IN THE UNITED STATES DISTRICT.COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA JOHNSTOWN DIVISION. No. 3:13-CV-00146

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1 IN THE UNITED STATES DISTRICT.COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA JOHNSTOWN DIVISION ANTHONY J. ZANGHI, et al., Plaintiffs, No. 3:13-CV Hon. Kim R. Gibson v. FREIGHTCAR AMERICA, INC., et al., Defendants. f PR:8P8S~8J ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL This litigation involves alleged breaches of certain collective bargaining agreements in violation of the Labor Management Relations Act ("LMRA") 30 l, and alleged breaches of certain employee benefit plans in violation of the Employee Retirement Income Security Act of 1974 ("ERISA") 502(a)(l)(B). Specifically, a class comprised of former FreightCar employees ("the Class") and their former labor union, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO CLC ("the Union") claim that FreightCar could not modify or terminate their postretirement medical and life insurance benefits (the "Health and Welfare Benefits") without the Union' s consent, which the class alleges FreightCar failed to obtain. The Court has reviewed the parties' motion and the materials submitted in support thereof, including the terms of the proposed settlement agreement, and finds as follows: 1. The parties have moved the Court for preliminary approval of a settlement agreement and for other related orders. The Court finds that the proposed settlement resulted from arm's-length negotiations that took place at various times over the course of multiple years

2 and involved numerous bargaining sessions. The Court also finds that the proposed settlement agreement was executed after extensive discovery and motions practice in this action. Class counsel has extensive experience litigating and negotiating the settlement of class action litigation involving the types of claims at issue in this suit. Finally, the terms of the proposed settlement agreement are devoid of any obvious defects and the agreement falls within the range of possible approval. 2. The parties also propose that the Court certify the following class for purposes of this settlement: (a) former FreightCar employees that were represented by the USW at the time of their retirement from FreightCar, and who upon retirement received or were eligible to receive medical and life insurance benefits under the JAC USWA Health and Welfare Plan (the "Plan"); and (b) those individuals who received or were eligible to receive medical and life insurance benefits under the Plan as a spouse, surviving spouse, or dependent of an aforementioned former FreightCar employee. As an initial matter, the Court finds that it has previously certified the above-referenced class for purposes of liability. In connection with that earlier ruling the Court found that the proposed class satisfied the four requirements of Rule 23(a) and fell within at least one of the three subdivisions of Rule 23(b). The Court has also found that the firm of Feinstein Doyle Payne & Kravec should be appointed as class counsel under Rule 23(g)(l)(A). Thus, the Court finds that certification of the proposed settlement class is appropriate. 3. The parties have proposed notifying the settlement class through direct mailings of the proposed class notice form they have submitted to the Court. The Court finds the proposed notice clearly explains the nature of the claims at issue, the history of the litigation, the risks inherent at trial, the amount of the settlement, and the basic parameters of the benefits class members would receive from the VEBA if the settlement were approved. The Court also finds that in light of the size of the proposed settlement class, their involvement in this action, and 2

3 their regular interaction with Defendants, direct mailings of the proposed class notice is appropriate. Altogether, the parties.' proposed notice method and notice documents provide the best notice practicable under the circumstances. 4. Finally, the parties have proposed a schedule for serving notice, filing objections, moving for final approval, and conducting a final approval hearing. The Court finds that the proposed schedule is appropriate. In particular, the Court finds that the proposed schedule affords the class members an adequate opportunity to raise objections and be heard at the final approval hearing. In light of the above findings, the Court ORDERS as follows: l. The Court hereby certifies the following class for purposes of the proposed settlement: (a) former FreightCar employees that were represented by the USW at the time of their retirement from FreightCar, and who upon retirement received or were eligible to receive medical and life insurance benefits under the JAC USWA Health and Welfare Plan (the "Plan"); and (b) those individuals who received or were eligible to receive medical and life insurance benefits under the Plan as a spouse, surviving spouse, or dependent of an aforementioned former FreightCar employee. 2. The Court appoints Anthony J. Zanghi, Kenneth J. Sowers, Dominic McCuch, James Hohman, and Darrell Shetler as Class Representatives for purposes of the proposed settlement. 3. The proposed settlement is hereby preliminarily approved. The Court finds that the Settlement Agreement is within the range of possible approval and appears sufficiently fair and reasonable to warrant providing notice to the Class. The Court also finds that the Settlement Agreement contains no obvious deficiencies and the parties have entered into the Settlement Agreement in good faith, following arm's length negotiations. The Court further finds that there are substantial risks, expense, and delay likely in the event that this matter is not settled. The 3

4 Court further finds that the Class is represented by experienced counsel who have competently evaluated the strength of their proofs and are well-situated to evaluate the strengths of Plaintiffs' claims and Defendants' defenses. Finally, the Settlement appears on its face to be fair to the unnamed Class Members, and they receive relief commensurate with that obtained against Defendants by the Class Representatives. 4. The Court orders that Plaintiffs' counsel mail the proposed notice to the last known address of each member of the settlement class within seven (7) days after the entry of this order. If notice to any member of the settlement class is returned as undeliverable, the parties shall attempt to deliver the notice or otherwise notify the subject class member in the manner set forth in the proposed settlement agreement. 5. Any Class member that disputes the fairness, reasonableness, or adequacy of the Settlement Agreement may object to its final approval. All objections must conform to the following requirements: (a) Class members that wish to object must file their objections with the Court and serve copies of their objections on all counsel ofrecord within forty-five (45) days after Plaintiffs have served notice of the proposed settlement. Any objections must be filed and served by mailing them to the following addresses: Clerk of Court 208 Penn Traffic Building 319 Washington Street Johnstown, PA Counsel for USW Joseph P. Stuligross United Steelworkers Five Gateway Center, Suite 807 Pittsburgh, PA Counsel for Plaintiffs' Class Pamina Ewing Feinstein Doyle Payne & Kravec, LLC Allegheny Building, 17th Floor 429 Forbes Avenue Pittsburgh, PA Counsel for Defendants Nancy G. Ross Mayer Brown LLP 71 S. Wacker Drive Chicago, IL

5 (b) Class members shall be deemed to have waived any objections that are not filed and served within forty-five days after being served with notice of the proposed settlement. 6. Class Counsel shall file their motions for attorneys' fees and expenses no later than seven (7) days prior to deadline for filing objections. 7. Within twenty-eight days after the deadline for filing objections has expired, the parties shall: (a) file their responses, if any, to the class members' objections; and (b) move for final approval of the proposed settlement agreement. Oi+- i : 00 p.'fyi. 8. A hearing is hereby scheduled for Jo.. n uoq 5 J 201 l.p!\at the United States District Court for the Western Pennsylvania, Johnstown Division. At the hearing, the Court will: (i) consider final certification of the class for settlement only; (ii) hear evidence and argument concerning whether the proposed Settlement Agreement is fair, reasonable, and adequate and should be approved by the Court; (iii) hear evidence and argument concerning whether the proposed Order and Final Judgment should be entered; (iv) consider any request for an award of attorney fees and costs; and (v) consider such other matters as the Court may deem appropriate. The Court will continue the final approval hearing only upon a showing of good cause. 9. Any class member who has filed and served a timely written objection in accordance with Paragraph ( 4) of this Order may appear and be heard at the final approval hearing, either in person or through counsel retained at their own expense. Neither Plaintiffs nor Defendants shall be responsible for any attorneys' fees or costs incurred by class members in connection with their decision to file objections. 10. This Order shall not be construed or used as an admission, concession, or declaration by or against Defendants of any fault, wrongdoing, breach, liability, or waiver of any claims or defenses. Nor shall this Order be construed or used as an admission, concession, or 5

6 declaration by or against Plaintiffs that their claims lack merit, or that the relief requested in the Action is inappropriate, improper, or unavailable. SO ORDERED: September 28, 2015 ~~ Kim R. Gibson United States District Court Judge 6

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA JOHNSTOWN DIVISION

Case 3:07-cv-00201-KRG Document 120 Filed 08/05/2008 Page 1 of 21 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA JOHNSTOWN DIVISION KENNETH J. SOWERS, ANTHONY J. ZANGHI and ROBERT A. HAYDEN,