Jacob Glasser v. Volkswagen of America Inc et al, No. 2:2006cv02562 - Document 62 (C.D. Cal. 2008)
Court Description: ORDER AND FINAL JUDGMENT by Judge Audrey B. Collins: The Court hereby approves the terms of the Agreement which are incorporated herein for all purposes. The Court therefore orders that the Class, be certified for settlement purposes only. The action is dismissed with prejudice as to all Class Members who did not request exclusion from the Class in the time and manner provided in the Notice. The Court finds, pursuant to Rule 54(b), Fed. R. Civ. P., that there isno just reason for delay, and acco rdingly directs the Clerk to enter this Order and Final Judgment forthwith, which shall constitute a final determination of all issues in this action other than attorneys fees, costs, interest and expenses and the award of reasonable costs and expenses to the Representative Plaintiff. (See document for further details) (MD JS-6, Case Terminated). (ir)
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Jacob Glasser v. Volkswagen of America Inc et al Doc. 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JACOB GLASSER, on Behalf of Himself and All Others Similarly Situated and On Behalf of the General Public, ) ) ) ) ) Plaintiff, ) ) v. ) ) VOLKSWAGEN OF AMERICA, INC., ) and DOES 1 through 100, inclusive, ) ) Defendants. ) ________________________________ ) Case No.: CV06-2562 ABC (JTLx) CLASS ACTION [PROPOSED] ORDER AND FINAL JUDGMENT PURSUANT TO RULE 54(b), Fed. R. Civ. P. Judge: Honorable Audrey B. Collins Ctrm: 680, Roybal Federal Bldg. 19 20 21 22 23 24 25 26 27 28 Dockets.Justia.com 1 Having considered the Agreement of Settlement filed April 30, 2008, 2 including the exhibits annexed thereto (Docket No. 39) (the “Agreement”); the 3 Class Action Settlement Notice (“Notice”) having been duly given in accordance 4 with the prior Order of this Court; having given preliminary approval of the 5 Settlement as fair and adequate and directing notice to the Class; and pursuant to 6 such notice a fairness hearing having been held on September 22, 2008 for the 7 purpose of determining whether the terms of the Agreement are fair, reasonable 8 and adequate and should be approved by the Court in full settlement of the above- 9 captioned Litigation; having heard the attorneys for the Parties in support of the 10 Agreement and having considered all objections submitted to the Court; and upon 11 all papers filed and proceedings had herein and otherwise being fully informed; 12 and good cause having been demonstrated to this Court’s satisfaction under the 13 standards of applicable law and Federal Rules of Civil Procedure, in particular the 14 requirements of Rule 23, Fed. R. Civ. P. and the Court finding no just reason for 15 delay pursuant to Rule 54(b), Fed. R. Civ. P.: 16 It is hereby ORDERED, ADJUDGED AND DECREED as follows: 17 1. This Court has jurisdiction to enter this Order and Final Judgment of 18 dismissal. The Court has jurisdiction over the subject matter of this action 19 (“Litigation”) and over all Parties to the Litigation, including all Members of the 20 Class. 21 2. This Judgment hereby incorporates by reference the definitions in 22 the Agreement, and all terms used herein shall have the same meanings as set 23 forth in the Agreement. 24 3. The Court hereby approves the terms of the Agreement, which are 25 incorporated herein for all purposes, as fair, reasonable and adequate, with the 26 exception of attorneys’ fees, costs, interest and expenses and incentive payment 27 issues reserved for later decision pursuant to the provisions of paragraphs 15 and 28 1 1 16, infra, and the Order of this Court entered September 22, 2008 (Docket No. 2 58). 3 4. The Court finds, for purposes of implementation of the Agreement 4 only, as follows: the Class defined in paragraph 8 below is so numerous that 5 joinder of all members is impracticable; there are questions of law or fact 6 common to the Class; the claims of the Representative Plaintiff are typical of the 7 claims of the Class; the Representative Plaintiff has fairly and adequately 8 protected the interests of the Class; questions of law or fact arising in the 9 implementation of the Agreement common to the Class Members predominate 10 over questions of law or fact arising in the implementation of the Agreement 11 affecting only individual Class Members; and certification of the Class for 12 purposes of implementing the Agreement only is superior to other available 13 methods for the fair and efficient administration of the controversy. 14 Specifically, the Court finds that the Representative Plaintiff satisfies all of 15 the applicable criteria for class certification under Federal Rule of Civil Procedure 16 23(b)(3) and the United States Supreme Court’s decision in Amchem Products, 17 Inc. v. Windsor, 521 U.S. 591 (1997), in the context of settlement. The Court 18 finds that the Class Members are so numerous that joinder of all Class Members 19 is impracticable; that common questions of law and fact predominate over 20 questions affecting only individual Class Members; that the Representative 21 Plaintiff’s claims are typical of the claims of the Class; that the Representative 22 Plaintiff and his counsel have fairly and adequately represented and protected the 23 interests of all Class Members; and that a class action is superior to other 24 available methods for the fair and efficient adjudication of the controversy. 25 The numerosity requirement is met because the proposed Class comprises 26 over 3 million Members throughout the United States who purchased or leased 27 model year 2007 and earlier Volkswagen and/or Audi vehicles distributed by 28 2 1 Volkswagen of America, Inc. for sale in the United States and which are equipped 2 or furnished with keys or functionally similar devices which lock and unlock any 3 door, hatch or operational system on a vehicle (e.g., ignition, steering, braking, 4 engine management, etc.) in whole or in part through the matching of 5 electronically stored codes or other data strings which are uniquely applicable to a 6 specific vehicle, and it is wholly impracticable, if not impossible, to join 7 individual members of a class of this size and geographic dispersion. See Fed . R. 8 Civ. P. 23(a)(1); Int’l Molders’ & Allied Workers’ Local Union No. 164 v. 9 Nelson, 102 F.R.D. 457, 461 (N.D. Cal. 1983) (numerosity generally met if the 10 class consists of more than 40 members). 11 The commonality requirement is met because in the absence of class 12 certification and settlement, individual Class Members could be forced to litigate 13 core common issues of law and fact, all relating to disclosures concerning 14 Volkswagen and/or Audi Smart Keys, and the Defendant’s alleged common 15 course of conduct in relation to the Members of the Class. See Fed. R. Civ. P. 16 23(a)(2); Hanlon v. Chrysler Corp., 150 F. 2d 1011, 1019 (9th Cir. 1998). 17 The typicality requirement is satisfied because the Class Members’ claims 18 all arise from the same alleged events and alleged course of conduct and are based 19 on the same legal theory. See Fed. R. Civ. P. 23(a)(3); In re United Energy Corp. 20 Solar Power Modules Tax Shelter Invs. Sec. Litig., 122 F.R.D. 251, 256 (C.D. 21 Cal. 1988) (“United Energy”). 22 The adequacy of representation requirement is met here because the 23 Representative Plaintiff has the same interests as all Members of the Class and is 24 represented by experienced and competent counsel. See Fed. R. Civ. P. 23(a)(4); 25 United Energy, 122 F.R.D. at 257. 26 27 28 The Court further finds that common questions predominate over individual issues in this action. See Fed. R. Civ. P. 23(b)(3); Hanlon, 150 F.3d at 3 1 1022. The Court also finds that class treatment is superior to other means of 2 resolving the instant dispute, because employing the class device here will 3 conserve the resources of the judicial system and preserve public confidence in 4 the integrity of the system by avoiding the waste and delay of repetitive 5 proceedings and preventing the inconsistent adjudications of similar issues and 6 claims. See Hanlon, 150 F.3d at 1023. 7 5. Only 29 of the over 3,002,135 Class Members – 9.6 ten thousandths 8 of a percent (.00096%) of the total Class – have filed objections. These 9 objections to the Settlement have been considered and overruled. Further, 10 consistent with obligations under the Class Action Fairness Act, 28 U.S.C. §1715, 11 “appropriate federal officials” and “appropriate state officials” were notified of 12 the Settlement. Not one of the appropriate federal or state officials has objected. 13 6. Based on the above findings, the Court therefore orders that the 14 Class, as defined in paragraph 8 below, be certified for settlement purposes only 15 under Fed. R. Civ. P. 23, and directs consummation of all terms and provisions of 16 the Agreement. The Court has not determined, and this Order and Final 17 Judgment shall not constitute any finding or determination or evidence that this 18 action could properly have been litigated on behalf of any class. 19 7. Notice has been given to all Class Members known and reasonably 20 identifiable in satisfaction of the requirements of applicable law. The form, 21 content and method of dissemination of notice given to the Class Members as set 22 forth in the Notice and Summary Notice as provided for in the Order 23 Preliminarily Approving Settlement and Notice were adequate and reasonable and 24 constituted the best notice practicable under the circumstances and fully satisfied 25 the requirements of Rule 23 of the Federal Rules of Civil Procedure and due 26 process. 27 /// 28 4 1 8. 2 All current owners of record and/or lessees of model year 2007 and 3 earlier Volkswagen and/or Audi vehicles equipped with vehicle 4 “immobilizer” technology distributed by Volkswagen of America, 5 Inc. for sale in the United States which are equipped or furnished 6 with keys or functionally similar devices needed to enter, start and 7 operate a vehicle through the matching of electronically stored codes 8 or other data strings which are uniquely applicable to a specific 9 vehicle (hereinafter “SMART KEYS”). Excluded from the Class are 10 Defendant’s employees, officers and directors and Defendant’s legal 11 representatives, successors and assigns. 12 9. The Class is defined as: The action is dismissed with prejudice as to all Class Members who 13 did not request exclusion from the Class in the time and manner provided in the 14 Notice. 15 10. Volkswagen Group of America, Inc., sued hereunder under its 16 former name “Volkswagen of America, Inc.,” Audi of America LLC, AUDI AG, 17 a corporation organized and existing under the law of the Federal Republic of 18 Germany, Volkswagen AG, a corporation organized and existing under the law of 19 the Federal Republic of Germany, their present or former officers, directors, 20 employees, agents, heirs, executors, administrators, successors, reorganized 21 successors, assigns, subsidiaries, affiliates, parent, divisions (including but not 22 limited to “Audi” as herein defined) predecessors and authorized dealers shall be, 23 and the same hereby are, released and discharged from any and all claims, causes 24 of action and liability whatsoever, of every nature and kind whatsoever, known, 25 unknown, suspected or unsuspected, including, but not limited to, any claims for 26 compensatory and exemplary or punitive damages or equitable relief of any 27 nature, that the Representative Plaintiff or any Class Member made or could have 28 5 1 made in this Litigation any and all claims, demands, rights, liabilities and causes 2 of action of every nature and description whatsoever, known or unknown, 3 matured or unmatured, at law or in equity, existing under federal and/or state law, 4 that the Representative Plaintiff and/or any Class Member has or may have 5 against the Released Persons arising out of or related in any way to disclosures 6 regarding any original or replacement Smart Key, but do not include any claims 7 for personal injury, product defect or malfunction or damage to property. 8 Nothing in this release is intended to extend or limit any obligation of Defendant 9 under the terms of any warranty or under California Vehicle Code §9954. 10 11. Nothing contained in the Agreement or in this Order and Final 11 Judgment shall be deemed an admission or finding of wrongdoing by, or with 12 respect to, any party, nor shall anything contained in the Agreement. 13 12. All Members of the Class who did not duly request exclusion from 14 the Class in the time and manner provided in the Notice are hereby barred, 15 permanently enjoined and restrained from commencing or prosecuting any action, 16 suit, proceeding, claim or cause of action in any jurisdiction or court against 17 Defendant or any of the other entities or persons who are to be discharged as 18 noticed above in paragraph 10 based upon, relating to, or arising out of any of the 19 matters which are discharged and released pursuant to paragraph 10 hereof. 20 13. The claims of the persons who elected to be excluded from the Class 21 in the time and manner provided in the Notice are listed on the Schedule of 22 Persons Electing to be Excluded from the Class attached hereto as Exhibit A. 23 14. If the Effective Date of the Settlement, as defined in the Agreement, 24 does not occur for any reasons whatsoever, this Order and Final Judgement shall 25 be deemed vacated and shall have no force and effect whatsoever. 26 27 28 15. The Court will separately rule and enter judgment on the issues of attorneys’ fees, costs, interest and expenses and incentive award to the 6 1 Representative Plaintiff, Jacob Glasser, and shall separately enter judgment on 2 such issues, in accordance with this Court’s Order entered September 22, 2008 3 (Docket No. 58) herein. 4 16. Without affecting the finality of the Order and Final Judgment in any 5 way, the Court reserves continuing and exclusive jurisdiction over the Parties, 6 including all Members of the Class as defined above, and the execution, 7 consummation, administration and enforcement of the terms of the Agreement 8 and the award of attorneys’ fees, costs, interest and expenses and the award of 9 reasonable costs and expenses to the Representative Plaintiff pursuant to the 10 Agreement and any other matter related or ancillary to the foregoing. 11 17. The Court finds that during the course of the Litigation, the Parties 12 and their respective counsel at all times complied with the requirements of Rule 13 11 of the Federal Rules of Civil Procedure. 14 18. The Court finds, pursuant to Rule 54(b), Fed. R. Civ. P., that there is 15 no just reason for delay, and accordingly directs the Clerk to enter this Order and 16 Final Judgment forthwith, which shall constitute a final determination of all 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 7 1 issues in this action other than attorneys’ fees, costs, interest and expenses and the 2 award of reasonable costs and expenses to the Representative Plaintiff. 3 IT IS SO ORDERED. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DATED: October 06, 2008 HONORABLE AUDREY B. COLLINS UNITED STATES DISTRICT COURT JUDGE Respectfully Submitted by: Jordan L. Lurie (SBN 130013) jlurie@weisslurie.com Leigh A. Parker (170565) lparker@weisslurie.com Zev B. Zysman (176805) zzysman@weisslurie.com WEISS & LURIE 10940 Wilshire Boulevard, 23rd Floor Los Angeles, CA 90024 Telephone: (310) 208-2800 Facsimile: (310) 209-2348 Attorneys for Plaintiff and the Class Craig L. Winterman (SBN 75220) cwinterman@hrla.net HERZFELD & RUBIN, LLP 1925 Century Park East Los Angeles, CA 90067 Telephone: (310) 553-0451 Facsimile: (310) 553-0648 Daniel V. Gsovski (admitted pro hac vice) dgsovski@herzfeld-rubin.com HERZFELD & RUBIN, P.C. 40 Wall Street New York, NY 10005-2349 Telephone: (212) 471-8500 Facsimile: (212) 344-3333 Attorneys for Defendant 24 25 26 27 28 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Glasser v. Volkswagen of America, Inc., Case No. CV06-2562 ABC (JTLx) Order and Final Judgment - Exhibit A SCHEDULE OF PERSONS ELECTING TO BE EXCLUDED FROM THE CLASS 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. Raul Abuchaibe Antoinette Lynne Alfaro Julia Babson Alling Jonathan Bridges J.H. Burks Veronica Creek Evelyn Davis-Frazier Harold F. and Carol Dreyer Shirley D. Dugan David A. Gallo Jonathan Gaskamp Louise Anita Ham Mary Ann Henry Caron L. Kline Rodolfo Llobet Daniel Michael Malmgren Eric S. Martin Kelli McIntyre Stephen E. and Barbara R. Mouring Phillip Neale Douglas G. Noble Mike Orlin Polly Pureheart Rick Saban Diane Sacks Timothy P. Scanlan Carol Siedelmann James R. Smith Lewis F. Staples Reginald A. Thatcher Cathy A. White 21 22 23 24 25 26 27 28 Exhibit A Page 1 of 1
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