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 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 End-Payor Plaintiff 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)). EPPs submit that there are no conflicts between them and the
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proposed Settlement Classes because EPPs and members of the proposed Settlement Classes
that: (i) purchased or leased new Vehicles not for resale in the United States containing the
relevant parts; and/or (ii) indirectly purchased the relevant parts, have the same interest in
establishing liability. 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)). EPPs and the members of the proposed Settlement Classes also share a
common interest in obtaining the DENSO Defendants’ substantial cooperation in prosecuting the
claims against the non-settling Defendants.
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. See Marcus v. Dep’t 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
appointed Cotchett, Pitre & McCarthy, LLP, Robins Kaplan LLP, and Susman Godfrey L.L.P. as
Interim Co-Lead Class Counsel in this action and the other automotive parts antitrust cases
within Master File No. 2:12-md-2311. See Case Management Order No. 3 filed as ECF No. 271.
For the same reasons that the Court appointed them to this position, it should appoint them
Settlement Class Counsel here.
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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: common questions must predominate over any questions
affecting only individual members; and 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
liability have been resolved does not dictate the conclusion that a class action is impermissible.”
Avio, 311 F.R.D. at 440 (quoting Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th
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Cir.1988)); see also Powers v. Hamilton Cnty. Public Defender Comm., 501 F.3d 595, 619 (6th
Cir. 2007). As pertinent to the EPPs’ 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 Inc. v. Conn. Retirement
Plans & Trust Funds, 133 S.Ct. 1184, 1191 (2013).
Because the EPPs 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 or conspiracies among Defendants
and the market impact of Defendants’ conspiracy or conspiracies—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 § 18.28 at
18-98 (3d ed. 1992)). This Circuit has also held “[p]redominance is a test 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).14 Furthermore, here the
14
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. Fin. 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 Blood Reagents
Antitrust Litig., No. 09-2081, 2015 U.S. Dist. LEXIS 141909, at *104 (E.D. Pa. Oct. 19, 2015);
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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 members of the Settlement Classes. 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 EPPs allegedly paid overcharges that were caused by the
Defendants’ price-fixing activities. The presence of these common issues of liability and impact
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
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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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. Rotuna v. W. Customer Mgmt. Grp., LLC, No. 09-cv-1608, 2010 U.S.
Dist. LEXIS 58912, at *11 (N.D. Ohio June 15, 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 Settlement Class
members 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). Untold numbers of Settlement Class
members purchased or leased new Vehicles not for resale in the United States containing one or
more of the Alleged Parts as a component part or indirectly purchased one or more of the
Alleged Parts as a replacement part for a Vehicle during the settlement class period; 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 produce duplicate
efforts, unnecessarily increase litigation costs, impose an unwarranted burden on this Court and
other courts, and create a risk of inconsistent results”).15
15
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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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 the federal antitrust laws by indirect purchasers in antitrust actions, are properly
certified under Rule 23(b)(2).
III.
Notice to the Settlement Class Members.
Rule 23(c)(2)(B) requires the Court to “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.” With regard to class action claims that are settled, Rule
23(e) instructs courts to “direct notice in a reasonable manner to all class members who would be
bound by the proposal.” Fed. R. Civ. P. 23(e)(1). “[D]ue process does not require actual notice,
but rather a good faith effort to provide actual notice.” Thacker, 259 F.R.D. at 271-72. To
comport with the requirements of due process, notice must be “reasonably calculated to reach
interested parties.” Fidel v. Farley, 534 F.3d 508, 514 (6th Cir. 2008) (citing Karkoukli’s, Inc. v.
Dohany, 409 F.3d 279, 283 (6th Cir. 2005)).
Because it would be most cost-effective and efficient to disseminate notice of this
settlement together with notice of other settlements, the parties have agreed to defer
dissemination of notice. As set forth in the Settlement Agreement, “End-Payor Plaintiffs, at a
time to be decided in their sole discretion, shall in each Action submit to the Court a motion for
authorization to disseminate notice of the settlement and of this Agreement to all members of the
Settlement Classes identified by End-Payor Plaintiffs (the “Notice Motion”).” Settlement
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Agreement ¶ 28. The Notice Motion shall include “a proposed form of, method for, and date of
dissemination of notice in each Action.” Id. Accordingly, with the Court’s permission, proposed
Settlement Class Counsel will submit a proposed motion for authorization to disseminate notice
of this settlement and additional settlements at a later date.
CONCLUSION
For the foregoing reasons, EPPs respectfully request that the motion for preliminary
approval be granted and that the Court enter the accompanying Proposed Order:
1. Preliminarily approving the Settlement Agreement;
2. Provisionally certifying the proposed Settlement Classes;
3. Staying the proceedings against the DENSO Defendants in accordance with the terms of
the Settlement Agreement; and
4. Appointing Interim Co-Lead Class Counsel for the EPPs as Settlement Class Counsel on
behalf of the Settlement Classes.
Date: July 14, 2016
Respectfully submitted,
/s/ Hollis Salzman
Hollis Salzman
Bernard Persky
William V. Reiss
ROBINS KAPLAN LLP
601 Lexington Avenue, Suite 3400
New York, NY 10022
Telephone: (212) 980-7400
Hsalzman@RobinsKaplan.com
Bpersky@RobinsKaplan.com
Wreiss@RobinsKaplan.com
/s/ Steven N. Williams
Steven N. Williams
Demetrius X. Lambrinos
Elizabeth Tran
COTCHETT, PITRE & McCARTHY, LLP
San Francisco Airport Office Center
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840 Malcolm Road
Burlingame, CA 94010
Telephone: (650) 697-6000
swilliams@cpmlegal.com
dlambrinos@cpmlegal.com
etran@cpmlegal.com
/s/ Marc M. Seltzer
Marc M. Seltzer
Steven G. Sklaver
SUSMAN GODFREY L.L.P.
1901 Avenue of the Stars, Suite 950
Los Angeles, CA 90067-6029
Telephone: (310) 789-3100
mseltzer@susmangodfrey.com
ssklaver@susmangodfrey.com
Terrell W. Oxford
Chanler A. Langham
Omar Ochoa
SUSMAN GODFREY L.L.P.
1000 Louisiana St., Suite 5100
Houston, TX 77002
Telephone: (713) 651-9366
Facsimile: (713) 654-6666
toxford@susmangodfrey.com
clangham@susmangodfrey.com
oochoa@susmangodfrey.com
Interim Co-Lead Class Counsel for the
Proposed End-Payor Plaintiff Classes
/s/ E. Powell Miller
E. Powell Miller
Devon P. Allard
THE MILLER LAW FIRM, P.C.
950 W. University Drive, Suite 300
Rochester, MI 48307
Telephone: (248) 841-2200
epm@millerlawpc.com
dpa@millerlawpc.com
Interim Liaison Class Counsel for the
Proposed End-Payor Plaintiff Classes
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CERTIFICATE OF SERVICE
I hereby certify that on July 14, 2016 I caused the foregoing END-PAYOR
PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT
WITH DENSO DEFENDANTS AND PROVISIONAL CERTIFICATION OF SETTLEMENT
CLASSES to be electronically filed with the Clerk of the Court using the CM/ECF system,
which will send notification of such filing to all counsel of record.
/s/ E. Powell Miller
E. Powell Miller
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Exhibit 1
Pg ID 306
2:16-cv-11804-MOB-MKM Doc # 14-1 Filed 07/14/16 Pg 2 of 58
Pg ID 307
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
IN RE AUTOMOTIVE PARTS ANTITRUST
LITIGATION
Master File No. 12-md-02311
Honorable Marianne O. Battani
In Re: Wire Harness
In Re: Instrument Panel Clusters
In Re: Fuel Senders
In Re: Heater Control Panels
In Re: Alternators
In Re: Windshield Wiper Systems
In Re: Radiators
In Re: Starters
In Re: Ignition Coils
In Re: Motor Generators
In Re: HID Ballasts
In Re: Inverters
In Re: Air Flow Meters
In Re: Fan Motors
In Re: Fuel Injection Systems
In Re: Power Window Motors
In Re: Automatic Transmission Fluid Warmers
In Re: Valve Timing Control Devices
In Re: Electronic Throttle Bodies
In Re: Air Conditioning Systems
In Re: Windshield Washer Systems
In Re: Spark Plugs
In Re: Ceramic Substrates
2:12-cv-00103
2:12-cv-00203
2:12-cv-00303
2:12-cv-00403
2:13-cv-00703
2:13-cv-00903
2:13-cv-01003
2:13-cv-01103
2:13-cv-01403
2:13-cv-01503
2:13-cv-01703
2:13-cv-01803
2:13-cv-02003
2:13-cv-02103
2:13-cv-02203
2:13-cv-02303
2:13-cv-02403
2:13-cv-02503
2:13-cv-02603
2:13-cv-02703
2:13-cv-02803
2:15-cv-03003
2:16-cv-11804
This Document Relates to:
End-Payor Actions
SETTLEMENT AGREEMENT
This Settlement Agreement (“Agreement”) is made and entered into this 14th day of July,
2016 (“Execution Date”) by and between DENSO Corporation, DENSO International America,
Inc., DENSO International Korea Corporation, DENSO Korea Automotive Corporation, DENSO
Automotive Deutschland GmbH, ASMO Co., Ltd., ASMO North America, LLC, ASMO
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Greenville of North Carolina, Inc., and ASMO Manufacturing, Inc. (the “DENSO Defendants”)
and End-Payor Plaintiffs (as defined below in Paragraph 10), both individually and on behalf of
proposed classes of end-payor indirect purchasers (“Settlement Classes”) as defined below in
Paragraph 20.
WHEREAS, End-Payor Plaintiffs are prosecuting claims in the above-captioned In re
Automotive Parts Antitrust Litigation, Master File No. 2:12-md-02311 (E.D. Mich.) (the “MDL
Proceeding”), which includes Case No. 2:12-cv-00103 (“Automotive Wire Harness Systems
Action”), Case No. 2:12-cv-00203 (“Instrument Panel Clusters Action”), Case No. 2:12-cv-00303
(“Fuel Senders Action”), Case No. 2:12-cv-00403 (“Heater Control Panels Action”), Case No.
2:13-cv-00703 (“Alternators Action”), Case No. 2:13-cv-00903 (“Windshield Wiper Systems
Action”), Case No. 2:13-cv-01003 (“Radiators Action”), Case No. 2:13-cv-01103 (“Starters
Action”), Case No. 2:13-cv-01403 (“Ignition Coils Action”), Case No. 2:13-cv-01503 (“Motor
Generators Action”), Case No. 2:13-cv-01703 (“HID Ballasts Action”), Case No. 2:13-cv-01803
(“Inverters Action”), Case No. 2:13-cv-02003 (“Air Flow Meters Action”), 1 Case No.
2:13-cv-02103 (“Fan Motors Action”), Case No. 2:13-cv-02203 (“Fuel Injection Systems
Action”), Case No. 2:13-cv-02303 (“Power Window Motors Action”), Case No. 2:13-cv-02403
(“Automatic Transmission Fluid Warmers and Oil Coolers Action”), Case No. 2:13-cv-02503
(“Valve Timing Control Devices Action”), Case No. 2:13-cv-02603 (“Electronic Throttle Bodies
Action”), 2 Case No. 2:13-cv-02703 (“Air Conditioning Systems Action”), Case No.
1
Because End-Payor Plaintiffs’ operative complaint in the Fuel Injection Systems Action defines Fuel Injection
Systems to include Air Flow Meters, End-Payor Plaintiffs intend to consolidate the Air Flow Meters and Fuel
Injection Systems Actions. For the sole purpose of implementing this Agreement, and subject to a reservation of all
rights, the DENSO Defendants will not oppose such consolidation.
2
Because End-Payor Plaintiffs’ operative complaint in the Fuel Injection Systems Action defines Fuel Injection
Systems to include Electronic Throttle Bodies, End-Payor Plaintiffs intend to consolidate the Electronic Throttle
Bodies and Fuel Injection Systems Actions. For the sole purpose of implementing this Agreement, and subject to a
reservation of all rights, the DENSO Defendants will not oppose such consolidation.
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2:13-cv-02803 (“Windshield Washer Systems Action”), Case No. 2:15-cv-03003 (“Spark Plugs,
Oxygen Sensors, and Air Fuel Ratio Sensors Action”), and Case No. 2:16-cv-11804 (“Ceramic
Substrates Action”), on their own behalf and on behalf of the Settlement Classes against, among
others, the DENSO Defendants;
WHEREAS, End-Payor Plaintiffs allege that they were injured as a result of the DENSO
Defendants’ participation in unlawful conspiracies to raise, fix, maintain, and/or stabilize prices,
rig bids, and allocate markets and customers for (1) Automotive Wire Harness Systems in
violation of Section 1 of the Sherman Act and various State antitrust, unjust enrichment, and
consumer protection laws as set forth in the Automotive Wire Harness Systems Complaint; (2)
Instrument Panel Clusters in violation of Section 1 of the Sherman Act and various State antitrust,
unjust enrichment, and consumer protection laws as set forth in the Instrument Panel Clusters
Complaint; (3) Fuel Senders in violation of Section 1 of the Sherman Act and various State
antitrust, unjust enrichment, and consumer protection laws as set forth in the Fuel Senders
Complaint; (4) Heater Control Panels in violation of Section 1 of the Sherman Act and various
State antitrust, unjust enrichment, and consumer protection laws as set forth in the Heater Control
Panels Complaint; (5) Alternators in violation of Section 1 of the Sherman Act and various State
antitrust, unjust enrichment, and consumer protection laws as set forth in the Alternators
Complaint; (6) Windshield Wiper Systems in violation of Section 1 of the Sherman Act and
various State antitrust, unjust enrichment, and consumer protection laws as set forth in the
Windshield Wiper Systems Complaint; (7) Radiators in violation of Section 1 of the Sherman Act
and various State antitrust, unjust enrichment, and consumer protection laws as set forth in the
Radiators Complaint; (8) Starters in violation of Section 1 of the Sherman Act and various State
antitrust, unjust enrichment, and consumer protection laws as set forth in the Starters Complaint;
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(9) Ignition Coils in violation of Section 1 of the Sherman Act and various State antitrust, unjust
enrichment, and consumer protection laws as set forth in the Ignition Coils Complaint; (10) Motor
Generators in violation of Section 1 of the Sherman Act and various State antitrust, unjust
enrichment, and consumer protection laws as set forth in the Motor Generators Complaint; (11)
HID Ballasts in violation of Section 1 of the Sherman Act and various State antitrust, unjust
enrichment, and consumer protection laws as set forth in the HID Ballasts Complaint; (12)
Inverters in violation of Section 1 of the Sherman Act and various State antitrust, unjust
enrichment, and consumer protection laws as set forth in the Inverters Complaint; (13) Air Flow
Meters in violation of Section 1 of the Sherman Act and various State antitrust, unjust enrichment,
and consumer protection laws as set forth in the Air Flow Meters Complaint3; (14) Fan Motors in
violation of Section 1 of the Sherman Act and various State antitrust, unjust enrichment, and
consumer protection laws as set forth in the Fan Motors Complaint; (15) Fuel Injection Systems in
violation of Section 1 of the Sherman Act and various State antitrust, unjust enrichment, and
consumer protection laws as set forth in the Fuel Injection Systems Complaint; (16) Power
Window Motors in violation of Section 1 of the Sherman Act and various State antitrust, unjust
enrichment, and consumer protection laws as set forth in the Power Window Motors Complaint;
(17) Automatic Transmission Fluid Warmers and Oil Coolers in violation of Section 1 of the
Sherman Act and various State antitrust, unjust enrichment, and consumer protection laws as set
forth in the Automatic Transmission Fluid Warmers and Oil Coolers Complaint; (18) Valve
Timing Control Devices in violation of Section 1 of the Sherman Act and various State antitrust,
unjust enrichment, and consumer protection laws as set forth in the Valve Timing Control Devices
Complaint; (19) Electronic Throttle Bodies in violation of Section 1 of the Sherman Act and
3
See footnote 1, supra.
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various State antitrust, unjust enrichment, and consumer protection laws as set forth in the
Electronic Throttle Bodies Complaint4; (20) Air Conditioning Systems in violation of Section 1 of
the Sherman Act and various State antitrust, unjust enrichment, and consumer protection laws as
set forth in the Air Conditioning Systems Complaint; (21) Windshield Washer Systems in
violation of Section 1 of the Sherman Act and various State antitrust, unjust enrichment, and
consumer protection laws as set forth in the Windshield Washer Systems Complaint; (22) Spark
Plugs, Oxygen Sensors, and Air Fuel Ratio Sensors in violation of Section 1 of the Sherman Act
and various State antitrust, unjust enrichment, and consumer protection laws as set forth in the
Spark Plugs, Oxygen Sensors, and Air Fuel Ratio Sensors Complaint; and (23) Ceramic Substrates
in violation of Section 1 of the Sherman Act and various State antitrust, unjust enrichment, and
consumer protection laws as set forth in the Ceramic Substrates Complaint, each and all such
Complaints as defined below in Paragraph 4;
WHEREAS, End-Payor Plaintiffs sought leave of the Court to file the End-Payor
Plaintiffs’ Proposed Consolidated Amended Complaint, as defined below in Paragraph 5, alleging
that they were injured as a result of the DENSO Defendants’ participation in an unlawful
conspiracy to raise, fix, maintain, and/or stabilize prices, rig bids, and allocate markets and
customers for certain automotive parts as defined in Paragraph 12 of the Proposed Consolidated
Amended Complaint in violation of Section 1 of the Sherman Act and various State antitrust,
unjust enrichment, and consumer protection laws;
WHEREAS, in the Complaints and the Proposed Consolidated Amended Complaint,
End-Payor Plaintiffs have sought both a nationwide injunction under the Clayton Act and damages
under the laws of certain states;
4
See footnote 2, supra.
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WHEREAS, the DENSO Defendants do not admit End-Payor Plaintiffs’ allegations and
have asserted and/or would assert defenses to End-Payor Plaintiffs’ claims;
WHEREAS, arm’s-length settlement negotiations have taken place between Settlement
Class Counsel (as defined below in Paragraph 21) and counsel for the DENSO Defendants, and
this Agreement has been reached as a result of those negotiations, including with the assistance of
a mediator;
WHEREAS, End-Payor Plaintiffs, through Settlement Class Counsel, have conducted an
investigation into the facts and the law regarding the Actions (as defined below in Paragraph 1)
and have concluded that resolving the claims asserted in the Actions against the DENSO
Defendants, according to the terms set forth below, is in the best interest of End-Payor Plaintiffs
and the Settlement Classes because of the payment of the Settlement Amount and the value of the
Cooperation (as those terms are defined below) and injunctive relief that the DENSO Defendants
have agreed to provide pursuant to this Agreement;
WHEREAS, the Actions may continue against Defendants (as defined below in
Paragraph 8) that are not Releasees (as defined below in Paragraph 18);
WHEREAS, the DENSO Defendants, despite their belief that they are not liable for the
claims asserted and have good defenses thereto, have 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 judgments contemplated by this
Agreement, and to put to rest with finality all claims that have been or could have been asserted by
the End-Payor Plaintiffs against the DENSO Defendants with respect to Automotive Parts as
defined in Paragraph 3;
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WHEREAS, the DENSO Defendants have provided cooperation to End-Payor Plaintiffs
pursuant to the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (“ACPERA”)
and have agreed to provide Cooperation (as defined below in Paragraph 6) to End-Payor Plaintiffs
in the ongoing prosecution of the Actions as set forth in this Agreement, and End-Payor Plaintiffs
believe, based on their investigation, that such Cooperation will reduce End-Payor Plaintiffs’
substantial burden and expense associated with prosecuting the Actions; and
WHEREAS, End-Payor Plaintiffs recognize the benefits of the DENSO Defendants’
Cooperation;
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 the undersigned
that the Actions be settled, compromised, and dismissed on the merits with prejudice as to the
Releasees, as defined below in Paragraph 18, and except as hereinafter provided, without costs as
to End-Payor Plaintiffs, the Settlement Classes, or the DENSO Defendants or other Releasees,
subject to the approval of the Court, on the following terms and conditions:
A.
Definitions
1.
“Actions” means the following cases filed in the MDL Proceeding:
(a)
Case No. 2:12-cv-00103 (“Automotive Wire Harness Systems Action”);
(b)
Case No. 2:12-cv-00203 (“Instrument Panel Clusters Action”);
(c)
Case No. 2:12-cv-00303 (“Fuel Senders Action”);
(d)
Case No. 2:12-cv-00403 (“Heater Control Panels Action”);
(e)
Case No. 2:13-cv-00703 (“Alternators Action”);
(f)
Case No. 2:13-cv-00903 (“Windshield Wiper Systems Action”);
(g)
Case No. 2:13-cv-01003 (“Radiators Action”);
(h)
Case No. 2:13-cv-01103 (“Starters Action”);
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(i)
Case No. 2:13-cv-01403 (“Ignition Coils Action”);
(j)
Case No. 2:13-cv-01503 (“Motor Generators Action”);
(k)
Case No. 2:13-cv-01703 (“HID Ballasts Action”);
(l)
Case No. 2:13-cv-01803 (“Inverters Action”);
(m)
Case No. 2:13-cv-02003 (“Air Flow Meters Action”);
(n)
Case No. 2:13-cv-02103 (“Fan Motors Action”);
(o)
Case No. 2:13-cv-02203 (“Fuel Injection Systems Action”);
(p)
Case No. 2:13-cv-02303 (“Power Window Motors Action”);
(q)
Case No. 2:13-cv-02403 (“Automatic Transmission Fluid Warmers and Oil
Coolers Action”);
(r)
Case No. 2:13-cv-02503 (“Valve Timing Control Devices Action”);
(s)
Case No. 2:13-cv-02603 (“Electronic Throttle Bodies Action”);
(t)
Case No. 2:13-cv-02703 (“Air Conditioning Systems Action”);
(u)
Case No. 2:13-cv-02803 (“Windshield Washer Systems Action”);
(v)
Case No. 2:15-cv-03003 (“Spark Plugs, Oxygen Sensors, and Air Fuel
Ratio Sensors Action”);
(w)
Case No. 2:16-cv-11804 (“Ceramic Substrates Action”);
(x)
Any other action or proceeding filed or otherwise pursued by or on behalf of
any End-Payor Plaintiff or any other Settlement Class Member in which any claim is asserted
against any of the DENSO Defendants with respect to any Released Part (as defined below in
Paragraph 17); and
(y)
Any action or proceeding initiated by the filing of the Proposed
Consolidated Amended Complaint, or any complaint materially the same thereto.
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2.
Pg ID 315
“Alleged Parts” means each of the following automotive parts, as well as their
respective components, and modules and assemblies for which the parts are a component:
(a)
“Automotive Wire Harness Systems,” as defined in Paragraph 3 of the
Fourth Consolidated Class Action Complaint, Case No. 2:12-cv-00103 (Oct. 17, 2014), ECF No.
234;
(b)
“Instrument Panel Clusters,” as defined in Paragraph 2 of the Second
Consolidated Amended Class Action Complaint, Case No. 2:12-cv-00203 (Aug. 27, 2014), ECF
No. 94;
(c)
“Fuel Senders,” as defined in Paragraph 2 of the Second Consolidated
Amended Class Action Complaint, Case No. 2:12-cv-00303 (Aug. 27, 2014), ECF No. 86;
(d)
“Heater Control Panels,” as defined in Paragraph 2 of the Second
Consolidated Amended Class Action Complaint, Case No. 2:12-cv-00403 (Aug. 25, 2014), ECF
No. 103;
(e)
“Alternators,” as defined in Paragraph 2 of the Consolidated Amended
Class Action Complaint, Case No. 2:13-cv-00703 (July 16, 2015), ECF No. 41;
(f)
“Windshield Wiper Systems,” as defined in Paragraph 2 of the Corrected
Consolidated Amended Class Action Complaint, Case No. 2:13-cv-00903 (Feb. 10, 2015), ECF
No. 60;
(g)
“Radiators,” as defined in Paragraph 3 of the Consolidated Amended Class
Action Complaint, Case No. 2:13-cv-01003 (June 13, 2014), ECF No. 28;
(h)
“Starters,” as defined in Paragraph 3 of the Consolidated Amended Class
Action Complaint, Case No. 2:13-cv-01103 (July 16, 2015), ECF No. 51;
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(i)
Pg ID 316
“Ignition Coils,” as defined in Paragraph 2 of the Consolidated Amended
Class Action Complaint, Case No. 2:13-cv-01403 (Aug. 11, 2015), ECF No. 40;
(j)
“Motor Generators,” as defined in Paragraph 3 of the Consolidated
Amended Class Action Complaint, Case No. 2:13-cv-01503 (June 13, 2014), ECF No. 11;
(k)
“HID Ballasts,” as defined in Paragraph 3 of the Consolidated Amended
Class Action Complaint, Case No. 2:13-cv-01703 (June 13, 2014), ECF No. 10;
(l)
“Inverters,” as defined in Paragraph 2 of the Consolidated Amended Class
Action Complaint, Case No. 2:13-cv-01803 (Dec. 19, 2014), ECF No. 18;
(m)
“Air Flow Meters,” as defined in Paragraph 3 of the Class Action
Complaint for Damages and Injunctive Relief, Case No. 2:13-cv-14198 (Oct. 2, 2013), ECF No. 1;
(n)
“Fan Motors,” as defined in Paragraph 3 of the Consolidated Amended
Class Action Complaint, Case No. 2:13-cv-02103 (June 12, 2014), ECF No. 13;
(o)
“Fuel Injection Systems,” as defined in Paragraph 2 of the Corrected
Consolidated Amended Class Action Complaint, Case No. 2:13-cv-02203 (Jan. 16, 2015), ECF
No. 28, including Air Flow Meters, as defined above, and Electronic Throttle Bodies, as defined
below, whether sold separately or as a part of a system;
(p)
“Power Window Motors,” as defined in Paragraph 3 of the Consolidated
Amended Class Action Complaint, Case No. 2:13-cv-02303 (June 17, 2014), ECF No. 18;
(q)
“Automatic Transmission Fluid Warmers” and “Oil Coolers,” as defined in
Paragraphs 2 and 3 of the Consolidated Amended Class Action Complaint, Case No.
2:13-cv-02403 (Aug. 26, 2015), ECF No. 17;
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(r)
Pg ID 317
“Valve Timing Control Devices,” as defined in Paragraph 2 of the Second
Corrected Consolidated Amended Class Action Complaint, Case No. 2:13-cv-02503 (Feb. 18,
2015), ECF No. 53;
(s)
“Electronic Throttle Bodies,” as defined in Paragraph 3 of the Class Action
Complaint for Damages and Injunctive Relief, Case No. 2:13-cv-14229 (Oct. 3, 2013), ECF No. 1;
(t)
“Air Conditioning Systems,” as defined in Paragraph 3 of the Consolidated
Class Action Complaint, Case No. 2:13-cv-02703 (Sept. 4, 2015), ECF No. 31;
(u)
“Windshield Washer Systems,” as defined in Paragraph 3 of the
Consolidated Amended Class Action Complaint, Case No. 2:13-cv-02803 (June 12, 2014), ECF
No. 8;
(v)
“Spark Plugs,” “Oxygen Sensors,” and “Air Fuel Ratio Sensors,” as defined
in Paragraphs 2–4 of the Class Action Complaint, Case No. 2:15-cv-11868 (May 22, 2015), ECF
No. 2; and
(w)
“Ceramic Substrates,” as defined in Paragraph 2 of the Class Action
Complaint, Case No. 2:16-cv-11804 (May 20, 2016), ECF No. 2.
3.
“Automotive Parts” means any part or part assembly as defined in Paragraph 12 of
the Proposed Consolidated Amended Complaint, but without regard to whether or not it was sold
directly to an OEM, and includes the Alleged Parts.
4.
“Complaints” means each of the following documents:
(a)
the Fourth Consolidated Class Action Complaint, Case No. 2:12-cv-00103
(Oct. 17, 2014), ECF No. 234 (“Automotive Wire Harness Systems Complaint”);
(b)
the Second Consolidated Amended Class Action Complaint, Case No.
2:12-cv-00203 (Aug. 27, 2014), ECF No. 94 (“Instrument Panel Clusters Complaint”);
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(c)
Pg ID 318
the Second Consolidated Amended Class Action Complaint, Case No.
2:12-cv-00303 (Aug. 27, 2014), ECF No. 86 (“Fuel Senders Complaint”);
(d)
the Second Consolidated Amended Class Action Complaint, Case No.
2:12-cv-00403 (Aug. 25, 2014), ECF No. 103 (“Heater Control Panels Complaint”);
(e)
the Consolidated Amended Class Action Complaint, Case No.
2:13-cv-00703 (July 16, 2015), ECF No. 41 (“Alternators Complaint”);
(f)
the Corrected Consolidated Amended Class Action Complaint, Case No.
2:13-cv-00903 (Feb. 10, 2015), ECF No. 60 (“Windshield Wiper Systems Complaint”);
(g)
the Consolidated Amended Class Action Complaint, Case No.
2:13-cv-01003 (June 13, 2014), ECF No. 28 (“Radiators Complaint”);
(h)
the Consolidated Amended Class Action Complaint, Case No.
2:13-cv-01103 (July 16, 2015), ECF No. 51 (“Starters Complaint”);
(i)
the Consolidated Amended Class Action Complaint, Case No.
2:13-cv-01403 (Aug. 11, 2015), ECF No. 40 (“Ignition Coils Complaint”);
(j)
the Consolidated Amended Class Action Complaint, Case No.
2:13-cv-01503 (June 13, 2014), ECF No. 11 (“Motor Generators Complaint”);
(k)
the Consolidated Amended Class Action Complaint, Case No.
2:13-cv-01703 (June 13, 2014), ECF No. 10 (“HID Ballasts Complaint”);
(l)
the Consolidated Amended Class Action Complaint, Case No.
2:13-cv-01803 (Dec. 19, 1014), ECF No. 18 (“Inverters Complaint”);
(m)
the Class Action Complaint, Case No. 2:13-cv-14198 (Oct. 2, 2013), ECF
No. 1 (“Air Flow Meters Complaint”);
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(n)
Pg ID 319
the Consolidated Amended Class Action Complaint, Case No.
2:13-cv-02103 (June 12, 2014), ECF No. 13 (“Fan Motors Complaint”);
(o)
the Corrected Consolidated Amended Class Action Complaint, Case No.
2:13-cv-02203 (Jan. 16, 2015), ECF No. 28 (“Fuel Injection Systems Complaint”);
(p)
the Consolidated Amended Class Action Complaint, Case No.
2:13-cv-02303 (June 17, 2014), ECF No. 18 (“Power Window Motors Complaint”);
(q)
the Consolidated Amended Class Action Complaint, Case No.
2:13-cv-02403 (Aug. 26, 2015), ECF No. 17 (“Automatic Transmission Fluid Warmers and Oil
Coolers Complaint”);
(r)
the Second Corrected Consolidated Amended Class Action Complaint,
Case No. 2:13-cv-02503 (Feb. 18, 2015), ECF No. 53 (“Valve Timing Control Devices
Complaint”);
(s)
the Class Action Complaint, Case No. 2:13-cv-14229 (Oct. 3, 2013), ECF
No. 1 (“Electronic Throttle Bodies Complaint”);
(t)
the Consolidated Class Action Complaint, Case No. 2:13-cv-02703 (Sept.
4, 2015), ECF No. 31 (“Air Conditioning Systems Complaint”);
(u)
the Consolidated Amended Class Action Complaint, Case No.
2:13-cv-02803 (June 12, 2014), ECF No. 8 (“Windshield Washer Systems Complaint”);
(v)
the Class Action Complaint, Case No. 2:15-cv-11868 (May 22, 2015), ECF
No. 2 (“Spark Plugs, Oxygen Sensors, and Air Fuel Ratio Sensors Complaint”);
(w)
the Class Action Complaint, Case No. 2:16-cv-11804 (May 20, 2016), ECF
No. 2 (“Ceramic Substrates Complaint”); and
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(x)
Pg ID 320
Any other action or proceeding filed or otherwise pursued by or on behalf of
any End-Payor Plaintiff or any other Settlement Class Member in which any claim is asserted
against any of the DENSO Defendants with respect to any Released Part.
5.
“Proposed Consolidated Amended Complaint” means the Consolidated Amended
Class Action Complaint, filed in Case No. 2:12-cv-00203 (Dec. 17, 2015), ECF No. 132-1, among
other Actions.
6.
“Cooperation” shall refer to those provisions set forth below in Paragraphs 43–56.
7.
“Cooperation Materials” means any information, testimony, Documents (as
defined below in Paragraph 9) or other material (including information from attorney proffers)
provided by any of the DENSO Defendants or their counsel under the terms of this Agreement.
8.
“Defendant” means any party named as a defendant in any of the Actions at any
time up to and including the date of Final Court Approval, as defined below in Paragraph 30.
9.
“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 electronically
stored information. A draft or non-identical copy of a document is a separate document within the
meaning of this term.
10.
“End-Payor Plaintiffs” means those Settlement Class Members, as defined in
Paragraph 22, who were named plaintiffs in any of the Actions as of May 16, 2016 or who have
been or are subsequently added as named plaintiffs in any of the Actions prior to the entry of final
judgment against the DENSO Defendants in the Actions.
11.
“Automobile Dealership Actions” means the following cases filed in the MDL
Proceeding:
(a)
Case No. 2:12-cv-00102 (re: Automotive Wire Harness Systems);
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(b)
Case No. 2:12-cv-00202 (re: Instrument Panel Clusters);
(c)
Case No. 2:12-cv-00302 (re: Fuel Senders);
(d)
Case No. 2:12-cv-00402 (re: Heater Control Panels);
(e)
Case No. 2:13-cv-00702 (re: Alternators);
(f)
Case No. 2:13-cv-00902 (re: Windshield Wiper Systems);
(g)
Case No. 2:13-cv-01002 (re: Radiators);
(h)
Case No. 2:13-cv-01102 (re: Starters);
(i)
Case No. 2:13-cv-01402 (re: Ignition Coils);
(j)
Case No. 2:13-cv-01502 (re: Motor Generators);
(k)
Case No. 2:13-cv-01702 (re: HID Ballasts);
(l)
Case No. 2:13-cv-01802 (re: Inverters);
(m)
Case No. 2:13-cv-02002 (re: Air Flow Meters);
(n)
Case No. 2:13-cv-02102 (re: Fan Motors);
(o)
Case No. 2:13-cv-02202 (re: Fuel Injection Systems);
(p)
Case No. 2:13-cv-02302 (re: Power Window Motors);
(q)
Case No. 2:13-cv-02402 (re: Automatic Transmission Fluid Warmers and
(r)
Case No. 2:13-cv-02502 (re: Valve Timing Control Devices);
(s)
Case No. 2:13-cv-02602 (re: Electronic Throttle Bodies);
(t)
Case No. 2:13-cv-02702 (re: Air Conditioning Systems);
(u)
Case No. 2:13-cv-02802 (re: Windshield Washer Systems);
(v)
Case No. 2:15-cv-03002 (re: Spark Plugs, Oxygen Sensors, and Air Fuel
Oil Coolers);
Ratio Sensors);
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Pg ID 322
(w)
Case No. 2:16-cv-12194 (re: Ceramic Substrates);
(x)
Any other action or proceeding filed or otherwise pursued by or on behalf of
any Automobile Dealership Plaintiff, as defined below in Paragraph 12, in which any claim is
asserted against any of the DENSO Defendants with respect to any Released Part; and
(y)
Any action or proceeding initiated by the filing of the Proposed
Consolidated Amended Complaint, or any complaint materially the same thereto.
12.
“Automobile Dealership Plaintiffs” means any Automobile Dealerships who were
named plaintiffs in any of the Automobile Dealership Actions as of May 16, 2016, or the Proposed
Consolidated Amended Complaint, as defined in Paragraph 6 of the Automobile Dealership
Settlement Agreement, or who have been or are subsequently named as plaintiffs in any
Automobile Dealership Action(s) prior to the entry of final judgment against the DENSO
Defendants in the Automobile Dealership Actions.
13.
“Automobile Dealership Settlement Agreement” means the agreement entered into
by the DENSO Defendants and Automobile Dealership Plaintiffs, executed on July 14, 2016.
14.
“Indirect Purchaser States” means Arizona, Arkansas, California, District of
Columbia, Florida, Hawaii, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota,
Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York,
North Carolina, North Dakota, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee,
Utah, Vermont, West Virginia, and Wisconsin.
15.
“Opt-Out Deadline” means the deadline set by the Court for the timely submission
of requests by Settlement Class Members to be excluded from the Settlement Class(es).
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16.
Pg ID 323
“Protective Orders” means the Stipulation and Protective Order Governing the
Production and Exchange of Confidential Information, No. 12-md-2311 (E.D. Mich. July 10,
2012) (ECF No. 200), and any other similar order issued in any Action.
17.
“Released Parts” shall refer to all Automotive Parts, as defined above in
Paragraph 3.
18.
“Releasees” shall refer to the DENSO Defendants, and to each of their past and
present parents, subsidiaries, affiliates, partners, insurers, and all other persons, partnerships or
corporations with whom any of the foregoing have been, or are now, affiliated, and each of their
respective past and present officers, directors, employees, agents, stockholders, attorneys,
servants, representatives, and insurers, and the predecessors, successors, heirs, executors,
administrators and assigns of any of the foregoing, excluding any Defendants as of the Execution
Date or alleged corporate-entity co-conspirators (other than the DENSO Defendants and their past
and present parents, subsidiaries, or affiliates) named in any action brought in the MDL
Proceeding.
19.
“Releasors” shall refer to the Settlement Class Members, as defined in
Paragraph 22, below, and to their past and present officers, directors, employees, agents,
stockholders, attorneys, servants, representatives, parents, subsidiaries, affiliates, 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, other than Releasors who opt-out pursuant to Paragraph 37 of this
Agreement.
20.
For purposes of this Agreement, the “Settlement Classes” are defined to include
each of the following classes:
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(a)
Pg ID 324
“Automotive Wire Harness Systems Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Automotive Wire Harness Systems as a component part, or indirectly
purchased one or more Automotive Wire Harness Systems as a replacement part,
which were manufactured or sold by a Defendant, any current or former subsidiary
of a Defendant, or any co-conspirator of a Defendant. Excluded from the
Automotive Wire Harness Systems Settlement Class are Defendants, their parent
companies, subsidiaries and affiliates, any co-conspirators, federal governmental
entities and instrumentalities of the federal government, states and their
subdivisions, agencies and instrumentalities, and persons who purchased
Automotive Wire Harness Systems directly or for resale.
(b)
“Instrument Panel Clusters Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Instrument Panel Clusters as a component part, or indirectly purchased
one or more Instrument Panel Clusters as a replacement part, which were
manufactured or sold by a Defendant, any current or former subsidiary of a
Defendant, or any co-conspirator of a Defendant. Excluded from the Instrument
Panel Clusters Settlement Class are Defendants, their parent companies,
subsidiaries and affiliates, any co-conspirators, federal governmental entities and
instrumentalities of the federal government, states and their subdivisions, agencies
and instrumentalities, and persons who purchased Instrument Panel Clusters
directly or for resale.
(c)
“Fuel Senders Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Fuel Senders as a component part, or indirectly purchased one or more
Fuel Senders as a replacement part, which were manufactured or sold by a
Defendant, any current or former subsidiary of a Defendant, or any co-conspirator
of a Defendant. Excluded from the Fuel Senders Settlement Class are Defendants,
their parent companies, subsidiaries and affiliates, any co-conspirators, federal
governmental entities and instrumentalities of the federal government, states and
their subdivisions, agencies and instrumentalities, and persons who purchased Fuel
Senders directly or for resale.
(d)
“Heater Control Panels Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Heater Control Panels as a component part, or indirectly purchased one
or more Heater Control Panels as a replacement part, which were manufactured or
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Pg ID 325
sold by a Defendant, any current or former subsidiary of a Defendant, or any
co-conspirator of a Defendant. Excluded from the Heater Control Panels
Settlement Class are Defendants, their parent companies, subsidiaries and
affiliates, any co-conspirators, federal governmental entities and instrumentalities
of the federal government, states and their subdivisions, agencies and
instrumentalities, and persons who purchased Heater Control Panels directly or for
resale.
(e)
“Alternators Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Alternators as a component part, or indirectly purchased one or more
Alternators as a replacement part, which were manufactured or sold by a
Defendant, any current or former subsidiary of a Defendant, or any co-conspirator
of a Defendant. Excluded from the Alternators Settlement Class are Defendants,
their parent companies, subsidiaries and affiliates, any co-conspirators, federal
governmental entities and instrumentalities of the federal government, states and
their subdivisions, agencies and instrumentalities, and persons who purchased
Alternators directly or for resale.5
(f)
“Windshield Wiper Systems Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Windshield Wiper Systems as a component part, or indirectly
purchased one or more Windshield Wiper Systems as a replacement part, which
were manufactured or sold by a Defendant, any current or former subsidiary of a
Defendant, or any co-conspirator of a Defendant. Excluded from the Windshield
Wiper Systems Settlement Class are Defendants, their parent companies,
subsidiaries and affiliates, any co-conspirators, federal governmental entities and
instrumentalities of the federal government, states and their subdivisions, agencies
and instrumentalities, and persons who purchased Windshield Wiper Systems
directly or for resale.
(g)
“Radiators Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Radiators as a component part, or indirectly purchased one or more
Radiators as a replacement part, which were manufactured or sold by a Defendant,
any current or former subsidiary of a Defendant, or any co-conspirator of a
5
End-Payor Plaintiffs’ operative complaints in the Alternators and Starters Actions are identical to one another.
End-Payor Plaintiffs intend to amend these complaints so as to, among other things, limit one to Alternators and the
other to Starters. For the sole purpose of implementing this Agreement, and subject to a reservation of all rights, the
DENSO Defendants will not oppose such amendments.
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Pg ID 326
Defendant. Excluded from the Radiators Settlement Class are Defendants, their
parent companies, subsidiaries and affiliates, any co-conspirators, federal
governmental entities and instrumentalities of the federal government, states and
their subdivisions, agencies and instrumentalities, and persons who purchased
Radiators directly or for resale.
(h)
“Starters Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Starters as a component part, or indirectly purchased one or more
Starters as a replacement part, which were manufactured or sold by a Defendant,
any current or former subsidiary of a Defendant, or any co-conspirator of a
Defendant. Excluded from the Starters Settlement Class are Defendants, their
parent companies, subsidiaries and affiliates, any co-conspirators, federal
governmental entities and instrumentalities of the federal government, states and
their subdivisions, agencies and instrumentalities, and persons who purchased
Starters directly or for resale.6
(i)
“Ignition Coils Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Ignition Coils as a component part, or indirectly purchased one or more
Ignition Coils as a replacement part, which were manufactured or sold by a
Defendant, any current or former subsidiary of a Defendant, or any co-conspirator
of a Defendant. Excluded from the Ignition Coils Settlement Class are Defendants,
their parent companies, subsidiaries and affiliates, any co-conspirators, federal
governmental entities and instrumentalities of the federal government, states and
their subdivisions, agencies and instrumentalities, and persons who purchased
Ignition Coils directly or for resale.
(j)
“Motor Generators Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Motor Generators as a component part, or indirectly purchased one or
more Motor Generators as a replacement part, which were manufactured or sold by
a Defendant, any current or former subsidiary of a Defendant, or any co-conspirator
of a Defendant. Excluded from the Motor Generators Settlement Class are
Defendants, their parent companies, subsidiaries and affiliates, any
co-conspirators, federal governmental entities and instrumentalities of the federal
government, states and their subdivisions, agencies and instrumentalities, and
persons who purchased Motor Generators directly or for resale.
6
See footnote 5, supra.
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(k)
Pg ID 327
“HID Ballasts Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more HID Ballasts as a component part, or indirectly purchased one or more
HID Ballasts as a replacement part, which were manufactured or sold by a
Defendant, any current or former subsidiary of a Defendant, or any co-conspirator
of a Defendant. Excluded from the HID Ballasts Settlement Class are Defendants,
their parent companies, subsidiaries and affiliates, any co-conspirators, federal
governmental entities and instrumentalities of the federal government, states and
their subdivisions, agencies and instrumentalities, and persons who purchased HID
Ballasts directly or for resale.
(l)
“Inverters Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Inverters as a component part, or indirectly purchased one or more
Inverters as a replacement part, which were manufactured or sold by a Defendant,
any current or former subsidiary of a Defendant, or any co-conspirator of a
Defendant. Excluded from the Inverters Settlement Class are Defendants, their
parent companies, subsidiaries and affiliates, any co-conspirators, federal
governmental entities and instrumentalities of the federal government, states and
their subdivisions, agencies and instrumentalities, and persons who purchased
Inverters directly or for resale.
(m)
“Fan Motors Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Fan Motors as a component part, or indirectly purchased one or more
Fan Motors as a replacement part, which were manufactured or sold by a
Defendant, any current or former subsidiary of a Defendant, or any co-conspirator
of a Defendant. Excluded from the Fan Motors Settlement Class are Defendants,
their parent companies, subsidiaries and affiliates, any co-conspirators, federal
governmental entities and instrumentalities of the federal government, states and
their subdivisions, agencies and instrumentalities, and persons who purchased Fan
Motors directly or for resale.7
(n)
“Fuel Injection Systems Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
7
End-Payor Plaintiffs intend to amend the Fan Motors Complaint to name one or more of the DENSO Defendants as
a defendant in the Fan Motors Action. For the sole purpose of implementing this Agreement, and subject to a
reservation of all rights, the DENSO Defendants will not oppose that amendment.
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Pg ID 328
one or more Fuel Injection Systems as a component part, or indirectly purchased
one or more Fuel Injection Systems as a replacement part, which were
manufactured or sold by a Defendant, any current or former subsidiary of a
Defendant, or any co-conspirator of a Defendant. Excluded from the Fuel Injection
Systems Settlement Class are Defendants, their parent companies, subsidiaries and
affiliates, any co-conspirators, federal governmental entities and instrumentalities
of the federal government, states and their subdivisions, agencies and
instrumentalities, and persons who purchased Fuel Injection Systems directly or for
resale.8
(o)
“Power Window Motors Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Power Window Motors as a component part, or indirectly purchased
one or more Power Window Motors as a replacement part, which were
manufactured or sold by a Defendant, any current or former subsidiary of a
Defendant, or any co-conspirator of a Defendant. Excluded from the Power
Window Motors Settlement Class are Defendants, their parent companies,
subsidiaries and affiliates, any co-conspirators, federal governmental entities and
instrumentalities of the federal government, states and their subdivisions, agencies
and instrumentalities, and persons who purchased Power Window Motors directly
or for resale.
(p)
“Automatic Transmission Fluid Warmers and Oil Coolers Settlement
Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Automatic Transmission Fluid Warmers or Oil Coolers as a
component part, or indirectly purchased one or more Automatic Transmission
Fluid Warmers or Oil Coolers as a replacement part, which were manufactured or
sold by a Defendant, any current or former subsidiary of a Defendant, or any
co-conspirator of a Defendant. Excluded from the Automatic Transmission Fluid
Warmers or Oil Coolers Settlement Class are Defendants, their parent companies,
subsidiaries and affiliates, any co-conspirators, federal governmental entities and
instrumentalities of the federal government, states and their subdivisions, agencies
and instrumentalities, and persons who purchased Automatic Transmission Fluid
Warmers or Oil Coolers directly or for resale.
8
Because the Fuel Injection Systems Settlement Class includes end-payor purchasers of Air Flow Meters and
Electronic Throttle Bodies, this Agreement does not provide for separate settlement classes for end-payor purchasers
of those products.
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(q)
Pg ID 329
“Valve Timing Control Devices Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Valve Timing Control Devices as a component part, or indirectly
purchased one or more Valve Timing Control Devices as a replacement part, which
were manufactured or sold by a Defendant, any current or former subsidiary of a
Defendant, or any co-conspirator of a Defendant. Excluded from the Valve Timing
Control Devices Settlement Class are Defendants, their parent companies,
subsidiaries and affiliates, any co-conspirators, federal governmental entities and
instrumentalities of the federal government, states and their subdivisions, agencies
and instrumentalities, and persons who purchased Valve Timing Control Devices
directly or for resale.
(r)
“Air Conditioning Systems Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Air Conditioning Systems as a component part, or indirectly purchased
one or more Air Conditioning Systems as a replacement part, which were
manufactured or sold by a Defendant, any current or former subsidiary of a
Defendant, or any co-conspirator of a Defendant. Excluded from the Air
Conditioning Systems Settlement Class are Defendants, their parent companies,
subsidiaries and affiliates, any co-conspirators, federal governmental entities and
instrumentalities of the federal government, states and their subdivisions, agencies
and instrumentalities, and persons who purchased Air Conditioning Systems
directly or for resale.
(s)
“Windshield Washer Systems Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Windshield Washer Systems as a component part, or indirectly
purchased one or more Windshield Washer Systems as a replacement part, which
were manufactured or sold by a Defendant, any current or former subsidiary of a
Defendant, or any co-conspirator of a Defendant. Excluded from the Windshield
Washer Systems Settlement Class are Defendants, their parent companies,
subsidiaries and affiliates, any co-conspirators, federal governmental entities and
instrumentalities of the federal government, states and their subdivisions, agencies
and instrumentalities, and persons who purchased Windshield Washer Systems
directly or for resale.
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(t)
Pg ID 330
“Spark Plugs, Oxygen Sensors, and Air Fuel Ratio Sensors Settlement
Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Spark Plugs, Oxygen Sensors, or Air Fuel Ratio Sensors as a
component part, or indirectly purchased one or more Spark Plugs, Oxygen Sensors,
or Air Fuel Ratio Sensors as a replacement part, which were manufactured or sold
by a Defendant, any current or former subsidiary of a Defendant, or any
co-conspirator of a Defendant. Excluded from the Spark Plugs, Oxygen Sensors, or
Air Fuel Ratio Sensors Settlement Class are Defendants, their parent companies,
subsidiaries and affiliates, any co-conspirators, federal governmental entities and
instrumentalities of the federal government, states and their subdivisions, agencies
and instrumentalities, and persons who purchased Spark Plugs, Oxygen Sensors, or
Air Fuel Ratio Sensors directly or for resale.
(u)
“Ceramic Substrates Settlement Class” is defined as:
All persons and entities who, from January 1, 1998, through the Execution Date,
purchased or leased a new Vehicle in the United States not for resale that included
one or more Ceramic Substrates as a component part, or indirectly purchased one or
more Ceramic Substrates as a replacement part, which were manufactured or sold
by a Defendant, any current or former subsidiary of a Defendant, or any
co-conspirator of a Defendant. Excluded from the Ceramic Substrates Settlement
Class are Defendants, their parent companies, subsidiaries and affiliates, any
co-conspirators, federal governmental entities and instrumentalities of the federal
government, states and their subdivisions, agencies and instrumentalities, and
persons who purchased Ceramic Substrates directly or for resale.
21.
“Settlement Class Counsel” shall refer to the law firms of:
Cotchett, Pitre, & McCarthy LLP
San Francisco Airport Office Center
840 Malcolm Road, Suite 200
Burlingame, CA 94010
Robins Kaplan LLP
601 Lexington Avenue, Suite 3400
New York, NY 10022
Susman Godfrey L.L.P.
1901 Avenue of the Stars, Suite 950
Los Angeles, CA 90067
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22.
Pg ID 331
“Settlement Class Member” means each member of any of the Settlement Classes
who has not timely elected to be excluded from the Settlement Classes.
23.
“Settlement Amount” shall be USD $193,800,000.00 and the Settlement Amount
plus any income or interest earned upon this sum after it is deposited into the Escrow Account(s)
(as defined below in Paragraph 34) shall constitute the “Settlement Funds.”
24.
“Vehicle” means any automobile, car, light truck, pickup truck, crossover, van,
mini-van, sport utility vehicle, or similar motor vehicle.
B.
Approval of this Agreement and Dismissal of Claims Against the DENSO Defendants
25.
On the Execution Date of this Agreement, End-Payor Plaintiffs and the DENSO
Defendants shall be bound by its terms and this Agreement shall not be rescinded except in
accordance with Paragraphs 57–59 of this Agreement.
26.
End-Payor Plaintiffs and the DENSO Defendants 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 and final dismissal with prejudice of the Actions as
to the Releasees.
27.
After reasonable notice to and review and comment by the DENSO Defendants,
End-Payor Plaintiffs shall in each then pending Action submit to the Court a motion seeking
preliminary approval (“Preliminary Approval”) of this Agreement (“Preliminary Approval
Motions”). The Preliminary Approval Motions shall include the proposed form of an order
preliminarily approving this Agreement. The text of the proposed form of an order preliminarily
approving this Agreement shall be subject to good faith efforts to agree by End-Payor Plaintiffs
and the DENSO Defendants before submission of the Preliminary Approval Motions. End-Payor
Plaintiffs and the DENSO Defendants agree to use their best efforts to obtain Preliminary
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Pg ID 332
Approval from the Court by August 10, 2016. The terms of the proposed order preliminarily
approving this Agreement will include the substance of the following provisions:
(a)
preliminarily approving this Agreement as being fair, reasonable, and
adequate to the Settlement Classes;
(b)
preliminarily certifying the Settlement Classes as meeting the standards for
settlement classes under Federal Rule of Civil Procedure 23;
(c)
appointing the law firms identified in Paragraph 21 of this Agreement as
Settlement Class Counsel;
(d)
appointing the End-Payor Plaintiffs as class representatives of the
Settlement Classes;
(e)
directing that notice be given to the Settlement Class Members at a time and
in a manner consistent with the terms of this Agreement;
(f)
approving the establishment of the Escrow Account(s) (as defined below in
(g)
providing that the Court’s Preliminary Approval of this Agreement and
Paragraph 34);
preliminary certification of the Settlement Classes will have no effect on the rights of any
Defendant, including the DENSO Defendants, to contest the certification of any other proposed
classes in the MDL Proceeding; and
(h)
staying the Actions against the DENSO Defendants for all purposes except
those necessary to effectuate this Agreement.
28.
End-Payor Plaintiffs, at a time to be decided in their sole discretion, shall in each
Action submit to the Court a motion for authorization to disseminate notice of the settlement and
of this Agreement to all members of the Settlement Classes identified by End-Payor Plaintiffs
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Pg ID 333
(“Notice Motion”). The Notice Motion shall provide for notice to all members of the Settlement
Classes in a method designed to meet the requirements of Rule 23 and the due process clause. The
End-Payor Plaintiffs will submit a draft of the Notice Motion to the DENSO Defendants
sufficiently in advance of the date the End-Payor Plaintiffs intend to submit the Notice Motion to
the Court for the DENSO Defendants to review and comment upon the Notice Motion. To
mitigate the costs of notice, End-Payor Plaintiffs shall endeavor to disseminate a combined notice
to the Settlement Classes of this settlement and any other settlements that have been or are reached
by the time of the Notice Motion. The Notice Motion shall include a proposed form of, method
for, and date of dissemination of notice in each Action.
29.
End-Payor Plaintiffs shall seek at the earliest practicable time, and the DENSO
Defendants will not object unreasonably to, the entry of an order and final judgment in each
Action, the text of which End-Payor Plaintiffs and the DENSO Defendants shall agree upon. The
terms of such orders and final judgments will include the substance of the following provisions:
(a)
certifying each of the Settlement Classes described in Paragraph 20,
pursuant to Rule 23 of the Federal Rules of Civil Procedure, solely for purposes of this settlement
and as a settlement class for the relevant Action;
(b)
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)
as to the DENSO Defendants and any other Releasees named in any Action,
directing that the Actions be dismissed with prejudice and, except as provided for in this
Agreement, without costs;
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(d)
Pg ID 334
reserving exclusive jurisdiction over the settlement and this Agreement,
including the administration and consummation of this settlement, as well as over the DENSO
Defendants, for the duration of its provision of Cooperation pursuant to this Agreement, to the
United States District Court for the Eastern District of Michigan;
(e)
determining under Federal Rule of Civil Procedure 54(b) that there is no
just reason for delay and directing that the judgments of dismissal in each Action pursuant to
subpart (c) of this Paragraph shall be final;
(f)
providing that (i) the Court’s certification of the Settlement Classes is
without prejudice to, or waiver of, the rights of any Defendant, including the DENSO Defendants,
to contest certification of any class proposed in the MDL Proceeding, except the DENSO
Defendants may not contest the End-Payor Plaintiffs’ motions for class certification in the Actions
unless the settlement is vacated or terminated, (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 Proceeding, and (iii) no
party may cite or refer to the Court’s approval of the Settlement Classes as persuasive or binding
authority with respect to any contested motion to certify any such class;
(g)
enjoining the DENSO Defendants, for a period of two years beginning on
the date of entry of the final order and judgment, from engaging in any price-fixing, bid-rigging, or
market allocation as to any Automotive Part in violation of Section 1 of the Sherman Act; and
(h)
enjoining any Settlement Class Member, and their counsel, from
prosecuting any claim against the DENSO Defendants or the Releasees that is released by this
Agreement.
30.
This Agreement shall become final and be deemed to have received “Final Court
Approval” within the meaning of this Agreement when (i) the Court has entered in each Action the
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Pg ID 335
orders and final judgments provided for in Paragraph 29, (ii) the Court has entered in each of the
Automobile Dealership Actions the orders and final judgments provided for in Paragraph 30 of the
Automobile Dealership Settlement Agreement, and (iii) the time for appeal or to seek permission
to appeal from the Court’s approval of this Agreement and entry of the order and final judgment as
to the DENSO Defendants described in subpart (i) hereof has expired in each Action 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 order granting final approval or the entry of judgment in any
Action or to toll the time for appeal of the order granting final approval or the judgment in any
Action or, if appealed, approval of this Agreement and the final judgment in each Action as to the
DENSO Defendants has been affirmed in its entirety 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.
31.
Neither this Agreement (whether or not it should become final) nor the final
judgment in each of the Actions, nor any and all negotiations, documents, and discussions
associated with them, shall be deemed or construed to be an admission by the DENSO Defendants
or the Releasees, or evidence, of any violation of any statute or law or of any liability or
wrongdoing whatsoever by the DENSO Defendants or the Releasees, or of the truth of any of the
claims or allegations contained in any complaint or any other pleading, and evidence thereof shall
not be discoverable or used directly or indirectly, in any way, in any other action or proceeding
against the DENSO Defendants and any 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 the DENSO Defendants, shall be referred to, offered as
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evidence, or received in evidence in any pending or future civil, criminal, or administrative action
or proceedings, except in a proceeding to enforce this Agreement, or to defend against the
assertion of Released Claims, or as otherwise required by law. Nothing in this Paragraph shall
prevent End-Payor Plaintiffs from using Cooperation Materials produced pursuant to Paragraphs
43–56 for the prosecution of the claims in the MDL Proceeding, except as to any such claims
against the DENSO Defendants or Releasees.
C.
Release, Discharge, and Covenant Not to Sue
32.
In addition to the effect of any final judgment entered in accordance with this
Agreement, upon this Agreement becoming final, as set out in Paragraph 30 of this Agreement,
and in consideration of payment of the Settlement Amount as specified in Paragraph 34 of this
Agreement, the injunction to be entered as described in Paragraph 29(g) of this Agreement, the
Cooperation provided pursuant to Paragraphs 43–56, and for other valuable consideration, the
Releasees shall be completely released, acquitted, and forever discharged from any and all claims,
demands, actions, suits, causes of action, whether class, individual, or otherwise in nature (whether
or not any Settlement Class Member has objected to this Agreement or makes a claim upon or
receives a payment from the Settlement Funds, whether directly, representatively, derivatively or
in any other capacity) that Releasors, or any of them, ever had, now has, or hereafter can, shall, or
may ever have, that now exist or may exist in the future, on account of, or in any way related to, the
conduct alleged in the Complaints or the Proposed Consolidated Amended Complaint or any act or
omission of the Releasees (or any of them) concerning any or all Released Parts, including any
conduct alleged and causes of action asserted or that could have been alleged or asserted, in any
class action or other complaints filed in the Actions concerning Released Parts, provided,
however, that nothing herein shall release: (1) any claims based on direct purchases of Released
Parts; (2) any claims made in the MDL Proceeding with respect to an indirect purchase of a
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Released Part for resale; (3) 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 Released
Parts; (4) claims involving any 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 Released Parts; (5) claims concerning any product other than Released Parts; (6)
claims under laws other than those of the United States relating to purchases or leases made by
Releasors outside of the United States; and (7) claims for damages under the state or local laws of
any jurisdiction other than an Indirect Purchaser State relating to purchases or leases made by
Releasors outside of an Indirect Purchaser State (“Released Claims”). 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 unless this
Agreement is, for any reason, not finally approved or terminated.
33.
In addition to the provisions of Paragraph 32 of this Agreement, Releasors hereby
expressly waive and release, with respect to the Released Claims, upon this Agreement becoming
final, any and all provisions, rights, and benefits conferred by Section 1542 of the California Civil
Code, which states:
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 which are released pursuant to the provisions of
Paragraph 32 of this Agreement, but each Releasor hereby expressly waives and fully, finally, and
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forever settles and releases, upon this Agreement becoming final, any known or unknown,
suspected or unsuspected, contingent or non-contingent claim that the DENSO Defendants and
End-Payor Plaintiffs have agreed to release pursuant to Paragraph 32, whether or not concealed or
hidden, without regard to the subsequent discovery or existence of such different or additional
facts.
D.
Settlement Amount
34.
Subject to the provisions hereof, the DENSO Defendants shall pay or cause to be
paid the Settlement Amount. The Settlement Amount shall be paid in United States Dollars into
one or more segregated escrow accounts to be administered in accordance with the provisions of
Paragraph 36 of this Agreement (the “Escrow Account(s)”) within thirty (30) days following the
later of (i) the date the court grants Preliminary Approval or (ii) the DENSO Defendants being
provided with the account number, account name, and wiring information for the Escrow
Accounts. No part of the Settlement Amount paid by the DENSO Defendants shall constitute, nor
shall it be construed or treated as constituting, a payment for treble damages, fines, penalties,
forfeitures or punitive recoveries.
35.
The allocation of the Settlement Amount to each Settlement Class as defined in
Paragraph 20 above shall be determined by Settlement Class Counsel and subject to approval by
the Court after notice to the Settlement Classes as directed by the Court.
E.
Qualified Settlement Fund
36.
(a)
The Escrow Account(s) will be established at Wells Fargo Bank with such
Bank serving as escrow agent (“Escrow Agent”) subject to one or more escrow agreements
mutually acceptable to Settlement Class Counsel and the DENSO Defendants, such escrow to be
subject to the Court’s continuing supervision and control. In addition, Settlement Class Counsel
shall timely make such elections as necessary or advisable to carry out the provisions of this
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Paragraph 36. Such elections shall be made in compliance with the procedures and requirements
contained in any applicable regulations.
(b)
End-Payor Plaintiffs and the DENSO Defendants agree to treat each
Escrow Account as being at all times a “Qualified Settlement Fund” within the meaning of
Treasury Regulation § 1.468B-1. All provisions of this Agreement shall be interpreted in a manner
that is consistent with each Escrow Account being a “Qualified Settlement Fund” within the
meaning of Treasury Regulation § 1.468B-1.
(c)
For the purpose of § 468B of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder, the administrator for the Escrow Accounts
shall be Settlement Class Counsel. Settlement Class Counsel shall cause the timely and proper
filing of all informational and other tax returns necessary or advisable with respect to each Escrow
Account (including the returns described in Treasury Regulation § 1.468B-2(k) and (l)).
Settlement Class Counsel shall make a “relation-back election” (as defined in Treasury Regulation
§ 1.468B-1(j)) back to the earliest permitted date, if available. Such returns (as well as the
relation-back election described in this Paragraph 36(c)) shall be consistent with each Escrow
Account’s status as a Qualified Settlement Fund and in all events shall reflect that all Taxes, as
defined below in Paragraph 36(e) (including any estimated taxes, interest, or penalties), on the
Settlement Funds shall be paid out of the Settlement Funds as provided in Paragraph 36(f) hereof.
It shall be the responsibility of Settlement Class Counsel to cause the timely and proper
preparation and delivery of the necessary documentation for signature by all necessary parties, and
thereafter to cause the appropriate filing to occur.
(d)
The Escrow Agent shall cause the Settlement Funds to be invested in
short-term instruments backed by the full faith and credit of the United States Government or fully
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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. The DENSO
Defendants shall bear no risk related to the Settlement Funds. The Settlement Funds 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 the Settlement Funds shall be distributed pursuant to
this Agreement or further order(s) of the Court.
(e)
All (i) taxes (including any estimated taxes, interest, or penalties) arising
with respect to the Settlement Funds, including any taxes or tax detriments that may be imposed
upon the DENSO Defendants or any other Releasee with respect to the Settlement Funds for any
period during which any Escrow Account 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 this Paragraph 36 (including 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 this Paragraph 36 (“Tax Expenses”)), shall be paid out of the
Settlement Funds.
(f)
Neither the DENSO Defendants nor any other Releasee nor their respective
counsel shall have any liability or responsibility for the Taxes or the Tax Expenses or the filing of
any tax returns or other documents with the Internal Revenue Service or any other taxing authority.
The Escrow Agent and Settlement Class Counsel shall indemnify and hold the DENSO
Defendants and the Releasees harmless for Taxes and Tax Expenses (including taxes payable by
reason of such indemnification). Further, Taxes and Tax Expenses shall be treated as, and
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considered to be, a cost of administration of the Escrow Account(s) and shall be timely paid by the
Settlement Class Counsel out of the Settlement Funds without prior order from the Court and
Settlement Class Counsel 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 Treasury Regulation
§ 1.468B-2(l)(2)). Neither the DENSO Defendants nor any Releasee shall be responsible or have
any liability therefor or for any reporting requirements that may relate thereto. The DENSO
Defendants and Settlement Class Counsel agree to cooperate with each other and their tax
attorneys and accountants to the extent reasonably necessary to carry out the provisions of this
Paragraph 36.
(g)
If this Agreement does not receive Final Court Approval, then the
Settlement Funds (net of costs incurred and expended in accordance with Paragraph 38), shall be
returned to the DENSO Defendants within thirty (30) calendar days of the Court’s final
determination.
F.
Exclusions
37.
Subject to Court approval, any person or entity seeking exclusion from the
Settlement Class(es) 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(es) and shall
have no rights with respect to this settlement. Subject to Court approval, a request for exclusion
that does not comply with all of the provisions set forth in the applicable class notice 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 the DENSO
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Defendants with a list and copies of all opt-out requests it receives in each of the Actions and shall
file under seal with the Court a list of all members of the Settlement Classes who timely and
validly opted out of the settlement.
(a)
Subject to Court approval, any member of the Settlement Class(es) 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. The DENSO Defendants reserve all of their legal
rights and defenses, including any defenses relating to whether any excluded member of the
Settlement Classes is an indirect purchaser of Released Parts.
(b)
Subject to Court approval, in the written request for exclusion, the member
of the Settlement Class(es) must state his, her, or its full name, address, and telephone number.
Further, the member of the Settlement Classes must include a statement in the written request for
exclusion that he, she, or it wishes to be excluded from the settlement. Any member of the
Settlement Classes that submits a written request for exclusion may also identify the number of
new Vehicles purchased from January 1, 1998 through the Execution Date of this Agreement as
requested in the notice to the Settlement Class(es) as provided in Paragraph 28.
(c)
The DENSO Defendants or Settlement Class Counsel may dispute an
exclusion request, and the parties shall, if possible, resolve the 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.
(d)
Within twenty (20) business days following the Opt-Out Deadline, or as
soon thereafter as practicable, the parties shall determine the total number of Vehicles purchased
by all members of the Settlement Classes located in the Indirect Purchaser States from January 1,
1998 through the Execution Date (“Total Vehicle Purchases”). The parties shall determine the
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Total Vehicle Purchases based upon reasonably available public information. In the event the
parties mutually agree that non-public information is required to determine the Total Vehicle
Purchases, 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 38
below. Within ten (10) business days after determining the Total Vehicle Purchases, or as soon
thereafter as practicable, the parties shall calculate the percentage of the Total Vehicle Purchases
made by members of the Settlement Classes that validly and timely requested to be excluded from
the Settlement Classes (“Total Opt-Out Percentage”), provided that the DENSO Defendants shall
have the sole option to waive the calculation and, by doing so, waive their termination rights under
this Paragraph 37(d). The Total Opt-Out Percentage is a fraction, the numerator of which is the
total number of Vehicles purchased or leased by members of the Settlement Classes that validly
and timely requested to be excluded from the settlement (“Opt-Out Vehicle Purchases”), and the
denominator of which is the Total Vehicle Purchases. The parties shall use their best efforts to
agree to a reasonable calculation of the Total Opt-Out Percentage. If the parties are unable to reach
such agreement within thirty (30) business days following the Opt-Out Deadline, the End-Payor
Plaintiffs and the DENSO Defendants 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.
If the parties agree or the Court determines that the Total Opt-Out Percentage for any
Settlement Class exceeds 5%, the DENSO Defendants shall have the exclusive option to rescind,
cancel, and terminate this Agreement pursuant to the provisions of Paragraphs 58 and 59;
provided, however, that these termination rights shall be exercised within ten (10) business days of
the parties’ agreement or the Court’s determination of the Total Opt-Out Percentage calculation or
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be deemed waived. Written notice of the exercise of any such right to rescind, cancel, and
terminate this Agreement shall be made according to the terms of Paragraph 68. If the DENSO
Defendants elect to rescind, cancel, and terminate this Agreement in accordance with this
Paragraph 37(d), then (i) within ten (10) business days the Settlement Funds shall be returned to
the DENSO Defendants less only disbursements made in accordance with Paragraph 38 of this
Agreement; and (ii) the DENSO Defendants shall be entitled to any tax refunds owing to the
Settlement Funds. At the request of the DENSO Defendants, the Settlement Class Counsel or their
designee shall file claims for any tax refunds owing to the Settlement Funds and pay the proceeds,
after deduction of any fees and expenses incurred with filing such claims for tax refunds, to the
DENSO Defendants.
G.
Payment of Expenses
38.
The DENSO Defendants agree to permit use of a maximum of USD $500,000 of
the Settlement Funds toward the cost of providing notice to the Settlement Classes and the costs of
administration of the Settlement Funds prior to Final Court Approval after the Settlement Amount
is paid into the Escrow Account(s). To the extent such expenses have been actually incurred or
paid for notice and administration costs, those notice and administration expenses (up to the
maximum of USD $500,000) are not recoupable if this settlement does not become final or is
terminated. The Escrow Agent shall return all remaining portions of the Settlement Funds to the
DENSO Defendants should this Agreement not receive Final Court Approval. The DENSO
Defendants shall not be liable for any of the costs or expenses of the litigation incurred by
End-Payor Plaintiffs in the Actions, 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 Settlement Class administration and costs, except to the extent that any such costs or
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expenses are awarded from the Settlement Funds by Court order.
H.
The Settlement Funds
39.
Releasors shall look solely to the Settlement Funds for settlement and satisfaction
against the Releasees of all Released Claims, and shall have no other recovery against the DENSO
Defendants or any Releasee for any Released Claims.
40.
After this Agreement becomes final within the meaning of Paragraph 30, and at a
time to be determined by Settlement Class Counsel, the Settlement Funds shall be distributed in
accordance with plans to be submitted, subject to approval by the Court. In no event shall any
Releasee have any responsibility, financial obligation, or liability whatsoever with respect to the
investment or distribution of the Settlement Funds, or the administration of the Settlement Funds,
including the costs and expenses of such investment, distribution and administration.
I.
Settlement Class Counsel’s Attorneys’ Fees, Reimbursement of Expenses, and Incentive
Awards for Class Representatives
41.
End-Payor Plaintiffs and Settlement Class Counsel shall be reimbursed subject to
Court approval and indemnified solely out of the Settlement Funds for their costs and expenses.
The DENSO Defendants and the other Releasees shall not be liable for any costs, fees, or expenses
of any of End-Payor Plaintiffs’ or the Settlement Classes’ respective attorneys, experts, advisors,
agents, or representatives. All such costs, fees, and expenses as approved by the Court shall be
paid out of the Settlement Funds.
42.
(a)
Settlement Class Counsel may, after Preliminary Approval of this
Agreement at a time to be determined in their sole discretion, submit an application to the Court
(“Fee and Expense Application”) for the following payments to be made to Settlement Class
Counsel after Final Court Approval of this Agreement: (i) an award of attorneys’ fees not in excess
of one-third of the sum of the Settlement Amount and any interest accrued thereon while in the
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Escrow Account(s), plus (ii) reimbursement of expenses and costs incurred in connection with
prosecuting the Actions and incentive awards (“Fee and Expense Award”). Settlement Class
Counsel reserve the right to make additional applications from time to time for fees and expenses
incurred and reasonable incentive awards, but in no event shall Releasees be responsible to pay
any such additional fees and expenses except to the extent they are paid out of the Settlement
Funds.
(b)
Subject to Court approval, End-Payor Plaintiffs and Settlement Class
Counsel shall be reimbursed and paid solely out of the Settlement Funds for all expenses including
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 Funds 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 Funds, 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 the event this Agreement is rescinded or
terminated pursuant to Paragraphs 57–59.
(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 class representatives to be paid out of the Settlement Funds 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.
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(d)
Pg ID 347
Other than to pay the Settlement Amount, as provided herein, neither the
DENSO Defendants 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
of any Fee and Expense Award in the Actions.
(e)
Neither the DENSO Defendants 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 and/or any other person who may assert some
claim thereto, of any Fee and Expense Award that the Court may make in the Actions.
J.
Cooperation
43.
In return for the release and discharge provided herein, in addition to the Settlement
Amount, the DENSO Defendants agree to provide, following Preliminary Approval, substantial
cooperation to End-Payor Plaintiffs as set forth in this paragraph and below (“Cooperation”). All
such Cooperation shall occur in a manner that is in compliance with the DENSO Defendants’
obligations to any Government Entity (meaning the United States Department of Justice (“DOJ”),
the Japanese Fair Trade Commission, the European Commission, the Canadian Competition
Bureau, or any other government entity). The DENSO Defendants 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. Should the DENSO Defendants
withhold any materials pursuant to the foregoing sentence, the DENSO Defendants will so inform
the End-Payor Plaintiffs and will describe the basis for such withholding to the extent permissible
under applicable law. Cooperation shall be limited to the Alleged Parts and shall not include
information relating to other products manufactured by the DENSO Defendants and/or Releasees.
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44.
Pg ID 348
Transactional Data. At the request of End-Payor Plaintiffs, following Preliminary
Approval, and subject to meet and confer with the DENSO Defendants as to any reasonable
limitations on this obligation, the DENSO Defendants will use their best efforts to produce on a
rolling basis within two hundred seventy (270) days after such request, existing and reasonably
accessible transactional data (including English translations thereof, to the extent they exist)
related to any Alleged Parts to the extent End-Payor Plaintiffs continue to pursue claims against
one or more other Defendants with respect to the respective part at the time of production. The
DENSO Defendants will use their best efforts to begin production of the foregoing transactional
data as soon as reasonably possible after such request and agree to prioritize such productions to
the extent practicable. The time period for this production will be from January 1, 1996 to
December 31, 2013, but only to the extent such data currently exist and are reasonably accessible.
In addition, following Preliminary Approval and to the extent reasonably requested by End-Payor
Plaintiffs, the DENSO Defendants agree to make reasonable efforts to (a) provide an estimate of
the DENSO Defendants’ sales of the Alleged Parts incorporated into Vehicles sold in the United
States, and (b) provide, in addition to the transactional data referenced above, information
contained in the DENSO Defendants’ global sales planning system, concerning the Vehicle makes
and models sold in the United States that contained Alleged Parts sold by the DENSO Defendants.
45.
Documents. The DENSO Defendants have already produced tens of thousands of
Documents to End-Payor Plaintiffs. The DENSO Defendants will consider in good faith any
reasonable further request by End-Payor Plaintiffs, following Preliminary Approval, to collect,
and make available for inspection and copying, additional Documents related to any Alleged Parts
to the extent End-Payor Plaintiffs continue to pursue claims against one or more other Defendants
with respect to the respective part at the time of production, provided the request would not impose
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an undue burden on the DENSO Defendants. The DENSO Defendants will not be required to
make available to End-Payor Plaintiffs any Documents protected by the attorney-client privilege,
the attorney work product doctrine, any applicable privilege under foreign law, or whose
disclosure is prohibited by any court order, foreign or domestic law, or by a Government Entity.
46.
Subject to Paragraph 44, the DENSO Defendants will have no obligation to collect,
search, produce, or make available to the End-Payor Plaintiffs any Documents created on or after
February 23, 2010, except that the DENSO Defendants agree to produce certain Documents that
relate to the DENSO Defendants’ responses to Requests for Quotation and price-reduction
requests made after February 23, 2010, subject to reasonable limitations to be agreed upon by the
parties in subsequent meet and confer discussions.
47.
Should the DENSO Defendants inadvertently disclose Documents protected by the
attorney-client privilege, the attorney work product doctrine, any applicable privilege under
foreign law, or whose disclosure is prohibited by any court order, foreign or domestic law, or by a
Government Entity, End-Payor Plaintiffs agree (i) that such disclosure does not constitute a waiver
of any applicable privilege or confidentiality requirement, and (ii) to return such documents to the
DENSO Defendants upon a written request from the DENSO Defendants.
48.
Other Cooperation. At the request of End-Payor Plaintiffs, following Preliminary
Approval, the DENSO Defendants will provide a list of current or former officers, directors, or
employees who were interviewed by any Government Entity, who testified before a grand jury in
connection with the DOJ’s investigation, or were disclosed to any Government Entity as having
knowledge of alleged antitrust violations as to the Alleged Parts, given however, that the DENSO
Defendants shall not be required to disclose to End-Payor Plaintiffs or Settlement Class Counsel
the specific Government Entities before which each such current or former employee, director, or
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officer appeared or to which they were disclosed as having knowledge of alleged antitrust
violations as to the Alleged Parts. The DENSO Defendants shall also make best efforts (not to
include actual or threatened employee disciplinary action) to provide the following types of
cooperation relating to alleged antitrust violations as to the Alleged Parts: (1) witness interviews;
(2) deposition testimony in the Actions; (3) declarations or affidavits in the Actions; and/or (4) trial
testimony in the Actions. While there will be no predetermined number of witnesses to be made
available for interviews, depositions, declarations, affidavits, or trial testimony, End-Payor
Plaintiffs agree to request such cooperation only when reasonably necessary to their prosecution of
the Actions. Nothing in this provision shall prevent the DENSO Defendants from objecting to the
reasonableness of the identity and number of persons selected by Settlement Class Counsel and
settlement class counsel in the Automobile Dealership Actions to appear for interviews, for
depositions, or as trial witnesses, or to provide declarations or affidavits in the Actions. The
DENSO Defendants shall make witnesses available for such interviews or depositions in their
country of residence as of the date of the interview or deposition, unless otherwise agreed to by the
parties. If any such interview, deposition, or trial testimony takes place outside of the country of
the witness’s residence, Settlement Class Counsel shall reimburse the DENSO Defendants for
such person’s economy class fare and up to $450 per day for lodging and expenses actually
incurred. It is understood that the DENSO Defendants may be unable to make available for
interviews, depositions, or trial testimony or any other court proceedings the seven individuals
referenced in Paragraph 11(b) of the plea agreement between DENSO Corporation and the United
States of America (2:12-cr-20063-GCS-PJK, E.D. Mich., ECF No. 9), or any individual who is no
longer an officer, director, or employee of any DENSO Defendant.
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49.
Pg ID 351
All Cooperation shall be coordinated in such a manner so that all unnecessary
duplication and expense is avoided. Any witness interviews or depositions provided pursuant to
Paragraph 48 shall be coordinated with, and occur at the same time as, witness interviews and
depositions to be provided under the DENSO Defendants’ cooperation obligations to the
Automobile Dealership Plaintiffs.
50.
The DENSO Defendants shall be entitled to designate all Cooperation Materials in
accordance with the Protective Orders. End-Payor Plaintiffs and Settlement Class Counsel will
not attribute any factual information obtained from attorney proffers to the DENSO Defendants or
their counsel. End-Payor Plaintiffs and Settlement Class Counsel may share information obtained
from attorney proffers with Automobile Dealership Plaintiffs, but shall not disclose information
obtained from attorney proffers to any other claimants or potential claimants who did not attend
such proffers, including direct purchaser plaintiffs, truck and equipment dealer plaintiffs, state
attorneys general, and opt-out plaintiffs in the MDL Proceeding, except with the express written
consent of the DENSO Defendants.
51.
DENSO Defendants’ counsel already has provided attorney proffers to End-Payor
Plaintiffs and Settlement Class Counsel under ACPERA pursuant to confidentiality agreements
which shall continue in full force and effect. DENSO Defendants’ counsel agree to make
themselves available for reasonable follow-up questions from, and coordinated between,
Settlement Class Counsel and settlement class counsel for Automobile Dealership Plaintiffs.
Notwithstanding any other provision of this Agreement, the parties and their counsel further agree
that Settlement Class Counsel shall maintain all statements made by the DENSO Defendants’
counsel as “Highly Confidential,” as said designation is described in the Protective Order in the
Actions, and shall not use the information so received for any purpose other than the prosecution in
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Pg ID 352
the Actions of the claims with respect to Alleged Parts, that any statements made by DENSO’s
counsel in connection with and/or as part of this settlement shall not be disclosed to any other
party, and that statements made by counsel for the DENSO Defendants in connection with or as
part of this settlement shall be governed by Federal Rule of Evidence 408, and otherwise shall not
be deemed admissible into evidence or to be subject to further discovery. Notwithstanding
anything herein, Settlement Class Counsel may use information contained in such statements in
the prosecution of claims asserted in all cases in the MDL Proceeding including for the purpose of
developing an allocation plan relating to any settlement or judgment proceeds, except any claims
against Releasees (but shall not introduce any such information into the record, or depose or
subpoena any DENSO Defendant counsel), and may 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 reasonable opportunity for further
investigation or discovery.
52.
In the event that the DENSO Defendants produce Documents or provide
declarations or written responses to discovery to any party or non-party in the actions in the MDL
Proceeding, concerning or relating to the Actions (“Relevant Production”), the DENSO
Defendants shall produce all such Documents, declarations, or written discovery responses to
End-Payor Plaintiffs contemporaneously with making the Relevant Production to the extent such
Documents, declarations, or written discovery responses have not previously been produced by the
DENSO Defendants to End-Payor Plaintiffs. This Agreement does not restrict Settlement Class
Counsel from attending and/or participating in any depositions in the MDL Proceeding.
Settlement Class Counsel may attend and/or participate in any depositions of the DENSO
Defendants’ witnesses in addition to the depositions set forth in Paragraph 48, and Settlement
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Pg ID 353
Class Counsel together with settlement class counsel for the Automobile Dealership Plaintiffs may
ask questions for a combined total of three (3) hours at such deposition, provided that the time for
participation of Settlement Class Counsel and settlement class counsel for the Automobile
Dealership Plaintiffs shall not expand the time permitted for the deposition as may be provided by
the Court, and Settlement Class Counsel will not ask the Court to enlarge the time of any
deposition noticed of a DENSO Defendant current or former employee.
Participation by
Settlement Class Counsel in the depositions discussed in this Paragraph will not limit the number
of depositions to be provided under Paragraph 48. End-Payor Plaintiffs and Settlement Class
Counsel agree to use their best efforts to ensure that any depositions taken under Paragraph 48
above are coordinated with any other deposition noticed in the MDL Proceeding to avoid
unnecessary duplication.
53.
Unless this Agreement is rescinded, disapproved, or otherwise fails to take effect,
the DENSO Defendants’ obligations to provide Cooperation with respect to any Alleged Part
under this Agreement shall continue only until otherwise ordered by the Court, or until such time
as final judgment has been entered in the relevant Action against all Defendants in that Action and
the time for appeal or to seek appeal from such final judgment 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 entry of such final judgment or to toll the time for appeal such final judgment or,
if appealed, such final judgment has been affirmed in its entirety 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.
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54.
Pg ID 354
If this Agreement is rescinded, disapproved, or otherwise fails to take effect, or if
final judgment has been entered by the United States District Court for the Eastern District of
Michigan in all of the Actions, or the Actions have otherwise been terminated (collectively
“District Court Termination”), unless otherwise agreed by the DENSO Defendants, within sixty
(60) days after District Court Termination, End-Payor Plaintiffs must return or destroy all
Cooperation Materials received from the DENSO Defendants to the extent required by the
Protective Orders, and must comply with all other terms of the Protective Orders governing such
return or destruction. Whether the Cooperation Materials are returned or destroyed, End-Payor
Plaintiffs must submit a written certification to the DENSO Defendants by the sixty (60) day
deadline that identifies (by category, where appropriate) all Cooperation Materials that were
returned or destroyed and that affirms that End-Payor Plaintiffs have not retained any copies,
abstracts, compilations, summaries, or other form that reproduces or captures any of the
Cooperation Material.
55.
In the event that this Agreement fails to receive Final Court Approval, the parties
agree that neither End-Payor Plaintiffs nor Settlement Class Counsel shall be permitted to use or
introduce into evidence against the DENSO Defendants and other Releasees, at any hearing or
trial, or in support of any motion, opposition, or other pleading in the Actions or in any other
federal or state or foreign action alleging a violation of any law relating to the subject matter of the
Actions, any Documents provided by the DENSO Defendants and/or the Releasees, their counsel,
or any individual made available by the DENSO Defendants pursuant to Cooperation (as opposed
to from any other source or pursuant to a court order). Notwithstanding anything contained herein,
End-Payor Plaintiffs and the DENSO Defendants are not relinquishing any rights to pursue
discovery from each other or from third parties, in the event that this Agreement fails to receive
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Pg ID 355
Final Court Approval, including final approval of the Settlement Classes, as defined in Paragraph
20, or in the event that it is terminated or rescinded by either party under any provision herein.
Should this Agreement fail to receive Final Court Approval or otherwise be terminated or
rescinded by either party under any provision herein, End-Payor Plaintiffs and the DENSO
Defendants will meet-and-confer regarding the timing of any such additional discovery. If the
parties cannot agree, they may submit any disputes to the Special Master or Court in the MDL
Proceeding.
56.
Unless and until this Agreement is rescinded, disapproved, or otherwise fails to
take effect, the DENSO Defendants and other Releasees need not respond to formal discovery
requests from End-Payor Plaintiffs or otherwise participate in the Actions during the pendency of
this Agreement, with the exception of the Cooperation provisions set forth above. Other than to
enforce the terms of this Agreement, neither the DENSO Defendants nor End-Payor Plaintiffs
shall file motions against the other in the Actions.
K.
Rescission if Agreements Are Not Approved or Final Judgments Are Not Entered
57.
If the requirements of subparts (i) and (iii) of Paragraph 30 of this Agreement fail to
be met, then the DENSO Defendants and End-Payor Plaintiffs shall each, in their sole discretion,
have the option to rescind this Agreement in its entirety. A modification or reversal on appeal of
any amount of Settlement Class Counsel’s fees and expenses awarded by the Court out of the
Settlement Funds shall not be deemed a basis to rescind this Agreement. If (a) the requirements of
subpart (ii) of Paragraph 30 of this Agreement fail to be met, or (b) the Automobile Dealership
Settlement Agreement is rescinded, terminated, or cancelled for any reason before the Court has
entered the orders and final judgments required by subpart (ii) of Paragraph 30 of this Agreement,
the DENSO Defendants at their sole discretion shall have the option to rescind this Agreement in
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Pg ID 356
its entirety. Written notice of the exercise of any such right to rescind shall be made according to
the terms of Paragraph 68.
58.
In the event that this Agreement does not receive Final Court Approval, or this
Agreement otherwise is terminated or rescinded by either party under any provision herein, then:
(i) this Agreement shall be of no force or effect, except as expressly provided in this Agreement;
(ii) the Settlement Funds shall be returned forthwith to the DENSO Defendants less only
disbursements made in accordance with Paragraph 38 of this Agreement; and (iii) the DENSO
Defendants shall be entitled to any tax refunds owing to the Settlement Funds. At the request of
the DENSO Defendants, Settlement Class Counsel shall file claims for any tax refunds owed to the
Settlement Funds and pay the proceeds, after deduction of any fees and expenses incurred with
filing such claims for tax refunds, to the DENSO Defendants. The DENSO Defendants expressly
reserve all of their rights and defenses if this Agreement does not receive Final Court Approval or
is otherwise terminated or rescinded.
59.
Further, and in any event, End-Payor Plaintiffs and the DENSO Defendants agree
that this Agreement, whether or not it receives Final Court Approval or is otherwise terminated or
rescinded by either party under any provision herein, and any and all negotiations, Documents, and
discussions associated with it, shall not be deemed or construed to be an admission or evidence of
(i) any violation of any statute or law or of any liability or wrongdoing whatsoever by the DENSO
Defendants or any other Releasees, or (ii) the truth of any of the claims or allegations contained in
the Complaints, the Proposed Consolidated Amended Complaint, or any other pleading filed in the
MDL Proceeding.
Evidence derived from this Agreement, and any and all negotiations,
Documents, and discussions associated with it shall not be discoverable or used in any way,
whether in the Actions or in any other action or proceeding, against the DENSO Defendants or
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Pg ID 357
other Releasees (except to enforce this Agreement). Nothing in this Paragraph shall prevent
End-Payor Plaintiffs from using Cooperation Materials produced pursuant to Paragraphs 43–56,
subject to the limitations in those paragraphs, for the purpose of prosecution of the claims in the
MDL Proceeding, except as to any such claims against the DENSO Defendants or Releasees.
L.
Miscellaneous
60.
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 the
DENSO Defendants.
61.
The DENSO Defendants 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.
62.
This Agreement does not settle or compromise any claim by End-Payor Plaintiffs
or any Settlement Class Member asserted in the Complaints or, if amended, any subsequent
complaints, against any Defendant or alleged co-conspirator other than the Releasees. All rights
against such other Defendants or alleged co-conspirators are specifically reserved by End-Payor
Plaintiffs and the Settlement Classes. All rights of any Settlement Class Member against any and
all former, current, or future Defendants or co-conspirators or any other person other than the
Releasees, for sales made by the DENSO Defendants and the DENSO Defendants’ alleged illegal
conduct are specifically reserved by End-Payor Plaintiffs and Settlement Class Members. The
DENSO Defendants’ sales to the Settlement Classes and the DENSO Defendants’ alleged illegal
conduct shall remain in the Actions 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 Actions or other
persons or entities other than the Releasees to the extent permitted by applicable law.
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63.
Pg ID 358
The United States District Court for the Eastern District of Michigan shall retain
jurisdiction over the 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 End-Payor Plaintiffs and the DENSO Defendants.
This Agreement shall be
governed by and interpreted according to the substantive laws of the State of Michigan without
regard to its choice of law or conflict of laws principles. The DENSO Defendants will not object
to complying with any of the provisions outlined in this Agreement on the basis of jurisdiction.
64.
This Agreement constitutes the entire, complete, and integrated agreement among
End-Payor Plaintiffs and the DENSO Defendants pertaining to the settlement of the Actions
against the DENSO Defendants, and supersedes all prior and contemporaneous undertakings,
communications, representations, understandings, negotiations, and discussions, either oral or
written, between End-Payor Plaintiffs and the DENSO Defendants in connection herewith. This
Agreement may not be modified or amended except in writing executed by End-Payor Plaintiffs
and the DENSO Defendants, and approved by the Court.
65.
This Agreement shall be binding upon, and inure to the benefit of, the successors
and assigns of End-Payor Plaintiffs and the DENSO Defendants. Without limiting the generality
of the foregoing, each and every covenant and agreement made herein by End-Payor Plaintiffs or
Settlement Class Counsel shall be binding upon all Settlement Class Members and Releasors. The
Releasees, other than the DENSO Defendants that are parties hereto, are third-party beneficiaries
of this Agreement and are authorized to enforce its terms applicable to them.
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66.
Pg ID 359
This Agreement may be executed in counterparts by End-Payor Plaintiffs and the
DENSO Defendants, and a facsimile signature shall be deemed an original signature for purposes
of executing this Agreement.
67.
Neither End-Payor Plaintiffs nor the DENSO Defendants 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.
68.
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.
69.
The DENSO Defendants and End-Payor Plaintiffs agree not to disclose publicly or
to any other person, except for Releasees where necessary, the terms of this Agreement until this
Agreement is submitted to the Court for Preliminary Approval.
70.
Each of the undersigned attorneys represents that he or she is fully authorized to
enter into the terms and conditions of, and to execute, this Agreement, subject to Court approval.
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Pg ID 360
2:16-cv-11804-MOB-MKM Doc # 14-1 Filed 07/14/16 Pg 56 of 58
Pg ID 361
Steven N. Williams
COTCHETT, PITRE & MCCARTHY, LLP
San Francisco Airport Office Center
840 Malcolm Road, Suite 200
Burlingame, CA 94010
Telephone: (650) 697-6000
Facsimile: (650) 697-0577
swilliams@cpmlegal.com
Hollis Salzman
ROBINS KAPLAN LLP
601 Lexington Avenue, Suite 3400
New York, NY 10022
Telephone: (212) 980-7400
Facsimile: (212) 980-7499
HSaIzman@RobinsKaplan.com
Marc M. Seltzer
SUSMAN GODFREY L.L.P.
1901 Avenue of the Stars, Suite 950
Los Angeles. CA 90067-6029
Telephone: (310) 789-3100
Facsimile: (310) 789-3150
mseltzer@susmangodfrey.com
Interim Co-Lead Class Counselfor End-Payor
Plaintiffs andSettlement Class Counsel
2:16-cv-11804-MOB-MKM Doc # 14-1 Filed 07/14/16 Pg 57 of 58
Pg ID 362
Steven N. Williams
COTCHETT, PITRE & McCARTIIY. LLP
San Francisco Airport Office Center
840 Malcolm Road. Suite 200
Burlingame, CA 94010
Telephone: (650) 697-6000
Facsimile: (650) 697-0577
swilliams(</',cpmlogal.com
'.man
robins Kaplan LLP
601 Lexington Avenue, Suite 3400
New York, NY 10022
Telephone: (212) 980-7400
Facsimile: (212) 980-7499
HSalzmaiTW RobinsKaplan.com
Marc M. Seltzer
SUSMAN GODFREY L.L.P.
1901 Avenue of the Stars. Suite 950
Los Angeles. CA 90067-6029
Telephone: (310) 789-3100
Facsimile: (310) 789-3150
mseltzcr@susmangodfrey.com
Interim C'o-I.ead C'lass Counsel for End-Payor
Plaintiffs and Settlement C'lass C'ounsel
2:16-cv-11804-MOB-MKM Doc # 14-1 Filed 07/14/16 Pg 58 of 58
Pg ID 363
Steven N. Williams
COTCHETT, PITRE & MCCARTHY, LLP
San Francisco Airport Office Center
840 Malcolm Road, Suite 200
BurlingameiCA 94010
Telephone: (650) 697-6000
Facsimile: (650) 697-0577
swilliams@cpmlegal.com
Hollis Salzman
ROBINS KAPLAN LLP
601 Lexington Avenue, Suite 3400
New York, NY 10022
Telephone: (212) 980-7400
Facsimile: (212) 980-7499
HSalzman@RobinsKapIan.com
f\jSj^__ 3-JiJ4y^~
Marc M. Seltzer
SUSMAN GODFREY L.L.P.
1901 Avenue ofthe Stars, Suite 950
Los Angeles, CA 90067-6029
Telephone: (310) 789-3100
Facsimile: (310) 789-3150
mseltzer@susmangodfrey.com
Interim Co-Lead Class Counselfor End-Payor
Plaintiffs and Settlement Class Counsel