EXHIBIT E

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[Proposed] Order Granting Preliminary Approval

of Class Settlement

 Case No. 4:17-CV-00018-YGR

Herman Franck, Esq. (SB #123476) 

Elizabeth Betowski, Esq. (SB #245772) 

FRANCK & ASSOCIATES 

910 Florin Road, Suite 212 

Sacramento, CA 95831 

Tel. (916) 447-8400; 

Fax (916) 447-0720 

Janet Varnell, Esq. 

Brian Warwick, Esq. 

Varnell & Warwick, P.A. 

Complex Consumer Litigation 

P.O. Box 1870 

Lady Lake, FL 32158 

Telephone: 352-753-8600; 

Fax: 352-504-3301 

bwarwick@varnellandwarwick.com 

ivarnellavarnellandwarwiek.com 

Attorneys for Plaintiffs 

Steve Ferrari, Mike Keynejad, et al. 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

STEVE FERRARI, et al., 

Plaintiffs, 

v. 

AUTOBAHN, INC. DBA AUTOBAHN 

MOTORS; MERCEDES-BENZ USA, LLC; 

AND SONIC AUTOMOTIVE, INC. 

Defendants. 

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Case No. 4:17-CV-00018-YGR 

[PROPOSED] ORDER GRANTING 

PLAINTIFFS’ MOTION FOR 

PRELIMINARY APPROVAL OF CLASS 

ACTION SETTLEMENT AND 

CERTIFICATION OF SETTLEMENT 

CLASS 

Date: July 10, 2018 

Time: 2:00 p.m. 

Judge: Hon. Yvonne Gonzalez Rogers 

Courtroom: 1 – 4th Floor 

Case 4:17-cv-00018-YGR Document 136-5 Filed 05/04/18 Page 2 of 11
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- 1 - [Proposed] Order Granting Preliminary Approval

of Class Settlements

Case No. 4:17-CV-00018-YGR 

This matter came before the Court on Plaintiffs’ Motion for Preliminary Approval of 

Class Settlement and Certification of Settlement Class. The Parties have entered into a Settlement 

Agreement (the “Settlement”) which has been filed with the Court and is attached hereto as 

Exhibit A. If approved, the Settlement would resolve all claims in the above-captioned class 

action lawsuit (the “Action” or the “Class Action Lawsuit”) against Defendants Sonic 

Automotive, Inc. and Autobahn, Inc. (collectively the “Autobahn Defendants”) and some but not 

all of the claims against Defendant Mercedes-Benz USA. Upon review and consideration of the 

motion papers and the Settlement and all exhibits thereto, including the proposed forms of notice 

to the Class and the proposed Claim Form, the Court finds that there is sufficient basis for: (1) 

granting preliminary approval of the Settlement; (2) provisionally certifying the Class for 

settlement purposes only; (3) appointing Class Counsel and the Class Representative Plaintiffs to 

represent the Class; (4) approving the Parties’ proposed notice program and forms of notice 

substantially similar to those forms attached to the Plaintiffs’ Motion for Preliminary Approval 

and directing that notice be disseminated to the Class pursuant to the notice program provided in 

the Settlement; (5) approving the Parties’ proposed Claim Form and approving the procedures set 

forth in the Settlement for Class Members to exclude themselves from the Class, and object to the 

Settlement; (6) authorizing the Parties to select a Settlement Administrator to conduct the duties 

assigned to that position in the Settlement; and (7) setting a hearing (the “Fairness Hearing”) at 

which the Court will consider: (a) whether to grant Final Approval of the Settlement; (b) Class 

Counsel’s Application for Attorneys’ Fees and Costs; and (c) any Request for service awards for 

the Class Representative Plaintiffs. 

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT: 

1. Capitalized terms not otherwise defined herein shall have the same meaning as set forth 

in the Settlement Agreement. 

2. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332(d), and has 

personal jurisdiction over the Parties. Venue is proper in this District. 

3. This Action is provisionally certified as a class action for the purposes of settlement 

only pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(3), and 23(e). The Settlement 

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of Class Settlement

Case No. 4:17-CV-00018-YGR

Class is defined as follows: 

All consumers who during the period January 1, 2005 through February 28, 

2018 received service from Autobahn, together with all consumers who 

purchased a CPO automobile from Autobahn during the period January 1, 

2007 through December 31, 2012, as reflected in the business records of 

Autobahn, Inc. 

The Settlement Class is divided into sub-Classes 1A, 1B, 2, 3A, and 3B, which are defined in the 

Settlement Agreement. Excluded from the Class are: (a) any persons who are employees, 

directors, officers, and agents of the Autobahn Defendants or their subsidiaries and affiliated 

companies; (b) any persons who timely and properly exclude themselves from the Settlement; and 

(c) the Court, the Court’s immediate family, and Court staff. 

4. Certification of the Settlement Class shall be solely for settlement purposes and 

without prejudice to the Parties in the event the Settlement is not finally approved by this Court or 

otherwise does not take effect. 

5. In support of this Preliminary Approval Order, the Court conditionally and 

preliminarily finds, for settlement purposes only, that: (a) the members of the Settlement Class 

are so numerous that joinder of all members of the Settlement Class (“Class Members”) is 

impracticable; (b) there are questions of law and fact common to the Class Members, each of 

whom could have asserted the types of claims raised in the Action, and these questions 

predominate over any questions affecting individual Class Members; (c) the named Class 

Representatives’ claims are typical of the claims of the Class Members; (d) the named Class 

Representatives and Class Counsel identified below are able to adequately represent the Class 

Members; and (e) class-wide treatment of the disputes raised in the Action is superior to other 

available methods for adjudicating the controversy. 

6. The Court preliminarily approves the proposed Settlement as fair, reasonable, and 

adequate, entered into in good faith, free of collusion, and within the range of possible judicial 

approval. The Court makes note of the Parties’ representation that the Settlement was reached 

through extensive arms-length negotiations supervised by mediator and retired Judge Raul 

Ramirez. 

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- 3 - [Proposed] Order Granting Preliminary Approval

of Class Settlement

Case No. 4:17-CV-00018-YGR

7. The Court appoints the following as Class Counsel: Varnell & Warwick, P.A. and 

Franck & Associates. 

8. The Court appoints Plaintiffs Steve Ferrari, Michael Keynejad, Patricia Rubin, John 

Diaz, Ray Gapasin, and Harold Fethe as Class Representatives for the Settlement Class. 

9. The Court directs the parties to select a Settlement Administrator to carry out all duties 

and responsibilities of the Settlement Administrator specified in the Settlement. 

10. The Court approves the program for disseminating notice to the Class set forth in the 

Settlement (the “Notice Program”). The Court approves the form and content of the proposed 

forms of notice in the forms attached to the Motion for Preliminary Approval as Exhibits B 

and C. The Court finds that the proposed forms of notice are clear and readily understandable by 

Class Members. The Court finds that the Notice Program, including the proposed forms of notice, 

constitutes the best notice practicable under the circumstances, constitutes valid, due, and 

sufficient notice to the Class in full compliance with the requirements of applicable law, including 

Federal Rule of Civil Procedure 23 and the Due Process Clause of the United States Constitution, 

and is the only notice to the Class of the Settlement that is required. 

11. The Court approves the form and content of the proposed Claim Form, in the form 

attached to the Motion for Preliminary Approval as Exhibit D, and approves the procedures set 

forth in the Settlement for Class Members to submit Claims. The Court further approves of the 

procedures set forth in the Settlement for Class Members to receive vouchers, redeem vouchers, 

and receive redemption checks. 

12. The Parties acknowledge that the Autobahn Defendants have prepared a list of Class 

Members that is reasonably calculated to include the email addresses and physical addresses of all 

the Class Members known by the Autobahn Defendants, for the Settlement Administrator’s use in 

disseminating notice, vouchers, claim forms, and redemption checks. The list of Class Members, 

and the information provided therein, shall be used only to effectuate the Agreement. 

13. The “Notice Date” shall be 30 days after issuance of this Order. 

14. By no later than the Notice Date, the Settlement Administrator shall send the Short 

Form Class Notice in the form approved by the Court, to Class Members via email for those Class 

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of Class Settlement

Case No. 4:17-CV-00018-YGR

Members for whom an email address is available, along with a link to the Settlement Website. 

Where a Class Member’s email address is unknown, the Settlement Administrator shall send the 

Short Form Class Notice in the form of a postcard to the class member’s last known address. 

15. By no later than the Notice Date, the Settlement Administrator shall post the Long 

Form Class Notice, in the form approved by the Court, on the Settlement Website. 

16. The Settlement Administrator shall establish and use a Settlement Website to allow 

Class Members to find further information about the terms of the Settlement, their rights, 

important dates and deadlines, and related information. The Settlement Website shall include, in 

PDF format, the operative complaint, the Settlement Agreement, the Motion for Preliminary 

Approval, the Preliminary Approval Order, the Long Form Class Notice, any papers filed in 

support of Final Approval of the Settlement, Class Counsel’s Application for Attorneys’ Fees and 

Costs (after it is filed), the Final Approval Order (after it is entered), and other case documents as 

agreed upon by the Parties and/or required by the Court and shall be operational and live on the 

date the Settlement Administrator begins emailing notice. The Settlement Administrator shall 

take down the Settlement Website no later than one hundred and eighty (180) days after the 

Effective Date. Within five (5) business days after the Settlement Website is taken down, the 

Settlement Administrator shall transfer ownership of the URL for the Settlement Website to the 

Autobahn Defendants. 

17. The Settlement Administrator shall establish and maintain a toll-free telephone 

number (“Toll-Free Number”) where Class Members can call to request a copy of the Settlement 

Agreement, a Claim Form, or any other information concerning the Settlement or the Settlement 

Agreement. 

18. Any Class Member who wishes to be excluded from the Class must mail a written 

request for exclusion to the Settlement Administrator, postmarked no later than the Opt-Out 

Deadline: September 8, 2018 which: (a) must contain the name and address of the person to be 

excluded; (b) if applicable, must contain the name and address of any person claiming to be 

legally entitled to submit an exclusion request on behalf of the Class Member and the basis for 

such legal entitlement; (c) must be mailed by U.S. Mail, proper postage prepaid, to the Settlement 

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of Class Settlement

Case No. 4:17-CV-00018-YGR

Administrator at the specified mailing address; (d) must be submitted or postmarked on or before 

the Opt-out Deadline; and (e) must be personally signed and clearly indicate that he/she wants to 

be excluded from the Class. So-called “mass” or “class” opt-outs shall not be allowed. 

19. If the Settlement is finally approved and becomes effective, any Class Member who 

does not send a timely and valid request for exclusion shall be a Settlement Class Member and 

shall be bound by all subsequent proceedings, orders, and judgments in the Action, including, but 

not limited to, the Release, even if he or she has litigation pending or subsequently initiates 

litigation against the Autobahn Defendants relating to the claims and transactions released in the 

Action. 

20. Any Class Member or person legally entitled to act on his or her behalf may object to 

the fairness, reasonableness, or adequacy of the Settlement, to Class Counsel’s Request for 

Attorneys’ Fees and Costs (“Fee Application”), and/or the Request for service awards for the 

Plaintiffs. To be valid, any objection must be made in writing, must be filed with the Court and 

served upon Class Counsel and counsel for the Autobahn Defendants no later than the Objection 

Deadline: September 8, 2018, and must include the following: (a) the name of the Action 

(Ferrari v. Autobahn, Inc., No. 17-CV-0018-YGR); (b) the objector’s full name, address, and 

telephone number; (c) if applicable, the name and address of any person claiming to be legally 

entitled to object on behalf of a Class Member and the basis of such legal entitlement; (d) whether 

the objector is represented by counsel and, if so, the identity of such counsel, and all previous 

objections filed by the objector and their counsel within the last two years; (e) a notice of intent to 

appear at the Final Fairness Hearing if the objector intends to so appear; (f) a statement of all 

objection(s) being asserted; (g) a description of the facts and legal authorities underlying each 

objection; (h) a list of any witnesses who may be called to testify at the Final Fairness Hearing, 

whether in person, by deposition, or affidavit; (i) a list of any exhibits, and copies of same, which 

the objector may offer at the Final Fairness Hearing; and (j) the objector’s signature. 

21. Any Class Member who submits a timely and valid written objection may appear at 

the Fairness Hearing, either in person or through personal counsel hired at the Class Member’s 

own personal expense. Any Class Member who does not submit a timely and valid objection shall 

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Case No. 4:17-CV-00018-YGR

be deemed to have waived all objections and shall forever be foreclosed from making any 

objection to the fairness, adequacy, or reasonableness of the Settlement and any Final Approval 

Order and Final Judgment entered approving it, Class Counsel’s Fee Application, or any Request 

for service awards for the Plaintiffs. 

22. Upon request, the Settlement Administrator shall provide to the Parties proof of the 

extent and effectiveness of Class Notice. 

23. Upon the request, the Settlement Administrator shall provide to Class Counsel and the 

Autobahn Defendant’s Counsel all exclusion requests submitted by Class Members, including 

any related correspondence. After the Opt-Out Deadline has passed, the Settlement Administrator 

shall provide to Class Counsel and Autobahn Defendant’s Counsel a complete and final list of 

Class Members who submitted requests to exclude themselves from the Class. 

24. Class Counsel shall file their Motion for Attorneys’ Fees and Service Awards for the 

Plaintiffs by no later than August 30, 2018. After it is filed, Class Counsel’s Motion for 

Attorneys’ Fees and service awards for the Plaintiffs shall be posted on the Settlement Website. 

25. The Parties shall file any motions in support of Final Approval of the Settlement, 

including any responses to any Class Member objections, by no later than September 28, 2018. 

26. The Fairness Hearing shall be scheduled for October 16, 2018, at 2:00 p.m. to assist 

the Court in determining whether the Settlement should be finally approved as fair, reasonable, 

and adequate to the Settlement Class Members; whether Final Judgment should be entered 

dismissing the Autobahn Defendants and the Released Claims with prejudice; whether Class 

Counsel’s Fee Application should be approved; and whether any request for service awards for 

the Plaintiffs should be approved. 

27. The Court reserves the right to modify the date of the Fairness Hearing and related 

deadlines set forth herein. In the event the Fairness Hearing is moved, the new date and time shall 

be promptly posted on the Settlement Website by the Settlement Administrator. 

28. This Order shall become null and void and shall be without prejudice to the rights of 

the Parties, all of whom shall be restored to their respective positions as they existed immediately 

before the Court entered this Order, if: (a) the Settlement is not finally approved by the Court, or 

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of Class Settlement

Case No. 4:17-CV-00018-YGR

does not become final, pursuant to the terms of the Settlement; (b) the Settlement is terminated in 

accordance with the Settlement; or (c) the Settlement does not become effective pursuant to the 

terms of the Settlement for any other reason. 

29. If the Settlement does not become final and effective pursuant to the terms of the 

Settlement, the Class Representatives, the Class Members, and the Autobahn Defendants shall be 

returned to their respective statuses as of the date immediately prior to the execution of the 

Settlement Agreement, and this Preliminary Approval Order shall have no force or effect, and 

neither this Preliminary Approval Order nor the Settlement shall be construed or used as an 

admission, concession, or declaration by or against Autobahn Defendants of any fault, 

wrongdoing, breach, or liability, or be construed or used as an admission, concession, or 

declaration by or against any of the Plaintiffs or Class Members that their claims lack merit or 

that the relief requested is inappropriate, improper, or unavailable, or as a waiver by any party of 

any defenses or claims he, she, or it may have in this Action or in any other lawsuit, and it shall 

not be admissible in evidence, or usable for any purpose whatsoever in the Action, any 

proceeding between the Parties, or in any action related to the Released Claims or otherwise 

involving the Parties, Class Members, or any Released Party. 

30. Pending the final determination of whether the Settlement should be approved, all 

claims against the Autobahn Defendants in this Action, except as may be necessary to implement 

the Settlement or comply with the terms of the Settlement, are hereby stayed. 

31. Pending the final determination of whether the Settlement should be approved, 

Plaintiffs and each Class Member, and any person purportedly acting on behalf of any Class 

Member(s), are hereby enjoined from commencing, pursuing, maintaining, enforcing, or 

prosecuting, either directly or indirectly, any Released Claims in any judicial, administrative, 

arbitral or other forum, against any of the Released Parties or Partially Released Entities, 

provided that this injunction shall not apply to the claims of any Class Members who have timely 

and validly requested to be excluded from the Class. Such injunction shall remain in force until 

the Effective Date or until such time as the Parties notify the Court that the Settlement has been 

terminated, or until such time that the Court issues an order modifying this injunction. This 

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injunction is necessary to protect and effectuate the Settlement, this Preliminary Approval Order, 

and this Court’s authority regarding the Settlement, and is ordered in aid of this Court’s 

jurisdiction and to protect its judgments. 

32. At the request of the Parties, and to improve the efficiency of the 

administration process, the Court orders the following modifications to the procedure 

outlined in the Settlement Agreement to be followed by the Settlement Administrator:a.

 Vouchers for Classes 1A/1B and 3A/3B shall be sent at the same time as Vouchers 

for Class 2 (i.e, within three (3) weeks of the deadline for submission of Claims Forms). 

b. For class members notified by email, the Settlement Administrator may use 

the Long Form Notice in the body of the email rather than the Short Form Notice. 

c. The Settlement Administrator is relieved of the requirement to make 

periodic reports to the Parties but shall make such information available to the Parties 

upon request. This includes information concerning exclusion requests received, vouchers 

redeemed for cash, fee and expense reports, and other matters relating to administration of 

the Settlement. 

d. The Settlement Administrator should consider how the timing of 

establishing any necessary bank accounts and issuing checks will impact administrative 

costs, including tax filings, and attempt to minimize such costs. The Settlement 

Administrator shall consult with counsel for the Parties and seek relief from the Court if it 

is necessary to alter deadlines ordered by the Court in order to reasonably minimize such 

costs. 

33. Class Counsel, the Autobahn Defendants, and the Settlement Administrator are 

directed to carry out their obligations under the Settlement and this Preliminary Approval Order. 

34. Without further order of the Court, the Parties may agree to make non-material 

modifications in implementing the Settlement Agreement that are not inconsistent with this 

Order. 

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Summary of Key Dates*: 

Event Date 

Notice Date August 9, 2018 

[Within 30 days of preliminary approval] 

Deadline to file Motion for Attorneys’ Fees and 

service awards 

August 30, 2018 

Opt-out Deadline September 8, 2018 

[Within 30 days of Notice Date] 

Objection Deadline September 8, 2018 

[Within 30 days of Notice Date] 

Filing of Motion for Final Approval September 28, 2018 

Hearing on Motion for Final Approval and 

Motion for Attorneys’ Fees and Service 

Awards 

October 16, 2018 

*Dates listed above assume preliminary approval on July 10, 2018. 

IT IS SO ORDERED. 

Dated __________________ 

YVONNE GONZALEZ ROGERS 

United States District Judge 

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