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Gray v. BMW of North America, LLC

United States District Court, D. New Jersey

August 24, 2017

ROBERT GRAY and MARKUM GEORGE, individually, and on behalf of a class of similarly situated individuals, Plaintiff,


          WILLIAM J. MARTINI, U.S.D.J.

         Plaintiffs Robert Gray and Markum George brought this putative class action against BMW of North America and BMW Aktiengesellschaft (“BMW” or “Defendants”) on May 31, 2013. Plaintiffs allege that BMW 6-Series vehicles produced between 2004 and 2010 contain one or more defects that prevent the convertible top from functioning properly. On November 16, 2016, the Court certified the class for the purpose of settlement and preliminarily approved the parties' proposed settlement agreement. This matter now comes before the Court on Plaintiffs' motion for final settlement approval and Plaintiffs' motion for attorneys' fees, expenses and incentives. A fairness hearing was held on August 15, 2017. See Fed R. Civ. P. 23(e)(2). The Plaintiffs' motion for final approval is GRANTED and the Plaintiffs' motion for attorneys' fees is GRANTED in part.

         I. BACKGROUND

         On May 31, 2013, Plaintiffs Robert Gray and Makrum George (“Plaintiffs”) brought this suit on behalf of themselves and other similarly situated persons or entities who currently own or lease, or previously owned or leased, a model-year 2004 to 2010 BMW 6 Series (E64) Convertible (the “Class Vehicles”). Plaintiffs allege that the Class Vehicles contain one or more defects that cause the convertible tops to stop functioning properly. On May 28, 2014, this Court dismissed four of the seven claims asserted in the First Amended Complaint (“FAC”). See ECF No. 21. The parties proceeded with discovery in connection with the Plaintiffs' claims for common law fraud, violation of California's Consumer Legal Remedies Act, and a violation of California's Unfair Competition Law.

         Discovery following from the parties Rule 26(f) hearing included document production by BMW, third-party discovery requests on several BMW dealerships, and the deposition of a BMW employee regarding the alleged defects and BMW's efforts to rectify them. This was followed by a full-day mediation before the Honorable Edward A. Infante (Ret.) and telephone and in-person conferences with Magistrate Judge Mark Falk.

         The parties executed a settlement agreement (the “Settlement”) on October 26, 2016. ECF No. 66-2. The Settlement provides three forms of relief:

• Within one year of the Settlement's effective date, all current owners and lessees of Class Vehicles may arrange for a software update at a BMW facility that addresses the convertible top defect.
• A one-year unlimited-mileage extended warranty from the date of installation of the repair.
• Reimbursement for out-of-pocket expenses incurred by former and current owners and lessees for up to two attempts at repairing the convertible top defect, so long as appropriate documentation is provided.

         On February 17, 2017, the Court issued an order preliminarily approving the Settlement; certifying the class[1] for the purposes of settlement; and directing the parties to disseminate class notice by April 18, 2017, pursuant to Rule 23 of the Federal Rules of Civil Procedure.[2] The Court appointed Kurtzman Carson Consultants (“KCC”) as the Settlement Administrator.

         KCC worked with Experian Automotive to generate a list of Class Members using Vehicle Identification Numbers (VIN). After processing the names and addresses through the National Change of Address Database, KCC identified 111, 614 Class Members and disseminated printed notices to 118, 984 addresses. Declaration of Jay Geraci ¶¶ 4-6. As of July 5, 2017, KCC had received 2, 492 timely claim forms along with 57 untimely claim forms. Declaration of Daniel Z. Rivlin in Response to Plaintiffs' Motion for Fees ¶ 4. Six Class Members opted out and two filed objections, both of which are addressed below. The Court held a fairness hearing on August 15, 2017. See ECF No. 84. Neither objector appeared, although the Court reviewed the grounds for both objections. The Court reserved judgment on the motion for final approval of the settlement as well as the motion for attorneys' fees.


         Settlement agreements are entitled to “initial presumption of fairness” when: “(1) the negotiations occurred at arm's length; (2) there was sufficient discovery; (3) the proponents of the settlement are experienced in similar litigation; and (4) only a small fraction of the class objected.” In re Nat'l Football League Players Concussion Injury Litig., 821 F.3d 410, 436 (3d Cir.), as amended (May 2, 2016) All four criteria are satisfied here. Having held a fairness hearing pursuant to Rule 23(e)(2), the Court now reviews the nine factors articulated in Girsh v. Jepson to determine whether the settlement is “fair, adequate and reasonable.” 521 F.2d 153 (3d Cir. 1975). These include:

“(1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.”

Girsh, 521 F.2d at 157. The Court examines each factor below and finds the Settlement to be reasonable.

         I. The ...

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