Jekowsky v. BMW of North America, LLC

Filing 117

ORDER by Judge Chhabria granting 101 Motion for Final Settlement Approval. (vclc1S, COURT STAFF) (Filed on 11/10/2016)

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KEMNITZER, BARRON, & KRIEG, LLP
BRYAN KEMNITZER
Bar No. 066401
NANCY BARRON
Bar No. 099278
ELLIOT CONN
Bar No. 279920
445 Bush St., 6th Floor
San Francisco, CA 94108
Telephone: [phone]
Facsimile: [phone]

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CHAVEZ & GERTLER LLP
MARK A. CHAVEZ
Bar No. 090858
42 Miller Avenue
Mill Valley, CA 94941
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff Barry Jekowsky and the proposed class

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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BARRY JEKOWSKY, individually and on
behalf of all others similarly situated,

CLASS ACTION
Plaintiffs,

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Case No. 3:13-cv-02158-VC

ORDER CERTIFYING CLASS FOR
SETTLEMENT PURPOSES, GRANTING
FINAL APPROVAL OF CLASS
SETTLEMENT, AND ENTERING FINAL
JUDGMENT

vs.
BMW OF NORTH AMERICA, LLC, and
BAYERISCHE MOTOREN WERKE AG,
Defendants

Date: November 10, 2016
Time: 10:00 a.m.
Dept.: Courtroom 4, 17th Floor
Hon. Vince Chhabria

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____________________________________

THIS MATTER HAVING come before the Court for a hearing on November 10, 2016

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pursuant to the Motion for Final Approval, filed to determine whether the Settlement Agreement

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between the named Plaintiff (“Plaintiff”), BARRY JEKOWSKY individually and on behalf of

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the proposed Settlement Class (“Class”), and Defendant BMW OF NORTH AMERICA, LLC

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(“BMW”) dated March 11, 2016 (“Settlement Agreement”) is fair and reasonable, and should be
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approved as being in the best interests of the Class, and for the purpose of determining attorneys’
fees and costs to be awarded, and for approval of all other matters contained therein. Notice of
the hearing, the Settlement and application for attorneys’ fees and reimbursement of expenses
having been given pursuant to the Settlement and as set forth in this Court’s Preliminary
Approval Order of March 15, 2016; all persons present or represented at the hearing, who were
entitled to be heard having been given an opportunity to be heard; counsel for the parties having
appeared in support of the Settlement; and the Court having considered all documents filed in
support of the Settlement and fully considered all matters raised, all exhibits and affidavits filed
and all evidence received at the hearing, all other papers and documents comprising the record
herein, and all oral arguments presented to the Court,

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IT IS ORDERED, ADJUDGED AND DECREED on this 10th day of November 2016,
that:

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1.

terms used in this Order shall have the meanings and/or definitions given to them in the
Settlement Agreement, as submitted to the Court with the Motion for Preliminary Approval of
Class Action Settlement.

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This Final Judgment incorporates the Settlement Agreement, and the capitalized

2.

This Court has jurisdiction over the subject matter of this action and over all

parties to this action, including all members of the Settlement Class as that term is defined
herein.
3.

This Court certifies this action, for settlement purposes only, as a Class Action.

4.

The following Settlement Class, provisionally certified by the Court in its Order

dated March 15, 2016, is hereby certified under Federal Rule of Civil Procedure 23(c) and (e) for
settlement purposes only, this Court hereby certifies a Settlement Class, defined as follows and
subject to the stated exclusions below:
The phrase “Settlement Class” is defined as follows:

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All current and former owners or lessees of the 288 Class Vehicles in the United
States (including Puerto Rico) who did not or may not have received mailed
notice of the First Settlement.

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The phrase “Class Vehicle” is defined as follows:
2009 through 2012 model year BMW Z4 vehicles that were sold or leased in the
United States or Puerto Rico to residents of the United States and Puerto Rico that
were equipped with Class Wheels either as original equipment, or that a Class
Member equipped with Class Wheels post-purchase.

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The phrase “Class Wheels” is defined as follows:

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BMW Style 296 wheels.

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Excluded from the Class are:

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1) BMW NA, its related entities, parent companies, subsidiaries and affiliates, and their
respective officers, directors, and employees;

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2) insurers of the Class Vehicles, Class Wheels, or tires installed on the Class Vehicle;

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3) all persons and/or entities claiming to be subrogated to the rights of Class Members;

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4) issuers or providers of extended vehicle warranties, issuers or providers of tire/wheel

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warranties, or issuers or providers of extended service contracts;

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5) individuals and/or entities who validly and timely opt-out of the Settlement;

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6) consumers or businesses that have purchased Class Vehicles previously deemed a total

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loss (i.e. salvage) (subject to verification through Carfax or other means);

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7) current and former owners of a Class Vehicle who previously have released their claims

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against BMW NA with respect to the issues raised in the Litigation (this exclusion does

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not limit a class member’s ability to file a claim for any otherwise eligible Out-Of-Pocket

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Cost the Class Member incurred to replace a cracked Class Wheel sustained after he or

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she signed the release);

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8) United States and Puerto Rico residents who have purchased Class Vehicles in the United

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States but have since transported the vehicle outside the United States for permanent use

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abroad;

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9) Rentals or company owned vehicles;

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10) any current or former owner or lessee of a Class Vehicle that has received or obtained a

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goodwill or warranty replacement of a cracked Class Wheel (unless the consumer had to

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pay or share in some portion of the cost of a goodwill replacement);
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11) any judge to whom this matter is assigned, and his or her immediate family (spouse,
domestic partner, or children);
12) individuals who purchased four replacement Class Wheels (two front, two rear) at the
same time to change from a different style Z4 wheel to a Class Wheel (this exclusion
does not limit a Class Member’s ability to make a claim under the terms and conditions
of the Settlement for an eligible Out-Of-Pocket Cost the Class Member subsequently
incurs to replace any of the four replacement Class Wheels that sustain a crack);
13) Class Vehicles that were involved in accidents that resulted in damage and subsequent
need to replace a Class Wheel; and
14) Members of the First Settlement Class.
5.

This Court finds on the record before it that the Class meets the requirements for

class certification for settlement purposes as the Class is so numerous that joinder of all members
is impracticable.
6.

This Court finds on the record before it that the Class meets the requirement for

class certification for settlement purposes as questions of law or fact common to the issues to be
reviewed in connection with the Settlement predominate over the questions affecting only
individual members for the purpose of implementing the Settlement in accordance with the
Settlement Agreement.
7.

This Court finds on the record before it that the Class meets the requirement for

class certification for settlement purposes as Plaintiff’s claims are typical of the claims of the
Class as a whole.
8.

This Court finds on the record before it, that the Class meets the requirements for

class certification for settlement purposes as Plaintiff and his Class Counsel have adequately
represented and will continue to adequately represent and protect the interests of the Class.
9.

This Court finds on the record before it that the Class is appropriate for

certification for settlement purposes as certification of the Class for settlement purposes is
superior to other available methods for the fair and efficient adjudication of the issues before this

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Court at this time. Manageability issues do not prevent certification here because there will be
no trial.
10.

The individual Notice of Class Action Settlement (“Class Notice”) by mail, given

to each member of the Class at updated mailing addresses, constitutes the best notice practicable
and is in full compliance with the requirements of the Federal Rules of Civil Procedure and due
process of law.
11.

This Court finds that the Settlement and the Settlement Agreement and Release

dated March 11, 2016 (“Settlement Agreement”) are the product of arm’s length negotiations
between the parties and that the terms thereof are fair, reasonable, adequate, and in the best
interests of the Class and are therefore approved and incorporated herein by the Court.
12.

The Settlement and Settlement Agreement should be implemented and

consummated in accordance with the terms of the Settlement Agreement. To the extent already
implemented by the parties, such implementation is hereby approved and ratified by the Court.
13.

Upon the date of Final Judgment, the Plaintiff and all Settlement Class Members

and their heirs, executors, estates, predecessors, successors, assigns, agents and representatives
shall be deemed to have jointly and severally released and forever discharged Released Parties
from any and all Released Claims as that term is defined in the Settlement Agreement.
14.

The terms of the Agreement and this Judgment shall be forever binding on, and

shall have res judicata effect in any pending or future lawsuits or proceedings that may be
brought or maintained by or on behalf of any Class Members. This Court hereby bars and
enjoins: (i) all Class Members, and all persons acting on behalf of, or in concert or participation
with such Class Members, from filing, commencing, prosecuting, intervening in, or participating
in, any lawsuit in any jurisdiction on behalf of any Class Member, based upon or asserting any of
the Released Claims; and (ii) all Class Members, and all persons acting on behalf of or in concert
or participation with such Class Members, from bringing a class action or seeking to certify a
class which includes such Class Members, in any lawsuit based upon or asserting any of the
Released Claims.

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15.

Attached to this Judgment as Exhibit 1 is a true and correct list of all Class

Members who timely submitted Requests for Exclusion. No Class Members, other than those
listed in Exhibit 1, are excluded from the Class, or from the effect of this Judgment.
16.

It is expressly determined that there is no just reason for delay and the entry of

this Judgment expressly is hereby directed. In the event that this Judgment is appealed, its
mandate will automatically be stayed until and unless the Judgment is affirmed in its entirety by
the court of last resort to which such appeal(s) has (have) been taken and such affirmance is no
longer subject to further appeal or review.
17.

This Final Order and Judgment is final for purposes of appeal and may be

appealed, and the Clerk is hereby directed to enter Judgment thereon.
18.

Attorneys’ fees and reimbursement of expenses to counsel for the Class in the

additional amount of $90,000.00 is hereby approved as fair and reasonable and BMW shall make
such payments in accordance with the terms of the Settlement Agreement.
19.

The Class Administrator will pay as cy pres the residue of any un-cashed checks

distributed, pursuant to the Settlement Agreement and Release to Legal Aid Foundation of Los
Angeles, a non-profit organization consistent with California Code of Civil Procedure §384.
20.

Any and all objections to the Settlement and the Settlement Agreement are

overruled for the reasons stated at the hearing.
21.

In the event that the Settlement does not become effective in accordance with the

terms of the Settlement Agreement, then this Judgment shall be rendered null and void and be
vacated and the Settlement Agreement and all orders entered in connection therewith shall be
rendered null and void.
22.

The Parties are directed to carry out their obligations under the Settlement

Agreement.
23.

The defendant shall submit a compliance declaration to plaintiff’s counsel by May

10, 2017.
24.

Class Counsel shall serve a copy of this Order on all named parties or their

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counsel within five (5) days of receipt.

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SO ORDERED
Dated: November 10, 2016
Hon. Vince Chhabria

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EXHIBIT 1
LIST OF CLASS MEMBERS WHO TIMELY REQUESTED EXCLUSION
None

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