1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

IN RE: AUTOMOTIVE PARTS 

ANTITRUST LITIGATION 

In re: Anti-Vibrational Rubber Parts 

In re: Automotive Constant Velocity Joint Boot 

Products 

 

Master File No. 12-md-02311 

Hon. Marianne O. Battani 

Case No. 2:13-cv-00802 

Case No. 2:14-cv-02902 

 

THIS DOCUMENT RELATES TO: 

Automobile Dealership Actions 

 AUTOMOBILE DEALER PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL 

OF PROPOSED SETTLEMENT WITH TOYO DEFENDANTS AND 

PROVISIONAL CERTIFICATION OF SETTLEMENT CLASSES 

 Pursuant to Federal Rule of Civil Procedure 23(c) and (e), Automobile Dealer Plaintiffs hereby 

move the Court for an Order to: 

(1) Preliminarily approve the proposed settlement of the above-captioned litigation with 

Toyo Tire & Rubber Co., Ltd., Toyo Tire North America Manufacturing Inc., Toyo 

Tire North America OE Sales LLC, and Toyo Automotive Parts (USA), Inc. 

(collectively, “TOYO Defendants”); 

(2) Provisionally approve the proposed Settlement Classes; 

(3) Stay the proceedings against the TOYO Defendants in accordance with the terms of the 

Settlement Agreement; 

(4) Authorize Automobile Dealer Plaintiffs to provide notice of the Settlement 

 Agreement to members of the Settlement Classes in a form approved by the Court at a 

 later time; and 

(5) Appoint Cuneo, Gilbert & LaDuca, LLP and Larson King, LLP as Settlement Class 

Counsel for purposes of this settlement. 

In support of this Motion, Automobile Dealer Plaintiffs rely upon and incorporate by reference 

herein the facts and legal arguments set forth in the accompanying Memorandum of Law. 

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 The parties do not request a hearing for this motion. The TOYO Defendants consent to this 

motion and to the entry of the proposed order. 

Dated: October 12, 2017 

 

 By: /s/ Gerard V. Mantese 

Gerard V. Mantese (P34424) 

MANTESE HONIGMAN, P.C.

1361 E. Big Beaver Road 

Troy, MI 48083 

Telephone: (248) 457-9200 

Facsimile: (248) 457-9201 

gmantese@manteselaw.com 

Interim Liaison Counsel for the Automobile Dealer Plaintiffs 

Jonathan W. Cuneo 

CUNEO GILBERT & LADUCA, LLP 

4725 Wisconsin Ave., NW 

Suite 200 

Washington, DC 20016 

Telephone: (202) 789-3960 

Facsimile: (202) 789-1813 

jonc@cuneolaw.com 

Shawn M. Raiter 

LARSON KING, LLP 

2800 Wells Fargo Place 

30 East Seventh Street 

St. Paul, MN 55101 

Telephone: (651) 312-6500 

Facsimile: (651) 312-6618 

sraiter@larsonking.com 

Interim Co-Lead Counsel for the Automobile Dealer Plaintiffs

2:14-cv-02902-MOB-MKM Doc # 48 Filed 10/12/17 Pg 2 of 46 Pg ID 856
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

IN RE AUTOMOTIVE PARTS 

ANTITRUST LITIGATION 

In re: Anti-Vibrational Rubber Parts 

In re: Automotive Constant Velocity Joint 

Boot Products 

Master File No. 12-md-02311 

Honorable Marianne O. Battani 

Case No. 2:13-cv-00802 

Case No. 2:14-cv-02902 

THIS DOCUMENT RELATES TO 

Automobile Dealership Actions 

MEMORANDUM IN SUPPORT OF AUTOMOBILE 

DEALER PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF 

PROPOSED SETTLEMENT WITH TOYO DEFENDANTS AND 

PROVISIONAL CERTIFICATION OF SETTLEMENT CLASSES 

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STATEMENT OF ISSUES PRESENTED 

1. Whether Automobile Dealer Plaintiffs’ (“ADs”) settlement with Toyo Tire & Rubber Co., 

Ltd., Toyo Tire North America Manufacturing Inc., Toyo Tire North America OE Sales LLC, 

and Toyo Automotive Parts (USA), Inc. (collectively, “TOYO” or “TOYO Defendants”), 

embodied in the Settlement Agreement entered into on September 14, 2017 (“Settlement 

Agreement”) and attached hereto as Exhibit 1, is fair, reasonable, and adequate and should be 

preliminarily approved; 

 

2. Whether the Court should provisionally certify the Settlement Classes under Federal Rule of 

Civil Procedure (“Rule”) 23(a) and (b)(3); 

3. Whether the Court should stay the proceedings by ADs against TOYO in accordance with 

the terms of the Settlement Agreement; 

4. Whether the Court should authorize Settlement Class Counsel to provide notice of the 

Settlement Agreement to Members of the Settlement Classes (as defined in the Settlement 

Agreement) at a later time;1 and 

5. Whether the Court should appoint Cuneo, Gilbert & LaDuca, LLP and Larson King, LLP as 

Settlement Class Counsel for these settlements. 

 

 

1

 Unless otherwise defined, capitalized terms shall have the meaning ascribed to them in the Settlement

Agreement. 

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CONTROLLING OR MOST APPROPRIATE AUTHORITIES 

Fed. R. Civ. P. 23 

Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) 

Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184 (2013) 

Cason-Merenda v. VHS of Mich., Inc., 2013 U.S. Dist. LEXIS 131006 (E.D. Mich. Sept. 13, 2013) 

Griffin v. Flagstar Bancorp, Inc., 2013 U.S. Dist. LEXIS 173702 (E.D. Mich. Dec. 12, 2013) 

In re Am. Med. Sys., Inc., 75 F.3d 1069 (6th Cir. 1996) 

In re Cardizem CD Antitrust Litig., 218 F.R.D. 508 (E.D. Mich. 2003) 

In re Corrugated Container Antitrust Litig., 1981 WL 2093 (S.D. Tex. Jan. 27, 1981) 

In re Foundry Resins Antitrust Litig., 242 F.R.D. 393 (S.D. Ohio 2007) 

In re Linerboard Antitrust Litig., 292 F. Supp. 2d 631 (E.D. Pa. 2003) 

In re Packaged Ice Antitrust Litig., 2011 U.S. Dist. LEXIS 17255 (E.D. Mich. Feb. 22, 2011) 

In re Scrap Metal Antitrust Litig., 527 F.3d 517 (6th Cir. 2008) 

In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838 (6th Cir. 2013) 

IUE-CWA v. Gen. Motors Corp., 238 F.R.D. 583 (E.D. Mich. 2006) 

Sheick v. Auto Component Carrier LCC, 2010 U.S. Dist. LEXIS 110411 (E.D. Mich. Oct. 18, 2010) 

 

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TABLE OF CONTENTS 

Page 

PRELIMINARY STATEMENT .................................................................................................... 1

THE BASIC TERMS AND BACKGROUND OF THE SETTLEMENT AGREEMENT .......... 3

ARGUMENT ................................................................................................................................. 9

I. Preliminary Approval Should be Granted Because the Proposed Settlements 

Fall Well Within the Range of Possible Approval. ................................................... 9

A. The Settlement Agreement Achieves an Excellent Result for the 

Proposed Settlement Classes, Particularly Given the Expense, 

Duration, and Uncertainty of Continued Litigation. ....................................... 14

B. The Settlement Agreement is the Result of Thorough Arm’s-Length 

Negotiations Conducted by Highly Experienced Counsel. ............................ 17

II. The Proposed Settlement Classes Should be Provisionally Certified Pursuant 

to Rule 23. ............................................................................................................. 19

A. The Proposed Settlement Classes Meet the Requirements of Rule 

23(a). ........................................................................................................................ 21

i. The Proposed Settlement Classes are so Numerous That it is 

Impracticable to Bring All Class Members Before the Court. ........ 22

ii. Automobile Dealer Plaintiff Class Representatives and the 

Proposed Settlement Classes Share Common Legal and 

Factual Questions. ......................................................................... 23

iii. Automobile Dealer Plaintiff Class Representatives’ Claims are 

Typical of the Claims of the Members of the Proposed 

Settlement Classes. ........................................................................ 25

iv. Proposed Settlement Class Counsel and Automobile Dealer 

Plaintiff Class Representatives Will Fairly and Adequately 

Protect the Interests of the Proposed Settlement Classes. ............. 26

B. The Proposed Settlement Classes Meet the Requirements of Rule 

23(b)(3). .................................................................................................... 28

i. Common Questions of Law and Fact Predominate. ...................... 28

ii. A Class Action is the Superior Method to Adjudicate These 

Claims. .......................................................................................... 31

C. The Proposed Settlement Classes Meet the Requirements of Rule 

23(b)(2). .................................................................................................... 33

III. Notice to the Class Members. ............................................................................... 33

CONCLUSION ............................................................................................................................ 34

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TABLE OF AUTHORITIES 

Page(s) 

Federal Cases

Agretti v. ANR Freight Sys., Inc., 

982 F.2d 242 (7th Cir. 1992) ....................................................................................................... 10 

Amchem Prods., Inc. v. Windsor, 

521 U.S. 591 (1997) ........................................................................................................ 23, 24, 26 

Amgen Inc. v. Conn. Retirement Plans & Trust Funds, 

133 S.Ct. 1184 (2013) ........................................................................................................... 17, 24 

Bacon v. Honda of America Mfg., Inc., 

370 F.3d 565 (6th Cir. 2004) ....................................................................................................... 18 

Blades v. Monsanto Co., 

400 F.3d 562 (8th Cir. 2005) ....................................................................................................... 25 

Bobbitt v. Acad. of Reporting, 

2009 WL 2168833 (E.D. Mich. Jul. 21, 2009) ............................................................................. 10 

Bowers v. Windstream Ky. East, LLC, 

Civil Action No. 3:09-CV-440-H, 2013 U.S. Dist. LEXIS 157242 

(W.D. Ky. Nov. 1, 2013) ............................................................................................................ 16 

Cason-Merenda v. VHS of Mich., Inc., 

Case No. 06-15601, 2013 U.S. Dist. LEXIS 131006 

(E.D. Mich. Sept. 13, 2013) ................................................................................ 17, 19, 20, 21, 23 

Clark Equip. Co. v Int’l Union of Allied Industrial Workers of Am., 

803 F.2d 878 (6th Cir. 1986) ....................................................................................................... 10 

Comcast Corp. v. Behrend, 

133 S.Ct. 1426 (2013) ................................................................................................................. 24 

Cordes & Co. Financial Services, Inc. v. A.G. Edwards & Sons, Inc., 

502 F.3d 91 (2d Cir. 2007) .......................................................................................................... 25 

Date v. Sony Elecs., Inc., 

Case No. 07-15474, 2013 U.S. Dist. LEXIS 108095 

(E.D. Mich. July 31, 2013) .......................................................................................................... 19 

Dillworth v. Case Farms Processing, Inc., 

No. 5:08-cv-1694, 2010 U.S. Dist. LEXIS 20446 

(N.D. Ohio Mar. 8, 2010) ........................................................................................................... 26 

Fidel v. Farley, 

534 F.3d 508 (6th Cir. 2008) ....................................................................................................... 27 

Gautreaux v. Pierce, 

690 F.2d 616 (7th Cir. 1982) ........................................................................................................ 11 

2:14-cv-02902-MOB-MKM Doc # 48 Filed 10/12/17 Pg 7 of 46 Pg ID 861
v 

Golden v. City of Columbus, 

404 F.3d 950 (6th Cir. 2005) ....................................................................................................... 18 

Griffin v. Flagstar Bancorp, Inc., 

Case No. 2:10-cv-10610, 2013 U.S. Dist. LEXIS 173702 

(E.D. Mich. Dec. 12, 2013) ........................................................................................ 9, 16, 19, 21 

Hyland v. Homeservices of Am., Inc., 

Case No. 3:05-CV-612-R, 2008 U.S. Dist. LEXIS 90892

(W.D. Ky. Nov. 6, 2008) ............................................................................................................ 18 

In re Aluminum Phosphide Antitrust Litig., 

160 F.R.D. 609 (D. Kan. 1995) .................................................................................................. 19

In re Am. Med. Sys., Inc., 

75 F.3d 1069 (6th Cir. 1996) ................................................................................................. 18, 21 

In re Ampicillin Antitrust Litig., 

82 F.R.D. 652 (D.D.C. 1979) ..................................................................................................... 15 

In re Automotive Wire Harness Sys. Antitrust Litig., 

Case No. 12-MD-02311 (E.D. Mich. Mar. 8, 2012) .................................................................... 15 

In re Blood Reagents Antitrust Litig., 

283 F.R.D. 222 (E.D. Pa. 2012) .................................................................................................. 25

In re Cardizem CD Antitrust Litig., 

218 F.R.D. 508 (E.D. Mich. 2003) ....................................................................................... passim 

In re Chambers Dev. Sec. Litig., 

912 F. Supp. 822 (W.D. Pa. 1995) .............................................................................................. 13 

In re Delphi Corp. Sec. Derivatives & ERISA Litig., 

248 F.R.D. 483 (E.D. Mich. 2008) .............................................................................................. 16 

In re Dun & Bradstreet Credit Servs. Customer Litig., 

130 F.R.D. 366 (S.D. Ohio 1990) ............................................................................................... 16 

In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 

No. M 02-1486 PJH, 2006 U.S. Dist. LEXIS 39841 

(N.D. Cal. June 5, 2006) ............................................................................................................. 19 

In re Farmers Ins. Exchange, Claims Representatives’ Overtime Pay Litig., 

481 F.3d 1119 (9th Cir. 2007) ..................................................................................................... 13 

In re Foundry Resins Antitrust Litig., 

242 F.R.D. 393 (S.D. Ohio 2007) ........................................................................................ passim 

In re Packaged Ice Antitrust Litig., 

Case No. 08-MD-01952, 2011 U.S. Dist. LEXIS 17255 

(E.D. Mich. Feb. 22, 2011) .................................................................................................. passim 

In re Packaged Ice Antitrust Litig., 

No. 08-MD-01952, 2010 WL 3070161 (E.D. Mich. Aug. 2, 2010) .............................................. 11 

2:14-cv-02902-MOB-MKM Doc # 48 Filed 10/12/17 Pg 8 of 46 Pg ID 862
vi 

In re Potash Antitrust Litig., 

159 F.R.D. 682 (D. Minn. 1995) ................................................................................................. 23 

In re Pressure Sensitive Labelstock Antitrust Litig., 

584 F. Supp. 2d 697 (M.D. Pa. 2008) .......................................................................................... 14 

In re Rent-Way Sec. Litig., 

305 F.Supp.2d 491 (W.D. Pa. 2003) ........................................................................................... 13 

In re Scrap Metal Antitrust Litig., 

527 F.3d 517 (6th Cir. 2008) ........................................................................................... 23, 24, 25 

In re Southeastern Milk Antitrust Litig., 

Master File No. 2:09-MD-1000, 2010 U.S. Dist. LEXIS 94223 

(E.D. Tenn. Sept. 7, 2010) .......................................................................................................... 18 

In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig., 

Case No. 1:01-CV-9000, 2001 U.S. Dist. LEXIS 26714 

(E.D. Ohio Oct. 19, 2001) .......................................................................................................... 11 

In re Universal Serv. Fund Tel. Billing Practices Litig., 

219 F.R.D. 661 (D. Kan. 2004) .................................................................................................. 26

In re Uranium Antitrust Litig., 

617 F.2d 1248 (7th Cir. 1980) ..................................................................................................... 15 

In re Urethane Antitrust Litig., 

251 F.R.D. 629 (D. Kan. 2008) .................................................................................................. 25

In re Visa Check/MasterMoney Antitrust Litig., 

280 F.3d 124 (2d Cir. 2001) ........................................................................................................ 25 

In re Vitamins Antitrust Litig., 

209 F.R.D. 251 (D.D.C. 2002) .................................................................................................... 24 

In re Warfarin Sodium Antitrust Litig., 

391 F.3d 516 (3d Cir. 2004) ........................................................................................................ 13 

In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 

722 F.3d 838 (6th Cir. 2013) ................................................................................................ passim 

Int’l Union, UAW v. Ford Motor Co., 

Case Nos. 05-74730, 06-10331, 2006 U.S. Dist. LEXIS 70471 

(E.D. Mich. July 13, 2006) .................................................................................................... 10, 20 

IUE-CWA v. Gen. Motors Corp., 

238 F.R.D. 583 (E.D. Mich. 2006) .......................................................................................... 9, 15 

Karkoukli’s, Inc. v. Dohany, 

409 F.3d 279 (6th Cir. 2005) ....................................................................................................... 27 

Leonhardt v. ArvinMeritor, Inc., 

581 F. Supp. 2d 818 (E.D. Mich. 2008) ...................................................................................... 16 

Levva v. Medline Indus, Inc., 

716 F.3d 510 (9th Cir. 2013) ....................................................................................................... 24 

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vii 

Marcus v. Dep’t of Revenue, 

206 F.R.D. 509 (D. Kan. 2002) .................................................................................................. 22

Miller v. Univ. of Cincinnati, 

241 F.R.D. 285 (S.D. Ohio 2006) ............................................................................................... 18 

Powers v. Hamilton Cnty. Public Defender Comm., 

501 F.3d 595 (6th Cir. 2007) ....................................................................................................... 23 

Rankin v. Rots, 

No. 02-cv-71045, 2006 U.S. Dist. LEXIS 45706 

(E.D. Mich. June 28, 2006) ......................................................................................................... 11 

Reed v. Advocate Health Care, 

268 F.R.D. 573 (N.D. Ill. 2009) .................................................................................................. 25

Robbins v. Koger Props., Inc., 

116 F.3d 1441 (11th Cir. 1997) ................................................................................................... 13 

Senter v. Gen. Motors Corp., 

532 F.2d 511 (6th Cir. 1976) ....................................................................................................... 21 

Sheick v. Auto Component Carrier LCC, 

Case No. 2:09-cv-14429, 2010 U.S. Dist. LEXIS 110411 

 (E.D. Mich. Oct. 18, 2010) ........................................................................................................ 15 

Stout v. J.D. Byrider, 

228 F.3d 709 (6th Cir. 2000) ....................................................................................................... 20 

Thacker v. Chesapeake Appalachia, L.L.C., 

259 F.R.D. 262 (E.D. Ky. 2009) ........................................................................................... 15, 27 

UAW v. Gen. Motors. Corp., 

497 F.3d 615 (6th Cir. 2007) ......................................................................................................... 9 

Wal-Mart Stores, Inc. v. Dukes, 

131 S.Ct. 2541 (2011) ................................................................................................................. 17 

Rules 

Fed. R. Civ. P. 23 ............................................................................................................................................. 17 

Fed. R. Civ. P. 23(a) ............................................................................................................... 17, 20, 21, 23, 26 

Fed. R. Civ. P. 23(a)(1) .................................................................................................................................... 18 

Fed. R. Civ. P. 23(a)(2) ............................................................................................................................. 19, 20 

Fed. R. Civ. P. 23(a)(3) ............................................................................................................................. 20, 21 

Fed. R. Civ. P. 23(a)(4) .................................................................................................................................... 21 

Fed. R. Civ. P. 23(b)(2)............................................................................................................................. 26, 27 

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Fed. R. Civ. P. 23(b)(3)....................................................................................................................... 23, 24, 25 

Fed. R. Civ. P. 23(b)(3)(D) ............................................................................................................................. 26 

Fed. R. Civ. P. 23(c)(2)(B)............................................................................................................................... 27 

Fed. R. Civ. P. 23(e) ......................................................................................................................................... 27 

Fed. R. Civ. P. 23(e)(1) .................................................................................................................................... 27 

Fed. R. Civ. P. 23(g) ......................................................................................................................................... 22 

Cases

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 

(2d ed. 1990) ................................................................................................................................................. 10 

HERBERT B. NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS (4th ed. 2005) ..................... 11 

HERBERT B. NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS (3d ed. 1992) ...................... 24 

MANUAL FOR COMPLEX LITIGATION (FOURTH) (2004) ............................................................................ 10 

MANUAL FOR COMPLEX LITIGATION (THIRD) (1995) ............................................................................... 11 

MANUAL FOR COMPLEX LITIGATION (SECOND) (1986) ............................................................................ 10 

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Automobile Dealership Plaintiffs (“ADs”), on behalf of themselves and all others similarly 

situated, by and through undersigned Interim Co-Lead Class Counsel, respectfully submit this 

memorandum in support of their motion seeking preliminary approval of a settlement with TOYO 

and provisional certification of the proposed Settlement Classes. 

PRELIMINARY STATEMENT 

 Anti-Vibrational Rubber Parts and Automotive Constant Velocity Joint Boot Products are 

among the Automotive Parts at issue in these coordinated proceedings, In re Automotive Parts Antitrust 

Litigation (“Auto Parts”), MDL No. 2311. For this settlement, “Automotive Parts” includes each of 

the following automotive parts, as well as their respective components, and modules and assemblies 

for which the parts are a component: 

“Anti-Vibration Rubber Parts” are comprised primarily of rubber and metal and are 

installed in automobiles to reduce engine and road vibration. Anti-Vibration Rubber 

Parts are installed in suspension systems and engine mounts, as wells as other parts of 

an automobile. A vehicle can have numerous Anti-Vibration Rubber Parts. 

“Automotive Constant-Velocity-Joint Boot Products” are composed of rubber or 

plastic, and are used to cover the constant-velocity-joints of an automobile to protect 

the joints from contaminants. 

These actions arise from an alleged conspiracy among some of the automotive industry’s largest 

manufacturers, marketers, and sellers of Automotive Parts, including Anti-Vibrational Rubber Parts 

and Automotive Constant Velocity Joint Boot Products, to fix the prices, rig bids, and allocate the 

market and customers in the United States for such products. For pretrial purposes, this Court 

previously consolidated and coordinated the ADs cases. The Court also appointed the undersigned 

firms Interim Co-Lead Class Counsel and Interim Liaison Counsel for the Automobile Dealer Actions 

in the Master Docket for MDL No. 2311. See Case Management Order, Master Docket No. 12-md2311 (Aug. 7, 2012, ECF no. 271). Throughout these cases, Interim Co-Lead Class Counsel has 

represented the interests of ADs in these actions, including in settlement negotiations with TOYO. 

These proposed settlements are a result of those efforts. 

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The United States Department of Justice (“DOJ”) has been investigating conspiracies in the 

market for automotive parts since at least as early as February 2010, and the Federal Bureau of 

Investigation (“FBI”) has conducted an ongoing federal antitrust investigation into price fixing, bid 

rigging and other anticompetitive conduct in the automotive parts industry. As a result of the DOJ 

investigation, TOYO (1) agreed to plead guilty and pay a $120 million criminal fine for engaging in a 

conspiracy to suppress and eliminate completion by agreeing to allocate sales of, to rig bids for, and

to fix, raise, and maintain prices of automotive parts sold to Toyota Motor Corporation, Nissan Motor 

Corporation, Fuji Heavy Industries, Ltd., and certain of their subsidiaries, affiliates, and suppliers in 

the United States and elsewhere, from at least as early as March 1996 through at least May 2012, and 

(2) agreed to cooperate with the DOJ in its investigation into alleged antitrust violation as to 

automotive parts. See Plea Agreement ¶¶ 2, 9, United States v. Toyo Tire & Rubber Co., Ltd., Case No. 

3:13-cr-00529-JZ (N.D. Ohio Feb. 6, 2014) (ECF no. 22). (Ex. 2.) 

Although TOYO continues to deny any liability, the settlements between the ADs and TOYO 

will result in a payment of $11,400,000.00. Settlement Agreement ¶ 16. The settlements also require 

TOYO to provide cooperation in the form of attorney proffers, interviews with and depositions of 

witnesses, and the production of certain documents (including transactional data), related to the claims 

asserted in these cases. Such cooperation will assist the ADs in this litigation and the ability to obtain 

such information informally is valuable. 

 As with other AD settlements, TOYO’s sales will remain in the case for purposes of 

computing the treble damages claim against any non-settling Defendants and shall be part of any joint 

and several liability claims against future Defendants. See Settlement Agreement ¶ 61. The ADs and 

the proposed Settlement Classes retain their ability to recover from the remaining or future 

Defendants, the entire damages caused by the alleged conspiracies, even those attributable to TOYO, 

less only the amount paid by TOYO in settlement. 

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 ADs and counsel believe, for all the reasons set forth, the settlement with TOYO is in the best 

interest of the proposed members of the Settlement Classes and merits the Court’s preliminary 

approval. ADs therefore request the entry of an Order: 

 1. Preliminarily approving the Settlements; 

 2. Provisionally certifying the proposed Settlement Classes; 

 3. Staying the proceedings against TOYO in accordance with the terms of 

 the Settlement Agreement; 

4. Authorizing Settlement Class Counsel to defer providing notice of the Settlement 

Agreement to class members until a later time; and 

5. Appointing Cuneo, Gilbert & LaDuca, LLP and Larson King, LLP as Settlement Class 

Counsel for these settlements. 

THE BASIC TERMS AND BACKGROUND OF THE SETTLEMENT AGREEMENT 

 The Settlement Agreement with TOYO arises from extensive arm’s length and good faith 

negotiations. In addition to hard-fought litigation with Defendants, counsel participated in factgathering sessions and informational meetings, as well as extensive negotiations that took place 

through telephone calls, in-person meetings, and other communications. 

Settlement Classes: The Settlement Agreement defines the Settlement Classes in this action 

as: 

“Anti-Vibrational Rubber Parts Settlement Class” is defined as: 

All Automobile Dealerships that, during the period from and including March 1, 1996 

through September 14, 2017, (a) indirectly purchased Anti-Vibrational Rubber Parts 

manufactured by the Defendants or any current or former subsidiary or affiliate 

thereof or any co-conspirator, or (b) purchased Vehicles for resale that contained 

Anti-Vibration Rubber Parts manufactured by the Defendants or any current or 

former subsidiary, affiliate thereof or co-conspirator. Excluded from the Settlement 

Class are Defendants, their parent companies, subsidiaries and affiliates, and coconspirators, federal governmental entities and instrumentalities of the federal 

government, states and their subdivisions, agencies and instrumentalities, and 

persons who purchased Anti-Vibrational Rubber Parts directly or for resale. 

“Automotive Constant-Velocity-Joint Boot Products Class” is defined as: 

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All Automobile Dealerships that, during the period from and including January 1, 

2006 through September 14, 2017, (a) indirectly purchased Automotive ConstantVelocity-Joint Boot Products manufactured by the Defendants or any current or 

former subsidiary or affiliate thereof or any co-conspirator, or (b) purchased 

Vehicles for resale that contained Automotive Constant-Velocity-Joint Boot 

Products manufactured by the Defendants or any current or former subsidiary, 

affiliate thereof or co- conspirator. Excluded from the Settlement Class are 

Defendants, their parent companies, subsidiaries and affiliates, and co-conspirators, 

federal governmental entities and instrumentalities of the federal government, states 

and their subdivisions, agencies and instrumentalities, and persons who purchased 

Automotive Constant- Velocity-Joint Boot Products directly or for resale. 

Settlement Agreement, ¶ 13. 

 Settlement Amount: TOYO has agreed to pay $11,400,000.00 within thirty (30) days of the 

entry of an order preliminarily approving this Agreement by the Court. Id. ¶ 26. The Settlement 

Amount shall be paid into an interesting-bearing escrow account at Huntington National Bank. Id. ¶ 

27. 

Cooperation: TOYO has agreed to provide cooperation to the proposed Settlement Classes. 

A general summary of TOYO’s cooperation obligations is provided below. The full extent of this 

cooperation is set forth in more detail in Section F of the Settlement Agreement. TOYO’s obligation 

to cooperate includes, among other things, the duty to provide: 

37. Identity of Individuals. Within five (5) business days of the Execution Date of this 

Agreement, Counsel for TOYO shall provide Settlement Class Counsel with the 

identity of all current and former employees, directors and officers of TOYO who: (1) 

were interviewed and/or prosecuted by any Government Entity in connection with 

alleged price-fixing, bid rigging and market allocation of Relevant Parts; (2) appeared 

before the grand jury in the DOJ’s investigation into alleged antitrust violations with 

respect to Relevant Parts; and/or (3) were disclosed to the DOJ as having knowledge 

or information relating to the DOJ’s investigation into alleged antitrust violations with 

respect to Relevant Parts. 

39. DOJ Documents. To the extent not already produced, Toyo shall produce to 

Settlement Class Counsel non-privileged Documents, including any translations, 

provided to or seized by the DOJ in connection with its investigations into potential 

violations of competition laws with respect to the Relevant Parts no later than fortyfive (45) days after the Execution Date. 

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42. Further Cooperation as to CVJ Boots. With respect to CVJ Boots, Toyo shall 

provide the following additional cooperation set forth in Paragraphs 43-45 below. 

43. Transactional Data. Toyo will use its best efforts to complete the production 

of transactional data no later than forty-five (45) days after preliminary approval by 

the Court of the Agreement concerning Toyo’s sales of CVJ Boots sold to Original 

Equipment Manufacturers, or other purchasers of CVJ Boots from January 1, 2004 

through the Execution Date. Toyo will only produce the data that exists as of the 

Execution Date of this Agreement and will not be obligated to perform any analyses 

of the data for Settlement Class Counsel. In addition, Toyo will provide, in response 

to a written request from Settlement Class Counsel, a single production of 

electronic transactional data generated during the two years after the Execution 

Date of this Agreement concerning CVJ Boots as it exists in Toyo’s electronic 

databases at the time of the request, within sixty (60) days of the receipt of such 

request. Toyo shall have no ongoing obligation to produce such data as it is 

generated. Toyo shall preserve such transactional data until two (2) years after the 

Execution Date of this Agreement. Toyo will produce transactional data only from 

existing electronic transaction databases, except that, to the extent Toyo has not 

recorded or maintained electronic transaction data for any period between January 

1, 2004 and two (2) years from the Execution Date of this Agreement for CVJ 

Boots, then Toyo will use reasonable efforts to produce existing hard copy records 

of sales transactions not recorded or maintained electronically in the existing 

electronic sales transaction database. 

44. Documents. Toyo will use its best efforts to complete the production of 

the following Documents, including all English translations, to the extent they exist 

no later than forty-five (45) days after preliminary approval by the Court of this 

Agreement: (1) Documents, including any translations, provided to or seized by 

Government Entities relating to their investigation into alleged competition 

violations with respect to CVJ Boots (excluding Documents provided to the DOJ, 

which shall be provided in accordance with Paragraph 39); (2) non-privileged 

Documents concerning CVJ Boots collected and reviewed in connection with a 

communication, meeting, or agreement regarding CVJ Boots, by any employee, 

officer, or director of Toyo with any employee, officer, or director of another 

manufacturer or seller of CVJ Boots, but that were not provided to or seized by 

Government Entities; (3) Documents sufficient to show Toyo’s determination of 

their prices for CVJ Boots; and (4) Documents concerning any requests for 

quotation (“RFQ”) from OEMs or post-award price adjustment, including any bids 

submitted in response to such RFQs, award notifications for such RFQs, and postaward price adjustments that were part of such RFQs for CVJ Boots (collectively 

“RFQ-related Documents”) that were subject to collusion. In addition, upon 

Automobile Dealership Plaintiffs’ reasonable request, Toyo shall within sixty (60) 

days produce RFQ-related Documents for up to ten (10) additional RFQs 

specifically identified by Automobile Dealership Plaintiffs. As to additional 

Documents in Toyo’s custody, possession or control concerning CVJ Boots that 

are not listed above, Toyo will consider in good faith any reasonable request by 

Automobile Dealership Plaintiffs to collect and produce such Documents provided 

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6 

the request would not impose undue burden on Toyo. 

45. Attorney Proffers and Witness Interviews. Additionally, Toyo shall use its best efforts 

to cooperate with Settlement Class Counsel as set forth in Paragraph 45 herein. 

(a) Within thirty (30) days of Settlement Class Counsel’s request, following 

preliminary approval of the Agreement by the Court, Toyo’s counsel will make 

themselves available at a mutually agreed location in the United States for up to 

three (3) meetings of one business day each to provide attorney’s proffer(s) of facts 

known to them. Thereafter, Toyo’s counsel will make themselves available for 

reasonable follow-up conversations in connection with the attorney’s proffer(s), and 

will use best efforts to respond to questions posed by Settlement Class Counsel. 

Automobile Dealership Plaintiffs and Settlement Class Counsel will not attribute 

any factual information obtained from any attorney proffers to Toyo or their 

counsel. Information provided in the attorneys’ proffer shall be governed by the 

Protective Order in the CVJ Boots Action, including the limitations contained in 

the Protective Order on the uses to which information may be put and the persons 

to whom disclosure may be made. Toyo further agrees to make no more than five 

(5) persons available for interviews and depositions, provide declarations or 

affidavits from the same persons, and make those persons available to testify at trial 

upon Settlement Class Counsel’s request. The interviews and depositions shall be 

conducted at a mutually agreed-upon location in the United States, and the 

depositions shall be limited to a total of seven (7) hours over one (1) day unless the 

deposition is in a language other than English, in which case the deposition shall be 

limited to a total of thirteen (13) hours over two (2) days. If any such interview or 

deposition takes place outside of the country of the witness’s residence, Settlement 

Class Counsel shall reimburse Toyo for such person’s economy class fare and up to 

$450 per day for lodging and expenses actually incurred. To the extent Settlement 

Class Counsel coordinates any such interview or deposition with End-Payor 

Settlement Class Counsel, Settlement Class Counsel and End-Payor Settlement 

Class Counsel shall collectively reimburse Toyo for such person’s economy class 

fare and up to $450 per day for lodging and expenses actually incurred. 

(b) In addition to its Cooperation obligations set forth herein, Toyo agrees 

to produce through affidavit(s), declaration(s) and/or at trial, in Settlement Class 

Counsel’s discretion, representatives qualified to authenticate, establish as business 

records, or otherwise establish any other necessary foundation for admission into 

evidence of any Documents or transactional data produced or to be produced by 

Toyo. Settlement Class Counsel agree to use their best efforts to obtain stipulations 

that would avoid the need to call Toyo witnesses at trial for the purpose of obtaining 

such evidentiary foundations. 

46. Further Cooperation as to AVRP. With respect to the Anti-Vibrational Rubber 

Parts Action, in the event that: (1) Plaintiffs name a new Defendant; or (2) the 

pending settlements with (a) Bridgestone Corporation and Bridgestone APM 

Company (“Bridgestone”), (b) Yamashita Rubber Co., Ltd. and YUSA Corp. 

(“Yamashita”), or (c) Sumitomo Riko Co. Ltd. and DTR Industries, Inc. 

(“Sumitomo Riko”) do not receive final approval or are rescinded or terminated for 

any reason and Automobile Dealership plaintiffs resume active litigation against 

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7 

Bridgestone, Yamashita, or Sumitomo Riko, Toyo shall provide the following 

additional cooperation set forth in Paragraphs 47-49. For purposes of this 

Paragraph, “final” shall have the meaning set forth in Paragraph 22. 

47. Transactional Data. Toyo previously completed its production of transactional 

data relating to AVRP in response to the End-Payor Plaintiffs’ requests in 

accordance with the Discovery Plan entered by the Court in the Anti-Vibrational 

Rubber Parts Action on November 4, 2016. Within forty-five (45) days after 

Settlement Class Counsel’s request, to the extent not already completed, Toyo will 

use its best efforts to complete the production of transactional data concerning 

Toyo’s sales of AVRP sold to Original Equipment Manufacturers, or other 

purchasers of AVRP from January 1, 2015 through the Execution Date. Toyo will 

only produce the data that exists as of the Execution Date of this Agreement and 

will not be obligated to perform any analyses of the data for Settlement Class 

Counsel. In addition, Toyo will provide, in response to a written request from 

Settlement Class Counsel, a single production of electronic transactional data 

generated during the two years after the Execution Date of this Agreement 

concerning AVRP as it exists in Toyo’s electronic databases at the time of the 

request, within sixty (60) days of the receipt of such request. Toyo shall have no 

ongoing obligation to produce such data as it is generated. Toyo shall preserve such 

transactional data for the period from January 1, 2015 through two (2) years after 

the Execution Date until sixty (60) days from the date that final judgment has been 

entered in the AVRP Action against all defendants unless this Agreement is 

rescinded, disapproved, or otherwise fails to take effect. For purposes of this 

Paragraph, “final” shall have the meaning set forth in Paragraph 22. Toyo will 

produce transactional data only from existing electronic transaction databases, 

except that, to the extent Toyo has not recorded or maintained electronic 

transaction data for any period between January 1, 2015 and two (2) years from 

the Execution Date of this Agreement, then Toyo will use reasonable efforts to 

produce existing hard copy records of sales transactions not recorded or maintained 

electronically in the existing electronic sales transaction database. 

48. Documents. Toyo previously completed its production of Documents relating 

to AVRP in response to the End Payor Plaintiffs’ requests in accordance with the 

Discovery Plan entered by the Court in the Anti-Vibrational Rubber Parts Action 

on November 4, 2016. As to additional Documents in Toyo’s possession, custody, 

or control concerning AVRP, Toyo will consider in good faith any reasonable 

request by Automobile Dealership Plaintiffs to collect and produce such 

Documents, provided the request would not impose an undue burden on Toyo. 

49. Attorney Proffers and Witness Interviews. Additionally, Toyo shall use its best efforts 

to cooperate with Settlement Class Counsel as set forth in Paragraph 49 herein. 

(a) Within thirty (30) days of Settlement Class Counsel’s request, Toyo’s 

counsel will make themselves available at a mutually agreed location in the United 

States for up to two (2) meetings of one business day each to provide attorney’s 

proffer(s) of facts known to them. Thereafter, Toyo’s counsel will make themselves 

available for reasonable follow-up conversations in connection with the attorney’s 

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8 

proffer(s), and will use best efforts to respond to questions posed by Settlement 

Class Counsel. Automobile Dealership Plaintiffs and Settlement Class Counsel will 

not attribute any factual information obtained from any attorney proffers to Toyo 

or their counsel. Information provided in the attorneys’ proffer shall be governed 

by the Protective Order in the AVRP Action, including the limitations contained in 

the Protective Order on the uses to which information may be put and the persons 

to whom disclosure may be made. Toyo further agrees to make five (5) persons 

available for interviews and depositions, provide declarations or affidavits from up 

to ten (10) persons, and make up to ten (10) persons available to testify at trial upon 

Settlement Class Counsel’s request. The interviews and depositions shall be 

conducted at a mutually agreed-upon location in the United States, and the 

depositions shall be limited to a total of seven (7) hours over one (1) day unless the 

deposition is in a language other than English, in which case the deposition shall be 

limited to a total of thirteen (13) hours over two (2) days. If any such interview or 

deposition takes place outside of the country of the witness’s residence, Settlement 

Class Counsel shall reimburse Toyo for such person’s economy class fare and up to 

$450 per day for lodging and expenses actually incurred. To the extent Settlement 

Class Counsel coordinates any such interview or deposition with End-Payor 

Settlement Class Counsel, Settlement Class Counsel and End-Payor Settlement 

Class Counsel shall collectively reimburse Toyo for such person’s economy class 

fare and up to $450 per day for lodging and expenses actually incurred.

(b) In addition to its Cooperation obligations set forth herein, Toyo agrees to 

produce through affidavit(s), declaration(s) and/or at trial, in Settlement Class 

Counsel’s discretion, representatives qualified to authenticate, establish as business 

records, or otherwise establish any other necessary foundation for admission into 

evidence of any Documents or transactional data produced or to be produced by Toyo. 

Settlement Class Counsel agree to use their best efforts to obtain stipulations that 

would avoid the need to call Toyo witnesses at trial for the purpose of obtaining such 

evidentiary foundations.

Id. at ¶¶ 37, 39, 42-49. 

Released Claims: The Settlement Agreement releases only TOYO (and its respective past 

and present, direct and indirect parents, subsidiary companies, and affiliates, including their respective 

predecessors, successors, and assigns, and each and all of the present and former principals, partners, 

officers, directors, supervisors, employees, agents, stockholders, members, representatives, insurers,

attorneys, heirs, executors, administrators, and assigns.) from, inter alia, all Settlement Classes Member 

and their respective Releasors’ claims arising out of or relating in any way to any conduct alleged in

the Complaint, the Proposed Consolidated Amended Complaint, or any act or omission of TOYO, 

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concerning Anti-Vibrational Rubber Parts and Automotive Constant Velocity Joint Boot Products. Id 

at ¶ 24. 

The release does not include (1) any claims made by direct purchasers of Relevant Parts; (2) 

any claims made by end-payors that are indirect purchasers of Relevant Parts; (3) any claims made by 

truck and equipment dealerships that are indirect purchasers of Relevant Parts; (4) any claims made 

by any state, state agency, or instrumentality or political subdivision of a state as to government 

purchases and/or penalties; (5) claims involving any negligence, personal injury, breach of contract, 

bailment, failure to deliver lost goods, damaged or delayed goods, product defect, securities or similar 

claim relating to Relevant Parts; (6) claims concerning any automotive part other than Relevant Parts;

(7) claims under laws other than those of the United States relating to purchases of Relevant Parts 

made by any Releasor outside of the United States; and (8) claims for damages under the state or local

laws of any jurisdiction other than an Indirect Purchaser State. Id. 

 ARGUMENT 

The Settlement Agreement is fair, reasonable, and adequate—resulting from extensive, arm’s 

length negotiations by experienced counsel—and is an excellent resolution of the proposed Settlement 

Classes’ claims that maximizes their recovery and guarantees cooperation by TOYO that may prove 

invaluable in the continued prosecution of ADs’ claims in this multidistrict litigation. 

I. Preliminary Approval Should Be Granted Because the Proposed Settlements Fall Well 

Within the Range of Possible Approval. 

 There is an overriding public interest in settling and quieting litigation, particularly class 

actions. See Griffin v. Flagstar Bancorp, Inc., Case No. 2:10-cv-10610, 2013 U.S. Dist. LEXIS 173702, at 

*6 (E.D. Mich. Dec. 12, 2013){ TA \l "Griffin v. Flagstar Bancorp, Inc., 

Case No. 2:10-cv-10610, 2013 U.S. Dist. LEXIS 173702 

(E.D. Mich. Dec. 12, 2013)" \s "Griffin v. Flagstar Bancorp, Inc." \c 1 } (citing UAW v. Gen. Motors. 

Corp., 497 F.3d 615, 631 (6th Cir. 2007){ TA \l "UAW v. Gen. Motors. Corp., 

2:14-cv-02902-MOB-MKM Doc # 48 Filed 10/12/17 Pg 20 of 46 Pg ID 874
10 

497 F.3d 615 (6th Cir. 2007)" \s "UAW v. Gen. Motors. Corp." \c 1 } (noting “the federal policy 

favoring settlement of class actions”)); see also IUE-CWA v. Gen. Motors Corp., 238 F.R.D. 583, 593 

(E.D. Mich. 2006){ TA \l "IUE-CWA v. Gen. Motors Corp., 

238 F.R.D. 583 (E.D. Mich. 2006)" \s "IUE-CWA v. Gen. Motors Corp." \c 1 }. “This policy applies 

with equal force whether the settlement is partial, involving only some of the defendants, or 

complete.” In re Packaged Ice Antitrust Litig., Case No. 08-MD-01952, 2011 U.S. Dist. LEXIS 17255, at 

*44 (E.D. Mich. Feb. 22, 2011){ TA \l "In re Packaged Ice Antitrust Litig., 

Case No. 08-MD-01952, 2011 U.S. Dist. LEXIS 17255 

(E.D. Mich. Feb. 22, 2011)" \s "In re Packaged Ice Antitrust Litig." \c 1 } (“Packaged Ice”); see also

Agretti v. ANR Freight Sys., Inc., 982 F.2d 242, 247 (7th Cir. 1992){ TA \l "Agretti v. ANR Freight Sys., 

Inc., 

982 F.2d 242 (7th Cir. 1992)" \s "Agretti v. ANR Freight Sys., Inc." \c 1 } (“In complex litigation 

with a plaintiff class, ‘partial settlements often play a vital role in resolving class actions’” (quoting 

MANUAL FOR COMPLEX LITIGATION (SECOND) § 30.46 (1986){ TA \l "MANUAL FOR COMPLEX 

LITIGATION (SECOND) § 30.46 (1986)" \s "Manual for Complex Litigation (Second) § 30.46 (1986)" 

\c 3 }). In fact, “settlement should be facilitated at as early a stage of the litigation as possible.” 6A

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1522, at 225-

26 (2d ed. 1990){ TA \l "CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND 

PROCEDURE 

§ 1522, at 225-26 (2d ed. 1990)" \s "6A Charles Alan Wright & Arthur R. Miller, Federal Practice and 

Procedure § 1522, at 225-26 (2d ed. 1990)" \c 3 } (citing 1983 Advisory Committee Notes); see also

MANUAL FOR COMPLEX LITIGATION (FOURTH) § 13.12 (2004){ TA \l "MANUAL FOR COMPLEX 

LITIGATION (FOURTH) § 13.12 (2004)" \s "Manual For Complex Litigation (Fourth) § 13.12 (2004)" 

\c 3 } (“Manual”) (“[S]ettlement should be explored early in the case.”). 

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11 

 Approval of a proposed class action settlement proceeds in two steps. First, the court grants 

preliminary approval to the settlement and provisionally certifies one or more settlement classes. 

Second, after notice of the settlement is provided to the settlement class(es) and the court conducts a 

fairness hearing, the court may grant final approval to the settlement. See Manual § 21.63{ TA \l "Manual

§ 21.63" \s "Manual § 21.63" \c 3 }; see also Bobbitt v. Acad. of Reporting, 2009 WL 2168833, at *1 (E.D. Mich. 

Jul. 21, 2009){ TA \l "Bobbitt v. Acad. of Reporting, 

2009 WL 2168833 (E.D. Mich. Jul. 21, 2009)" \s "Bobbitt v. Acad. of Reporting, 2009 WL 2168833, at *1 (E.D. 

Mich. Jul. 21, 2009)" \c 1 } (citing authorities). 

 A proposed settlement agreement should be preliminarily approved if “the preliminary 

evaluation of the proposed settlement does not disclose grounds to doubt its fairness or other obvious

deficiencies . . . and [the settlement] appears to fall within the range of possible approval.” Manual § 

30.41{ TA \l "MANUAL FOR COMPLEX LITIGATION (THIRD) § 30.41, at 235 (3d ed. 1995)" \s "Manual 

for Complex Litigation (Third) § 30.41, at 235 (3d ed. 1995)" \c 3 } at 237; see also Int’l Union, UAW v. 

Ford Motor Co., Case Nos. 05-74730, 06-10331, 2006 U.S. Dist. LEXIS 70471, at *11 (E.D. Mich. July 

13, 2006){ TA \l "Int’l Union, UAW v. Ford Motor Co., 

Case Nos. 05-74730, 06-10331, 2006 U.S. Dist. LEXIS 70471 

(E.D. Mich. July 13, 2006)" \s "Int’l Union, UAW v. Ford Motor Co." \c 1 }. The district court’s role 

in reviewing settlements “must be limited to the extent necessary to reach a reasoned judgment that 

the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating 

parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” 

Clark Equip. Co. v Int’l Union of Allied Industrial Workers of Am., 803 F.2d 878, 880 (6th Cir. 1986){ TA 

\l "Clark Equip. Co. v Int’l Union of Allied Industrial Workers of Am., 

803 F.2d 878 (6th Cir. 1986)" \s "Clark Equip. Co. v Int’l Union of Allied Industrial Workers of Am." 

\c 1 }. Courts adhere to “an initial presumption of fairness when a proposed class settlement, which 

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12 

was negotiated at arm’s length by counsel for the class, is presented for court approval.” 4 HERBERT 

B. NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS § 11.41 (4th ed. 2005){ TA \l "HERBERT 

B. NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS § 11.41 

(4th ed. 2005)" \s "4 Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 11.41 (4th ed. 

2005)" \c 3 } (“Newberg”) (collecting cases); cf. Rankin v. Rots, No. 02-cv-71045, 2006 U.S. Dist. LEXIS 

45706, at *9 (E.D. Mich. June 28, 2006){ TA \l "Rankin v. Rots, 

No. 02-cv-71045, 2006 U.S. Dist. LEXIS 45706 

(E.D. Mich. June 28, 2006)" \s "Rankin v. Rots" \c 1 } (“[T]he only question . . . is whether the 

settlement, taken as a whole, is so unfair on its face as to preclude judicial approval.”) (internal 

quotation marks omitted). 

In considering whether to grant preliminary approval, the court is not required at this point to 

make a final determination of the adequacy of the settlement or to delve extensively into the merits of 

the settlement. See In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig., Case No. 1:01-CV-9000, 2001 

U.S. Dist. LEXIS 26714, at *17 (E.D. Ohio Oct. 19, 2001){ TA \l "In re Sulzer Hip Prosthesis & Knee 

Prosthesis Liab. Litig., 

Case No. 1:01-CV-9000, 2001 U.S. Dist. LEXIS 26714 

(E.D. Ohio Oct. 19, 2001)" \s "In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig." \c 1 }

(“Sulzer Hip”). These inquiries are reserved for the final approval stage of the class settlement approval 

process. Nor will any class member’s substantive rights be prejudiced by preliminary approval because 

the proposed preliminary approval is solely to provide authority for notifying the class of the terms of 

the settlement agreement to set the stage for review of its final approval. Id.; Newburg{ TA \s "4 

Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 11.41 (4th ed. 2005)" } § 11.25. 

Consequently, courts generally engage only in a limited inquiry to determine whether a proposed 

settlement falls within the range of possible approval and thus should be preliminarily approved. Sulzer 

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13 

Hip{ TA \s "In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig." }, 2001 U.S. Dist. LEXIS 

26714, at *17-18 (preliminary approval may be based on “informal presentations” because of 

“substantial judicial processes that remain”) (quoting MANUAL FOR COMPLEX LITIGATION (THIRD) § 

30.41, at 235 (1995){ TA \s "Manual for Complex Litigation (Third) § 30.41, at 235 (3d ed. 1995)" }). 

See also In re Packaged Ice Antitrust Litig., No. 08-MD-01952, 2010 WL 3070161, at *4 (E.D. Mich. Aug. 

2, 2010){ TA \l "In re Packaged Ice Antitrust Litig., 

No. 08-MD-01952, 2010 WL 3070161 (E.D. Mich. Aug. 2, 2010)" \s "In re Packaged Ice Antitrust Litig., 

No. 08-MD-01952, 2010 WL 3070161, at *4 (E.D. Mich. Aug. 2, 2010)" \c 1 }, quoting Gautreaux v. Pierce, 690 F.2d 

616, 621 n.3 (7th Cir. 1982){ TA \l "Gautreaux v. Pierce, 

690 F.2d 616 (7th Cir. 1982)" \s "Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982)" \c 1 } (inquiry limited 

to settlement’s potential for final approval and propriety of class notice and fairness hearing). 

In evaluating whether a settlement is fair, reasonable and adequate, courts in the Sixth Circuit 

consider a number of factors: 

(1) the likelihood of success on the merits weighed against the amount and form of 

relief in the settlement; (2) the complexity expense and likely duration of the litigation; 

(3) the opinions of class counsel and class representatives; (4) the amount of discovery 

engaged in by the parties; (5) the reaction of absent class members; (6) the risk of fraud 

or collusion; and (7) the public interest. The Court may choose to consider only those 

factors that are relevant to the settlement at hand and may weigh particular factors 

according to the demands of the case. 

Packaged Ice{ TA \s "In re Packaged Ice Antitrust Litig." }, 2011 U.S. Dist. LEXIS 17255, at *46-47 

(quotation marks and citations omitted). A court is not required, at the preliminary approval stage, to 

determine whether it ultimately will finally approve the settlement. Nevertheless, as set forth in detail 

below, preliminary consideration of the factors a court considers when evaluating the fairness of a 

settlement for purposes of deciding whether to grant final approval supports this Court’s granting 

preliminary approval of the Settlement Agreement. 

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14 

A. The Settlement Agreement Achieves an Excellent Result for the Proposed 

Settlement Classes, Particularly Given the Expense, Duration, and Uncertainty 

of Continued Litigation. 

 Antitrust class actions are “arguably the most complex action(s) to prosecute. The legal and 

factual issues involved are always numerous and uncertain in outcome.” I{ TA \s "In re Packaged Ice 

Antitrust Litig." }n re Packaged Ice Antitrust Litig., Case No. 08-MDL-01952, 2011 U.S. Dist. LEXIS 

150427, at *76 (E.D. Mich. Dec. 13, 2011) (quoting Linerboard{ TA \s "In re Linerboard Antitrust 

Litig." }, 292 F. Supp. at 639); see also In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 533 (E.D. 

Mich. 2003){ TA \l "In re Cardizem CD Antitrust Litig., 

218 F.R.D. 508 (E.D. Mich. 2003)" \s "In re Cardizem CD Antitrust Litig." \c 1 } (“Cardizem”) 

(“Moreover, the complexity of this case cannot be overstated. Antitrust class actions are inherently 

complex”). Motions have already been vigorously contested, and the discovery process would be all 

the more complicated due to the unique issues that attend discovery against foreign parties.2

 

 TOYO has denied that AD’s allegations and has asserted various defenses. The outcome of 

a jury trial might well turn on close questions of proof, many of which would be the subject of 

complicated expert testimony, particularly with regard to damages, making the outcome of such trial 

uncertain for both parties. See, e.g., Cardizem{ TA \s "In re Cardizem CD Antitrust Litig." }, 218 F.R.D. 

at 523 (in approving settlement, noting that “the prospect of a trial necessarily involves the risk that 

Plaintiffs would obtain little or no recovery and that “no matter how confident trial counsel may be, 

they cannot predict with 100% accuracy a jury’s favorable verdict, particularly in complex antitrust 

litigation”); Packaged Ice{ TA \s "In re Packaged Ice Antitrust Litig." }, 2011 U.S. Dist. LEXIS 17255, 

at *53-54 (noting the “undeniable inherent risks” in antitrust class action litigation including “whether 

the class will be certified and upheld on appeal, whether the conspiracies as alleged in the Complaint

 

2

 Because Interim Co-Lead Class Counsel may have to litigate against the other defendants through 

trial and appeal, their duties preclude a more detailed discussion of the potential litigation risks. 

2:14-cv-02902-MOB-MKM Doc # 48 Filed 10/12/17 Pg 25 of 46 Pg ID 879
15 

can be established, whether Plaintiffs will be able to demonstrate class wide antitrust impact and 

ultimately whether Plaintiffs will be able to prove damages”). Id. Given this uncertainty, “[a] very large 

bird in the hand in this litigation is surely worth more than whatever birds are lurking in the bushes.” 

In re Chambers Dev. Sec. Litig., 912 F. Supp. 822, 838 (W.D. Pa. 1995){ TA \l "In re Chambers Dev. Sec. 

Litig., 

912 F. Supp. 822 (W.D. Pa. 1995)" \s "In re Chambers Dev. Sec. Litig." \c 1 }. 

 Moreover, given the stakes involved, an appeal is nearly certain to follow regardless of the 

outcome at trial. This creates additional risk, as judgments following trial may be overturned on appeal. 

See, e.g., In re Farmers Ins. Exchange, Claims Representatives’ Overtime Pay Litig., 481 F.3d 1119 (9th Cir. 

2007){ TA \l "In re Farmers Ins. Exchange, Claims Representatives’ Overtime Pay Litig., 

481 F.3d 1119 (9th Cir. 2007)" \s "In re Farmers Ins. Exchange, Claims Representatives’ Overtime 

Pay Litig." \c 1 } ($52.5 million class action judgment following trial reversed on appeal); Robbins v. 

Koger Props., Inc., 116 F.3d 1441 (11th Cir. 1997){ TA \l "Robbins v. Koger Props., Inc., 

116 F.3d 1441 (11th Cir. 1997)" \s "Robbins v. Koger Props." \c 1 } (jury verdict of $81 million for 

plaintiffs reversed and judgment entered for defendant). And even if class members were willing to 

assume all of the litigation risks, the passage of time would introduce still more risks in terms of 

appeals and possible changes in the law that would, in light of the time value of money, make future 

recoveries less valuable than recovery today. See In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 536 

(3d Cir. 2004){ TA \l "In re Warfarin Sodium Antitrust Litig., 

391 F.3d 516 (3d Cir. 2004)" \s "In re Warfarin Sodium Antitrust Litig." \c 1 } (“[I]t was inevitable 

that post-trial motions and appeals would not only further prolong the litigation but also reduce the 

value of any recovery to the class.”); In re Rent-Way Sec. Litig., 305 F. Supp. 2d 491, 501 (W.D. Pa. 

2003){ TA \l "In re Rent-Way Sec. Litig., 

305 F.Supp.2d 491 (W.D. Pa. 2003)" \s "In re Rent-Way Sec. Litig." \c 1 } (“[A] future recovery, even 

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16 

one in excess of the proposed Settlement, may ultimately prove less valuable to the Classes than 

receiving the benefits of the proposed Settlement at this time”). Hence, “the certain and immediate 

benefits to the Class represented by the Settlement outweigh the possibility of obtaining a better result 

at trial, particularly when factoring in the additional expense and long delay inherent in prosecuting

this complex litigation through trial and appeal.” Cardizem{ TA \s "In re Cardizem CD Antitrust Litig." 

}, 218 F.R.D. at 525. 

Against this background, a settlement providing the substantial benefits afforded here 

represents an excellent result for the members of the proposed Settlement Classes. TOYO’s 

$11,400,000.00 payment provides compensation that will be available years earlier than if litigation 

against TOYO continued through trial and appeal. Settlements of this type create value beyond their 

direct pecuniary benefit to the class. See In re Linerboard Antitrust Litig., 292 F. Supp. 2d 631, 643 (E.D. 

Pa. 2003); In re Corrugated Container Antitrust Litig., 1981 WL 2093, *16 (S.D. Tex. Jan. 27, 1981{ TA \s 

"In re Corrugated Container Antitrust Litig." } (“Corrugated Container”). 

 The Settlement Agreement requires TOYO to provide cooperation to the ADs’ counsel by 

providing transactional data, factual proffers, interviews, documents, depositions, and trial testimony, 

among other cooperation. See Settlement Agreement § F (¶¶ 35-53). This cooperation is valuable and 

will afford the ADs access to transactional data, documents, and witnesses without further litigation 

and expensive discovery—a significant class-wide benefit. See, e.g., In re Packaged Ice Antitrust Litig.{ TA 

\s "In re Packaged Ice Antitrust Litig." }, Case No. 08-MD-01952, 2010 U.S. Dist. LEXIS 77645, at 

*44 (E.D. Mich. Aug. 2, 2010) (“Particularly where, as here, there is the potential for a significant 

benefit to the class in the form of cooperation on the part of the settling Defendant, this Court is 

reluctant to refuse to consider the very preliminary approval that will trigger that cooperation”); see 

also Linerboard{ TA \s "In re Linerboard Antitrust Litig." }, 292 F. Supp. 2d at 643; Corrugated Container{

TA \s "In re Corrugated Container Antitrust Litig." }, 1981 WL 2093, at *16; cf. In re Pressure Sensitive 

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17 

Labelstock Antitrust Litig., 584 F. Supp. 2d 697, 702 (M.D. Pa. 2008){ TA \l "In re Pressure Sensitive 

Labelstock Antitrust Litig., 

584 F. Supp. 2d 697 (M.D. Pa. 2008)" \s "In re Pressure Sensitive Labelstock Antitrust Litig." \c 1 }

(“[T]he benefit of obtaining the cooperation of the Settling Defendants tends to offset the fact that 

they would be able to withstand a larger judgment.”). 

The Settlement Agreement does not alter joint and several liability of non-settling Defendants 

or future Defendants for the full damages caused by the alleged conspiracies. See Settlement 

Agreement ¶ 61. In this regard, the Settlement Agreement is similar to other settlements approved in 

this litigation and one of the settlements approved in Corrugated Container{ TA \s "In re Corrugated 

Container Antitrust Litig." }, where the court noted the “valuable provision” under which plaintiffs 

reserved their right to recover full damages from other current or future defendants, less the actual 

amount of the initial settlement. 1981 WL 2093, at *17; see also In re Uranium Antitrust Litig., 617 F.2d 

1248 (7th Cir. 1980){ TA \l "In re Uranium Antitrust Litig., 

617 F.2d 1248 (7th Cir. 1980)" \s "In re Uranium Antitrust Litig." \c 1 }; In re Ampicillin Antitrust Litig., 

82 F.R.D. 652, 654 (D.D.C. 1979){ TA \l "In re Ampicillin Antitrust Litig., 

82 F.R.D. 652 (D.D.C. 1979)" \s "In re Ampicillin Antitrust Litig." \c 1 } (approving settlement where 

class will “relinquish no part of its potential recovery” due to joint and several liability). 

B. The Settlement Agreement is the Result of Thorough Arm’s-Length 

Negotiations Conducted by Highly Experienced Counsel. 

These settlements are entitled to “an initial presumption of fairness” because it is the result of 

arm’s-length negotiations among experienced counsel.

3

 Newberg{ TA \s "4 Herbert B. Newberg & 

 

3

 The attorneys who negotiated the Settlement Agreement on behalf of both ADs and TOYO are 

highly experienced and capable. See Automobile Dealer Plaintiffs’ Application For Appointment Of 

Interim Co-Lead Class Counsel And Liaison Counsel, In re Automotive Wire Harness Sys. Antitrust Litig., 

Case No. 12-MD-02311 (E.D. Mich. Mar. 8, 2012){ TA \l "In re Automotive Wire Harness Sys. Antitrust 

Litig., 

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18 

Alba Conte, Newberg on Class Actions § 11.41 (4th ed. 2005)" } § 11.41. The judgment of proposed 

Settlement Classes’ Counsel that the settlement is in the best interest of the proposed Settlement 

Classes “is entitled to significant weight, and supports the fairness of the class settlement.” Sheick v. 

Auto Component Carrier LCC, Case No. 2:09-cv-14429, 2010 U.S. Dist. LEXIS 110411, at *51 (E.D. 

Mich. Oct. 18, 2010){ TA \l "Sheick v. Auto Component Carrier LCC, 

Case No. 2:09-cv-14429, 2010 U.S. Dist. LEXIS 110411 

 (E.D. Mich. Oct. 18, 2010)" \s "Sheick v. Auto Component Carrier LCC" \c 1 } (quoting IUE-CWA{

TA \s "IUE-CWA v. Gen. Motors Corp." }, 238 F.R.D. at 597); see also Cardizem{ TA \s "In re 

Cardizem CD Antitrust Litig." }, 218 F.R.D. at 525. Courts give great weight to the recommendation 

of experienced counsel for the parties in evaluating the adequacy of a settlement. 

 “Preliminary approval of a proposed settlement is based upon the court’s familiarity with the 

issues and evidence, as well as the arms-length nature of the negotiations prior to the proposed 

settlement, ensuring that the proposed settlement is not illegal or collusive.” Thacker v. Chesapeake 

Appalachia, L.L.C., 259 F.R.D. 262 (E.D. Ky. 2009){ TA \l "Thacker v. Chesapeake Appalachia, L.L.C., 

259 F.R.D. 262 (E.D. Ky. 2009)" \s "Thacker v. Chesapeake Appalachia" \c 1 } (quoting In re Dun & 

Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 370 (S.D. Ohio 1990){ TA \l "In re Dun & 

Bradstreet Credit Servs. Customer Litig., 

130 F.R.D. 366 (S.D. Ohio 1990)" \s "In re Dun & Bradstreet Credit Servs. Customer Litig." \c 1 }. 

The Settlement Agreement here is the result of lengthy negotiations between counsel experienced in 

complex antitrust and consumer class action litigation. AD counsel undertook a diligent and thorough 

investigation of the legal and factual issues posed by this litigation and consulted extensively with 

experienced economists before negotiating this deal. 

 

Case No. 12-MD-02311 (E.D. Mich. Mar. 8, 2012)" \s "In re Automotive Wire Harness Sys. Antitrust 

Litig." \c 1 }, ECF No. 24. 

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19 

Counsel for the ADs was well-informed about the facts and the strength of the claims asserted 

when the terms of the Settlement Agreement were initially negotiated. See Packaged Ice{ TA \s "In re 

Packaged Ice Antitrust Litig." }, 2011 U.S. Dist. LEXIS 17255, at *56 (“[T]he absence of formal 

discovery is not an obstacle [to settlement approval] so long as the parties and the Court have adequate 

information in order to evaluate the relative position of the parties.”) (quotation marks and citation

omitted); Griffin v. Flagstar Bancorp, Inc., 2013 U.S. Dist. LEXIS 173702{ TA \s "Griffin v. Flagstar 

Bancorp, Inc." } (same). 

Moreover, these negotiations were adversarial and conducted in the utmost good faith. The 

parties here engaged arms’ length settlement discussions. “Courts presume the absence of fraud or 

collusion in class action settlements unless there is evidence to the contrary.” Leonhardt v. ArvinMeritor, 

Inc., 581 F. Supp. 2d 818, 838 (E.D. Mich. 2008){ TA \l "Leonhardt v. ArvinMeritor, Inc., 

581 F. Supp. 2d 818 (E.D. Mich. 2008)" \s "Leonhardt v. ArvinMeritor" \c 1 }; Bowers v. Windstream 

Ky. East, LLC, Civil Action No. 3:09-CV-440-H, 2013 U.S. Dist. LEXIS 157242, at *5 (W.D. Ky. 

Nov. 1, 2013){ TA \l "Bowers v. Windstream Ky. East, LLC, 

Civil Action No. 3:09-CV-440-H, 2013 U.S. Dist. LEXIS 157242 

(W.D. Ky. Nov. 1, 2013)" \s "Bowers v. Windstream Ky. East, LLC" \c 1 }. There is nothing in the 

course of the negotiations or the substance of the settlement that “disclose[s] grounds to doubt its 

fairness.” Manual § 30.41. 

II. The Proposed Settlement Classes Should be Provisionally Certified Pursuant to 

Rule 23. 

 The Manual notes the propriety of certifying a class solely for purposes of settlement, see 

Manual § 21.32, and courts in this Circuit routinely provisionally approve a proposed settlement class 

before deciding plaintiffs’ motion for class certification. See, e.g., In re Delphi Corp. Sec. Derivatives & 

ERISA Litig., 248 F.R.D. 483, 486 n. 2 (E.D. Mich. 2008){ TA \l "In re Delphi Corp. Sec. Derivatives & 

ERISA Litig., 

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20 

248 F.R.D. 483 (E.D. Mich. 2008)" \s "In re Delphi Corp. Sec. Derivatives & ERISA Litig." \c 1 }

(granting final approval to both ERISA and Securities settlement classes, noting the court’s earlier, 

preliminary approval of the settlement classes granted prior to a hearing on defendants’ motions to 

dismiss); Cardizem{ TA \s "In re Cardizem CD Antitrust Litig." }, 218 F.R.D. at 516-17, 530 (granting 

final approval of proposed settlement, noting its earlier preliminary approval of both the proposed 

settlement class and the proposed settlement agreement granted prior to class certification and prior 

to hearing on motions to dismiss). A court may grant provisional certification where, as here, the 

proposed settlement class satisfies the four prerequisites of Rule 23(a){ TA \s "Fed. R. Civ. P. 23" }

(numerosity, commonality, typicality and adequacy), as well as one of the three subsections of Rule 

23(b){ TA \s "Fed. R. Civ. P. 23" }. See In re Packaged Ice Antitrust Litig.{ TA \s "In re Packaged Ice 

Antitrust Litig." }, No. 08-MD-01952, 2010 U.S. Dist. LEXIS 140235, at *27-28 (E.D. Mich. Sept. 2, 

2010). 

 While the Supreme Court recently reiterated that a trial court must conduct a “rigorous 

analysis” to confirm that the requirements of Rule 23{ TA \s "Fed. R. Civ. P. 23" } have been met, 

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011){ TA \l "Wal-Mart Stores, Inc. v. Dukes, 

131 S.Ct. 2541 (2011)" \s "Wal-Mart Stores, Inc. v. Dukes" \c 1 }, “the requisite ‘rigorous analysis’ of 

the record and consideration of the merits must be focused on and limited to the question whether 

the Rule’s requirements have been established.” Cason-Merenda v. VHS of Mich., Inc., 2013 U.S. Dist. 

LEXIS 131006, at *20-21 (E.D. Mich. Sept. 13, 2013){ TA \l "Cason-Merenda v. VHS of Mich., Inc., 

Case No. 06-15601, 2013 U.S. Dist. LEXIS 131006 

(E.D. Mich. Sept. 13, 2013)" \s "Cason-Merenda v. VHS of Mich., Inc." \c 1 } (citing In re Whirlpool 

Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 851-52 (6th Cir. 2013)){ TA \l "In re 

Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 

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21 

722 F.3d 838 (6th Cir. 2013)" \s "In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig." 

\c 1 }. Permissible inquiry into the merits of plaintiffs’ claims at the class certification stage is limited: 

Rule 23 grants courts no license to engage in free-ranging merits inquiries at the class 

certification stage. Merits questions may be considered to the extent—but only to the 

extent—that they are relevant to determining whether the Rule 23 prerequisites for 

class certification are satisfied. 

Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1194-95 (2013) (“Amgen”){ TA \l "Amgen 

Inc. v. Conn. Retirement Plans & Trust Funds, 

133 S.Ct. 1184 (2013)" \s "Amgen Inc. v. Conn. Retirement Plans & Trust Funds" \c 1 } (citing Dukes, 

131 S. Ct. at 2552 n.6). “In other words, district courts may not turn the class certification proceedings 

into a dress rehearsal for the trial on the merits.” In re Whirlpool Corp.{ TA \s "In re Whirlpool Corp. 

Front-Loading Washer Prods. Liab. Litig." }, 722 F.3d 838, 851-52 (internal quotation marks and 

citation omitted). Here, as demonstrated below, even under a “rigorous analysis,” the requirements 

of Rule 23{ TA \s "Fed. R. Civ. P. 23" } are easily met. 

A. The Proposed Settlement Classes Meet the Requirements of Rule 23(a). 

 Horizontal price fixing class actions are routinely certified in this District and elsewhere. ADs’ 

allegations of “a per se violation of the antitrust laws are exactly the kind of allegations which may be 

proven on a class-wide basis through common proof.” In re Southeastern Milk Antitrust Litig., Master 

File No. 2:09-MD-1000, 2010 U.S. Dist. LEXIS 94223, at *35 (E.D. Tenn. Sept. 7, 2010){ TA \l "In 

re Southeastern Milk Antitrust Litig., 

Master File No. 2:09-MD-1000, 2010 U.S. Dist. LEXIS 94223 

(E.D. Tenn. Sept. 7, 2010)" \s "In re Southeastern Milk Antitrust Litig." \c 1 }. “Courts have held 

that the existence of a conspiracy is the predominant issue in price fixing cases, warranting certification 

of the class even where significant individual issues are present.” Id. at *33 (internal quotation marks 

and citations omitted). “As a rule of thumb, a price fixing antitrust conspiracy model is generally 

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22 

regarded as well suited for class treatment.” In re Foundry Resins Antitrust Litig., 242 F.R.D. 393, 409 

(S.D. Ohio 2007){ TA \l "In re Foundry Resins Antitrust Litig., 

242 F.R.D. 393 (S.D. Ohio 2007)" \s "In re Foundry Resins Antitrust Litig." \c 1 }; see also Hyland v. 

Homeservices of Am., Inc., Case No. 3:05-CV-612-R, 2008 U.S. Dist. LEXIS 90892, at *12 (W.D. Ky. 

Nov. 6, 2008){ TA \l "Hyland v. Homeservices of Am., Inc., 

Case No. 3:05-CV-612-R, 2008 U.S. Dist. LEXIS 90892

(W.D. Ky. Nov. 6, 2008)" \s "Hyland v. Homeservices of Am., Inc." \c 1 }. 

i. The Proposed Settlement Class Members are so Numerous that it is 

Impracticable to Bring All Class Members Before the Court. 

 No magic number is required to satisfy the numerosity requirement of Rule 23(a)(1){ TA \s 

"Fed. R. Civ. P. 23" }. Miller v. Univ. of Cincinnati, 241 F.R.D. 285, 288 (S.D. Ohio 2006){ TA \l "Miller 

v. Univ. of Cincinnati, 

241 F.R.D. 285 (S.D. Ohio 2006)" \s "Miller v. Univ. of Cincinnati" \c 1 }. A class representative 

need only show that joining all members of the potential class is extremely difficult or inconvenient.

Golden v. City of Columbus, 404 F.3d 950, 965 (6th Cir. 2005){ TA \l "Golden v. City of Columbus, 

404 F.3d 950 (6th Cir. 2005)" \s "Golden v. City of Columbus" \c 1 }. The “sheer number of potential 

litigants in a class, especially if it is more than several hundred, can be the only factor needed to satisfy 

Rule 23(a)(1){ TA \s "Fed. R. Civ. P. 23" }.” In re Foundry Resins Antitrust Litig.{ TA \s "In re Foundry 

Resins Antitrust Litig." }, 242 F.R.D. at 403 (citing Bacon v. Honda of America Mfg., Inc., 370 F.3d 565, 

570 (6th Cir. 2004){ TA \l "Bacon v. Honda of America Mfg., Inc., 

370 F.3d 565 (6th Cir. 2004)" \s "Bacon v. Honda of America Mfg., Inc." \c 1 }); see also In re Am. 

Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996){ TA \l "In re Am. Med. Sys., Inc., 

75 F.3d 1069 (6th Cir. 1996)" \s "In re Am. Med. Sys., Inc." \c 1 }. 

 The proposed settlement classes at issue in this action involve all automobile dealers in the 

U.S. from March 1, 1996 through September 14, 2017 that purchased one or more new automobiles 

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23 

containing Anti-Vibrational Rubber Parts or that indirectly purchased one or more Anti-Vibrational 

Rubber Parts as replacement parts and all automobile dealers in the U.S. from January 1, 2006 through 

September 14, 2017 that purchased one or more new automobiles containing Automotive Constant 

Velocity Joint Boot Products or that indirectly purchased one or more Automotive Constant Velocity 

Joint Boot Products as replacement parts. Because there are thousands of such automobile dealerships 

geographically distributed throughout the United States, joinder is highly impractical, if not impossible, 

for all of the proposed Settlement Classes. 

ii. Automobile Dealer Plaintiff Class Representatives and the Proposed 

Settlement Classes Share Common Legal and Factual Questions. 

 Commonality only requires that “there are questions of law or fact common to the class.” Fed. 

R. Civ. P. 23(a)(2){ TA \s "Fed. R. Civ. P. 23" }. While Rule 23(a)(2){ TA \s "Fed. R. Civ. P. 23" }

speaks of questions of law or fact in the plural, “there need be only one common question to certify 

a class.” In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d at 853{ TA \s "In re 

Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig." }; see also Cason-Merenda{ TA \s "CasonMerenda v. VHS of Mich., Inc." }, 2013 U.S. Dist. LEXIS 131006, at *22 (one common question of 

law or fact is sufficient); Griffin v. Flagstar Bancorp Inc., 2013 U.S. Dist. LEXIS 173702{ TA \s "Griffin 

v. Flagstar Bancorp, Inc." } (same); Date v. Sony Elecs., Inc., Case No. 07-15474, 2013 U.S. Dist. LEXIS 

108095, at *10 (E.D. Mich. July 31, 2013){ TA \l "Date v. Sony Elecs., Inc., 

Case No. 07-15474, 2013 U.S. Dist. LEXIS 108095 

(E.D. Mich. July 31, 2013)" \s "Date v. Sony Elecs., Inc." \c 1 } (same). 

 This prerequisite is readily satisfied here because “antitrust price-fixing conspiracy cases, by 

their nature, deal with common legal and factual questions about the existence, scope and effect of 

the alleged conspiracy.” In re Aluminum Phosphide Antitrust Litig., 160 F.R.D. 609, 613 (D. Kan. 1995){

TA \l "In re Aluminum Phosphide Antitrust Litig., 

160 F.R.D. 609 (D. Kan. 1995)" \s "In re Aluminum Phosphide Antitrust Litig." \c 1 }. Thus, in price 

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24 

fixing cases, courts “have consistently held that the very nature of a conspiracy in an antitrust action 

compels a finding that common questions of law and fact exist.” In re Dynamic Random Access Memory 

(DRAM) Antitrust Litig., No. M 02-1486 PJH, 2006 U.S. Dist. LEXIS 39841 (N.D. Cal. June 5, 2006){

TA \l "In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 

No. M 02-1486 PJH, 2006 U.S. Dist. LEXIS 39841 

(N.D. Cal. June 5, 2006)" \s "In re Dynamic Random Access Memory (DRAM) Antitrust Litig." \c 1 

}; see also Newberg{ TA \s "4 Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 11.41 

(4th ed. 2005)" } § 3:10 at 278 (“[In an] antitrust action on behalf of purchasers who have bought 

defendants’ products at prices that have been maintained above competitive levels by unlawful 

conduct, the courts have held that the existence of an alleged conspiracy or monopoly is a common 

issue that will satisfy the Rule 23(a)(2){ TA \s "Fed. R. Civ. P. 23" } prerequisite”). 

 Through the course of this litigation, ADs have already identified the following issues common 

to the proposed Settlement Classes: 

• Whether Defendants and their co-conspirators engaged in a combination and conspiracy 

among themselves to fix, raise, maintain or stabilize the prices of or rig bids for Automotive 

Parts sold in the United States; 

• The identity of the participants of the alleged conspiracy; 

• The duration of the alleged conspiracy and the acts carried out by Defendants and their coconspirators in furtherance of the conspiracy; 

• Whether the conspiracy violated state antitrust and unfair competition laws; 

• Whether Defendants unjustly enriched themselves to the detriment of the Plaintiffs and the 

members of the Class; 

• Whether the conduct of Defendants and their co-conspirators caused injury to the business 

or property of Plaintiffs and the members of the Class; 

• The effect of the conspiracy on the prices of Automotive Parts sold in the United States during 

the Class Period; 

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• Whether the Defendants and their co-conspirators fraudulently concealed the conspiracy’s 

existence from the Plaintiffs and the members of the Class; and 

• The appropriate class-wide measure of damages, injunctive, and equitable relief for members 

of the Class. 

(See Anti-Vibrational Rubber Parts Compl. ¶ 227; Automotive Constant Velocity Joint Boot Products 

Compl ¶ 193.) Any one of these substantive issues would, standing alone, establish the requisite 

commonality under Rule 23(a)(2){ TA \s "Fed. R. Civ. P. 23" }. 

iii. Automobile Dealer Plaintiff Class Representatives’ Claims are Typical 

of the Claims of the Members of the Proposed Settlement Classes. 

 Third, Rule 23(a) requires typicality of the class representatives’ claims. See Fed. R. Civ. P. 

23(a)(3){ TA \s "Fed. R. Civ. P. 23" }. “The [typicality] requirement is not onerous,” Int’l Union, UAW 

v. Ford Motor Co., 2006 U.S. Dist. LEXIS 70471, at *54{ TA \s "Int’l Union, UAW v. Ford Motor Co." 

}, and courts liberally construe it. See In re Foundry Resins Antitrust Litig.{ TA \s "In re Foundry Resins 

Antitrust Litig." }, 242 F.R.D. at 403. “In the antitrust context, typicality is established when the named 

plaintiffs and all class members allege[] the same antitrust violation by defendants.” Cason-Merenda{

TA \s "Cason-Merenda v. VHS of Mich., Inc." }, 2013 U.S. Dist. LEXIS 131006, at *25 (quoting In 

re Foundry Resins Antitrust Litig.{ TA \s "In re Foundry Resins Antitrust Litig." }, 242 F.R.D. at 405); 

see also Stout v. J.D. Byrider, 228 F.3d 709, 717 (6th Cir. 2000){ TA \l "Stout v. J.D. Byrider, 

228 F.3d 709 (6th Cir. 2000)" \s "Stout v. J.D. Byrider" \c 1 }; In re Am. Med. Sys.{ TA \s "In re Am. 

Med. Sys., Inc." }, 75 F.3d at 1082; Packaged Ice{ TA \s "In re Packaged Ice Antitrust Litig." }, 2011 

U.S. Dist. LEXIS 17255, at *40-41. “If there is a strong similarity of legal theories, the requirement

[of typicality] is met, even if there are factual distinctions among named and absent class members.” 

Griffin v. Flagstar Bancorp, Inc., 2013 U.S. Dist. LEXIS 173702, at *17-18{ TA \s "Griffin v. Flagstar 

Bancorp, Inc." } (quotation marks and citation omitted); Packaged Ice{ TA \s "In re Packaged Ice 

Antitrust Litig." }, 2011 U.S. Dist. LEXIS 17255, at *40 (same). 

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26 

 Because the AD Plaintiff Class representatives and the members of the proposed Settlement 

Classes believe they are all victims of the conspiracies to fix prices, rig bids, and allocate the market 

and customers for Automotive Parts and seek the same relief, Rule 23(a)(3){ TA \s "Fed. R. Civ. P. 

23" } is satisfied. See Cason-Merenda{ TA \s "Cason-Merenda v. VHS of Mich., Inc." }, 2013 U.S. Dist. 

LEXIS 131006, at *26 (finding typicality met where “the claims of the named Plaintiffs and those of 

the remaining members of the proposed class all arise from the same conspiracy and are based on the 

same theory of liability under the Sherman Act.”) (internal quotation marks and citation omitted)); 

Packaged Ice{ TA \s "In re Packaged Ice Antitrust Litig." }, 2011 U.S. Dist. LEXIS 17255, at *40-41 

(“Because all Class Members’ claims arise from . . . a conspiracy to allocate markets in violation of the 

Sherman Act, their claims are based on the same legal theory and the typicality requirement . . . is 

met”). 

iv. Proposed Settlement Class Counsel and Automobile Dealer Plaintiff 

Class Representatives Will Fairly and Adequately Protect the Interests 

of the Proposed Settlement Classes. 

 The final requirement of Rule 23(a){ TA \s "Fed. R. Civ. P. 23" } is that the representative 

parties “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4){ TA \s "Fed. 

R. Civ. P. 23" }. The Sixth Circuit has articulated two criteria for determining adequacy of 

representation: “‘1) [t]he representative must have common interests with unnamed members of the 

class, and 2) it must appear that the representatives will vigorously prosecute the interests of the class 

through qualified counsel.’” In re Foundry Resins Antitrust Litig.{ TA \s "In re Foundry Resins Antitrust 

Litig." }, 242 F.R.D. at 407 (quoting Senter v. Gen. Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976){ TA 

\l "Senter v. Gen. Motors Corp., 

532 F.2d 511 (6th Cir. 1976)" \s "Senter v. Gen. Motors Corp." \c 1 }). 

There are no conflicts between the ADs and the co-proposed Settlement Classes because ADs 

and members of the proposed Settlement Classes: (i) purchased in the United States new automobiles 

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27 

containing Anti-Vibrational Rubber Parts or Automotive Constant Velocity Joint Boot Products; 

and/or (ii) indirectly purchased Anti-Vibrational Rubber Parts and Automotive Constant Velocity 

Joint Boot Products have the same interest in establishing liability, and all seek damages for the ensuing 

overcharge. See In re Corrugated Container Antitrust Litig.{ TA \s "In re Corrugated Container Antitrust 

Litig." }, 643 F.2d 195, 208 (5th Cir. 1981) (certifying settlement class and holding that “so long as all 

class members are united in asserting a common right, such as achieving the maximum possible 

recovery for the class, the class interests are not antagonistic for representation purposes” (internal 

quotation marks and citation omitted)). ADs and the members of the proposed Settlement Classes 

also share a common interest in obtaining TOYO’s cooperation. 

 Rule 23(g) requires the Court to examine the capabilities and resources of class counsel to 

determine whether they will provide adequate representation to the class. The proposed Settlement 

Classes are represented by counsel with extensive experience in antitrust and class action litigation.

They have vigorously prosecuted the class claims, and they will continue to do so through all phases 

of the litigation, including trial. See Marcus v. Dep’t of Revenue, 206 F.R.D. 509, 512 (D. Kan. 2002){ TA 

\l "Marcus v. Dep’t of Revenue, 

206 F.R.D. 509 (D. Kan. 2002)" \s "Marcus v. Dep’t of Revenue" \c 1 } (“In absence of evidence to 

the contrary, courts will presume the proposed class counsel is adequately competent to conduct the 

proposed litigation”). The Court appointed Cuneo Gilbert & LaDuca, LLP and Larson • King, LLP 

as Interim Co-Lead Class Counsel in this action and the other automotive parts antitrust cases within 

Master File No. 2:12-md-2311. See Case Management Order No. 3 filed as ECF No. 271. For the same 

reasons that the Court appointed them to this position, it should appoint them Settlement Class 

Counsel here. 

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B. The Proposed Settlement Classes Meet the Requirements of Rule 23(b)(3). 

 To qualify for certification under Rule 23(b)(3){ TA \s "Fed. R. Civ. P. 23" }, a class must 

meet two requirements beyond the Rule 23(a){ TA \s "Fed. R. Civ. P. 23" } prerequisites: common 

questions must predominate over any questions affecting only individual members; and class 

resolution must be superior to other available methods for the fair and efficient adjudication of the 

controversy. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997) (“Amchem”){ TA \l "Amchem Prods., 

Inc. v. Windsor, 

521 U.S. 591 (1997)" \s "Amchem Prods., Inc. v. Windsor" \c 1 }; see also In re Scrap Metal Antitrust 

Litig., 527 F.3d 517, 535 (6th Cir. 2008){ TA \l "In re Scrap Metal Antitrust Litig., 

527 F.3d 517 (6th Cir. 2008)" \s "In re Scrap Metal Antitrust Litig." \c 1 }. With respect to both 

requirements, the Court need not inquire whether the “case, if tried, would present intractable 

management problems, for the proposal is that there be no trial.” Amchem{ TA \s "Amchem Prods., 

Inc. v. Windsor" }, 521 U.S. at 620 (internal citations omitted). 

i. Common Questions of Law and Fact Predominate. 

“Rule 23(b)(3){ TA \s "Fed. R. Civ. P. 23" } does not mandate that a plaintiff seeking class 

certification prove that each element of the claim is susceptible to classwide proof.” In re Whirlpool 

Corp.{ TA \s "In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig." }, 722 F.3d at 859. 

Instead, “‘[a] claim will meet the predominance requirement when there exists generalized evidence 

which proves or disproves an element on a simultaneous, class-wide basis, since such proof obviates 

the need to examine each class member’s individualized position.’” In re Foundry Resins Antitrust Litig.{

TA \s "In re Foundry Resins Antitrust Litig." }, 242 F.R.D. at 408 (quoting In re Cardizem CD Antitrust 

Litig.{ TA \s "In re Cardizem CD Antitrust Litig." }, 200 F.R.D. at 307). Common questions need 

only predominate; they need not be dispositive of the litigation. Id. (citing In re Potash Antitrust Litig., 

159 F.R.D. 682, 693 (D. Minn. 1995){ TA \l "In re Potash Antitrust Litig., 

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29 

159 F.R.D. 682 (D. Minn. 1995)" \s "In re Potash Antitrust Litig." \c 1 }); cf. In re Scrap Metal Antitrust 

Litig.{ TA \s "In re Scrap Metal Antitrust Litig." }, 527 F.3d at 535-36 (holding issues regarding the 

amount of damages do not destroy predominance). “[T]he mere fact that questions peculiar to each 

individual member of the class action remain after the common questions of the defendant’s liability 

have been resolved does not dictate the conclusion that a class action is impermissible.” Cason-Merenda 

v. VHS of Mich., Inc.{ TA \s "Cason-Merenda v. VHS of Mich., Inc." }, 2013 U.S. Dist. LEXIS 131006, 

at *19-20 (quoting Powers v. Hamilton Cnty. Public Defender Comm., 501 F.3d 595, 619 (6th Cir. 2007){

TA \l "Powers v. Hamilton Cnty. Public Defender Comm., 

501 F.3d 595 (6th Cir. 2007)" \s "Powers v. Hamilton Cnty. Public Defender Comm." \c 1 }). As 

pertinent to ADs’ request here to provisionally certify the proposed Settlement Classes under Rule 

23(b)(3){ TA \s "Fed. R. Civ. P. 23" }, the Supreme Court recently instructed that “Rule 23(b)(3){ TA 

\s "Fed. R. Civ. P. 23" } requires a showing that questions common to the class predominate, not that 

those questions will be answered, on the merits, in favor of the class.” Amgen{ TA \s "Amgen Inc. v. 

Conn. Retirement Plans & Trust Funds" }, 133 S.Ct. at 1191.4

Because the proposed Settlement Classes allege conduct from which all proposed Settlement 

Classes Members’ alleged injuries arise, issues common to the proposed Settlement Classes 

 

4

 The Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013){ TA \l "Comcast Corp. 

v. Behrend, 

133 S.Ct. 1426 (2013)" \s "Comcast Corp. v. Behrend" \c 1 }, supports the appropriateness of class 

certification under Rule 23(b)(3){ TA \s "Fed. R. Civ. P. 23" } here. In Comcast{ TA \s "Comcast 

Corp. v. Behrend" }, the Supreme Court found that the plaintiffs failed to establish that damages could 

be measured on a class-wide basis because only one of the plaintiffs’ four theories of antitrust impact 

could be proved in a manner common to the class. 133 S.Ct. at 1429-31{ TA \s "Comcast Corp. v. 

Behrend" }. Under Comcast{ TA \s "Comcast Corp. v. Behrend" }, plaintiffs must be able to show 

that their damages stemmed from the defendant’s actions that created the legal liability. See Levva v. 

Medline Indus, Inc., 716 F.3d 510 (9th Cir. 2013){ TA \l "Levva v. Medline Indus, Inc., 

716 F.3d 510 (9th Cir. 2013)" \s "Levva v. Medline Indus, Inc." \c 1 }. Here, all of the proposed 

Settlement Classes’s claimed damages—the overcharge suffered as a result of inflated automobile 

components—stem from the Defendants’ alleged price-fixing conspiracies. 

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Members—for example, the existence and scope of the alleged price-fixing conspiracy or conspiracies 

among Defendants, the market impact of Defendants’ conspiracy or conspiracies, and the aggregate 

amount of damage suffered by the class as a result of the alleged antitrust violations—predominate 

over any individual questions, and therefore class treatment of the claims is appropriate for purposes

of this settlement. See Amchem{ TA \s "Amchem Prods., Inc. v. Windsor" }, 521 U.S. at 625 

(“Predominance is a test readily met in certain cases alleging . . . violations of the antitrust laws.”); see 

also In re Vitamins Antitrust Litig., 209 F.R.D. 251, 254 (D.D.C. 2002){ TA \l "In re Vitamins Antitrust 

Litig., 

209 F.R.D. 251 (D.D.C. 2002)" \s "In re Vitamins Antitrust Litig." \c 1 } (“[A]s a rule, the allegation 

of a price-fixing conspiracy is sufficient to establish predominance of common questions[.]”) (quoting

NEWBERG ON CLASS ACTIONS § 18.28 at 18-98 (3d ed. 1992){ TA \l "NEWBERG ON CLASS ACTIONS

§ 18.28 at 18-98 (3d ed. 1992)" \s "Newberg on Class Actions § 18.28 at 18-98 (3d ed. 1992)" \c 3 }). 

This Circuit has also held “[p]redominance is a test readily met in certain cases alleging . . . violations 

of the antitrust laws, because proof of the conspiracy is a common question that is thought to 

predominate over the other issues of the case.” In re Scrap Metal Antitrust Litig.{ TA \s "In re Scrap 

Metal Antitrust Litig." }, 527 F.3d at 535 (quoting Amchem, 521 U.S. at 625).5 Furthermore, here the 

 

5

 Other courts have recognized that the existence and scope of an alleged antitrust conspiracy are 

matters susceptible to class-wide proof, and thus tend to support a finding that common issues 

predominate over individual ones as to at least the first element of an antitrust conspiracy claim. See, 

e.g., Cordes & Co. Financial Services, Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 105 (2d Cir. 2007){

TA \l "Cordes & Co. Financial Services, Inc. v. A.G. Edwards & Sons, Inc., 

502 F.3d 91 (2d Cir. 2007)" \s "Cordes & Co. Financial Services, Inc. v. A.G. Edwards & Sons, Inc." 

\c 1 }; Blades v. Monsanto Co., 400 F.3d 562, 572 (8th Cir. 2005){ TA \l "Blades v. Monsanto Co., 

400 F.3d 562 (8th Cir. 2005)" \s "Blades v. Monsanto Co." \c 1 }; In re Visa Check/MasterMoney 

Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001){ TA \l "In re Visa Check/MasterMoney Antitrust Litig., 

280 F.3d 124 (2d Cir. 2001)" \s "In re Visa Check/MasterMoney Antitrust Litig." \c 1 }; In re Blood 

Reagents Antitrust Litig., 283 F.R.D. 222, 234 (E.D. Pa. 2012){ TA \l "In re Blood Reagents Antitrust Litig., 

283 F.R.D. 222 (E.D. Pa. 2012)" \s "In re Blood Reagents Antitrust Litig." \c 1 }; Reed v. Advocate 

Health Care, 268 F.R.D. 573, 581 (N.D. Ill. 2009){ TA \l "Reed v. Advocate Health Care, 

268 F.R.D. 573 (N.D. Ill. 2009)" \s "Reed v. Advocate Health Care" \c 1 }; In re Urethane Antitrust 

Litig., 251 F.R.D. 629, 634 (D. Kan. 2008){ TA \l "In re Urethane Antitrust Litig., 

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31 

evidence that will prove a violation as to one Settlement Classes Member is common to the others 

and will be sufficient to prove it as to all—the anticompetitive conduct is not dependent on the 

separate conduct of the individual Settlement Class Members. See Packaged Ice{ TA \s "In re Packaged 

Ice Antitrust Litig." }, 2011 U.S. Dist. LEXIS 17255, at *43. 

This is true even if there are individual state law issues, as long as the common issues still 

outweigh the individual ones, e.g., as long as a common theory can be alleged as to liability and impact 

that can be pursued by the class. See, e.g., In re Whirlpool Corp.{ TA \s "In re Whirlpool Corp. FrontLoading Washer Prods. Liab. Litig." }, 722 F.3d at 861 (“[I]t remains the ‘black letter rule’ that a class 

may obtain certification under Rule 23(b)(3){ TA \s "Fed. R. Civ. P. 23" } when liability questions 

common to the class predominate over damages questions unique to class members.” (internal 

quotation marks and citation omitted)); Scrap Metal{ TA \s "In re Scrap Metal Antitrust Litig." }, 527 

F.3d at 535 (where common issues determine liability, fact that damages calculation may involve 

individualized issues does not defeat predominance). Issues common to the proposed Settlement 

Classes predominate in these cases—all ADs allegedly paid overcharges that were caused by the 

Defendants’ price-fixing activities. The presence of these common issues of liability and impact 

predominates over any individual issues and strongly support provisional certification of the proposed

Settlement Classes. 

ii. A Class Action is the Superior Method to Adjudicate These Claims. 

 Rule 23(b)(3){ TA \s "Fed. R. Civ. P. 23" } also requires that a class action be superior to other 

available methods of fairly adjudicating the controversy. The superiority of class certification over 

other available methods is measured by consideration of certain factors, including: the class members’

interests in controlling the prosecution of individual actions; the extent and nature of any litigation 

 

251 F.R.D. 629 (D. Kan. 2008)" \s "In re Urethane Antitrust Litig." \c 1 }; Foundry Resins{ TA \s "In 

re Foundry Resins Antitrust Litig." }, 242 F.R.D. at 408. 

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32 

concerning the controversy already begun by or against class members; the desirability of 

concentrating the litigation of various claims in the particular forum; and the likely difficulties in

managing a class action. Dillworth v. Case Farms Processing, Inc., No. 5:08-cv-1694, 2010 U.S. Dist. LEXIS 

20446 (N.D. Ohio Mar. 8, 2010){ TA \l "Dillworth v. Case Farms Processing, Inc., 

No. 5:08-cv-1694, 2010 U.S. Dist. LEXIS 20446 

(N.D. Ohio Mar. 8, 2010)" \s "Dillworth v. Case Farms Processing" \c 1 }. 

Courts consistently hold that class actions are a superior method of resolving antitrust claims 

like those alleged here. See In re Universal Serv. Fund Tel. Billing Practices Litig., 219 F.R.D. 661, 678 (D. 

Kan. 2004){ TA \l "In re Universal Serv. Fund Tel. Billing Practices Litig., 

219 F.R.D. 661 (D. Kan. 2004)" \s "In re Universal Serv. Fund Tel. Billing Practices Litig." \c 1 }

(noting that individual litigation of antitrust claims would be “grossly inefficient, costly, and time

consuming”). Here, the interests of Settlement Class Members in individually controlling the 

prosecution of separate claims are outweighed by the efficiency of the class mechanism. Cardizem{ TA 

\s "In re Cardizem CD Antitrust Litig." }, 200 F.R.D. at 325-26 (finding that class action is superior 

because it ensures fair and efficient adjudication). Thousands of new-car dealerships purchased 

automobiles containing Anti-Vibrational Rubber Parts and Automotive Constant Velocity Joint Boot 

Products as a component part or indirectly purchased Anti-Vibrational Rubber Parts and Automotive 

Constant Velocity Joint Boot Products as a replacement part for an automobile during the class period;

resolving these claims in the context of a class action would conserve both judicial and private 

resources and would hasten the class members’ recovery. See, e.g., In re Foundry Resins{ TA \s "In re 

Foundry Resins Antitrust Litig." }, 242 F.R.D. at 411-12 (“Repeatedly litigating the same issues in 

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33 

individual suits would produce duplicate efforts, unnecessarily increase litigation costs, impose an 

unwarranted burden on this Court and other courts, and create a risk of inconsistent results”).6

C. The Proposed Settlement Classes Meet the Requirements of Rule 23(b)(2). 

If the requirements of Rule 23(a) are met, the Court may also certify a class under Rule 23 

(b)(2) where: “the party opposing the class has acted or refused to act on grounds that apply generally 

to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting 

the class as a whole . . .” Claims for non-monetary relief, like those asserted under state laws that do 

not recognize claims for money damages by indirect purchaser in antitrust actions, are properly 

certified under Rule 23(b)(2). The injunctive relief provided in the settlements should be certified 

under Rule 23(b)(2). 

III. Notice to the Class Members. 

 Rule 23(c)(2)(B){ TA \s "Fed. R. Civ. P. 23" } requires the Court to “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.” With regard to class action claims that are settled, 

Rule 23(e){ TA \s "Fed. R. Civ. P. 23" } instructs courts to “direct notice in a reasonable manner to 

all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1){ TA \s "Fed. R. 

Civ. P. 23" }. “[D]ue process does not require actual notice, but rather a good faith effort to provide 

actual notice.” Thacker{ TA \s "Thacker v. Chesapeake Appalachia" }, 259 F.R.D. at 271-72. To 

comport with the requirements of due process, notice must be “reasonably calculated to reach 

interested parties.” Fidel v. Farley, 534 F.3d 508, 514 (6th Cir. 2008){ TA \l "Fidel v. Farley, 

 

6

 Another criterion of Rule 23(b)(3){ TA \s "Fed. R. Civ. P. 23" } is manageability. The Supreme Court 

has made clear that manageability need not be considered where, as here, a class is being certified for 

settlement purposes. Amchem{ TA \s "Amchem Prods., Inc. v. Windsor" }, 521 U.S. at 620 

(“Confronted with a request for settlement-only class certification, a district court need not inquire

whether the case, if tried, would present intractable management problems, see Fed. R. Civ. P. 

23(b)(3)(D){ TA \s "Fed. R. Civ. P. 23" }, for the proposal is that there be no trial”). 

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34 

534 F.3d 508 (6th Cir. 2008)" \s "Fidel v. Farley" \c 1 } (citing Karkoukli’s, Inc. v. Dohany, 409 F.3d 

279, 283 (6th Cir. 2005){ TA \l "Karkoukli’s, Inc. v. Dohany, 

409 F.3d 279 (6th Cir. 2005)" \s "Karkoukli’s, Inc. v. Dohany" \c 1 }). 

 Proposed Settlement Class Counsel request that the Court allow them to defer providing 

notice of these settlements until a later time. ADs will submit a motion for leave to disseminate notice 

and that motion will include a proposed form of, method for, and date of dissemination of notice. 

CONCLUSION 

 For the foregoing reasons, ADs respectfully request that the motion for preliminary approval 

be granted and that the Court enter the accompanying Proposed Order: 

1. Preliminarily approving the Settlement Agreement; 

2. Provisionally certifying the proposed Settlement Classes; 

3. Staying the proceedings against TOYO in accordance with the terms of the Settlement 

Agreement; 

4. Authorizing Settlement Class Counsel to provide notice of the Settlement Agreement to 

members of the Settlement Classes at a later time; and 

5. Appointing Cuneo, Gilbert & LaDuca, LLP and Larson King, LLP as Settlement Class 

Counsel for these settlements. 

Dated: October 12, 2017 

 By: /s/ Gerard V. Mantese 

Gerard V. Mantese (P34424) 

MANTESE HONIGMAN, P.C. 

1361 E. Big Beaver Road 

Troy, MI 48083 

Telephone: (248) 457-9200 

Facsimile: (248) 457-9201 

gmantese@manteselaw.com 

Interim Liaison Counsel for the Automobile Dealer Plaintiffs 

Jonathan W. Cuneo 

CUNEO GILBERT & LADUCA, LLP 

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35 

4725 Wisconsin Ave., NW 

Suite 200 

Washington, DC 20016 

Telephone: (202) 789-3960 

Facsimile: (202) 789-1813 

jonc@cuneolaw.com 

Shawn M. Raiter 

LARSON KING, LLP 

2800 Wells Fargo Place 

30 East Seventh Street 

St. Paul, MN 55101 

Telephone: (651) 312-6500 

Facsimile: (651) 312-6618 

sraiter@larsonking.com 

Interim Co-Lead Counsel for the Automobile Dealer Plaintiffs

CERTIFICATE OF SERVICE

 I, Gerard V. Mantese, hereby certify that I caused a true and correct copy of MOTION AND 

MEMORANDUM IN SUPPORT OF AUTOMOBILE DEALER PLAINTIFFS’ MOTION 

FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT WITH TOYO 

DEFENDANTS AND PROVISIONAL CERTIFICATION OF SETTLEMENT CLASS to 

be served via e-mail upon all registered counsel of record via the Court’s CM/ECF system on October 

12, 2017 

 /s/ Gerard V. Mantese 

Gerard V. Mantese

2:14-cv-02902-MOB-MKM Doc # 48 Filed 10/12/17 Pg 46 of 46 Pg ID 900