RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0102p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

IN RE: AUTOMOTIVE PARTS ANTITRUST LITIGATION, 

End-Payor Actions.

___________________________________________

END-PAYOR PLAINTIFFS,

Plaintiffs-Appellees,

v.

FINANCIAL RECOVERY SERVICES, LLC,

Proposed Intervenor-Appellant.

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No. 20-2260

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

No. 2:12-md-02311—Sean F. Cox, District Judge.

Argued: April 27, 2022

Decided and Filed: May 12, 2022

Before: SUTTON, Chief Judge; MOORE and GILMAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Aaron M. Panner, KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, 

P.L.L.C., Washington, D.C., for Appellant. Chanler A. Langham, SUSMAN GODFREY L.L.P., 

Houston, Texas, for Appellees. ON BRIEF: Aaron M. Panner, KELLOGG, HANSEN, TODD, 

FIGEL & FREDERICK, P.L.L.C., Washington, D.C., for Appellant. Chanler A. Langham, 

SUSMAN GODFREY L.L.P., Houston, Texas, Marc M. Seltzer, SUSMAN GODFREY L.L.P., 

Los Angeles, California, for Appellees.

>
No. 20-2260 In re Automotive Parts Antitrust Litig. Page 2

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. More than a year and a half after final 

approval of third-round settlements in a billion-dollar multidistrict litigation, Financial Recovery 

Services, LLC (FRS), a company that manages and files claims on behalf of its insurer clients, 

moved to intervene. The district court denied FRS’s motion, finding FRS’s intervention 

untimely. Because the district court did not abuse its discretion, we AFFIRM the district court’s 

judgment.

I. BACKGROUND

The parties dispute FRS’s claims to a subset of class-action settlement recoveries in the 

Automotive Parts Antitrust multi-district litigation. In those actions, a subset of consumers and 

businesses known as the End-Payor Plaintiffs (Appellees in this case), alleged that defendant 

automotive-part manufacturers fixed prices in violation of antitrust laws. See, e.g., R. 229 (No. 

2:12-cv-00403) (Third Am. Compl. ¶ 1, 210–21) (Page ID #8250–51, 8304–06). End-Payor 

Plaintiffs alleged that they paid elevated prices for defendants’ parts or purchased or leased 

vehicles containing defendants’ parts. Id. ¶ 3–4 (Page ID #8251–52).

After eight years of motion practice, negotiations, approval hearings, and objections, the 

district court granted final approval to settlements between End-Payor Plaintiffs and defendants 

in four rounds, on June 20, 2016, September 25, 2017, November 8, 2019, and September 17, 

2020. In re Auto. Parts Antitrust Litig., No. 12-MD-2311, 2020 WL 6737545, at *1, 3 (E.D. 

Mich. Nov. 17, 2020). The settlement agreements, as well as the class notices and plans of 

allocation for each settlement agreement, defined the classes of plaintiffs to include consumers 

and businesses that bought or leased certain qualifying vehicles or paid to replace certain 

qualifying vehicle parts during designated time periods. See, e.g., R. 2027-231(Round 3 

Settlement Class Notice at 9) (Page ID #37485); R. 112-1 (No. 2:16-cv-03703) 

1Unless indicated otherwise, record cites in this opinion refer to the Automotive Parts multi-district 

litigation docket, Case No. 2:12-md-02311.
No. 20-2260 In re Automotive Parts Antitrust Litig. Page 3

(Exhaust Systems Settlement Agreement ¶ 13, 15) (Page ID #3819). The class definitions did 

not include insurers, assignees, or subrogees.

In May 2018, FRS, a third-party company that manages and files claims for its clients, 

began to submit claims on behalf of eight insurers. R. 2060-3 (12/13/2019 Letter from FRS to 

Judge Battani at 1) (Page ID #37734); R. 2060-2 (Leibell Decl. ¶ 9) (Page ID #37728–29). 

These insurers sought to recover portions of the settlement based on two theories. First, and only 

marginally relevant to this appeal, FRS submitted claims on behalf of insurers that purchased or 

leased eligible vehicles for company use (what the parties call “Fleet Vehicles”). R. 2060-2 

(Leibell Decl. ¶ 9) (Page ID #37728–29). Second, FRS submitted claims that are at issue in this 

appeal based on what it perceived as its clients’ subrogation rights to class members’ claims. Id.

¶ 10–11) (Page ID #37729); R. 2060-3 (12/13/2019 Letter from FRS to Judge Battani at 1–2) 

(Page ID #37734–35). Under the common-law theory of equitable subrogation, an insurer who 

compensated its insureds for injuries that another party inflicted may assume the right of the 

insureds to sue the party that caused the injury. Nat’l Sur. Corp. v. Hartford Cas. Ins. Co., 

493 F.3d 752, 756 (6th Cir. 2007). FRS alleges that the insurance companies that FRS represents 

paid insured class members for vehicles that were deemed a “total loss” due to theft or damage. 

R. 2060-3 (12/13/2019 Letter from FRS to Judge Battani at 1–2, 4–7) (Page ID #37734–35, 

37737–40). The insurers allegedly paid an inflated market value for these vehicles when the cost 

of repairing them exceeded the value of these so-called “Total Loss Vehicles.” As a result, FRS 

argues, the insurers are equitably subrogated to their insureds’ claims against defendants. Id.

Under the settlement plan of allocation, each claimant was required to submit information 

about the vehicle that the claimant purchased or leased, the date the claimant purchased the 

vehicle, and the residence of the claimant. See, e.g., R. 2005-2 (Plan of Allocation at 2) (Page ID 

#36629). Because FRS represented eight insurance companies with many clients, retrieving and 

submitting all the information needed to support these claims would expend much time and 

resources. R. 2060-5 (11/14/2018 Email from FRS to End-Payor Plaintiffs) (Page ID #37777); 

R. 2114-2 (Third Leibell Decl. ¶ 11) (Page ID #38342–43). Thus, when FRS submitted these 

Total Loss Vehicle claims to the claims administrator between May 2018 and March 2020, it did 

not provide any of this supporting information with the claims. R. 2060-2 (Leibell Decl. ¶ 9–10) 
No. 20-2260 In re Automotive Parts Antitrust Litig. Page 4

(Page ID #37728–29). Instead, FRS submitted so-called “placeholder claims,” hoping that the 

claims administrator would allow FRS to supplement those claims later. Id. ¶ 10 (Page ID 

#37729).

Shortly after FRS began submitting claims, in August 2018, the district court issued a 

decision that, according to FRS, “invited . . . a claim based on subrogation” in the Automotive 

Parts litigation. Reply Br. at 6–7 (citing GEICO Corp. v. Autoliv, Inc., 345 F. Supp. 3d 799 

(E.D. Mich. 2018)). Two years earlier, the insurance company GEICO had opted out of the first 

round of End-Payor Plaintiff settlements and pursued individual claims against a subset of 

defendants. GEICO, 345 F. Supp. 3d at 808. GEICO pursued theories of recovery based on its 

own purchase of automotive parts in its own Fleet Vehicles and its reimbursement of insureds for 

the full value of total-loss vehicles, similar to the theories FRS now advances. Id. at 809. The 

defendants moved to dismiss, and the district court allowed GEICO to amend its complaint to 

include a claim based on equitable subrogation. Id. at 830–34. In granting GEICO leave to 

amend its complaint, however, the district court did not “determine the viability” of GEICO’s 

“potential subrogation rights.” Id. at 830, 833.

A couple of months after the GEICO decision, in November 2018, FRS contacted EndPayor Plaintiffs’ class counsel to discuss the most efficient way to supplement FRS’s placeholder 

claims. R. 2060-5 (11/14/2018 Email from FRS to End-Payor Plaintiffs) (Page ID #37777). The 

following month, FRS discussed its subrogation claims with class counsel, and in January 2019, 

sent class counsel a research memorandum outlining the legal support for its theory. R. 2060-6 

(1/14/2019 Email from FRS to End-Payor Plaintiffs) (Page ID #37779).

During a later January 2019 phone call between the parties, End-Payor Plaintiffs 

“disagreed with FRS that the Insurers may recover from the End-Payor Settlements as 

subrogees.” R. 2060-2 (Leibell Decl. ¶ 6) (Page ID #37727–28). FRS inquired about potential

ways to raise this issue with the district court should the disagreement continue. Id. End-Payor 

Plaintiffs responded that “the [i]nsurers should file claims, wait for them to be rejected, and then 

appeal that rejection to the [district court].” Id. FRS protested that submitting claims for “many 

thousands” of vehicles would be impractical. Id. The parties agreed to revisit the matter later. 

Id.
No. 20-2260 In re Automotive Parts Antitrust Litig. Page 5

FRS did not contact End-Payor Plaintiffs again until October 17, 2019, nine months later. 

R. 2060-7 (10/17/2019 Email from FRS to End-Payor Plaintiffs) (Page ID #37818). The district 

court in August 2019 had set a December 31, 2019 deadline to file claims. R. 291 (No. 2:12-cv00403) (8/2/2019 Order ¶ 16) (Page ID #10401). With the claims-filing deadline “approaching,” 

FRS again asked End-Payor Plaintiffs about their position on subrogation. R. 2060-7 

(10/17/2019 Email from FRS to End-Payor Plaintiffs) (Page ID #37818–19). FRS provided 

counsel with a draft letter that it intended to file with the district court, seeking resolution of 

these issues. Id.

End-Payor Plaintiffs responded in a letter on November 2, 2019, rejecting FRS’s claims 

to recovery based on a subrogation theory. R. 2060-8 (11/2/2019 Letter from End-Payor 

Plaintiffs to FRS at 1) (Page ID #37822). End-Payor Plaintiffs insisted that “there is no question 

that Auto Insurers are not class members and therefore have no rights as class members or as 

subrogees of class members.” Id. Following a November 26, 2019 call, the parties agreed to a 

briefing schedule before the district court on the issue, “subject of course to the [district court]’s 

approval.” R. 2060-9 (11/25–26/2019 Emails between FRS and End-Payor Plaintiffs) (Page ID 

#37901–02).

After this discussion, FRS did not formally enter an appearance in the case, let alone 

enter a stipulation and briefing schedule on the docket or move to intervene as a party. Instead, 

on December 13, 2019, FRS sent a letter to the district judge via FedEx, requesting a declaration 

that FRS may recover from the settlements under an equitable-subrogation theory. R. 2060-3 

(12/13/2019 Letter from FRS to Judge Battani) (Page ID #37734). FRS did not electronically 

file the letter pursuant to local court rules, nor did it serve the letter on all the parties. 

Recognizing a week later that the district court had not docketed its letter, FRS contacted the 

district court’s chambers. The district court’s law clerk advised FRS that it “may need to 

intervene to perfect the submission of its motion and obtain the relief it sought.” R. 2060-12 

(Alarcon Decl. ¶ 3) (Page ID #37921–22). End-Payor Plaintiffs responded to the letter “out of an 

abundance of caution,” filing their opposition electronically. R. 2034 (Resp. to FRS Letter Br. at 

1 & n.1) (Page ID #37518). Although End-Payor Plaintiffs’ response appeared on the docket, 

FRS’s reply—which FRS again sent to the district judge via FedEx despite chambers’ suggestion 
No. 20-2260 In re Automotive Parts Antitrust Litig. Page 6

to intervene—did not. R. 2060-4 (1/3/2020 Reply Letter from FRS to Judge Battani) (Page ID 

#37768).

Meanwhile, on December 20, 2019, the district court had granted End-Payor Plaintiffs’ 

request to extend the claims-filing deadline to March 16, 2020. R. 2032 (12/20/2019 Order ¶ 12) 

(Page ID #37511). One week before that deadline, on March 9, 2020, FRS sent a letter to the 

claims administrator, informing it of FRS’s intent to supplement its claims with the appropriate 

vehicle data once the district court ruled on the subrogation issue. R. 2060-10 (3/9/2020 Letter 

from FRS to Claims Administrator) (Page ID #37915–16). FRS forwarded this letter to EndPayor Plaintiffs the next day. R. 2060-10 (3/10/2020 Email from FRS to End-Payor Plaintiffs) 

(Page ID #37914). End-Payor Plaintiffs did not respond to this request. The district court did 

not rule on the briefing letter or approve FRS’s plan to supplement its claims.

Around the same time, End-Payor Plaintiffs again requested an extension of the claimsfiling deadline to June 18, 2020, and the district court granted their request. R. 2044 (3/24/2020 

Order) (Page ID #37658). On the day of that already twice-postponed deadline—one and a half 

years after End-Payor Plaintiffs first informed FRS that they rejected FRS’s subrogation 

theory—FRS moved to intervene as of right pursuant to Federal Rule of Civil Procedure 24(a). 

R. 2060 (Mot. to Intervene) (Page ID #37695). FRS argued that it was intervening “solely to 

give effect” to its earlier “letter motion” asking for the district court to determine that FRS may 

assert its subrogation rights. Id. at 2–3 (Page ID #37703–04). End-Payor Plaintiffs opposed the 

motion, arguing both that the motion was untimely and that FRS lacked a cognizable interest in 

the action. R. 2066 (Opp’n to Mot. to Intervene at 1–5) (Page ID #38036–41).

The district court denied the intervention motion as untimely. Auto. Parts, 2020 WL 

6737545, at *4. Although the district court questioned in a footnote whether FRS claimed a 

valid interest to intervene by virtue of its subrogation right, the court declined to address any 

other intervention requirements except timeliness. Id. at *2 & n.1. FRS timely appealed. After 

the parties briefed the issues, End-Payor Plaintiffs moved to strike references in FRS’s briefs to 

facts that were not before the district court.
No. 20-2260 In re Automotive Parts Antitrust Litig. Page 7

II. STANDARD OF REVIEW

A party seeking intervention as of right under Federal Rule of Civil Procedure 24(a)(2) 

must show that “1) the application [to intervene] was timely filed; 2) the applicant possesses a 

substantial legal interest in the case; 3) the applicant’s ability to protect its interest will be 

impaired without intervention; and 4) the existing parties will not adequately represent the 

applicant’s interest.” Blount-Hill v. Zelman, 636 F.3d 278, 283 (6th Cir. 2011). We review

under the abuse-of-discretion standard a district court’s denial of intervention as of right based 

on timeliness. Grutter v. Bollinger, 188 F.3d 394, 398 (6th Cir. 1999). Only if we are convinced 

that the district court misapplied the law, relied on clearly erroneous factual findings, improperly 

applied the law to the facts, or made a clear error of judgment can we conclude that a district 

court abused its discretion. Pittington v. Great Smoky Mountain Lumberjack Feud, LLC, 

880 F.3d 791, 799 (6th Cir. 2018).

III. TIMELINESS OF INTERVENTION

We evaluate five factors in determining whether an intervention motion was timely:

1) the point to which the suit has progressed; 2) the purpose for which 

intervention is sought; 3) the length of time preceding the application during 

which the proposed intervenors knew or should have known of their interest in the 

case; 4) the prejudice to the original parties due to the proposed intervenors’ 

failure to promptly intervene after they knew or reasonably should have known of 

their interest in the case; and 5) the existence of unusual circumstances militating 

against or in favor of intervention.

Blount-Hill, 636 F.3d at 284 (quoting Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 

1990)). In evaluating these factors, we view them “in the context of all relevant circumstances.” 

Id. (quoting Stupak-Thrall v. Glickman, 226 F.3d 467, 472–73 (6th Cir. 2000)).

A. Stage of Litigation

The first factor that we consider is the point to which the suit had progressed at the time 

of intervention. The absolute duration of the litigation matters little to this inquiry; “the stage of 

the proceedings and the nature of the case” govern the analysis. United States v. City of Detroit, 

712 F.3d 925, 931 (6th Cir. 2013); see also Stupak-Thrall, 226 F.3d at 475. Litigation is in its 
No. 20-2260 In re Automotive Parts Antitrust Litig. Page 8

final stages when the district court has already ruled on dispositive motions, Salem Pointe Cap., 

LLC v. BEP Rarity Bay, LLC, 854 F. App’x 688, 696 (6th Cir. 2021), closed discovery, StupakThrall, 226 F.3d at 475, certified classes, Clarke v. Baptist Mem’l Healthcare Corp., 427 F. 

App’x 431, 437 (6th Cir. 2011), or held fairness hearings that lead to settlement approval, In re 

S. Ohio Corr. Facility, 24 F. App’x 520, 532 (6th Cir. 2001).

All those benchmarks had long passed in this case when FRS moved to intervene. 

By any measure, FRS sought intervention at the final stage of the “litigation continuum.” See 

Stupak-Thrall, 226 F.3d at 475. FRS did not intervene or otherwise participate during the classcertification process, settlement negotiations, and final-approval hearings in over forty-one 

coordinated cases. Instead, FRS waited to intervene until the final claims submission deadline—

which had already been twice postponed—after the district court had approved the final version 

of the third round of settlement.

Recognizing that the case was nearing its final stages at the time of intervention, 

FRS asks us to zoom into the remedial stages of litigation. The parties here resolved the merits 

through settlement, but the remedial claims-administration process, FRS argues, was just 

beginning at the time it sought intervention. In FRS’s view, its decision to intervene at the 

beginning, rather than the end, of the claims-processing stage thus tips the first factor in its favor.

In support, FRS cites United States v. City of Detroit, in which we indeed recognized that 

limited intervention may sometimes foster efficiency in a case’s remedial stages. 712 F.3d at 

932. In that case, a union sought to intervene in a lawsuit involving a consent decree between 

the City of Detroit and the Environmental Protection Agency after the district court entered an 

order that affected the union’s contractual rights. Id. at 928–30. Because the union could 

participate in new matters without relitigating settled issues, we held that the district court should 

allow intervention for the limited purpose of “shaping future remedial efforts.” Id. at 933. FRS 

argues that here, like in City of Detroit, “future progress remains” on the remedial front, and that 

it merely seeks to clarify its rights in those prospective remedial efforts. Id. at 931.

FRS’s comparison fails for two reasons. First, the finish line of litigation remained out of 

sight in City of Detroit; in which we acknowledged that “despite significant progress, [the case] 
No. 20-2260 In re Automotive Parts Antitrust Litig. Page 9

cannot be expected to end any time soon.” Id. The parties in this case face none of the moving 

targets that extend the remedial process in litigation implementing injunctive relief—namely 

organization, compliance, and human resources challenges. After the claims-administration 

process, there remains “very little” for the district court to do in this case. See United States v. 

Tennessee, 260 F.3d 587, 592 (6th Cir. 2001).

Second, unlike in City of Detroit, allowing intervention would revisit settled issues. Cf. 

id., 712 F.3d at 932. If it were to allow intervention, the district court would have to decide 

whether FRS has a right to any of the settlement proceeds. This would require, for all practical 

purposes, revisiting the class definition and the plan of allocation, issues that have long been 

resolved. See R. 2097 (Pinkerton Decl. ¶ 24–26) (Page ID #38200–01). Intervention would thus 

require the parties to “re-litigate issues that [FRS] watched from the sidelines.” See City of 

Detroit, 712 F.3d at 932. Because the district court did not abuse its discretion in finding that 

“the suit has progressed to a very advanced stage,” Auto. Parts, 2020 WL 6737545, at *4, this 

factor weighs against FRS.

B. Purpose of Intervention

The second relevant factor is the purpose of the intervention. Our approach to this factor 

has been “somewhat inconsistent”—at times, we have peeked behind the timeliness curtain at the 

legitimacy of the intervenors’ purported interest, and at others, we have analyzed whether the 

would-be intervenors acted promptly in light of their stated purposes. See Kirsch v. Dean, 733 F. 

App’x 268, 275–76 (6th Cir. 2018). Here, although the district court briefly mused about the 

legitimacy of FRS’s subrogation interests in a footnote, its opinion addressed timeliness only. 

Auto. Parts, 2020 WL 6737545, at *2 & n.1. Because we review the district court’s opinion 

under the abuse-of-discretion standard, Grutter, 188 F.3d at 397, we view the “purpose” inquiry 

as the district court did: through the lens of timeliness. Without deciding the legitimacy of the 

underlying subrogation right, we ask whether FRS promptly intervened to pursue its stated 

interest.

FRS argues that its interest is “narrow”—it seeks merely to clarify whether its insurer 

clients have a right to equitable subrogation. Appellant Br. at 29. We are indeed more inclined 
No. 20-2260 In re Automotive Parts Antitrust Litig. Page 10

to grant intervention when the purpose of intervention is limited in scope. See City of Detroit, 

712 F.3d at 931–32. As End-Payor Plaintiffs point out, however, FRS’s purpose for intervention 

is broader than FRS suggests on appeal. If the district court were to find that FRS possesses a 

subrogation right, FRS would also have to seek to supplement its claims with the requisite 

supporting information. See R. 2060 (Mem. in Supp. of Mot. to Intervene at 3) (Page ID 

#37704) (requesting that the district court “clarify that the [i]nsurers may supplement their 

claims in accordance with the [district court]’s resolution of the threshold legal issue”). Because 

of the practical consequences of processing the supplemental information, the ultimate end-goal 

of FRS’s intervention—to determine whether it had a subrogation right and to assert that right if 

it did—reaches far beyond mere clarification of a legal issue. Due to the likelihood of delay that 

would result from such a far-reaching request, FRS should have asserted its interest as early as 

possible to avoid the resulting prejudice to class members. As discussed in the next section, 

however, FRS waited far too long to assert its claimed interest.

C. Length of Time Between Knowledge of Interest and Intervention

Under the next factor, we evaluate how long the intervenor took to move after it knew or 

should have known that its interests in the case were implicated. Stupak-Thrall, 226 F.3d at 477. 

More precisely, we ask when the intervenor should have known that the parties in the case would 

not protect its interests. Cameron v. EMW Women’s Surgical Ctr., P.S.C., 142 S. Ct. 1002, 1012 

(2022). The district court did not clearly articulate when FRS should have intervened. In any 

event, multiple triggering points—all significantly earlier than June 2020—should have alerted 

FRS that it needed to act.

We note that FRS was aware of this litigation by at least May 2018, when it submitted 

claims for the first two rounds of settlement. Even at that point, it was clear that the litigation 

impacted FRS’s interests and that End-Payor Plaintiffs’ interests were not aligned with FRS’s 

interests. Allowing FRS to claim subrogation rights after settlement would uproot earlier efforts 

to define classes, expend considerable resources to amend allocation plans, and increase costs 

associated with the claims-administration process, thereby reducing the amount of settlement 

proceeds available. Recognizing that FRS’s “interests were implicated,” even at that juncture, 

would not require “unusual prescience.” Cuyahoga Valley Ry. Co. v. Tracy, 6 F.3d 389, 396 
No. 20-2260 In re Automotive Parts Antitrust Litig. Page 11

(6th Cir. 1993). In other words, FRS should have been aware by at least May 2018 that EndPayor Plaintiffs would inadequately represent its subrogation interests. Cf. Jansen, 904 F.2d at 

341 (intervention proper when parties’ interests were aligned at the beginning of the litigation); 

see also CE Design Ltd. v. King Supply Co., 791 F.3d 722, 726 (7th Cir. 2015). Rather than 

participating in settlement discussions, or at least in the fairness hearings approving the 

settlement agreements, FRS watched from the sidelines. See S. Ohio Corr. Facility, 24 F. App’x 

at 532.

FRS argues that the district court recognized the legitimacy of its clients’ subrogation 

rights in its GEICO decision, so FRS reasonably believed before its January 2019 call that EndPayor Plaintiffs would too. But FRS reads too much into the GEICO opinion. As the district 

court correctly observed in its opinion denying intervention, the court in GEICO did not 

“determine the viability” of the subrogation theory; it merely allowed GEICO to amend its

complaint to plead it. Auto. Parts, 2020 WL 6737545, at *2 n.1 (citing GEICO, 345 F. Supp. 3d 

at 830–34). The district court in GEICO was equivocal on the legal basis for the theory and 

recognized that it needed more facts to evaluate the theory. See GEICO, 345 F. Supp. 3d at 833–

34 (referring to GEICO’s “potential” or “claimed” subrogation rights). Nothing in the GEICO

opinion suggests that FRS could recover a portion of the settlement proceeds without filing its 

own complaint with its own allegations to give the parties notice of the facts underlying FRS’s 

claims. In fact, GEICO suggests just the opposite: GEICO was required to replead the facts 

supporting its claims and “properly assert[]” its theory in an amended complaint. Id. That 

GEICO could potentially include a claim in a 2018 complaint by opting out of the settlement 

does not mean that FRS was secure in knowing that End-Payor Plaintiffs would represent its 

clients’ interests.

Even if we find reasonable FRS’s belief that End-Payor Plaintiffs would not object to its 

assertion of subrogation rights before January 2019, that still leaves a year and a half before 

FRS’s intervention. During the January 2019 call, End-Payor Plaintiffs made clear that they did 

not recognize FRS’s clients’ asserted subrogation rights. R. 2060-2 (Leibell Decl. ¶ 6) (Page ID 

#37727). At that point, FRS knew that End-Payor Plaintiffs’ interests were adverse. Even so, 

FRS waited nine more months, until October 2019, to broach the subject with End-Payor 
No. 20-2260 In re Automotive Parts Antitrust Litig. Page 12

Plaintiffs again, R. 2060-7 (10/17/2019 Email from FRS to End-Payor Plaintiffs) (Page ID 

#37818), and waited two months beyond that before asking the district court to resolve the 

dispute. R. 2060-3 (12/13/2019 Letter from FRS to Judge Battani at 1) (Page ID #37734).

FRS protests that its communications with counsel obviated any need to intervene. First, 

it argues that insurers are class members by virtue of their purchases of their own Fleet Vehicles, 

and this class membership gives rise to class counsel’s duty to represent insurers’ subrogation 

interests. Any entreaty to the district court would have been premature, even inappropriate, 

according to FRS, until class counsel formally rejected any duty to represent those interests. 

FRS claims that such a rejection did not happen until class counsel told FRS that its clients were 

not class members in November 2019.

On this point, FRS mischaracterizes the law and the facts. Class counsel indeed have a 

fiduciary duty to protect the interests of all class members; counsel cannot, for example, place 

their own interests and the interests of named class members above unnamed class members. 

See In re Dry Max Pampers Litig., 724 F.3d 713, 718 (6th Cir. 2013). None of our precedent 

suggests, however, that class counsel’s fiduciary duty extends to a class member’s interests 

outside of its status as a class member, especially when those interests conflict with those of 

existing class members. In any case, class counsel did reject any perceived duty to represent 

FRS’s interests in January 2019 when they told FRS that they did not recognize FRS’s claimed 

subrogation right. R. 2060-2 (Leibell Decl. ¶ 6) (Page ID #37727). Even if class counsel 

formally told FRS only in November 2019 that they did not recognize FRS’s clients as class 

members, the January 2019 rejection should have tipped off FRS that End-Payor Plaintiffs’ 

interests were not aligned.

FRS next relies on class counsel’s representations to excuse FRS’s late intervention. It 

argues that End-Payor Plaintiffs never mentioned in the January 2019 discussions that FRS 

should intervene and in fact encouraged FRS to wait until the end of the claims processing 

deadline to appeal any denied claims. Whatever End-Payor Plaintiffs’ suggestions, FRS was not 

entitled to “wait and see” if negotiations would have been fruitful when it had actual notice that 

its interests were adverse. See Kirsch, 733 F. App’x at 278 (citing Cuyahoga Valley Ry. Co., 

6 F.3d at 396); cf. Midwest Realty Mgmt. Co. v. City of Beavercreek, 93 F. App’x 782, 787–88 
No. 20-2260 In re Automotive Parts Antitrust Litig. Page 13

(6th Cir. 2004) (relevant triggering point for intervention was when there “was reason to believe 

[proposed intervenors’] interests were not being adequately represented” during settlement 

negotiations); see also United States v. Tennessee, 260 F.3d at 594 (holding would-be intervenor 

should have moved earlier notwithstanding “broken promises” of the opposing party). FRS 

“must now bear the consequences of its chosen path” to rely on the outcome of discussions with 

End-Payor Plaintiffs. See Kirsch, 733 F. App’x at 278.

FRS thus knew that End-Payor Plaintiffs would not adequately represent FRS’s interests 

in January 2019. But even if we ignore that fact and most charitably construe the facts in FRS’s 

favor, FRS should have known of the necessity to intervene when the district court rejected its 

letter motion in December 2019. The suggestion to consider intervention, from the court in

which FRS was seeking discretionary relief, no less, should have sounded the intervention alarm. 

FRS nonetheless waited six months, until the last day of the claim-submission deadline, to act. 

In finding that FRS sat on its hands, the district court did not abuse its discretion. See Salem 

Pointe, 854 F. App’x at 698 (upholding district court’s denial of intervention as untimely where 

intervenor did not move for five months after it should have known its interests were not 

adequately represented). Because FRS should have known that End-Payor Plaintiffs were not 

representing its interests far earlier than June 2020, this factor weighs against intervention.

D. Prejudice

Under the fourth factor, we consider the prejudice to the original parties due to the failure 

to intervene earlier. Stotts v. Memphis Fire Dep’t, 679 F.2d 579, 584 (6th Cir. 1982). We 

examine the prejudice caused by the delay in intervention, rather than prejudice caused by the 

intervention itself. City of Detroit, 712 F.3d at 933. Therefore, the district court could not 

consider in isolation any hardships that would result from FRS’s intervention and was required to 

look to the incremental prejudice that resulted from FRS’s late filing. See Salem Pointe, 854 F. 

App’x at 699. The district court found that “intervention would delay the distribution of 

settlement proceeds” and that claims processing “would be delayed if the [c]ourt were to allow 

potentially thousands of claims to be submitted after the deadline.” Auto. Parts, 2020 WL 

6737545, at *4.
No. 20-2260 In re Automotive Parts Antitrust Litig. Page 14

These findings were not clearly erroneous. Allowing FRS to intervene in June 2020 

would cause delay—at least more delay than would result had FRS intervened earlier. Of 

course, any time it would take for the claims administrator to process FRS’s valid submissions 

would be a product of intervention, not delay. FRS ignores, however, its own role in the claimsadministration process. As of June 2020, FRS had not submitted information to support most of 

its claims. R. 2097 (Pinkerton Decl. ¶ 11, 13–16) (Page ID #38196–97). Even if, as FRS 

contends, the claims process was still in its early stages at the time of intervention, the claims 

administrator would not have been able to proceed to the next steps of processing until FRS 

submitted the requisite information supporting its claims, which FRS admits would take 

considerable time. See id. ¶ 20–23 (Page ID #38198–99); R. 2060 (Mot. to Intervene at 7 n.8) 

(Page ID #37708).

FRS maintains that its claims were timely because it was merely seeking to supplement 

its already filed claims, a practice that the claims administrator has apparently allowed for other 

non-subrogation claims that contain deficiencies. The district court could reasonably conclude, 

however, that such placeholder claims are not considered timely when, as FRS admits, compiling 

the data to support these claims would involve herculean efforts. Even if placeholder claims are 

routinely permitted in other class actions as FRS argues, see R. 2114-2 (Third Leibell Decl. ¶ 17) 

(Page ID #38348), a district court, exercising its broad discretion to manage its own docket, 

ACLU of Ky. v. McCreary County, 607 F.3d 439, 451 (6th Cir. 2010), could decide that claims 

and all supporting documentation must be submitted as quickly as possible.

In sum, the district court reasonably found that FRS’s intervention in June 2020 would 

involve the submission of untimely claims and delay the distribution of settlement proceeds. In 

finding that “the prejudice to the original parties is clear,” the district court did not abuse its 

discretion. Auto. Parts, 2020 WL 6737545, at *4.

E. Unusual Circumstances

Finally, FRS argues that unusual circumstances render its late submission timely because, 

under Rule 23 of the Federal Rules of Civil Procedure, its clients are class members that did not 

need to intervene. FRS claims that it was exercising its rights as an absent class member in 
No. 20-2260 In re Automotive Parts Antitrust Litig. Page 15

submitting its December 2019 letter to the district court, and that the district court abused its 

discretion in declining to rule on the letter. Although FRS maintained in its intervention motion 

below that it “did not believe formal intervention was necessary,” FRS did not argue that it was 

seeking to clarify its rights as an absent class member under Rule 23. R. 2060 (Mem. in Supp. of 

Mot. to Intervene at 17) (Page ID #37718). Arguments not raised below are generally 

considered forfeited. Ohio State Univ. v. Redbubble, Inc., 989 F.3d 435, 443 (6th Cir. 2021).

Forfeiture aside, FRS’s purported status as an absent class member did not render its 

December 2019 letter to the district court a sufficient procedural mechanism to assert its rights. 

We are skeptical that a subrogation right—should one exist here—transforms a third-party into 

an absent class member that does not need to intervene, especially when that third-party’s 

interests are adverse to the class. Cf. United States v. Baxter Int’l, Inc., 345 F.3d 866, 873, 903 

(11th Cir. 2003) (allowing government to pursue a claimed subrogation right against members of 

a class after it filed a complaint in intervention). Even if FRS were an absent class member, 

whether a purported absent class member may move under Rule 23 to clarify its membership 

without intervention remains unsettled. Compare In re Fine Paper Antitrust Litig., 695 F.2d 

494, 499 (3d Cir. 1982) (holding absent class members may move the district court to interpret 

scope of the class), with Newberg on Class Actions § 9:37 (5th ed. 2021) (suggesting that Rule 

23 does not confer upon absent class members a right to intervene and district courts retain 

substantial discretion to fashion the scope of rights held by absent class members). And even if 

FRS could properly clarify its status as an absent class member without formal intervention, a 

district court retains broad discretion to manage class actions under Rule 23(d). Moulton v. U.S. 

Steel Corp., 581 F.3d 344, 353 (6th Cir. 2009); see also 7B Charles Alan Wright, Arthur Miller, 

& Mary Kay Kane, Fed. Prac. & Proc. Civ. § 1799 (3d ed. 2021) (“[R]egardless of which 

procedure is followed by class members seeking to intervene, intervenors still are subject to the 

court’s power under Rule 23(d)[(1)(C)] to impose conditions on their participation in the 

action.”).

In its December 2019 letter, FRS did not seek to clarify its status as a class member, did 

not notify the district court that it was moving under Rule 23, and did not follow the proper 

procedures for submitting motions to the district court. R. 2060-3 (12/13/2019 Letter from FRS 
No. 20-2260 In re Automotive Parts Antitrust Litig. Page 16

to Judge Battani at 1) (Page ID #37734); see also E.D. Mich. Local Rule 5.1.1 (requiring all 

papers to be filed electronically). When submitting its letter motion to the magistrate judge via 

FedEx, moreover, FRS did not file an appearance or properly serve all the parties in the case. No 

matter what kind of submission the December 2019 letter was, the district court acted within its 

broad discretion to reject it. As such, no unusual circumstances prevented FRS from moving 

earlier.

IV. CONCLUSION

The district court did not abuse its discretion in rejecting FRS’s assertion of rights to 

settlement claims months after the terms of the settlement were decided. FRS offers no 

legitimate excuse for failing to intervene after End-Payor Plaintiffs repeatedly expressed their 

adverse position and the district court alerted FRS to a deficient filing. In fact, End-Payor 

Plaintiffs would have suffered delay-related prejudice had the district court found otherwise. 

Finding no abuse of discretion, we AFFIRM the district court’s judgment and DENY End-Payor 

Plaintiffs’ Motion to Strike as moot.