Tolmasoff v. General Motors, LLC

Filing 58

ORDER Granting final approval of class action settlement, certifying class, awarding attorneys' fees and service awards, and Final Judgment re 41 and 51 Signed by District Judge George Caram Steeh. (MBea)

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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

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION
SETTLEMENT, CERTIFYING CLASS, AWARDING ATTORNEYS’ FEES
AND SERVICE AWARDS, AND FINAL JUDGMENT
On the 6th day of November, a fairness hearing was held before this Court to
determine: (a) whether the proposed Settlement should be granted final approval as
fair, reasonable, and adequate; (b) whether the proposed Class should be certified
for settlement purposes; (c) whether Class Counsel’s application for attorneys’ fees
and expenses and service awards for the Plaintiffs should be granted; and (d) whether
a final judgment granting approval of the Settlement and dismissing the Action with
prejudice should be entered.

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Having duly considered all papers filed and arguments presented, IT IS
HEREBY ORDERED and ADJUDGED as follows:
1.

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

forth in the Settlement Agreement.
2.

This Court has jurisdiction over the subject matter of this Action and

over all Parties to the Action, including Settlement Class Members.
3.

The Court preliminarily approved the Settlement Agreement and

entered the Preliminary Approval Order on July 19, 2017.
Notice
4.

Notice was published under the terms of the Preliminary Approval

Order.
5.

The Court has determined that the Notice given to the Settlement Class,

in accordance with the Notice Plan in the Settlement Agreement and the Preliminary
Approval Order, fully and accurately informed members of the Settlement Class of
all material elements of the Settlement and constituted the best notice practicable
under the circumstances, and fully satisfied the requirements of due process, Federal
Rule of Civil Procedure 23, and all applicable law. The Court further finds that the
Notice given to the Settlement Class was adequate and reasonable.
6.

The Settlement Class Members received notice of: (a) the pendency of

the Action; (b) the terms of the proposed Settlement, including the Release; (c) their

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rights under the proposed Settlement; (d) their right to exclude themselves from the
Settlement Class and the proposed Settlement; (e) their right to object to any aspect
of the proposed Settlement; (f) their right to appear at the Final Approval Hearing;
(g) Class Counsel’s request for attorneys’ fees and expenses and an incentive award
to the Class Representatives; and (h) the binding effect of this Final Judgment and
Order Approving Settlement on all Persons who did not timely exclude themselves
from the Settlement Class.
7.

The Court also finds that the appropriate state and federal officials were

timely notified of the Settlement Agreement under the Class Action Fairness Act of
2005 (CAFA), 28 U.S.C. § 1715, and that ninety (90) days have passed without
comment or objection from any governmental entity.
Approval of the Settlement
8.

The Court grants final approval to the proposed Settlement.

9.

Factors supporting the grant of final approval to this Settlement include:
a.

The

Settlement

was

the

product

of

arm’s-length

negotiations conducted in good faith among experienced
counsel, with no evidence of collusion. The Settlement was
reached after extensive negotiations including a mediation
session.

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b.

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If the case did not settle, continued litigation would be time
consuming, complicated and expensive. Settlement at this
stage avoids the expenditure of the Parties’ and the Court’s
resources.

c.

The reaction of the Class has been extremely favorable.
Only 2 Class members out of approximately 7,622 have
opted out of the Settlement and there have been 0
objections.

d.

The Court finds that each side had sufficient information to
assess the strengths and weaknesses of their claims and
defenses.

e.

If the case had not settled, Plaintiffs faced considerable risks
in maintaining certification of a litigation class and
establishing damages. The Settlement guarantees a result
for the Class and eliminates these risks.

f.

The amount of the Settlement is reasonable, adequate, and
fair given the strengths and weaknesses of the case.

10.

The Court held a hearing on November 6, 2017, at which time the

Parties and Settlement Class Members were afforded the opportunity to be heard in
support of or in opposition to the Settlement.

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11.

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The terms and provisions of the Agreement have been entered in good

faith and are hereby fully and finally approved as fair, reasonable, and adequate as
to, and in the best interests of, each of the Parties and the Settlement Class Members.
12.

Accordingly, the Court hereby directs that the Settlement shall be

implemented in accordance with the terms of the Agreement.
13.

The terms of the Agreement, and of this Final Judgment and Order

Approving Settlement, shall be forever binding on, and shall have res judicata and
preclusive effect in, all pending and future lawsuits maintained by Plaintiffs and all
other Settlement Class Members who did not timely exclude themselves from the
Settlement Class, as well as their heirs, executors, and administrators, successors,
and assigns.
14.

Defendant is ordered to implement the terms and conditions of the

Agreement, including payment to all Settlement Class Members who have not
excluded themselves from this Settlement and who fulfill all terms in accordance
with the Settlement.

Class Certification
15.

The Court finds, for purposes of effectuating this Settlement only, that

the prerequisites for a class action under Federal Rule of Civil Procedure 23(a) and
(b)(3) have been satisfied in that:

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a.

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The number of Class Members is so numerous that joinder
of all members thereof is impracticable.

b.

There are questions of law and fact common to the Class,
including the meaning and importance of the alleged
misrepresentations at issue to a reasonable consumer.

c.

The claims of the Named Plaintiffs are similarly situated to
absent Class Members, and their claims are typical of the
claims of the Class they represent because they have alleged
that they purchased the Class Vehicles that contained the
alleged misrepresentations at issue.

d.

The Named Plaintiffs have fairly and adequately
represented the interests of the Class and have no interests
in conflict with the Class.

e.

The questions of law and fact common to the members of
the Class predominate over any questions affecting only
individual members of the Class.

f.

A class action is superior to other available methods for the
fair and efficient adjudication of the controversy; and

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g.

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The Class is ascertainable because the membership can be
determined with reference to objective criteria, i.e., whether
a Class member bought a Class Vehicle.

16.

The Court grants final certification for purposes of settlement to the

proposed Settlement Class, defined as:
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
EPAESTIMATED FUEL ECONOMY AND FIVE-YEAR
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 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.
17.

Ms. Donna Allison of London, Ohio, has made a timely and valid

request for exclusion. She is excluded from the Settlement Class and is not bound
by this Order.
18.

Mr. Angelo L. Taylor Sr. and Ms. Sherron H. Taylor of Norfolk,

Virginia, have made a timely and valid request for exclusion. They are excluded
from the Settlement Class and are not bound by this Order.
19.

There are no other Class Members who made timely and valid requests

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for exclusion.
20.

Pursuant to Federal Rule of Civil Procedure 23(c)(3), all such Persons

who satisfy the Class definition above, except those Class Members who timely and
validly excluded themselves from the Class, are Settlement Class Members bound
by this Judgment and the Release set forth in the Class Action Settlement
Agreement.
21.

The affirms the appointment of Plaintiffs Tiffany Ellis, Stephen Tyson,

Gail Braley, David Lyall, Linda Kemp, Sylvester Tibbits, Lucas Cranor, Mary
Crawford, Irene Stager, Natasha Ford, and Gary Willet as Class Representatives, and
finds that they have adequately represented the Settlement Class for purposes of
entering into and implementing the Agreement.
22.

The Court affirms the appointment of The Miller Law Firm, P.C. and

McCune Wright Arevalo, LLP as counsel for the Settlement Class (“Class
Counsel”).
23.

The Court finds that Plaintiffs’ counsel from these firms are competent

and capable of exercising their responsibilities as Class Counsel, and finds that Class
Counsel has adequately represented the Settlement Class for purposes of entering
into and implementing the Agreement.
Attorneys’ Fees
24.

The Court has considered the submissions by the Parties and all other

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relevant factors, including the result achieved and the efforts of Class Counsel in
prosecuting the claims on behalf of the Class.
25.

The Court notes that the Settlement Agreement and the notice to the

Class provides that counsel may seek an amount not to exceed $1,300,000.00 as
attorneys’ fees, costs, and service awards to the Plaintiffs, and that this amount was
negotiated with Defendant only after the Parties reached agreement on the other
substantive terms of the settlement. Further, in a post-arbitration dispute regarding
payment of mediator and notice and administration fees, Class Counsel agreed to
reduce their fee by $15,000.00 and Defendant agreed to assume the costs of payment
of the mediator and notice and administration fees.
26.

Class Counsel moved for an award of $1,285,000.00 in attorneys’ fees,

costs, and expenses pursuant to Section V(A) of the Settlement Agreement and
incentive awards of $500 to each Class Representative pursuant to Section V(C) of
the Settlement Agreement on September 1, 2017.
27.

After carefully considering Class Counsel’s application, the Court

awards Class Counsel the full amount of $1,285,000.00 in attorneys’ fees, costs, and
expenses and incentive awards of $500 to each Class Representative.
28.

Factors supporting the grant of fees include:
a.

The time and labor expended by Class Counsel on behalf of
the Class;

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b.

The complexity and risks of the litigation;

c.

The monetary results achieved in this Settlement;

d.

The quality of the representation;

e.

The contingent nature of the fee;

f.

The reasonableness of the request fee under both the
percentage method and the lodestar cross check; and

g.
29.

The value of the litigation to the public.

The Court has reviewed and considered each firm’s declaration in

support of the Motion for fees and finds:
a. The amount of hours expended by Class Counsel was
reasonable in light of the litigation.
b. The hourly rate requested for each counsel was reasonable
and the Court approves these rates.
30.

Defendant shall pay the awards to Class Counsel in accordance with

and at the times prescribed by the Settlement Agreement.
Expenses
31.

Plaintiffs’ counsel stated that Class Counsel expended $16,203.01

during the pendency of this litigation. The Court finds the expenses incurred by Class
Counsel were advanced with no guarantee of recovery and were reasonably required
to prosecute the case.

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32.

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The Court grants Class Counsel’s request for reimbursement of

expenses. This reimbursement is included in the fee award.
Service Awards
33.

The Court finds the Plaintiffs served as adequate Class Representatives

and performed work on behalf of the absent Class members.
34.

The Court grants Plaintiffs’ request for service awards in the amount of

$500 for each Plaintiff. This amount shall also be paid from the total fee award
finally approved by the Court.
Final Judgment
35.

Finding that no reason exists for delay in ordering final judgment the

clerk is hereby directed to enter this Final Judgment forthwith.
36.

This Action (and any and all claims asserted herein at any time) is

dismissed in its entirety, on the merits, with prejudice and without leave to amend,
with each Party to bear his/her/its own costs and attorneys’ fees (except as otherwise
expressly provided herein), and all Settlement Class Members who did not timely
and properly execute and submit a Request for Exclusion are deemed to have
completely released and forever discharged the Released Persons, and each of them,
from and for any and all liabilities, claims, cross-claims causes of action, rights,
actions, suits, debts, liens, contracts, agreements, damages, costs, attorneys’ fees,
losses, expenses, obligations, or demands, of any kind whatsoever, whether known

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or unknown, existing or potential, suspected or unsuspected, whether raised by
claim, counterclaim, setoff, or otherwise, including and known or unknown claims,
which they have or may claim now or in the future to have based on or relating to
the claims, facts, or circumstances in this Action and/or the Released Claims except
claims relating to the enforcement of the Settlement of the Action. The Released
Claims are hereby compromised, settled, released, discharged and dismissed as
against the Released Persons on the merits and with prejudice by virtue of the
proceedings herein and this Order and Final Judgment.
37.

The Settlement Class Members shall be enjoined from prosecuting any

claim they have released in the Settlement Agreement and as set forth in the
preceding paragraphs in any proceeding against of the Released Persons or based on
any actions taken by any of the Released Persons that are authorized or required by
the Settlement Agreement or by the Final Judgment. It is further agreed that the
Settlement may be pleaded as a complete defense to any proceeding subject to the
releases set forth in the Settlement Agreement and this Final Judgment.
38.

This Final Judgment shall not be: (1) construed as an admission or

concession by Defendant of the truth of any of the allegations in this Action, or of
any liability, fault or wrongdoing of any kind; or (2) construed as an admission or
concession by the Settlement Class as to any lack of merit of the claims or the Action.
39.

The Settlement Agreement shall not constitute, and will not under any

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circumstances be deemed to constitute, an admission of wrongdoing or liability by
any Party, such wrongdoing and liability being expressly denied and no final
adjudication having been made. The Parties have entered into the Settlement
Agreement solely as a compromise of all claims for the purpose of concluding the
disputes between them, and the Settlement Agreement may not be used by any third
party against any Party. Pursuant to Federal Rule of Evidence 408, the entering into
and carrying out of the Settlement Agreement, and any negotiations or proceedings
related to it, shall not be construed as, or deemed evidence of, an admission or
concession by any of the Parties or a waiver of any applicable statute of limitations,
and shall not be offered or received into evidence in any action or proceeding against
any Party in any court, administrative agency or other tribunal for any purpose
whatsoever.
40.

Notwithstanding the foregoing, nothing in this Final Judgment shall be

interpreted to prohibit the use of this Final Judgment in a proceeding to consummate
or enforce the Settlement Agreement or Final Judgment, or to defend against the
assertion of Released Claims in any other proceeding, or as otherwise required by
law.
41.

At any time after entry of this Final Judgment, the Settlement

Agreement may, with approval of the Court, be modified by written agreement of
Defendant’s Counsel and Class Counsel in their discretion without giving any

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additional notice to the Settlement Class, provided that such modifications do not
limit the rights of the Settlement Class Members under the Settlement Agreement.
42.

Pursuant to the All Writs Act, 28 U.S.C. § 1651, this Court shall retain

the authority to issue any order necessary to protect its jurisdiction from any action,
whether in state or federal court.
43.

This Final Judgment shall constitute a judgment for purposes of Rule

58 of the Federal Rules of Civil Procedure.
44.

The Court expressly retains continuing and exclusive jurisdiction over

all matters relating to the adjudication of claims and the provision of benefits as
provided by the Preliminary Approval Order and by this Order and Final Judgment,
as well as all other matters relating to the administration and consummation of the
Settlement and to interpret, implement, administer, and enforce the Settlement
Agreement, in accordance with its terms, and to implement and complete the claims
administration process, in accordance with the Settlement Agreement, for the benefit
of the Settlement Class. The Court does this for the purpose of satisfying the
requirements of Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994),
concerning the obligation of a Court entering a settlement agreement to speak clearly
when it wishes to retain jurisdiction.
SO ORDERED

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Date: November 6, 2017

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

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