An informed response to the "tank spread" proposed settlement

[Sleepless]

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 >

[Sleepless]

BTW, in the proposed settlement "Ducati acknowledges that the increased addition of ethanol to gasoline in the US, under certain combinations of conditions, has caused the thermoplastic fuel tanks on a small percentage of its customers motorcycles to expand, generally only by very small amounts measured by just a few millimeters ..."

25.4 mm = 1 inch.

-> is 25.4 mm just "a few mm"?
Go back and look at my tank pic.
Maybe it isn't the ethanol... but that tank has certainly expanded by more than a "few millimeters" !

(sorry for making you click the link.... I can't get the image to post directly, despite reviewing the Help stuff. Maybe somebody can patch it for me?)

[flynbulldog]

I have also written a response to this settlement. I encourage others who have bikes involved in the suit to write.

I will not publicly post my letter but if anyone would like to use it as a template I will email you a copy.
I also do not want others to use my words, your objections or comments should be your own.

[Gilly]

It would be nice to take a class action suit against the class action suit. Or would there be a recourse for those who do not attach themselves to the class action suit to bring a separate suit? Any lawyers make sense of this?

[Sleepless]

Section 18 - "How will the lawyers be paid and will there be service awards to the named plaintiffs?"

"Class Council will ask the court for attorney's fees and expenses based on the actual time it's lawyers and other personnel have expended on the case up to $835,000...."

Gilly, maybe we can get a Groupon for legal services ?

[flynbulldog]

I strongly encourage everyone who got a notice on this class action to write and either object to the settlement or to exclude yourself from the settlement.

I wrote an objection but here's why I think you should exclude yourself:

Once the settlement is accepted Ducati will be legally bound by it's terms and cannot make any exceptions.

The settlement states that any replacement tank has only one year of warranty for defects and 6 month for cosmetic issues arising from expansion.
So, once you get your first new tank that one has a very limited warranty and as we know it will likely expand again but this time it will probably be out of warranty and Ducati will not replace it.

Under the current terms (someone please correct me if I'm wrong on this because I could not find official supporting documents) the fuel tank is covered by a federally mandated 5 year emissions warranty. That means you can have as many replacement tanks as you need in those five years.

So If you have a bike that is less than two years old the settlement will reduce your warranty once you have your first replacement tank.

This settlement is a bad deal and we all need to let them know.

[flynbulldog]

With some further thought I think an objection is far more productive than excluding yourself from the suit.

WE need to have our opinions heard in this case, the settlement is pathetic and releases Ducati from ever developing a proper fuel tank.

Come on guys, there should be 30 pages in this thread not 6 posts by 3 guys.
Get off your lazy asses and do something

Who's writing an objection?

[Gilly]

Funny how they put you in the pickle and you have to choose between objection and exclusion. Since you cannot tell the freakin future, it's difficult at best to know which is the better path.

I believe that objection may be the righteous path. The battle line has been established. If the settlement goes through, it will be because no one objected or the court was not provided enough feedback to warrant looking at it from an owners perspective.

Choosing "exclusion", to me, sort of implies that you will get a posse up and start your own litigation. I doubt this very much. I doubt owners will sue DNA on their own. So exclusion seems like the "trick answer" for those who hate the thought of the decision passing.

So for me, I object your Honor!

Doing nothing, well many will choose this path. It's easy. No paperwork to fill out. They can say whatever they like and even lie about how they objected or asked to be excluded even though they did nothing.

[flynbulldog]

You've hit the nail on the head Bill.

I Hate that I have to do this but this case has forced all to do something - even doing nothing is making your choice heard
I'm a Ducati guy, I don't want to be involved in this case. But I am.

[Sleepless]

FWIW, I think a few fact-based, well-written Objection letters will go further than a pile of poorly-writen, weakly argued opinions. So if you're going to write to the Court, put on you're thinking cap, and use spell-check too. Don't dilute the Objection pool!

Leave those high-paid lawyers from NYC with the impression that you can intelligently carry your side of the argument.

I have some Crayolas and line paper for your use if you feel the urge to write a letter of Support