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An informed response to the "tank spread" proposed settlement

18K views 72 replies 26 participants last post by  Sleepless 
#1 · (Edited)
I received my Class action Proposed Settlement letter yesterday.

You have 3 options:
1) Exclude youself from the settlement. Retain the right to seek your own resolution. You will not receive any eventual settlement provided to the Class.
2) Do nothing. This is a tacit Support of the proposed settlement. Let the Court review, and likely accept the proposal. You're in.
3) Object to the Settlement. While still being a part of any eventual resolution, you can have a voice to the Court.

I am filing an Objection, as below. Note: THIS IS NOT INTENDED TO BE A FORM LETTER / TEMPLATE.
IF, AFTER REVIEWING THE SETTLEMENT PROPOSAL, IF YOU HAVE OBJECTIONS, WRITE YOUR OWN LETTER.

>>>>> My purpose for sharing my letter here is to get you thinking, because I am not confident that the proposal actually fixes the issue <<<<<<


Note: I have removed my personal information - it is REQUIRED to file an Objection to the Court.

< start letter >

Clerk of the Court,
San Jose Division
United States District Court for the Northern District of California
280 S. First Street
San Jose, CA 95113

Girard Gibbs LLP
c/o Eric H. Gibbs
601 California Street
Suite 100
San Francisco, CA 94108

Simpson Thacher & Bartlett LLP
c/o David W. Ichel
425 Lexington Ave
New York, NY 10017

SUBJECT: Class member’s objection to proposed settlement.

REFERENCE: Proposed settlement: Sugarman, et al v. Ducati North America, Inc. Case No: 5:10-cv-05246

Class Member:
Name: XXXXXXXXX
Address: XXXXXXX
Tel: XXXXXXXXXXX
Motorcycle: 2007 Ducati GT1000, originally red
Appearance at 1/6/12 Fairness Hearing: No, and no separate counsel representation
Objection(s) to any other Class Settlements in past 5 years: No


OBJECTION: The proposed solution of “extended warranties and improved parts” is an inappropriate remedy for me, and likely other Ducati owners. Simply, the tank expansion became an elevated safety risk over the years, and required unilateral attempts to remedy if I wished to continue using the motorcycle in a safe manner. The permanent remediation I implemented cost more than this proposed settlement, while simultaneously prohibiting me from the capability of making a warranty claim via the proposed extended warranty coverage, because I have implemented a permanent fix via modification to the tank. Additionally, and importantly, it is likely this proposed settlement by Ducati is only a temporary remedy.


DETAILS:
• My motorcycle experienced fuel tank expansion, to the degree that it separated from the 2 mounting brackets.
• I did not experience steering interference since the bike had the “handlebar riser” accessory installed by the Ducati dealer, which results in the handlebars being elevated from the fuel tank. I did not experience any fuel leakage at the fuel pump.
• Ducati was not offering a remedy at the time (2009)when I contacted the 2 local Ducati dealers:
• My email to Barnet's Suzuki Ducati Moto Guzzi, Raleigh NC went unanswered. I got the run-around on phone calls.
• My email to Matison Motorsports, Raleigh NC received this response:
"Sorry, we currently do not perform warranty work for Ducati. They owe us well over $10,000 in unpaid warranty claims. Evidently they cannot afford to pay us. Until they make good on the unpaid work, we cannot assist them further with their extensive warranty problems. We have suffered a huge financial loss due to this problem."

• 1st unilateral remediation attempt: I therefore purchased longer replacement bolts and washers, removed the tank, and extended the mounting brackets away from the frame. This provided a temporary remedy for 1 riding season (cost: -$10, my labor)
• The tank continued to expand; I purchased longer bolts and additional washers (eventually 5 per side), removed the tank and retrofitted the brackets a second time. Eventually, the tank separated from the brackets again. I did not extend the brackets a third time, as I no longer felt that this was a safe, viable alternative.
Note in this picture, taken from the ground looking up under the tank, the (1) rubber tank foot is falling out of the (2) metal mounting bracket, despite the use of (3) a longer bolt and 5 washers on both sides of the tank to move the mounting bracket out from the frame. The expansion was slightly > 1 inch at this point.



NOTE: SINCE I HAVE REVISED THE MOUNTING BRACKETS TWICE WITHOUT PERMANENT SUCCESS, I AM CONCERNED THAT DUCATI’S PROPOSED FIX FOR “NON-COSMETIC PROBLEMS” WILL NOT WORK FOR OTHER OWNERS IN THE LONG TERM: “… Ducati will install a new fastener kit to ensure the fuel tank remains attached to the front mounting brackets”.
Insufficient information is provided in the proposed settlement to draw any conclusion.

• 2nd unilateral remediation attempt: after several months, I eventually located a compatible, nearly-new but scratched black GT1000 fuel tank on eBay (-$259)
• After significant research online and communication with other Ducati owners, I purchased Caswell phenol novolac epoxy tank sealer and immediately cleaned and sealed the tank myself. (-$60). Other tank sealants may have also been acceptable.
• I eventually purchased used black front and rear fenders to match the tank. I removed but did not replace the red side covers. (-$239)
• I then collectively sold my original deformed red tank, the red fenders, and the red side covers on eBay, suffering some (unmeasured) financial injury since I disclosed the severity of the tank expansion in the eBay listing (+ $420 from the sale)


SUMMARY:
- I spent many hours determining a unilateral remedy, with no Ducati support.
- The fix I eventually implemented cost me approximately $200, over months, using used parts. I doubt anyone else implemented a permanent fix for less, unless they knew of this issue and sealed the plastic tank immediately upon taking delivery of the new bike.
- The remedy I finally implemented could not have worked for all Ducati owners with plastic tanks : only a relative few members of the Class can find an appropriate used tank, as well as sell their existing tank as I was able to.
- Noting that elapsed time span of bikes with plastic tanks in the proposed settlement ranges from 2003 – 2011, I wonder if the proper remedy of 8 years of defective tank production is resolved by mildly extending a warranty.
- Since my replacement tank is not original to the bike, and has been “modified” by me (the Caswell epoxy sealant) I doubt it would be a candidate for a warranty claim…. And besides, it appears that I was able to fix it permanently (9 months with no tank expansion), where apparently over a multi-year span Ducati couldn’t proactively determine the issue, identify corrective remedy, and contact owners / resolve in a timely manner.
- It is not clear to me that the proposed MECHANICAL change can adequately resolve a likely CHEMISTRY issue.

Thank you for the opportunity to express my concerns with the proposed settlement.

Sincerely,

< end letter >
 

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#73 ·
Go back to the first post... my letter... and look at the attached picture of the tank expansion I experienced. 1 pic = 1000 words.

This pic was provided to the Court, the Plaintiffs, and the Defense - but its not addressed in the settlement - although Ducati's ridiculous claim of deformation of "a few millimeters" was repeated.

Really?

Really.

Alot of the more mundane comments were specifically addressed.... paying lawyers commensurate with The US President (thus generating a lower fee), motorcycle balance being thrown off when the proposed brackets are used, the years it would take to design an adequate replacement metal tank (You design guys at Ducati still using compasses and an abacus over there? Funny, the aftermarket can bring model-specific accessories to market within weeks / months of a new motorcycle offering). Gimme a break!

As I feared, the judge seems to have been looking for reasons to approve a weak settlement. He authors a nice justification, but misses the point.

I've had over a dozen motorcycles since the late 70's; the GT is my first, and now last, Ducati. Addio!

Up to now, I refrained from mentioning the other serious problem I've experienced, which has made the bike turn off with out warning while in traffic. I had to fix that one myself too, after the Duc / dealer song-n-dance.

Simply stunning to me how short the vision is at Ducati.
"won the battle; lost the war"
 
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