Dewey v. Volkswagen of Am., Civil Action Nos. 07-2249(FSH)
| Decision Date | 30 July 2010 |
| Docket Number | Civil Action Nos. 07-2249(FSH),Civil Action Nos. 07-2361(FSH) |
| Citation | 728 F.Supp.2d 546 |
| Parties | John M. DEWEY, et al., Plaintiffs, v. VOLKSWAGEN OF AMERICA, et al., Defendants. Jacqueline Delguercio, et al., Plaintiffs, v. Volkswagen of America, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
John M. DEWEY, et al., Plaintiffs,
v.
VOLKSWAGEN OF AMERICA, et al., Defendants.
Jacqueline Delguercio, et al., Plaintiffs,
v.
Volkswagen of America, et al., Defendants.
Civil Action Nos. 07-2249(FSH), 07-2361(FSH).
United States District Court,
D. New Jersey.
July 30, 2010.
Adam M. Slater, Matthew Ross Mendelsohn, Mazie Slater Katz & Freeman, Roseland, NJ, Dina Marie Mastellone, Genova, Burns & Giantomasi, Newark, NJ, Samuel P. Sporn, Jay P. Saltzman, Schoengold & Sporn, PC, New York, NY, for Plaintiffs.
Jeffrey L. Chase, Peter J. Kurshan, Chase, Kurshan, Herzfeld & Rubin, LLC, Livingston, NJ, Keith Andrew Frederick, Herzfeld & Rubin PC, New York, NY, Forrest Scott Turkish, Bayonne, NJ, Stephen Tsai, Stephen Tsai Law Offices, Bridgewater, NJ, for Defendants.
Pamela E. Kulsrud Corey, Pound Ridge, NY, pro se.
OPINION
FOR PUBLICATION 1
SHWARTZ, United States Magistrate Judge.
I. INTRODUCTION
This matter is before the Court by way of Plaintiffs' motions for: (1) certification of the settlement class; (2) final approval of the class settlement embodied in the agreement dated February 11, 2010; (3)
II. BACKGROUND AND RELEVANT FACTS
The plaintiffs initiated two class actions against Defendants Volkswagen of America, Inc., Volkswagen AG, Volkswagen BG, and Volkswagen Group of America ("VWGoA") (collectively "VW") and Audi AG and Audi of America, LLC (collectively "Audi") 2 for alleged defects in certain cars. On May 11, 2007, Plaintiffs John M. Dewey, Patrick DeMartino, and Patricia Romeo (the " Dewey plaintiffs") filed a class action Complaint alleging that certain VW and Audi vehicles have defectively designed pollen filter gasket areas and sunroof drains. ( Dewey v. Volkswagen of Am., Inc., Civ. No. 07-2249, Docket Entry No. 1 ¶ 1 (D.N.J. filed May 11, 2007).) 3 One week later, Plaintiff Jacqueline Delguercio ("Delguercio") initiated a substantially similar class action. ( Delguercio v. Volkswagen of Am., Inc., Civ. No. 07-2361, Docket Entry No. 1 ¶ 1 (D.N.J. filed May 18, 2007).) 4 On June 22, 2007, the Court consolidated the cases for pre-trial purposes. ( Dewey, Docket Entry No. 8; Delguercio, Docket Entry No. 6.)
According to their Fourth Amended Complaints,5 the plaintiffs allege that design defects in the sunroof drain, the pollen filter, the plenum drains, and other parts of VW and Audi vehicles caused water to pool and spill over, rather than drain, damaging the interior cabin, transmission, and/or electrical systems of the car. ( Dewey, Docket Entry Nos. 86 ¶ 3 and 87 ¶ 8; Delguercio, Docket Entry No. 63 ¶ 8.) Based on these allegations, the Dewey plaintiffs assert claims based on the New Jersey Consumer Fraud Act (CFA), the Uniform Commercial Code (UCC), common law fraud, negligent misrepresentation, breach of the duty of good faith and fair dealing, and unjust enrichment. ( Dewey, Docket Entry No. 86 ¶¶ 70-121.) Based upon the same allegations, the Delguercio plaintiffs allege that the defendants breached express and implied warranties, improperly repaired the vehicles, breached the covenant of good faith and fair dealing, made negligent misrepresentations, violated the CFA, were unjustly enriched, and engaged in fraud. ( Dewey, Docket Entry No. 871 ¶¶ 46-97; Delguercio, Docket Entry No. 63 ¶¶ 46-97.)
The defendants filed motions to dismiss and quash service upon the foreign defendants, ( Dewey, Docket Entry Nos. 13, 24, 29, 41, 84; Delguercio, Docket Entry Nos. 16, 18), and the plaintiffs sought the issuance of letters rogatory and withdrew the same. ( Dewey, Docket Entry Nos. 104, 108, 109, 110; Delguercio, Docket Entry No. 79.) The motions were denied with respect to all defendants except for Volkswagen de Mexico. ( Dewey, Docket Entry No. 55.)
The parties also engaged in discovery and raised numerous discovery and case management disputes. ( Dewey, Docket Entry Nos. 43, 46, 49, 53, 60, 61, 72, 73, 78, 79, 80, 82, 91, 96, 98, 99, 101, 102, 111, 115, 118, 119, 120, 124, 133, 134, 137, 140, 143, 146, 147, 149, 152; Delguercio, Docket Entry Nos. 26, 29, 30, 32, 33, 41, 42, 47, 52, 53, 56, 58, 59, 61, 67, 68, 70, 71, 73, 75, 79, 81, 83, 84, 85, 88, 91, 97, 98, 100, 101, 102, 105, 106, 107, 108, 110.) Discovery included the production of thousands of documents, some of which were in foreign languages, more than fifty depositions throughout the United States, and consultation with numerous automotive experts. ( Dewey, Docket Entry No. 163 Attach. 13 ¶ 3; Delguercio, Docket Entry No. 121 Attach. 13 ¶ 3; Dewey, Docket Entry No. 163 Attach. 2 ¶¶ 16-18; Delguercio, Docket Entry No. 121 Attach. 2 ¶¶ 16-18; Dewey, Docket Entry No. 196 Attach. 1 ¶ 7.)
After more than two years of discovery, the parties notified the Court that they were engaged in serious settlement discussions, but time was needed to obtain confirmatory discovery. As a result, in September 2009, the Court suspended the pretrial deadlines and set deadlines for the parties to file a joint motion for preliminary approval of a settlement class and class settlement, and for the appointment of class counsel. ( Dewey, Docket Entry Nos. 154, 155, 157, 160, 162; Delguercio, Docket Entry Nos. 113, 114, 116, 118, 120.) At the time, class and merits fact discovery were scheduled to close on September 30, 2009, expert discovery was scheduled to be completed by January 27, 2010, and the Final Pretrial Conference was to occur on February 25, 2010. ( Dewey, Docket Entry No. 149; Delguercio, Docket Entry No. 110.)
On November 10, 2009, the United States District Judge approved the parties' request to consent to Magistrate Judge jurisdiction "to conduct all settlement proceedings and enter final judgment," pursuant to 28 U.S.C. § 636(c). 6
On January 29, 2010, the parties filed a joint motion for preliminary approval of a class settlement, preliminary approval of a settlement class, and appointment of class counsel. ( Dewey, Docket Entry No. 163; Delguercio, Docket Entry No. 121.) A telephonic hearing on this motion was held on the record on February 3, 2010. The Court considered the written submissions, oral arguments, and governing law and directed that, no later than February 5, 2010, the parties submit revised proposed settlement documents that included certain provisions for notice to the putative class and changes to the type of documentation needed to obtain reimbursement ( Dewey, Docket Entry No. 168; Delguercio, Docket Entry No. 125.) This deadline was ultimately extended until February 11, 2010. ( Dewey, Docket Entry Nos. 171, 172; Delguercio, Docket Entry Nos. 125, 126.)
The Order granting preliminary approval of a settlement class, class settlement, and appointment of class counsel was signed on February 17, 2010, and entered on February 23, 2010. ( Dewey, Docket No. 175; Delguercio, Docket No. 129.) The Order was amended on March 26, 2010, and again on April 14, 2010. ( Dewey, Docket No. 176, 178; Delguercio, Docket No. 130.) The Amended Preliminary Approval Order provides for preliminary certification of classes described as:
(a) all Persons, other than officers, directors, or employees of the defendants, who purchased or leased, new or used, the following settlement class vehicles:
• 2001-2007 Volkswagen New Beetle vehicles with Vehicle Identification Numbers (VINs) below 3VW-1C-7M514779, equipped with sunroof;
• 2001-2005 Jetta A4 Sedan with VINs with "9M" in position 7 and 8, and 2001-2005 Volkswagen Jetta Wagon A4 vehicles with VINs with "1J" in position 7 and 8, equipped with sunroof;
• 2001-2006 Volkswagen Golf A4, Volkswagen GTI A4 vehicles with VINs with "1J" in position 7 and 8, equipped with sunroof;
• 2005-2007 Volkswagen Jetta A5 vehicles with VINs with "1K" in position 7 and 8, equipped with sunroof;
• 2006-2007 Volkswagen Golf/GTI A5 vehicles with VINs with "1K" in position 7 and 8, equipped with sunroof;
• 1999-2005 Volkswagen Passat B5 vehicles;
• 1997-2006 Audi A4 vehicles, B5 and B6 Platforms in MY 7 2005, with VINs with "8E" in position 7 and 8 with also "J" or "L" or "V" or "P" or "X" in position 4, and in MY2005 and MY2006, with VINs with "8H" in position 7 and 8 (including Cabrio, S, and RS versions);
• 1998-2005 Audi A6 C5 vehicles with VINs with "4B" in position 7 and 8 (including Allroad, S, and RS versions);
and
(b) all persons, other than officers, directors, or employees of the defendants, who currently own or lease the following settlement class vehicles:
• 1998-2000 and 2007-2009 Volkswagen New Beetle with VINs 3VW-1C-7M514779 or higher, equipped with sunroof;
• 1997-1999 Volkswagen Jetta A3 with VINs with "1H" in position 7 and 8, 1999-2000 Volkswagen Jetta A4 with VINs with "9M" in position 7 and 8, and 2008-2009 Volkswagen Jetta A5 vehicles with VINs with "1K" in position 7 and 8, equipped with sunroof;
• 1997-1999 Volkswagen Golf/GTI A3 with VINs with "1H" in position 7 and 8, 1999-2000 Volkswagen Golf/GTI A4 with VINs with "1J" in position 7 and 8, and 2008-2009 Volkswagen Golf/GTI A5 vehicles with VINs with "1K" in position 7 and 8, equipped with sunroof;
• 1998 Volkswagen Passat B5 vehicles;
• 1997 Volkswagen Passat B4 and 2006-2009 Volkswagen Passat B6 vehicles equipped with sunroof;
• 2004-2009 Volkswagen Touareg vehicles;
• 2005-2008 Audi A4 B7 Platform vehicles equipped with sunroof, in MY2005, with VINs with "8E" in position 7 and 8 and also "A" or "D" or "K" or "G" or "U" in position 4 (including S and RS versions);
• 1997 Audi A6 C4 vehicles;
• 2005-2009 Audi A6 C6 vehicles equipped with sunroof with VINs with "4A" or "4F" in position 7 and 8 (including S and RS versions);
• 1997-2009 Audi A8 vehicles (including S versions).
The proposed settlement provides for: (1) educational preventative maintenance information for...
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