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THE VEEN FIRM, P.C. Anthony L. Label (Bar No. 205920) Steven A. Kronenberg (Bar No. 215541) 711 Van Ness Avenue, Suite 220 San Francisco, CA 94102 P.O. Box 7296 San Francisco, CA 94120-7296 Tel: (415) 673-4800 Fax: (415) 771-5845 CHAVEZ & GERTLER LLP Jonathan E. Gertler (Bar No. 111531) Dan L. Gildor (Bar No. 223027) Samuel P. Cheadle (Bar No. 268595) 42 Miller Avenue Mill Valley, California 94941 Tel: (415) 381-5599 Fax: (415) 381-5572
10 Attorneys for Plaintiffs and the Settlement Class 11 12
UNITED STATES DISTRICT COURT
13
NORTHERN DISTRICT OF CALIFORNIA
14 15 16
DIGBY ADLER GROUP, LLC, dba BANDAGO LLC, and BENJAMIN ROBLES, an individual, on behalf of themselves and all others similarly situated,
17 18 19 20 21 22
Plaintiffs, v. MERCEDES-BENZ U.S.A., LLC, Defendant.
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No. 14-CV-02349 TEH CLASS ACTION DECLARATION OF JONATHAN E. GERTLER IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT Date: Time: Judge: Crtrm.:
March 7, 2016 10:00 a.m. Hon. Thelton E. Henderson 2 - 17th Floor
23 24 25 26 27 28 DECLARATION OF JONATHAN E. GERTLER IN SUPPORT OF MOTION FOR PRELIMINARY APROVAL OF CLASS ACTION SETTLEMENT
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I, Jonathan E. Gertler, declare as follows: 1.
I am a partner in the law firm of Chavez & Gertler LLP, co-counsel of record in
3
this case. I have personal knowledge of the facts set forth in this declaration, and, if called as a
4
witness, I could and would testify thereto.
5
2.
I am a 1983 graduate of the University of California, Hastings College of Law.
6
While at Hastings, I held an externship at the California Court of Appeal, First District, and was
7
employed for a year as a law clerk with the well-known San Francisco plaintiffs’ firm then known
8
as Walkup, Downing, Shelby, Bastian, Melodia, Kelly & O’Reilly. After graduating from
9
Hastings, I joined the Law Offices of R. Jay Engel, subsequently Engel & Gertler, and was a
10
plaintiff’s trial lawyer there until October 1993. I briefly practiced alone; then entered into
11
partnership with Mark A. Chavez to create Chavez & Gertler LLP in July 1994. We currently
12
have six lawyers. We are accustomed to litigating cases of this magnitude and larger. My firm has
13
the resources to prosecute this action.
14
3.
I am a member in good standing of the California State Bar, and the Bar of the
15
United States District Court for the Northern, Central, and Eastern Districts of California. I have
16
been admitted to appear before United States District Courts in Hawaii, Ohio, and New York. I
17
have handled appellate matters, including Willits v. Superior Court, 20 Cal. App. 4th 90 (1993);
18
and Lamberton v. Rhodes-Jamieson Company, 199 Cal. App. 3d 748 (1988), and other attorneys
19
in my firm have substantial, current appellate experience.
20
4.
My firm is competent and experienced in prosecuting product liability class
21
actions, and I am “adequate” trial counsel within the meaning of class action jurisprudence. In the
22
31 years that I have been practicing law, I have had substantial trial experience, including
23
complex litigation. I have been lead or sole trial counsel in approximately 13 jury trials, including
24
a verdict of over $1 million in my first jury trial in 1984, and three multi-million dollar verdicts
25
since 2004. I was co-lead counsel with my partner, Mark Chavez, in a bench trial in a consumer
26
lawsuit under the Unfair Competition Law in 2001 which resulted in a multi-million dollar
27
judgment, and was lead trial in a month-long consumer class action last spring which resulted in a
28
decision enjoining Fidelity National Title Company from engaging in an unlawful practice of -1DECLARATION OF JONATHAN E. GERTLER IN SUPPORT OF MOTION FOR PRELIMINARY APROVAL OF CLASS ACTION SETTLEMENT
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changing fees in violation of the California Insurance Code. I have handled class actions
2
including cases that were certified over objection, which have survived dispositive motions, and
3
which have resulted in multi-million dollar settlements approved by California and federal Courts.
4
I have handled numerous product liability cases and my firm has litigated other automotive defect
5
class actions before this one and is doing so presently.
6
5.
I am active in trial lawyer and legal aid organizations. I am Past President of the
7
San Francisco Trial Lawyers Association (2010) and I served three terms as President of the
8
Consumer Attorneys of Marin (formerly Marin Trial Lawyers Association). I am President of the
9
Board of Directors of Legal Aid of Marin. For several years was a member of the Board of
10
Directors of Bay Area Legal Aid. I am on the Advisory Committee of the East Bay Community
11
Law Center. I was on the Board of Governors of the Consumer Attorneys of California from 2001
12
through 2004. I am a former Board member and Vice President of the Consumer Federation of
13
California.
14
6.
I participate in legal education. I was a speaker and moderator of a panel on class
15
actions at the California Employment Lawyers Association’s Annual Conference in October of
16
2015. I previously have been a speaker at the Annual Class Action Seminar put on by the
17
Consumer Attorneys of California and San Francisco Trial Lawyers Association on multiple
18
occasions. I was a faculty member of the Hastings College of Law Annual College of Advocacy,
19
when that program was in existence, and lectured at the University of San Francisco Law School
20
in the past. I have been a frequent speaker at other continuing legal education seminars on class
21
action and trial practice issues. I was part of a two-lawyer panel in a presentation at the Bar
22
Association of San Francisco, discussing and debating issues relating to the 2011 landmark
23
United States Supreme Court decision, AT&T Mobility v. Concepcion. An article I authored
24
discussing that decision was published in “Plaintiff,” a publication intended for Plaintiffs’
25
lawyers.
26
7.
I have been primarily responsible for prosecuting this action, along with my
27
partner Dan Gildor and our co-counsel. I have had numerous communications with the plaintiff,
28
including in writing, by telephone and in person. Other members of my firm have also had -2DECLARATION OF JONATHAN E. GERTLER IN SUPPORT OF MOTION FOR PRELIMINARY APROVAL OF CLASS ACTION SETTLEMENT
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numerous communications with the plaintiff. Without waiving the attorney-client privilege, the
2
purposes of my communications included ensuring that the plaintiff understood his duties as a
3
class representative, and the issues and progress in the case. I am not aware of any conflicts
4
between my client’s interests and those of the proposed class.
5 6
INVESTIGATION AND EVALUATION OF THE CLAIMS IN THE CASE 8.
I first learned about the pervasive problem with the air conditioning units installed
7
in Sprinter Vans when Anthony Label approached me to inquire if I and my firm would co-
8
counsel with him and his firm in a lawsuit against Mercedes-Benz regarding its failure to
9
adequately remedy leaking air conditioning units. Shortly thereafter, I began an extensive effort to
10
research the extent of the problem and the causes of action that could be asserted. The fact that the
11
client—Digby Adler Group—was a business that lacked the customary protections provided
12
consumers complicated our analysis. Eventually, though, we settled on claims for product liability
13
and unfair business practices. Our research demonstrated that there had not yet been filed any
14
similar litigation regarding the leaking air conditioning units.
15
9.
After we filed the lawsuit and began to conduct significant outreach, Benjamin
16
Robles contacted co-counsel regarding leaks in his air conditioning unit. After several discussions
17
with Mr. Robles, he agreed to join the lawsuit as a named plaintiff. Mr. Robles, a consumer,
18
allowed us to allege claims for violation of the Song-Beverly Act and the Consumers Legal
19
Remedies Act as well as for fraudulent concealment and unfair, fraudulent, and unlawful business
20
practices. In the interim, we conducted meaningful discovery and continued to engage in
21
substantial outreach, talking with approximately 20 Sprinter owners nationwide with leaking air
22
conditioners. In response to this discovery, Mercedes produced more than 500 responsive
23
documents and emails that included all of the service bulletins in Mercedes’ possession related to
24
water leaking through the air conditioning units in Sprinter vans. I believe that our review of this
25
discovery and the substantial outreach to class members provided myself, co-counsel, and
26
Plaintiff with a solid background to assess the strengths and weaknesses of the claims and the
27
benefits of the proposed settlement under the circumstances of this case.
28
10.
On January 13, 2016, Plaintiff Digby Adler dismissed its claims with prejudice.
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THE MEDIATION PROCESS AND RESULTING SETTLEMENT 11.
The parties mediated the case on November 18, 2015. At the mediation, the parties
3
engaged in good-faith, arm’s length negotiations under the auspices of the Honorable Edward A.
4
Infante (Ret.). At the mediation, the parties agreed to the principle terms of a settlement of the
5
claims in this case that were subsequently reduced to the final settlement agreement that was
6
signed by all parties between January 22 and 29, 2016. A true and correct copy of the settlement
7
between the parties is attached hereto as Exhibit 1. The award of attorneys’ fees and costs was
8
negotiated after class relief had first been resolved.
9
12.
In preparing for the mediation, it became clear that there were substantial risks to
10
continuing to litigate the case. For instance, though we were confident in the merit of our claims,
11
there was still a chance that Plaintiff Robles would be found inadequate or atypical because of his
12
lack of out-of-pocket repair costs as well as a lack of property damage, or that he would not be
13
able to establish that the leaks resulted from a specific design defect. Likewise, Plaintiff Bandago
14
could have been found to be atypical given that it repeated purchased Sprinter vans knowing that
15
the AC units could leak if Mercedes did not do anything to stop the leaks. MBUSA has also
16
strenuously denied pre-sale knowledge of any defects. Moreover, there was risk that nationwide
17
relief could not be obtained, or that certification would not be maintained through trial.
18
13.
Weighing the relief provided by the settlement against the complexity, substantial
19
risks, and almost certain delays associated with further litigation, Plaintiff, I, and my co-counsel,
20
determined that achieving resolution of the contested claims was in the class’ best interests.
21
Litigation of this matter through trial and appeal would have been lengthy, contentious, and
22
expensive. At the end of that process, class members might have received nothing and, even if
23
Plaintiff had prevailed, class members likely would have had to wait several years to receive any
24
relief during which time they would have continued to incur leaks that they would have to repair.
25
Through the proposed settlement, in contrast, settlement class members will receive substantial
26
benefits and will not have to bear the risk of an unfavorable judgment. In my opinion, further
27
litigation would have been unlikely to result in any substantially greater recovery. Given these
28 -4DECLARATION OF JONATHAN E. GERTLER IN SUPPORT OF MOTION FOR PRELIMINARY APROVAL OF CLASS ACTION SETTLEMENT
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issues, I strongly believe that the proposed settlement provides fair value and an excellent result
2
for the class that is certainly within the range of reasonableness.
3 4
VALUE OF THE SETTLEMENT TO THE CLASS 14.
The settlement obligates MBUSA to cover the cost of repairing leaking AC units
5
and the damage caused to the Subject Vehicles for 7 years or 125,000 miles, whichever comes
6
first, from the vehicle’ purchase. MBUSA will pay claims by class members for any past out-of-
7
pocket repair costs that would have been covered under the extended warranty. Finally, MBUSA
8
will revise the maintenance interval for the Subject Vehicles to inspect the interior roof in Subject
9
Vehicles for water marks or other evidence of water infiltration near the rear air-conditioning.
10
This relief is substantial given that our outreach and review of repair orders showed that it can
11
cost upwards of $500-$1,000 to repair a leaking AC unit.
12
15.
In my opinion as proposed class counsel, the proposed settlement provides
13
substantial benefits and fair value to the class, which, according to MBUSA, includes the owners
14
and lessees of more than 10,000 vehicles nationwide. More specifically, a claim-by-claim analysis
15
convinced me as proposed class counsel that the settlement value, along with the procedural
16
protections of the proposed class settlement, is in the best interest of the class.
17 18
SETTLEMENT ADMINISTRATION 16.
Kurtzman Carson Consultants (“KCC”) has agreed to administer the settlement
19
and the claims process. KCC has offices in Northern California and is recognized as the best
20
claims administrator by the National Law Journal. Because the settlement includes a claims
21
process, the parties determined that the settlement administrator would need to have expertise in
22
managing claims procedures beyond simply providing notice. Among the administrators that the
23
parties considered, Kurtzman Carson Consultants appears to be the best suited to handle the tasks
24
at hand. In this context, cost is not a factor given that Mercedes has agreed to pay all of the
25
administrator’s reasonable costs.
26 27 28
CLASS NOTICE 17.
The proposed notice is based on the exemplars established by the Federal Judicial
Center and notices previously approved by this Court. The notice sets out information about the -5DECLARATION OF JONATHAN E. GERTLER IN SUPPORT OF MOTION FOR PRELIMINARY APROVAL OF CLASS ACTION SETTLEMENT
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case and explains the settlement in plain terms, including the relief provided and the steps to file a
2
claim, as well as the steps to object to, or opt out of, the settlement. The notice and claim form
3
will also be placed on the internet at the website http://RearACSettlement.com. I believe that the
4
proposed notice provides the best practicable notice to the class as well as a fair opportunity for
5
class members to participate in or object to the settlement.
6 7
PROPOSED CLASS REPRESENTATIVE PAYMENT 18.
The named plaintiff, Benjamin Robles, has devoted time and provided an
8
invaluable service to the prosecution of this case. He spoke with counsel often and participated in
9
several telephone calls during which he provided us with important information about his
10
experience with his Sprinter van. He also responded to extensive discovery propounded by
11
Mercedes. In my experience and opinion, $5,000 to Mr. Robles is an appropriate amount as a
12
class representative award. Such an amount fairly reflects the time, risks, and contributions Mr.
13
Robles made to achieving this settlement on behalf of the class.
14 15
ATTORNEYS’ FEES AND COSTS 19.
Plaintiff’s counsel have prosecuted this case on a contingent basis and have been
16
completely at risk throughout the case that they would not ultimately receive any compensation,
17
while also expending thousands of dollars in out-of-pocket expenses for depositions,
18
investigation, and mediation. Because each firm has devoted its time and resources to this matter,
19
as small firms, each has forgone other legal work for which it most likely would have been
20
compensated.
21
20.
A substantial amount of our time on this case was expended analyzing discovery
22
responses to evaluate and monetize the claims in the case, performing outreach, opposing
23
Mercedes’ multiple motions to dismiss, and mediating the claims in the case.
24
21.
Plaintiff’s counsel total lodestar at the present time, based on raw billing records, is
25
at least $871,000, with costs nearing $18,000. These amounts will only increase in the time
26
between preliminary and final approval. Though the requested award currently amounts to a 1.1
27
multiplier, I believe that at least such a multiplier is justified in the present case given the
28
contingent nature of the litigation, the risks involved, and the excellent result obtained. Overall, I -6DECLARATION OF JONATHAN E. GERTLER IN SUPPORT OF MOTION FOR PRELIMINARY APROVAL OF CLASS ACTION SETTLEMENT
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believe that an award of $1,000,000 as attorneys’ fees and costs is eminently reasonable and well
2
within the bounds for preliminary approval.
3 4
I declare under penalty of perjury pursuant to the laws of the state of California that the
5
foregoing is true and correct, executed on this 1st day of February, 2016 in Mill Valley,
6
California.
7 8
/s/ Jonathan E. Gertler Jonathan E. Gertler
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7DECLARATION OF JONATHAN E. GERTLER IN SUPPORT OF MOTION FOR PRELIMINARY APROVAL OF CLASS ACTION SETTLEMENT
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EXHIBIT 1
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1 THE VEEN FIRM, P.C. Anthony L. Label (Bar No. 205920) 2 Steven A. Kronenberg (Bar No. 215541) 711 Van Ness Avenue, Suite 220 3 San Francisco, CA 94102 P.O. Box 7296 4 San Francisco, CA 94120-7296 Tel: (415) 673-4800 5 Fax: (415) 771-5845 6 CHAVEZ & GERTLER LLP Jonathan E. Gertler (Bar No. 111531) 7 Dan L. Gildor (Bar No. 223027) Samuel P. Cheadle (Bar No. 268595) 8 42 Miller Avenue Mill Valley, California 94941 9 Tel: (415) 381-5599 Fax: (415) 381-5572 10 Attorneys for Plaintiffs and the Proposed Settlement Class 11 12 CARROLL, BURDICK & McDONOUGH LLP Troy M. Yoshino (Bar No. 197850) 13 Eric J. Knapp (Bar No. 214352) Steven E. Swaney (Bar No. 221437) 14 44 Montgomery St., Suite 400 San Francisco, CA 94104 15 Tel: (415) 989-5900 Fax: (415) 989-0932 16 Attorneys for Defendant MERCEDES-BENZ USA, LLC 17 18
UNITED STATES DISTRICT COURT
19
NORTHERN DISTRICT OF CALIFORNIA
20
DIGBY ADLER GROUP, LLC, dba 21 BANDAGO LLC, and BENJAMIN ROBLES, on behalf of themselves and all others 22 similarly situated, 23 24
Case No. 14-CV-02349 TEH CLASS ACTION CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE
Plaintiffs, v.
25 MERCEDES-BENZ U.S.A., LLC, 26
Defendant.
27 28 CBM-MERCEDES\SF671310-6
Case No. 14-CV-02349 TEH CLASS ACTION SETTLEMENT AGREEMENT
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1
This Agreement is made and entered into by and between Benjamin Robles (“Plaintiff”),
2 on the one hand, and Defendant Mercedes-Benz USA, LLC (“MBUSA”), on the other hand, to 3 settle, compromise, release, and discharge the claims on behalf of Plaintiff and all those similarly 4 situated according to the terms and conditions herein. 5
1. DEFINITIONS
6
As used in this Agreement (which, as defined below, includes the accompanying
7 Exhibits), the following terms have the meanings set forth below. The plural of any defined term 8 includes the singular, and the singular of any defined term includes the plural, as the case may be. 9
1.1.
“Agreement” means this Class Action Settlement Agreement and Release,
10 including the notices and other documents contemplated by this Class Action Settlement 11 Agreement and Release, and any amendments thereto. The Agreement may alternatively be 12 referred to as the “Settlement.” 13
1.2.
“Attorneys’ Fees, Costs, and All Other Expenses” means the settlement amounts
14 approved by the Court for payment to Class Counsel to cover attorneys’ fees, costs, and any other 15 expenses incurred by Class Counsel, including but not limited to all costs and expenses of 16 addressing objections and appeals, any claims for attorneys’ fees or costs, and all other possible 17 expenses by others, except for those items specifically assigned as MBUSA’s responsibility under 18 this Agreement. 19
1.3.
“Authorized Sprinter Service Center” means any service center specifically
20 authorized to provide warranty services for Mercedes-Benz and Freightliner Sprinter vans, which 21 service centers are identifiable by ZIP code at http://www.mbvans.com/sprinter/shopping22 tools/find-a-dealer. 23
1.4.
“Claim Form” means the claim form, with the language and substantially in the
24 form set forth in Exhibit B to this Agreement, that will accompany the Class Notice and be 25 available on a dedicated website for the settlement and that must be timely completed and 26 submitted for a Settlement Class Member to be eligible for the remedies provided for under this 27 Agreement other than the Extended Warranty and Inspection. 28 CBM-MERCEDES\SF671310-6
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1
1.5.
“Claims Period” means the time during which Settlement Class Members may
2 submit a Claim Form under the Settlement, and which is set forth in Section 9.1 of this 3 Agreement. 4
1.6.
“Claim Validation Process” shall mean the process approved by the Court as
5 contemplated in Section 9 of this Agreement. 6
1.7.
“Class Counsel” means Chavez & Gertler LLP and The Veen Firm P.C.
7
1.8.
“Class Notice” means the notice to the Settlement Class approved by the Court,
8 substantially in the form of Exhibit A. 9
1.9.
“Class Representative Service Award” means a payment, to be approved by the
10 Court, to Plaintiff in his capacity as class representative to compensate him for participating in the 11 Litigation, performing work in support of the Litigation, and undertaking the risk of liability for 12 attorneys’ fees and expenses in the event he was unsuccessful in the prosecution of the Litigation. 13
1.10.
“Court” means the Honorable Thelton E. Henderson of the United States District
14 Court for the Northern District of California, or the Judge of the Northern District of California 15 assigned to preside over the Litigation if not Judge Henderson. 16
1.11.
“Defense Counsel” means MBUSA’s counsel of record in the Litigation, Troy M.
17 Yoshino, Eric J. Knapp, and Steven E. Swaney of Carroll, Burdick & McDonough LLP. 18
1.12.
“Effective Date” means the date on which any Final Order and Judgment entered
19 pursuant to the Agreement becomes “final.” The Final Order and Judgment entered pursuant to 20 this Agreement becomes “final” on the day after all appellate rights with respect to that Final 21 Order and Judgment have expired or have been exhausted in a manner that conclusively affirms 22 the Final Order and Judgment. 23
1.13.
“Extended Warranty” means the remedy afforded in Section 4.1.
24
1.14.
“Final Order and Judgment” means the order and judgment of the Court dismissing
25 this matter with prejudice as to MBUSA and approving this Agreement. 26
1.15.
“Inspection” means the remedy afforded in Section 4.3.
27 28 CBM-MERCEDES\SF671310-6
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1.16.
“Litigation” means Digby Adler Group et al. v. Mercedes-Benz USA, LLC, Case
2 No. 14-CV-02349 TEH (N.D. Cal.), pending in the United States District Court for the Northern 3 District of California. 4
1.17.
“Notice Plan” means the plan for disseminating Notice to the Settlement Class as
5 required by this Court and the Class Action Fairness Act (28 U.S.C. § 1715), as described in 6 Section 8 below. 7
1.18.
“Participating Class Member” means any Person who falls within the definition of
8 the Settlement Class, irrespective of whether such Person submits a Claim Form, who has not 9 otherwise opted out of the Litigation. 10
1.19.
“Person” means an individual, corporation, partnership, limited partnership,
11 limited liability company, association, joint stock company, estate, legal representative, trust, 12 unincorporated association, government or any political subdivision or agency thereof, any 13 business or legal entity, and such individual’s or entity’s spouse, heirs, predecessors, successors, 14 representatives, and assignees. 15
1.20.
“Plaintiff” means Benjamin Robles.
16
1.21.
“Preliminary Approval Order” means the order to be entered by the Court pursuant
17 to this Agreement, and substantially in the form attached hereto as Exhibit C, preliminarily 18 approving the settlement and directing that notice be provided to the Settlement Class. 19
1.22.
“Settlement Administrator” means the qualified third-party appointed by the Court
20 to administer the settlement, including implementation of the Notice Plan and certain aspects of 21 the Claim Validation Process. 22
1.23.
“Settlement Class” means all current and former owners and lessees of model year
23 2010-2014 Mercedes-Benz and Freightliner Sprinter 2500 or 3500 vehicles with original24 equipment rear air conditioning units who purchased or leased their Subject Vehicles in the 25 United States. Excluded from the Settlement Class are: 26
a)
Persons who have settled with, released, or otherwise had claims
27
adjudicated on the merits against MBUSA that are substantially similar to
28
those alleged in this matter; CBM-MERCEDES\SF671310-6
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1
b)
Persons with only personal injury, wrongful death or property damage
2
claims to property other than the Subject Vehicles, fixtures installed in the
3
vehicles, or cargo transported in the vehicles, as a result of the defects
4
alleged;
5
c)
Employees of MBUSA;
6
d)
Insurers or other providers of extended service contracts or warranties for
7
the vehicles owned by Settlement Class Members; and
8 9
e) 1.24.
The Honorable Thelton E. Henderson and members of his family.
“Settlement Class Member” means any Person who falls within the definition of
10 the Settlement Class. 11
1.25.
“Settling Parties” means, collectively, Plaintiff, all Participating Class Members,
12 and MBUSA. 13
1.26.
“Third-Party Neutral” means the mutually acceptable neutral affiliated with the
14 San Francisco office of JAMS. In the event the parties are unable to mutually agree on the neutral, 15 either party may request that JAMS provide the parties with a list of 5 neutrals, that each party 16 shall then rank order in preference. The neutral to be used shall be the one that receives the 17 highest combined ranking. 18
1.27. “Subject Vehicle” means a 2010-2014 model year Mercedes-Benz or Freightliner
19 Sprinter 2500 or 3500 vehicle with an original-equipment rear air conditioning unit. 20
2. DENIAL OF ANY WRONGDOING AND LIABILITY
21
2.1.
MBUSA denies the material factual allegations and legal claims asserted by the
22 Plaintiff and Settlement Class Members in the Litigation, including, but not limited to, any and all 23 charges of wrongdoing or liability arising out of any of the conduct, statements, acts or omissions 24 alleged, or that could have been alleged, in the Litigation. 25
3. BACKGROUND
26
3.1.
A class action complaint against MBUSA was filed on April 14, 2014, in the
27 California Superior Court in and for the County of San Francisco alleging that the original28 equipment rear air conditioning units in Mercedes-Benz and Freightliner Sprinter 2500 and 3500 CBM-MERCEDES\SF671310-6
-4CLASS ACTION SETTLEMENT AGREEMENT
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1 vans leaked water into the interior of the vans, causing damage. MBUSA removed the Litigation 2 to this Court. 3
3.2.
After removal, the complaint was amended several times, including an amendment
4 that added Benjamin Robles as a named plaintiff and adding claims on behalf of consumer class 5 members related to the same alleged defect. Original named plaintiff Digby Adler Group, LLC, 6 dba Bandago LLC, later dismissed its claims with prejudice. 7
3.3.
The parties have each conducted discovery to evaluate the strengths and
8 weaknesses of their respective claims and defenses. This discovery includes deposition discovery, 9 as well as responses to 12 special interrogatories, 4 requests for admission, and more than 3,200 10 pages of documents that MBUSA produced as well as responses to 37 special interrogatories, 20 11 requests for admission, and over 3,300 documents that Plaintiffs produced. 12
3.4.
After significant internal investigation and exchanging discovery responses, the
13 parties agreed to mediate the case with the Honorable Edward M. Infante (Ret.). At the mediation, 14 the parties reached agreement on the basic terms of a settlement of the claims against MBUSA on 15 behalf of a class of owners and lessees of Subject Vehicles. After further negotiations, the 16 agreement was eventually reduced to this writing. 17
3.5.
This Agreement represents a compromise and settlement of highly disputed claims.
18 Nothing in this Agreement is intended or will be construed as an admission by MBUSA that the 19 claims in the Litigation have merit or that MBUSA bears any liability to Plaintiff or the 20 Settlement Class on those claims or any other claims, or as an admission by Plaintiff that 21 MBUSA’s defenses in the Litigation have merit. 22
4. CONSIDERATION TO THE CLASS
23
4.1.
Commencing five (5) business days after the Effective Date, MBUSA will extend
24 the warranty on the original-equipment rear air conditioning units in Subject Vehicles for water 25 leaks discussed in LI 83.50-N-59306 and LI 83.50-N-048689 to the first 7 years or 125,000 miles 26 of the vehicle’s in-service date, whichever occurs earlier. The Extended Warranty will also cover 27 original-equipment parts damaged by Extended-Warranty-covered water leaks (e.g., vehicle 28 CBM-MERCEDES\SF671310-6
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1 headliner, upholstery, etc.). To receive a repair under the Extended Warranty, Participating Class 2 Members must present their vehicles to an Authorized Sprinter Service Center. 3
4.2.
Within twenty (20) days after preliminary approval has been granted, MBUSA
4 shall disseminate notice to all Authorized Sprinter Service Centers advising them of the status of 5 this settlement and how Participating Class Members can get more information. MBUSA shall 6 provide Class Counsel with confirmation of same. 7
4.3.
Commencing five (5) business days after the Effective Date, MBUSA shall also
8 modify the “Maintenance Service/B-Service Sheet” checklist for Subject Vehicles to include 9 inspection of the interior roof in Subject Vehicles for water marks or other evidence of water 10 infiltration near the rear air-conditioning. 11
4.4.
All repairs performed pursuant to Section 4.1 must be performed by an Authorized
12 Sprinter Service Center, and all claims against MBUSA for such repairs shall be processed 13 through MBUSA’s standard payment processes with its dealers. 14
4.5.
In addition to the qualified future repairs, Participating Class Members shall also
15 be entitled to submit claims for reimbursement of reasonable and necessary out-of-pocket costs 16 paid by Participating Class Members for past repairs that would have been covered by the 17 Extended Warranty if it had been in effect at the time (i.e., reimbursements for covered repairs 18 occurring within the vehicle’s first seven years or 125,000 miles, whichever occurs first), 19 pursuant to the claims process in Section 9. 20
4.6.
There shall be no double recovery under the settlement. Thus, if a Participating
21 Class Member is eligible for, or previously received, goodwill, extended warranty coverage, or 22 any other form of coverage for the repair, the total amount of any coverage or reimbursement due 23 to the class member shall be offset against coverage/reimbursement. 24
5. PAYMENTS BY MBUSA
25
5.1.
To Participating Class Members Submitting Claims: MBUSA agrees to
26 reimburse reasonable and necessary costs paid by Settlement Class Members for past repairs that 27 would have been covered by the Extended Warranty if it had been in effect at the time (i.e., 28 reimbursements for covered repairs occurring within the vehicle’s first 7 years or 125,000 miles, CBM-MERCEDES\SF671310-6
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1 whichever occurs first)—pursuant to the claims procedures set out in Section 9, where covered 2 repairs are documented by repair orders (or similar itemized invoices) and proof of payment, with 3 a completed, mailed claim form submitted to the Settlement Administrator under penalty of 4 perjury. 5
5.2.
To Plaintiff: MBUSA agrees to pay the amount awarded by the Court to Plaintiff
6 as a Class Representative Service Award, so long as the award does not exceed $5,000. MBUSA 7 agrees not to oppose any request for a Class Representative Service Award for Plaintiff that does 8 not exceed $5,000. Any Class Representative Service Award granted shall be distributed to 9 Plaintiff in recognition of the substantial time and effort he expended in reviewing pleadings, 10 responding to discovery propounded by MBUSA, and other tasks. Payments made pursuant to 11 this Section shall be made within five (5) business days of the Effective Date, care of Class 12 Counsel. 13
5.3.
To Class Counsel: MBUSA agrees not to oppose, and will not encourage or
14 assist any third-party or Settlement Class Member in opposing, Class Counsel’s request for 15 Attorneys’ Fees and Costs in a total amount of up to $1,000,000. Class Counsel shall file their 16 motion requesting an award of attorneys’ fees and costs no later than thirty (30) days prior to the 17 deadline for objecting to the settlement. Payments made pursuant to this Section shall be made 18 within five (5) business days of the Effective Date. 19
5.4.
Plaintiff and Class Counsel will not seek in excess of the sums specified in
20 Sections 5.2 and 5.3 (except as provided in Section 9.6), and in any event, Plaintiff and Class 21 Counsel agree that MBUSA shall not pay, nor be obligated to pay, any sum in excess of the cap 22 amounts specified in Sections 5.2 and 5.3 (except as provided in Section 9.6). Plaintiff, Class 23 Counsel, and MBUSA negotiated and agreed to the amount of Attorneys’ Fees, Costs, and All 24 Other Expenses only after reaching agreement upon all other material terms of this Agreement. 25
5.5.
The Settling Parties agree the amounts in Sections 5.2 and 5.3 (except as provided
26 in Section 9.6) represent MBUSA’s all-inclusive, full payment for all fees, costs, and all other 27 expenses, including but not limited to fees, costs, and any other expenses incurred by any counsel 28 in any related class action or any other related cases, whether known or unknown to MBUSA, as CBM-MERCEDES\SF671310-6
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1 well as any objectors, intervenors, or later-appearing counsel. The amounts described in Sections 2 5.2 and 5.3 shall constitute full satisfaction of MBUSA’s obligation to pay any person, attorney or 3 law firm for attorneys’ fees, costs, and all other expenses (except as provided in Section 9.6), and 4 shall relieve MBUSA and the Released Parties from any other claims or liability to any other 5 attorney or law firm or person for any attorneys’ fees, costs, or other expenses to which any 6 Plaintiff, Settlement Class Member, objector, intervenor, or any other person may claim that are 7 in any way related to the Released Claims (except as provided in Section 9.6). 8
5.6.
In furtherance of the agreement in this Section 5, in the event of any objections to
9 the settlement or appeal from any order of the Court granting final approval, Class Counsel agree 10 that they will be solely responsible for responding to objectors and intervenors, and defending the 11 Court’s Final Order and Judgment on appeal at their own cost. MBUSA will join in the defense of 12 the Final Order and Judgment. MBUSA agrees not to appeal, or otherwise support any appeal, of 13 an order or judgment entered by the Court that is consistent with this provision and the terms of 14 the settlement. Any costs incurred by Class Counsel in such appeals, including costs incurred to 15 settle any claims by objectors or intervenors, are the sole responsibility of Class Counsel. No one 16 may seek to recover such costs from MBUSA. 17
6. RELEASE
18
6.1.
Upon the entry of the Final Order and Judgment, Plaintiff and each Participating
19 Class Member, on behalf of themselves and their current and former/predecessor agents, heirs, 20 executors and administrators, successors, assigns, insurers, attorneys, representatives, 21 shareholders, and any and all persons who seek to claim through or in the name or right of any of 22 them (the “Releasing Parties”), release and forever discharge (as by an instrument under seal 23 without further act by any person, and upon good and sufficient consideration), MBUSA and each 24 of its current or former administrators, insurers, reinsurers, agents, firms, parent 25 companies/corporations, sister companies/corporations, subsidiaries and affiliates (including 26 without limitation Daimler AG), and all other entities, including without limitation manufacturers, 27 suppliers, and distributors, and affiliated dealerships, and all of the foregoing persons’ or entities’ 28 respective predecessors, successors, assigns and present and former officers, directors, CBM-MERCEDES\SF671310-6
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1 shareholders, employees, agents, attorneys, representatives, as well as their insurers (collectively, 2 the “Released Parties”) from each and every claim of liability, on any legal or equitable ground 3 whatsoever, including relief under federal law or the laws of any state, regarding or related to the 4 original-equipment rear air conditioning units in the Subject Vehicles, including without 5 limitation all claims, damages, punitive or exemplary damages, fees, costs, expenses or liability 6 on any legal or equitable ground whatsoever, and regardless of whether such claims might have 7 been or might be brought directly or indirectly, or through subrogation or assignment or 8 otherwise, on account of or related to claims that were alleged or could have been alleged in the 9 Litigation or in similar actions. 10
6.2.
The releases provided for herein are as a result of membership as a Participating
11 Class Member or status as a Person with a legal right to assert claims of a Participating Class 12 Member, the Court’s approval process herein, and occurrence of the Effective Date, and are not 13 conditional on receipt of payment by any particular Participating Class Member. Persons who, 14 after the date of the Preliminary Approval Order, acquire legal rights to assert claims within the 15 scope of this Agreement that belong initially to a Participating Class Member shall take such 16 rights subject to all of the terms, time periods, releases, caps, prohibitions against overlapping or 17 double recoveries, and other provisions contained herein. 18
6.3.
The release provided by this Agreement shall be and is broad and expansive and
19 shall include the release of all damages, burdens, obligations of liability of any sort, including, 20 without limitation, penalties, punitive damages, exemplary damages, statutory damages, damages 21 based upon a multiplication of compensatory damages, court costs, or attorneys’ fees or expenses, 22 which might otherwise have been made in connection with any claim related to the original23 equipment rear air conditioning units in the Subject Vehicles. However, excluded from this 24 release are any claims for personal injury or wrongful death. 25
6.4.
The release includes all claims that the Releasing Parties have or may hereafter
26 discover including, without limitation, claims, injuries, damages, or facts in addition to or 27 different from those now known or believed to be true with respect to any matter disposed of by 28 this settlement. The Releasing Parties have fully, finally, and forever settled and released any and CBM-MERCEDES\SF671310-6
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1 all such claims, injuries, damages, or facts, whether known or unknown, suspected or 2 unsuspected, contingent or non-contingent, past or future, whether or not concealed or hidden, 3 which exist, could exist in the future, or heretofore have existed upon any theory of law or equity 4 now existing or coming into existence in the future related to matters arising from or in any way 5 related to, connected with, or resulting from the original-equipment rear air conditioning units in 6 the Subject Vehicles, including, but not limited to, conduct which is negligent, reckless, willful, 7 intentional, with or without malice, or a breach of any duty, law, or rule, without regard to the 8 subsequent discovery or existence of such different or additional facts. 9
6.5.
The Releasing Parties shall be deemed by operation of the Final Order and
10 Judgment in the Litigation to have acknowledged that the foregoing waiver was separately 11 bargained for and a key element of the settlement of which the releases herein are a part. The 12 Releasing Parties expressly and intentionally waive any and all rights and benefits which they 13 now have or in the future may have under the terms of the law (whether statutory, common law, 14 regulation, or otherwise) of any other state or territory of the United States as related to matters 15 arising from or in any way related to, connected with, or resulting from the original-equipment 16 rear air conditioning units in the Subject Vehicles. 17
6.6.
Class Counsel shall cooperate with Released Parties to ensure that the releases set
18 forth in the Final Approval Order are given their full force and effect (including by seeking the 19 inclusion of the releases in the Final Order and Judgment and the Claims Forms) and to ensure 20 that Releasing Parties comply with their obligations set forth in this Agreement. 21
6.7.
In the event that any Releasing Party seeks to invoke California Civil Code § 1542,
22 which provides that: 23 24 25
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
26 (or any other like provision or principle of law of any jurisdiction) in connection with the 27 original-equipment rear air conditioning units in the Subject Vehicles, the Releasing Parties and 28 each of them expressly waive the provision of California Civil Code § 1542 (or any other like CBM-MERCEDES\SF671310-6
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1 provision or principle of law of any jurisdiction) to the full extent that these provisions may be 2 applicable to this release. Each of the Releasing Parties hereby does, and shall be deemed to, have 3 considered the possibility that the number or magnitude of all claims may not currently be known; 4 nevertheless, each of the Releasing Parties assumes the risk that claims and facts additional, 5 different, or contrary to the claims and facts that each believes or understands to exist may now 6 exist or may be discovered after the settlement becomes effective. Each of the Releasing Parties 7 agrees that any such additional, different, or contrary claims and facts shall in no way limit, 8 waive, or reduce the foregoing release, which shall remain in full force and effect. Nothing in this 9 paragraph shall be construed as modifying or limiting the other provisions of the settlement 10 concerning the potential availability of claims. 11
6.8.
No Releasing Party shall recover, directly or indirectly, any sums for claims
12 released by operation of this Agreement, including, without limitation, to the claims settled and 13 released herein, from the Released Parties, other than sums received under this Agreement and 14 that the Released Parties shall have no obligation to make any payments to any non-parties for 15 liability arising out of claims released by operation of this Agreement. 16
6.9.
Provided that the Final Order and Judgment is consistent with the terms and
17 conditions of this Agreement, Plaintiffs and the Participating Class Members that have not 18 objected, MBUSA, and their respective counsel, hereby waive any and all rights to appeal from 19 the Final Order and Judgment, including all rights to any post-judgment proceeding and appellate 20 proceeding, such as a motion to vacate judgment, a motion for new trial, and any extraordinary 21 writ. This means that, if there are no objections to the settlement, the Final Order and Judgment 22 will become final and non-appealable at the time it is entered. This waiver does not include any 23 waiver of the right to oppose any appeal, appellate proceedings, or post-judgment proceedings. 24 This Section does not preclude Plaintiff or Class Counsel from appealing from any order by the 25 Court awarding less than the requested award for Attorneys’ Fees, Costs and All Other Expenses 26 or the Class Representative Service Award sought by them. 27 28 CBM-MERCEDES\SF671310-6
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1
7. APPROVAL OF THE SETTLEMENT; JUDGMENT AS TO MBUSA
2
7.1.
Plaintiff will file, and MBUSA will not oppose, a motion for an order conditionally
3 certifying the Settlement Class, giving preliminary approval of this Settlement, approving the 4 notice to be provided the Settlement Class and the procedures for providing such notice, setting a 5 hearing for final approval and a briefing schedule for a motion for an award of Attorneys’ Fees, 6 Costs and All Other Expenses, and otherwise staying this Litigation. 7
7.2.
Should the Court decline to conditionally certify the Settlement Class or to
8 approve any material aspect of the Settlement (including but not limited to the scope of release to 9 be granted by Participating Class Members or the binding effect of the Settlement on Participating 10 Class Members), and the Parties, despite their best efforts, are unable to agree upon revisions to 11 the Agreement that alleviate the Court’s concerns, or the Agreement is otherwise terminated or 12 fails to become effective in accordance with the terms of this Agreement, the Settling Parties will 13 be restored to their respective positions in the Litigation as of November 18, 2015. In such event, 14 the terms and provisions of this Agreement will have no further force and effect and shall not be 15 used in this Litigation or in any other proceeding for any purpose, and any Judgment or order 16 entered by the Court in accordance with the terms of this Agreement will be treated as vacated, 17 nunc pro tunc. 18
7.3.
No order of the Court or modification or reversal on appeal of any order of the
19 Court concerning any award of attorneys’ fees, expenses, or costs to Class Counsel will constitute 20 grounds for cancellation or termination of this Agreement, unless the order potentially increases 21 in any way MBUSA’s financial responsibility in connection with the settlement. 22
8. NOTICE TO THE SETTLEMENT CLASS AND OPPORTUNITY TO OPT OUT OR OBJECT
23 8.1.
Appointment of Settlement Administrator. The Parties will ask the Court to
24 appoint Kurtzman Carson Consultants (“KCC”), a qualified administrator, to serve as the 25 Settlement Administrator, subject to the Court’s approval. As a condition of appointment, KCC 26 will agree to be bound by this Agreement with respect to the performance of its duties and its 27 compensation. The Settlement Administrator’s duties will include preparing, printing, and mailing 28 CBM-MERCEDES\SF671310-6
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1 the Class Notice to all Settlement Class Members; conducting a national change of address search 2 on all Settlement Class Members before the initial mailing; conducting skip tracing on any notice 3 returned by the U.S. Postal Service as non-deliverable, as needed, and re-mailing the notice to any 4 new address located; providing the Parties with periodic status reports about the delivery of the 5 notices and receipt of objections to and requests to opt out; creating, maintaining, and monitoring 6 a settlement website at the address http://RearACSettlement.com; and otherwise administering the 7 Settlement pursuant to this Agreement. MBUSA shall pay KCC the reasonable costs of 8 administration. 9
8.2.
Notice to Settlement Class Members. All Settlement Class Members will be sent
10 a notice in the form evidenced by Exhibit A (other than formatting changes to facilitate printing 11 by the Settlement Administrator). The address block in the Class Notice shall also include the 12 VIN of the vehicle(s) owned or leased by the Settlement Class Member. The Settlement 13 Administrator shall also provide a copy of the Notice and/or Claim Form to any Settlement Class 14 Member who requests the Notice and/or Claim Form. 15
8.3.
Information to Settlement Administrator. As soon as possible, and in no event
16 later than five (5) court days after Plaintiff has filed the motion for preliminary approval of this 17 Settlement, MBUSA shall provide a list of applicable Vehicle Identification Numbers (“VINs”) to 18 the Settlement Administrator, who will obtain contact information of owners associated with each 19 VIN from R. L. Polk or a similar provider, which contact information will be processed by the 20 Settlement Administrator through the National Change of Address database (where a specific 21 owner is known), the Coding Accuracy Support System, and the Delivery Point Validation system 22 for the purpose of verifying and updating the addresses. 23
8.4.
Mailing of the Notices. The Settlement Administrator shall mail the notice
24 approved by the Court to all Settlement Class Members who have addresses identified through the 25 sources specified in the Notice Plan within sixty (60) days of the entry of the Court’s order 26 preliminarily approving this settlement. The Settlement Administrator shall mail the notices via 27 first class mail. 28 CBM-MERCEDES\SF671310-6
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1
8.5.
Settlement Website. As part of its duties, the Settlement Administrator shall
2 reserve, create, maintain, and monitor a website at http://RearACSettlement.com on which the 3 Class Notice and this Agreement shall be posted. The website shall also include a link to 4 download a copy of the Claim Form. Claims shall be submitted only by mail and shall not be 5 accepted through the website. The website will be made available on the date the Notice is mailed 6 to Settlement Class Members as set forth in Section 8.4. The website shall be active until all valid 7 claims submitted under the Claim Validation Process set forth in Section 9 have been paid. 8
8.6.
Weekly Report. As part of its duties, the Settlement Administrator shall provide
9 Class Counsel and Defense Counsel with a weekly status report that tracks the notices that have 10 been mailed and requests to opt out that the Settlement Administrator receives. 11
8.7.
Returned Notices. Unless the Settlement Administrator receives a Notice returned
12 from the United States Postal Service for reasons discussed below in this paragraph, the Notice 13 shall be deemed mailed and received by the Settlement Class Member to whom it was sent three 14 (3) days after mailing. In the event that subsequent to the first mailing of the Notice, the Notice is 15 returned to the Settlement Administrator by the United States Postal Service within twenty-eight 16 (28) days of the original mailing of the Notice, with a forwarding address for the recipient, the 17 Settlement Administrator shall re-mail the Notice to that address, and the forwarding address shall 18 be deemed the updated address for that Settlement Class Member. In the event that subsequent to 19 the first mailing of the Notice, the Notice is returned to the Settlement Administrator by the 20 United States Postal Service within twenty-eight (28) days of the original mailing of the Notice 21 because the address of the recipient is no longer valid, and the name of the Settlement Class 22 member is known, the Settlement Administrator shall perform a standard skip trace in an effort to 23 attempt to ascertain the current address of the Settlement Class Member in question and, if such 24 an address is ascertained, the Settlement Administrator will promptly re-send the Notice. If no 25 updated address is obtained for that Settlement Class Member, the Notice shall be sent again to 26 the last known address. In either event, the Notice shall be deemed received by the Settlement 27 Class Member once it is mailed for the second time. 28 CBM-MERCEDES\SF671310-6
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1
8.8.
Final Report. Not later than ten (10) court days after the deadline for submission
2 of requests to opt out, the Settlement Administrator shall provide the Parties a declaration of due 3 diligence setting forth its compliance with its obligations under this Agreement to be filed in 4 conjunction with a motion for final approval. The declaration shall identify those individuals who 5 have submitted a valid and timely request to opt out. Prior to the hearing on the motion for final 6 approval, the Settlement Administrator will supplement its declaration of due diligence if any 7 material changes occur from the date of the filing of its prior declaration. 8
8.9.
Request to Opt Out. Settlement Class Members may exclude themselves from the
9 Settlement by notifying the Settlement Administrator of their intent to not participate in the 10 settlement not later than forty-five (45) days after the Settlement Administrator mails the Class 11 Notices (or re-mails, in the case of Notices returned undeliverable). Such notice must be made in 12 writing and contain (1) the Settlement Class Member’s name, (2) his or her current address and 13 telephone number, (3) Vehicle Identification Number associated with the vehicle giving rise to 14 standing to “opt out” and the dates of ownership for said vehicle; (4) a dated signature; and (5) a 15 written statement that the Settlement Class Member has reviewed the Class Notice and wishes to 16 be excluded from the Settlement. If a question is raised about the authenticity of a request to opt 17 out, the Settlement Administrator will have the right to demand additional proof of the 18 individual’s identity and intent. Anyone who has submitted a valid request to opt out will not 19 participate in or be bound by the Settlement or the Final Order and Judgment. A Settlement Class 20 Member who does not complete and mail a valid request to opt out in the manner and by the 21 deadline specified above will automatically become a Participating Class Member and be bound 22 by all terms and conditions of the Settlement and the Final Order and Judgment entered by the 23 Court, including the release of claims set forth in Section 6. 24
8.10.
Objections to the Settlement. Any Participating Class Member who intends to
25 object to the Settlement must do so by filing the objection with the Court not later than forty-five 26 (45) days after the Settlement Administrator mails the Class Notices (or re-mails, in the case of 27 Notices returned undeliverable). The objection must be in writing and include (1) the 28 Participating Class Member’s full name, current address, and telephone number; (2) the Vehicle CBM-MERCEDES\SF671310-6
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1 Identification Number associated with the vehicle giving rise to standing to make an Objection, 2 and the dates of ownership of said vehicle; (3) a statement that the objector has reviewed the 3 Settlement Class definition and understands that he/she is a Settlement Class Member, and has not 4 opted out of the Settlement Class; (4) a complete statement of all legal and factual bases for any 5 Objection that the objector wishes to assert; (5) a statement of whether the Participating Class 6 Member intends to appear at the final approval hearing, (6) copies of any documents or witnesses 7 that support the objection, and (7) a dated signature. Copies of any such Objection documents (a) 8 through (e) above must also be mailed to Class Counsel and Defense Counsel no later than the 459 day period from the date of Notice mailing (or re-mailing). Only those Settlement Class Members 10 who do not submit a request to opt out may object to the Settlement. A Settlement Class Member 11 who does not submit a written objection in the manner and by the deadline specified above will be 12 deemed to have waived any objections and will be foreclosed from making any objections 13 (whether by appeal or otherwise) to the Settlement. A Settlement Class Member who does not 14 timely submit a notice of intent to appear at the final approval hearing in accordance with all of 15 the requirements of this Section shall not be allowed to appear at the hearing. 16
9. CLAIMS ADMINISTRATION AND CLAIMS PROCEDURE
17
9.1.
Only Participating Class Members shall be eligible to make a claim. Claims may
18 be made within 150 days of the date Class Notice was issued. 19
9.2.
As a condition of its retention, the Settlement Administrator must agree that (a) it
20 will fulfill all responsibilities and duties assigned to the Settlement Administrator under the terms 21 of this Agreement, and (b) the Settling Parties and their Counsel, as well as the Released Parties, 22 reserve all claims and rights for any failure by the Settlement Administrator to fulfill its 23 responsibilities and duties. In no event shall the Settling Parties or their Counsel have any liability 24 for claims of wrongful or negligent conduct on the part of the Settlement Administrator, the 25 Third-Party Neutral, or their agents. 26 27
9.3.
The Settlement Administrator shall: 9.3.1. Use personal information acquired as a result of this Agreement solely for
28 purposes of evaluating and paying claims under this Agreement; and CBM-MERCEDES\SF671310-6
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1
9.3.2. Assign a manager to oversee the protection and appropriate management of
2 personal information and review its internal system to manage the protection of personal 3 information to ensure consistent performance and constant improvement; and 4
9.3.3. Take security countermeasures to prevent unauthorized access to personal
5 information, and loss, destruction, falsification and leakage of personal information; and 6
9.3.4. If outsourcing the handling of personal information, determine that
7 outsourced companies take steps to ensure appropriate management of the information to prevent 8 leaks of personal or confidential information, and prohibit re-use of information for other 9 purposes; and 9.3.5. Respond immediately with appropriate measures then necessary to
10
11 disclose, correct, stop using, or eliminate contents of information; and 9.3.6. Following the completion of the Claims Period and in compliance with
12
13 applicable retention law, destroy all personal information obtained in connection with this 14 settlement in a manner most likely to guarantee that such information not be obtained by 15 unauthorized persons. 16
9.4.
Any Participating Class Member who wishes to make a claim must completely fill
17 out and sign a Claim Form providing all requested information. Claims must be made under 18 penalty of perjury, be supported by proof including repair orders (or similar itemized invoices) 19 and proof of payment, and provide all of the information in the Claim Form. Claims that may be 20 paid pursuant to this procedure shall include (1) out-of-pocket costs to repair or abate leaks in and 21 around the original-equipment rear air conditioning units meeting the requirements set forth in 22 Section 5.1 above; and (2) out-of-pocket costs to repair or abate damage to the Subject Vehicle 23 and any factory-installed equipment (i.e., seats, carpeting, etc.) as a result of covered leaks from 24 original-equipment rear air conditioning units meeting the requirements set forth in Section 5.1 25 above. Claims will be presumed valid if they are: (1) timely; (2) properly described on a valid and 26 complete claim form; (3) submitted by a qualifying class member; (4) made for repairs covered 27 by the Extended Warranty described in Section 4 above, to a qualifying vehicle within the 28 vehicle’s first 7 years or 125,000 miles (whichever occurs first); (5) absent evidence of fraud, or CBM-MERCEDES\SF671310-6
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1 that the claimed leaks resulted from damage to the AC unit, seals, or other related components by 2 accident or willful modification; (6) submitted with valid proof of repair paid for by the claimant; 3 and (7) if making claims for three or more vehicles, submitted with proof of ownership of the 4 vehicles. Notwithstanding the foregoing, the parties acknowledge that there may be unanticipated 5 circumstances that affect the presumption of validity, and the parties agree to meet and confer if 6 such circumstances arise. 7
9.5.
Upon receipt, the Settlement Administrator shall perform administrative checks to
8 ensure that Claim Forms contain all required information. The Settlement Administrator will 9 notify Participating Class Members who submit deficient claims by first-class mail. The 10 Participating Class Member receiving such notice will be allowed thirty (30) days from the 11 postmarked date on the notice even if it exceeds the Claims Period to submit materials to cure the 12 deficiencies. Once a claim is complete, the Settlement Administrator shall forward the claim to 13 the individual designated by MBUSA, for a decision on the claim. 14
9.6.
MBUSA shall evaluate claims on a uniform basis and shall not arbitrarily deny
15 claims. For claims timely submitted within the Claims Period, before the Effective Date, the 16 determination of the validity of the claim shall be made within ninety (90) days of the Effective 17 Date; otherwise, such determination shall be made within ninety (90) days of receipt. In the event 18 MBUSA (or its designee) denies a claim, the Claimant will be informed via first-class mail and 19 given thirty (30) days to appeal from the date the denial is postmarked. Any appeal will be 20 adjudicated by a Third-Party Neutral who shall independently determine the validity of the claim. 21 The Claimant and MBUSA will have a reasonable opportunity to present two-page statements to 22 the Third-Party Neutral setting forth their position about whether the claim should be deemed 23 eligible or ineligible for inclusion in the Claims Process, but there shall be no formal hearing or 24 trial. The decisions of the Third-Party Neutral pursuant to this Agreement shall be final and 25 binding on the Claimant and all the Settling Parties. MBUSA shall be responsible for the fees of 26 the Third-Party Neutral. The party prevailing in the appeal shall be entitled to recover from the 27 other party any attorneys’ fees or other costs incurred by the prevailing party in connection with 28 CBM-MERCEDES\SF671310-6
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1 the proceeding before the Third Party Neutral. The dispute will be resolved on the briefs (two 2 pages each side) without formal hearing or trial processes. 3
9.7.
MBUSA shall pay valid claims in the form of a check valid for 180 days from the
4 date of issue, sent via first-class United States mail to the address shown on the Participating 5 Class Member’s Claim Form, which check shall be mailed to each such Participating Class 6 Member with an approved claim within thirty (30) days of the final decision regarding the claim. 7 If the check issued to a Participating Class Member under the terms of this Agreement is not 8 cashed within the 180 day period, there shall be no further obligation to make payment to such 9 Participating Class Member. 10
9.8.
Any claim accruing prior to the date Notice is mailed must be made within the
11 Claims Period set forth in Section 9.1. Any claim accruing after the date Notice is mailed, but 12 before the Effective Date, must be submitted within forty-five (45) days of the date accrued. No 13 claims for reimbursement can be made if the claim accrues on or after the Effective Date; rather, 14 Participating Class Members must have applicable repairs made pursuant to Section 4 of this 15 Agreement in such circumstances. 16
10. DISPUTE RESOLUTION
17
10.1.
Court’s Continuing Jurisdiction. The Court shall retain jurisdiction with respect
18 to the interpretation, implementation, and enforcement of the terms of this Agreement and all 19 orders and judgments entered in connection therewith, and Plaintiff, MBUSA and their respective 20 counsel submit to the jurisdiction of the Court for purposes of interpreting, implementing and 21 enforcing the Settlement Agreement and all orders and judgments entered in connection 22 therewith, except that the Court shall not have jurisdiction to increase MBUSA’s payment 23 obligations hereunder. 24
10.2.
Dispute Resolution Procedure. Except as otherwise set forth herein, all disputes
25 concerning the interpretation, calculation, or payment of settlement claims, or other disputes 26 regarding compliance with this Settlement Agreement, shall be resolved as follows: 27 28 CBM-MERCEDES\SF671310-6
-19CLASS ACTION SETTLEMENT AGREEMENT
Case No. 14-CV-02349 TEH
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1
10.2.1. If Plaintiff or Class Counsel, on behalf of Plaintiff or any Participating
2 Class Member, or MBUSA at any time believes the other party has materially breached the 3 Settlement Agreement, that party shall notify the other party in writing of the alleged violation. 4
10.2.2. Upon receiving notice of the alleged violation or dispute, the responding
5 party shall have ten (10) days to correct the alleged violation and/or respond in writing to the 6 initiating party with the reasons why the party disputes all or part of the allegation. 7
10.2.3. If the response does not address the alleged violation to the initiating
8 party’s satisfaction, Plaintiff and MBUSA shall negotiate in good faith for up to ten (10) days to 9 resolve their differences. 10.2.4. If Plaintiff and MBUSA are unable to resolve their differences after twenty
10
11 (20) days, either party may file an appropriate motion to enforce the Settlement Agreement with 12 the Court. The briefing of such motion should be in letter brief form and shall not exceed five (5) 13 single-spaced pages (excluding exhibits). 14
10.3.
Attorneys’ Fees in Resolving Dispute. Reasonable attorneys’ fees and costs for
15 work done in resolving a dispute under this Section may be recovered by the prevailing party. 16
11. TAXES
17
11.1.
Neither Class Counsel nor Defense Counsel intends anything contained herein to
18 constitute legal advice regarding the taxability of any amount paid hereunder, nor shall it be relied 19 upon as such. The tax issues for each Participating Class Member may be unique, and each 20 Participating Class Member is advised to obtain tax advice from his or her own tax advisor with 21 respect to any payments resulting from this Agreement. Each Participating Class Member will be 22 responsible for paying all applicable state, local, and federal income taxes on all amounts the 23 Participating Class Member receives pursuant to this Settlement Agreement. 24
11.2.
No person shall have any claim against the Settling Parties, their respective
25 counsel, or the Settlement Administrator based on the mailings, distributions, and payments made 26 in accordance with or pursuant to this Settlement Agreement. 27 28 CBM-MERCEDES\SF671310-6
-20CLASS ACTION SETTLEMENT AGREEMENT
Case No. 14-CV-02349 TEH
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 31 of 53
1
12. MISCELLANEOUS TERMS
2
12.1.
CAFA Notice. Within ten (10) days after this Agreement is filed in Court, the
3 Settlement Administrator will cause a notice of the proposed settlement consisting of the 4 materials required by the Class Action Fairness Act (28 U.S.C. § 1715) (“CAFA”) to be served 5 upon the appropriate state official in each state of the United States as well as the appropriate 6 federal officials. Within fifteen (15) days after the deadline to mail the Notice to Settlement Class 7 Members in Section 8.4, the Settlement Administrator shall provide declarations to the Court, 8 with a copy to Class Counsel and Defense Counsel, attesting to the measures undertaken to 9 provide notice as directed by CAFA. 10
12.2.
Integrated Agreement. After this Agreement is signed and delivered by Plaintiff,
11 MBUSA and their respective counsel, this Agreement and its exhibits will constitute the entire 12 agreement between Plaintiff and MBUSA relating to the Settlement, and it will then be deemed 13 that no oral representations, warranties, covenants, or inducements have been made Plaintiff 14 and/or MBUSA concerning this Agreement or its exhibits other than the representations, 15 warranties, covenants, and inducements expressly stated in this Agreement and its exhibits. 16
12.3.
Attorney Authorization. Class Counsel and Defense Counsel warrant and
17 represent that they are authorized by Plaintiff and MBUSA, respectively, to take all appropriate 18 action required or permitted to be taken pursuant to this Agreement to effectuate its terms, and to 19 execute any other documents required to effectuate the terms of this Agreement. Plaintiff, 20 MBUSA and their respective counsel will cooperate with each other and use their best efforts to 21 effect the implementation of the Settlement. In the event Plaintiff and MBUSA are unable to 22 reach agreement on the form or content of any document needed to implement the Agreement, or 23 on any supplemental provisions that may become necessary to effectuate the terms of this 24 Agreement, Plaintiff and MBUSA will seek the assistance of the Court, and in all cases all such 25 documents, supplemental provisions and assistance of the court will be consistent with this 26 Agreement. 27 28 CBM-MERCEDES\SF671310-6
-21CLASS ACTION SETTLEMENT AGREEMENT
Case No. 14-CV-02349 TEH
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 32 of 53
1
12.4.
Modification of Agreement. This Agreement, and any and all parts of it, may be
2 amended, modified, changed, or waived in writing by Plaintiff’s or MBUSA’s counsel with each 3 party’s consent. 4
12.5.
Agreement Binding on Successors. This Agreement will be binding upon, and
5 inure to the benefit of, the successors of each of Plaintiff, MBUSA, and the Settlement 6 Administrator. 7
12.6.
Applicable Law. All terms and conditions of this Agreement and its exhibits will
8 be governed by and interpreted according to the laws of the State of California, without giving 9 effect to any conflict of law principles or choice of law principles. 10
12.7.
Cooperation in Drafting. Plaintiff and MBUSA have cooperated in the drafting
11 and preparation of this Agreement. This Agreement will not be construed against any party on the 12 basis that the party was the drafter or participated in the drafting. 13
12.8.
Fair Settlement. Plaintiff, MBUSA, and their respective counsel believe and
14 warrant that this Agreement reflects a fair, reasonable, and adequate settlement of the claims 15 against MBUSA and have arrived at this Agreement through arms-length negotiations, taking into 16 account all relevant factors, current and potential. 17
12.9.
Use and Return of Documents and Data. All originals, copies, and summaries of
18 documents and data provided to Class Counsel by MBUSA in connection with the mediation or 19 other settlement negotiations in this matter may be used only with respect to this Settlement and 20 may not be used in any way that violates any existing contractual agreement, statute, or rule. 21
12.10. Stay of Proceedings. The Settling Parties hereby agree and stipulate to stay all
22 proceedings in this Litigation until the approval of this Agreement has been finally determined, 23 except the stay of proceedings shall not prevent the filing of any motions, declarations, and other 24 matters necessary to the approval of this Agreement. A standstill of litigation will be efficient, 25 promotes the public policy favoring settlement and aids resolution of claims on a nationwide 26 basis, which is in the public interest. 27
12.11. Except as expressly provided herein, nothing in this Agreement will be construed
28 as diminishing, lessening, or otherwise affecting any warranty, duty, or contractual obligation of CBM-MERCEDES\SF671310-6
-22CLASS ACTION SETTLEMENT AGREEMENT
Case No. 14-CV-02349 TEH
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1 MBUSA in connection with the Settlement Class Vehicles, including but not limited to rear air 2 conditioning units. Moreover, MBUSA or any Authorized Sprinter Service Center may continue 3 to effect or implement any goodwill policy, program, or procedure during the pendency of the 4 settlement approval proceedings. 5
12.12. Headings. The descriptive heading of any section or paragraph of this Agreement
6 is inserted for convenience of reference only and does not constitute a part of this Agreement. 7
12.13. Notice. All notices, demands or other communications given under this Agreement
8 will be in writing and deemed to have been duly given as of the third business day after mailing 9 by United States mail, addressed as follows: 10
To Plaintiff and the Class:
To MBUSA:
11
CHAVEZ & GERTLER LLP Jonathan E. Gertler 42 Miller Avenue Mill Valley, California 94941 Tel: (415) 381-5599 Fax: (415) 381-5572
CARROLL, BURDICK & McDONOUGH LLP Troy M. Yoshino 44 Montgomery St., Suite 400 San Francisco, CA 94104 Tel: (415) 989-5900 Fax: (415) 989-0932
12 13 14 15 16 17
THE VEEN FIRM P.C. Anthony L. Label 711 Van Ness Ave, Suite 220 San Francisco, CA 94102 Tel: (415) 673-4800 Fax: (415) 771-5845
18 12.14. Execution in Counterparts. This Agreement may be executed in one or more 19 counterparts and may be delivered by facsimile or electronic scan, each of which, when so 20 executed and delivered, shall be an original, but such counterparts together shall constitute but 21 one and the same instrument and Agreement, provided that counsel for Plaintiff and MBUSA will 22 exchange between themselves original signed counterparts. Plaintiff and MBUSA further agree to 23 accept a digital image, printout, facsimile or photocopy of this Agreement, as executed, as a true 24 and correct original and admissible as best evidence for the purposes of state law, California 25 Evidence Code 1520, Federal Rule of Evidence 1002, and like statutes and regulations. 26 13. EXECUTION BY PARTIES AND COUNSEL 27 Plaintiff, MBUSA, and their counsel hereby execute this Agreement. 28 CBM-MERCEDES\SF671310-6
-23CLASS ACTION SETTLEMENT AGREEMENT
Case No. 14-CV-02349 TEH
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 34 of 53
1 2
Dated: __________ 2016
_____________________________________________ BENJAMIN ROBLES
Dated: __________ 2016
MERCEDES-BENZ USA, LLC
3 4 5 By: _________________________________________
6 7
Dated: January __________ 29, 2016
CHAVEZ & GERTLER LLP
8 9
By:
10 11
Dated: __________ January 22 2016
________________________________________ Jonathan E. Gertler Attorneys for Plaintiff
THE VEEN FIRM P.C.
12 13
By:
14 15
Dated: __________ 2016
________________________________________ Anthony L. Label Attorneys for Plaintiff
CARROLL, BURDICK & McDONOUGH LLP
16 17
By:
18
________________________________________ Troy M. Yoshino Attorneys for Defendant MBUSA
19 20 21 22 23 24 25 26 27 28 CBM-MERCEDES\SF671310-6
-24CLASS ACTION SETTLEMENT AGREEMENT
Case No. 14-CV-02349 TEH
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 35 of 53
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 36 of 53
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 37 of 53 [EXHIBIT A – CLASS NOTICE]
NOTICE OF PENDENCY AND PROPOSED CLASS ACTION SETTLEMENT If you have owned or leased a 2010-2014 model year Mercedes-Benz or Freightliner Sprinter 2500 or 3500 van with an original-equipment rear air conditioning unit, a class action lawsuit may affect your rights. A court authorized this notice. This is not a solicitation from a lawyer. •
A proposed settlement has been reached in a class action lawsuit that may affect your rights.
•
The settlement resolves a class action lawsuit against Mercedes-Benz USA, LLC (“MBUSA”) alleging that it sold certain Sprinter vans with rear air conditioning units that could leak water into the interior of the vans.
•
The Court has not decided whether to finally approve the settlement. Relief will be made available only after the Court approves the settlement and any appeals are resolved.
YOUR RIGHTS AND OPTIONS REGARDING THE SETTLEMENT DO NOTHING
Do nothing. Have your warranty on the rear air conditioning unit extended if the settlement is approved. Release your right to sue MBUSA and others. See Section 4 below for more information about the extended warranty. See Section 19 below to find out more about the release.
SUBMIT A CLAIM FOR REIMBURSEMENT
Submit a claim for reimbursement if eligible. Release your right to sue MBUSA and others. See Section 4 below for more information about how to submit a claim. See section 19 below to find out more about the release.
OBJECT TO THE TERMS OF THE SETTLEMENT
File an objection if you believe the settlement is unfair or inadequate. See section 12 below.
EXCLUDE YOURSELF FROM THE SETTLEMENT
Opt out of the settlement. Receive no benefits from the settlement but retain your right to sue MBUSA and others over the alleged defects. See Section 11 below for more information about how to opt out.
Please read this notice carefully. It describes your rights and your options with regard to the settlement.
CBM-MERCEDES\SF671310-6
-1CLASS ACTION SETTLEMENT AGREEMENT, EXHIBIT A – CLASS NOTICE
Case No. 14-CV-02349 TEH
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 38 of 53 [EXHIBIT A – CLASS NOTICE] BASIC INFORMATION 1. Why did I receive this notice? A class action, known as Digby Adler Group, et al. v. Mercedes-Benz USA, LLC., No. 14-CV-02349 TEH, is pending in the United States District Court for the Northern District of California. Records show you may currently own or lease, or may have owned or leased, a 2010-2014 model year Mercedes-Benz or Freightliner Sprinter 2500 or 3500 van with a rear air conditioning unit (the “Subject Vehicles”), and therefore may be a Settlement Class Member. A proposed settlement has been reached that may affect your legal rights. The Honorable Thelton E. Henderson of the United States District Court for the Northern District of California, who is overseeing this class action and settlement, ordered that you be sent this notice. 2. What is this class action about? Plaintiff alleges MBUSA distributed certain Sprinter Vans equipped with rear air conditioning units that allegedly would leak water into the interior of the vans. The operative complaint asserts fraud- and warranty-based claims, including claims for fraudulent concealment, violation of California’s SongBeverly Consumer Warranty Act, Cal. Civil Code § 1790 et seq., violation of California’s Consumers Legal Remedies Act, Cal. Civil Code § 1781 et seq., violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq., and violation of the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1, et seq. 3. How does MBUSA respond? MBUSA denies all of the material allegations made by Plaintiff and denies any wrongdoing or liability of any kind. Among other things, MBUSA contends that there is no defect in the installation or design of the roof-mounted air conditioning units and that it has not violated any law. 4. What does the settlement provide? If the Settlement becomes effective, five business days thereafter, MBUSA will extend the warranty on the original-equipment rear air conditioning units in model year 2010-2014 Mercedes-Benz and Freightliner Sprinter 2500 and 3500 vehicles for covered water leaks to the first 7 years or 125,000 miles of the vehicle’s life, whichever occurs first. The extended warranty will also cover original equipment parts damaged by warranty-covered water leaks (e.g., vehicle headliner, upholstery, etc.) To receive a repair under the extended warranty, you need to present your vehicle to an authorized Sprinter Service Center within extended warranty period. If the Settlement becomes effective, five business days thereafter, MBUSA will also modify the “Maintenance Service/B-Service Sheet” checklist for the Subject Vehicles to include inspection of the interior roof in Subject Vehicles for water marks or other evidence of water infiltration near the rear airconditioning. If the Settlement becomes effective, MBUSA has also agreed to reimburse reasonable and necessary costs you may have paid for repairs that would have been covered by the extended warranty, i.e., covered repairs within the first 7 years or 125,000 miles of the vehicle’s life, whichever occurs first. To be reimbursed, you must submit the claim form that is enclosed with this notice (also available at http://RearACSettlement.com) and attach copies of repair orders (or similar itemized invoices) and proof of payment. Please do not send originals. Acceptable proof of payment includes a receipt showing payment, cancelled checks, credit card statements, credit receipts, or other document showing payment. The claim form must be signed and made under penalty of perjury to be valid. If you do not timely submit a claim form, you will forgo your right to receive any reimbursement for your out-of-pocket costs arising from leaks in the rear air conditioning units. CBM-MERCEDES\SF671310-6
-2CLASS ACTION SETTLEMENT AGREEMENT, EXHIBIT A – CLASS NOTICE
Case No. 14-CV-02349 TEH
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 39 of 53 [EXHIBIT A – CLASS NOTICE] 5. Why is this lawsuit being settled? The Court has not decided in favor of Plaintiff or MBUSA. Instead, both sides agreed to a settlement that they believe is a fair, reasonable, and adequate compromise of their respective positions. The parties reached this agreement only after long negotiations, many exchanges of information, and independent consideration of the risks and benefits of settlement through the assistance of an experienced Mediator. Class Counsel have considered the substantial benefits from the Settlement that will be given to the Participating Class Members and balanced these benefits with the risk that a trial could end in a verdict for MBUSA. They also considered the value of the immediate benefit to Participating Class Members versus the costs and delay of litigation through trial and appeals and the risk that a class would not be certified. Even if Plaintiff were successful in these efforts, Participating Class Members would not receive any benefits for years. 6. Has the Court decided who is right? No. The Court has not ruled in either party’s favor and, now that the parties have proposed a settlement, the Court is instead analyzing whether a fair, reasonable, and adequate compromise is proposed. The Court has ordered that you should get a copy of this notice so that you can review the settlement and determine whether you want to opt out, object, or file a claim. 7. Who is the Settlement Administrator? The settlement administrator is a third party appointed by the Court to send notice to you about the settlement. In the present case, the Court has appointed Kurtzman Carson Consultants (“KCC”) to act as the settlement administrator. You may contact KCC about this case at the following address: ______________ YOUR RIGHTS AND OPTIONS 8. Am I part of this Settlement Class? In preliminarily approving the settlement, the Court defined the Settlement Class to include all current and former owners or lessees of model year 2010-2014 Mercedes-Benz and Freightliner Sprinter 2500 or 3500 vehicles with original-equipment rear air conditioning units who purchased or leased their vehicles in the United States (“Subject Vehicles”). Excluded from the class are (a) persons who have settled with, released, or otherwise had claims adjudicated on the merits against MBUSA that are substantially similar to those alleged in this matter; (b) persons with only personal injury, wrongful death or property damage claims to property other than the Subject Vehicles, fixtures installed in the vehicles, or cargo transported in the vehicles, as a result of the defects alleged; (c) MBUSA employees; (d) insurers or other providers of extended service contracts or warranties, and (e) Judge Henderson and his family. Records indicate that you may be a Settlement Class Member. If you have filed or want to file your own lawsuit and not be part of this case, read Section 10 below. 9. How do I participate in the settlement? If the Court grants its approval of the settlement, you will not need to do anything to have your warranty extended and become eligible to receive covered future repairs at authorized Sprinter Service Centers. If you want to get reimbursed for prior repair costs covered by the settlement, you must submit your claim by «claim date». CBM-MERCEDES\SF671310-6
-3CLASS ACTION SETTLEMENT AGREEMENT, EXHIBIT A – CLASS NOTICE
Case No. 14-CV-02349 TEH
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 40 of 53 [EXHIBIT A – CLASS NOTICE] 10. How will the settlement affect my rights? If the settlement is approved, and you do not request exclusion as discussed in Section 11, you will release your claims as set out in Section 19 regardless of whether you present your vehicle for repair or submit a claim. 11. How do I request to be excluded from the settlement? If you wish to be excluded from the settlement, you must write the settlement administrator at the address specified above and request to be excluded. Your request to be excluded from the settlement must include: (1) your full name; (2) your current address and telephone number; (3) the Vehicle Identification Number associated with the vehicle giving rise to standing to “opt out” and the dates of ownership for said vehicle; (4) a dated signature; and (5) a written statement that you have reviewed the Class Notice and wish to be excluded from the Settlement. To be effective, your request must be postmarked no later than «opt out date». If you do not complete and timely mail a valid request to be excluded from the settlement, you will be bound by all terms and conditions of the settlement, including its release of claims. If you do submit a timely and valid request to be excluded, you will not receive any of the benefits of the settlement but you will retain the right to sue MBUSA about the legal claims raised in this lawsuit. 12. May I object to the settlement? You can ask the Court to deny approval by filing an objection. You can’t ask the Court to order a larger settlement; the Court can only approve or deny the settlement. If the Court denies approval, no settlement payments will be sent out and the lawsuit will continue. If that is what you want to happen, you must object. You may object to the proposed settlement in writing. If you timely do so, you may appear at the Final Approval Hearing (described in Section 20), either in person or through your own attorney. If you appear through your own attorney, you are responsible for paying that attorney. Your objection must include: (1) your full name, current address, and telephone number; (2) the Vehicle Identification Number associated with the vehicle giving rise to standing to make an Objection, and the dates of ownership of said vehicle; (3) a statement that you have reviewed the Settlement Class definition and understands that you are a Settlement Class Member, and have not opted out of the Settlement Class; (4) complete statement of all legal and factual bases for any Objection that you wishes to assert; (5) a statement of whether you or your attorney intend to appear at the final approval hearing, (6) copies of any documents or witnesses that support the objection, and (7) a dated signature. Copies of all Objection documents must also be mailed to Class Counsel and Defense Counsel no later than the 45-day period from the date of Notice mailing. To be effective, your objection must be postmarked by «opt out date». Do not telephone the Court or MBUSA’s counsel. If your objection is overruled, you will be bound by the terms of the settlement. You will not be able to exclude yourself from the settlement thereafter. 13. How much will it cost to administer the Settlement? MBUSA has agreed to pay the reasonable costs to administer the settlement. This cost will not reduce any amounts that MBUSA may reimburse Settlement Class Members or provide to Settlement Class Members under the extended warranty.
CBM-MERCEDES\SF671310-6
-4CLASS ACTION SETTLEMENT AGREEMENT, EXHIBIT A – CLASS NOTICE
Case No. 14-CV-02349 TEH
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 41 of 53 [EXHIBIT A – CLASS NOTICE] THE LAWYERS REPRESENTING YOU 14. Do I have a lawyer in this case? The Court has determined that the law firms of Chavez & Gertler LLP and The Veen Firm P.C. are qualified to represent you and members of the class. These lawyers are called “Class Counsel.” Their contact information is at the end of this notice. 15. May I get my own lawyer? You do not need to hire your own lawyer because Class Counsel are working on your behalf. Nonetheless, you may hire your own lawyer if you wish. If you hire your own lawyer, you will be responsible for paying for that lawyer. 16. How will Class Counsel be paid? You do not have to pay Class Counsel’s fees and costs. The fees and expenses that the Court approves will be paid by MBUSA. Under the settlement, MBUSA has agreed to pay Class Counsel up to $1,000,000 as attorneys’ fees and costs. This is not money that would otherwise be distributed to the class. 17. What else does the settlement provide? In class actions such as this one, a court may provide the class representative a “class representative service award” in recognition of the time, effort, and risks the class representative took to prosecute the class action. In the present case, Plaintiff reserves the right to request that the Court award him $5,000 given the time and effort expended responding to discovery and otherwise taking on the risks of prosecuting a class action. 18. Will I have to pay taxes on my award? You should consult a tax professional for more information about your own specific situation. RELEASE OF CLAIMS 19. What claims are being released as part of the settlement? Upon final approval of this settlement, each class member will release and discharge MBUSA and its current and former parent companies, subsidiaries, and related or affiliated companies, and each of their respective officers, directors, employees, partners, agents, representatives, attorneys, insurers, successors and assigns, from any and all claims that were or could have been pled as part of the litigation under the facts alleged therein. Excluded from this release are any claims for personal injury or wrongful death. For more information about the release, please refer to section 6 of the settlement agreement, which is available for your review at http://RearACSettlement.com FINAL SETTLEMENT APPROVAL HEARING 20. When will the Court consider whether to finally approve the settlement? The Court will hold a hearing in Courtroom 12 of the United States District Court for the Northern District of California, located at 450 Golden Gate Ave, San Francisco, CA, 94102, on _____ __, 2016 at _:00 _.m, to decide whether to finally approve the settlement. At that time, the Court will also decide whether to approve Class Counsel’s request for attorneys’ fees and costs, and the class representative service award. CBM-MERCEDES\SF671310-6 Case No. 14-CV-02349 TEH -5CLASS ACTION SETTLEMENT AGREEMENT, EXHIBIT A – CLASS NOTICE
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 42 of 53 [EXHIBIT A – CLASS NOTICE] It is not necessary for you to appear at this hearing. If you have timely submitted an objection to the settlement and a notice of intent to appear, you may appear at the hearing to argue your objection to the Court. Any attorney who will represent you must file a notice of appearance with the Court and serve the objection and notice of appearance on Class Counsel and counsel for MBUSA, on or before [objection deadline], 2016. You will be solely responsible for the fees and costs of your own attorney. The hearing may be postponed without further notice to the Class. If the settlement is not approved, the lawsuit will continue to be prepared for trial or other judicial resolution. 21. What if the proposed settlement is not approved? If the Proposed Settlement is not granted final approval, the putative Settlement Class that has been preliminarily certified will be decertified, the class action will proceed without further notice, and none of the agreements set forth in this Notice will be valid or enforceable. FURTHER INFORMATION 22. How do I get more information? This notice provides a summary of the basic terms of the settlement. For the settlement’s complete terms and conditions, please consult the settlement agreement. You can access the settlement agreement and other documents in the case on the website established for this settlement at http:// RearACSettlement.com. You can also view the entire case file by visiting the clerk of the court located at 450 Golden Gate Ave., San Francisco, CA 94102, or by contacting Class Counsel at the addresses provided below: CHAVEZ & GERTLER LLP Jonathan E. Gertler 42 Miller Ave. Mill Valley, CA 94941 Tel: (415) 381-5599 Fax: (415) 381-5572
VEEN FIRM P.C. Anthony L. Label 711 Van Ness Ave, Suite 220 San Francisco, CA 94102 Tel: (415) 673-4800 Fax: (415) 771-5845
PLEASE DO NOT TELEPHONE OR WRITE THE COURT, THE OFFICE OF THE CLERK, MBUSA, OR MBUSA’S COUNSEL FOR INFORMATION REGARDING THIS SETTLEMENT.
CBM-MERCEDES\SF671310-6
-6CLASS ACTION SETTLEMENT AGREEMENT, EXHIBIT A – CLASS NOTICE
Case No. 14-CV-02349 TEH
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 43 of 53 [EXHIBIT B – CLAIM FORM] SETTLEMENT CLAIM FORM Digby Adler Group et al. v. Mercedes-Benz USA, LLC, Case No. 14-CV-02349 TEH Please read the Notice of Pendency and Proposed Settlement of Class Action (“Notice”) AND all of the following instructions carefully before filling out your Claim Form. To determine whether you are eligible to make a claim, or for more information regarding the class action settlement, please visit http://RearACSettlement.com. 1.
Capitalized terms in this Claim Form have the same meaning as provided in the “Definitions” Section of the Class Action Settlement Agreement and Release, on file with the Court, and also available at the website above.
2.
Type or print legibly in black ink. Do not use highlighters. Provide all requested information, attach supporting documentation (i.e., repair orders or invoices), and sign all applicable certifications. You must use a separate Claim Form for each vehicle you believe qualifies.
3.
You are eligible to make a claim only if (1) you are a current or former owner or lessee of a model year 2010-2014 Mercedes-Benz and Freightliner Sprinter 2500 or 3500 vehicle with originalequipment rear air conditioning units (the “Subject Vehicle”), who purchased or leased the Subject Vehicle within the United States; (2) you are not requesting exclusion from the Settlement Class; (3) you have not settled with, released, or otherwise had claims adjudicated on the merits against Mercedes-Benz USA, LLC (“MBUSA”) similar to those described in the Notice; (4) you are not otherwise excluded from the Settlement Class as described in the Notice; and (5) you otherwise meet the requirements specified in this Claim Form and the Settlement Agreement.
4.
You cannot make a claim for reimbursement for any expense if you already received reimbursement for it; there is no double recovery permitted.
5.
If you are claiming reimbursement for more than one repair, please fill out a Claim Form for each repair separately. Multiple Claim Forms can be submitted in the same package, mailed to the address below—but each Claim Form should describe only one repair.
6.
You must submit your Claim Form under penalty of perjury by mail. If you are submitting a claim for a repair that occurred before _______, you must send your completed Claim Form and copies of any supporting documents postmarked by _______. If you are submitting a claim for a repair on or after _______, but before the Effective Date of the Settlement, you have forty-five (45) days from the date the repair was completed to submit your claim. The postmark on the envelope will determine the timeliness of the claim, and the Claim Form should be mailed to _______. You cannot claim reimbursement for any repairs occurring after the Effective Date of the Settlement. Instead, such future repairs are covered under, and to the extent of, the Extended Warranty made available under the Settlement only. The “Effective Date” of the Settlement is the date that the Court grants final approval to the Settlement and any time to appeal has expired, or any appeal which may have been taken has been withdrawn or concluded in a manner that conclusively affirms the Final Order and Judgment.
Keep a copy of your completed Claim Form and all supporting documents. Any documents you submit with your Claim Form will not be returned. Do not send original documents. If your claim is rejected for any reason, you will be notified.
CLASS ACTION SETTLEMENT AGREEMENT EXHIBIT B – CLAIM FORM
-1-
For Claims Administrator Use Only Claim Number: __________________
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 44 of 53 [EXHIBIT B – CLAIM FORM] PART A — PERSONAL INFORMATION Name: ___________________________________
Company Name (if company vehicle):
Address: _________________________________
________________________________________
________________________________________ City, State, Zip Code
Daytime Phone Number: ___________________ Names of Any Joint Owner(s) of the Vehicle:
________________________________________ Vehicle Model and Model Year
________________________________________
________________________________________ Vehicle Identification Number (“VIN”)
________________________________________ Dates you owned/leased the vehicle
PART B — REIMBURSEMENT FOR REPAIRS Date of repair: _____________________________________ Mileage at the time of repair: _________________________ Name and address of facility diagnosing and making the repair: _________________________________________________________________________________________ You must attach (1) the repair order or invoice associated with the repair establishing that the vehicle required repairs to the original equipment rear air-conditioning unit and that the required repair was performed, and (2) proof of payment for the amount paid by you for which you seek reimbursement (e.g., receipt). If you submit claims for three or more vehicles, you must also prove ownership at the time of repair for each vehicle on which you submit a claim. 1.
How much of the amount listed in the repair order/invoice is associated with covered repairs? (Only repairs to the original-equipment rear air conditioning units in Subject Vehicles for covered water leaks, or original-equipment parts damaged by covered water leaks (e.g., vehicle headliner, upholstery, etc.) occurring within the first 7 years or 125,000 miles from the vehicles in-service date may be claimed.) __________________________________________________________________________________
2.
At the time of the repair, did some other source (e.g., extended warranty, certified pre-owned warranty, insurance, goodwill) cover any part or the whole of the cost of repair?
If yes, list the source(s) of payment(s) and amount received from all other sources. _________________________________________________________________________________________
CLASS ACTION SETTLEMENT AGREEMENT EXHIBIT B – CLAIM FORM
-2-
For Claims Administrator Use Only Claim Number: __________________
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 45 of 53 [EXHIBIT B – CLAIM FORM] Please list and describe the documents you are attaching to support your claim: __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ PART C — CERTIFICATION I certify under penalty of perjury that the following information is true and correct: 1. I am a Settlement Class Member and the rightful owner of the claim described in this Claim Form; 2. The documents described in Part B above and provided with this Claim Form are true and accurate copies showing proof of payment and the repairs or replacements relating to covered water leaks from the original-equipment rear air conditioning unit in a Subject Vehicles, or original-equipment parts damaged by covered water leaks (e.g., vehicle headliner, upholstery, etc.) occurring within the first 7 years or 125,000 miles from the vehicles in-service date; 3. My Subject Vehicle was maintained in accordance with the guidelines set forth by the manufacturer; 4. All information that I provided is true and correct to the best of my knowledge and belief; and, 5. I agree to allow MBUSA to inspect my vehicle to verify the authenticity of my claim to the extent that I still have possession of the vehicle. Consistent with Section 5.5 of the Settlement Agreement, I confirm my agreement to the Release Obligations enumerated in Sections 6.1–6.9 of the Settlement Agreement, and consent to the dismissal of any pre-existing action or proceeding relating to Subject Vehicles containing original-equipment rear air conditioning units, whether brought by me or by others on my behalf. If more than one person has rights to the claims asserted, the Claim Form must be signed by all persons. __________________________________________ Signature of Claimant
______/_____/_______ Date
__________________________________________ Signature of Claimant
______/_____/_______ Date
__________________________________________ Signature of parent or guardian (if Claimant is a minor)
______/_____/_______ Date
CLASS ACTION SETTLEMENT AGREEMENT EXHIBIT B – CLAIM FORM
-3-
For Claims Administrator Use Only Claim Number: __________________
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 46 of 53 EXHIBIT C – PROPOSED PRELIMINARY APPROVAL ORDER 1 THE VEEN FIRM, P.C. 2 Anthony L. Label (Bar No. 205920) Steven A. Kronenberg (Bar No. 215541) 3 711 Van Ness Avenue, Suite 220 San Francisco, CA 94102 4 P.O. Box 7296 San Francisco, CA 94120-7296 5 Tel: (415) 673-4800 Fax: (415) 771-5845 6 CHAVEZ & GERTLER LLP 7 Jonathan E. Gertler (Bar No. 111531) Dan L. Gildor (Bar No. 223027) 8 Samuel P. Cheadle (Bar No. 268595) 42 Miller Avenue 9 Mill Valley, California 94941 Tel: (415) 381-5599 10 Fax: (415) 381-5572 11 Attorneys for Plaintiffs and the Proposed Settlement Class 12 CARROLL, BURDICK & McDONOUGH LLP Troy M. Yoshino (Bar No. 197850) 13 Eric J. Knapp (Bar No. 214352) Steven E. Swaney (Bar No. 221437) 14 44 Montgomery St., Suite 400 San Francisco, CA 94104 15 Tel: (415) 989-5900 Fax: (415) 989-0932 16 Attorneys for Defendant MERCEDES-BENZ USA, LLC 17 UNITED STATES DISTRICT COURT 18 NORTHERN DISTRICT OF CALIFORNIA 19 DIGBY ADLER GROUP, LLC, dba BANDAGO LLC, and BENJAMIN 20 ROBLES, on behalf of themselves and all 21 others similarly situated, 22 23 24
Plaintiffs, v. MERCEDES-BENZ U.S.A., LLC,
Case No. 14-CV-02349 TEH [PROPOSED] ORDER PRELIMINARILY APPROVING SETTLEMENT AGREEMENT, CERTIFYING SETTLEMENT CLASS, APPOINTING SETTLEMENT CLASS COUNSEL, SETTING HEARING ON FINAL APPROVAL OF SETTLEMENT, AND DIRECTING NOTICE TO THE CLASS Date: Time: Crtrm.:
25 Defendant. 26
Hon. Thelton E. Henderson
27 28 CBM-MERCEDES\SF671310-6
Case No. 14-CV-02349 TEH [PROPOSED ORDER] PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT AGREEMENT
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 47 of 53 EXHIBIT C – PROPOSED PRELIMINARY APPROVAL ORDER 1
Plaintiff moved this Court for an Order preliminarily approving the parties’ settlement,
2 certifying a settlement class, appointing settlement class counsel, setting a hearing on the final 3 approval of the settlement, and directing notice to the class (the “Motion”). Mercedes-Benz USA, 4 LLC (“MBUSA”) joined in Plaintiff’s request for an order preliminarily approving the parties’ 5 settlement. Upon considering the Motion, the parties’ Class Action Settlement Agreement and 6 Release and all exhibits thereto (collectively, the “Settlement Agreement” or “Settlement”), the 7 materials previously submitted in this case, the arguments of counsel, and other materials relevant to 8 this matter, it is hereby ORDERED that: 9
1.
The Court grants preliminary approval of the Settlement based upon the terms set
10 forth in the Settlement Agreement filed herewith. 2.
11
The terms of the Settlement Agreement are sufficiently fair, reasonable, and adequate
12 to allow dissemination of the Notice according to the Notice Plan. 1 This determination is not a final 13 finding that the Settlement Agreement is fair, reasonable, and adequate, but instead is a 14 determination that there is good cause to submit the proposed Settlement Agreement to Settlement 15 Class Members and to hold a hearing concerning final approval of the proposed settlement, and 16 ultimately approve the settlement. 17
3.
The Parties have made a sufficient showing, under the provisions of Rule 23 of the
18 Federal Rules of Civil Procedure, as applicable in the context of settlement classes, to establish 19 reasonable cause, following Notice to members of the proposed Settlement Class, to hold a hearing 20 to determine if a Class should be certified for settlement purposes only, consisting of persons who 21 meet the following criteria: All current and former owners and lessees of model year 2010-2014 Mercedes-Benz and Freightliner Sprinter 2500 or 3500 vehicles with original-equipment rear air conditioning units who purchased or leased their Subject Vehicles in the United States.
22 23 24
Excluded from the Settlement Class are: Persons who validly and timely exclude themselves; persons who have settled with, released, or otherwise had claims adjudicated on the merits against MBUSA that are substantially similar to those alleged in this matter; persons with only personal injury, wrongful death or property damage claims to property
25 26 27
1
To the extent capitalized terms are not defined in this Order, they shall have the meaning set 28 forth in the Settlement Agreement. CBM-MERCEDES\SF671310-6
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Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 48 of 53 EXHIBIT C – PROPOSED PRELIMINARY APPROVAL ORDER 1 2 3 4
other than the Subject Vehicles, fixtures installed in the vehicles, or cargo transported in the vehicles, as a result of the defects alleged; employees of MBUSA; insurers or other providers of extended service contracts or warranties for the vehicles owned by settlement class members; and the Honorable Thelton E. Henderson and members of his family. If, for any reason, the proposed settlement is not approved, any order certifying a settlement
5 class shall be vacated nunc pro tunc and the Litigation shall proceed as though the Settlement Class 6 had never been certified, without prejudice to the Parties’ rights to either request or oppose class 7 certification for purposes of litigation. 8
4.
In making the findings set forth in Paragraph 3, the Court has exercised its discretion
9 in conditionally certifying the Settlement Class on a nationwide basis. Named Plaintiff Benjamin 10 Robles is designated as the Class Representative. 11
5.
The Court hereby appoints the following attorneys as counsel for the Settlement
12 Class: Jonathan E. Gertler, Dan L. Gildor, and Samuel P. Cheadle of Chavez & Gertler LLP, and 13 Anthony L. Label and Steven A. Kronenberg of The Veen Firm, P.C., and the successors of these 14 law firms (collectively, “Class Counsel”). For purposes of these settlement proceedings, the Court 15 finds that the Chavez & Gertler LLP and The Veen Firm, P.C., are competent and capable of 16 exercising their responsibility as Class Counsel. 17
6.
This Court has both subject matter jurisdiction and personal jurisdiction as to this
18 action and all Parties before it. 19
7.
The Settlement Agreement is for settlement purposes only. Neither the fact of, any
20 provision contained in, nor any action taken under the Settlement Agreement shall be construed as 21 an admission of the validity of any claim or any factual allegation that was or could have been made 22 by Plaintiff and Settlement Class Members in the Action, or of any wrongdoing, fault, violation of 23 law, or liability of any kind on the part of Defendant or the Released Persons. The Settlement 24 Agreement shall not be offered or be admissible in evidence by or against Defendant or the Released 25 Persons or cited or referred to in any other action or proceeding, except one (1) brought by or against 26 the Parties to enforce or otherwise implement the terms of the Settlement Agreement, (2) involving 27 any Plaintiff or Settlement Class Member to support a defense of res judicata, collateral estoppel, 28 release, or other theory of claim preclusion, issue preclusion, or similar defense, or (3) involving an CBM-MERCEDES\SF671310-6
Case No. 14-CV-02349 TEH -2[PROPOSED ORDER] PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT AGREEMENT
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 49 of 53 EXHIBIT C – PROPOSED PRELIMINARY APPROVAL ORDER 1 attempt to enforce a stay of other litigation pursuant to the terms set forth in the Settlement 2 Agreement and the Court’s Order preliminarily approving the Settlement Agreement. 3
8.
The Notice and provisions for disseminating notice substantially as described in and
4 attached to the Settlement Agreement are hereby approved. The Court approves the Notice attached 5 as Exhibit A to the Settlement Agreement, as well as the Claim Form, attached as Exhibit B to the 6 Settlement Agreement. These materials (a) provide the best practicable notice, (b) are reasonably 7 calculated, under the circumstances, to apprise Settlement Class Members of the pendency of the 8 action, the terms of the proposed settlement, and of their right to appear, object to, or exclude 9 themselves from the proposed settlement, (c) are reasonable and constitute due, adequate, and 10 sufficient notice to all persons entitled to receive notice, and (d) fully comply with federal law, the 11 United States Constitution, and all other applicable laws. 9.
12
KCC Class Action Services, LLC (“KCC”), selected pursuant to the terms of the
13 Settlement Agreement, shall be responsible for providing notice of the proposed settlement to the 14 Settlement Class Members in accordance with the provisions of the Settlement Agreement and as 15 directed under the Class Action Fairness Act (28 U.S.C. § 1715). MBUSA will pay KCC’s fees and 16 costs. 17
10.
To comply with their obligations under the Settlement Agreement, the parties must
18 obtain vehicle registration information for Settlement Class Members for the purpose of 19 disseminating notice of the proposed settlement to those persons and entities. MBUSA and KCC are 20 hereby authorized to obtain vehicle registration information concerning Settlement Class Members 21 from R. L. Polk or a similar vendor for the sole purpose of providing notice to those persons and 22 entities. 23
11.
KCC shall mail the Notice to the identified Settlement Class Members per the Notice
24 Plan within sixty (60) days of the entry of this Order. On the same date, KCC will make an 25 informational settlement website available to the public, which website will include a copy of this 26 order, the Notice, the Settlement Agreement, the Claim Form, and other important documents. 27 Within fifteen (15) days after the deadline to mail the Notice, KCC shall file a declaration with the 28 Court, attesting to the measures undertaken to provide Notice to the Settlement Class and as directed CBM-MERCEDES\SF671310-6
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12.
Anyone who wishes to be excluded from the Settlement Class must submit a written
3 request for exclusion (as described in the Notice and Settlement Agreement) by sending it to KCC 4 Class Action Services, LLC, by First-Class U.S. mail to the address provided in the Notice. Requests 5 for exclusion must contain all information described in the Settlement Agreement. The envelope 6 containing the Request for Exclusion must be postmarked on or before the date set forth in the 7 Notice, which shall be forty-five (45) days after the completion of mailing (or re-mailing, in the case 8 of Notices returned undeliverable) of the Notice pursuant to the Settlement Agreement. The Court 9 shall rule on the validity of exclusions at the Fairness Hearing. 10
13.
Anyone who falls within the Settlement Class definition and does not submit a
11 Request for Exclusion in complete accordance with the deadlines and other specifications set forth in 12 this Order and the Settlement Agreement shall remain a Settlement Class Member and shall be 13 bound by all proceedings, orders, and judgments of this Court pertaining to the Settlement Class. 14
14.
Any Settlement Class Member who wishes to object to the proposed Settlement must
15 send or file an objection with this Court. Objections must contain all information described in the 16 Settlement Agreement. The envelope containing the Objection to the Settlement must be postmarked 17 on or before the date set forth in the Notice, which shall be forty-five (45) days after completion of 18 mailing (or re-mailing, in the case of Notices returned undeliverable) of the Notice pursuant to the 19 Settlement Agreement. Objections may otherwise be filed within forty-five (45) days after 20 completion of mailing (or re-mailing) of the Notice pursuant to the Settlement Agreement. Only 21 Settlement Class Members may object to the Settlement. A copy of such papers being filed in 22 support of any Objection shall also be mailed to Class Counsel and Defense Counsel within the 23 forty-five (45) day period set forth herein. 24
15.
Any Settlement Class Member who does not submit an Objection to the Settlement
25 in complete accordance with this Order and the applicable provisions of the Settlement Agreement 26 shall not be permitted to object to the settlement. 27
16.
Any objecting Settlement Class Member may appear at the hearing on the fairness of
28 the proposed settlement (the “Fairness Hearing”) held by the Court, in person or by counsel, to show CBM-MERCEDES\SF671310-6
Case No. 14-CV-02349 TEH -4[PROPOSED ORDER] PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT AGREEMENT
Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 51 of 53 EXHIBIT C – PROPOSED PRELIMINARY APPROVAL ORDER 1 cause why the Settlement Agreement should not be approved as fair, reasonable and adequate, or to 2 object to any petitions for attorney fees and reimbursement of litigation costs and expenses; 3 provided, however, that the objecting Settlement Class Member must mail or file with the Clerk of 4 the Court, a notice of intention to appear at the Fairness Hearing (a “Notice of Intention to Appear”) 5 on or before the date set forth in the Notice, which shall be forty-five (45) days after the completion 6 of mailing (or re-mailing) of the Notice pursuant to the Settlement Agreement. The Notice of 7 Intention to Appear must include all information and documents required by the Settlement 8 Agreement. Any Settlement Class Member who does not provide a Notice of Intention to Appear in 9 complete accordance with the deadlines and other specifications set forth in the Settlement 10 Agreement, and who has not filed an Objection to the Settlement in complete accordance with the 11 deadlines and other specifications set forth in the Settlement Agreement, will be barred from 12 speaking or otherwise presenting any views at any Fairness Hearing. 13
17.
KCC shall also have the obligations otherwise enumerated in the Settlement
14 Agreement. 15
18.
Class Counsel shall file with the Court their petition for payment of attorneys’ fees
16 and reimbursement of litigation costs and expenses no later than thirty (30) days before the 17 expiration of the deadline for submitting opt-outs from and Objections to the Settlement Agreement. 18 This request shall be consistent with the provisions of Section 5 of the Settlement Agreement. 19
19.
Fourteen (14) days prior to the date set for the Fairness Hearing, Plaintiff shall file a
20 motion for judgment and final approval of the Settlement. The parties shall file their briefs in support 21 of settlement approval, as well as any supplemental briefs supporting Class Counsel’s motion for 22 attorneys’ fees and reimbursement of litigation costs, at that time. The briefing shall include the 23 parties’ responses to any Objections, as well as a declaration setting forth the number of Settlement 24 Class members who opted-out of the Settlement Class. Such briefing shall be served on any other 25 attorneys who have entered an appearance in this proceeding, and on any member of the Settlement 26 Class to whose Objection to the Settlement the memoranda or other briefing responds. 27
If any Settlement Class Members object or opt-out after Plaintiff files the motion for final
28 approval, the parties shall file supplemental briefing no later than seven (7) days prior to the date set CBM-MERCEDES\SF671310-6
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Case 3:14-cv-02349-TEH Document 64-2 Filed 02/01/16 Page 52 of 53 EXHIBIT C – PROPOSED PRELIMINARY APPROVAL ORDER 1 for the Fairness Hearing, setting forth the parties’ responses to such Objections and the number of 2 opt-outs. If appropriate, the parties shall include supplemental briefing on Class Counsel’s motion 3 for attorney’s fees at that time. 4
20.
On ___________, 2016, the Court will hold the Fairness Hearing. It shall be held in
5 Courtroom 12 of the United States Courthouse, 450 Golden Gate Avenue, San Francisco, California 6 94102 at a time and place to be set forth in the Mailed Notice. The Fairness Hearing may be 7 continued or rescheduled by the Court with notice to Class Counsel and Defense Counsel and to any 8 objecting Settlement Class Member who has filed a Notice of Intention to Appear in accordance 9 with Paragraph 16 of this Order. At the Fairness Hearing, or as soon thereafter as practicable, the 10 Court will determine whether the proposed settlement is fair, reasonable, and adequate and should be 11 approved by the Court. At the Fairness Hearing, the Court will also consider the amount of attorney 12 fees and expenses that should be awarded to Class Counsel. If appropriate, the Court will issue a 13 Final Order and Judgment memorializing its decision, in the form contemplated by the Settlement 14 Agreement. 15
21.
Pending further orders by this Court, all proceedings in this case shall be stayed,
16 except for proceedings pursuant to this Order. A stay is warranted because it will conserve the 17 parties’ and various courts’ resources, minimize interference with this Court’s ability to rule on the 18 proposed Settlement, and preserve the Settlement for a short period of time while class members 19 receive notice and evaluate their options. A standstill of litigation will be efficient, promotes the 20 public policy favoring settlement and aids resolution of claims on a nationwide basis, which is in the 21 public interest. 22
As directed in Paragraph 3, the nationwide class is provisionally certified, and all members
23 of the Settlement Class under the jurisdiction of this Court are enjoined from commencing and 24 thereafter prosecuting any action, suit, proceeding, claim, or cause of action (except those based on 25 or relating to personal injury or wrongful death), in any jurisdiction or court against Defendant or the 26 Released Parties relating to or arising out of the subject matter of this action until such time as the 27 class is decertified or pursuant to further orders of this Court. 28
22.
Class Counsel and Defense Counsel are authorized to establish other means
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IT IS SO ORDERED.
3 Dated: _________________, 2016 4 _______________________ Hon. Thelton E. Henderson United States District Judge
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CBM-MERCEDES\SF671310-6
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