Digby Adler Group LLC v. Mercedes-Benz USA, LLC

Filing 68

ORDER Granting 64 Motion for Preliminary Approval of Class Action Settlement. Fairness Hearing set for 8/29/2016, 10:00 AM. Signed by Judge Thelton E. Henderson on 03/01/16. (tehlc2, COURT STAFF) (Filed on 3/1/2016)

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4

DIGBY ADLER GROUP, LLC, et al.,
Plaintiffs,

5

v.

6
7

MERCEDES-BENZ U.S.A., LLC,
Defendant.

8
9

Case No. 14-cv-02349-TEH
ORDER GRANTING
PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT,
VACATING PRELIMINARY
APPROVAL HEARING, AND
SETTING FAIRNESS HEARING

Plaintiff moved this Court for an Order preliminarily approving the parties’

10

United States District Court
Northern District of California

11

settlement, certifying a settlement class, appointing settlement class counsel, setting a

12

hearing on the final approval of the settlement, and directing notice to the class (the

13

“Motion”). Mercedes-Benz USA, LLC (“MBUSA”) joined in Plaintiff’s request for an

14

order preliminarily approving the parties’ settlement. Upon considering the Motion, the

15

parties’ Class Action Settlement Agreement and Release and all exhibits thereto

16

(collectively, the “Settlement Agreement” or “Settlement”), the materials previously

17

submitted in this case, the arguments of counsel, and other materials relevant to this

18

matter, it is hereby ORDERED that:
1.

19
20

The Court grants preliminary approval of the Settlement based upon the

terms set forth in the Settlement Agreement filed herewith.
2.

21

The terms of the Settlement Agreement are sufficiently fair, reasonable, and

22

adequate to allow dissemination of the Notice according to the Notice Plan.1 This

23

determination is not a final finding that the Settlement Agreement is fair, reasonable, and

24

adequate, but instead is a determination that there is good cause to submit the proposed

25

Settlement Agreement to Settlement Class Members and to hold a hearing concerning final

26

approval of the proposed settlement, and ultimately approve the settlement.

27
1

28

To the extent capitalized terms are not defined in this Order, they shall have the
meaning set forth in the Settlement Agreement.

1

3.

The Parties have made a sufficient showing, under the provisions of Rule 23

2

of the Federal Rules of Civil Procedure, as applicable in the context of settlement classes,

3

to establish reasonable cause, following Notice to members of the proposed Settlement

4

Class, to hold a hearing to determine if a Class should be certified for settlement purposes

5

only, consisting of persons who meet the following criteria:
All current and former owners and lessees of model year 20102014 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.

6
7
8
9

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 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.

10

United States District Court
Northern District of California

11
12
13
14
15
16

If, for any reason, the proposed settlement is not approved, any order certifying a

17

settlement class shall be vacated nunc pro tunc and the Litigation shall proceed as though

18

the Settlement Class had never been certified, without prejudice to the Parties’ rights to

19

either request or oppose class certification for purposes of litigation.

20

4.

In making the findings set forth in Paragraph 3, the Court has exercised its

21

discretion in conditionally certifying the Settlement Class on a nationwide basis. Named

22

Plaintiff Benjamin Robles is designated as the Class Representative.

23

5.

The Court hereby appoints the following attorneys as counsel for the

24

Settlement Class: Jonathan E. Gertler, Dan L. Gildor, and Samuel P. Cheadle of Chavez &

25

Gertler LLP, and Anthony L. Label and Steven A. Kronenberg of The Veen Firm, P.C.,

26

and the successors of these law firms (collectively, “Class Counsel”). For purposes of

27

these settlement proceedings, the Court finds that the Chavez & Gertler LLP and The Veen

28

Firm, P.C., are competent and capable of exercising their responsibility as Class Counsel.
2

1
2
3

6.

This Court has both subject matter jurisdiction and personal jurisdiction as to

this action and all Parties before it.
7.

The Settlement Agreement is for settlement purposes only. Neither the fact

4

of, any provision contained in, nor any action taken under the Settlement Agreement shall

5

be construed as an admission of the validity of any claim or any factual allegation that was

6

or could have been made by Plaintiff and Settlement Class Members in the Action, or of

7

any wrongdoing, fault, violation of law, or liability of any kind on the part of Defendant or

8

the Released Persons. The Settlement Agreement shall not be offered or be admissible in

9

evidence by or against Defendant or the Released Persons or cited or referred to in any
other action or proceeding, except one (1) brought by or against the Parties to enforce or

11
United States District Court
Northern District of California

10

otherwise implement the terms of the Settlement Agreement, (2) involving any Plaintiff or

12

Settlement Class Member to support a defense of res judicata, collateral estoppel, release,

13

or other theory of claim preclusion, issue preclusion, or similar defense, or (3) involving an

14

attempt to enforce a stay of other litigation pursuant to the terms set forth in the Settlement

15

Agreement and the Court’s Order preliminarily approving the Settlement Agreement.

16

8.

The Notice and provisions for disseminating notice substantially as described

17

in and attached to the Settlement Agreement are hereby approved. The Court approves the

18

Notice attached as Exhibit A to the Settlement Agreement, as well as the Claim Form,

19

attached as Exhibit B to the Settlement Agreement. These materials (a) provide the best

20

practicable notice, (b) are reasonably calculated, under the circumstances, to apprise

21

Settlement Class Members of the pendency of the action, the terms of the proposed

22

settlement, and of their right to appear, object to, or exclude themselves from the proposed

23

settlement, (c) are reasonable and constitute due, adequate, and sufficient notice to all

24

persons entitled to receive notice, and (d) fully comply with federal law, the United States

25

Constitution, and all other applicable laws.

26

9.

KCC Class Action Services, LLC (“KCC”), selected pursuant to the terms of

27

the Settlement Agreement, shall be responsible for providing notice of the proposed

28

settlement to the Settlement Class Members in accordance with the provisions of the
3

1

Settlement Agreement and as directed under the Class Action Fairness Act (28 U.S.C. §

2

1715). MBUSA will pay KCC’s fees and costs.

3

10.

To comply with their obligations under the Settlement Agreement, the

4

parties must obtain vehicle registration information for Settlement Class Members for the

5

purpose of disseminating notice of the proposed settlement to those persons and entities.

6

MBUSA and KCC are hereby authorized to obtain vehicle registration information

7

concerning Settlement Class Members from R. L. Polk or a similar vendor for the sole

8

purpose of providing notice to those persons and entities.

9

11.

KCC shall mail the Notice to the identified Settlement Class Members per

the Notice Plan within sixty (60) days of the entry of this Order. On the same date, KCC

11
United States District Court
Northern District of California

10

will make an informational settlement website available to the public, which website will

12

include a copy of this order, the Notice, the Settlement Agreement, the Claim Form, and

13

other important documents. Within fifteen (15) days after the deadline to mail the Notice,

14

KCC shall file a declaration with the Court, attesting to the measures undertaken to

15

provide Notice to the Settlement Class and as directed by CAFA.

16

12.

Anyone who wishes to be excluded from the Settlement Class must submit a

17

written request for exclusion (as described in the Notice and Settlement Agreement) by

18

sending it to KCC Class Action Services, LLC, by First-Class U.S. mail to the address

19

provided in the Notice. Requests for exclusion must contain all information described in

20

the Settlement Agreement. The envelope containing the Request for Exclusion must be

21

postmarked on or before the date set forth in the Notice, which shall be forty-five (45) days

22

after the completion of mailing (or re-mailing, in the case of Notices returned

23

undeliverable) of the Notice pursuant to the Settlement Agreement. The Court shall rule

24

on the validity of exclusions at the Fairness Hearing.

25

13.

Anyone who falls within the Settlement Class definition and does not submit

26

a Request for Exclusion in complete accordance with the deadlines and other specifications

27

set forth in this Order and the Settlement Agreement shall remain a Settlement Class

28

4

1

Member and shall be bound by all proceedings, orders, and judgments of this Court

2

pertaining to the Settlement Class.

3

14.

Any Settlement Class Member who wishes to object to the proposed

4

Settlement must send or file an objection with this Court. Objections must contain all

5

information described in the Settlement Agreement. The envelope containing the

6

Objection to the Settlement must be postmarked on or before the date set forth in the

7

Notice, which shall be forty-five (45) days after completion of mailing (or re-mailing, in

8

the case of Notices returned undeliverable) of the Notice pursuant to the Settlement

9

Agreement. Objections may otherwise be filed within forty-five (45) days after
completion of mailing (or re-mailing) of the Notice pursuant to the Settlement Agreement.

11
United States District Court
Northern District of California

10

Only Settlement Class Members may object to the Settlement. A copy of such papers

12

being filed in support of any Objection shall also be mailed to Class Counsel and Defense

13

Counsel within the forty-five (45) day period set forth herein.

14

15.

Any Settlement Class Member who does not submit an Objection to the

15

Settlement in complete accordance with this Order and the applicable provisions of the

16

Settlement Agreement shall not be permitted to object to the settlement.

17

16.

Any objecting Settlement Class Member may appear at the hearing on the

18

fairness of the proposed settlement (the “Fairness Hearing”) held by the Court, in person or

19

by counsel, to show cause why the Settlement Agreement should not be approved as fair,

20

reasonable and adequate, or to object to any petitions for attorney fees and reimbursement

21

of litigation costs and expenses; provided, however, that the objecting Settlement Class

22

Member must mail or file with the Clerk of the Court, a notice of intention to appear at the

23

Fairness Hearing (a “Notice of Intention to Appear”) on or before the date set forth in the

24

Notice, which shall be forty-five (45) days after the completion of mailing (or re-mailing)

25

of the Notice pursuant to the Settlement Agreement. The Notice of Intention to Appear

26

must include all information and documents required by the Settlement Agreement. Any

27

Settlement Class Member who does not provide a Notice of Intention to Appear in

28

complete accordance with the deadlines and other specifications set forth in the Settlement
5

1

Agreement, and who has not filed an Objection to the Settlement in complete accordance

2

with the deadlines and other specifications set forth in the Settlement Agreement, will be

3

barred from speaking or otherwise presenting any views at any Fairness Hearing.

4
5
6

17.

KCC shall also have the obligations otherwise enumerated in the Settlement

Agreement.
18.

Class Counsel shall file with the Court their petition for payment of

7

attorneys’ fees and reimbursement of litigation costs and expenses no later than thirty (30)

8

days before the expiration of the deadline for submitting opt-outs from and Objections to

9

the Settlement Agreement. This request shall be consistent with the provisions of Section

10

United States District Court
Northern District of California

11

5 of the Settlement Agreement.
19.

Fourteen (14) days prior to the date set for the Fairness Hearing, Plaintiff

12

shall file a motion for judgment and final approval of the Settlement. The parties shall file

13

their briefs in support of settlement approval, as well as any supplemental briefs supporting

14

Class Counsel’s motion for attorneys’ fees and reimbursement of litigation costs, at that

15

time. The briefing shall include the parties’ responses to any Objections, as well as a

16

declaration setting forth the number of Settlement Class members who opted-out of the

17

Settlement Class. Such briefing shall be served on any other attorneys who have entered

18

an appearance in this proceeding, and on any member of the Settlement Class to whose

19

Objection to the Settlement the memoranda or other briefing responds.

20

If any Settlement Class Members object or opt-out after Plaintiff files the motion

21

for final approval, the parties shall file supplemental briefing no later than seven (7) days

22

prior to the date set for the Fairness Hearing, setting forth the parties’ responses to such

23

Objections and the number of opt-outs. If appropriate, the parties shall include

24

supplemental briefing on Class Counsel’s motion for attorneys’ fees at that time.

25

20.

On August 29, 2016, the Court will hold the Fairness Hearing. It shall be

26

held in Courtroom 2, on the 17th floor of the United States Courthouse, 450 Golden Gate

27

Avenue, San Francisco, California 94102, at a time and place to be set forth in the Mailed

28

Notice. The Fairness Hearing may be continued or rescheduled by the Court with notice to
6

1

Class Counsel and Defense Counsel and to any objecting Settlement Class Member who

2

has filed a Notice of Intention to Appear in accordance with Paragraph 16 of this Order.

3

At the Fairness Hearing, or as soon thereafter as practicable, the Court will determine

4

whether the proposed settlement is fair, reasonable, and adequate and should be approved

5

by the Court. At the Fairness Hearing, the Court will also consider the amount of attorney

6

fees and expenses that should be awarded to Class Counsel. If appropriate, the Court will

7

issue a Final Order and Judgment memorializing its decision, in the form contemplated by

8

the Settlement Agreement.

9
10

United States District Court
Northern District of California

11
12

21.

Pending further orders by this Court, all proceedings in this case shall be

stayed, except for proceedings pursuant to this Order.
22.

The preliminary approval hearing set for March 7, 2016 and the case

management conference set for March 21, 2016 are vacated.

13
14

IT IS SO ORDERED.

15
16
17

Dated: 03/01/16

_____________________________________
THELTON E. HENDERSON
United States District Judge

18
19
20
21
22
23
24
25
26
27
28

7