In re Lithium Ion Batteries Antitrust Litigation

          [PROPOSED] ORDER GRANTING INDIRECT PURCHASER PLAINTIFFS' MOTION TO DIRECT NOTICE REGARDING SETTLEMENTS WITH LG CHEM, HITACHI MAXELL, AND NEC DEFENDANTS

          YVONNE GONZALEZ ROGERS, UNITED STATES DISTRICT JUDGE.

         The 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.

         NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

         1. The Court does hereby find that it is likely to approve the proposed Settlement Agreements under Rule 23(e)(2). Specifically:

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).

         2. The 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).

         3. The 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 Settlement Class.

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 ...