Omar Vargas v. Ford Motor Company, No. 2:2012cv08388 - Document 193 (C.D. Cal. 2017)

Court Description: ORDER GRANTING FINAL APPROVAL AND ENTERING JUDGMENT by Judge Andre Birotte Jr. The Court awards $8,530,130.68 in attorneys' fees to Class Counsel and costs in the amount of $326,369.32. Lead Class Counsel must allocate the fees and cost reimbursement according to the fee allocation agreement among Class Counsel. The Court awards $10,000 to Plaintiff Omar Vargas, $7,500 to Plaintiffs Michelle Harris, Sharon Heberling, Robert Bertone and $5,000 to Plaintiffs Kevi n Klipfel, Andrea Klipfel, Maureen Cusick, Eric Dufour, Abigail Fisher, Christie Groshong, Virginia Otte, Tonya Patze, Lindsay Schmidt, Patricia Schwennker, Patricia Soltesiz, Joshua Bruno, Jason Porterfield, Jamie Porterfield for their services on behalf of the Class and $1,000 for each of the Plaintiffs in Anderson v. Ford Motor Co., No. 1:16-cv-01632 (N.D. Ill.) for their dismissal oftheir action with prejudice, and orders Defendant to pay those amounts to the Claims Administrator for distribution to those Class Representatives. See document for details. (lom)
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Omar Vargas v. Ford Motor Company Doc. 193 1 NOTE: CHANGES MADE BY THE COURT 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA—WESTERN DIVISION 10 11 12 13 14 15 16 17 18 19 OMAR VARGAS, ROBERT BERTONE, MICHELLE HARRIS, and SHARON HEBERLING individually, and on behalf of a class of similarly situated individuals, Plaintiffs, v. FORD MOTOR COMPANY, Case No.: CV12-08388 AB (FFMx) CLASS ACTION Hon. André Birotte Jr. [PROPOSED] ORDER GRANTING FINAL APPROVAL AND ENTERING JUDGMENT Date: Time: Place: October 2, 2017 10:00 am Courtroom 7B Defendant. 20 21 22 23 24 25 26 27 28 FINAL ORDER AND JUDGMENT Dockets.Justia.com 1 On April 25, 2017, the Court entered a Preliminary Approval Order that 2 preliminarily approved the proposed Settlement Agreement in this Litigation and 3 specified the manner in which Ford Motor Company (“Ford”) was to provide 4 Class Notice to the Class. All capitalized terms used herein shall have the same 5 meaning as defined in the Settlement Agreement, which was filed with the Court 6 on March 24, 2017 [Dkt. 121-1] and is incorporated by reference. 7 Following the dissemination of the Class Notice, all Class Members were 8 given an opportunity to request exclusion from the Class or object to the 9 Settlement Agreement (including Class Counsel’s request for attorneys’ fees and 10 expenses and the Class Representatives’ collective application for a Service 11 Award). Prospective Class Members who had a pending suit against Ford as of 12 the Notice Date were given an opportunity to opt-in. 13 A Fairness Hearing was held on October 2, 2017, at which time all 14 interested persons were given a full opportunity to state any objections to the 15 Settlement Agreement or to Class Counsel’s request for attorneys’ fees and 16 expenses and the Class Representatives’ collective application for Service 17 Awards. The Fairness Hearing was held more than 90 days after Ford provided 18 notice of the proposed Settlement to federal and state-level attorneys general as 19 required by 28 U.S.C. § 1715(b), thus complying with 28 U.S.C. § 1715(d). 20 Having read and fully considered the Settlement Agreement and all 21 submissions made in connection with it, the Court finds that the Settlement 22 Agreement is fair, reasonable and adequate and should be finally approved and the 23 Litigation dismissed with prejudice as to all Class Members who have not 24 excluded themselves from the Class, and without prejudice as to all persons who 25 timely and validly excluded themselves from the Class. Accordingly, 26 27 28 Page 1 FINAL ORDER AND JUDGMENT 1 2 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED AS FOLLOWS: 1. This Court has both subject matter jurisdiction and personal 3 jurisdiction as to this action and all Parties before it, including all Class Members. 4 The Court certifies the following Class for purposes of settlement only: 5 6 7 8 9 All current residents of the United States (including territories of the United States) who, prior to the Preliminary Approval Order, purchased or leased new or used Class Vehicles that (1) were originally sold in the United States (including territories of the United States) and (2) were equipped with the PowerShift Transmission. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Excluded from the Class are: (1) except as to the Named Plaintiffs in this Litigation and the Anderson plaintiffs, all owners or lessees of Class Vehicles who have filed and served litigation against Ford alleging problems with the PowerShift Transmission in Class Vehicles that was pending as of [insert Notice Date] and who do not dismiss their actions before final judgment and affirmatively elect to opt-in to the Settlement (Owners or lessees of Class Vehicles who dismiss such litigation and affirmatively opt-in to the Settlement shall be members of the Class for all purposes); (2) Ford’s officers, directors, employees, affiliates and affiliates’ officers, directors and employees; their distributors and distributors’ officers, directors, and employees; and Ford Dealers and Ford Dealers’ officers and directors; (3) judicial officers assigned to the Actions and their immediate family members, and any judicial officers who may hear an appeal on this matter; (4) all entities and natural persons who have previously executed and delivered to Ford releases of their claims based on the PowerShift Transmission; (5) all parties to litigation against Ford alleging problems with the PowerShift Transmission in Class Vehicles in which final judgment has been entered, and (6) all those otherwise in the Class who 28 Page 2 FINAL ORDER AND JUDGMENT timely and properly exclude themselves from the Class as provided in this Settlement. 1 2 3 4 5 2. The Class certified for the purposes of settlement satisfies all of the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3). 3. The Court appoints and finally approves Plaintiffs Omar Vargas, 6 Michelle Harris, Sharon Heberling, Robert Bertone, Kevin Klipfel, Andrea 7 Klipfel, Maureen Cusick, Eric Dufour, Abigail Fisher, Christi Groshong, 8 Virginia Otte, Tonya Patze, Lindsay Schmidt, Patricia Schwennker, Patricia 9 Soltesiz, Joshua Bruno, Jason Porterfield, and Jamie Porterfield as 10 11 representatives of the above-described Class. 4. The Court finds that Capstone Law APC, Berger & Montague, P.C. 12 and Zimmerman Law Group have demonstrable experience litigating consumer 13 and other class actions. The Court hereby appoints and finally approves them as 14 Class Counsel and designates Capstone Law APC as Lead Class Counsel. 15 5. The Court finds that the mailing of the Short Form Class Notice to 16 the Class, publication of the Publication Notice, and posting of the Long Form 17 Class Notice to the Settlement Website has been completed in conformity with 18 the Settlement Agreement and the Preliminary Approval Order. These forms of 19 notice, taken together, provided adequate notice of the proceedings, including the 20 proposed settlement terms as set forth in the Settlement Agreement. The Class 21 Notice fully satisfied due process requirements and the requirements of Rule 23 of 22 the Federal Rules of Civil Procedure. As executed the Class Notice was the best 23 notice practicable under the circumstances. 24 6. The Court finds that appropriate notice was given by Defendant to all 25 “appropriate State and Federal Officials” pursuant to 28 U.S.C. §1715(a), and that 26 no objections were filed. 27 28 7. The Court hereby finally approves the terms set forth in the Settlement Agreement and finds that the Settlement is, in all respects, fair, Page 3 FINAL ORDER AND JUDGMENT 1 reasonable and adequate, and directs the Parties to effectuate all remaining 2 provisions of the Settlement Agreement according to its terms. The Court finds 3 that the Settlement Agreement has been reached as a result of informed and non- 4 collusive, arm’s-length negotiations. The Court further finds that Plaintiffs and 5 Defendant have conducted extensive investigation and research into the factual 6 and legal aspects of Plaintiffs’ claims, and their attorneys were able to 7 reasonably evaluate their respective positions. 8 9 8. The Court also finds that the Parties, by settling now, will avoid additional and potentially substantial litigation costs, as well as delay and risks if 10 the Parties were to continue to litigate the case. Additionally, after considering 11 the prospective and monetary relief provided as part of the Settlement in light of 12 the challenges posed by continued litigation, the Court concludes that Class 13 Counsel secured fair, reasonable and adequate relief for Class Members. 14 9. The Settlement Agreement is not an admission of fault by Defendant 15 or by any other Released Party, nor is this Final Order and Judgment a finding on 16 the validity of any allegations or of any wrongdoing by Defendant or any other 17 Released Party. Neither this Final Order and Judgment, the Settlement 18 Agreement, nor any document referred to herein, nor any action taken to carry out 19 the Settlement Agreement, may be construed as, or may be used as, an admission 20 of any fault, wrongdoing, omission, concession, or liability whatsoever by or 21 against Defendant or any of the other Released Parties. 22 10. The Settlement Agreement shall be fully, finally, and forever 23 binding on Ford and all Plaintiffs, including all members of the Class who did 24 not opt out of this Settlement and have not been otherwise excluded pursuant to 25 the Settlement Agreement. 26 27 11. Having granted final approval to this Settlement, the Court dismisses on the merits and with prejudice Vargas v. Ford Motor Co., No. 2:12- 28 Page 4 FINAL ORDER AND JUDGMENT 1 cv-08388-AB (FFMx) (C.D. Cal.) and each and every action transferred and 2 consolidated with it, including Klipfel v. Ford Motor Co., No. 2:14-cv-02140-AB 3 (FFMx) (C.D. Cal.), and Cusick v. Ford Motor Company, Case No. 2:15-cv- 4 08831-AB (C.D. Cal.). In accordance with the Settlement, the plaintiffs in 5 Anderson v. Ford Motor Co., No. 1:16-cv-01632 (N.D. Ill.) are obligated to 6 dismiss that action with prejudice. In addition, the Court also dismisses all 7 claims which any Class Member alleged or could have alleged in any complaint, 8 action, or litigation, based upon the Transmission defect in the Class Vehicles. 12. 9 All Class Members were given a full and fair opportunity to 10 participate in the Fairness Hearing, and all Class Members who asked to be 11 heard were heard. The objections of Objectors Castilon, Shiple, Curtis, Saltz, 12 Debolt, Lott, Lutz, Olivant, Slomine, Woloszyn, Robinso, Rumao, Kellis, Price, 13 and Watson are hereby overruled. 13. 14 Opt-Outs: Members of the Class also have had a full and fair 15 opportunity to exclude themselves from the proposed Settlement and the Class. 16 Attached hereto as Exhibit A is a list setting forth the name of each person who, 17 as of September 29, 2017, submitted a valid request to be excluded from the 18 Class. 19 14. Persons listed on Exhibits A and E to Dkt. No. 176-1 filed opt-outs 20 that were defective and/or ambiguous. In an order that shall be issued 21 concurrently with this order, the Court is adopting the parties’ proposed 22 procedure to give these persons a reasonable opportunity to cure their defective 23 out-outs. Thereafter, the parties shall file a further Stipulation and Proposed 24 Order with a complete and final list of all opt-outs. Upon the Court’s adoption 25 of the final list of opt-outs, those additional individuals shall be deemed opted 26 out as of the date of this Final Approval Order. 27 15. Except with respect to confirming the final opt-out list and resolving 28 Page 5 FINAL ORDER AND JUDGMENT 1 other opt-out related issues, this Final Order and Judgment shall become 2 effective upon the date of its entry. Although the validity of some opt outs 3 remains to be decided, the Court determines pursuant to Federal Rule of Civil 4 Procedure 54(b) that there is no just reason to delay entry of a Final Order that 5 resolves all claims in this case as to all parties. 6 16. Having granted final approval to this Settlement, the Named 7 Plaintiffs and each Class Member hereby forever discharge the Released Parties 8 from all Released Claims. 9 17. To effectuate the Settlement, the Court hereby orders that all Class 10 Members who did not timely exclude themselves from the Settlement are barred, 11 enjoined, and forever restrained from commencing, prosecuting or asserting any 12 Released Claims against any Released Parties as set forth in Paragraph 16 above, 13 except that Class Members may continue to pursue claims in the Arbitration 14 Program as set forth in the Settlement Agreement and the Arbitration Rules. All 15 persons are barred, enjoined, and forever restrained from commencing, 16 prosecuting, or asserting any Released Claims against any Released Parties on 17 behalf of Class Members who did not timely exclude themselves from the 18 Settlement, except to the extent such persons may properly represent such Class 19 Members in the Arbitration Program established by the Settlement Agreement. 20 18. The Court hereby finds that all Class Members who have not made 21 their objections to the Settlement in the manner provided in the Class Notice are 22 deemed to have waived any objections by appeal, collateral attack or otherwise. 23 19. The Court has considered Plaintiffs’ Motion for Attorneys’ Fees, 24 Costs, and Service Awards separate from its consideration of the fairness, 25 reasonableness and adequacy of the Settlement Agreement. Any order or 26 proceedings relating to the Motion for Attorneys’ Fees, Costs, and Service 27 Awards, or any appeal from any order relating thereto or reversal or modification 28 Page 6 FINAL ORDER AND JUDGMENT 1 thereof, shall not disturb or affect this Final Order and Judgment or affect or 2 delay its finality. 3 20. The Court awards $8,530,130.68 in attorneys’ fees to Class Counsel 4 and costs in the amount of $326,369.32. Lead Class Counsel must allocate the 5 fees and cost reimbursement according to the fee allocation agreement among 6 Class Counsel. 7 21. The Court awards $10,000 to Plaintiff Omar Vargas, $7,500 to 8 Plaintiffs Michelle Harris, Sharon Heberling, Robert Bertone and $5,000 to 9 Plaintiffs Kevin Klipfel, Andrea Klipfel, Maureen Cusick, Eric Dufour, Abigail 10 Fisher, Christie Groshong, Virginia Otte, Tonya Patze, Lindsay Schmidt, Patricia 11 Schwennker, Patricia Soltesiz, Joshua Bruno, Jason Porterfield, Jamie Porterfield 12 for their services on behalf of the Class and $1,000 for each of the Plaintiffs in 13 Anderson v. Ford Motor Co., No. 1:16-cv-01632 (N.D. Ill.) for their dismissal of 14 their action with prejudice, and orders Defendant to pay those amounts to the 15 Claims Administrator for distribution to those Class Representatives. 16 22. If either (a) the Effective Date of the Settlement does not occur for 17 any reason whatsoever, or (b) the Settlement Agreement becomes null and void 18 pursuant to the terms of the Settlement Agreement, this Final Order and 19 Judgment shall be deemed vacated and shall have no force or effect whatsoever. 20 23. Without affecting the finality of the Final Order and Judgment in 21 any way, the Court retains continuing and exclusive jurisdiction over the Parties, 22 including the Class Members, to enforce the terms of the Final Order and 23 Judgment, and shall have continuing jurisdiction over the construction, 24 interpretation, implementation, and enforcement of the Settlement Agreement. 25 26 IT IS SO ORDERED, ADJUDGED, AND DECREED. Dated: October 18, 2017 ____ __________________________ The Hon. André Birotte Jr United States District Judge 27 28 Page 7 FINAL ORDER AND JUDGMENT EXHIBIT A