United States District Court, D. New Jersey
ROBERT GRAY and MARKUM GEORGE, individually, and on behalf of a class of similarly situated individuals, Plaintiff,
BMW OF NORTH AMERICA, LLC and BMW AKTIENGESELLSCHAFT, Defendants.
WILLIAM J. MARTINI, U.S.D.J.
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.
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
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.
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.
February 17, 2017, the Court issued an order preliminarily
approving the Settlement; certifying the class 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. The Court appointed Kurtzman Carson
Consultants (“KCC”) as the Settlement
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
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.