1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 CARLOS VICTORINO and ADAM Case No.: 16cv1617-GPC(JLB) TAVITIAN, individually, and on behalf of 11 other members of the general public ORDER GRANTING 12 similarly situated, PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 13 Plaintiffs,
14 v. [Dkt. No. 431.] 15 FCA US LLC, a Delaware limited liability company, 16 Defendant. 17
18 Before the Court is Plaintiff Carlos Victorino’s (“Plaintiff”) motion for preliminary 19 approval of class action settlement. (Dkt. No. 431.) A hearing was held on April 21, 20 2023. (Dkt. No. 435.) At the hearing, the Court raised some deficiencies it noted in the 21 Long Form Notice and a discrepancy in the Settlement Agreement. On May 5, 2023, the 22 parties filed a revised Long Form Notice. (Dkt. No. 436.) Based on the reasoning below, 23 the Court GRANTS Plaintiff’s motion for preliminary approval of class action settlement. 24 Background 25 Plaintiff Carlos Victorino (“Plaintiff”) brought a class action against Defendant 26 FCA US LLC (“Defendant” or “FCA”), the designer, manufacturer and distributor of the 27 1 2013-2015 Dodge Dart vehicles equipped with a Fiat C635 manual transmission built on 2 or before November 12, 2014, (“Class Vehicles”), alleging they have a defective clutch 3 system that can cause the clutch to fail and stick to the floor, preventing drivers from 4 shifting gears and controlling the vehicle’s speed. Plaintiff filed the operative FAC on 5 June 19, 20171 alleging five causes of action against Defendant for violating California’s 6 Consumer Legal Remedies Act (“CLRA”), violating California’s unfair competition law 7 (“UCL”), breaching California’s implied warranty law under the Song Beverly Consumer 8 Warranty Act (“Song Beverly Act”), breaching federal implied warranty law under the 9 Magnuson-Moss Warranty Act (“MMWA”), and unjust enrichment. (Dkt. No. 104, 10 FAC; Dkt. No. 431-2, Zohdy Decl. ¶ 3.) After the Court’s ruling on Defendant’s motion 11 for summary judgment and motion for reconsideration, the remaining causes of action are 12 the breach of implied warranty of merchantability under the Song Beverly Act and the 13 MMWA, and the UCL claim premised on the breach of implied warranty claims. (See 14 Dkt. Nos. 206, 240.) 15 On October 17, 2019, the Court certified a Song Beverly Act class consisting of 16 “[a]ll persons who purchased or leased in California, from an authorized dealership, a 17 new Class Vehicle primarily for personal, family, or household purposes.”2 (Dkt. No. 18 318 at 24.3) Plaintiff was appointed as the Class Representative and his counsel, 19 Capstone Law APC, was appointed Class Counsel.” (Id. at 25.) Co-counsel Kiesel Law 20 LLP was appointed co-Class counsel on April 14, 2022. (Dkt. No. 399.) 21 22
23 24 1 The original complaint was filed on June 24, 2016 by Plaintiff and Adam Tavitian. (Dkt. No. 1.) Mr. Tavitian was dismissed after the Court granted the parties’ joint motion to dismiss on June 22, 2018. 25 (Dkt. No. 267.) 26 2 The Court noted that Plaintiff only moved to certify a class based on the Song-Beverly claim and not the MMWA or the UCL claims. (Dkt. No. 318 at 6.) 27 3 Page numbers are based on the CM/ECF pagination. 1 The case involved hard-fought litigation with written discovery, depositions, 2 countless numbers of contested motion practice, expert discovery, rulings on motions in 3 limine with trial date set on October 11, 2022. After extensive settlement negotiations 4 with the Magistrate Judge, (Dkt. Nos. 425, 426), Plaintiff and Defendant reached a 5 proposed settlement on September 27, 2022, on the eve of trial. (Dkt. No. 427.) 6 The Settlement Agreement will bring immediate and valuable relief for the clutch 7 defect. Therefore, the motion seeks the entry of an order (1) granting preliminary 8 approval of the Settlement; (2) confirming certification of the Class for settlement 9 purposes: (3) confirming Plaintiff as Class Representative; (4) confirming Plaintiff’s 10 counsel, Capstone Law APC and Kiesel Law LLP, as Class Counsel; (5) approving the 11 parties’ proposed form and method of giving Class Members notice of the action and 12 proposed Settlement; (6) directing that notice be given to Class Members in the proposed 13 form and manner; and (7) setting a hearing on whether the Court should grant Final 14 Approval of the Settlement, enter judgment, award attorneys’ fees and expenses to 15 Plaintiff’s counsel, and grant an incentive award to Plaintiff. 16 Discussion 17 A. Settlement Terms 18 1. Warranty Coverage Extension 19 FCA has agreed to a 12-month extended warranty, to begin the first day after the 20 Effective Date, expanding coverage for the repair or replacement of the clutch slave 21 cylinder under FCA’s Powertrain Limited Warranty. (Dkt. No. 431-3, Zohdy Decl., Ex. 22 1, Settlement Agreement ¶ II.B at 10.) This warranty extension shall be automatically 23 provided to every class member without a claim submission process and without regard 24 to the age or mileage of the class member’s vehicle. 25 2. Reimbursement for Prior Repairs 26 27 1 In connection with the warranty coverage extension, FCA has also agreed to 2 reimburse Class Members, who previously paid out-of-pocket to have a failed slave 3 cylinder replaced and who has not otherwise already received full reimbursement. Class 4 Members must submit Proof of Ownership to FCA and request reimbursement at 5 www.fcarecallreimbursement.com within 180 days of the Effective Date of Settlement 6 for repairs or replacements. (Id., Settlement Agreement ¶ II.C at 11.) 7 B. Class Notice Procedures 8 Before approving a class settlement, “[t]he court must direct notice in a reasonable 9 manner to all class members who would be bound by the proposal.” Fed. R. Civ. P. 10 23(e)(1). Where the settlement class is certified under Rule 23(b)(3), the notice must also 11 be the “best notice that is practicable under the circumstances, including individual notice 12 to all members who can be identified through reasonable effort.” Fed. R. Civ. P. 13 23(c)(2)(B). 14 Here, the parties agreed to provide individual notice of the Short Form Class 15 Notice by U.S. mail. (Dkt. No. 431-3, Zohdy Decl., Ex. 1, Settlement Agreement ¶ III.C 16 at 17; Dkt. No. 431-4, Zohdy Decl., Ex. 1, Settlement Agreement, Ex. A.) In addition, 17 the parties have agreed to publish a settlement website, on which will be posted a Long- 18 Form Class Notice. (Dkt. No. 431-5 Zohdy Decl., Ex. 1, Settlement Agreement, Ex. B.) 19 The parties have agreed on Kroll Administration (“Kroll”) to be the Notice 20 Administrator. (Dkt. No. 431-3, Zohdy Decl., Ex. 1, Settlement Agreement ¶ I.D at 5; 21 Dkt. No. 431-2, Zohdy Decl. ¶ 38.) After soliciting bids from CPT Group and Kroll for 22 settlement administration services, Defendant selected Kroll and its proposal of $24,476 23 as the lesser of the two. (Dkt. No. 431-2, Zohdy Decl. ¶ 39.) With offices around the 24 world, Kroll has decades of experience administering class actions of all types and sizes. 25 (Id.) Counsel for FCA has worked with Kroll on one prior occasion, at which time Kroll 26 proved itself competent, efficient, and reliable. (Id. ¶ 40.) Class Counsel Capstone Law 27 1 APC has not worked with Kroll previously and Class Counsel Kiesel Law LLP has 2 worked with Kroll one time in the past two (2) years, as settlement administrator in Ryan- 3 Blaufuss v. Toyota Motor Corp., Case No. 8:18-cv-00201-JLS-KES (C.D. Cal.), which 4 was finally approved on February 3, 2023. (Id.) Defendant has agreed to pay the costs of 5 the settlement administration. (Id. ¶ 41.) 6 The Notice Administrator will mail by first-class the Short Form Class Notice. 7 (Dkt. No. 431-3, Zohdy Decl., Ex. 1, Settlement Agreement ¶ III.C at 17.) As soon as is 8 practicable after the preliminary approval of the Settlement, the Notice Administrator will 9 obtain the name and last known address of each potential member of the Class from 10 Defendant. (Id.) Prior to mailing the Short Form Class Notice, the last known address of 11 potential Class Members will be checked and updated going back four years through the 12 use of the National Change of Address Database. (Id.) The Notice Administrator shall 13 use its best efforts to complete the initial mailing of the Short Form Class Notice to 14 potential Class Members within 75 days after the Preliminary Approval Date. (Id.) 15 If any Short Form Class Notice mailed to any potential Class Member is returned 16 to the Notice Administrator as undeliverable, then the Notice Administrator shall perform 17 a reasonable search, (e.g., the National Change of Address Database), for a more current 18 name and/or address for the potential Class Member and (provided that a more current 19 name and/or address can be found through such a search) re-send the returned Short Form 20 Class Notice to the potential Class Member by first-class mail. (Id.) In the event that any 21 Short Form Class Notice mailed to a potential Class Member is returned as undeliverable 22 a second time, then no further mailing shall be required. (Id.) The Notice Administrator 23 will promptly log each Short Form Class Notice that is returned as undeliverable and 24 provide copies of the log to Class Counsel. (Id.) 25 The Short Form and revised Long Form Notices comply with Rule 23(c)(2)(B) 26 where they “clearly and concisely state in plain, easily understood language” the nature 27 1 of the action; the class definition; the class claims, issues, or defenses; that the class 2 member may appear through counsel; that the court will exclude from the class any 3 member who requests exclusion; the time and manner for requesting exclusion; and the 4 binding effect of a class judgment on class members. See Friedman v. Guthy-Renker, 5 LLC, Case No. 2:14-cv-06009-ODW(AGRx), 2016 WL 6407362, at * 10 (C.D. Cal. Oct. 6 28, 2016) (acknowledging that Ninth Circuit has “approved notice via a combination of 7 short-form and long-form settlement notices.”) (citing In re Online DVD-Rental Antitrust 8 Litig., 779 F.3d 934, 946 (9th Cir. 2015); Spann v. J.C. Penney Corp, 314 F.R.D. 312, 9 331 (C.D. Cal. 2016) (approving e-mail and postcard notice, each of which directed the 10 class member to a long-form notice); and Vandervort v. Balboa Capital Corp., 8 F. Supp. 11 3d 1200, 1204 (C.D. Cal. 2014) (approving “class notice comprised a ‘Short–Form 12 Notice’ that briefly described the litigation and explained the terms of the Settlement 13 Agreement, including class members' options to submit a claims form, opt-out of the 14 settlement, and/or object to the settlement,” and which “directed class members to a 15 website containing a more detailed ‘Long-Form Notice’ ”)). 16 Notice of the proposed settlement will also be provided to the U.S. Attorney 17 General and the attorneys general of each state or territory in which a Class Member 18 resides, in compliance with the Class Action Fairness Act, 28 U.S.C. § 1715. (Dkt. No. 19 431-3, Zohdy Decl., Ex. 1, Settlement Agreement ¶ III.B at 16-17.) 20 ANALYSIS 21 The Ninth Circuit has a strong judicial policy that favors settlements in class 22 actions. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). 23 Approval under Federal Rule of Civil Procedure (“Rule”) 23(e) “involves a two-step 24 process in which the Court first determines whether a proposed class action settlement 25 deserves preliminary approval and then, after notice is given to class members, whether 26 final approval is warranted.” Nat’l Rural Telecomm’ns. Coop. v. DIRECTV, Inc., 221 27 1 F.R.D. 523, 525 (C.D. Cal 2004) (citation omitted). At the preliminary approval stage, 2 the court should grant approval only if it is justified by the parties’ showing that the court 3 will likely be able to (1) “certify the class for purposes of judgment on the proposal” and 4 (2) “approve the proposal under Rule 23(e)(2).” Fed. R. Civ P. 23(e)(B). 5 A. Preliminary Certification of the Settlement Class 6 A court may preliminarily certify a settlement class if all of the prerequisites of 7 Federal Rule of Civil Procedure 23(a) have been met, and at least one of the requirements 8 for Rule 23(b) have also been met. See Fed. R. Civ. P. 23. Because the Court certified a 9 class under Rule 12(b)(3), “the only information ordinarily necessary is whether the 10 proposed settlement calls for any change in the class certified, or of the claims, defenses, 11 or issues regarding which certification was granted.” Fed. R. Civ. P. 23 advisory 12 committee note to 2018 amendment. 13 For purposes of settlement, Plaintiff seeks to certify a class of 14 All persons who, prior to the Preliminary Approval Date, purchased or leased in California, from an authorized 15 dealership, a new 2013-2015 Dodge Dart vehicle equipped with 16 a Fiat C635 manual transmission built on or before November 12, 2014, primarily for personal, family, or household purposes. 17
18 Excluded from this definition are (1) all owners or lessees of Class Vehicles who have filed and served litigation against 19 FCA US asserting problems with the clutch in Class Vehicles 20 that was pending as of the Notice Date and who do not dismiss their actions before final judgment and affirmatively elect to 21 opt-out of the Settlement. However, owners or lessees of Class 22 Vehicles who dismiss such litigation and affirmatively opt-in to the Settlement shall be members of the Class for all purposes; 23 (2) FCA US’s officers, directors, employees, affiliates and 24 affiliates’ officers, directors and employees; their distributors and distributors’ officers, directors, and employees; and FCA 25 US Dealers and FCA US Dealers’ officers and directors; (3) 26 judicial officers assigned to the Action and their immediate family members, and any judicial officers who may hear an 27 1 appeal on this matter; (4) all entities and natural persons who have previously executed and delivered to FCA US releases of 2 their claims based on clutch failure in the Class Vehicles; (5) 3 all parties to litigation against FCA US alleging clutch failure in Class Vehicles in which final judgment has been entered; and 4 (6) all those otherwise in the Class who timely and properly 5 exclude themselves from the Class as provided in the Settlement. 6
7 Plaintiff claims that the Settlement Class is the same as the class certified. (Dkt. 8 No. 431-1 at 12.) Previously, the Court approved class certification under Rule 23(b)(3) 9 of “[a]ll persons who purchased or leased in California, from an authorized dealership, a 10 new Class Vehicle primarily for personal, family, or household purposes.” (Dkt. No. 318 11 at 24.) 12 The Settlement Class differs from the previously certified class by providing 13 exclusion of persons subject to the Class who would either receive double recovery or 14 potentially receive double recover, or have a conflict of interest, and temporally limiting 15 the Class to those who purchased or leased a Class Vehicle prior to the Preliminary 16 Approval Date. 17 The temporal change and exclusions based on potential conflicts or double 18 recovery do not affect the substantive reasoning of the Court’s prior certification order. 19 See Youth Justice Coalitions v. City of Los Angeles, 2:16-cv-07932-VAP-RAOx, 2020 20 WL 9312377, at *2 (C.D. Cal. Nov. 17, 2020) (change in class definition does not alter 21 the reasoning underlying its earlier decision to grant class certification pursuant to Rule 22 23(b)(2); Allen v. Similasan Corp., No. 12-CV-00376-BAS-JLBx, 2017 WL 1346404, at 23 *3 (S.D. Cal. Apr. 12, 2017) (approving expansion of settlement class where the 24 expansion did not change the court’s previous class certification analysis); Song v. THC- 25 Orange Cnty., Inc., Case No. 8:17−cv−00965−JLS−DFM, 2019 WL 13030225, at *2 26 (C.D. Cal. Feb. 28, 2019) (temporal change to class definition where the Class runs 27 1 through the date of the Order whereas the previously-certified class covered through 2 August 6, 2018 not substantive). Therefore, the Court reconfirms its prior certification of 3 the class and grants preliminary certification of the Settlement Class. 4 B. Preliminary Approval of Class Action Settlement 5 Next, Rule 23(e) requires the Court to examine the settlement and ensure it is “fair, 6 reasonable, and adequate” after considering whether: 7 (A) the class representatives and class counsel have adequately represented the class; 8 (B) the proposal was negotiated at arm’s length; 9 (C) the relief provided for the class is adequate, taking into account: (i) the costs, risks, and delay of trial and appeal; 10 (ii) the effectiveness of any proposed method of distributing relief to 11 the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorney’s fees, including 12 timing of payment; and 13 (iv) any agreement required to be identified under Rule 23(e)(3); and, (D) the proposal treats class members equitably relative to each other. 14
15 Fed. R. Civ. P. 23(e)(2). The first two factors are viewed as “procedural” while the latter 16 two factors are viewed as “substantive” in nature. Fed. R. Civ. P. 23(e)(2) advisory 17 committees note to 2018 amendment. Because the Court cannot fully assess all factors 18 until after the final approval hearing, at the preliminary approval stage, “a full fairness 19 analysis is unnecessary.” Alberto v. GMRI, Inc., 252 F.R.D. 652, 665 (E.D. Cal. 2008) 20 (internal quotation marks and citation omitted); Acosta v. Trans Union, LLC, 243 F.R.D. 21 377, 386 (C.D. Cal. 2007) (“To determine whether preliminary approval is appropriate, 22 the settlement need only be potentially fair, as the Court will make a final determination 23 of its adequacy at the hearing on Final Approval, after such time as any party has had a 24 chance to object and/or opt out.”). At the preliminary approval stage, the Court only 25 determines whether it will “likely be able to” grant final approval to the settlement. See 26 Newberg & Rubenstein on Class Actions § 13:13 (citing Rule 23(e)(2)). 27 1 1. Adequacy of Representation 2 Rule 23(e)(2)(A) requires the Court to consider whether “the class representatives 3 and class counsel have adequately represented the class.” Fed. R. Civ. P. 23(e)(2)(A). In 4 the Court's previous order on class certification, it found that the adequacy of 5 representation had been satisfied under Rule 23(a)(4). (Dkt. No. 265 at 17-18). Because 6 the inquiry under Rule 23(a)(4) and Rule 23(e)(2)(A) are similar, adequacy of 7 representation is likely met. See In re GSE Bonds Antitrust Litig., 414 F. Supp. 3d 686, 8 701 (S.D.N.Y. 2019) (noting similarity of inquiry under Rule 23(a)(4) and Rule 9 23(e)(2)(A)). 10 2. Arm’s Length Negotiation 11 “Where the proposed settlement is preceded by a lengthy period of adversarial 12 litigation involving substantial discovery, a court is likely to conclude that settlement 13 negotiations occurred at arms-length.” See Newberg & Rubenstein on Class Actions § 14 13:14 (2022). Moreover, “[c]ourts have also found collusion less likely when settlement 15 negotiations are conducted by a third-party mediator. Id. Both these considerations 16 likely support that the settlement was negotiated at arm’s length and not a product of 17 collusion. 18 In this case, not only did the case settle at the eve of trial, but this was a highly 19 contentious case where motions, and objections were filed at nearly every step of the 20 case. Further, prior to settlement, Plaintiff thoroughly investigated and researched the 21 claims in litigating this action and preparing trial, which allowed his counsel to better 22 evaluate Defendant’s claimed representations and omissions concerning the alleged 23 clutch defect. (Dkt. No. 431-2, Zohdy Decl. ¶ 27.) For example, Plaintiff fielded 24 inquiries from putative Class Members and investigated many of their reported claims. 25 (Id.) Counsel also consulted and retained both liability and damages experts to assist in 26 27 1 identifying the exact defect, devise a fix, and quantify the damages suffered by the Class 2 for the purpose of filing a motion for class certification. (Id.) 3 Plaintiff also researched publicly available materials and information provided by 4 the National Highway Traffic Safety Administration (“NHTSA”) about consumer 5 complaints about the Class Vehicles. (Id. ¶ 28.) Counsel reviewed and researched 6 consumer complaints and discussions of related problems in articles and forums online, 7 in addition to various manuals and technical service bulletins (“TSBs”) discussing the 8 alleged defect. (Id.) Finally, counsel conducted research into the various causes of 9 actions and other similar automotive actions. (Id.) 10 During discovery, Plaintiff reviewed voluminous documents and related databases 11 produced by FCA, including spreadsheets with thousands of rows of data, owners’ 12 manuals, maintenance and warranty manuals, internal FCA investigation reports, TSBs, 13 field reports, warranty data, etc. (Id. ¶ 29.) 14 In addition to written discovery, Plaintiff’s counsel took the depositions of five 15 FCA corporate representatives and employees, including Robert A. Benson, Senior 16 Manager – Manual Transmission Engineering; Michael W. Gapski, Technical Manager – 17 Manual Transmission Engineering; Jeffrey J. Sawruk, Supervisor – Manual Transmission 18 Engineering; Lawrence K. Laba, Investigator –Vehicle Safety and Regulatory 19 Compliance; and Charles R. Pajtas, Product Engineer –Manual Transmission 20 Engineering. (Id. ¶ 30.) FCA took the depositions of Plaintiff and Mr. Tavitian, the 21 former plaintiff. (Id. ¶ 31.) In addition, all of Plaintiff’s expert witnesses were deposed. 22 (Id.) In reviewing the above discovery, evidence, and testimony, Plaintiff identified 23 information that was instrumental to the case and to Plaintiff’s efforts during mediation. 24 Furthermore, over the course of litigation, Plaintiff responded to Class Members who 25 contacted Plaintiff’s counsel to report problems with their Class Vehicles and seek relief. 26 (Id. ¶ 32.) Plaintiff’s counsel also conducted detailed interviews with Class Members 27 1 regarding their pre-purchase research, their purchasing decisions, and their repair 2 histories, and developed a plan for litigation and settlement based in part on Class 3 Members’ reported experiences with their Class Vehicles and with FCA dealers. (Id.) 4 Finally, the parties engaged in three mediations sessions with the Magistrate Judge and 5 they finally reached a settlement on September 27, 2022 at the third session. (Dkt. No. 6 431-2, Zohdy Decl. ¶ 22.) 7 Due to the lengthy period of adversarial litigation, substantial discovery, and 8 settlement before the Magistrate Judge, the Court is likely to conclude that settlement 9 negotiations occurred at arms-length. See Newberg & Rubenstein on Class Actions § 10 13:14. 11 3. Adequacy of Relief Provided to the Class 12 Rule 23(e)(2)(C) requires that the Court consider whether “the relief provided for 13 the class is adequate, taking into account: (i) the costs, risks, and delay of trial and 14 appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, 15 including the method of processing class-member claims; (iii) the terms of any proposed 16 award of attorney's fees, including timing of payment; and (iv) any agreement required to 17 be identified under Rule 23(e)(3).” Fed. R. Civ. P. 23(e)(2)(C). 18 i. Costs, Risks, and Delay of Trial and Appeal 19 Consistent with Rule 23’s instruction to consider “the costs, risks, and delay of trial 20 and appeal,” Fed. R. Civ. P. 23(e)(2)(C)(i), courts in this circuit evaluate “the strength of 21 the plaintiffs’ case; the risk, expense, complexity, and likely duration of further litigation; 22 [and] the risk of maintaining class action status throughout the trial.” Hanlon v. Chrysler 23 Corp., 150 F.3d 1011, 1026 (9th Cir. 1998), overruled on other grounds by Wal-Mart 24 Stores, Inc. v. Dukes, 564 U.S 338 (2011). The Ninth Circuit expressly rejected any 25 requirement that the settling parties value maximum damages that can be obtained at trial, 26 as that figure would be inherently speculative. Lane v. Facebook, Inc., 696 F.3d 811, 818 27 1 (9th Cir. 2012) (“[N]ot only would such a requirement be onerous, it would often be 2 impossible . . . [since] the amount of damages of a given plaintiff (or class of plaintiffs) 3 has suffered in a question of fact that must be proved at trial.”). There is no particular 4 formula to assess whether a settlement is fair, reasonable and adequate; the court’s 5 determination “is nothing more than an amalgam of delicate balancing, gross 6 approximations and rough justice.” Rodriguez v. West Pub. Corp., 563 F.3d 948, 965 7 (9th Cir. 2009) (quoting Officers for Justice v. Civil Serv. Comm'n of San Francisco, 688 8 F.2d 615, 625 (9th Cir. 1982)). 9 Here, the proposed Settlement is within the range of reasonableness particularly 10 when compared to the likely outcome of prosecuting the action. The extended warranty 11 is a valuable benefit as there is a market for third-party extended warranties sold to 12 consumers to cover vehicle components. (Dkt. No. 431-2, Zohdy Decl. ¶ 36.) Even if 13 Plaintiff had prevailed at trial, the recovery would have been limited to the cost of repair 14 which expert Steven Boyles estimated to be $1,022.64 on average. (Id.) Thus, the 15 settlement achieves a similar outcome where class members who have paid for repairs 16 will be reimbursed, and class members who have not paid will automatically receive an 17 extended warranty and have the opportunity to have those repairs performed free of 18 charge and without a claims process. (Id.) Thus, when weighed against the risk of 19 further litigation, the Settlement clearly falls within the range of reasonableness. While 20 Plaintiff believes that his case is strong on the merits, FCA has raised a number of 21 substantive defenses that present serious risks to Plaintiff’s case. These defenses include, 22 among others, that no clutch defect exists, or that, even if a defect existed, Plaintiff would 23 not be able to show that it constitutes a safety concern. See, e.g., Smith v. Ford Motor 24 Co., 749 F. Supp. 2d 980, 991-92 (N.D. Cal. 2010) (granting defendant’s motion for 25 summary judgment and finding alleged ignition-lock defect not a safety risk), aff’d, 462 26 27 1 F. App’x 660 (9th Cir. 2011). Accordingly, Plaintiff would have to meet a high burden to 2 establish violations of state and federal consumer protection and warranty statutes. 3 Moreover, had litigation continued, the Class would run the risk of decertification, 4 which can be made at any time. While Plaintiff would vigorously challenge 5 decertification, consumers bringing automotive defect actions are frequently denied class 6 certification due to lack of common proof. FCA has already questioned predominance 7 and attempted to raise purportedly new individual issues following certification, which it 8 could question again. 9 The parties took the case to the eve of trial. Had the case continued, “plaintiff[] 10 [would] face[] a substantial risk of incurring the expense of a trial without any recovery.” 11 In re Toys “R” Us-Del FACTA Litig., 295 F.R.D. 438, 451 (C.D. Cal. 2014). Indeed, the 12 risk of continuing litigation, including an appeal, the risk of new adverse statutory or case 13 law, increased costs, and expiration of a substantial amount of time, weigh heavily in 14 favor of settlement. See Rodriguez, 463 F.3d at 966. 15 Aside from a risk of decertification, Plaintiff could face the termination of his 16 action at trial. Prolonging litigation further, even if Plaintiff were to prevail on 17 dispositive motions and at trial, would almost certainly diminish the value of the relief to 18 Class Members, as their Class Vehicles’ value will depreciate over time. Any restitution 19 remedies they could obtain would also be subject to offsets for car owners’ use of the 20 vehicles. For example, even under Song-Beverly Act, a repurchase would require an 21 offset for the mileage driven. See Cal. Civ. Code § 1793.2(d)(2)(C); see also Robbins v. 22 Hyundai Motor America, Inc., No. SACV 14–00005–JLS (ANx), 2015 WL 304142, at *6 23 (C.D. Cal. Jan. 14, 2015). 24 In light of the substantial costs and risks of continued litigation at trial and on an 25 appeal and the significant relief secured for the Class by the proposed Settlement, this 26 factor likely supports the adequacy of relief provided to the Class. See In re Anthem, Inc. 27 1 Data Breach Litig., 327 F.R.D. 299, 318 (N.D. Cal. 2018) (granting final approval where 2 “further litigation would have been costly and uncertain and would have detrimentally 3 delayed any potential relief for the Class,” whereas the relief provided by settlement was 4 “timely, certain, and meaningful”). 5 ii. Effectiveness of Proposed Method of Distributing Relief 6 This Settlement will automatically provide each class member with a 12-month 7 extension to FCA’s Powertrain Limited Warranty with respect to the slave cylinder. 8 Each Class Member will automatically receive the warranty extension without a claims 9 submission process and will be able to bring their vehicle into their local dealership for 10 qualifying repairs. The warranty extension applies to every vehicle regardless of the 11 vehicle’s age or mileage. Additionally, class members can also submit claims for 12 reimbursement for past repairs. This procedure weighs in favor of preliminary approval. 13 iii. Terms of Proposed Award of Service and Attorney’s Fees 14 The Parties have negotiated sums for attorneys’ fees, expenses, and service awards 15 separately, with the amount finally awarded by the Court not affecting the Class benefits 16 in any way. (Dkt. No. 431-3, Zohdy Decl., Ex. 1, Sett. Ag. ¶ II.E at 12-13.) The 17 Settlement Agreement provides that Class Counsel’s attorneys’ fees, costs, and expenses 18 will not exceed $1,690,000.00 which is separate and apart from the settlement to the 19 Class. (Dkt. No. 431-3, Zohdy Decl., Ex. 1, Sett. Ag. ¶ II.E.) The Settlement Agreement 20 provides that, subject to the Court’s approval, Defendant will not oppose Class Counsel's 21 motion for attorney's fee. (Id.) 22 “While attorneys’ fees and costs may be awarded in a certified class action where 23 so authorized by law or the parties’ agreement, Fed. R. Civ. P. 23(h), courts have an 24 independent obligation to ensure that the award, like the settlement itself, is reasonable, 25 even if the parties have already agreed to an amount.” In re Bluetooth Headset Prod. 26 Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011). The Court must assess whether the 27 1 settlement was the product of “collusion” by checking for “subtle signs that class counsel 2 have allowed pursuit of their own self-interests . . . to infect the negotiations.” Allen v. 3 Bedolla, 787 F.3d 1218, 1224 (9th Cir. 2015). The Ninth Circuit has identified three such 4 “subtle signs,” or the Bluetooth factors: (1) “when counsel receive[s] a disproportionate 5 distribution of the settlement; (2) when the parties negotiate a clear-sailing arrangement, 6 under which the defendant agrees not to challenge a request for an agreed-upon attorney's 7 fee; and (3) when the agreement contains a kicker or reverter clause that returns 8 unawarded fees to the defendant, rather than the class.” Briseno v. Henderson, 998 F.3d 9 1014, 1023 (9th Cir. 2021) (quoting In re Bluetooth, 654 F.3d at 947) (internal quotation 10 marks omitted). This heightened review applies to pre- and post-certification settlements. 11 Id. at 1025. However, for “all these factors, considerations, subtle signs, and red flags . . . 12 the underlying question remains this: Is the settlement fair?” In re Volkswagen “Clean 13 Diesel” Mktg., Sales, Practices & Prods. Liab. Litig., 895 F.3d 597, 611 (9th Cir. 2018) 14 (internal quotation marks omitted). 15 Plaintiff maintains that, except for the “clear sailing” provision, none of the 16 Bluetooth Factors are present here. “[T]he very existence of a clear sailing provision 17 increases the likelihood that class counsel will have bargained away something of value 18 to the class.” In re Bluetooth, 654 F.3d at 948 (quoting Weinberger v. Great N. Nekoosa 19 Corp., 925 F.2d 518, 525 (1st Cir. 1991)). As in this case, it is irrelevant if the clear 20 sailing provision is severable. Id. “Therefore, when confronted with a clear sailing 21 provision, the district court has a heightened duty to peer into the provision and scrutinize 22 closely the relationship between attorneys' fees and benefit to the class, being careful to 23 avoid awarding ‘unreasonably high’ fees simply because they are uncontested.” Id. 24 (citation omitted). Class Counsel indicates it will fully address the reasonableness of 25 their requested fee award in their forthcoming motion for attorneys’ fees. (Dkt. No. 431- 26 1 at 15.) 27 1 As to the other two Bluetooth factors, Plaintiff claims his counsel do not seek a 2 disproportionate share of fees. In this circuit, fees can be calculated by either the 3 lodestar or percentage-of-recovery method in class actions that result in benefits to the 4 entire class. In re Bluetooth, 654 F.3d at 942. Here, because there is no common fund, 5 the Court looks to the lodestar method. At this time, Class Counsel’s lodestar is 6 $2,953,973.75, which includes 4,309.85 hours billed, and does not include the anticipated 7 time spent preparing the attorneys’ fee application, motion for final approval, and 8 assisting class members with their claims. (Dkt. No. 431-2, Zohdy Decl. ¶¶ 46-47; Dkt. 9 No. 431-8, Kiesel Decl. ¶¶ 12-15.) The requested fees represent a substantial negative 10 multiplier, meaning that counsel billed substantially more to the case than they will 11 recover in fees. Further, Class Counsel’s costs are $150,860.42. (Dkt. No. 431-2, Zohdy 12 Decl. ¶ 48; Dkt. No. 431-8, Kiesel Decl. ¶ 16.) Therefore, it does not appear that counsel 13 is receiving a disproportionate distribution of the settlement. Finally, there is no 14 “reverter” of unclaimed funds to FCA as the Settlement does not provide for the 15 establishment of a common fund. With the exception of the “clear sailing” provision, an 16 issue Class Counsel recognize and will address in their motion for attorneys’ fees, this 17 factor supports preliminary approval. 18 In addition, subject to Court approval, the Settlement Agreement provides for a 19 service award to the named Class Representative for his efforts to secure relief on behalf 20 of the Settlement Class, in the amount of $20,000.00, subject to Court approval.4 (Dkt. 21 No. 431-3, Zohdy Decl., Ex. 1, Settlement Agreement ¶ II.F at 13.) The revised Long 22
23 24 4 At the hearing, the Court informed counsel that the Settlement Agreement provides that Plaintiff intends to seek $20,000 for a service award but it also provides that “FCA US shall pay the amount 25 awarded by the Court (up to $10,000).” At the time, counsel indicated this may have been a 26 typographical error; however, the parties did not provide an updated settlement agreement resolving the Court’s concern. Therefore, the amount of the incentive award remains at issue and will be reviewed at 27 the final approval stage. 1 Form Notice provides any “award of payment to the Class Representative will be paid 2 separately from and in addition to any benefits provided to the Settlement Class.” (Dkt. 3 No. 436-1 at 7.) 4 Incentive awards are typical in class action to compensate class representatives for 5 work undertaken on behalf of the class. In re Online DVD-Rental Antitrust Litig., 779 6 F.3d at 943. In this case, Plaintiff seeks an incentive award for the time and effort he 7 spent to support a case in which he had a modest personal interest, but which provided 8 considerable benefits to Class Members and a commitment undertaken without any 9 guarantee of recompense. (Dkt. No. 431-2, Zohdy Decl. ¶ 33.) He searched for, 10 reviewed, and provided documents to, and consulted with, Class Counsel about the 11 claims in this case and assisted throughout the course of the litigation. (Id.) Plaintiff 12 reviewed the allegations, kept in constant contact with Class Counsel regarding the status 13 of the case, and responded to inquiries regarding Defendant’s efforts to remedy the 14 problems Plaintiff experienced. (Id.) Plaintiff also thoroughly prepared for deposition 15 and was deposed. (Id.) Plaintiff has also stayed abreast of settlement negotiations, 16 reviewed the Settlement terms, and approved the Settlement on behalf of the Class. (Id.) 17 Finally, Plaintiff has provided his vehicle on several prolonged occasions for both 18 Plaintiff’s expert and Defendant’s inspection, and had to maintain ownership of his 19 vehicle for a multiyear litigation. (Id.) 20 iv. Agreement Made in Connection with the Proposal 21 Rule 23(e)(3) requires that the Parties “must file a statement identifying any 22 agreement made in connection with the [settlement] proposal.” Fed. R. Civ. P. 23(e)(3). 23 Plaintiff has not identified any such agreement; therefore, this factor is not relevant. 24 4. Equitable Treatment of Class Members 25 Rule 23(e)(2) also turns on whether the proposed settlement “treats class members 26 equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(D). “Matters of concern could 27 1 include whether the apportionment of relief among class members takes appropriate 2 account of differences among their claims, and whether the scope of the release may 3 affect class members in different ways that bear on the apportionment of relief.” Fed. R. 4 Civ. P. 23(e)(2)(D) advisory committee note to 2018 amendment. 5 Here, the Settlement generally treats all class members the same. The class is 6 defined as all persons who, prior to the date of preliminary approval, purchased or leased 7 in California from an authorized dealership a new Class Vehicle primarily for personal, 8 family, or household purposes and all are equally entitled to the relief and remedies 9 provided by the Settlement. To the extent they receive different compensation under the 10 settlement, it will be proportionate to their actual harms. For example, only those Class 11 Members who spent money to have their clutch slave cylinder replaced will be 12 reimbursed for such expenses. See Altamirano v. Shaw Indus., Inc., No. 13-cv-00939, 13 2015 WL 4512372, at *8 (N.D. Cal. July 24, 2015) (finding no preferential treatment 14 because the settlement “compensates class members in a manner generally proportionate 15 to the harm they suffered on account of [the] alleged misconduct”). Once reimbursed for 16 their repair expenses, those Class Members will stand in an identical posture to all other 17 Class Members. At that point, no Class Member will have suffered unreimbursed, out- 18 of-pocket repair costs. 19 Even those Class Members who experienced the clutch defect firsthand or those 20 who decide to trade in or sell their vehicles after receiving notice of the settlement will be 21 entitled to the same relief. Not all Class Members will suffer these types of harms, but 22 those who do will be eligible for the same compensation. The same is true for the class’s 23 release: all Class Members will provide an identical release it. As a result, the settlement 24 treats all Class Members equitably which further supports approval of the settlement. 25 Finally, though the class representative will receive an additional $20,000, the extra 26 payment is in recognition for the service he performed on behalf of the class, and the 27 1 Ninth Circuit has approved such awards. This factor likely supports approval of the 2 Settlement. 3 5. Additional Factor - The Experience and Views of Counsel 4 Plaintiff also claims the Court should consider the views of experienced counsel. 5 Churchill Village, LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) (considering 6 experience and views of counsel in determining whether the settlement is fair and 7 adequate). “Parties represented by competent counsel are better positioned than courts to 8 produce a settlement that fairly reflects each party’s expected outcome in litigation.” In 9 re Pac. Enters. Sec. Litig., 47 F.3d 373, 378 (9th Cir. 1995). 10 In this case, the parties achieved a settlement after a thorough review of relevant 11 documents and testimony, as well as a rigorous analysis of the parties’ claims and 12 defenses. The expectations of all parties are embodied by the Settlement, which, as 13 concluded above, is non-collusive, being the product of arms’ length negotiations and 14 finalized with the assistance of an experienced Magistrate Judge. The parties were 15 represented by experienced class action counsel possessing significant experience in 16 automotive defect and class action matters. (See Dkt. No. 431-7, Zohdy Decl., Ex. 2; 17 Dkt. No. 431-9, Kiesel Decl., Ex. 1.) Likewise, Plaintiff’s assert that FCA’s counsel, 18 Higgs, Fletcher & Mack LLP and Thompson Coburn LLP, are highly experienced in the 19 field of automotive consumer class action defense. The Parties’ recommendation to 20 approve this Settlement should therefore “be given great weight.” Eisen v. Porsche, No. 21 2:11–cv–09405–CAS–FFMx, 2014 WL 439006, at *5 (C.D. Cal. Jan. 30, 2014) 22 (crediting the experience and views of counsel in approving a settlement resolving 23 automotive defect allegations). The Court agrees that the experience and views of 24 counsel support preliminary approval of the settlement agreement. 25 Conclusion 26 The Court, having fully reviewed the Motion for Preliminary Approval of Class Action 27 1 Settlement, supporting documents, and the applicable and in recognition of the Court’s duty to 2 make a preliminary determination as to the reasonableness of any proposed class action 3 settlement and, if preliminarily determined to be reasonable, to ensure proper notice is provided 4 to Class Members in accordance with due process, and to conduct a Final Approval hearing as 5 to the good faith, fairness, adequacy and reasonableness of any proposed settlement, FINDS, 6 CONCLUDES, and ORDERS that the Settlement is hereby PRELIMINARILY 7 APPROVED. The Court further finds and orders as follows: 8 1. The Court has subject matter jurisdiction under 28 U.S.C. § 1332(d), and venue is 9 proper in this district. 10 2. The Court has personal jurisdiction over the Plaintiff, Settlement Class Members, 11 and the Defendant. 12 3. To the extent not otherwise defined herein, all defined terms in this Order shall 13 have the meaning assigned in the Settlement Agreement (“Settlement Agreement”). 14 4. The Settlement Agreement is a product of extensive arms’ length negotiations 15 entered into by experienced counsel and presided over by an experienced Magistrate Judge. The 16 Settlement Agreement is not the result of collusion. 17 5. The proceedings that occurred before the Parties reached resolution of this matter 18 gave counsel the opportunity to adequately assess this case’s strengths, weaknesses, and the 19 risks to each Party and, thus, to structure the Settlement Agreement in a way that adequately 20 accounts for those considerations. 21 6. After careful review of the Settlement Agreement, the Court hereby finds that the 22 Settlement Agreement is fair, reasonable, and adequate, and has no obvious deficiencies that 23 preclude preliminary approval. Accordingly, the Court hereby preliminarily approves all terms 24 of the Settlement Agreement and its Exhibits. 25 7. The Court preliminarily finds, for settlement purposes only, that all requirements 26 of Fed. R. Civ. P. 23(a) and (b)(3) have been satisfied. As such, the Court hereby preliminarily 27 1 certifies the following Settlement Class: 2
3 All persons who, prior to the Preliminary Approval Date, purchased or leased in California, from an authorized 4 dealership, a new 2013-2015 Dodge Dart vehicle equipped with 5 a Fiat C635 manual transmission built on or before November 12, 2014, primarily for personal, family, or household purposes. 6
7 Excluded from this definition are (1) all owners or lessees of Class Vehicles who have filed and served litigation against 8 FCA US asserting problems with the clutch in Class Vehicles 9 that was pending as of the Notice Date and who do not dismiss their actions before final judgment and affirmatively elect to 10 opt-out of the Settlement. However, owners or lessees of Class 11 Vehicles who dismiss such litigation and affirmatively opt-in to the Settlement shall be members of the Class for all purposes; 12 (2) FCA US’s officers, directors, employees, affiliates and 13 affiliates’ officers, directors and employees; their distributors and distributors’ officers, directors, and employees; and FCA 14 US Dealers and FCA US Dealers’ officers and directors; (3) 15 judicial officers assigned to the Action and their immediate family members, and any judicial officers who may hear an 16 appeal on this matter; (4) all entities and natural persons who 17 have previously executed and delivered to FCA US releases of their claims based on clutch failure in the Class Vehicles; (5) 18 all parties to litigation against FCA US alleging clutch failure 19 in Class Vehicles in which final judgment has been entered; and (6) all those otherwise in the Class who timely and properly 20 exclude themselves from the Class as provided in the 21 Settlement.
22 8. The Court preliminarily certifies the proposed Settlement Class, and preliminarily 23 finds that the requirements of Rule 23(a) are satisfied, for settlement purposes only, as follows: 24 (a) Pursuant to Fed. R. Civ. P. 23(a)(1), the members of the Settlement Class are so numerous 25 that joinder of all members is impracticable, (b) Pursuant to Fed. R. Civ. P. 23(a)(2) and 26 23(c)(1)(B), there are common issues of law and fact for the Settlement Class, (c) Pursuant to 27 1 Fed. R. Civ. P. 23(a)(3), the claims of Plaintiff Carlos Victorino are typical of the claims of the 2 Settlement Class that he represents, and (d) Pursuant to Fed. R. Civ. P. 23(a)(4), Plaintiff will 3 fairly and adequately protect and represent the interests of all members of the Settlement Class 4 as the Class Representative, and his interests are not antagonistic to those of the Settlement 5 Class. 6 9. The Court further preliminarily finds that the requirements of Rule 23(b)(3) are 7 satisfied, for settlement purposes only, in that, (a) common questions of law and fact pertaining 8 to the Settlement Class Members predominate over questions that may affect only individual 9 members; and (b) a class action is superior to other available methods for the fair and efficient 10 adjudication of this controversy. 11 10. The Court hereby preliminarily appoints Plaintiff Carlos Victorino to serve as the 12 Class Representative for the Settlement Class. 13 11. The Settlement Class Representatives and Class are ably represented by counsel 14 who are experienced and competent in the prosecution of complex class action litigation and 15 have acted in their best interests. Accordingly, the Court hereby preliminarily appoints Capstone 16 Law APC and Kiesel Law LLP to serve as Class Counsel for the Settlement Class. 17 12. The Court also preliminarily appoints Kroll Administration as the Notice 18 Administrator (hereinafter, “Notice Administrator”) to supervise and administer the Class 19 Notice. 20 13. The Court has reviewed the content of the proposed form of Class Notice attached 21 to the Settlement Agreement as Exhibit A (Short Form Class Notice) and Exhibit B (revised 22 Long Form Class Notice), and finds they satisfy Fed. R. Civ. P. 23(c)(2), Fed. R. Civ. P. 23 23(e)(1), and Due Process requirements, and, accordingly, the Court hereby approves the 24 proposed Class Notice. 25 14. The Court further approves the proposed method for providing notice of the 26 Settlement to the Settlement Class Members, as reflected in the plan for Class Notice in the 27 1 Settlement Agreement. The Court has reviewed the Class Notice plan and finds that the 2 Settlement Class Members will receive the best notice practicable under the circumstances. The 3 Court specifically approves the Parties’ proposal that, on an agreed upon date with the Notice 4 Administrator, but in no event later than July 14, 2023, the Notice Administrator shall cause 5 individual Class Notice, substantially in the form attached to the Settlement Agreement as 6 Exhibit A, to be mailed, by first class mail, to the current or last known addresses of all 7 reasonably identifiable Settlement Class Members (the “Notice Date”). The Court specifically 8 approves the procedures set forth in the Settlement Agreement for identifying Settlement Class 9 Members, and for re-mailing notice packets and performing advanced address searches for 10 Settlement Class Members’ addresses if returned as undeliverable. The Notice Administrator 11 shall establish the Settlement Website as contemplated by the Settlement Agreement. The Court 12 further approves the payment of notice costs as provided in the Settlement Agreement. 13 15. The Court finds that these procedures constitute the best notice practicable under 14 the circumstances, including individual notice to all Class Members who can be identified with 15 reasonable effort, and constitute valid, due, and sufficient notice to Class Members in full 16 compliance with the requirements of applicable law, Fed. R. Civ. P. 23(c)(2) and (e)(1), and the 17 Due Process Clause of the United States Constitution. 18 16. Pending final determination of the joint application for approval of the Settlement 19 Agreement, all proceedings in this Litigation, other than settlement approval proceedings, shall 20 be stayed. 21 17. The Court directs that, pursuant to Fed. R. Civ. P. 23(e)(2), a final Fairness Hearing 22 will be held on September 29, 2023, at 1:30 p.m. in Courtroom 2D of the United States District 23 Court for the Southern District of California, Edward J. Schwartz United States Courthouse, 221 24 West Broadway, San Diego, California 92101, to consider: (a) the grant of final approval of the 25 Settlement pursuant to the terms of the Settlement Agreement, (b) certification of the Settlement 26 Class, (c) appointment of Plaintiff as the Settlement Class Representative, (d) appointment of 27 1 Class Counsel as Settlement Class Counsel, (e) appointment of Kroll Administration as the 2 Notice Administrator, (f) Class Counsel’s Fee and Expense Application and Plaintiffs’ Service 3 Award Application, (g) any objections and/or requests for exclusion, and (h) entry of a Final 4 Approval Order and Judgment. The Fairness Hearing may be adjourned by the Court, and the 5 Court may address the above or other matters, without further notice to the Settlement Class 6 other than notice that may be issued by the Court and/or on the Court’s and settlement websites. 7 18. The Court directs that no later than August 18, 2023, Settlement Class Counsel 8 shall file their Motion for Final Approval of the Settlement. Class Counsel shall move for 9 approval of attorney’s fees, litigation expense reimbursements, and class representative service 10 awards no later than fourteen (14) calendar days before the deadline to object. 11 19. The Court further directs that no later than September 22, 2023, Class Counsel 12 may file any supplemental brief in further support of final approval. 13 20. Any Settlement Class Members wishing to object to the proposed Settlement or 14 the requests for Class Counsel fees and expenses and/or the Class Representatives service 15 award, must adhere to the following deadline and procedures for the objection to be considered: 16 a) To object, a Settlement Class Member must, no later than September 15, 17 2023 (hereinafter, the “Objection Deadline”), file and serve a written 18 objection, with all supporting documents and/or memoranda, with the 19 Court and provide copies of the objections to the Notice Administrator at 20 the address provided in the Short Form Class Notice. Upon receipt, the 21 Notice Administrator shall promptly forward copies of all such objections 22 to Class Counsel and counsel for FCA US. Any objection to the Settlement 23 Agreement must be individually and personally signed by the Class 24 Member (if the Class Member is represented by counsel, the objection 25 additionally must be signed by such counsel). 26 b) Any objecting Settlement Class Member must include with his/her/their/its 27 1 objection: 2 i. the objector’s full name, address, and telephone number; 3 ii. the model year and vehicle identification number of the Class 4 Member’s Class Vehicle, along with proof that the objector has 5 owned or leased a Class Vehicle (e.g., a true copy of a vehicle title, 6 registration, or license receipt); 7 iii. a written statement of all grounds for objection accompanied by any 8 legal support for such objection; 9 iv. copies of any papers, briefs, or other documents upon which the 10 objection is based; 11 v. a list of all cases in which the objector and/or his or her counsel has 12 filed or in any way participated in—financially or otherwise— 13 objections to a class action settlement in the preceding five years 14 vi. the name, address, email address, and telephone number of all 15 attorneys representing the objector; and 16 vii. a statement indicating whether the objector and/or his or her counsel 17 intends to appear at the Fairness Hearing, and if so, a list of all persons, 18 if any, who will be called to testify in support of the objection. 19 c) Any Class Member who does not file a timely written objection to the 20 Settlement and notice of his or her intent to appear at the Fairness Hearing 21 ,or who fails to otherwise comply with the specifications set forth in the 22 Settlement Agreement, shall be foreclosed from seeking any adjudication or 23 review of the Settlement by appeal, collateral attack, or otherwise. 24 21. Any Settlement Class Member who wishes to be excluded from the Settlement 25 Class must submit a request for exclusion (“Request for Exclusion”) to the Notice Administrator 26 at the address specified in the Class Notice, by first-class mail postmarked no later than 27 1 September 15, 2023. Class Members who wish to be excluded from the Class must do so with 2 respect to all Class Vehicles they own(ed) or lease(d); Class Members may not exclude 3 themselves from the Class with respect to some Class Vehicles and include themselves in the 4 Class with respect to other Class Vehicles. 5 22. To be effective, the Request for Exclusion must be sent via first-class U.S. Mail to 6 the specified address and must: 7 a) include the Class Member’s full name, address and telephone number; 8 b) identify the model year and vehicle identification number of the Class 9 Member’s Class Vehicle(s); 10 c) specifically and unambiguously state his/her/their/its desire to be excluded 11 from the class in Victorino v. FCA US LLC; and 12 d) be individually and personally signed by the Class Member (if the Class 13 Member is represented by counsel, the Request for Exclusion additionally 14 must be signed by such counsel). 15 23. Any Class Member who fails to submit a timely and complete Request for 16 Exclusion to the proper address shall be subject to and bound by this Settlement Agreement and 17 every order or judgment entered pursuant to this Settlement Agreement. Any purported Request 18 for Exclusion sent to such address that is ambiguous or internally inconsistent with respect to the 19 Class Member’s desire to be excluded from the Class will be deemed invalid unless determined 20 otherwise by the Court. 21 24. The Notice Administrator will receive purported Requests for Exclusion and will 22 follow guidelines developed jointly by Class Counsel and FCA US’s counsel for determining 23 whether they meet the requirements of a Request for Exclusion. Any communications from Class 24 Members (whether styled as an exclusion request, an objection, or a comment) as to which it is 25 not readily apparent whether the Class Member meant to exclude himself/herself from the Class 26 will be evaluated jointly by Class Counsel and FCA US’s counsel, who will make a good faith 27 1 evaluation, if possible. Any uncertainties about whether a Class Member is requesting exclusion 2 from the Class will be resolved by the Court. 3 25. The Notice Administrator will maintain a list of all Requests for Exclusion and shall 4 report the names and addresses of all such entities and natural persons requesting exclusion to the 5 Court, FCA US’s counsel, and Class Counsel seven days prior to the Fairness Hearing, and the 6 list of entities and natural persons deemed by the Court to have excluded themselves from the 7 Class will be attached as an exhibit to the Final Order and Judgment. 8 26. Each owner or lessee of a Class Vehicle with a pending lawsuit against Defendant 9 alleging problems with the clutch in a Class Vehicle in which final judgment has not yet been 10 entered and who dismiss such litigation and affirmatively opt-in to the Settlement shall be 11 members of the Class for all purposes. 12 27. The Notice Administrator will maintain a list of all owners or lessees of Class 13 Vehicles with lawsuits against FCA US alleging problems with the clutch in Class Vehicles 14 pending on the Notice Date in which final judgment has not yet been entered who opt-in to the 15 Settlement. 16 28. Upon final approval of the Settlement, all Settlement Class Members who have 17 not timely and properly excluded themselves from the Settlement shall be deemed to have, and 18 by operation of the Final Order and Judgment shall have, fully and completely released, 19 acquitted, and discharged all Released Parties from/for all Released Claims as set forth in the 20 Settlement Agreement. 21 29. Pending the Final Fairness Hearing and the Court’s decision whether to finally 22 approve the Settlement, no Settlement Class Member, either directly, representatively, or in any 23 other capacity, shall commence, continue, prosecute, continue to prosecute, or participate in, 24 against any of the Released Parties (as defined in the Settlement Agreement), any action or 25 proceeding in any court or tribunal asserting any of the matters, claims or causes of action that 26 are to be released in the Settlement Agreement. Pursuant to 28 U.S.C. §§ 1651(a) and 2283, the 27 1 Court finds that issuance of this preliminary injunction is necessary and appropriate in aid of the 2 Court’s continuing jurisdiction and authority over the Action. 3 30. In the event the Settlement is not approved by the Court, or for any reason the 4 parties fail to obtain a Final Order and Judgment as contemplated in the Settlement, or the 5 Settlement is terminated pursuant to its terms for any reason, then the following shall apply: 6
7 (a) All orders and findings entered in connection with the Settlement shall become null and void and have no further force and effect, shall not be 8 used or referred to for any purposes whatsoever, and shall not be 9 admissible or discoverable in this or any other proceeding, judicial or otherwise; 10
11 (b) All of the Parties’ respective pre-Settlement claims, defenses and procedural rights will be preserved, and the parties will be restored to 12 their positions status quo ante; 13 (c) Nothing contained in this order is, or may be construed as, any admission 14 or concession by or against Defendant, Released Party, or Plaintiffs on 15 any claim, defense, or point of fact or law;
16 (d) Neither the Settlement terms nor any publicly disseminated information 17 regarding the Settlement, including, without limitation, the Class Notice, court filings, orders, and public statements, may be used as evidence in 18 this or any other proceeding, judicial or otherwise; 19 (e) Neither the fact of, nor any documents relating to, either party’s 20 withdrawal from the Settlement, any failure of the Court to approve the 21 Settlement, and/or any objections or interventions may be used as evidence; and 22
23 (f) The preliminary certification of the Settlement Class pursuant to this order shall be vacated automatically, and the Action shall proceed as 24 though the Settlement Class had never been preliminarily certified. 25 26 31. The Parties and their counsel are hereby authorized to use all reasonable 27 procedures in connection with approval and administration of the Settlement that are not 2 materially inconsistent with the Preliminary Approval Order or the Settlement Agreement, 3 including making, without further approval of the Court, minor changes to the Settlement, to the 4 || form and content of the Class Notice or to any other exhibits that the Parties jointly agree are 5 || reasonable and necessary. 6 IT IS SO ORDERED. 7 Dated: May 5, 2023 }. LL 8 Hon. athe Code 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 30 28 L6cv1617-GPCULB)