United States District Court, N.D. California, Oakland Division
IN RE LITHIUM ION BATTERIES ANTITRUST LITIGATION This Document Relates to: All Indirect Purchaser Actions
[PROPOSED] ORDER GRANTING
INDIRECT PURCHASER PLAINTIFFS' MOTION TO DIRECT NOTICE
REGARDING SETTLEMENTS WITH LG CHEM, HITACHI MAXELL, AND NEC
GONZALEZ ROGERS, UNITED STATES DISTRICT JUDGE.
Indirect Purchaser Plaintiffs (“IPPs”) filed a
Motion to Direct Notice Regarding Settlements with (1)
Defendants LG Chem, Ltd. and LG Chem America, Inc. (“LG
Chem”); (2) Hitachi Maxell Ltd. and Maxell Corporation
of America (“Hitachi Maxell”); (3) and NEC
Corporation (“NEC”) (collectively, the
“Settling Defendants”). The Court heard the
argument of counsel and, having reviewed the pleadings, the
settlement agreements, other papers on file in this action,
and the statements of counsel and the parties, hereby finds
that the motion should be GRANTED.
THEREFORE, IT IS HEREBY ORDERED THAT:
Court does hereby find that it is likely to approve the
proposed Settlement Agreements under Rule 23(e)(2).
a. The Class Representatives and Counsel have vigorously
represented the interests of the Settlement Class, having
prosecuted this Action on behalf of the Settlement Class for
more than six years.
b. The Settlement Agreements subject to this Motion arise out
of arms'-length, informed, and non-collusive negotiations
between counsel for IPPs and each of the Settling Defendants,
who convened multiple times over several months to arrive at
the settlement terms.
c. The relief provided for the Settlement Class is adequate,
considering: (i) the costs, risks, and delay of trial and
appeal, particularly in light of the complex nature of
IPPs' case; (ii) the effectiveness and
straightforwardness of the claims process, which is the same
as the Court has previously approved; (iii) the
reasonableness of the anticipated request for attorneys'
fees; and (iv) the absence of any agreement required to be
identified under Rule 23(e)(3).
Settlement Agreements treat class members equitably relative
to each other. IPPs propose a Distribution Plan that the
Court has already finally approved in connection with the
Round 3 Settlements. This Distribution Plan will allocate 90
percent of the settlement funds to class members from states
that permit recovery by indirect purchasers (so-called
“repealer states”) and 10 percent of the
settlement funds to class members from states that have not
done so (so-called “non-repealer states”). The
Court has reviewed the adversarial process utilized in
connection with the Round 3 Settlements undertaken by the
IPPs to arrive at this recommendation, and finds that it was
appropriate and provided structural assurances of fairness to
the class for this round of settlements. This Court is,
therefore, likely to grant final approval of IPPs'
proposed Distribution Plan as fair, reasonable, and adequate.
It is appropriate for class members from non-repealer states
to receive some recovery through these settlements because,
first, these settlements were reached at a time when the IPPs
were seeking to certify a nationwide class under choice of
law principles, which would have included residents from
non-repealer states, second, residents from non-repealer
states are still active litigants in this case and their
claims have been neither dismissed from nor amended out of
the pleadings. Moreover, this Court's prior analysis of
the choice of law rules would have been subject to an appeal
had this case gone forward to judgment. See National
Super Spuds, Inc. v. New York Mercantile Exchange, 660
F.2d 9, 19 (2d Cir. 1981); see also Anderson v. Nextel
Retail Stores, LLC, No. CV 07-4480-SVW FFMX, 2010 WL
8591002, at *9 (C.D. Cal. Apr. 12, 2010).
Court hereby finds that, for purposes of judgment on the
proposed Settlement Agreements, it is likely to certify the
Settlement Class, which is defined as:
[A]ll persons and entities who, as residents of the United
States and during the period from January 1, 2000 through May
31, 2011, indirectly purchased new for their own use and not
for resale one of the following products which contained a
lithium-ion cylindrical battery manufactured by one or more
defendants or their coconspirators: (i) a portable computer;
(ii) a power tool; (iii) a camcorder; or (iv) a replacement
battery for any of these products. Excluded from the class
are any purchases of Panasonic-branded computers. Also
excluded from the class are any federal, state, or local
governmental entities, any judicial officers presiding over
this action, members of their immediate families and judicial
staffs, and any juror assigned to this action, but included
in the class are all non-federal and non-state governmental
entities in California.
a. The Settlement Class is sufficiency numerous, as there are
millions of geographically-dispersed class members, making
joinder of all members impracticable.
b. There are questions of law and fact common to the
c. The claims of the class representatives are typical of the
claims of the Settlement Class members.
d. The class representatives have, and will continue to,
fairly and adequately protect the interests of the Settlement
Class, and the class representatives have no interests in
conflict with those of the Settlement Class. Moreover, the
class representatives have retained counsel experienced in
antirust class action ...