EASTERN DISTRICT OF NEW YORK 06-MD-1775 (BMC) … Dkt 2461 Mot for Prelim... · 423 Sumac Road Highland Park, IL 60035 ... international comity, ... Lufthansa Cargo AG, and Swiss

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK

IN RE

AIR CARGO SHIPPING SERVICESANTITRUST LITIGATION

MDL No. 1775

06-MD-1775 (BMC) (VVP)

THIS DOCUMENT RELATES TO:All Actions

ORAL ARGUMENT REQUESTED

PLAINTIFFS’ NOTICE OF MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT

WITH DEFENDANT AIR INDIA LTD

PLEASE TAKE NOTICE THAT, upon the Declaration of Brent W. Landau in Support

of Plaintiffs’ Motion for Preliminary Approval of Settlement with Defendant Air India Ltd.,

dated May 19, 2016, along with its supporting exhibit, the Memorandum of Law in Support of

Plaintiffs’ Motion for Preliminary Approval of Settlement with Defendant Air India Ltd., dated

May 19, 2016, and all prior papers and proceedings, Plaintiffs will move this Court on a date and

time to be set by the Court, before the Honorable Brian M. Cogan, United States District Judge,

in courtroom 8D South at the United States Courthouse, 225 Cadman Plaza East, Brooklyn, New

York, pursuant to Rule 23 of the Federal Rules of Civil Procedure, to enter an order:

(1) Preliminarily approving the Settlement Agreement between plaintiffs and Air India Ltd. with an Execution Date of May 17, 2016 on the grounds that its terms are sufficiently fair, reasonable, and adequate for notice to be issued to the Class;

(2) Ordering Class Counsel to submit at a later date proposed notices for approval by the Court of the form of notice and the notice plan;

(3) Approving The Garden City Group as administrator of the settlement, and Citibank N.A. as escrow agent; and

(4) Granting such other and further relief as may be appropriate.

Oral argument on this motion, if any, will be held on a date and time set by the Court.

Case 1:06-md-01775-BMC-VVP Document 2461 Filed 05/19/16 Page 1 of 2 PageID #: 111613

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Dated: May 19, 2016 Respectfully submitted,

Robert N. Kaplan Gregory K. ArensonElana KatcherKAPLAN FOX & KILSHEIMER LLP850 Third Avenue, 14th FloorNew York, NY 10022(212) 687-1980

Gary L. Specks KAPLAN FOX & KILSHEIMER LLP423 Sumac RoadHighland Park, IL 60035(847) 831-1585

By: /s/ Robert N. Kaplan

Michael D. HausfeldBrent W. LandauHilary K. ScherrerMelinda R. CoolidgeHAUSFELD LLP1700 K Street, N.W., Suite 650Washington, DC 20006(202) 540-7200

By: /s/ Brent W. Landau

Hollis L. Salzman Meegan F. HollywoodROBINS KAPLAN LLP601 Lexington Ave, Suite 3400New York, NY 10022Telephone: (212) 980-7400Facsimile: (212) 980-7499

By: /s/ Hollis L. Salzman

Howard J. SedranAustin B. CohenKeith J. VerrierLEVIN, FISHBEIN, SEDRAN & BERMAN

510 Walnut StreetPhiladelphia, PA 19106(215) 592-1500

By: /s/ Howard J. Sedran

Class Counsel

Case 1:06-md-01775-BMC-VVP Document 2461 Filed 05/19/16 Page 2 of 2 PageID #: 111614


IN RE


MDL No. 1775

Master File 06-MD-1775 (BMC) (VVP)


MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT

WITH DEFENDANT AIR INDIA LTD.

Case 1:06-md-01775-BMC-VVP Document 2461-1 Filed 05/19/16 Page 1 of 18 PageID #: 111615

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TABLE OF CONTENTSPage

I. INTRODUCTION .............................................................................................................. 1

II. BACKGROUND ................................................................................................................ 1

A. The Litigation................................................................................................................ 1

B. Settlement Negotiations ................................................................................................ 4

1. The Class............................................................................................................5

2. The Settlement Fund ..........................................................................................5

3. The Release........................................................................................................6

III. ARGUMENT...................................................................................................................... 7

A. The Settlement of Complex Litigation Is Favored ....................................................... 7

B. The Proposed Settlement Exceeds the Standards for Preliminary Approval................ 7

1. The Proposed Settlement Is the Result of Arm’s-Length Negotiations Conducted by Highly Experienced Counsel.................................9

2. The Proposed Settlement Falls Within the Range of Possible Approval. .........................................................................................................11

C. Notice to the Class ...................................................................................................... 12

IV. PRELIMINARY APPROVAL ORDER .......................................................................... 12

V. CONCLUSION................................................................................................................. 13


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TABLE OF AUTHORITIES

Page(s)

Cases

In re Air Cargo Shipping Servs. Antitrust Litig.,240 F.R.D. 56 (E.D.N.Y. 2006) ...............................................................................................10

In re Air Cargo Shipping Servs. Antitrust Litig.,No. 06-md-01775, 2011 WL 2909162 (E.D.N.Y. July 15, 2011) .................................7, 10, 11

In re Air Cargo Shipping Servs. Antitrust Litig.,No. 06-md-1775, 2009 WL 3077396 (E.D.N.Y. Sept. 25, 2009)....................................7, 9, 11

In re Air Cargo Shipping Servs. Antitrust Litig.,No. 06-md-1775, 2012 WL 3138596 (E.D.N.Y. Aug. 2, 2012) ..............................................10

Bano v. Union Carbide Corp.,273 F.3d 120 (2d Cir. 2001).......................................................................................................7

Bourlas v. Davis Law Assocs.,237 F.R.D. 345 (E.D.N.Y. 2006) ...........................................................................................7, 9

In re Chambers Dev. Sec. Litig.,912 F. Supp. 822 (W.D. Pa. 1995)...........................................................................................12

City of Detroit v. Grinnell Corp.,495 F.2d 448 (2d Cir. 1974).................................................................................................9, 12

In re Currency Conversion Fee Antitrust Litig.,No. 01 MDL 1409, 2006 WL 3247396 (S.D.N.Y. Nov. 8, 2006) .............................................8

In re Global Crossing Sec. & ERISA Litig.,225 F.R.D. 436 (S.D.N.Y. 2004) .....................................................................................7, 8, 11

In re Joint E. & S. Dists. Asbestos Litig.,878 F. Supp. 473 (E.D.N.Y. 1995) ..........................................................................................10

In re Med. X-Ray Film Antitrust Litig.,No. CV 93-5904, 1997 WL 33320580 (E.D.N.Y. Dec. 26, 1997) ............................................8

In re NASDAQ Mkt.-Makers Antitrust Litig.,176 F.R.D. 99 (S.D.N.Y. 1997) .......................................................................................1, 8, 11

In re NASDAQ Mkt.-Makers Antitrust Litig.,187 F.R.D. 465 (S.D.N.Y. 1998) .......................................................................................10, 11


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In re PaineWebber Ltd. P’ships Litig.,171 F.R.D. 104 (S.D.N.Y. 1997), aff’d, 117 F.3d 721 (2d Cir. 1997).....................................10

In re Sterling Foster & Co. Sec. Litig.,238 F. Supp. 2d 480 (E.D.N.Y. 2002) .....................................................................................10

In re Twinlab Corp. Sec. Litig.,187 F. Supp. 2d 80 (E.D.N.Y. 2002) .......................................................................................10

Wal-Mart Stores, Inc. v. Visa U.S.A. Inc.,396 F.3d 96 (2d Cir. 2005).........................................................................................................8


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I. INTRODUCTION

Plaintiffs have negotiated a settlement with defendant Air India Ltd. (“Air India”) in the

amount of $12,500,000.00 (the “Settlement Amount”).1 Because this is an excellent result for the

Class, plaintiffs seek preliminary approval of this settlement under Federal Rule of Civil

Procedure 23(e). At the preliminary approval stage, the Court only determines if, on its face, the

proposed settlement is “at least sufficiently fair, reasonable and adequate to justify notice to

those affected and an opportunity to be heard” or, put another way, the Court is to make sure that

the settlement is within the range of possible approval. See In re NASDAQ Mkt.-Makers Antitrust

Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997) (“NASDAQ I”). As detailed below, the settlement is

well within the range for possible approval and should be preliminarily approved by this Court

under Rule 23(e).

II. BACKGROUND

A. The Litigation

This litigation began in early 2006. The First Consolidated Amended Complaint, filed in

February 2007, named more than two dozen defendant air carriers. After extensive motion

practice directed at the First Consolidated Amended Complaint, on August 21, 2009 (ECF No.

938), the Court denied the defendants’ motions to dismiss.

Additional defendants (including Air India) were named in complaints filed on February

12, 2010, and July 26, 2010. See Civil Action No. 10-CV-0639, ECF No. 1; Civil Action No. 10-

CV-3398, ECF No. 1. Plaintiffs alleged that the defendants, including Air India, conspired to

unlawfully fix prices of airfreight shipping services worldwide, including on cargo shipments to,

from, and within the United States, by, among other things, concertedly levying agreed-upon,

1 All terms used in this Memorandum and accompanying documents have the same meaning as

defined in the Settlement Agreement.


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artificially inflated surcharges in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. The

additional defendants’ motions to dismiss were denied by the Court on November 1, 2010. The

parties completed extensive discovery, including the production of more than 18 million pages of

documents and more than 90 depositions around the globe.

After extensive briefing, numerous expert depositions, and a three-day evidentiary

hearing, including 20 hours of expert testimony held before Magistrate Judge Pohorelsky, on

October 15, 2014, Magistrate Judge Pohorelsky issued a 114-page Report and Recommendation

recommending that plaintiffs’ motion for class certification be granted. See ECF. No. 2055 (the

“Class Cert. R&R”). Magistrate Judge Pohorelsky also recommended that plaintiffs’ motion to

strike certain opinions of defendants’ experts David P. Kaplan and Dr. Michelle Burtis be

granted in part. See id. at 46-47. On July 10, 2015, the Class Cert R&R was adopted in its

entirety by the Court over defendants’ objections. See ECF No. 2282 (as amended on August 3,

2015 (ECF No. 2326)). Defendants sought to appeal under Rule 23(f), but, on November 3,

2015, the Second Circuit denied the motion. See Case 15-2361, Document 36. Per the Court’s

order of November 6, 2015, plaintiffs then sent a notice to class members informing them of the

Court’s ruling certifying the Class and setting January 22, 2016 as the date by which potential

class members’ election to opt out of the litigation class needed to be postmarked. See ECF No.

2370, ¶ 6.

Plaintiffs and the then remaining defendants filed summary judgment motions on April

24, 2015. Plaintiffs’ motions concerned the affirmative defenses of state action, act of state,

foreign sovereign compulsion, international comity, filed rate, and Noerr-Pennington.

Defendants Air India, Air China, Air New Zealand and Polar Air Cargo, LLC each filed a

motion based on its alleged non-involvement in the alleged world-wide conspiracy. All


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remaining defendants, including Air India, jointly filed a motion for partial summary judgment

on plaintiffs’ security surcharge claims. Defendants Air India, Air China, and Air New Zealand

jointly filed a motion for summary judgment for a purported failure to prove antitrust damages

caused by the alleged conspiracy and for damages allegedly barred by the statute of limitations.

On August 31, 2015, the Court denied defendants’ motions for summary judgment and

granted all of plaintiffs’ motions for judgment on defendants’ affirmative defenses. See ECF No.

2342 (minute entry).

Thus far, the Court has granted final approval to 25 settlements2 and preliminary approval

2 (1) Deutsche Lufthansa AG, Lufthansa Cargo AG, and Swiss International Air Lines Ltd.

(collectively “Lufthansa”): $85 million, plus the cost of providing notice to the class and cooperation (final approval granted September 25, 2009 (ECF No. 963)) (unlike subsequent settlements, which include payments only to direct purchasers, the Lufthansa settlement included payments both to direct and indirect purchasers); (2) Société Air France (“Air France”), Koninklijke Luchtvaart Maatschappij N.V. (“KLM”), and Martinair Holland N.V. (“Martinair”) (collectively “Air France/KLM”): $87 million, plus notice costs up to $500,000 and cooperation (final approval granted March 14, 2011 (ECF No. 1414)); (3) JAL: $12 million, plus cooperation (final approval granted March 14, 2011 (ECF No. 1417)); (4) AMR Corporation and American Airlines, Inc. (collectively, “AA”): $5 million, plus the cost of providing notice to the class and cooperation (final approval granted March 14, 2011 (ECF No. 1413)); (5) Scandinavian Airlines System and SAS Cargo Group A/S (collectively, “SAS”): $13.93 million, plus notice costs up to $500,000 and cooperation (final approval granted effective March 17, 2011 (ECF No. 1416)); (6) All Nippon Airways Co., Ltd. (“ANA”): $10.4 million, plus cooperation (final approval granted July 15, 2011 (ECF No. 1524)); (7) Cargolux Airlines International S.A. (“Cargolux”): $35.1 million, plus notice costs of up to $150,000 and cooperation (final approval granted July 15, 2011 (ECF No. 1524)); (8) Thai Airways International Public Company Limited (“Thai”): $3.5 million plus cooperation (final approval granted July 15, 2011 (ECF No. 1524)); (9) Qantas Airways Limited (“Qantas”): $26.5 million, plus notice costs of up to $250,000 and cooperation (final approval granted August 4, 2011 (ECF No. 1524)); (10) LAN Airlines, S.A., LAN Cargo S.A., and Aerolínhas Brasileiras, S.A. (“LAN/ABSA”): $66 million, plus notice costs up to $150,000 and cooperation (final approval granted August 2, 2012 (ECF No. 1732)); (11) British Airways PLC (“BA”): $89.512 million, plus notice costs up to $500,000 and cooperation (final approval granted August 2, 2012 (ECF No. 1732)); (12) Malaysia Airlines (“Malaysia”): $3.2 million, plus $150,000 toward the cost of notice and settlement administration and cooperation (final approval granted August 2, 2012 (ECF No. 1732)); (13) South African Airways (“SAA”): $3.29 million plus $150,000 toward the cost of notice and settlement administration and cooperation (final approval granted August 2, 2012 (ECF No. 1732)); (14) Saudi Arabian Airlines, Ltd. (“Saudia”): $14 million and cooperation (final approval granted August 2, 2012 (ECF No. 1732)); (15) Emirates: $7.833 million and cooperation (final approval granted August 2, 2012 (ECF No. 1732)); (16) El Al Israel Airlines Ltd. (“El Al”): $15.8 million and cooperation (final approval granted August 2, 2012 (ECF No. 1732)); (17) Air Canada and AC Cargo LP (collectively, “Air Canada”): $7.5 million and cooperation (final approval granted August 2, 2012 (ECF No. 1732)); (18) Salvatore Sanfilippo (“Sanfilippo”), a managerial employee of Defendant Air New Zealand: cooperation


4

to two additional settlements.3 A motion for preliminary approval of the settlement with Air New

Zealand is pending. ECF No. 2459.

B. Settlement Negotiations

The plaintiffs engaged in settlement negotiations with Air India intermittently throughout

the last five years with little progress. See Declaration of Brent W. Landau in Support of Plaintiffs’

Motion for Preliminary Approval of Settlement with Defendant Air India Ltd., dated May 19, 2016

(“Landau Decl.”) ¶ 2. The parties then agreed to hold an all-day mediation before Eric D. Green,

a well-known mediator. Id. ¶ 3. The mediation was scheduled shortly before plaintiffs’ depositions

of Air India’s trial experts were to take place, and was attended by plaintiffs’ Co-Lead Counsel,

counsel for Air India, and four senior Air India executives, two of whom traveled from India. Id.

¶ 4.

During the mediation, the parties exchanged multiple offers and counteroffers, eventually

agreeing to the key terms of the settlement. Id. ¶ 5. The mediation culminated in execution of a

Memorandum of Understanding, subject to the approval of Air India’s board of directors. Id.

Following approval by the board, and additional negotiations regarding the terms of the settlement

agreement, counsel for plaintiffs and counsel for Air India signed the Settlement Agreement with

an execution date of May 17, 2016. Id. ¶ 6.

(final approval granted August 2, 2012 (ECF No. 1732)); (19) Korean Air Lines Co., Ltd.: $115 million and cooperation (ECF No. 2362); (20) Singapore Airlines Limited and Singapore Airlines Cargo PTE, Ltd. (“Singapore”): $92.5 million and cooperation (ECF No. 2362); (21) Cathay Pacific Airways Limited: $65 million and cooperation (ECF No. 2362); (22) China Airlines, Ltd.: $90 million and cooperation (ECF No. 2362); (23) Asiana Airlines, Inc.: $55 million and cooperation (ECF No. 2447); (24) Nippon Cargo Airlines Co., Ltd.: $36.35 million, plus $200,000 in notice costs and cooperation (ECF No. 2446); and (25) EVA Airways Corporation: $99 million, plus $200,000 in notice costs and cooperation (ECF No. 2445).

3 (1) Polar Air Cargo LLC, Polar Air Cargo Worldwide, Inc., and Atlas Air Worldwide Holdings, Inc. (“Polar”): $100 million (ECF No. 2402); and (2) Air China Limited and Air China Cargo Company Limited (“Air China”): $50 million (ECF No. 2418).


5

Both sides vigorously negotiated their respective positions on all material terms of the

Settlement Agreement, and the negotiations were non-collusive. Id. ¶ 7. Having prosecuted this

case against over 30 alleged co-conspirators for more than 10 years, by the time of these

settlement negotiations, Class Counsel were well informed of the facts and issues concerning

liability and damages and the relative strengths and weaknesses of each side’s litigation position.

Id. ¶ 8.

The Settlement Agreement, attached to the Landau Declaration as Exhibit A, includes the

following material terms:

1. The Class

Pursuant to the Court’s Order dated July 10, 2015, as amended on August 3, 2015 (ECF

No. 2326), the Class is:

All persons or entities (but excluding Defendants, their parents, predecessors, successors, subsidiaries, affiliates, as well as government entities) who purchased airfreight shipping services for shipments to or from the United States directly from any of the Defendants or from any of their parents, predecessors, successors, subsidiaries, or affiliates, at any time during the period from January 1, 2000 up to and including September 30, 2006.

Settlement Agreement, ¶ 21.4 Therefore, it is not necessary for the Court to make a determination

of a settlement class for purposes of approving the Settlement Agreement.

2. The Settlement Fund

Pursuant to the terms of the Settlement Agreement, Air India will pay US $12.5 million

as follows: $6.25 million on or before June 1, 2016, and another US $6.25 million on or before

August 1, 2016. Id. ¶ 32. From the Settlement Amount, the sum of $250,000 may be used for

4 As defined in the Settlement Agreement, the term “Defendant” means any party named as a

defendant in the First Consolidated Amended Complaint in this Action or named thereafter as a defendant in the Action up to and including the Preliminary Approval Date. See Settlement Agreement, ¶ 9.


6

reasonable costs of disseminating notice of the Settlement Agreement, including the cost of

administration. Id. ¶ 33. All income earned on the Settlement Fund shall become and remain part

of the Settlement Fund. Id. ¶ 36.

3. The Release

In exchange for Air India’s consideration, the Released Parties (as defined in the

Settlement Agreement) shall be completely released, acquitted, and forever discharged from any

and all claims, demands, actions, potential actions, suits and causes of action, losses, obligations,

damages, matters and issues of any kind or nature whatsoever, and liabilities of any nature on

account of or arising out of or resulting from or in any way related to any conduct regardless of

where it occurred at any time prior to the effective date concerning the direct purchase from Air

India or any other defendant of airfreight shipping services to or from the United States or

concerning the pricing, selling, discounting or marketing of airfreight shipping services for

shipments to or from the United States, including without limitation, claims based in whole or in

part on the facts, occurrences, transactions, or other matters alleged in the Action or otherwise

the subject of the Action (and specifically including, without limitation, claims in any way

related to cargo rates, fuel surcharges, security surcharges, insurance surcharges, United States

customs surcharges, war risk surcharges, commissions, incentives, rebates, credits, yields, or any

other element of the price of or the compensation related to Airfreight Shipping Services), which

arise under any antitrust, unfair competition, unfair practices, price discrimination, unitary

pricing, trade practice, consumer protection, unjust enrichment, civil conspiracy law, or any

other law.5 Id. ¶ 29. However, there is no release of any claims (a) made with respect to any

indirect purchase of airfreight shipping services; or (b) for negligence, breach of contract,

5 The full language of the release provisions is found at ¶¶ 29-31 of the Settlement Agreement.


7

bailment, failure to deliver, lost goods, damaged or delayed goods or similar claims between any

of the released parties and any of the releasing parties relating to airfreight shipping services. Id.

III. ARGUMENT

A. The Settlement of Complex Litigation Is Favored

Plaintiffs and Air India have reached an agreement that maximizes plaintiffs’ recovery.

Plaintiffs have avoided the potential risks inherent in complex antitrust class action litigation and

secured a substantial cash payment from Air India. Reaching such a positive result prior to

engaging in a lengthy trial where the outcome is uncertain enhances the attractiveness of this

settlement. See In re Global Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 455 (S.D.N.Y. 2004)

(“[F]ederal courts favor settlement, especially in complex and large-scale disputes, so as to

encourage compromise and conserve judicial and private resources.”). Further, the Court should

be mindful of the “general policy favoring settlement.” In re Air Cargo Shipping Servs. Antitrust

Litig., No. 06-md-1775, 2009 WL 3077396, at *6 (E.D.N.Y. Sept. 25, 2009) (approving the

Lufthansa settlement); see also In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-md-

01775, 2011 WL 2909162, at *3 (E.D.N.Y. July 15, 2011); Report & Recommendation (ECF

No. 625) (the “Lufthansa Prel. App. R&R”), at 14; Bourlas v. Davis Law Assocs., 237 F.R.D.

345, 354-55 (E.D.N.Y. 2006) (noting that class actions are amenable to settlement “because of

the difficulties of proof, the uncertainties of the outcome, and the typical length of the

litigation”); Bano v. Union Carbide Corp., 273 F.3d 120, 129-30 (2d Cir. 2001).

B. The Proposed Settlement Exceeds the Standards for Preliminary Approval

When parties to a class action seek to settle, they must proceed before the court in two

steps: first, they must seek preliminary approval of the proposed settlement and then, should such

preliminary approval be granted, they must provide notice to the class and appear at a fairness

hearing, after which the court may grant final approval to the settlement. See Manual for


8

Complex Litigation (Fourth) § 21.63 (2004); NASDAQ I, 176 F.R.D. at 102. Because the first

step of this process is only “preliminary,” the standards for preliminary approval are less

exacting than those applied to final approval. “[A] court must determine whether the terms of the

proposed settlement warrant preliminary approval. In other words, the court must make ‘a

preliminary evaluation’ as to whether the settlement is fair, reasonable and adequate.” In re

Currency Conversion Fee Antitrust Litig., No. 01 MDL 1409, 2006 WL 3247396, at *5

(S.D.N.Y. Nov. 8, 2006) (citation omitted); see also Wal-Mart Stores, Inc. v. Visa U.S.A. Inc.,

396 F.3d 96, 116 (2d Cir. 2005). Preliminary approval of a proposed settlement is granted so

long as the settlement was arrived at through a fair process and the terms of the settlement are

within the “range of possible approval.” NASDAQ I, 176 F.R.D. at 102 (emphasis added).

In conducting this inquiry, a court considers both the negotiating process leading up to

the settlement and the settlement’s substantive terms. Global Crossing, 225 F.R.D. at 455. A

court determines whether the settlement is “at least sufficiently fair, reasonable and adequate to

justify notice to those affected and an opportunity to be heard.” NASDAQ I, 176 F.R.D. at 102

(citations omitted). Preliminary approval should be granted “if the settlement is the result of

serious, informed and non-collusive negotiations and the proposed settlement has no obvious

deficiencies, such as giving preferential treatment to class representatives, or granting excessive

attorneys’ fees.” In re Med. X-Ray Film Antitrust Litig., No. CV 93-5904, 1997 WL 33320580, at

*6 (E.D.N.Y. Dec. 26, 1997) (citing NASDAQ I, 176 F.R.D. 99, and Manual for Complex

Litigation (Third) § 30.14 (1995)). In considering preliminary approval, the sole issue is whether

the proposed settlement falls within the range of possible approval. NASDAQ I, 176 F.R.D. at

102.


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The negotiations here were conducted by experienced counsel on both sides at arm’s

length, and included an all-day mediation. See Landau Decl. ¶¶ 4, 6. At this late stage in the

litigation process, Plaintiffs’ counsel were well-informed of the material facts and risks

associated with litigating the case through trial, and the negotiations were non-collusive. Id. ¶¶ 7-

8. Further, the substantial cash payment represents more than 10% of Air India’s relevant sales

during the class period, making it among the higher settlements received when measured on that

basis. Based upon these facts, preliminary approval is warranted, and, as will be demonstrated in

detail at the final fairness hearing, this settlement is a “fair, reasonable, and adequate” settlement

of the class claims. See City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974).6

1. The Proposed Settlement Is the Result of Arm’s-Length Negotiations Conducted by Highly Experienced Counsel.

The process that led to this proposed settlement was facilitated by a highly experienced

mediator and was fairly conducted by highly-qualified counsel who sought to obtain the best

possible result for their clients and the Class. When counsel engages in an arm’s-length

negotiation that results in a settlement, courts find that the settlement is entitled to a presumption

of fairness. See In re Air Cargo Shipping Servs. Antitrust Litig., 2009 WL 3077396, at *7

(finding Lufthansa settlement “procedurally fair because it was the product of arm’s length

6 There are nine relevant factors that courts consider in evaluation a settlement’s substantive terms at

the time of final approval: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Grinnell, 495 F.2d at 463. As this Court has recognized, there is little to be gained by applying the Grinnell factors at the preliminary approval stage. See Bourlas, 237 F.R.D. at 356 n.7 (“it is apparent that several of the Grinnell factors themselves were designed for application at a later stage in the class settlement approval process”). As a result, they are discussed here only when they provide a useful guide to assess the settlement’s fairness at this stage.


10

negotiations between experienced and able counsel”); see also In re Air Cargo Shipping Servs.

Antitrust Litig., 2011 WL 2909162, at *4; In re NASDAQ Mkt.-Makers Antitrust Litig., 187

F.R.D. 465, 474 (S.D.N.Y. 1998) (“NASDAQ II”) (“[s]o long as the integrity of the arm’s length

negotiation process is preserved … a strong initial presumption of fairness attaches to the

proposed settlement”); In re Sterling Foster & Co. Sec. Litig., 238 F. Supp. 2d 480, 484

(E.D.N.Y. 2002); In re Twinlab Corp. Sec. Litig., 187 F. Supp. 2d 80, 83 (E.D.N.Y. 2002); In re

Joint E. & S. Dists. Asbestos Litig., 878 F. Supp. 473, 567 (E.D.N.Y. 1995). Further, when the

settlement that results from such negotiations is being championed by experienced and informed

counsel, courts afford counsel’s opinion considerable weight because they are closest to the facts

and risks associated with the litigation itself. See Joint E., 878 F. Supp. at 567 (“[a] substantial

factor in determining the fairness of a settlement is the opinion of counsel involved in the

settlement” (citations omitted)); In re PaineWebber Ltd. P’ships Litig., 171 F.R.D. 104, 125

(S.D.N.Y. 1997) (stating that “great weight” is accorded to the recommendations of counsel, who

are most closely acquainted with the facts of the underlying litigation), aff’d, 117 F.3d 721 (2d

Cir. 1997). The process that led to this settlement confirms that the initial presumption of

fairness is correct.

The Court has found that Class Counsel are highly capable and have the requisite

qualifications and experience to handle this litigation. See Class Cert. R&R at 56 (“as the court

has already noted on several occasions, the proposed class counsel is undoubtedly qualified to

maintain this action”), adopted July 10, 2015, and amended on August 3, 2015; Lufthansa Prel.

App. R&R, at 8-9; see also In re Air Cargo Shipping Servs. Antitrust Litig., 240 F.R.D. 56, 57

(E.D.N.Y. 2006); In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-md-1775, 2012 WL

3138596, at *4 (E.D.N.Y. Aug. 2, 2012) (incorporating the reasoning and conclusions set forth in


11

the Court’s previous opinions approving settlements in this litigation); In re Air Cargo Shipping

Servs. Antitrust Litig., 2011 WL 2909162, at *6; In re Air Cargo Shipping Servs. Antitrust Litig.,

2009 WL 3077396, at *7. Here, settlement negotiations involved a day-long mediation by an

experienced mediator, and follow-up telephone and email communications. See Landau Decl.

¶¶ 4-6. The discussions were meaningful and informed as Class Counsel took steps to ensure that

they had all of the necessary information to advocate for a fair settlement that served the best

interests of the Class. Id. ¶¶ 7-8. Class Counsel analyzed and evaluated the contested legal and

factual issues posed by the litigation so that adequate demands could be made. See id.; see also

Class Cert. R&R at 47-110 (analyzing issues in context of class certification); In re Air Cargo

Shipping Servs. Antitrust Litig., 2009 WL 3077396, at *7 (discussing negotiation process

arriving at Lufthansa settlement). Class Counsel were well informed of the facts of the case and

the strength of the claims asserted when the terms of the Settlement Agreement were negotiated.

See Global Crossing, 225 F.R.D. at 458.

2. The Proposed Settlement Falls Within the Range of Possible Approval.

To preliminarily approve this settlement, the Court must decide that the proposed

settlement falls within the range of settlement that could possibly be approved as “fair,

reasonable and adequate.” NASDAQ I, 176 F.R.D. at 102. The settlement here provides for a

substantial cash payment. Continuing this litigation against Air India would entail a highly

expensive legal battle, involving complex legal and factual issues where motions in limine and

Daubert motions would be vigorously contested. At trial, the ultimate outcome remains uncertain

for both parties because it would turn on questions of proof, many of which would be the subject

of complicated expert opinions, particularly with regard to damages. See NASDAQ II, 187 F.R.D.

at 475-76. In denying defendants’ summary judgment motions, the Court stated that the


12

defendants “raise[d] difficult questions that are defendant specific” which “may in the end of the

day be very persuasive arguments to the jury as to why a jury should not conclude that these

remaining entities were involved in this conspiracy.” Hr’g. Tr., 93-94, ECF No. 2351. Given this

uncertainty, “[a] very large bird in the hand in this litigation is surely worth more than whatever

birds are lurking in the bushes.” In re Chambers Dev. Sec. Litig., 912 F. Supp. 822, 838 (W.D.

Pa. 1995).

The Settlement Amount represents in excess of 10% of Air India’s sales of Airfreight

Shipping Services to and from the United States to Class Members during the Class Period, well

above prior settlements in this action. Plaintiffs achieved this excellent result even though, unlike

many of the other air carriers that have settled, the Department of Justice elected not to bring

charges against Air India.

Based upon the foregoing, the Settlement Agreement is well within the possible range of

approval as a “fair, reasonable, and adequate” settlement of the Class’s claims. See Grinnell, 495

F.2d at 463.

C. Notice to the Class

Plaintiffs will submit notice regarding the Settlement Agreement to Class Members

informing them of their rights with respect to the proposed settlement. Plaintiffs propose

combining notice of this settlement with the two settlements that have received preliminary

approval – Polar and Air China – and, if preliminarily approved, with the Air New Zealand

settlement. See Settlement Agreement, ¶ 24.

IV. PRELIMINARY APPROVAL ORDER

Plaintiffs respectfully submit that the proposed Settlement Agreement with Air India falls

well within the range of possible approval. Plaintiffs therefore request that the Court:


13

1. Preliminarily approve the Settlement Agreement and find that its terms are

sufficiently fair, reasonable, and adequate for notice to be issued to the Class;

2. Order Class Counsel to disseminate notice to the Class, upon submission of

proposed notices and approval by the Court of the form of notice and the notice

plan; and

3. Approve The Garden City Group as Administrator of the Settlement and Citibank,

N.A. as escrow agent.

V. CONCLUSION

For the foregoing reasons, the Court should grant plaintiffs’ motion for preliminary

approval of this settlement with Air India.

Dated: May 19, 2016

Respectfully Submitted,

/s/ Brent W. Landau /s/ Howard J. SedranBrent W. Landau Howard J. SedranMichael D. Hausfeld Austin B. CohenHilary K. Scherrer Keith J. VerrierMelinda R. Coolidge LEVIN, FISHBEIN, SEDRAN & BERMAN

HAUSFELD LLP 510 Walnut Street1700 K Street NW Philadelphia, PA 19106Suite 650 (215) 592-1500Washington, DC 20006(202) 540-7200

/s/ Robert N. Kaplan /s/ Hollis SalzmanRobert N. Kaplan Hollis SalzmanGregory K. Arenson Meegan HollywoodElana Katcher ROBINS KAPLAN LLPKAPLAN FOX & KILSHEIMER LLP 601 Lexington Avenue, Suite 3400850 Third Avenue, 14th Floor New York, NY 10022New York, NY 10022 (212) 980-7400(212) 687-1980

Gary L. SpecksKAPLAN FOX & KILSHEIMER LLP


14

423 Sumac RoadHighland Park, IL 60035(847) 831-1585

Class Counsel


UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

INRE

AIR CARGO SHIPPING SERVICES ANTITRUST LITIGATION

MDLNo. 1775


THIS DOCUMENT RELATES TO: All Actions

DECLARATION OF BRENT W. LANDAU IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT

WITH DEFENDANT AIR INDIA LTD.

I, Brent W. Landau, declare:

1. I am a partner in the law firm of Hausfeld LLP. The Court has appointed my firm

as one of four Co-Lead Counsel in this case. I submit this declaration in support of Plaintiffs'

Motion for Preliminary Approval of Settlement with Defendant Air India Ltd. ("Air India"),

dated May 19,2016. I have personal knowledge ofthe information set forth in this declaration.

2. Plaintiffs and Air India discussed the possibility of settlement intermittently for

the last five years.

3. Within the last few months, the parties agreed to hold an all-day mediation before

Eric D. Green, a well-known mediator.

4. The mediation was held shortly before plaintiffs' depositions of Air India's trial

experts were scheduled to occur, and was attended by plaintiffs' Co-Lead Counsel, counsel for

Air India, and a four senior Air India executives.

5. During the mediation, the parties exchanged multiple offers and counteroffers,

culminating in an agreement in principle. The parties executed a Memorandum of

Understanding, subject to the approval of Air India's board of directors.


6. Following additional negotiations regarding the terms of the settlement agreement

by telephone and email, counsel for plaintiffs and counsel for Air India signed the Settlement

Agreement with an execution date of May 17, 2016. A true and correct copy of the Settlement

Agreement is attached hereto as Exhibit A.

7. Both sides vigorously negotiated their respective positions on all material terms of

the Settlement Agreement and the negotiations were non-collusive.

8. In connection with these settlement negotiations, Class Counsel were well

informed of the facts and issues concerning liability and damages and the relative strengths and

weaknesses of each side's litigation position.

9. I declare under penalty of perjury that the foregoing is true and correct.

Executed this 19th day ofMay, 2016 in Philadelphia, Pennsylvania.

~wd~ Brent W. Landau

- 2-


Exhibit A


IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

IN RE: AIR CARGO SHIPPING SERVICES ANTITRUST LITIGATION

MDL No. 1775


ALL CASES

SETTLEMENT AGREEMENT

This Settlement Agreement (the “Agreement”) is made and entered into as of this 17th

day of May, 2016 (the “Execution Date”), by and between Air India Ltd. (“Air India”) (“Settling

Defendant”) and Class Representatives Benchmark Export Services, FTS International Express,

Inc., R.I.M. Logistics, Ltd., Olarte Transport Service, Inc., S.A.T. Sea & Air Transport, Inc. and

Volvo Logistics AB (collectively, “Plaintiffs”), both individually and on behalf of a certified

class of persons who purchased Airfreight Shipping Services (as defined below) for shipments to

or from the United States directly from Settling Defendant or any other Defendant (as defined

below) in the Action (as defined below) during the period from and including January 1, 2000 up

to and including September 30, 2006.

WHEREAS, Plaintiffs are prosecuting the Action on their own behalf and on behalf of

the Class (as defined below);

WHEREAS, Plaintiffs allege that Settling Defendant participated in an unlawful

conspiracy to raise, fix, maintain, or stabilize the prices of Airfreight Shipping Services for

shipments to or from the United States at artificially high levels in violation of Section 1 of the

Sherman Act;


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WHEREAS, Settling Defendant denies Plaintiffs’ allegations and have asserted a number

of defenses to Plaintiffs’ claims;

WHEREAS, Plaintiffs and Settling Defendant agree that neither this Agreement nor any

statement made in the negotiation thereof shall be deemed or construed to be an admission by or

evidence against Settling Defendant or any of their alleged co-conspirators or evidence of the

truth of any of the Plaintiffs’ allegations;

WHEREAS, arm’s-length settlement negotiations have taken place (with the assistance

of an experienced mediator) between Class Counsel (as defined below) and counsel for Settling

Defendant, and this Agreement has been reached as a result of those negotiations;

WHEREAS, Plaintiffs have conducted an investigation into the facts and the law

regarding the Action and have concluded that a settlement with Settling Defendant according to

the terms set forth below is in the best interest of Plaintiffs and the Class;

WHEREAS, the Action will continue against Defendants that are not Released Parties (as

defined below);

WHEREAS, Settling Defendant, despite its belief that it has good defenses to the claims

alleged, has nevertheless agreed to enter into this Agreement to avoid the expense,

inconvenience, and the distraction of potentially burdensome and protracted litigation; and

WHEREAS, Settling Defendant has agreed to cooperate with Plaintiffs as set forth in this

Agreement.

NOW, THEREFORE, in consideration of the mutual promises, covenants, agreements

and releases set forth herein and for other good and valuable consideration, it is agreed by and

among the undersigned that claims that have been or could be asserted in the Action be settled

and compromised as to Settling Defendant and all other Released Parties, without costs as to


3

Plaintiffs, the Class, or Settling Defendant, subject to the approval of the Court (as defined

below), on the following terms and conditions.

A. Definitions

The following terms, as used in this Agreement have the following meanings:

1. “Action” means the action captioned In re Air Cargo Shipping Services Antitrust

Litigation, 06-MD-1775 (JG)(VVP) (E.D.N.Y.), which is currently pending in the United States

District Court for the Eastern District of New York, and all actions filed in or transferred to the

Eastern District of New York for consolidation and/or coordination with the above-captioned

multidistrict litigation, specifically including, but not limited to, the actions captioned

Benchmark Export Services et al. v. AMR Corporation and American Airlines, Inc., Case No. 10-

CV-3398 (JG) (VVP) (E.D.N.Y.), Benchmark Export Services et al. v. China Airlines Ltd., Case

No. 10-CV-0639 (JG) (VVP) (E.D.N.Y.), Benchmark Export Services et al. v. McCaffrey, Case

No. 10-CV-10253-NMG (D. Mass.), Benchmark Export Services et al. v. De Jong, Case No.

2:10-CV-00007-TB (E.D.N.C.), and Benchmark Export Services et al. v. Sanfilippo, Case No.

10-CV-01374 JG-VVP (E.D.N.Y.), all actions pending such transfer (including but not limited to

“tag-along” actions) and all actions that may be transferred in the future, or are otherwise based

on the conduct alleged in the above-captioned multidistrict litigation.

2. “Airfreight Shipping Services” means paid private air transport of freight or other

cargo by any airline acting as a provider of such services.

3. “Claims” shall mean any and all actions, suits, claims, rights, demands, assertions,

allegations, causes of action, controversies, proceedings, losses, damages, injuries, attorneys’

fees, costs, expenses, debts, liabilities, judgments, or remedies, whether equitable or legal,

resulting from a direct purchase of Airfreight Shipping Services.


4

4. “Class” means, pursuant to the Court’s Order dated July 10, 2015 (ECF No. 2282)

and as amended on August 3, 2015 (ECF No. 2326), all persons or entities (but excluding

Defendants, their parents, predecessors, successors, subsidiaries, affiliates, as well as government

entities) who purchased airfreight shipping services for shipments to or from the United States

directly from any of the Defendants or from any of their parents, predecessors, successors,

subsidiaries, or affiliates, at any time during the period from January 1, 2000 up to and including

September 30, 2006.

5. “Class Counsel” shall refer to the law firms of Hausfeld LLP, 1700 K Street NW,

Suite 650, Washington, DC 20006; Kaplan Fox & Kilsheimer LLP, 850 Third Avenue, 14th

Floor, New York, NY 10022; Robins Kaplan LLP, 601 Lexington Avenue, Suite 3400, New

York, NY 10022-4611; and Levin, Fishbein, Sedran & Berman, 510 Walnut Street, Philadelphia,

PA 19106.

6. “Class Member” means each member of the Class who did not timely and validly

elect to be excluded from the Class before January 22, 2016, pursuant to the Court’s Order dated

November 6, 2015 (ECF No. 2370).

7. “Class Period” means the period from and including January 1, 2000 up to and

including September 30, 2006.

8. “Court” means the United States District Court for the Eastern District of New

York.

9. “Defendant” means any party named as a defendant in the First Consolidated

Amended Complaint in In re Air Cargo Shipping Services Antitrust Litigation, 06-MD-1775

(JG)(VVP) (E.D.N.Y.) or otherwise named as a defendant in the Action at any time up to and

including the Preliminary Approval Date (as defined below).


5

10. “Effective Date” means the first date by which all of the following have occurred:

(a) the Court has entered a final judgment approving this Agreement under Rule 23(e) of the

Federal Rules of Civil Procedure; (b) the Court has entered a final judgment dismissing the

Action as against any Released Party who is a Defendant with prejudice as to all Class Members

and without costs; and (c) the time for appeal or to seek permission to appeal from the Court’s

approval of this Agreement and entry of a final judgment as described in clause (a) above has

expired, or, if appealed, approval of this Agreement and the final judgment has been affirmed in

its entirety by the court of last resort to which such appeal has been taken and such affirmance

has become no longer subject to further appeal or review. Neither the provisions of Rule 60 of

the Federal Rules of Civil Procedure nor the All Writs Act, 28 U.S.C. § 1651, shall be taken into

account in determining the above-stated times.

11. “Escrow Account” is the account referenced in Paragraph 32 to maintain the

Settlement Fund (as defined below) established pursuant to the terms and conditions set forth in

an escrow agreement to be entered into with Citibank N.A., as Escrow Agent (as defined below),

subject to the approval of Plaintiffs and Settling Defendant.

12. “Escrow Agent” means the third party responsible for managing and

administering the Escrow Account in accordance with this Agreement, any agreement

establishing the Escrow Account and any Order by the Court.

13. “Preliminary Approval Date” means the date on which the Court enters an order

granting preliminary approval of this Agreement.

14. “Released Claims” shall refer to the claims described in Paragraph 29 of this

Agreement.


6

15. “Released Parties” shall refer jointly and severally, individually and collectively,

to Settling Defendant, its predecessors, successors, past and present parents, subsidiaries,

affiliates, divisions, and departments, and each of their respective past and present officers,

directors, employees, agents, attorneys, servants, and representatives, and the predecessors,

successors, heirs, executors, administrators, and assigns of each of the foregoing.

Notwithstanding any part of the foregoing, however, for purposes of this Agreement, “Released

Parties” does not include any Defendant other than the Settling Defendant. As used in this

definition, “affiliates” means entities controlling, controlled by or under common control with

any of the Released Parties.

16. “Releasing Parties” shall refer jointly and severally, and individually and

collectively, to the Plaintiffs, the Class Members, their predecessors, successors, past and present

parents, subsidiaries, affiliates, divisions, and departments, and each of their respective past and

present officers, directors, employees, agents, attorneys, servants, and representatives, and the

predecessors, successors, heirs, executors, administrators, and assigns or transferees, immediate

and remote, of each of the foregoing. As used in this definition, “affiliates” means entities

controlling, controlled by, or under common control with, any of the Releasing Parties.

17. “Settlement Amount” means $12,500,000 in U.S. dollars.

18. “Settlement Fund” shall be the amount paid by Settling Defendant in settlement of

the Action pursuant to Paragraph 32 of this Agreement and any income earned on amounts in the

fund.

19. “Settlement Hearing” has the meaning attributed to it in Paragraph 26(a).

20. “Settling Defendant’s Counsel” shall refer to the law firm of Ruskin Moscou

Faltischek or any firm later retained by Settling Defendant to represent it in this Action.


7

B. Class Certification

21. Pursuant to the Court’s Order dated July 10, 2015 (ECF No. 2282), as amended

on August 3, 2015 (ECF No. 2326), the requirements of Rule 23(a) and 23(b)(3) of the Federal

Rules of Civil Procedure are satisfied, and the following Class was certified:

All persons or entities (but excluding Defendants, their parents, predecessors, successors, subsidiaries, affiliates, as well as government entities) who purchased airfreight shipping services for shipments to or from the United States directly from any of the Defendants, or from any of their parents, predecessors, successors, subsidiaries, or affiliates, at any time during the period from January 1, 2000 up to and including September 30, 2006.

C. Approval of this Agreement, Notice, and Dismissal of Claims

22. Plaintiffs and Settling Defendant shall use all reasonable efforts to effectuate this

Agreement, including cooperating in Plaintiffs’ effort to obtain the Court’s approval of

procedures (including the giving of class notice under Rules 23(c) and 23(e) of the Federal Rules

of Civil Procedure), and to secure the prompt, complete, and final dismissal with prejudice of the

Action as to Settling Defendant.

23. Promptly after the Execution Date of this Agreement, Plaintiffs shall submit to the

Court a motion for preliminary approval of the settlement. The motion shall include the

proposed form of an order preliminarily approving this Agreement, the text of which shall be

agreed upon by Plaintiffs and Settling Defendant before submission of the motion.

24. Plaintiffs may, as practicable, combine dissemination of notice of this Agreement

with notice of other settlement agreements reached with other Defendants. The text of the notice

shall be agreed upon by Plaintiffs and Settling Defendant before submission of the notice to the

Court for approval.

25. Settling Defendant shall notify federal and state officials of this settlement as

specified in 28 U.S.C. §§ 1715(a) & (b).


8

26. Notice to the Class shall be given as follows, or as otherwise deemed sufficient by

the Court:

(a) After preliminary approval of this Agreement and submission to the Court of the proposed forms of mail and publication notice, Class Counsel shall, in accordance with Rule 23 of the Federal Rules of Civil Procedure and the Court’s order, provide those members of the Class who have been identified by reasonable means in connection with the prior settlements, with notice by first class mail of the settlement and the date of the hearing scheduled by the Court to consider the fairness, adequacy and reasonableness of the proposed settlement (the “Settlement Hearing”).

(b) After preliminary approval of this Agreement and submission to the Court of the proposed forms of mail and publication notice, Class Counsel shall, in accordance with Rule 23 of the Federal Rules of Civil Procedure and the Court’s order, cause a summary notice of the settlement and the Settlement Hearing to be published one time in the national and international editions of The Wall Street Journal and in each of the publications identified in Paragraph 3 of Judge Gleeson’s Court Order dated October 21, 2010 (Air Cargo World (U.S. only); Air Cargo Week; Cargonews Asia; International Transport Journal; American Shipper; Airport Press; American Journal of Transportation; Inbound Logistics; Logistics Management; and Air Transport World), unless publication in any of the proposed publications is impracticable, in which case notice will be published in substitute publications as deemed appropriate by the Claims Administrator.

27. Plaintiffs shall seek entry of an order and a final judgment, the text of which shall

be agreed upon by Plaintiffs and Settling Defendant before submission to the Court:

(a) approving this Agreement and its terms as being a fair, reasonable, and adequate settlement as to the Class within the meaning of Rule 23 of the Federal Rules of Civil Procedure, and directing its consummation according to its terms;

(b) reserving to the Court exclusive jurisdiction over the settlement and this Agreement, including the administration and consummation of this settlement;

(c) requiring Class Counsel to file with the Clerk of the Court a record of potential members of the Class who timely and validly excluded themselves from the Class before January 22, 2016, and to provide a copy of the record to Settling Defendant’s Counsel; and

(d) dismissing the Action with prejudice as to the Released Parties.

28. This Agreement shall become final only upon occurrence of the Effective Date.


9

D. Release and Discharge

29. Upon the occurrence of the Effective Date and in consideration of the payment by

Settling Defendant of the Settlement Amount, the Releasing Parties shall be deemed to and do

hereby completely, finally and forever release, acquit, and discharge the Released Parties from

any and all claims, demands, actions, potential actions, suits, and causes of action, losses,

obligations, damages, matters and issues of any kind or nature whatsoever, and liabilities of any

nature, including without limitation claims for costs, expenses, penalties, and attorneys’ fees,

whether class, individual, or otherwise, that the Releasing Parties, or any of them, ever had, now

has, or hereafter can, shall, or may have directly, representatively, derivatively or in any other

capacity against any of the Released Parties, whether known or unknown, suspected or

unsuspected, asserted or unasserted, foreseen or unforeseen, actual or contingent, accrued or

unaccrued, matured or unmatured, disclosed or undisclosed, apparent or unapparent, liquidated

or unliquidated, or Claims that have been, could have been, or in the future might be asserted in

law or equity, on account of or arising out of or resulting from or in any way related to any

conduct regardless of where it occurred at any time prior to the Effective Date concerning the

direct purchase from Settling Defendant or any other Defendant of Airfreight Shipping Services

to or from the United States or concerning the pricing, selling, discounting, or marketing of

Airfreight Shipping Services for shipments to or from the United States, including without

limitation, Claims based in whole or in part on the facts, occurrences, transactions, or other

matters alleged in the Action, or otherwise the subject of the Action (and specifically including,

without limitation, Claims in any way related to cargo rates, fuel surcharges, security surcharges,

insurance surcharges, United States customs surcharges, war risk surcharges, commissions,

incentives, rebates, credits, yields, or any other element of the price of or the compensation


10

related to Airfreight Shipping Services), which arise under any antitrust, unfair competition,

unfair practices, price discrimination, unitary pricing, trade practice, consumer protection, unjust

enrichment, civil conspiracy law, or any other law, code, rule, or regulation of any country or

jurisdiction worldwide, including under federal or state law, regardless of legal theory, and

regardless of the type or amount of damages claimed. However, nothing herein shall release any

claims (a) for negligence, breach of contract, bailment, failure to deliver, lost goods, damaged or

delayed goods or similar claim between any of the Released Parties and any of the Releasing

Parties relating to Airfreight Shipping Services and/or (b) made with respect to any indirect

purchase of Airfreight Shipping Services.

30. The Releasing Parties hereby covenant and agree that they shall not, hereafter, sue

or otherwise seek to establish liability against any of the Released Parties based, in whole or in

part, upon any of the Released Claims.

31. The release set forth in Paragraph 29 constitutes a waiver of Section 1542 of the

California Civil Code and Section 20-7-11 of the South Dakota Codified Laws, each of which

provides that a general release does not extend to claims which the creditor does not know or

suspect to exist in his favor at the time of executing the release, which if known by him must

have materially affected his settlement with the debtor, and a waiver of any similar, comparable,

or equivalent provisions, statute, regulation, rule, or principle of law or equity of any other state

or applicable jurisdiction. The Releasing Parties acknowledge that they are aware that they may

hereafter discover facts in addition to, or different from, those facts which they know or believe

to be true with respect to the subject matter of this Agreement, but that it is their intention to

release and settle fully, finally, and forever any and all claims released in Paragraph 29, and in

furtherance of such intention, this release shall be and remain in effect notwithstanding the


11

discovery or existence of any such additional or different facts. The parties acknowledge that the

foregoing waiver was separately bargained for and is a key and integral element of the

Agreement of which the release is a part.

E. Payments

32. Settling Defendant shall pay or cause to be paid the Settlement Amount by wire

transfer into the Escrow Account. The Settlement Amount shall be wire transferred by Settling

Defendant or their designee as follows: $6.25 million USD on or before June 1, 2016 and the

remaining $6.25 million USD on or before August 1, 2016.

33. From the Settlement Amount, the sum of $250,000 in United States currency may

be used for reasonable costs of disseminating notice of this Agreement, including the cost of

administration, Plaintiffs may combine notice of this Agreement with the notice of settlement

agreements reached with other Defendants.

34. Class Counsel may, at an appropriate time, determined in their sole discretion,

submit a motion seeking approval of the payment of attorneys’ fees and expenses from the

Settlement Fund. Settling Defendant shall not oppose any motion by Class Counsel seeking

approval of payment of attorneys’ fees and past and current expenses from the Settlement Fund

or any motion by Class Counsel seeking approval of payment after the Effective Date for future

litigation expenses from the Settlement Fund. Settling Defendant shall have no obligation to pay

any amount of Class Counsel’s attorneys’ fees or the costs or expenses of litigation for the Class.

F. Settlement Fund

35. The Settlement Fund is intended by the parties to this Agreement to be treated as

a “qualified settlement fund” for federal income tax purposes pursuant to Treas. Reg.

§ 1.468B-1, and to that end the parties to this Agreement shall cooperate with each other and


12

shall not take a position in any filing or before any tax authority that is inconsistent with such

treatment. At the request of Settling Defendant, a “relation back election” as described in Treas.

Reg. § 1.468B-1(j) shall be made so as to enable the Settlement Fund to be treated as a qualified

settlement fund from the earliest date possible, and the parties shall take all actions as may be

necessary or appropriate to this end.

36. To the extent practicable, the Settlement Fund shall be (i) invested in United

States Government Treasury obligations, (ii) deposited in a United States Treasury Money

Market Fund or (iii) deposited in a federally insured account in an amount not exceeding

$250,000 or the limits of federal insurance, whichever is greater. All income earned on the

Settlement Fund shall become and remain part of the Settlement Fund.

37. Settling Defendant shall not have any responsibility, financial obligation, or

liability whatsoever with respect to the investment, distribution, or administration of the

Settlement Fund, including, but not limited to, the costs and expenses of such investment,

distribution and administration, except as expressly otherwise provided in this Agreement.

38. Subject to Court approval, Plaintiffs and Class Counsel shall be reimbursed and

paid solely out of the Settlement Fund for all expenses and claims including, but not limited to,

attorneys’ fees and past, current, or future litigation expenses. Attorneys’ fees and expenses

awarded by the Court shall be payable from the Settlement Fund upon award, notwithstanding

the existence of any timely-filed objections thereto, or potential for appeal therefrom, or

collateral attack on the settlement or any part thereof, subject to Class Counsel’s obligation to

make appropriate refunds or repayments to the Settlement Fund, if and when the settlement is not

approved or as a result of any appeal and/or further proceedings on remand, or successful

collateral attack, the fee or cost award is reduced or reversed. Except as provided in Paragraph


13

32, Settling Defendant shall not be liable for any costs, fees, or expenses of any of Plaintiffs’

respective attorneys, experts, advisors, agents, or representatives, but all such costs, fees, and

expenses as approved by the Court may be paid out of the Settlement Fund. Plaintiffs shall not be

liable for any costs, fees, or expenses of any of Settling Defendant’s respective attorneys,

experts, advisors, agents or representatives.

G. Rescission of the Agreement

39. If the Court refuses to approve this Agreement or any part hereof, or with respect

to court approval if such approval is modified or set aside on or following appeal, remand, or

other proceedings, or if the Court does not enter the final judgment provided for in Paragraph 27

of this Agreement, or if the Court enters the final judgment but on or following appeal, remand,

or other proceedings, such final judgment is modified or reversed, then Settling Defendant and

the Plaintiffs shall each, in their sole discretion, have the option to rescind this Agreement in its

entirety. A modification or reversal on or following appeal, remand, or other proceedings, of any

amount of Class Counsel’s fees and expenses awarded by the Court or any plan of allocation of

the Settlement Fund shall not be deemed a modification of all or a part of the terms of this

Agreement or such final judgment.

40. In the event that this Agreement is rescinded, any and all amounts then

constituting the Settlement Fund and any portions thereof (including all income earned thereon

but excluding any taxes already paid on such income and any reasonable expenses that have been

paid or incurred associated with providing notice to the Class or administering the Settlement

Fund) shall be returned forthwith to Settling Defendant.

41. Settling Defendant and Plaintiffs expressly reserve all of their rights if this

Agreement does not become effective or if it is rescinded by Plaintiffs or Settling Defendant


14

pursuant to Paragraph 39 of this Agreement. Further, Plaintiffs and Settling Defendant agree that

this Agreement, whether or not it is finally approved and whether or not Settling Defendant or

Plaintiffs elect to rescind it under Paragraph 39 of this Agreement, and any and all negotiations,

documents, and discussions associated with it, shall not be deemed or construed to be an

admission or evidence of any violation of any statute or law, or of any liability or wrongdoing by

Settling Defendant or any Defendant, or of the truth of any of the claims or allegations in the

Action, or waiver or invalidity of any defense, and evidence thereof shall neither be discoverable

nor used directly or indirectly except in a proceeding to enforce or interpret the Agreement.

H. Cooperation

42. Settling Defendant shall cooperate with Class Counsel as set forth specifically

below.

43. To the extent that any of Settling Defendant’s documents produced by Settling

Defendant or any other Defendant in the Action are authentic or business records, including but

not limited to evidence of Settling Defendant’s sales or costs of Airfreight Shipping Services or

surcharges related thereto, Settling Defendant agrees to produce, through affidavits or

declarations, or, if necessary, through deposition or testimony at trial, representatives qualified to

authenticate such documents and information, and, to the extent possible, provide confirmation

that such documents and information are business records, provided that Class Counsel agrees to

use reasonable efforts to minimize the burden to Settling Defendant of any such authentication or

business records testimony.

44. Notwithstanding any other provision in this Agreement, Plaintiffs and Class

Counsel agree that any information provided by Settling Defendant’s Counsel in connection with

and/or as part of this settlement shall be protected by Federal Rule of Evidence 408, and shall in


15

no event be discoverable by any person or treated as evidence of any kind, unless otherwise

ordered by a Court.

45. Settling Defendant’s obligations to cooperate shall not be affected by the release

set forth in Paragraph 29 of this Agreement. Unless this Agreement is rescinded, disapproved, or

otherwise fails to take effect, Settling Defendant’s obligations to cooperate under this Agreement

shall continue until the date that final judgment has been rendered in the Action with respect to

all Defendants.

46. Settling Defendant and its present and future directors, officers, and employees

and members of the Class and Class Counsel agree that all disputes, claims, or controversies

arising in connection with, pursuant to, or related to the cooperation terms of this Agreement

shall be submitted to arbitration for a final resolution pursuant to Paragraph 51 of this

Agreement.

I. Taxes

47. Plaintiffs shall be solely responsible for filing all informational and other tax

returns necessary to report any net taxable income earned by the Settlement Fund and shall file

all informational and other tax returns necessary to report any income earned by the Settlement

Fund and shall be solely responsible for taking out of the Settlement Fund, as and when legally

required, any tax payments, including interest and penalties due on income earned by the

Settlement Fund. All taxes (including any interest and penalties) due with respect to the income

earned by the Settlement Fund, and all expenses incurred in connection with filing tax returns,

shall be paid from the Settlement Fund. Settling Defendant shall have no responsibility to make

any filings relating to the Settlement Fund and will have no responsibility to pay tax on any

income earned by the Settlement Fund or to pay any taxes on the Settlement Fund unless the


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settlement is not consummated and until the Settlement Fund is returned to Settling Defendant.

In the event the Settlement Fund is returned to Settling Defendant because the settlement is not

consummated, Settling Defendant shall be responsible for the payment of all taxes on income

earned by the Settlement Fund (including any interest or penalties, except to the extent that

interest and penalties result from the failure of Plaintiffs to file any necessary tax returns or make

tax payments, in which case Plaintiffs shall be responsible for the payment of interest and/or

penalties), except to the extent such taxes have been previously paid from the Settlement Fund.

Settling Defendant makes no representation to Plaintiffs regarding the appropriate tax treatment

of the Settlement Fund, income earned on the Settlement Fund, or any distribution taken from

the Settlement Fund.

J. Reservation of Class Members’ Rights Against Other Defendants

48. All rights of any Class Member against any and all former, current, or future

Defendants or co-conspirators or any other person other than the Released Parties are specifically

reserved by Plaintiffs and the Class Members. The sales of Airfreight Shipping Services by

Settling Defendant shall, to the extent permitted or authorized by law, remain in the Action

against the other current or future Defendants in the Action as a potential basis for damage

claims and shall be part of any joint and several liability claims against other current or future

Defendants in the Action or other persons or entities other than the Released Parties.

K. Miscellaneous

49. This Agreement does not settle or compromise any claim by Plaintiffs or any

Class Member against any former or current Defendants or alleged co-conspirator or any other

person or entity other than the Released Parties.


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50. With the exception of matters expressly declared subject to arbitration in this

Agreement, Settling Defendant and its present and future directors, officers, and employees,

Plaintiffs, and each Class Member hereby submit to the exclusive jurisdiction of the United

States District Court for the Eastern District of New York solely for the purpose of any suit,

action, proceeding or dispute arising out of or relating to this Agreement or the applicability of

this Agreement.

51. Any controversy, claim or dispute arising out of, relating to or in connection with

the matters specifically designated to be submitted to arbitration under this Agreement shall be

finally determined in arbitration in New York before Eric D. Green of Resolutions, LLC or, if he

is not available, such arbitrator upon whom the parties shall mutually agree. Subject to the

award of the arbitrator, the parties participating in an arbitration shall pay an equal share of the

arbitrator’s fees. The arbitrator may award recovery of all costs (including administrative fees,

arbitrator’s fees and court costs, but excluding attorneys’ fees) to the prevailing party. Judgment

upon any award rendered may be entered in the United States District Court for the Eastern

District of New York.

52. This Agreement contains an entire, complete, and integrated statement of each

and every term and provision agreed to by and between the parties hereto with respect to the

subject matter of this Agreement.

53. This Agreement may be modified or amended only by a writing executed by

Plaintiffs and Settling Defendant and, after the Preliminary Approval Date, with approval by the

Court.

54. Neither this Agreement nor any negotiations or proceedings connected with it

shall be deemed or construed to be an admission by any party to this Agreement or any Released


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Party or evidence of any fact or matter in this Action or in any related actions or proceedings,

and evidence thereof shall not be discoverable or used, directly or indirectly, in any way, except

in a proceeding to interpret or enforce this Agreement.

55. Neither Settling Defendant nor Plaintiffs shall be considered to be the drafter of

this Agreement or any of its provisions for the purpose of any statute, case law or rule of

interpretation or construction that would or might cause any provision to be construed against the

drafter of this Agreement.

56. This Agreement shall be construed and interpreted to effectuate the intent of the

parties which is to provide, through this Agreement, for a complete resolution of the Released

Claims with respect to the Released Parties.

57. Nothing expressed or implied in this Agreement is intended to or shall be

construed to confer upon or give any person or entity other than Class Members, Releasing

Parties, and Released Parties any right or remedy under or by reason of this Agreement.

58. This Agreement shall be binding upon, and inure to the benefit of, the Releasing

Parties and the Released Parties.

59. If any provision of this Agreement is found by a court of competent jurisdiction to

be illegal, invalid or unenforceable for any reason, the remainder of this Agreement will not be

affected, and, in lieu of each provision that is found illegal, invalid or unenforceable, a provision

will be added as a part of this Agreement that is as similar to the illegal, invalid or unenforceable

provision as may be legal, valid and enforceable.

60. All terms of this Agreement shall be governed and interpreted according to the

substantive laws of the State of New York without regard to its choice of law or conflict of laws

principles.


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61. This Agreement may be executed in counterparts by counsel for Plaintiffs and

Settling Defendant, and a facsimile signature shall be deemed an original signature for purposes

of executing this Agreement.

62. Each of the undersigned attorneys represents that he or she is fully authorized to

enter into the terms and conditions of and to execute this Agreement, subject to Court approval.

L. Notices

63. Any notice or other communication required or permitted to be delivered to any

party under this Agreement shall be in writing and shall be deemed properly delivered, given and

received when delivered by two means of delivery (either by hand, by registered mail, by courier

or express delivery service, by electronic mail, or by facsimile) to the address, electronic mail

address, or facsimile telephone number set forth beneath the name of such party below (or to

such other address, electronic mail address, facsimile number or telephone number as such party

shall have specified in a written notice given to the other parties):

If to Settling Defendant:

Name:Address:

Telephone:Facsimile:

Email:

E. Christopher Murray RUSKIN MOSCOU FALTISCHEK East Tower, 15th Floor 1425 RXR Plaza Uniondale, NY 11556 516-663-6600 [email protected]

If to Class Counsel:

Name:Address:

Hollis L. Salzman Robins Kaplan LLP 601 Lexington Ave, Suite 3400 New York, NY 10022


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Telephone: 212-980-7400 Facsimile:

Email:212-980-7499 [email protected]

Name: Michael D. Hausfeld Address: Hausfeld LLP

1700 K Street, NW, Suite 650 Washington, DC 20006

Telephone: 202-540-7200 Facsimile:

Email:202-540-7201 [email protected]

Name:Address:


Email:

Robert N. Kaplan Kaplan Fox & Kilsheimer LLP 850 Third Avenue, 14th Floor New York, NY 10022 212-687-1980 212-687-7714 [email protected]

Name:Address:

Howard J. Sedran Levin, Fishbein, Sedran & Berman 510 Walnut Street, Suite 500 Philadelphia, PA 19106


Email:

215-592-1500 215-592-4663 [email protected]





Dated: }l4ay 17,2016

E. Christopher MurrayRUSKIN MOSCOU FALTISCHEKEast Tower, l5th Floor1425 RXR PlazaUniondale, NY 11556Telephone: (5 l6) 663-6600

Counselfor Air India Ltd.

22


1


IN RE


MDL No. 1775



[PROPOSED] ORDER

THIS CAUSE came before the Court on Plaintiffs’ Motion for Preliminary Approval of

Settlement with Defendant Air India Ltd. (“Air India”), filed May 19, 2016. Plaintiffs have

entered into a settlement agreement, dated May 17, 2016 (“Settlement Agreement”) with Air

India. The Court, having reviewed the notice of motion, the Declaration of Brent W. Landau in

Support of Plaintiffs’ Motion for Preliminary Approval of Settlement With Defendant Air India

Ltd., dated May 19, 2016, the accompanying memorandum of law, the Settlement Agreement,

and the file, hereby:

ORDERS AND ADJUDGES:

1. Terms used in this Order that are defined in the Settlement Agreement are, unless

otherwise defined herein, used in this Order as defined in the Settlement Agreement.

Preliminary Approval of Settlement Agreement

2. The terms of the Settlement Agreement are hereby preliminarily approved,

including the releases contained therein, as being fair, reasonable, and adequate to the Class,

subject to the Fairness Hearing described below. The Court finds that the Settlement Agreement

was entered into at arm’s-length by highly experienced counsel and is sufficiently within the


2

range of reasonableness that notice of the Settlement Agreement should be given as provided in

this Order.

Notice to Class Members

4. At a later date, Class Counsel shall submit to the Court for approval a notice plan

for purposes of advising Class Members, among other things, of their right to object to the

Settlement Agreement, the procedure for submitting objections, the time, date, and location of

the Fairness Hearing, and their right to appear at the Fairness Hearing.

Settlement Administration

5. To effectuate the Settlement Agreement and the Notice provisions, the Court

hereby approves The Garden City Group as the Claims Administrator (“Administrator”) to be

responsible for: (a) establishing a P.O. Box and website (to be included in the Notice of

Settlement of Class Action) for the purpose of communicating with Class Members; (b)

disseminating Notice to the Class; and (c) accepting and maintaining documents sent from Class

Members.

6. The Court approves Class Counsel’s designation of Citibank, N.A. as Escrow

Agent pursuant to the Escrow Agreement.

Other Provisions

7. In the event that the Settlement Agreement is terminated in accordance with its

provisions, the Settlement Agreement and all proceedings had in connection therewith shall be

null and void, except insofar as expressly provided to the contrary in the Settlement Agreement,

and without prejudice to the status quo ante rights of plaintiffs, Air India, and Class Members.

IT IS SO ORDERED.

DATED: ______________ ______________________________Brian M. Cogan, U.S.D.J.


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Conformed copies furnished to: Counsel of Record


CERTIFICATE OF SERVICE

I, Melinda R. Coolidge, declare that, on May 19, 2016, I caused a true and correct

copy of Plaintiffs’ Notice of Motion for Preliminary Approval of Settlement with

Defendant Air India Ltd.; Memorandum of Law in Support of Plaintiffs’ Motion for

Preliminary Approval of Settlement with Defendant Air India Ltd.; Declaration of Brent

W. Landau in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement with

Defendant Air India Ltd.; and a proposed order to be delivered via the Court’s ECF

system to all counsel of record.

/s/ Melinda R. CoolidgeMelinda R. Coolidge


Documents

EASTERN DISTRICT OF NEW YORK 06-MD-1775 (BMC) … Dkt 2461 Mot for Prelim... · 423 Sumac Road Highland Park, IL 60035 ... international comity, ... Lufthansa Cargo AG, and Swiss