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Vizzi v. Mitsubishi Motors North America

March 31, 2010

PETE VIZZI, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
MITSUBISHI MOTORS NORTH AMERICA, INC. DEFENDANT.



The opinion of the court was delivered by: Hon. James V. Selna United States District Judge

FINAL ORDER AND JUDGMENT

Complaint filed: June 12, 2008

Trial Date: None Set

Hearing Date: February 22, 2010

Having considered the Settlement Agreement dated August 9, 2009, including the exhibits annexed thereto (the "Stipulation and Settlement Agreement"); the Long Form Notice ("Notice") and Summary Notice provided in accordance with the Preliminary Approval Order of this Court; the parties' Stipulation To Revise the Settlement Agreement dated October 9, 2009; a fairness hearing having been held on February 22, 2010 and on March 29, 2010 for the purpose of determining whether the Settlement is fair, reasonable, and adequate and should be approved by the Court in full settlement of the captioned action; and upon all papers filed and proceedings had herein, good cause having been demonstrated to this Court's satisfaction under the applicable law and rules of procedure:

It is hereby ORDERED, ADJUDGED, AND DECREED as follows:

1. This Final Order and Judgment incorporates by reference the definitions in the Stipulation and Settlement Agreement as Amended by the parties Stipulation to Revise the Settlement Agreement. All defined terms used herein shall have the same meanings as set forth in the Stipulation and Settlement Agreement as amended.

2. The Court hereby approves the Settlement, as fair, reasonable and adequate, and directs consummation of all the terms and provisions of the Stipulation and Settlement Agreement as amended by parties Stipulation to Revise the Settlement Agreement. With respect to its determination that the Settlement is fair, reasonable and adequate, the Court specifically notes that the outcome of further litigation, including Plaintiff's anticipated motion for class certification was uncertain as to ultimate resolution and scope of any class certified. Likewise, the outcome of any litigation on the merits was uncertain for either party. The Court also finds that the duration, cost, and expense of continuing to litigate this action posed a real risk to the members of the Settlement Class and to Defendant, thereby making settlement on fair and reasonable terms, a reasonable alternative. The Court finds that the Settlement Agreement was reached with the participation of a respected mediator and retired federal judge through adversarial and arms-length negotiation; and, that the Settlement reflects a substantial benefit to Class Members.

3. The Class certified for settlement purposes is defined as: All current U.S. owners and lessees, as of the date of the Class Notice, of a model year 2000-2008 Mitsubishi Endeavor, Eclipse, or Galant manufactured by MMNA having black color paint. Defendant's directors, officers, and employees are excluded from the Class.

4. The Class meets all the requirements of Fed. R. Civ. P. 23(a) and (b)(3), as initially found and for the reasons set forth in the Court's Order entered on October 13, 2009, Granting Preliminary Approval to the Settlement Agreement. The Court entered an Order on February 22, 2010, in which it denied without prejudice final approval to the settlement because the Court raised questions about the typicality of named class representative Pete Vizzi's claims, as he evidently faced a statute of limitations defense that depended on the success of a fraudulent concealment argument. That Order permitted Class Counsel to resubmit the Settlement for final approval by a group of representatives who do not face the typicality issues faced by Mssrs. Vizzi and Quevedo acting as the only named class representatives. Class Counsel have since submitted and filed the Declaration of John Canter, a member of the putative class and the owner of a 2005 Mitsubishi vehicle that has experienced paint delamination but whose delamination is not covered by the factory warranty as a result of the mileage on Mr. Canter's vehicle. Through his Declaration, Mr. Canter has ratified the proposed Settlement and has asked to participate as an additional Class Representative. Given the submission of the proposed Settlement by putative Class Members, like Mssrs. Pete Vizzi and Robert Quevedo, Jr., whose claims depend on a fraudulent concealment argument, as well as by Class Members like Mr. John Canter, whose claim does not depend on a fraudulent concealment argument, any prior concerns expressed by the Court regarding the typicality prong for class certification have now been allayed and resolved to the Court's satisfaction.

5. The Court has not determined the merits of, and this Final Order and Judgment shall not constitute any finding or determination of, the claims and defenses in this Action or evidence that this Action could properly have been litigated on behalf of any class. Nothing in this Final Order and Judgment, the Settlement Agreement, or the parties' Stipulation to Amend the Settlement Agreement, and no aspect of the Settlement Agreement is or shall be deemed or construed to be an admission, concession or evidence of any violation of any statute or law or any liability or wrongdoing by any Defendant or Released Party or of the truth of any of the factual or legal claims or allegations relating to the subject matter of the action.

6. Notice of the Settlement has been given, and by the deadline set forth in Settlement Agreement by way of mailed notice, and a summary version of the Notice has been published in a nationwide periodical and on a website set up by the Settlement Administrator, all in conformance with the Settlement Agreement. In addition, the settlement website was updated to provide notice of the addition of Mr. Canter as a named class representative and of the adjournment of the Fairness Hearing until March 29, 2010. The notice and summary notice given, and their means of dissemination, constitute the best notice practicable under the circumstances and comports with the due process requirements.

7. The action is dismissed with prejudice as to all Class Members who did not request exclusion from the Class in the time and manner provided for in the Notice. A list of all persons who submitted requests for exclusion is attached as an Exhibit to the Declaration of Matthew Pohl In Support of Plaintiff's Unopposed Motion for Final Approval of Settlement Agreement.

8. Effective upon the Settlement Agreement becoming Final, as that term is defined in the Stipulation and Settlement Agreement, each Class Member shall be deemed to have, and by operation of this Final Order and Judgment shall fully, finally and forever release, relinquish and discharge Defendant and the Released Parties from all manner of claims, demands, actions, suits, causes of action (whether class, individual, or otherwise in nature), whether based on federal, state or other law, damages whenever incurred, liabilities of any nature whatsoever, including costs, expenses, penalties and attorneys' fees, known or unknown, suspected or unsuspected, in law or equity, that any Releasor ever had, now has or hereafter can, shall or may have, whether or not he, she or it makes a claim upon or participates in the Settlement Escrow Fund, whether directly, representatively, derivatively or in any other capacity, by reason of, concerning or relating to ...


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