Case 1:06-md JG-VVP Document Filed 06/22/12 Page 1 of 82 PageID #: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

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1 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 1 of 82 PageID #: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK IN RE: AIR CARGO SHIPPING SERVICES ANTITRUST LITIGATION Master File 06-MD-1775 (JG) (VVP) ALL CASES MDL No JOINT DECLARATION OF CO-LEAD COUNSEL IN SUPPORT OF (1) FINAL APPROVAL OF THE SETTLEMENTS WITH BRITISH AIRWAYS PLC, LAN AIRLINES, S.A, LAN CARGO, S.A., AEROLINHAS BRASILEIRAS, S.A., MALAYSIA AIRLINES, SOUTH AFRICAN AIRWAYS, LTD., SAUDI ARABIAN AIRLINES, LTD., EMIRATES, EL AL ISRAEL AIRLINES, LTD., AIR CANADA, AC CARGO LP, AND SALVATORE SANFILIPPO; (2) THE PLAN OF ALLOCATION; AND (3) PLAINTIFFS COUNSEL S JOINT APPLICATION FOR INTERIM ATTORNEYS FEES AND REIMBURSEMENT OF INTERIM EXPENSES

2 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 2 of 82 PageID #: TABLE OF CONTENTS I. PRELIMINARY STATEMENT. 1 II. HISTORY OF THE LITIGATION DURING THE TIME PERIOD JANUARY 1, 2011 THROUGH DECEMBER 31, A. PLAINTIFFS DISCOVERY Plaintiffs Document Requests Directed To Defendants...7 a. Plaintiffs Third Set of Requests for Production of Documents to AAWW...8 b. Plaintiffs Second Set of Requests for Production to Air Canada, AC Cargo, British Airways PLC, Cathay Pacific Airways Ltd., Lan Airlines S.A., Lan Cargo S.A. and Singapore Airlines Ltd....8 c. Plaintiffs Document Requests to Korean Airlines Co. Ltd ( KE...9 d. Plaintiffs Requests for Production of Documents Produced By Certain Defendants In the High Court of New Zealand...10 e. Plaintiffs Second Set of Requests For Production of Documents to KE...10 f. Plaintiffs Requests for Production of Antitrust Compliance Manuals to Polar Air Cargo, Inc., Atlas Air Worldwide Holdings, Inc. and Polar Air Cargo Worldwide, Inc Plaintiffs Interrogatories Directed To Defendants...11 a. Defendants Supplemental Responses to Plaintiffs' First Set of Interrogatories Directed to All Defendants...11 b. Plaintiffs First Set of Interrogatories to the Benchmark Defendants...12 c. Plaintiffs Second Set of Interrogatories Directed To All Airline Defendants...13 d. Plaintiffs Third Set of Interrogatories to All Airline Defendants...14 i

3 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 3 of 82 PageID #: Defendants Supplemental Document Production Defendants Transaction and Cost Information Depositions Conducted By Plaintiffs...16 B. DEFENDANTS DISCOVERY Defendants Interrogatories Directed to Plaintiffs...18 a. Plaintiffs Supplemental Response to Defendant KE s First Set of Interrogatories...18 b. Plaintiffs Supplemental Responses to Defendant Asiana Airlines, Inc. s Interrogatory No. 2 and Korean Airlines Co., Ltd s Interrogatory No c. KE s Second Set of Interrogatories to Plaintiffs...20 d. Air India First Set of Interrogatories...20 e. Polar Air Cargo LLC First Set of Interrogatories to Plaintiffs Defendants Document Requests Directed to Plaintiffs...21 a. Defendants Second Set of Document Requests to Plaintiffs...21 b. Plaintiffs Supplemental Document Productions Depositions of Named Plaintiffs...23 C. Plaintiffs Motions to Compel Motion to Compel AAWW to Produce all Executed Agreements and Final Transaction Documents Related to DHL s June 2007 Purchase of a 49 Percent Interest in Polar Motion to Compel AAWW to Produce Certain Documents That It Had Improperly Withheld On the Basis of AttorneyClient Privilege Motion to Compel Air India to Produce Harminder Rana, a Current Employee, for a Deposition in the United States...25 ii

4 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 4 of 82 PageID #: Motion to Compel Singapore Air to Provide Full and Complete Responses to Plaintiffs First Set of Interrogatories Nos. 1, 2, 4, and Motion to Compel Singapore Air to Provide Supplemental Interrogatory Responses Motion to Compel Singapore Air to Produce Its Former Employee, Soon Leng Lim, for a Deposition In the United States Motion to Compel KE to Request its Former Employee, Moonho Song, to Travel from the Republic of Korea to the United States to Be Deposed by the Plaintiffs Motion for an Order Issuing a Letter of Request for International Judicial Assistance to Compel the Testimony of Moonho Song, a Former KE Employee Motion to Compel KE and NCA Regarding Their U.S. Guilty Pleas...29 a. Motion to Compel KE to Produce a Properly Educated, Knowledgeable Rule 30(b)(6) Witness in New York City regarding its Guilty Plea...29 b. Motion to Compel NCA to Provide a Properly Educated and Knowledgeable Rule 30(b)(6) Witness In the United States Regarding Its U.S. Guilty Plea...30 c. Plaintiffs Objections to Minute Orders of September 9 and 29, 2011 Denying Motions to Compel Deposition Testimony by KE and NCA Concerning the Dates, Participants and Substance of Pricefixing Discussions, Meetings and Agreements Which Were the Basis of their Guilty Pleas Motion to Compel KE and NCA Regarding KFTC Findings...32 a. Motion to Compel KE to Produce a Properly Educated, Knowledgeable Rule 30(b)(6) Witness Regarding the KFTC Findings...32 b. Motion to Compel NCA to Provide a Prepared and Educated Corporate Representative to Testify To the Facts Concerning Certain Facts Described In a KFTC Resolution Motion to Compel Certain Defendants to Produce An Unredacted Copy of the European Commission s Final Decision...34 iii

5 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 5 of 82 PageID #: The EC s Opposition to Plaintiffs Motion to Compel Motion For Class Certification...36 D. Other Motions and Proceedings Plaintiffs Motions and Proceedings...37 a. Plaintiffs Motion to Join Polar Worldwide As a Defendant...37 b. Motion for a Determination That There Was No Merit to AttorneyClient Privilege Objections Asserted By Singapore Air...38 c. Plaintiffs Request for an Order Issuing a Letter Rogatory...39 d. Motion for an Order Issuing a Letter of Request for International Judicial Assistance to Compel the Testimony of Soon Young Lee, a Former KE Employee Defendants Motions and Proceedings...40 a. KE Objections to Memorandum Order Granting Plaintiffs Motion to Compel Discovery of KFTC Materials...40 b. KE s Motion for Protective Order...42 c. AAWW s and Polar s Request for a PreMotion Conference In Connection With Their Motion for Summary Judgment...43 E. Plaintiffs Petition for Grand Jury Transcripts F. Interviews G. Court Appearances III. SETTLEMENTS 45 A. Lan/ABSA Settlement Preliminary Approval of the Lan/ABSA Settlement...47 B. British Airways Settlement iv

6 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 6 of 82 PageID #: Preliminary approval of the British Airways Settlement...49 C. South African Settlement Preliminary Approval of the South African Settlement...51 D. Malaysia Settlement Preliminary Approval of the Malaysia Settlement...52 E. Saudia Settlement Preliminary Approval of the Saudia Settlement...53 F. Emirates Settlement Preliminary Approval of the Emirates Settlement...55 G. El Al Settlement Preliminary Approval of the El Al Settlement...57 H. Air Canada Settlement Preliminary Approval of the Air Canada Settlement...58 I. Sanfilippo Settlement Preliminary Approval of the Sanfilippo Settlement...60 IV. PLAN OF ALLOCATION 60 V. INTERIM ATTORNEYS FEES AND EXPENSES 61 v

7 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 7 of 82 PageID #: Robert, N. Kaplan, Michael D. Hausfeld, Howard J. Sedran and Hollis L. Salzman declare: We are plaintiffs Co-Lead and Settlement Class Counsel for direct purchaser plaintiffs in the above captioned action (the Litigation ). We make this declaration in support of plaintiffs applications for (1) final approval of the settlements between plaintiffs and British Airways Plc ( British Airways ); Lan Airlines, S.A., Lan Cargo, S.A., and Aerolinhas Brasileiras, S.A. ( Lan/ABSA ); Malaysia Airlines ( Malaysia ); South African Airways Ltd. ( South African ); Saudi Arabian Airlines, Ltd. ( Saudia ); Emirates; El Al Israel Airlines Ltd. ( El Al ); Air Canada and AC Cargo LP ( Air Canada ); and Salvatore Sanfilippo (together, the Third Settlements ), (2) approval of the plan of allocation of the settlement proceeds, and (3) an interim award of attorneys fees and reimbursement of expenses to the 73 law firms included in this interim joint application. We have personal knowledge of the matters set forth in this declaration, and, if called as a witness, each of us could and would testify competently to those matters. I. PRELIMINARY STATEMENT 1. The purpose of this declaration is to set forth in summary fashion the background and history of the case, including the discovery conducted, the extensive motion practice, and the arms-length negotiations that led to the Third Settlements and the services performed during the period January 1, 2011 through December 31, Our prior joint declaration, dated May 10, 2011 ( May 2011 Joint Decl. ) sets forth the services performed during the period December 6, 2006 through December 31, (ECF No. 1474) 1

8 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 8 of 82 PageID #: The action was filed in or about February 2006 and was transferred to this Court by the Judicial Panel on Multi-District Litigation on June 20, Thereafter, the case has been vigorously litigated for the past six years. 3. On September 11, 2006, plaintiffs entered into a settlement agreement with Lufthansa for $85 million plus cost of providing notice to the Settlement Class (the First Settlement ). 2 Later, additional settlements totaling $193,430,000 were entered into with the following nine defendants: (1) 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 substantial cooperation; (2) Japan Airlines International Co., Ltd ( JAL ): $12 million, plus substantial cooperation; (3) AMR Corporation and American Airlines, Inc. (collectively, AA ): $5 million, plus the cost of providing notice to the class and substantial cooperation; (4) Scandinavian Airlines System and SAS Cargo Group A/S (collectively, SAS ): $13.93 million, plus notice costs up to $500,000 and substantial cooperation; (5) ANA: $10.4 million, plus substantial cooperation; (6) Cargolux: $35.1 million, plus notice costs of up to $150,000 and substantial cooperation; (7) Qantas: $26.5 million, plus notice costs of up to $250,000 and substantial cooperation; and (8) Thai: $3.5 million (together, the Second Settlements ). In March and July 2011, the Court granted final approval of the Second settlements. 4. In connection with the Second Settlements, plaintiffs counsel filed an application for attorneys fees and reimbursement of expenses on May 10, On July 15, 2011, the 2 In connection with the First Settlement, plaintiffs counsel submitted Plaintiffs Supplemental Fee Application and Expense Report on February 18, 2009 and on September 25, 2009, the Court awarded plaintiffs counsel (both direct and indirect) attorneys fees in the amount of $12,750,000 and expenses of $1,572, (ECF No. 963) Special Master retired Judge Daniel Weinstein allocated $9,553, of that amount to direct purchasers counsel. 2

9 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 9 of 82 PageID #: Court awarded attorneys fees of 25% of the settlement fund, plus expenses of $3,251, (ECF No. 1524). 5. The Third Settlements include nine settlements totaling $207,135,000, with the following defendants: British Airways ($ million); Lan/ABSA ($66 million); Malaysia ($3.2 million); South African ($3.29 million); Saudia ($14 million); Emirates ($7.833 million); El Al ($15.8 million of which $6 million shall be paid in five installments); Air Canada ($7.5 million); and Salvatore Sanfilippo ( Sanfilippo ). All of these settlements, except the settlement with Sanfilippo (cooperation only), include cash payments which have been paid into escrow accounts, except for the El Al deferred payments. In addition, British Airways has agreed to pay up to an additional $500,000 and Lan/ABSA has agreed to pay up to an additional $150,000 towards the cost of notice and Malaysia and South African have each agreed to pay up to $150,000 towards the cost of notice and settlement administration. All the Settling Defendants, including Sanfilippo, also have agreed to cooperate with plaintiffs in the case against the remaining defendants None of the time related to the First Settlement (i.e., the Lufthansa Settlement) is included in the lodestar cross check for this interim fee request. 7. None of the expenses awarded by the Court in connection with the First or Second Settlements are included in the request for reimbursement of expenses here. The May This litigation is continuing to be vigorously prosecuted against the following defendants: Asiana Airlines Inc, ( Asiana ); Nippon Cargo Airlines Co., Ltd. ( NCA ); Korean Air Lines Co., Ltd. ( KE ); Singapore Airlines, Ltd. ( Singapore Air ); China Airlines, Ltd. ( China Air ); Eva Airways Corporation ( EVA ); Air India; Cathay Pacific Airways, Ltd. ( Cathay Pacific ); Air China, Ltd d/b/a Air China and Air China Cargo Company Ltd. d/b/a Air China Cargo ( Air China ); Air New Zealand Limited d/b/a Airways New Zealand ( ANZ ); Polar Air Cargo, Inc., ( Polar ); Polar Air Cargo Worldwide, Inc. ( Polar Worldwide ); and Atlas Air Worldwide Holdings, Inc. ( AAWW ). (Polar, Polar Worldwide, and AAWW are collectively referred to as the Polar Defendants ). 3

10 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 10 of 82 PageID #: Joint Decl. described the services performed during the period December 6, 2006 through December 31, As set forth therein, after careful vetting, the 72 law firms making that interim fee application had 148, hours for a lodestar of $60,303, for that time period. As set forth in this Joint Declaration, during the period January 1 through December 31, 2011, 47 plaintiffs law firms had an additional 50, hours for an additional lodestar of $23,640, Therefore, for the period December 6, 2006 through December 31, 2011 (with the exception of the Lufthansa time), 73 law firms had a total of 199, hours for a total lodestar of $83,943, See Exhibit A attached hereto. On July 15, 2011, the Court awarded attorneys fees of $38,458,330 or 25% of the applicable funds from the Second Settlements, which was approximately 63% of the lodestar for the period December 6, 2006 through December 31, Now, plaintiffs counsel seek an additional interim award of attorneys fees of 25% of the Third Settlements (except 20% from the estimated opt-out escrows for the BA and LAN/ABSA settlements), plus 25% of an additional $15,262, in Supplemental Payments from defendants who were included in the Second Settlements and from which fees have not be paid. 4 Therefore, if those fees are awarded, these 73 plaintiffs law firms shall have received fees from the Second and Third Settlements of $92,891,241.47, which would be a multiplier of 1.11 of the lodestar for the period December 6, 2006 through December 31, 2011 (excluding the Lufthansa time). See Exhibit B attached hereto. 8. Plaintiffs counsel also seek reimbursement of unreimbursed expenses incurred during the period January 1, 2011 through December 31, The applicable unreimbursed 4 Cargolux one of the defendants in the Second Settlement is to pay an additional $5 million in December We have included this amount, less an amount for the Cargolux opt-out escrow, in the $15,271,970 Supplemental Payments. However, if awarded, we will not take any fees from this amount until it is paid. Similarly, we have included the $6 million deferred payments in the El Al settlement, but if awarded, will not take any fees from those amounts until paid. 4

11 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 11 of 82 PageID #: expenses for this period amount to $2,098, Those expenses are set forth in Exhibit B to each of the firm declaration in the Compendium of Declarations submitted herewith, Exhibit B attached hereto and the Salzman Declaration attached hereto as Exhibit C. In addition, Plaintiffs are seeking an additional $1 million proportionally from the Third Settlements for future litigation expenses. 9. During January 1, 2011 to December 31, 2011 time period, plaintiffs counsel: Prepared for and took 32 depositions of defendants current and former employees; Prepared for and defended 7 class representatives depositions taken by defendants; Prepared and filed 26 motions, including 13 motions to compel; Responded to three motions filed by defendants; Prepared and filed and successfully litigated two petitions in separate United States District Courts to transfer grand jury transcripts to this Court; Prepared and filed plaintiffs motion for class certification with accompanying 221 exhibits and two expert declarations; Made eight appearances before Magistrate Judge Pohorelsky and two appearances before this Court; Electronically searched and/or reviewed more than six million pages of new documents produced by Air Canada, Air India, ANA, Cathay, China Airlines, El Al, Emirates, Eva, Korean Air, Malaysia, Nippon Cargo, Northwest Airlines, Qantas, SAS and Thai; Analyzed hundreds of thousands of pages of plaintiffs documents and produced more than four hundred thousand pages of plaintiffs documents to defendants; Conducted extensive searches and analysis from plaintiffs database 5 of the more than 12 million pages of defendants documents to prepare for depositions, witness interviews, attorney proffers and the motion for class certification; 5 The extensive effort by Plaintiffs Counsel in creating a workable database of Defendants documents in the earlier period provided counsel, among other things, with the ability to prepare for the depositions of Defendants witnesses, assemble the fact section in their Class Certification Memorandum, assist our experts and begin to get the case trial ready. 5

12 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 12 of 82 PageID #: Prepared for and conducted numerous interviews and attorney and witness proffers; Prepared and served six sets of document requests; Responded to one set of document requests prepared by defendants; Prepared and served four sets of interrogatories; Responded to three sets of interrogatories; Engaged in arm s-length settlement negotiations that led to these nine settlement agreements, including multiple meetings with top executives of one of the Settling defendants; Implemented an extensive program to provide notice to potential claimants from the Settlement Funds; Conducted legal research and factual research regarding pertinent issues; and Worked with industry and economic consultants and experts. 10. Therefore, when plaintiffs entered into these nine settlements, they were well aware of the strengths and weaknesses of the case against each defendant. Indeed, the negotiations involving all of the Settling Defendants lasted for many months. Plaintiffs insisted in negotiating these settlements on increasing percentages of defendants relevant sales to the Settlement Class. The Lufthansa settlement was approximately 1.8% of Lufthansa s sales to and from the United States during the Settlement Class Period. The Second Settlements amounted to a range of a percentage of defendants applicable sales from 2.1% to 3.2%, excluding JAL which had filed for bankruptcy protection. The Third Settlements achieved a range of 3.23% to 3.7% of these Settling Defendants applicable sales to, and from, the U.S. As set forth above, these nine settlements total $207,135,000, of which an estimated $23,326,800 will be placed in opt-out escrow accounts, leaving an estimated net amount of $183,808,200. In addition, another $15,262, has been or will be paid in 2011 or 2012 as a result of the Second Settlements, 6

13 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 13 of 82 PageID #: which amounts were not included in the attorneys fees application for the Second Settlements. In light of the result achieved by counsel on behalf of the Settlement Class in reaching the settlements and in light of the extensive work performed by counsel on behalf of the Settlement Class and the putative litigation class, it is respectfully submitted that the Court should award attorneys fees of (a) 25% of the estimated $183,808,200 from the Third Settlements (net of optout escrow accounts), (b) 25% of $15,262, from the Supplemental Payments from the Second Settlements, and (c) 20% of $23,326,800, the estimated opt-out escrow amount from the BA and LAN/ABSA settlements as set forth in Exhibit B attached hereto. 11. Plaintiffs have litigated this case against some of the most outstanding law firms in the country. Those firms spared no effort in the defense of their clients. 12. The Third Settlements provide a significant value to Settlement Class members, both by providing substantial payments, and for providing valuable cooperation to assist in the continued prosecution of the case against the remaining defendants. II. HISTORY OF THE LITIGATION DURING THE TIME PERIOD JANUARY 1, 2011 THROUGH DECEMBER 31, 2011 A. PLAINTIFFS DISCOVERY 1. Plaintiffs Document Requests Directed To Defendants 13. During 2011, plaintiffs counsel electronically searched and/or reviewed more than six million pages of new documents produced by Air Canada, Air India, ANA, Cathay, China Airlines, El Al, Emirates, Eva, Korean Air, Malaysia, Nippon Cargo, Northwest Airlines, Qantas, SAS and Thai. Also, in connection with the depositions that began in April 2011, counsel used the documents and analyzed the more than twelve million pages of documents 7

14 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 14 of 82 PageID #: previously produced in order to question the witnesses. In 2011, plaintiffs counsel issued the following additional document requests. a. Plaintiffs Third Set of Requests for Production of Documents to AAWW 14. On January 3, 2011, plaintiffs counsel served Plaintiffs Third Set of Requests for Production of Documents to AAWW. The request called for all documents, including reports, evaluations, agendas, minutes, or resolutions, relating to any meeting of AAWW s Compensation Committee regarding the compensation of certain employees. 15. AAWW objected to the requests on February 7, 2011, and served a privilege log in response. After meeting and conferring, AAWW served a revised privilege log on February 14, After further meeting and conferring with AAWW s counsel, plaintiffs served a motion to compel AAWW to produce the requested documents, contending that the documents were not protected by any privilege. See Section C(2) below. b. Plaintiffs Second Set of Requests for Production to Air Canada, AC Cargo, British Airways PLC, Cathay Pacific Airways Ltd., Lan Airlines S.A., Lan Cargo S.A. and Singapore Airlines Ltd. 17. On January 18, 2011, plaintiffs served a Second Set of Requests for Production to Air Canada, AC Cargo, British Airways PLC, Cathay Pacific Airways Ltd., Lan Airlines S.A., Lan Cargo S.A., and Singapore Airlines Ltd. Plaintiffs document request called for a copy of the European Commission s ( EC ) decision announced on November 9, 2010 and pertaining to the worldwide cartel that affected prices for cargo services, together with all appendices, exhibits and other documents related to the decision received from the EC. 8

15 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 15 of 82 PageID #: The Defendants served their responses and objections on February 22, 2011, and the issue was litigated before Magistrate Judge Pohorelsky, who denied Plaintiffs request for production without prejudice. Defendants responses and objections to Plaintiffs Second Set of Requests for Production were as follows: Defendants Singapore Airlines Cargo Pte Ltd. and Singapore Airlines Ltd s Objections and Responses to Plaintiffs Second Set of Requests for Production Responses and Objections of Lan Cargo, S.A. and Lan Airlines, S.A. to Plaintiffs Second Set of Requests for Production to Air Canada, AC Cargo, British Airways PLC, Cathay Pacific Airways LTD., Lan Airlines S.A., Lan Cargo S.A. and Singapore Airlines Ltd. Defendant Cathay Pacific Airways Ltd. s Responses and Objections to Plaintiffs Second Set of Requests for Production Defendant Air Canada s Objections and Responses to Plaintiffs Second Set of Requests for Production Defendant British Airways PLC s Objections and Responses to Plaintiffs Second Set of Requests for Production 2/22/2011 2/22/2011 2/22/2011 2/22/2011 2/22/2011 c. Plaintiffs Document Requests to Korean Airlines Co. Ltd ( KE ) 19. On May 17, 2011, plaintiffs requested KE to produce certain pages from its former executive Moon-ho-Song s diaries referenced in the Korean Fair Trade Commission s ( KFTC ) Resolution No and any transcript of testimony by Woo Pyung Lee to the KFTC. 20. KE served its response on June 3, KE s response included 14 objections. Subject to those objections, KE produced eleven pages of responsive documents on June 3rd and produced additional documents one week later. 9

16 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 16 of 82 PageID #: d. Plaintiffs Requests for Production of Documents Produced By Certain Defendants In the High Court of New Zealand 21. On August 31, 2011, plaintiffs served Plaintiffs Requests for Production of Documents produced by certain defendants in the High Court of New Zealand including certain documents that were filed in a proceeding in that court. 22. Defendants ANZ, KE and Singapore Air served their responses on October 14, They objected to the request on confidentiality grounds and stated that plaintiffs would have access to non-confidential redacted versions of the documents once the High Court of New Zealand ruled on the confidentiality issues before it. e. Plaintiffs Second Set of Requests For Production of Documents to KE 23. On September 1, 2011, plaintiffs served Plaintiffs Second Set of Requests For Production of Documents to Korean Air Lines Co., Ltd., consisting of six requests calling for, among other things, certain documents relating to the Korean Board of Airline Representatives Cargo Subcommittee, certain KFTC resolutions and related documents, certain documents relating to fuel surcharges which were submitted to Korea s Ministry of Land, and certain employee files. 24. On October 4, 2011, KE served its response and objections to plaintiffs document requests. KE objected to the document requests, but agreed to produce responsive documents in its possession, to the extent they had not already been produced. f. Plaintiffs Requests for Production of Antitrust Compliance Manuals to Polar Air Cargo, Inc., Atlas Air Worldwide Holdings, Inc. and Polar Air Cargo Worldwide, Inc. 25. On December 16, 2011, plaintiffs served plaintiffs Requests for Production to Polar Air Cargo, Inc., Atlas Air Worldwide Holdings, Inc. and 10

17 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 17 of 82 PageID #: Polar Air Cargo Inc. (the Polar Defendants ). The requests called for all documents containing Polar s antitrust compliance guidelines, rules, or policies, including but not limited to manuals, handbooks, or memoranda. The Polar Defendants produced responsive documents in Plaintiffs Interrogatories Directed To Defendants a. Defendants Supplemental Responses to Plaintiffs' First Set of Interrogatories Directed to All Defendants 26. After receiving and analyzing defendants objections and responses to plaintiffs first set of interrogatories, which was served in 2010, plaintiffs identified certain gaps in defendants responses and the parties engaged in several meet and confers. As a result, defendants served the following supplemental responses in 2011: Defendant Nippon Cargo Airline Co. Ltd. s Supplemental Responses to Plaintiffs First Set of Interrogatories Directed to All Defendants 3/21/2011 Defendant Air Canada s Supplemental Responses to Plaintiffs First Set of Interrogatories Directed to All Defendants 4/6/2011 Defendant Asiana Airlines, Inc. s Amended Responses to Plaintiffs First Set of Interrogatories Directed To All Defendants 4/8/2011 Defendant Cathay Pacific Airways Ltd. s Supplemental Responses to Plaintiffs First Set of Interrogatories Directed to All Defendants 4/13/2011 Defendants Singapore Airlines Cargo PTE Ltd. s and Singapore Airlines Limited s Supplemental Objections and Responses to Plaintiffs First Set of Interrogatories Directed to All Defendants 4/15/2011 Defendant Air New Zealand Ltd. s Responses to Plaintiffs First Set of Interrogatories Directed to All Defendants 4/18/2011 Defendant Emirates Supplemental Responses to Plaintiffs First Set of Interrogatories Directed to All Defendants 4/19/2011 Defendant Korean Air Lines Co., Ltd. s Second Supplemental Responses to Plaintiffs First Set of Interrogatories Directed to All Defendants 5/27/2011 Defendants Singapore Airlines Cargo PTE Ltd. s and Singapore Airlines Limited s Second Set of Supplemental Responses to Plaintiffs First Set of Interrogatories Directed to All Defendants 6/9/2011 Defendants Nippon Cargo Airline Co. Ltd. s Second Supplemental Responses to Plaintiffs First Set of Interrogatories Directed to All Defendants 6/17/2011 Defendant El Al s Second Supplemental Responses to Plaintiffs First Set of Interrogatories Directed o All Defendants 9/13/

18 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 18 of 82 PageID #: b. Plaintiffs First Set of Interrogatories to the Benchmark Defendants On February 9, 2011, plaintiffs served their First Set of Interrogatories to the Benchmark Defendants consisting of eight interrogatories. Among other things, the interrogatories called for the identification of certain meetings, communications, agreements and understandings related to surcharges. The interrogatories also called for the names of certain employees and a list of surcharges, including the announcement dates, effective dates, routes, and methodology used to calculate surcharges. 28. In March 2011, the Benchmark Defendants served their objections and responses. After analyzing the responses, plaintiffs counsel identified certain deficiencies and the parties engaged in meet and confers, which resulted in Air India and Eva supplementing their responses. Defendants responded and objected to plaintiffs interrogatories were as follows: Air India s Response To Plaintiffs First Set of Interrogatories Directed To Benchmark Defendants 3/14/2011 Defendant Malaysia Airlines Objections and Responses To Plaintiffs First Set of Interrogatories Directed To Benchmark Defendants 3/15/2011 Defendant Salvatore Sanfilippo s Objections and Responses To Plaintiffs First Set of Interrogatories Directed To Benchmark Defendants 3/15/2011 Defendant Eva Airways Corp. s Responses To Plaintiffs First Set of Interrogatories 3/15/2011 Objections and Responses of Defendant China Airlines, LTD. To Plaintiffs First Set of Interrogatories Directed To Benchmark Defendants 3/21/2011 Defendant Eva Airways Corp. s Supplemental Responses To Plaintiffs First Set of Interrogatories 5/5/2011 Air India s Supplemental Response To Plaintiffs First Set of Interrogatories Directed To Benchmark Defendants 5/16/ The Benchmark Defendants were named in February 2010 and include China Air, Eva, Air India and Malaysia. The settlement with Malaysia is included in the Third Settlements. 12

19 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 19 of 82 PageID #: c. Plaintiffs Second Set of Interrogatories Directed To All Airline Defendants 29. On June 30, 2011, plaintiffs served Plaintiffs Second Set of Interrogatories Directed To All Airline Defendants. Among other things, the interrogatories called for total operating costs broken down by fixed costs and variable costs, including separately fuel costs and non-fuel costs, flight hours, cargo tons and cargo ton-miles flown. 30. Defendants objected and responded individually to Plaintiffs' Second Set of Interrogatories Directed To All Airline Defendants in July and August of After meeting and conferring, defendants produced documents and responses to plaintiffs. Defendants responded and objected to plaintiffs interrogatories were as follows:: Defendant Cathay Pacific Airways Ltd. s Objections and Responses to Plaintiffs Second Set of Interrogatories To All Airline Defendants 2/22/2011 Air India s Response To Plaintiffs Second Set of Interrogatories To All Airline Defendants 7/28/2011 Defendants Polar Air Cargo, LLC s and Atlas Air Worldwide Holdings, Inc. s Objections and Responses to Plaintiffs Second Set of Interrogatories To All Airline Defendants 8/1/2011 Objections and Responses of Defendants Air China Limited and Air China Cargo Company Limited To Plaintiffs Second Set of Interrogatories To All Airline Defendants 8/4/2011 Defendant Air Canada s Objections and Responses to Plaintiffs Second Set of Interrogatories To All Airline Defendants 8/4/2011 Defendant Air New Zealand LTD. s Objections and Responses to Plaintiffs Second Set of Interrogatories To All Airline Defendants 8/4/2011 Defendant Asiana Airlines, Inc. s Objections and Responses to Plaintiffs Second Set of Interrogatories To All Airline Defendants 8/4/2011 Defendant Cathay Pacific Airways Ltd s Objections and Responses to Plaintiffs Second Set of Interrogatories To All Airline Defendants 8/4/2011 Defendant El Al s Objections and Responses to Plaintiffs Second Set of Interrogatories To All Airline Defendants 8/4/2011 Defendant Emirates s Objections and Responses to Plaintiffs Second Set of Interrogatories To All Airline Defendants 8/4/2011 Defendant Eva Airways Corp. s Objections and Responses to Plaintiffs Second Set of Interrogatories To All Airline Defendants 8/4/2011 Defendant Korean Airlines Co. Ltd. s Objections and Responses to Plaintiffs Second Set of Interrogatories To All Airline Defendants 8/4/

20 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 20 of 82 PageID #: Defendant Nippon Cargo Airline Co. Ltd s Objections and Responses to Plaintiffs Second Set of Interrogatories To All Airline Defendants 8/4/2011 Defendants Singapore Airlines Cargo PTE Ltd and Singapore Airline Limited s Objections and Responses to Plaintiffs Second Set of Interrogatories To All Airline Defendants 8/9/2011 d. Plaintiffs Third Set of Interrogatories to All Airline Defendants 31. On August 30, 2011, plaintiffs served Plaintiffs' Third Set of Interrogatories to All Airline Defendants. The interrogatory called for each airline defendant to provide the following information with respect to any present or former employee who testified before a Grand Jury in the United States, between September 30, 2005 and the present, in connection with any investigation by the United States Department of Justice ( DOJ ) concerning pricing practices in the Airfreight Shipping Services industry, (a) the full name of the employee, (b) the date(s) of any and all such testimony, (c) the location of the Grand Jury, and (d) any case number, matter number or other identifier assigned in connection with judicial proceedings relating to such Grand Jury. 32. Defendants separately objected and provided some responsive information in response to Plaintiffs Third Set of Interrogatories Directed To All Airline Defendants in September and October 2011 as follows: Air India s Objections and Responses To Plaintiffs Third Set of Interrogatories To All Airline Defendants 9/30/2011 Defendant Air New Zealand Ltd. s Objections and Responses To Plaintiffs Third Set of Interrogatories To All Airline Defendants 9/30/2011 Cathay Pacific Airway Ltd. s Objections and Responses To Plaintiffs Third Set of Interrogatories To All Airline Defendants 10/3/2011 Defendant Air Canada s Objections and Responses To Plaintiffs Third Set of Interrogatories To All Airline Defendants 10/3/2011 Defendant Asiana Airlines, Inc. s Objections and Responses To Plaintiffs Third Set of Interrogatories To All Airline Defendants 10/3/

21 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 21 of 82 PageID #: Defendant El Al s Objections and Responses To Plaintiffs Third Set of Interrogatories To All Airline Defendants 10/3/2011 Defendant Emirates s Objections and Responses To Plaintiffs Third Set of Interrogatories To All Airline Defendants 10/3/2011 Defendant Eva Airways Corp. s Objections and Responses To Plaintiffs Third Set of Interrogatories To All Airline Defendants 10/3/2011 Defendant Korean Air Lines Co. Ltd. s Objections and Responses To Plaintiffs Third Set of Interrogatories To All Airline Defendants 10/3/2011 Defendant Polar Air Cargo, LLC s and Atlas Air Worldwide Holdings, Inc. s Objections and Responses To Plaintiffs Third Set of Interrogatories To All Airline Defendants 10/3/2011 Defendant Polar Air Cargo, LLC s and Atlas Air Worldwide Holdings, Inc. s Objections and Responses To Plaintiffs Third Set of Interrogatories To All Airline Defendants 10/3/2011 Defendant Singapore Airlines Cargo PTE Ltd. s. and Singapore Airlines Limited s Objections and Responses To Plaintiffs Third Set of Interrogatories To All Airline Defendants 10/3/2011 Defendant China Airlines, Ltd. s Objections and Responses To Plaintiffs Third Set of Interrogatories To All Airline Defendants 10/3/2011 Defendant Nippon Cargo Airline Co. Ltd s Response To Plaintiffs Third Set of Interrogatories To All Airlines Defendants 10/3/2011 Defendants Air China Limited and Air China Cargo Company Limited s Objections and Responses To Plaintiffs Third Set of Interrogatories To All Airline Defendants 10/4/ Defendants Supplemental Document Production 33. As a result of the various discovery requests issued to defendants, and non-party Northwest Airlines, defendants and Northwest produced more than six million pages of documents in 2011 as follows: Native Defendant TIFF Page Count Document Count Air Canada 6,848 Air India 2,359, ,671 ANA 338 Cathay 20,777 China Airlines 27,233 El Al

22 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 22 of 82 PageID #: Emirates 28,325 EVA 67,807 Korean Air 706 Malaysia 90,765 Nippon Cargo 439 Northwest Airlines 3,851,448 Qantas 1,609 SAS 1,051 Thai 12,356 Total 6,461, , The documents were uploaded to the database and were searched, analyzed and/or coded by plaintiffs counsel. 4. Defendants Transaction and Cost Information 35. Beginning in 2010 and continuing into 2011, defendants produced more than 700,000 files totaling more than 175 Gigabytes of data and spanning 15 different data types, including hard copy documents, portable paper files, CSV, Microsoft Excel, Tiff, PDF, JPEG, Microsoft Access, SAS, Flat files, Text Files, Oracle, Tab Delimited Files and COL Files. 36. The data consisted of more than 30 million transactions involving tens of thousands of customers. Plaintiffs economic experts and their staff spent considerable time and effort analyzing and manipulating the data. Their analyses of the data formed the basis of many of the opinions in the expert declarations submitted as part of plaintiffs class certification motion. 5. Depositions Conducted By Plaintiffs 37. The task of preparing for and conducting the depositions of defendants current and former employees was assigned to the four Co-Lead Counsel firms as follows: Hausfeld LLP was responsible for Air India, ANA, BA, El Al, JAL, Lufthansa, Polar and Thai witnesses. 16

23 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 23 of 82 PageID #: Kaplan Fox & Kilsheimer LLP was responsible for Air France, Eva, KLM, KE, Lan/ABSA, and Martinair witnesses. Labaton Sucharow was responsible for Air Canada, Air China, Asiana, Cathay, China Air, Emirates, Saudia, and Singapore witnesses. Levin Fishbein Sedran & Berman was responsible for ANZ, Cargolux, Malaysia Airlines, NCA, Qantas, SAS and SAA witnesses. 38. Given the large volume of documents to be analyzed in preparation for the depositions, plaintiffs counsel enlisted the assistance of certain other direct purchaser plaintiffs firms to assist in the preparation of the depositions. 39. Utilizing the database prepared from the review and analysis of the documents produced by defendants, plaintiffs counsel created witness files, including potential exhibits. Counsel also met and discussed the information to be obtained from the depositions, and the existing evidence pertinent to each witness individually and in the context of the overall case. 40. Following each deposition, counsel would conference, review the information obtained and strategize as to how to proceed in the examination of additional witnesses. 41. In all, plaintiffs counsel took the depositions of 32 of defendants current and former employees during 2011 as follows: Date Deponent Defendant Location 4/27/2011 Heedo Lee Korean Air Los Angeles, CA 4/29/2011 Ronald Lane Polar Defendants New York, NY 5/6/2011 Kersti, Krepp Polar Defendants New York, NY San Francisco, CA 5/17-18/2011 Kevin, Cummiskey Asiana Airlines 5/20/2011 Stephen Wong Cathay Pacific New York, NY 5/24/2011 Jassim Saif Emirates London, England 5/25/2011 Pradeep Kumar Emirates London, England 5/25/2011 Salvatore Sanfilippo Air New Zealand Washington, DC 5/26/2011 Edward Hernandez Polar Defendants New York, NY 5/27/2011 Ram Menen Emirates London, England 17

24 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 24 of 82 PageID #: /2/2011 Sachithananthan Balasubramaniam Singapore Airlines New York, NY 6/2/2011 William Capone Korean Air Los Angeles, CA 6/9/2011 Hendrik Falk Polar Defendants New York, NY 6/15/2011 Chul Joo (Charley) Lee Korean Air Hong Kong 6/16/2011 Ki Park Korean Air Hong Kong 6/16/2011 Johnny Li-Yung Yuan China Airlines Los Angeles, CA 6/17/2011 Wan Shik Kim Korean Air Hong Kong 6/21/2011 Ringo Sin Eva Air Los Angeles, CA 6/22/2011 Sonny Yu Eva Air Los Angeles, CA San Francisco, 6/24/2011 Sung-Jin Park Korean Air CA 7/6/2011 Steven L. Gibbs Air Canada Chicago, ILL 7/12-13/2011 Nahoko Shingu Nippon Cargo Washington, DC 7/13-14/2011 Masato Kato Nippon Cargo Washington, DC 7/15/2011 Satoshi Shimura Nippon Cargo Washington, DC 7/20/2011 Maria Chavez Polar Defendants Miami, FL Woodlands Hills, 7/21/2011 Sabin Chung Korean Air CA 8/4/2011 Harminder Rana Air India Mumbai, India Frankfurt, Germany 8/12/2011 Klaus Ehlers Korean Air 9/7/2011 Gerald Simpson Air Canada New York, NY 9/21/2011 Philippe La Camp Cathay Pacific New York, NY 9/23/2011 Clinton Tan Singapore Airlines New York, NY 10/21/2011 Robin Choi Korean Air Los Angeles, CA B. DEFENDANTS DISCOVERY 1. Defendants Interrogatories Directed to Plaintiffs a. Plaintiffs Supplemental Response to Defendant KE s First Set of Interrogatories 42. Following plaintiffs initial response to Defendant KE s First Set of Interrogatories which was served in 2010, the parties met and conferred. Each named plaintiff supplemented its response to the interrogatories in June or July 2011 as follows: FTS International Express, Inc. s Supplemental Responses to Defendant Korean Air Lines Co., Ltd. s First Set of Interrogatories to Plaintiffs 6/29/2011 Plaintiff Benchmark Export Services, Inc. s Objections and Supplemental Response to Defendant Korean Air Lines Co., Ltd s Interrogatory No. 1 7/5/

25 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 25 of 82 PageID #: Plaintiff R.I.M. Logistics, LTD. s Objections and Supplemental Response to Defendant Korean Air Lines Co., Ltd s Interrogatory No. 1 7/5/2011 Plaintiff Volvo Logistics AB's Objections and Supplemental Response to Defendant Korean Air Lines Co., Ltd s Interrogatory No. 1 7/8/2011 Plaintiff S.A.T. Sea & Air Transport, Inc. s Objections and Supplemental Response to Defendant Korean Air Lines Co., Ltd s Interrogatory No. 1 7/8/2011 FTS International Express, Inc. s Supplemental Responses to Defendant Korean Air Lines Co., Ltd. s First Set of Interrogatories to Plaintiffs 7/8/2011 Plaintiff Olarte Transport Services, Inc. Objections and Supplemental Response to Defendant Korean Air Lines Co., Ltd s Interrogatory No. 1 7/8/2011 b. Plaintiffs Supplemental Responses to Defendant Asiana Airlines, Inc. s Interrogatory No. 2 and Korean Airlines Co., Ltd s Interrogatory No Asiana s Interrogatory No. 2, which was served on plaintiffs in 2010, called for plaintiffs to identify any meeting or communication between Asiana and any other Air Cargo Carrier that supported the allegations described in paragraph 82 of the Complaint, and to include in the description of the meeting or communication, the identity of the parties, the location, date, subject, and the identity of any documents concerning the meeting or communication. 44. KE s Interrogatory No. 2, which was served in 2010, called for plaintiffs to identify each meeting and communication between Air Cargo Carriers identified in Interrogatory No. 2 of Plaintiffs First Set of Interrogatories Directed to All Defendants as occurring in or at: Kafferunden or Coffee Rounds Meetings; Frankfurt, Germany; the New York Plaza Hotel, including the Oak Bar; AVIAN workshops; and restaurants in Milan, Italy; and to include in the description of the meeting or communication, the identity of the parties, the location, date, subject, and the identity of any documents concerning the meeting or communication. 45. After significant preparation of its responses, on June 30, 2011, plaintiffs served their supplemental responses to the two interrogatories and identified responsive information. 19

26 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 26 of 82 PageID #: Plaintiffs response included a 35 page Exhibit A which identified the dates, participants and subject matter of meetings or communications that plaintiffs learned outside of the formal discovery process. c. KE s Second Set of Interrogatories to Plaintiffs 46. On March 18, 2011, KE served its Second Set of Interrogatories to Plaintiffs, containing two interrogatories calling for all facts and information learned by plaintiffs or plaintiffs attorneys from any Settling Defendant or their attorneys. 47. On April 15, 2011, Plaintiffs served Plaintiffs Joint Objections and Responses to KE s Second Set of Interrogatories. d. Air India First Set of Interrogatories 48. On March 28, 2011, Air India served its first set of interrogatories. There were 21 interrogatories calling for plaintiffs to provide details of, among other things: (1) Air India s alleged involvement in the Air Cargo price fixing conspiracy; (2) any meetings, communications, agreements or understandings between Air India and other Air Freight carriers concerning coordination of surcharges, rates, yields, discounts, and/or the allocation of customers, routes, and/or territories; (3) names of Air India s employees with relevant knowledge of the alleged conspiracy; and (4) to substantiate the allegations set forth in certain paragraphs of the Complaint. 49. On August 26, 2011, plaintiffs served Plaintiffs Joint Objections and Responses to the Interrogatories of Defendant Air India. e. Polar Air Cargo LLC First Set of Interrogatories to Plaintiffs 50. On May 6, 2011, Defendant Polar Air Cargo LLC served its First Set of Interrogatories to Plaintiffs. There were five interrogatories calling for, among other things, all 20

27 Case 1:06-md JG-VVP Document Filed 06/22/12 Page 27 of 82 PageID #: communications between plaintiffs and any air cargo carrier concerning various surcharges including security surcharges, fuel surcharges and certain hurricane-related surcharges, and information relating to commissions for the collection of surcharges. 51. Plaintiffs jointly objected and responded to these interrogatories on June 6, After meeting and conferring with Defendants, each named plaintiff served a supplemental response to the interrogatories in August 2011 as follows: Response Date Plaintiffs Joint Objections and Responses To Defendant Polar Air Cargo, LLC s First Set of Interrogatories To Plaintiffs 6/6/2011 Plaintiff FTS International Express, Inc. s Objections and Supplemental Responses To Defendant Polar Air Cargo, LLC s First Set of Interrogatories To Plaintiffs 8/2/2011 Plaintiff R.I.M. Logistics, Ltd. s Objections and Supplemental Responses To Defendant Polar Air Cargo, LLC s First Set of Interrogatories To Plaintiffs 8/3/2011 Plaintiff Benchmark Exports Services, Inc. s Objections and Supplemental Responses To Defendant Polar Air Cargo, LLC s First Set of Interrogatories To Plaintiffs 8/4/2011 Plaintiff Olarte Transport Services, Inc. s Objections and Supplemental Responses To Defendant Polar Air Cargo, LLC s First Set of Interrogatories To Plaintiffs 8/9/2011 Plaintiff S.A.T. Sea & Air Transport, Inc. s Objections and Supplemental Responses To Defendant Polar Air Cargo, LLC s First Set of Interrogatories To Plaintiffs 8/15/2011 Plaintiff Volvo Logistics AB s Objections and Supplemental Responses To Defendant Polar Air Cargo, LLC s First Set of Interrogatories To Plaintiffs 8/25/ Defendants Document Requests Directed to Plaintiffs a. Defendants Second Set of Document Requests to Plaintiffs 52. On March 28, 2011, defendants served a second set of document requests to plaintiffs, which called for all information plaintiffs received from settling defendants, including presentations, translations, business documents, notes, memoranda, s, correspondence, 21