This case was last updated from Los Angeles County Superior Courts on 02/24/2020 at 21:31:18 (UTC).

ARMEN G KOJIKIAN ET AL VS AMERICAN HONDA MOTOR CO INC

Case Summary

On 01/08/2016 ARMEN G KOJIKIAN filed a Contract - Other Contract lawsuit against AMERICAN HONDA MOTOR CO INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are KENNETH R. FREEMAN and DANIEL J. BUCKLEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6392

  • Filing Date:

    01/08/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

KENNETH R. FREEMAN

DANIEL J. BUCKLEY

 

Party Details

Plaintiffs and Petitioners

KOJIKIAN ARMEN G.

TIME TRADERS INC.

Defendants and Respondents

DOES 1 THROUGH 100

AMERICAN HONDA MOTOR CO. INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

THE MARGARIAN LAW FIRM

MARGARIAN HOVANES

Defendant and Respondent Attorneys

SIDLEY AUSTIN LLP [LOS ANGELES]

ERIC Y. KIZIRIAN

CHO DYANNE JINHYUNG

KIZIRIAN ERIC Y

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT)

10/10/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT)

Order - ORDER AMENDING DEADLINES IN COURT'S PRELIMINARY APPROVAL ORDER DATED OCTOBER 16, 2019

12/20/2019: Order - ORDER AMENDING DEADLINES IN COURT'S PRELIMINARY APPROVAL ORDER DATED OCTOBER 16, 2019

CLASS ACTION COMPLAINT FOR DAMAGES: 1. BREACH OF EXPRESS WARRANTY; ETC

1/8/2016: CLASS ACTION COMPLAINT FOR DAMAGES: 1. BREACH OF EXPRESS WARRANTY; ETC

Minute Order -

2/16/2017: Minute Order -

Brief - PLAINTIFFS' SUPPLEMENTAL BRIEFING ON ISSUES IDENTIFIED BY THE COURT ON CHECKLIST RE PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT IN FURTHER SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLA

10/8/2019: Brief - PLAINTIFFS' SUPPLEMENTAL BRIEFING ON ISSUES IDENTIFIED BY THE COURT ON CHECKLIST RE PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT IN FURTHER SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLA

Order - ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, PRELIMINARILY CERTIFYING SETTLEMENT CLASS, APPOINTING CLASS COUNSEL, SETTING A SETTLMENT FAIRNESS HEARING, SETTING HEARING FOR F

10/16/2019: Order - ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, PRELIMINARILY CERTIFYING SETTLEMENT CLASS, APPOINTING CLASS COUNSEL, SETTING A SETTLMENT FAIRNESS HEARING, SETTING HEARING FOR F

Notice of Case Reassignment and Order for Plaintiff to Give Notice

11/16/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Declaration - DECLARATION OF HOVANES MARGARIAN IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

3/15/2019: Declaration - DECLARATION OF HOVANES MARGARIAN IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Order - ORDER GRANTING STIPULATION TO CONTINUE HEARING ON MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

4/18/2019: Order - ORDER GRANTING STIPULATION TO CONTINUE HEARING ON MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Minute Order - MINUTE ORDER (COURT ORDER RE RESCHEDULING OF MOTION FOR PRELIMINARY APPROVA...)

5/1/2019: Minute Order - MINUTE ORDER (COURT ORDER RE RESCHEDULING OF MOTION FOR PRELIMINARY APPROVA...)

Clerks Certificate of Service By Electronic Service

5/1/2019: Clerks Certificate of Service By Electronic Service

Demurrer - without Motion to Strike - DEFENDANT AMERICAN HONDA MOTOR CO., INC.'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

8/24/2016: Demurrer - without Motion to Strike - DEFENDANT AMERICAN HONDA MOTOR CO., INC.'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

Request for Judicial Notice - DEFENDANT AMERICAN HONDA MOTOR CO., INC.'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER

8/24/2016: Request for Judicial Notice - DEFENDANT AMERICAN HONDA MOTOR CO., INC.'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore -

2/2/2017: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore -

Motion to Strike (not initial pleading) - COURT'S RULING AND ORDER RE: DEFENDANT AMERICAN HONDA MOTOR CO., INC.'S DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT

2/16/2017: Motion to Strike (not initial pleading) - COURT'S RULING AND ORDER RE: DEFENDANT AMERICAN HONDA MOTOR CO., INC.'S DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT

Answer - DEFENDANT AMERICAN HONDA MOTOR CO., INC.'S ANSWER TO PLAINTIFFS' FIRST AMENDED CLASS ACTION COMPLAINT

3/17/2017: Answer - DEFENDANT AMERICAN HONDA MOTOR CO., INC.'S ANSWER TO PLAINTIFFS' FIRST AMENDED CLASS ACTION COMPLAINT

Stipulation - No Order - -STIPULATION TO EXTEND PLAINTIFFS ARMEN G. KOJIKIAN AND TIME TRADERS, INC.'S TIME TO FILE MOTION FOR CLASS CERTIFICATION AND TO ESTABLISH A BRIEFING SCHEDULE; ORDER

10/17/2017: Stipulation - No Order - -STIPULATION TO EXTEND PLAINTIFFS ARMEN G. KOJIKIAN AND TIME TRADERS, INC.'S TIME TO FILE MOTION FOR CLASS CERTIFICATION AND TO ESTABLISH A BRIEFING SCHEDULE; ORDER

Stipulation - No Order - -STIPULATION TO EXTEND PLAINTIFFS ARMEN G. KOMICIAN AND TIME TRADERS, INC.'S TIME TO FILE MOTION FOR CLASS CERTIFICATION AND TO ESTABLISH BRIEFING SCHEDULE ORDER

12/8/2017: Stipulation - No Order - -STIPULATION TO EXTEND PLAINTIFFS ARMEN G. KOMICIAN AND TIME TRADERS, INC.'S TIME TO FILE MOTION FOR CLASS CERTIFICATION AND TO ESTABLISH BRIEFING SCHEDULE ORDER

23 More Documents Available

 

Docket Entries

  • 05/28/2020
  • Hearing05/28/2020 at 10:30 AM in Department 1 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Final Approval of Settlement

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  • 12/20/2019
  • DocketOrder (Amending Deadlines in Court's Preliminary Approval Order Dated October 16, 2019); Filed by Armen G. Kojikian (Plaintiff); Time Traders, Inc. (Plaintiff)

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  • 10/16/2019
  • DocketOrder (Granting Preliminary Approval of Class Action Settlement, Preliminarily Certifying Settlement Class, Appointing Class Counsel, Setting a Settlment Fairness HEaring, setting Hearing for Final Approval of Settlement, and Directing Notice to the Class); Filed by Armen G. Kojikian (Plaintiff); Time Traders, Inc. (Plaintiff)

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  • 10/10/2019
  • Docketat 10:30 AM in Department 1, Daniel J. Buckley, Presiding; Hearing on Motion for Preliminary Approval of Settlement - Not Held - Advanced and Continued - by Court

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  • 10/10/2019
  • Docketat 08:30 AM in Department 1, Daniel J. Buckley, Presiding; Hearing on Motion for Preliminary Approval of Settlement - Held - Motion Granted

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  • 10/10/2019
  • DocketMinute Order ( (Hearing on Motion for Preliminary Approval of Settlement)); Filed by Clerk

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  • 10/08/2019
  • DocketPlaintiffs' Supplemental Briefing on Issues Identified by the Court on Checklist RE Preliminary Approval of Class Action Settlement in Further Support of Motion for Preliminary Approval of Class Action Settlement; Filed by Armen G. Kojikian (Plaintiff); Time Traders, Inc. (Plaintiff)

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  • 10/07/2019
  • Docketat 2:36 PM in Department 1, Daniel J. Buckley, Presiding; Court Order

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  • 10/07/2019
  • DocketClerks Certificate of Service By Electronic Service; Filed by Clerk

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  • 10/07/2019
  • DocketMinute Order ( (Court Order re Rescheduling of Hearing on Motion for Prelimin...)); Filed by Clerk

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88 More Docket Entries
  • 02/01/2016
  • DocketNotice; Filed by American Honda Motor Co., Inc. (Defendant)

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  • 01/25/2016
  • Docketat 00:00 AM in Department 310; (Order-Complex Determination; Case Determined to be Complex) -

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  • 01/25/2016
  • DocketOrder; Filed by Court

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  • 01/25/2016
  • DocketMinute order entered: 2016-01-25 00:00:00; Filed by Clerk

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  • 01/15/2016
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 01/15/2016
  • DocketProof of Service (not Summons and Complaint); Filed by Armen G. Kojikian (Plaintiff); Time Traders, Inc. (Plaintiff)

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  • 01/08/2016
  • DocketComplaint; Filed by Armen G. Kojikian (Plaintiff); Time Traders, Inc. (Plaintiff)

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  • 01/08/2016
  • DocketCLASS ACTION COMPLAINT FOR DAMAGES: 1. BREACH OF EXPRESS WARRANTY; ETC

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  • 01/08/2016
  • DocketSUMMONS

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  • 01/08/2016
  • DocketSummons; Filed by Armen G. Kojikian (Plaintiff); Time Traders, Inc. (Plaintiff)

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Tentative Rulings

Case Number: BC606392    Hearing Date: November 06, 2020    Dept: F47

Dept. F-47

Date: 11/6/20

Case #BC606392 Kojikian v. American Honda Motor Co.

Final Approval of Class Action Settlement

TENTATIVE RULING

The Court has received and reviewed all moving papers, objections, and supplemental papers. The Court overrules the objections. The Court will approve attorney fees and costs in the amount of $644,750.00 and service awards in the amount of $2,500.00 to each of the class representatives. No administrative costs are requested.

The Court continues the hearing on final approval of the settlement for: (1) further explanation and amendment regarding what happens to uncashed checks and (2) removal of dismissal language from the Settlement Agreement:

(1) With regard to Uncashed Checks, although the parties removed the provision reverting uncashed checks to Defendant, inadequate information is provided as to how the parties will handle uncashed checks. (Settlement Agreement ¶V.G.). (Note pg.9 of the final approval motion still references a reversion and a 90 day period to cash checks, rather than 180 days as set forth in the Settlement Agreement.) Will uncashed checks be sent to the State Controller’s Office under the Unclaimed Property statutes or sent to a cy pres? If a cy pres is designated, the following must be addressed:

i. Why does such distribution fulfill the purposes of the lawsuit or is otherwise appropriate? (State of California v. Levi Strauss & Co. (1986) 41 Cal.3d 460, 472; In re Microsoft I-V Cases (2006) 135 Cal.App.4th 706, 722; Nachshin v. AOL, Inc. (9th Cir. 2011) 663 F.3d 1034, 1038-1041; Dennis v. Kellogg Co. (9th Cir.2012) 697 F.3d 858, 865; Cal. Code of Civ. Proc., §384.)

ii. Provide declarations disclosing interests or involvement by any counsel or party in the governance or work of the cy pres recipient (if applicable)

iii. Modify the cy pres provision to comply with Cal. Code of Civil Procedure §384, as revised in 2018. The Court’s Omnibus Trailer Bill of 2018 replaced the language of the prior statutory distribution scheme under CCP §384 with a requirement that the Court re-open judgments following the final distribution of funds to include the cy pres in the judgment and to include the unclaimed amount, plus an unspecified amount of interest. Ensure this procedure is followed.

(2) The Settlement Agreement still indicates the action will be dismissed upon Final Approval. (Settlement Agreement ¶II.D. and ¶VIII heading). Pursuant to Cal. Rules of Court, rule 3.769(h), any and all reference to the case being dismissed must be removed.

BACKGROUND

On January 8, 2016, Plaintiffs filed a Class Action Complaint asserting claims for (1) breach of express warranty, (2) breach of implied warranty, (3) breach of warranty (Song-Beverly Consumer Warranty Act), Civil Code § 1790 et seq. (“Song-Beverly”’), (4) breach of warranty (Magnuson-Moss Warranty Act), 15 U.S.C. § 2301 et seq. (“Mag-Moss”), (5) violation of the California Consumers Legal Remedies Act, Civil Code § 1750 et seq. (“CLRA”), (6) violation of California Business & Professions Code § 17200 et seq. (“UCL”), and (7) nuisance.

On May 18, 2016, Plaintiffs filed a First Amended Class Action Complaint for Damages and Equitable Relief (“FAC”) asserting claims for (1) breach of express warranty, (2) breach of implied warranty, (3) breach of warranty (Song-Beverly), (4) breach of warranty (Mag-Moss), and (5) violation of UCL.

On August 24, 2016, AHM filed a demurrer pursuant to California Code of Civil Procedure section 430.10 to the claims asserted in Plaintiffs’ First Amended Class Action Complaint (“FAC”) and moved to strike the nationwide class allegations in Plaintiffs’ FAC. On February 2, 2017, AHM’s demurrer to the non-California warranty claims and to the Mag-Moss claim (to the extent premised on non-California warranty claims) was sustained without leave to amend, and AHM’s motion to strike was granted without leave to amend. AHM filed its answer to the FAC on March 17, 2017.

On February 25, 2020, Plaintiffs filed a Second Amended Complaint (“SAC”) asserting claims for (1) breach of express warranty, (2) breach of implied warranty, (3) breach of warranty (Song-Beverly), (4) breach of warranty (Mag-Moss), and (5) violation of UCL.

Counsel represents that the parties engaged in investigation and discovery in this matter. It is represented that Plaintiffs fielded inquiries from prospective Class Members; consulted and retained automotive experts; researched publicly available materials and information provided by the National Highway Traffic Safety Administration (“NHTSA”) concerning consumer complaints about excessive oil consumption; reviewed and researched consumer complaints and discussions of excessive oil consumption in articles and forums online; reviewed various manuals and technical service bulletins discussing the alleged defect; conducted research into the various causes of actions; and propounded discovery on AHM. In response, AHM produced warranty claims data and hundreds of pages of documents, including owners’ manuals, maintenance and warranty manuals, design documents (e.g., technical drawings), technical service bulletins, field reports, customer comments detail reports. Plaintiffs also deposed AHM’s Person Most Knowledgeable (“PMK’”’) designee, an out-of-state witness, on November 16, 2017, who provided testimony along with document production on issues related to Plaintiffs’ claims.

The parties mediated with the Hon. Howard Weiner in early January 2018, followed by a second session on March 29, 2018. At mediation, the parties were able to reach an agreement on all material terms of the proposed relief to the Class, subject to AHM’s corporate approval. After the parties had reached this agreement, they also negotiated attorneys’ fees, costs, and incentive awards. Ultimately, the parties reached an agreement on these terms as well. Subsequent to the mediation, the parties formalized the Settlement Agreement, a fully executed copy of which is attached to the Declaration of Hovanes Margarian (“Margarian Decl.”).

On August 27, 2019, the court issued a checklist for the parties to address and continued preliminary approval. In response, on October 8, 2019, Plaintiffs filed supplemental briefing (“Supp. Brief”) and a fully executed Amended Settlement Agreement attached as Exhibit B thereto.

On October 10, 2019, the Court granted preliminary approval.

On April 20, 2020, the parties submitted a stipulation which requested Court approval of the addendum and a Supplemental Postcard notice. The Court indicated that at that time it could not sign the order requested due General Order of the Presiding Judge issued as a result of the pandemic. However, the Court indicated that “nothing prevents your stipulation to be the authority to send out the notice.” In reliance on the Court’s statement, the parties sent out another class mailing informing the Class Members of the corrected “Gap Period” definition.

On October 16, 2020, the parties filed a joint supplemental brief, which explains the procedural history behind and the reason for the Supplemental Postcard notice and addendum.

Now before the Court is the motion for final approval of the Settlement Agreement.

SETTLEMENT CLASS DEFINITION

TERMS OF SETTLEMENT AGREEMENT

The essential terms are as follows:

ANALYSIS OF SETTLEMENT AGREEMENT

A. Does a presumption of fairness exist?

1. Was the settlement reached through arm’s-length bargaining? Yes. The parties mediated with the Hon. Howard Weiner in early January 2018, followed by a second session on March 29, 2018. (Margarian Decl. ISO Preliminary Approval, ¶7.) At mediation, the Parties were able to reach an agreement on all material terms of the proposed relief to the Class, subject to AHM’s corporate approval. (Ibid.) After the Parties had reached this agreement, they also negotiated attorneys’ fees, costs, and incentive awards. (Ibid.) Ultimately, the Parties reached an agreement on these terms as well. (Ibid.) Subsequent to the mediation, the Parties formalized the Settlement Agreement, (Ibid.)

2. Were investigation and discovery sufficient to allow counsel and the court to act intelligently? Yes. Counsel represents that the parties engaged in investigation and discovery in this matter. (Id. at ¶¶2-3.) It is represented that Plaintiffs fielded inquiries from prospective Class Members; consulted and retained automotive experts; researched publicly available materials and information provided by the National Highway Traffic Safety Administration (“NHTSA”) concerning consumer complaints about excessive oil consumption; reviewed and researched consumer complaints and discussions of excessive oil consumption in articles and forums online; reviewed various manuals and technical service bulletins discussing the alleged defect; conducted research into the various causes of actions; and propounded discovery on AHM. (Id. at ¶¶3-4.) In response, AHM produced warranty claims data and hundreds of pages of documents, including owners’ manuals, maintenance and warranty manuals, design documents (e.g., technical drawings), technical service bulletins, field reports, customer comments detail reports. Plaintiffs also deposed AHM’s Person Most Knowledgeable (“PMK”) designee, an out-of-state witness, on November 16, 2017, who provided testimony along with document production on issues related to Plaintiffs’ claims. (Id. at ¶4.)

3. Is counsel experienced in similar litigation? Yes. Class Counsel is experienced in class action litigation. (Id. at ¶¶16-18.)

4. What percentage of the class has objected? 15 (less than .04%) (Kim Supp. Decl. ¶5; Margarian Decl. Re Withdrawal of Objections by Allison S. Fischer). The Court has reviewed all objections and overrules them as set forth below.

CONCLUSION: A presumption of fairness exists regarding the settlement.

B. Is the settlement fair, adequate, and reasonable?

1. Strength of Plaintiff’s case. “The most important factor is the strength of the case for plaintiff on the merits, balanced against the amount offered in settlement.” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130.)

Counsel represents that “the Settlement properly addresses the Plaintiffs’ primary Complaint, that some Class Vehicles may consume an excessive amount of engine oil. The Settlement thus provides for reimbursement of out-of-pocket expenses relating to excessive oil consumption complaints, and a warranty extension that will cover Piston Repairs should the need for them arise. These results are in line with what Plaintiffs expected to recovery at trial.” (Motion ISO Preliminary Approval, 13:16-22.)

Counsel further contend that the proposed settlement offers “full” relief in the form of recovery of both past out-of-pocket costs and future protection against possible oil consumption complaints by way of a lengthy warranty extension. Counsel contends that the predominant relief sought in the First Amended Complaint is a “declaration that Defendants are financially responsible for notifying all class members about the defective nature of the Subject Vehicles and to offer repair and remedy the J37 engine as alleged herein.” Plaintiffs believe the proposed settlement, which offers a warranty extension, provides this precise relief. Counsel represents that according to Honda’s analysis; the warranty extension will cost approximately $25,000,000. Thus, this is the minimum value of the warranty extension to the class. (Supp. Brief ISO Preliminary Approval, 5:18-27.)

Counsel further represents that the Complaint seeks compensatory damages recovery, which would have been for out-of-pocket costs Class Members paid for repairs related to excessive oil consumption. Counsel states that although the parties do not know how many claims may be made for Out-of-Pocket costs, based on prior repairs, the parties believe the range of costs for a piston repair/replacement (parts and labor) ranges from approximately $4,200 to $4,590 (depending on the type/model year of vehicle). (Supp. Brief ISO Preliminary Approval, 5: 28-6:6.)

Finally, counsel contends that although the First Amended Complaint asserts a claim for disgorgement of profits and exemplary damages, due to Defendant’s defenses, the likelihood of prevailing on this claim was low, and therefore assigned it no value. (Motion ISO Preliminary Approval, 6:8-21.). (Subsequently, a Second Amended Complaint was filed as permitted by the Court.)

2. Risk, expense, complexity and likely duration of further litigation. Given the nature of the class claims, the case is likely to be expensive and lengthy to try. Procedural hurdles (e.g., motion practice and appeals) are also likely to prolong the litigation as well as any recovery by the class members.

3. Risk of maintaining class action status through trial. Even if a class is certified, there is always a risk of decertification. (See Weinstat v. Dentsply Intern., Inc. (2010) 180 Cal.App.4th 1213, 1226 (“Our Supreme Court has recognized that trial courts should retain some flexibility in conducting class actions, which means, under suitable circumstances, entertaining successive motions on certification if the court subsequently discovers that the propriety of a class action is not appropriate.”).)

4. Amount offered in settlement. Counsel represents that according to Honda’s analysis; the warranty extension will cost approximately $25,000,000. Thus, this is the minimum value of the warranty extension to the class. (Supp. Brief ISO Preliminary Approval, 5:18-27.)

Counsel further represents that the settlement also provides for out-of-pocket costs Class Members paid for repairs related to excessive oil consumption. Counsel states that although the parties do not know how many claims may be made for Out-of-Pocket costs, based on prior repairs, the parties believe the range of costs for a piston repair/replacement (parts and labor) ranges from approximately $4,200 to $4,590 (depending on the type/model year of vehicle). (Supp. Brief, 5: 28-6:6.)

5. Extent of discovery completed and stage of the proceedings. As indicated above, at the time of the settlement, Class Counsel had conducted sufficient discovery.

6. Experience and views of counsel. The settlement was negotiated and endorsed by class counsel who, as indicated above, is experienced in class action litigation. Class Counsel is of the opinion that the Class Settlement is fair, adequate, and reasonable.

7. Presence of a governmental participant. This factor is not applicable here.

8. Reaction of the class members to the proposed settlement.

Counsel contends that Class Members received two notifications of the Class benefits under the settlement. The Warranty Extension Notice, which was on Acura letterhead and provides notice only of the Settlement’s warranty extensions, was sent to owners and lessees of the Class Vehicles in February 2019. (Declaration of George Kudo (“Kudo Decl.”), ¶2 and Exhibit A thereto.) This notice was sent to Class Vehicle owners and lessees at their most up-to-date available addresses, using the same address update and verification process that is used for the dissemination of class notices. (Id. at ¶3.) Upon preliminary approval, on February 14, 2020, AHM disseminated the Court-approved Class Notice to nearly 429,191 Class Members. (Declaration of Julie M. Kim (“Kim Decl.”), ¶7). The Class Settlement Website went live the same day (Feb. 14, 2020) and provides information concerning the Settlement and claims process. (Id. at ¶3.)

On May 15, 2020, the Parties disseminated a Supplemental Postcard Notice to affected owners of the Class Vehicles. (Kim Supp. Decl., ¶4.)

Number of class members

429,191 (Kim Supp. Decl. ¶2.)

Number of notice packets mailed

429,191 (Ibid.)

Number of undeliverable notices

21,870 (5.1%) (Id. at ¶3.)

Number of Out-of-Pocket Reimbursement Claims

956 (Id. at ¶7)

Claims Sent Deficiency Notices for Missing Information

905 (Ibid.)

Claims Denied as Ineligible

33 (Ibid.)

Claims Approved

18 (Ibid.)

Total Amount Paid in Claims

$6,183.87 (Id. at ¶9.)

Highest estimated payment

$800 (Ibid.)

Lowest estimated payment

$0 (Ibid.)

Number of Repair Claims Under Powertrain Warranty Period

4,481 Class Vehicles (Declaration of James J. Janik (“Janik Decl.”), ¶2.)

Approximate Total Warranty Cost for Claimed Repairs Under Powertrain Warranty

$6,183.87 (Ibid.)

Number of Repair Claims Under Powertrain Warranty Gap Period

10,902 Class Vehicles (Ibid.)

Approximate Total Warranty Cost for Claimed Repairs Under Powertrain Gap Warranty

$49,000,000. (Ibid.)

Number of Projected Additional Claims Through End of Settlement’s Warranty Extension Period

2,559 Class Vehicles (Id. at ¶3.)

Approx. Total Warranty Cost for Projected Additional Claims Through End of Settlement’s Warranty Extension Period

$11,700,000.00 (Ibid.)

Number of opt-outs

121 (.03%) (Kim Supp. Decl. ¶5.)

Number of objections

15 (less than .04%) (Kim Decl. ¶11 and Exhibit C thereto; Kim Supp. Decl. ¶5 and Exhibit G thereto; Margarian Decl. Re Withdrawal of Objections by Allison S. Fischer.)

The Court has reviewed all objections.

The Court notes that objectors James and Teresa Copenhaver and Allison Fischer have withdrawn their objections and agree to be bound by the Settlement terms and its release. (Supp. Kim Decl. ¶5, Ex.H; Margarian Decl. Re Withdrawal of Objections by Allison S. Fischer, Ex.A).

The remaining objections of (1) Stephen Glass, (2) Joseph Giordano, (3) Amelia Lane,

(4) Ignacio Del Tore, (5) Darwin G. Yung, (6) Matthew Stewart, (7) Michael Weaver,

(8) Gerard Berens, (9) Fabio Principi, (10) Eric Fanucchi, (11) Kevin Cubberly, (12) Serge Morosoff, (13) Allan Staheli, (14) Jay Almaula and (15) Janice Perryare are based on the objectors’ subjective expectations and/or the failure to provide additional, unrealistic relief. Compared to the class size, the numbers of objectors and opt outs are relatively small and shows that the great majority of Class Members are satisfied with the Settlement.

The Court overrules the remaining objections.

CONCLUSION: The settlement is fair, adequate and reasonable.

C. Attorney Fees and Costs

The Settlement Agreement provides for $644,750.00 in attorneys’ fees and costs. (Settlement Agreement ¶IX.A). Class counsel requests $616,512.30 in attorneys’ fees which is approximately 0.9% of the Class benefit and 0.77% of the total anticipated Class recovery. (See Margarian Decl. ¶29 ISO Final Approval Motion). Such fees constitute a reduction in the actual lodestar. Class counsel requests reimbursement of $28,237.70 for costs. No Class Member objected to the attorneys’ fees or costs requested. (Id. at ¶30)

Courts recognize two methods for calculating attorney fees in civil class actions: the lodestar/multiplier method and the percentage of recovery method. (Wershba v. Apple Computer, Inc. (2001) 91 CA4th 224, 254). Class counsel requests attorney fees using the percentage method with a lodestar cross check. (Motion For Attorney Fees, Costs and Expenses, and Service Awards pgs.24-33). Based on a lodestar calculation, the fee amount totals $1,235,037.50. (See Margarian Decl. ¶15 ISO Fee Motion). In order to effectuate the settlement, Class Counsel agreed to accept the sum of $644,750.00 for fees and costs. When the costs are deducted, the fees ultimately awarded are, as noted above, approximately 0.9% of the Class benefit and 0.77% of the total anticipated Class recovery, which the Court finds to be reasonable.

CONCLUSION: the Court awards a total of $644,750 for attorneys’ fees and costs.

D. Incentive/Service Award

Defendants have agreed to pay service awards in the amount of $2,500.00 to the two named Class Representatives (a total of $5,000.00) for their efforts to secure relief on behalf of the Settlement Class in the amount. (Margarian Decl. ¶28 ISO Final Approval Motion; Settlement Agreement ¶IX.B). Plaintiff Armen G. Kojikian, on behalf of himself and Plaintiff Times Traders, Inc. of which he is the sole owner, assisted counsel in the prosecution of the action by consulting with counsel, providing his experience and relevant documents, reviewing the settlement terms during negotiations. (Kojikian Decl. ¶¶3-5, 10).

CONCLUSION: The Court awards Plaintiffs the service awards requested in the amount of $2,500.00 each.

E. Claims Administration Costs

The Settlement Agreement provides that AHM shall pay all expenses incurred in administering the Settlement Agreement. (Settlement Agreement ¶IX.A).

CONCLUSION: No administration costs are awarded to the administrator/AHM.

Case Number: BC606392    Hearing Date: October 15, 2020    Dept: F47

Dept. F-47

Date: 10/15/20

Case #BC606392 Kojikian v. American Honda Motor Co.

Final Approval of Class Action Settlement

TENTATIVE RULING

DENY Final Approval. The Court has received and reviewed all moving papers and objections and rules as follows.

The parties failed to obtain preliminary approval of the Addendum to the Settlement Agreement. Contrary to counsel’s contentions, the Court was neither clearly made aware, nor approved the Addendum.

On April 20, 2020, the parties submitted a request to the Court, by way of a posting on CaseAnywhere, for an order that approves the dissemination of a Supplemental Postcard. (Declaration of Eric Y. Kizirian (“Kizirian Decl.”), ¶2.) The April 20, 2020 posting states in its entirety, as follows:

To the Honorable Court: The parties in the above-referenced Kojikian v. American Honda Motor Co., Inc. action respectfully seek Court approval to send out a supplemental class notice. As set forth in the stipulation and proposed order (separately served via Case Anywhere designating the Court as a recipient), this notice is necessary to (1) inform the class that additional information about the oil consumption testing procedures under the warranty extension offered through the settlement is posted on the settlement website, and (2) correct an error in the “Powertrain Warranty Gap Period” definition in the original class notice. The parties further request that to accommodate the supplemental class notice, and in light of the COVID-19 pandemic, the May 28, 2020 final approval hearing date be continued by 45 days (to early July 2020) and the opt out and comment deadline be extended to a date 21 days after the mailing of the supplemental class notice.” (Ibid.)

Counsel only sought an order approving dissemination of a Supplemental Postcard. The posting did not mention an Addendum. Counsel stated that there was an “error in the “Powertrain Warranty Gap Period” definition in the original class notice, however, this was made to seem that the notice had an error as compared to the term contained within the settlement, and that the notice would correct the discrepancy to align with the settlement. Counsel’s posting did not disclose that the parties now contended that the settlement incorrectly defined what can be seen as an essential term. The Court’s response that the parties can stipulate to a supplemental mailing (in light of the Court’s inability to sign orders because of the pandemic) was based on an understanding that the mailing was to correct an error in the original notice, not to amend the settlement. The Court never approved the Addendum to the Settlement. To that effect, the Final Approval Motion is Denied as it seeks approval of a Settlement which was never preliminarily granted.

Should the parties choose to seek preliminary approval, the parties should address the following issues the Court notes need to be addressed prior to any approval being granted:

  1. Proposed Terms of the Settlement:

    1. Class Period Definition:

      1. Paragraph I.18 states, “Class Period” commences for each Class Vehicle by reference to the year that Class Vehicle was first sold as a new vehicle and continues to the date of Class Notice. What does “to the date of Class Notice” mean? Is this as of the mailing of the Class Notice or as of the Claims Period? If there are multiple mailings, is the Class Period extended?

      2. Paragraph III. A states that “[u]pon submission of a Claim Form, AHM will reimburse Class Members for valid and eligible Out-Of-Pocket Costs incurred prior to the Class Notice Date.” Is this term really consistent with the Class Period definition?

    2. Powertrain Warranty Gap Period Definition:

      1. Why is it proper for the Court to approve a period which expires prior to the settlement being approved? Counsel contends it is required by law to provide notice within a statutory time period. Although true that a settlement can be deemed effective as of its execution, a class action settlement is not effective until after the Court approves it. Counsel is to address why the effective date of the Warranty Gap Period Extension should commence on the execution of the settlement and not its approval.

      2. Why is it proper for the Warranty period to start and end prior to any court approval and the absent class member’s ability to object and/ or opt out, especially in light of the provision in paragraph III.B?

      3. Why is it proper for the parties to provide a notice of this Extension without having the Court approve said notice?

    3. Why is it proper for Defendant to act as administrator in light of provisions such as paragraph V.E? Defendant should not act as the administrator in this matter. The parties need to meet and confer and agree on a qualified and neutral administrator.

    4. How do the parties define the administrator “finally” denying a claim which would trigger paragraph ¶V.E? Ensure that class members are aware of exactly when their right to appeal a denial is triggered and ends.

    5. Scope of the Release:

      1. The release should be limited to only claims asserted in the Second Amended Complaint and only for the Class Period. The absent class members should not release anything outside of said claims, nor have to provide a CC 1542 release.

      2. The Court will not enjoin absent class members in any manner. The Court is not inclined to approve a provision such as Section VIII.B.

    6. Uncashed Checks: Although the parties have removed the provision reverting uncashed checks to Defendant (note pg.9 of the final approval still references a reversion), there is an inadequate discussion of how the parties will handle uncashed checks. If a cy pres is designated ensure to address the following:

      1. Why does such distribution fill the purposes of the lawsuit or is otherwise appropriate? (State of California v. Levi Strauss & Co. (1986) 41 Cal.3d 460, 472; In re Microsoft I-V Cases (2006) 135 Cal.App.4th 706, 722; Nachshin v. AOL, Inc. (9th Cir. 2011) 663 F.3d 1034, 1038-1041; Dennis v. Kellogg Co. (9th Cir.2012) 697 F.3d 858, 865; Cal. Code of Civ. Proc., §384.)

      2. Provide declarations disclosing interests or involvement by any counsel or party in the governance or work of the cy pres recipient (if applicable)

      3. Modify the cy pres provision to comply with Cal. Code of Civil Procedure §384, as revised in 2018. The Court’s Omnibus Trailer Bill of 2018 replaced the language of the prior statutory distribution scheme under CCP §384 with a requirement that the Court re-open judgments following the final distribution of funds to include the cy pres in the judgment and to include the unclaimed amount, plus an unspecified amount of interest. Ensure this procedure is followed.

    7. Dismissal: Per Cal. Rules of Court, rule 3.769(h), remove any reference to the case being dismissed with prejudice, including section II.D.

  2. Notice:

    1. Ensure that any notice for which approval is requested contains all essential terms of the settlement, including full relief language, and clearly sets out the process for appealing disputed claims.

    2. Why is it appropriate to not require that notice be sent to all dealerships where class members may seek relief?

  3. Claims Process: Kim Declaration: Although now moot, the following items will need to be resolved prior to the Court granting approval:

    1. Ms. Kim’s declaration states that as of her May 1, 2020 declaration, AHM had received 746 total claim forms. These claim forms were comprised of (a) 129 claim forms that were missing information (and were sent cure letters), (b) 600 claims that were not eligible under the terms of the Settlement, and (c) 17 claims that were provisionally approved. (Kim Supp Decl., ¶8.) However, as of Ms. Kim’s June 26, 2020 Declaration, she states that, AHM has received a total of 956 Claim Forms. Of these Claims, 905 are missing information and have been sent notices noting the deficiencies in their claims, 33 claims have been denied as ineligible under the terms of the Settlement, and 18 Claims have been approved for payment. (Id. at ¶7.) Why the discrepancy as to the number of claims deemed ineligible under the settlement?

    2. What information was missing from the deficient notices? What is the cure deadline? Ensure that the administrator updates her declaration after the cure deadline.

  4. Powertrain Warranty Claims Data: Janik Declaration:

    1. How were the approximate warranty costs for the claimed repairs obtained?

  5. Warranty Extension Claims: Kudo Declaration:

    1. Why are the descriptions of the Oil Consumption Test in paragraphs 6 of Mr. Kudo’s May 5 and May 15 Declarations different? Which is the correct process?

INSTRUCTIONS TO PARTIES:

If the parties wish to reserve a hearing date for a new motion for preliminary approval of Class Action Settlement, the dates of 12/10/20 or 12/11/20 are available. In such case, all moving papers must be filed by 11/6/20 with courtesy copies delivered directly to Dept. F-47 the same day. Otherwise, the dates of 1/14/21 or 1/15/21 are available. In such case, all moving papers must be filed by 12/4/20 with courtesy copies delivered directly to Dept. F-47 the same day. Counsel is to contact the courtroom directly to reserve a hearing date for a new motion for preliminary approval, if such motion is going to be filed.

If a new motion for preliminary approval of Class Action Settlement is filed, the motion and supporting papers must be complete and not refer to previously filed papers or exhibits filed in support of prior motions. Additionally, please submit both a red-lined copy of the settlement agreement showing changes made as well as a final version signed by all parties. Do not submit an addendum instead of a fully amended settlement agreement including all operative settlement terms.

BACKGROUND

On January 8, 2016, Plaintiffs filed a Class Action Complaint asserting claims for (1) breach of express warranty, (2) breach of implied warranty, (3) breach of warranty (Song-Beverly Consumer Warranty Act), Civil Code § 1790 et seq. (“Song-Beverly”’), (4) breach of warranty (Magnuson-Moss Warranty Act), 15 U.S.C. § 2301 et seq. (“Mag-Moss”), (5) violation of the California Consumers Legal Remedies Act, Civil Code § 1750 et seq. (“CLRA”), (6) violation of California Business & Professions Code § 17200 et seq. (“UCL”), and (7) nuisance.

On May 18, 2016, Plaintiffs filed a First Amended Class Action Complaint for Damages and Equitable Relief (“FAC”) asserting claims for (1) breach of express warranty, (2) breach of implied warranty, (3) breach of warranty (Song-Beverly), (4) breach of warranty (Mag-Moss), and (5) violation of UCL.

On August 24, 2016, AHM filed a demurrer pursuant to California Code of Civil Procedure section 430.10 to the claims asserted in Plaintiffs’ First Amended Class Action Complaint (“FAC”) and moved to strike the nationwide class allegations in Plaintiffs’ FAC. On February 2, 2017, AHM’s demurrer to the non-California warranty claims and to the Mag-Moss claim (to the extent premised on non-California warranty claims) was sustained without leave to amend, and AHM’s motion to strike was granted without leave to amend. AHM filed its answer to the FAC on March 17, 2017.

On February 25, 2020, Plaintiffs filed a Second Amended Complaint (“SAC”) asserting claims for (1) breach of express warranty, (2) breach of implied warranty, (3) breach of warranty (Song-Beverly), (4) breach of warranty (Mag-Moss), and (5) violation of UCL.

Counsel represents that the parties engaged in investigation and discovery in this matter. It is represented that Plaintiffs fielded inquiries from prospective Class Members; consulted and retained automotive experts; researched publicly available materials and information provided by the National Highway Traffic Safety Administration (“NHTSA”) concerning consumer complaints about excessive oil consumption; reviewed and researched consumer complaints and discussions of excessive oil consumption in articles and forums online; reviewed various manuals and technical service bulletins discussing the alleged defect; conducted research into the various causes of actions; and propounded discovery on AHM. In response, AHM produced warranty claims data and hundreds of pages of documents, including owners’ manuals, maintenance and warranty manuals, design documents (e.g., technical drawings), technical service bulletins, field reports, customer comments detail reports. Plaintiffs also deposed AHM’s Person Most Knowledgeable (“PMK’”’) designee, an out-of-state witness, on November 16, 2017, who provided testimony along with document production on issues related to Plaintiffs’ claims.

The parties mediated with the Hon. Howard Weiner in early January 2018, followed by a second session on March 29, 2018. At mediation, the parties were able to reach an agreement on all material terms of the proposed relief to the Class, subject to AHM’s corporate approval. After the parties had reached this agreement, they also negotiated attorneys’ fees, costs, and incentive awards. Ultimately, the parties reached an agreement on these terms as well. Subsequent to the mediation, the parties formalized the Settlement Agreement, a fully executed copy of which is attached to the Declaration of Hovanes Margarian (“Margarian Decl.”).

On August 27, 2019, the court issued a checklist for the parties to address and continued preliminary approval. In response, on October 8, 2019, Plaintiffs filed supplemental briefing (“Supp. Brief”) and a fully executed Amended Settlement Agreement attached as Exhibit B thereto.

On October 10, 2019, the Court granted preliminary approval.

On April 20, 2020, the parties requested Court approval to send out a supplemental class notice. Counsel represented that this notice was necessary to (1) inform the class that additional information about the oil consumption testing procedures under the warranty extension offered through the settlement is posted on the settlement website, and (2) correct an error in the “Powertrain Warranty Gap Period” definition in the original class notice. The parties executed a stipulation to this effect on April 17, 2020, which also stipulated to an Addendum which revised the definition of the “Powertrain Warranty Gap Period” to end prior to the preliminary approval of the settlement. The Court never approved this Addendum.

Now before the Court is the motion for final approval of the Settlement Agreement.

SETTLEMENT CLASS DEFINITION

TERMS OF SETTLEMENT AGREEMENT

The essential terms are as follows:

ANALYSIS OF SETTLEMENT AGREEMENT

  1. Does a presumption of fairness exist?

1. Was the settlement reached through arm’s-length bargaining? Yes. The parties mediated with the Hon. Howard Weiner in early January 2018, followed by a second session on March 29, 2018. (Margarian Decl. ISO Preliminary Approval, ¶7.) At mediation, the Parties were able to reach an agreement on all material terms of the proposed relief to the Class, subject to AHM’s corporate approval. (Ibid.) After the Parties had reached this agreement, they also negotiated attorneys’ fees, costs, and incentive awards. (Ibid.) Ultimately, the Parties reached an agreement on these terms as well. (Ibid.) Subsequent to the mediation, the Parties formalized the Settlement Agreement, (Ibid.)

2. Were investigation and discovery sufficient to allow counsel and the court to act intelligently? Yes. Counsel represents that the parties engaged in investigation and discovery in this matter. (Id. at ¶¶2-3.) It is represented that Plaintiffs fielded inquiries from prospective Class Members; consulted and retained automotive experts; researched publicly available materials and information provided by the National Highway Traffic Safety Administration (“NHTSA”) concerning consumer complaints about excessive oil consumption; reviewed and researched consumer complaints and discussions of excessive oil consumption in articles and forums online; reviewed various manuals and technical service bulletins discussing the alleged defect; conducted research into the various causes of actions; and propounded discovery on AHM. (Id. at ¶¶3-4.) In response, AHM produced warranty claims data and hundreds of pages of documents, including owners’ manuals, maintenance and warranty manuals, design documents (e.g., technical drawings), technical service bulletins, field reports, customer comments detail reports. Plaintiffs also deposed AHM’s Person Most Knowledgeable (“PMK”) designee, an out-of-state witness, on November 16, 2017, who provided testimony along with document production on issues related to Plaintiffs’ claims. (Id. at ¶4.)

3. Is counsel experienced in similar litigation? Yes. Class Counsel is experienced in class action litigation. (Id. at ¶¶16-18.)

4. What percentage of the class has objected? 16 (.04%) (Kim Supp. Decl. ¶5.) The Court has reviewed all objections and declines ruling at this time. The objections are moot based on the Court’s denial of the motion for Final Approval due to the parties’ failure to obtain preliminary approval of the addendum to the settlement.

CONCLUSION: As the parties seek final approval of a Settlement which did not receive the proper preliminary approval, the settlement is NOT entitled to a presumption of fairness.

  1. Is the settlement fair, adequate, and reasonable?

        1. Strength of Plaintiff’s case.The most important factor is the strength of the case for plaintiff on the merits, balanced against the amount offered in settlement.” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130.)

Counsel represents that “the Settlement properly addresses the Plaintiffs’ primary Complaint, that some Class Vehicles may consume an excessive amount of engine oil. The Settlement thus provides for reimbursement of out-of-pocket expenses relating to excessive oil consumption complaints, and a warranty extension that will cover Piston Repairs should the need for them arise. These results are in line with what Plaintiffs expected to recovery at trial.” (Motion ISO Preliminary Approval, 13:16-22.)

Counsel further contend that the proposed settlement offers “full” relief in the form of recovery of both past out-of-pocket costs and future protection against possible oil consumption complaints by way of a lengthy warranty extension. Counsel contends that the predominant relief sought in the First Amended Complaint is a “declaration that Defendants are financially responsible for notifying all class members about the defective nature of the Subject Vehicles and to offer repair and remedy the J37 engine as alleged herein.” Plaintiffs believe the proposed settlement, which offers a warranty extension, provides this precise relief. Counsel represents that according to Honda’s analysis; the warranty extension will cost approximately $25,000,000. Thus, this is the minimum value of the warranty extension to the class. (Supp. Brief ISO Preliminary Approval, 5:18-27.)

Counsel further represents that the Complaint seeks compensatory damages recovery, which would have been for out-of-pocket costs Class Members paid for repairs related to excessive oil consumption. Counsel states that although the parties do not know how many claims may be made for Out-of-Pocket costs, based on prior repairs, the parties believe the range of costs for a piston repair/replacement (parts and labor) ranges from approximately $4,200 to $4,590 (depending on the type/model year of vehicle). (Supp. Brief ISO Preliminary Approval, 5: 28-6:6.)

Finally, counsel contends that although the FAC asserts a claim claims for disgorgement of profits and exemplary damages, due to Defendant’s defenses, the likelihood of prevailing on this claim was low, and therefore assigned it no value. (Motion ISO Preliminary Approval, 6:8-21.)

2. Risk, expense, complexity and likely duration of further litigation. Given the nature of the class claims, the case is likely to be expensive and lengthy to try. Procedural hurdles (e.g., motion practice and appeals) are also likely to prolong the litigation as well as any recovery by the class members.

3. Risk of maintaining class action status through trial. Even if a class is certified, there is always a risk of decertification. (See Weinstat v. Dentsply Intern., Inc. (2010) 180 Cal.App.4th 1213, 1226 (“Our Supreme Court has recognized that trial courts should retain some flexibility in conducting class actions, which means, under suitable circumstances, entertaining successive motions on certification if the court subsequently discovers that the propriety of a class action is not appropriate.”).)

4. Amount offered in settlement. Counsel represents that according to Honda’s analysis; the warranty extension will cost approximately $25,000,000. Thus, this is the minimum value of the warranty extension to the class. (Supp. Brief ISO Preliminary Approval, 5:18-27.)

Counsel further represents that the settlement also provides for out-of-pocket costs Class Members paid for repairs related to excessive oil consumption. Counsel states that although the parties do not know how many claims may be made for Out-of-Pocket costs, based on prior repairs, the parties believe the range of costs for a piston repair/replacement (parts and labor) ranges from approximately $4,200 to $4,590 (depending on the type/model year of vehicle). (Supp. Brief, 5: 28-6:6.)

5. Extent of discovery completed and stage of the proceedings. As indicated above, at the time of the settlement, Class Counsel had conducted sufficient discovery.

6. Experience and views of counsel. The settlement was negotiated and endorsed by class counsel who, as indicated above, is experienced in class action litigation. Class Counsel is of the opinion that the Class Settlement is fair, adequate, and reasonable.

7. Presence of a governmental participant. This factor is not applicable here.

8. Reaction of the class members to the proposed settlement.

Counsel contends that Class Members received two notifications of the Class benefits under the settlement. The Warranty Extension Notice, which was on Acura letterhead and provides notice only of the Settlement’s warranty extensions, was sent to owners and lessees of the Class Vehicles in February 2019. (Declaration of George Kudo (“Kudo Decl.”), ¶2 and Exhibit A thereto.) This notice was sent to Class Vehicle owners and lessees at their most up-to-date available addresses, using the same address update and verification process that is used for the dissemination of class notices. (Id. at ¶3.) Upon preliminary approval, on February 14, 2020, AHM disseminated the Court-approved Class Notice to nearly 429,191 Class Members. (Declaration of Julie M. Kim (“Kim Decl.”), ¶7). The Class Settlement Website went live the same day (Feb. 14, 2020) and provides information concerning the Settlement and claims process. (Id. at ¶3.)

On May 15, 2020, the Parties disseminated a Supplemental Postcard Notice to affected owners of the Class Vehicles. (Kim Supp. Decl., ¶4.)

Number of class members

429,191 (Kim Supp. Decl. ¶2.)

Number of notice packets mailed

429,191 (Ibid.)

Number of undeliverable notices

21,870 (5.1%) (Id. at ¶3.)

Number of Out-of-Pocket Reimbursement Claims

956 (Id. at ¶7.)[1]

Claims Sent Deficiency Notices for Missing Information

905 (Ibid.)

Claims Denied as Ineligible

33 (Ibid.)

Claims Approved

18 (Ibid.)

Total Amount Paid in Claims

$6,183.87 (Id. at ¶9.)

Highest estimated payment

$800 (Ibid.)

Lowest estimated payment

$0 (Ibid.)

Number of Repair Claims Under Powertrain Warranty Period

4,481 Class Vehicles (Declaration of James J. Janik (“Janik Decl.”), ¶2.)

Approximate Total Warranty Cost for Claimed Repairs Under Powertrain Warranty

$6,183.87 (Ibid.)

Number of Repair Claims Under Powertrain Warranty Gap Period

10,902 Class Vehicles (Ibid.)

Approximate Total Warranty Cost for Claimed Repairs Under Powertrain Gap Warranty

$49,000,000. (Ibid.)

Number of Projected Additional Claims Through End of Settlement’s Warranty Extension Period

2,559 Class Vehicles (Id. at ¶3.)

Approx. Total Warranty Cost for Projected Additional Claims Through End of Settlement’s Warranty Extension Period

$11,700,000.00 (Ibid.)

Number of opt-outs

121 (.03%) (Kim Supp. Decl. ¶5.)

Number of objections

16 (.04%) (Kim Decl. ¶11 and Exhibit C thereto.; Kim Supp. Decl. ¶5 and Exhibit G thereto.)

The Court has reviewed all objections and declines ruling at this time. The objections are moot based on the Court’s denial of the motion for Final Approval due to the parties’ failure to obtain preliminary approval of the addendum to the settlement.

CONCLUSION: As the parties seek final approval of a Settlement which did not receive the proper preliminary approval, the settlement is NOT entitled to a presumption of fairness.

  1. Attorney Fees and Costs

The Court declines ruling on all the request for attorney’s fees and costs at this time as based on the denial of the motion for Final Approval due to the parties’ failure to obtain preliminary approval of the addendum to the settlement.

  1. Incentive Award

The Court declines ruling on all the request for incentive awards at this time as based on the denial of the motion for Final Approval due to the parties’ failure to obtain preliminary approval of the addendum to the settlement.

  1. Claims Administration Costs

The Court declines ruling on the request for administration costs at this time as based on the denial of the motion for Final Approval due to the parties’ failure to obtain preliminary approval of the addendum to the settlement.

Again, Counsel is to contact the courtroom directly to reserve a hearing date for a new motion for preliminary approval, if such motion is going to be filed, and parties must follow the directions given by the Court under INSTRUCTIONS TO PARTIES.


[1] Ms. Kim’s declaration states that per her May 1, 2020 declaration, AHM had received 746 total claim forms. These claim forms were comprised of (a) 129 claim forms that were missing information (and were sent cure letters), (b) 600 claims that were not eligible under the terms of the Settlement, and (c) 17 claims that were provisionally approved. (Kim Supp Decl., ¶8.)