Tolmasoff v. General Motors, LLC

Filing 36

PRELIMINARY APPROVAL ORDER of the proposed class action settlement. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
TIFFANY ELLIS, STEPHEN
TYSON, GAIL BRALEY, DAVID
LYALL, LINDA KEMP,
SYLVESTER TIBBITS, LUCAS
CRANOR, MARY CRAWFORD,
IRENE STAGER, NATASHA
FORD, and GARRY WILLET, on
behalf of themselves and all others
similarly situated,
Plaintiffs,
v.
General Motors, LLC,
Defendant

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Case No.: 2:16-cv-11747-GCS-APP

CLASS ACTION
Hon. George Caram Steeh
Magistrate Judge Anthony P. Patti

PRELIMINARY APPROVAL ORDER OF THE PROPOSED
CLASS ACTION SETTLMENT
WHEREAS, this Court has read and considered the Agreement of
Compromise and Settlement (“Agreement”) entered into by and among Defendant
General Motors, LLC (“Defendant”), and Plaintiffs Tiffany Ellis, Stephen Tyson,
Gail Braley, David Lyall, Linda Kemp, Sylvester Tibbits, Lucas Cranor, Mary
Crawford, Irene Stager, Natasha Ford, and Garry Willet and (collectively,
“Plaintiffs”)” (collectively the “Parties” in the above referenced “Action”),
together with all exhibits thereto, the record in this case, and the arguments of
counsel;

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WHEREAS, this Court preliminarily finds that the class alleged in the
Action meets, for the purposes of settlement, all the prerequisites of Rule 23 of the
Federal Rules of Civil Procedure for class certification, including numerosity,
commonality, typicality, predominance, superiority, and adequacy;
IT IS HEREBY ORDERED AS FOLLOWS:
1.

All terms and definitions used herein have the same meanings as set

forth in the Agreement.
2.

The proposed Settlement set forth in the Agreement is hereby

preliminarily approved as being fair, reasonable and adequate such that notice
thereof should be given to members of the Settlement Class (as defined in the
following paragraph).
Class Certification
3.

The Action is provisionally certified as a class action, for the purposes

of settlement only, pursuant to Rule 23(b)(3), which class, set forth in Exhibit A to
the Settlement Agreement, is defined as follows:
ALL PERSONS WITHIN THE UNITED STATES
WHO PURCHASED OR LEASED A RETAIL NEW
MODEL YEAR 2016 CHEVROLET TRAVERSE,
BUICK ENCLAVE OR GMC ACADIA WITH A
“WINDOW STICKER” DISPLAYING INCORRECT
EPA-ESTIMATED FUEL ECONOMY AND FIVEYEAR FUEL COSTS FROM AN AUTHORIZED GM
DEALER AND WHO HAVE NOT EXECUTED A
RELEASE OF ANY AND ALL CLAIMS SET FORTH
IN THE ACTION IN FAVOR OF GM IN

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ACCORDANCE WITH THE ‘COMPENSATION
PROGRAM DESCRIBED BELOW AND WHO HAVE
NOT OTHERWISE RELEASED THEIR CLAIMS
AGAINST GM SET FORTH IN THE ACTION, AND
WHO DO NOT SUBMIT TIMELY REQUESTS FOR
EXCLUSION.
4.

Class Representatives are hereby found to be and are therefore

appointed as adequate representatives of the Settlement Class: Plaintiffs Tiffany
Ellis, Stephen Tyson, Gail Braley, David Lyall, Linda Kemp, Sylvester Tibbits,
Lucas Cranor, Mary Crawford, Irene Stager, Natasha Ford, and Garry Willet are
appointed as representatives of the proposed Settlement Class. The Miller Law
Firm, P.C. located at 950 West University Drive, Rochester, MI 48307 and
McCune Wright Arevalo LLP, located at 555 Lancaster Avenue, Berwyn, PA
19312 are appointed as Class Counsel pursuant to Fed. R. Civ. P. 23(g) to
represent the interests of the proposed Settlement Class.
5.

The Court finds that, for purposes of settlement only, the requirements

of Fed. R. Civ. P. 23 are met by the Settlement Class. Joinder of all Settlement
Class Members in a single proceeding would be impracticable, if not impossible,
because of their numbers and dispersion. Common issues exist among Settlement
Class Members’ claims regarding whether the Defendant is liable for the misstated
EPA estimated mpg on the Class Vehicles. The Class Representatives claims are
typical of those of the Settlement class, in that: (i) the interest of the Plaintiffs’
claims are typical of those of the Settlement Class; (ii) there are no apparent

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conflicts between or among the named Plaintiffs and the members of the
Settlement Class; (iii) the Plaintiffs have been and are capable of continuing to be
active participants both in the prosecution of, and the negotiations to settle, the
Action; and (iv) the Plaintiffs and the Settlement Class are represented by
qualified, reputable counsel who are experienced in preparing and prosecuting
class actions, including those involving defective products. In accordance with the
Supreme Court’s holding in Amchem Prods v. Windsor, 521 U.S. 591, 620 (1997),
the Court need not address whether this case, if tried, would present issues of
manageability under Rule 23(b)(3)(D). Finally, a class action settlement is superior
to other available methods for a fair resolution of the controversy.
6.

Certification of the Settlement Class shall be solely for settlement

purposes and without prejudice to the parties in the event that the Agreement is not
finally approved by this Court or otherwise does not take effect. Certification of
the Settlement Class shall be vacated and shall have no effect in the event that the
Agreement is not finally approved by this Court or otherwise does not take effect.
Notice to Potential Settlement Class Members
7.

The Court hereby approves the form and procedure for disseminating

notice of the proposed settlement to the Settlement Class as set forth in the
Agreement. The Court finds that the proposed Notice Plan contemplated
constitutes the best notice practicable under the circumstances and is reasonably

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calculated, under the circumstances, to apprise Settlement Class Members of the
pendency of the Action and their right to object to the proposed settlement or opt
out of the Settlement Class in full compliance with the requirements of applicable
law, including the Due Process Clause of the United States Constitution and Rules
23(c) and (e). In addition, Class Notice clearly and concisely states in plain, easily
understood language: (i) the nature of the action; (ii) the definition of the certified
Settlement Class; (iii) the claims and issues of the Settlement Class; (iv) that a
Settlement Class Member may enter an appearance through an attorney if the
member so desires; (v) that the Court will exclude from the Settlement Class any
member who requests exclusion; (vi) the time and manner for requesting
exclusion; and (vii) the binding effect of a class judgment on members under Rule
23(c)(3).
8.

As set forth in the Agreement, expenses related to the administration

of the Agreement, which include the costs and expenses incurred in providing
notice to the Settlement Class, and attorneys’ fees and expenses, shall not reduce
Class Members recovery under the Agreement.
Retention of Class Action Settlement Administrator and Notice Plan
9.

The Court authorizes the Parties to retain Analytics, P.O. Box 2003

Chanhassen, MN 55317, to effectuate the Notice Plan and to serve as the Claims
Administrator.

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10.

The Court approves, as to form and content, the Class Notice attached

to the Settlement Agreement as Exhibit A, and finds that the mailing and
distribution of the Notice as set forth in the Settlement Agreement meet the
requirements of Federal Rule of Civil Procedure 23 and due process, is the best
notice practicable under the circumstances and shall constitute due and sufficient
notice to all persons entitled thereto.
Final Approval Hearing
11.

Class Counsel shall provide the names and addresses of excluded

Class Members to the Court ten (10) days prior to the hearing on the Final
Judgment and Order.
12.

Class Counsel shall file with the Court and post on the Settlement

Website their application for payment of attorneys’ fees and expenses, and Plaintiff
Service Awards ten (10) days prior to the Objection Deadline.
13.

A hearing (the “Final Approval Hearing”) shall be held by the Court

on November 6, 2017 beginning at 3:00 p.m., to consider and determine whether
the requirements for certification of the Settlement Class have been met and
whether the proposed settlement of the Action on the terms set forth in the
Agreement should be approved as fair, reasonable, adequate, and in the best
interests of the Settlement Class Members; whether Class Counsel’s fee and
expense application and application for service awards, included as part of the

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settlement, should be approved; and whether the Final Judgment approving the
settlement and dismissing the Action on the merits and with prejudice against the
Class Representatives and all Settlement Class Members should be entered. The
Final Approval Hearing may, from time to time and without further notice to the
Settlement Class (except those who have filed timely and valid objections and
requested to speak at the fairness hearing), be continued or adjourned by Order of
the Court.
14.

No later than fourteen (14) days prior to the Final Approval Hearing,

the Parties shall file all papers in support of the application for final approval of the
settlement.
Objections
15.

Any Settlement Class Member who complies with the requirements of

this section may object to any aspect of the proposed settlement either on their own
or through an attorney hired at his or her expense. Any Settlement Class Member
who intends to object to the proposed settlement must do so no later than
September 11, 2017 (“Objection Deadline”).
16.

To state a valid Objection, a Settlement Class Member must include

the following information in the Objection: (1) the objector’s full name, current
address, current telephone number and email address; (2) documentation, such as
documents showing the Vehicle Identification Number for the Settlement Class

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Member’s vehicle, sufficient to establish membership in the Settlement Class; (3) a
written statement of all grounds for the objection, accompanied by any legal
support for the objection; (4) a list of all persons who will be called to testify at the
Final Approval Hearing in support of the objection; (5) the objector’s signature and
the signature of the objector’s duly authorized attorney or other duly authorized
representation (if any) along with documentation setting forth such representation;
(6) copies of any documents supporting the Objection. The Settlement Class
Member must personally sign the objection; an attorney’s signature is not
sufficient.
Opt Outs
17.

Any Class Member may make a request to be excluded from the

Settlement Class, and from participation in the settlement consideration provided
by this Agreement, by mailing or delivering such request in writing (“Request for
Exclusion”) to the Settlement Administrator which address will be set forth in the
Class Notice. Any Request for Exclusion must be actually delivered not later than
September 11, 2017 (“Request for Exclusion Deadline”).
Exclusion shall (1) state the Class Member’s printed full name,

The Request for
current address

and phone number and email address; (2) specifically state the Class Member’s
desire to be excluded from the Settlement Class; (3) provide the Vehicle
Identification Number for the Class Member’s vehicle; and (4) be signed

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personally by the Class Member. Failure to comply with these requirements and to
timely submit the Request for Exclusion will result in the Class Member being
bound by the terms of this Agreement. Any Class Member who submits a timely
Request for Exclusion may, should he or she choose, to request a one-hour
telephonic mediation with GM, before a Mediator – Gene J. Esshaki – to determine
whether the excluded Class Member’s claim can be settled.
18.

Except for those Settlement Class Members who have properly filed a

timely written Opt-Out Request (and all other Excluded Persons), all persons who
meet the definition of Settlement Class Member will be deemed Settlement Class
Members for all purposes under the Agreement and this Order.
19.

Any Settlement Class Member who has not properly filed a timely

written Opt Out Form shall be bound by the Agreement, this Order and by all
subsequent proceedings, orders, and judgments issued by the Court. Any
Settlement Class Member who elects to opt out of the Settlement Class pursuant to
the Agreement shall not be entitled to relief under or be affected by the Agreement.
20.

Counsel for the Parties are hereby authorized to utilize all reasonable

procedures in connection with the administration of the settlement which are not
materially inconsistent with either this Order or the terms of the Agreement.
21.

The Names of all Settlement Class Members who properly requested

exclusion shall be attached as an exhibit to any Final Order and Judgment.

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Injunction
22.

The Court enjoins all Settlement Class Members from commencing or

prosecuting any action asserting any claims that are the subject of this Action
pending the Final Approval Hearing, unless they have validly opted out of the
settlement described in the Agreement and the Court has approved such opt outs.
No Admission of Liability
23.

The Agreement and this Judgment are not admissions of liability or

fault by Defendant or the Released Parties, or a finding of the validity of any
claims in the Action or of any wrongdoing or violation of law by Defendant or the
Released Parties. The Agreement and settlement are not a concession by the
Parties. To the extent permitted by law, neither this Judgment, nor any of its terms
or provisions, nor any of the negotiations or proceedings connected with it, shall be
offered as evidence or received in evidence in any pending or future civil, criminal,
or administrative action or proceedings to establish any liability of, or admission
by Defendant, the Released Parties, or any of them. Notwithstanding the foregoing,
nothing in this Final Judgment shall be interpreted to prohibit the use of this
Judgment in a proceeding to consummate or enforce the Agreement or Judgment,
or to defend against the assertion of Released Claims in any other proceeding, or as
otherwise required by law.

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Deadlines
24.

In Accordance with the Agreement and exhibits attached thereto, the

Court sets the following deadlines:
a.

The Notice Plan shall be completed twenty-one (21) days after

the entry of this Order (“Notice Date”).
b.

All requests to opt out of the Settlement must be received by

the Claims Administrator within 30 days of the Notice Date (“Opt Out Deadline”),
September 11, 2017.
c.

All objections to the Settlement must be received by the Claims

Administrator within 30 days days of the Notice Date (“Objection Deadline”),
September 11, 2017.
d.

Class Counsel shall file with the Court and post on the

Settlement Website their application for payment of attorneys’ fees and expenses,
and Service Awards for the Class Representatives ten (10) days prior to the
Objection Deadline.
e.

The Parties shall file all papers in support of the application for

final approval of the settlement and/or opposition to any Objections received
fourteen (14) days prior to the Final Approval Hearing.
f.

A Final Approval Hearing is scheduled for November 6, 2017

at 3:00 p.m.

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25.

Within 10 days of the filing of the settlement and motion for

preliminary approval of this Court, General Motors shall give appropriate notice
pursuant to 28 U.S.C. §1715.
26.

If any deadline set forth in this Order falls on a Saturday, Sunday or

federal holiday, such deadline shall be extended to the next Court business day.
27.

The Court reserves the right to adjust the date of the Final Approval

Hearing and related deadlines. In that event, the revised hearing date and/or
deadlines shall be posted on the Settlement Website referred to in the Notice, and
the parties shall not be required to re-send or republish the Notice.

Date: July 19, 2017

s/George Caram Steeh
Hon. George Caram Steeh
United States District Judge

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