UNITED STATES DISTRICT COURT EASTERN …

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK PRECISION ASSOCIATES, INC., et al, on behalf of themselves and all others similarly situated, Plaintiffs, vs. PANALPINA WORLD TRANSPORT (HOLDING) LTD., et al., Defendants. Case No.: 08-CV-00042 (JG) (VVP) PLAINTIFFS CONSOLIDATED MEMORANDUM OF LAW IN SUPPORT OF FINAL APPROVAL OF TEN PROPOSED SETTLEMENTS AND PLAN OF ALLOCATION Case 1:08-cv-00042-JG-VVP Document 855 Filed 07/26/13 Page 1 of 55 PageID #: 9908i TABLE OF CONTENTS I. INTRODUCTION ..1 A. The Settlements Provide Substantial Consideration to the Class ..1 1. There Is No Reversion Of Funds To Defendants.

2 3 2. Non-settling Defendants Remain Jointly And Severally Liable For The Surcharge Conspiracies ..3 B. The Class Faced Substantial Risks at the Time the Settlements Were Entered ..3 C. Class Members Unanimously Support Nine Settlements and Overwhelmingly Support The Remaining Settlement ..4 D. Class Counsel Had Adequate Information To Exercise Their Experience And Reasonable Judgment In Entering The Ten Settlements ..5 E. The Objectors Attack the Very Strategies that Produced the Substantial Consideration that Resulted in the Overwhelming Approval of Potentially Hundreds Of Thousands Of Class Members ..7 F. Class Certification And The Plan Of Allocation.

3 7 II. STATEMENT OF FACTS ..8 A. Commencement of the Case ..8 B. Schenker Provided Timely Cooperation When the Amnesty Applicant, DHL Refused ..8 1. Schenker s Cooperation Was Valuable ..9 2. Schenker s Monetary Compensation Is Significant ..10 3. The Universal Opt-Out Provision ..10 C. Defendants First Motion to Dismiss And The R&R ..11 D. The Vantec Settlement ..12 E. The EGL Settlement ..13 Case 1:08-cv-00042-JG-VVP Document 855 Filed 07/26/13 Page 2 of 55 PageID #: 9909ii F. The Expeditors Settlement ..14 G. The Nishi-Nippon Settlement ..14 H. Plaintiffs Motion To Provide Notice to the I. The UAC Settlement.

4 14 J. The KN Settlement ..15 K. The Morrison Express Settlement ..15 L. The Amended Complaint ..15 M. The UTi Settlement ..16 N. The ABX Settlement ..16 O. Defendants Motion to Dismiss All Claims in the Amended Complaint ..16 P. Class Notice Has Been Provided In Accordance With The Orders Of The COURT ..16 Q. A Miniscule Percentage of the Class Has Opted-Out ..17 R. No Class Members Objected To Nine Settlements or To The Plan Of Allocation ..17 III. ARGUMENT ..17 A. The Standard of Review for Class Action Settlements Under Rule 23 ..17 B. Each Settlement Merits Final Approval ..18 1. The Proposed Settlements are Procedurally Fair and Reasonable.

5 18 2. The Proposed Settlements Are Substantively Fair and Reasonable ..19 a. The Complexity, Expense And Likely Duration Of the Litigation Warrant Approval of the Settlements ..20 Case 1:08-cv-00042-JG-VVP Document 855 Filed 07/26/13 Page 3 of 55 PageID #: 9910iii b. The Class Unanimously Supports Nine Settlements and Overwhelmingly Supports the Remaining Settlement ..22 c. The Case Was Sufficiently Advanced At the Time Each Settlement Was Reached ..22 d. Plaintiffs Faced Significant Risks of Establishing Liability at Trial and Establishing and Collecting Damages ..24 e. It Is Uncertain Whether All Defendants Could Withstand a Greater Judgment.

6 25 f. Each of These Settlements Falls Within The Range of Reasonableness in Light of the Potential Recovery and the Attendant Risks of Litigation ..26 C. This COURT Should Overrule Objections to the Schenker Agreement ..28 1. HP s and Dell s Objections to the Schenker Settlement Lack Merit and Should be Rejected ..28 a. The Schenker agreement provided the class with critical, timely, and substantial cooperation ..29 b. Courts recognize the value of ice-breaker settlements ..30 2. The Schenker Agreement s Universal Opt-Out Provision is Fair, Adequate and a. Rule 23 does not grant class members the right to opt out of settlements on a defendant-by-defendant basis.

7 31 b. Class members have more rather than less information to evaluate whether to opt out ..33 3. The lack of objections to the Schenker agreement militates in favor of approval ..34 D. This COURT Should Approve the MFN Provisions in the Vantec and Nishi Agreements ..35 1. This COURT In Air Cargo, And Other Courts Properly Allow Limited MFN Provisions, Because They Encourage Early Settlements ..36 2. The Vantec and Nishi MFN Provisions Are Manifestly Case 1:08-cv-00042-JG-VVP Document 855 Filed 07/26/13 Page 4 of 55 PageID #: 9911iv In The Best Interest Of The Class ..37 3. The Vantec and Nishi MFN Provisions Are Limited.

8 40 4. Non-Settling Japanese Defendants Lack Standing To Object ..42 E. The Requirements of Class Certification Have Been Met ..43 1. Plaintiffs Class Notice Program Complied with this COURT s Orders and Rule 23 ..43 F. The Plan of Allocation Is Fair and Reasonable ..44 IV. CONCLUSION ..45 Case 1:08-cv-00042-JG-VVP Document 855 Filed 07/26/13 Page 5 of 55 PageID #: 9912v TABLE OF AUTHORITIES Cases Adams Extract Co., Inc. v. Green Bay Packaging, Inc., 752 137 (5th Cir. 1985) .. 37 Carson v. Am. Brands, Inc., 450 79 (1981) .. 20 Chatelain v. Prudential-Bache Sec., Inc., 805 F. Supp. 209 ( 1992) .. 23, 24 Cintech Indus.

9 Coatings, Inc. v. Bennett Indus., Inc., 85 1198 (6th Cir. 1996) .. 42 City of Detroit v. Grinnell Corp., 495 448 (2d Cir. 1974) .. passim D Amato v. Deutsche Bank, 236 78 (2d. Cir. 2001) .. 4 Fisher Bros. v. Phelps Dodge Indus., Inc., 604 F. Supp. 446 ( Pa. 1985) .. 37, 42 Fisher Bros. v. Phelps Dodge Indus., Inc., 614 F. Supp. 377 ( Pa. 1985) (affirmed table decision, 791 917 (3d Cir. 1986)) .. 39, 41 Hyland v. Homeservices of Am., Inc., No. 3:05-CV-612, 2012 WL 1575310 ( Ky. May 3, 2012) .. 37, 41, 42 In re Air Cargo Shipping Services Antitrust Litig., 06-MD-1775 .. passim In re Am. Bank Note Holographics Secs. Litig., 127 F.

10 Supp. 2d 418 ( 2001) .. 23, 45 In re Ampicillin Antitrust Litig., 82 652 ( 1979) .. 3, 37, 42 In re Auction Houses Antitrust Litig., No. 00-cv-0648, 2001 WL 170792 ( Feb. 22, 2001) .. 5 In re Bisphenol A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967, 2011 WL 1790603 ( Mo. May 10, 2011) .. 37, 41 In re Chicken Antitrust Litig., 560 F. Supp. 943 ( Ga. 1979) .. 41, 42 In re Computron Software, Inc. Sec. Litig., 6 F. Supp. 2d 313 (D. 1998) .. 44 In re Corrugated Container Antitrust Litig., MDL 310, 1981 WL 2093 ( Tex., June 4, 1981) .. 29, 30, 38 In re Cuisinart Food Processor Antitrust Litig., MDL No. 447, 1983 WL 153 (D.)