FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN...

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

IN RE: AUTOMOTIVE PARTS ANTITRUST LITIGATION

Master File No. 12-md-02311 Hon. Marianne O. Battani

In re: Bearings Cases Case No. 2:14-cv-00507-MOB-MKM Case No. 2:14-cv-13356-MOB-MKM

THIS DOCUMENT RELATES TO:

Truck and Equipment Dealer Cases

TRUCK AND EQUIPMENT DEALER PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENTS WITH CERTAIN DEFENDANTS,

FOR PROVISIONAL CERTIFICATION OF SETTLEMENT CLASSES, AND TO AUTHORIZE DISSEMINATION OF CLASS NOTICE, AND MOTION TO REVISE

THE SKF USA INC. NOTICE AND FINAL APPROVAL SCHEDULE

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Truck and Equipment

Dealer Plaintiffs (“TED Plaintiffs”) respectfully move the Court for an order preliminarily

approving proposed Settlements in the amounts of $475,000 with Defendants Nachi-Fujikoshi

Corporation and Nachi America Inc. (collectively, “Nachi”) and $3,260,000 with Defendants

NSK Ltd. and NSK Americas, Inc. (“NSK” and collectively with Nachi, “Settling Defendants”),

provisionally certifying the proposed Settlement Classes, and approving the dissemination of

class notice and to conduct a hearing for final approval of the Settlements with Settling

Defendants.

Additionally, TED Plaintiffs move to revise the current schedule for Notice of

Settlement and Final Approval of TED Plaintiffs’ settlement with Defendant SKF USA Inc.

(“SKF USA”) as set forth in the Court’s June 1, 2017 Order Granting Truck and Equipment

DM1\7894739.1

2:14-cv-00507-MOB-MKM Doc # 70 Filed 06/19/17 Pg 1 of 54 Pg ID 3485

2 DM1\7894739.1

Dealer Plaintiff’s Motion for Preliminary Approval of Proposed Settlement with SKF USA Inc.,

Provisional Certification of Settlement Classes, and Authorization of Dissemination of Class

Notice, Case No. 2:14-cv-13356-MOB-MKM, ECF No. 75. TED Plaintiffs respectfully request

that their settlements with SKF USA, Nachi and NSK be tracked on the same schedule

culminating in one Fairness Hearing. As TED Plaintiffs have advised the Court, putting the final

settlements in the Bearings case all on the same schedule will save the class approximately

$70,000 in notice of settlement costs, as well as achieve various judicial efficiencies. See Case

No. 2:14-cv-13356-MOB-MKM, ECF No. 76.

In support of this Motion, TED Plaintiffs rely upon and incorporate by reference herein

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

Declaration of William Wickersham.

The TED Plaintiffs and Settling Defendants do not request a hearing for this motion. The

Settling Defendants do not oppose this motion and consent to the entry of the Proposed Order

submitted herewith.


3 DM1\7894739.1

Respectfully submitted,

Dated: June 19, 2017

/s/ J. Manly Parks Wayne A. Mack (PA Bar #46654) J. Manly Parks (PA Bar #74647) Sean P. McConnell (PA Bar #307740) Andrew R. Sperl (PA Bar #311467) Erica Lee Fruiterman (PA Bar #317289) William Shotzbarger (PA Bar #320490) DUANE MORRIS LLP 30 S. 17th Street Philadelphia, PA 19103 Phone: (215) 979-1000 Fax: (215) 979-1020 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Class Counsel for Truck and Equipment Dealer Plaintiffs


DM1\7894880.1


SOUTHERN DIVISION



In re: Bearings Cases

Case No. 2:14-cv-00507-MOB-MKM Case No. 2:14-cv-13356-MOB-MKM

THIS DOCUMENT RELATES TO: Truck and Equipment Dealer Cases

MEMORANDUM OF LAW IN SUPPORT OF TRUCK AND EQUIPMENT DEALER

PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENTS WITH CERTAIN DEFENDANTS,




DM1\7894880.1

PRELIMINARY STATEMENT

Truck and Equipment Dealer Plaintiffs’ (“TED Plaintiffs”) move for preliminary

approval of proposed Settlements in the amounts of $475,000 with Defendants Nachi-Fujikoshi

Corporation and Nachi America Inc. (collectively, “Nachi”) and $3,260,000 with Defendants

NSK Ltd. and NSK Americas, Inc. (“NSK” and collectively with Nachi, “Settling Defendants”).

TED Plaintiffs also move to revise the Court’s June 1, 2017 Order granting Preliminary

Approval of TED Plaintiffs’ Settlement with SKF USA Inc. (“SKF USA”) to set the final three

settlements in TED Plaintiffs’ Bearings case on the same schedule, saving the Settlement Classes

approximately $70,000 in notice of settlement costs, as well as achieving various judicial

efficiencies.

STATEMENT OF ISSUES PRESENTED

1. Whether TED Plaintiffs’ settlement with Nachi, embodied in the Settlement Agreement entered into on May 11, 2017 (“Nachi Settlement Agreement”), and attached hereto as Exhibit 1, is fair, reasonable, and adequate, and should be preliminarily approved?

Suggested Answer: Yes.

2. Whether the Court should stay the proceedings by TED Plaintiffs against Nachi in accordance with the terms of the Nachi Settlement Agreement?


3. Whether TED Plaintiffs’ settlement with NSK, embodied in the Settlement Agreement entered into on May 25, 2017 (“NSK Settlement Agreement”), and attached hereto as Exhibit 2, is fair, reasonable, and adequate, and should be preliminarily approved?


4. Whether the Court should stay the proceedings by TED Plaintiffs against NSK in accordance with the terms of the NSK Settlement Agreement?



ii DM1\7894880.1

5. Whether the Court should authorize Settlement Class Counsel to provide notice of the Nachi Settlement Agreement and NSK Settlement Agreement to Members of the Bearings Settlement Classes (as it is defined in the respective Settlement Agreements)?


6. Whether the Court should provisionally certify the Bearings Settlement Classes as they are defined herein under Federal Rule of Civil Procedure 23(a) and 23(b)(3)?

Suggested Answer: Yes. 7. Whether the Court should appoint Lead Class Counsel for TED Plaintiffs for the

respective Settlements?

Suggested Answer: Yes. 8. Whether the Court should revise its June 1, 2017 Order Granting Truck and Equipment

Dealer Plaintiff’s Motion for Preliminary Approval of Proposed Settlement with SKF USA Inc., Provisional Certification of Settlement Classes, and Authorization of Dissemination of Class Notice, Case No. 2:14-cv-13356-MOB-MKM, ECF No. 75, so that the final settlements in the Bearings case are all on the same schedule, saving the Settlement Classes approximately $70,000 in notice of settlement costs, as well as achieving various judicial efficiencies?



iii DM1\7894880.1

STATEMENT OF 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)


i DM1\7894880.1

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT ..................................................................................................... i

STATEMENT OF ISSUES PRESENTED ...................................................................................... i

STATEMENT OF CONTROLLING OR MOST APPROPRIATE AUTHORITIES .................. iii

INTRODUCTION ...........................................................................................................................1

THE BASIC TERMS AND BACKGROUND OF THE SETTLEMENT AGREEMENTS ..........4

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

I. Preliminary Approval Should Be Granted Because the Proposed Settlements Fall Well Within the Range of Possible Approval. ............................. 9

A. The Settling Defendants’ Settlement Agreements Achieve an Excellent Result for the Proposed Settlement Classes, Particularly Given the Expense, Duration, and Uncertainty of Continued Litigation. .................................................................................................. 12

B. The Settlement Agreements are the Result of Thorough Arm’s-Length Negotiations Conducted by Highly Experienced Counsel. .......... 15

II. The Proposed Settlement Classes Should be Provisionally Certified Pursuant to Rule 23. .............................................................................................. 16

A. The Proposed Settlement Classes Meet the Requirements of Rule 23(a). ......................................................................................................... 18

i. The Proposed Settlement Classes are So Numerous that It is Impracticable to Bring All Class Members Before the Court. .............................................................................................18

ii. TEDP Class Representatives and the Proposed Settlement Classes Share Common Legal and Factual Questions. ..................19

iii. TEDP Class Representatives’ Claims Are Typical of the Claims of the Members of the Proposed Settlement Classes. ........21

iv. Proposed Settlement Class Counsel and TEDP Class Representatives Will Fairly and Adequately Protect the Interests of the Proposed Settlement Classes. ................................22

B. The Proposed Settlement Classes Meet the Requirements of Rule 23(b)(3). .................................................................................................... 23


ii DM1\7894880.1

i. Common Questions of Law and Fact Predominate. ......................23

ii. A Class Action Is the Superior Method to Adjudicate These Claims. ...........................................................................................26

C. The Proposed Settlement Classes Meet the Requirements of Rule 23(b)(2). .................................................................................................... 27

III. The Court Should Approve the Form and Manner of Notice to the Members of the TED Settlement Classes. ............................................................ 27

IV. Notice Standards and Requirements. .................................................................... 27

V. The Proposed Manner of Notice Satisfies the Requirements of Fed. R. Civ. P. 23(c)(2)(B) and (e)(1). ...................................................................................... 29

VI. The Proposed Form of Notice Satisfies the Requirements of Fed. R. Civ. P. 23(c)(2)(B) and (e)(1). ...................................................................................... 30

VII. The Proposed Notices Provide Class Members with Sufficient Information about the Details of the Settlements. ..................................................................... 31

VIII. The Court Should Enter the Proposed Order, Which Schedules the Final Approval Hearing and Establishes Other Deadlines. ............................................ 35

IX. The Court’s June 1, 2017 Order Granting Truck and Equipment Dealer Plaintiff’s Motion for Preliminary Approval of Proposed Settlement with SKF USA Inc., Provisional Certification of Settlement Classes, and Authorization of Dissemination of Class Notice Should be Revised. .................. 36

CONCLUSION ..............................................................................................................................38


iii DM1\7894880.1

TABLE OF AUTHORITIES

Page Cases

In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 145 (2d Cir. 1987) ........................................32

Agretti v. ANR Freight Sys., Inc., 982 F.2d 242 (7th Cir. 1992) ......................................................9

In re Air Cargo Shipping Serv. Litig., No. 06-md-1775 (JG) (VVP), 2011 WL 2909162 (E.D.N.Y., Jul. 15, 2011) ..........................................................................................34

Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185 (S.D. Fla. 2006) ............................33

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) ..........................................................19, 21

Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ..................................................... 23-24, 27

Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184 (2013) ................................17, 24

In re Ampicillin Antitrust Litig., 82 F.R.D. 652 (D.D.C. 1979) .....................................................15

In re Automotive Parts Antitrust Litigation, MDL No. 2311 ...................................................... 1-2

In Re: Bearings, No. 2:12-cv-00500 ...................................................................................... Passim

Berland v. Mack, 48 F.R.D. 121 (S.D.N.Y. 1969) .........................................................................29

Blades v. Monsanto Co., 400 F.3d 562 (8th Cir. 2005) .................................................................25

In re Blood Reagents Antitrust Litig., 283 F.R.D. 222 (E.D. Pa. 2012) ........................................25

Bobbitt v. Acad. of Reporting, No. 07–10742, 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

Brotherton v. Cleveland, 141 F. Supp. 2d 907 (S.D. Ohio 2001) ..................................................34

In re Cardizem CD Antitrust Litig., 200 F.R.D. ............................................................................26

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

Carlough v. Amchem Prods., 158 F.R.D. 314 (E.D. Pa. 1993) .....................................................28


iv DM1\7894880.1

Cason-Merenda v. VHS of Mich., Inc., 2013 U.S. Dist. LEXIS 131006 (E.D. Mich. Sept. 13, 2013) .............................................................................................17, 19, 21, 24

In re Chambers Dev. Sec. Litig., 912 F. Supp. 822 (W.D. Pa. 1995) ............................................13

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

Connectivity Systems Inc. v. National City Bank, 2011 WL 292008 (S.D. Ohio Jan. 26, 2011) ...........................................................................................................................34

Cook v. Niedert, 142 F.3d 1004 (7th Cir. 2008) ............................................................................33

Cordes & Co. Financial Services, Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91 (2d Cir. 2007) ...........................................................................................................................25

In re Corrugated Container Antitrust Litig., 1981 WL 2093 .................................................. 14-15

In re Corrugated Container Antitrust Litig., 643 F.2d 195 (5th Cir. 1981) ..................................22

Date v. Sony Elecs., Inc., Case No. 07-15474, 2013 U.S. Dist. LEXIS 108095 (E.D. Mich. July 31, 2013) ......................................................................................................19

In re Delphi Corp. Sec. Derivatives & ERISA Litig., 248 F.R.D. 483 (E.D. Mich. 2008) ..................................................................................................................................17, 32

In re Diet Drugs Prod. Liab. Litig., 2002 WL 32154197 (E.D. Pa. Oct. 3, 2002) ........................34

Dillworth v. Case Farms Processing, Inc., No. 5:08-cv-1694, 2010 U.S. Dist. LEXIS 20446 (N.D. Ohio Mar. 8, 2010) .................................................................................26

In re Domestic Air Transp. Antitrust Litig., 141 F.R.D. 534 (N.D. Ga. 1992) ........................ 28-29

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

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ......................................................................28

Enter. Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240 (S.D. Ohio 1991) ...............................................................................................................................34

In re Farmers Ins. Exchange, Claims Representatives’ Overtime Pay Litig., 481 F.3d 1119 (9th Cir. 2007) ........................................................................................................13

Fidel v. Farley, 534 F.3d 508 (6th Cir. 2008) ................................................................................28

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


v DM1\7894880.1

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

Grunin v. Int’l House of Pancakes, 513 F.2d 114 (8th Cir. 1975) .................................................28

Hainey v. Parrott, No. 1:02–cv–733, 2007 WL 3308027 (S.D. Ohio Nov. 6, 2007) ....................34

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

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, 21

IUE-CWA v. Gen. Motors Corp., 238 F.R.D. 583 (E.D. Mich. 2006) .............................................9

In re Linerboard Antitrust Litig., 292 F. Supp. 2d 631 (E.D. Pa. 2003) ........................................14

Larson v. Sprint Nextel Corp., No. 07-5325, 2009 WL 1228443 (D. N.J. April 30, 2009) ........................................................................................................................................30

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

Liberte Capital Group v. Capwill, 2007 WL 2492461 (N.D. Ohio Aug. 29, 2007)......................34

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

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) ..............................................28

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., Case No. 08-MDL-01952, 2011 U.S. Dist. LEXIS 150427 (E.D. Mich. Dec. 13, 2011) ............................................................................12

In re Packaged Ice Antitrust Litig., No. 08-MD-01952, 2010 U.S. Dist. LEXIS 140235 (E.D. Mich. Sept. 2, 2010) ..........................................................................................17

Peters v. Nat’l R.R. Passenger Corp., 966 F.2d 1483 (D.C. Cir. 1992) ........................................27

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) .................................................................28

In re Prandin Direct Purchaser Antitrust Litig., 2015 WL 1396473 (E.D. Mich. Jan. 20, 2015) ...........................................................................................................................33


vi DM1\7894880.1

In re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F.Supp. 450 (D.N.J. 1997) ........................................................................................................................................31

In re Prudential Sec. Inc. Ltd. P’ships Litig., 164 F.R.D. 362 (S.D. N.Y. 1996) ..........................28

Rankin v. Rots, No. 02-cv-71045, 2006 U.S. Dist. LEXIS 45706 (E.D. Mich. June 28, 2006) ..................................................................................................................................10

Reed v. Advocate Health Care, 268 F.R.D. 573 (N.D. Ill. 2009) ..................................................25

In re Rent-Way Sec. Litig., 305 F. Supp. 2d 491 (W.D. Pa. 2003) ................................................13

In re Revco Sec. Litig., 1992 WL 118800 (N.D. Ohio May 6, 1992) ............................................34

Robbins v. Koger Props., Inc., 116 F.3d 1441 (11th Cir. 1997) ....................................................13

In re Scrap Metal Antitrust Litig., 527 F.3d 517 (6th Cir. 2008).............................................23, 25

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

In re Skelaxin Antitrust Litig., No. 12–cv–83, 2014 WL 2946459 (E.D. Tenn. June 30, 2014) ..................................................................................................................................34

In re Southeastern Milk Antitrust Litig., 2013 WL 2155379 (E.D. Tenn. May 17, 2013) ........................................................................................................................................32

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 Sterling Foster & Company, Inc. Sec. Litig., 238 F. Supp. 2d 480 (E.D.N.Y. 2002) ........................................................................................................................................34

Stout v. J.D. Byrider, 228 F.3d 709 (6th Cir. 2000).......................................................................21

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

Thacker v. Chesapeake Appalachia, L.L.C., 259 F.R.D. 262 (E.D. Ky. 2009) .............................15

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


vii DM1\7894880.1

In re Vitamins Antitrust Litig., 209 F.R.D. 251 (D.D.C. 2002) .....................................................24

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ...............................................................17

In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir. 2004) ............................................13

In re Washington Public Power Supply System Sec. Litig., [1989 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶94,326, 1988 WL 158947 (W.D. Wash. July 28, 1988) ........................................................................................................................................33

Weigner v. The City of New York, 852 F.2d 646 (2d Cir. 1988) ....................................................29

In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838 (6th Cir. 2013) ........................................................................................................ 18-19, 23, 25

Rules and Statutes

15 U.S.C. § 1 ........................................................................................................................ 2, 20-22

Fed. R. Civ. P. 23 ................................................................................................................... Passim

Other Authorities

6A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND

PROCEDURE § 1522 (2d ed. 1990) ..............................................................................................9

4 HERBERT B. NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS § 11.41 (4th ed. 2005) ...............................................................................................................10, 15, 19

MANUAL FOR COMPLEX LITIGATION (FOURTH) § 13.12 (2004) ............................................. Passim


DM1\7894880.1

Truck and Equipment Dealer Plaintiffs (“TED Plaintiffs”), on behalf of themselves and

all others similarly situated, by and through undersigned counsel, respectfully submit this

memorandum in support of their motion seeking preliminary approval of Settlements with

Defendants Nachi-Fujikoshi Corporation and Nachi America Inc. (collectively, “Nachi”) and

Defendants NSK Ltd. and NSK Americas, Inc. (“NSK” and collectively with Nachi, “Settling

Defendants”), provisional certification of the proposed Settlement Class, and authorization to

disseminate class notice.

INTRODUCTION

This multidistrict litigation arises from alleged conspiracies to fix the prices of certain

vehicle parts. Bearings are among the vehicle parts at issue in these coordinated proceedings, In

re Automotive Parts Antitrust Litigation, MDL No. 2311 (“MDL Proceeding”). For the purpose

of the proposed Settlements, the following definitions shall apply:

“Trucks and/or Equipment” means heavy-duty (Class 8) trucks, medium-duty (Class 4,

5, 6, & 7) trucks, buses, commercial vehicles, construction equipment, mining equipment,

agricultural equipment, railway vehicles, and other similar vehicles.1

“Truck and Equipment Dealership” means any person or entity who has purchased

Trucks and/or Equipment for resale or lease.

“Bearings” refers to bearings used in heavy-duty (Class 8) trucks, medium duty (Class 4,

5, 6, & 7) trucks, buses, commercial vehicles, construction equipment, mining equipment,

agricultural equipment, railway vehicles, and other similar vehicles as set forth in Paragraph 2 of

the First Amended Class Action Complaint, Case No. 2:14-cv-13356 (July 24, 2015) [Doc. 23]

1 Although the Settlement Class definitions slightly vary between the Nachi Settlement

Agreement and NSK Settlement Agreement that are the subject of the instant Motion, the definition used here is sufficiently broad to encompass all of the Settlement Class definition variations.


2 DM1\7894880.1

(“Bearings Complaint”), whether sold separately, in combination, or as part of a module,

assembly, or system.

The actions in the MDL Proceeding arise from alleged conspiracies by and among the

motor vehicle industry’s largest manufacturers, marketers, and sellers of vehicle parts to fix

prices, rig bids, and allocate the market and customers in the United States for the sale of vehicle

parts, including Bearings.

TED Plaintiffs were the first and have been the only plaintiffs to file class action

complaints involving Bearings (or any other vehicle parts) on behalf of Truck and Equipment

Dealerships. The Bearings Complaint asserts claims for relief under the Sherman Act, 15 U.S.C.

§ 1 and various State antitrust, unjust enrichment, and consumer protection laws. Counsel for

TED Plaintiffs have been appointed Interim Class Counsel for the putative class of Truck and

Equipment Dealerships in In Re: Bearings, No. 2:12-cv-00500 [Doc. 171], and pursuant to the

Case Management Order entered in In Re: Automotive Parts Antitrust Litigation [Doc. 271],

should be considered Interim Class Counsel for the similar putative classes in this case. From

the inception of these cases, undersigned counsel have represented the interests of the class of

Truck and Equipment Dealerships, including overseeing and directing the prosecution and

settlement of the claims brought against the Settling Defendants. These proposed settlements are

a result of those efforts.

TED Plaintiffs, and the class of Truck and Equipment Dealerships they represent,

purchased new Trucks and/or Equipment in the United States that included one or more Bearings

as a component part, or indirectly purchased one or more Bearings as a replacement part, which

were manufactured or sold by the Settling Defendants or any other Defendant in this case, or any

of their current or former subsidiaries, affiliates, or alleged co-conspirators.


3 DM1\7894880.1

TED Plaintiffs allege that, in furtherance of the alleged conspiracy or conspiracies,

Defendants agreed, during meetings and conversations, to unlawfully fix, artificially raise,

maintain and/or stabilize prices, rig bids for, and allocate the supply of Bearings and then sold

those products at supracompetitive prices to Truck and Equipment OEMs, which in turn passed

along the overcharges to Truck and Equipment Dealerships in the United States and elsewhere.

See, e.g., Bearings Complaint at ¶¶ 197-208.

The United States Department of Justice (“DOJ”) has been investigating collusion by

automotive parts manufacturers since at least February 2010, and the Federal Bureau of

Investigation (“FBI”) has participated in raids carried out in some of the offices of the

Defendants and executed search warrants related to unfair competition, price-fixing, and bid

rigging of certain automotive parts.

The Settlements between the TED Plaintiffs and Settling Defendants are meaningful and

substantial and will result in a payment of $3,645,0002 for the benefit of the respective

Settlement Classes, a significant achievement in this litigation. Additionally, Nachi agreed to

(and did provide) substantial cooperation that was both timely and extremely useful in securing

settlements with other Defendants in the Bearings case. Should one or more of the other

settlements in this case not receive final approval, the sales of the Settling Defendants at issue in

this Motion will remain in this case for purposes of computing the treble damages claims against

the non-Settling Defendants and shall be part of any joint and several liability claims against

those Defendants. See Nachi Settlement Agreement ¶ 54; NSK Settlement Agreement ¶ 39. 2 This $3,645,000 total settlement amount reflects the $475,000 settlement payment from

Nachi, and a $3,170,000 net settlement payment from NSK after deduction of $90,000 pursuant to the most-favored nation provision in TED Plaintiffs’ Settlement Agreement with the JTEKT Defendants. See TED Plaintiffs’ First Round Mot. for Preliminary Approval, Case No. 14-cv-00507, ECF No. 44 at 6, n.2; see also JTEKT Settlement Agmt. ¶ 42, Case No. 14-cv-00507, ECF No. 44-3 at 28-29.


4 DM1\7894880.1

Thus, the TED Plaintiffs and the proposed Settlement Classes would retain their ability to

recover from any non-Settling Defendants the entire damages caused by the alleged conspiracies,

even those attributable to Settling Defendants, less only the amount paid by Settling Defendants

in settlement.

TED Plaintiffs and their counsel believe, for all the reasons set forth, that the proposed

Settlements with Settling Defendants are in the best interest of the proposed members of the

Settlement Classes and merit the Court’s preliminary approval. TED Plaintiffs therefore request

the entry of an Order:

1. Preliminarily approving the Nachi Settlement Agreement and the NSK Settlement

Agreement;

2. Provisionally certifying the proposed Settlement Classes;

3. Staying the proceedings against Settling Defendants in accordance with the terms

of the Nachi Settlement Agreement and NSK Settlement Agreement;

4. Authorizing dissemination of class notice for the Settling Defendants’ Settlement

Agreement; and

5. Appointing undersigned counsel for TED Plaintiffs as Settlement Class Counsel

for the Settlements.

THE BASIC TERMS AND BACKGROUND OF THE SETTLEMENT AGREEMENTS

The Nachi Settlement Agreement and NSK Settlement Agreement are the result of arm’s

length and good faith negotiations. Counsel participated in fact-gathering sessions and

informational meetings, as well as extended negotiations that took place through in-person

meetings, telephone calls, and other communications.


5 DM1\7894880.1

Bearings Settlement Classes: The Settling Defendants’ Settlement Agreements define

the Bearings Settlement Classes, which includes TED Plaintiffs, in nearly identical ways, as

follows:

all present and former Truck and/or Equipment dealers that, during the period January 1, 2000, through the Execution Date, inclusive, indirectly purchased Bearings manufactured or sold by a Defendant or any current or former subsidiary or affiliate thereof, or any alleged co-conspirator of a Defendant; or purchased new Trucks and/or Equipment containing Bearings manufactured or sold by a Defendant or any current or former subsidiary, affiliate or alleged co-conspirator of a Defendant.

(Nachi Settlement Agreement ¶ 15).

all Truck and/or Equipment dealers that, during the period January 1, 2000, through the Execution Date, indirectly purchased Bearings manufactured by one of the Defendants or any current or former subsidiary or affiliate thereof, or any alleged co-conspirator; or purchased new Trucks and/or Equipment containing Bearings manufactured by one of the Defendants or any current or former subsidiary, affiliate or alleged co-conspirator.

(NSK Settlement Agreement ¶ 8).

Settlement Amount: Nachi has agreed to pay $475,000 into an escrow account within

thirty (30) days following the date (a) the Court enters an order preliminary approving the Nachi

Settlement, or (b) Nachi is provided with the account number, account name, and wiring transfer

information for the Escrow Account, whichever is later. Nachi Settlement Agreement ¶ 30.

NSK has agreed to pay $3,260,000 into an escrow account thirty (30) days following the date the

Court enters an order preliminarily approving its Settlement. NSK Settlement Agreement ¶ 22.

TED Plaintiffs plan to use $90,000 of the proceeds from the $3,260,000 NSK Settlement

Amount to pay the JTEKT Defendants pursuant to the Most Favored Nation provision in the

JTEKT Settlement Agreement. See TED Plaintiffs’ First Round Mot. for Preliminary Approval,

Case No. 14-cv-00507, ECF No. 44 at 6, n.2; see also JTEKT Settlement Agmt. ¶ 42, Case No.


6 DM1\7894880.1

14-cv-00507, ECF No. 44-3 at 28-29. TED Plaintiffs believe this represents a reasonable

outcome in the Bearings case because the NSK Settlement in the amount of $3,260,000 (or net

$3,170,000) still offers a substantial cash value for the proposed Settlement Class. TED

Plaintiffs vigorously negotiated with NSK as hard and as far as we could in terms of the NSK

Settlement Amount and were unable to obtain more despite several months of hard fought

negotiations. TED Plaintiffs believe that an infusion of $3,170,000 into the settlement fund for

distribution to the proposed Settlement Class is preferable to the continued expenditure of

resources by both sides on litigation of the case, especially considering the ongoing expenses that

would be incurred to continue the litigation against NSK—most notably the expert witness

expenses, costs to maintain access to the case document database (tens of thousands of dollars

per month), and travel and other expenses related to continued depositions, all of which would

have easily exceeded $100,000 per month for every month the case remained in active litigation.

This rationale is bolstered by the fact that NSK was the last remaining defendant in the Bearings

case with which TED Plaintiffs were actively litigating.

Cooperation: Nachi agreed to (and did) provide extensive cooperation to the proposed

Settlement Class. These pledges of cooperation, taken together with the pledges of cooperation

in the settlements with the other Bearings case defendants that received final approval,

significantly aided in the negotiation of settlement agreements with other Bearings Defendants

and led the parties to the threshold of a full and final resolution of all of the TED Plaintiffs’

claims in the Bearings case. The full extent of Nachi’s pledged cooperation is set forth in the

Nachi Settlement Agreement at ¶¶ 39-47.

Released Claims: As set forth more fully in the respective Settlement Agreements, the

Settlement Agreements release only the Settling Defendants and their past and present parents,


7 DM1\7894880.1

subsidiaries, affiliates, partners, and insurers (and their respective past and present officers,

directors, employees, agents, stockholders, representatives, and insurers, and their respective

predecessors, successors, heirs, executors, administrators, and assigns) from Settlement Class

Members’ and other Releasors’ claims on account of, or in any way related to, the conduct

alleged in the Bearings Complaint, or any act or omission of Settling Defendants or any other

Releasee concerning Bearings.

The releases do not release: (a) any claims made by direct purchasers of Bearings based

solely on such direct purchases; (b) any claims made by Settlement Class Members in the End-

Payor case, Case No. 2:12-cv-00503-MOBMKM, as that term is defined in any Settlement

Agreement between Nachi and End-Payor Plaintiffs in that case; (c) any claims made by

Settlement Class Members in the Automobile Dealership case, Case No. 2:12-cv-00502-MOB-

MKM, as that term is defined in any Settlement Agreement between Nachi and Automobile

Dealership Plaintiffs in that case; (d) any claims made by any state, state agency, or

instrumentality or political subdivision of a state as to government purchases and/or penalties

relating to Bearings; (e) claims based on negligence, personal injury, breach of contract,

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

securities or similar claim relating to Bearings; (f) claims concerning any vehicle part other than

Bearings; and (g) claims under laws other than those of the United States and the states thereof

relating to purchases of Bearings made outside of the United States and the states thereof. Nachi

Settlement Agreement at ¶ 28. The Settlement Agreement also provides that the Settling

Defendants’ sales shall remain in the continuing litigation against the non-Settling Defendants,

who remain jointly and severally liable for all damages caused by the conspiracies. Nachi

Settlement Agreement at ¶ 54; NSK Settlement Agreement at ¶ 39.


8 DM1\7894880.1

Plan for Dissemination of Notice to Potential Members of the Settlement Classes:

Settling Defendants’ Settlement Agreements provide cash benefits to dealerships that

purchased certain parts and/or purchased vehicles containing those parts in jurisdictions that the

TED Plaintiffs contend allow antitrust indirect purchasers to seek money damages: Arizona,

Arkansas, California, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kansas, Maine,

Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New

Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, South Carolina,

South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wisconsin (the “Included States”);

see Nachi Settlement Agreement ¶ 9; NSK Settlement Agreement ¶ 2. Through a class action

notice consultant, over 50,000 mailing and email addresses associated with potential class

members in the Included States have been identified. (See Declaration of William Wickersham,

attached hereto as Exhibit 3.)

To provide notice of this Settlement to potential class members, TED Plaintiffs propose a

multi-faceted notice program—that has already been previously approved by this Court—

intended to provide the best notice practicable under the circumstances. TED Plaintiffs retained

RG/2 Claims Administration LLC (“RG/2”), an experienced class action administration firm, to

design and implement the notice plan. RG/2 has proposed the notice plan that includes:

Direct mail and email notice to over 50,000 addresses related to dealerships potentially eligible for monetary benefits under the Settlements;

Published notice in periodicals like The Wall Street Journal, Automotive News, National Trailer Dealers Association E-newsletter, the American Truck Dealers Insider E-newsletter, and World Truck Magazine designed to target potential class members nationwide;

Electronic notice to dealerships that have already signed up for notifications related to other Auto Parts settlements; and

Earned media efforts through a national press release and the settlement website, www.TruckDealerSettlement.com.


9 DM1\7894880.1

(See Wickersham Decl.) The notice plan proposed by TED Plaintiffs and RG/2 has been

previously approved by this Court. (See Case No. 2:14-cv-13356-MOB-MKM, ECF Nos. 71,

72; see also Case No. 2:14-cv-14451-MOB-MKM, ECF Nos. 119, 120).

ARGUMENT

The Settling Defendants’ Settlement Agreements are fair, reasonable, and adequate, and

are the result of arm’s length negotiations by experienced counsel. They are also thoughtfully

conceived resolutions of the proposed Settlement Classes’ claims that maximize their recovery.

Furthermore, Nachi has agreed to provide (and already provided) substantial cooperation in

prosecuting TED Plaintiffs’ claims against other Bearings case defendants.

I. Preliminary Approval Should be Granted Because the Proposed Settlements Fall Well Within the Range of Possible Approval.

It is well-established in the Sixth Circuit that 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)

(citing UAW v. Gen. Motors. Corp., 497 F.3d 615, 631 (6th Cir. 2007) (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). “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); see

also Agretti v. ANR Freight Sys., Inc., 982 F.2d 242, 247 (7th Cir. 1992) (“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)). 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)


10 DM1\7894880.1

(citing 1983 Advisory Committee Notes); see also MANUAL FOR COMPLEX LITIGATION (FOURTH)

§ 13.12 (2004) (“Manual”) (“[S]ettlement should be explored early in the case.”).

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

grants preliminary approval to the settlement and provisionally certifies a settlement class.

Second, after notice of the settlement is provided to the class and the court conducts a fairness

hearing, the court may grant final approval to the settlement. See Manual § 21.63; see also

Bobbitt v. Acad. of Reporting, No. 07–10742, 2009 WL 2168833, at *1 (E.D. Mich. Jul. 21,

2009) (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 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). 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). Courts adhere to “an initial presumption of fairness when a

proposed class settlement, which 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) (“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) (“[T]he only


11 DM1\7894880.1

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)

(“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 § 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 Hip, 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)); see also Packaged Ice, No. 08-MD-01952, 2010 WL 3070161, at *4 (E.D. Mich. Aug.

2, 2010), quoting Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982) (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


12 DM1\7894880.1

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, 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 Settling Defendants’ Settlement Agreements.

A. The Settling Defendants’ Settlement Agreements Achieve 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.” In 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 In re Linerboard Antitrust Litig., 292 F. Supp. 2d 631, 639 (E.D. Pa.

2003) (“Linerboard”)); see also In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 533 (E.D.

Mich. 2003) (“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.

Settling Defendants have asserted and would continue to assert various defenses, and 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 injury and damages, making the

outcome of such trial uncertain for both parties. See, e.g., Cardizem, 218 F.R.D. at 523 (in

approving settlement, noting that “the prospect of a trial necessarily involves the risk that


13 DM1\7894880.1

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, 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 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).

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) ($52.5 million class action judgment following trial reversed on

appeal); Robbins v. Koger Props., Inc., 116 F.3d 1441 (11th Cir. 1997) (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) (“[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) (“[A] future

recovery, even one in excess of the proposed Settlement, may ultimately prove less valuable to

the Class than receiving the benefits of the proposed Settlement at this time”). Hence, “the


14 DM1\7894880.1

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, 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. Settling

Defendants’ $3,645,000 payment provides for significant compensation to the proposed

Settlement Class that will be available years earlier than would be the case if litigation against

Settling Defendants continued through trial and appeal. Settlements of this type, before

discovery has been completed, create value beyond their direct pecuniary benefit to the class.

See Packaged Ice, 2011 U.S. Dist. LEXIS 17255, at *50-51 (noting “significant value” of

icebreaker settlement); Linerboard, 292 F. Supp. 2d at 643; In re Corrugated Container Antitrust

Litig., 1981 WL 2093, *16 (S.D. Tex. Jan. 27, 1981 (“Corrugated Container”). In addition, the

Nachi Settlement Agreement provides for cooperation that will benefit, and has already

benefitted, TED Plaintiffs—specifically, Nachi has agreed to provide substantial cooperation,

including witness interviews and attorney proffers. See Nachi Settlement Agreement at ¶¶ 39-

47.

The Settling Defendants’ Settlement Agreements also specifically provide that they do

not alter the non-Settling Defendants’ joint and several liability for the full damages caused by

the alleged conspiracies, including all sales made by the Settling Defendants. Nachi Settlement

Agreement ¶ 54; NSK Settlement Agreement ¶ 39. In this regard, the Settlement Agreement is

similar to one of the settlements approved in Corrugated Container, where the court noted the

“valuable provision” under which plaintiffs reserved their right to recover full damages from the


15 DM1\7894880.1

remaining 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); In re Ampicillin Antitrust

Litig., 82 F.R.D. 652, 654 (D.D.C. 1979) (approving settlement where class will “relinquish no

part of its potential recovery” due to joint and several liability). Here too, should any of their

pending settlements in the Bearings case not receive final approval, the TED Plaintiffs would be

able to pursue their full damages, with no diminution other than deduction of the actual

Settlement Amounts in the settlements that do receive final approval.

B. The Settlement Agreements are the Result of Thorough Arm’s-Length Negotiations Conducted by Highly Experienced Counsel.

The Settlements are entitled to “an initial presumption of fairness” because they are the

result of arm’s-length negotiations among experienced counsel. Newberg § 11.41. The

judgment of proposed Settlement Class Counsel that a settlement is in the best interest of the

proposed Settlement Class “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) (quoting IUE-CWA, 238 F.R.D. at 597); see

also Cardizem, 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) (quoting In re Dun &

Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 370 (S.D. Ohio 1990)). The Settling

Defendants’ Settlement Agreements here are the result of hard-fought negotiations between

counsel experienced in complex antitrust and consumer class action litigation. The Settling


16 DM1\7894880.1

Defendants’ Settlement Agreements were negotiated by proposed Class Counsel in a process that

involved extensive discussions with counsel for Settling Defendants over a period of many

months, including several in-person meetings. Proposed Class Counsel undertook a diligent and

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

extensively with experienced economists before finalizing this deal.

Counsel for the TED Plaintiffs were well-informed about the facts and the strength of the

claims asserted having had access to extensive discovery, including document productions,

interrogatory responses, and depositions, at the time the terms of the Settling Defendants’

Settlement Agreements were negotiated. See Packaged Ice, 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 (same).

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

“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); 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). 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


17 DM1\7894880.1

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) (granting final approval

to both ERISA and Securities settlement Class, noting the court’s earlier, preliminary approval of

the settlement Class granted prior to a hearing on defendants’ motions to dismiss); Cardizem,

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 Classes satisfy

the four prerequisites of Rule 23(a) (numerosity, commonality, typicality and adequacy), as well

as one of the three subsections of Rule 23(b). See 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 have been met, Wal-Mart Stores, Inc. v.

Dukes, 131 S. Ct. 2541, 2551 (2011), “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) (citing In re Whirlpool Corp. Front-

Loading Washer Prods. Liab. Litig., 722 F.3d 838, 851-52 (6th Cir. 2013)). 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”)

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


18 DM1\7894880.1

certification proceedings into a dress rehearsal for the trial on the merits.” In re Whirlpool

Corp., 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 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.

TED Plaintiffs’ 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). “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 regarded as

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

Ohio 2007); 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).

i. The Proposed Settlement Classes 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).

Miller v. Univ. of Cincinnati, 241 F.R.D. 285, 288 (S.D. Ohio 2006). 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). 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).” In re Foundry Resins Antitrust Litig., 242 F.R.D. at 403 (citing Bacon v.


19 DM1\7894880.1

Honda of America Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004)); see also In re Am. Med. Sys.,

Inc., 75 F.3d 1069, 1079 (6th Cir. 1996).

The proposed Settlement Classes at issue in this action involve all Truck and Equipment

Dealerships in the United States from January 1, 2000, through May 25, 2017 that purchased one

or more new vehicles containing a Bearing. Because there are a large number—estimated to be

over one thousand—of such Truck and Equipment dealerships geographically distributed

throughout the United States, joinder is highly impractical, if not impossible, for all members of

the proposed Settlement Classes.

ii. TEDP 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). While Rule 23(a)(2) 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; see also Cason-Merenda, 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 (same); Date v. Sony Elecs., Inc., Case No. 07-

15474, 2013 U.S. Dist. LEXIS 108095, at *10 (E.D. Mich. July 31, 2013) (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). Thus, in price 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); see also Newberg § 3:10 at 278


20 DM1\7894880.1

(“[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) prerequisite”).

Through the course of this litigation, TED Plaintiffs have already identified the following

issues common to the proposed Settlement Classes:

Whether Defendants and their alleged co-conspirators engaged in a combination and conspiracy among themselves to fix, raise, maintain or stabilize the prices of Bearings 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 alleged co-conspirators in furtherance of the conspiracy;

Whether the alleged conspiracy violated the Sherman Act;

Whether the alleged conspiracy violated state antitrust and unfair competition law, and/or state consumer protection law;

Whether the conduct of Defendants and their co-conspirators, as alleged in the Bearings Complaint, caused injury to the business or property of Plaintiffs and the members of the Classes;

The effect of the alleged conspiracy on the prices of Bearings sold in the United States during the Class Periods, if any;

Whether the Defendants and their alleged co-conspirators fraudulently concealed the alleged conspiracy’s existence from the Plaintiffs and the members of the Classes;

Whether Defendants unjustly enriched themselves to the detriment of the Plaintiffs and the members of the Classes, thereby entitling Plaintiffs and the members of the Classes to disgorgement of all benefits derived by Defendants;

The appropriate injunctive and related equitable relief for the Nationwide Classes, if any; and

The appropriate class-wide measure of damages for the Damages Classes, if any.


21 DM1\7894880.1

See Bearings Complaint ¶ 213. Any one of these substantive issues would, standing alone,

establish the requisite commonality under Rule 23(a)(2).

iii. TEDP 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). “The [typicality] requirement is not onerous,” Int’l Union, UAW v. Ford Motor Co.,

2006 U.S. Dist. LEXIS 70471, at *54, and courts liberally construe it. See 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, 2013 U.S. Dist. LEXIS 131006, at *25 (quoting 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); In re

Am. Med. Sys., 75 F.3d at 1082; Packaged Ice, 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 (quotation marks and citation omitted); Packaged

Ice, 2011 U.S. Dist. LEXIS 17255, at *40 (same).

Because the TED Plaintiffs and the members of the proposed Settlement Classes believe

they are all victims of a common conspiracy to fix prices, rig bids, and allocate the market and

customers for the relevant parts and seek the same relief, Rule 23(a)(3) is satisfied. See Cason-

Merenda, 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, 2011 U.S. Dist. LEXIS 17255, at *40-41

(“Because all Class Members’ claims arise from . . . a conspiracy to allocate markets in violation


22 DM1\7894880.1

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 TEDP Class Representatives Will Fairly and Adequately Protect the Interests of the Proposed Settlement Classes.

The final requirement of Rule 23(a) is that the representative parties “fairly and

adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). 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., 242 F.R.D. at 407 (quoting Senter v. Gen. Motors Corp.,

532 F.2d 511, 525 (6th Cir. 1976)). TED Plaintiffs submit that there are no conflicts between

them and the proposed Settlement Classes because the TED Plaintiffs and all Settlement Class

Members purchased new Trucks and/or Equipment in the United States that included one or

more Bearings as a component part, or indirectly purchased one or more Bearings as a

replacement part, and all seek damages for the ensuing overcharge. See 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)).

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, as may be necessary. See Marcus v. Dep’t


23 DM1\7894880.1

of Revenue, 206 F.R.D. 509, 512 (D. Kan. 2002) (“In absence of evidence to the contrary, courts

will presume the proposed class counsel is adequately competent to conduct the proposed

litigation”). The Court should appoint them Settlement Class Counsel here.

B. The Proposed Settlement Classes Meet the Requirements of Rule 23(b)(3).

To qualify for certification under Rule 23(b)(3), a class must meet two requirements

beyond the Rule 23(a) prerequisites: (1) common questions must predominate over any

questions affecting only individual members; and (2) 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”); see also In re Scrap Metal Antitrust Litig.,

527 F.3d 517, 535 (6th Cir. 2008). 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, 521 U.S. at 620 (internal citations omitted).

i. Common Questions of Law and Fact Predominate.

“Rule 23(b)(3) 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., 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., 242 F.R.D. at 408 (quoting 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)); cf.

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


24 DM1\7894880.1

liability have been resolved does not dictate the conclusion that a class action is impermissible.”

Cason-Merenda, 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)). As pertinent to TED Plaintiffs’

request here to provisionally certify the proposed Settlement Classes under Rule 23(b)(3), the

Supreme Court very recently instructed that “Rule 23(b)(3) 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, 133 S. Ct. at 1191.3

Because the proposed Settlement Classes allege conduct from which all proposed

Settlement Class Members’ alleged injuries arise, issues common to the proposed Settlement

Class Members—for example, the existence and scope of the alleged price-fixing conspiracy

among Defendants, the market impact of Defendants’ conspiracy, 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, 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) (“[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)). This Circuit has also held “[p]redominance is a test

3 The Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), supports the appropriateness of class certification under Rule 23(b)(3) here. In Comcast, 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. Under Comcast, 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). Here, all of the proposed Settlement Classes’ claimed damages—the overcharge suffered as a result of inflated prices for Bearings—stem from the Defendants’ alleged price-fixing conspiracy.


25 DM1\7894880.1

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., 527 F.3d at 535 (quoting Amchem, 521 U.S. at 625).4

Furthermore, here the evidence that will prove a violation as to one Settlement Class 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, 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., 722 F.3d at 861 (“[I]t

remains the ‘black letter rule’ that a class may obtain certification under Rule 23(b)(3) when

liability questions common to the class predominate over damages questions unique to class

members.” (internal quotation marks and citation omitted)); Scrap Metal, 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 TED Plaintiffs assert that they, along with the Truck and

Equipment Dealerships they represent, paid overcharges that were caused by the Defendants’

price-fixing activities. The presence of these common issues of liability and impact

4 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); Blades v. Monsanto Co., 400 F.3d 562, 572 (8th Cir. 2005); In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001); In re Blood Reagents Antitrust Litig., 283 F.R.D. 222, 234 (E.D. Pa. 2012); Reed v. Advocate Health Care, 268 F.R.D. 573, 581 (N.D. Ill. 2009); In re Urethane Antitrust Litig., 251 F.R.D. 629, 634 (D. Kan. 2008); Foundry Resins, 242 F.R.D. at 408.


26 DM1\7894880.1

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) 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

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).

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) (noting that individual litigation of antitrust claims would be

“grossly inefficient, costly, and time consuming”). Here, the interests of the members of the

Settlement Classes in individually controlling the prosecution of separate claims are outweighed

by the efficiency of the class mechanism. Cardizem, 200 F.R.D. at 325-26 (finding that class

action is superior because it ensures fair and efficient adjudication). Thousands of Truck and

Equipment dealerships purchased vehicles containing Bearings during the settlement class

periods; 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, 242 F.R.D. at 411-12 (“Repeatedly litigating the same issues in individual suits would


27 DM1\7894880.1

produce duplicate efforts, unnecessarily increase litigation costs, impose an unwarranted burden

on this Court and other courts, and create a risk of inconsistent results”).5

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).

III. The Court Should Approve the Form and Manner of Notice to the Members of the TED Settlement Classes.

Fed. R. Civ. P. 23(e)(1) provides that “[t]he court must direct notice in a reasonable

manner to all class members who would be bound by the [proposed settlement].” For

Rule 23(b)(3) actions, “the court must 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.” Fed. R. Civ. P. 23(c)(2)(B).

IV. Notice Standards and Requirements.

The purpose of notice in a class action is to “afford members of the class due process

which, in the context of the Rule 23(b)(3) class action, guarantees them the opportunity to be

excluded from the class action and not be bound by any subsequent judgment.” Peters v. Nat’l

5 Another criterion of Rule 23(b)(3) 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, 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), for the proposal is that there be no trial”).


28 DM1\7894880.1

R.R. Passenger Corp., 966 F.2d 1483, 1486 (D.C. Cir. 1992) (citing Eisen v. Carlisle &

Jacquelin, 417 U.S. 156, 173-74 (1974)). Due process requires that absent class members be

provided the best notice practicable, reasonably calculated to apprise them of the pendency of the

action, and affording them the opportunity to opt out or object. Phillips Petroleum Co. v. Shutts,

472 U.S. 797, 812 (1985).

The “best notice practicable” does not mean actual notice, nor does it require individual

mailed notice where there are no readily available records of class members’ individual

addresses or where it is otherwise impracticable. See Fidel v. Farley, 534 F.3d 508, 514 (6th Cir.

2008); In re Domestic Air Transp. Antitrust Litig., 141 F.R.D. 534, 548-53 (N.D. Ga. 1992);

MANUAL FOR COMPLEX LITIGATION (Fourth) § 21.311, at 288 (2004) (“MANUAL”). The

mechanics of the notice process “are left to the discretion of the court subject only to the broad

‘reasonableness’ standard imposed by due-process.” Grunin v. Int’l House of Pancakes, 513

F.2d 114, 121 (8th Cir. 1975). Each class member need not receive actual notice for the due

process standard to be met, “so long as class counsel acted reasonably in selecting means likely

to inform persons affected.” In re Prudential Sec. Inc. Ltd. P’ships Litig., 164 F.R.D. 362, 368

(S.D. N.Y. 1996).

Where names and addresses of known or potential class members are reasonably

available, direct-mail notice should be provided. See, e.g., Eisen, 417 U.S. at 175-76; MANUAL,

§ 21.311, at 292. If the names and addresses of class members cannot be determined by

reasonable efforts, notice by publication is sufficient to satisfy the requirements of the Due

Process Clause and Rule 23. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 317-18

(1950); Carlough v. Amchem Prods., 158 F.R.D. 314, 325 (E.D. Pa. 1993).


29 DM1\7894880.1

Due process is satisfied even if all class members do not receive actual notice, as long as

the plan was reasonably likely to inform the persons affected. See, e.g., Weigner v. The City of

New York, 852 F.2d 646, 649 (2d Cir. 1988). Whether a notice dissemination plan is reasonable

is a function of the plan’s anticipated results. In re Domestic Air Transp., 141 F.R.D. at 539; see

also Berland v. Mack, 48 F.R.D. 121, 129-30 (S.D.N.Y. 1969).

V. The Proposed Manner of Notice Satisfies the Requirements of Fed. R. Civ. P. 23(c)(2)(B) and (e)(1).

TED Plaintiffs propose providing notice through several different channels. Individual

notice (the “Mailing Notice,” Exhibit 1 to the Proposed Order) will be mailed to the more than

50,000 known postal and email addresses associated with current and former dealerships in the

Included States. The Mailing Notice will direct recipients to a settlement website (“Settlement

Website”) for additional information. (See Ex. 1 to Proposed Order)

A summary notice (the “Publication Notice,” Exhibit 2 to the Proposed Order) will be

published in: (1) one insertion in The Wall Street Journal, (2) one insertion in Automotive News,

and (3) one insertion in World Truck Magazine. (Wickersham Decl.) The content of the

Publication Notice will be the same as the Mailing Notice and will direct readers to the

Settlement Website for further information. (Id.) A press release on a national newswire will be

issued, directing readers to the Settlement Website for additional information. (Id.)

The Settlement Website will provide the definitions of the Settlement Classes, a detailed

description of the Settlements, the Nachi Settlement Agreement, the NSK Settlement Agreement,

and the long-form Mailing Notice (Ex. 1 to Proposed Order) that describes the options for

participating in, seeking exclusion from, or objecting to the Settlements. The Settlement Website

will also display, as the relevant information becomes available: (1) information about the

proposed methods for allocating the settlement funds (the “Plan of Allocation”); (2) deadlines


30 DM1\7894880.1

and Proof of Claim forms; (3) relevant court documents and filings; and (4) updates on the status

of Court approval. The notices and the Settlement Website will also provide a toll-free telephone

number that can be called for assistance or more information. (See Exs. 1 & 2 to Proposed

Order).

To further supplement the Mailing and Publication notices, online notice efforts will also

be used. For example, the address of the Settlement Website will run in National Trailer Dealers

Association E-newsletter and American Truck Dealers Insider E-newsletter (Wickersham Decl.).

The methods of notice proposed here are the best available under the circumstances. The

proposed methods are well-designed to reach potential Settlement Class members and to comply

with due process. Nearly all potential Settlement Class members in the Included States will

receive direct, mailed notice. The substantial “reach” for these potential class members clearly

satisfies due process requirements. See, e.g., Larson v. Sprint Nextel Corp., No. 07-5325, 2009

WL 1228443, at *11 (D. N.J. April 30, 2009). The “reach” of the notice proposed here far

exceeds notice reach approved in other cases. Id. at *12 (“No case stands for the proposition that

a publication notice reach of 49-53 percent is disallowed.”). The Court has previously approved

of the plan in this case and similar plans in the Wire Harnesses and OSS cases with TED

Plaintiffs. (See Case No. 2:14-cv-13356-MOB-MKM, ECF Nos. 71, 72; see also Case No. 2:14-

cv-14451-MOB-MKM, ECF Nos. 119, 120). The Court should preliminarily approve the TED

Plaintiffs’ proposed notice plan and should allow the notice process to begin.

VI. The Proposed Form of Notice Satisfies the Requirements of Fed. R. Civ. P. 23(c)(2)(B) and (e)(1).

The content of a class action settlement notice “must clearly and concisely state in plain,

easily understood language” seven types of information: “(i) the nature of the action; (ii) the

definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member


31 DM1\7894880.1

may enter an appearance through an attorney if the member so desires; (v) that the court will

exclude from the class any member who requests exclusion; (vi) the time and manner for

requesting exclusion; and (vii) the binding effect of a class judgment on members under

Rule 23(c)(3).” Fed. R. Civ. P. 23(c)(2)(B)(i)-(vii).

The long-form Mailing Notice and short-form Publication Notices are drafted in the

“plain language” format preferred by federal courts and provide the information required by

Rule 23. (See Wickersham Decl.) The notices were drafted with assistance from RG/2, an

experienced and well-regarded class action settlement administration firm. RG/2 believes that

these notices are understandable and compliant with due process. (Id.) The notices satisfy the

content requirements of Federal Rule of Civil Procedure 23. In re Prudential Ins. Co. of Am.

Sales Practices Litig., 962 F.Supp. 450, 496 (D.N.J. 1997); MANUAL at § 21.633.

At final approval, the TED Plaintiffs will show that the form and content of the notices,

together with the manners of dissemination, were reasonably calculated to reach the members of

the Settlement Classes and were the best form of notice available under the circumstances, in

satisfaction of federal law and due process.

VII. The Proposed Notices Provide Class Members with Sufficient Information about the Details of the Settlements.

The notice plan also provides potential members of the Settlement Classes with

information about the benefits available under the Settlements, their options, and the service

awards that may be requested at final approval.

Counsel for the TED Plaintiffs will seek reimbursement of certain of the litigation

expenses already incurred during the course of the litigation of the cases involved in the

Settlements. See, e.g., Fed. R. Civ. P. 23(h) (“In a certified class action, the court may award

reasonable attorneys’ fees and untaxable costs that are authorized by law or by the parties’


32 DM1\7894880.1

agreement.”); In re Delphi Corp. Sec., Derivative & “ERISA” Litig., 248 F.R.D. 483, 504 (E.D.

Mich. 2008) (“Under the common fund doctrine, class counsel are entitled to reimbursement of

all reasonable out-of-pocket litigation expenses and costs in the prosecution of claims and in

obtaining settlement, including expenses incurred in connection with document production,

consulting with experts and consultants, travel and other litigation-related expenses.”) (citation

and internal quotation marks omitted).

The notice plan will also advise Settlement Class members that information about the

Plan of Allocation of the proceeds of the Settlements will be published on the Settlement

Website before the date that a decision about whether to participate in this Settlements must be

made. TED Plaintiffs do not yet ask the Court to approve the Plan of Allocation and the Court

may grant final approval before approving a plan of allocation. See, e.g., MANUAL § 21.312

(“Often . . . the . . . details of allocation and distribution are not established until after the

settlement is approved.”); In re Southeastern Milk Antitrust Litig., 2013 WL 2155379, at *3

(E.D. Tenn. May 17, 2013) (district court gave final approval to a settlement without a plan of

allocation, noting that “[o]nce the claim processing procedure is completed, plaintiffs will submit

a proposed plan of allocation of the settlement proceeds for the Court’s approval”); Packaged

Ice, 2011 WL 717519, at *2, *17 (E.D. Mich. Feb. 22, 2011) (“[c]lass Counsel explained at the

Fairness Hearing that the final plan of allocation was not included in the original Notice in part

because of the potential for additional settlements with other Defendants which may affect the

final plan of allocation,” and finally approving the settlements that were presented, retaining

jurisdiction to, among other things, “enter[] any Orders or conducting any hearings in connection

with any final plan of distribution or claims submission process . . . .”); see also In re “Agent

Orange” Prod. Liab. Litig., 818 F.2d 145, 170 (2d Cir. 1987) (“To impose an absolute


33 DM1\7894880.1

requirement that a hearing on the fairness of a settlement follow adoption of a distribution plan

would immensely complicate settlement negotiations and might so overburden the parties and

the district court as to prevent either task from being accomplished.”); In re Washington Public

Power Supply Sys. Sec. Litig., [1989 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶94,326, at

92,143, 1988 WL 158947 (W.D. Wash. July 28, 1988) (“Such deferral of allocation decisions is

routinely followed in partial settlements where the appropriate allocation among class members

can best be determined when further settlements have been achieved or the litigation is

completely resolved.”). Information about how the settlement money will be allocated through

the Plan of Allocation will be published and submitted before the final approval hearing.

Class representatives are “an essential ingredient of any class action” and incentive

awards are appropriate to induce a business or consumer to participate in worthy class action

lawsuits. Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 2008). “Such “[i]ncentive awards

serve an important function, particularly where the named plaintiffs participated actively in the

litigation.” Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1218 (S.D. Fla. 2006)

(citing Denney v. Jenkens & Gilchrist, 230 F.R.D. 317, 2005 WL 388562, at *31 (S.D.N.Y. Feb.

18, 2005)).

The notice plan advises Settlement Class members that interim service awards will be

requested for the dealerships that have served as class representatives in these cases. These

dealerships have sustained a significant discovery burden during the course of this case, having

provided, through their common parent, significant document productions and a Rule 30(b)(6)

deposition. An award from the Court recognizing the class representatives’ efforts will be

appropriate. See In re Prandin Direct Purchaser Antitrust Litig., 2015 WL 1396473, at *5 (E.D.

Mich. Jan. 20, 2015) (in a $19 million settlement, award of $50,000 to each class representative);


34 DM1\7894880.1

In re Skelaxin Antitrust Litig., No. 12–cv–83, 2014 WL 2946459 (E.D. Tenn. June 30, 2014)

(settlement of direct purchaser pharmaceutical antitrust action, awarding $50,000 to each class

representative); Connectivity Systems Inc. v. National City Bank, 2011 WL 292008, at *20 (S.D.

Ohio Jan. 26, 2011) (in $10 million settlement, awarding $50,000 each to three named plaintiffs);

Liberte Capital Group v. Capwill, 2007 WL 2492461, at *3 (N.D. Ohio Aug. 29, 2007)

(awarding $97,133.83 and $95,172.47 to two named plaintiffs representing subclasses that

received $11 million and $7 million); Hainey v. Parrott, No. 1:02–cv–733, 2007 WL 3308027

(S.D. Ohio Nov. 6, 2007) (approving service award of $50,000 for each class representative); In

re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 535-36 (E.D. Mich. 2003) (awarding $75,000

to each class representative); Brotherton v. Cleveland, 141 F. Supp. 2d 907, 913–14 (S.D. Ohio

2001) (granting a $50,000 service award out of a $5.25 million fund); In re Revco Sec. Litig.,

1992 WL 118800, *7 (N.D. Ohio May 6, 1992) ($200,000 incentive award to named plaintiff);

Enter. Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 251 (S.D. Ohio

1991) (approving service awards of $50,000 to six class representatives out of a settlement fund

of $56.6 million).

The notice plan also provides notice of counsel for the TED Plaintiffs’ intent to request

an interim award of attorneys’ fees and expenses as part of the final approval process. The Court

may award attorneys’ fees and expenses before the litigation is concluded. See In re Air Cargo

Shipping Serv. Litig., No. 06-md-1775 (JG) (VVP), 2011 WL 2909162, at *5-7 (E.D.N.Y. Jul.

15, 2011) (interim award granted); In re Sterling Foster & Company, Inc. Sec. Litig., 238 F.

Supp. 2d 480, 484-85, 489-90 (E.D.N.Y. 2002) (interim attorneys’ fees awarded). Counsel for

the TED Plaintiffs have litigated these cases for three years and will continue to vigorously

represent the interests of dealerships. See In re Diet Drugs Prod. Liab. Litig., 2002 WL


35 DM1\7894880.1

32154197, at *12 (E.D. Pa. Oct. 3, 2002) (awarding an interim fee after four years of litigation

and noting “to make them wait any longer for at least some award would be grossly unfair”).

VIII. The Court Should Enter the Proposed Order, Which Schedules the Final Approval Hearing and Establishes Other Deadlines.

TED Plaintiffs respectfully request that the Court hold a single final approval hearing in

connection with the Settlements. At the hearing, the Court should consider whether the

Settlements are fair, reasonable, and adequate; whether to approve a request for interim

attorneys’ fees and reimbursement of litigation expenses; and whether to approve a request for

service awards for the named TED Plaintiffs.

The proposed order sets out the method and timing of requests for exclusion and for

submitting any objections to the Settlements. Other dates are also set out in the proposed order.

The TED Plaintiffs propose the following schedule:

Event Time for Compliance

Mailing and E-mailing Mailing Notice, Establishment of Settlement Website

30 days from Order allowing dissemination of notice

Commence Placement of Publication Notice

As soon as practicable from date of Order allowing dissemination of notice

Posting of information related to the Plan of Allocation on Settlement Website

August 14, 2017

Filing of Motion in Support of Request for Attorneys’ Fees, Reimbursement of Expenses, and Service Awards

August 14, 2017

Deadline for filing Opt-Outs or objections to Settlements August 23, 2017 Deadline for appearance of counsel regarding objections August 23, 2017 Deadline for counsel to file notice of intent to appear at Final Approval Hearing

August 23, 2017

Filing of Motion for Final Approval September 6, 2017

Final Approval Hearing September 13, 2017


36 DM1\7894880.1

Event Time for Compliance

Proof of Claim deadline December 8, 2017

IX. The Court’s June 1, 2017 Order Granting Truck and Equipment Dealer Plaintiff’s Motion for Preliminary Approval of Proposed Settlement with SKF USA Inc., Provisional Certification of Settlement Classes, and Authorization of Dissemination of Class Notice Should be Revised.

TED Plaintiffs also move to revise the current schedule for Notice of Settlement and

Final Approval of TED Plaintiffs’ settlement with Defendant SKF USA Inc. (“SKF USA”) as set

forth in the Court’s June 1, 2017 Order Granting Truck and Equipment Dealer Plaintiff’s Motion

for Preliminary Approval of Proposed Settlement with SKF USA Inc., Provisional Certification

of Settlement Classes, and Authorization of Dissemination of Class Notice, Case No. 2:14-cv-

13356-MOB-MKM, ECF No. 75. TED Plaintiffs respectfully request that their settlements with

SKF USA, Nachi and NSK be tracked on the same schedule culminating in one Final Approval

hearing. As TED Plaintiffs have advised the Court, putting the final settlements in the Bearings

case all on the same schedule will save the class approximately $70,000 in notice of settlement

costs, as well as achieve various judicial efficiencies. See Case No. 2:14-cv-13356-MOB-MKM,

ECF No. 76; see also Wickersham Decl., ¶ 28.

The Court’s June 1, 2017 Order granting Preliminary Approval to TED Plaintiffs’

settlement with SKF USA set forth deadlines for various actions relating to the SKF USA

settlement, including deadlines for sending notice to settlement class members, filing a fee

petition, filing objections and opt-outs, and the date for the final approval hearing. See, e.g.,

Case No. 2:14-cv-13356-MOB-MKM, ECF No. 75. TED Plaintiffs respectfully ask that the

Court to modify the schedule previously approved by the Court for the SKF USA settlement to

align it with the schedule being proposed for the settlements with NSK and Nachi that are the

subject of the instant Motion. TED Plaintiffs make this request for a number of reasons.


37 DM1\7894880.1

First, if TED Plaintiffs are able to combine the notice process for the SKF USA

settlement with the notice process for the settlements with NSK and Nachi, TED Plaintiffs will

save approximately $70,000 in notice/settlement administration costs. That sum represents a

substantial amount of money that can be paid to the settlement class, rather than to the settlement

administrator. TED Plaintiffs believe that this, standing alone, is a compelling reason for

granting the relief TED Plaintiffs seek. Moreover, the consolidation of the post-Preliminary

Approval schedules for these Settlements would have the added benefit of advancing judicial

efficiency because there would be one single consolidated Final Approval hearing for these

Settlements rather than two separate hearings. That not only unburdens the Court’s schedule by

adjourning the July 12, 2017 Final Approval hearing for SKF USA, but it also means that

counsel for the TED Plaintiffs, as well as SKF USA (and any other interested parties), would

need to travel to Detroit just one time, rather than two, for the Final Approval hearing, which will

result in less costs and legal fees for all parties concerned. It also means that there would be

common deadlines for objections and opt-outs for all of the settlements in question, rather than

two separate sets of deadlines, thus making the objection and opt-out process simpler for any

entity that might elect to participate in that. Consolidation of the schedule would also mean that

there would be a single motion for attorney’s fees relating to all of the settlements, rather than

two separate motions for attorney’s fees for counsel to prepare and for the court to consider and

decide.

Accordingly, TED Plaintiffs move to revise the Court’s June 1, 2017 Order Granting

Truck and Equipment Dealer Plaintiff’s Motion for Preliminary Approval of Proposed

Settlement with SKF USA Inc., Provisional Certification of Settlement Classes, and

Authorization of Dissemination of Class Notice so that the final settlements in the Bearings case


38 DM1\7894880.1

are all on the same schedule. The relief TED Plaintiffs are seeking is reflected in the

accompanying Proposed Order.

CONCLUSION

For the foregoing reasons, TED Plaintiffs respectfully request that the Motion for

Preliminary Approval be granted and that the Court enter the accompanying Proposed Order:

1. Preliminarily approving the Nachi Settlement Agreement and NSK Settlement

Agreement;

2. Provisionally certifying the proposed Bearings Settlement Classes;

3. Staying the proceedings against Settling Defendants in accordance with the terms

of the respective Settlement Agreements;

4. Authorizing Settlement Class Counsel to provide notice of the Nachi Settlement

Agreement and NSK Settlement Agreement to members of the respective

Settlement Classes together with notice of the Settling Defendants’ settlement in

the form approved by the Court;

5. Appointing Interim Lead Class Counsel as the TED Plaintiffs as Settlement Class

Counsel for these Settlements; and

6. Revising the Court’s June 1, 2017 Order Granting Truck and Equipment Dealer Plaintiff’s Motion for Preliminary Approval of Proposed Settlement with SKF USA Inc., Provisional Certification of Settlement Classes, and Authorization of Dissemination of Class Notice, Case No. 2:14-cv-13356-MOB-MKM, ECF No. 75, so that the final settlements in the Bearings case are all on the same schedule.


39 DM1\7894880.1

Respectfully submitted, Dated: June 19, 2017

/s/ J. Manly Parks Wayne A. Mack (PA Bar #46654) J. Manly Parks (PA Bar #74647) Sean P. McConnell (PA Bar #307740) Andrew R. Sperl (PA Bar #311467) Erica Lee Fruiterman (PA Bar #317289) William Shotzbarger (PA Bar #320490) DUANE MORRIS LLP 30 S. 17th Street Philadelphia, PA 19103 Phone: (215) 979-1000 Fax: (215) 979-1020 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

Counsel for Truck and Equipment Dealer Plaintiffs


DM1\7894880.1

CERTIFICATE OF SERVICE

I certify that today I served the Foregoing Truck and Equipment Dealer Plaintiffs’

Motion for Preliminary Approval of Proposed Settlements with Certain Defendants and

Provisional Certification of Settlement Classes, and Motion to Revise the SKF USA Inc. Notice

and Final Approval Schedule with the Clerk of the Court using the ECF system which will send

notification of such filing to all of the ECF participants in this action.

Dated: June 19, 2017 /s/ J. Manly Parks J. Manly Parks


DM1\7895709.1


SOUTHERN DIVISION



IN RE: BEARINGS


THIS DOCUMENT RELATES TO TRUCK AND EQUIPMENT DEALER CASES

INDEX OF EXHIBITS TO

TRUCK AND EQUIPMENT DEALER PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENTS WITH CERTAIN DEFENDANTS,



Exhibit Description

1 Settlement Agreement between Nachi-Fujikoshi Corporation and Nachi America Inc. and Truck and Equipment Dealer Plaintiffs

2 Settlement Agreement between NSK Ltd. and NSK Americas, Inc. and Truck and Equipment Dealer Plaintiffs

3 Declaration of William Wickersham

2:14-cv-00507-MOB-MKM Doc # 70-1 Filed 06/19/17 Pg 1 of 1 Pg ID 3539

EXHIBIT 1


IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

IN RE: AUTOMOTIVE PARTS ANTITRUST LITIGATION In re: Bearings Cases


THIS DOCUMENT RELATES TO: Truck and Equipment Dealer Cases

2:12-cv-00500-MOB-MKM 2:14-cv-00507-MOB-MKM 2:14-cv-13356-MOB-MKM

SETTLEMENT AGREEMENT

This Settlement Agreement (“Agreement” or “Settlement”) is made and entered into

this 11th day of May, 2017 (“Execution Date”) by and between Nachi-Fujikoshi Corporation

and Nachi America Inc. (collectively, “Nachi”), and Truck and Equipment Dealer Class

Representatives (“Truck and Equipment Dealer Plaintiffs”), both individually and on behalf

of a class of Truck and Equipment dealership indirect purchasers of Bearings (“Settlement

Class”), as more particularly defined in Paragraph 15 below.

WHEREAS, Truck and Equipment Dealer Plaintiffs are prosecuting the above In Re

Automotive Parts Antitrust Litigation, Master File No. 12-md-02311 (E.D. Mich.) (“MDL

Litigation”), which includes Case No. 2:14-cv-00507-MOB-MKM and Case No. 2:14-cv-

13356-MOB-MKM (also known as Rush Truck Centers of Alabama, Inc., et al. v. JTEKT

Corp., et al.,) (collectively, the “Action”) on their own behalf and on behalf of the

Settlement Class against, among others, Nachi;

WHEREAS, Truck and Equipment Dealer Plaintiffs allege that they were injured as a

result of Nachi’s alleged participation in an unlawful conspiracy to raise, fix, maintain


2

and/or stabilize prices, rig bids, and allocate markets and customers for Bearings (as defined

below) in violation of Section 1 of the Sherman Act and various state antitrust, unfair

competition, unjust enrichment, and consumer protection laws as set forth in Truck and

Equipment Dealer Plaintiffs’ First Amended Class Action Complaint in the Action

(“Complaint”);

WHEREAS, Nachi denies Truck and Equipment Dealer Plaintiffs’ allegations and

has asserted defenses to Truck and Equipment Dealer Plaintiffs’ claims in the Action;

WHEREAS, arm’s-length settlement negotiations have taken place between

Settlement Class Counsel (as defined below) and counsel for Nachi, and this Agreement has

been reached as a result of those negotiations;

WHEREAS, Truck and Equipment Dealer Plaintiffs, through their counsel, have

conducted an investigation into the facts and the law regarding the Action and have

concluded that resolving the claims asserted in this Action against Nachi, according to the

terms set forth below, is in the best interest of Truck and Equipment Dealer Plaintiffs and the

Settlement Class in light of the risks and expense of further litigation and because of the

payment of the Settlement Amount and the value of the Cooperation (as those terms are

defined below) that Nachi has agreed to provide pursuant to this Agreement;

WHEREAS, the Action will continue against Defendants (as defined below) that are

not Releasees (as defined below);

WHEREAS, Nachi, despite its belief that it is not liable for the claims asserted and

its belief that it has meritorious defenses thereto, has nevertheless agreed to enter into this

Agreement to avoid further expense, inconvenience, and the distraction of burdensome and

protracted litigation, and to obtain the releases, orders, and judgment contemplated by this


3

Agreement, and to put to rest with finality all claims that have been or could have been

asserted against Nachi with respect to Bearings based on the allegations in the Action, as

more particularly set out below;

WHEREAS, Nachi has agreed to provide Cooperation to Truck and Equipment

Dealer Plaintiffs in the ongoing prosecution of the Action as set forth in this Agreement, and

such Cooperation will reduce Truck and Equipment Dealer Plaintiffs’ substantial burden and

expense associated with prosecuting the Action; and

WHEREAS, Truck and Equipment Dealer Plaintiffs recognize the benefits of Nachi’s

Cooperation and recognize that because of joint and several liability, this Agreement with

Nachi does not impair Truck and Equipment Dealer Plaintiffs’ ability to collect the full

amount of damages to which they and the Settlement Class may be entitled in the Action,

including any damages attributable to Nachi’s alleged conduct:

NOW, THEREFORE, in consideration of the covenants, agreements, and releases set

forth herein and for other good and valuable consideration, it is agreed by and among Nachi

and Truck and Equipment Dealer Plaintiffs, acting through their respective undersigned,

duly authorized counsel of record, that the Action and claims against Nachi and the other the

Releasees (as defined below) be settled, compromised, and dismissed on the merits with

prejudice as to Nachi and the other Releasees and except as hereinafter provided, without

costs as to Truck and Equipment Dealer Plaintiffs, the Settlement Class, or Nachi, subject to

the approval of the Court, on the following terms and conditions:


4

A. Definitions.

1. “Automobile Dealership Settlement Class Counsel” shall refer to the law firms

identified as settlement class counsel in any settlement agreement between Nachi and settlement

class members in the Automobile Dealership case, Case No. 2:12-cv-00502-MOB-MKM.

2. “Bearings” shall have the same meaning as set forth in the operative Complaint at

the time this Agreement is executed.

3. “Cooperation” shall refer to those provisions set forth below in Section F,

Paragraphs 39-47.

4. “Cooperation Materials” means any information (including information from

attorney consultations and proffers and witness interviews), testimony, Documents (as defined

below) or other material provided by Nachi under the terms of this Agreement.

5. “Defendant” means any party named as a defendant in the Action at any time up

to and including the date when the Court has entered a final order certifying the Settlement Class

described in Paragraph 15, below and approving this Agreement under Federal Rule of Civil

Procedure 23(e).

6. “Document” is defined to be synonymous in meaning and equal in scope to the

usage of this term in Rule 34(a) of the Federal Rules of Civil Procedure, including, without

limitation, electronically stored information. A draft or non-identical copy is a separate

document within the meaning of this term.

7. “End Payor Settlement Class Counsel” shall refer to the law firms identified as

settlement class counsel in any settlement agreement between Nachi and settlement class

members in the End Payor case, Case No. 2:12-cv-00503-MOB-MKM.


5

8. “Execution Date” means the date on which this Agreement has been fully signed

and executed on behalf of both Truck and Equipment Dealer Plaintiffs and Nachi and the last

signature to the Agreement has been delivered.

9. “Indirect Purchaser States” means Arizona, Arkansas, California, District of

Columbia, Florida, Hawaii, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota,

Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, New York, North

Carolina, North Dakota, Oregon, South Carolina, South Dakota, Tennessee, Utah, Vermont,

West Virginia, and Wisconsin.

10. “Opt-Out Deadline” means the deadline set by the Court for the timely

submission of requests by members of the Settlement Class to be excluded from the Settlement

Class and this Settlement.

11. “Released Claims” shall refer to the claims described in Paragraph 28 and

Paragraph 29, below.

12. “Releasees” shall refer to Nachi and to all of its respective past and present, direct

and indirect, parents, subsidiaries, associates, partnerships, and affiliates, including, but not

limited to, Nachi-Fujikoshi Corporation, Nachi America Inc., Nachi Technology, Inc., and Nachi

Europe GMBH; to the predecessors, successors, and assigns of each of the above; and to 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 of each of the foregoing. “Releasees” does not include any defendant

in the MDL Litigation other than Nachi and the other Releasees.

13. “Releasors” shall refer to Truck and Equipment Dealer Class Representatives and

Settlement Class Members, as defined in Paragraph 17, below, and to their respective past and


6

present officers, directors, supervisors, employees, agents, stockholders, members, attorneys,

servants, representatives, parents, subsidiaries, affiliates, principals, partners, insurers, and all

other persons, partnerships or corporations with whom any of the former have been, or are now,

affiliated, and the predecessors, successors, heirs, executors, administrators and assigns of any of

the foregoing, and any other claimant to the extent that he, she or it seeks now or in the future to

assert, on their behalf or on behalf or for the benefit of one or more Releasors, claims for relief

against any Releasee where such claims arise out of, or are based in fact or in law on, in whole or

in part, the Released Claims (as defined above).

14. “Settlement Amount” shall be US $475,000.

15. “Settlement Class” shall mean all present and former Truck and/or Equipment

dealers that, during the period January 1, 2000, through the Execution Date, inclusive, indirectly

purchased Bearings manufactured or sold by a Defendant or any current or former subsidiary or

affiliate thereof, or any alleged co-conspirator of a Defendant; or purchased new Trucks and/or

Equipment containing Bearings manufactured or sold by a Defendant or any current or former

subsidiary, affiliate or alleged co-conspirator of a Defendant.

16. “Settlement Class Counsel” shall refer to the law firm of:

Duane Morris LLP 30 South 17th Street Philadelphia, PA 19103

17. “Settlement Class Member” means each member of the Settlement Class who has

not timely elected to be excluded from the Settlement Class.

18. “Settlement Fund” shall be the Settlement Amount plus any income or accrued

interest earned on that amount.


7

19. “Trucks and/or Equipment” means heavy-duty (Class 8) trucks, medium-duty

(Class 4, 5, 6 & 7) trucks, buses, commercial vehicles, construction equipment, mining

equipment, agricultural equipment, railway vehicles, and other similar vehicles.

20. “Truck and Equipment Dealer Class Representatives” means those Settlement

Class Members, as defined in Paragraph 17, above, who are named plaintiffs in the Complaint.

B. Approval of this Agreement and Dismissal of Claims Against Nachi.

21. On the Execution Date, Truck and Equipment Dealer Plaintiffs and Nachi shall be

bound by its terms, and this Agreement shall not be rescinded except in accordance with

Paragraph 33(e) and Paragraph 48 of this Agreement. Except as provided in this Paragraph,

Nachi, Truck and Equipment Dealer Plaintiffs, and Settlement Class Counsel agree not to

disclose publicly or to any other person or entity the fact of or terms of this Agreement until this

Agreement is submitted to the Court for preliminary approval as set forth in Paragraph 23.

(a) Nachi and Truck and Equipment Dealer Plaintiffs may disclose the

Agreement itself and the terms and conditions thereof: (i) to persons for whom such

information is necessary to effectuate the provisions of the Agreement (and who shall

be advised of its confidentiality and be requested to agree to this provision); (ii) to

those employees and outside professional advisors (e.g., accountants, lawyers, tax

advisors, etc.) who need to be aware of this Agreement or its terms in the ordinary

course of business to perform their duties and to properly advise Nachi and Truck and

Equipment Dealer Plaintiffs; (iii) to the extent such disclosure is required for

enforcement of this Agreement; (iv) for the preparation of financial records (e.g., tax

returns, financial statements, etc.); (v) as required by law for the purpose of financial

reporting (e.g., securities notices, filings, and/or disclosures, etc.); or (vi) as


8

otherwise required by law, including, for example, compliance with legally

authorized discovery procedures.

(b) Nachi may disclose the fact that it has settled with Truck and Equipment

Dealer Plaintiffs, without disclosing the settlement terms, to counsel for other Defendants

in the Action.

22. Truck and Equipment Dealer Plaintiffs and Nachi shall use their best efforts to

effectuate this Agreement, including cooperating in seeking the Court’s approval for the

establishment of procedures (including the giving of class notice under Federal Rules of Civil

Procedure 23(c) and (e)) to secure the complete release of the Releasees, and final dismissal with

prejudice of the Action as to Nachi and the other Releasees only. Notwithstanding anything to

the contrary contained in this Agreement, if, prior to the issuance of notice to the Settlement

Class of this Settlement, (a) the operative Complaint at the time of this Agreement is amended to

allege additional or broader claims, a larger class, or a longer alleged conspiracy period, or

(b) Truck and Equipment Dealer Plaintiffs and another Defendant enter into a settlement

agreement that provides for a larger settlement class or a broader release than set forth in this

Agreement, then the Settlement Class definition in this Agreement shall be immediately

modified to reflect any larger settlement class in the subsequent settlement and the release

contained herein shall be modified to give effect to any broader release in the subsequent

settlement, preserving any other material terms of the existing release.

23. Truck and Equipment Dealer Plaintiffs shall, within forty-five (45) days after the

Execution Date, submit to the Court a motion seeking preliminary approval of this Agreement

(“Preliminary Approval Motion”). The Preliminary Approval Motion shall include (i) the

proposed form of an order preliminarily approving this Agreement, as set forth below, and (ii) a


9

proposed form of order and final judgment that shall include at least the terms set forth in

Paragraph 25, below. The text of these proposed orders shall be agreed upon by Truck and

Equipment Dealer Plaintiffs and Nachi before submission of the Preliminary Approval Motion.

Nachi shall have reasonable notice of and opportunity to review and comment on the Preliminary

Approval Motion, and Truck and Equipment Dealer Plaintiffs shall reasonably consider Nachi’s

comments. Truck and Equipment Dealer Plaintiffs shall not initiate any discovery against Nachi

or the other Releasees pending issuance of an order preliminarily approving this Agreement. The

terms of the proposed order preliminarily approving this Agreement will include, at a minimum,

the substance of the following provisions:

(a) preliminarily approving this Agreement as being fair, reasonable, and

adequate to the Settlement Class;

(b) preliminarily certifying the Settlement Class as meeting the standard

for a settlement class under Rule 23;

(c) appointing the law firm identified in Paragraph 16 of this Agreement

as Settlement Class Counsel;

(d) appointing Truck and Equipment Dealer Plaintiffs as class

representatives of the Settlement Class;

(e) directing that notice be given to the members of the Settlement Class

at a time and in a manner consistent with the terms of this Agreement;

(f) approving establishment of the Settlement Fund as defined in

Paragraph 18;

(g) providing that the Court’s preliminary approval of this Agreement and

preliminary certification of the Settlement Class will have no effect on the rights of


10

any Defendant, including Nachi, to contest the certification of any other proposed

classes in the MDL Litigation; and

(h) staying the Action against Nachi and the other Releasees for all

purposes except those necessary to effectuate this Agreement.

24. After notice to Nachi, Truck and Equipment Dealer Plaintiffs shall submit to the

Court a motion for authorization to disseminate notice of the settlement and final judgment

contemplated by this Agreement to all members of the Settlement Class identified by Truck and

Equipment Dealer Plaintiffs (“Notice Motion”). In order to mitigate the costs of notice, the

Truck and Equipment Dealer Plaintiffs shall endeavor, to the fullest extent possible, to

disseminate a combined notice to the members of the Settlement class of this Settlement with any

other settlements that have been reached in the MDL Litigation and have been memorialized in a

written, fully executed settlement agreement at the time the Notice Motion is filed. The Notice

Motion shall include a proposed form of, method for, and date of dissemination of notice. Truck

and Equipment Dealer Plaintiffs shall provide Nachi with at least five (5) business days in which

to review and comment on the Notice Motion and proposed notice, and Truck and Equipment

Dealers shall reasonably consider Nachi’s comments before submission of the Notice Motion.

The proposed form of and method for dissemination of notice shall be similar to the form and

method of dissemination of notice approved by the Court for settlements between the Truck and

Equipment Dealer Plaintiffs and other Defendants in the Action.

25. Truck and Equipment Dealer Plaintiffs shall seek, and Nachi will not object

unreasonably to, the entry of an order and final judgment by the Court in the Action, the text of

which Truck and Equipment Dealer Plaintiffs and Nachi shall agree upon in advance. The terms


11

of that proposed order and final judgment will include, at a minimum, the substance of the

following provisions:

(a) certifying the Settlement Class described in Paragraph 15, pursuant to

Rule 23 of the Federal Rules of Civil Procedure, solely for purposes of this Settlement as

a settlement class for the Action;

(b) as to the Action, approving finally this Settlement and its terms as being a

fair, reasonable and adequate settlement as to the Settlement Class Members within the

meaning of Rule 23 of the Federal Rules of Civil Procedure and directing its

consummation according to its terms;

(c) directing that all Releasors shall, by operation of law, be deemed to have

released all Releasees from the Released Claims, as described in Paragraph 28 and

Paragraph 29.

(d) as to Nachi, directing that the Action, including the claims of Settlement

Class Members, be dismissed with prejudice and, except as provided for in this

Agreement, without costs;

(e) reserving exclusive jurisdiction over the Settlement and this Agreement,

including the interpretation, administration and consummation of this Settlement, as well

as over Truck and Equipment Dealer Plaintiffs and Nachi, for the duration of Nachi’s

provision of Cooperation pursuant to this Agreement, to the United States District Court

for the Eastern District of Michigan;

(f) determining under Federal Rule of Civil Procedure 54(b) that there is no

just reason for delay and directing that the judgment of dismissal in the Action as to

Nachi shall be final;


12

(g) providing that (i) the Court’s certification of the Settlement Class is

without prejudice to, or waiver of, the rights of any Defendant, including Nachi, to

contest certification of any other class proposed in the MDL Litigation, (ii) the Court’s

findings in this order shall have no effect on the Court’s ruling on any motion to certify

any class in the MDL Litigation or on the Court’s rulings concerning any party’s motion;

and (iii) no party may cite or refer to the Court’s approval of the Settlement Class as

persuasive or binding authority with respect to any motion to certify any such class or any

party’s motion; and

(h) enjoining all Settlement Class Members and the other Releasors, and their

counsel, from asserting or prosecuting any claim or action against Nachi or the other

Releasees that are released by this Agreement.

26. This Agreement shall become final and be deemed to have received “Final Court

Approval” within the meaning of this Agreement when (a) the Court has entered a final order in

the Action that is consistent with the requirements of Paragraph 25 above, including certifying

the Settlement Class described in Paragraph 15 above and approving this Agreement under

Federal Rule of Civil Procedure 23(e) and has entered a final judgment dismissing the Action

with prejudice as to Nachi and without costs to it other than those provided for in this

Agreement; and (b) the time for appeal or to seek permission to appeal from the Court’s approval

of this Agreement and entry of a final order and judgment as to Nachi described in (a) hereof has

expired and no motion or other pleading has been filed with the Court (or with any other court)

seeking to set aside, enjoin, or in any way alter the judgment or final approval order in the Action

or to toll the time for appeal of the judgment in the Action or, if appealed, approval of this

Agreement and the final judgment in the Action as to Nachi have been affirmed in their entirety


13

by the Court of last resort to which such appeal has been taken and such affirmance has become

no longer subject to further appeal or review. It is agreed that the provisions of Rule 60 of the

Federal Rules of Civil Procedure shall not be taken into account in determining the above-stated

times.

27. Notwithstanding any other provision of this Agreement, the parties and their

counsel agree that this Agreement and any and all of its terms and provisions, and any and all

negotiations, Documents, and discussions associated with them, and any other statements made

by counsel for Nachi in connection with or as part of this Settlement shall be governed by

Federal Rule of Evidence 408 and deemed privileged and confidential. Neither this Agreement

(whether or not it should become final) nor the final judgment, nor any and all negotiations,

documents, and discussions associated with them (including Cooperation Materials provided

pursuant to Paragraphs 41-46), shall be deemed or construed to be an admission by Nachi or the

other Releasees, or evidence of any violation of any statute or law or of any liability or

wrongdoing whatsoever by Nachi or the other Releasees, or of the truth of any of the claims or

allegations contained in any complaint or any other pleading filed in the MDL Litigation, to be

used against Nachi or the other Releasees in any action or proceeding, and evidence thereof shall

not be discoverable or used in any way, directly or indirectly, whether in the MDL Litigation, or

in any other action, arbitration, or proceeding whatsoever against Nachi or the other Releasees.

Neither this Agreement, nor any of its terms and provisions, nor any of the negotiations or

proceedings connected with it, nor any other action taken to carry out this Agreement by Nachi,

shall be referred to, offered as evidence or received in evidence in any pending or future civil,

criminal, or administrative action, arbitration, or proceedings, except in a proceeding to enforce

this Agreement, or to defend against the assertion of Released Claims, or as otherwise required


14

by law. Nothing in this Paragraph shall be construed to limit the use of this Agreement to

enforce its terms or to prevent Truck and Equipment Dealer Plaintiffs from using and/or

introducing into evidence the information, Documents, transactional data, or testimony provided

pursuant to Paragraphs 41-46 against any other defendants in the MDL Litigation, subject to the

limitations in those Paragraphs and the remainder of Section F, and subject to the terms and

conditions set forth in the Stipulation and Protective Order Governing Production and Exchange

of Confidential Information, ECF No. 200, Case No. 2:12-md-02311-MOB-MKM (filed

July 10, 2012), entered by the Court in the MDL Litigation (“MDL Protective Order”), and the

Stipulation and Protective Order Governing the Production and Exchange of Confidential

Information, ECF No. 85, Case No. 2:12-cv-00500-MOB-MKM, entered by the Court in the

Action (“Protective Order,” together with the MDL Protective Order, the “Protective Orders”).

C. Release, Discharge, and Covenant Not to Sue.

28. In addition to the effect of any final judgment entered in accordance with this

Agreement, upon Final Court Approval of this Agreement, as set out in Paragraph 26 of this

Agreement, and in consideration of payment of the Settlement Amount, as specified in

Paragraph 30 of this Agreement, into the Settlement Fund, the Cooperation provided pursuant to

Paragraphs 41-46, and for other valuable consideration, the Releasees shall be completely

released, acquitted, and forever discharged from any and all claims, demands, actions, suits, and

causes of action, whether class, individual, representative, or otherwise in nature (whether or not

any Settlement Class Member has objected to the Settlement or makes a claim upon or

participates in the Settlement Fund, whether directly, representatively, derivatively, or in any

other capacity), under any federal, state, or local law of any jurisdiction in the United States, or

under the law of any foreign jurisdiction, that Releasors, or each of them, ever had, now has, or


15

hereafter can, shall, or may ever have, that now exist or may exist in the future, on account of, or

in any way arising out of, any and all known and unknown, foreseen and unforeseen, suspected

or unsuspected, actual or contingent, liquidated or unliquidated claims, injuries, damages, and the

consequences thereof in any way arising out of or relating in any way to any conduct alleged in

the Complaint or any act or omission of the Releasees (or any combination thereof), concerning

Bearings, including, but not limited to, any conduct and causes of action alleged or asserted, or

that could have been alleged or asserted, in any class action or other complaints filed in the

Action (“Released Claims”), provided however, that nothing herein shall release: (a) any claims

made by direct purchasers of Bearings based solely on such direct purchases; (b) any claims

made by Settlement Class Members in the End-Payor case, Case No. 2:12-cv-00503-MOB-

MKM, as that term is defined in the Settlement Agreement between Nachi and End-Payor

Plaintiffs in that case; (c) any claims made by Settlement Class Members in the Automobile

Dealership case, Case No. 2:12-cv-00502-MOB-MKM, as that term is defined in the Settlement

Agreement between Nachi and Automobile Dealership Plaintiffs in that case; (d) any claims

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

government purchases and/or penalties relating to Bearings; (e) claims based on negligence,

personal injury, breach of contract, bailment, failure to deliver lost goods, damaged or delayed

goods, product defect, warranty, securities or similar claim relating to Bearings; (f) claims

concerning any vehicle part other than Bearings; and (g) claims under laws other than those of

the United States and the states thereof relating to purchases of Bearings made outside of the

United States and the states thereof. Releasors shall not, after the date of this Agreement, seek to

establish liability against any Releasee based, in whole or in part, upon any of the Released

Claims or conduct at issue in the Released Claims.


16

29. In addition to the provisions of Paragraph 28 of this Agreement, Releasors hereby

expressly waive and release, upon Final Court Approval of this Agreement, as set out in

Paragraph 26 of this Agreement, any and all provisions, rights, and benefits, as to their claims

concerning Bearings, conferred by Section 1542 of the California Civil Code, which states:

CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR;

or by any law of any state or territory of the United States, or principle of common law, which

is similar, comparable, or equivalent to Section 1542 of the California Civil Code. Each

Releasor may hereafter discover facts other than or different from those which he, she, or it

knows or believes to be true with respect to the claims that are released pursuant to the

provisions of Paragraph 28 of this Agreement, but each Releasor hereby expressly waives and

fully, finally, and forever settles and releases, upon this Agreement becoming final, any

known or unknown, suspected or unsuspected, contingent or non-contingent claim that Nachi

and Truck and Equipment Dealer Plaintiffs have agreed to release pursuant to Paragraph 28,

whether or not concealed or hidden, without regard to the subsequent discovery or existence

of such different or additional facts.

D. Settlement Amount.

30. Subject to the provisions hereof, and in full, complete and final settlement of the

Action as provided herein, Nachi shall pay the Settlement Amount of US $475,000. Nachi shall

transfer the Settlement Amount to the Settlement Fund by wiring such funds to an escrow

account to be administered in accordance with the provisions of Paragraph 32 of this Agreement

(“Escrow Account”) within thirty (30) days following the date (a) the Court enters an order


17

preliminarily approving this Settlement as set forth in Paragraph 23, or (b) Nachi is provided

with the account number, account name, and wiring transfer information for the Escrow

Account, whichever is later. No part of the Settlement Amount paid by Nachi shall constitute,

nor shall it be construed or treated as constituting, a payment for treble damages, fines, penalties,

forfeitures or punitive recoveries.

31. Settlement Class Counsel shall allocate the Settlement Amount among the

Settlement Class Members subject to approval by the Court after notice to the Settlement Class

as directed by the Court, less any court-approved reimbursements for costs and expenses, any

attorneys’ fee award, and any other awards, reimbursements, and expenditures approved by the

Court.

32. Escrow Account.

(a) The Escrow Account will be established at U.S. Bank with such Bank

serving as escrow agent (“Escrow Agent”) subject to escrow instructions mutually

acceptable to Settlement Class Counsel and Nachi, such escrow to be administered by the

Escrow Agent under the Court’s continuing supervision and control.

(b) The Escrow Agent shall cause the Settlement Amount deposited in the

Escrow Account and the resulting Settlement Fund to be held in cash or invested in

short-term instruments backed by the full faith and credit of the United States

Government or fully insured in writing by the United States Government, or money

market funds rated Aaa and AAA, respectively, by Moody’s Investor Services and

Standard and Poor’s, invested substantially in such instruments, and shall reinvest any

income from these instruments and the proceeds of these instruments as they mature in

similar instruments at their then-current market rates.


18

(c) All funds held in the Escrow Account shall be deemed and considered to

be in custodia legis of the Court, and shall remain subject to the jurisdiction of the Court,

until such time as such funds shall be distributed pursuant to this Agreement and/or

further order(s) of the Court. Nachi shall bear no risk related to the funds in the Escrow

Account.

(d) The Settlement Fund is, and shall be operated in a manner so that it

qualifies as, a qualified settlement fund under Section 468B of the Internal Revenue

Code, as amended (“Code”), and Treas. Reg. § 1.468B-1, et seq. Truck and Equipment

Dealer Plaintiffs and Nachi agree to treat the Settlement Fund as being at all times a

Qualified Settlement Fund within the meaning of Treas. Reg. § 1.468B-1. In addition,

Settlement Class Counsel and the Escrow Agent shall timely take such actions as are

necessary to create and maintain the Settlement Fund’s status as a qualified settlement

fund, and shall timely make such elections as are necessary or advisable to carry out the

provisions of this Paragraph 32, including the relation-back election (as defined in Treas.

Reg. § 1.468B-1) back to the earliest permitted date. Such elections shall be made in

compliance with the procedures and requirements contained in such regulations. It shall

be the responsibility of Settlement Class Counsel and the Escrow Agent to timely and

properly prepare and deliver the necessary documentation for signature by all necessary

parties, and thereafter to cause the appropriate filing to occur.

(e) For the purpose of Section 468B of the Code, and the regulations

promulgated thereunder, the administrator shall be Settlement Class Counsel and the

Escrow Agent. Settlement Class Counsel shall be responsible for the timely and proper

performance of the undertakings specified in the regulations promulgated under


19

Section 468B, including, but not limited to, filing all information and other tax returns

necessary or advisable with respect to the Settlement Fund (including without limitation

the information and tax returns described in Treas. Reg. §§ 1.468B-2(k)-(l)). Such

returns (as well as the election described in Paragraph 32(d)) shall be consistent with the

provisions of Paragraph 32(d) and in all events shall reflect that all Taxes, as defined

below (including any estimated Taxes, interest or penalties), on the income earned by the

Settlement Fund shall be paid out of the Settlement Fund as provided in Paragraph 32(f)

hereof.

(f) All (i) taxes (including any estimated taxes, interest or penalties) arising

with respect to the income earned by the Settlement Fund, including any taxes or tax

detriments that may be imposed upon Nachi or any other Releasee with respect to any

income earned by the Settlement Fund for any period during which the Settlement Fund

does not qualify as a Qualified Settlement Fund for federal or state income tax purposes

(“Taxes”); and (ii) expenses and costs incurred in connection with the operation and

implementation of Paragraphs 32(d) through 32(f) (including, without limitation,

expenses of tax attorneys and/or accountants and mailing and distribution costs and

expenses relating to filing (or failing to file) the returns described in Paragraph 32(e))

(“Tax Expenses”), shall be paid out of the Settlement Fund.

(g) Neither Nachi nor any other Releasee nor their respective counsel shall

have any liability or responsibility for Taxes or Tax Expenses. Further, Nachi and the

other Releasees and their respective counsel shall be indemnified and held harmless for

such amounts (including taxes payable by reason of such indemnification) by the Escrow

Agent and Settlement Class Counsel. Taxes and Tax Expenses shall be treated as, and


20

considered to be, a cost of administration of the Settlement Fund and shall be timely paid

by the Escrow Agent out of the Settlement Fund without prior order from the Court and

the Escrow Agent shall be obligated (notwithstanding anything herein to the contrary) to

withhold from distribution to any claimants authorized by the Court any funds necessary

to pay such amounts including the establishment of adequate reserves for any Taxes and

Tax Expenses (as well as any amounts that may be required to be withheld under Treas.

Reg. § 1.468B-2(1)(2)). Neither Nachi nor any other Releasee shall be responsible or

have any liability therefor or for any reporting requirements that may relate thereto.

Truck and Equipment Dealer Plaintiffs and Nachi agree to cooperate with the Escrow

Agent, each other, and their tax attorneys and accountants to the extent reasonably

necessary to carry out the provisions of Paragraphs 32(d) through 32(f).

(h) If this Agreement does not receive Final Court Approval, including final

approval of the Settlement Class as defined in Paragraph 15, or if the Action is not

certified as a class action for settlement purposes, then all amounts paid by Nachi into the

Settlement Fund (other than costs expended or incurred in accordance with Paragraph 34

below), shall be returned to Nachi from the Escrow Account by the Escrow Agent along

with any interest accrued thereon within ten (10) calendar days of the denial of Final

Court Approval of the Agreement and/or Settlement Class.

33. Exclusions.

(a) Subject to Court approval, any person or entity seeking exclusion from the

Settlement Class must file a written request for exclusion by the Opt-Out Deadline. Any

person or entity that files such a request shall be excluded from the Settlement Class and

shall have no rights with respect to this Settlement. Subject to Court approval, a request


21

for exclusion that does not comply with all of the provisions set forth in the applicable

Court-approved notice of settlement and final judgment to be disseminated to the

members of the Settlement Class will be invalid, and the person(s) or entity(ies) serving

such an invalid request shall be deemed Settlement Class Member(s) and shall be bound

by this Agreement upon Final Court Approval. Settlement Class Counsel shall, within

ten (10) business days of the Opt-Out Deadline, provide Nachi with a list and copies of

all opt-out requests it receives and shall file under seal with the Court a list of all

members of the Settlement Class who timely and validly opted out of the Settlement.

(b) Subject to Court Approval, any member of the Settlement Class who

submits a valid and timely request for exclusion will not be a Settlement Class Member

and shall not be bound by the terms of this Agreement. Nachi reserves all of its legal

rights and defenses with respect to any claim asserted by any excluded member of the

Settlement Class, including, but not limited to, any defenses relating to whether any

excluded member of the Settlement Class was qualified to be in the Settlement Class and

to benefit from any tolling of applicable statutes of limitation, is an indirect purchaser of

Bearings, or has standing to bring any claim against Nachi or the other Releasees.

(c) Subject to Court approval, the notice of settlement and final judgment to

be disseminated to the Settlement Class will require that all written requests for exclusion

from the Settlement Class include the full name, address and telephone number of the

member of the Settlement Class who is seeking exclusion, and a statement that the

member wishes to be excluded from the Settlement Class.

(d) Nachi or Settlement Class Counsel may dispute an exclusion request, and

the parties and the person or entity requesting to opt out shall, if possible, resolve the


22

disputed exclusion request by agreement and shall inform the Court of their position, and,

if necessary, obtain a ruling thereon within thirty (30) days of the Opt-Out Deadline.

(e) Within twenty (20) business days following the Opt-Out Deadline, or as

soon thereafter as practicable, the parties shall, if necessary, determine the total number

of Truck and/or Equipment dealers in the Indirect Purchaser States, during the relevant

time period for the Settlement Class defined in Paragraph 15, that purchased Trucks

and/or Equipment containing Bearings (defined as the Total Number of Damages Class

Members for the Settlement Class for purposes of calculating the Total Opt-Out

Percentage defined below). The parties shall determine the Total Number of Damages

Class Members for the Settlement Class based upon reasonably available public

information, and each dealership location shall be counted as a separate Damages Class

Member for the purposes of this determination. In the event the parties mutually agree

that nonpublic information is required to determine the Total Number of Damages Class

Members for the Settlement Class, the parties shall identify an appropriate source of the

necessary information and any costs or expenses associated with securing such

information shall be paid pursuant to Paragraph 34 below. Within ten (10) business days

following the determination of the Total Number of Damages Class Members for the

Settlement Class, the parties shall, if necessary, calculate the Total Opt-Out Percentage,

which is defined as a fraction, the numerator of which is the Total Number of Damages

Class Members that have validly and timely requested to be excluded from the Settlement

Class, and the denominator of which is the Total Number of Damages Class Members for

the Settlement Class, provided that Nachi shall have the sole option to waive this

calculation and, by doing so, waive its rights under this Paragraph. If the parties are


23

unable to agree on the Total Opt-Out Percentage, the Truck and Equipment Dealer

Plaintiffs and Nachi agree to submit their respective calculations of the Total Opt-Out

Percentage to the Court for decision as to which of the competing calculations is most

reasonable. Should the Total Opt-Out Percentage be more than ten percent (10%), Nachi

shall, at its sole discretion, have the option to rescind and terminate this Agreement.

Written notice of the exercise of such right to rescind and terminate this Agreement shall

be made in accordance with the terms of Paragraph 61.

34. Payment of Expenses.

(a) Nachi agrees to permit use of a portion of the Settlement Fund up to a

maximum of US $40,000 toward the cost of providing notice to the Settlement Class and

the costs of administration of the Settlement Fund. Any such notice and administration

costs paid out of the Settlement Fund (up to the maximum of US $40,000) are not

recoverable if this Settlement does not receive Final Court Approval or is rescinded or

terminated to the extent such costs have actually been paid or incurred. The Escrow

Agent shall return all remaining portions of the Settlement Fund to Nachi should this

Agreement not receive Final Court Approval or be rescinded or terminated. Other than as

set forth in this Paragraph 34, Nachi shall not be liable for any of the costs or expenses

incurred by Truck and Equipment Dealer Plaintiffs in the Action, including attorneys’

fees, fees and expenses of expert witnesses and consultants, and costs and expenses

associated with discovery, motion practice, hearings before the Court or Special Master,

appeals, trials or the negotiation of other settlements, or for class administration, notice

and/or costs.


24

(b) In order to mitigate the costs of notice and administration, the Truck and

Equipment Dealer Plaintiffs shall use their best efforts, if practicable, to disseminate

notice of this Settlement with notice of other settlements reached with other defendants in

the MDL Litigation and to apportion the costs of notice and administration fairly across

the applicable settlements.

E. The Settlement Fund.

35. Releasors shall look solely to the Settlement Fund for settlement and satisfaction

against the Releasees of all Released Claims, and Releasors shall have no other recovery against

Nachi or any other Releasee.

36. After this Agreement receives Final Court Approval within the meaning of

Paragraph 26, the Settlement Fund shall be distributed in accordance with a plan to be submitted

to the Court at the appropriate time by Settlement Class Counsel, subject to approval by the

Court. In no event shall Nachi nor any other Releasee have any responsibility, financial

obligation, or liability whatsoever with respect to the investment, distribution, or administration

of the Settlement Fund, including, but not limited to, the costs and expenses of such distribution

and administration.

37. Truck and Equipment Dealer Plaintiffs and Settlement Class Counsel shall be

reimbursed and indemnified solely out of the Settlement Fund for their reasonable costs and

expenses, as provided by Court Order. Nachi and the other Releasees shall not be liable for any

costs, fees, or expenses of any of Truck and Equipment Dealer Plaintiffs or the Settlement

Class’s respective attorneys, experts, advisors, agents, or representatives, but all such costs, fees,

and expenses as approved by the Court shall be paid out of the Settlement Fund.


25

38. Settlement Class Counsel’s Attorneys’ Fees, Reimbursement of Expenses, and

Incentive Awards for Class Representatives.

(a) Settlement Class Counsel may, after preliminary approval of this

Agreement by the Court as set forth in Paragraph 23 and notice to the Settlement Class,

submit an application or applications to the Court (“Fee and Expense Application”) for:

(i) an award of reasonable attorneys’ fees; plus (ii) reimbursement of expenses and costs

reasonably incurred in connection with prosecuting the Action and reasonable incentive

awards, plus interest on such attorneys’ fees, costs, and expenses at the same rate and for

the same period as earned by the Settlement Fund (until paid) as may be awarded by the

Court (“Fee and Expense Award”). Settlement Class Counsel reserves the right to make

additional applications for Court approval of fees and expenses reasonably incurred and

reasonable incentive awards, but in no event shall Nachi or any other Releasees be

responsible to pay any such additional fees and expenses.

(b) Subject to Court approval, Truck and Equipment Dealer Plaintiffs and

Settlement Class Counsel shall be reimbursed and paid solely out of the Settlement Fund

for all expenses including, but not limited to, attorneys’ fees and past, current, or future

litigation expenses and incentive awards. Attorneys’ fees and expenses awarded by the

Court shall be payable from the Settlement Fund upon award, notwithstanding the

existence of any timely filed objections thereto, or potential appeal therefrom, or

collateral attack on the Settlement or any part thereof, subject to Settlement Class

Counsel’s obligation to make appropriate refunds or repayments to the Settlement Fund

with interest, if and when, as a result of any appeal and/or further proceedings on remand,

or successful collateral attack, the fee or award of expenses is reduced or reversed, or in


26

the event this Agreement does not receive Final Court Approval or is rescinded or

terminated pursuant to Paragraph 33(e) or Paragraph 48.

(c) The procedure for and the allowance or disallowance by the Court of the

application by Settlement Class Counsel for attorneys’ fees, costs and expenses, and

incentive awards for Truck and Equipment Dealer Plaintiffs to be paid out of the

Settlement Fund are not part of this Agreement, and are to be considered by the Court

separately from the Court’s consideration of the fairness, reasonableness, and adequacy

of the Settlement, and any order or proceeding relating to the Fee and Expense

Application, or any appeal from any such order, shall not operate to terminate or cancel

this Agreement, or affect or delay the finality of the judgment approving the Settlement.

(d) Neither Nachi nor any other Releasee under this Agreement shall have any

responsibility for, or interest in, or liability whatsoever with respect to any payment to

Settlement Class Counsel and/or Truck and Equipment Dealer Plaintiffs of any Fee and

Expense Award in the Action.

(e) Neither Nachi nor any other Releasee under this Agreement shall have any

responsibility for, or interest in, or liability whatsoever with respect to the allocation

among Settlement Class Counsel, Truck and Equipment Dealer Plaintiffs, and/or any

other person who may assert some claim thereto, of any Fee and Expense Award that the

Court may make in the Action.

F. Cooperation.

39. In return for the release, discharge, and covenant not to sue provided in this

Agreement, Nachi agrees to use its best efforts to provide Cooperation, as set forth specifically in

Paragraphs 41-46 below, until final judgment of all Bearings claims by Truck and Equipment


27

Dealer Plaintiffs in the Action or dismissal with or without prejudice of all Bearings claims by

Truck and Equipment Dealer Plaintiffs in the Action, whichever is earlier. Cooperation will take

place consistent with the timing set forth specifically in this Section F. Truck and Equipment

Dealer Plaintiffs and Settlement Class Counsel agree to request such Cooperation only when and

only to the extent reasonably necessary to their prosecution of the Action. All Cooperation shall

be coordinated so as to avoid all unnecessary duplication and expense, shall otherwise be

reasonable, shall not impose undue burden and/or expense on Nachi and shall occur in a manner

that is in compliance with Nachi’s obligations to any Government Entities (as defined below), to

the extent that such compliance continues to be required. Nachi shall not be required to provide

Documents or information protected by the attorney-client privilege, the attorney work product

doctrine, any applicable privilege under foreign law, or whose disclosure is prohibited by court

order, any foreign or domestic law, or by a government entity.

40. Truck and Equipment Dealer Plaintiffs and Settlement Class Counsel agree they

will not use the Cooperation Materials and information provided by Nachi or its counsel or the

other Releasees or their representatives under this Agreement for any purpose other than the

prosecution of claims in the Action against parties other than Nachi and the other Releasees, and

will only use such Materials and information in the Action consistent with the Protective Orders,

and will not use them beyond what is reasonably necessary for the prosecution of such claims in

the Action or as otherwise required by law. All Documents and other Cooperation Materials and

information provided pursuant to this Agreement will be deemed “Highly Confidential,” as said

designation is described in the Protective Orders, and be subject to the Protective Orders as if

they had been produced in response to discovery requests and so designated.


28

41. Within ten (10) business days of a written request from Settlement Class Counsel

after preliminary approval of this Agreement by the Court, counsel for Nachi shall provide

Settlement Class Counsel with the identity of and last known contact information for all current

and former employees, directors, and officers of Nachi who: (a) were interviewed by the United

States Department of Justice (“DoJ”), the Japanese Fair Trade Commission (“JFTC”), or the

European Commission (collectively, referred to as “Government Entities”) in connection with

alleged price-fixing, bid rigging, market allocation, and/or other unlawful anticompetitive

activity concerning the sale of Bearings in the United States or for Trucks or Equipment that

were sold in the United States; and/or (b) appeared before the grand jury in the DoJ’s

investigation into alleged antitrust violations with respect to Bearings. Nachi shall not be

required to disclose to Settlement Class Counsel the specific Government Entities to which each

such current or former employee of Nachi was identified or appeared before.

42. Counsel for Nachi counsel agrees to make themselves available by telephone or in

Portland, Oregon for reasonable questions from, and to consult with, Settlement Class Counsel

regarding the facts and conspiracy alleged in the Complaint or any other case-related facts that

may come to light during the pendency of the Action, including to provide previews of testimony

likely to be provided by Nachi witnesses, if any, at depositions and to provide guidance

regarding which Nachi employees and former employees are likely to possess relevant

information regarding facts pertinent to the Truck and Equipment Dealers’ claims in the Action.

It is understood that Nachi’s counsel has no obligation to seek new or additional information or

Documents from any of its employees, representatives, or agents with respect to such questions

and consultations. Settlement Class Counsel shall maintain all statements made by Nachi’s

counsel in the course of such attorney consultations as “Highly Confidential,” as said designation


29

is described in the Protective Orders, and shall not use the information so received for any

purpose other than the prosecution of the Bearings claims against parties other than Nachi and

the other Releasees in the Action. Settlement Class Counsel shall not be permitted to attribute

any factual information obtained from the attorney consultations to Nachi or its counsel,

introduce such consultations into the record, or depose or subpoena any Nachi counsel regarding

any such consultation. Nachi, Truck and Equipment Dealer Plaintiffs, and their counsel further

agree that any statements made by Nachi’s counsel in connection with and/or as part of this

Settlement, including attorney consultations, shall not be disclosed to any other party and shall

be governed by Federal Rule of Evidence 408 and, otherwise, shall not be deemed admissible

into evidence or to be subject to discovery. Notwithstanding anything herein, Settlement Class

Counsel may use information contained in such statements in the prosecution of the Bearings

claims against parties other than Nachi and the other Releasees in the Action, and rely on such

information to certify that, to the best of Settlement Class Counsel’s knowledge, information,

and belief, such information has evidentiary support or will likely have evidentiary support after

a reasonable opportunity for further investigation or discovery.

43. Documents and Transactional Data. Nachi represents that in the course of

discovery in the Action, it has already produced to Truck and Equipment Dealer Plaintiffs:

(a) all non-privileged Documents in its possession, custody, or control that are responsive to

Truck and Equipment Dealer Plaintiffs’ current requests, as limited by the agreements Nachi

reached with Truck and Equipment Dealer Plaintiffs regarding the scope of the requests, and

found in the files of agreed-upon custodians; and (b) Nachi’s pre-existing transactional data that

are responsive to Truck and Equipment Dealer Plaintiffs’ current requests, as limited by the

agreements Nachi reached with Truck and Equipment Dealer Plaintiffs regarding the scope of the


30

requests. To the extent Truck and Equipment Dealer Plaintiffs identify any material deficiencies

in, or have reasonable questions about, Nachi’s production of Documents or transactional data or

or its interrogatory responses, Nachi will attempt in good faith to resolve any deficiencies and/or

answer those questions in a timely manner. Nachi further agrees to provide Truck and

Equipment Dealers with a complete copy of any supplemental document productions,

supplemental interrogatory responses, or other discovery responses Nachi makes in the future in

connection with the Action.

44. Depositions. This Agreement does not restrict Settlement Class Counsel from

attending and participating in any depositions in the Action.

45. To the extent, if any, that Nachi provides any attorney proffers, witness

interviews, or depositions as part of any other settlement(s) entered into by Nachi in the MDL

Litigation, Nachi will provide Settlement Class Counsel with timely notice of such proffers,

interviews, or depositions and shall permit Settlement Class Counsel to attend those proffers,

interviews, or depositions.

46. Nachi shall make a good faith effort to assist Settlement Class Counsel in

identifying Nachi witnesses who possess information relevant to the claims being asserted by

Truck and Equipment Dealer Plaintiffs in the Action and to make up to four (4) such witnesses

available for interviews by Settlement Class Counsel. Each interview shall, to the extent

practicable, and subject to any applicable orders of the Court, be conducted in person or via

videoconference. Each such witness interview shall take place at a mutually agreeable location

and at a mutually agreed upon time, accommodating the schedules, residency, and geographic

limitations of the witness where it is possible to do so; provided, however, that Nachi will be

under no obligation to make such witnesses appear in person in the United States for such


31

interviews. Each witness interview shall be limited to a total of seven (7) hours over one day;

provided, however, that to the extent that the person to be interviewed requests an interpreter, the

interview shall be limited to a total of twelve (12) hours. At the request of the person to be

interviewed, such twelve (12) hours of interview time may occur over two (2) consecutive days.

If an interview takes place in the United States, Settlement Class Counsel shall pay the economy

class fares and reasonable travel costs incurred by the witness, but in no event shall Settlement

Class Counsel be responsible for reimbursing the witness for their time or services rendered.

Nachi further agrees that each witness interviewed pursuant to the terms of this Agreement shall,

upon request of Settlement Class Counsel, timely provide Truck and Equipment Dealer Plaintiffs

with a sworn declaration memorializing information provided in such interview. Truck and

Equipment Dealer Plaintiffs shall withdraw all currently pending discovery requests to Nachi,

and shall seek no further discovery from any entity affiliated with Nachi or any current or former

director, officer, or employee of any entity affiliated with Nachi other than as provided for in this

Agreement. Except as provided herein, Nachi need not respond to discovery requests made

pursuant to the Federal Rules of Civil Procedure from Truck and Equipment Dealer Plaintiffs,

meet and confer, or otherwise negotiate with Truck and Equipment Dealer Plaintiffs regarding

discovery requests previously served in the Action or otherwise participate in the Action during

the pendency of the Agreement. Other than to enforce the terms of this Agreement, neither

Nachi nor Truck and Equipment Dealer Plaintiffs shall file motions against the other, in the

Action, during the pendency of the Agreement.

47. Nachi’s obligations to provide Cooperation shall not be affected by the releases

set forth in this Settlement Agreement. In the event that this Agreement fails to receive Final

Court Approval as contemplated in Paragraph 26 hereof, including final approval of the


32

Settlement Class as defined in Paragraph 15, or in the event that this Agreement is rescinded or

terminated by either party under any provision herein, the parties agree that neither Truck and

Equipment Dealer Plaintiffs nor Settlement Class Counsel shall be permitted to introduce into

evidence against Nachi, at any hearing or trial, or in support of any motion, opposition, or other

pleading in the Action or in any other federal or state or foreign action or proceeding alleging a

violation of any law relating to the subject matter of the Action, any information, Documents, or

other Cooperation Materials provided by Nachi and/or the other Releasees, or their counsel.

Notwithstanding anything contained herein, Truck and Equipment Dealer Plaintiffs and the

Settlement Class are not relinquishing any rights to pursue discovery against Nachi in the event

that this Agreement fails to receive Final Court Approval, including final approval of the

Settlement Class as defined in Paragraph 15, or in the event that this Agreement is rescinded or

terminated by either party under any provision herein. Truck and Equipment Dealer Plaintiffs

further agree that, within sixty (60) days of this Agreement receiving Final Court Approval or

being rescinded or terminated by either party, Truck and Equipment Dealer Plaintiffs shall return

or destroy all Cooperation Materials received from Nachi.

G. Rescission if this Agreement is Not Approved or Final Judgment is Not Entered.

48. If the Court refuses to approve this Agreement or any part hereof, including if the

Court does not certify the Settlement Class in accordance with the specific Settlement Class

definition set forth in Paragraph 15, or if such approval is modified or set aside on appeal, or if

the Court does not enter the order and final judgment provided for in Paragraph 25 of this

Agreement, or if the Court enters the order and final judgment and appellate review is sought,

and on such review, such order and final judgment are not affirmed in its entirety, or if this

Agreement does not receive Final Court Approval as described in Paragraph 26, then Nachi and


33

Truck and Equipment Dealer Plaintiffs shall each, in their sole discretion, have the option to

rescind and terminate this Agreement in its entirety. Written notice of the exercise of any such

right to rescind and terminate this Agreement shall be made in accordance with the terms of

Paragraph 61. A modification or reversal on appeal of any Fee and Expense Award or any

amount of Settlement Class Counsel’s fees and expenses awarded by the Court from the

Settlement Fund shall not be deemed a modification of all or a part of the terms of this

Agreement or such order and final judgment, or a basis to rescind and terminate this Agreement.

49. In the event that this Agreement does not receive Final Court Approval as set

forth in Paragraph 26, or this Agreement otherwise is rescinded and terminated pursuant to

Paragraph 33(e) or Paragraph 48, then: (a) this Agreement shall be of no force or effect, except

as expressly provided in this Agreement; (b) any and all parts of the Settlement Fund caused to

be deposited in the Escrow Account (including all interest accrued and earned thereon) shall be

returned forthwith by wire transfer to Nachi pursuant to written wire transfer instructions

provided by Nachi’s counsel, less only disbursements made in accordance with Paragraph 34 of

this Agreement; and (c) Nachi shall be entitled to any tax refunds owing to the Settlement Fund.

At the request of Nachi, Settlement Class Counsel shall file claims for any tax refunds owed to

the Settlement Fund and pay the proceeds, after deduction of any fees and expenses incurred

with filing such claims for tax refunds, to Nachi. Nachi expressly reserves all of its rights and

defenses if this Agreement does not receive Final Court Approval or is otherwise rescinded and

terminated.

50. Further, and in any event, Truck and Equipment Dealer Plaintiffs and Nachi agree

that this Agreement, whether or not it receives Final Court Approval, and any and all

negotiations, Documents, and discussions associated with it, shall not be deemed or construed to


34

be an admission or evidence of (a) any violation of any statute or law or of any liability or

wrongdoing whatsoever by Nachi, or the other Releasees to be used against Nachi or the other

Releasees; or (b) the truth of any of the claims or allegations contained in the Complaint or any

other pleading filed in the MDL Litigation, or by any person or entity in any other action or

proceeding, to be used directly or indirectly against Nachi or the other Releasees, and evidence

thereof shall not be discoverable or used in any way, in the MDL Litigation or in any other action

or proceeding, against Nachi or the other Releasees. Nothing in this Paragraph shall prevent

Truck and Equipment Dealer Plaintiffs from using Cooperation Materials produced by Nachi

against any party other than Nachi and the other Releasees in the Action to establish any of the

above, subject to the limitations on any such use in Section F of this Agreement.

51. This Agreement shall be construed and interpreted to effectuate the intent of the

parties, which is to provide, through this Agreement, for a complete resolution of the relevant

claims with respect to each Releasee as provided in this Agreement as well as Cooperation by

Nachi.

52. The parties to this Agreement contemplate and agree that, prior to Final Court

Approval of the Settlement and this Agreement as provided for in Paragraphs 23-26 hereof,

appropriate notice (a) of the Settlement and this Agreement; and (b) of a hearing at which the

Court will consider the final approval of this Agreement, will be given to the Settlement Class.

H. Miscellaneous.

53. Within ten (10) days of the filing of the Preliminary Approval Motion, Nachi shall

submit all materials required to be sent to appropriate Federal and State officials pursuant to the

Class Action Fairness Act of 2005, 28 U.S.C. § 1715.


35

54. This Agreement does not settle or compromise any claim by Truck and

Equipment Dealer Plaintiffs or any Settlement Class Member asserted in the Complaint or, if

amended, any subsequent complaint, against any Defendant or alleged co-conspirator other than

Nachi and the other Releasees. All rights against such other Defendants or alleged co-

conspirators are specifically reserved by Truck and Equipment Dealer Plaintiffs and the

Settlement Class. All rights of any Settlement Class Member against any and all former, current,

or future Defendants or alleged co-conspirators or any other person other than Nachi and the

other Releasees, for sales made by Nachi and Nachi’s alleged illegal conduct are specifically

reserved by Truck and Equipment Dealer Plaintiffs and Settlement Class Members. Nachi’s

indirect sales to the Settlement Class and its alleged illegal conduct shall, to the extent permitted

or authorized by law, remain in the Action as a potential basis for damage claims and shall be

part of any joint and several liability claims against other current or future Defendants in the

Action or other persons or entities other than Nachi and the other Releasees. Nachi shall not be

responsible for any payment to Truck and Equipment Dealer Plaintiffs other than the Settlement

Amount specifically agreed to in Paragraph 30 of this Agreement.

55. The United States District Court for the Eastern District of Michigan shall retain

jurisdiction over the interpretation, implementation, enforcement, and performance of this

Agreement, and shall have exclusive jurisdiction over any suit, action, proceeding, or dispute

arising out of or relating to this Agreement or the applicability of this Agreement that cannot be

resolved by negotiation and agreement by Truck and Equipment Dealer Plaintiffs and Nachi,

including challenges to the reasonableness of any party’s actions. This Agreement shall be

governed by and interpreted according to the substantive laws of the state of Michigan without


36

regard to its choice of law or conflict of laws principles. Nachi will not object to complying with

any of the provisions outlined in this Agreement on the basis of jurisdiction.

56. This Agreement constitutes the entire, complete, and integrated agreement

between and among Truck and Equipment Dealer Plaintiffs, Settlement Class Members, and

Nachi pertaining to the Settlement of the Action against Nachi and the other Releasees, and

supersedes all prior and contemporaneous undertakings, communications, representations,

understandings, negotiations, and discussions, either oral or written, between Truck and

Equipment Dealer Plaintiffs and Nachi in connection herewith. This Agreement may not be

modified or amended except in writing executed by Truck and Equipment Dealer Plaintiffs and

Nachi and approved by the Court.

57. Settlement Class Members and Settlement Class Counsel, or any of them, may

hereafter discover facts other than or different from those that they know or believe to be true

with respect to the subject matter of this Settlement, but the subsequent discovery or existence of

such different or additional facts shall have no bearing on the validity of this Settlement and

Agreement once executed and shall not serve as a basis for any party to challenge or otherwise

seek to rescind, terminate, or cancel the Settlement or this Agreement.

58. This Agreement shall be binding upon, and inure to the benefit of, the successors

and assigns of Truck and Equipment Dealer Plaintiffs and Nachi and the other Releasees.

Without limiting the generality of the foregoing, each and every covenant and agreement made

herein by Truck and Equipment Dealer Plaintiffs and Settlement Class Counsel shall be binding

upon all Settlement Class Members and Releasors. Releasees (other than the Nachi entities

which are parties hereto) are third-party beneficiaries of this Agreement and are authorized to

enforce its terms applicable to them.


37

59. This Agreement may be executed in counterparts by Truck and Equipment Dealer

Plaintiffs and Nachi, and a facsimile or emailed .pdf signature shall be deemed an original

signature for purposes of executing this Agreement.

60. Neither Truck and Equipment Dealer Plaintiffs nor Nachi shall be considered to

be the drafter of this Agreement or any of its provisions for the purpose of any statute, case law,

or rule of interpretation or construction that would or might cause any provision to be construed

against the drafter of this Agreement.

61. Where this Agreement requires either party to provide notice or any other

communication or document to the other, such notice shall be in writing, and such notice,

communication or document shall be provided by facsimile, or electronic mail, or letter by

overnight delivery to the undersigned counsel of record for the party to whom notice is being

provided.

[Remainder of page intentionally left blank—signature page to follow.]



62. Each of the undersigned attorneys represents that he is fully authorized to enter

into the terms and conditions of, and to execute, this Agreement subject to Court approval.

Dated: May_, 2017

Dated: Mayll,2017

J. Manly Parks Duane Morris LLP 30 S. 17th Street Philadelphia, PA 19103 Phone: (215) 979-1342 Fax: (215) 689-3682 Email: [email protected]

Class Counsel and Settlement Class Counsel

~ Kenneth R. Davis II Lane Powell PC 601 SW Second Ave, Suite 2100 Portland, OR 97204-3158 Phone: (503) 778-2121 Fax: (503)778-2200 Email: [email protected]

Attorney for Defendants Nachi-Fujikoshi Corporation and Nachi America Inc.

38


EXHIBIT 2





























EXHIBIT 3



SOUTHERN DIVISION

In re: Automotive Parts Antitrust Litigation

Master File No. 12-md-02311

Hon. Marianne O. Battani

In re: Bearings Cases


THIS DOCUMENT RELATES TO:

Truck and Equipment Dealer Cases

DECLARATION OF WILLIAM W. WICKERSHAM

1. I am the Vice President of Business Development and Client Relations at RG/2

Claims Administration LLC (“RG/2 Claims”). In that role, I oversee the intake and management

of all ongoing class action settlements including the creation and implementation of legal notice

plans.

2. RG/2 Claims was established in 2002 as a full service class action notice and

claims administrator, providing notice and administration services for a broad range of collective

actions, including but not limited to antitrust, securities, consumer, and employment cases. RG/2

Claims specializes in the creation, development and implementation of legal notification plans.

Accordingly, RG/2 Claims is familiar with, and guided by Constitutional due process provisions,


2

rules of states and local jurisdictions, and the relevant case law relating to legal notification.

Media plans designed and implemented by RG/2 Claims have included both domestic and

international newspapers and magazines, Internet-based banners, notices and websites, wire

service, point of purchase displays and direct mail.

3. I have been involved in the development and implementation of media plans for

class action notification for more than ten years.

4. I submit this declaration at the request of Class Counsel for the Truck and

Equipment Dealership Plaintiffs in order to describe the proposed notice plan and notice services

in the above-captioned litigation.

5. I have personal knowledge of the matters set forth in this declaration and, if called

as a witness, could and would testify competently thereto.

6. These coordinated multi-district lawsuits are brought as proposed class actions

against the Defendants, the suppliers of Truck and Equipment bearings and other automobile

component parts, for allegedly engaging in a conspiracy to unlawfully fix bids and artificially

raise the prices of these component parts.

7. The objective of the suggested Notice program is to provide the best notice

practicable—Rule 23-compliant notice to the relevant settlement class members—as defined in

the settlement class definition reflected in the preliminary approval documents in this case.

8. RG/2 Claims understands that the Truck and Equipment Dealer Plaintiffs bring

these actions on behalf of themselves and as putative class actions under Rule 23(a) and (b)(3) of

the Federal Rules of Civil Procedure, seeking damages pursuant to the state antitrust, unfair


3

competition, and consumer protection laws of the states whose laws may recognize claims for

money damages brought by indirect purchasers in antitrust actions (the “Included States”). The

notice plan detailed herein meets the requirements of Rule 23(c)(2) and thus provides the best

notice practicable under the circumstances and complies with due process requirements because

it provides sufficient notice of: (a) the Settlement and its terms, (b) the right to opt out or object,

and (c) the final approval hearing to truck and equipment dealerships who indirectly purchased

for resale certain component parts and/or vehicles containing these parts and purchased such

vehicles or parts in Arizona, Arkansas, California, District of Columbia, Florida, Hawaii, Illinois,

Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana,

Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota,

Oregon, South Carolina, South Dakota, Tennessee, Utah, Vermont, West Virginia, and/or

Wisconsin and who are therefore entitled to receive such notice as potential members of the Rule

23(b)(3) Settlement Classes.

9. RG/2 Claims proposes a notice program with the following elements:

a. Direct notice via United States Postal Service Mail (“USPS Mail”) and email to

approximately 57,000 C-Level Executives who work at Medium and Heavy duty truck

dealerships, as well as all Agricultural, Construction, Mining, Railroad, and other Commercial

Vehicle/Equipment Dealers.

b. Summary Notice will be printed in The Wall Street Journal; Automotive News, and

Work Truck Magazine. Banner ads will be placed in the National Trailer Dealers Association

(“NTDA”) e-newsletter, the American Truck Dealers (“ATD”) Insider e-newsletters which will

link to the settlement website. In addition, the Summary Notice will be disseminated through a

national press release and additional information about the details of settlement will be posted at


4

www.TruckDealerSettlement.com. Additionally, RG/2 Claims will maintain a toll-free number

to answer and address class member inquires.

c. Notice will be sent to those class members who have already registered through the

website (www.TruckDealerSettlement.com) in connection with prior Wire Harnesses, Occupant

Safety Systems, and Bearings settlements to receive information about future settlements in the

Auto Parts case.

10. RG/2 Claims believes the plan summarized above more than satisfies due process

standards given the parameters of the settlement, information learned from RG/2 Claims’s

research, and the fact that that this is an antitrust matter with not every defendant settling at the

current time.

11. The proposed notice plan provides the best practicable method to reach the

potential class members and is consistent with other class action notice plans that have been

approved by various federal courts for similarly situated matters.

12. Whenever practicable, direct USPS mail or email is the preferred form of notice

for class members in a class action. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 175-76 (1974).

For this plan, RG/2 Claims worked with a special direct marketing vendor to compile a list of

current Truck and Equipment dealerships in the Included States (and DC).

13. The foundation of the Notice plan will be to print and mail a full Notice to each

USPS address obtained and disseminate emails with Notice content to each email address

obtained.

14. For the USPS mailing addresses, RG/2 Claims will run the contact information

obtained through the USPS National Change of Address system (“NCOA”). The NCOA system

provides updated addresses for all mail recipients who have filed a change of address with the


http://www.truckdealersettlement.com/


5

post office within the past four years and helps to ensure that we have the most current addresses

on file with the USPS. By this means, we will maximize the effectiveness of the direct mail and

minimize returned undeliverable mail.

15. After the NCOA update, RG/2 Claims will mail the Notice via USPS mail to all

database records associated with a mailing address.

16. All undeliverable mail will be sorted and scanned. For returned notices without a

forwarding address, RG/2 Claims will use Accurint (a division of Lexis-Nexis) to perform a

basic “skip trace” search in order to retrieve the most accurate and updated information. The

database will be updated with any new address found and the Notice will be re-mailed to the

updated addresses.

17. The Summary Notice will also be emailed to the list of Truck and Equipment

Dealer class members.

18. To supplement the direct notice efforts, RG/2 Claims has designed a publication

notice program to provide notice to class members who may not otherwise receive direct notice.

Publication will include the elements summarized in Paragraph 9 above and are described in

further detail below.

19. The notice plan contemplates inserting the Summary Notice in the print editions

of The Wall Street Journal, Automotive News, and Work Truck Magazine. Based on RG/2

Claim’s research and information provided by the counsel for the Truck and Equipment Dealer

Class Plaintiffs, I understand that these magazines target, and are read by, truck and equipment

dealerships and the individuals that work within them. They provide the best opportunity for the

Truck and Equipment Dealer class members to be exposed to the Summary Notice.


6

20. The notice plan will also include insertion of a banner advertisement on the

NTDA and ATD Insider e-newsletters directing individuals to the Notice on the case website.

The e-newsletters in a daily electronic newsletter that is delivered to 9,000 Truck and Equipment

dealer professionals nationwide.

21. RG/2 Claims will release a party-neutral press release with information about the

litigation and the proposed Truck and Equipment Dealer settlement. A press release is one of the

most cost-effective means of transmitting notice; once released, a release remains available for

30 days to over 200,000 news outlets for distribution.

22. RG/2 Claims will publish the settlement documents filed in the above-captioned

matters on the website, www.TruckDealerSettlement.com, which is the online repository of case

and settlement related information for class members and the general public. The paid media

campaign and press release will direct individuals to the settlement website.

23. The notice for this settlement will also direct class members to a toll-free

telephone number established for the Truck and Equipment Dealer class members and the

general public where they may call-in and speak with a representative of RG/2 Claims who will

be trained in the details about the settlement and able to answer questions about the settlement

and how to get more information.

24. RG/2 Claims believes the notice program described above is suitable for this case

and is comparable to plans other federal courts have approved for similar cases. RG/2 Claims

also believes that both the full Notice and the Summary Notices are drafted in the “plain

language” format preferred by federal courts and provide the information required by Rule 23.

RG/2 Claims believes that the full Notice and the Summary Notice are understandable for

members of this Truck and Equipment Dealer settlement class and comply with due process.



7

25. The objective of the proposed notice plan described above is to provide the best

notice practicable, consistent with the requirements set forth in Rule 23 and other applicable

State statutes, to reach a large percentage of the potential class while meeting or exceeding the

requirements of due process and all applicable state laws and court rules.

26. The recommended plan is centered on direct notice to a large majority, of the

settlement class members in the Included States and DC. Direct notice will be supplemented by

leveraging publication in print media specific to the auto industry (and new truck and equipment

dealerships in particular), auto industry newsletter publication, banner advertising on auto

industry websites, banner and text advertising on Facebook, social media outreach, a targeted

press release and case specific website with claims filing functionality.

27. To facilitate recognition of the auto part at issue, RG/2 Claims also recommends

branding a logo for the settlements to establish a consistent look-and-feel across campaign

materials.

28. Additionally, combining the notices for the proposed settlements with the

settlement with SKF USA Inc. that has already received preliminary approval, see Case No. 14-

cv-00507, ECF No. 67, would result in approximately $70,000 in savings for the classes.

I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE UNITED

STATES THAT TO THE BEST OF MY KNOWLEDGE THE FOREGOING IS TRUE AND

CORRECT.

Executed on June 13, 2017 at New York, NY.

_________________________

William W. Wickersham, Declarant


Date post:	25-Jun-2020
Category:	Documents
Upload:	others
View:	0 times
Download:	0 times