MEMORANDUM ORDER AND DECISION ON PLAINTIFFS’ APPLICATION FOR CERTIFICATION OF SETTLEMENT CLASSES

This is a long-running consumer antitrust MDL lawsuit against major automobile manufacturers. The plaintiffs achieved early success by persuading Toyota Motor Sales (“Toyota”) and the Canadian Automobile Dealers’ Association (“CADA”) to settle in 2006 for over $35 million. Thereafter, the plaintiffs’ case started to go downhill. Although I certified litigating classes in March 2006, the First Circuit vacated those class certification orders in 2008. Ultimately, I *82granted summary judgment to all the remaining defendants in 2009. All that remains now, therefore, are the Toyota and CADA settlements. Consequently, the plaintiffs ask me to certify a national settlement class with respect to those two settlements so that they can distribute the funds.1 They seek certification of a class under Rule 23(b)(2) for the injunctive relief that Toyota and CADA have agreed to. They also seek certification under Rule 23(b)(3) of a nationwide damages class for the settlement funds. Toyota and CADA do not object. Nevertheless, following oral presentations2 on May 27, 2010, I conclude that Article III of the Constitution prevents me from certifying a class for injunctive relief. I do certify a nationwide damages settlement class under Rule 23(b)(3) because, at the time the parties settled, the plaintiffs had (and still have) a right to appeal my dismissal, based on Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), of their national indirect purchaser claims under the Sherman Act.3

Background

As summarized by the First Circuit in 2008, the plaintiffs’ basic claim is that from at least 2001 and continuing into 2003, the exchange rate between Canadian and United States currencies created arbitrage opportunities to sell lower-priced Canadian cars in the United States; and that, in the face of those arbitrage opportunities, automobile manufacturers including Toyota and trade associations including CADA engaged in illegal business practices to restrict what would have been the flow of Canadian cars into the United States, thereby maintaining U.S. prices at a higher level.4

On February 24, 2006, Toyota settled with the plaintiffs.5 In March and May 2006 and March 2007, I certified litigation classes for the rest of the lawsuit under Rule 23(b)(2) and (3).6 On September 6, 2006, CADA settled.7 As part of the settlements, Toyota paid $35,000,000 and CADA paid $700,000 into an interest bearing joint escrow account.8 Toyota and CADA both agreed not to conspire to violate the Sherman Act, 15 U.S.C. § 1, the Clayton Act, 15 U.S.C. § 26, and various state laws, or otherwise to prevent the importing of Canadian cars into the United States.9 CADA explicitly agreed to *83injunctive relief.10 The Toyota Settlement Agreement does not mention injunctive relief, but it says that the parties will agree upon the text of a final order and judgment.11 The draft certification order submitted by the plaintiffs proposes that I find that both “[defendants have acted or refused to act on grounds generally applicable to the Settlement Classes, thereby making appropriate final injunctive relief ... with respect to the Settlement Classes as a whole.”12 The parties have agreed that Toyota’s and CADA’s agreements not to enter antitrust conspiracies (and any associated injunctions against each of Toyota and CADA) will expire on December 31, 2011.13 The settlements contemplate global releases of the plaintiffs’ claims against Toyota and CADA.14

In March of 2008, the First Circuit vacated my 2006 litigation class certifications. It ruled that the 23(b)(2) injunctive class certification could not survive because of “lack of a live controversy between the parties such as would justify an injunctive remedy.”15 The court found that arbitrage opportunities disappeared as a result of significant changes in Canadian/United States exchange rates, and the plaintiffs had made no suggestion that any named plaintiff had an imminent intention of buying a new car during an arbitrage opportunity.16 It then dismissed the injunctive relief claim outright on account of mootness.17 The First Circuit ruled that the 23(b)(3) damages class certifications (for twenty states) should be vacated and reexamined after discovery was complete, focusing on the issue of whether the plaintiffs could use common proof to show antitrust impact or causation.18

In 2009, -without reaching the question whether litigation damages classes should be recertified, I granted summary judgment for the remaining defendants on all remaining counts.19 The plaintiffs did not appeal the summary judgment ruling.

In September 2009, the plaintiffs moved for certification of injunctive and damages settlement classes pursuant to Federal Rule of Civil Procedure 23(b)(2) and (b)(3) for the Toyota and CADA settlements and for scheduling a final approval hearing. Since that time, the plaintiffs have briefed the issues related to class certification extensively, and they have responded to my questions both in writing and orally at a hearing in May 2010.

*84Analysis

1. The 23(b)(2) Injunctive Class

To obtain certification of an injunctive class, the plaintiffs must satisfy the four threshold requirements of Rule 23(a) (numerosity, commonality, typicality, and adequacy of representation), and the specific requirements of Rule 23(b)(2).20 The requisite showing under Rule 23(b)(2) is that the defendants “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief ... is appropriate respecting the class as a whole.”21

But first, the plaintiffs must have standing to seek the relief they request. Standing is the “essential and unchanging part of the case-or-controversy requirement of Article III” that “a plaintiff must present an injury that is concrete, particularized, and actual or imminent!,] fairly traceable to the defendant’s challenged action!,] and redressable by a favorable ruling.”22

In vacating my earlier 23(b)(2) certification, the First Circuit emphasized that to have standing for injunctive relief, plaintiffs must “face a threat of injury that is both real and immediate, not conjectural or hypothetical.”23 The relevant question, it said, was not whether opportunities for arbitrage had permanently ended, but rather whether there was “any realistic current threat.”24 The First Circuit found that a realistic threat of injury ended sometime after May 2003 when the exchange rate between the Canadian dollar (“CAD”) and the United States dollar (“USD”) fell below a level that could support the kind of cross-border arbitrage opportunities that the plaintiffs allege.25 The decline in the exchange rate from 2003 to 2008 effectively ended a “perfect storm” of “exceptional arbitrage opportunities [that] arose early in [the 2000s] due to a combination of relaxed trade restrictions between the United States and Canada, physical harmonization of cars manufactured for the two markets, and a differential between the values of American and Canadian currencies.”26 Moreover, the First Circuit noted that the plaintiffs had not alleged that any of them class representatives intended to buy or lease a new vehicle any time soon.27 Thus, “there [was] nothing to suggest that any named plaintiff harbors an ‘imminent’ intention to buy a new car in coincidence with another ‘perfect storm’ of arbitrage-friendly market conditions.”28 Accordingly, the First Circuit vacated the Rule 23(b)(2) class certification “for lack of a live controversy between the parties such as would justify an injunctive remedy” and dismissed the federal injunctive claim altogether.29

The question, then, is the effect of that holding—eliminating any litigating class for federal injunctive relief—on the plaintiffs’ request here for a settlement class obtaining injunctive relief.30

*85The plaintiffs say that the First Circuit’s 2008 decision to vacate certification of the 23(b)(2) injunctive class should have no effect on my certification analysis because Toyota and CADA settled their claims in 2006.31 The issues before me now, they say, are whether there was jurisdiction in 2006 based on the “then-prevailing exchange rates,” and/or whether changes in the exchange rate after the First Circuit’s decision show that a realistic threat of harm exists now.32 They stress that when Toyota and CADA settled, the parties did not know whether exchange rates would rise or fall, they faced “significant risks,” and they “reached an informed settlement, after extensive good faith negotiations, in part to resolve those risks and avoid uncertainty.”33 They contend that loss of jurisdiction after a settlement has been reached does not remove the court’s jurisdiction to enforce the settlement over which it “properly had jurisdiction at the time the claims were settled.”34

In Ehrheart v. Verizon Wireless, 609 F.3d 590 (3d Cir. 2010), the Third Circuit held that the trial court could enforce a settlement of claims under the Fair and Accurate Credit Transaction Act, 15 U.S.C. § 1681c(g)(1), even though—after the settlement—Congress amended the law to eliminate the plaintiffs’ cause of action. Noting the “strong presumption in favor of voluntary settlement agreements,” the Ehrheart court concluded that it “is essential that the parties to class action settlements have complete assurance that a settlement agreement is binding once it is reached” and that where “the parties have executed an agreement, a party cannot avoid its independent contractual obligations simply because a change in the law confers upon it a benefit that could have altered the settlement calculus.”35

A month later, in Sullivan v. DB Investments, Inc., 613 F.3d 134 (3d Cir. 2010), on the other hand, the Third Circuit construed the First Circuit’s In re New Motor Vehicles decision as mandating that an injunctive settlement class must be de certified if the harm against which the injunction was sought had dissipated during the litigation.36 The Sullivan plaintiffs had alleged that the diamond conglomerate, De Beers, engaged in price fixing in violation of the Sherman Act, 15 U.S.C. §§ 1-2.37 Thereafter, De Beers entered into two settlement agreements that created a settlement fund of $295 million and provided for a stipulated injunction to restrain it from violating United States antitrust laws.38 The district court certified a 23(b)(2) injunctive class, but the Third Circuit vacated that certification, stating that “a defendant’s willingness to stipulate to liability for the purpose of effectuating a class action settlement does not relieve the Court of its independent obligation to ensure that the facts of the underlying case adequately establish a basis for liability.”39 The Third Circuit concluded that the plaintiffs lacked standing to seek injunctive relief because, “according to [the plaintiffs’] experts, the [diamond] market has become increasingly competitive from 2006 onward, and there is no longer any guarantee that the prices De Beers sets will hold in the marketplace.”40 Accordingly, it vacated the 23(b)(2) settlement class certification.

In Ehrheart, a ease or controversy indisputably existed when the plaintiffs settled their claims; the statute creating the right to recovery was amended only later.41 Here, *86however, as I explain below, the First Circuit’s analysis compels me to conclude that the case or controversy for injunctive relief had already disappeared at the time of these 2006 settlements. Although the plaintiffs, Toyota, and CADA all agreed to injunctive settlement classes and injunctive relief, parties cannot create federal court subject matter jurisdiction by agreement.42 As for the alternative argument, that exchange rates today have re-created case or controversy because of continuing fluctuations in the Canadian/United States exchange rates, the First Circuit’s analysis still compels me to conclude (as I explain below) that there is now no case or controversy for injunctive relief. I therefore find it unnecessary to decide whether to take Sullivan’s additional step, that a settlement injunctive class certified when jurisdiction did exist, must later be decertified when the case or controversy thereafter disappears.

I turn to the substance of the First Circuit’s 2008 decision. The court of appeals accepted my finding based on the plaintiffs’ expert’s affidavit that, after April 30, 2003, arbitrage opportunities that were significant enough to affect United States prices ended. The exchange rate then was $1.43 CAD to $1.00 USD.43 The First Circuit took judicial notice that only once in history had the exchange rate risen above $1.40 CAD to $1.00 USD for any significant period.44 That was between 1998 and 2003, “an apex unseen in at least the last half century.”45 Noting that after 2003 the exchange rate had not returned to a level that would support arbitrage, and had in fact been “in more or less steady decline”, the First Circuit concluded that in 2008 there was no “realistic current threat” of arbitrage and that the certification of an injunctive class was therefore moot.46

The plaintiffs argue that regardless of the situation in 2008, there was an injunctive relief case or controversy in 2006 when they settled with Toyota and CADA.47 They argue that “a later divestiture of jurisdiction does not affect [my] power to certify settlement classes and approve settlements of claims over which [I] properly had jurisdiction at the time the claims were settled.”48 But the standard announced by the First Circuit was “any realistic current threat.”49 By the time of the Toyota and CADA settlements, February and September 2006 respectively, the exchange rate had already fallen for three years and was well below arbitrage levels.50 *87While opportunities for arbitrage may not have ended permanently, they were nevertheless not real and immediate in 2006. There was no “imminence” to the threat of future arbitrage opportunities. Since “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects,”511 conclude, contrary to my prior ruling, that the plaintiffs did not have standing to seek certification of an injunctive class in 2006.52

The plaintiffs say, however, that after the First Circuit’s decision, the exchange rate again changed sharply. Specifically, it rose from $1.04 CAD/$1.00 USD on September 29, 2008 to $1.29 CAD/$1.00 USD on October 27, 2008.53 At the hearing in May 2010, the plaintiffs urged me to take judicial notice of these changes and argued that for a time, the higher “currency exchange rates clearly favored a flow of vehicles, should other market conditions permit, from Canada to the United States.”54

The United States Federal Reserve Board statistics to which the plaintiffs refer, however, show that the exchange rate never climbed back to, or even approached, pre2003 arbitrage levels. The rate peaked at around $1.30 CAD/$1.00 USD in March 2009 and subsequently fell back to levels on a par with those that the First Circuit observed.55 Based on the logic of the First Circuit’s decision, the currently existing rate, and the fact that in more than seven years the rate has not approached levels sufficient for arbitrage, I cannot conclude that the plaintiffs now face a realistic, imminent threat of losing the benefit of price competition that arbitrage could provide.56

Since there was no case or controversy in support of the injunctive relief claim either at the time of settlement or at any time from then until now, the plaintiffs’ request for certification of a nationwide injunctive settlement class under Rule 23(b)(2) is Denied.

2. The 23(b)(3) Damages Class

In 2006, I certified separate damages classes under Rule 23(b)(3) for each of five states, and in 2007, I certified an additional fifteen state damage classes, for a total of twenty.57 The premises for certifying classes state by state, and then only as to some states, were my rulings that there was no federal damages remedy and that in many states, state law likewise did not allow damages recovery. The First Circuit vacated those state damages class certifications until discovery was completed so that I could reexamine on a complete record whether antitrust impact (causation) could be determined by common proof across a particular class.58

*88Here, I face a different question: whether to certify a nationwide damages class for purposes of these two settlements. The plaintiffs say, properly, that even though I ruled against their federal damages claim in 2004 because of my reading of Illinois Brick, they could appeal that ruling. Therefore, it was open to Toyota and CADA to demand compromise of that nationwide claim (as well as claims for states where I had ruled that damages could not be recovered) as part of their willingness to settle with the plaintiffs, despite my rulings. I have previously recognized the validity of that proposition.59 I proceed, therefore, to examine whether the plaintiffs satisfy the Rule 28 criteria for their proposed nationwide damages class. Since the First Circuit has not yet decided that a trial court at certification must make findings by a preponderance of the evidence, I follow the standard of a “searching inquiry into the viability” of the plaintiffs’ rationale for certification and “the existence of the facts necessary for the [rationale] to succeed.”60

(a) Rule 23(c)(1) Numerosity

I found previously the numerosity criterion satisfied for the individual state damages classes.61 It goes without saying that it is satisfied for a nationwide damages class.

(b) Rule 23(c)(2) Commonality

In my litigation class certifications, I found that

there [was] no dispute that some claims of the members of each proposed class involve “questions of law or fact common to the class.” On the factual level, common questions include whether any of the defendants agreed among themselves to restrict Canadian car exports to the United States so as to protect United States prices and, if so, whether that agreement affected the prices that manufacturers posted as their dealer invoice prices and their suggested resale prices.62

That finding applies to the proposed nationwide damages class as well. On the legal level, there is also the common question whether the activity violated the Sherman Act and whether these plaintiffs and the class they represent have any right to recover. (Although I ruled against them on account of Illinois Brick, that ruling is still subject to appeal.) There are also non-common questions, of course, particularly the difference as to which state laws permit damage recovery. I will assess those non-common questions under the predominance inquiry below. I also recognize that in Sullivan, the Third Circuit vacated a nationwide damages class for state indirect purchaser claims, stating that “there can be no certification of a nationwide class of state indirect purchaser plaintiffs because there is no common question of law or material fact.”63 But in Sullivan, unlike this case, no federal damages claim was ever asserted. Moreover, the nationwide damages class certified in Sullivan made no distinction among those states that permitted damages recovery and those that did not.64 Both of those conditions are satisfied for the proposed nationwide damages class here.

(c) Rule 23(a)(3) Typicality

In my litigation class certification, I focused primarily on the proof of antitrust causation or impact under this criterion of typicality.65 I will address that topic under predominance, as the First Circuit did on appeal.66 Here, it suffices to say under typicality that the claims of the named plaintiff purchasers are typical of the class: that they bought or leased new cars at prices that were higher than they should have been because *89the defendants illegally conspired to keep lower priced Canadian cars out of the U.S. market.

(d) Rule 23(a)(4) Adequacy of Representation

Under this criterion, the question is whether “the representative parties will fairly and adequately protect the interests of the class.”67

Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), warns specifically about conflicts of interest within a settlement class. In Am-chem, the Court concluded that the settlement there improperly “achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected.”68 It is difficult to apply this element of Amchem to the facts of this case. Here, I am asked to certify a nationwide damages settlement class for the period 2001 through 2006. The settlement agreements themselves do not distinguish among class members. They are simply lump sum settlements, with no reference to allocation of proceeds. In Amchem, by contrast, the settlement agreement that the parties negotiated “does more than simply provide a general recovery fund[;] ... rather, it makes important judgments on how recovery is to be allocated among different kinds of plaintiffs, decisions that necessarily favor some claimants over others.”69 But although the settlement agreements here do not distinguish among class members, there are previous judicial rulings that do draw distinctions, allowing for damages recovery in some states but not others and for only a portion of the class time period. The allocation plan that the plaintiffs now propose for examination at the fairness hearing (if a class is certified) reflects those distinctions in proposing which class members will be able to have a cash recovery. If Amchem means that because of those distinctions, a putative subclass had to be in existence (“structural assurance”) when the settlement agreement was first negotiated,70 that did not occur here. If Amchem means that at the time of settlement negotiation there had to be at least one named plaintiff from each segment of the class that might receive different treatment in the ultimate proposed allocation of settlement proceeds, that did occur here, but some of them are no longer named class representatives .71

What is important here, I conclude, is that unlike Amchem, the distinctions that now appear within the class result from previous judicial rulings based upon conventional adversarial arguments. At the outset, the plaintiffs argued strenuously that they should be able to recover nationwide damages under their federal antitrust claim. The defendants resisted that argument, and I ruled in the defendants’ favor.72 Next, the plaintiffs argued strenuously for damages in every jurisdiction based upon state law. The defendants resisted that argument, and I ruled partly in favor of each, finding that damages were available in some jurisdictions, not in *90others.73 Next there was prolonged argument over both causation and when the class should close and, in that connection, the scope and length of the arbitrage opportunity. That controversy provoked rulings both here and in the court of appeals. The ultimate conclusion that buyersAessees outside the twenty states and the January 1, 2001 to April 30, 2003, time period lack a successful damages claim comes from those rulings based upon strong adversarial presentations.

In other words, this proposed class and how it came about are very different from what concerned the Supreme Court and the Third Circuit in Amchem. In Amchem, the representative plaintiffs and their lawyers, holding thousands of “inventory” cases of asbestos-related injuries, agreed with the defendants to compromise, in addition, a host of “future” claims, namely, claims on behalf of anyone who (or a spouse or family member) had been exposed to asbestos but had not yet made any claim74 As the Supreme Court said, there was never any intent to litigate the Amchem class action (the lawsuit was filed simultaneously with the settlement).75 In Amchem, the distinctions made within the class were not the product of judicial rulings, but created by the settlement itself.76 By contrast, this lawsuit has been intensively and extensively litigated from start to finish. These two settlements are only a minimal part of it. The settlements themselves do not distinguish among class members. If distinctions among class members are made, it will be as a result of previous judicial rulings and only after court approval following a fairness hearing.

The claims in Amchem too were quite different from those here. Amchem's asbestos personal injury claims would typically be of a size large enough to justify independent legal representation and lawsuits. The plaintiffs’ lawyers who negotiated the Amchem settlement had attorney-client relationships with the claimants in their “inventory” cases, but none with the claims not yet made, which they wanted to settle.77 Hence, the courts’ concern with the overbroad class definition.78 Here, by contrast, the size of the individual claims does not justify an independent lawsuit and representation for any claim. These claims proceed by class action, or they do not proceed at all.

Moreover, unlike the Third Circuit’s and the Supreme Court’s conclusion in Amchem, I conclude that the “absentees’ interests” and the diverse individuals and groups within that category here have been fairly and adequately, indeed strenuously, represented to date. This is not the case feared by the Supreme Court of a trial judge “facfing] a bargain proffered for its approval without benefit of adversarial investigation.”79 Are there now, at the allocation stage, conflicts within the class? Arguably, in the pending proposal that only purchasersAessees in certain states during certain years will get any recovery; certainly I will hear any objectors on that topic at the fairness hearing. But I conclude that it makes little sense at this stage to hire more lawyers to represent individual segments of this overall class.80 Their fees would only further reduce the recovery *91available to consumers, and the issues about recovery have already been thoroughly explored and resolved. The Principles of the Law of Aggregate Litigation usefully frame the court’s obligation on this point as follows:

Determine that there are no structural conflicts of interest ... among the claimants themselves that would present a significant risk that the lawyers for claimants might skew systematically the conduct of the litigation so as to favor some claimants over others on grounds aside from reasoned evaluation of their respective claims or to disfavor claimants generally vis-a-vis the lawyers themselves.81

I conclude that “the representative parties will fairly and adequately protect the interests of the class.”82

(e) Rule 23(b)(3) Factors: Predominance and Superiority

To satisfy Rule 23(b)(3), a court must find “that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”83

Superiority is easy. There is no other way to adjudicate this controversy. Individual damages are too small to justify a lawsuit. Only a class action can or will lead to adjudication of these claims.

Predominance is somewhat more difficult. Here, the existence of a conspiracy, the existence of favorable arbitrage opportunities, the effect on competition and pricing, the effect of legal vertical restraints, and the recoverability of federal damages are all questions common to the class.

Questions that are not common to the nationwide class are recoverability of damages under various state laws (I have already ruled which states permit recovery and which do not, so that will not be a management issue, but it is a matter of law that is not “common” to the class); and individual damages in the sense of how the pricing of a particular purchase or lease was affected. As I pointed out in my earlier certification, First Circuit precedents are clear that individual damages determinations alone do not prevent class certification.84 Indeed, “[p]re-*92dominance is a test readily met in certain cases alleging consumer ... fraud or violations of the antitrust laws.”85 Moreover, “Rule 23(b)(3) requires merely that common issues predominate, not that all issues be common to the class.”86 To be sure, the broadening of the class as now proposed introduces a new difference, in the effect of the arbitrage opportunities during time periods when the exchange rate was no longer creating the “perfect storm.” I continue to find, nevertheless, that the common questions predominate so far as management of the case is concerned.

What troubled the First Circuit when it vacated the earlier litigation class certifications was whether antitrust impact—causation—could be proven by evidence common to the class, or whether individual proof would be required for each purchase or lease.87 If the latter, a litigation class could not be certified because common issues would not predominate.

To the extent that the First Circuit’s concern had to do with trial management, it is no longer pertinent because there will be no trial.88 The Supreme Court has said that “[cjonfronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems.” 89

Moreover, at summary judgment I specifically observed that the proof on which the plaintiffs relied was common.90 I ruled that with common proof the plaintiffs had enough to get to a jury on the existence of a conspiracy; its effect on new motor vehicle prices during the period of January 1, 2001, to April 30, 2003; their assertion that without the conspiracy automakers would have lowered their U.S. new vehicle effective list prices (i.e., enough Canadian ears poised on the border to make a difference); and their assertion that legal vertical restraints would have disappeared.91 I ruled that the plaintiffs also had common evidence on the next step, to show that customers actually paid higher transaction prices, but I found the common proof insufficient to get to a jury on the final stage, of showing causation as to every member of the putative class.92

To the extent that the First Circuit’s concern about certification goes instead to deeper questions concerning the necessary unity of a class, or in Amchem,’ s words, “whether proposed classes are sufficiently cohesive to warrant adjudication by representation,”93 I address it here, in connection with the general teachings of Amchem.

Amchem warns about the risk of overly broad class definitions in a proposed settlement class.94 It says that in a settlement class, a court “will lack the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they *93unfold.”95 That particular Amchem warning is not pertinent here because, unlike Am-chem, this is not a settlement proposed at the outset of the lawsuit. Instead, here over the very lengthy course of the litigation, I have made rulings on all the substantive recovery issues, discovery has been completed in full, and summary judgment has been filed and decided. In short, I have ruled on virtually all the issues. So unlike Amchem, I do have the opportunity to make an informed adjustment of the class.

Indeed, the progress of this lawsuit has revealed pretty much everything that is pertinent. In the end, it comes down to this: Toyota and CADA bought a settlement binding purchasers and lessees in all states and for the years 2001 through 2006. The parties know from my pretrial rulings that only twenty states allow damages recovery, and they know from discovery and the First Circuit decision that factually the alleged conspiracy could affect retail prices only from January 1, 2001 to April 30, 2003. In addition, the plaintiffs have preserved appeal rights as to my Illinois Brick ruling denying Sherman Act damages. (Appellate reversal of that decision would affect the ability of purchasers in other states to recover, but would not affect the dates when prices were concretely affected.)

The plaintiffs now propose to deal with the variations within the nationwide class by providing for cash payments only to purchasers in the twenty states that allow damages recovery and only for the January 1, 2001 to April 30, 2003 period when prices were affected.96 They have a formula from their expert that will assign damages based upon a car’s manufacturer, model, and year of purchase.97 But because the damage settlement class Toyota and CADA bargained for is nationwide and covers a broader time period, the plaintiffs propose to recognize those class members who will not receive money by establishing a cy pres fund of $500,000 (they propose that it could grow as high as $1 million) to be donated to organizations or government agencies that advocate for or educate consumers, especially car purchasers.98 I have not yet approved the plan of allocation and will not do so until public notice to the class and a fairness hearing take place.

So is there “sufficient unity” in the proposed nationwide class to justify binding absent members who fail to opt out?99 Aside from trial management (no longer a concern here), Amchem speaks of the “specifications of the rule” as “those designed to protect absentees by blocking unwarranted or over-broad class definitions.”100

I have little guidance on what is “sufficient unity” or an “unwarranted or overbroad class definition.” Would a damages class limited to twenty states and January 1, 2001 to April 30, 2003 be cleaner now that we know the full factual and legal development of the case? Yes. But at the time the parties negotiated this settlement, more was in play. It is not surprising that defendants would demand wider protection as a condition of paying money.101 Worrying that too many members are included in this class seems an unrealistic theoretical exercise. Given the small size of the individual claims and the complexity of the basis for recovery, no one would pursue these claims on his or her own, and statutes of limitations have by now eliminated most of them anyway. Practically speaking, there is no claim unless the class action lawyers handle it, and no one is prejudiced by failing to opt out. I conclude that the settlement class definition is not unwarranted or overbroad. Instead, it has sufficient unity in its claim of an illegal conspiracy to block Canadian im*94ports so as to maintain United States prices; and the lengthy adversarial examination of liability and recovery issues over the past seven years provides a basis reasonably to evaluate the class members’ claims and review the proposed plan of allocation to reflect differences within the nationwide class and the class period.

I conclude, therefore, that a 23(b)(3) nationwide damages class should be certified for the period January 1, 2001, to December 31, 2006. Resolution of the allocation questions will not occur until after the fairness hearing under Rule 23(e)(2).

Conclusion

I am prepared to certify a nationwide 23(b)(3) damages class, but not a 23(b)(2) injunctive class. As a result, I do not know how this ruling affects the Toyota and CADA settlements generally. The CADA settlement agreement includes injunctive relief explicitly. The Toyota agreement does not. At the May 2010 hearing, the plaintiffs’ lawyer represented that “anything short” of a “release that is 50[-]state and nationwide and releases [Toyota and CADA] from all the claims that both could be brought for injuncfive relief as well as damages” would deny the defendants the benefit of their bargain.102 But in counsel’s letter of July 23, 2010, he stated that the “Toyota and CADA settlements could and should still go ahead under Rule 23(b)(3)” even in the absence of a 23(b)(2) class.103 I do not know which is correct.

If the settlements do survive and the matter proceeds, counsel shall prepare an Order that complies with Rule 23(c)(1)(B), noting particularly the Third Circuit’s criticism of the failures of the Order in Sullivan, 613 F.3d at 148. I also have a handful of remaining questions for counsel to answer before I schedule the final fairness hearing and approve issuing class notice.104 Some of them can be answered in writing; others may deserve discussion on a conference call. Counsel can ask the Clerk’s Office to schedule such a conference call if the matter is proceeding.

So Ordered.