Case 1:06-md BMC-VVP Document 2409 Filed 02/05/16 Page 1 of 2 PageID #: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Transcription

1 Case 1:06-md BMC-VVP Document 2409 Filed 02/05/16 Page 1 of 2 PageID #: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK IN RE AIR CARGO SHIPPING SERVICES ANTITRUST LITIGATION MDL No MD-1775 (BMC) (VVP) THIS DOCUMENT RELATES TO: All Actions PLAINTIFFS NOTICE OF MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT WITH DEFENDANTS AIR CHINA LIMITED AND AIR CHINA CARGO COMPANY LIMITED PLEASE TAKE NOTICE THAT, upon the Declaration of Hollis Salzman in Support of Plaintiffs Motion for Preliminary Approval of Settlement with Defendants Air China Limited and Air China Cargo Company Limited ( Air China ), dated February 5, 2016, along with its supporting exhibit, and the Memorandum of Law in Support of Plaintiffs Motion for Preliminary Approval of Settlement with Defendants Air China Limited and Air China Cargo Company Limited, dated February 4, 2016, and all other papers and proceedings herein, 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, 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: i. Preliminarily approving the Settlement Agreement between plaintiffs and Air China with an Execution Date of February 4, 2016 (the Air China Settlement Agreement ), on the grounds that its terms are sufficiently fair, reasonable, and adequate for notice to be issued to the Class; ii. iii. iv. 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; Approving The Garden City Group as administrator of the settlement, and Citibank as escrow agent; and Granting such other and further relief as may be appropriate.

2 Case 1:06-md BMC-VVP Document 2409 Filed 02/05/16 Page 2 of 2 PageID #: Oral argument on this motion, if any, will be held on a date and time set by the Court. Dated: February 5, 2016 Robert N. Kaplan Gregory K. Arenson Elana Katcher KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue, 14th Floor New York, NY (212) Gary L. Specks KAPLAN FOX & KILSHEIMER LLP 423 Sumac Road Highland Park, IL (847) Hollis Salzman Meegan Hollywood ROBINS KAPLAN LLP 601 Lexington Avenue, Suite 3400 New York, NY (212) By: /s/ Hollis L. Salzman By: /s/ Robert N. Kaplan Michael D. Hausfeld Brent W. Landau Hilary K. Scherrer Melinda Coolidge HAUSFELD LLP 1700 K Street, N.W., Suite 650 Washington, DC (202) Howard J. Sedran Austin B. Cohen Keith J. Verrier LEVIN, FISHBEIN, SEDRAN & BERMAN 510 Walnut Street Philadelphia, PA (215) By: /s/ Michael D. Hausfeld By: /s/ Howard J. Sedran Class Counsel 2

3 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 1 of 19 PageID #: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK IN RE AIR CARGO SHIPPING SERVICES ANTITRUST LITIGATION Master File 06-MD-1775 (BMC) (VVP) THIS DOCUMENT RELATES TO: All Actions MDL No MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT WITH DEFENDANTS AIR CHINA LIMITED AND AIR CHINA CARGO COMPANY LIMITED

4 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 2 of 19 PageID #: TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii I. INTRODUCTION... 1 II. BACKGROUND... 1 A. The Litigation... 1 B. Settlement Negotiations The Class The Settlement Fund The Cooperation Provisions The Release Rescission Based on Opt-Outs...7 III. ARGUMENT... 8 A. The Settlement of Complex Litigation Is Favored... 8 B. The Proposed Settlement Exceeds the Standards for Preliminary Approval The Proposed Settlement Is the Result of Arm s-length Negotiations Conducted by Highly Experienced Counsel The Proposed Settlement Falls Within the Range of Possible Approval C. Notice to the Class IV. PRELIMINARY APPROVAL ORDER V. CONCLUSION i

5 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 3 of 19 PageID #: TABLE OF AUTHORITIES Cases Page(s) In re Air Cargo Shipping Servs. Antitrust Litig., 240 F.R.D. 56 (E.D.N.Y. 2006)...12 In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-md-01775, 2011 WL (E.D.N.Y. July 15, 2011) , 11, 12 In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-md-1775, 2009 WL (E.D.N.Y. Sept. 25, 2009)...8, 11, 12 In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-md-1775, 2012 WL (E.D.N.Y. Aug. 2, 2012)...12 Bano v. Union Carbide Corp., 273 F.3d 120 (2d Cir. 2001)...9 Bourlas v. Davis Law Assocs., 237 F.R.D. 345 (E.D.N.Y. 2006)...9, 10 In re Chambers Dev. Sec. Litig., 912 F. Supp. 822 (W.D. Pa. 1995)...13 City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974)...10, 14 In re Currency Conversion Fee Antitrust Litig., No. 01 MDL 1409, 2006 WL (S.D.N.Y. Nov. 8, 2006)...9 In re Global Crossing Sec. & ERISA Litig., 225 F.R.D. 436 (S.D.N.Y. 2004)...8, 9, 12 In re Joint E. & S. Dists. Asbestos Litig., 878 F. Supp. 473 (E.D.N.Y. 1995)...11 In re Med. X-Ray Film Antitrust Litig., No. CV , 1997 WL (E.D.N.Y. Dec. 26, 1997)...10 In re Mut. Funds Inv. Litig., No. 04-md-15861, 2010 WL (D. Md. May 19, 2010)...7 In re NASDAQ Mkt.-Makers Antitrust Litig., 176 F.R.D. 99 (S.D.N.Y. 1997)...1, 9, 10, 13 In re NASDAQ Mkt.-Makers Antitrust Litig., 187 F.R.D. 465 (S.D.N.Y. 1998)...11, 13 ii

6 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 4 of 19 PageID #: In re PaineWebber Ltd. P ships Litig., 171 F.R.D. 104 (S.D.N.Y. 1997)...11 In re Sterling Foster & Co. Sec. Litig., 238 F. Supp. 2d 480 (E.D.N.Y. 2002)...11 In re Twinlab Corp. Sec. Litig., 187 F. Supp. 2d 80 (E.D.N.Y. 2002)...11 Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96 (2d Cir. 2005)...9 Statutes 15 U.S.C Other Authorities Fed. R. Civ. P , 2 Manual for Complex Litigation (Fourth) (2004)...9 Manual for Complex Litigation (Third) (1995)...10 iii

7 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 5 of 19 PageID #: I. INTRODUCTION Plaintiffs have negotiated a settlement with defendants Air China Limited and Air China Cargo Company Limited (collectively, Air China ) in the amount of $50,000, (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 commenced in early The First Consolidated Amended Complaint filed in February 2007 named more than two dozen defendant air carriers, including Air China. Plaintiffs alleged that defendants 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, artificially inflated surcharges, in violation of Section 1 of the Sherman Act, 15 U.S.C. 1. Defendants motions to dismiss plaintiffs claims were denied on August 21, The parties then undertook and completed discovery including more than 90 depositions. 1 All terms used in this Memorandum and accompanying documents have the same meaning as defined in the Settlement Agreement.

8 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 6 of 19 PageID #: After extensive submissions, including expert declarations, and three days of expert testimony, on October 15, 2014, Magistrate Judge Pohorelsky issued a 114-page Report and Recommendation ( Class Cert. R&R ) recommending that plaintiffs motion for class certification be granted and certain testimony of defendants experts be stricken. See ECF No The Class Cert. R&R was then adopted by the Court over defendants objections on July 10, See ECF 2282 (as amended on August 3, 2015 (ECF 2326)). Defendants sought to appeal under Rule 23(f), but, on November 3, 2015, the Second Circuit denied the motion. Case , Document 36. The Court then entered an order on November 6, 2015, ECF No. 2370, directing that notice be sent to class members informing them of the Court s ruling to certify the Class. Plaintiffs and certain defendants, including Air China, filed summary judgment motions on April 24, Plaintiffs filed motions against the affirmative defenses of state action, act of state, foreign sovereign compulsion, international comity, filed rate, and Noerr-Pennington. Air China filed a motion based on its purported non-involvement in the alleged worldwide conspiracy. Along with the other remaining defendants, Air China, filed motions regarding plaintiffs fuel surcharge claims, security surcharge claims, purported failure to prove antitrust damages, and claims allegedly barred by the statute of limitations, as well as on the aboveidentified affirmative defenses. On August 31, 2015, the Court denied defendants motions for summary judgment and granted all of plaintiffs summary judgment motions on defendants affirmative defenses. See ECF No (minute entry). 2

9 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 7 of 19 PageID #: Thus far, the Court has granted final approval to 22 settlements 2 and preliminary approval to four additional settlements. 3 Notice has gone out to all Class members regarding the first three of the settlements. 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 ): $ 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 (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 Airlines ): $92.5 million and cooperation (ECF No. 2362); (21) Cathay Pacific Airways Limited: $65 million and cooperation (ECF No. 2362); and (22) China Airlines, Ltd.: $90 million and cooperation (ECF No. 2362). 3 (1) Asiana Airlines, Inc.: $55 million and cooperation (ECF No. 2056); (2) Nippon Cargo Airlines Co., Ltd.: $36.35 million, plus $200,000 in notice costs and cooperation (ECF No. 2098); (3) EVA Airways Corporation: $99 million, plus $200,000 in notice costs and cooperation (ECF No. 2183). The final approval hearing for these three settlements is scheduled for March 24, 2016 (ECF No. 2370); and (4) Polar Air Cargo LLC, Polar Air Cargo Worldwide, Inc., and Atlas Air Worldwide Holdings, Inc. 3

10 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 8 of 19 PageID #: B. Settlement Negotiations The first discussions between plaintiffs and Air China exploring the possibility of settlement occurred over four years ago and were ultimately non-productive. See Declaration of Hollis Salzman in Support of Plaintiffs Motion for Preliminary Approval of Settlement With Defendants Air China Limited and Air China Cargo Company Limited, dated February 5, 2016 ( Salzman Decl. ), 2. After the Court s rulings on class certification and summary judgment, settlement discussions resumed in earnest between November and December 2015, with several and phone communications between counsel. Id. 3. On December 15, 2015, the parties attended an all-day mediation before Eric D. Green, a well-known mediator. Id. 3. The mediation was attended by several Air China executives, as well as counsel for plaintiffs and Air China. Id. It resulted in an agreement in principle. Id. Following additional negotiations regarding the terms of the settlement, counsel for plaintiffs and Air China signed the Settlement Agreement with an execution date of February 4, Id. 4. Both sides vigorously negotiated their respective positions on all material terms of the Settlement Agreement, and the negotiations were non-collusive. Id. 5. By the time of the 2015 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. 6. The Settlement Agreement, attached to the Salzman Declaration as Exhibit A, includes the following material terms: (collectively Polar ): $100 million. The final approval hearing for the first three settlements is scheduled for March 24, 2016 (ECF No. 2370). 4

11 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 9 of 19 PageID #: 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, Settlement Agreement, 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 China will pay the Settlement Amount into an escrow account within forty-five (45) days of the Execution Date. Id. 36. From the Settlement Amount, the sum of $250,000 may be used for reasonable costs of disseminating notice of the Settlement Agreement, including the cost of administration. Id. 37. All income earned on the Settlement Fund shall become and remain part of the Settlement Fund. Id The Cooperation Provisions Air China has agreed to provide cooperation to the Class that will aid in the prosecution of antitrust claims against the remaining defendants. Air China has agreed to produce, through affidavits or declarations or, if necessary, through deposition or testimony at trial, representatives who are qualified to authenticate Air China s documents and information that have been provided in this Action, and, to the extent possible, confirm that such documents and information are business records. Id 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, 10. 5

12 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 10 of 19 PageID #: The Release In exchange for Air China 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 China 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. 33. 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, 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. Id. 5 The full language of the release provisions is found at of the Settlement Agreement. 6

13 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 11 of 19 PageID #: Rescission Based on Opt-Outs The Settlement Agreement permits Air China to rescind the agreement based upon the ratio of opt-outs from the Class, but, unlike some prior settlements, it does not provide for any reduction of the Settlement Amount based on opt-outs. The Settlement Agreement permits Air China to elect between two types of opt-out ratios: (1) the Opt-Out Ratio, which is calculated by dividing the U.S. dollar amount of all Opt-Out Sales by the U.S. dollar amount of all Defendants direct sales to the Class; or (2) the Alternative Opt-Out Ratio, which is calculated by dividing the U.S. dollar amount of Air China s direct sales to an Opt-Out Plaintiff by the U.S. dollar amount of Air China s direct sales to the Class. Id. 3, 15, 44. If the Opt-Out Ratio or Alternative Opt-Out Ratio exceed a certain threshold, which is set forth in a separate side letter agreement between the parties, Air China has the option to rescind the agreement. Id In the Notice to the Class approved by the Court regarding class certification, all Class members that wish to opt out of the certified Class must postmark their opt-out requests no later than January 22, See November 6, 2015 Order. On or before February 11, 2016, plaintiffs will provide Air China with: (1) a list of all Opt-Out Plaintiffs; (2) for each Opt-Out Plaintiff, that Opt-Out Plaintiff s Opt-Out Sales; and (3) the Opt-Out Ratio. Id. 44(a). 6 The Opt-Out Ratio and Alternative Opt-Out Ratio are reflected in a confidential letter between the parties and can be made available to the Court, if requested. See In re Mut. Funds Inv. Litig., No. 04- md-15861, 2010 WL (D. Md. May 19, 2010) (side letter reflecting terms of opt-out rescission agreement).the percentage amount of purchases represented by Opt-Out Plaintiffs that triggers the right of the parties to rescind the agreement is often referred to as a blow percentage. The exact blow percentage is not relevant to Class members decisions as to whether to remain in or exclude themselves from the Class. Rather, what is relevant is the amount being paid, the cooperation terms, the release terms, and the fact that the sales by Air China remain in the case. Moreover, this Court has granted both preliminary and final approval to prior settlements that had been accompanied by a confidential side letter reflecting the terms of an opt-out rescission agreement by the parties. See e.g., Cargolux Prel. App. Order (ECF No. 1362); Cargolux Final App. Order (ECF No. 1524); El Al Prel. App. Order (ECF No. 1630); El Al Final App. Order (ECF No. 1732); Cathay Pacific Prel. App. Order (ECF No. 1992); Asiana Prel. App. Order (ECF No. 2056). 7

14 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 12 of 19 PageID #: In the event that Air China dispute plaintiffs claimed Opt-Out Sales or Opt-Out Ratio, or if Air China believes in good faith that the Alternative Opt-Out Ratio should apply, Air China will provide notice to Class Counsel by February 29, 2016, stating the grounds for its dispute or election to apply the Alternative Opt-Out Ratio. Id. 44(b). Concurrent with any notice regarding its intent to apply the Alternative Opt-Out Ratio, for each Opt-Out Plaintiff, Air China shall provide Class Counsel the total U.S. dollar amount of Air China s direct sales to that Opt- Out Plaintiff during the Class Period and the resulting Alternative Opt-Out Ratio. Id. In the event that Air China requests application of the Alternative Opt-Out Ratio, such request shall become effective, and replace the Opt-Out Ratio. Id. Class Counsel shall respond to such notification on or before March 10, Id. If the Opt-Out Ratio or the Alternative Opt-Out Ratio equals or exceeds the amount agreed to by the parties, then Air China will have the option to rescind the Settlement Agreement within ten business days after agreement or resolution of any dispute as to the Opt-Out Ratio or Alternative Opt-Out Ratio. Id. 44(c). Air China is not obligated to rescind the Settlement Agreement, but it is obligated to first discuss with plaintiffs in good faith whether the Settlement Agreement can be re-negotiated rather than rescinded. Id. III. ARGUMENT A. The Settlement of Complex Litigation Is Favored Plaintiffs and Air China have reached an agreement that maximizes plaintiffs recovery and provides cooperation from Air China in the prosecution of plaintiffs claims against the remaining non-settling defendants. Plaintiffs have avoided the potential risks inherent in complex antitrust class action litigation and secured a substantial cash payment from Air China, as well as significant other benefits for the Class. Reaching such a positive result at this stage in the litigation enhances the attractiveness of this settlement. See In re Global Crossing Sec. & ERISA 8

15 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 13 of 19 PageID #: 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 public policy favoring settlement. In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-md-1775, 2009 WL , 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 , 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, (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, (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 Complex Litigation (Fourth) (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 , 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 9

16 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 14 of 19 PageID #: 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 , 1997 WL , at *6 (E.D.N.Y. Dec. 26, 1997) (citing NASDAQ I, 176 F.R.D. 99, and Manual for Complex Litigation (Third) (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. The negotiations here were conducted by experienced counsel on both sides at arm s length, spanned several weeks, and included an all-day mediation. See Salzman Decl Plaintiffs counsel were well-informed of the material facts, and the negotiations were noncollusive. Id Further, the substantial cash payment makes this settlement fall well within the range of possible approval. 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 s claims. See City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974). 7 7 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 10

17 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 15 of 19 PageID #: 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 , at *7 (finding Lufthansa settlement procedurally fair because it was the product of arm s length negotiations between experienced and capable counsel ); see also In re Air Cargo Shipping Servs. Antitrust Litig., 2011 WL , 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 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. 11

18 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 16 of 19 PageID #: 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). 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 , at *4 (E.D.N.Y. Aug. 2, 2012) (incorporating the reasoning and conclusions set forth in the Court s previous opinions approving settlements in this litigation); In re Air Cargo Shipping Servs. Antitrust Litig., 2011 WL , at *6; In re Air Cargo Shipping Servs. Antitrust Litig., 2009 WL , at *7. Here, settlement negotiations involved a day-long meeting mediated by an experienced mediator and numerous phone and communications. See Salzman Decl. 3. 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 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 (analyzing issues in context of class certification); In re Air Cargo Shipping Servs. Antitrust Litig., 2009 WL , at *7 (discussing negotiation process arriving at Lufthansa settlement). Class Counsel were well informed of the facts of the case and 12

19 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 17 of 19 PageID #: the strength of the claims asserted when the terms of the Settlement Agreement were negotiated. See Global Crossing, 225 F.R.D. at 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, adequate and reasonable. NASDAQ I, 176 F.R.D. at 102. Continuing this litigation against Air China would entail a highly expensive legal battle, involving complex legal and factual issues where motions in limine and Daubert motions would be vigorously contested, as evidenced by the recently filed summary judgment motions. 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. 8 See NASDAQ II, 187 F.R.D. at In denying defendants summary judgment motions, the Court stated that the 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 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). Further, because liability under the Sherman Act is joint and several and Air China s sales remain in the case, this settlement in no way prejudices the Class s ability to recover its full treble damages caused by the alleged conspiracy. 8 Because Class Counsel will likely have to litigate against the other defendants through trial and appeal, their duties to the Class preclude a full discussion of their potential litigation risks. 13

20 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 18 of 19 PageID #: The Settlement Amount of $50,000,000 is multiples of any previous settlement with a settled defendant who, like Air China, did not plead guilty in the United States. Those seven settlements ranged from $3.2 million (Malaysia) to $14 million (Saudia) and averaged $6.33 million. 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 notice of the Polar settlement and any future settlements with the remaining defendants. See Settlement Agreement, 37. IV. PRELIMINARY APPROVAL ORDER Plaintiffs respectfully submit that the proposed Settlement Agreement with Air China falls well within the range of possible approval. Plaintiffs therefore request that the Court: 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 China. 14

21 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 19 of 19 PageID #: Dated: February 5, 2016 Respectfully Submitted, Robert N. Kaplan Hollis Salzman Gregory K. Arenson Meegan Hollywood Elana Katcher ROBINS KAPLAN LLP KAPLAN FOX & KILSHEIMER LLP 601 Lexington Avenue, Suite Third Avenue, 14 th Floor New York, NY New York, NY (212) (212) By: /s/ Hollis L. Salzman Gary L. Specks KAPLAN FOX & KILSHEIMER LLP 423 Sumac Road Highland Park, IL (847) By: /s/ Robert N. Kaplan Howard J. Sedran Michael D. Hausfeld Austin B. Cohen Brent W. Landau Keith J. Verrier Hilary K. Scherrer LEVIN, FISHBEIN, SEDRAN & BERMAN Melinda R. Coolidge 510 Walnut Street HAUSFELD LLP Philadelphia, PA K Street, N.W., Suite 650 (215) Washington, DC (202) By: /s/ Howard J. Sedran By: /s/ Michael D. Hausfeld Class Counsel 15

22 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 1 of 31 PageID #: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK IN RE AIR CARGO SHIPPING SERVICES ANTITRUST LITIGATION Master File 06-MD-1775 (BMC) (VVP) THIS DOCUMENT RELATES TO: All Actions MDL No DECLARATION OF HOLLIS L. SALZMAN IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT WITH DEFENDANTS AIR CHINA LIMITED AND AIR CHINA CARGO COMPANY LIMITED I, Hollis Salzman, declare: 1. I am a partner in the law firm of Robins Kaplan LLP. The Court has appointed me as one of four Class Counsel in this case. I submit this declaration in support of Plaintiffs' Motion for Preliminary Approval of Settlement with Defendants Air China Limited and Air China Cargo Company Limited, dated February 4, 2016 (Exhibit A hereto). I have personal knowledge of the information set forth in this declaration. 2. Settlement discussions with Air China began over four years ago in May 2011, but they did not lead to an agreement. 3. The parties re-started their settlement negotiations in November Between November and December 2015, counsel for plaintiffs and Air China had numerous phone and communications, in which they discussed the possibility of settlement. These discussions led to an all-day mediation on December 15, 2015 before Eric D. Green, a well-known mediator. The mediation was attended by several Air China executives and counsel for plaintiffs and Air China. The mediation resulted in an agreement in principle.

23 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 2 of 31 PageID #: Following additional negotiations regarding the terms of the settlement agreement, counsel for plaintiffs and Air China signed the Settlement Agreement with an execution date of February 4, Both sides vigorously negotiated their respective positions on all material terms of the Settlement Agreement and the negotiations were non-collusive. 6. 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. 7. I declare under penalty of perjury that the foregoing is true and correct. Executed this 5th day of February 2016 in New York, New York. H lli Salzman -2

24 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 3 of 31 PageID #: Exhibit A

25 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 4 of 31 PageID #: IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK IN RE: AIR CARGO SHIPPING SERVICES ANTITRUST LITIGATION Master File 06-MD-1775 (JG) (VVP) ALL CASES MDL No SETTLEMENT AGREEMENT This Settlement Agreement (the Agreement ) is made and entered into as of this 4th day of February, 2016 (the Execution Date ), by and between Air China Limited and Air China Cargo Company Limited ( Settling Defendants ) 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 Defendants 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, WHEREAS, Plaintiffs are prosecuting the Action on their own behalf and on behalf of the Class (as defined below); WHEREAS, Plaintiffs allege that Settling Defendants 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;

26 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 5 of 31 PageID #: WHEREAS, Settling Defendants deny Plaintiffs allegations and have asserted a number of defenses to Plaintiffs claims; WHEREAS, Plaintiffs and Settling Defendants 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 Defendants 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 Defendants, 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 Defendants 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 Defendants, despite their belief that they have good defenses to the claims alleged, have nevertheless agreed to enter into this Agreement to avoid the expense, inconvenience, and the distraction of potentially burdensome and protracted litigation; WHEREAS, Plaintiffs recognize the benefits of Settling Defendants cooperation and recognize that, because of joint and several liability, this Agreement with Settling Defendants does not impair Plaintiffs ability to collect the full amount of damages to which they and the Class may be entitled in this Action; and 2

27 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 6 of 31 PageID #: WHEREAS, Settling Defendants have agreed to cooperate with Plaintiffs as set forth in this Agreement, and, therefore, will reduce Plaintiffs burden and expense associated with prosecuting the Action. 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 Defendants and all other Released Parties, without costs as to Plaintiffs, the Class, or Settling Defendants, 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 NMG (D. Mass.), Benchmark Export Services et al. v. De Jong, Case No. 2:10-CV TB (E.D.N.C.), and Benchmark Export Services et al. v. Sanfilippo, Case No. 10-CV JG-VVP (E.D.N.Y.), all actions pending such transfer (including but not limited to 3

28 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 7 of 31 PageID #: 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. Alternative Opt-Out Ratio means the U.S. dollar amount of purchases of Airfreight Shipping Services to and from the United States by an Opt-Out Plaintiff (defined at Paragraph 14) directly from Settling Defendants during the period from January 1, 2000 up to and including September 30, 2006 divided by the total dollar amount of all direct sales of Airfreight Shipping Services to and from the United States by Settling Defendants to the Class (defined at Paragraph 5) during the period from January 1, 2000 up to and including September 30, 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. 5. 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,

29 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 8 of 31 PageID #: 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 ; and Levin, Fishbein, Sedran & Berman, 510 Walnut Street, Philadelphia, PA Class Member means each member of the Class who does not timely and validly elect to be excluded from the Class by January 22, 2016, pursuant to the Court s Order dated November 6, 2015 (ECF No. 2370). 8. Class Period means the period from and including January 1, 2000 up to and including September 30, Court means the United States District Court for the Eastern District of New York. 10. 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). 11. 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 5

30 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 9 of 31 PageID #: 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. 12. Escrow Account is the account referenced in Paragraph 36 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 Defendants. 13. 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. 14. Opt-Out Plaintiff means a person, otherwise qualifying as a member of the Class, who has timely and validly elected to be excluded from the Class. 15. Opt-Out Ratio means the U.S. dollar amount of all Opt-Out Sales divided by the U.S. dollar amount of all direct sales of Airfreight Shipping Services to and from the United States by all Defendants during the Class Period. 16. Opt-Out Sales means the U.S. dollar amount of purchases (as reflected in the database maintained by Class Counsel) of Airfreight Shipping Services to and from the United States by an Opt-Out Plaintiff directly from Defendants during the Class Period. 17. Preliminary Approval Date means the date on which the Court enters an order granting preliminary approval of this Agreement. 18. Released Claims shall refer to the claims described in Paragraph 33 of this Agreement. 6

31 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 10 of 31 PageID #: Released Parties shall refer jointly and severally, individually and collectively, to Settling Defendants, 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 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 Defendants. As used in this definition, affiliates means entities controlling, controlled by or under common control with any of the Released Parties. 20. 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. 21. Settlement Amount means $50,000, in U.S. dollars. 22. Settlement Fund shall be the amount paid by Settling Defendants in settlement of the Action pursuant to Paragraph 36 of this Agreement and any income earned on amounts in the fund. 23. Settlement Hearing has the meaning attributed to it in Paragraph 30(a). 7

32 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 11 of 31 PageID #: Settling Defendants Counsel shall refer to the law firms of Wilson Elser Moskowitz Edelman & Dicker, Jones Day or any firm later retained by Settling Defendants to represent them in this Action. B. Class Certification 25. 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, C. Approval of this Agreement, Notice, and Dismissal of Claims 26. Plaintiffs and Settling Defendants 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 Defendants. 27. 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 Defendants before submission of the motion. 28. 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 Defendants before submission of the notice to the Court for approval. 8

33 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 12 of 31 PageID #: Settling Defendants shall notify federal and state officials of this settlement as specified in 28 U.S.C. 1715(a) & (b). 30. Notice to the Class shall be given as follows, or as otherwise deemed sufficient by the Court: (a) (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, 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 ). 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. 31. Plaintiffs shall seek entry of an order and a final judgment, the text of which shall be agreed upon by Plaintiffs and Settling Defendants before submission to the Court: (a) (b) (c) 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; reserving to the Court exclusive jurisdiction over the settlement and this Agreement, including the administration and consummation of this settlement; 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, and to provide a copy of the record to Settling Defendants Counsel; and 9

34 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 13 of 31 PageID #: (d) dismissing the Action with prejudice as to the Released Parties. 32. This Agreement shall become final only upon occurrence of the Effective Date. D. Release and Discharge 33. Upon the occurrence of the Effective Date and in consideration of the payment by Settling Defendants 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 Defendants 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, 10

35 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 14 of 31 PageID #: 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, 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. 34. 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. 35. The release set forth in Paragraph 33 constitutes a waiver of Section 1542 of the California Civil Code and Section 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 33, and in 11

36 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 15 of 31 PageID #: furtherance of such intention, this release shall be and remain in effect notwithstanding the 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 36. Settling Defendants 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 Defendants or their designee within forty-five (45) days of the Execution Date. 37. 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. 38. 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 Defendants 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 Defendants 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 39. 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. 12

37 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 16 of 31 PageID #: B-1, and to that end the parties to this Agreement shall cooperate with each other and shall not take a position in any filing or before any tax authority that is inconsistent with such treatment. At the request of Settling Defendants, a relation back election as described in Treas. Reg B-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. 40. 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. 41. Settling Defendants 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. 42. 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 13

38 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 17 of 31 PageID #: collateral attack, the fee or cost award is reduced or reversed. Except as provided in Paragraph 36, Settling Defendants 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. G. Rescission of the Agreement 43. 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 31 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 Defendants 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. 44. (a) On or before February 11, 2016, Plaintiffs shall provide Settling Defendants with (i) a written list of all Opt-Out Plaintiffs, together with (ii) for each Opt-Out Plaintiff, that Opt-Out Plaintiff s Opt-Out Sales; and (iii) the Opt-Out Ratio. The purchase amounts referred to in this Paragraph 44(a)(ii) shall be derived from Class Counsel s electronic database. (b) In the event that Settling Defendants dispute Plaintiffs claimed Opt-Out Sales, and/or the Opt-Out Ratio, or if Settling Defendants in good faith believe that the Alternative Opt-Out Ratio should apply, Settling Defendants must notify Class Counsel on or 14

39 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 18 of 31 PageID #: before February 29, Such notification shall include the basis for any dispute or for the application of the Alternative Opt Out-Ratio and any supporting data or documentation. If Settling Defendants request application of the Alternative Opt-Out Ratio, the notice shall also provide Settlement Class Counsel the total U.S. dollar amount of purchases of Airfreight Shipping Services to and from the United States by an Opt-Out Plaintiff directly from Settling Defendants during the Class Period for each Opt-Out Plaintiff, and the resulting Alternative Opt- Out Ratio. In the event that Settling Defendants request application of the Alternative Opt-Out Ratio, such request shall become effective, and replace the Opt-Out Ratio, if Settling Defendants provide Class Counsel with data or documentation substantially verifying the Alternative Opt- Out Ratio calculation. Class Counsel shall respond to such notification on or before March 10, If, after good faith discussion about any dispute or objection arising under Paragraph 44(a)-(b), the parties cannot agree to a resolution, they shall submit the dispute(s) to arbitration for final resolution pursuant to Paragraph 56. (c) In the event that the Opt-Out Ratio or the Alternative Opt-Out Ratio, expressed as a percentage, is equal to or greater than the percentage set forth in a separate letter agreement between Class Counsel and Settling Defendants, then Settling Defendants shall have the right and option, but not the obligation, to rescind the Agreement as set forth in Paragraph 43. In order to invoke rights to rescind the Agreement, Settling Defendants must notify Class Counsel in writing within ten (10) business days of agreement to or resolution of the Opt-Out Ratio or Alternative Opt-Out Ratio under Paragraph 44(b). Settling Defendants shall not be obligated to rescind the Agreement but shall first be obligated to discuss with Class Counsel in good faith whether the Agreement can be renegotiated rather than rescinded. 15

40 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 19 of 31 PageID #: 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 Defendants. 46. Settling Defendants and Plaintiffs expressly reserve all of their rights if this Agreement does not become effective or if it is rescinded by Plaintiffs or Settling Defendants pursuant to Paragraphs 43 or 44 of this Agreement. Further, Plaintiffs and Settling Defendants agree that this Agreement, whether or not it is finally approved and whether or not Settling Defendants or Plaintiffs elect to rescind it under Paragraphs 43 or 44 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 Defendants 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 47. Settling Defendants shall cooperate with Class Counsel as set forth specifically below. 48. To the extent that any of Settling Defendants documents produced by Settling Defendants or any other Defendant in the Action are authentic or business records, including but not limited to evidence of Settling Defendants sales or costs of Airfreight Shipping Services or surcharges related thereto, Settling Defendants agree to produce, through affidavits or declarations, or, if necessary, through deposition or testimony at trial, representatives qualified to 16

41 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 20 of 31 PageID #: 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 Defendants of any such authentication or business records testimony. 49. Notwithstanding any other provision in this Agreement, Plaintiffs and Class Counsel agree that any information provided by Settling Defendants Counsel in connection with and/or as part of this settlement shall be protected by Federal Rule of Evidence 408, and shall in no event be discoverable by any person or treated as evidence of any kind, unless otherwise ordered by a Court. 50. Settling Defendants obligations to cooperate shall not be affected by the release set forth in Paragraph 33 of this Agreement. Unless this Agreement is rescinded, disapproved, or otherwise fails to take effect, Settling Defendants 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. 51. Settling Defendants 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 56 of this Agreement. I. Taxes 52. 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 17

42 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 21 of 31 PageID #: 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 Defendants 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 settlement is not consummated and until the Settlement Fund is returned to Settling Defendants. In the event the Settlement Fund is returned to Settling Defendants because the settlement is not consummated, Settling Defendants 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 Defendants make 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 53. 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 Defendants 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 18

43 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 22 of 31 PageID #: 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 54. 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. 55. With the exception of matters expressly declared subject to arbitration in this Agreement, Settling Defendants and their 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. 56. 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. 57. 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 19

44 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 23 of 31 PageID #: subject matter of this Agreement. 58. This Agreement may be modified or amended only by a writing executed by Plaintiffs and Settling Defendants and, after the Preliminary Approval Date, with approval by the Court. 59. 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 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. 60. Neither Settling Defendants 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. 61. 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. 62. 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. 63. This Agreement shall be binding upon, and inure to the benefit of, the Releasing Parties and the Released Parties. 64. 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 20

45 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 24 of 31 PageID #: 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. 65. 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. 66. This Agreement may be executed in counterparts by counsel for Plaintiffs and Settling Defendants, and a facsimile signature shall be deemed an original signature for purposes of executing this Agreement. 67. 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 68. 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 Defendants: Name: Address: Telephone: George N. Tompkins III WILSON ELSER MOSKOWITZ EDELMAN & DICKER 150 East 42nd Street New York, NY

46 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 25 of 31 PageID #: Facsimile: Copy to Address: Telephone: Facsimile: J. Bruce McDonald JONES DAY 717 Texas Avenue Houston, Texas If to Class Counsel: Name: Address: Hollis L. Salzman Robins Kaplan LLP 601 Lexington Ave, Suite 3400 New York, NY Telephone: Facsimile: Name: Michael D. Hausfeld Address: Hausfeld LLP 1700 K Street, NW, Suite 650 Washington, DC Telephone: Facsimile: mhausfeld@hausfeldllp.com Name: Address: Telephone: Facsimile: Name: Address: Telephone: Facsimile: Robert N. Kaplan Kaplan Fox & Kilsheimer LLP 850 Third Avenue, 14th Floor New York, NY rkaplan@kaplanfox.com Howard J. Sedran Levin, Fishbein, Sedran & Berman 510 Walnut Street, Suite 500 Philadelphia, PA HSedran@lfsblaw.com 22

47 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 26 of 31 PageID #: Dated: February 4, 2016 Hollis Salzman Meegan Hollywood ROBINS KAPLAN LLP 601 Lexington Ave, Suite 3400 New York, NY Telephone: (212) Facsimile: (212) Michael D. Hausfeld Brent W. Landau Hilary K. Scherrer HAUSFELD LLP 1700 K Street, NW, Suite 650 Washington, DC Telephone: (202) Facsimile: (202) Robert N. Kaplan Gregory K. Arenson Elana Katcher KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue, 14th Floor New York, NY Telephone: (212) Facsimile: (212) and Gary L. Specks (GS-8767) KAPLAN FOX & KILSHEIMER LLP 423 Sumac Road Highland Park, IL Telephone: (847) Facsimile: (847) Class Counsel Howard J. Sedran Austin B. Cohen Keith J. Verrier LEVIN, FISHBEIN, SEDRAN & BERMAN 510 Walnut Street Philadelphia, PA Telephone: (215) Facsimile: (215)

48 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 27 of 31 PageID #:

49 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 28 of 31 PageID #:

50 Case 1:06-md BMC-VVP Document Filed 02/05/16 Page 29 of 31 PageID #: