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White v. General Motors Corporation11/3/2000
ail-out.
TRIAL COURT'S AUTHORITY TO SELECT EXPERIAN, INC. TO PERFORM FINAL NOTICE AND CLAIM FORM MAIL-OUT FUNCTION
In assignment of error number three, GMC contends the trial court erred in selecting an entity known as Experian to perform the final notice/claim form mail-out function for the settlement of the class action claims.
According to the settlement agreement, entities other than the parties would be involved in steps necessary to implement the settlement. Under Section VII.2(d), the preliminary notice of settlement was to be printed and mailed to the settlement class by entities selected by GMC; under Section III, an entity or entities selected by Class Counsel and GMC, subject to court approval, would receive proofs of claims from settlement class members and issue certificates (original certificate function); under Section III.D, an entity or entities selected by Class Counsel and GMC, and approved by the court, would process third party certificate requests (third party certificate function); and under Section VII.7, the entity or entities selected to print and mail the preliminary notice (as provided in Section VII.2(d)) would also print and mail the final notice of settlement (final notice/claim form function).
On March 22, 1999, the parties stipulated in open court that Moore would perform the original certificate function and the third party certificate function, subject to its meeting the lowest responsible bid requirements. No mention was made of the final notice/claim form function at the March 22, 1999 hearing. The trial court approved the stipulation and adopted it as the order of the court.
On April 1, 1999, the trial court issued an order, amending the stipulation of counsel and its March 22, 1999 oral order. In the April 1, 1999 order, Moore's responsibility was changed to handling the final notice/claim form function, if it were able to meet the lowest responsible bid, and the third party certificate function, but GMC was ordered to select the entity to perform the original certificate function. In the event Moore did not agree to meet the lowest bid, the April 1, 1999 order provided the lowest responsible bidder was selected to perform the final notice/claim form function.
On June 10, 1999, Class Counsel notified the trial court and other counsel by telecopy transmission that Moore was "no longer willing to perform any of the [mail-out] functions." At the June 18, 1999 hearing, Class Counsel offered into evidence a letter dated June 17, 1999, from Steve Elliott, National Vice President of Sales for Experian, in which Mr. Elliott confirmed "Experian's in-house capabilities to produce the Final Notice/Application for Certificate Mailing in connection with the GM C/K Pick-up Truck Settlement." Mr. John Jira, an Experian employee, also testified at the hearing. Mr. Jira testified Experian was capable of handling all three of the mail-out functions required by the settlement agreement.
In its June 21, 1999 order, the trial court ordered that Experian was chosen to perform the final notice/claim form function, the original certificate function, and the third party certificate function. The trial court further ordered GMC to mail the final notice/claim form "through Experian, having met the low bid requirement." In its June 21, 1999 findings of fact, the trial court stated the following regarding the replacement of Moore with Experian:
8. The Court, acknowledging that its order of April 1, provided, that if Moore agreed to meet the lowest responsible bid, was selected for the [final notice/claim form function]. The Court was advised that, although, Moore met the terms of the lowest responsible
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