Case 2:16-cv-00881-KM-ESK Document 299 Filed 09/14/20 Page 1 of 2 PageID: 8797
James E. Cecchi CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C. 5 Becker Farm Road Roseland, New Jersey 07068 Tel: (973) 994-1700
Counsel for Plaintiffs and the Class [Additional Counsel on Signature Page]
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
IN RE: MERCEDES-BENZ Civil Action No. 2:16-0881 (KM) (ESK) EMISSIONS LITIGATION
NOTICE OF MOTION
To: All Counsel by ECF
COUNSEL:
PLEASE TAKE NOTICE that at such date and time as the Court shall
determine, Plaintiffs, by counsel, shall move under Rule 23 of the Federal Rules of
Civil Procedure, for entry of the proposed preliminary approval Order that, among
other things, will, (1) preliminarily approve the proposed Settlement; (2) certify the
proposed Settlement Class, appoint Plaintiffs as Class representatives, and appoint
Class Counsel for purposes of the Settlement; (3) approve the form and manner of
giving notice of the proposed Settlement to the Class Members; and (4) schedule a
hearing to consider the fairness of the Settlement.
PLEASE TAKE FURTHER NOTICE that, in support of the motion, the
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undersigned intends to rely on the accompanying Memorandum of Law and
supporting declarations of Steve W. Berman and Jennifer M. Keough.
PLEASE TAKE FURTHER NOTICE that a proposed form of Order is
attached.
Dated: September 14, 2020 Respectfully submitted,
CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C.
By /s/ James E. Cecchi JAMES E. CECCHI
By /s/ Steve W. Berman STEVE W. BERMAN Sean R. Matt Andrew M. Volk Shelby R. Smith HAGENS BERMAN SOBOL SHAPIRO LLP 1918 8th Avenue, Suite 3300 Seattle, Washington 98101 Tel: (206) 623-7292
By /s/ Christopher A. Seeger CHRISTOPHER A. SEEGER Jennifer R. Scullion SEEGER WEISS LLP 55 Challenger Road Ridgefield Park, New Jersey 07660 Tel: (973) 639-9100
Counsel for Plaintiffs and the Class
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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
IN RE MERCEDES-BENZ EMISSIONS Civil Action No. 16-881(KM) (ESK) LITIGATION
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AND APPROVAL OF DISSEMINATION OF NOTICE OF SETTLEMENT
James E. Cecchi Christopher A. Seeger CARELLA, BYRNE, CECCHI, Jennifer R. Scullio n OLSTEIN, BRODY & SEEGER WEISS LLP AGNELLO, P.C. 55 Challenger Road, 6th Floor 5 Becker Farm Road Ridgefie ld Park, NJ 07660 Roseland, NJ 07068 (973) 639-9100 (973) 994-1700 Counsel for Plaintiffs and the Proposed Class Steve W. Berman Sean R. Matt Andrew M. Volk Shelby R. Smith HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Avenue, Suite 2000 Seattle, WA 98101 (206) 623-7292
Interim Lead Counsel for Plaintiffs and the Proposed Class
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ...... iii
I. INTRODUCTION ...... 1
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY ...... 4
III. SUMMARY OF SETTLEMENT TERMS ...... 7
A. The Settlement Class Definition...... 7
B. The Settlement Provides Substantial Benefits to the Class...... 8
IV. THE SETTLEMENT WARRANTS PRELIMINARY APPROVAL ...... 11
A. The Standard and Procedures for Granting Preliminary Approval...... 11
B. There is a Strong Basis to Conclude that the Settlement Is Fair, Reasonable, and Adequate and that the Rule 23(e)(2) Standards for Approval Will Be Met...... 12
1. The proposed Settlement was reached after substantial litigation, including fulsome discovery and motion practice, and the benefits of the proposed Settlement far outweigh the risks of continued litigation...... 12
2. The Settlement yields robust benefits to the Class...... 14
3. The Settlement negotiations occurred at arm’s-length...... 14
4. The proponents of the Settlement are experienced in similar litigation...... 15
V. THE COURT SHOULD CERTIFY THE PROPOSED CLASS FOR SETTLEMENT PURPOSES ...... 16
A. The Rule 23(a) Requirements Are Satisfied...... 16
i
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1. Rule 23(a)(1) – Numerosity is present...... 17
2. Rule 23(a)(2) – There are issues common to all Class Members...... 17
3. Rule 23(a)(3) – Typicality is satisfied...... 19
4. Rule 23(a)(4) – Adequacy is satisfied...... 20
5. The proposed Class is ascertainable...... 23
B. As Required by Rule 23(b)(3), Common Issues Predominate and Class Treatment is Superior to a Multiplicity of Individual Lawsuits...... 23
C. Proposed Class Counsel Satisfy Rule 23(g)...... 27
VI. THE FORM AND MANNER OF NOTICE ARE PROPER ...... 28
VII. THE COURT SHOULD SET SETTLEMENT DEADLINES AND SCHEDULE A FAIRNESS HEARING ...... 31
VIII. CONCLUSION ...... 33
ii
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TABLE OF AUTHORITIES
Cases Page(s)
Alves v. Main, 2012 WL 6043272 (D.N.J. Dec. 4, 2012) ...... 14, 16
Amchem Prods, Inc. v. Windsor, 521 U.S. 591 (1997) ...... 16, 21, 23, 26
Butler v. Sears, Roebuck & Co., 702 F.3d 359 (7the Cir. 2012)...... 23
Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015) ...... 23
Carnegie v. Household Int’l, Inc., 376 F.3d 656 (7th Cir. 2004)...... 26
In re Chrysler-Dodge Ecodiesel Mktg., Sales Practices, & Prods. Liab. Litig., 2019 WL 536661 (N.D. Cal. Feb. 11, 2019) ...... passim
City Select Auto Sales Inc. v. BMW Bank of N. Am. Inc., 867 F.3d 434 (3d Cir. 2017) ...... 23
In re Cmty. Bank of N. Va., 622 F.3d 275 (3d Cir. 2010) ...... 22
Damassia v. Duane Reade, Inc., 250 F.R.D. 152 (S.D.N.Y. 2008) ...... 21
Ehrheart v. Verizon Wireless, 609 F.3d 590 (3d Cir. 2010) ...... 11
Emig v. Am. Tobacco Co., 184 F.R.D. 379 (D. Kan. 1998) ...... 22
In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3d Cir. 1995)...... 12
Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975) ...... 12
In re Ins. Brokerage Antitrust Litig., 579 F.3d 241 (3d Cir. 2009) ...... 15
iii
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Johnston v. HBO Film Mgmt., 265 F.3d 178 (3d Cir. 2001) ...... 19
Kaplan v. Chertoff, 2008 WL 200108 (E.D. Pa. Jan. 24, 2008)...... 28
Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012) ...... 19
Martinez-Santiago v. Public Storage, 312 FRD 380 (D.N.J. 2015)...... 17
In re Mercedes-Benz Emissions Litig., 2016 WL 7106020 (D.N.J. Dec. 6, 2016) ...... 5
In re Mercedes-Benz Emissions Litig., 2019 WL 2591158 (D.N.J. June 25, 2019), and (2) ...... 5
In re Mercedes-Benz Emissions Litig., 2019 WL 413541 (D.N.J. Feb. 1, 2019) ...... 5
In re Mercedes-Benz Emissions Litig., 2019 WL 5800270 (D.N.J. Nov. 7, 2019)...... 6
In re Mercedes-Benz Emissions Litig., 2020 WL 103975 (D.N.J. Jan. 9, 2020) ...... 5
In re Mercedes-Benz Emissions Litig., 2020 WL 487288 (D.N.J. Jan. 30, 2020) ...... 5
In re Mercedes-Benz Emissions Litig., 797 F. App’x 695 (3d Cir. 2020) ...... 5
In re Merck & Co., Vytorin/Zetia Sec. Litig., No. 08-cv-2177, 2012 WL 4482041 (D.N.J., Sept. 25, 2012)...... 19
In re Nat’l Football League Players Concussion Injury Litig., 821 F.3d 410 (3d Cir. 2016) ...... 28
In re Neurontin Antitrust Litig., 2011 WL 286118 (D.N.J. Jan. 25, 2011) ...... 26
In re Novo Nordisk Sec. Litig., 2020 WL 502176 (D.N.J. Jan. 31, 2020) ...... 24
In re Ocean Power Techs, Inc., 2016 WL 6778218 (D.N.J. Nov. 15, 2016) ...... 28, 29
iv
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In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283 (3d Cir. 1998) ...... 18, 24
In re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. Supp. 450 (D.N.J. 1997) ...... 15
Reap v. Cont’l Cas. Co., 199 F.R.D. 536 (D.N.J. 2001) ...... 25
In re Rite Aid Corp. Sec. Litig., 396 F.3d 294 (3d Cir. 2005) ...... 12
In re Schering Plough Corp. ERISA Litig., 589 F.3d 585 (3d Cir. 2009) ...... 19, 21
Sheinberg v. Sorensen, 606 F.3d 130 (3d Cir. 2010) ...... 21, 27
Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2015) ...... 23
Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010) ...... 25
Sullivan v. DB Invs., Inc, 667 F.3d 273 (3d Cir. 2011) (en banc) ...... 18
Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016) ...... 24
In re Valeant Pharm. Int’l, Inc. Sec. Litig., 2020 WL 3166456 (D.N.J. June 15, 2020)...... 24
Varacallo v. Massachusetts Mut. Life Ins. Co., 226 F.R.D. 207 (D.N.J. 2005) ...... 15
In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prods. Liab. Litig., 2016 WL 4010049 (N.D. Cal. July 26, 2016) ...... 18, 20, 21, 24
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ...... 17, 18
Ward v. Flagship Credit Acceptance LLC, 2020 WL 759389 (E.D. Pa. Feb. 13, 2020)...... 11
v
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In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir. 2004) ...... 11, 18
In re Wellbutrin XL Antitrust Litig., 282 F.R.D. 126 (E.D. Pa. 2011) ...... 17, 18
Wragg v. Ortiz, 2020 WL 2745247 (D.N.J. May 27, 2020)...... 16, 17
Yaeger v. Subaru of Am., Inc., 2016 WL 4541861 (D.N.J. Aug. 31, 2016) ...... 19
Other Authorities
Federal Rule of Civil Procedure 23 ...... passim
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Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiffs
respectfully move for preliminary approval of the proposed Settlement with
Defendants Mercedes-Benz USA, LLC and Daimler Aktiengesellschaft (collectively,
“Mercedes”), preliminary certification of the Class defined in the Settlement, and
approval of proposed Class Notice.1
I. INTRODUCTION
Plaintiffs, on behalf of themselves and other members of the proposed
settlement Class, are pleased to present to the Court their proposed Settlement with
Mercedes. Plaintiffs are current and/or former owners/lessees of certain defined
Mercedes “Subject Vehicles”—that is, model year 2009–2016 diesel vehicles sold or
leased in the United States and equipped with the BlueTEC II emission control
technology. These vehicles include both passenger cars and Sprinter vans. The
Settlement, reached after four and one-half years of hard-fought litigation, will
resolve Plaintiffs’ and Class Members’ claims against Mercedes.
The Settlement is designed to complement and work together with Mercedes’
settlements with the Environmental Protection Agency and the California Air
Resources Board, which are filing a Consent Decree in the United States District
Court for the District of Columbia that will resolve regulatory claims against
Mercedes and set a schedule for the implementation of an Approved Emissions
1 The Settlement Agreement is Exhibit A to the Declaration of Steve W. Berman in Support of Motion for Preliminary Approval (“Berman Decl.”). Capitalized terms not defined herein have the same definitions and meanings ascribed to them in the Settlement Agreement.
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Modification (“AEM”) to the Subject Vehicles that will modify the emission control
system software calibration and certain related hardware to ensure that the vehicles
meet the emissions standards to which they were originally certified.
For each Subject Vehicle that receives an AEM, the Consent Decree provides
an “Extended Modification Warranty” backing certain emissions-related components
for a period equal to the greater of: (i) 10 years from date of initial sale or 120,000
miles on the odometer, whichever comes first; or (ii) 4 years or 48,000 miles from the
date of installation of the Approved Emission Modification, whichever comes first.
Notice and implementation of the government Consent Decree and this Settlement
are designed to be coordinated.
The Settlement before the Court provides substantial monetary benefits to the
Class. Class Members who submit Valid Claims are eligible to receive payment of up
to $3,290 to current owners and lessees; payment of $822.50 to former owners and
lessees; and the prospect of additional payments if Mercedes does not meet certain
milestones set forth in the Settlement.
The proposed Settlement is a favorable resolution for the Class that avoids the
substantial risks and expense of continued litigation, including the risk of recovering
less than the Settlement amount, or nothing at all. The proposed Settlement
Agreement resulted from arm’s-length, good faith negotiations between and among
experienced counsel under the auspices of a respected and experienced Court-ordered
mediator, the Honorable Edward A. Infante. It provides a fair, reasonable, and
adequate resolution of this litigation, which will substantially reduce costs and the
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expenditure of resources, eliminate the risk of uncertain litigation outcomes, and
prevent further delay in remedying the harms suffered by Class Members.
Furthermore, this Settlement, along with resolution of government enforcement
actions and payment of fines, not only resolves Plaintiffs’ claims but also facilitates
the end of Mercedes’ alleged misconduct in unlawfully manipulating the emissions
systems in the Subject Vehicles.
Accordingly, Plaintiffs respectfully request that the Court enter a Preliminary
Approval Order, substantially in the form attached as Exhibit 7 to the Settlement
Agreement that: (1) grants preliminary approval of the proposed Settlement
Agreement entered into between the Parties; (2) finds that the Court, at the final
approval stage, will likely certify the Class as defined in the Settlement Agreement;
(3) directs that notice be provided to proposed Class Members in the form and manner
specified in the Settlement Agreement, which is designed to work in concert with the
Consent Decree; (4) appoints Plaintiffs as representatives of the proposed Class; (5)
appoints Carella, Byrne, Cecchi, Olstein, Brody & Agnello, PC, Hagens Berman Sobol
Shapiro LLP, and Seeger Weiss LLP as Class Counsel for the proposed Class; (6)
establishes certain dates and procedures in connection with final approval of the
Settlement Agreement, including but not limited to deadlines and procedures for
Settlement objections, Opt-Outs, and Claims; and (7) schedules a Fairness Hearing
to determine whether the Settlement is fair, reasonable, and adequate under Rule
23(e)(2), and whether the Class should be certified.
In sum, the Settlement before the Court represents real relief for consumers.
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It was achieved after years of difficult litigation and a year of mediation. The
Settlement is fair, reasonable, and the Court will likely approve the proposal under
Rule 23(e)(2) and certify the Class for purposes of judgment on the Settlement.
Therefore, the Settlement meets the standards for preliminary approval.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This litigation commenced with the filing of the initial complaint in February
2016. On April 7, 2016, the Court appointed Steve W. Berman of Hagens Berman
Sobol Shapiro LLP and James E. Cecchi of Carella, Byrne, Cecchi, Olstein, Brody &
Agnello, P.C. as initial interim lead counsel. In addition, Christopher A. Seeger of
Seeger Weiss LLP has served as counsel of record for Plaintiffs.
Unlike other diesel emissions fraud cases against the Volkswagen (“VW”) and
Chrysler-Dodge-Jeep (“FCA”)—cases that followed government action and settled,
Plaintiffs here developed and supported every aspect of their case without the
benefit of a government indictment or criminal or civil judgments or penalties
against Mercedes. Plaintiffs’ counsel retained experts, conducted testing, and
completed a thorough and costly investigation before they filed their initial
complaint and long before there was any public awareness of a government
investigation of Mercedes. It was only months later that, in April 2016, that
Mercedes said the U.S. Department of Justice had asked Mercedes to investigate its
emissions certification process.
Also unlike the VW and FCA cases, where government action spurred a
relatively quick march to settlement, this case has been marked by protracted,
vigorous litigation. The dockets before this Court and the Third Circuit reveal
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multiple rounds of motions to dismiss and to force arbitration, challenging appeals,
and numerous discovery disputes. The Court granted Mercedes’ initial motion to
dismiss, In re Mercedes-Benz Emissions Litig., 2016 WL 7106020 (D.N.J. Dec. 6,
2016), resulting in the dismissal of this case for lack of Article III standing, which
required Plaintiffs to replead and (successfully) re-litigate additional motions to
dismiss. See, e.g., In re Mercedes-Benz Emissions Litig., 2019 WL 413541 (D.N.J.
Feb. 1, 2019) (denying Mercedes’ and Bosch LLC’s motion to dismiss fourth amended
complaint). Plaintiffs also were required to respond to multiple appellate efforts by
Mercedes, namely (1) an unsuccessful request for interlocutory review of the order
denying Mercedes’ second motion to dismiss, see In re Mercedes-Benz Emissions
Litig., 2019 WL 2591158 (D.N.J. June 25, 2019), and (2) Mercedes’ appeal from the
denial of a motion to compel arbitration for two Plaintiffs to the Third Circuit, which
ordered further proceedings below on that issue. In re Mercedes-Benz Emissions
Litig., 797 Fed. App’x 695 (3d Cir. 2020). Mercedes has denied, and continues to
deny, Plaintiffs’ material allegations and claims, and it is only through settlement
that the Parties are avoiding lengthy and protracted litigation.
In April 2019, the Court appointed as Special Master the Honorable Dennis
Cavanaugh (Ret.) before whom the parties were engaged in intensive and vigorously
disputed discovery. To foster the parties’ pursuit of relevant evidence, the Special
Master scheduled frequent case management conferences, decided many discovery
disputes, and facilitated the advancement of discovery. See, e.g., In re Mercedes-
Benz Emissions Litig., 2020 WL 487288 (D.N.J. Jan. 30, 2020); In re Mercedes-Benz
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Emissions Litig., 2020 WL 103975 (D.N.J. Jan. 9, 2020); In re Mercedes-Benz
Emissions Litig., 2019 WL 5800270 (D.N.J. Nov. 7, 2019). Approximately 20
discovery motions were briefed. The disputes included the manner in which
Defendants would search for documents; the scope of custodians to be searched; the
scope of Plaintiffs’ discovery requests; and invasive searches of Plaintiffs’ own
documents. All told, Plaintiffs served 91 Requests for Production on Mercedes and
another 59 requests on the Bosch defendants. Plaintiffs served subpoenas on 11 third
parties. The Mercedes and the Bosch defendants produced approximately 43,920
documents comprising more than 331,000 pages, which Plaintiffs reviewed and coded.
Berman Decl., ¶ 7. Plaintiffs’ experts reviewed much of the technical discovery that
was produced.
Depositions were underway when the Parties reached the proposed
Settlement. Plaintiffs took Rule 30(b)(6) depositions of Mercedes and Bosch LLC,
respectively, while Defendants took the depositions of five Plaintiffs. Berman Decl.,
¶ 8.
The Settlement was reached only after extensive mediation efforts. Seven full-
day and two half-day mediation sessions were held with Judge Infante over the course
of a year, and the mediation also entailed additional conference calls with Judge
Infante and between the Parties. Berman Decl., ¶ 9.
The timing of this Settlement is also highly significant when assessing its
value. The ongoing litigation and this settlement occurred at a time of great global
unrest and when the parties in this case and others across the nation face enormous
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pressure to seek early resolutions. Efforts to settle cases have failed because
companies have little or no money to fund any type of recovery, or they fear that
economic recovery may not occur in the near future. Despite this, Plaintiffs’ counsel
continued fighting through the pandemic for each and every piece of consumer relief
– a fight that could have gone south at any moment.
III. SUMMARY OF SETTLEMENT TERMS
A. The Settlement Class Definition.
The Class includes all current and former owners or lessees of Subject Vehicles
in the United States, including territories of the United States, who (1) on or before
the Settlement Announcement Date owned or leased, and Registered, a Subject
Vehicle, or (2) after the Settlement Announcement Date begin owning or leasing, and
Register, a Subject Vehicle for which an AEM has not been installed.2
2 Excluded from the Class are: (1) the Mercedes Defendants and their officers, directors, and employees; the Mercedes Defendants’ corporate affiliates and corporate affiliates’ officers, directors, and employees; their distributors and distributors’ officers, directors, and employees; (2) judicial officers and their immediate family members and associated court staff assigned to this Action; (3) persons who have settled with, released, or otherwise had claims adjudicated on the merits against the Mercedes Defendants arising from the same core allegations or circumstances as this case; and (4) all Persons otherwise in the Class who timely and properly exclude themselves from the Class as provided in the Class Action Agreement.
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Subject Vehicles means a “Subject Vehicle” as defined in the Consent Decree,
which includes the following Mercedes diesel vehicles:
BlueTEC II Diesel Vehicles Model Model Year(s) E250 2014-2016 E350 2011-2013 GL320 2009 GL350 2010-2016 GLE300d 2016 GLE350d 2016 GLK250 2013-2015 ML250 2015 ML320 2009 ML350 2010-2014 R320 2009 R350 2010-2012 S350 2012-2013 Mercedes-Benz Sprinter (4-cylinder) 2014-2016 Freightliner Sprinter (4-cylinder) 2014-2016 Mercedes-Benz Sprinter (6-cylinder) 2010-2016 Freightliner Sprinter (6-cylinder) 2010-2016
B. The Settlement Provides Substantial Benefits to the Class.
In addition to receiving AEMs to ensure Subject Vehicles meet their original
certification standards and an Extended Modification Warranty under the terms of
the Consent Decree, Class Members who submit Valid Claims are eligible to receive
substantial cash compensation. Class Members and their monetary benefits
generally fall into three categories:
1. Current owners and lessees whose Subject Vehicle receives an AEM and
who submit a Valid Claim will receive $3,290 or, if an Eligible Former
Owner or Eligible Former Lessee also submits a Valid Claim for that same
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vehicle, current owners/lessees will receive $2,467.50. Most Class Members
will be current owners or lessees.
2. Eligible Former Owners and Former Lessees will receive up to $822.50 for
each vehicle, which will be divided equally among the Eligible Former
Owners and Eligible Former Lessees who submit Valid Claims related to
the same vehicle.
3. Eligible Post-Announcement Owners and Eligible Post-Announcement
Lessees whose Subject Vehicle receives an AEM and who submit a Valid
Claim will receive $2,467.50 per Subject Vehicle.
Along with the payments described above, in some cases, Eligible Current
Owners/Lessees may receive additional payments for deferred AEM availability, any
late submissions of emissions modification proposal reports by Mercedes to the
regulators, and any reclassification of Subject Vehicles to a lesser emissions standard.
If an AEM for a Subject Vehicle is unavailable within a grace period beyond the
deadline, Class Members who own or lease an affected Registered Subject Vehicle on
that date will be eligible for a substantial payment pegged to the Owner/Lessee
Payment in accordance with the Settlement Agreement, based on model year from
30% up to 80%. If, before the deadline, an AEM is unavailable, and no vehicle in that
Emissions Modification Category can be re-registered in the Registered Subject
Vehicle owner’s state of residence because the AEM is unavailable and the owner files
a claim within 60 days of that deadline, Mercedes will offer to repurchase the Subject
Vehicle for an amount equal to the value of the vehicle according to the Manheim
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Market Report.
On top of all of these benefits, if an AEM causes “Reduced Performance” of the
Subject Vehicle, then Current Owners/Lessees will be eligible for a payment of $325.
If an AEM causes “Substantially Reduced Performance” of the Subject Vehicle, then
Current Owners/Lessees will be eligible for a payment of up to $650. And if an AEM
increases the frequency of refilling the diesel emission fluid, Current Owners/Lessees
of the affected Subject Vehicle will be eligible to receive another $75.
Given that there are an estimated 250,000 Subject Vehicles, the money benefits
of the Settlement likely exceed $700 million.3 And Class Members preserve their
legal rights to continue seeking additional recovery from the Bosch Defendants.
In addition, Mercedes has agreed to separately pay Attorneys’ Fees and Costs
and reasonable Class Representative Service Awards. After agreeing to the principal
terms set forth in the Agreement, Plaintiffs’ Counsel and Mercedes’ Counsel mediated
the amount of Attorneys’ Fees and Expenses that, following application to the Court
and subject to Court approval, would be paid as the fee award and costs award to
Plaintiffs’ counsel. Class Counsel, on behalf of all plaintiffs’ counsel, will apply for an
award of Attorneys’ Fees and Expenses in the Actions in the amount of $80,200,000
3 In addition to these monetary benefits, each Subject Vehicle that receives an AEM will also receive an “Extended Modification Warranty” under the terms of the Consent Decree backing certain emissions-related components for a period equal to the greater of: (i) 10 years from date of initial sale or 120,000 miles on the odometer, whichever comes first; or (ii) 4 years or 48,000 miles from the date of installation of the Approved Emission Modification, whichever comes first. The warranty is transferable to subsequent purchasers and is not dependent on submitting a claim or remaining in the Class. Details of the Extended Modification Warranty can be found at www.mbbluetecsettlement.com and www.mbbluetecupdate.mbusa.com.
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in fees, plus up to $3,200,000 in expenses incurred before the Rule 23(e)(2) Fairness
Hearing. Mercedes has agreed not to oppose an application for these amounts.
IV. THE SETTLEMENT WARRANTS PRELIMINARY APPROVAL
A. The Standard and Procedures for Granting Preliminary Approval.
Rule 23(e) provides that the Court should direct notice for the settlement in a
reasonable manner and may approve a class action settlement after a hearing and
upon finding that the settlement is “fair, reasonable and adequate.” Fed. R. Civ. P.
23(e)(2). At the preliminary approval stage, a hearing is neither necessary nor
required under Rule 23(e), but “[t]he parties must provide the court with information
sufficient to enable it to determine whether to give notice of the proposal to the class,”
and a court is to direct notice to prospective class members “who would be bound by
the proposal if giving notice is justified by the parties’ showing that the court will
likely be able to . . . (i) approve the proposal under Rule 23(e)(2); and (ii) certify the
class for purposes of judgment on the proposal.” Fed. R. Civ. P. 23(e)(1)(A)-(B); see
also Ward v. Flagship Credit Acceptance LLC, 2020 WL 759389, at *4 (E.D. Pa. Feb.
13, 2020) (discussing revised preliminary approval test under Dec. 1, 2018 revisions
to Rule 23(e)).
The Third Circuit has long encouraged the settlement of class action litigation.
See Ehrheart v. Verizon Wireless, 609 F.3d 590, 595 (3d Cir. 2010) (“Settlement
agreements are to be encouraged because they promote the amicable resolution of
disputes and lighten the increasing load of litigation faced by the federal courts.”); In
re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 535 (3d Cir. 2004) (“there is an
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overriding public interest in settling class action litigation, and it should therefore be
encouraged”); In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig.,
55 F.3d 768, 784 (3d Cir. 1995) (“The law favors settlement, particularly in class
actions and other complex cases where substantial judicial resources can be
conserved by avoiding formal litigation.”).
As shown below, the Settlement warrants preliminary approval and
dissemination of notice to the Class.4
B. There is a Strong Basis to Conclude that the Settlement Is Fair, Reasonable, and Adequate and that the Rule 23(e)(2) Standards for Approval Will Be Met.
1. The proposed Settlement was reached after substantial litigation, including fulsome discovery and motion practice, and the benefits of the proposed Settlement far outweigh the risks of continued litigation.
As noted above, the Settlement comes after four and one-half years of spirited
litigation. That litigation saw extensive motion practice and entailed fulsome
discovery. Over the course of the litigation, the Parties exchanged formal,
comprehensive discovery requests and responses, negotiated ESI search terms,
4 At the final approval stage, courts in the Third Circuit prescribes a more rigorous nine-factor analysis to assess the fairness, adequacy, and reasonableness of a proposed class action settlement. The nine factors established by Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975), are: (1) the complexity, expense, and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risk of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. See also In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 301 (3d Cir. 2005).
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retained and consulted with multiple experts, and further exchanged extensive data
and information related to the Settlement Class Vehicles and damages during arm’s-
length settlement negotiations. Class Counsel have a clear view of the strengths and
weaknesses of the Class’s claims and damages approaches. Sufficient discovery has
been conducted here. As a result, the Parties are sufficiently well informed as to the
factual and legal issues relevant to this action.
In addition, the risk, expense, complexity, and duration of further litigation is
significant. The array of defense arguments on various issues that could narrow
Plaintiffs’ claims or certain segments of the Class include, among others: preemption;
choice of law; variations in law; arbitration clause enforcement; and lack of damages.
Mercedes continues to deny Plaintiffs’ claims and attack them. If the litigation went
ahead, other issues, such as motions to exclude material components of Plaintiffs’
evidence of liability and damages in expert reports could also undermine Plaintiffs’
case. Nor has a litigation class been certified. Were the Court to certify one,
Defendants would no doubt pursue a Rule 23(f) petition to the Third Circuit for
immediate review. The risk of maintaining class action status through trial is real.
Moreover, if Plaintiffs prevailed at trial, a long appeal period would certainly result.
The litigation road has been arduous and promises to be harder absent settlement.
In sum, this case was far from a “slam dunk” and, considering the substantial future
risks posed by trial and appeals, this is a laudable recovery that offers Settlement
Class Members an immediate recovery upon approval, rather than the uncertainties
of further litigation. All of these considerations allow counsel to unhesitatingly
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recommend the Settlement for the Court’s approval.
2. The Settlement yields robust benefits to the Class.
As detailed above, the Settlement provides hundreds-of-millions of dollars in
benefits for the Settlement Class. Also, the Settlement requires Court-awarded
attorneys’ fees and litigation expenses of up to $83,400,000 to be paid separately,
without reducing Class recovery. That is an additional valuable benefit to the Class,
which will be relieved from having to pay common benefit fees out of its recovery. In
sum, the Settlement is an excellent result for consumers after an extremely hard-
fought litigation, and the Settlement falls within the range of reasonableness when
compared to the risks posed by trial and issues in dispute. Its benefits are substantial
and, in large part, encompass or exceed the relief that could be obtained through a
jury verdict in favor the Class.5 Class Counsel, who have collectively served as class
counsel in hundreds of actions, fully endorse the Settlement as fair, reasonable, and
adequate.
3. The Settlement negotiations occurred at arm’s-length.
Parallel to the hard-fought litigation track, the Parties actively engaged in
many rounds of negotiations for over a year. The Parties negotiated arduously and
at arm’s-length under the supervision and aid of Judge Infante. This factor supports
preliminary approval. See Alves v. Main, 2012 WL 6043272, at *22 (D.N.J. Dec. 4,
2012) (“The participation of an independent mediator in settlement negotiations
5 The Settlement also compares favorably when compared to other recently approved diesel emissions class action settlements in the VW and FCA cases.
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‘virtually insures that the negotiations were conducted at arm’s-length and without
collusion between the parties.’”).
The negotiations involved submissions of proposals and counter-proposals, and
the evaluation of ample evidence and competing factual and legal arguments. The
Parties worked long and hard to resolve this matter. The result—a Settlement valued
at over $700 million—speaks for itself. It is Class Counsel’s reasoned opinion that,
given the alternative of long and complex litigation, and the risks involved in such
litigation, including a class certification battle, trial on the merits, and appeals, the
availability of robust relief under the Settlement weighs heavily in favor of
preliminary approval. See In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 259 (3d
Cir. 2009) (a settlement that would eliminate delay and expenses and provides
immediate benefit to the class strongly favors approval).
4. The proponents of the Settlement are experienced in similar litigation.
Class Counsel are highly experienced class action litigators. Throughout the
course of negotiations, Class Members were represented by a team of attorneys who
have considerable experience (and success) in prosecuting (and settling) class actions.
Their decision to settle after more than four years of hard-fought litigation and
evaluation of the claims weights in favor of the Court granting preliminary approval.
See In re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. Supp. 450, 543
(D.N.J. 1997) (“the Court credits the judgment of Plaintiffs’ Counsel, all of whom are
active, respected, and accomplished in this type of litigation.”); Varacallo v.
Massachusetts Mut. Life Ins. Co., 226 F.R.D. 207, 240 (D.N.J. 2005) (“[T]he Court
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puts credence in the fact that Class Counsel consider the Proposed Settlement to be
fair, reasonable and adequate.”); Alves, 2012 WL 6043272, at *22 (“[C]courts in this
Circuit traditionally attribute significant weight to the belief of experienced counsel
that settlement is in the best interest of the class.”) (citation and internal quotation
marks omitted).
V. THE COURT SHOULD CERTIFY THE PROPOSED CLASS FOR SETTLEMENT PURPOSES
Plaintiffs request, in accordance with Rule 23(e)(1)(B)(ii), that the Court
preliminarily certify a Settlement Class and direct dissemination of notice about the
action and the Settlement. Mercedes does not object to certification of the Settlement
Class for purposes of settlement only, and the Supreme Court has long acknowledged
the propriety of certifying a class solely for settlement purposes. See, e.g., Amchem
Prods, Inc. v. Windsor, 521 U.S. 591, 618 (1997). In conducting this task, a court’s
“dominant concern” is “whether a proposed class has sufficient unity so that the
absent members can fairly be bound by the decisions of class representatives.” Id. at
621. To be certified under Rule 23, a putative class must satisfy, by a preponderance
of the evidence, each of the four requirements of Rule 23(a) as well as the
requirements of one of the three subsections of Rule 23(b). See, e.g., Wragg v. Ortiz,
2020 WL 2745247, at *27 (D.N.J. May 27, 2020).
A. The Rule 23(a) Requirements Are Satisfied.
Plaintiffs must satisfy the numerosity, commonality, typicality, and adequacy
requirements of Rule 23(a). As shown below, the proposed Class readily satisfies all
four elements.
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1. Rule 23(a)(1) – Numerosity is present.
Rule 23(a)(1) requires that the class be “so numerous that joinder of all
members is impracticable.” Fed. R. Civ. P. 23(a)(1). “[G]enerally, where the potential
number of plaintiffs is likely to exceed forty members, the Rule 23(a) numerosity
requirement will be met.” Martinez-Santiago v. Public Storage, 312 FRD 380, 388
(D.N.J. 2015) (citing Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 595 (3d Cir.
2012)). With approximately 250,000 Subject Vehicles included, there can be no
dispute that the members of the proposed Class are so numerous as to make their
joinder impractical. See, e.g., Wragg, 2020 WL 2745247, at * 27 (numerosity “must
be based on common sense”) (citation and internal quotation marks omitted). Indeed,
courts routinely find numerosity in automotive class actions, as should be the case
here. See, e.g., In re Chrysler-Dodge Ecodiesel Mktg., Sales Practices, & Prods. Liab.
Litig., 2019 WL 536661, at *5 (N.D. Cal. Feb. 11, 2019) (numerosity satisfied for
comparable diesel emissions settlement). The numerosity test is readily satisfied.
2. Rule 23(a)(2) – There are issues common to all Class Members.
Rule 23(a)(2) requires that there be “questions of law or fact common to the
class,” and that the class members “have suffered the same injury.” Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 350, 369 (2011) (citation omitted and emphasis added).
In other words, the class’s claims must “depend upon a common contention ... capable
of class-wide resolution.” In re Wellbutrin XL Antitrust Litig., 282 F.R.D. 126, 137
(E.D. Pa. 2011) (citing Wal-Mart, 564 U.S. at 350). “A contention is capable of class-
wide resolution if determination of its truth or falsity will resolve an issue that is
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central to the validity the claims ‘in one stroke.’” Id. (quoting Wal-Mart, 564 U.S. at
350).
The commonality inquiry focuses on the defendant’s conduct. Sullivan v. DB
Invs., Inc, 667 F.3d 273, 297 (3d Cir. 2011) (en banc) (“commonality is informed by
the defendant’s conduct as to all class members and any resulting injuries common
to all class members”). Not all questions of fact and law need to be common if there
are common questions at the heart of the case. In re Warfarin Sodium Antitrust
Litig., 391 F.3d 516, 530 (3d Cir. 2004) (quotation omitted); In re Prudential Ins. Co.
Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 310 (3d Cir. 1998). “For
purposes of Rule 23(a)(2), even a single [common] question will do.” Wal-Mart, 564
U.S. at 359 (brackets in original; citation omitted).
In two analogous cases, commonality was found when the most significant
question concerns the existence of an alleged defeat device and emissions levels
higher than government regulations permit. See In re Volkswagen “Clean Diesel”
Mktg., Sales Practices, & Prods. Liab. Litig., 2016 WL 4010049, at *10 (N.D. Cal. July
26, 2016) (commonality satisfied for comparable diesel emissions settlement class);
In re Chrysler-Dodge Ecodiesel Mktg., Sales Practices, & Prods. Liab. Litig., 2019 WL
536661, at *5 (same). That central question is equally present here. The claims of
all Class Members involve the same advertising, the same vehicles, the same
emissions control technology and software, the same alleged defeat device, the same
conduct which focuses on the Defendants and not individual Class members, and so
on. These issues are at the heart of the case and are enough to satisfy the Rule
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23(a)(2) commonality element.
3. Rule 23(a)(3) – Typicality is satisfied.
Rule 23(a)(3) requires that a representative plaintiff’s claims be “typical” of
those of other class members. The Third Circuit has explained that “the named
plaintiffs’ claims must merely be ‘typical, in common-sense terms, of the class, thus
suggesting that the incentives of the plaintiffs are aligned with those of the class.’”
In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 598 (3d Cir. 2009) (citation
omitted); Johnston v. HBO Film Mgmt., 265 F.3d 178, 184 (3d Cir. 2001) (citation
omitted). Rule 23(a)(3), however, “does not require that all putative class members
share identical claims.” HBO, 265 F.3d at 184.
Under the permissive standards of this rule, representative claims are
“typical” if they are reasonably coextensive with those of absent class members and
they need not be identical. Indeed, when it is alleged that the defendant engaged in
conduct common to all members of the class, “there is a strong presumption that the
claims of the representative parties will be typical of the absent class members.” In
re Merck & Co., Vytorin/Zetia Sec. Litig., No. 08-cv-2177, 2012 WL 4482041, at *4
(D.N.J., Sept. 25, 2012) (citation omitted). Likewise, “[w]hen a class includes
purchasers of a variety of different products, a named plaintiff that purchases only
one type of product satisfies the typicality requirement if the alleged
misrepresentations or omissions apply uniformly across the different product types.”
Marcus 687 F.3d at 599; see also Yaeger v. Subaru of Am., Inc., 2016 WL 4541861, at
*6 (D.N.J. Aug. 31, 2016) (finding typicality where “plaintiffs allege that the class
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claims arise out of the same conduct of the defendants related to their design,
manufacture, and sale of the class vehicles that suffered from an alleged oil
consumption defect, and defendants’ alleged failure to disclose that material fact”).
The named Plaintiffs’ claims, and those of absent members of the Settlement
Class, arise from a common alleged course of conduct and under common legal
theories. Plaintiffs contend that Mercedes conspired with the Bosch defendants to
form an enterprise for unlawful purposes, thereby violating RICO. Plaintiffs allege
that Mercedes engaged in false advertising in violation of consumer protection laws
and committed fraud by selling vehicles with alleged defeat devices that allegedly
emit harmful pollutants at illegal high levels; not informing consumers of the alleged
defeat devices or the excessive emissions; and making material misstatements and
omissions in violation of RICO about the vehicles’ performance, fuel-efficiency, and
emissions, and whether the vehicles were environmentally friendly and met
emissions limits under everyday driving conditions. Plaintiffs allege that their
vehicles have the same alleged defeat devices as all other Class Vehicles and that
they purchased or leased vehicles that emit excessive pollutants without knowing the
truth about the vehicles’ “real world” emissions. See Volkswagen, 2016 WL 4010049,
at *11 (typicality satisfied for diesel emissions settlement class); In re Chrysler-Dodge
Ecodiesel Mktg., Sales Practices, & Prods. Liab. Litig., 2019 WL 536661, at *5-6 (N.D.
Cal. Feb. 11, 2019) (same). These claims are typical of the claims of every member of
the Class.
4. Rule 23(a)(4) – Adequacy is satisfied.
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The final requirement of Rule 23(a) requires that “the representative parties
will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4).
In the Third Circuit, the relevant inquiries are (1) whether the named plaintiffs have any
interests antagonistic with other class members and (2) whether the named plaintiffs’
counsel are qualified, experienced, and able to conduct the proposed litigation. In re
Schering Plough Corp., 589 F.3d at 602.6 The core analysis for the first prong is
whether Plaintiffs have interests antagonistic to those of absent members of the
Settlement Class. The second prong analyzes the capabilities and performance of
Class Counsel based on factors set forth in Rule 23(g). See Sheinberg v. Sorensen,
606 F.3d 130, 132 (3d Cir. 2010). Plaintiffs satisfy both prongs.
First, the proposed Class Representatives interests “are entirely aligned [with
those of the proposed Class] in their interest in proving that [Defendants] misled
them and share the common goal of obtaining redress for their injuries.” Volkswagen,
2016 WL 4010049, at *11; see also In re Chrysler-Dodge Ecodiesel Mktg., Sales
Practices, & Prods. Liab. Litig., 2019 WL 536661, at *6 (same). The Class
Representatives have had every incentive to vigorously prosecute this litigation
against Mercedes because, as discussed above, their claims are typical of the absent
Class Members. E.g., Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 158 (S.D.N.Y.
6 “The adequacy of representation requirement tends to merge with the commonality and typicality criteria of Rule 23(a), which serve as guideposts for determining whether . . . maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. The adequacy heading also factors in competency and conflicts of class counsel.” Amchem Prods., Inc., 521 U.S. at 626 n.20 (citation and internal quotation marks omitted).
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2008) (“The fact that plaintiffs’ claims are typical of the class is strong evidence that
their interests are not antagonistic to those of the class; the same strategies that will
vindicate plaintiffs’ claims will vindicate those of the class.”); Emig v. Am. Tobacco
Co., 184 F.R.D. 379, 387 (D. Kan. 1998) (noting that “[a]n overlap exists in the
typicality and adequacy of representation requirements because if typicality is not
present, the class representatives do not have an incentive to vigorously prosecute
class claims”).
The Class Representatives also understand their duties: they have all kept
abreast of the litigation and aided in discovery, and many have submitted to
depositions. There can be no reasoned argument that any of the Class
Representatives have conflicts antagonistic to the Class, and the Court should
conclude that they will—and have—adequately represented the Class.
Likewise, Plaintiffs’ choice of counsel further underscores their adequacy. See
In re Cmty. Bank of N. Va., 622 F.3d 275, 292 (3d Cir. 2010) (“Realistically, for
purposes of determining adequate representation, the performance of class counsel is
intertwined with that of the class representative.” (citation and internal quotation
marks omitted). In retaining, Carella Byrne, Hagens Berman, and Seeger Weiss,
Plaintiffs have employed counsel who are qualified and experienced in complex class
litigation and who have the resources, zeal, and successful record in class cases. 7
There can be no genuine question that the proposed Class Representatives are
7 The fitness of these three firms to adequately represent the Class is further addressed in Section V-C below in connection with their qualifications for appointment as Class Counsel under Rule 23(g).
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adequate.
5. The proposed Class is ascertainable.
Although not specified in the text of Rule 23, courts, including this District,
imply a prerequisite that the proposed class be ascertainable. E.g., Shelton v.
Bledsoe, 775 F.3d 554, 559 (3d Cir. 2015). “The ascertainability inquiry is two-fold,
requiring a plaintiff to show that: (1) the class is ‘defined with reference to objective
criteria’; and (2) there is ‘a reliable and administratively feasible mechanism for
determining whether putative class members fall within the class definition.’” Byrd
v. Aaron's Inc., 784 F.3d 154, 163 (3d Cir. 2015) (citations omitted); City Select Auto
Sales Inc. v. BMW Bank of N. Am. Inc., 867 F.3d 434, 439 (3d Cir. 2017).
Here, the Class definition uses objective criteria that make class membership
objectively verifiable, and there is a reliable and administratively feasible mechanism
through which qualified Class Members will be readily identified: registration data
available from State DMV’s and third-party vendors.
B. As Required by Rule 23(b)(3), Common Issues Predominate and Class Treatment is Superior to a Multiplicity of Individual Lawsuits.
Under Rule 23(b)(3), a class should be certified when the court finds that
common questions of law or fact predominate over individual issues and a class action
would be superior to other methods of resolving the controversy.
The predominance element “tests whether proposed classes are sufficiently
cohesive to warrant adjudication by representation.” Amchem Prods, Inc., 521 U.S.
at 623. At its core, “[p]redominance is a question of efficiency.” Butler v. Sears,
Roebuck & Co., 702 F.3d 359, 362 (7the Cir. 2012). The superiority component
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requires the court “to balance, in terms of fairness and efficiency, the merits of a class
action against those of alternative methods’ of adjudication.” Prudential, 148 F.3d at
316 (citation omitted). Here, the Class readily meets both requirements.
First, common issues predominate. The predominance inquiry focuses on
liability issues. E.g., In re Novo Nordisk Sec. Litig., 2020 WL 502176, at *8 (D.N.J.
Jan. 31, 2020) (“In determining whether common questions predominate, courts have
focused on the claims of liability against defendants.”) (citing cases). The common
questions discussed above with respect to the Rule 23(a)(2) commonality element are
overarching and thus tower over issues relating to individual Class Members.
Factual and legal questions aside, the salient evidence necessary to prove Plaintiffs’
claims is common to both the Class Representatives and all Class Members—all
would seek to prove that the Class Vehicles have an emissions defeat device, that
Defendants misled regulators and consumers by concealing the emissions defeat
device, and that Defendants’ conduct was wrongful. Moreover, the necessary proof
would be generalized; it change little, if at all, whether there are dozens or half a
million Class Members. In either instance, Plaintiffs would present the same
evidence of Defendants’ marketing, and the same evidence of alleged wrongdoing.
See Volkswagen, 2016 WL 4010049, at *12; see also In re Chrysler-Dodge Ecodiesel
Mktg., Sales Practices, & Prods. Liab. Litig., 2019 WL 536661, at *7. In other words,
the Class’s claims depend on the same factual circumstances, In re Valeant Pharm.
Int’l, Inc. Sec. Litig., 2020 WL 3166456, at *5 (D.N.J. June 15, 2020), and “the claims
present common operative facts and common questions of law that predominate” over
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any factual variations. See Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045
(2016) (“When ‘one or more of the central issues in the action are common to the class
and can be said to predominate, the action may be considered proper under Rule
23(b)(3) even though other important matters will have to be tried separately, such
as damages or some affirmative defenses peculiar to some individual class
members.’”). The predominance test is thus satisfied.
Second, certification of the Class under Rule 23 is “superior to other available
methods for the fair and efficient adjudication of the controversy.” Fed. R Civ. P.
23(b)(3). The Settlement affords benefits to Class Members who, absent a class
settlement, may not have been aware of their legal rights or had too little an incentive
to pursue an individual suit involving emissions defeat devices in their vehicles. The
presence of the alleged defeat device was never disclosed and is still contested by
Mercedes. The high cost of marshaling the evidence (expert, sophisticated electronic
discovery, discovery in foreign languages, and so on) necessary to pursue the claims
at issue dwarfs any individual consumer’s potential recovery and the disparity in
resources between individuals and well-funded, litigation-savvy defendant like
Mercedes. This Court has recognized that the existence of so-called “negative value”
claims—“meaning it costs more to litigate than you would get if you won,” Stolt-
Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 675 n.7 (2010) (citation and
internal quotation marks omitted)—is typically “the most compelling rationale for
finding superiority” of class treatment. Reap v. Cont’l Cas. Co., 199 F.R.D. 536,
550 (D.N.J. 2001) (citation and internal quotation marks omitted; emphasis added).
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Indeed, Class Counsel have already devoted significant time and resources to
this litigation, including multiple rounds of motions to dismiss, discovery briefing,
depositions, document review, retaining experts, and engaging in other significant
efforts on many other issues. It is inconceivable than an individual vehicle owner
pursuing a purely economic loss case could or would invest the same resources. Cf.
Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004) (“[O]nly a lunatic
or a fanatic sues for $30.”).
Certification also serves the interest of judicial economy by avoiding multiple
similar lawsuits and resolving claims affected hundreds of thousands of vehicles in
one proceeding. Even a few duplicative individual suits would needlessly burden the
courts and risk inconsistent adjudications. See In re Neurontin Antitrust Litig., 2011
WL 286118, at *11 (D.N.J. Jan. 25, 2011) (“The class action mechanism ... avoids the
specter of inconsistent adjudications.”) (citation and internal quotation marks
omitted).
Thus, class action treatment is far superior to individual adjudication.
Moreover, because this is a class certified only for purposes of settlement,
manageability concerns associated with a litigation class are irrelevant. Amchem
Prods, Inc., 521 U.S. at 620. Nevertheless, were this a proposal for certification of a
litigation class, there would be no serious manageability problems that would make
thousands of individual actions a better alternative. See In re Chrysler-Dodge
Ecodiesel Mktg., Sales Practices, & Prods. Liab. Litig., 2019 WL 536661, at *6
(superiority satisfied in comparable diesel emissions defeat device case). The Rule
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23(b)(3) superiority component is thus also met here.
C. Proposed Class Counsel Satisfy Rule 23(g).
Pursuant to Rule 23(g), Plaintiffs also move for appointment of the law firms
of Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C., Hagens Berman Sobol
Shapiro LLP, and Seeger Weiss LLP as Class Counsel. Rule 23(g) focuses on the
qualifications of class counsel, complementing the requirement of Rule 23(a)(4) that
the representative parties adequately represent the interests of the class members.
See Sheinberg v. Sorensen, 606 F.3d 130, 132-3 (3d Cir. 2010) (“Although questions
concerning the adequacy of class counsel were traditionally analyzed under the aegis
of the adequate representation requirement of Rule 23(a)(4) of the Federal Rules of
Civil Procedure, those questions have, since 2003, been governed by Rule 23(g).”).
Although a court may consider any factor concerning the proposed class counsel’s
ability to “fairly and adequately represent the interest of the class,” Rule 23(g)
specifically instructs a court to consider:
(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.
Fed. R. Civ. P. 23(g)(1)(A).
Here, each of the Rule 23(g)(1)(A)’s considerations weigh strongly in favor of
finding Class Counsel adequate. Class Counsel did substantial work identifying and
investigating potential claims and properly supporting the allegations in the
Complaints. As part of their investigation and work, Class Counsel retained and
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consulted with multiple experts in different fields, and carefully reviewed public
materials along with all documents and information produced by all Defendants and
third parties in discovery.
As the Court is aware, Class Counsel have substantial experience, individually
and collectively, successfully prosecuting class actions and other complex litigation,
including claims of the type asserted in this action. Class Counsel’s extensive efforts
in prosecuting this case, combined with their in-depth knowledge of the subject area,
amply satisfy the criteria for appointment under Rule 23(g).
VI. THE FORM AND MANNER OF NOTICE ARE PROPER
Reasonable notice must be provided to Class Members to allow them an
opportunity to object to the proposed Settlement or to opt out of the Class if they do
desire. The way that class notice is distributed, as well as its content, must satisfy Rule
23(c)(2) (governing class certification notice), Rule 23(e)(1) (governing settlement
notice), and due process. See In re Ocean Power Techs, Inc., 2016 WL 6778218, at *9
(D.N.J. Nov. 15, 2016); Kaplan v. Chertoff, 2008 WL 200108, at *12-3 (E.D. Pa. Jan.
24, 2008). Rule 23(e) requires that “[t]he court must direct notice in a reasonable
manner to all class members who would be bound by the proposal.”
Fed. R. Civ. P. 23(e)(1)(B). “Due process requires that notice be ‘reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their objections.’” In re Nat'l
Football League Players Concussion Injury Litig., 821 F.3d 410, 446 (3d Cir. 2016)
(citation omitted). Additionally, Rule 23(c)(2) requires “the best notice practicable
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under the circumstances, including individual notice to all members who can be
identified through reasonable effort,” Fed. R. Civ. P. 23(c)(2)(B), and such notice
should contain sufficient information “‘to enable class members to make informed
decisions on whether they should take steps to protect their rights, including objecting
to the settlement or, when relevant, opting out of the class.’” In re Ocean Power
Techs., Inc., 2016 WL 6778218 at *10 (quoting In re Nat'l Football League Players
Concussion Injury Litig., 821 F.3d at 435). Furthermore, “[i]t is well settled that in
the usual situation first-class mail and publication fully satisfy the notice
requirements of both Fed. R. Civ. P. 23 and the due process clause.” Id. (quoting
Zimmer Paper Prods., Inc. v. Berger & Montague, P.C., 758 F.2d 86, 90 (3d Cir. 1985)).
Here, the content of the Class Notice satisfies all requirements. The proposed
Class Notice is written in plain English and is easy to read. It includes: (1) a
description of the Class; (2) a description of the claims asserted in the action; (3) a
description of the Settlement and release of claims; (4) the deadlines for exercising
the right to opt-out; (5) the identity of counsel for the Class; (6) the Final Approval
Hearing date; (7) an explanation of eligibility for appearing at the Final Approval
Hearing; and (8) the deadline for objecting to the Settlement. The Class Notice
provides Settlement Class Members with clear and correct information about the
nature and principal terms of the Settlement Agreement to make an informed and
intelligent decision whether to object to the Settlement or opt out. In addition, under
Rule 23(h), the proposed Class Notice sets forth the maximum amount of Attorneys’
Fees and Expenses and Case Contribution Awards that may be awarded under the
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Settlement Agreement.
The proposed plan for dissemination of the Class Notice likewise satisfies all
Rule 23 and due process requirements, as set forth in the Settlement Administrator’s
(JND Legal Administration) declaration. The proposed Notice Program was
designed to reach the greatest practicable number of Class Members. Direct mail
notice via U.S. mail and email notice (where available) will be the principal methods
of notice, providing Class Members with an opportunity to read, review, and
understand their rights and options in this Class Action Settlement. Under the
Settlement Agreement, the Settlement Administrator will send individualized Class
Notices and Claims Forms to Settlement Class Members by first-class mail. Mail
Notice will be sent to the last known address reflected in state DMV registration
records for each Class Member. Additionally, before the mailing of the Class Notice,
an address search through the National Change of Address database will be
conducted. For any mailed notice that is returned as undeliverable, the Settlement
Administrator will re-mail the Class Notice where a forwarding address has been
provided. For any remaining undeliverable notice packets, the Settlement
Administrator will perform an advanced address search (e.g., a skip trace) and re-
mail any undeliverable Class Notices if any new and current address are found.
Notice will also be emailed to all Class Members for whom a valid email address is
obtained. See Declaration of Jennifer M. Keough Regarding Proposed Notice
Program (“Keough Decl.”).
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In addition, a dedicated website,8 toll free number,9 email account,10 and post
office box11 have been (or will soon be) established so that Class Members can readily
direct any questions, obtain additional copies of materials sent by the Settlement
Administrator, and find instructions on how to submit a Claim. See Keough Decl.
The proposed Class Notice and notice program comply with the standards of
fairness, completeness, and neutrality required of a settlement class notice
distributed under authority of the Court. The Parties respectfully ask that the Court
approve retention of JND Legal Administration as the Settlement Administrator to
oversee notice and claims administration for this Settlement. JND Legal
Administration, which has successfully administered numerous complex class action
settlements has been retained on competitive and favorable terms. And the costs of
notice and claims administration are being paid by Mercedes separately, not
decreasing Class recovery.12
VII. THE C OURT SHOULD SET SETTLEMENT DEADLINES AND SCHEDULE A FAIRNESS HEARING
If it preliminarily approves the proposed Settlement, the Court should also set
a final approval hearing date, dates for mailing the Notices, and deadlines for
objecting to the Settlement and filing papers in support of the Settlement. Plaintiffs
8 www.mbbluetecsettlement.com. 9 1-877-313-0170. 10 [email protected]. 11 MB Blue Tec Settlement, c/o JND Legal Administration, P.O. Box 91310, Seattle, WA 98111. 12 See, e.g., https://www.jndla.com/cases/class-action-administration.
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propose the following schedule, which the Parties believe will provide ample time and
opportunity for Class Members to decide whether to request exclusion or object. The
schedule provided in the proposed Preliminary Approval order is driven by the date
on which preliminary approval of the Settlement is granted and the date selected for
the final approval hearing. Specifically, it provides the following:
Event Proposed Date
Class Notice Program and Claims Within 15 business days after the Period begins entry of the Preliminary Approval Order or the entry of the US-CA Consent Decree, whichever is later
Motion for Attorneys’ Fees and 30 days after Notice Date Expenses Application filed
Objection and Opt-Out Deadline 60 days after Notice Date
Motion for Final Approval filed 90 days after Notice Date
Fairness Hearing 110 days after Notice Date
To allow adequate time to obtain necessary information from the state DMVs
and for mailing notices, and for the requisite coordination with the Mercedes
Defendants’ regulatory resolution that provides for the AEMs, Plaintiffs request that
the Court promptly enter the proposed Preliminary Approval Order. If the Court
enters the Preliminary Approval Order this week, Plaintiffs respectfully submit that
the Fairness Hearing can be scheduled at a date and time convenient to the Court
within 110 days of the Notice Date, or as soon thereafter as convenient for the Court.
The parties will inform the Court of the calendar date that should be considered the
Notice Date as soon it becomes known.
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VIII. C ONCLUSION
For all these reasons, the Court should grant preliminary approval of the
proposed Settlement and enter the accompanying proposed Preliminary Approval
Order.
Dated: September 14, 2020 Respectfully submitted,
CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C.
By /s/ James E. Cecchi JAMES E. CECCHI
By /s/ Steve W. Berman STEVE W. BERMAN Sean R. Matt Andrew M. Volk Shelby R. Smith HAGENS BERMAN SOBOL SHAPIRO LLP 1918 8th Avenue, Suite 3300 Seattle, Washington 98101 Tel: (206) 623-7292
By /s/ Christopher A. Seeger CHRISTOPHER A. SEEGER Jennife r R. Scullio n SEEGER WEISS LLP 55 Challenger Road Ridgefield Park, New Jersey 07660 Tel: (973) 639-9100
Counsel for Plaintiffs and the Class
33 Case 2:16-cv-00881-KM-ESK Document 299-2 Filed 09/14/20 Page 1 of 164 PageID: 8839
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
Civil Action No. 2:16-CV-881 (KM)(ESK) IN RE MERCEDES-BENZ EMISSIONS LITIGATION DECLARATION OF STEVE W. BERMAN IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL
I, Steve W. Berman, declare and state as follows:
1. I am the Managing Partner of Hagens Berman Sobol Shapiro LLP
and part of the Co-Lead Counsel team for Plaintiffs in this case. This Declaration
is based on my personal knowledge, and if called upon to do so, I could and would
testify competently thereto.
2. This has been a hard-fought litigation marked by Defendants’ stiff
resistance and litigation of so many issues that identifying them all here would be
impractical.
3. The first complaint kicking off this litigation was filed in 2016. It was
the result of an in-depth investigation conducted by counsel, which retained technical
diesel emissions experts who tested several Mercedes BlueTEC II vehicles.
4. The current operative complaint—which is the Fifth Consolidated and
Amended Class Action Complaint—is the product of an iterative process in response
to multiple motions to dismiss by Defendants. Plaintiffs largely survived four
motions to dismiss filed by Defendants.
1 010585-11 1344416V1
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5. A myriad of discovery disputes followed. In April 2019, the Court
appointed as Special Master the Honorable Dennis Cavanaugh (Ret.), who played a
very active role in resolving discovery disputes and frequently holding case
management and discovery conferences. Approximately 20 discovery motions were
briefed. The disputes included whether statutory European privacy protections
applied to litigation in the United States; the scope of custodians to be searched by
Defendants for responsive documents; the manner and scope of electronic searches,
including whether Technology-Assisted Review would be utilized; the scope of “clean
diesel” discovery and Bosch productions from other litigation; several miscellaneous
motions to compel directed at Defendants; and defense motions to compel Plaintiffs.
Some of these issues required multiple rounds of briefing.
6. Notwithstanding the challenges that Plaintiffs faced in obtaining
discovery from Defendants in this case, we were able to obtain fulsome discovery.
Indeed, sufficient discovery was obtained to fully inform Plaintiffs’ Co-Lead Counsel’s
decision to enter into and recommend the Settlement.
7. Plaintiffs served 91 Requests for Production on the Mercedes
Defendants and another 59 requests on the Bosch Defendants. Plaintiffs served
subpoenas on 11 third parties. The Mercedes and the Bosch Defendants produced
approximately 43,920 documents comprising more than 331,000 pages. Plaintiffs set
up extensive review teams to review and code the documents, a process that sifted
the documents into “cold,” “warm,” and “hot” categories and quickly identified the
documents that were most relevant to proving Plaintiffs’ legal claims and damages.
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In addition, Plaintiffs’ experts reviewed much of the technical discovery that was
produced and helped guide our trial preparations.
8. Depositions were underway when the Parties reached the proposed
Settlement. Plaintiffs took Rule 30(b)(6) depositions of Mercedes-Benz USA, LLC
and Bosch LLC, respectively, while Defendants took the depositions of five Plaintiffs.
9. Settlement was a long time coming and was reached only after extensive
mediation efforts. Over the course of approximately one year, the Parties held seven
full-day and two half-day mediation sessions with retired Judge Edward A. Infante.
Mediation efforts also entailed additional conference calls with Judge Infante and
additional calls between the Parties.
10. Attached as Exhibit A hereto is a true and correct copy of the Class
Action Settlement Agreement and Release, along with all of its exhibits.
11. The proposed Settlement is a favorable resolution for the Class that
avoids the substantial risks and expense of continued litigation, including the risk of
recovering less than the Settlement amount, or nothing at all. The proposed
Settlement Agreement resulted from arm’s-length, good faith negotiations between
and among experienced counsel under the auspices of a respected and experienced
mediator, Judge Infante. It provides a fair, reasonable, and adequate resolution of
this litigation, which will substantially reduce costs and the expenditure of resources,
eliminate the risk of uncertain litigation outcomes, and prevent further delay in
remedying the harms suffered by Class Members. Furthermore, this Settlement,
along with resolution of government enforcement actions and payment of fines, not
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only resolves Plaintiffs’ claims but also facilitates the end of the Mercedes Defendants
alleged misconduct in unlawfully manipulating the emissions systems in the Subject
Vehicles. Co-Lead Counsel fully recommend the Settlement and respectfully request
that the Court grant preliminary approval.
I declare under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct.
Executed on September 14, 2020, in Seattle, Washington.
______/s/ Steve W. Berman______Steve W. Berman
4 010585-11 1344416V1
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EXHIBIT A Case 2:16-cv-00881-KM-ESK Document 299-2 Filed 09/14/20 Page 6 of 164 PageID: 8844
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Civil Action: 16-cv-881 (KM) (ESK)
IN RE MERCEDES-BENZ EMISSIONS
LITIGATION ELECTRONICALLY FILED
CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE
James E. Cecchi Daniel W. Nelson Caroline F. Bartlett Geoffrey M. Sigler Donald A. Ecklund Lucas C. Townsend CARELLA, BYRNE, CECCHI, OLSTEIN, Chantale Fiebig BRODY, & AGNELLO, P.C. Gibson, Dunn & Crutcher LLP 5 Becker Farm Rd. 1050 Connecticut Avenue, N.W. Roseland, NJ 07068 Washington, D.C. 20036-5306 Tel: (973) 994-1700 Tel: (202) 887-3731 Fax: (202) 530-4254 Steve W. Berman Sean R. Matt Troy M. Yoshino HAGENS BERMAN SOBOL SHAPIRO LLP Matthew J. Kemner 1301 2nd Ave., Suite 2000 Eric J. Knapp Seattle, WA 98101 Squire Patton Boggs (US) LLP Tel: (206) 623-7292 275 Battery Street, Suite 2600 Fax: (206) 623-0594 San Francisco, CA 94111 Tel: (415) 743-2441 Christopher A. Seeger Fax: (415) 989-0932 Jennifer Scullion David Tawil Attorneys for Defendants Mercedes-Benz SEEGER WEISS LLP USA, LLC and Daimler AG
55 Challenger Road, 6th Floor Ridgefield Park, NJ 07660 Tel: (973) 639-9100 Fax: (973) 639-9393 [email protected]
Lead Counsel for the Proposed Settlement Class
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TABLE OF CONTENTS Page 1. THE PROPOSED SETTLEMENT...... 3 2. DEFINITIONS ...... 4 3. DENIAL OF ANY WRONGDOING AND LIABILITY ...... 18 4. PRELIMINARY APPROVAL ...... 18 5. CLASS MEMBER COMPENSATION AND REMEDIES ...... 19 6. CLASS CLAIMS PROCESS AND ADMINISTRATION ...... 36 7. REQUESTS FOR EXCLUSION ...... 37 8. OBJECTIONS TO THE SETTLEMENT ...... 38 9. DUTIES OF THE SETTLEMENT ADMINISTRATOR ...... 40 10. RELEASE AND WAIVER ...... 41 11. ATTORNEYS’ FEES AND COSTS ...... 48 12. AGREEMENT TO COOPERATE TO EFFECTUATE SETTLEMENT ...... 49 13. MODIFICATION OR TERMINATION OF THIS CLASS ACTION AGREEMENT ...... 50 14. COVID-19...... 53 15. REPRESENTATIONS AND WARRANTIES ...... 53 16. GENERAL MATTERS AND RESERVATIONS ...... 55
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1. THE PROPOSED SETTLEMENT On February 18, 2016, Plaintiffs filed this lawsuit against Daimler AG (“Daimler”) and Mercedes-Benz USA, LLC (“MBUSA”) (together, the “Mercedes Defendants”) in the United States District Court for the District of New Jersey, relating to the Mercedes Defendants’ marketing and sale of Mercedes-Benz BlueTEC II diesel vehicles. After extensive litigation and settlement efforts facilitated by mediator Hon. Edward A. Infante (Ret.), Plaintiffs and the Mercedes Defendants have reached this agreement to resolve consumers’ claims related to the BlueTEC II vehicles sold or leased in the United States (the “Class Action Agreement” or the “Class Action Settlement”). As detailed below, the Class Action Settlement, if approved by the Court, provides substantial compensation and relief to all eligible Class Members. Pursuant to a proposed Consent Decree with the Department of Justice (“DOJ”), the Environmental Protection Agency (“EPA”), and the California Attorney General (“CA AG”), acting on behalf of the California Air Resources Board (“CARB”), the Mercedes Defendants will provide Approved Emission Modifications (“AEMs”)—modifications of the emission control system software calibration and certain related hardware—that ensure that the vehicles meet the emissions standards to which they were originally certified. Upon entry by a federal district court, the proposed Consent Decree (the “US-CA Consent Decree”) will resolve the agencies’ allegations that certain software functions and calibrations in BlueTEC II vehicles reduced the effectiveness of the vehicles’ emission control systems. Daimler has developed, and the EPA and CARB have approved, AEMs for approximately 123,000 currently registered vehicles. Proposed emission modifications for the remaining BlueTEC II vehicles are scheduled to be submitted for approval during the years 2020 and 2021. The Class Action Agreement provides eligible Class Members with cash payments and other benefits. The Class Action Agreement is a claims-made settlement. The compensation pursuant to the Class Action Settlement is available only to Class Members who do not opt out
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of the Class and who submit Valid Claims in the Claims Program. The amount the Mercedes Defendants will pay under the Class Action Agreement depends on how many Class Members submit Valid Claims. The ultimate goal of the Class Action Agreement is to resolve Plaintiffs’ claims against the Mercedes Defendants in this Action, compensate eligible Class Members, and incentivize owners and lessees to have the AEMs installed in their vehicles. The Benefits provided by this Class Action Agreement will become available only upon, and after, the US-CA Consent Decree is entered by a federal district court and this Class Action Settlement receives final approval from this Court. 2. DEFINITIONS As used in this Class Action Agreement (which, as defined below, includes the attached Exhibits), the terms defined herein have the following meanings. 2.1. “Action” means the class actions that have been consolidated in the United States District Court for the District of New Jersey in In re Mercedes-Benz Emissions Litigation, No. 2:16-cv-0881-KM-ESK (D.N.J.). 2.2. “AEM Availability Deadline” means the date on which, if an AEM for a Subject Vehicle is not available, Class Members who own or lease an affected Registered Subject Vehicle become eligible and may file a Claim for a Class Member Payment pursuant to Sections 5.3.4 or 5.3.5. The AEM Availability Deadline is October 1, 2022. However, if the deadline to submit an Emission Modification Proposal Report for a Subject Vehicle is extended beyond November 8, 2021 pursuant to the terms of the US-CA Consent Decree, the AEM Availability Deadline shall be extended by the number of days that the last deadline to submit an Emission Modification Proposal Report extends beyond November 8, 2021. 2.3. “Approved Emission Modification(s)” or “AEM(s)” means modifications to the emissions software and certain related hardware of vehicles in the Emission Modification Categories, as proposed by the Mercedes Defendants and approved by EPA and CARB, pursuant to Appendix B, Paragraphs 4-5 of the US-CA Consent Decree.
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2.4. “Authorized Service Provider” means a Dealer or any other entity authorized by the Mercedes Defendants to install the Approved Emission Modification. 2.5. “Benefits” means all consideration made available to the Class Members pursuant to this Class Action Settlement, including but not limited to Class Member Payments. 2.6. “BlueTEC Diesel Matter” means all claims arising from or in any way relating to: (1) the design, manufacture, assembly, testing, development, installation, performance, presence, disclosure, or nondisclosure of any auxiliary emission control device (“AECD”) (as defined in 40 C.F.R. § 86.1803-01) or defeat device (as defined in 40 C.F.R. § 86.1803-01 or 42 U.S.C. § 7522(a)(3)(B)) in any Subject Vehicle, as that term is defined in Section 2.70; (2) the design, manufacture, assembly, testing, development, installation, or performance of emission control equipment and methods and related hardware or software in Subject Vehicles, including Diesel Exhaust Fluid and associated equipment, Selective Catalytic Reduction systems, electronic control units, and emission-related software programming, coding, and calibrations; (3) overpayment or diminution in value related to the design, manufacture, assembly, testing, development, installation, or performance of emission control equipment and methods and related hardware or software in Subject Vehicles; (4) the actual or alleged noncompliance of any Subject Vehicle with state or federal environmental or emissions standards; (5) the marketing or advertisement of the emissions or environmental characteristics or performance of any Subject Vehicle, including as clean diesel, clean, low emissions, green, environmentally friendly, and/or compliant with state or federal environmental or emissions standards; (6) the marketing or advertisement of the fuel efficiency, fuel economy, mileage, power, drivability, or performance of any Subject Vehicle, to the extent related in any way to the emissions performance, the design, manufacture, assembly, testing, development, installation, or performance of emission control equipment and methods, and related hardware or software; (7) any badges, signage, or BlueTEC labels on the Subject Vehicles, including any badges or signage placed on the Subject Vehicles at the point of sale or in an advertisement; (8) performance of the AEM in a Subject
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Vehicle, exclusive of the Extended Modification Warranty and any “Lemon Law” protections available to Class Members; (9) whether the Subject Vehicles meet or exceed (or met or exceeded) consumer expectations, to the extent related in any way to the emissions performance, the design, manufacture, assembly, testing, development, installation, or performance of emission control equipment, and methods and related hardware or software; or (10) the subject matter of the Action as well as events or allegations related to the Action, with respect to the Subject Vehicles. Without limiting the foregoing, “BlueTEC Diesel Matter” includes allegations that (i) are related to any Subject Vehicle, (ii) relate to conduct by a Released Party that predates the date of this Class Action Settlement, and (iii) formed or relate to the factual basis for a claim that was made or could have been made in the Complaint. 2.7. “CARB” means the California Air Resources Board and any of its successor departments or agencies. 2.8. “Claim” means the claim of any Class Member or their representative submitted on a Claim Form as provided in this Class Action Agreement. Class Members will not be required to submit more than one Claim Form per Subject Vehicle to receive Benefits. 2.9. “Claim Form” means the paper or online form used to submit a Claim for a Class Member Payment under this Class Action Agreement. The Claim Form is attached as Exhibit 4. 2.10. “Claim Submission Deadline for Eligible Former Owners/Lessees” means the latest date by which an Eligible Former Owner/Lessee may submit a Claim to participate in the Claims Program. The Claim Submission Deadline for Eligible Former Owners/Lessees is the later of (1) 75 days after the Notice Date; or (2) the date of the Final Approval Order. 2.11. “Claim Submission Deadline for Eligible Current Owners/Lessees” means the latest date by which an Eligible Current Owner/Lessee may submit a Claim to participate in the Claims Program. The Claim Submission Deadline for Eligible Current Owners/Lessees is October 1, 2022, except under the following circumstances:
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2.11.1. If an Approved Emission Modification for a Subject Vehicle becomes available less than 60 days before October 1, 2022, then Eligible Current Owners/Lessees of the affected Registered Subject Vehicle may file a Claim for an Owner/Lessee Payment or Post-Announcement Owner/Lessee Payment (as applicable) within 60 days of the date on which the AEM becomes available, in accordance with the claims process described in Sections 5-6; and 2.11.2. If an AEM for a Subject Vehicle is not available by the AEM Availability Deadline, Class Members who own or lease the affected Registered Subject Vehicles on the AEM Availability Deadline may file a Claim within 60 days to receive a Class Member Payment, pursuant to Sections 5.3.4 or 5.3.5, as applicable; and 2.11.3. If the AEM Availability Deadline is extended pursuant to Section 2.2, and an AEM becomes available by the AEM Availability Deadline but after October 1, 2022, then Eligible Current Owners/Lessees of the affected Registered Subject Vehicle may file a Claim for an Owner/Lessee Payment or Post-Announcement Owner/Lessee Payment (as applicable) within 60 days of the date on which the AEM becomes available, in accordance with the claims process described in Sections 5- 6. 2.11.4. For the purpose of Sections 2.11.1-2.11.3, an AEM is “available” on the date the Mercedes Defendants post the Consumer Emission Modification Disclosure pertaining to that AEM on the Settlement Website.
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2.12. “Claims Program” means the program through which Class Members may submit Claims and, if eligible, obtain benefits under this Class Action Agreement, as described in Sections 5-6. 2.13. “Claims Review Committee” or “CRC” means the committee approved by the Court to resolve disputes regarding whether Subject Vehicles are Operable, as defined herein, and regarding the implementation of the Extended Modification Warranty. The CRC is described more fully in Section 5.7. 2.14. “Class” means, for purposes of this Class Action Settlement only, a nationwide class, including territories of the United States, of all Persons who (1) on or before the Settlement Announcement Date owned or leased, and Registered, a Subject Vehicle, or (2) after the Settlement Announcement Date begin owning or leasing, and Register, a Subject Vehicle for which an AEM has not been installed. The following entities and individuals are excluded from the Class: (a) The Mercedes Defendants and their officers, directors, and employees; the Mercedes Defendants’ corporate affiliates and corporate affiliates’ officers, directors, and employees; their distributors and distributors’ officers, directors, and employees; (b) Judicial officers and their immediate family members and associated court staff assigned to this case; (c) Persons who have settled with, released, or otherwise had claims adjudicated on the merits against the Mercedes Defendants arising from the same core allegations or circumstances as the BlueTEC Diesel Matter; and (d) All Persons otherwise in the Class who timely and properly exclude themselves from the Class as provided in this Class Action Agreement.
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2.15. “Class Action Agreement” means this settlement agreement and the exhibits attached hereto, including any subsequent amendments or any exhibits to such amendments. The Class Action Agreement may also be referred to as the “Class Action Settlement.” 2.16. “Class Counsel” means Carella, Byrne, Cecchi, Olstein, Brody & Agnello, PC, and Hagens Berman Sobol Shapiro LLP, the firms that were appointed by the Court to be Interim Lead Counsel on April 7, 2016 (D.E. 7), as well as Seeger Weiss LLP, which has also represented the Class in connection with negotiations of this Class Action Settlement. 2.17. “Class Member” means a Person who meets the Class definition set forth in Section 2.14 of this Class Action Agreement and who has not timely opted out of the Class pursuant to the procedures set forth in Section 7. 2.18. “Class Member Payment” means the monetary compensation that the Mercedes Defendants shall pay eligible Class Members who do not opt out of the Class and who submit a Valid Claim, on the conditions set forth in Sections 5-6. The Class Member Payment includes the Owner/Lessee Payment, Post-Announcement Owner/Lessee Payment, Former Owner/Lessee Payment, and the contingency payments described in Section 5.3. 2.19. “Class Notice Program” means the program for distributing information about the Class Action Settlement to the Class, as approved by the Court. 2.20. “Complaint” means the Fifth Consolidated and Amended Class Action Complaint and Demand For Jury Trial (D.E. 185) filed in the Action on March 15, 2019. 2.21. “Consumer Emission Modification Disclosure” means the disclosure required by Paragraphs 15.a-b of Appendix A of the US-CA Consent Decree. The Consumer Emission Modification Disclosure is described in Section 5.8. 2.22. “Court” means the United States District Court for the District of New Jersey. 2.23. “Daimler” means Daimler AG. 2.24. “Dealer” means any entity authorized by MBUSA or DVUSA, subject to a written dealer agreement, to sell and/or service Subject Vehicles in the United States.
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2.25. “DOJ” means the United States Department of Justice. 2.26. “DVUSA” means Daimler Vans USA, LLC. 2.27. “Effective Date” means the earliest date on which both of the following events have occurred: (a) entry of the Final Approval Order; and (b) entry of the US-CA Consent Decree by a federal district court. Due to the interrelationship between the US-CA Consent Decree and Class Action Settlement, the Mercedes Defendants shall have no obligation to provide Benefits to Class Members under the Class Action Settlement unless and until the US- CA Consent Decree is entered by a federal district court and the Final Approval Order is entered. 2.28. “Eligible Current Owners/Lessees” includes Eligible Owners, Eligible Lessees, Eligible Post-Announcement Owners, and Eligible Post-Announcement Lessees. 2.29. “Eligible Former Lessee” means a Class Member (1) who leased and Registered a Subject Vehicle prior to the Settlement Announcement Date, (2) who surrendered or surrenders the Subject Vehicle on or before the Claim Submission Deadline for Former Owners/Lessees, and (3) whose Subject Vehicle did not receive the Approved Emission Modification during their lease period. For the avoidance of doubt, this includes any Eligible Former Lessee whose lease is terminated as a result of a total loss before the AEM is installed in their vehicle. 2.30. “Eligible Former Owner” means a Class Member (1) who owned and Registered a Subject Vehicle prior to the Settlement Announcement Date, (2) who sold or otherwise transferred ownership of the Subject Vehicle on or before the Claim Submission Deadline for Former Owners/Lessees, and (3) whose Subject Vehicle did not receive the Approved Emission Modification during their period of ownership. For avoidance of doubt, a sale or transfer of ownership under this definition includes the transfer of ownership of a Subject Vehicle as a result of a total loss. 2.31. “Eligible Former Owners/Lessees” includes Eligible Former Owners and Eligible Former Lessees.
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2.32. “Eligible Lessee” means a Class Member who (1) leases and Registers a Subject Vehicle on or before the Settlement Announcement Date; and (2) is leasing the Registered Subject Vehicle at the time the Approved Emission Modification is installed in that vehicle. A Class Member is not an Eligible Lessee if they surrender their Subject Vehicle under the terms of the lease or assign their lease to another Person before the AEM is installed. 2.33. “Eligible Owner” means a Class Member who (1) owns and Registers a Subject Vehicle on or before the Settlement Announcement Date; and (2) owns the Registered Subject Vehicle at the time the AEM is installed in that vehicle. However, the lessor of a Subject Vehicle shall not be an Eligible Owner. 2.34. “Eligible Post-Announcement Lessee” means a Class Member who did not lease the Registered Subject Vehicle on or before the Settlement Announcement Date, but who leases the Registered Subject Vehicle at the time the Approved Emission Modification is installed. 2.35. “Eligible Post-Announcement Owner” means a Class Member who did not own the Registered Subject Vehicle on or before the Settlement Announcement Date, but who owns the Registered Subject Vehicle at the time the Approved Emission Modification is installed. 2.36. “Emission Modification Category” means any one of the 12 categories of models and model years as identified in the seventh column of Appendix B, Attachment I of the US-CA Consent Decree, for which the Mercedes Defendants have or will submit an Emission Modification Proposal Report. To facilitate development and approval of the Approved Emission Modifications, vehicles are grouped into Emission Modification Categories according to their technological characteristics. 2.37. “Emission Modification Program” means the program specified in Paragraph 1 of Appendix A of the US-CA Consent Decree to implement the Approved Emission Modifications. 2.38. “Emission Modification Proposal Report” means the report specified in Paragraph 4.a of Appendix B of the US-CA Consent Decree that the Mercedes Defendants must submit to
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EPA and CARB for approval of the Approved Emission Modifications, according to the schedule in Appendix B, Attachment I of the US-CA Consent Decree. 2.39. “EPA” means the United States Environmental Protection Agency and any of its successor departments or agencies. 2.40. “Extended Modification Warranty” means the warranty described in Section 5.4. 2.41. “Fairness Hearing” means the hearing held by the Court for the purpose of determining whether to approve this Class Action Settlement as fair, reasonable, and adequate. 2.42. “Final Approval Order” means the order substantially in the form of Exhibit 7 that may, at the discretion of the Court, be entered by the Court granting final approval of the Class Action Settlement. 2.43. “Final Judgment” means the order substantially in the form of Exhibit 8 by which Court may, at its discretion, enter final judgment with respect to the Released Claims. 2.44. “Former Owner/Lessee Payment” means monetary compensation, as set forth in Section 5, that the Mercedes Defendants will pay to Eligible Former Owners/Lessees who submit a Valid Claim, on the conditions set forth in Section 5-6. 2.45. “Individual Release” means the release that Class Members must execute to receive a Class Member Payment, as described in Section 10 of this Class Action Agreement. The Individual Release will remain valid even if the Court does not enter the Final Approval Order, the Final Approval Order is later reversed and/or vacated on appeal, or if this Class Action Agreement is abrogated or otherwise voided in whole or in part. The Individual Release binds Class Members when they receive a Class Member Payment. 2.46. “Long Form Notice” means the Long Form Notice substantially in the form attached hereto as Exhibit 2. 2.47. “MBUSA” means Mercedes-Benz USA, LLC.
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2.48. “Mediator” means Hon. Edward A. Infante (Ret.), who mediated settlement negotiations between the Parties, and who will preside over certain settlement-related proceedings, if necessary, as set forth in this Class Action Agreement. 2.49. “Mercedes Defendants” means Daimler AG and Mercedes-Benz USA, LLC. 2.50. “Mercedes Defendants’ Lead Counsel” means Daniel W. Nelson of Gibson, Dunn & Crutcher LLP, and Troy M. Yoshino of Squire Patton Boggs (US) LLP. 2.51. “Non-Settling Defendants” means Robert Bosch LLC and Robert Bosch GmbH. 2.52. “Notice Date” means the date on which the Class Notice Program begins, as set forth in the Preliminary Approval Order, which shall be the later of (1) within 15 business days of the Preliminary Approval Order; or (2) within 15 business days after Entry of the US-CA Consent Decree. 2.53. “Operable” means that a vehicle can be driven under its own engine power. A Subject Vehicle that has been altered with the use of any after-market emissions-related components, parts, and/or software or the removal of any original emissions-related components, parts, and/or software, if such alteration(s) are likely to substantially affect the operation of the vehicle with the Approved Emission Modification or substantially impede installation of the AEM, shall not be considered Operable unless and until the owner or lessee of such vehicle has reversed the alteration(s) such that the AEM may be installed and not substantially affected. Vehicles that are not Operable may be unable to receive the AEM. The CRC will be the final decision maker on whether a vehicle is Operable, but the initial determination of whether a vehicle is Operable will be made by the Authorized Service Provider that has been asked to install the AEM in the Subject Vehicle. A determination under this Section regarding whether a vehicle is Operable does not constitute any determination by EPA or CARB as to whether the emissions system of the vehicle has been modified.
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2.54. “Opt-Out Deadline” means the last day a Person within the definition of the Class may opt out of the Class Action Settlement, which is 60 days from the Notice Date. Requests to opt-out must be received by the Settlement Administrator by the Opt-Out Deadline. 2.55. “Owner/Lessee Payment” means monetary compensation the Mercedes Defendants will pay to Eligible Owners and Eligible Lessees who submit a Valid Claim, on the conditions set forth in Sections 5-6. 2.56. “Parties” means the Settlement Class Representatives and the Mercedes Defendants, collectively. 2.57. “Party” means the Settlement Class Representatives or the Mercedes Defendants, as applicable. 2.58. “Person” or “Persons” includes individuals and entities. 2.59. “Post-Announcement Owner/Lessee Payment” means monetary compensation that the Mercedes Defendants will pay to Eligible Post-Announcement Owners and Eligible Post-Announcement Lessees who submit a Valid Claim, on the conditions set forth in Section 5-6. 2.60. “Post-Appeal Date” means the latest date on which the Final Approval Order approving this Class Action Settlement becomes final. For purposes of this Class Action Settlement: 2.60.1. If no appeal has been taken from the Final Approval Order, “Post- Appeal Date” means the date on which the time to appeal therefrom has expired; or 2.60.2. If any appeal has been taken from the Final Approval Order, “Post- Appeal Date” means the date on which all appeals therefrom, including petitions for rehearing or reargument, petitions for rehearing en banc, and petitions for a writ of certiorari or any other form of review, have
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been fully disposed of in a manner that affirms the Final Approval Order; or 2.60.3. If Class Counsel and the Mercedes Defendants agree in writing, the “Post-Appeal Date” can occur on any other earlier agreed date. 2.61. “Preliminary Approval Order” means the order substantially in the form of Exhibit 6 that may be entered by the Court approving the Class Notice Program, concluding that the Court will likely be able to approve the Class Action Settlement and certify the proposed Class as outlined in Section 4 of this Class Action Agreement, and staying all discovery as to the Mercedes Defendants and the Released Parties. 2.62. “Register” means to register a vehicle with a Department of Motor Vehicles or equivalent agency in the name of the owner or, for a leased vehicle, the lessee, in the United States or its territories. “Registered” means to have registered a vehicle with a Department of Motor Vehicles or equivalent agency in the name of the owner or, for a leased vehicle, the lessee, in the United States or its territories. 2.63. “Release” means the release and waiver described in Section 10 of this Class Action Agreement and in the Final Approval Order. 2.64. “Released Party” or “Released Parties” has the definition set forth in Section 10 of this Class Action Agreement. 2.65. “Settlement Administrator” means the third-party agent agreed to by the Parties and appointed by the Court to oversee the Claims Program, including the claims process described in Section 6, and to implement the Class Notice Program. The Parties agree that JND Legal Administration shall serve as the Settlement Administrator, subject to approval by the Court. 2.66. “Settlement Announcement Date” means September 14, 2020. 2.67. “Settlement Class Representative” means a Plaintiff in this Action who meets the Class definition set forth in Section 2.14 of this Class Action Agreement, and who has agreed to
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represent the Class for purposes of obtaining approval of, and effectuating, this Class Action Settlement, as described in the Parties’ Motion for Preliminary Approval. 2.68. “Settlement Website” means the public website that provides information and key filings regarding the Class Action Settlement, including Frequently Asked Questions. Class Members will be able to access a “Claims Portal” on the Settlement Website. The Settlement Website also will allow Class Members to obtain a description of the Emission Modification Program and to complete and submit an online Claim Form, or download a Claim Form to complete and submit in hard copy. The Settlement Website shall display the Consumer Emissions Modification Disclosure and the Supplemental Notice of Class Benefits in a manner such that members of the public and consumers can readily access the information. 2.69. “Short Form Notice” means the Short Form Notice(s) substantially in the form as attached hereto as Exhibit 1. 2.70. “Subject Vehicles” means a “Subject Vehicle” as defined in the US-CA Consent Decree, which includes the diesel vehicles listed in the table below.
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BlueTEC II Diesel Vehicles Model Model Year(s) E250 2014-2016 E350 2011-2013 GL320 2009 GL350 2010-2016 GLE300d 2016 GLE350d 2016 GLK250 2013-2015 ML250 2015 ML320 2009 ML350 2010-2014 R320 2009 R350 2010-2012 S350 2012-2013 Mercedes-Benz or Freightliner Sprinter (4-cylinder) 2014-2016 Mercedes-Benz or Freightliner Sprinter (6-cylinder) 2010-2016 2.71. “Supplemental Notice of Class Benefits” means the notice that will be sent by the Settlement Administrator announcing that an Approved Emission Modification has become available for a make, model, and model year of a Subject Vehicle, and describing the available Class Member Payments, including any available contingent payments pursuant to Section 5.3. The Supplemental Notice of Class Benefits will be sent to Class Members who own or lease the Subject Vehicle, to the extent possible at the same time as the Consumer Emission Modification Disclosure is sent.
2.72. “US-CA Consent Decree” means the Consent Decree lodged with a federal district court on or about September 14, 2020, as agreed by (1) the United States on behalf of the EPA; (2) the People of the State of California, by and through CARB and the Attorney General of California; and (3) the Mercedes Defendants, resolving disputes between those parties on the terms described therein. If the federal district court approves and enters the Consent Decree, “US-CA Consent Decree” shall mean the decree as and in the form that it is ultimately approved and entered by the federal district court.
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2.73. “Valid Claim” means a Claim that is accurate, truthful, complete, executed by a Class Member or authorized representative, and submitted to the Settlement Administrator by the applicable claims deadline. A Valid Claim must include a fully executed Individual Release and all required documentation, including, for Eligible Current Owners/Lessees, proof that the Approved Emission Modification has been installed in their Subject Vehicle by an Authorized Service Provider (e.g., by repair order). 2.74. Other capitalized terms used in this Class Action Agreement but not defined in this Section 2 shall have the meanings ascribed to them elsewhere in this Class Action Agreement. 2.75. The terms “he or she” and “his or her” include “it” or “its,” as applicable; the terms “they” or “their” include “he,” “she,” “his,” “her,” “it,” or “its,” as applicable. 3. DENIAL OF ANY WRONGDOING AND LIABILITY 3.1. The Mercedes Defendants deny the material factual allegations and legal claims asserted by the Plaintiffs and Class Members in the Action, including, but not limited to, any and all charges of wrongdoing or liability, or allegations of defect, arising out of any of the conduct, statements, acts or omissions alleged, or that could have been alleged, in the Action. 4. PRELIMINARY APPROVAL 4.1. Promptly after this Class Action Agreement is signed, but by no later than September 15, 2020, the Parties shall file the Class Action Agreement with the Court, together with a Motion for Preliminary Approval, seeking preliminary approval of the Class Action Agreement, including the proposed Long Form Notice and Short Form Notice. Simultaneously, the Settlement Class Representatives shall move for certification of the Class for settlement purposes only, pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 23(a), 23(b)(3), and 23(e). It is expressly agreed that any certification of the Class shall be for settlement purposes only, and the Mercedes Defendants do not waive any arguments that they may have that class certification for any other purpose would be improper.
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4.2. Until the Preliminary Approval Order is entered, Settlement Class Representatives and Class Counsel shall not pursue any litigation proceedings against the Released Parties; the Mercedes Defendants shall not pursue litigation proceedings against the Releasing Parties; and the Parties and their respective counsel shall not in any way subsequently argue that the Released Parties or Releasing Parties have failed to comply with their litigation obligations in any respect by reason of the Released Parties’ or Releasing Parties’ suspension of litigation efforts following the execution of this Class Action Agreement. Upon entry of the Preliminary Approval Order, all proceedings in this Action pertaining to the Mercedes Defendants, other than the proceedings necessary to effectuate this Class Action Agreement, shall be stayed and suspended until further notice of the Court. 4.3. The Parties agree to promptly take all actions and steps reasonably necessary to obtain the Preliminary Approval Order from the Court and to fully implement and effectuate this Class Action Settlement. 5. CLASS MEMBER COMPENSATION AND REMEDIES 5.1. Overview of Benefits. The Class Action Settlement provides substantial compensation and benefits to owners and lessees, as detailed in this Section 5 (Benefits). The Benefits described in this Section 5 are available only to Class Members who submit a Valid Claim. 5.2. Payments to Eligible Class Members. 5.2.1. Owner/Lessee Payment. Eligible Owners and Eligible Lessees whose Subject Vehicle receives an Approved Emission Modification and who submit a Valid Claim are entitled to an Owner/Lessee Payment. The Owner/Lessee Payment will be $3,290 per Subject Vehicle, unless an Eligible Former Owner or Eligible Former Lessee submits a Valid Claim for that same vehicle, in which case the Owner/Lessee Payment will be $2,467.50 per Subject Vehicle. To obtain an Owner/Lessee
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Payment, Eligible Owners and Eligible Lessees must submit a Valid Claim by the Claim Submission Deadline for Eligible Current Owners/Lessees. No Owner/Lessee Payment will be issued to an Eligible Owner or Eligible Lessee until the Settlement Administrator receives proof that the AEM was installed in that Eligible Owner’s or Eligible Lessee’s Subject Vehicle at an Authorized Service Provider (e.g., by repair order). 5.2.2. Former Owner/Lessee Payment. Eligible Former Owners/Lessees who submit a Valid Claim are entitled to a Former Owner/Lessee Payment. The Former Owner/Lessee Payment amount is $822.50 per Subject Vehicle, and shall be divided equally among the Eligible Former Owners and Eligible Former Lessees who submit Valid Claims on the same vehicle. To obtain a Former Owner/Lessee Payment, Eligible Former Owners/Lessees must submit a Valid Claim by the Claim Submission Deadline for Eligible Former Owners/Lessees. 5.2.3. Post-Announcement Owner/Lessee Payment. Eligible Post- Announcement Owners and Eligible Post-Announcement Lessees whose Subject Vehicle receives an Approved Emission Modification and who submit a Valid Claim are entitled to a Post-Announcement Owner/Lessee Payment. The Post-Announcement Owner/Lessee Payment will be $2,467.50 per Subject Vehicle. To obtain a Post- Announcement Owner/Lessee Payment, Eligible Post-Announcement Owners and Eligible Post-Announcement Lessees must submit a Valid Claim by the Claim Submission Deadline for Eligible Current Owners/Lessees. No Post-Announcement Owner/Lessee Payment will be issued to an Eligible Post-Announcement Owner or Eligible Post-
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Announcement Lessee until the Settlement Administrator receives proof that the AEM was installed in that Eligible Post-Announcement Owner’s or Eligible Post-Announcement Lessee’s Subject Vehicle. 5.2.4. The Mercedes Defendants shall not pay to Eligible Current Owners/Lessees and Eligible Former Owners/Lessees more than $3,290, in total, for any individual Subject Vehicle, excluding contingent payments that may be required pursuant to Section 5.3. For the avoidance of doubt, the Parties agree that this is a claims-made settlement, meaning that the Mercedes Defendants must make payments only up to $3,290 per Subject Vehicle for Valid Claims made under the terms of this Class Action Agreement, excluding any contingent payments that may be required pursuant to Section 5.3. 5.3. Contingency Payments. In addition to the payments described in Section 5.2, in certain circumstances Eligible Current Owners/Lessees may be entitled to additional payments: 5.3.1. Deferred Availability Payment. If an Emission Modification Proposal Report for a Subject Vehicle is not scheduled (pursuant to Attachment I of Appendix B of the US-CA Consent Decree and any subsequent modifications thereto) to be submitted for approval to EPA and CARB within 60 days of the Effective Date, Eligible Owners and Eligible Lessees of those Subject Vehicles will be eligible for a Deferred Availability Payment of $400, which shall be paid in addition to and at the same time as the Owner/Lessee Payment. To obtain a Deferred Availability Payment, Eligible Owners and Eligible Lessees must submit Valid Claims by the Claim Submission Deadline for Eligible Current Owners/Lessees. Eligible Post-Announcement Owners and Eligible Post-Announcement Lessees shall not be entitled to the
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Deferred Availability Payment. For the avoidance of doubt, Eligible Owners and Eligible Lessees cannot receive both the Deferred Availability Payment and compensation for an AEM that is not available pursuant to Sections 5.3.4 and 5.3.5. 5.3.2. Payments If The Mercedes Defendants Submit An Emission Modification Proposal Report Late. The Mercedes Defendants intend to submit Emission Modification Proposal Reports to EPA and CARB according to the deadlines set forth in Attachment I of Appendix B of the US-CA Consent Decree, including any subsequent modifications to those deadlines pursuant to the terms of the US-CA Consent Decree. If the Mercedes Defendants do not submit the initial Emission Modification Proposal Report for a Subject Vehicle within 30 days of the deadline set forth in Attachment I of Appendix B of the US-CA Consent Decree, Eligible Owners and Eligible Lessees of the affected Subject Vehicles will be eligible for a payment of $200, which shall be paid in addition to and at the same time as the Owner/Lessee Payment. If the Mercedes Defendants do not submit the initial Emission Modification Proposal Report for a Subject Vehicle within 180 days of the deadline set forth in Attachment I of Appendix B of the US-CA Consent Decree, Eligible Owners and Eligible Lessees of the affected Subject Vehicles will be eligible for a payment of $400, which shall be paid in addition to and at the same time as the Owner/Lessee Payment. To obtain a payment pursuant to this Section 5.3.2, Eligible Owners and Eligible Lessees must submit Valid Claims by the Claim Submission Deadline for Eligible Current Owners/Lessees. Eligible Post- Announcement Owners and Eligible Post-Announcement Lessees shall
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not be entitled to a payment pursuant to this Section 5.3.2. For the avoidance of doubt, the payments under this Section 5.3.2 do not cumulate, and Eligible Owners and Lessees would be eligible for a payment of $400 (and not $600) if an initial Emission Modification Proposal Report for a Subject Vehicle is submitted more than 180 days past the deadline set forth in Attachment I of Appendix B of the US-CA Consent Decree. For the avoidance of doubt, Eligible Owners and Eligible Lessees cannot receive both a payment pursuant to this Section 5.3.2 and compensation for an AEM that is not available pursuant to Sections 5.3.4 and 5.3.5. Notwithstanding anything in this Class Action Agreement, the Mercedes Defendants shall have no obligation to pay an Eligible Owner or Eligible Lessee of an affected Subject Vehicle pursuant to this Section 5.3.2 until the final resolution of any request to EPA and CARB (including any dispute resolution procedures) pursuant to the terms of the US-CA Consent Decree to modify the submission deadline for the Emission Modification Proposal Report for the affected Subject Vehicle. 5.3.3. Payments For Reclassification Of Emission Standard. The Mercedes Defendants represent that after receiving the Approved Emission Modification, the Subject Vehicles shall remain within the same emissions classification to which they were originally certified (i.e., the emissions classifications listed for each vehicle in Appendix I of Attachment B of the US-CA Consent Decree). If, however, EPA and CARB approve an Emission Modification Proposal Report that fails to meet the emission standard to which the Subject Vehicles were originally certified, Eligible Current Owners/Lessees of the affected
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Subject Vehicle will be eligible for a payment of $350, which shall be paid in addition to and at the same time as the Owner/Lessee Payment or Post-Announcement Owner/Lessee Payment, as applicable. To obtain a payment pursuant to this Section 5.3.3, Eligible Current Owners/Lessees must submit Valid Claims by the Claim Submission Deadline for Eligible Current Owners/Lessees. 5.3.4. Payments If An Approved Emission Modification Is Not Available. The Mercedes Defendants expect to offer an AEM for each Emission Modification Category. If, however, an AEM for a Subject Vehicle is not available by the AEM Availability Deadline, Class Members who own or lease an affected Registered Subject Vehicle on the AEM Availability Deadline will be eligible for a payment in accordance with the following schedule: (a) For Model Years 2014-2016, the payment shall be 80% of the Owner/Lessee Payment.
(b) For Model Years 2012-2013, the payment shall be 60% of the Owner/Lessee Payment.
(c) For Model Years 2009-2011, the payment shall be 30% of the Owner/Lessee Payment.
To obtain a payment pursuant to this Section 5.3.4, eligible Class Members must submit a Valid Claim within 60 days of the AEM Availability Deadline. 5.3.5. If, prior to the AEM Availability Deadline, an AEM for an Emissions Modification Category as defined in the US-CA Consent Decree is unavailable, and no vehicle in that Emissions Modification Category
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can be re-registered in the Registered Subject Vehicle owner’s state of residence because the AEM is unavailable, then the owner of an affected Registered Subject Vehicle on the AEM Availability Deadline may file a claim within 60 days of that deadline. If a Valid Claim is received within 60 days of the AEM Availability Deadline, the Mercedes Defendants will offer to repurchase the Subject Vehicle for an amount equal to the value of the vehicle according to Manheim Market Report. 5.3.6. For the purpose of Sections 5.3.4 and 5.3.5, an AEM is “available” on the date the Mercedes Defendants post the Consumer Emission Modification Disclosure pertaining to that AEM on the Settlement Website. 5.3.7. Class Members cannot receive compensation under both Sections 5.3.4 and 5.3.5. For the avoidance of doubt, Class Members cannot receive both (1) payment for an AEM not available pursuant to Sections 5.3.4 and 5.3.5 and (2) the Deferred Availability Payment pursuant to Section 5.3.1 or a payment pursuant to Section 5.3.2. 5.3.8. Payments If Approved Emission Modification Causes Reduced Performance. The Mercedes Defendants represent that the AEMs will not cause “Reduced Performance” or “Substantially Reduced Performance.” For purposes of this Section 5.3.8, Reduced Performance means a change in any of the following performance attributes: (1) a reduction in calculated fuel economy using the EPA formula of more than 3 MPG; (2) a decrease of greater than 5% in peak horsepower; or (3) a decrease of greater than 5% in peak torque. Substantially Reduced Performance means a change in any of the following performance attributes: (1) a reduction in calculated fuel
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economy using the EPA formula of more than 6 MPG; (2) a decrease of greater than 10% in peak horsepower; or (3) a decrease of greater than 10% in peak torque. The performance impacts shall be measured by the Mercedes Defendants pursuant to industry standards or otherwise as measured in connection with their submission of the Emission Modification Proposal Reports to the EPA and CARB, and, upon final approval of such Emissions Modification Proposal, the Mercedes Defendants shall disclose any impact as required by the US-CA Consent Decree. If an AEM causes Reduced Performance of the Subject Vehicle, then Eligible Current Owners/Lessees of the affected Subject Vehicle will be eligible for a payment of $325; if an AEM causes Substantially Reduced Performance of the Subject Vehicle, then Current Owners/Lessees of the affected Subject Vehicle will be eligible for a payment of $650. Payments for Reduced Performance or Substantially Reduced Performance shall be paid in addition to and at the same time as the Owner/Lessee Payment or Post-Announcement Owner/Lessee Payment, as applicable. To obtain a payment pursuant to this Section 5.3.8, Eligible Current Owners/Lessees must submit Valid Claims by the Claim Submission Deadline for Eligible Current Owners/Lessees. For the avoidance of doubt, the Reduced Performance and Substantially Reduced Performance payments under this Section 5.3.8 do not cumulate; the maximum possible payment for any individual vehicle with Reduced Performance is $325, and the maximum possible payment for any individual vehicle with Substantially Reduced Performance is $650, even if performance is reduced in more than one category. Eligible Owners/Lessees may not receive payments for both Reduced
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Performance and Substantially Reduced Performance for any individual vehicle. 5.3.9. Payment If Approved Emission Modification Causes Change In Frequency Of Diesel Exhaust Fluid (“DEF”) Tank Refill. For some consumers, the Approved Emission Modification may change the frequency with which they need to refill their DEF (also known as AdBlue) tank. If so, this will be disclosed in the relevant Consumer Emission Modification Disclosure, consistent with Paragraph 15.a of Appendix A of the US-CA Consent Decree. If an AEM changes the frequency with which consumers need to refill their DEF tank, Eligible Current Owners/Lessees of the affected Subject Vehicle will be eligible to receive $75, which shall be paid in addition to and at the same time as the Owner/Lessee Payment or Post-Announcement Owner/Lessee Payment, as applicable. For the purposes of this Section 5.3.9, whether there is a change in the frequency with which consumers need to refill their DEF tank will be determined by whether the Consumer Emission Modification Disclosures state that there will be such a change for a particular model and model year of Subject Vehicles, consistent with Paragraph 15.a of Appendix A of the US-CA Consent Decree. To obtain a payment pursuant to this Section 5.3.9, Eligible Current Owners/Lessees must submit Valid Claims by the Claim Submission Deadline for Eligible Current Owners/Lessees. 5.4. Warranty Obligations. 5.4.1. Extended Modification Warranty. Under the US-CA Consent Decree, the Mercedes Defendants must provide an extended warranty for each Subject Vehicle that receives the Approved Emission Modification,
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known as the “Extended Modification Warranty.” The Extended Modification Warranty under the Class Action Settlement, including all terms described in Section 5.4 of this Class Action Agreement, is identical to the terms in Paragraph 18 of Appendix A of the US-CA Consent Decree. This Section 5.4 describes the Mercedes Defendants’ obligations to Class Members pursuant to Paragraph 18 of Appendix A of the US-CA Consent Decree. 5.4.2. Other Warranty-Related Terms. The following warranty-related terms below (subparts (a)-(j)) also are provided to Class Members under the Class Action Agreement. Sections (a) through (i) reflect terms in Paragraphs 18.b-j and 19-20 of Appendix A of the US-CA Consent Decree. (a) Extended Warranty Period. The warranty period for the Extended Modification Warranty shall be the greater of: (i) 10 years from date of initial sale or 120,000 miles on the odometer, whichever comes first; or (ii) 4 years or 48,000 miles from the date of installation of the Approved Emission Modification, whichever comes first. The Extended Modification Warranty Period shall continue after the Termination (as set forth in Paragraphs 105-106
of the US-CA Consent Decree) of the US-CA Consent Decree, as provided in Paragraph 18.b of Appendix A of the US-CA Consent Decree. (b) Modification of the Extended Warranty. The Mercedes Defendants shall expand the Extended Modification Warranty to include all additional parts that, due to a change to the Approved Emission Modification as approved by EPA and CARB pursuant
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to Paragraph 14.a of Appendix A of the US-CA Consent Decree, are exchanged as part of the AEM beyond those parts listed in Attachment I of Appendix B of the US-CA Consent Decree. (c) The Extended Modification Warranty shall be associated with the vehicle, and remains available to all subsequent owners and operators. The Mercedes Defendants shall not seek or offer a waiver of any provision of the Extended Modification Warranty. (d) Neither the Extended Modification Warranty, nor installation of the Approved Emission Modification or any approved changes made thereto, shall supersede or void any outstanding warranty. To the extent there is a conflict in any provision(s) of the Extended Modification Warranty and any other warranty on any Subject Vehicles, that conflict shall be resolved to the benefit of the consumer. (e) The Extended Modification Warranty shall not modify, limit, or affect any state, local or federal legal rights available to the owners. The Extended Modification Warranty shall be subject to any remedies provided by state or federal laws, such as the Magnuson-Moss Warranty Act, that provide consumers with protections, including without limitation “Lemon Law” protections, with respect to warranties. (f) In no event shall warranty coverage under the Extended Modification Warranty be subject to service writers’ discretion. (g) In the event that the hardware of the Engine Control Unit or Transmission Control Unit is damaged by the software flash during installation of the Approved Emission Modification, the Mercedes
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Defendants will replace the hardware at no cost to the customer and provide a 2-year “spare parts” warranty for the replaced part. (h) Voluntary Repurchase and Lease Termination Remedies. In addition to any protections provided by applicable law, the Mercedes Defendants must provide a voluntary repurchase or lease termination to any Eligible Owner or Eligible Lessee of a Subject Vehicle that receives an Approved Emission Modification in the event that, during the 18 months or 18,000 miles (whichever comes first) following the completion of the Approved Emission Modification (the “Remedy Period”), the Mercedes Defendants fail to repair or remedy a confirmed failure or malfunction covered by the Extended Modification Warranty and associated with the Approved Emission Modification (a “Warrantable Failure”) after the Eligible Owner or Eligible Lessee physically presents the Subject Vehicle to a Dealer for repair of the Warrantable Failure; and (1) the Warrantable Failure is unable to be remedied after making four separate service visits to the same Dealer for the same Warrantable Failure during the Remedy Period; or (2) the Subject Vehicle with the Warrantable Failure is out-of-service due to the Warrantable Failure for a cumulative total of 30 days during the Remedy Period, not including any days when the Dealer returns or otherwise tenders the Subject Vehicle to the customer while the Dealer awaits necessary parts and such vehicle remains Operable. The conditions in (1) and (2) of this Section 5.4.2(h) shall incorporate any subsequent extensions under the terms of the US- CA Consent Decree.
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(i) Grounds for Denial of Extended Modification Warranty. Extended Modification Warranty coverage may be denied if a Subject Vehicle has been altered with the use of any after-market emissions-related components, parts, and/or software, or with the removal of any original emissions-related components, parts, and/or software, and such alteration(s) are likely to substantially affect the operation of the vehicle with the Approved Emission Modification, until the owner of such vehicle, at his or her expense, has reversed the alteration(s) such that the Approved Emission Modification will not be substantially affected. (j) Warranties for Nonmodified Subject Vehicles. For those who do not receive the Approved Emission Modification for a Subject Vehicle, the existing applicable warranty provisions shall continue to govern, provided, however, that the Mercedes Defendants may decline to service the Engine Control Unit (“ECU”) or Transmission Control Unit (“TCU”) if servicing the ECU or TCU would require the Mercedes Defendants to install or reflash any configuration other than the AEM. Such requirements, and the potential effect on owners and lessees of Subject Vehicles (or
prospective purchasers or prospective lessees), must be clearly described in the Consumer Emissions Modification Disclosure. 5.5. Warranty Database. As set forth in Paragraph 16 of Appendix A of the US-CA Consent Decree, for ten (10) years following the entry of the US-CA Consent Decree, the Mercedes Defendants shall maintain a database by which users, including Eligible Current Owners/Lessees, prospective purchasers and lessees, and dealers may conduct a free-of-charge search by vehicle VIN to determine whether an Approved Emission Modification is available for
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a vehicle, whether the vehicle has received an AEM, and whether the Extended Modification Warranty and any additional warranty extension(s) as described in the US-CA Consent Decree apply to the specific vehicle. Information relevant to a specific part covered by the applicable Extended Modification Warranty, including whether a specific part is covered by the Extended Modification Warranty, shall be available when searching on the website by VIN. 5.6. Issues Regarding Operability And Extended Modification Warranty. Class Members and the Mercedes Defendants agree to meet-and-confer in good faith to address issues raised by Class Members regarding whether vehicles are Operable (as defined in Section 2.53) and regarding the implementation of the Extended Modification Warranty. Class Counsel shall participate in this meet-and-confer process on behalf of Class Members (and have responsibility for handling related communications with Class Members), and the Mercedes Defendants shall have responsibility for handling related communications with dealers, if necessary. When Class Members raise issues relating to Operability determinations or implementation of the Extended Modification Warranty, the Mercedes Defendants and Class Counsel will confer and attempt to resolve the issue within 30 days. If the Mercedes Defendants and Class Counsel address the issue through agreement, the agreement is binding upon the Class Member and the Mercedes Defendants, who shall not have any right to appeal the agreement to the Court. 5.7. Claims Review Committee To Finally Adjudicate Disputes Regarding Operability And Extended Modification Warranty. If Class Counsel and the Mercedes Defendants cannot resolve an issue raised by a Class Member relating to (1) Operability determinations or (2) implementation of the Extended Modification Warranty, then (and only then) the dispute may be submitted to the Claims Review Committee (“CRC”). The CRC will include the Mercedes Defendants’ representative, Class Counsel’s representative, and a “CRC Neutral.” Class Counsel shall designate a representative to participate in the CRC on behalf of Class Members (and have responsibility for handling related communications with Class Members), and the Mercedes Defendants shall designate a representative to participate in the
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CRC on behalf of the Mercedes Defendants (and have responsibility for handling related communications with dealers). The CRC shall resolve the dispute in a final adjudication rendered within 30 days of the submission of the dispute to the CRC. The CRC Neutral will be a third party who will be agreed upon by both the Mercedes Defendants and Class Counsel. In the event that the Mercedes Defendants and Class Counsel cannot agree on a Neutral representative, they agree to mediate the issue before the Mediator, who shall have authority to make the final selection. The Parties may agree to a replacement or successor CRC Neutral at any point. Final adjudications by the CRC are binding on the Mercedes Defendants and the Class Member raising the dispute. The Mercedes Defendants and Class Members shall not have any right to appeal a final adjudication by the CRC to the Court. The Parties will bear their own costs, and the Mercedes Defendants will pay for the CRC Neutral. 5.8. Consumer Emission Modification Disclosure. As set forth in Paragraphs 15.a-b of Appendix A of the US-CA Consent Decree, the Mercedes Defendants shall provide owners and lessees of vehicles eligible to receive the Approved Emission Modification and, as applicable, prospective purchasers and lessees with a clear and accurate written disclosure (the “Consumer Emission Modification Disclosure”) regarding the impacts of the Approved Emission Modification. The Consumer Emission Modification Disclosure shall be sent via first-class, postage paid U.S. mail to all owners and lessees of vehicles eligible to receive the Approved Emission Modification known to the Mercedes Defendants immediately prior to the date of mailing, within 15 business days after the later of (a) the Effective Date of the US-CA Consent Decree, (b) approval of the applicable Emission Modification Proposal Report. The Consumer Emission Modification Disclosure will be sent at the same time as the Short Form Notice and/or Supplemental Notice of Class Benefits, to the extent possible. As described more fully in the US-CA Consent Decree, the Consumer Emission Modification Disclosure will describe in plain language: (1) a summary of the AEM generally; (2) a reference to the label described in Paragraph 13 of Appendix A of the US-CA Consent Decree, and a statement regarding the
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applicable emission standard following the AEM; (3) a list of any hardware exchanged as specified in Attachment I of Appendix B of the US-CA Consent Decree; (4) a general description of any changes, or lack thereof, in fuel economy, noise, vibration, and harshness, and drivability resulting from the AEM; (5) a general description of any changes, or lack thereof, in frequency of oil changes and DEF refill, resulting from the AEM; (6) a summary of how Class Members can obtain the AEM; (7) any OBD system limitations that make identification and repair of any components difficult, compromise warranty coverage, or may reduce the effectiveness of inspection and maintenance program vehicle inspections; (8) the applicable Extended Modification Warranty; and (9) any other disclosures required by law. 5.8.1. The Consumer Emission Modification Disclosure shall also be made available online by the Mercedes Defendants through the Settlement Website within five business days of the approval of the applicable Approved Emission Modification, or no later than 15 days after the Effective Date of the US-CA Consent Decree, whichever is later. Online access shall continue on the website established pursuant to the US-CA Consent Decree for a minimum of 10 years after the US-CA Consent Decree is entered. 5.9. No Prohibition On Other Incentives. Nothing in this Class Action Agreement is intended to prohibit the Mercedes Defendants from offering any consumer any further incentives in addition to those provided herein; however, the Mercedes Defendants may not offer Class Members other incentives in lieu of the Benefits contained herein, in whole or in part, or any incentive not to participate in the Claims Program, including by causing the Subject Vehicle not to receive the Approved Emission Modification. 5.10. Telephone Call Center. As set forth more fully in Paragraph 1 of Appendix A of the US-CA Consent Decree, the Mercedes Defendants shall establish a toll-free telephone call center to address Class Member inquiries. The Mercedes Defendants and Class Counsel will
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confer as to what information will be provided by the telephone call center to inquiring Class Members, will jointly work on scripts and training materials, and will confer on how to address any issues that arise from the telephone call center relating to the Class Action Settlement. 5.11. Responsibility For Required Payments. MBUSA shall bear the ultimate responsibility for all required payments owed under this Class Action Agreement. All of Daimler’s obligations under the Class Action Agreement apply to, and are binding upon, MBUSA, any of MBUSA’s successors, assigns, or other entities or persons otherwise bound by law. MBUSA bears the ultimate responsibility for making all payments owed by Daimler, including, but not limited to, all costs and warranties associated with the Claims Program. Further, MBUSA shall be responsible to implement all repair requirements described herein. Any legal successor or assign of MBUSA shall assume MBUSA’s liability and shall be liable for the payment and other obligations herein. No change in the ownership or control of any such entity shall affect the obligations herein of MBUSA without modification of this Class Action Agreement. 5.12. Tax Implications. Class Members should consult their personal tax advisor for assistance regarding any tax ramifications of this Class Action Settlement. Neither Class Counsel, the Mercedes Defendants, nor the Mercedes Defendants’ Lead Counsel are providing any opinion or advice as to the tax consequences or liabilities of Class Members as a result of any payments or benefits under this Class Action Settlement. 5.13. Settlement Value. This is a claims-made settlement. The estimated maximum value of the monetary Benefit of this Class Action Settlement to the Class is approximately $726 million (not including any contingent payments that may be required by Section 5.3), if there are no opt-outs and every Person fitting the definition of the Class participates in the Class Action Settlement by filing a Valid Claim. This Class Action Settlement is specifically designed, in conjunction with the US-CA Consent Decree, to incentivize and to facilitate achievement of the
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85% emission modification installation rate, as defined in Paragraph 4 of Appendix A of the US- CA Consent Decree. 5.14. Disposition of Returned Vehicles. As set forth more fully in Paragraph 6 of Appendix A of the US-CA Consent Decree, after the date of approval of the applicable Approved Emission Modification by EPA and CARB, or date of lodging of the US-CA Consent Decree with a court, whichever is later, the Mercedes Defendants will not sell or lease unmodified Subject Vehicles, and they will instruct Dealers not to sell or lease unmodified Subject Vehicles. 6. CLASS CLAIMS PROCESS AND ADMINISTRATION 6.1. Claims Program. The process for submitting a Claim is designed to be as simple and convenient to Class Members as possible, who will only be required to file a single Claim Form per Subject Vehicle, consistent with the integrity of the Claims Program. 6.2. The Claims Program described in this Class Action Agreement shall be the sole and exclusive process for submitting a Claim for any Class Member Payment, and any Class Member seeking a Class Member Payment is required to comply fully with the deadlines and other requirements for the Claims Program. However, participation in the Claims Program is not required in order for a Class Member’s vehicle to be eligible to receive an AEM under the US- CA Consent Decree. Under the US-CA Consent Decree, all owners and lessees who receive the AEM will also receive the Extended Modification Warranty, under the terms set forth in Appendix A of the US-CA Consent Decree and, for Class Members, the terms set forth in Section 5.4 of the Class Action Agreement. Nothing in the Class Action Agreement is intended to impose any requirements or conditions that must be met in order for Class Members to receive the AEM or the Extended Modification Warranty. Nothing in the Class Action Agreement limits any Person from receiving an AEM. 6.3. Loaner Vehicle. Class Members may be able to reserve a loaner vehicle, shuttle service, or other alternative transportation if they so desire, free of charge, where the
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implementation of the Approved Emission Modification will take three hours or longer to complete and where loaner vehicles are available. In the event a loaner vehicle, shuttle service, or other alternative transportation is not made available in an instance where the AEM takes three hours or longer to complete, Class Members shall be eligible to submit a claim, supported by substantiating documentation, for transportation costs of up to $35 which shall be paid in addition to and at the same time as the Owner/Lessee Payment or Post-Announcement Owner/Lessee Payment, as applicable. 7. REQUESTS FOR EXCLUSION 7.1. Manner Of Opting Out. The Class Notice Program will provide instructions regarding the procedures that must be followed to opt out of the Class pursuant to Federal Rule of Civil Procedure 23(c)(2)(B)(v). The Parties agree that, to validly opt out from the Class, a Person must personally sign and date, and send a written request to opt out stating “I have reviewed the Long Form Notice and wish to exclude myself from the Class in In re Mercedes- Benz Emissions Litigation, 2:16-cv-0881” (or substantially similar clear and unambiguous language) to the Settlement Administrator at an address to be provided by the Mercedes Defendants. The written request to opt out must be postmarked on or before the Opt-Out Deadline, and must include: (1) the Person’s name, address, telephone number, (2) the VIN of the Subject Vehicle forming the basis of the Person’s inclusion in the Class definition and a statement as to whether the Person owns/owned or leases/leased the Subject Vehicle, and (3) a “wet” signature not affixed via electronic means. If a question is raised about the authenticity of a request to opt out, the Settlement Administrator will have the right to demand additional proof of the individual’s identity and intent. The Parties retain discretion to determine whether any opt-out request substantially complies with the requirements above. The Settlement Administrator will provide bi-weekly summary reports and copies of all opt-out requests to Class Counsel and the Mercedes Defendants’ Lead Counsel. Opt-out requests that are signed by an attorney but not by the Person requesting to be excluded from the Class are invalid.
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7.2. Opt Out Deadline. Requests to opt out must be postmarked by the Settlement Administrator no later than 60 days from the Notice Date. 7.3. Consequences Of Failure To Opt Out In A Timely And Proper Manner. All Persons fitting the Class definition who do not timely and properly opt out of the Class will in all respects be bound by all terms of this Class Action Agreement, including the Release, and the Final Approval Order upon the Effective Date. 7.4. Opting Out And Objecting Are Mutually Exclusive Options. Any Person who opts out pursuant to Section 7 may not also object to the Class Action Settlement. Any Class Member who elects to object pursuant to Section 8 herein may not also opt out pursuant to Section 7. 8. OBJECTIONS TO THE SETTLEMENT 8.1. Manner Of Objecting. The Class Notice Program will provide instructions regarding the procedures that must be followed to object to the Class Action Settlement pursuant to Federal Rule of Civil Procedure 23(e)(5). Provided that a Class Member has not submitted a written request to opt out, as set forth in Section 7, the Class Member may present a written statement of objection(s), if any, explaining why they believe the Class Action Settlement should not be approved by the Court as fair, reasonable, and adequate. No later than 60 days after the Notice Date, a Class Member who wishes to object to any aspect of the Class Action Settlement must file with the Court, or as the Court otherwise may direct, a written statement of the objection(s), and serve the objection on Class Counsel and the Mercedes Defendants’ Lead Counsel. The written statement of objection(s) must include: (1) a statement as to whether it applies only to the objector, to a specific subset of the class, or to the entire class, and also state with specificity the grounds for the objection, including any evidence and legal authority the Class Member wishes to bring to the Court’s attention; (2) the Class Member’s printed name, address, and telephone number; (3) the VIN of the Subject Vehicle forming the basis of the Class Member’s inclusion in the Class and the beginning and end dates (if applicable) of the Class
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Member’s ownership or lease of the Subject Vehicle; (4) a statement that the Class Member has reviewed the Class definition and has not opted out of the Class; (5) any supporting papers, materials, or briefs the Class Member wishes the Court to consider when reviewing the objection; (6) a statement of whether the Class Member intends to appear at the final approval hearing; and (7) a dated “wet” signature not affixed by electronic means. 8.2. Objecting Through Counsel. A Class Member may submit a written statement of objection(s) on his or her own behalf or through a lawyer hired at that Class Member’s own expense, provided the Class Member has not submitted a written request to opt out, as set forth in Section 7. Lawyers asserting objections on behalf of Class Members must: (1) file a notice of appearance with the Court by the deadline set by the Court in the Preliminary Approval Order, or as the Court otherwise may direct; (2) file a sworn declaration attesting to his or her representation of each Class Member on whose behalf the objection is being filed or file (in camera) a copy of the contract between that lawyer and each such Class Member; and (3) comply with the requirements and procedures described in Section 8, including the provision of all information set forth in Section 8.1. Lawyers asserting objections on behalf of Class Members also must file a sworn declaration that specifies the number of times during the prior five-year period they have objected to a class action settlement on their own behalf or on behalf of a member of a class. 8.3. Intent to Appear at the Fairness Hearing. A Class Member (or counsel individually representing them, if any) seeking to make an appearance at the Fairness Hearing must file with the Court, by the deadline set by the Court in the Preliminary Approval Order, a written notice of their intent to appear at the Fairness Hearing, in accordance with the requirements set forth in the Preliminary Approval Order, or by such time and in such manner as the Court may otherwise direct. A Class Member who does not timely submit a notice of intent to appear at the Fairness Hearing in accordance with all of the requirements of Section 8 shall
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not be allowed to appear at the hearing. The Court may hold the Fairness Hearing via videoconference or teleconference. 8.4. Consequences of Failure to Object in a Timely and Proper Manner. Unless the Court directs otherwise, any Class Member who fails to comply with the provisions of Section 8 will waive and forfeit any and all rights they may have to object to the Class Action Settlement and/or to appear and be heard on said objection at the Fairness Hearing. Failure to object waives a Class Member’s right to appeal the Final Approval Order. 9. DUTIES OF THE SETTLEMENT ADMINISTRATOR 9.1. In administering the Class Notice Program, the Settlement Administrator shall be responsible for, without limitation: (1) printing, mailing by First-Class U.S. Mail, postage paid, or arranging for the mailing of, and/or emailing of, the Long Form Notice and/or Short Form Notice (attached as Exhibits 1-2), as approved by the Court; (2) sending Supplemental Notices of Class Benefits; (3) updating address information for the Class prior to mailing using the National Change of Address (NCOA) system; (4) handling returned notice-related mail not delivered to the Class; (5) attempting to obtain updated address information for any notices returned without a forwarding address; (6) establishing a post-office box for the receipt of any correspondence; (7) responding to requests from Class Counsel or the Mercedes Defendants’ Lead Counsel; (8) assisting in the creation of Notice-related content for the Settlement Website to which the Class may refer for information about the Action and the Class Action Settlement; (9) otherwise implementing and/or assisting with the dissemination of the notice of the Class Action Settlement pursuant to the Class Notice Program. 9.2. The Settlement Administrator shall be responsible for arranging for the publication of notice as set forth in the Class Notice Program and ordered by the Court, and for consulting on other aspects of the Class Notice Program. 9.3. In administering the Claims Program, the Settlement Administrator shall be responsible for, without limitation: (1) receiving and maintaining on behalf of the Court any
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correspondence regarding requests for opt-out and/or objections to the Class Action Settlement; (2) forwarding written inquiries to Class Counsel and the Mercedes Defendants’ Lead Counsel or their designees for a response, if warranted; (3) overseeing implementation and administration of the Claims Program; (4) processing and issuing the Class Member Payments; (5) screening out any fraudulent Claims; (6) making final, unreviewable decisions on whether Claims are Valid Claims; (7) auditing submitted Claims, as requested; and (8) consulting on and maintaining the Settlement Website. 9.4. All reasonable and necessary costs of the Class Notice Program and Claims Program, and the fees and costs of the Settlement Administrator, shall be paid by MBUSA. 9.5. Within 10 days after this Class Action Agreement is filed in Court, the Settlement Administrator will cause a notice of the proposed settlement consisting of the materials required by the Class Action Fairness Act (28 U.S.C. § 1715) (“CAFA”) to be served upon the appropriate state official in each state of the United States as well as the appropriate federal officials. Within 15 days after the Notice Date, the Settlement Administrator shall provide declarations to the Court, with a copy to Class Counsel and the Mercedes Defendants’ Lead Counsel, attesting to the measures undertaken to provide notice as directed by CAFA. 9.6. The Settlement Administrator and the Parties shall promptly after receipt provide copies of any requests to opt-out, objections, and/or related correspondence to each other. 9.7. Not later than 10 days before the date of the Fairness Hearing, the Settlement Administrator shall file with the Court a list of those persons who have opted out or excluded themselves from the Class Action Settlement, and a declaration outlining the scope, method, and results of the Class Notice Program. 10. RELEASE AND WAIVER 10.1. The Parties agree to the following release and waiver (as defined above, the Release), which shall take effect upon entry of the Final Approval Order. The terms of the
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Release are a material term of the Class Action Agreement and will be reflected in the Final Approval Order. 10.2. Released Parties. The Released Parties include, without limitation, (1) Daimler AG, Mercedes-Benz USA, LLC, Mercedes-Benz AG, and any former, present, and future owners, shareholders (direct or indirect), members (direct or indirect), directors, officers, members of management or supervisory boards, employees, attorneys, affiliates, parent companies (direct or indirect), subsidiaries (direct or indirect), predecessors, and successors of any of the foregoing (the “Entities”); (2) any and all contractors, subcontractors, joint venture partners, consultants, auditors, dealers, and suppliers of the Entities; (3) any and all persons and entities indemnified by any Entity with respect to the Action or the BlueTEC Diesel Matter; (4) any and all other persons and entities involved in the design, research, development, manufacture, assembly, testing, sale, leasing, repair, warranting, marketing, advertising, public relations, promotion, or distribution of any Subject Vehicle, even if such persons are not specifically named in this Section 10.2; (5) Settlement Administrator; (6) lenders, creditors, financial institutions, or any other parties that financed any purchase or lease of a Subject Vehicle; (7) for each of the foregoing, their respective former, present, and future affiliates, parent companies, subsidiaries, predecessors, successors, shareholders, indemnitors, subrogees, spouses, joint venturers, general or limited partners, attorneys, assigns, principals, officers, directors, members of management or supervisory boards, employees, members, agents, representatives, trustees, insurers, reinsurers, heirs, beneficiaries, wards, estates, executors, administrators, receivers, conservators, personal representatives, divisions, dealers, and suppliers; and (8) any other person or entity that is or could be alleged to be responsible or liable in any way whatsoever, whether directly or indirectly, for the BlueTEC Diesel Matter. Notwithstanding the foregoing, the Released Parties do not include Non-Settling Defendants Robert Bosch LLC, Robert Bosch GmbH, and their affiliates.
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10.3. Class Release. In consideration for the Class Action Settlement, Class Members, on behalf of themselves and their agents, heirs, executors and administrators, successors, assigns, insurers, attorneys (including any attorney engaged by Class Members who is not Class Counsel), representatives, shareholders, owners associations, and any other legal or natural persons who may claim by, through, or under them (the “Releasing Parties”), fully, finally, irrevocably, and forever release, waive, discharge, relinquish, settle, and acquit any and all claims, demands, actions, or causes of action of any kind or nature whatsoever, whether in law or in equity, contractual, quasi-contractual or statutory, known or unknown, direct, indirect or consequential, liquidated or unliquidated, past, present or future, foreseen or unforeseen, developed or undeveloped, contingent or non-contingent, suspected or unsuspected, whether or not concealed or hidden, arising from, in whole or in part, or in any way related to the BlueTEC Diesel Matter, including without limitation (1) any claims or allegations that are, were, or could have been asserted in the Action; (2) any claims for fines, penalties, economic damages, punitive damages, exemplary damages, statutory damages, liens, injunctive relief, attorneys’ fees (except as provided in Section 11 of this Class Action Agreement), expert, consultant, or other litigation fees or costs; or (3) any other liabilities that were or could have been asserted in any civil, administrative, or other proceeding, including arbitration (“Released Claims”). The Released Claims include without limitation any and all such claims, demands, actions, or causes of action regardless of the legal or equitable theory or nature under which they are based or advanced including without limitation legal and/or equitable theories under any federal, state, provincial, local, tribal, administrative, or international law, or statute, ordinance, code, rule, regulation, contract, common law, equity, or any other source, and whether based in strict liability, negligence, gross negligence, punitive damages, nuisance, trespass, breach of warranty, misrepresentation, breach of contract, fraud, or any other legal or equitable theory, whether existing under the laws of the United States, a state, territory, or possession of the United States, or of any other foreign or domestic state, territory, county, city, or municipality, or any other
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legal or governmental body, whether existing now or arising in the future, that arise from, in whole or in part, or in any way relate to the BlueTEC Diesel Matter. Notwithstanding the foregoing, this Class Action Agreement does not release any claims for wrongful death or personal injury. 10.4. Possible Future Claims. For the avoidance of doubt, Class Counsel, the Settlement Class Representatives, and Class Members expressly understand and acknowledge that they may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those that they now know or believe to be true, related to the BlueTEC Diesel Matter, the Released Claims, and/or the Release herein. Nevertheless, it is the intention of Class Counsel, the Settlement Class Representatives, and Class Members in executing this Class Action Agreement to fully, finally, irrevocably, and forever release, waive, discharge, relinquish, settle, and acquit all Released Claims which exist, hereafter may exist, or might have existed (whether or not previously or currently asserted in any action or proceeding). 10.5. Release of “Holder Rule” Claims. In exchange for the Benefits, Class Members release their potential claims under the Trade Regulation Rule Concerning the Preservation of Consumers’ Claims and Defenses, 16 C.F.R. § 433.2 (the “Holder Rule”), relating to the BlueTEC Diesel Matter. 10.6. Waiver of California Civil Code Section 1542 and Analogous Provisions. Settlement Class Representatives expressly understand and acknowledge, and Class Members will be deemed to understand and acknowledge, Section 1542 of the California Civil Code, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” Each Settlement Class Representative expressly acknowledges that they have been advised by Class Counsel of the contents and effect of Section 1542 of the California Civil Code and that they have considered the possibility that the number or magnitude of all claims may not currently
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be known. To ensure that this Release is interpreted fully in accordance with its terms, Class Members expressly waive and relinquish any and all rights and benefits that they may have under Section 1542 of the California Civil Code to the extent that Section 1542 of the California Civil Code may be applicable to the Release. Class Members likewise expressly waive and relinquish any rights or benefits of any law of any state, territory, county, municipality, or city of the United States, federal law or principle of common law, or of international, foreign, or tribal law, which is similar, comparable, analogous, or equivalent to Section 1542 of the California Civil Code to the extent that such laws or principles may be applicable to the Release. 10.7. Individual Release. Each Class Member who submits a Claim shall be required to execute an Individual Release, in the form attached as Exhibit 5, as a precondition to receiving a Class Member Payment. Consistent with the Release provided in this Agreement, the Individual Release will provide that the Class Member releases all of the Released Parties from any and all Released Claims (as described in this Section 10) arising out of or related to the BlueTEC Diesel Matter. The Individual Release shall remain effective even if the Court does not enter the Final Approval Order, the Final Approval Order is reversed and/or vacated on appeal, or if this Class Action Agreement is abrogated or otherwise voided in whole or in part. The Individual Release binds Class Members when they receive a Class Member Payment. 10.8. Actions or Proceedings Involving Released Claims. Class Members expressly agree that this Release and the Final Approval Order, are, will be, and may be raised as a complete defense to, and will preclude, any action or proceeding specified in, or involving claims encompassed by, this Release. Class Members shall not now or hereafter institute, maintain, prosecute, assert, and/or cooperate in the institution, commencement, filing, or prosecution of any suit, action, and/or other proceeding against the Released Parties with respect to the claims, causes of action, and/or any other matters subject to this Release. To the extent that they have initiated, or caused to be initiated, any suit, action, or proceeding not already encompassed by the Action, Class Members shall promptly cause their claims in any such suit,
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action, or proceeding to be dismissed with prejudice. If a Class Member commences, files, initiates, or institutes any legal action or other proceeding for any Released Claim against any Released Party in any federal or state court, arbitral tribunal, or administrative or other forum, (1) such legal action or other proceeding shall be dismissed with prejudice and at that Class Member’s cost; (2) any refusal or failure to immediately dismiss such claims shall provide a basis for any Released Party to seek an injunction, sanctions, or other appropriate relief; and (3) the respective Released Party shall be entitled to recover any and all reasonable related costs and expenses from that Class Member arising as a result of that Class Member’s breach of their obligations under this Release. Within five business days of the Post-Appeal Date, Class Counsel will dismiss the Mercedes Defendants from the Complaint in this Action with prejudice. 10.9. Ownership of Released Claims. Settlement Class Representatives represent and warrant that they are the sole and exclusive owners of any and all claims that they are releasing under this Class Action Agreement. Settlement Class Representatives further acknowledge that they have not assigned, pledged, or in any manner whatsoever, sold, transferred, assigned, or encumbered any right, title, interest, or claim arising out of or in any way whatsoever pertaining to the BlueTEC Diesel Matter, including without limitation, any claim for benefits, proceeds, or value under the Action, and that Settlement Class Representatives are not aware of anyone other than themselves claiming any interest, in whole or in part, in any benefits, proceeds or values to which Settlement Class Representatives may be entitled as a result of the Action or the BlueTEC Diesel Matter. Class Members submitting a Claim Form shall represent and warrant therein that they are the sole and exclusive owner of all claims that they are releasing under the Class Action Agreement and that they have not assigned, pledged, or in any manner whatsoever, sold, transferred, assigned, or encumbered any right, title, interest or claim arising out of or in any way whatsoever pertaining to the BlueTEC Diesel Matter, including without limitation, any claim for benefits, proceeds, or value under the Actions or the BlueTEC Diesel Matter, and that such Class Members are not aware of anyone other than themselves claiming any interest, in whole or in
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part, in any benefits, proceeds, or values to which those Class Members may be entitled as a result of the Action or BlueTEC Diesel Matter. 10.10. Total Satisfaction of Released Claims. The Benefits pursuant to the Class Action Agreement are in full, complete, and total satisfaction of all of the Released Claims against the Released Parties. The Benefits are sufficient and adequate consideration for each and every term of this Release, and this Release shall be irrevocably binding upon Settlement Class Representatives and Class Members. 10.11. Release Not Conditioned on Claim or Payment. The Release shall be effective with respect to all Releasing Parties, including all Class Members, regardless of whether those Class Members ultimately submit a Claim or receive a Class Member Payment under this Class Action Agreement. 10.12. Material Term. Settlement Class Representatives and Class Counsel hereby agree and acknowledge that this Section 10 in its entirety was separately bargained for and constitutes a key, material term of the Class Action Agreement that shall be reflected in the Final Approval Order. 10.13. Released Parties’ Releases of Settlement Class Representatives, the Class, and Counsel. Upon the Effective Date, Released Parties absolutely and unconditionally release and forever discharge the Settlement Class Representatives, Class Members, the Mercedes Defendants’ counsel, and Class Counsel from any and all claims relating to the institution or prosecution of the Action. 10.14. Class Counsel shall cooperate with Released Parties to ensure that the release set forth in the Final Approval Order is given its full force and effect (including by seeking the inclusion of the releases in the Final Approval Order, Final Judgment, and the Claims Forms) and to ensure that Releasing Parties comply with their obligations set forth in this Class Action Agreement.
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11. ATTORNEYS’ FEES AND COSTS 11.1. MBUSA agrees to pay reasonable attorneys’ fees and costs to Class Counsel for work performed in connection with the Action as well as the work performed by other attorneys designated by Class Counsel (to the extent consistent with the Court’s Order appointing Class Counsel (D.E. 7)) in connection with the Action up to $80,200,000 in fees and $3,200,000 in costs and that must be approved by the Court. The Mercedes Defendants do not agree to pay fees or costs for any work not set forth in the Court’s Order appointing Class Counsel (D.E. 7), and Class Members and Class Counsel expressly release the Mercedes Defendants from any such payments that otherwise may be due by operation of law or otherwise. Class Counsel and the Mercedes Defendants represent that they reached agreement in principle on the material terms of this Class Action Agreement before discussing the amount of fees and costs to be paid. MBUSA will wire to an account specified by Class Counsel all attorneys’ fees and costs approved by the Court within 10 business days of the Effective Date. 11.2. Settlement Class Representatives, Class Counsel, and Class Members will not seek in excess of the sums specified in Section 11.1, and in any event, they agree that the Mercedes Defendants shall not pay, nor be obligated to pay, any sum in excess of the cap amounts specified in Section 11.1. In furtherance of the agreements in this Section 11, in the event of any objections to the Class Action Settlement or appeal from any order of the Court granting final approval, Class Counsel agree that they will be responsible for responding to objectors and intervenors, and defending the Court’s Final Approval Order and Final Judgment on appeal, if any, at their own cost. The Mercedes Defendants reserve the right to respond to objectors and intervenors, and to join in the defense of the Final Approval Order and Final Judgment. The Mercedes Defendants agree not to appeal, or otherwise support any appeal, of an order or judgment entered by the Court that is consistent with the terms of the Class Action Settlement. Any costs incurred by Class Counsel in such appeals, including costs incurred to
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settle any claims by objectors or intervenors, are the sole responsibility of Class Counsel. No Person may seek to recover such costs from the Mercedes Defendants. 11.3. No Credit for Attorneys’ Fees or Costs. To the extent the Mercedes Defendants elect or are ordered to pay Class Counsel’s attorneys’ fees or costs, the Mercedes Defendants will not receive credit for such payments against obligations to Class Members under this Class Action Agreement and the Final Approval Order. The Mercedes Defendants reserve the right to challenge attorneys’ fees or costs to the extent the request for an award of fees and costs is inconsistent with the terms of this Class Action Agreement, e.g., exceeds the fees and costs that the Mercedes Defendants have agreed to pay. 12. AGREEMENT TO COOPERATE TO EFFECTUATE SETTLEMENT 12.1. Counsel for all Parties represent and warrant that they are expressly authorized by the Parties whom they represent to negotiate this Class Action Agreement. The Persons signing this Class Action Agreement on behalf of each Party warrant that he or she is authorized to sign this Class Action Agreement on behalf of that Party. 12.2. The Parties, their successors and assigns, and their respective counsel will cooperate with each other, act in good faith, and make all reasonable efforts in seeking prompt Court approval of this Class Action Agreement, to ensure the timely and expeditious implementation and effectuation of the Class Action Agreement, the Notice Program, and the Claims Program, and to minimize the costs and expenses incurred therein. In the event the Parties are unable to reach agreement on the form or content of any document needed to implement the Class Action Agreement, or on any supplemental provisions that may become necessary to effectuate the terms of this Class Action Agreement, the Parties may first seek the assistance of the Mediator, and then if necessary the Court, to resolve such disagreement.
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13. MODIFICATION OR TERMINATION OF THIS CLASS ACTION AGREEMENT 13.1. The terms and provisions of this Class Action Agreement may only be amended, modified, or expanded by written agreement of the Parties and approval of the Court; provided, however, that after entry of the Final Approval Order, the Parties may by written agreement effect such amendments, modifications, or expansions of this Class Action Agreement and its implementing documents (including all exhibits hereto) without further notice to the Class or approval by the Court if such changes are consistent with the Court’s Final Approval Order and do not limit the rights of Class Members under this Class Action Agreement. 13.2. Any unintended conflicts between the Class Action Agreement and the US-CA Consent Decree shall not be held against any of the Parties. In the event of any such unintended conflicts, the language of the US-CA Consent Decree shall control. 13.3. This Class Action Agreement shall terminate at the discretion of either the Mercedes Defendants or the Settlement Class Representatives, through Class Counsel, if: (1) the Court, or any appellate court(s) rejects, modifies, or denies approval of any portion of this Class Action Agreement, any district court modifies any portion of the US-CA Consent Decree before it is entered, or any appellate court(s) rejects or modifies any portion of the US-CA Consent Decree, that the Settlement Class Representatives (through Class Counsel) in their sole judgment and discretion reasonably determine is material to this Class Action Agreement, or that the Mercedes Defendants in their sole judgment and discretion reasonably determine is material, including, without limitation, the terms of relief, the findings or conclusions of the Court, the provisions relating to notice, the definition of the Class, and/or the terms of the Release; or (2) the Court, or any appellate court(s), does not enter or completely affirm, or alters, narrows, or expands, any portion of the Final Approval Order, or any of the Court’s findings of fact or conclusions of law, that the terminating Party in its (or their) sole judgment and discretion reasonably determine(s) is material. The terminating Party must exercise the option to withdraw from and terminate this Class Action Agreement, as provided in this Section 13, by a signed
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writing served on the other Parties no later than 20 days after receiving notice of the event prompting the termination. The Parties will be returned to their positions status quo ante as of the date immediately before the Parties’ execution of the Class Action Agreement. 13.4. If an option to withdraw from and terminate this Class Action Agreement arises under Section 13.3, neither the Mercedes Defendants nor Settlement Class Representatives are required for any reason or under any circumstance to exercise that option and any exercise of that option shall be at their election in good faith. 13.5. If, but only if, this Class Action Agreement is terminated pursuant to Section 13.3 then: 13.5.1. This Class Action Agreement shall be null and void and shall have no force or effect, and no Party to this Class Action Agreement shall be bound by any of its terms, except for the terms of Section 13 herein; 13.5.2. The Parties will petition the Court to have any stay orders entered pursuant to this Class Action Agreement lifted; 13.5.3. All of the provisions of this Class Action Agreement, and all negotiations, statements, and proceedings relating to it, shall be without prejudice to the rights of the Mercedes Defendants, Settlement Class Representatives, or any Class Member, all of whom shall be restored to their respective positions existing immediately before the execution of this Class Action Agreement, except that the Parties shall cooperate in requesting that the Court set a new scheduling order such that no Party’s substantive or procedural rights are prejudiced by the settlement negotiations and proceedings; 13.5.4. Released Parties expressly and affirmatively reserve all defenses, arguments, and motions as to all claims that have been or might later be
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asserted in the Action, including, without limitation, the argument that the Action may not be litigated as a class action; 13.5.5. Settlement Class Representatives and all other Class Members, on behalf of themselves and their heirs, assigns, executors, administrators, predecessors, and successors, expressly and affirmatively reserve and do not waive all motions as to, and arguments in support of, all claims, causes of action, or remedies that have been or might later be asserted in the Action including, without limitation, any argument concerning class certification, and treble or other damages; 13.5.6. The Mercedes Defendants expressly and affirmatively reserve and do not waive all motions and positions as to, and arguments in support of, all defenses to the causes of action or remedies that have been sought or might be later asserted in the Action, including without limitation, any argument or position opposing class certification, liability, damages, or injunctive relief; 13.5.7. Neither this Class Action Agreement, the fact of its having been entered into, nor the negotiations leading to it shall be admissible or entered into evidence for any purpose whatsoever; 13.5.8. Any settlement-related order(s) or judgment(s) entered in this Action after the date of execution of this Class Action Agreement shall be deemed vacated and shall be without any force or effect; 13.5.9. The Mercedes Defendants shall bear all reasonable and necessary costs incurred by the Settlement Administrator in connection with the implementation of this Class Action Settlement up until its termination. Neither the Settlement Class Representatives nor Class Counsel shall be responsible for any such settlement-related costs; and
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13.5.10. Class Counsel shall return or reimburse to MBUSA any attorneys’ fees and costs paid by the Mercedes Defendants. 13.6. Notwithstanding the terms of Sections 13.5.1 through 13.5.10 above, if a Class Member has (1) received a Class Member Payment under the Class Action Agreement prior to its termination or invalidation; and (2) executed an Individual Release, such Class Member and the Mercedes Defendants shall be bound by the terms of the Individual Release, which terms shall survive termination or invalidation of the Class Action Agreement. 14. COVID-19 14.1. The Parties acknowledge the possibility that a resurgence of COVID-19 may result in modifications of the dates by which the Mercedes Defendants must perform obligations under the US-CA Consent Decree, specifically including the dates to submit Emission Modification Proposal Reports under the terms of the US-CA Consent Decree (“EMPR Submission Dates”). The Parties agree that official modifications (i.e., adopted by the EPA or CARB, or ordered by the district court that enters the US-CA Consent Decree) to EMPR Submission Dates in the US-CA Consent Decree shall apply to the corresponding dates in Sections 2.2, 5.3.1-5.3.2, and 5.3.4-5.3.5 of this Class Action Agreement. 15. REPRESENTATIONS AND WARRANTIES 15.1. Class Counsel represent that they have conducted sufficient independent investigation and discovery to enter into this Class Action Agreement and that they execute this Class Action Agreement freely, voluntarily, and without being pressured or influenced by, or relying on any statements, representations, promises, or inducements made by the Released Parties or any person or entity representing the Released Parties, other than as set forth in this Class Action Agreement. Class Counsel represent that they are authorized by the Settlement Class Representatives to enter into this Class Action Agreement with respect to the claims asserted in the Action and all other claims covered by the Release, and that they are seeking to protect the interests of the Class. Settlement Class Representatives acknowledge, agree, and
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specifically represent and warrant that they have discussed with Class Counsel the terms of this Class Action Agreement and have received legal advice with respect to the advisability of entering into this Class Action Agreement and the Release, and the legal effect of this Class Action Agreement and the Release. 15.2. Class Counsel further represents that the Settlement Class Representatives: (1) have agreed to serve as representatives of the Class proposed to be certified herein; (2) are willing, able, and ready to perform all of the duties and obligations of representatives of the Class; (3) have read the pleadings in the Action, including the Complaint, or have had the contents of such pleadings described to them in detail; (4) have consulted with Class Counsel about the obligations imposed on representatives of the Class; (5) understand that they are entitled only to the rights and remedies of Class Members under this Class Action Agreement and not to any additional compensation by virtue of their status as Settlement Class Representatives, except that Class Counsel may seek reasonable and appropriate service awards for Settlement Class Representatives of $5,000 if the Settlement Class Representative had his or her deposition taken and $2,500 if the Settlement Class Representative did not have his or her deposition taken to be paid by MBUSA in addition to the Benefits at the same time as the Class Member Payment, subject to Court approval; and (6) shall remain and serve as representatives of the Class until the terms of this Class Action Agreement are fully effectuated, this Class Action Agreement is terminated in accordance with its terms, or the Court at any time determines that said Settlement Class Representatives cannot represent the Class. The Mercedes Defendants shall retain the right to object to the payment of any service awards, including the amount thereof (even an amount at or below the amount set forth above). 15.3. Daimler represents and warrants that the individual(s) executing this Class Action Agreement are authorized to enter into this Class Action Agreement on behalf of Daimler.
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15.4. MBUSA represents and warrants that the individual(s) executing this Class Action Agreement are authorized to enter into this Class Action Agreement on behalf of MBUSA. 15.5. The Parties acknowledge and agree that no opinion concerning the tax consequences of the proposed Class Action Settlement to the Class is given or will be given by the Parties, nor are any representations or warranties in this regard made by virtue of this Class Action Agreement. In addition, the Parties acknowledge and agree that no tax ruling from any governmental tax authority in relation to a Class Member’s tax consequences will be requested by the Mercedes Defendants. The Parties further acknowledge and agree that nothing in this Class Action Agreement should be relied upon by any Class Member as the provision of tax advice. Each Class Member’s tax consequences or liabilities, and the determination thereof, are the sole responsibility of the Class Member, and it is understood that each Class Member’s federal, state, county, city, or foreign tax consequences or liabilities may vary depending on the particular circumstances of each individual Class Member. Class Members shall hold the Mercedes Defendants and their counsel harmless from any federal, state, county, city, or foreign tax assessments, interest, and/or penalties that result for any amounts paid or benefits provided under this Class Action Agreement, and the Mercedes Defendants shall not be liable for the payment of any additional amounts now or in the future for any amount related to any Class Member’s tax consequences. 15.6. The representations and warranties made throughout the Class Action Agreement shall survive the execution of the Class Action Agreement and shall be binding upon the respective heirs, representatives, successors, and assigns of the Parties. 16. GENERAL MATTERS AND RESERVATIONS 16.1. This Class Action Agreement will be binding upon, and inure to the benefit of, the successors, transferees, and assigns of the Mercedes Defendants, the Settlement Class Representatives, and Class Members.
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16.2. Settlement Class Representatives and Class Counsel agree that confidential information made available to them solely through the settlement process was made available solely to facilitate this Class Action Settlement, and on the condition that it not be disclosed to persons other than Settlement Class Representatives’ counsel and certain experts or consultants retained by Settlement Class Representatives in connection with the Action. This confidential information cannot be used for any purpose other than effectuating this Class Action Settlement. For the avoidance of doubt, Settlement Class Representatives and Class Counsel agree that they cannot use any confidential information provided in the course of settlement negotiations in any other action, litigation, arbitration, mediation, proceeding, or matter of any kind. 16.3. Information provided by the Mercedes Defendants, the Mercedes Defendants’ counsel, and/or the Mediator to Settlement Class Representatives, Class Counsel, any individual Class Member, counsel for any individual Class Member, the Settlement Administrator, and/or other administrators, pursuant to the negotiation and implementation of this Class Action Agreement, includes trade secrets and highly confidential and proprietary business information and shall be deemed “Highly Confidential” pursuant to the protective order (D.E. 236) that has been entered in the Action, and shall be subject to all of the provisions thereof. Any materials inadvertently produced shall, upon the Mercedes Defendants’ request, be promptly returned to the Mercedes Defendants’ counsel, as appropriate, and there shall be no implied or express waiver of any privileges, rights, or defenses. 16.4. This Class Action Agreement, complete with its exhibits and all documents filed with the Court, sets forth the entire agreement among the Parties with respect to its subject matter, and it may not be altered, amended, or modified except by written instrument executed by Class Counsel and the Mercedes Defendants’ Lead Counsel. The Parties expressly acknowledge that no other agreements, arrangements, or understandings not expressed in this Class Action Agreement or the documents filed with the Court exist among or between them, and that in deciding to enter into this Class Action Agreement, they have relied solely upon their
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own judgment and knowledge. No parol or other evidence may be offered to explain, construe, contradict, or clarify its terms, the intent of the Parties or their counsel, or the circumstances under which this Class Action Agreement was made or executed. This Class Action Agreement and the accompanying documents filed with the Court supersede any prior agreements, understandings, or undertakings (written or oral) by and between the Parties regarding the subject matter of this Class Action Agreement. 16.5. This Class Action Agreement and any amendments thereto, and any dispute arising out of or related to this Class Action Agreement, shall be governed by and interpreted according to the Federal Rules of Civil Procedure and applicable jurisprudence relating thereto, and the laws of the State of New Jersey notwithstanding its conflict of law provisions. 16.6. The Court shall retain exclusive and continuing jurisdiction over all Parties, Class Members, the Action, and this Class Action Agreement to resolve any suit, action, proceeding, case, controversy, or dispute that may arise regarding this Class Action Agreement, the Class Notice Program, the Claims Program, application of the Release, or in relation to this Action, including any dispute regarding validity, performance, interpretation, administration, enforcement, enforceability, or termination of the Class Action Agreement (“Disputes”). The Parties, and each Class Member who has not validly and timely opted-out of this Class Action Agreement, hereby irrevocably submit to the exclusive jurisdiction and venue of the Court for resolution of Disputes, and irrevocably waive and agree not to assert, by way of motion, as a defense or otherwise, any claim or objection that they are not subject to the jurisdiction of the Court, or that the Court is in any way an improper venue or an inconvenient forum. No Party or Class Member shall oppose the reopening and reinstatement of the Action for the purposes of effecting the Release described in Section 10. To the extent there are any Disputes between the Parties and/or Class Members, they will submit those disputes to the Mediator before reopening and reinstating this Action. The Parties and Class Members hereby agree to pay, and the Court is authorized to award, attorneys’ fees and costs to the prevailing party in connection with a
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Dispute. Notwithstanding anything else in this Section 16.6, all determinations of the CRC are final and binding, and in any event those determinations shall not be subject to this Section 16.6. 16.7. Whenever this Class Action Agreement requires or contemplates that one of the Parties shall or may give notice to the other, notice shall be provided by e-mail and/or next-day (excluding Saturdays, Sundays, and Federal Holidays) express delivery service as follows:
If to the Mercedes Defendants, then to:
Daniel W. Nelson Gibson, Dunn & Crutcher LLP 1050 Connecticut Ave. NW Washington, DC 20036 Email: [email protected]
Troy M. Yoshino Squire Patton Boggs (US) LLP 275 Battery Street, Suite 2600 San Francisco, CA 94111 Email: [email protected]
If to the Class, then to:
Steve W. Berman Hagens Berman Sobol Shapiro LLP 1301 Fifth Ave., Suite 2000 Seattle, WA 98101 Email: [email protected]
James E. Cecchi Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C. 5 Becker Farm Rd. Roseland, NJ 07068 Email: [email protected]
Christopher A. Seeger Seeger Weiss LLP 55 Challenger Road, 6th Floor Ridgefield Park, NJ 07660 Email: [email protected]
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16.8. All time periods in this Class Action Agreement shall be computed in calendar days unless otherwise expressly provided. In computing any period of time in this Class Action Agreement or by order of the Court, the day of the act or event shall not be included. The last day of the period shall be included, unless it is a Saturday, a Sunday or a Federal Holiday, or, when the act to be done is the filing of a paper in court, a day on which the court is closed, in which case the period shall run until the end of the next day that is not one of the aforementioned days. As used in this Class Action Agreement, “Federal Holiday” includes holidays designated in Fed. R. Civ. P. 6(a) or by the Clerk of the United States District Court for the District of New Jersey. 16.9. The Parties reserve the right, subject to the Court’s approval, to agree to any reasonable extensions of time that might be necessary to carry out any of the provisions of this Class Action Agreement. 16.10. The Class, Settlement Class Representatives, Class Counsel, the Mercedes Defendants, and/or the Mercedes Defendants’ Lead Counsel shall not be deemed to be the drafter of this Class Action Agreement or of any particular provision, nor shall they argue that any particular provision should be construed against its drafter. All Parties agree that this Class Action Agreement was drafted by counsel for the Parties during extensive arm’s-length negotiations. 16.11. The Parties expressly acknowledge and agree that this Class Action Agreement and its exhibits, along with all related drafts, motions, pleadings, conversations, negotiations, related notes, and correspondence, constitute an offer of compromise and a compromise within the meaning of Federal Rule of Evidence 408 and any equivalent rule of evidence in any state or territory. 16.12. The Parties agree that the Class Action Agreement was reached voluntarily after consultation with competent legal counsel.
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16.13. Neither this Class Action Agreement nor the Claims Program, nor any act performed or document executed pursuant to or in furtherance of this Class Action Agreement, the Class Notice Program, or the Claims Program is or may be deemed to be or may be used or construed as an admission of, or evidence of, the validity of any of the Released Claims, or of any wrongdoing or liability of any Released Parties; nor may the Class Action Agreement, the Class Notice Program, or Claims Program be used, deemed, or construed as an admission of, or evidence of, any fault or omission of any Released Parties in any civil, criminal, regulatory, or administrative proceeding in any court, administrative agency, or other tribunal. Nor shall this Class Action Agreement, the Class Notice Program, or the Claims Program be deemed an admission by any Party as to the merits of any claim or defense. 16.14. Any of the Released Parties may file this Class Action Agreement and/or the Final Approval Order in any action that may be brought against them in order to support any defense or counterclaim, including without limitation those based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction, or any other theory of claim preclusion, issue preclusion, or similar defense or counterclaim. 16.15. The Parties, their successors and assigns, and their counsel undertake to implement the terms of this Class Action Agreement in good faith, and to use good faith in resolving any disputes that may arise in the implementation of the terms of this Class Action Agreement. 16.16. The waiver by one Party of any breach of this Class Action Agreement by another Party shall not be deemed a waiver of any prior or subsequent breach of this Class Action Agreement. 16.17. If one Party to this Class Action Agreement considers another Party to be in breach of its obligations under this Class Action Agreement, that Party must provide the breaching Party with written notice of the alleged breach and provide a reasonable opportunity to
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cure the breach before taking any action to enforce any rights under this Class Action Agreement. 16.18. This Class Action Agreement may be signed with an electronic or facsimile signature and in counterparts, each of which shall constitute a duplicate original. 16.19. In the event any one or more of the provisions contained in this Class Action Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision if the Mercedes Defendants’ Lead Counsel on behalf of the Mercedes Defendants, and Class Counsel, on behalf of Settlement Class Representatives and Class Members, mutually agree in writing to proceed as if such invalid, illegal, or unenforceable provision had never been included in this Class Action Agreement. Any such agreement shall be reviewed and approved by the Court before it becomes effective.
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COUNSEL FOR PLAINTIFFS: Date: September 14, 2020 James E. Cecchi Caroline F. Bartlett Donald A. Ecklund CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY, & AGNELLO, P.C. 5 Becker Farm Rd. Roseland, NJ 07068 Tel: (973) 994-1700
Steve W. Berman Sean R. Matt HAGENS BERMAN SOBOL SHAPIRO LLP 1301 2nd Ave., Suite 2000 Seattle, WA 98101 Tel: (206) 623-7292
Christopher A. Seeger SEEGER WEISS LLP 55 Challenger Road, 6th Floor Ridgefield Park, NJ 07660 Tel: (973) 639-9100 Fax: (973) 639-9393
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EXHIBIT 1
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United States District Court for the District of New Jersey In re Mercedes-Benz Emissions Litigation, 16-cv-881 (KM) (ESK)
If You Bought or Leased a Mercedes-Benz or Sprinter BlueTEC II Diesel Vehicle, You May Be Eligible for a CASH PAYMENT from a Class Action Settlement
GET PAID CASH UNDER THE CLASS ACTION SETTLEMENT:
Current owners and lessees can get $3,290 or more, and former owners and lessees can get $822.50
CURRENT OWNERS AND LESSEES
GET YOUR AGENCY-APPROVED From a separate settlement with federal EMISSION MODIFICATION FREE OF and California regulators; these benefits CHARGE TO YOU are available even if you do not participate in the class action settlement
RECEIVE AN EXTENDED MODIFICATION WARRANTY
YOU MUST TAKE ACTION TO RECEIVE THESE BENEFITS
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170
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If you currently own or lease a Mercedes-Benz or Sprinter BlueTEC II diesel vehicle (see the table below showing the eligible “Subject Vehicles”1) in the United States, including both Mercedes-Benz- and Freightliner-branded Sprinter diesel vehicles, you may be eligible for a cash payment of $3,290 if you get an “Approved Emission Modification” (AEM) installed in your vehicle (free of charge to you); or $2,467.50 (once the AEM is installed) if a former owner or lessee submits a Valid Claim for the same vehicle. You may also be eligible for additional payments, depending on the vehicle you own or lease.
Former owners and lessees of Mercedes-Benz or Sprinter BlueTEC II diesel vehicles in the United States may be entitled to up to $822.50. Please visit mbbluetecsettlement.com for more details.
Current owners and lessees must have an AEM installed to receive the cash payments. Installation is available free of charge to you and you will receive an Extended Modification Warranty after the installation. AEMs are available now for the Subject Vehicles listed on the enclosed blue sheet. You can also check AEM availability at the Settlement Website, mbbluetecsettlement.com, where you can type in your VIN or review a list of all Subject Vehicle models that are ready for the AEM installation. You may also call 1-877-313-0170 toll-free to find out whether an AEM is available for your Subject Vehicle. As AEMs for other vehicles become available, owners and lessees of those vehicles will receive another mailed notice. Updates regarding the AEMs and the Class Action Settlement can be found at mbbluetecsettlement.com.
WHO IS INCLUDED IN THE PROPOSED SETTLEMENT?
You are receiving this notice as a current or former owner or lessee of one of the Subject Vehicles listed below. If you purchased or leased and Registered a Subject Vehicle in the United States, you may be a Class Member and eligible for a cash payment, even if you no longer own or lease the Subject Vehicle.
1 All capitalized terms in this Notice are defined in the Class Action Settlement, a copy of which is available at mbbluetecsettlement.com.
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 2
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SUBJECT VEHICLES MODEL MODEL YEARS E250 BlueTEC 2014-2016 E350 BlueTEC 2011-2013 GL320 BlueTEC 2009 GL350 BlueTEC 2010-2016 GLE300d 2016 GLE350d 2016 GLK250 BlueTEC 2013-2015 ML250 BlueTEC 2015 ML320 BlueTEC 2009 ML350 BlueTEC 2010-2014 R320 BlueTEC 2009 R350 BlueTEC 2010-2012 S350 BlueTEC 2012-2013 Mercedes-Benz or Freightliner 2014-2016 Sprinter (4-cylinder) Mercedes-Benz or Freightliner 2010-2016 Sprinter (6-cylinder)
WHAT ARE MY OPTIONS?
If you are a Class Member, you may (1) submit a Valid Claim for payment; (2) do nothing (and get no payment); (3) exclude yourself from the Class Action Settlement (“opt out”); (4) object to the Class Action Settlement; and/or (5) go to a hearing about the fairness of the Class Action Settlement.
If you do nothing, you will get no payment and you will give up your rights to sue Daimler AG and Mercedes-Benz USA, LLC (the “Mercedes Defendants”) about any of the claims in this case.
If you exclude yourself (“opt out”), you will not be a member of the Class and you will not be eligible for a payment under the Class Action Settlement, but you will keep your right to sue against the Mercedes Defendants about the claims in this case, and you can still have the AEM installed in your vehicle.
If you object (i.e., tell the Court what you don’t like about the settlement), you will stay in the Class. You must submit a Valid Claim to receive a cash payment, even if you object. If you object and the Court approves the Class Action Settlement, you will be bound by the settlement and give up your right to sue the Mercedes Defendants about any of the claims in this case.
The postmark deadline for objections and requests for exclusion is [insert opt- out/objection deadline]. Please see the Long Form Notice at mbbluetecsettlement.com or call 1-877-313-0170 for complete instructions on how to file a claim, object, or exclude yourself, and other important information.
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The Court will hold a Fairness Hearing on [insert date and time], at the United States District Court for the District of New Jersey, located at the Martin Luther King Building & United States Courthouse, 50 Walnut Street, Newark, NJ 07102. At the hearing, the Court will consider whether to approve the Class Action Settlement, payment of attorneys’ fees and expenses, payments to Settlement Class Representatives, and related issues. Any attorneys’ fees and costs or payments to Settlement Class Representatives will not reduce payments to Class Members. The motions for fees, costs, and incentive awards will be available at mbbluetecsettlement.com after they are filed and before the Fairness Hearing. You may attend the Fairness Hearing, but you are not required to.
HOW CAN I GET A PAYMENT?
Current and former owners and lessees may be eligible for cash payments. To claim a cash payment, Class Members must submit a Valid Claim by the deadlines in this Notice.
If you are a current owner or lessee of a Registered Subject Vehicle and have not opted-out from the settlement, you can receive a payment by (1) having the AEM installed on your vehicle and (2) submitting a Valid Claim by October 1, 2022. Here are the steps to receive a payment:
1. Once an AEM for your vehicle is available, contact your preferred authorized dealership to schedule an appointment to have the AEM installed. AEMs are free of charge to you. Authorized Mercedes-Benz dealerships can be found at mbusa.com/en/dealers. Authorized Freightliner Sprinter dealerships can be found at freightlinersprinterusa.com/freightliner/shopping-tools/find- a-dealer.
AEMs are available now for the Subject Vehicles listed on the enclosed blue sheet. You can also check AEM availability at mbbluetecsettlement.com. As AEMs for other vehicles become available, owners and lessees of those vehicles will receive another mailed notice. Please continue to check mbbluetecsettlement.com for updated information. You may also call 1-877-313-0170 toll-free to find out whether an AEM is available for your Subject Vehicle.
2. Bring your vehicle to your appointment for installation of the AEM. You must complete the AEM installation before you submit a claim. Make sure to keep your repair order to submit with your claim, as well as receipts for any travel to and from the dealership for the AEM installation. If your appointment takes three hours or more and you are not offered a loaner vehicle, shuttle, or
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 4
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alternative form of transportation, you may be eligible to receive reimbursement up to $35 for travel expenses.
3. Submit a valid Claim Form and all required documents by October 1, 2022 at mbbluetecsettlement.com or by mail (postmarked by October 1, 2022) to:
MB Blue Tec Settlement c/o JND Legal Administration PO Box 91310 Seattle, WA 98111
If you are a former owner or lessee of a Registered Subject Vehicle, you must submit a Valid Claim by [[75 days after Notice Date], or by the date the Court finally approves the Class Action Settlement (if after [75 days after Notice Date])], at mbbluetecsettlement.com or by mail to the address listed directly above. Please visit mbbluetecsettlement.com for updates about the deadline to submit your claim.
Check mbbluetecsettlement.com often for information about the date of final Court approval of the Class Action Settlement and other updates.
A Claim Form is enclosed in this mailing.
HOW CAN I GET MORE INFORMATION?
Visit mbbluetecsettlement.com or call 1-877-313-0170 for more details about the Class Action Settlement, to register for updates, and to learn more about your rights and options.
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 5
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EXHIBIT 2
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United States District Court for the District of New Jersey
If You Bought or Leased a Mercedes-Benz or Sprinter BlueTEC II Diesel Vehicle, You May Be Eligible for a CASH PAYMENT from a Class Action Settlement
A federal court authorized this Notice. This is not a solicitation from a lawyer.
BENEFITS ARE AVAILABLE TO YOU:
GET PAID CASH UNDER THE CLASS ACTION SETTLEMENT:
Current owners and lessees can get $3,290 or more, and former owners and lessees can get $822.50
CURRENT OWNERS AND LESSEES
GET YOUR AGENCY-APPROVED From a separate settlement with federal EMISSION MODIFICATION FREE OF and California regulators; these benefits CHARGE TO YOU are available even if you do not participate in the class action settlement
RECEIVE AN EXTENDED MODIFICATION WARRANTY
YOU MUST TAKE ACTION TO RECEIVE THESE BENEFITS
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170
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READ THIS NOTICE CAREFULLY. YOUR LEGAL RIGHTS ARE AFFECTED WHETHER YOU ACT OR DO NOT ACT.
PLEASE CHECK THE SETTLEMENT WEBSITE AT MBBLUETECSETTLEMENT.COM OFTEN FOR UPDATES AND FURTHER DETAILS. You are receiving this Notice as a possible current or former owner or lessee of certain Mercedes-Benz and Sprinter BlueTEC II diesel vehicles, including both Mercedes-Benz- and Freightliner-branded Sprinter diesel vehicles. You may be eligible for a cash payment under a class action settlement.
Current Owners/Lessees Current If a former owner/lessee Owners/Lessees submits a Valid Claim for If no former the same vehicle Former owner/lessee OR Owners/Lessees submits a Valid If the current owner/lessee Claim for the same begins owning or leasing vehicle after September 14, 2020
$822.50 $3,290 $2,467.50 (Divided equally Class + + among former Member Possible Additional Possible Additional owners/lessees who Payment Payment Payment (see Question 7) submit a Valid Claim (see Question 7) for the same vehicle)
Daimler AG and Mercedes-Benz USA, LLC (the “Mercedes Defendants”) have reached a settlement (the “Class Action Settlement”) with a class of persons or entities who purchased or leased and Registered1 model year 2009-2016 Mercedes-Benz or Sprinter BlueTEC II diesel vehicles in the United States, subject to certain exclusions described in this Notice. The specific vehicles (the “Subject Vehicles”) are listed below.
1 All capitalized terms in this Notice are defined in the Class Action Settlement, a copy of which is available at mbbluetecsettlement.com.
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 2
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SUBJECT VEHICLES
MODEL MODEL YEARS E250 BlueTEC 2014-2016 E350 BlueTEC 2011-2013 GL320 BlueTEC 2009 GL350 BlueTEC 2010-2016 GLE300d 2016 GLE350d 2016
GLK250 BlueTEC 2013-2015 ML250 BlueTEC 2015 ML320 BlueTEC 2009 ML350 BlueTEC 2010-2014 R320 BlueTEC 2009 R350 BlueTEC 2010-2012 S350 BlueTEC 2012-2013 Mercedes-Benz or Freightliner 2014-2016 Sprinter (4-cylinder) Mercedes-Benz or Freightliner 2010-2016 Sprinter (6-cylinder)
This Notice summarizes the terms of the Class Action Settlement and answers potential questions Class Members may have about their eligibility and the terms of the Class Action Settlement. Additional information is available at mbbluetecsettlement.com.
SUMMARY OF BENEFITS FOR CLASS MEMBERS
The Class Action Settlement provides cash payments to current and former owners and lessees who are Class Members and who do not “opt out” of the Class.
To be eligible for a cash payment, current owners and lessees must first have an “Approved Emission Modification” or “AEM” installed in their vehicle. An AEM is an emission control system modification approved by the U.S. Environmental Protection Agency (the “EPA”) and the California Air Resources Board (“CARB”). The AEMs are the result of a separate settlement among the Mercedes Defendants and federal and California state regulators (the “US-CA Consent Decree”). More information about the US-CA Consent Decree is in Question 2 below. AEMs are free of charge to you.
The cash payments under the Class Action Settlement are available only to Class Members. However, current owners and lessees of Subject Vehicles may be eligible to receive the AEM and an Extended Modification Warranty even if they opt out of the Class Action Settlement.
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 3
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Former owners and lessees are not required to install an AEM to be eligible for cash payment under the Class Action Settlement.
To claim a cash payment, Class Members must submit a Valid Claim by the deadlines in this Notice.
Your legal rights are affected whether you act or not. Read this Notice carefully because it explains decisions you must make and actions you must take.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS CLASS ACTION SETTLEMENT
DO NOTHING If you do nothing, you will get no payment, stay in the Class, and give up your rights to sue the Mercedes Defendants regarding any of the claims in this case. You are still eligible to receive the AEM and the Extended Modification Warranty, as discussed in Question 2, below.
SUBMIT A If you are a current owner or lessee of a Registered Subject CLAIM FORM BY Vehicle, you will receive a payment if the AEM is installed and you THE DEADLINE submit a Valid Claim by October 1, 2022.
If you are a former owner or lessee of a Registered Subject Vehicle, you will receive a payment if you submit a Valid Claim by [[75 days after Notice Date], or by the date the Court finally approves the Class Action Settlement (if after [75 days after Notice Date]).] Please visit the Settlement Website (mbbluetecsettlement.com) for updates about the deadline to submit your claim.
To receive a payment, you must not “opt out” of the Class.
See Questions 20-23 for instructions on how to submit a claim.
EXCLUDE If you exclude yourself from the class (“opt out”), you will receive YOURSELF no payment and you will keep the right to sue the Mercedes FROM THE Defendants about the claims in this case. You must send in a CLASS written request to be excluded by [insert opt-out deadline] in order to be excluded (see Question 28). If you choose to exclude yourself from the Class, you can still receive the AEM and the Extended Modification Warranty discussed in Question 2, but you cannot receive a Class Member Payment (see Question 30).
OBJECT TO THE You may write to the Court by [insert objection deadline] to CLASS ACTION explain why you think the Class Action Settlement is not fair or SETTLEMENT
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 4
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reasonable or that it is otherwise improper, but you may object only if you do not exclude yourself from the Class (see Question 31).
GO TO A If you file a written objection, you may also ask by [insert HEARING objection deadline] to speak in Court about the fairness of the Class Action Settlement (see Questions 31 and 37), but you don’t have to. Even if you don’t object, you may appear at the hearing by filing a Notice of Appearance by [insert appearance deadline].
These rights and options — and the applicable deadlines — are explained in this Notice. The deadlines may be moved, cancelled, or otherwise modified without further notice to you. Check the Settlement Website at mbbluetecsettlement.com often for updates and more details.
If you do not exclude yourself from the Class, the Class Action Settlement (if approved) will release certain legal claims and will affect your right to start or continue any other lawsuit or proceeding against the Mercedes Defendants involving the Subject Vehicles. The release is addressed in Question 9 and described in Section 10 of the Class Action Settlement, which is available at mbbluetecsettlement.com.
ATTORNEYS’ FEES
Class Counsel will ask the Court to award up to $80,200,000 in attorneys’ fees and up to $3,200,000 in costs. Any fees and costs awarded by the Court to Class Counsel will not reduce payments to Class Members. Class Counsel will also ask the Court to award each of the named Plaintiffs representing the class (the “Settlement Class Representatives”) a “service award” of up to $5,000 for their work in this litigation. Any service awards approved by the Court will not reduce payments to Class Members.
The Mercedes Defendants will not pay attorneys’ fees and costs to any attorneys other than Class Counsel and attorneys working under Class Counsel’s direction. If you choose to hire attorneys that have not been appointed as Class Counsel, you may incur additional charges, subject to your agreement with your personally retained attorneys.
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 5
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WHAT THIS NOTICE CONTAINS
CLASS MEMBERSHIP AND ELIGIBILITY FOR BENEFITS ...... 1
1. What is this lawsuit about? ...... 1 2. What is the US-CA Consent Decree? ...... 1 3. Am I included in the Class Action Settlement? ...... 2 4. Who qualifies for payment benefits? And what will they receive? ...... 3 5. I sold my vehicle, or no longer lease my vehicle. Am I a Class Member? ...... 4 6. I bought or began leasing my vehicle after September 14, 2020. Am I a Class Member? ...... 5
SETTLEMENT BENEFITS ...... 6
7. What additional benefits will be available for Eligible Current Owners/Lessees who have an AEM installed in their vehicles? ...... 6 8. What payment will I receive if the AEM for my vehicle is not available by October 1, 2022? ...... 7 9. What am I giving up if I stay in the Class? ...... 8 10. Does this settlement affect claims against Bosch? ...... 13 11. Why do I have to sign an Individual Release before receiving a payment? ...... 13 12. How and when will the emissions systems in Subject Vehicles be modified? ...... 14 13. Is there a charge to have an AEM installed? ...... 14 14. How do I schedule an appointment to have the AEM installed in my vehicle? ...... 14 15. To receive a payment under this settlement, when do I need to have the AEM installed? ...... 14 16. What if I altered my vehicle’s emission control system? ...... 15 17. What if my vehicle is not operable? ...... 15 18. What if my vehicle is not registered? ...... 15 19. What are the terms of the Extended Modification Warranty? ...... 15 20. How do I claim Class Action Settlement payments? ...... 15 21. When can I submit a claim? ...... 16 22. What is the deadline to submit a claim? ...... 16 23. What supporting documents do I need to submit a claim? ...... 17 24. What happens if I do nothing? ...... 17
UNDERSTANDING THE CLASS ACTION PROCESS ...... 18
25. Why did I receive this Notice? ...... 18 26. What is a class action? ...... 18 27. What am I giving up in exchange for receiving the Class Action Settlement payments? ...... 18
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 i
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EXCLUDING YOURSELF FROM THE CLASS ACTION SETTLEMENT ...... 19
28. How do I get out of the Class Action Settlement? ...... 19 29. If I stay in this Class Action Settlement, can I sue the Mercedes Defendants for the same thing later? ...... 19 30. If I opt out of the Class, can I still get a payment from the Class Action Settlement? ...... 20
OBJECTING TO THE CLASS ACTION SETTLEMENT ...... 20
31. How do I tell the Court if I do not like the Class Action Settlement? ...... 20 32. What is the difference between objecting to the Class Action Settlement and opting out? ...... 21
THE LAWYERS REPRESENTING THE CLASS ...... 21
33. Do I have a lawyer in the case? ...... 21 34. How will the lawyers and named Plaintiffs representing the Class be paid? And how much? ...... 22
THE COURT’S FAIRNESS HEARING ...... 22
35. When and where will the Court decide whether to approve the Class Action Settlement? ...... 22 36. Do I have to attend the hearing? ...... 23 37. May I speak at the hearing? ...... 23
GETTING MORE INFORMATION ...... 23
38. How do I get more information? ...... 23
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 ii
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CLASS MEMBERSHIP AND ELIGIBILITY FOR BENEFITS
1. What is this lawsuit about?
Attorneys representing owners and lessees of certain Mercedes-Benz and Sprinter BlueTEC vehicles filed a class action lawsuit against the Mercedes Defendants, Robert Bosch GmbH, and Robert Bosch LLC (the “Bosch Defendants”), which are collectively referred to as the “Defendants.” The people who sued are called the “Plaintiffs.”
Plaintiffs allege that the Subject Vehicles were equipped with emission control systems that caused the Subject Vehicles to emit more nitrogen oxides (“NOx”) than consumers reasonably expected, and more NOx than was permitted under federal and state clean air laws. Plaintiffs also claim that the Defendants intentionally misled consumers about the qualities and characteristics of the Subject Vehicles.
The case is before Judge Kevin McNulty of the United States District Court for the District of New Jersey (the “Court”). The case is known as In re Mercedes-Benz Emissions Litigation, No. 2:16-cv-881-KM-ESK (D.N.J.) (the “Action” or “Class Action”).
Under the Class Action Settlement, the Mercedes Defendants have agreed to make cash payments to certain former owners and lessees of Subject Vehicles, and certain current owners and lessees of Subject Vehicles who have Approved Emissions Modifications (“AEMs”) installed in their vehicles. The Class Action Settlement does not affect your ability to sue or be part of a lawsuit against the Bosch Defendants (see Question 10).
A complete copy of the Class Action Settlement is available at mbbluetecsettlement.com.
2. What is the US-CA Consent Decree?
The US-CA Consent Decree provides AEMs, which are updates to the software in certain Mercedes-Benz and Sprinter BlueTEC II vehicles’ emissions control systems and to certain related hardware, as well as a robust extended warranty for vehicles that receive the AEM. Daimler has developed, and the EPA and CARB have approved, AEMs for approximately [123,000] currently registered vehicles. It is anticipated that proposed AEMs for the remaining covered BlueTEC II vehicles will be submitted to EPA and CARB for approval during 2020 and 2021.
AEMs are available now for the Subject Vehicles listed on the Settlement Website, mbbluetecsettlement.com; there, you can also type in your VIN to check if an AEM is available for your Subject Vehicle. As AEMs for other Subject Vehicles become available, owners and lessees of those vehicles will be notified. Please continue to check the Settlement Website for updated information. You may also call 1-877-313-0170 toll-free to find out whether an AEM is available for your Subject Vehicle. For more details about the AEMs and Extended Modification Warranty, please visit bluetecupdate.mbusa.com (if you own or lease a passenger car), bluetecupdate.mbvans.com (if you own or lease
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 1
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a Mercedes-Benz-branded Sprinter), or bluetecupdate.freightlinersprinterusa.com (if you own or lease a Freightliner-branded Sprinter).
Under the US-CA Consent Decree, owners and lessees of Subject Vehicles that are operable and either registered in the United States or its territories, or held by a dealer in the United States or its territories, can receive the AEM and an Extended Modification Warranty for the modified vehicle, free of charge to them, regardless of whether they are Class Members or submit a claim for a Class Member Payment.
A complete copy of the US-CA Consent Decree and additional information is available at bluetecupdate.mbusa.com, bluetecupdate.mbvans.com, and bluetecupdate.freightlinersprinterusa.com.
3. Am I included in the Class Action Settlement?
You are automatically included in the Class Action Settlement if you qualify as a Class Member and do not exclude yourself by “opting out” from the Class. The Class is composed of all current and former owners or lessees of Subject Vehicles who:
On or before September 14, 2020 owned or leased and Registered a Subject Vehicle;
or
After September 14, 2020 begin owning or leasing and Register a Subject Vehicle for which an AEM has not been installed.
The Class includes automobile dealers and resellers who meet either of the above qualifications for Class membership (including registration of the Subject Vehicle).
The following persons (including individuals and entities) are excluded from the Class, even if they meet the Class definition:
The Mercedes Defendants and their officers, directors, and employees; the Mercedes Defendants’ corporate affiliates and corporate affiliates’ officers, directors, and employees; their distributors and distributors’ officers, directors, and employees;
Judicial officers and their immediate family members and associated court staff assigned to this Action;
Persons who have settled with, released, or otherwise had claims adjudicated on the merits against the Mercedes Defendants arising from the same core allegations or circumstances as the BlueTEC Diesel Matter (as defined in Section 2.6 of the Class Action Settlement); and
All Persons otherwise in the Class who timely and properly exclude themselves from the Class as provided in the Class Action Agreement.
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 2
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If, after reading this Notice, you are still not sure whether you are included in the Class Action Settlement, you may visit the Settlement Website (mbbluetecsettlement.com) or call 1-877-313-0170. You may also send questions via e-mail to [email protected], or via regular mail to:
MB Blue Tec Settlement c/o JND Legal Administration PO Box 91310 Seattle, WA 98111
4. Who qualifies for payment benefits? And what will they receive?
Current and former owners and lessees of Subject Vehicles may be eligible for payments. If a current owner or lessee purchased or leased and Registered their vehicle on or before September 14, 2020 (an “Eligible Current Owner or Lessee”), they are eligible for an Owner/Lessee Payment, and if a current owner or lessee purchased or leased and Registered their vehicle after September 14, 2020 (an “Eligible Post- Announcement Owner or Lessee”) (collectively, “Eligible Current Owner/Lessee”), they are eligible for a Post-Announcement Owner/Lessee Payment. Owner/Lessee Payments and Post-Announcement Owner/Lessee Payments are intended to encourage installation of the AEMs.
Eligible Former Owners/Lessees are eligible only for a Former Owner/Lessee Payment.
The table below summarizes the eligibility categories and the benefits that Class Members are eligible to receive. The Class Action Settlement describes all of the eligibility criteria and payment details. Information regarding potential additional “contingent” payments, if any, is found in Question 7.
Class Member Payment (excluding possible Category Definition additional payments – see Question 7)
$3,290 If no other Class Member submits a Valid Claim for Owned or leased and Registered the same vehicle Eligible Current a Subject Vehicle on or before OR Owner or Lessee September 14, 2020 AND owns or leases that vehicle at the time the $2,467.50 AEM is installed If an Eligible Former Owner/Lessee submits a Valid Claim for the same vehicle
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Class Member Payment (excluding possible Category Definition additional payments – see Question 7)
Owns or leases a Registered Subject Vehicle at the time the Eligible Post- AEM is installed, but purchased or $2,467.50 per Announcement leased that vehicle after Valid Claim Owner or Lessee September 14, 2020
$822.50 if no other Eligible Former Owner/Lessee Owned or leased and Registered submits a Valid Claim for a Subject Vehicle on or before the same vehicle September 14, 2020 and then sold, transferred, or surrendered OR Eligible Former the vehicle by [[75 days after Owner/Lessee Notice Date], or by the date the $822.50 divided equally Court finally approves the among the number of Class Action Settlement (if after Valid Claims for the same [75 days after Notice Date])] vehicle submitted by Eligible Former Owners/Lessees
Eligible Current Owners/Lessees must have an AEM installed before submitting a claim for a Class Member Payment, and must submit proof of the AEM installation to the Settlement Administrator to receive a Class Member Payment.
AEMs may be installed free of charge to you at an authorized dealership of the same brand as the Subject Vehicle (i.e., Mercedes-Benz or Freightliner).
5. I sold my vehicle, or no longer lease my vehicle. Am I a Class Member?
If you owned or leased and Registered a Subject Vehicle on or before September 14, 2020, you are a Class Member. If you sold or otherwise transferred ownership of your vehicle, or terminated your lease (a) by [[75 days after Notice Date], or by the date the Court finally approves the Class Action Settlement (if after [75 days after Notice date])]; and (b) before the AEM is installed, you may be eligible to receive a Former Owner/Lessee Payment.
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 4
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TO OBTAIN A CLASS MEMBER PAYMENT, Eligible Former Owners/Lessees MUST submit a complete and Valid Claim by [[75 days after Notice Date], or by the date the Court finally approves the Class Action Settlement (if after [75 days after Notice Date])]. Please visit the Settlement Website (mbbluetecsettlement.com) for updates about the deadline to submit your claim. Eligible Former Owners/Lessees who miss the claim deadline will not receive a Class Member Payment.
Certain Members of the Class who no longer own or lease their vehicles may be eligible to receive an Owner/Lessee Payment instead of a Former Owner/Lessee Payment. If you (a) had the AEM installed in your Registered Subject Vehicle before you sold it (or otherwise transferred ownership) or terminated your lease, or (b) previously leased your Registered Subject Vehicle, but then you bought it and still own it at the time the AEM is installed, you may be eligible to receive an Owner/Lessee Payment or Post- Announcement Owner/Lessee Payment (as applicable).
TO OBTAIN A CLASS MEMBER PAYMENT, Eligible Current Owners/Lessees MUST have the AEM installed in their vehicle, and then submit a complete and Valid Claim by October 1, 2022. Eligible Current Owners/Lessees who miss the claim deadline will not receive a Class Member Payment.
If you owned or leased a Registered Subject Vehicle on or before September 14, 2020 and then sell (or otherwise transfer ownership of) the vehicle or terminate your lease (a) after [[75 days after Notice Date], or after date of final approval (if later than [75 days after Notice Date])]; but (b) before the AEM is installed, you are a Class Member but you are not eligible for a Class Member Payment. To avoid this situation, you should keep your vehicle, have an AEM installed, and submit a claim for an Owner/Lessee Payment. Alternatively, if you sell (or otherwise transfer ownership of) your vehicle or terminate your lease before the date above, you may also submit a claim by the deadline for Eligible Former Owners/Lessees for a Former Owner/Lessee Payment. Please visit the Settlement Website (mbbluetecsettlement.com) for updates about the deadline to submit your claim.
6. I bought or began leasing my vehicle after September 14, 2020. Am I a Class Member?
If you began owning or leasing and Registered a Subject Vehicle after September 14, 2020, you are a Class Member. You may be eligible for a Post-Announcement Owner/Lessee Payment if you continue to own or lease the vehicle on the date the AEM is installed.
If you began owning or leasing and Registered a Subject Vehicle after September 14, 2020 and then sell or otherwise transfer ownership or possession before the AEM is installed, you are not eligible for a Class Member Payment. To receive a payment, the AEM must be installed before you transfer ownership or possession. If you have the AEM installed, you may submit a claim for a Post-Announcement Owner/Lessee Payment.
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 5
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SETTLEMENT BENEFITS
7. What additional benefits will be available for Eligible Current Owners/Lessees who have an AEM installed in their vehicles?
The Class Action Settlement provides for cash payments to Eligible Current Owners/Lessees that have an AEM installed in their Registered Subject Vehicle, as described in Question 4.
In addition to the payment described in Question 4, Eligible Current Owners/Lessees who submit Valid Claims may be eligible for additional payments, as summarized below. Eligible Former Owners/Lessees are not eligible for these additional payments. Such additional payments will be paid at the same time as the Current Owner/Lessee Payment or Post-Announcement Owner/Lessee Payment, as applicable.
Situation Additional Payments
If a proposed emission modification is scheduled $400 under the US-CA Consent Decree for submission to Please see Section 5.3.1 of EPA and CARB more than 60 days after the Court the Class Action Settlement approves the Class Action Settlement for more details.
If the Mercedes Defendants submit to EPA and CARB a proposed emission modification more than $200* 30 days after the deadline under the US-CA Consent Decree
If the Mercedes Defendants submit to EPA and CARB a proposed emission modification more than $400* 180 days after the deadline under the US-CA Consent Decree
*These payments cannot be combined; the additional payment would be either $200 or $400, depending on when the proposed emission modification is submitted. Please see Section 5.3.2 of the Class Action Settlement for more details.
If EPA and CARB approve a proposed emission $350 modification that fails to meet the emission standard Please see Section 5.3.3 of to which the Registered Subject Vehicles were the Class Action Settlement originally certified for more details.
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Situation Additional Payments
If, as measured by the Mercedes Defendants in connection with their submission of a proposed emission modification to EPA and CARB or pursuant to industry standards, an AEM causes a reduction in $325** calculated fuel economy using the EPA formula of more than 3 MPG; a decrease of greater than 5% in peak horsepower; or a decrease of greater than 5% in peak torque
If an AEM causes a reduction in calculated fuel economy using the EPA formula of more than 6 $650** MPG, or a decrease of greater than 10% in peak horsepower or peak torque
**These payments cannot be combined; the additional payment would be either $325 or $650, depending on the performance impacts, even if performance is reduced in more than one category. Please see Section 5.3.8 of the Class Action Settlement for more details.
If an AEM changes the frequency with which $75 consumers need to refill their DEF tank, as stated in Please see Section 5.3.9 of the consumer notifications required by the US-CA the Class Action Settlement Consent Decree for more details.
Owners and lessees may be able to reserve a loaner car, shuttle service, or other alternative transportation through their authorized dealership, free of charge, if the installation of the AEM will take three hours or longer to complete and if loaner cars are available. In the event a loaner car, shuttle service, or other alternative transportation is not made available by the authorized dealership when the AEM installation takes three hours or longer to complete, Eligible Current Owners/Lessees may submit a claim for transportation costs incurred, up to $35 but must submit a receipt detailing such costs (see Question 23).
8. What payment will I receive if the AEM for my vehicle is not available by October 1, 2022?
If an AEM is not available by October 1, 2022 for a Registered Subject Vehicle that you own or lease, you may file a claim for a cash payment starting on that date. There are two tiers of payments for Class Members who cannot install an AEM because it is not available, as follows:
First tier: If an AEM is not made available by October 1, 2022, Class Members who own or lease an affected Registered Subject Vehicle at that time may file a claim by November 30, 2022 for the following payment:
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If no Eligible Former If an Eligible Former Owner/Lessee submits a Owner/Lessee submits Model Year Valid Claim for the same a Valid Claim for the vehicle same vehicle
Model Year 2014-2016 $2,632 $1,974
Model Year 2012-2013 $1,974 $1,480.50
Model Year 2009-2011 $987 $740.25
Second tier: If an AEM is not available by October 1, 2022, and no vehicle in that Emission Modification Category can be re-registered in the Registered Subject Vehicle owner’s state of residence because the AEM is unavailable, then any Class Members who own an affected Registered Subject Vehicle at that time may file a claim by November 30, 2022 for the Mercedes Defendants to repurchase the vehicle. If a Valid Claim is received by the deadline, the Mercedes Defendants will offer to repurchase the vehicle for an amount equal to its value according to Manheim Market Report, which is a service that provides valuations for vehicles.
The deadline for the Mercedes Defendants to make an AEM available for the purpose of this payment may be extended under the terms of the US-CA Consent Decree. To receive updates if this deadline (and the associated Claim Submission Deadline for Current Owners/Lessees) changes, and when AEMs become available, please register at mbbluetecsettlement.com.
For more details about eligibility for a voluntary repurchase, please see Sections 2.2 and 5.3.4-5.3.7 of the Class Action Settlement and mbbluetecsettlement.com or call 1-877-313-0170.
9. What am I giving up if I stay in the Class?
Unless you exclude yourself from the Class Action Settlement (see Question 28 on how to exclude yourself by “opting out”), you cannot sue the Mercedes Defendants or be part of any other lawsuit against the Mercedes Defendants about the issues in this case. A full copy of the Class Action Settlement is available at mbbluetecsettlement.com and describes the claims that you give up if you remain in the Class and the Court approves the Class Action Settlement.
Unless you exclude yourself (“opt out”) from the Class, you remain a Class Member and, if the Court approves the Class Action Settlement, you will release the Mercedes Defendants from any claims set forth below and will give up the right to bring or continue any action against the Mercedes Defendants relating to the claims being resolved by this
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Class Action Settlement. A copy of the Class Release sections from the Class Action Settlement is copied below. In addition, each Class Member who submits a Claim Form will be required to execute an Individual Release, which covers the same claims as the Class Release, before receiving any Class Member Payment. Because Class Members will release a wide range of claims, please carefully read the following Class Release, which will apply to you if you do not exclude yourself from the Class and the Court approves the Class Action Settlement:
In consideration for the Class Action Settlement, Class Members, on behalf of themselves and their agents, heirs, executors and administrators, successors, assigns, insurers, attorneys (including any attorney engaged by Class Members who is not Class Counsel), representatives, shareholders, owners associations, and any other legal or natural persons who may claim by, through, or under them (the “Releasing Parties”), fully, finally, irrevocably, and forever release, waive, discharge, relinquish, settle, and acquit any and all claims, demands, actions, or causes of action of any kind or nature whatsoever, whether in law or in equity, contractual, quasi- contractual or statutory, known or unknown, direct, indirect or consequential, liquidated or unliquidated, past, present or future, foreseen or unforeseen, developed or undeveloped, contingent or non-contingent, suspected or unsuspected, whether or not concealed or hidden, arising from, in whole or in part, or in any way related to the BlueTEC Diesel Matter, including without limitation (1) any claims or allegations that are, were, or could have been asserted in the Action; (2) any claims for fines, penalties, economic damages, punitive damages, exemplary damages, statutory damages, liens, injunctive relief, attorneys’ fees (except as provided in Section 11 of this Class Action Agreement), expert, consultant, or other litigation fees or costs; or (3) any other liabilities that were or could have been asserted in any civil, administrative, or other proceeding, including arbitration (“Released Claims”). The Released Claims include without limitation any and all such claims, demands, actions, or causes of action regardless of the legal or equitable theory or nature under which they are based or advanced including without limitation legal and/or equitable theories under any federal, state, provincial, local, tribal, administrative, or international law, or statute, ordinance, code, rule, regulation, contract, common law, equity, or any other source, and whether based in strict liability, negligence, gross negligence, punitive damages, nuisance, trespass, breach of warranty, misrepresentation, breach of contract, fraud, or any other legal or equitable theory, whether existing under the laws of the United States, a state, territory, or possession of the United States, or of any other foreign or domestic state, territory, county, city, or municipality, or any other legal or governmental body, whether existing now or arising in the future, that arise from, in whole or in part, or in any way relate to the BlueTEC Diesel Matter. Notwithstanding the foregoing, this Class Action Agreement does not release any claims for wrongful death or personal injury.
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“BlueTEC Diesel Matter” means all claims arising from or in any way relating to: (1) the design, manufacture, assembly, testing, development, installation, performance, presence, disclosure, or nondisclosure of any auxiliary emission control device (“AECD”) (as defined in 40 C.F.R. § 86.1803-01) or defeat device (as defined in 40 C.F.R. § 86.1803-01 or 42 U.S.C. § 7522(a)(3)(B)) in any Subject Vehicle, as that term is defined in Section 2.70 of the Class Action Agreement; (2) the design, manufacture, assembly, testing, development, installation, or performance of emission control equipment and methods and related hardware or software in Subject Vehicles, including Diesel Exhaust Fluid and associated equipment, Selective Catalytic Reduction systems, electronic control units, and emission-related software programming, coding, and calibrations; (3) overpayment or diminution in value related to the design, manufacture, assembly, testing, development, installation, or performance of emission control equipment and methods and related hardware or software in Subject Vehicles; (4) the actual or alleged noncompliance of any Subject Vehicle with state or federal environmental or emissions standards; (5) the marketing or advertisement of the emissions or environmental characteristics or performance of any Subject Vehicle, including as clean diesel, clean, low emissions, green, environmentally friendly, and/or compliant with state or federal environmental or emissions standards; (6) the marketing or advertisement of the fuel efficiency, fuel economy, mileage, power, drivability, or performance of any Subject Vehicle, to the extent related in any way to the emissions performance, the design, manufacture, assembly, testing, development, installation, or performance of emission control equipment and methods, and related hardware or software; (7) any badges, signage, or BlueTEC labels on the Subject Vehicles, including any badges or signage placed on the Subject Vehicles at the point of sale or in an advertisement; (8) performance of the AEM in a Subject Vehicle, exclusive of the Extended Modification Warranty and any “Lemon Law” protections available to Class Members; (9) whether the Subject Vehicles meet or exceed (or met or exceeded) consumer expectations, to the extent related in any way to the emissions performance, the design, manufacture, assembly, testing, development, installation, or performance of emission control equipment, and methods and related hardware or software; or (10) the subject matter of the Action as well as events or allegations related to the Action, with respect to the Subject Vehicles. Without limiting the foregoing, “BlueTEC Diesel Matter” includes allegations that (i) are related to any Subject Vehicle, (ii) relate to conduct by a Released Party that predates the date of the Class Action Settlement, and (iii) formed or relate to the factual basis for a claim that was made or could have been made in the Complaint.
The Released Parties include, without limitation, (1) Daimler AG, Mercedes- Benz USA, LLC, Mercedes-Benz AG, and any former, present, and future owners, shareholders (direct or indirect), members (direct or indirect), directors, officers, members of management or supervisory boards,
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employees, attorneys, affiliates, parent companies (direct or indirect), subsidiaries (direct or indirect), predecessors, and successors of any of the foregoing (the “Entities”); (2) any and all contractors, subcontractors, joint venture partners, consultants, auditors, dealers, and suppliers of the Entities; (3) any and all persons and entities indemnified by any Entity with respect to the Action or the BlueTEC Diesel Matter; (4) any and all other persons and entities involved in the design, research, development, manufacture, assembly, testing, sale, leasing, repair, warranting, marketing, advertising, public relations, promotion, or distribution of any Subject Vehicle, even if such persons are not specifically named in Section 10.2 of the Class Action Agreement; (5) Settlement Administrator; (6) lenders, creditors, financial institutions, or any other parties that financed any purchase or lease of a Subject Vehicle; (7) for each of the foregoing, their respective former, present, and future affiliates, parent companies, subsidiaries, predecessors, successors, shareholders, indemnitors, subrogees, spouses, joint venturers, general or limited partners, attorneys, assigns, principals, officers, directors, members of management or supervisory boards, employees, members, agents, representatives, trustees, insurers, reinsurers, heirs, beneficiaries, wards, estates, executors, administrators, receivers, conservators, personal representatives, divisions, dealers, and suppliers; and (8) any other person or entity that is or could be alleged to be responsible or liable in any way whatsoever, whether directly or indirectly, for the BlueTEC Diesel Matter. Notwithstanding the foregoing, the Released Parties do not include the Non-Settling Defendants Robert Bosch GmbH and Robert Bosch LLC.
For the avoidance of doubt, Class Counsel, the Settlement Class Representatives, and Class Members expressly understand and acknowledge that they may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those that they now know or believe to be true, related to the BlueTEC Diesel Matter, the Released Claims, and/or the Release herein. Nevertheless, it is the intention of Class Counsel, the Settlement Class Representatives, and Class Members in executing this Class Action Agreement to fully, finally, irrevocably, and forever release, waive, discharge, relinquish, settle, and acquit all Released Claims which exist, hereafter may exist, or might have existed (whether or not previously or currently asserted in any action or proceeding).
In exchange for the Benefits, Class Members release their potential claims under the Trade Regulation Rule Concerning the Preservation of Consumers’ Claims and Defenses, 16 C.F.R. § 433.2 (the “Holder Rule”), relating to the BlueTEC Diesel Matter.
Settlement Class Representatives expressly understand and acknowledge, and Class Members will be deemed to understand and acknowledge, Section 1542 of the California Civil Code, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in
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his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” Each Settlement Class Representative expressly acknowledges that they have been advised by Class Counsel of the contents and effect of Section 1542 of the California Civil Code and that they have considered the possibility that the number or magnitude of all claims may not currently be known. To ensure that this Release is interpreted fully in accordance with its terms, Class Members expressly waive and relinquish any and all rights and benefits that they may have under Section 1542 of the California Civil Code to the extent that Section 1542 of the California Civil Code may be applicable to the Release. Class Members likewise expressly waive and relinquish any rights or benefits of any law of any state, territory, county, municipality, or city of the United States, federal law or principle of common law, or of international, foreign, or tribal law, which is similar, comparable, analogous, or equivalent to Section 1542 of the California Civil Code to the extent that such laws or principles may be applicable to the Release.
Each Class Member who submits a Claim shall be required to execute an Individual Release, in the form attached as Exhibit 5 to the Class Action Agreement, as a precondition to receiving a Class Member Payment. Consistent with the Release provided in the Class Action Agreement, the Individual Release will provide that the Class Member releases all of the Released Parties from any and all Released Claims (as described in Section 10 of the Class Action Agreement) arising out of or related to the BlueTEC Diesel Matter. The Individual Release shall remain effective even if the Court does not enter the Final Approval Order, the Final Approval Order is reversed and/or vacated on appeal, or if this Class Action Agreement is abrogated or otherwise voided in whole or in part. The Individual Release binds Class Members when they receive a Class Member Payment.
Class Members expressly agree that the Release and the Final Approval Order, are, will be, and may be raised as a complete defense to, and will preclude, any action or proceeding specified in, or involving claims encompassed by, the Release. Class Members shall not now or hereafter institute, maintain, prosecute, assert, and/or cooperate in the institution, commencement, filing, or prosecution of any suit, action, and/or other proceeding against the Released Parties with respect to the claims, causes of action, and/or any other matters subject to this Release. To the extent that they have initiated, or caused to be initiated, any suit, action, or proceeding not already encompassed by the Action, Class Members shall promptly cause their claims in any such suit, action, or proceeding to be dismissed with prejudice. If a Class Member commences, files, initiates, or institutes any legal action or other proceeding for any Released Claim against any Released Party in any federal or state court, arbitral tribunal, or administrative or other forum, (1) such legal action or other proceeding shall be dismissed with prejudice and at that Class Member’s cost; (2) any refusal or failure to immediately dismiss such claims shall provide a basis
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for any Released Party to seek an injunction, sanctions, or other appropriate relief; and (3) the respective Released Party shall be entitled to recover any and all reasonable related costs and expenses from that Class Member arising as a result of that Class Member’s breach of their obligations under this Release. Within five business days of the Post- Appeal Date, Class Counsel will dismiss the Mercedes Defendants from the Complaint in this Action with prejudice.
The Benefits pursuant to the Class Action Agreement are in full, complete, and total satisfaction of all of the Released Claims against the Released Parties. The Benefits are sufficient and adequate consideration for each and every term of this Release, and this Release shall be irrevocably binding upon Settlement Class Representatives and Class Members.
The Release shall be effective with respect to all Releasing Parties, including all Class Members, regardless of whether those Class Members ultimately submit a Claim or receive a Class Member Payment under this Class Action Agreement.
Upon the Effective Date, Released Parties absolutely and unconditionally release and forever discharge the Settlement Class Representatives, Class Members, the Mercedes Defendants’ counsel, and Class Counsel from any and all claims relating to the institution or prosecution of the Action.
This Class Action Settlement does not provide benefits from, or release claims against, Robert Bosch LLC or Robert Bosch GmbH or their affiliates. See Question 10 for more information.
10. Does this settlement affect claims against Bosch?
Robert Bosch GmbH and Robert Bosch LLC (the “Bosch Defendants”) are not involved in this settlement. This settlement does not release your claims against the Bosch Defendants. Your ability to sue or be part of a lawsuit against the Bosch Defendants is unaffected by the Class Action Settlement.
Plaintiffs’ lawsuit against the Bosch Defendants remains pending in the Action, and may result in separate recovery from the Bosch Defendants as a result of a judgment or settlement.
11. Why do I have to sign an Individual Release before receiving a payment?
Class Members must sign an Individual Release and submit it with their Claim Form to receive a Class Member Payment. The Individual Release will release the same claims as the Class Release discussed in Question 9. However, if you execute the Individual Release and receive a Class Member Payment, you will release the claims discussed in Question 9 even if the Class Action Settlement is terminated or if the
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settlement is appealed and overturned. Because the Individual Release will remain effective in these circumstances, the Mercedes Defendants have agreed that the Settlement Administrator can begin making Class Member Payments after the Court grants final approval to the Class Action Settlement, without waiting for the outcome of any appeal.
MODIFYING YOUR VEHICLE’S EMISSIONS SYSTEM
12. How and when will the emissions systems in Subject Vehicles be modified?
Proposals for emissions modifications for Subject Vehicles (“AEMs”) will be submitted at different times for EPA’s and CARB’s approval under the terms of the US- CA Consent Decree. Within 15 days of EPA’s and CARB’s approval of an emissions modification, customers can begin scheduling appointments at authorized dealerships to install the AEM.
AEMs are available now for the Subject Vehicles listed on the Settlement Website, mbbluetecsettlement.com; there, you can also type in your VIN to check if an AEM is available for your Subject Vehicle. As AEMs for other Subject Vehicles become available, owners and lessees of those vehicles will be notified. Please continue to check the Settlement Website for updated information. You may also call 1-877-313-0170 toll-free to find out whether an AEM is available for your Subject Vehicle. For more details about the AEMs and Extended Modification Warranty, please visit bluetecupdate.mbusa.com (if you own or lease a passenger car), bluetecupdate.mbvans.com (if you own or lease a Mercedes-Benz-branded Sprinter), or bluetecupdate.freightlinersprinterusa.com (if you own or lease a Freightliner-branded Sprinter).
13. Is there a charge to have an AEM installed?
No. AEMs are free of charge to you at an authorized dealership.
14. How do I schedule an appointment to have the AEM installed in my vehicle?
Call your preferred authorized dealership to schedule an appointment to have the AEM installed. If you are a Mercedes-Benz vehicle owner, you can check mbusa.com/en/dealers for authorized dealerships in your area. If you are a Freightliner Sprinter owner, you can check freightlinersprinterusa.com/freightliner/shopping- tools/find-a-dealer for authorized dealerships in your area.
15. To receive a payment under this settlement, when do I need to have the AEM installed?
If you own or lease a Registered Subject Vehicle, to receive a payment under the Class Action Settlement, you must complete your AEM installation and submit a Valid Claim by October 1, 2022. You can continue to drive your vehicle without an AEM until you schedule an AEM appointment, but you will not be eligible to submit a
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claim for a Current Owner/Lessee Payment or Post-Announcement Owner/Lessee Payment until the AEM is installed in your vehicle.
16. What if I altered my vehicle’s emission control system?
If you altered the emission control system in your vehicle, you may still be eligible to receive the AEM and may still be a Class Member eligible for a payment under the Class Action Settlement. However, if the AEM cannot be installed on your vehicle because of alterations to the emission control system or if the alterations are likely to substantially affect the operation of your vehicle with the AEM installed, you may not be eligible for the AEM or for a payment under the Class Action Settlement unless you first reverse the alterations, at your own expense (see the US-CA Consent Decree and Section 2.53 of the Class Action Settlement for additional details).
17. What if my vehicle is not operable?
Pursuant to the US-CA Consent Decree, your vehicle must be operable to receive the AEM. That means the vehicle must be able to be driven under its own engine power (see the US-CA Consent Decree and Section 2.53 of the Class Action Settlement for additional details).
18. What if my vehicle is not registered?
Registration of your vehicle is a requirement to file a Valid Claim on that vehicle under the Class Action Settlement.
19. What are the terms of the Extended Modification Warranty?
Please refer to the terms of the Extended Modification Warranty at mbbluetecsettlement.com, mbbluetecupdate.mbusa.com (if you own or lease a passenger car), bluetecupdate.mbvans.com (if you own or lease a Mercedes-Benz- branded Sprinter), or bluetecupdate.freightlinersprinterusa.com (if you own or lease a Freightliner-branded Sprinter).
HOW TO GET PAYMENTS –SUBMITTING CLAIMS FOR REGISTERED SUBJECT VEHICLES
20. How do I claim Class Action Settlement payments?
To claim a Class Member Payment under the Class Action Settlement, you must submit a Valid Claim by the applicable deadline. Claims can be submitted online, at mbbluetecsettlement.com, or by mail. You can obtain and print Claim Forms for mail submissions by downloading them from mbbluetecsettlement.com or you may request to have a Claim Form mailed to you by calling 1-877-313-0170.
Submit claims Online: mbbluetecsettlement.com
Submit claims via Mail: MB Blue Tec Settlement
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c/o JND Legal Administration PO Box 91310 Seattle, WA 98111
21. When can I submit a claim?
The Claims Program begins on [insert date notice is sent]. Eligible Former Owners/Lessees may submit claims as soon as the Claims Program begins. Eligible Current Owners/Lessees may submit claims after the Claims Program begins and after they have the AEM installed in their Registered Subject Vehicle.
AEMs are available now for the Subject Vehicles listed on the Settlement Website, mbbluetecsettlement.com; there, you can also type in your VIN to check if an AEM is available for your Subject Vehicle. As AEMs for other Subject Vehicles become available, owners and lessees of those vehicles will be notified. Please continue to check the Settlement Website for updated information. You may also call 1-877-313-0170 toll-free to find out whether an AEM is available for your Subject Vehicle.
You can visit the Settlement Website (mbbluetecsettlement.com) to sign up for e-mail updates about the Class Action Settlement. Signing up for e-mail updates on the Settlement Website is not a submission of a claim, and you should check the Settlement Website (mbbluetecsettlement.com) often, even after you sign up for e-mail updates.
22. What is the deadline to submit a claim?
The deadline for you to submit a claim depends on whether you are an Eligible Current Owner/Lessee or an Eligible Former Owner/Lessee.
The deadline for Eligible Current Owners/Lessees to have the AEM installed in their Registered Subject Vehicle and submit a Valid Claim is October 1, 2022. To ensure that you have adequate time to schedule and complete your AEM and complete the Claim Form, you should not wait until the October 1, 2022 deadline approaches to schedule your AEM installation and submit your Claim Form.
Note: If an AEM for your vehicle is not available by October 1, 2022, you must submit a complete Claim Form by November 30, 2022 to receive a Class Member Payment; please see Question 8 for more details. Please see Question 21 for information about how to check whether an AEM is ready for your Subject Vehicle.
The deadline for Eligible Former Owners/Lessees to submit a Valid Claim is [[75 days after Notice Date], or the date the Court finally approves the Class Action Settlement (if after [75 days after Notice Date])]. Please visit the Settlement Website (mbbluetecsettlement.com) for updates about the deadline to submit your claim.
Class Members who do not submit a Valid Claim by the applicable deadline will not receive a Class Member Payment.
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23. What supporting documents do I need to submit a claim?
You will be required to submit supporting documentation to complete your claim, which may include:
Proof of current or former vehicle ownership or lease;
Dates you owned or leased the Registered Subject Vehicle;
A copy of your driver’s license or other government-issued identification;
Proof of vehicle registration, including date of registration;
For current owners and lessees, the repair order or invoice you receive when the AEM is performed on your Registered Subject Vehicle in order to prove that your vehicle received the AEM; and
If submitting a claim for the transportation reimbursement discussed in Question 7, a receipt establishing the transportation costs for trips to and from the authorized dealership.
24. What happens if I do nothing?
If you are a Class Member (as explained in Question 3) and you do nothing, you will not get any payment from the Class Action Settlement, but you will remain in the Class and you will be bound by the Court’s decisions. You will give up (or “release”) all claims that have been made and all related claims that could have been made in this lawsuit. This means that you are agreeing to fully, finally, and forever release, relinquish, and discharge all Released Claims against the Released Parties, as set forth above in response to Question 9.
Unless you affirmatively exclude yourself from the Class by opting out of the Class (see Question 28), if the Class Action Settlement is approved, you won’t be able to sue or be part of any other lawsuit against the Mercedes Defendants about the claims in this lawsuit ever again, regardless of whether you submit a claim or have the AEM installed in your Registered Subject Vehicle. Your claims against the remaining defendants, Robert Bosch GmbH and Robert Bosch LLC, are not released by this Class Action Settlement. See Question 10.
If you have any questions, you can contact the lawyers listed in Question 33 for free to discuss, or you can talk to another lawyer of your own choosing at your own expense.
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UNDERSTANDING THE CLASS ACTION PROCESS
25. Why did I receive this Notice?
You received a Notice because you may be a Class Member. The Court authorized this Notice because Class Members have a right to know about the Class Action Settlement and to understand all of their options before the Court decides whether or not to approve the Class Action Settlement. This Notice summarizes the Class Action Settlement and explains Class Members’ legal rights and options, as well as some of the relief provided by the US-CA Consent Decree. However, please read the complete text of the Class Action Settlement and US-CA Consent Decree for more details. You can find these documents at mbbluetecsettlement.com.
26. What is a class action?
A class action is a representative lawsuit. One or more Plaintiffs (who are also called “class representatives”) sue on behalf of themselves and all other people with similar claims who are not named in the lawsuit but are described in the class definition and are members of the Class. When a class action is settled, the Court resolves the issues in the lawsuit for all members of the Class, except for those who leave (opt out of) the Class. Opting out means that you will not receive a Class Member Payment under the Class Action Settlement. The opt-out process is described in Question 28 of this Notice. Current owners and lessees of Subject Vehicles may be eligible to receive the AEM and an Extended Modification Warranty even if they opt out of the Class Action Settlement.
27. What am I giving up in exchange for receiving the Class Action Settlement payments?
If the Court approves the Class Action Settlement and you do not opt out, you will be eligible for the cash benefits, as described above. In exchange, you will waive your right to sue the Mercedes Defendants and related parties for the claims being resolved by this Class Action Settlement, as set forth in Question 9 and Section 10 of the Class Action Settlement. If you submit a claim and receive a Class Member Payment, you will waive your right to sue the Mercedes Defendants and others for the claims described in Question 9 and Exhibit 5 to the Class Action Agreement, even if the Court does not approve the Class Action Settlement. This Class Action Settlement does not provide payments for any individuals or entities who are not Members of the Class (see Question 3) and does not affect any legal rights related to claims for personal injury or wrongful death. Additionally, this Class Action Settlement does not provide benefits or affect your ability to bring or continue legal claims against Robert Bosch LLC or Robert Bosch GmbH (see Question 10).
The Class Action Settlement contains the complete text and details of what rights Class Members waive unless they exclude themselves from the Class Action Settlement, so please read it carefully. In particular, please refer to Section 10 of that document. The Class Action Settlement is available on the Settlement Website,
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mbbluetecsettlement.com. If you have any questions, you may talk to the Class Counsel listed in Question 33 for free, or you may talk to another lawyer of your choosing at your own expense.
EXCLUDING YOURSELF FROM THE CLASS ACTION SETTLEMENT
28. How do I get out of the Class Action Settlement?
If you do not want to receive any Class Member Payment provided by the Class Action Settlement, and you want to retain the right to sue the Mercedes Defendants about the legal issues in this case, then you must take steps to exclude yourself from the Class.
You may do this by asking to be excluded from the Class, sometimes referred to as “opting out of” the Class. To opt-out of the Class, you must send a letter or other written document to the Settlement Administrator. Your opt-out request must include:
Your name, address, and telephone number;
The VIN of your Registered Subject Vehicle;
A statement that “I wish to exclude myself from the Class in In re Mercedes-Benz Emissions Litigation, No. 2:16-cv-0881 (D.N.J.),” or substantially similar clear and unambiguous language;
A statement as to whether you own, lease, owned, or leased a Registered Subject Vehicle; and
Your personal, physical signature is required (electronic signatures, including Docusign, or PDF signatures are not permitted and will not be considered personal signatures). Requests signed solely by your lawyer are not valid.
You must mail your signed written request to:
MB Blue Tec Settlement - Exclusions c/o JND Legal Administration PO Box 91385 Seattle, WA 98111
Your signed written request must be sent (postmarked or e-mailed) by [insert opt-out deadline], the “Opt-Out Deadline.”
29. If I stay in this Class Action Settlement, can I sue the Mercedes Defendants for the same thing later?
No. Unless you exclude yourself (“opt out”), you give up the right to sue the Mercedes Defendants for all of the claims that this Class Action Settlement resolves.
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 19
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However, this settlement does not release your claims against the Bosch Defendants. Please see Question 9 and Section 10 of the Class Action Agreement for more details.
30. If I opt out of the Class, can I still get a payment from the Class Action Settlement?
No. If you exclude yourself (“opt out”), you will not get any of the cash benefits provided by the Class Action Settlement. Under the US-CA Consent Decree, if you own or lease a Subject Vehicle that is operable and Registered or held by a dealer in the United States or its territories, you would still be able to obtain an Approved Emission Modification and Extended Modification Warranty free of charge. See Question 12 and mbbluetecupdate.mbusa.com (if you own or lease a passenger car), bluetecupdate.mbvans.com (if you own or lease a Mercedes-Benz-branded Sprinter), or bluetecupdate.freightlinersprinterusa.com (if you own or lease a Freightliner- branded Sprinter) for details regarding how to obtain the AEM and Extended Modification Warranty.
OBJECTING TO THE CLASS ACTION SETTLEMENT
31. How do I tell the Court if I do not like the Class Action Settlement?
If you do not opt out of the Class, you may object to the Class Action Settlement. The Court will consider your views.
To comment on or to object to the Class Action Settlement or Class Counsel’s request for attorneys’ fees and costs, you or your attorney must submit your written objection to the Court, including the following:
Your name, address, and telephone number;
A statement saying that you object to the Class Action Settlement in In re Mercedes-Benz Emissions Litigation, No. 2:16-cv-881 (D.N.J.);
A statement that you have reviewed the Class definition and have not opted out of the Class;
The reasons you object to the Class Action Settlement or Class Counsel’s request for attorneys’ fees and costs, along with any supporting materials;
The VIN of your Registered Subject Vehicle and the dates you owned or leased the vehicle; and
Your signature (physical, not electronic, form) and date.
In addition, if you wish to speak at the final approval hearing (the “Fairness Hearing”), you must submit a written notice of your intent (see Question 37 below).
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 20
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You must mail your objection to the addresses below, postmarked by [insert objection deadline]:
THE MERCEDES COURT CLASS COUNSEL DEFENDANTS
Clerk of the Court/Judge James E. Cecchi Daniel W. Nelson Kevin McNulty Carella, Byrne, Cecchi, Gibson, Dunn & Crutcher LLP Martin Luther King Building & Olstein, Brody & Agnello, P.C. 1050 Connecticut Avenue NW United States Courthouse 5 Becker Farm Road Washington, D.C. 20036 50 Walnut Street Roseland, NJ 07068 Newark, NJ 07101
Submitting an objection is not a substitute for submitting a claim as described in Questions 20-23. Even if you make an objection, you must also submit a Valid Claim by the applicable deadline in order to get any cash payment under the Class Action Settlement.
32. What is the difference between objecting to the Class Action Settlement and opting out?
If you opt out of the Class, you cannot object to the Class Action Settlement. Opting out is telling the Court that you do not want to be part of the Class Action Settlement, and you do not want to receive any Class Member Payment from the Class Action Settlement. If you opt out, you have no basis to object to the Class Action Settlement by telling the Court you do not like something about it, because the Class Action Settlement no longer affects you. If you opt out, you keep your right to sue the Mercedes Defendants, but you give up your right to obtain a cash payment under the Class Action Settlement. If you opt out, you may still be eligible to receive the AEM and the Extended Modification Warranty pursuant to the US-CA Consent Decree.
If you object to the Class Action Settlement, you are expressing your views about the Class Action Settlement, but you remain a Class Member (if you are otherwise eligible). If you make an objection, you must still submit a claim in order to get a Class Member Payment under the Class Action Settlement.
THE LAWYERS REPRESENTING THE CLASS
33. Do I have a lawyer in the case?
Yes. The Court has appointed lawyers to represent the Class as “Class Counsel.” You will not be charged for contacting these lawyers. Please contact them at [email protected] or 973-994-1700. They are:
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 21
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James E. Cecchi Steve W. Berman Christopher A. Seeger Carella, Byrne, Cecchi, Hagens Berman Sobol Seeger Weiss LLP Olstein, Brody & Agnello, P.C. Shapiro LLP 55 Challenger Road, 5 Becker Farm Road 1301 2nd Avenue, 6th Floor Roseland, NJ 07068 Suite 2000 Ridgefield Park, NJ 07660 Seattle, WA 98101
34. How will the lawyers and named Plaintiffs representing the Class be paid? And how much?
Any reasonable attorneys’ fees and costs awarded to Class Counsel by the Court will be paid separately by the Mercedes Defendants in addition to the Class Member Payments, and will not reduce benefits to Class Members.
Class Counsel will ask the Court to award up to $80,200,000 in attorneys’ fees and up to $3,200,000 in costs. Class Counsel will ask the Court to award each of the named Plaintiffs representing the Class (the “Settlement Class Representatives”) a “service award” of up to $5,000 for their work in this litigation. That filing will be available on the Settlement Website shortly after it is filed with the Court, and will describe the methodology and rationale behind Class Counsel’s request. Class Members will have an opportunity to comment on and/or object to this request, as explained further in Question 31. The Court must approve these attorneys’ fees and costs and service awards before they are paid by the Mercedes Defendants.
The Mercedes Defendants will not pay attorneys’ fees and costs to any attorneys other than Class Counsel and attorneys working under Class Counsel’s direction. If you choose to hire attorneys that have not been appointed as Class Counsel, you may incur additional charges, subject to your agreement with your personally retained attorneys. No attorneys other than Class Counsel or other attorneys authorized by Class Counsel to perform work in connection with this Action will receive fees or expenses from the Mercedes Defendants under the Class Action Settlement or any fee-shifting statute.
THE COURT’S FAIRNESS HEARING
35. When and where will the Court decide whether to approve the Class Action Settlement?
The Court will hold the Fairness Hearing on [insert date and time], at the United States District Court for the District of New Jersey, located at the Martin Luther King Building & United States Courthouse, 50 Walnut Street, Newark, NJ 07102. The hearing may be moved to a different date or time without additional notice, so it is a good idea to check the Settlement Website mbbluetecsettlement.com or call 1-877-313-0170 for further updates.
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 22
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At this hearing, the Court will hear evidence about whether the Class Action Settlement and Class Counsel’s request for attorneys’ fees and costs are fair, reasonable, and adequate. If there are objections, the Court will consider them and may listen to people who have asked to speak at the hearing. After the hearing, the Court will decide whether to approve the Class Action Settlement and Class Counsel’s request for attorneys’ fees and costs. We do not know how long it will take for the Court to reach its decisions.
36. Do I have to attend the hearing?
No. Class Counsel and lawyers representing the Mercedes Defendants will answer questions the Court may have. You are welcome to attend at your own expense. If you timely file an objection, you do not have to come to Court to talk about it. As long as you mail your written objection on time, the Court will consider it. You also may have your own lawyer attend the hearing at your expense, but it is not necessary.
37. May I speak at the hearing?
If you or your attorney attend the Fairness Hearing, you may ask the Court for permission to speak. To do so, you must first send a letter stating that it is your “Notice of Intention to Appear in In re Mercedes-Benz Emissions Litigation, No. 2:16-cv-881 (D.N.J.).” Be sure to include your name, address, telephone number, and signature. Your notice of intention to appear must be postmarked by [insert appearance deadline] and sent to the addresses listed in Question 31. The Court will determine whether to grant you permission to speak.
GETTING MORE INFORMATION
38. How do I get more information?
This Notice summarizes the Class Action Settlement. More details are in the Class Action Settlement and the US-CA Consent Decree. You can get copies of all of these documents on the Settlement Website (mbbluetecsettlement.com). You also may call 1-877-313-0170 for additional information or send questions via e-mail to [email protected] or via regular mail to:
MB Blue Tec Settlement c/o JND Legal Administration PO Box 91310 Seattle, WA 98111
You can access the Court docket in this case, for a fee, through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.njd.uscourts.gov, or by visiting the office of the Clerk of the Court for the United States District Court for the District of New Jersey, between 9:00 a.m. and 4:00 p.m., Monday through Friday, excluding Court holidays.
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 23
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PLEASE DO NOT CONTACT THE COURT OR COUNSEL FOR DAIMLER AG OR MERCEDES-BENZ USA, LLC REGARDING THIS NOTICE.
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 24
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EXHIBIT 3
Case 2:16-cv-00881-KM-ESK Document 299-2 Filed 09/14/20 Page 111 of 164 PageID: 8949
United States District Court for the District of New Jersey In re Mercedes-Benz Emissions Litigation, 16-cv-881 (KM) (ESK)
If You Are a Current Owner or Lessee of a Mercedes-Benz or Sprinter BlueTEC II Diesel Vehicle, You May Be Eligible for a CASH PAYMENT of $3,290 or more from a Class Action Settlement An Approved Emission Modification (“AEM”) is Now Available for Installation
An AEM is available at no charge to you for a Mercedes-Benz or Sprinter diesel vehicle (including both Mercedes-Benz and Freightliner-branded Sprinter diesel vehicles) that you may currently own or lease, as part of Daimler AG’s and Mercedes-Benz USA, LLC’s settlement with federal regulators and the State of California.
AEMs are available now for the Subject Vehicles listed on the enclosed blue sheet. You can also check AEM availability at the Settlement Website, mbbluetecsettlement.com, where you can type in your VIN or review a list of all Subject Vehicle models that are ready for the AEM installation. You may also call 1-877-313-0170 toll-free to find out whether an AEM is available for your Subject Vehicle.
If you install the AEM, you will also receive an extended warranty. The Consumer Emission Modification Disclosure, which is included with this Notice and is available at mbbluetecsettlement.com, contains more details about the AEM and the extended warranty.
Under a related Class Action Settlement,1 you may be entitled to a cash payment of $3,290 if you get the AEM installed in your vehicle, or $2,467.50 if you get the AEM installed in your vehicle and a former owner or lessee submitted a Valid Claim for the same vehicle. You may also be eligible for additional payments described in more detail at mbbluetecsettlement.com.
1 All capitalized terms in this Notice are defined in the Class Action Settlement, a copy of which is available at mbbluetecsettlement.com. You may have previously received a notice of the Class Action Settlement. This is a supplemental notice sent to let you know that an AEM for your vehicle is now available at no charge to you and that you should have the AEM installed and file a claim for a cash payment.
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170
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Visit mbbluetecsettlement.com or call 1-877-313-0170 for more details about the Class Action Settlement and to register for updates.
HOW CAN I GET A PAYMENT?
To claim the cash payment, you must submit a Valid Claim by the deadline in this Notice.
If you are a current owner or lessee of a registered BlueTEC II diesel vehicle listed on mbbluetecsettlement.com or the enclosed blue sheet, and have not opted-out from the Class Action Settlement, you may be eligible for a payment after the AEM installation is completed. To receive a payment, submit a Claim Form and all required documents by October 1, 2022. Here are the steps to receive a payment:
1. Contact your preferred authorized dealership to schedule an appointment to have the AEM installed. AEMs will be installed at no cost to you. Authorized Mercedes-Benz dealerships can be found at mbusa.com/en/dealers. Authorized Freightliner Sprinter dealerships can be found at freightlinersprinterusa.com/freightliner/shopping-tools/find- a-dealer.
2. Bring your vehicle to your appointment for the installation of the AEM. You must complete the AEM installation before you submit a claim. Make sure to keep your repair order to submit with your claim, as well as receipts for any travel to and from the dealership for the AEM installation. If your appointment takes three hours or more and you are not offered a loaner vehicle, shuttle, or alternative form of transportation, you may be eligible to receive reimbursement up to $35 for travel expenses.
3. Submit a valid Claim Form and all required documents by October 1, 2022 at mbbluetecsettlement.com or mail (postmarked by October 1, 2022) to:
MB Blue Tec Settlement c/o JND Legal Administration PO Box 91310 Seattle, WA 98111
A Claim Form is enclosed with this Notice.
QUESTIONS? VISIT MBBLUETECSETTLEMENT.COM, OR CALL 1-877-313-0170 2
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EXHIBIT 4
Case 2:16-cv-00881-KM-ESK Document 299-2 Filed 09/14/20 Page 114 of 164 PageID: 8952 In re Mercedes-Benz Emissions Litigation [bar code] Class Action Settlement Claim Form Claim Form Instructions
Instructions for Completing the Enclosed Claim Form
You must complete, sign, and return the enclosed Claim Form to receive a payment under the Class Action Settlement.1
Please read the full Long Form Notice, which is available at the Settlement Website, mbbluetecsettlement.com, before completing your Claim Form. If you have questions about this Claim Form, please visit the Settlement Website, call 1-877- 313-0170 toll-free or email [email protected].
CLAIM SUBMISSION INSTRUCTIONS AND DEADLINES:
To receive a Class Member Payment, you must submit a completed and signed Claim Form, including all required documentation, by the deadline that applies to you. These deadlines are set forth in detail at the Settlement Website, mbbluetecsettlement.com. To summarize:
o If you are an Eligible Current Owner/Lessee, your claim must be submitted online or postmarked by October 1, 2022.
o If you are an Eligible Former Owner/Lessee, your claim must be submitted online or postmarked by [[75 days after Notice Date], or by the date the Court finally approves the settlement (if after [75 days after Notice Date])]. Please visit mbbluetecsettlement.com for updates about the deadline to submit your claim.
o You may submit your completed Claim Form and all required documents online at mbbluetecsettlement.com. You may also mail your completed Claim Form and documentation to:
MB BlueTec Settlement c/o JND Legal Administration PO Box 91310 Seattle, WA 98111
You should not wait until close to the deadline to submit your Claim Form. All Claim Forms require information and documentation that you might need time to collect, and all Eligible Current Owners/Lessees must have scheduled and completed installation of the AEM for their vehicle before submitting their Claim Form.
The following documentation is required to submit a claim:
o A completed and signed Claim Form
o Proof of current or former ownership or lease, including dates of ownership or lease, for your Subject Vehicle
o Proof of vehicle registration for your Subject Vehicle
o Fully executed Individual Release (a copy of the Individual Release is included with this Claim Form)
o If you are an Eligible Current Owner/Lessee, a repair order showing the Approved Emission Modification (“AEM”) is installed in your Subject Vehicle
1 All capitalized terms in this Claim Form are defined in the Class Action Settlement, which can be found at mbbluetecsettlement.com
If you have questions about filling out this form, please visit mbbluetecsettlement.com or call 1-877-313-0170 To view JND’s privacy policy, please visit https://www.jndla.com/privacy-policy Case 2:16-cv-00881-KM-ESK Document 299-2 Filed 09/14/20 Page 115 of 164 PageID: 8953 In re Mercedes-Benz Emissions Litigation Class Action Settlement Claim Form Claim Form Instructions
. If you are an Eligible Current Owner/Lessee, you must schedule an appointment and have the AEM installed before submitting your Claim Form and required documents. You will be eligible for a Class Member Payment only after the AEM is installed (at no charge to you).
You can check whether the AEM is available now for your Subject Vehicle by visiting the Settlement Website, mbbluetecsettlement.com, where you can type in your Vehicle Identification Number (“VIN”) to check the AEM availability for your vehicle, or review a listing of all Subject Vehicle models that are ready for the AEM installation. If your vehicle is not listed, you will be notified when the AEM becomes available. Please continue to check the Settlement Website for updated information. You may also call 1-877-313-0170 toll-free to find out whether an AEM is available for your Subject Vehicle.
You can find a list of the types of documents that fulfill the documentation requirements below.
CLAIM REVIEW AND PAYMENT PROCESS:
After you have submitted your Claim Form, the Settlement Administrator will review your Claim Form and supporting documents for completeness and eligibility. The Settlement Administrator will also screen the claims for fraud and determine the payment amount.
If the Claim Form or required documentation is incomplete, illegible, or otherwise deficient, the Settlement Administrator will notify you that there is a deficiency or that more information is needed. If you do not timely comply and/or are unable to produce the requested information, your claim will be denied and you will not receive a Class Member Payment.
The payment amount you may receive depends on when you purchased or leased the Subject Vehicle, whether you owned or leased the Subject Vehicle at the time the AEM was installed in the Subject Vehicle, the number of claims made per Subject Vehicle and, for Eligible Current Owners/Lessees, whether your Subject Vehicle qualifies for possible additional payments. The Settlement Administrator will issue the payment after your claim is deemed complete and you are determined to be eligible for a Class Member Payment.
If you have questions about filling out this form, please visit mbbluetecsettlement.com or call 1-877-313-0170 To view JND’s privacy policy, please visit https://www.jndla.com/privacy-policy - 2 - Case 2:16-cv-00881-KM-ESK Document 299-2 Filed 09/14/20 Page 116 of 164 PageID: 8954 In re Mercedes-Benz Emissions Litigation Class Action Settlement Claim Form Claim Form Instructions
SECTION A: NAME AND CONTACT INFORMATION — ALL CLAIMANTS MUST COMPLETE
Please provide your name and contact information below. You must notify the Settlement Administrator if your contact information changes after you submit your Claim Form; otherwise you may not receive your Class Member Payment.
First Name Middle Initial Last Name Suffix
Mailing Address
City State Zip Code
Email Address Best Telephone Number to Contact You
SECTION B: VEHICLE INFORMATION — ALL CLAIMANTS MUST COMPLETE
All claimants must complete this Section B. If you are making a claim as an Eligible Former Owner or Lessee, you must provide the information for the Subject Vehicle that you formerly owned or leased.
Please provide the model and model year of your Subject Vehicle in the box below. Be sure to write clear and neatly. If you have a claim for more than one Subject Vehicle, you must submit a separate Claim Form for each Subject Vehicle.
Model Model Year
Please enter the VIN of the Subject Vehicle you entered above. The VIN may be located on your vehicle registration, your car title or in vehicle maintenance records from your dealer. Your Mercedes-Benz Owner’s Manual can also direct you to the physical location of the VIN on your vehicle. To avoid confusion between letters and numbers, please enter numbers in the same form as the chart below. Be sure to write clear and neatly.
Zero One Two Three Four Five Six Seven Eight Nine Ø 1 2 3 4 5 6 7 8 9
Enter the 17-digit VIN in the boxes above.
If you have questions about filling out this form, please visit mbbluetecsettlement.com or call 1-877-313-0170 To view JND’s privacy policy, please visit https://www.jndla.com/privacy-policy - 3 - Case 2:16-cv-00881-KM-ESK Document 299-2 Filed 09/14/20 Page 117 of 164 PageID: 8955 In re Mercedes-Benz Emissions Litigation Class Action Settlement Claim Form Claim Form Instructions
NEXT STEPS AFTER COMPLETING SECTION B:
If you are a current owner or lessee of the Subject Vehicle, fill out Section C and Section E below (skip Section D).
If you no longer own or lease the Subject Vehicle and did not install the AEM while you possessed it, skip Section C and fill out Sections D and E below.
If you no longer own or lease the Subject Vehicle, but you installed the AEM while you still possessed the Subject Vehicle, fill out Sections C and E below and skip Section D.
SECTION C: CURRENT OWNERS/LESSEES AND FORMER OWNERS/LESSEES WHO INSTALLED THE AEM
If you began owning or leasing and registered the Subject Vehicle on or before September 14, 2020, check
here:
If you began owning or leasing and registered the Subject Vehicle after September 14, 2020, check here:
If the Subject Vehicle was registered in your name at the time the AEM was installed, check here:
Please enter the date the AEM was installed in the Subject Vehicle (MM/DD/YYYY):
/ /
If the Subject Vehicle was not registered in your name at the time the AEM was installed, you are not eligible for a Current Owner/Lessee Payment or Post-Announcement Owner/Lessee Payment.
Transportation Costs
If you have already installed the AEM, please select each of the following that applies to you (if any):
The Authorized Service Provider took longer than 3 hours to install the AEM in my Subject Vehicle.
No loaner vehicle, shuttle service, or other alternative transportation was made available to me.
During the installation process, I did not have use of my Subject Vehicle and I incurred costs for transportation to and from the Authorized Service Provider.
If all three of the above apply to you, you may be eligible to receive reimbursement (up to $35) for transportation costs to and from the Authorized Service Provider while you did not have use of your Subject Vehicle. To receive the transportation reimbursement, you must submit with your Claim Form a receipt detailing your transportation costs. If any of the three above does not apply to you, you are not eligible for reimbursement of transportation costs.
If you are claiming Transportation Reimbursement, check here:
If you have questions about filling out this form, please visit mbbluetecsettlement.com or call 1-877-313-0170 To view JND’s privacy policy, please visit https://www.jndla.com/privacy-policy - 4 - Case 2:16-cv-00881-KM-ESK Document 299-2 Filed 09/14/20 Page 118 of 164 PageID: 8956 In re Mercedes-Benz Emissions Litigation Class Action Settlement Claim Form Claim Form Instructions
Required Documents – Current Owners and Lessees
Current Owners and Lessees must include a copy of the following supporting documents with your Claim Form to complete your claim. Please check all the boxes below that apply to you in order to confirm that you have included all the required documents. Please do not send the originals because the documents will not be returned to you. (Former Owners and Lessees do not need to provide these documents.)
DOCUMENTS REQUIRED TO COMPLETE YOUR CLAIM – CURRENT OWNERS/LESSEES*:
A copy of your driver’s license or other government-issued photo identification The repair order or invoice you received at the time the AEM was installed in your Subject Vehicle Proof that the Subject Vehicle was registered in your name at the time the AEM was installed Documentation of transportation costs (if seeking Transportation Reimbursement) Fully executed Individual Release (a copy of the Individual Release is attached to the end of this Claim Form) Proof that you owned or leased and registered the Subject Vehicle. Permitted documentation to prove ownership or lease includes your bill of sale, lease agreement, title, registration from time of purchase or lease, Department of Motor Vehicles (“DMV”) registration history, financing agreement, insurance documentation listing your date of purchase or lease, or proof of lease payment; insurance documentation may suffice for proof of registration. Your documentation must show the date you acquired or leased the Subject Vehicle, as well as the date you registered it.
*You may need to provide additional documentation in certain circumstances. You will be notified if additional information is needed to complete your claim.
SECTION D: FORMER OWNERS AND LESSEES ONLY
If you began owning or leasing and registered the Subject Vehicle on or before September 14, 2020, and did not have the AEM installed while you owned or leased the Subject Vehicle, check here:
Please enter the date you sold the Subject Vehicle or the date you gave back the Subject Vehicle because
your lease ended (MM/DD/YYYY): / /
If your Subject Vehicle was totaled, enter the date the Subject Vehicle was given to an insurance company (or given or sold to a junkyard, salvage dealer, or the equivalent). / /
If you began owning or leasing and registered the Subject Vehicle after September 14, 2020, and you did not have the AEM installed in your vehicle while you owned or leased it, you are not eligible for payment.
If you no longer own or lease the Subject Vehicle, but you had the AEM installed in the Subject Vehicle while (a) you owned or leased it, and (b) the Subject Vehicle was registered in your name, please fill out Section C and Section E.
If you have questions about filling out this form, please visit mbbluetecsettlement.com or call 1-877-313-0170 To view JND’s privacy policy, please visit https://www.jndla.com/privacy-policy - 5 - Case 2:16-cv-00881-KM-ESK Document 299-2 Filed 09/14/20 Page 119 of 164 PageID: 8957 In re Mercedes-Benz Emissions Litigation Class Action Settlement Claim Form Claim Form Instructions
Required Documentation – Former Owners and Lessees
Former Owners and Lessees must include a copy of the following supporting documentation with your Claim Form to complete your claim. Please check the corresponding box to confirm that you have included the specified documentation with your claim. Please do not send the originals as the documents will not be returned to you.
DOCUMENTS REQUIRED TO COMPLETE YOUR CLAIM*:
A copy of your driver’s license or other government-issued photo identification Fully executed Individual Release (a copy of the Individual Release is attached to the end of this Claim Form) Proof that you owned or leased and registered the Subject Vehicle on or before September 14, 2020. Permitted documentation to prove ownership or lease includes your bill of sale, lease agreement, title, registration from time of purchase or lease, Department of Motor Vehicles (“DMV”) registration history, financing agreement, insurance documentation listing your date of purchase or lease, or proof of lease payment; insurance documentation may suffice for proof of registration. Your documentation must show the date you purchased or leased the Subject Vehicle, as well as the date you registered it. Proof that you sold or transferred the Subject Vehicle (permitted documents include your bill of sale, trade-in receipt, copy of title transfer, or proof of lease termination)
*You may need to provide additional documentation in certain circumstances. You will be notified if additional information is needed to complete your claim.
SECTION E: CERTIFICATION STATEMENT FOR ENTIRE CLAIM FORM ALL CLAIMANTS MUST COMPLETE
I understand that in order to obtain relief under the Class Action Settlement, I must sign and date the following certification and provide the documentation listed above. I represent and warrant that I have authority to submit a claim for the Subject Vehicle listed above, and that any of my co-owners and co-lessees of the Subject Vehicle listed above have signed this Claim Form. I affirm under penalty of perjury that all information in this Claim Form is true and accurate to the best of my knowledge.
Signature Date
Print Name
CURRENT OWNERS Claim Forms must be submitted online at mbbluetecsettlement.com or postmarked no OR LESSEES: later than October 1, 2022.
FORMER OWNERS Claim Forms must be submitted online at mbbluetecsettlement.com or postmarked by OR LESSEES: [[75 days after Notice Date], or by the date the Court finally approves the Class Action Settlement (if after [75 days after Notice Date])]. Please visit mbbluetecsettlement.com for updates about the deadline to submit your claim.
If you have questions about filling out this form, please visit mbbluetecsettlement.com or call 1-877-313-0170 To view JND’s privacy policy, please visit https://www.jndla.com/privacy-policy - 6 - Case 2:16-cv-00881-KM-ESK Document 299-2 Filed 09/14/20 Page 120 of 164 PageID: 8958 In re Mercedes-Benz Emissions Litigation Class Action Settlement Claim Form Claim Form Instructions
Please keep a copy of your Claim Form and all supporting documentation for your records.
If you have questions about filling out this form, please visit mbbluetecsettlement.com or call 1-877-313-0170 To view JND’s privacy policy, please visit https://www.jndla.com/privacy-policy - 7 - Case 2:16-cv-00881-KM-ESK Document 299-2 Filed 09/14/20 Page 121 of 164 PageID: 8959
EXHIBIT 5
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INDIVIDUAL RELEASE OF CLAIMS
In re Mercedes-Benz Emissions Litigation Case No. 16-cv-881 (D.N.J.)
MUST BE COMPLETED BY CLASS MEMBER PRIOR TO RECEIVING ANY CLASS MEMBER PAYMENT
1. In exchange for the Class Member Payment1 that Daimler AG and Mercedes-Benz USA, LLC (the “Mercedes Defendants”) have agreed to provide to me, should the Settlement Administrator determine I am eligible to receive the Class Member Payment under the class action settlement agreement in this case2 (the “Class Action Agreement”), the sufficiency of which I hereby acknowledge, I, on behalf of myself and my agents, heirs, executors and administrators, successors, assigns, insurers, attorneys (including any of my attorneys who are not Class Counsel), representatives, shareholders, owners associations, and any other legal or natural persons who may claim by, through, or under them, hereby fully, finally, irrevocably, and forever release, waive, discharge, relinquish, settle, and acquit any and all claims, demands, actions, or causes of action, of any kind or nature whatsoever, whether in law or in equity, contractual, quasi-contractual or statutory, known or unknown, direct, indirect or consequential, liquidated or unliquidated, past, present or future, foreseen or unforeseen, developed or undeveloped, contingent or non-contingent, suspected or unsuspected, whether or not concealed or hidden, that I may have, purport to have, or may hereafter have against any Released Party arising out of, in whole or in part, or in any way related to the BlueTEC Diesel Matter, except for claims of personal injury or wrongful death (the “Released Claims,” as defined more fully in Section 10.3 of the Class Action Agreement). This Individual Release does not release any claims against Robert Bosch LLC or Robert Bosch GmbH.
2. “BlueTEC Diesel Matter” means all claims arising from or in any way relating to: (1) the design, manufacture, assembly, testing, development, installation, performance, presence, disclosure, or nondisclosure of any auxiliary emission control device (“AECD”) (as defined in 40 C.F.R. § 86.1803-01) or defeat device (as defined in 40 C.F.R. § 86.1803-01 or 42 U.S.C. § 7522(a)(3)(B)) in any Subject Vehicle, as that term is defined in Section 2.70 of the Class Action Agreement; (2) the design, manufacture, assembly, testing, development, installation, or performance of emission control equipment and methods and related hardware or software in Subject Vehicles, including Diesel Exhaust Fluid and associated equipment, Selective Catalytic Reduction systems, electronic control units, and
1 The terms “Action,” “Class Counsel,” “Class Member Payment,” “Court,” “Final Approval Order,” “Release,” “Released Claims,” “Released Party,” and “Settlement Administrator,” “Valid Claim,” and any other term not specifically defined herein, have the meanings given to them in the Class Action Agreement. A copy of the Class Action Agreement is available at mbbluetecsettlement.com. 2 [insert reference to MB Emissions docket entry corresponding to settlement agreement, once filed]
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emission-related software programming, coding, and calibrations; (3) overpayment or diminution in value related to the design, manufacture, assembly, testing, development, installation, or performance of emission control equipment and methods and related hardware or software in Subject Vehicles; (4) the actual or alleged noncompliance of any Subject Vehicle with state or federal environmental or emissions standards; (5) the marketing or advertisement of the emissions or environmental characteristics or performance of any Subject Vehicle, including as clean diesel, clean, low emissions, green, environmentally friendly, and/or compliant with state or federal environmental or emissions standards; (6) the marketing or advertisement of the fuel efficiency, fuel economy, mileage, power, drivability, or performance of any Subject Vehicle, to the extent related in any way to the emissions performance, the design, manufacture, assembly, testing, development, installation, or performance of emission control equipment and methods, and related hardware or software; (7) any badges, signage, or BlueTEC labels on the Subject Vehicles, including any badges or signage placed on the Subject Vehicles at the point of sale or in an advertisement; (8) performance of the AEM in a Subject Vehicle, exclusive of the Extended Modification Warranty and any “Lemon Law” protections available to Class Members; (9) whether the Subject Vehicles meet or exceed (or met or exceeded) consumer expectations, to the extent related in any way to the emissions performance, the design, manufacture, assembly, testing, development, installation, or performance of emission control equipment, and methods and related hardware or software; or (10) the subject matter of the Action as well as events or allegations related to the Action, with respect to the Subject Vehicles. Without limiting the foregoing, “BlueTEC Diesel Matter” includes allegations that (i) are related to any Subject Vehicle, (ii) relate to conduct by a Released Party that predates the date of this Class Action Settlement, and (iii) formed or relate to the factual basis for a claim that was made or could have been made in the Complaint.
3. This Individual Release shall become effective and binding immediately upon my receipt of the Class Member Payment made to me under the Class Action Agreement. I expressly understand and acknowledge that the Settlement Administrator will make final and unreviewable decisions regarding the Class Member Payment under the Class Action Settlement, and that this Individual Release remains effective and binding even if I disagree with the amount of my Class Member Payment. It is expressly understood and agreed that this is a compromise of a disputed claim and that the Mercedes Defendants have denied and continue to deny that they are in any way liable or responsible for the alleged conduct and damages claimed in the Action. Neither the Class Action Agreement, the compromise of the Action, this Individual Release, nor any act performed or document executed pursuant to or in furtherance of this Individual Release or the Class Action Agreement is, may be deemed to be, or may be used as an admission of, or evidence of, the validity of any of the Released Claims, or of any wrongdoing or liability of Released Parties; or may be deemed to be or may be used as an admission of, or evidence of, any fault or omission of Released Parties in any civil, criminal, or administrative proceeding in any court, administrative agency, or other tribunal.
4. This Individual Release supplements the Release and associated provisions set forth in Section 10 of the Class Action Agreement. It does not supersede them.
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5. I expressly understand and acknowledge that this Individual Release applies to claims of which I might not presently be aware. I expressly understand and acknowledge Section 1542 of the California Civil Code, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” I acknowledge that I am aware of the contents and effect of Section 1542 of the California Civil Code and have considered the possibility that the number, nature, or magnitude of all claims may not currently be known. To ensure that this Individual Release is interpreted fully in accordance with its terms, I expressly waive and relinquish any and all rights and benefits that I may have under Section 1542 of the California Civil Code to the extent that such section may be applicable to the Individual Release and likewise expressly waive and relinquish any rights or benefits of any law of any state, territory, county, municipality, or city of the United States, federal law or principle of common law, or of international, foreign, or tribal law, which is similar, comparable, analogous, or equivalent to Section 1542 of the California Civil Code to the extent that such laws or principles may be applicable to the Individual Release.
6. I expressly understand and acknowledge that I may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those that I now know or believe to be true, related to the BlueTEC Diesel Matter, the Released Claims, and/or the Individual Release. Nevertheless, it is my intention to fully, finally, irrevocably, and forever release, waive, discharge, relinquish, settle, and acquit all Released Claims which exist, hereafter may exist, or might have existed (whether or not previously or currently asserted in any action or proceeding). This includes, without limitation, any claims I have or may have with respect to the BlueTEC Diesel Matter under the Trade Regulation Rule Concerning the Preservation of Consumers’ Claims and Defenses, 16 C.F.R. § 433.2 (the “Holder Rule”).
7. This Individual Release shall remain effective regardless of any judicial, quasi-judicial, arbitral, administrative, regulatory, or other decision relating to the liability of any Released Party in connection with the BlueTEC Diesel Matter and shall be binding on me immediately upon my receipt of the Class Member Payment made to me under the Class Action Agreement. For the avoidance of doubt, this Individual Release shall remain effective even if the Court does not enter the Final Approval Order, the Final Approval Order is reversed and/or vacated on appeal, or if the Class Action Agreement is abrogated or otherwise voided in whole or in part.
8. This Individual Release waives or releases any right to receive further monetary compensation beyond the Class Member Payment or to pursue additional benefits under the Class Action Agreement, or in any other manner relating to the BlueTEC Diesel Matter, except to the extent I submit a Valid Claim for another vehicle I own or lease (or formerly owned or leased) that is eligible for compensation under the Class Action Agreement.
9. This Individual Release, and any dispute arising out of or related to this Individual Release, shall be governed by and interpreted according to the Federal Rules of Civil Procedure and applicable jurisprudence relating thereto, and the laws of the State of New Jersey
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notwithstanding its conflict of law provisions. Once it becomes binding on me, this Individual Release will be binding upon my successors, transferees, and assigns.
10. Any matters concerning this Individual Release, including any disagreement as to whether this Individual Release is effective, shall be settled by binding arbitration. The arbitrator shall award to the prevailing party all of its attorneys’ fees and costs, and its share of the costs and administrative fees due to the arbitrator.
11. I expressly agree that this Individual Release is, and may be raised as, a complete defense to, and will preclude, any lawsuit, action, or other proceeding involving claims encompassed by this Individual Release. I shall not now or hereafter institute, maintain, prosecute, assert, and/or cooperate in the institution, commencement, filing, or prosecution of any suit, action, and/or other proceeding against the Released Parties with respect to the claims, causes of action, and/or any other matters subject to this Individual Release. To the extent that I have initiated, or caused to be initiated, any suit, action, or proceeding subject to this Individual Release that is not already encompassed by the Action, I shall promptly cause my claims in any such suit, action, or proceeding to be dismissed with prejudice. If I commence, file, initiate, or institute any legal action or other proceeding for any Released Claim against any Released Party in any federal or state court, arbitral tribunal, or administrative or other forum, (1) such legal action or other proceeding shall be dismissed with prejudice at my cost; (2) any refusal or failure to immediately dismiss such claims shall provide a basis for any Released Party to seek an injunction, sanctions, or other appropriate relief; and (3) the respective Released Party shall be entitled to recover any and all reasonable related costs and expenses from me arising as a result of that my breach of my obligations under this Individual Release.
12. I represent and warrant that I have carefully read and understand this Individual Release and that I executed it freely, voluntarily, and without being pressured or influenced by, or relying on, any statement or representation made by any person or entity acting on behalf of any Released Party. I certify that I understand that I have the right to consult with an attorney of my choice before signing this Individual Release.
13. I represent and warrant that I have authority to execute this Individual Release and that I am the sole and exclusive owner of all claims that I am releasing pursuant to this Individual Release. I acknowledge that I have not assigned, pledged, or in any manner whatsoever, sold, transferred, assigned or encumbered any right, title, interest or claim arising out of or in any way whatsoever pertaining to the BlueTEC Diesel Matter, including without limitation, any claim for benefits, proceeds, or value under the Action or the BlueTEC Diesel Matter. I am not aware of anyone other than myself claiming any interest, in whole or in part, in any benefits, proceeds, or values to which I may be entitled as a result of the Action or BlueTEC Diesel Matter. I agree to hold the Released Parties harmless and agree to indemnify and defend the Released Parties from all claims, liability, loss, cost, or expense, including attorney fees, incurred in the future due to the assertion by anyone of any claim, including any claim for damages, based on such person’s alleged ownership of, or interest in, the claims that I am releasing pursuant to this Individual Release.
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14. I agree that if any of the consideration received for this Individual Release is construed to be income, it is my sole responsibility to pay taxes on the amount construed to be income and I agree to indemnify and hold all Released Parties harmless on any claim of liability for such taxes, penalties, or interest.
15. If any term, provision, promise, or condition of this Individual Release is determined by a court of competent jurisdiction to be illegal, invalid, void, or unenforceable, in whole or in part, under any present or future law, the remainder of this Individual Release shall remain in full force and effect and shall in no way be affected, impaired, or invalidated to the maximum extent permitted by law.
I acknowledge that I have read and understand this Individual Release and that I have freely executed it by signing below.
Date: ______Printed Name Signature
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EXHIBIT 6
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Civil Action: 16-cv-881 (KM) (ESK)
[PROPOSED] ORDER PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT, PROVISIONALLY CERTIFYING IN RE MERCEDES-BENZ EMISSIONS NATIONWIDE SETTLEMENT CLASS, LITIGATION APPROVING CLASS NOTICE PROGRAM, AND SCHEDULING A FAIRNESS HEARING
ELECTRONICALLY FILED
Before the Court is the Settlement Class Representatives’ Motion for Preliminary
Approval of Class Settlement and Direction of Notice under Rule 23(e) (the “Motion”).
WHEREAS, a proposed Class Action Agreement has been reached between Class
Counsel on behalf of a defined proposed Class of current and former owners and lessees
of certain model year 2009-2016 Mercedes-Benz and Freightliner BlueTEC II diesel
vehicles sold or leased, and registered, in the United States or its territories, and Daimler
AG and Mercedes-Benz USA, LLC (together, the “Mercedes Defendants”), which
resolves certain claims against the Mercedes Defendants pertaining to the Subject
Vehicles listed below:
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BlueTEC II Diesel Vehicles MODEL MODEL YEARS E250 2014-2016 E350 2011-2013 GL320 2009 GL350 2010-2016 GLE300d 2016 GLE350d 2016 GLK250 2013-2015 ML250 2015 ML320 2009 ML350 2010-2014 R320 2009 R350 2010-2012 S350 2012-2013 Mercedes-Benz or Freightliner Sprinter (4-cylinder) 2014-2016 Mercedes-Benz or Freightliner Sprinter (6-cylinder) 2010-2016
WHEREAS, the Mercedes Defendants have also entered separate agreements
with the United States Department of Justice (“DOJ”) on behalf of the Environmental
Protection Agency (“EPA”), and the State of California by and through the California Air
Resources Board (“CARB”) and California’s Office of the Attorney General (“CA AG”),
which provide modifications and extended warranties for the Subject Vehicles pursuant
to the terms of those agreements and which are memorialized in the US-CA Consent
Decree;
WHEREAS, the Court, for the purposes of this Order, adopts all defined terms as
set forth in the Class Action Agreement;
WHEREAS, the Mercedes Defendants do not oppose the Court’s entry of the
proposed Preliminary Approval Order;
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WHEREAS, the Court finds that it has jurisdiction over the Action and each of
the Parties for purposes of settlement and asserts jurisdiction over the Settlement Class
Representatives for purposes of considering and effectuating this Class Action
Settlement;
WHEREAS, the Court, having reviewed and considered all of the submissions,
briefs, reports, declarations, and presentations made and submitted in connection with the
Motion; and
WHEREAS, this Court has fully considered the record and the requirements of
law, and good cause appearing;
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the Class Action
Settlement (including all terms of the Class Action Agreement and exhibits thereto) is
hereby PRELIMINARILY APPROVED. The Court further finds and orders as follows:
1. The Class Action Settlement was the result of the Parties’ good-faith
negotiations. Plaintiffs, by and through Class Counsel, conducted an investigation into
the facts and law relating to the matters alleged in their Complaint. There was also
extensive pretrial discovery, including depositions, the production of thousands of
documents, written responses to dozens of written discovery requests, and multiple
litigated discovery disputes. The Class Action Settlement was entered into by
experienced counsel and only after extensive arm’s length negotiations with the aid of the
Mediator, the Honorable Edward Infante (Ret.). The Class Action Settlement appears to
be the product of intensive, thorough, serious, informed, and non-collusive negotiations
overseen by an experienced mediator; has no obvious deficiencies; and does not
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improperly grant preferential treatment to the Settlement Class Representatives or
segments of the Class. The Class Action Settlement provides meaningful relief to the
Class in the form of monetary compensation, and allows the Class to avoid significant
costs, uncertainties, delays, and other risks associated with continued litigation, trial,
and/or appeal. The Court also expressly finds the Class Action Settlement is not the
result of collusion.
2. The Court finds, for settlement purposes only, that all requirements of Fed.
R. Civ. P. 23(a) and (b)(3) have been satisfied. The Court provisionally certifies, for
settlement purposes only and subject to final findings and ratification in the Final
Approval Order and the occurrence of the Effective Date, a nationwide Class, including
territories of the United States, of all Persons who (1) on or before the Settlement
Announcement Date owned or leased, and Registered, a Subject Vehicle, or (2) after the
Settlement Announcement Date begin owning or leasing, and Register, a Subject Vehicle
for which an Approved Emission Modification has not been installed. The following
entities and individuals are excluded from the Class:
(a) The Mercedes Defendants and their officers, directors, and
employees; the Mercedes Defendants’ corporate affiliates and corporate affiliates’
officers, directors, and employees; their distributors and distributors’ officers, directors,
and employees;
(b) Judicial officers and their immediate family members and
associated court staff assigned to this case;
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(c) Persons who have settled with, released, or otherwise had claims
adjudicated on the merits against the Mercedes Defendants arising from the same
allegations or circumstances as the BlueTEC Diesel Matter; and
(d) All Persons otherwise in the Class who timely and properly
exclude themselves from the Class as provided in the Class Action Agreement.
3. This Court finds that the requirements of Rule 23(a) are satisfied for
settlement purposes only, as follows:
(a) Pursuant to Fed. R. Civ. P. 23(a)(1), the Class is so numerous that
joinder of all members is impracticable;
(b) Pursuant to Fed. R. Civ. P. 23(a)(2) and 23(c)(1)(B), the Court
determines that there are common issues of law and fact for the Class;
(c) Pursuant to Fed. R. Civ. P. 23(a)(3), the claims of the Settlement
Class Representatives are typical of the claims of the Class Members; and
(d) Pursuant to Fed. R. Civ. P. 23(a)(4), the Settlement Class
Representatives will fairly and adequately protect and represent the interests of all of the
Class Members, and the interests of the Settlement Class Representatives are not
antagonistic to those of the Class. The Settlement Class Representatives are represented
by counsel who are experienced and competent in the prosecution of complex class
action litigation.
4. The Court further finds that the requirements of Rule 23(b)(3) are satisfied
for settlement purposes only, as follows:
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(a) Questions of law and fact common to the Class Members, as
described above, predominate over questions that may only affect individual Class
Members;
(b) A class action is superior to all other available methods for the fair
and efficient adjudication of this controversy; and
(c) The Class is ascertainable.
5. The Court appoints the firms Carella, Byrne, Cecchi, Olstein, Brody &
Agnello, PC; Hagens Berman Sobol Shapiro LLP; and Seeger Weiss LLP as counsel for
the Class pursuant to Rule 23(g). The Court has considered all of the factors listed in
Rule 23(g)(1) and finds that these firms are competent and capable of exercising their
responsibilities as Class Counsel for the provisionally certified settlement Class, will
fairly and adequately represent the interests of the Class under Rule 23(a)(4), have done
so, and are adequate under Rule 23(g)(1) and (4) to implement and complete the
settlement process.
6. The Court designates the following as Settlement Class Representatives:
Catherine Roberts, Adrian Clive Roberts, Keith Hall, Susan Albers, John Lingua, Bobby
Hamilton, Scott Morgan, Maryana Melnyk, Jeff Findlay, Gustavo Fraga-Errecart, Hassan
Zavareei, Terry Garmey, Charles Wolford, Craig Thorson, Richard Yanus, Thomas
Weiss, John Laurino, Freddie T. Holbrook, Robert Trepper, Andrew Deutsch, Wendell A.
Dingle, Caroline A. Ledlie, Shelby A. Jordan, Seid Dilgisic, Tiffany Knight, Ulyana
Lynevych, Michael Medler, Robert Gershberg, Randolph Rolle, Melanie Johnson, Lars
Dannberg, Walter Louis, Jr., and Vincent Minerva.
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7. The Court finds that it will likely be able to approve the proposed
settlement under Rule 23(e)(2). The Court furthermore finds that it will likely be able to
certify the class for purposes of judgment on the proposal, for the reasons discussed
above.
8. The Court finds that the content, format, and method of disseminating
notice, as set forth in the Motion, the Declaration of JND Legal Administration, the Class
Action Agreement, and the proposed Long Form Notice, Short Form Notice, and
Supplemental Notice of Class Benefits (collectively, the “Class Notice Documents”) —
including direct First Class mailed notice to all known members of the Class deposited in
the mail within the later of (a) 15 business days of the Preliminary Approval Order; or (b)
15 business days after a federal district court enters the US-CA Consent Decree—is the
best notice practicable under the circumstances and satisfies all requirements provided in
Rule 23(c)(2)(B). The Court approves such notice, and hereby directs that such notice be
disseminated in the manner set forth in the Class Action Settlement to the Class under
Rule 23(e)(1).
9. The Court directs that pursuant to Fed. R. Civ. P. 23(e)(2), a Fairness
Hearing shall take place on a date and time to be stated in the Class Notice Documents,
which shall be approximately 110 days after the Notice Date, at the United States District
Court for the District of New Jersey, located at the Martin Luther King Building &
United States Courthouse, 50 Walnut Street, Newark, NJ 07102, before this Court, to
determine whether the proposed Class Action Settlement is fair, reasonable, and
adequate, and whether it should be finally approved by the Court, and whether the
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Released Claims should be released pursuant to the Class Action Settlement. The Court
may, in its discretion, determine to hold the hearing remotely, via Zoom or other
equivalent remote platform. In the event the Court determines to do so, instructions
concerning the hearing will be posted on the docket and the Settlement Website. The
Court will also address Class Counsel’s application for an award of Attorneys’ Fees and
Expenses and Incentive Awards for the Settlement Class Representatives (collectively,
the “Fee Application”) at that time. Papers in support of final approval of the Class
Action Settlement and the Fee Application shall be filed with the Court according to the
schedule set forth in Paragraph 16 below. The Fairness Hearing may be postponed,
adjourned, or continued by order of the Court without further notice to the Class. After
the Fairness Hearing, the Court may enter a Final Approval Order and Final Judgment in
accordance with the Class Action Settlement that will adjudicate the rights of the Class
Members with respect to the claims being settled.
10. Persons wishing to object to the Class Action Settlement and/or be heard
at the Fairness Hearing shall follow the following procedures:
(a) To object, a Class Member, individually or through counsel, must
file a written objection with the Clerk, by mailing the written objection to Martin Luther
King Building & United States Courthouse, 50 Walnut Street, Newark, NJ 07101, and
serve the written objection on Class Counsel and the Mercedes Defendants’ Lead
Counsel by [insert objection deadline date]. The written statement of objection(s) must
include: (1) a statement as to whether it applies only to the Class Member, to a specific
subset of the Class, or to the entire class, and also state with specificity the grounds for
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the objection, including any evidence and legal authority the Class Member wishes to
bring to the Court’s attention; (2) the Class Member’s printed name, address, and
telephone number; (3) the VIN of the Subject Vehicle forming the basis of the Class
Member’s inclusion in the Class and the beginning and end dates (if applicable) of the
Class Member’s ownership or lease of the Subject Vehicle; (4) a statement that the Class
Member has reviewed the Class definition and has not opted out of the Class; (5) any
supporting papers, materials, or briefs the Class Member wishes the Court to consider
when reviewing the objection; (6) a statement of whether the Class Member intends to
appear at the Fairness Hearing; and (7) a dated “wet” signature not affixed by electronic
means. Lawyers asserting objections on behalf of members of the Class must also: (1)
file a notice of appearance with the Clerk by [insert date]; (2) file a sworn declaration
attesting to his or her representation of each member of the Class on whose behalf the
objection is being filed or file (in camera) a copy of the contract between that lawyer and
each such member of the Class; and (3) serve copies of the objections on Class Counsel
and the Mercedes Defendants’ Lead Counsel. Lawyers asserting objections on behalf of
members of the Class also must file a sworn declaration that specifies the number of
times during the prior five-year period they have objected to a class action settlement on
their own behalf or on behalf of a member of the class. Service upon Class Counsel and
the Mercedes Defendants’ Lead Counsel should be made by mail to the following
addresses:
Class Counsel: James E. Cecchi Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C. 5 Becker Farm Road
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Roseland, NJ 07068
Counsel for the Mercedes Defendants: Daniel W. Nelson Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue NW Washington, D.C. 20036
(b) Any member of the Class who files a written objection by [insert
objection deadline date] may also appear at the Fairness Hearing, either in person or
through an attorney hired at their expense, to object to the fairness, reasonableness or
adequacy of the Class Action Settlement.
(c) Members of the Class or their attorneys intending to appear at the
Fairness Hearing must, by [insert objection deadline date], serve on Class Counsel and
the Mercedes Defendants’ Lead Counsel, and file with the Clerk, a written notice of
intent to object, which includes: (i) the name, address and telephone number of the Class
Member and, if applicable, the name, address and telephone number of the Class
Member’s attorney (who must file a Notice of Appearance); (ii) the objection, including
any papers in support thereof, and all of the materials required by Paragraph 9(a) of this
Order; and (iii) the name and address of any witnesses to be presented at the Fairness
Hearing, together with a statement as to the matters on which they wish to testify and a
summary of the proposed testimony.
(d) Any Class Member who does not timely file and serve a notice of
intent to object, and any witness not identified in the notice of intent to object, shall not
be permitted to appear at the Fairness Hearing, except for good cause shown.
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11. Members of the Class who elect not to participate in the Class Action
Settlement must submit a written request for exclusion that is postmarked no later than
[insert opt-out deadline]. To validly opt out from the Class, a Person must personally
sign, date, and send a written request to opt out stating “I have reviewed the Long Form
Notice and wish to exclude myself from the Class in In re Mercedes-Benz Emissions
Litigation, 2:16-cv-0881” (or substantially similar clear and unambiguous language) to
the Settlement Administrator at MB Blue Tec Settlement – Exclusions c/o JND Legal
Administration, PO Box 91385, Seattle, WA 98111. The written request to opt out must
include the Person’s name, address, telephone number, and VIN of the Subject Vehicle
forming the basis of the Person’s inclusion in the Class, a statement as to whether the
Person owns/owned or leases/leased the Subject Vehicle, and a “wet” signature not
affixed by electronic means. The Parties retain discretion to determine whether any opt-
out request substantially complies with the requirements above. The Settlement
Administrator will provide bi-weekly summary reports and copies of all opt-out requests
to Class Counsel and the Mercedes Defendants’ Lead Counsel. Opt-out requests that are
signed by an attorney but not by the Person requesting to be excluded from the Class are
invalid.
12. Any Class Member failing to properly and timely mail such a written
notice of exclusion shall be automatically included in the Class and shall be bound by all
the terms and provisions of the Class Action Agreement, including the Release and Final
Approval Order. The Parties retain discretion to determine whether any opt-out requests
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comply with the requirements stated in this order. The Court shall resolve any disputes
between the Parties concerning Section 7 of the Class Action Agreement.
13. Opting out and objecting are mutually exclusive options. Any Person who
opts out may not also object to the Class Action Settlement, and any objection filed by a
Person who has opted out will be disregarded.
14. The Court finds that the Claim Form attached to the Class Action
Agreement as Exhibit 4, and the amount of time provided to Class Members to submit
Valid Claims for Class Member Payments, are fair, reasonable, and adequate.
15. JND Legal Administration is hereby appointed as the Settlement
Administrator and shall perform all of the duties of the Settlement Administrator set forth
in the Class Action Settlement.
16. The Court adopts the following schedule for disseminating notice, filing
claims, requesting exclusions from the class, filing objections to the Class Action
Settlement, filing the motion for final approval, and application for fees and expenses.
The Court directs the Parties to insert calendar dates in the Class Notice Documents
based on the actual Notice Date; in the event a date would fall on a weekend or holiday,
the parties shall use the next business day.
Event Proposed Date
Class Notice Program and Claims Period Within 15 business days after the entry of begins the Preliminary Approval Order or the entry of the US-CA Consent Decree, whichever is later
Motion for Attorneys’ Fees and Expenses 30 days after Notice Date Application filed
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Objection and Opt-Out Deadline 60 days after Notice Date
Motion for Final Approval filed 90 days after Notice Date
Fairness Hearing 110 days after Notice Date
17. The deadlines set forth in this Preliminary Approval Order and the Class
Notice Documents, including, but not limited to, the date of the Fairness Hearing, may be
extended by Order of the Court, for good cause shown, without further notice to members
of the Class, except that notice of any such extensions shall be included on the Settlement
Website. Members of the Class should check the Settlement Website regularly for
updates and further details regarding extensions of these deadlines.
18. Pending the Fairness Hearing, all litigation and discovery proceedings in
the Action pertaining to the Mercedes Defendants, other than proceedings necessary to
carry out or enforce the terms and conditions of the Class Action Settlement and this
Preliminary Approval Order, are stayed pending further order of the Court.
19. Pending final determination of whether the Class Action Settlement
should be approved, the Settlement Class Representatives and members of the Class, or
any of them, are prohibited from directly, indirectly, derivatively, in a representative
capacity, or in any other capacity, commencing, prosecuting, or continuing any other
action in any forum (state or federal) against any of the Released Parties in any court or
tribunal asserting any of the Released Claims (as that term is defined in the Class Action
Agreement).
20. Class Counsel and the Mercedes Defendants’ Lead Counsel are authorized
to take, without further Court approval, all necessary and appropriate steps to implement
13
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the Class Action Settlement including the approved Class Notice Program as well as any
additional notice the Parties deem necessary.
21. Class Counsel and Mercedes Defendants’ Lead Counsel are hereby
authorized to use all reasonable procedures in connection with approval and
administration of the Class Action Settlement that are not materially inconsistent with the
Preliminary Approval Order or the Class Action Settlement, including making, without
further approval of the Court, minor changes to the Class Action Settlement, to the form
or content of the Long Form Notice, Short Form Notice, or other notice materials, or to
any other exhibits that the Parties jointly agree are reasonable or necessary.
22. The Court authorizes the Settlement Administrator through data
aggregators or otherwise, to request, obtain, and utilize vehicle registration information
from the Department of Motor Vehicles for all 50 states, the District of Columbia, Puerto
Rico, Guam, the U.S. Virgin Islands and all other United States territories and/or
possessions for the purposes of determining the identity of and contact information for
purchasers and lessees of Subject Vehicles. Vehicle registration information includes,
but is not limited to, owner/lessee name and address information, registration date, year,
make, and model of the vehicle. The Settlement Administrator is ordered to take all
necessary steps to have this information in its possession by October 15, 2020, and the
Departments of Motor Vehicles are asked to cooperate with the Settlement Administrator
in complying with this Preliminary Approval Order. The information referenced in this
Paragraph is needed on an expedited basis to ensure proper coordination with notices
required under the US-CA Consent Decree.
14
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23. Due to the interrelationship of these proceedings with notices and other
matters related to the US-CA Consent Decree, the Court finds good cause to expedite
implementation of this Preliminary Approval Order—including quick retrieval of vehicle
registration and contact information from the Departments of Motor Vehicles to facilitate
prompt class notice, as referenced above. As such, this Preliminary Approval Order shall
be deemed approved, accepted, and ordered by the Court until and unless there is a timely
objection and the Court explicitly sustains that objection. Furthermore any objection or
other motion relating to this Preliminary Approval Order must be filed within 5 days of
the date of this Preliminary Approval Order. Further, any response must be filed within 5
days of the objection or other motion. No further briefing relating to an objection or
other motion regarding this Preliminary Approval Order will be allowed, unless ordered
by the Court. The Court will endeavor (consistent with its calendar) to expeditiously
adjudicate any objection or other motion.
24. In the event the Court does not grant final approval to the Class Action
Settlement, or if for any reason the Parties fail to obtain a Final Approval Order as
contemplated in the Class Action Settlement, or the Class Action Settlement is terminated
pursuant to its terms for any reason, or the Effective Date does not occur for any reason,
then the following shall apply:
(a) All orders and findings entered in connection with the Class Action
Settlement shall become null and void and have no force and effect whatsoever, shall not
be used or referred to for any purposes whatsoever, and shall not be admissible or
discoverable in this or any other proceeding;
15
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(b) The provisional certification of the Class for settlement purposes
pursuant to this Preliminary Approval Order shall be vacated automatically, and the
Action shall proceed as though the Class had never been certified pursuant to this Class
Action Settlement and the related findings had never been made;
(c) Nothing contained in this Preliminary Approval Order is, or may
be construed as, a presumption, concession, or admission by or against the Mercedes
Defendants or the Settlement Class Representatives of any default, liability, or
wrongdoing as to any facts or claims alleged or asserted in the Action, or in any actions
or proceedings, whether civil, criminal or administrative, including, but not limited to,
factual or legal matters relating to any effort to certify the Action as a class action;
(d) Nothing in this Preliminary Approval Order or pertaining to the
Class Action Settlement, including any of the documents or statements generated or
received pursuant to the Claims Program, shall be used as evidence in any further
proceeding in this Action, including, but not limited to, motions or proceedings seeking
treatment of the Action as a class action;
(e) All of the Court’s prior Orders having nothing whatsoever to do
with the Class Action Settlement shall, subject to this Preliminary Approval Order,
remain in force and effect; and
(f) The Parties will be returned to their positions status quo ante as of
the date immediately before the Parties’ execution of the Class Action Agreement.
25. The Court shall retain continuing jurisdiction over these proceedings for
the benefit of the Class in accordance with this Preliminary Approval Order.
16
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IT IS SO ORDERED.
17
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EXHIBIT 7
Case 2:16-cv-00881-KM-ESK Document 299-2 Filed 09/14/20 Page 146 of 164 PageID: 8984
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Civil Action: 16-cv-881 (KM) (ESK)
[PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND IN RE MERCEDES-BENZ EMISSIONS REQUEST FOR ATTORNEYS’ FEES LITIGATION AND COSTS, AND CERTIFYING NATIONWIDE SETTLEMENT CLASS
ELECTRONICALLY FILED
Before the Court is Settlement Class Representatives’ Motion for Final Approval of the
Class Action Settlement under Rule 23(e) and Request for Attorneys’ Fees and Costs (the
“Motion”).
WHEREAS, the Court granted preliminary approval of the Class Action Settlement on
[insert date of preliminary approval] (the “Preliminary Approval Order”). The Preliminary
Approval Order provisionally certified the Class, approved and directed the dissemination of
notice to the Class, preliminarily approved the Class Action Settlement, and addressed a date and
time for the Fairness Hearing for the Court to consider whether the Class Action Settlement
should be finally approved as fair, reasonable and adequate, pursuant to Rule 23(e)(2) of the
Federal Rules of Civil Procedure;
WHEREAS, the Court, for the purposes of this Order, adopts all defined terms as set
forth in the Class Action Agreement;
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WHEREAS, the Court finds that it has jurisdiction over the Action and the Parties for
purposes of settlement and asserts jurisdiction over the Settlement Class Representatives for
purposes of considering and effectuating this Settlement;
WHEREAS, on [insert date of fairness hearing], the Court held a Fairness Hearing, at
which time the Parties, and those who timely submitted their notices of intent to appear at the
hearing, were given the opportunity to be heard in support of and/or in opposition to the Class
Action Settlement;
WHEREAS, the Court, having reviewed and considered all of the submissions, briefs,
reports, declarations, and presentations made and submitted in connection with the Motion, and
all of the arguments presented at the Fairness Hearing;
WHEREAS, this Court has fully considered the record and the requirements of law, and
good cause appearing;
IT IS HEREBY ORDERED, ADJUDGED and DECREED that the Class Action
Settlement (including all terms of the Class Action Agreement and exhibits thereto) is hereby
FINALLY APPROVED. The Court further finds and orders as follows:
1. This Court previously reviewed and approved the proposed methods for giving
notice of the Class Action Settlement to Class Members. The Court has again reviewed the
Class Notice Program and finds that Class Members received the best notice practicable under
the circumstances. The Court specifically finds that the Long Form Notice attached as Exhibit 2
to the Class Action Agreement, the Short Form Notice attached as Exhibit 1 to the Class Action
Agreement, the Supplemental Notice of Class Benefits attached as Exhibit 3 to the Class Action
Agreement, and the Claim Form attached as Exhibit 4 to the Class Action Agreement, satisfied
the requirements of Rule 23(c)(2), Rule 23(e)(1), and due process.
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2. The Court finds that the Class Action Settlement was entered into in good faith by
experienced counsel and only after extensive arm’s-length negotiations with the assistance of an
experienced mediator. The Class Action Settlement is not the result of collusion.
3. This Court finds that the requirements of Rule 23(a) are satisfied for settlement
purposes only, as follows:
(a) Pursuant to Fed. R. Civ. P. 23(a)(1), the Class is so numerous that joinder
of all members is impracticable;
(b) Pursuant to Fed. R. Civ. P. 23(a)(2) and 23(c)(1)(B), the Court determines
that there are common issues of law and fact for the Class;
(c) Pursuant to Fed. R. Civ. P. 23(a)(3), the claims of the Settlement Class
Representatives are typical of the claims of the Class Members; and
(d) Pursuant to Fed. R. Civ. P. 23(a)(4), the Settlement Class Representatives
have fairly and adequately protected and represented the interests of all of the Class Members,
and the interests of the Settlement Class Representatives are not antagonistic to those of the
Class. The Settlement Class Representatives are represented by counsel who are experienced
and competent in the prosecution of complex class action litigation.
4. The Court further finds that the requirements of Rule 23(b)(3) are satisfied for
settlement purposes only, as follows:
(a) Questions of law and fact common to the Class Members, as stated above,
predominate over questions that may only affect individual Class Members;
(b) A class action is superior to all other available methods for the fair and
efficient adjudication of this controversy; and
(c) The Class is ascertainable.
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5. The Court, having found that all requirements of Fed. R. Civ. P. 23(a) and (b)(3)
have been satisfied for settlement purposes only, certifies the Class as follows:
A nationwide Class, including territories of the United States consists of all Persons who (1) on or before the Settlement Announcement Date owned or leased, and Registered, a Subject Vehicle, or (2) after the Settlement Announcement Date begin owning or leasing, and Register, a Subject Vehicle for which an Approved Emission Modification has not been installed.
The following entities and individuals are excluded from the Class: (a) the Mercedes
Defendants’ and their officers, directors, and employees; the Mercedes Defendants’ corporate
affiliates and corporate affiliates’ officers, directors, and employees; their distributors and
distributors’ officers, directors, and employees; (b) judicial officers and their immediate family
members and associated court staff assigned to this case; (c) persons who have settled with,
released, or otherwise had claims adjudicated on the merits against the Mercedes Defendants
arising from the same allegations or circumstances as the BlueTEC Diesel Matter; and (d) all
Persons otherwise in the Class who timely and properly excluded themselves from the Class as
provided in the Class Action Agreement.
6. A list of the Class Members who have timely opted out of the Class Action
Settlement and who therefore are not bound by the Class Action Agreement has been submitted
to the Court as [Exhibit **]. That list is incorporated by reference herein. All other Class
Members are subject to all provisions of the Class Action Settlement and this Court’s orders
entering the Class Action Settlement.
7. Pursuant to Rule 23(e)(2), the Court finds the Class Action Settlement to be fair,
reasonable, and adequate after due consideration of all of the factors listed in the Rule. Class
Counsel and the Settlement Class Representatives have adequately represented the class and the
Class Action Settlement was vigorously negotiated at arm’s length and with the assistance of a
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respected mediator, the Honorable Edward Infante (Ret.). The relief provided for the Class is
adequate and the Class Action Settlement treats class members equitably relative to each other,
taking into account the costs, risks, and delay of trial and appeal, the effectiveness of proposed
methods of distributing relief to the Class, including the method of processing Class Member
Claims, and the separate award of attorney’s fees and costs, which does not dilute benefits
available to the Class.
8. In finding the Class Action Settlement to be fair, reasonable, and adequate, the
Court has also assessed the Class Action Settlement under the nine factors identified in Third
Circuit precedent for determining whether a class settlement is reasonable and fair. See Girsh v.
Jepson, 521 F.2d 153, 157 (3d Cir. 1975); In re Ins. Brokerage Antitrust Litig., 579 F.3d 241,
257–58 (3d Cir. 2009). It has also examined the additional factors identified in In re Prudential
Insurance Co. of America Sales Practices Litigation, 148 F.3d 283, 323 (3d Cir. 1998), for
further assessment of whether final approval is appropriate. The Court finds that each Girsh
factor, and each applicable Prudential Insurance factor, supports approval of the Class Action
Settlement.
(a) The complexity, expense, and likely duration of the litigation. This case
presents complex factual and legal questions that, absent settlement, would have to be resolved
through extensive proceedings for which the outcome is uncertain, including contested class
certification proceedings involving experts and an extensive factual record, Daubert challenges,
summary judgment briefing, and a complicated, lengthy trial of any claims that would survive
summary judgment. An appeal would almost certainly follow any ruling on class certification,
summary judgment, and/or trial, whatever its outcome, thereby further delaying this case’s final
resolution for a period of months or even years. As such, it is clear that litigation of this matter
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would be time-consuming, uncertain and expensive and that approval of the Class Action
Settlement would secure a prompt and efficient resolution of the Class’s claims against the
Mercedes Defendants permitting substantial recovery without further litigation, delay, expense or
uncertainty.
(b) The reaction of the Class to the Settlement. [to be provided prior to the
Fairness Hearing]
(c) The stage of the proceedings and the amount of discovery completed. The
Parties have been engaged in litigation for over four years. The Settlement Class
Representatives have filed five different versions of the Complaint and the Parties have gone
through multiple rounds of dispositive motion briefing. In the several years that this Action has
been pending, there has been extensive discovery. Discovery has included depositions, the
production of voluminous documents and large amounts of data, and responses to multiple
rounds of written discovery requests. The Action has also involved numerous discovery disputes
involving complex issues requiring extensive briefing to resolve, and involved an experienced
Special Master, the Honorable Dennis Cavanaugh (ret.). These proceedings represent years of
sustained advocacy by counsel, which gave them a proper understanding of the Action’s merits
before they negotiated the Class Action Settlement.
(d) The risks of establishing liability and the risks of establishing damages.
The risks surrounding a trial on the merits are always considerable. Absent the Class Action
Settlement, many obstacles could have prevented the Class from obtaining any recovery, even
before reaching trial. The Parties were still in the midst of discovery and the Settlement Class
Representatives faced considerable risk in facing summary judgment and class certification
motions. Even if the Settlement Class Representatives were able to maintain the Action beyond
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summary judgment and class certification, the Settlement Class Representatives’ methods for
determining and calculating their alleged damages has been vigorously disputed by the Mercedes
Defendants. The Settlement Class Representatives’ ability to establish both liability and
damages hinges in large part on expert testimony, which is admissible only if it meets the
requirements of the Federal Rules of Evidence and Daubert. Accordingly, without a settlement,
the Court would need to resolve a “battle of the experts” that could result in exclusion of the
principal evidence supporting the Settlement Class Representatives’ claims. Settlement Class
Representatives had no guarantee that they would make it to trial, win at trial, and/or win on
appeal. Even if they did win at trial and on appeal, relief for the Class was likely years away as a
result of the lengthy litigation process. The Class Action Settlement eliminates these risks, cuts
through the delay, and provides immediate and significant benefits to Class Members. The
substantial and immediate relief provided to the Class under the Class Action Settlement weighs
heavily in favor of its approval compared to the inherent risk of continued litigation, trial, and
appeal.
(e) The risks of maintaining class action status through trial. If this Court
certified a class under Rules 23(a) and (b) and the case proceeded to trial, the Court would still
retain the authority to decertify or modify the Class during trial if it became unmanageable or
class certification was otherwise found to be inappropriate. Here, the Mercedes Defendants have
indicated that they would preserve their objections to class certification and would contest
certification if the case proceeded to trial, raising the possibility that the complex facts here could
lead the Court to modify or decertify the class if the litigation proceeds. This factor therefore
weighs in favor of approving the Class Action Settlement.
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(f) The ability of the Mercedes Defendants to withstand a greater judgment.
The Third Circuit has explained that the mere fact that the Mercedes Defendants “could afford to
pay more” in a judgment than they are agreeing to pay in a settlement “does not mean that
[defendants are] obligated to pay any more than what [the] class members are entitled to under
the theory of liability that existed at the time the settlement was reached.” In re Warfarin
Sodium Antitrust Litig., 391 F.3d 516, 538 (3d Cir. 2004). Thus, regardless of whether the
Mercedes Defendants could withstand a judgment greater than the amount of the Class Action
Settlement—and the Court makes no findings on that issue—the proposed Class Action
Settlement represents a fair, reasonable, and adequate payment under the Class Members’
theories of liability.
(g) The range of reasonableness of the Class Action Settlement in light of the
best possible recovery and in light of all the attendant risks of litigation. To assess the last two
Girsh factors, the Third Circuit requires a comparison of “the amount of the proposed
settlement” with “the present value of damages plaintiffs would likely recover if successful,
appropriately discounted for the risks of not prevailing.” Warfarin, 391 F.3d at 538. Reference
points for this analysis include estimates of the recoverable damages submitted by the parties’
experts, see id., and the relief sought in the complaint, In re Gen. Motors Corp. Pick-up Truck
Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 810 (3d Cir. 1995), cert. denied sub nom., Gen.
Motors Corp. v. French, 516 U.S. 824 (1995). While the Settlement Class Representatives did
not provide a damage estimate in the Fifth Consolidated and Amended Class Action Complaint,
the Court has in its experience reviewed settlement amounts in similar cases to compare to the
recovery in the Class Action Settlement. The Benefits in the Class Action Settlement represents
-8- Case 2:16-cv-00881-KM-ESK Document 299-2 Filed 09/14/20 Page 154 of 164 PageID: 8992
a substantial recovery, particularly in light of the risks and costs of litigation. This factor
therefore weighs in favor of approving the Class Action Settlement.
(h) Applicable Prudential Insurance factors. The Third Circuit in Prudential
Insurance also instructed district courts to consider, “when appropriate,” other factors. See 148
F.3d at 323. The Prudential Insurance factors applicable here also support finally approving the
Class Action Settlement. As discussed above, discovery has been extensive and establishes that
the Class Action Settlement represents an appropriate “assess[ment of] the probable outcome of
a trial on the merits of liability and individual damages.” Id. The Class Action Settlement also
gave Class Members “the right to opt out of the settlement.” Id. “[T]he procedure for
processing individual claims under the settlement is fair and reasonable.” Id. And the Class
Action Settlement’s “provisions for attorneys’ fees are reasonable.” Id.
9. In light of its analysis of the Girsh and Prudential Insurance factors, the Court
finds that the Class Action Settlement is fair, reasonable, and adequate, and in the best interests
of the Class. The Court fully approves all terms of the Class Action Agreement and all of its
exhibits.
10. The terms of the Class Action Settlement and this Final Approval Order and the
Final Judgment are binding on the Settlement Class Representatives and all Class Members, as
well as their heirs, executors and administrators, successors, assigns, and all other Persons to the
fullest extent provided for in the Class Action Agreement.
11. The Releasing Parties are hereby permanently barred and enjoined from: (a)
filing, commencing, asserting, prosecuting, maintaining, pursuing, continuing, intervening in,
participating in (as class members or otherwise) or receiving any benefits from any lawsuit,
arbitration, administrative, or regulatory, or other proceeding or order in any jurisdiction based
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upon or asserting any or all of the Released Claims against one or more Released Party; (b)
instituting, organizing class members in, joining with class members in, amending a pleading in
or soliciting the participation of class members in any action, including but not limited to a
purported class action, in any court against one or more Released Party based on, involving, or
incorporating, directly or indirectly, any or all of the Released Claims, and (c) filing,
commencing, asserting, prosecuting, maintaining, pursuing, continuing, intervening in,
participating in (as class members or otherwise) or receiving any benefits from any lawsuit,
administrative or regulatory proceeding or order in any jurisdiction based on an allegation that
the Mercedes Defendants’ compliance with the provisions of the Class Action Agreement
violates any legal right of any Class Member.
12. The Release set forth in Section 10 of the Class Action Agreement (and all
definitions and other provisions of the Class Action Agreement regarding that Release) are
incorporated herein by reference and all Settlement Class Representatives and Class Members
shall be fully subject to all of these provisions.
13. The Court has carefully reviewed Class Counsel’s application for an award of
attorneys’ fees and costs and hereby awards attorneys’ fees to Class Counsel in the amount of
[insert fee amount] and costs in the amount of [insert costs amount] to be paid by the
Mercedes Defendants in addition to the compensation available to the Class. The Court directs
these fees, costs, and awards to be paid in accordance with the Class Action Agreement.
14. The Court finds that the amount of attorneys’ fees awarded is appropriate and that
the amount of attorneys’ fees awarded is fair and reasonable under either the “percentage-of-
recovery” or lodestar method.
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15. In making this award of attorneys’ fees and costs, the Court has considered the
factors enumerated in Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 n.1 (3d Cir. 2000)
and In re Prudential, 148 F.3d at 339 and found that:
(a) Class Members who are eligible for payments will benefit from the Class
Action Settlement that occurred due to the efforts of Class Counsel;
(b) After implementation of the Class Notice Program, only [insert number
of Class Members that object] Class Members objected to the Fee Request;
(c) Class Counsel achieved the Class Action Settlement with skill,
perseverance, and diligent advocacy;
(d) This Action involved complex factual and legal issues, and, in the absence
of the Class Action Settlement, would involve further lengthy proceedings with an uncertain
resolution if the case were to proceed against the Mercedes Defendants;
(e) The risk of nonpayment was high, particularly given the complexity of the
case, because Class Counsel pursued this case on a contingent basis and received no
compensation during the duration of the litigation;
(f) Class Counsel expended [insert lodestar] hours in this case and billed
their services at reasonable hourly rates averaging [insert blended rate(s)];
(g) The amount of fees requested is consistent with awards in similar cases
and supported by public policy; and
(h) The amount of costs requested is fair and reasonable and necessary for the
prosecution and settlement of the Action.
16. The Court authorizes Class Counsel to allocate the fee award.
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17. The Settlement Class Representatives are to receive a service award as follows:
$5,000 each for Terry Garmey, Keith Hall, John Laurino, Michael Medler, and Charles Wolford;
and $2,500 each for Catherine Roberts, Adrian Clive Roberts, Susan Albers, John Lingua, Bobby
Hamilton, Scott Morgan, Maryana Melnyk, Jeff Findlay, Gustavo Fraga-Errecart, Hassan
Zavareei, Craig Thorson, Richard Yanus, Thomas Weiss, Freddie T. Holbrook, Robert Trepper,
Andrew Deutsch, Wendell A. Dingle, Caroline A. Ledlie, Shelby A. Jordan, Seid Dilgisic,
Tiffany Knight, Ulyana Lynevych, Robert Gershberg, Randolph Rolle, Melanie Johnson, Lars
Dannberg, Walter Louis, Jr., and Vincent Minerva. These amounts are fair and reasonable
compensation for their efforts in prosecuting the claims in the Class Action Settlement. The
service award is to be paid in addition to the Class Member Payment.
18. The awarded attorneys’ fees and costs, and Settlement Class Representative
service awards, are to be paid and distributed in accordance with the Class Action Settlement.
19. This Final Approval Order covers, without limitation, any and all claims for
attorneys’ fees and expenses, costs or disbursements incurred by Class Counsel or any other
counsel representing the Settlement Class Representatives or Class Members, or incurred by
Settlement Class Representatives or Class Members, in connection with or related in any manner
to this Action, the Class Action Settlement, the administration of the Class Action Settlement,
and/or the Released Claims. No further application for an award of attorneys’ fees or costs may
be made by any counsel.
20. The terms of the Class Action Agreement, this Final Approval Order, and the
Final Judgment shall have res judicata, collateral estoppel and all other preclusive effect in any
and all claims for relief, causes of action, suits, petitions, demands in law or equity, or any
allegations of liability, damages, debts, contracts, agreements, obligations, promises, attorneys’
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fees, costs, interests, or expenses which are based on or in any way related to any and all claims
for relief, causes of action, suits, petitions, demands in law or equity, or any allegations of
liability, damages, debts, contracts, agreements, obligations, promises, attorneys’ fees, costs,
interest, or expenses which were asserted in the Actions or included in the Released Claims.
21. All claims against the Mercedes Defendants in the Action are hereby dismissed on
the merits and with prejudice, without fees or costs to any party, other than as specified in the
Final Judgment and in the Class Action Agreement.
22. Any and all objections to the Class Action Settlement are overruled.
23. The Parties and their counsel are ordered to implement and to consummate the
Class Action Agreement according to its terms and provisions.
24. The Parties are authorized, without further approval from the Court, to agree to
and to adopt such amendments, modifications, and expansions of the Class Action Agreement:
(i) as are consistent with the Final Approval Order and the Final Judgment, and (ii) which do not
limit the rights of Class Members under the Class Action Agreement.
25. In the event that the Class Action Settlement does not become effective according
to the terms of the Class Action Agreement, this Final Approval Order and the Final Judgment
shall be rendered null and void as provided by the Class Action Agreement, the Final Approval
Order and the Final Judgment shall be vacated, all orders entered and released in connection
herewith shall be null and void to the extent provided by and in accordance with the Class Action
Settlement, and the Parties will be returned to their positions status quo ante as of the date
immediately before the Parties’ execution of the Class Action Agreement.
26. Without affecting the finality of this Final Approval Order and the Final Judgment
in any way, the Court expressly retains continuing and exclusive jurisdiction over the Action, the
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Parties, and the Class, and the administration, enforcement, and interpretation of all terms of the
Class Action Agreement, this Final Approval Order, and the Final Judgment, and to continue to
preside over any unsettled claims.
27. There being no just reason to delay, the Clerk is directed to enter this Final
Approval Order forthwith, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.
A separate judgment consistent with this Order will issue pursuant to Fed. R. Civ. P. 58.
IT IS SO ORDERED.
Hon. Kevin McNulty United States District Judge
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EXHIBIT 8
Case 2:16-cv-00881-KM-ESK Document 299-2 Filed 09/14/20 Page 161 of 164 PageID: 8999
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Civil Action: 16-cv-881 (KM) (ESK)
[PROPOSED] FINAL JUDGMENT IN RE MERCEDES-BENZ EMISSIONS
LITIGATION ELECTRONICALLY FILED
IT IS HEREBY ORDERED AND ADJUDGED, pursuant to the Order Granting Final
Approval of Class Action Settlement and Request for Attorneys’ Fees and Costs, and Certifying
Nationwide Settlement Class [(ECF No. _ )] THAT:
1. The Court GRANTS the Motion for Final Approval of the Class Action
Settlement, Request for Attorneys’ Fees and Costs, and Certification of a Nationwide Settlement
Class. The Court fully and finally approves the Class Action Settlement in the form
contemplated by the Class Action Agreement and finds its terms to be fair, reasonable and
adequate within the meaning of Fed. R. Civ. P. 23. The Court directs the consummation of the
Class Action Settlement pursuant to the terms and conditions of the Class Action Agreement.
2. The Court, for the purposes of this Final Judgment, adopts all defined terms as set
forth in the Class Action Agreement.
3. Pursuant to Fed. R. Civ. P. 23(a)(1)-(4) and 23(b)(3), the Court CONFIRMS the
certification, for purposes of this Class Action Settlement and its administration and enforcement
only, of the Class, as defined in the Class Action Agreement.
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4. The Court CONFIRMS the appointment of Carella, Byrne, Cecchi, Olstein, Brody
& Agnello, PC; Hagens Berman Sobol Shapiro LLP; and Seeger Weiss LLP as counsel for the
Class.
5. The Court CONFIRMS the following as Settlement Class Representatives:
Catherine Roberts, Adrian Clive Roberts, Keith Hall, Susan Albers, John Lingua, Bobby
Hamilton, Scott Morgan, Maryana Melnyk, Jeff Findlay, Gustavo Fraga-Errecart, Hassan
Zavareei, Terry Garmey, Charles Wolford, Craig Thorson, Richard Yanus, Thomas Weiss, John
Laurino, Freddie T. Holbrook, Robert Trepper, Andrew Deutsch, Wendell A. Dingle, Caroline
A. Ledlie, Shelby A. Jordan, Seid Dilgisic, Tiffany Knight, Ulyana Lynevych, Michael Medler,
Robert Gershberg, Randolph Rolle, Melanie Johnson, Lars Dannberg, Walter Louis, Jr., and
Vincent Minerva.
6. The Court CONFIRMS the appointment of JND Legal Administration as
Settlement Administrator.
7. The Court GRANTS Class Counsel’s request for attorneys’ fees and costs, and
AWARDS Class Counsel [insert fee amount] and [insert costs amount] to be paid by the
Mercedes Defendants in addition to the compensation available to the Class.
8. The Court AWARDS the Settlement Class Representatives service awards of
$5,000 each for Terry Garmey, Keith Hall, John Laurino, Michael Medler, and Charles Wolford;
and $2,500 each for Catherine Roberts, Adrian Clive Roberts, Susan Albers, John Lingua, Bobby
Hamilton, Scott Morgan, Maryana Melnyk, Jeff Findlay, Gustavo Fraga-Errecart, Hassan
Zavareei, Craig Thorson, Richard Yanus, Thomas Weiss, Freddie T. Holbrook, Robert Trepper,
Andrew Deutsch, Wendell A. Dingle, Caroline A. Ledlie, Shelby A. Jordan, Seid Dilgisic,
Tiffany Knight, Ulyana Lynevych, Robert Gershberg, Randolph Rolle, Melanie Johnson, Lars
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Dannberg, Walter Louis, Jr., and Vincent Minerva to be paid by the Mercedes Defendants in
addition to the compensation available to the Class.
9. The Court hereby permanently BARS and ENJOINS the Settlement Class
Representatives and any Class Member, and all persons acting on behalf of, or in concert or
participation with such Settlement Class Representatives or Class Members (together the
“Releasing Parties”), from: (a) filing, commencing, asserting, prosecuting, maintaining,
pursuing, continuing, intervening in, participating in, or receiving any benefits from any lawsuit,
arbitration, or administrative, regulatory, or other proceeding or order in any jurisdiction based
upon or asserting any or all of the Released Claims against one or more Released Party; (b)
instituting, organizing class members in, joining with class members in, amending a pleading in
or soliciting the participation of class members in any action, including but not limited to a
purported class action, in any court against one or more Released Party based on, involving, or
incorporating, directly or indirectly, any or all of the Released Claims, and (c) filing,
commencing, asserting, prosecuting, maintaining, pursuing, continuing, intervening in,
participating in (as class members or otherwise) or receiving any benefits from any lawsuit,
administrative or regulatory proceeding or order in any jurisdiction based on an allegation that
the Mercedes Defendants’ compliance with the provisions of the Class Action Agreement
violates any legal right of any Class Member.
10. With respect to the effect of this Final Judgment on persons and entities eligible
for membership in the Class, only those persons and entities who timely submitted valid requests
to opt out of the Settlement Class are not bound by the Final Approval Order or this Final
Judgment, and any such excluded persons and entities are not entitled to any recovery from the
Class Action Settlement. A list of those who submitted opt-out notifications in compliance with
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the requirements set forth in the Preliminary Approval Order and the Long Form Notice is
attached as [Exhibit **].
11. The Final Judgment is final as to all Released Claims of all Releasing Parties, and
the Clerk is directed to enter Judgment thereon, without costs to any Party except as provided in
this Final Judgment.
12. The Court will retain continuing and exclusive jurisdiction over the Parties and
the Action for the reasons and purposes set forth in this Final Judgment and the Final Approval
Order. Without in any way affecting the finality of the Final Approval Order and this Final
Judgment, this Court expressly retains exclusive jurisdiction as to all matters relating to the
administration, consummation, enforcement, and interpretation of the Class Action Settlement
(as set forth in Section 16.6 of the Class Action Agreement), the Final Approval Order and this
Final Judgment, and for any other necessary purpose.
IT IS SO ORDERED.
Hon. Kevin McNulty United States District Judge
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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
Civil Action No. 2:16-CV-881 IN RE MERCEDES-BENZ (KM)(ESK) EMISSIONS LITIGATION
DECLARATION OF JENNIFER M. KEOUGH REGARDING PROPOSED NOTICE PROGRAM
I, Jennifer M. Keough, declare and state as follows:
INTRODUCTION
1. I am Chief Executive Officer of JND Class Action Administration
(“JND”). This Declaration is based on my personal knowledge, as well as upon
information provided to me by experienced JND employees and counsel for the
Plaintiffs and Defendants (“Counsel”), and if called upon to do so, I could and
would testify competently thereto.
2. I have more than 20 years of legal experience creating and
supervising notice and claims administration programs and have personally
overseen well over 500 matters. A comprehensive description of my experience
is attached as Exhibit A.
3. JND is a legal administration services provider with headquarters
located in Seattle, Washington. JND has extensive experience with all aspects of
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legal administration and has administered hundreds of class action settlements.
JND was chosen as the Settlement Administrator in this case after going through a
competitive bidding process.
4. As CEO, I am involved in all facets of JND’s operation, including
monitoring the implementation of our notice and claims administration programs.
5. I submit this Declaration at the request of Counsel to describe the
proposed notice program for Class Members (the “Notice Program”) and address
why this comprehensive proposed Notice Program is consistent with other best
practicable court-approved notice programs and the requirements of Rule 23 of the
Federal Rules of Civil Procedure and the Federal Judicial Center (“FJC”)
guidelines for Best Practicable Due Process notice.
RELEVANT EXPERIENCE
6. JND is one of the leading legal administration firms in the country.
JND’s class action and lien resolution divisions provide all services necessary for
the effective implementation of class action settlements, including: (1) all facets
of legal notice, such as outbound mailing, email notification, and the design and
implementation of media programs, including through digital and social media
platforms; (2) website design and deployment, including online claim filing
capabilities; (3) call center and other contact support; (4) secure class member data
management; (5) paper and electronic claims processing; (6) lien verification,
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negotiation, and resolution; (7) calculation design and programming; (8) payment
disbursements through check, wire, PayPal, merchandise credits, and other means;
(9) qualified settlement fund tax reporting; (10) banking services and reporting;
and (11) all other functions related to the secure and accurate administration of
class action settlements. JND is an approved vendor for the United States
Securities and Exchange Commission as well as for the Federal Trade
Commission. We also have master services agreements with various law firms,
corporations, banks, and other government agencies, which were awarded only
after JND underwent rigorous reviews of our systems, privacy policies, and
procedures. JND has also been certified as SOC 2 compliant by the noted
accounting firm Moss Adams. Finally, JND has been recognized by various
publications, including the National Law Journal, the Legal Times and, most
recently, the New York Law Journal, for excellence in class action administration.
7. The principals of JND, including myself, collectively have over 75
years of experience in class action legal and administrative fields. We have
personally overseen some of the most complex administration programs including:
$20 billion Gulf Coast Claims Facility; $10 billion Deepwater Horizon BP
Settlement; $6.15 billion WorldCom Securities Settlement; $3.4 billion Indian
Trust (the largest U.S. Government class action ever); and $3.05 billion
VisaCheck/MasterMoney Antitrust Settlement. Recently, JND has been handling
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the settlement administration of the following matters: the $1.3 billion Equifax
Data Breach Settlement, the largest class action ever in terms of the number of
claims received; a voluntary remediation program in Canada on behalf of over 30
million people; and the $215 million University of Southern California (“USC”)
Student Health Center Settlement on behalf of women who were sexually abused
by a doctor at USC, as well as hundreds of other matters. Our notice campaigns
are regularly approved by courts throughout the United States.
8. In addition, JND has been recently appointed to handle notice and
claims administration tasks for class action matters in the following motor vehicle
cases: In re General Motors LLC Ignition Switch Litigation, Economic Loss
Actions, No. 14-MD-2543; Amin v. Mercedes-Benz USA, LLC, No. 17-cv-01701-
AT (N.D. Ga.); In re MyFord Touch Consumer Litig., No. 13-cv-3072 (EMC)
(N.D. Cal.); In re Navistar MaxxForce Engines Mktg., Sales Practices and
Products, No. 14-cv-10318 (N.D. Ill.); Kommer v. Ford Motor Co., No. 17-cv-296
(N.D.N.Y.) and Udeen v. Subaru of America, Inc., No. 18-cv-17334- RBK-JS
(D.N.J.).
9. As CEO of JND, I am regularly called on to submit declarations in
connection with JND’s notice and administration work. I have submitted expert
declarations in connection with the following matters: USC Student Health Ctr.
Settlement, Case No. 18-cv-04258-SVW (C.D. Cal.); Boskie v.
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Backgroundchecks.com, Case No. 2019CP3200824 (Ct. Com. Pl. S.C.); Hanks v.
The Lincoln Life & Annuity Co. of New York, et al., Case No. 16-cv-6399 PKC
(S.D.N.Y.); In re ConAgra Foods Inc., Case No. 11-cv-05379-CJC-AGR (C.D.
Cal.); Podawiltz v. Swisher Int’l, Inc., Case No. 16CV27621 (Or. Cir. Ct.);
Linneman v. Vita-Mix Corp., Case No. 15-cv-748 (S.D. Ohio); In re Intuit Data
Litig., Case No. 15-cv-1778-EJD (N.D. Cal.); In re Broiler Chicken Antitrust
Litig., Case No. 16-cv-08637 (N.D. Ill.); McWilliams v. City of Long Beach, Case
No. BC361469 (Cal. Super. Ct.); Granados v. County of Los Angeles, Case No.
BC361470 (Cal. Super. Ct.); Finerman v. Marriott Ownership Resorts, Inc., Case
No. 14-cv-1154-J32MCR (M.D. Fla.); Huntzinger v. Suunto Oy, Case No. 37-
2018-00027159-CUBT-CTL (Cal. Super. Ct.); del Toro Lopez v. Uber
Technologies, Inc., Case No. 17-cv-06255-YGR (N.D. Cal.); Chester v. The TJX
Co., Inc., Case No. 5:15-cv-01437-DDP-DTBx (C.D. Cal.); and Dover v. British
Airways, PLC (UK), Case No. 12- 5567 (E.D.N.Y.). The foregoing list is merely
illustrative, not exhaustive, as I have submitted many more expert declarations in
other matters.
10. JND’s legal notice team, which operates under my direct supervision,
researches, designs, develops, and implements a wide array of legal notice
programs to meet the requirements of Rule 23 of the Federal Rules of Civil
Procedure and relevant state court rules. Our notice campaigns, which are
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regularly approved by courts throughout the United States, use a variety of media,
including newspapers, press releases, magazines, trade journals, radio, television,
social media, and the internet, depending on the circumstances and allegations of
the case, the demographics of the class, and habits of its members, as reported by
various research and analytics tools. During my career, I have submitted several
hundred affidavits to courts throughout the country attesting to our role in the
creation and launch of various media programs.
NOTICE PROGRAM SUMMARY
11. The following sections summarize all elements of the Notice Program
that will be part of this Class Action Settlement. The proposed Notice Program is
designed to inform Class Members of the proposed Class Action Settlement
between Plaintiffs and Daimler AG and Mercedes-Benz USA, LLC (the
“Mercedes Defendants”).
12. In the Class Action Settlement, the Class is defined as persons or
entities who (1) on or before September 14, 2020, owned or leased, and
Registered,1 a Subject Vehicle; or (2) after September 14, 2020, begin owning or
leasing, and Register, a Subject Vehicle for which an Approved Emission
1 All capitalized terms that are not defined in this Declaration are defined in the Class Action Settlement.
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Modification (“AEM”) has not been installed. The Subject Vehicles (which are defined in the Class Action Settlement) are listed below.
13. Excluded from the Class are: (a) the Mercedes Defendants and their officers, directors, and employees and affiliates; (b) judicial officers and their immediate family members and associated court staff assigned to this litigation;
(c) Persons who have settled with, released, or otherwise had claims adjudicated on the merits against the Mercedes Defendants arising from the same core allegations or circumstances as the BlueTEC Diesel Matter; and (d) all Persons otherwise in the Class who timely and properly exclude themselves from the
Class.
14. The proposed Notice Program was designed to reach the greatest practicable number of Class Members. Direct mail notice via U.S. mail and email
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notice (where available) will be the principal methods of notice, providing Class
Members with an opportunity to read, review, and understand their rights and options
in this Class Action Settlement.
15. Specifically, the proposed Notice Program includes the following
components, as further described below:
a. Notice pursuant to the Class Action Fairness Act (“CAFA”), 28
U.S.C. § 1715(b) (“CAFA”) to appropriate state and federal
officials;
b. Direct mail notice to all Class Members for whom a mailing address
is obtained;
c. Email notice to all Class Members for whom a valid email address
is obtained;
d. Supplemental and reminder notices sent via mail and email during
the claims period;
e. The settlement website, mbbluetecsettlement.com (the “Settlement
Website”);
f. The settlement email address and settlement toll-free information
line, through which Class Members can obtain more information
about the Class Action Settlement and request a copy of the Long
Form Notice and/or Claim Form to be mailed to them.
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g. Two separate mailing addresses, one for claimant correspondence
and the submission of paper Claim Forms and another for Class
Members’ exclusion requests; and
h. A nationwide press release.
16. The direct notice effort alone is expected to reach the Class Members
and notify them about the Class Action Settlement and their rights and options. The
Settlement Website and press release will add additional notification. Throughout the
claims period, JND will monitor the success rate of the Notice Program and will add
additional notice as deemed necessary, subject to approval by Counsel. Each
component of the Notice Program is described below.
CAFA NOTICE
17. JND will provide notice of the proposed Class Action Settlement under
CAFA no later than 10 days after the proposed Class Action Settlement is filed with
the Court. JND will provide such notice to the appropriate state and federal
government officials.
DIRECT NOTICE DESIGN AND CONTENT
18. The direct notice documents are comprised of the Long Form Notice,
which will be posted on the Settlement Website, the Short Form Notice, which will be
mailed and emailed to Class Members, a list of Subject Vehicles for which AEMs are
available at the time of mailing (the “AEM List”), the Claim Form, which, along with
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the AEM List, will be included in the mailing of the Short Form Notice, a
Supplemental Notice of Class Benefits (referred to herein as the “Supplemental
Notice”), which will be sent on a rolling basis to Class Members as AEMs become
available for installation in their Subject Vehicles, and reminder notices as necessary.
I have reviewed the direct notice documents, which are written in plain language and
comply with the requirements of Rule 23 of the Federal Rules of Civil Procedure, as
well as the FJC Class Action Notice and Plain Language Guide.
A. Class Member Identification
19. An adequate notice program must satisfy “due process” when reaching a
class. The United States Supreme Court, in the seminal case of Eisen v. Carlisle &
Jacqueline, 417 U.S. 156 (1974), clearly stated that direct notice (when possible) is
the preferred method for reaching a class. In addition, Rule 23(c)(2) of the Federal
Rules of Civil Procedure requires that “the court must direct to class members the best
notice that is practicable under the circumstances, including individual notice to all
members who can be identified through reasonable effort. The notice may be by one
or more of the following: United States mail, electronic means, or other appropriate
means.”
20. As soon as practicable following the filing of the motion for preliminary
approval, and in no event later than five court days after the motion is filed,
Defendants will provide a list of eligible Vehicle Identification Numbers (“VINs”) to
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JND. JND staff will use the VINs to work with third party data aggregation services
to acquire potential Class Members’ contact information from the Departments of
Motor Vehicles (“DMVs”) for all current and previous owners and lessees of Subject
Vehicles that are identified as potential Class Members. The contact information
gained using this process is considered particularly reliable because owners and
lessees must maintain accurate and up-to-date contact information in order to pay
vehicle registration fees and keep driver licenses and voter registrations current. JND
will also receive Subject Vehicle registration information, including, but not limited
to, registration date, year, make, and model of the Subject Vehicle. After receiving
the contact and VIN information from the DMVs, JND will promptly load the
information into a case-specific database for the Class Action Settlement. A unique
identification number (“Unique ID”) will be assigned to each Class Member to
identify them throughout the administration process.
21. Prior to mailing notice, JND will review the data provided in order to
identify any undeliverable addresses and duplicate records. JND staff will perform
advanced address research strategies using skip trace databases. We will also update
all addresses using the National Change of Address (“NCOA”) database of the United
States Postal Service (“USPS”),2 which provides updated address information for
2 The NCOA database is the official USPS technology that makes change of address information available to mailers to help reduce undeliverable mail.
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Class Members who have moved within the last four years and who have filed a
change of address form with the USPS. JND will also be conducting a sophisticated
email append process to obtain email addresses for all potential Class Members.
B. Direct Mail Notice
22. JND will mail to all Class Members identified through DMV records the
following documents: (i) the Short Form Notice and AEM List, (ii) the Claim Form,
and (iii) a business return envelope (collectively, the “Notice Packet”).
23. Short form notice and AEM List: JND has designed the Short Form
Notice to attract the attention of the recipient so they are encouraged to read the
contents and take additional action to learn more about the Class Action Settlement.
The Short Form Notice also includes “call-out” language to signal to the recipient that
the mailing is not junk mail and is Court-ordered. The actual content of the notice
includes bolded language to draw the recipient’s attention to read on to find out if they
are included in the Class, how they can get paid, what their options are under the Class
Action Settlement, and how to get more information. The Short Form Notice includes
plain and easy-to-read summaries of the Class Action Settlement, and in numerous
places the Settlement Website URL is prominently printed in bold font to encourage
the reader to find out additional information and to file an online claim. The Short
Form Notice will also include a Unique ID, which Class Members can use to file their
claims online, through the Settlement Website.
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24. Along with the Short Form Notice, JND will send the AEM List, which
will be a “buck slip” printed on colored paper, and which will contain a list of Subject
Vehicles for which AEMs are available at the time of the mailing. The AEM List will
be updated throughout the course of the administration so that each time a notice is
mailed to Class Members, they will also receive an AEM List with current
information about AEM availability.
25. Claim Form: The Claim Form will be prepopulated with Class
Members’ name, address and VIN, facilitating the filing of claims. This should reduce
the time required by Class Members to complete the Claim Form and increase the
claims rate. As noted above, the Claim Form will be included in the Notice Packet,
along with the short form notice, AEM List and a business return envelope.
26. After the initial mailing of the Notice Packets, JND staff will track all
Notice Packets returned as undeliverable by the USPS. Notice Packets that are
returned by the USPS as undeliverable and have a forwarding address will be
promptly remailed to that forwarding address. JND staff will take reasonable efforts
to research and determine if it is possible to reach a Person for whom the Notice
Packet is returned as undeliverable without a forwarding address. If a better address
is located, Notice Packets will be promptly remailed to the updated address. This
same process for researching and resending undeliverable mail will be followed
for all notice mailings in this administration.
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C. Email notice
27. The direct mail effort will be supplemented by sending an email
notice to all Class Members for whom JND can obtain a valid email address
through the append process described above. The email notice includes
substantially the same language as the short form notice and will include the Class
Member’s Unique ID, which can be used to file their claim online through the
Settlement Website. JND’s practices to maximize the deliverability of the email
notices are described below.
28. JND uses industry-leading email solutions in order to achieve the
most efficient email notification campaigns. Our data team is staffed with email
experts and software solution teams to tailor-make each notice program. JND
provides individualized support during the program and manages our sender
reputation with the Internet Service Providers (“ISPs”). For each of our programs,
we analyze the program’s data and monitor the ongoing effectiveness of the
notification campaign, adjusting the campaign as needed. These actions ensure
the highest possible deliverability of the email campaign so that more potential
Class Members receive notice of the Class Action Settlement.
29. Prior to launching an email campaign, JND will evaluate the email
notice for potential spam language to improve deliverability. This process
includes running the email through spam testing software, and utilizing Domain
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Keys Identified Mail (“DKIM”), which attaches special “signatures” to emails to
provide sender identification, authentication and authorization, and hostname
evaluation.
30. JND will utilize a verification program to eliminate invalid email and
spam traps that would otherwise negatively impact deliverability. We will then
clean the list of email addresses for formatting and incomplete addresses to further
identify all invalid email addresses. The email content is then formatted and
structured in a way that receiving servers expect, allowing the email to pass easily
to the recipient.
31. To ensure readability of the email notice, JND reviews and formats
the body content into a structure that is applicable to all email platforms. Before
sending the campaign, JND emails a test email notice to multiple ISPs and opens
the email notice on multiple devices (iPhones, Android phones, desktop
computers, tablets, etc.) to ensure the email notice opens as expected.
Additionally, JND will add an “unsubscribe” link at the bottom of the email notice
to allow Class Members to opt out of any additional email notices from JND. This
step is essential to maintain JND’s good reputation among the ISPs and reduce
complaints relating to the email campaign.
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D. Supplemental Notice
32. JND has been advised that not all Subject Vehicles may have AEMs
available when Notice Packets are initially mailed to Class Members. The
Supplemental Notice was crafted to alert current owners and lessees of Subject
Vehicles that an AEM has become available for their Subject Vehicle. JND designed
the Supplemental Notice so that it is visibly differentiated from the Short Form notice
and will attract the attention of the reader. The Supplemental Notice provides plain
and easy-to-read information about the AEM and how to have it installed, as well as
summary information about the Class Action Settlement. The Settlement Website
URL is printed in bold font in several places to encourage Class Members to seek
additional information about the AEM and to file online claims.
33. After JND is advised by Mercedes Defendants that AEMs are available
for specified additional Subject Vehicles, JND will mail and email the Supplemental
Notice to all affected Class Members for whom an address and/or email address is
known, as soon as is practicable. With each mailing of the Supplemental Notice, JND
will send an updated AEM List so that Class Members can confirm that the AEM can
be installed in their Subject Vehicle.
E. Reminder Notices
34. Reminder notice postcards and reminder notice emails will be sent as
needed to identified Class Members that have not submitted a claim, opted out of the
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Class, or have not unsubscribed from the email campaign. JND will confer with the
parties regarding the necessity and specific timing of any reminder notices, to avoid
logistical difficulties and to optimize effectiveness. The content of the reminder
notices will be materially the same as the email notice, but the subject line will remind
Class Members that they have not yet filed a claim and need to do so in order to
receive a payment pursuant to the Class Action Settlement and the language will be
adjusted to remove any deadlines that have passed. The reminder notices will direct
Class Members to the Settlement Website and will remind current owners and lessees
of Subject Vehicles to install the AEM, if it is available for their vehicle.
F. Settlement Website and Other Class Member Notice
35. Settlement Website: JND will develop and deploy the informational and
interactive, case-specific Settlement Website, mbbluetecsettlement.com, which will
have an easy-to-navigate design and will be formatted to emphasize important
information and deadlines. Other available features will include a page with answers
to frequently asked questions, contact information for the Settlement Administrator
including an email contact form, Class Action Settlement deadlines, and links to
important case documents. Important case documents will include the Long Form
Notice, the Short Form Notice, the AEM List (which will be updated as needed), the
Claim Form, and the Class Action Agreement. Each direct notice document will be
available in both English and Spanish.
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36. In addition, the Settlement Website will provide access to a VIN and
AEM lookup feature, where people can input their VIN. If a VIN is input, the user
will be able to see whether their vehicle is a Subject Vehicle and whether an AEM is
available. If an AEM is available, the Settlement Website will provide Class
Members with information about how to schedule the installation. If their AEM is not
available, they will have the opportunity to register their contact information to
receive an email update when the AEM becomes available.
37. The Settlement Website will feature an online Claim Form (“OCF”)
with document upload capabilities for the submission of claims. If a user logs into the
OCF with their Unique ID, JND will prepopulate the OCF with the Class Members’
name and contact information where possible. JND will work with the parties to
design the online claims submission process. Additionally, as noted above, a Claim
Form will be posted on the Settlement Website for download for Class Members who
prefer to submit a Claim Form by mail.
38. Claimants may provide their supporting documentation in a variety of
formats. The claimant may take a picture of the document with their phone and
upload the image to the Settlement Website, they may scan in the document for
upload, or they may submit copies of the documents via U.S. Mail.
39. The Settlement Website will be ADA-compliant and optimized for
mobile visitors so that information loads quickly on mobile devices and will also be
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designed to maximize search engine optimization through Google and other search
engines. Keywords and natural language search terms will be included in the site’s
metadata to maximize search engine rankings.
40. Settlement Administrator email address: JND will establish a dedicated
email address to receive and respond to Class Member inquiries. JND will generate
email responses from scripted answers to frequently answered questions (“FAQs”),
which will be approved by Counsel and which will also be used by our call center
personnel for efficiency and to maintain uniformity of messaging.
41. Toll-free information Line: JND will make available its scalable call
center resources to develop and manage the incoming telephone calls received in
response to the Notice Program. JND will establish and maintain a 24-hour, toll-free
telephone line that Class Members can call to obtain information about the Class
Action Settlement. During business hours, JND’s call center will be staffed with
operators who are trained to answer questions about the Class Action Settlement using
the approved answers to FAQs referenced above. Additionally, JND will coordinate
with Mercedes Benz’s Customer Assistance Center (“CAC”) to best assist Class
Members with their questions. JND operators will be trained to transfer Class
Members to the CAC for specific identified questions. JND will also receive
transferred calls from the CAC if the question is best addressed by the Settlement
Administrator.
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42. Post Office Box: JND will establish two separate post office boxes for this administration, one to receive Class Member correspondence and paper Claim
Forms, and another solely to receive exclusion requests.
PRESS RELEASE
43. A press release also will be issued and will assist in raising awareness about the Class Action Settlement.
CONCLUSION
44. In JND’s opinion, the Notice Program as described herein provides the best notice practicable under the circumstances, is consistent with the requirements of
Rule 23 of the Federal Rules of Civil Procedure and all applicable Court rules, and is consistent with, and exceeds, other similar court-approved best notice practicable notice programs. The Notice Program is designed to reach as many Class Members as possible and provide them with the opportunity to review plain language notices with the ability to easily take the next step to learn more about the Class Action
Settlement.
I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.
Executed on September 13, 2020, in Seattle, Washington.
______Jennifer M. Keough
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EXHIBIT A Case 2:16-cv-00881-KM-ESK Document 299-3 Filed 09/14/20 Page 22 of 66 PageID: 9024 JENNIFER KEOUGH CHIEF EXECUTIVE OFFICER AND CO-FOUNDER
INTRODUCTION
I. Jennifer Keough is Chief Executive Officer and a Founder of JND Legal Administration (“JND”). She is the only judicially recognized expert in all facets of class action administration - from notice through distribution. With more than 20 years of legal experience, Ms. Keough has directly worked on hundreds of high-profile and complex administration engagements, including such landmark matters as the $20 billion Gulf Coast Claims Facility, $10 billion BP Deepwater Horizon Settlement, $3.4 billion Cobell Indian Trust Settlement (the largest U.S. government class action settlement ever), $3.05 billion VisaCheck/MasterMoney Antitrust Settlement, $1.3 billion Equifax Data Breach Settlement, $1 billion Stryker Modular Hip Settlement, $600 million Engle Smokers Trust Fund, $215 million USC Student Health Center Settlement, and countless other high-profile matters. She has been appointed notice expert in many notable cases and has testified on settlement matters in numerous courts and before the Senate Committee for Indian Affairs.
The only female CEO in the field, Ms. Keough oversees more than 200 employees at JND’s Seattle headquarters, as well as other office locations around the country. She manages all aspects of JND’s class action business from day-to-day processes to high-level strategies. Her comprehensive expertise with noticing, claims
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processing, Systems and IT work, call center, data analytics, recovery calculations, check distribution, and reporting gained her the reputation with attorneys on both sides of the aisle as the most dependable consultant for all legal administration needs. Ms. Keough also applies her knowledge and skills to other divisions of JND, including mass tort, lien resolution, government services, and eDiscovery. Given her extensive experience, Ms. Keough is often called upon to consult with parties prior to settlement, is frequently invited to speak on class action issues and has authored numerous articles in her multiple areas of expertise.
Ms. Keough launched JND with her partners in early 2016. Just a few months later she was named as the Independent Claims Administrator (“ICA”) in a complex BP Solar Panel Settlement. Ms. Keough also started receiving numerous appointments as notice expert and in 2017 was chosen to oversee a restitution program in Canada where every adult in the country was eligible to participate. Also, in 2017, Ms. Keough was named a female entrepreneur of the year finalist in the 14th annual Stevie Awards for Women in Business. In 2015 and 2017, she was recognized as a “Woman Worth Watching” by Profiles in Diversity Journal.
Since JND’s launch, Mrs. Keough has also been featured in numerous news sources. In 2019, she was highlighted in an Authority Magazine article, “5 Things I wish someone told me before I became a CEO,” and a Moneyish article, “This is exactly how rampant ‘imposter syndrome’ is in the workforce.” In 2018, she was featured in several Fierce CEO articles, “JND Legal Administration CEO Jennifer Keough aids law firms in complicated settlements,” “Special Report―Women CEOs offer advice on defying preconceptions and blazing a trail to the top,” and “Companies stand out with organizational excellence,” as well as a Puget Sound Business Journal article, “JND Legal CEO Jennifer Keough handles law firms’ big business.” In 2013, Mrs. Keough appeared in a CNN article, “What Changes with Women in the Boardroom.”
Prior to forming JND, Ms. Keough was Chief Operating Officer and Executive Vice President for one of the then largest administration firms in the country, where she oversaw operations in several offices across the country and was responsible for all large and critical projects. Previously, Ms. Keough worked as a class action business
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analyst at Perkins Coie, one of the country’s premier defense firms, where she managed complex class action settlements and remediation programs, including the selection, retention, and supervision of legal administration firms. While at Perkins she managed, among other matters, the administration of over $100 million in the claims-made Weyerhaeuser siding case, one of the largest building product class action settlements ever. In her role, she established a reputation as being fair in her ability to see both sides of a settlement program.
Ms. Keough earned her J.D. from Seattle University. She graduated from Seattle University with a B.A. and M.S.F. with honors.
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LANDMARK CASES II. Jennifer Keough has the distinction of personally overseeing the administration of more large class action programs than any other notice expert in the field. Some of her largest engagements include the following:
1. Allagas v. BP Solar Int’l, Inc.
No. 14-cv-00560 (N.D. Cal.)
Ms. Keough was appointed by the United States District Court for the Northern District of California as the Independent Claims Administrator (“ICA”) supervising the notice and administration of this complex settlement involving inspection, remediation, and replacement of solar panels on homes and businesses throughout California and other parts of the United States. Ms. Keough and her team devised the administration protocol and built a network of inspectors and contractors to perform the various inspections and other work needed to assist claimants. She also built a program that included a team of operators to answer claimant questions, a fully interactive dedicated website with on-line claim filing capability, and a team trained in the very complex intricacies of solar panel mechanisms. In her role as ICA, Ms. Keough regularly reported to the parties and the Court as to the progress of the administration. In addition to her role as ICA, Ms. Keough also acted as mediator for those claimants who opted out of the settlement to pursue their claims individually against BP. Honorable Susan Illston, recognized the complexity of the settlement when appointing Ms. Keough the ICA (December 22, 2016):
The complexity, expense and likely duration of the litigation favors the Settlement, which provides meaningful and substantial benefits on amuch shorter time frame than otherwise possible and avoids risk to class certification and the Class’s case on the merits...The Court appoints Jennifer Keough of JND Legal Administration to serve as the Independent Claims Administrator (“ICA”) as provided under the Settlement.
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2. Careathers v. Red Bull North America, Inc.
No. 13-cv-0369 (KPF) (S.D.N.Y.)
Due to the nature of this case, direct notice was impossible. Therefore, Ms. Keough assisted in the design of a publication notice and claims administration program intended to reach the greatest number of affected individuals. Due to the success of the notice program, the informational website designed by Ms. Keough and her team received an unprecedented 67 million hits in less than 24 hours. The Claims Administration program received over 2 million claim forms submitted through the three available filing options: online, mail, and email. Judge Katherine Polk Failla approved the notice program (May 12, 2015) finding:
…that the Notice to the Settlement Class… was collectively the best notice practicable under the circumstances of these proceedings of the matters set forth therein, and fully satisfies the requirements of Rule 23(c)(2)(B) of the Federal Rules of Civil Procedure, due process, and any other applicable laws.
3. Chester v. The TJX Cos.
No. 15-cv-01437 (C.D. Cal.)
As the notice expert, Ms. Keough proposed a multi-faceted notice plan designed to reach over eight million class members. Where class member information was available, direct notice was sent via email and via postcard when an email was returned as undeliverable or for which there was no email address provided. Additionally, to reach the unknown class members, Ms. Keough’s plan included a summary notice in eight publications directed toward the California class and a tear-away notice posted in all TJ Maxx locations in California. The notice effort also included an informational and interactive website with online claim filing and a toll-free number that provided information 24 hours a day. Additionally, associates were available to answer class member questions in both English and Spanish during business hours. Honorable Otis D. Wright, II approved the plan (May 14, 2018):
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...the Court finds and determines that the Notice to Class Members was complete and constitutionally sound, because individual notices were mailed and/or emailed to all Class Members whose identities and addresses are reasonably known to the Parties, and Notice was published in accordance with this Court’s Preliminary Approval Order, and such notice was the best notice practicable.
4. Cobell v. Salazar
No. 96 CV 1285 (TFH) (D. D.C.)
As part of the largest government class action settlement in our nation’s history, Ms. Keough worked with the U.S. Government to implement the administration program responsible for identifying and providing notice to the two distinct but overlapping settlement classes. As part of the notice outreach program, Ms. Keough participated in multiple town hall meetings held at Indian reservations located across the country. Due to the efforts of the outreach program, over 80% of all class members were provided notice. Additionally, Ms. Keough played a role in creating the processes for evaluating claims and ensuring the correct distributions were made. Under Ms. Keough’s supervision, the processing team processed over 480,000 claims forms to determine eligibility. Less than one half of 1 percent of all claim determinations made by the processing team were appealed. Ms. Keough was called upon to testify before the Senate Committee for Indian Affairs, where Senator Jon Tester of Montana praised her work in connection with notice efforts to the American Indian community when he stated: “Oh, wow. Okay… the administrator has done a good job, as your testimony has indicated, [discovering] 80 percent of the whereabouts of the unknown class members.” Additionally, when evaluating the Notice Program, Judge Thomas F. Hogan concluded (July 27, 2011):
…that adequate notice of the Settlement has been provided to members of the Historical Accounting Class and to members of the Trust Administration Class…. Notice met and, in many cases, exceeded the requirements of F.R.C.P. 23(c)(2) for classes certified under F.R.C.P. 23(b)(1), (b)(2) and (b)(3). The best notice practicable has been provided class members, including individual
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notice where members could be identified through reasonable effort. The contents of that notice are stated in plain, easily understood language and satisfy all requirements of F.R.C.P. 23(c)(2)(B).
5. Gulf Coast Claims Facility (GCCF)
The GCCF was one of the largest claims processing facilities in U.S. history and was responsible for resolving the claims of both individuals and businesses relating to the Deepwater Horizon oil spill. The GCCF, which Ms. Keough helped develop, processed over one million claims and distributed more than $6 billion within the first year-and-a-half of its existence. As part of the GCCF, Ms. Keough and her team coordinated a large notice outreach program which included publication in multiple journals and magazines in the Gulf Coast area. She also established a call center staffed by individuals fluent in Spanish, Vietnamese, Laotian, Khmer, French, and Croatian.
6. Hernandez v. Experian Info. Solutions, Inc.
No. 05-cv-1070 (C.D. Cal.)
This case asserts claims in violation of the Fair Credit Reporting Act. The litigation dates back to 2005, when José Hernandez filed his original Class Action Complaint in Hernandez v. Equifax Info. Services, LLC, No. 05-cv-03996 (N.D. Cal.), which was later transferred to C.D. Cal. and consolidated with several other related cases. In April 2009, a settlement agreement between Defendants and some plaintiffs was reached that would provide payments of damage awards from a $45 million settlement fund. However, after being granted final approval by the Court, the agreement was vacated on appeal by the United States Circuit Court of Appeals for the Ninth Circuit. The parties resumed negotiations and reached an agreement in April 2017. The settlement provided both significant monetary (approximately $38.7 million in non- reversionary cash) and non-monetary benefits. Ms. Keough oversaw the notice and administration efforts for the entire litigation. In approving the settlement and responding to objections about notice and administration expenses, Honorable David O. Carter, stated (April 6, 2018):
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The Court finds, however, that the notice had significant value for the Class, resulting in over 200,000 newly approved claims—a 28% increase inthe number of Class members who will receive claimed benefits—not including the almost 100,000 Class members who have visited the CCRA section of the Settlement Website thus far and the further 100,000 estimated visits expected through the end of 2019. (Dkt. 1114-1 at 3, 6). Furthermore, the notice and claims process is being conducted efficiently at a total cost of approximately $6 million, or $2.5 million less than the projected 2009 Proposed Settlement notice and claims process, despite intervening increases in postage rates and general inflation. In addition, the Court finds that the notice conducted in connection with the 2009 Proposed Settlement has significant ongoing value to this Class, first in notifying in 2009 over 15 million Class members of their rights under the Fair Credit Reporting Act (the ignorance of which for most Class members was one area on which Class Counsel and White Objectors’ counsel were in agreement), and because of the hundreds of thousands of claims submitted in response to that notice, and processed and validated by the claims administrator, which will be honored in this Settlement.
7. In re Air Cargo Shipping Servs. Antitrust Litig.
No. 06-md-1775 (JG) (VVP) (E.D.N.Y.)
This antitrust settlement involved five separate settlements. As a result, many class members were affected by more than one of the settlements, Ms. Keough constructed the notice and claims programs for each settlement in a manner which allowed for the comparison of claims data. Each claims administration program included claims processing, review of supporting evidence, and a deficiency notification process. The deficiency notification process included mailing of deficiency letters, making follow up phone calls, and sending emails to class members to help them complete their claim. To ensure accuracy throughout the claims process for each of the settlements, Ms. Keough created a process which audited many of the claims that were eligible for payment.
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8. In re Classmates.com
No. C09-45RAJ (W.D. Wash.)
Ms. Keough managed a team that provided email notice to over 50 million users with an estimated success rate of 89%. When an email was returned as undeliverable, it was re-sent up to three times in an attempt to provide notice to the entire class. Additionally, Ms. Keough implemented a claims administration program which received over 699,000 claim forms and maintained three email addresses in which to receive objections, exclusions, and claim form requests. The Court approved the program when it stated:
The Court finds that the form of electronic notice… together with the published notice in the Wall Street Journal, was the best practicable notice under the circumstances and was as likely as any other form of notice to apprise potential Settlement Class members of the Settlement Agreement and their rights to opt out and to object. The Court further finds that such notice was reasonable, that it constitutes adequate and sufficient notice to all persons entitled to receive notice, and that it meets the requirements of Due Process...
9. In re Equifax Inc. Customer Data Sec. Breach Litig.
No. 17-md-2800-TWT (N.D. Ga.)
JND was appointed settlement administrator, under Ms. Keough’s direction, for this complex data breach settlement valued at $1.3 billion with a class of 147 million individuals nationwide. Ms. Keough and her team oversaw all aspects of claims administration, including the development of the case website which provided notice in seven languages and allowed for online claim submissions. In the first week alone, over 10 million claims were filed. Overall, the website received more than 200 million hits and the Contact Center handled well over 100,000 operator calls. Ms. Keough and her team also worked closely with the Notice Provider to ensure that each element of the media campaign was executed in the time and manner as set forth in the Notice Plan.
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Approving the settlement on January 13, 2020, Judge Thomas W. Thrash, Jr. acknowledged JND’s outstanding efforts:
JND transmitted the initial email notice to 104,815,404 million class members beginning on August 7, 2019. (App. 4, ¶¶ 53-54). JND later sent a supplemental email notice to the 91,167,239 class members who had not yet opted out, filed a claim, or unsubscribed from the initial email notice. (Id., ¶¶ 55-56). The notice plan also provides for JND to perform two additional supplemental email notice campaigns. (Id., ¶ 57)…JND has also developed specialized tools to assist in processing claims, calculating payments, and assisting class members in curing any deficient claims. (Id., ¶¶ 4, 21). As a result, class members have the opportunity to file a claim easily and have that claim adjudicated fairly and efficiently...The claims administrator, JND, is highly experienced in administering large class action settlements and judgments, and it has detailed the efforts it has made in administering the settlement, facilitating claims, and ensuring those claims are properly and efficiently handled. (App. 4, ¶¶ 4, 21; see also Doc. 739-6, ¶¶ 2-10). Among other things, JND has developed protocols and a database to assist in processing claims, calculating payments, and assisting class members in curing any deficient claims. (Id., ¶¶ 4, 21). Additionally, JND has the capacity to handle class member inquiries and claims of this magnitude. (App. 4, ¶¶ 5, 42). This factor, therefore, supports approving the relief provided by this settlement.
10. In re General Motors LLC Ignition Switch Litig.
No. 2543 (MDL) (S.D.N.Y.)
GM Ignition Switch Compensation Claims Resolution Facility
Ms. Keough oversaw the creation of a Claims Facility for the submission of injury claims allegedly resulting from the faulty ignition switch. The Claims Facility worked with experts when evaluating the claim forms submitted. First, the Claims Facility reviewed thousands of pages of police reports, medical documentation, and pictures to determine whether a claim met the threshold
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standards of an eligible claim for further review by the expert. Second, the Claims Facility would inform the expert that a claim was ready for its review. Ms. Keough constructed a database which allowed for a seamless transfer of claim forms and supporting documentation to the expert for further review.
GM Ignition Switch Economic Settlement Claims Center
Ms. Keough was also recently appointed the class action settlement administrator for the $120 million GM Ignition Switch settlement. On April 27, 2020, Honorable Jesse M. Furman approved the notice program designed by Ms. Keough and her team and the notice documents they drafted with the parties:
The Court further finds that the Class Notice informs Class Members of the Settlement in a reasonable manner under Federal Rule of Civil Procedure 23(e)(1)(B) because it fairly apprises the prospective Class Members of the terms of the proposed Settlement and of the options that are open to them in connection with the proceedings.
The Court therefore approves the proposed Class Notice plan, and hereby directs that such notice be disseminated to Class Members in the manner set forth in the Settlement Agreement and described in the Declaration of the Class Action Settlement Administrator...
11. In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010
No. 2179 (MDL) (E.D. La.)
Following the closure of the Gulf Coast Claims Facility, the Deepwater Horizon Settlement claims program was created. There were two separate legal settlements that provided for two claims administration programs. One of the programs was for the submission of medical claims and the other was for the submission of economic and property damage claims. Ms. Keough played a key role in the formation of the claims program for the evaluation of economic and property damage claims. Additionally, Ms. Keough built and supervised the back-office mail and processing center in Hammond, Louisiana, which was
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the hub of the program. The Hammond center was visited several times by Claims Administrator Pat Juneau -- as well as by the District Court Judge and Magistrate -- who described it as a shining star of the program.
12. In re Stryker Rejuvenate and ABG II Hip Implant Products Liab. Litig.
No. 13-2441 (MDL) (D. Minn.)
Ms. Keough and her team were designated as the escrow agent and claims processor in this $1 billion settlement designed to compensate eligible U.S. Patients who had surgery to replace their Rejuvenate Modular-Neck and/or ABG II Modular-Neck hip stems prior to November 3, 2014. As the claims processor, Ms. Keough and her team designed internal procedures to ensure the accurate review of all medical documentation received; designed an interactive website which included online claim filing; and established a toll-free number to allow class members to receive information about the settlement 24 hours a day. Additionally, she oversaw the creation of a deficiency process to ensure claimants were notified of their deficient submission and provided an opportunity to cure. The program also included an auditing procedure designed to detect fraudulent claims and a process for distributing initial and supplemental payments. Approximately 95% of the registered eligible patients enrolled in the settlement program.
13. In re The Engle Trust Fund
No. 94-08273 CA 22 (Fla. 11th Jud. Cir. Ct.)
Ms. Keough played a key role in administering this $600 million landmark case against the country’s five largest tobacco companies. Miles A. McGrane, III, Trustee to the Engle Trust Fund recognized Ms. Keough’s role when he stated:
The outstanding organizational and administrative skills of Jennifer Keough cannot be overstated. Jennifer was most valuable to me in handling numerous substantive issues in connection with the landmark Engle Trust Fund matter. And, in her communications with affected class members, Jennifer proved to be a caring expert at what she does.
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14. In re Washington Mut. Inc., Sec. Litig.
No. 08-md-1919 MJP (W.D. Wash.)
Ms. Keough supervised the notice and claims administration for this securities class action which included three separate settlements with defendants totaling $208.5 million. In addition to mailing notice to over one million class members, Ms. Keough managed the claims administration program, including the review and processing of claims, notification of claim deficiencies, and distribution. In preparation for the processing of claims, Ms. Keough and her team established a unique database to store the proofs of claim and supporting documentation; trained staff to the particulars of this settlement; created multiple computer programs for the entry of class member’s unique information; and developed a program to calculate the recognized loss amounts pursuant to the plan of allocation. The program was designed to allow proofs of claim to be filed by mail or through an online portal. The deficiency process was established in order to reach out to class members who submitted incomplete proof of claims. It involved reaching out to claimants via letters, emails, and telephone calls.
15. In re Yahoo! Inc. Sec. Litig.
No. 17-cv-373 (N.D. Cal.)
Ms. Keough oversaw the notice and administration of this $80 million securities settlement. In approving the settlement, Judge Lucy H. Koh, stated (September 7, 2018):
The Court hereby finds that the forms and methods of notifying the Settlement Class of the Settlement and its terms and conditions: met the requirements of due process, Rule 23 of the Federal Rules of Civil Procedure, and 15 U.S.C. § 78u-4(a)(7) (added to the Exchange Act by the Private Securities Litigation Reform Act of 1995); constituted the best notice practicable under the circumstances; and constituted due and sufficient notice to all persons and entities entitled thereto of these proceedings and the matters set forth herein, including the Settlement and Plan of Allocation.
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16. Linneman v. Vita-Mix Corp.
No. 15-cv-748 (S.D. Ohio)
Ms. Keough was hired by plaintiff counsel to design a notice program regarding this consumer settlement related to allegedly defective blenders. The Court approved Ms. Keough’s plan and designated her as the notice expert for this case. As direct notice to the entire class was impracticable due to the nature of the case, Ms. Keough proposed a multi-faceted notice program. Direct notice was provided by mail or email to those purchasers identified through Vita-Mix’s data as well as obtained through third parties, such as retailers, dealers, distributors, or restaurant supply stores. To reach the unknown class members, Ms. Keough oversaw the design of an extensive media plan that included published notice in Cooking Light, Good Housekeeping, and People magazine and digital notice placements through Facebook/Instagram, Twitter, and Conversant, as well as a paid search campaign through Google and Bing. In addition, the program included an informational and interactive website where class members could submit claims electronically, and a toll-free number that provided information to class members 24 hours a day. When approving the plan, Honorable Susan J. Dlott stated (May 3, 2018):
JND Legal Administration, previously appointed to supervise and administer the notice process, as well as oversee the administration of the Settlement, appropriately issued notice to the Class as more fully set forth in the Agreement, which included the creation and operation of the Settlement Website and more than 3.8 million mailed or emailed notices to Class Members. As of March 27, 2018, approximately 300,000 claims have been filed by Class Members, further demonstrating the success of the Court-approved notice program.
17. Loblaw Card Program
Jennifer Keough was selected by major Canadian retailer Loblaw and its counsel to act as program administrator in its voluntary remediation program as a result of a price-fixing scheme by some employees of the company involving
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bread products. The program offered a $25 Card to all adults in Canada who purchased bread products in Loblaw stores between 2002 and 2015. Some 28 million Canadian residents were potential claimants. Ms. Keough and her team: (1) built an interactive website that was capable of withstanding hundreds of millions of “hits” in a short period of time; (2) built, staffed and trained a call center with operators available to take calls twelve hours a day, six days a week; (3) oversaw the vendor in charge of producing and distributing the cards; (4) was in charge of designing and overseeing fraud prevention procedures; and (5) handled myriad other tasks related to this high-profile and complex project.
18. New Orleans Tax Assessor Project
After Hurricane Katrina, the City of New Orleans began to reappraise properties in the area which caused property values to rise. Thousands of property owners appealed their new property values and the City Council did not have the capacity to handle all the appeals in a timely manner. As a result of the large number of appeals, the City of New Orleans hired Ms. Keough to design a unique database to store each appellant’s historical property documentation. Additionally, Ms. Keough designed a facility responsible for scheduling and coordinating meetings between the 5,000 property owners who appealed their property values and real estate agents or appraisers. The database that Ms. Keough designed facilitated the meetings between the property owners and the property appraisers by allowing the property appraisers to review the property owner’s documentation before and during the appointment with them.
19. USC Student Health Ctr. Settlement
No. 18-cv-04258-SVW (C.D. Cal.)
JND was approved as the Settlement Administrator in this important $215 million settlement that provides compensation to women who were sexually assaulted, harassed and otherwise abused by Dr. George M. Tyndall at the USC Student Health Center during a nearly 30-year period. Ms. Keough and her team designed a notice effort that included mailed and email notice to
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potential Class members, digital notices on Facebook, LinkedIn, and Twitter, an internet search effort, notice placements in USC publications/eNewsletters, and a press release. In addition, her team worked with USC staff to ensure notice postings around campus, on USC’s website and social media accounts, and in USC alumni communications, among other things. Ms. Keough ensured the establishment of an all-female call center, fully trained to handle delicate interactions, with the goal of providing excellent service and assistance to every woman affected. She also worked with JND staff handling lien resolution for this case. Preliminary approving the settlement, Honorable Stephen V. Wilson stated (June 12, 2019):
The Court hereby designates JND Legal Administration (“JND”) as Claims Administrator. The Court finds that giving Class Members notice ofthe Settlement is justified under Rule 23(e)(1) because, as described above, the Court will likely be able to: approve the Settlement under Rule 23(e)(2); and certify the Settlement Class for purposes of judgment. The Court finds that the proposed Notice satisfies the requirements of due process and Federal Rule of Civil Procedure 23 and provides the best notice practicable under the circumstances.
20. Williams v. Weyerhaeuser Co.
Civil Action No. 995787 (Cal. Super. Ct.)
This landmark consumer fraud litigation against Weyerhaeuser Co. had over $100 million in claims paid. The action involved exterior hardboard siding installed on homes and other structures throughout the United States from January 1, 1981 to December 31, 1999 that was alleged to be defective and prematurely fail when exposed to normal weather conditions.
Ms. Keough oversaw the administration efforts of this program, both when she was employed by Perkins Coie, who represented defendants, and later when she joined the administration firm handling the case. The claims program was extensive and went on for nine years, with varying claims deadlines depending on when the class member installed the original Weyerhaeuser siding. The
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program involved not just payments to class members, but an inspection component where a court-appointed inspector analyzed the particular claimant’s siding to determine the eligibility and award level. Class members received a check for their damages, based upon the total square footage of damaged siding, multiplied by the cost of replacing, or, in some instances, repairing, the siding on their homes. Ms. Keough oversaw the entirety of the program from start to finish.
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JUDICIAL RECOGNITION III. Courts have favorably recognized Ms. Keough’s work as outlined above and by the sampling of judicial comments from other JND programs listed below.
1. Judge Susan R. Bolton
In re Banner Health Data Breach Litig., (April 21, 2020) No. 16-cv-02696 (D. Ariz.):
Prior to the Final Approval Hearing, Class Counsel filed the original and supplemental Declaration of Jennifer M. Keough Regarding Notice Administration, confirming that the Notice Program was completed in accordance with the Parties’ instructions and the Preliminary Approval Order. Therefore, the Court is satisfied that Settlement Class Members were properly notified of their right to appear at the Final Approval Hearing in support of, or in opposition to, the proposed Settlement, the award of attorneys’ fees, costs, and expenses, and the payment of Service Awards to the Class Representatives.
2. Judge Joan B. Gottschall
In re Navistar MaxxForce Engines Mktg., Sales Practices and Products, (January 3, 2020) No. 14-cv-10318 (N.D. Ill.):
In accordance with PTO 29 and subsequent orders, the settlement administrator, a corporation for which Jennifer Keough (“Keough” or “settlement administrator”) speaks, filed several declarations updating the court on the notice, opt-out, and claims process… the court finds that the settlement is fair, reasonable, and adequate.
3. Judge Fernando M. Olguin
Ahmed v. HSBC Bank USA, NA, (December 30, 2019) No. 15-cv-2057-FMO-SPx (N.D. Ill.):
On June 21, 2019, the court granted preliminary approval of the settlement, appointed JND Legal Administration (“JND”) as settlement administrator… the court
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finds that the class notice and the notice process fairly and adequately informed the class members of the nature of the action, the terms of the proposed settlement, the effect of the action and release of claims, the class members’ right to exclude themselves from the action, and their right to object to the proposed settlement... the reaction of the class has been very positive.
4. Honorable Steven I. Locke
Donnenfield v. Petro, Inc., (December 4, 2019) No. 17-cv-02310 (E.D.N.Y.):
WHEREAS, the Parties have agreed to use JND Legal Administration (“JND”), an experienced administrator of class action settlements, as the claims administrator for this Settlement and agree that JND has the requisite experience and expertise to serve as claims administrator; The Court appoints JND as the claims administrator for the Settlement.
5. Judge Sarah D. Morrison
Blasi v. United Debt Serv., LLC, (November 5, 2019) No. 14-cv-0083 (S.D. Ohio):
JND Class Action Administration (“JND”), the claims administrator, mailed 166,597 notices to the class and had 10,377 notices returned as undeliverable. Id. at 6. Of those, JND re-mailed 2,306 to updated addresses. Id. 7. In addition, the website hosted 3,606 users who registered 10,170 page views. Id. As of August 14, 2019, JND had received 11,178 claim forms that remained under review. Id. Not one objection was lodged, and no one sought exclusion. Id… Through the postcard mailing and the website, the Court finds that the Class Representatives have utilized the best possible yet reasonable means to effectuate notice. Consequently, the Court holds that the Settlement Notice is sufficient.
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6. Judge Cormac J. Carney
In re ConAgra Foods Inc., (October 8, 2019) No. 11-cv-05379-CJC-AGR (C.D. Cal.):
Following the Court’s preliminary approval, JND used a multi-pronged notice campaign to reach people who purchased Wesson Oils...As of September 19, 2019, only one class member requested to opt out of the settlement class, with another class member objecting to the settlement. The reaction of the class has thus been overwhelmingly positive, and this factor favors final approval.
7. Judge Teri L. Jackson
Lee v. Hertz Corp., Dollar Thrifty Auto. Grp. Inc., (August 30, 2019) No. CGC-15-547520 (Cal. Super. Ct.):
On April, 16, 2019, the Court issued Order Granting Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement, in which the Court did the following…appointed JND Legal Administration as the Settlement Administrator…The manner and form of notice…was the best notice practicable under the circumstances, was valid, due, and sufficient notice to all members of the Settlement Class, and complied fully with California law and due process.
8. Judge Barbara Jacobs Rothstein
Wright v. Lyft, Inc., (May 29, 2019) No. 17-cv-23307-MGC 14-cv-00421-BJR (W.D. Wash.):
The Court also finds that the proposed method of distributing relief to the class is effective. JND Legal Administration (“JND”), an experienced claims administrator, undertook a robust notice program that was approved by this Court…
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9. Judge J. Walton McLeod
Boskie v. Backgroundchecks.com, (May 17, 2019) No. 2019CP3200824 (S.C. C.P.):
The Court appoints JND Legal Administration as Settlement Administrator…The Court approves the notice plans for the HomeAdvisor Class and the Injunctive Relief Class as set forth in the declaration of JND Legal Administration. The Court finds the class notice fully satisfies the requirements of due process, the South Carolina Rules of Civil Procedure. The notice plan for the HomeAdvisor Class and Injunctive Relief Class constitutes the best notice practicable under the circumstances of each Class.
10. Honorable James Donato
In re Resistors Antitrust Litig., (May 2, 2019) No. 15-cv-03820-JD (N.D. Cal.):
The Court approves as to form and content the proposed notice forms, including the long form notice and summary notice, attached as Exhibits B and Dtothe Second Supplemental Declaration of Jennifer M. Keough Regarding Proposed Notice Program (ECF No. 534-3). The Court further finds that the proposed plan of notice – including Class Counsel’s agreement at the preliminary approval hearing for the KOA Settlement that direct notice would be effectuated through both U.S. mail and electronic mail to the extent electronic mail addresses can be identified following a reasonable search – and the proposed contents of these notices, meet the requirements of Rule 23 and due process, and are the best notice practicable under the circumstances and shall constitute due and sufficient notice to all persons entitled thereto.The Court appoints the firm of JND Legal Administration LLC as the Settlement Administrator.
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11. Honorable Leigh Martin May
Bankhead v. First Advantage Background Serv. Corp., (April 30, 2019) No. 17-cv-02910-LMM-CCB (N.D. Ga.):
The Court appoints JND Legal Administration as Settlement Administrator… The Court approves the notice plans for the Class as set forth in the declaration of the JND Legal Administration. The Court finds that class notice fully satisfies the requirements of due process of the Federal Rules of Civil Procedure. The notice plan constitutes the best notice practicable under the circumstances of the Class.
12. Honorable P. Kevin Castel
Hanks v. Lincoln Life & Annuity Co. of New York, (April 23, 2019) No. 16-cv-6399 PKC (S.D.N.Y.):
The Court approves the form and contents of the Short-Form Notice and Long-Form Notice (collectively, the “Notices”) attached as Exhibits A and B, respectively, to the Declaration of Jennifer M. Keough, filed on April 2, 2019, at Docket No. 120…The form and content of the notices, as well as the manner of dissemination described below, therefore meet the requirements of Rule 23 and due process, constitute the best notice practicable under the circumstances, and shall constitute due and sufficient notice to all persons and entities entitled thereto…the Court approves the retention of JND Legal Administration LLC (“JND”) as the Notice Administrator.
13. Judge Cormac J. Carney
In re ConAgra Foods Inc, (April 4, 2019) No. 11-cv-05379-CJC-AGR (C.D. Cal.):
The bids were submitted to Judge McCormick, who ultimately chose JND Legal Administration to propose to the Court to serve as the settlement administrator. (Id. ¶ 65.) In addition to being selected by a neutral third party, JND Legal Administration appears to be well qualified to administer the claims in this case… The Court appoints JND Legal Administration as Settlement Administrator… JND
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Legal Administration will reach class members through a consumer media campaign, including a national print effort in People magazine, a digital effort targeting consumers in the relevant states through Google Display Network and Facebook, newspaper notice placements in the Los Angeles Daily News, and an internet search effort on Google. (Keough Decl. ¶ 14.) JND Legal Administration will also distribute press releases to media outlets nationwide and establish a settlement website and toll-free phone number. (Id.) The print and digital media effort is designed to reach 70% of the potential class members. (Id.) The newspaper notice placements, internet search effort, and press release distribution are intended to enhance the notice’s reach beyond the estimated 70%. (Id.)
14. Honorable William J. McGovern, III, J.S.C.
Atl. Ambulance Corp. v. Cullum and Hitti, (March 29, 2019) No. MRS-L-264-12 (N.J. Super. Ct.):
The Court finds that the manner and form of notice set forth in the Settlement Agreement (Class Notice) was provided to the Settlement Class Members and Settlement Sub‑class Members by JND Legal Administration, the Court‑appointed Administrator of the Settlement…The Class Notice satisfied the requirements of due process and R. 4:32-2 and constitutes the best practicable notice under the circumstances.
15. Judge Edward M. Chen
In re MyFord Touch Consumer Litig., (March 28, 2019) No. 13-cv-3072 (EMC) (N.D. Ca.):
The parties have justified their choice of JND as Settlement Administrator… And the Court finds that the language of the class notice is appropriate and that the means of notice is the “best notice...practicable under the circumstances.”
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16. Judge Jonathan Goodman
Belanger v. RoundPoint Mortgage Servicing, (March 28, 2019) No. 17-cv-23307-MGC (S.D. Fla.):
Class Counsel has filed with the Court a declaration from Jennifer M. Keough, Chief Executive Officer at JND Legal Administration, the independent third-party Settlement Administrator for the Settlement, establishing that the Mail Notice, Claim Form, and Claim Form Instructions were mailed to Noticed Class Members on December 12, 2018; the Settlement Website and IVR toll-free telephone number system were established on December 12, 2018; internet advertising was published beginning December 14, 2018; and the Publication Notice was published on January 7, 2019. Adequate Class Notice was given to the Noticed Class Members in compliance with the Settlement Agreement and the Preliminary Approval Order.
17. Judge Steven P. Shreder
Chieftain Royalty Co. v. Marathon Oil Co., (March 8, 2019) No. 17-cv-334 (E.D. Okla.):
The Court also approves the efforts and activities of the Settlement Administrator, JND Legal Administration, and the Escrow Agent, Signature Bank, in assisting with certain aspects of the administration of the Settlement, and directs them to continue to assist Class Representatives in completing the administration and distribution of the Settlement in accordance with the Settlement Agreement, this Judgment, any Plan of Allocation approved by the Court, and the Court’s other orders.
18. Judge Thomas S. Zilly
Connolly v. Umpqua Bank, (February 28, 2019) No. C15-517 (TSZ) (W.D. Wash.):
Notice of the proposed class action settlement and of the final approval hearing scheduled for February 21, 2019, was sent to all members of the Class in the manner
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described in the Declaration of Jennifer M. Keough, the Chief Executive Officer of JND Legal Administration, which is the Settlement Administrator for this matter… the methods of transmitting notices to class members, along with the maintenance of a dedicated website, were the best notice practicable under the circumstances and comported with Federal Rule of Civil Procedure 23 and the Due Process Clause of the United States Constitution.
19. Judge Kathleen M. Daily
Podawiltz v. Swisher Int’l, Inc., (February 7, 2019) No. 16CV27621 (Or. Cir. Ct.):
The Court appoints JND Legal Administration as settlement administrator…The Court finds that the notice plan is reasonable, that it constitutes due, adequate and sufficient notice to all persons entitled to receive notice, and that it meets the requirements of due process, ORCP 32, and any other applicable laws.
20. Honorable Robert W. Lehrburger
Hines v. CBS Television Studios, (February 5, 2019) No. 17-cv-7882 (PGG) (S.D.N.Y.):
Class Members were provided with the best notice practicable under the circumstances. The Court further finds that the Notice and its distribution comported with all constitutional requirements, including those of due process. No Cass Member opted out of or objected to the Settlement. Moreover, approximately 57% of Class Members returned the Claim form, which represents a substantial response from the Settlement Class…On August 24, 2018 the Court preliminary appointed JND as the Settlement Claims Administrator in this action. JND is an experienced administrator of Class Action settlements nationwide.
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21. Judge Naomi Reice Buchwald
In re LIBOR-Based Fin. Instruments Antitrust Litig., (December 20, 2018) No. 11-md-2262 (NRB) (S.D.N.Y.):
The Court hereby finds that the forms and methods of notifying the Lender Class of the Settlements and their terms and conditions met the requirements of the United States Constitution (including the Due Process Clause), Rule 23 of the Federal Rules of Civil Procedure, and all other applicable law and rules; constituted the best notice practicable under the circumstances; and constituted due and sufficient notice to all Lender Class Members entitled thereto of these proceedings and the matters set forth herein, including the Settlements and Plan of Distribution.
22. Judge Kimberly E. West
Reirdon v. Cimarex Energy Co., (December 18, 2018) No. 16-CIV-113 (KEW) (E.D. Okla.):
The Court further finds that due and proper notice, by means of the Notice and Summary Notice, was given to the Settlement Class in conformity with the Settlement Agreement and Preliminary Approval Order…The Court also approves the efforts and activities of the Settlement Administrator, JND Legal Administration, and the Escrow Agent, Signature Bank, in assisting with certain aspects of the administration of the Settlement, and directs them to continue to assist Class Representative in completing the administration and distribution of the Settlement in accordance with the Settlement Agreement, this Judgment, any Plan of Allocation approved by the Court, and the Court’s other orders.
23. Honorable Kenneth J. Medel
Huntzinger v. Suunto Oy, (December 14, 2018) No. 37-2018-27159 (CU) (BT) (CTL) (Cal. Super. Ct.):
The Court finds that the Class Notice and the Notice Program implemented pursuant to the Settlement Agreement and Preliminary Approval Order constituted the best
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notice practicable under the circumstances to all persons within the definition of the Class and fully complied with the due process requirement under all applicable statutes and laws and with the California Rules of Court.
24. Judge Mark H. Cohen
Liotta v. Wolford Boutiques, LLC, (November 30, 2018) No. 16-cv-4634 (N.D. Ga.):
The Notice Program included written mail notice via post-card pursuant to addresses determined from a look-up on the telephone numbers using a historic look-up process designed to identify the owner of the relevant telephone numbers on July 7, 2016 and September 2, 2016. Keough Decl. ¶¶ 3-4. The Claims Administrator used multiple databases to determine addresses and names of the cellular telephone owners at the time the text messages were sent. Keough Decl. ¶ 3. The Parties’ filed evidence that the Claims Administrator provided notice in conformance with the Notice Program approved by the Court. Id. ¶ 4 & Ex. A; Settlement Agreement § C.4; Prelim. Approval Order at 16-17. This notice constituted the most effective and best notice practicable under the circumstances of the Settlement Agreement and the fairness hearing. The notice constituted due and sufficient notice forall other purposes to all persons entitled to receive notice.
25. Judge Kimberly E. West
Cecil v. BP America Prod. Co., (November 19, 2018) No. 16-cv-410 (RAW) (E.D. Okla.):
The form, content, and method of communicating the Notice of Settlement, together with the class settlement website referred to therein: (i) constituted the best notice practicable under the circumstances; (ii) constituted notice reasonably calculated, under the circumstances, to apprise potential Class Members of the pendency of the Litigation, the proposed Settlement Agreement, their right to exclude themselves from the proposed Settlement Agreement and resulting Settlement, their right to object to the same of any part thereof, and their right to appear at the Final Fairness Hearing; (iii)
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was reasonable and constituted due, adequate, and sufficient notice to all persons and entities entitled to such notice; and (iv) met all applicable requirements of the Federal Rules of Civil Procedure, the Due Process Clause of the United States Constitution, the Due Process protection of the State of Oklahoma, and any other applicable law.
26. Honorable Thomas M. Durkin
In re Broiler Chicken Antitrust Litig., (November 16, 2018) No. 16-cv-8637 (N.D. Ill.):
The notice given to the Class, including individual notice to all members of the Class who could be identified through reasonable efforts, was the best notice practicable under the circumstances. Said notice provided due and adequate notice ofthe proceedings and of the matters set forth therein, including the proposed settlement set forth in the Settlement Agreement, to all persons entitled to such notice, and said notice fully satisfied the requirements of Rules 23(c)(2) and 23(e)(1) of the Federal Rules of Civil Procedure and the requirements of due process.
27. Honorable Beth Labson Freeman
Wahl v. Yahoo! Inc., (November 15, 2018) No. 17-cv-2745 (BLF) (N.D. Cal.):
The Settlement Class was provided with adequate notice of the settlement and an opportunity to object or opt out. The notice satisfied all applicable legal requirements, including those under Federal Rule of Civil Procedure 23 and the United States Constitution.
28. Honorable Tanya Walton Pratt
Pierce v Anthem Ins. Cos., (November 13, 2018) No. 15-cv-00562-TWP-TAB (S. D. Ind.):
The Court hereby finds and concludes that Notice and the Supplemental Notice was disseminated to members of the Settlement Class in accordance with the terms
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of the Agreement and that the Notice and its dissemination were in compliance with the Agreement and this Court’s Preliminary Approval. The Court further finds and concludes that the Notice implemented pursuant to the Settlement Agreement constitutes the best practicable notice; is notice that is reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the Action, their right to accept, object to or exclude themselves from the proposed settlement and to appear at the fairness hearing; constitutes reasonable, due, adequate and sufficient notice to all persons entitled to receive notice; and meets all applicable requirements of the Federal Rules of Civil Procedure, the Due Process Clause of the United States Constitution and any Rules of the Court.
29. Judge Maren E. Nelson
Granados v. County of Los Angeles, (October 30, 2018) No. BC361470 (Cal. Super. Ct.):
JND’s Media Notice plan is estimated to have reached 83% of the Class. The overall reach of the Notice Program was estimated to be over 90% of the Class. (Keough Decl., at ¶12.). Based upon the notice campaign outlined in the Keough Declaration, it appears that the notice procedure was aimed at reaching as many class members as possible. The Court finds that the notice procedure satisfies due process requirements.
30. Judge Maren E. Nelson
McWilliams v. City of Long Beach, (October 30, 2018) No. BC361469 (Cal. Super. Ct.):
It is estimated that JND’s Media Notice plan reached 88% of the Class and the overall reach of the Notice Program was estimated to be over 90% of the Class. (Keough Decl., at ¶12.). Based upon the notice campaign outlined in the Keough Declaration, it appears that the notice procedure was aimed at reaching as many class members as possible. The Court finds that the notice procedure satisfies due process requirements.
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31. Judge Cheryl L. Pollak
Dover v. British Airways, PLC (UK), (October 9, 2018) No. 12-cv-5567 (E.D.N.Y.), in response to two objections:
JND Legal Administration was appointed as the Settlement Claims Administrator, responsible for providing the required notices to Class Members and overseeing the claims process, particularly the processing of Cash Claim Forms…the overwhelmingly positive response to the Settlement by the Class Members, reinforces the Court’s conclusion that the Settlement is fair, adequate, and reasonable.
32. Judge Edward J. Davila
In re Intuit Data Litig., (October 4, 2018) No. 15-CV-1778-EJD (N.D. Cal.):
The Court appoints JND Legal Administration (“JND”) to serve as the Settlement Administrator…The Court approves the program for disseminating notice to Class Members set forth in the Agreement and Exhibit A thereto (herein, the “Notice Program”). The Court approves the form and content of the proposed forms of notice, in the forms attached as Attachments 1 through 3 to Exhibit A to the Agreement. The Court finds that the proposed forms of notice are clear and readily understandable by Class Members. The Court finds that the Notice Program, including the proposed forms of notice, is reasonable and appropriate and satisfies any applicable due process and other requirements, and is the only notice to the Class Members of the Settlement that is required.
33. Judge Michael H. Watson
O’Donnell v. Fin. American Life Ins. Co., (August 24, 2018) No. 14-cv-01071 (S.D. Ohio):
The Court finds that the Class Notice and the notice methodology implemented pursuant to this Settlement Agreement (as evidenced by the Declaration of Settlement Administrator Keough, JND Legal Administration): (1) constituted the best practicable
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notice; (2) constituted notice that was reasonably calculated, under the circumstances, to apprise Class Members of the terms of the Proposed Settlement, the available relief, the release of claims, their right to object or exclude themselves from the proposed Settlement, and their right to appear at the fairness hearing; (3) were reasonable and constitute due, adequate, and sufficient notice to all persons entitled to receive notice; and (4) met all applicable requirements of the Federal Rules of Civil Procedure, the Class Action Fairness Act, the United States Constitution (including the Due Process Clause), the Rules of the Court, and any other applicable law.
34. Judge Timothy J. Corrigan
Finerman v. Marriott Ownership Resorts, Inc., (August 15, 2018) No. 14-cv-1154-J-32MCR (M.D. Fla.):
Notice was given by Mail in accordance with the Settlement Agreement and the Preliminary Approval Order. The Class Notice, Claim Form, Preliminary Approval Order, Petition for Attorney’s Fees, and Settlement Agreement (without exhibits) were also posted on the Settlement Website at www.cruisefaresettlement.com. These forms of class notice fully complied with the requirements of Rule 23(c)(2)(B) and due process, constituted the best notice practicable under the circumstances, and were due and sufficient notice to all persons entitled to notice of the settlement of this lawsuit.
35. Honorable Kenneth J. Medel
Huntzinger v. Suunto Oy, (August 10, 2018) No. 37-2018-27159 (CU) (BT) (CTL) (Cal. Super. Ct.):
The Court finds that the notice to the Class Members regarding settlement of this Action, including the content of the notices and method of dissemination to the Class Members in accordance with the terms of Settlement Agreement, constitute the best notice practicable under the circumstances and constitute valid, due and sufficient notice to all Class Members, complying fully with the requirements of California Code of Civil Procedure § 382, California Civil Code § 1781, California Rules of Court Rules 3.766 and 3.769(f), the California and United States Constitutions, and any other applicable law.
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36. Honorable Thomas M. Durkin
In re Broiler Chicken Antitrust Litig., (June 22, 2018) No. 16-cv-8637 (N.D. Ill.):
The proposed notice plan set forth in the Motion and the supporting declarations comply with Rule 23(c)(2)(B) and due process as it constitutes the best notice that is practicable under the circumstances, including individual notice vial mail and email to all members who can be identified through reasonable effort. The direct mail and email notice will be supported by reasonable publication notice to reach class members who could not be individually identified.
37. Honorable Stanley R. Chesler
Muir v. Early Warning Services, LLC, (June 13, 2018) No. 16-cv-00521 (D.N.J.):
Notice to the Class required by Rule 23(e) of the Federal Rules of Civil Procedure has been provided in accordance with the Court’s Preliminary Approval Order, and such notice has been given in an adequate and sufficient manner; constitutes the best notice practicable under the circumstances; and satisfies Rule 23(e) and due process. The Court is informed the Mail Notice was sent by first class mail to approximately 211 Settlement Class Members by JND Legal Administration, the third-party Settlement Administrator.
38. Honorable Lewis A. Kaplan
Cline v. TouchTunes Music Corp., (May 24, 2018) No. 14-CIV-4744 (LAK) (S.D.N.Y.):
The Court finds that the Notice Program has been implemented by the Claims Administrator and Parties, and that such Notice Program, including of the utilized Notice Form, constitutes the best notice practicable under the circumstances and fully satisfied due process, the requirements of Rule 23 of the Federal Rules of Civil Procedure, and all other applicable laws.
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39. Judge Janet T. Neff
Sullivan v. Wenner Media LLC, (May 22, 2018) No. 16−cv−00960−JTN−ESC (W.D. Mich.):
The Settlement Administrator completed the delivery of Class Notice according to the terms of the Agreement. The Class Notice given by the Settlement Administrator to the Settlement Class, which set forth the principal terms of the Agreement and other matters, was the best practicable notice under the circumstances.
40. Judge Maren E. Nelson
Djoric v. Justin Brands, Inc., (March 12, 2018) No. BC574927 (Cal. Super. Ct.):
Based on the number of claims submitted the Court concludes that the notice was adequate and the best available means under the circumstances.
41. Judge Federico A. Moreno
Brna v. Isle of Capri Casinos and Interblock USA, LLC, (February 20, 2018) No. 17-cv-60144 (FAM) (S.D. Fla.):
Class Counsel has filed with the Court a Declaration from JND Legal Administration, the independent third-party Settlement Administrator for the Settlement, establishing the Settlement Notice and Claim Form were delivered by email and mail to the class members on November 27, 2017 and December 4, 2017, the Settlement website was established on November 27, 2017, and Claim Forms were also available electronically on the website. Adequate notice was given to the Settlement Class Members in compliance with the Settlement Agreement and the preliminary approval order.
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42. Honorable Percy Anderson
Nozzi v. Housing Authority for the City of Los Angeles, (February 15, 2018) No. CV 07-380 PA (FFMx) (C.D. Cal.):
The notice given in this case was reasonably calculated to reach the Damages Class… Finally, a notice was published in the L.A. Times for three consecutive weeks on August 18, 2017, August 25, 2017, and September 1, 2017, and a 30-day internet advertising campaign was launched on Facebook, Instagram, and Twitter to inform Class Members about the settlement. (Keough Decl. ¶ 12.) The Court therefore concludes that the notice procedures satisfied the requirements of Due Process and Federal Rule of Civil Procedure 23(e).
43. Judge Ann D. Montgomery
In re Wholesale Grocery Prod. Antitrust Litig., (November 16, 2017) No. 9-md-2090 (ADM) (TNL) (D. Minn.):
Notice provider and claims administrator JND Legal Administration LLC provided proof that mailing conformed to the Preliminary Approval Order in a declaration filed contemporaneously with the Motion for Final Approval of Class Settlement. This notice program fully complied with Fed. R. Civ. P. 23, satisfied the requirements of due process, is the best notice practicable under the circumstances, and constituted due and adequate notice to the Class of the Settlement, Final Approval Hearing and other matters referred to in the Notice.
44. Honorable Robert S. Lasnik
Gragg v. Orange Cab Co., (October 5, 2017) No. C12-0576RSL (W.D. Wash.):
The Settlement Administrator completed the delivery of Class Notice according to the terms of the Agreement. The Class Notice given by the Settlement Administrator to the Settlement Class, which set forth the principal terms of the Agreement and other matters, was the best practicable notice under the circumstances…The Class
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Notice given to the Settlement Class Members satisfied the requirements of Federal Rule of Civil Procedure 23 and the requirements of constitutional due process.
45. The Honorable Philip S. Gutierrez
Harris v. Amgen, Inc., (April 4, 2017) No. CV 07-5442 PSG (PLAx) (C.D. Cal.):
Class counsel retained JND to provide notice and administration services for this litigation. See generally Keough Decl. JND mailed 13,344 class action notices to class members by first-class mail on January 14, 2017. See Keough Decl., ¶ 6. If the mailings returned undeliverable, JND used skip tracing to identify the most updated addresses for class members. Id. To date, JND reports than only 179 notices are undeliverable. Id. ¶ 7. Moreover, as of March 21, 2017, the deadline for filing objections, JND had received no objections to the final settlement agreement. The lack of objections is an indicator that class members find the settlement to be fair, reasonable, and adequate.
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CASE EXPERIENCE IV. Ms. Keough has played an important role in hundreds of matters throughout her career. A partial listing of her notice and claims administration case work is provided below.
CASE NAME CASE NUMBER LOCATION
Adair v. Michigan Pain Specialist, PLLC 14-28156-NO Mich. Cir. Adkins v. EQT Prod. Co. 10-cv-00037-JPJ-PMS W.D. Va. Adzhikosyan v. Denver Mgmt. BC648100 Cal. Super. Ct. Ahmed v. HSBC Bank USA, NA 15-cv-2057-FMO-SPx N.D. Ill. Allagas v. BP Solar Int’l, Inc. 14-cv-00560 (SI) N.D. Cal. Amin v. Mercedes-Benz USA, LLC 17-cv-01701-AT N.D. Ga. Andreas-Moses v. Hartford Fire Ins. Co. 17-cv-2019-Orl-37KRS M.D. Fla. Anger v. Accretive Health 14-cv-12864 E.D. Mich. Arthur v. Sallie Mae, Inc. 10-cv-00198-JLR W.D. Wash. Atkins v. Nat’l. Gen. Ins. Co. 16-2-04728-4 Wash. Super. Ct. Atl. Ambulance Corp. v. Cullum & Hitti MRS-L-264-12 N.J. Super. Ct. Backer Law Firm, LLC v. Costco Wholesale Corp. 15-cv-327 (SRB) W.D. Mo. Baker v. Equity Residential Mgmt., LLC 18-cv-11175 D. Mass. Bankhead v. First Advantage Background 17-cv-02910-LMM-CCB N.D. Ga. Services Corp. Barclays Dark Pool Sec. Litig. 14-cv-5797 (VM) S.D.N.Y. Barrett v. Nestle USA, Inc. 18-cv-167-DPM E.D. Ark. Belanger v. RoundPoint Mortgage Servicing 17-cv-23307-MGC S.D. Fla. Beltran v. InterExchange, Inc. 14-cv-3074 D. Colo. Bergman v. Thelen LLP 08-cv-05322-LB N.D. Cal. Bey v. Encore Health Res. 19-cv-00060 E.D. Tex. BlackRock Core Bond Portfolio v. Wells Fargo 65687/2016 N.Y. Super. Ct. Blasi v. United Debt Serv., LLC 14-cv-0083 S.D. Ohio Blocher v. Landry's Inc. 14-cv-03213-MSS-JSS M.D. Fla. Bobo v. LM Wind Power Blades (ND), Inc. 18-cv-230-DPM E.D. Ark. Bollenbach Enters. Ltd. P’ship. v. Oklahoma 17-cv-134 W.D. Okla. Energy Acquisitions
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CASE NAME CASE NUMBER LOCATION
Boskie v. Backgroundchecks.com 2019CP3200824 S.C. C.P. Bradley v. Honecker Cowling LLP 18-cv-01929-CL D. Or. Briones v. Patelco Credit Union RG 16805680 Cal. Super. Ct. Brna v. Isle of Capri Casinos 17-cv-60144 (FAM) S.D. Fla. Broussard v. Stein Mart, Inc. 16-cv-03247 S.D. Tex. Browning v. Yahoo! C04-01463 HRL N.D. Cal. Call v. Shutterstock SCV-262841 Cal. Super. Ct. Calvert v. Xcel Energy 17-cv-02458-RBJ D. Colo. Cambridge v. Sheetz, Inc. 17-cv-01649-JEJ M.D. Pa. Careathers v. Red Bull North America, Inc. 13-cv-369 (KPF) S.D.N.Y. Carmack v. Amaya Inc. 16-cv-1884 D.N.J. Carson v. Cheers 17-2-29644-9 Wash. Super. Ct. Castro v. Cont’l Airlines, Inc. 14-cv-00169 C.D. Cal. Cecil v. BP America Prod. Co. 16-cv-410 (RAW) E.D. Okla. Chamblee v. TerraForm Power, Inc. 16 MD 2742 (PKC)(AJP) S.D.N.Y. Chanve c. E.I. Du Pont De Nemours 16-cv-00376-MAC-ZJH E.D. Tex. Chavez v. Our Lady of Lourdes Hosp. 12-2-50575-9 Wash. Super. Ct. Chester v. TJX Cos. 15-cv-1437 (ODW) (DTB) C.D. Cal. Chieftain Royalty Co. v. Marathon Oil Co. 17-cv-334 E.D. Okla. Chieftain Royalty Co. v. Newfield Exploration 17-cv-00336-KEW E.D. Okla. Mid-Continent Inc. Chieftain Royalty Co. v. XTO Energy, Inc. 11-cv-00029-KEW E.D. Okla. City of Los Angeles v. Bankrate, Inc. 14-cv-81323 (DMM) S.D. Fla. Cline v Sunoco, Inc. 17-cv-313-JAG E.D. Okla. Cline v. TouchTunes Music Corp. 14-CIV-4744 (LAK) S.D.N.Y. Cobell v. Salazar 96-cv-1285 (TFH) D.D.C. Common Ground Healthcare Coop. v. United States 17-877C F.C.C. Connolly v. Umpqua Bank C15-517 (TSZ) W.D. Wash. Corona v. Sony Pictures Entm’t Inc. 14−CV−09600−RGK−E C.D. Cal. Courtney v. Avid Tech., Inc. 13-cv-10686-WGY D. Mass. DASA Inv., Inc. v. EnerVest Operating LLC 18-cv-00083-SPS E.D. Okla. Davis v. Carfax, Inc. CJ-04-1316L D. Okla.
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CASE NAME CASE NUMBER LOCATION
Dearth v. Hartford Fire Ins. Co. 16-cv-1603-Orl-37LRH M.D. Fla. DeFrees v. Kirkland and U.S. Aerospace, Inc. CV 11-04574 C.D. Cal. del Toro Lopez v. Uber Techs., Inc. 14-cv-6255 N.D. Cal. Delkener v. Cottage Health Sys. 30-2016-847934 (CU) (NP) (CXC) Cal. Super. Ct. DeMarco v. AvalonBay Communities, Inc. 15-cv-00628-JLL-JAD D.N.J. De Santiago v. California Respite Care, Inc. CIVDS1807688 Cal. Super. Ct. Diaz v. Lost Dog Pizza, LLC 17-cv-02228-WJM-NYW D. Colo. Dixon v. Zabka 11-cv-982 D. Conn. Djoric v. Justin Brands, Inc. BC574927 Cal. Super. Ct. Doan v. CORT Furniture Rental Corp. 30-2017-00904345-CU-BT-CXC Cal. Super. Ct. Doan v. State Farm Gen. Ins. Co. 1-08-cv-129264 Cal. Super. Ct. Donnenfield v. Petro, Inc. 17-cv-02310 E.D.N.Y. Dougherty v. Barrett Bus. Serv., Inc. 17-2-05619-1 Wash. Super. Ct. Doughtery v. QuickSIUS, LLC 15-cv-06432-JHS E.D. Pa. Dover v. British Airways, PLC (UK) 12-cv-5567 E.D.N.Y. Dozier v. Club Ventures Invs. LLC 17BK10060 S.D.N.Y. Duran v. DirecTV 4850 (1-14-CV-274709) Cal. Super. Ct. Dwyer v. Snap Fitness, Inc. 17-cv-00455-MRB S.D. Ohio Easley v. The Reserves Network, Inc. 16-cv-544 N.D. Ohio Edwards v. Arkansas Cancer Clinic, P.A. 35CV-18-1171 Ark. Cir. Ct. Edwards v. Hearst Commc’ns., Inc. 15-cv-9279 (AT) (JLC) S.D.N.Y. EEOC v. Patterson-UTI Drilling Co. LLC 5-cv-600 (WYD) (CBS) D. Colo. Erica P. John Fund, Inc. v. Halliburton Co. 02-cv-1152 N.D. Tex. Espenshade v. Wilcox & Wilcox BC647489 Cal. Super. Ct. Essex v. The Children's Place, Inc. 15-cv-5621 D.N.J. Expedia Hotel Taxes & Fees Litig. 05-2-02060-1 (SEA) Wash. Super. Ct. Family Med. Pharmacy LLC v. Impax Labs., Inc. 17-cv-53 S.D. Ala. Family Med. Pharmacy LLC v. Trxade Group Inc. 15-cv-00590-KD-B S.D. Ala. Farmer v. Bank of Am. 11-cv-00935-OLG W.D. Tex. Felix v. WM. Bolthouse Farms, Inc. 19-cv-00312-AWI-JLT E.D. Cal. Fielder v. Mechanics Bank BC721391 Cal. Super. Ct. Finerman v. Marriott Ownership Resorts, Inc. 14-cv-1154-J-32MCR M.D. Fla.
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CASE NAME CASE NUMBER LOCATION
Fitzgerald v. Lime Rock Res. CJ-2017-31 Okla. Dist. Ct. Folweiler v. Am. Family Ins. Co. 16-2-16112-0 Wash. Super. Ct. Fosbrink v. Area Wide Protective, Inc. 17-cv-1154-T-30CPT M.D. Fla. Fresno County Employees Ret. Assoc. v. 16-cv-1820 (JGK) S.D.N.Y. comScore Inc. Frost v. LG Elec. MobileComm U.S.A., Inc. 37-2012-00098755-CU- Cal. Super. Ct. PL-CTL FTC v. Consumerinfo.com SACV05-801 AHS (MLGx) C.D. Cal. Gazda v. Serve U Brands, Inc. E2019009233 N.Y. Super. Ct. Gehrich v. Howe 37-2018-00041295-CU-SL-CTL N.D. Ga. Gervasio v. Wawa, Inc. 17-cv-245 (PGS) (DEA) D.N.J. Gormley v. magicJack Vocaltec Ltd. 16-cv-1869 S.D.N.Y. Gragg v. Orange Cab Co. C12-0576RSL W.D. Wash. Granados v. County of Los Angeles BC361470 Cal. Super., Ct. Grant v. Ballard Mgmt, Inc. 18-2-54890-0 SEA Wash. Super. Ct. Hahn v. Hanil Dev., Inc. BC468669 Cal. Super. Ct. Hall v. Dominion Energy 18-cv-00321-JAG E.D. Va. Halperin v. YouFit Health Clubs 18-cv-61722-WPD S.D. Fla. Hanks v. Lincoln Life & Annuity Co. of New York 16-cv-6399 PKC S.D.N.Y. Harris v. Amgen, Inc. CV 07-5442 PSG (PLAx) C.D. Cal. Harris v. Chevron U.S.A., Inc. 15-cv-00094 W.D. Okla. Harrison v. Strategic Experiential Group RG16 807555 Cal. Super. Ct. Health Republic Ins. Co. v. United States 16-259C F.C.C. Hernandez v. Experian Info. Solutions, Inc. 05-cv-1070 (DOC) (MLGx) C.D. Cal. Hernandez v. Great Western Pacific Inc. 18-2-08788-1 SEA Wash. Super. Ct. Hernandez v. United States Cold Storage of S-1500-CV-282297-SPC Cal. Super. Ct. California, Inc. Hines v. CBS Television Studios 17-cv-7882 (PGG) S.D.N.Y. Holt v. Murphy Oil USA, Inc. 17-cv-911 N.D. Fla. Hopwood v. Nuance Commc’n, Inc. 4:13-cv-02132-YGR N.D. Cal. Howard v. Southwest Gas Corp. 18-cv-01035-JAD-VCF D. Nev. Howell v. Checkr, Inc. 17-cv-4305 N.D. Cal. Huntzinger v. Suunto Oy 37-2018-27159 (CU) (BT) (CTL) Cal. Super. Ct.
39 Case 2:16-cv-00881-KM-ESK Document 299-3 Filed 09/14/20 Page 61 of 66 PageID: 9063
CASE NAME CASE NUMBER LOCATION
In re Air Cargo Shipping Servs. Antitrust Litig. 06-md-1775 (JG) (VVP) E.D.N.Y. In re Akorn, Inc. Sec. Litig. 15-c-1944 N.D. Ill. In re Am. Express Fin. Advisors Sec. Litig. 04 Civ. 1773 (DAB) S.D.N.Y. In re AMR Corp. (American Airlines Bankr.) 1-15463 (SHL) S.D.N.Y. In re Auction Houses Antitrust Litig. 00-648 (LAK) S.D.N.Y. In re AudioEye, Inc. Sec. Litig. 15-cv-163 (DCB) D. Ariz. In re Banner Health Data Breach Litig. 16-cv-02696 D. Ariz. In re Broiler Chicken Antitrust Litig. 16-cv-08637 N.D. Ill. In re Classmates.com C09-45RAJ W.D. Wash. In re ConAgra Foods Inc. 11-cv-05379-CJC-AGR C.D. Cal. In re CRM Holdings, Ltd. Sec. Litig. 10-cv-00975-RPP S.D.N.Y. In re Equifax Inc. Customer Data Sec. Breach Litig. 17-md-2800-TWT N.D. Ga. In re General Motors LLC Ignition Switch Litig. 2543 (MDL) S.D.N.Y. In re Global Tel*Link Corp. Litig. 14-CV-5275 W.D. Ark. In re GoPro, Inc. Shareholder Litig. CIV537077 Cal. Super. Ct. In re Guess Outlet Store Pricing JCCP No. 4833 Cal. Super. Ct. In re Initial Pub. Offering Sec. Litig. (IPO Sec. Litig.) No. 21-MC-92 S.D.N.Y. In re Intuit Data Litig. 15-CV-1778-EJD N.D. Cal. In re J.P. Morgan Stable Value Fund ERISA Litig. 12-cv-02548-VSB S.D.N.Y. In re Legacy Reserves LP Preferred Unitholder Litig. 2018-225 (JTL) Del. Ch. In re LIBOR-Based Fin. Instruments Antitrust Litig. 11-md-2262 (NRB) S.D.N.Y. In re MyFord Touch Consumer Litig. 13-cv-3072 (EMC) N.D. Cal. In re Navistar MaxxForce Engines Mktg., Sales 14-cv-10318 N.D. Ill. Practices and Products In re Oil Spill by the Oil Rig “Deepwater Horizon” 2179 (MDL) E.D. La. in the Gulf of Mexico, on April 20, 2010 In re PHH Lender Placed Ins. Litig. 12-cv-1117 (NLH) (KMW) D.N.J. In re Pokémon Go Nuisance Litig. 16-cv-04300 N.D. Cal. In re Polyurethane Foam Antitrust Litig. 10-md-196 (JZ) N.D. Ohio In re Processed Egg Prod. Antitrust Litig. 08-MD-02002 E.D. Pa. In re Resistors Antitrust Litig. 15-cv-03820-JD N.D. Cal. In re Resonant Inc. Sec. Litig. 15-cv-1970 (SJO) (MRW) C.D. Cal.
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CASE NAME CASE NUMBER LOCATION
In re Stericycle, Inc. Sec. Litig. 16-cv-07145 N.D. Ill. In re Stryker Rejuvenate and ABG II Hip Implant 13-md-2441 D. Minn. Products Liab. Litig. In re SunTrust Banks, Inc. ERISA Litig. 08-cv-03384-RWS N.D. Ga. In re Tenet Healthcare Corp. Sec. CV-02-8462-RSWL (Rzx) C.D. Cal. In re The Engle Trust Fund 94-08273 CA 22 Fla. 11th Cir. Ct. In re Ubiquiti Networks Sec. Litig. 18-cv-01620 (VM) S.D.N.Y. In re Unilife Corp. Sec. Litig. 16-cv-3976 (RA) S.D.N.Y. In re Washington Mut. Inc. Sec. Litig. 8-md-1919 (MJP) W.D. Wash. In re Webloyalty.com, Inc. Mktg. & Sales 06-11620-JLT D. Mass. Practices Litig. In re Wholesale Grocery Prod. Antitrust Litig. 9-md-2090 (ADM) (TNL) D. Minn. In re Williams Sec. Litig. 02-CV-72-SPF (FHM) N.D. Okla. In re Yahoo! Inc. Sec. Litig. 17-cv-373 N.D. Cal. Ivery v. RMH Illinois, LLC and RMH Franchise 17-CIV-1619 N.D. Ill. Holdings, Inc. Jerome v. Elan 99, LLC 2018-02263 Tx. Dist. Ct. Jeter v. Bullseye Energy, Inc. 12-cv-411 (TCK) (PJC) N.D. Okla. Johnson v. MGM Holdings, Inc. 17-cv-00541 W.D. Wash. Jones v. Encore Health Res. 19-cv-03298 S.D. Tex. Jordan v. Things Remembered, Inc. 114CV272045 Cal. Super. Ct. Kellgren v. Petco Animal Supplies, Inc. 13-cv-644 (L) (KSC) S.D. Cal. Kent v. R.L. Vallee, Inc. 617-6-15 D. Vt. Kissel v. Code 42 Software Inc. 15-1936 (JLS) (KES) C.D. Cal. Komesar v. City of Pasadena BC 677632 Cal. Super. Ct. Konecky v Allstate CV-17-10-M-DWM D. Mont. Kramer v. DuPont, USA 17L2 Ill. Cir. Ct. Krueger v. Ameriprise Fin., Inc. 11-cv-02781 (SRN/JSM) D. Minn. Langan v. Johnson & Johnson Consumer Co. 13-cv-01471 D. Conn. Lee v. Hertz Corp., Dollar Thrifty Auto. Grp. Inc. CGC-15-547520 Cal. Super. Ct. Linderman v. City of Los Angeles BC650785 Cal. Super. Ct. Lindsay v. Cutter Wireline Serv., Inc. 7-cv-01445 (PAB) (KLM) D. Colo. Linneman v. Vita-Mix Corp. 15-cv-748 S.D. Ohio
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CASE NAME CASE NUMBER LOCATION
Lion Biotechnologies Sec. Litig. 17-cv-02086-SI N.D. Cal. Liotta v. Wolford Boutiques, LLC 16-cv-4634 N.D. Ga. Lippert v. Baldwin 10-cv-4603 N.D. Ill. Lloyd v. CVB Fin. Corp. 10-cv-6256 (CAS) C.D. Cal. Loblaw Card Program Remediation Program Mabrey v. Autovest CGC-18-566617 Cal. Super. Ct. Machado v. Endurance Int'l Grp. Holdings Inc. 15-cv-11775-GAO D. Mass. Malin v. Ambry Gentics Corp. 30-2018-00994841-CU- Cal. Super. Ct. SL-CXC Martinez v. Rial de Minas, Inc. 16-cv-01947 D. Colo. McClellan v. Chase Home Fin. 12-cv-01331-JGB-JEM C.D. Cal. McClintock v. Continuum Producer Serv., LLC 17-cv-00259-JAG E.D. Okla. McFarland v. Swedish Med. Ctr. 18-2-02948-1 SEA Wash. Super. Ct. McGann v. Schnuck Markets Inc. 1322-CC00800 Mo. Cir. Ct. McKibben v. McMahon 14-2171 (JGB) (SP) C.D. Cal. McKnight Realty Co. v. Bravo Arkoma, LLC 17-CIV-308 (KEW) E.D. Okla. McNeal v. AccentCare, Inc. 4:15cv03304 N.D. Cal. McNeill v. Citation Oil & Gas Corp. 17-CIV-121 (KEW) E.D. Okla. McWilliams v. City of Long Beach BC361469 Cal. Super. Ct. Mild v. PPG Indus., Inc. 18-cv-04231 C.D. Cal. Millien v. Madison Square Garden 17-cv-04000 S.D.N.Y. Milstead v. Robert Fiance Beauty Sch., Inc. CAM-L-328-16 N.J. Super. Ct. Moeller v. Advance Magazine Publishers, Inc. 15-cv-05671 (NRB) S.D.N.Y. Mohamed v. SkyHop Global LLC 18-2-54565-0-KNT Wash. Super. Ct. Mojica v. Securus Techs., Inc. 14-cv-5258 W.D. Ark. Molnar v. 1-800-Flowers Retail, Inc. BC 382828 Cal. Super. Ct. Monteleone v. Nutro Co. 14-cv-00801-ES-JAD D.N.J. Moodie v. Maxim HealthCare Servs. 14-cv-03471-FMO-AS C.D. Cal. Morel v. Lions Gate Entm’t Inc. 16-cv-1407 (JFC) S.D.N.Y. Moss v. United Airlines 16-cv-08496 N.D. Ill. Muir v. Early Warning Services, LLC 16-cv-00521 D.N.J. Mylan Pharm., Inc. v. Warner Chilcott Pub. Ltd. 12-3824 E.D. Pa.
42 Case 2:16-cv-00881-KM-ESK Document 299-3 Filed 09/14/20 Page 64 of 66 PageID: 9066
CASE NAME CASE NUMBER LOCATION
Nasseri v. Cytosport, Inc. BC439181 Cal. Super. Ct. Nesbitt v. Postmates, Inc. CGC-15-547146 Cal. Super. Ct. New Orleans Tax Assessor Project Tax Assessment Program New York v. Steven Croman 450545/2016 N.Y. Super. Ct. NMPA Late Fee Program Groups I-IVA Remediation Program CRB Nozzi v. Housing Authority of the City of Los Angeles CV 07-0380 PA (FFMx) C.D. Cal. Nwabueza v. AT&T C 09-01529 SI N.D. Cal. Nwauzor v. GEO Group, Inc. 17-cv-05769 W.D. Wash. Ortega v. Borton & Sons, Inc. 17-2-03005-39 Wash. Super. Ct. O'Donnell v. Fin. American Life Ins. Co. 14-cv-01071 S.D. Ohio Ortez v. United Parcel Serv., Inc. 17-cv-01202 (CMA) (SKC) D. Colo. Paggos v. Resonant, Inc. 15-cv-01970-SJO C.D. Cal. Palazzolo v. Fiat Chrysler Auto. NV 16-cv-12803 E.D. Mich. Parker v. Time Warner Entm’t Co. 239 F.R.D. 318 E.D.N.Y. Parker v. Universal Pictures 16-cv-1193-CEM-DCI M.D. Fla. Parmelee v. Santander Consumer USA Holdings Inc. 16-cv-783-K N.D. Tex. Pemberton v. Nationstar Mortgage LLC 14-cv-1024-BAS (MSB) S.D. Cal. Petersen v. Costco Wholesale Co. 13-cv-01292-DOC-JCG C.D. Cal. Pickett v. Simos Insourcing Solutions Corp. 1:17-cv-01013 N.D. Ill. Pierce v Anthem Ins. Cos. 15-cv-00562-TWP-TAB S. D. Ind. Podawiltz v. Swisher Int’l, Inc. 16CV27621 Or. Cir. Ct. Press v. J. Crew Group, Inc. 56-2018-512503 (CU) (BT) (VTA) Cal. Super. Ct. Purcell v. United Propane Gas, Inc. 14-CI-729 Ky. 2nd Cir. Racies v. Quincy Bioscience, LLC 15-cv-00292 N.D. Cal. Ralph v. Get Fresh Produce, Inc. 2019-CH-02324 Ill. Cir. Ct. Ramos v. Hopele of Fort Lauderdale, LLC 17-cv-62100 S.D. Fla. Reirdon v. Cimarex Energy Co. 16-CIV-113 (KEW) E.D. Okla. Rhea v. Apache Corp. 14-cv-00433-JH E.D. Okla. Rice v. Insync 30-2014-00701147-CU-NP-CJC Cal. Super. Ct. Rice-Redding v. Nationwide Mut. Ins. Co. 18-cv-01203 N.D. Ga. Rich v. EOS Fitness Brands, LLC RIC1508918 Cal. Super. Ct. Rollo v. Universal Prop. & Cas. Ins. 2018-027720-CA-01 Fla. Cir. Ct.
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CASE NAME CASE NUMBER LOCATION
Roman v. Antelope Valley Newspapers, Inc. BC382639 Cal. Super. Ct. Rotatori v. TGI Fridays 14-0081-B Mass. Super. Ct. Roth v. Bellevue Club 19-2-07780-8 Wash. Super. Ct. Routh v. SEIU Healthcare 775NW 14-cv-00200 W.D. Wash. Rozeboom v. Dietz & Watson 17-cv-01266-RAJ W.D. Wash. Ruppel v. Consumers Union of United States, Inc. 16-cv-2444 (KMK) S.D.N.Y. Saccoccio v. JP Morgan Chase 13-cv-21107 S.D. Fla. San Antonio Fire & Police Pension Fund v. Dole 15-cv-1140 (LPS) E.D. Del. Food Co. Sanders v. Global Research Acquisition, LLC 18-cv-00555 M.D. Fla. Sanders v The CJS Solutions Group, LLC 17-cv-03809 S.D.N.Y. Schlesinger v. Ticketmaster BC304565 Cal. Super. Ct. Schourup v. Private Label Nutraceuticals, LLC 2015cv01026 C.D. Cal. Schwartz v. Intimacy in New York, LLC 13-cv-5735 (PGG) S.D.N.Y. Schwartz v. Opus Bank 16-cv-7991 (AB) (JPR) C.D. Cal. SEB Inv. Mgmt. AB v. Endo Int'l PLC 17-cv-3711-TJS E.D. Pa. Seegert v. P.F. Chang's China Bistro 37-2017-00016131-CU-MC-CTL Cal. Super. Ct. Soderstrom v. MSP Crossroads Apartments LLC 16-cv-233 (ADM) (KMM) D. Minn. Solano v. Amazon Studios LLC 17-cv-01587 (LGS) S.D.N.Y. Soto v. Diakon Logistics (Delaware), Inc. 08-cv-33-L(WMC) S.D. Cal. Speed v. JMA Energy Co., LLC CJ-2016-59 Okla. Dist. Ct. Stanley v. Capri Training Ctr. ESX-L-1182-16 N.J. Super. Ct. Steele v. PayPal, Inc. 05-CV-01720 (ILG) (VVP) E.D.N.Y. Stillman v. Clermont York Assocs. LLC 603557/09E N.Y. Super. Ct. Stretch v. Montana DV-04-713 (A) Mont. 11th Dist. Ct. Strickland v. Carrington Mortgage Services, LLC 16-cv-25237 S.D. Fla. Strougo v. Lannett Co. 18-cv-3635 E.D. Pa. Stuart v. State Farm Fire & Cas. Co. 14-cv-04001 W.D. Ark. Sudunagunta v. NantKwest, Inc. 16-cv-01947-MWF-JEM C.D. Cal. Sullivan v Wenner Media LLC 16−cv−00960−JTN−ESC W.D. Mich. Swinton v. SquareTrade, Inc. 18-CV-00144-SMR-SBJ S.D. Iowa Szafarz v. United Parcel Serv., Inc. SUCV2016-2094-BLS2 Mass. Super. Ct.
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CASE NAME CASE NUMBER LOCATION
Terrell v. Costco Wholesale Corp. 16-2-19140-1-SEA Wash. Super. Ct. Timberlake v. Fusione, Inc. BC 616783 Cal. Super. Ct. Tkachyk v. Traveler’s Ins. 16-28-m (DLC) D. Mont. T-Mobile Remediation Program Remediation Program Tolliver v. Avvo, Inc. 16-2-5904-0 (SEA) Wash. Super. Ct. Townes, IV v. Trans Union, LLC 04-1488-JJF D. Del. Tschosik v. Diamond Freight Sys. 16-2-01247-1 Wash. Super. Ct. Tyus v. Gen. Info. Solutions LLC 2017CP3201389 S.C. C.P. United States v. City of Austin 14-cv-00533-LY W.D. Tex. United States v. City of Chicago 16-c-1969 N.D. Ill. United States v. Consol. City of Jacksonville 170-17M-393 U.S. D.O.J. United States v. Greyhound Lines, Inc. 16-67-RGA D. Del. USC Student Health Ctr. Settlement 18-cv-04258-SVW C.D. Cal. Viesse v. Saar's Inc. 17-2-7783-6 (SEA) Wash. Super. Ct. Wahl v. Yahoo! Inc. 17-cv-2745 (BLF) N.D. Cal. Walton v. AT&T Servs., Inc. 15-cv-3653 (VC) N.D. Cal. Weber v. KASA Delivery LLC 16-2-13761-0 SEA Wash. Super. Ct. WellCare Sec. Litig. 07-cv-01940-VMC-EAJ M.D. Fla. Williams v. Children's Mercy Hosp. 1816-CV 17350 Mo. Cir. Ct. Williams v. Naples Hotel Group, LLC 18-cv-422-Orl-37-DCI M.D. Fla. Williams v. Weyerhaeuser Co. 995787 Cal. Super. Ct. Wilson v. LSB Indus., Inc. 15-cv-07614-RA-GWG S.D.N.Y. Wood v. AmeriHealth Caritas Serv. 19-2194 E.D. Pa. Wornicki v. Brokerpriceopinion.com, Inc. 13-cv-03258 (PAB) (KMT) D. Colo. Wright v. Lyft, Inc. 14-cv-00421-BJR W.D. Wash. Young v. World Wide Tech., LLC 2019-L-001728 Ill. 13th Cir. Ct.
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