Pahlavan v. British Airways PLC et al

Filing 80

ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND BRITISH AIRWAYS PLC. Signed by Judge Charles R. Breyer on 10/01/08. (Attachments: # 1 Appendix A: Schedule of Actions)(be, COURT STAFF) (Filed on 10/3/2008)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Joseph W. Cotchett (36324; jcotchett@cpmlegal.com) COTCHETT, PITRE & McCARTHY San Francisco Airport Office Center 840 Malcolm Road, Suite 200 Burlingame, CA 94010 T: (650) 697-6000 F: (650) 697-0577 Michael D. Hausfeld (pro hac vice; mhausfeld@cmht.com) COHEN, MILSTEIN, HAUSFELD & TOLL P.L.L.C. 1100 New York Avenue, N.W. Suite 500, West Tower Washington, DC 20005 T: (202) 408-4600 F: (202) 408-4699 Co-Counsel for Plaintiffs and the Settlement Classes Daryl A. Libow (pro hac vice) SULLIVAN & CROMWELL LLP 1701 Pennsylvania Avenue, NW Washington, DC 2006 T: (202) 956-7500 F: (202) 293-6330 libowd@sullcrom.com Brendan P. Cullen (SBN 194057) SULLIVAN & CROMWELL LLP 1870 Embarcadero Road Palo Alto, California 94303 Telephone: (650) 461-5600 Facsimile: (650) 461-5700 cullenb@sullcrom.com Attorneys for Defendant British Airways Plc UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION IN RE INTERNATIONAL AIR TRANSPORTATION SURCHARGE ANTITRUST LITIGATION ) ) ) ) ) ) ) ) ) ) ) Case No. M:06-cv-01793-CRB MDL No. 1793 Honorable Charles R. Breyer [PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND BRITISH AIRWAYS PLC This Document relates to: ALL ACTIONS [PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND BRITISH AIRWAYS PLC CASE NO. M:06-CV-1793-CRB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 WHEREAS, a class action is pending before the Court entitled In re International Air Transportation Surcharge Antitrust Litigation, Master File 06-1793-CRB (N.D. Cal., San Francisco division); WHEREAS, the Court has received and reviewed the settlement agreement entered into between Plaintiffs and British Airways Plc ("British Airways"), dated February 15, 2008 (the "Settlement Agreement"), and has considered the terms of the proposed settlement set forth therein (the "Settlement"); WHEREAS, all defined terms contained herein shall have the same meanings as set forth in the Settlement Agreement, unless otherwise defined herein; WHEREAS, on Plaintiffs' motion for preliminary approval, the Court on April 25, 2008 entered an Order Preliminarily Approving Class Action Settlements With Virgin Atlantic Airways and British Airways (the "Preliminary Approval Order") and, in which the Court certified the Settlement Classes, preliminarily approved the Settlement, set September 12, 2008 as the deadline for filing of objections to the Settlement, and scheduled a Final Approval Hearing for September 26, 2008; WHEREAS, on Plaintiffs' motion for approval of the proposed notice program, notifying Settlement Class Members of the Settlement and the Final Approval Hearing, the Court on April 25, 2008 entered an Order Approving Notice Program and Forms (the "Notice Approval Order"); WHEREAS, Settlement Class Counsel have submitted declarations to the Court confirming that the notice program has been implemented in substantial accordance with the Notice Approval Order; WHEREAS, the Court has considered all timely filed objections to the Settlement; and WHEREAS, the Court conducted a Final Approval Hearing on September 26, 2008, and has considered the arguments presented, all papers filed and all proceedings had herein; -1[PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND BRITISH AIRWAYS CASE NO. M:06-CV-1793-CRB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOW, THEREFORE, IT IS HEREBY ORDERED: 1. As used in this Order the following terms (together with their cognate forms) have the meanings specified below: (a) "Actions" means this class action captioned In re International Air Transportation Surcharge Antitrust Litigation, M-06-1793-CRB (N.D. Cal., San Francisco division), MDL No. 1793, and all actions relating to the same claims alleged in Plaintiffs' First Consolidated Amended Complaint filed in this action, including those that were transferred to this Court by the Judicial Panel on Multidistrict Litigation as part of MDL No. 1793 or that were originally filed in this Court, including but not limited to those actions listed in Appendix A hereto. (b) (c) "British Airways" means British Airways Plc. "Effective Date" means the earliest date on which all of the following events and conditions have occurred or have been met: (i) British Airways has not timely availed itself of any right to terminate the Settlement Agreement pursuant to paragraph 13.2 of the Settlement Agreement; (ii) the Court has entered this Judgment, following notice to the Settlement Classes and the Final Approval Hearing, approving this Settlement Agreement under Rule 23(e) of the Federal Rules of Civil Procedure and dismissing the Actions against British Airways with prejudice as to all Settlement Class Members, and without costs except as specified in the Settlement Agreement; and (iii) the time for appeal or to seek permission to appeal from this Judgment has expired or, if appealed, approval of the Settlement -2[PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND BRITISH AIRWAYS PLC CASE NO. M:06-CV-1793-CRB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (d) the Settlement. (e) (f) Agreement and this Judgment has been affirmed in its entirety by the court of last resort to which such appeal has been taken and such affirmance has become no longer subject to further appeal or review. Neither the provisions of Rule 60 of the Federal Rules of Civil Procedure nor the All Writs Act, 28 U.S.C. 1651, shall be taken into account in determining the above-stated times. "Judgment" means this final order of judgment, dismissal, and approval of "Person" means an individual or an entity. "Plaintiffs" means Kambiz Pahlavan, Frederick Waters, Maureen Ann Waters, and Deborah Holley, who have been designated by the Court as class representatives for the Settlement Classes. (g) "Release Date" means, with respect to U.S. Releasing Parties, the Effective Date; and, with respect to U.K. Releasing Parties, the date of receipt of a U.K. Refund Payment by each such U.K. Releasing Party. (h) "Released Claims" means any and all claims, demands, actions, suits, and causes of action, whether class, individual, or otherwise in nature, that the Releasing Parties, or any one of them, ever had, now has, or hereafter can, shall, or may have, directly, representatively, derivatively, or in any other capacity, against the Released Parties, on account of, arising from, or in any way related to, the pricing of passenger air transportation by British Airways or Virgin Atlantic, including, without limitation, with respect to fuel surcharges or any other element of, component of, or surcharge upon, the price of passenger air transportation, and with respect to the facts, occurrences, transactions or other matters that were alleged or could have been alleged in the First Consolidated Amended Complaint in the above-captioned matter -3[PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND BRITISH AIRWAYS PLC CASE NO. M:06-CV-1793-CRB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or in the complaints in any of the Actions arising out of the conspiracy between British Airways or Virgin Atlantic to fix the prices of passenger air transportation, whether such claims are based on federal, state, local, statutory, or common law, or any other law, code, rule, or regulation of any country or other jurisdiction worldwide, regardless of whether such claims are known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, actual or contingent, liquidated or unliquidated, regardless of legal theory, and regardless of the type or amount of relief or damages claimed. (i) "Released Parties" means, jointly and severally, individually and collectively: British Airways, its present and former parents, subsidiaries, divisions and affiliates, each of their respective past and present officers, directors, employees and agents, and the predecessors, successors, heirs, executors, administrators, and assigns of each of the foregoing; and, subject to conclusion of a Court-approved settlement between Virgin Atlantic and Plaintiffs and the Settlement Classes, British Airways, its present and former parents, subsidiaries, divisions and affiliates, each of their respective past and present officers, directors, employees and agents, and the predecessors, successors, heirs, executors, administrators, and assigns of each of the foregoing. (j) "Releasing Parties" means, individually and collectively, the U.S. Releasing Parties and the U.K. Releasing Parties. (k) "Settlement Classes" means, collectively, the U.S. Settlement Class and the U.K. Settlement Class, as defined herein. (l) "Settlement Class Members" means, collectively, all members of the U.S. Settlement Class and the U.K. Settlement Class, as defined herein. (m) "U.K. Releasing Parties" means, individually and collectively: Plaintiffs and all U.K. Settlement Class Members who, at any time, receive and accept a Refund Payment -4[PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND BRITISH AIRWAYS PLC CASE NO. M:06-CV-1793-CRB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 under the Settlement Agreement, on behalf of themselves and any Person claiming by or through them as an heir, administrator, devisee, predecessor, successor, parent, subsidiary, representative of any kind, shareholder, partner, director, owner of any kind, affiliate, assignee, agent, employee, contractor, attorney, or insurer. (n) "U.S. Releasing Parties" means, individually and collectively: Plaintiffs and all U.S. Settlement Class Members who did not timely submit a Request for Exclusion in accordance with the Preliminary Approval Order, on behalf of themselves and any Person claiming by or through them as an heir, administrator, devisee, predecessor, successor, parent, subsidiary, representative of any kind, shareholder, partner, director, owner of any kind, affiliate, assignee, agent, employee, contractor, attorney, or insurer. (o) "U.S. Settlement Class" means all Persons to whom, in the period beginning on August 11, 2004 and ending on March 23, 2006, British Airways sold, in the United States, at least one coupon for passenger air travel on a flight operated by British Airways and as to which the long-haul fuel surcharge was paid and not refunded in whole as of the date of the Settlement Agreement ("U.S. Qualifying Coupon"), but excluding the officers, directors, employees, counsel and agents of British Airways, and all government entities. (p) "U.K. Settlement Class" means all Persons to whom, in the period beginning on August 11, 2004 and ending on March 23, 2006, British Airways sold, in the United Kingdom, at least one coupon for passenger air travel on a flight operated by British Airways and as to which the long-haul fuel surcharge was paid and not refunded in whole as of the date of the Settlement Agreement ("U.K. Qualifying Coupon"), but excluding the officers, directors, employees, counsel and agents of British Airways, and all government entities. (q) "Virgin Atlantic" means Virgin Atlantic Airways, Ltd. -5[PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND BRITISH AIRWAYS PLC CASE NO. M:06-CV-1793-CRB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. This Court finds that it has jurisdiction over the Actions, each of the parties to the Settlement Agreement, and each of the Settlement Class Members. 3. The notice given to the Settlement Classes of the Settlement and the Final Approval Hearing, in substantial accordance with the terms of the Notice Approval Order, was the best notice practicable under the circumstances, including individual notice to those Settlement Class Members whose addresses could be identified through reasonable effort, and notice by various means of publication and internet advertising as set forth in the proposed notice program and approved by the Court in the Notice Approval Order. Said notice provided due and adequate notice of these proceedings, the Final Approval Hearing, and the Settlement, to all persons entitled to such notice, and said notice fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process. 4. The Settlement Agreement was the result of bona fide and arm's-length negotiations between Settlement Class Counsel and counsel for British Airways. 5. On September 26, 2008, the Court held a Final Approval Hearing to consider the fairness, reasonableness, and adequacy of the proposed Settlement. 6. The Court has given fair consideration to all objections to the Settlement that have been timely submitted by Settlement Class Members, and hereby overrules each such objection. Any Settlement Class Member who failed to timely object to the Settlement in the manner prescribed in the Preliminary Approval Order shall be deemed to have waived any objections to the Settlement and the Settlement Agreement and by operation of this Judgment shall be forever barred from making any such objections to the Settlement or the Settlement Agreement. 7. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court hereby approves the Settlement as set forth in the Settlement Agreement, finds that said Settlement is, in all respects, fair, reasonable, and adequate with respect to the Settlement Classes, and directs that -6[PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND BRITISH AIRWAYS PLC CASE NO. M:06-CV-1793-CRB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Settlement be consummated in accordance with the terms and conditions set forth in the Settlement Agreement. 8. The Actions are hereby dismissed with prejudice as to British Airways, without costs (except as set forth in the Settlement Agreement and in any order of this Court on Settlement Class Counsel's motion for attorneys' fees and reimbursement of litigation expenses). 9. Upon the Release Date, and in consideration of the Settlement Payments specified in paragraphs 10.1, 10.2, 10.3 and 10.4 of the Settlement Agreement, and for other good and valuable consideration, the sufficiency and receipt of which the Plaintiffs have acknowledged, each of the Releasing Parties shall be deemed to have, and by operation of this Judgment shall have, fully, finally, and forever released, relinquished, and discharged all Released Claims against the Released Parties, shall have covenanted not to sue any of the Released Parties with respect to all such Released Claims, and shall be permanently barred and enjoined from instituting, commencing, prosecuting or asserting any such Released Claim against any of the Released Parties. 10. Each Settlement Class Member who submits a claim pursuant to the Settlement will also be required, as a condition to obtaining a Refund Payment, to sign a written release (by electronic means or by physical signature, depending on how the claim is submitted) expressly releasing all Released Claims of such Settlement Class Member. 11. With respect to any and all Released Claims, upon the Effective Date, Plaintiffs shall expressly waive, and, upon the Release Date, each of the Releasing Parties shall be deemed to have waived, and by operation of this Judgment shall have waived, the provisions, rights, and benefits of California Civil Code Section 1542 and Section 20-7-11 of the South Dakota Codified Laws (to the extent either or both of them apply to the Actions), each of which provides: -7[PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND BRITISH AIRWAYS PLC CASE NO. M:06-CV-1793-CRB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12. 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. Plaintiffs shall further expressly waive, and each of the Releasing Parties shall be deemed to have waived, and by operation of this Judgment shall have waived, any and all provisions, rights, and benefits conferred by any law of any state or territory of the United States, or of the United Kingdom, or of the European Union, or any principle of common law or foreign law, that is similar, comparable, or equivalent in effect to California Civil Code Section 1542 or that would otherwise act to limit the effectiveness or scope of the releases. Plaintiffs and the Releasing Parties have acknowledged that they may hereafter discover facts in addition to or different from those that any of them or their counsel now knows or believes to be true with respect to the subject matter of the Released Claims or otherwise, but upon the Effective Date each Plaintiff shall expressly have, and, upon the Release Date, each Releasing Party shall be deemed to have, and by operation of the Judgment shall have, fully, finally, and forever settled and released any and all Released Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, whether or not concealed or hidden, that now exist or heretofore have existed, upon any theory of law or equity now existing or coming into existence in the future, including, but not limited to, conduct that is negligent, reckless, intentional, with or without malice, or a breach of any duty, law, or rule, without regard to the subsequent discovery or existence of such different or additional facts. Plaintiffs have acknowledged, and the Releasing Parties shall be deemed to have acknowledged, and by operation of this Judgment shall have acknowledged, that the foregoing waiver was separately bargained for and a key element of the Settlement of which this release is a part. -8[PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND BRITISH AIRWAYS PLC CASE NO. M:06-CV-1793-CRB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 13. Any U.K. Settlement Class Member who does not receive and accept a U.K. Refund Payment shall not be deemed, directly or indirectly, to have released claims against British Airways by reason of the Settlement Agreement or this Judgment. Any such U.K. Settlement Class Member who has not timely submitted a request for exclusion and who seeks to pursue separately any claim that is described in the definition of "Released Claims" herein, must first exhaust any and all rights and remedies in the United Kingdom before asserting any such claim elsewhere.in the United States. (CRB) 14. Upon the Effective Date, and by operation of this Judgment, British Airways will be deemed to have waived any claim for indemnity or contribution, however denominated, against Virgin Atlantic, arising out of or related to the claims or allegations asserted by Plaintiffs in the Actions, whether arising under state, federal, or foreign law as claims, cross-claims, counterclaims, or third-party claims, and whether asserted in the Actions, in this Court, in any federal or state court, or in any other court, arbitration proceeding, administrative agency, or other forum in the United States, the United Kingdom, or elsewhere, and all such claims shall be deemed extinguished, discharged, satisfied and unenforceable, provided however, that such 18 waiver by British Airways is conditional upon this Court entering a judgment giving effect to a 19 waiver by Virgin Atlantic in favor of British Airways on the same terms, and such judgment 20 becoming final and effective. 21 22 23 24 25 15. This Judgment is a final judgment in the Actions as to all Released Claims. This Court finds, for purposes of Rule 54(b) of the Federal Rules of Civil Procedure, that there is no just reason for delay and expressly directs entry of judgment as set forth herein. 16. Neither this Judgment, the Settlement, the Settlement Agreement, nor any act 26 performed or document executed pursuant to or in furtherance of the Settlement or the 27 Settlement Agreement is or may be deemed to be or may be used as an admission of, or evidence -928 [PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND BRITISH AIRWAYS PLC CASE NO. M:06-CV-1793-CRB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of, British Airways' conduct having caused any harm to consumers. Neither this Judgment, the Settlement, the Settlement Agreement, nor any act performed or document executed pursuant to or in furtherance of the Settlement or the Settlement Agreement, shall be admissible in any proceeding for any purpose, except to consummate or enforce the terms of the Settlement, and except that the Released Parties may file the Settlement Agreement or this Judgment in any action for any purpose, including, but not limited to, in support of a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar, or reduction, or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim. 17. Without affecting the finality of this Judgment in any way, this Court retains jurisdiction over (a) implementation of the Settlement; (b) distribution of Refund Payments and the U.S. Cy Pres Payment pursuant to the Settlement Agreement; and (c) all other proceedings related to the implementation and enforcement of the terms of the Settlement Agreement and/or the Settlement, and the administration of claims by Settlement Class Members. The time to appeal from this Judgment shall commence upon its entry. 18. In the event that the Effective Date does not occur, this Judgment shall be rendered null and void and shall be vacated, nunc pro tunc, except insofar as expressly provided to the contrary in the Settlement Agreement, and without prejudice to the status quo ante rights of Plaintiffs, Settlement Class Members, and British Airways. 1st October IT IS SO ORDERED on this ______ day of ____________________, 2008. ___________________________ Hon. Charles R. Breyer United States District Judge - 10 [PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND BRITISH AIRWAYS PLC CASE NO. M:06-CV-1793-CRB

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