Soto et al v. American Honda Motor Co., Inc.

Filing 116

ORDER GRANTING JOINT MOTION TO PARTIALLY REOPEN THE FINAL JUDGMENT FOR THE SOLE PURPOSE OF PROVIDING DIRECT NOTICE TO SETTLEMENT CLASS MEMBERS IN WASHINGTON STATE TO WHOM DIRECT NOTICE WAS INADVERTENTLY NOT MADE 114 115 (Illston, Susan) (Filed on 12/7/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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VINCE EAGEN, on behalf of himself and all
others similarly situated,

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Plaintiff,
v.
AMERICAN HONDA MOTOR CO., INC.,
Defendant.

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Case No. 3:12-CV-01377-SI
Assigned to: Hon. Susan Illston
ORDER GRANTING JOINT MOTION
TO PARTIALLY REOPEN THE FINAL
JUDGMENT FOR THE SOLE PURPOSE
OF PROVIDING DIRECT NOTICE TO
SETTLEMENT CLASS MEMBERS IN
WASHINGTON STATE TO WHOM
DIRECT NOTICE WAS
INADVERTENTLY NOT MADE

The parties' joint motion to partially reopen the final judgment is scheduled for a hearing on
December 18, 2015. Pursuant to Civil Local Rule 7-1(b), the Court determines that the matter is
appropriate for resolution without oral argument, and VACATES the hearing.

The Court

GRANTS the motion.

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DISCUSSION
The parties to the above-captioned litigation (the “Litigation”) entered into a Class Action
Settlement Agreement and Release, dated September 9, 2013, together with exhibits (collectively,
the “Settlement Agreement”), that set forth the terms and conditions for a proposed settlement.
The Settlement Agreement was submitted to this Court on September 11, 2013 (Dkt. 73-1). Unless
otherwise defined herein, terms and phrases in this Order shall have the same meaning as ascribed
to them in the Settlement Agreement, which is incorporated herein by reference.

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211079532v.1

[PROPOSED] ORDER GRANTING JOINT MOTION TO PARTIALLY REOPEN THE FINAL JUDGMENT FOR
THE SOLE PURPOSE OF PROVIDING DIRECT NOTICE TO SETTLEMENT CLASS MEMBERS IN
WASHINGTON STATE TO WHOM DIRECT NOTICE WAS INADVERTENTLY NOT MADE

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The Settlement Agreement provides Settlement Class Members full cash reimbursement of
out-of-pocket expenses for repairs incurred relating to Engine Misfire, i.e.:

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the alleged condition in the Settlement Class Vehicles equipped with
engines with variable cylinder management (“VCM-2”) where the
cycling of the cylinder under certain drive conditions allows for spark
plug cooling, which may result in carbon fouling of the spark plugs,
and is defined by the diagnostic trouble code (“DTC”) numbers P0301,
P0302, P0303, or P0304.

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Settlement Agreement (Dkt. 73-1) at Section I(I). This specific form of relief required Settlement

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Class Members1, who did not exclude themselves from the settlement, to submit to the Settlement

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Administrator a signed Claim Form together with proof of payment and documentation indicating

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the date of the repair. Id. at Sections III(B) & IV(B).

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Separately, the Settlement Agreement provides to all Settlement Class Members (who did

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not exclude themselves) a three-year extension of the Settlement Class Vehicles’ 5-year / 60,000

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mile Powertrain Warranty as to Engine Misfire for a total of eight (8) years from the original

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purchase or lease date with no mileage limitation. Id. at Section III(A).

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On October 9, 2013, the Court entered its Order Preliminarily Approving Class Action

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Settlement (“Preliminary Approval Order”) (Dkt. 89) and also specified the manner by which

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Defendant American Honda Motor Co., Inc. (“AHM”) was to provide notice to the Settlement

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Class Members.

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Specifically, the Preliminary Approval Order, incorporating the Settlement

The Settlement Agreement defines the Settlement Class Members as:
All purchasers and lessees who reside in, and who purchased or leased their vehicles
in the United States (other than for purposes of resale or distribution), of any: (a)
Model-Year 2008, 2009, 2010, 2011, and 2012 Honda Accord vehicles equipped with
a 6-cylinder engine with VCM-2; (b) Model-Year 2008, 2009, 2010, 2011, 2012, and
2013 Honda Odyssey vehicles equipped with a 6-cylinder engine with VCM-2; (c)
Model-Year 2009, 2010, 2011, 2012, and 2013 Honda Pilot vehicles equipped with a
6-cylinder engine with VCM-2; (d) Model-Year 2010 and 2011 Honda Accord
Crosstour vehicles equipped with a 6-cylinder engine with VCM-2; and (e) Model
Year 2012 Crosstour vehicles equipped with a 6-cylinder engine with VCM-2.

The Settlement Agreement excluded from the Settlement Class: (1) Honda; (2) any affiliate,
parent, or subsidiary of Honda; (3) any entity in which Honda has a controlling interest; (4) any
officer, director, or employee of Honda; (5) any successor or assign of Honda; (6) any Judge to
whom the Litigation is assigned; (7) anyone who purchased a Settlement Class Vehicle for the
purpose of resale; and (8) any owners or lessees of Settlement Class Vehicles that were not
distributed for sale or lease in the United States.

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[PROPOSED] ORDER GRANTING JOINT MOTION TO PARTIALLY REOPEN THE FINAL JUDGMENT FOR
THE SOLE PURPOSE OF PROVIDING DIRECT NOTICE TO SETTLEMENT CLASS MEMBERS IN
WASHINGTON STATE TO WHOM DIRECT NOTICE WAS INADVERTENTLY NOT MADE

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Agreement, required AHM to “mail[] or arrang[e] for the mailing by first-class mail, postage
prepaid of the Notice and Claim Form from the information complied from the Class List to each
Settlement Class member on the Class List.” (Dkt. No. 73-1, Settlement Agreement, Section IV.)

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After entry of the Preliminary Approval Order directing dissemination of Notice in
accordance with the Notice plan set forth in the Settlement Agreement, the Settlement
Administrator caused the Notice to be mailed to Settlement Class Members via first class U.S.
Mail, postage prepaid. (See Dkt. 106 ¶¶ 4-7.) Settlement Class Members’ mailing addresses were
obtained via a good faith search of Department of Motor Vehicle registration data for each State,
the District of Columbia, Puerto Rico and Saipan, and procedures were put into place for updating
mailing addresses and the handling of returned mail. (Id.) In addition, a dedicated settlement
website containing the Settlement Agreement, the Notice, the Claim Form, and other relevant
settlement and Court documents was created, and a toll-free telephone number with live-agent
support and prerecorded frequently asked questions dedicated to this settlement was also put into
place. (Id. ¶¶ 8-9, 12.) Both remain operative to this day. (Id. ¶¶ 10, 12.)

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Following the dissemination of the Notice, and the posting of the Notice on the settlement
website, Settlement Class Members were given an opportunity to: (i) submit timely requests for
exclusion from the Settlement Class; or (ii) object to the Settlement Agreement (including the
Class Counsel Fees and Expenses Award and Named Plaintiff’s Incentive Award) and provide
notice of their intent to appear at the Final Approval Hearing.

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From among a Settlement Class of over 1.87 million current or former owners or lessees of
Settlement Class Vehicles (Dkt. 106, ¶ 4-5), the Court reviewed each of the objection letters
submitted by the parties (Dkt. 103-2; 104-4; 104-5; 106-1; 106-2), which were less than 25 in
number—some of which were procedurally deficient, and one of which was withdrawn (see Dkt.
103 at 1 n.1; 104 ¶¶ 9-12). The Court also received from the Settlement Administrator copies of
two-hundred and eighteen (218) requests for exclusion from the settlement (Dkt. 104 ¶¶ 5-6; 104-1;
104-2).
The Final Approval Hearing was held on March 21, 2014, at 9:00 a.m. No Settlement Class

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[PROPOSED] ORDER GRANTING JOINT MOTION TO PARTIALLY REOPEN THE FINAL JUDGMENT FOR
THE SOLE PURPOSE OF PROVIDING DIRECT NOTICE TO SETTLEMENT CLASS MEMBERS IN
WASHINGTON STATE TO WHOM DIRECT NOTICE WAS INADVERTENTLY NOT MADE

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Members provided notice of their intent to appear at the Final Approval Hearing to object to, or
otherwise comment on, the settlement, and, in fact, no Settlement Class Members did appear at the
Final Approval Hearing.
On March 27, 2014, following the March 21, 2014 Final Approval Hearing, the Court
issued its Order Granting Final Approval of Class Action Settlement and Application for
Attorneys’ Fees, and Class Representative Payment, and Final Judgment and Order of Dismissal
with Prejudice (“Final Order and Judgment”) (Dkt. 109). The Final Order and Judgment approved
the settlement described in the Settlement Agreement.
On November 18, 2015, the parties filed a Joint Motion to Partially Reopen the Final Order
and Judgment for the Sole Purpose of Providing Direct Notice to Settlement Class Members in
Washington State to Whom Direct Notice Was Inadvertently Not Made (the “Motion”). The
Motion is made on the grounds that the vendor hired by AHM to mail settlement class Notice to all
Settlement Class Members in the nationwide settlement class inadvertently failed to mail notice to
the Settlement Class Members with Settlement Class Vehicles registered in the state of Washington
(the “Omitted Owner Group”), and the requested relief is necessary to ensure that the Omitted
Owner Group is afforded an opportunity to exercise all rights afforded to them under the
Settlement Agreement and the Final Order and Judgment entered in this case.
Accordingly, the parties move the Court to exercise its powers under Rules 60(b)(6) and
23(d)(2) of the Federal Rules of Civil Procedure to: (1) partially reopen the Final Order and
Judgment for the sole purpose of permitting supplemental notice of the Settlement to be directly
mailed to the Omitted Owner Group, and afford an opportunity for them to be heard; (2) approve
the supplemental settlement Notice to the Omitted Owner Group that is attached to this Order;
(3) approve a schedule for members of the Omitted Owner Group to take action, if desired,
concerning the settlement; and (4) grant all other appropriate relief.
The Court has read and considered the Motion, and all documents and evidence in support,
including the revised supplemental Notice and revised Claim Form, and finds that there is
sufficient basis to grant the relief requested in the Motion.

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[PROPOSED] ORDER GRANTING JOINT MOTION TO PARTIALLY REOPEN THE FINAL JUDGMENT FOR
THE SOLE PURPOSE OF PROVIDING DIRECT NOTICE TO SETTLEMENT CLASS MEMBERS IN
WASHINGTON STATE TO WHOM DIRECT NOTICE WAS INADVERTENTLY NOT MADE

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NOW THEREFORE, for good cause shown, the Court GRANTS the Motion and makes the
following findings and orders:
1.

The Final Order and Judgment (Dkt. 109) remains in all respects final as to all

parties other than the Omitted Owner Group.
2.

The Court hereby partially reopens the Final Order and Judgment solely as to the

Omitted Owner Group consisting of:

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All purchasers and lessees who reside in the State of Washington, and
who purchased or leased their vehicles in the United States (other than
for purposes of resale or distribution), of any: (a) Model-Year 2008,
2009, 2010, 2011, and 2012 Honda Accord vehicles equipped with a
6-cylinder engine with VCM-2; (b) Model-Year 2008, 2009, 2010,
2011, 2012, and 2013 Honda Odyssey vehicles equipped with a 6cylinder engine with VCM-2; (c) Model-Year 2009, 2010, 2011, 2012,
and 2013 Honda Pilot vehicles equipped with a 6-cylinder engine with
VCM-2; (d) Model-Year 2010 and 2011 Honda Accord Crosstour
vehicles equipped with a 6-cylinder engine with VCM-2; and (e)
Model Year 2012 Crosstour vehicles equipped with a 6-cylinder
engine with VCM-2.

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Excluded from the Omitted Owner Group are: (1) AHM; (2) any affiliate, parent, or subsidiary of

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AHM; (3) any entity in which AHM has a controlling interest; (4) any officer, director, or

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employee of AHM; (5) any successor or assign of AHM; (6) any Judge to whom the Litigation is

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assigned; (7) anyone who purchased a Settlement Class Vehicle for the purpose of resale; (8) any

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owners or lessees of Settlement Class Vehicles that were not distributed for sale or lease in the

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United States; and (9) any Settlement Class Members that previously received Notice.

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3.

The parties stipulate, and Court approves, the Settlement Administrator being

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charged with mailing Supplemental Notice to the Omitted Owner Group, and administering the

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relief to the Omitted Owner Group provided in the Settlement Agreement, pursuant to the terms of

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that agreement and pursuant to the Final Judgment and Order. AHM, or its indemnitees, will bear

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all costs and expenses related to the supplemental Notice.

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4.

The

Settlement

Administrator

will

continue

to

maintain

the

website

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(www.enginemisfiresettlement.com), which makes available documents relating to the settlement

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(including the supplemental Notice and revised Claim Form) available for download.

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5.

The Court hereby approves the form of the supplemental Notice, without material

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[PROPOSED] ORDER GRANTING JOINT MOTION TO PARTIALLY REOPEN THE FINAL JUDGMENT FOR
THE SOLE PURPOSE OF PROVIDING DIRECT NOTICE TO SETTLEMENT CLASS MEMBERS IN
WASHINGTON STATE TO WHOM DIRECT NOTICE WAS INADVERTENTLY NOT MADE

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alteration from Exhibit D annexed to the Declaration of Michael B. Shortnacy filed concurrently
with the Joint Motion to Partially Reopen the Judgment (Dkt. 114-6), and the procedure for
disseminating supplemental Notice to the Omitted Owner Group. The parties are directed to
correct the time of the supplemental hearing at stated in the supplemental Notice; the supplemental
hearing shall be held on April 22, 2016 at 10:00 a.m.

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6.

The Court finds that the supplemental Notice posted on the Website and mailed to

the Omitted Owner Group informs the Omitted Owner Group of the material terms of the
Settlement Agreement and their rights and responsibilities in connection with the settlement, and
further finds that the supplemental Notice: (i) is the best practicable notice; (ii) is reasonably
calculated, under the circumstances, to apprise members of the Omitted Owner Group of the
existence of the Litigation and of their right to object or to exclude themselves from the proposed
settlement; (iii) is reasonable, and constitutes due, adequate and sufficient notice to all persons
entitled to receive notice; and (iv) meets all applicable requirements of Due Process and applicable
law.
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Pursuant to Rule 23(c)(2)(B) and Rule 23(e), the Court orders that the Settlement

Administrator mail the supplemental Notice via postage prepaid first class U.S. mail to the persons
on the Omitted Owner Group list, and that such mailing be completed no later than January 29,
2016. The supplemental Notice shall be accompanied by a Claim Form that does not materially
differ from the form annexed as Exhibit F to Declaration of Michael B. Shortnacy filed
concurrently with AHM’s Motion to Partially Reopen the Judgment.
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The Court further orders the posting of the supplemental Notice and revised Claim

Form on the Website as promptly as practicable subsequent to the date of entry of this Order. The
Court further orders the Settlement Administrator to file with the Court proof of mailing of the
supplemental Notice and publication of both the supplemental Notice and revised Claim Form on
the Website at or before the Supplemental Hearing.
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The Court orders each member of the Omitted Owner Group who has not submitted

a timely request for exclusion from the Settlement Class and who wishes to object to the fairness,

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[PROPOSED] ORDER GRANTING JOINT MOTION TO PARTIALLY REOPEN THE FINAL JUDGMENT FOR
THE SOLE PURPOSE OF PROVIDING DIRECT NOTICE TO SETTLEMENT CLASS MEMBERS IN
WASHINGTON STATE TO WHOM DIRECT NOTICE WAS INADVERTENTLY NOT MADE

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reasonableness or adequacy of the Settlement Agreement as to the Omitted Owner Group only, to:
(i) mail to the Settlement Administrator, and serve upon Class Counsel and AHM’s Counsel at the
addresses listed on the supplemental Notice, (ii) postmarked no later than March 15, 2016, (iii) a
statement of the objection signed by the member of the Omitted Owner Group and containing all of
the following information:
(a) the objector’s full name, current address and telephone number;
(b) identify the date of acquisition and Vehicle Identification Number for his, her or its
Settlement Class Vehicle;
(c) state that the objector has reviewed the Settlement Class definition and understands that
he, she or it is a member of the Omitted Owner Group;
(d) provide a written statement of all grounds for the objection accompanied by any legal
support for such objections;
(e) copies of any papers, briefs or other documents upon which the objection is based; and
(f) a statement of whether the objector intends to appear at the Supplemental Hearing.
10.

In addition, any member of the Omitted Owner Group objecting to the settlement

shall provide a list of all other objections submitted by the objector and/or by the objector’s
counsel, to any class action settlements submitted in any state or federal court in the United States
in the previous five (5) years. If the member of the Omitted Owner Group or his, her or its counsel
has not objected to any other class action settlement in the previous five years, he, she or it shall
affirmatively so state in the objection.
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No later than March 30, 2016, the Settlement Administrator will submit to the Court

all objections it received from members of the Omitted Owner Group.
12.

Any member of the Omitted Owner Group who does not both provide a notice of

intention to appear in accordance with the deadlines and other specifications set forth in the
supplemental Notice, and file an objection in accordance with the deadlines and other
specifications set forth in the Settlement Agreement and the supplemental Notice (as applicable),
will be deemed to have waived any objections to the settlement, and shall be foreclosed from

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[PROPOSED] ORDER GRANTING JOINT MOTION TO PARTIALLY REOPEN THE FINAL JUDGMENT FOR
THE SOLE PURPOSE OF PROVIDING DIRECT NOTICE TO SETTLEMENT CLASS MEMBERS IN
WASHINGTON STATE TO WHOM DIRECT NOTICE WAS INADVERTENTLY NOT MADE

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seeking any adjudication or review of the settlement by appeal or otherwise, subject to the
discretion of the Court.
13.

The submission of an objection shall allow Class Counsel or AHM’s Counsel to

take the deposition of the objecting member of the Omitted Owner Group pursuant to the Federal
Rules of Civil Procedure at an agreed-upon time and location, and to obtain any evidence relevant
to the objection. Failure by an objector to make himself or herself available for a deposition or
comply with expedited discovery requests may result in the Court striking the objection. The Court
may tax the costs of any such discovery to the objector or the objector’s counsel if the Court
determines that the objection is frivolous or is made for an improper purpose.
14.

Members of the Omitted Owner Group may exclude themselves from the settlement

(i.e., “Opt-Out”), relinquishing their rights to any benefits under the Settlement Agreement. A
member of the Omitted Owner Group wishing to exclude himself, herself or itself must send the
Settlement Administrator a letter postmarked no later than March 15, 2016, containing: (i) the
name of the member of the Omitted Owner Group, current address, and telephone number; (ii) the
approximate date of acquisition and VIN for his, her or its Settlement Class Vehicle; and (iii) a
clear statement communicating that he, she or it elects to be excluded from the Settlement Class,
does not wish to be a Settlement Class Member and elects to be excluded from any amended final
judgment entered pursuant to the settlement.
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Any request for exclusion must be postmarked no later than March 15, 2016. Any

member of the Omitted Owner Group who does not submit a timely, written Opt-Out from the
Omitted Owner Group in accordance with the requirements set forth in the Notice will be bound by
all proceedings, orders, and judgments in the Litigation, even if such member of the Omitted
Owner Group has previously initiated or subsequently initiates individual litigation or other
proceedings encompassed by the Release and the Released Claims, as defined in the Settlement
Agreement.
16.

Not later than March 30, 2016, the Settlement Administrator shall provide the

Court, Class Counsel and AHM’s Counsel a list identifying each member of the Omitted Owner

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[PROPOSED] ORDER GRANTING JOINT MOTION TO PARTIALLY REOPEN THE FINAL JUDGMENT FOR
THE SOLE PURPOSE OF PROVIDING DIRECT NOTICE TO SETTLEMENT CLASS MEMBERS IN
WASHINGTON STATE TO WHOM DIRECT NOTICE WAS INADVERTENTLY NOT MADE

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Group who submitted an exclusion request together with copies of the exclusion requests together
with a declaration attesting to the completeness and accuracy thereof.
17.

The Court hereby enjoins members of the Omitted Owner Group from asserting

Engine Misfire claims as set forth in the Second Amended Complaint (and anyone who purports to
act on the behalf of any such member of the Omitted Owner Group) unless and until they have
timely excluded themselves from the Settlement Class as set forth in the Notice: (i) from filing,
commencing, prosecuting, intervening in or participating as plaintiff, claimant or class member in
any other lawsuit or administrative, regulatory, arbitration or other proceeding in any jurisdiction
based on, relating to or arising out of the claims and causes of action asserted by the Second
Amended Complaint, or the facts and circumstances alleged in the Second Amended Complaint,
and/or the Released Claims; (ii) from filing, commencing or prosecuting a lawsuit or
administrative, regulatory, arbitration or other proceeding as a class action on behalf of any
members of the Omitted Owner Group who have not timely excluded themselves (including by
seeking to amend a pending complaint to include class allegations or seeking class certification in a
pending action), based on, relating to or arising out of the claims and causes of action asserted by
the Second Amended Complaint, or the facts and circumstances alleged in the Second Amended
Complaint, and/or the Released Claims; and (iii) from attempting to effect an opt-out of a class of
individuals in any lawsuit or administrative, regulatory, arbitration or other proceeding based on,
relating to or arising out of the claims and causes of action asserted by the Second Amended
Complaint, or the facts and circumstances alleged in the Second Amended Complaint, and/or the
Released Claims.
18.

The Court hereby directs the Settlement Administrator to maintain a post office box

in the name of the Settlement Administrator to be used for receiving requests for exclusion,
objections, notices of intention to appear and any other communications.
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The Court hereby approves the revised Claim Form, which is annexed as Exhibit F

to the Declaration of Michael B. Shortnacy filed concurrently with, and in support of, the Motion.
20.

The parties shall file any memoranda or other materials in response to any timely

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[PROPOSED] ORDER GRANTING JOINT MOTION TO PARTIALLY REOPEN THE FINAL JUDGMENT FOR
THE SOLE PURPOSE OF PROVIDING DIRECT NOTICE TO SETTLEMENT CLASS MEMBERS IN
WASHINGTON STATE TO WHOM DIRECT NOTICE WAS INADVERTENTLY NOT MADE

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and properly filed objection to the Settlement Agreement by a member of the Omitted Owner
Group, no later than April 8, 2016. Such materials shall be served on Class Counsel, AHM’s
Counsel, and on any member of the Omitted Owner Group (or his, her or its counsel, if
represented) to whose objection to the Settlement Agreement the memoranda or other materials
respond.
21.

Pursuant to Rule 23(e)(2) of the Federal Rules of Civil Procedure and in accordance

with 28 U.S.C. § 1715(d), the Court sets April 22, 2016 at 10:00 a.m., as the date and time of the
Supplemental Hearing, at which the Court will determine whether there is any reason not to issue
an Order entering an amended Final Approval Order and Judgment as to the Omitted Owner
Group. The Supplemental Hearing shall be held at the United States District Court, Northern
District of California, San Francisco Courthouse, Courtroom 10 - 19th Floor, 450 Golden Gate
Avenue, San Francisco, CA 94102.
22.

The Court reserves the right to adjourn or continue the Supplemental Hearing, or

any further adjournment or continuance thereof, and to approve modifications to the Settlement
Agreement as applied to the Omitted Owner Group, if any, consented to by the Class Counsel and
AHM’s Counsel without further notice.

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IT IS SO ORDERED.

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Dated: December 7, 2015

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SUSAN ILLSTON
UNITED STATES DISTRICT JUDGE

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[PROPOSED] ORDER GRANTING JOINT MOTION TO PARTIALLY REOPEN THE FINAL JUDGMENT FOR
THE SOLE PURPOSE OF PROVIDING DIRECT NOTICE TO SETTLEMENT CLASS MEMBERS IN
WASHINGTON STATE TO WHOM DIRECT NOTICE WAS INADVERTENTLY NOT MADE