Lewis v. YRC Worldwide Inc. et al

Filing 107

ORDER APPROVING CLASS ACTION SETTLEMENT. Signed by Chief Judge Glenn T. Suddaby on 9/9/2021. (sal)

Case 1:19-cv-00001-GTS-ATB Document 107 Filed 09/09/21 Page 1 of 25

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CHRISTINA LEWIS, Individually and on Behalf
of All Others Similarly Situated,

No. 1:19-cv-00001-GTS-ATB

Plaintiff,
v.
YRC WORLDWIDE INC., et al.,
Defendants.
ORDER APPROVING
CLASS-ACTION SETTLEMENT
WHEREAS Lead Plaintiffs City of Warwick Retirement Fund and Peter Szabo, on behalf
of themselves and the Class (as defined below), and defendants YRC Worldwide Inc., James L.
Welch, Jamie G. Pierson, Stephanie D. Fisher, and Darren D. Hawkins have entered into a
Settlement Agreement to settle the claims asserted in this Action; and
WHEREAS Lead Plaintiffs and Defendants have applied to the Court pursuant to Fed. R.
Civ. P. 23(e) and the Private Securities Litigation Reform Act of 1995 (the “PSLRA”) for an
Order granting final approval of the proposed settlement in accordance with the Settlement
Agreement, which sets forth the terms and conditions of the proposed settlement (the
“Settlement”); and
WHEREAS, on April 19, 2021, the Court entered an Order preliminarily approving the
proposed Settlement, preliminarily certifying the Class for settlement purposes, directing notice
to be sent and published to potential Class Members, and scheduling a hearing (the “Fairness
Hearing”) to consider whether to approve the proposed Settlement, the proposed Plan of
Allocation, Lead Counsel’s application for an Attorneys’ Fees and Expenses Award, and Lead
Plaintiffs’ application for a PSLRA Award (ECF No. 98); and

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WHEREAS the Court held the Fairness Hearing on August 18, 2021 to determine, among
other things, (i) whether the terms and conditions of the proposed Settlement are fair, reasonable,
and adequate and should therefore be approved; (ii) whether the Class should be finally certified
for settlement purposes; (iii) whether notice to the Class was implemented pursuant to the
Preliminary Approval Order and constituted due and adequate notice to potential Class Members
in accordance with the Federal Rules of Civil Procedure, the PSLRA, the United States
Constitution (including the Due Process Clause), the Rules of the Court, and any other applicable
law; (iv) whether to approve the proposed Plan of Allocation; (v) whether to enter an order and
judgment dismissing the Action on the merits and with prejudice as to Defendants and against all
Class Members, and releasing all the Released Class Claims and Released Releasees’ Claims as
provided in the Settlement Agreement; (vi) whether to enter the requested permanent injunction
and bar orders as provided in the Settlement Agreement; (vii) whether and in what amount to
grant an Attorneys’ Fees and Expenses Award to Lead Counsel; and (viii) whether and in what
amount to grant a PSLRA Award to Lead Plaintiffs; and
WHEREAS the Court received submissions and heard argument at the Fairness Hearing;
NOW, THEREFORE, based on the written submissions received before the Fairness
Hearing, the arguments at the Fairness Hearing, and the other materials of record in this action, it
is hereby ORDERED, ADJUDGED, AND DECREED as follows:
Incorporation of Settlement Documents. This Order incorporates and makes a
part hereof the Settlement Agreement dated as of April 12, 2021, including its defined terms. To

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the extent capitalized terms are not defined in this Order, this Court adopts and incorporates the
definitions set out in the Settlement Agreement. 1
Jurisdiction. The Court has jurisdiction over the subject matter of the Action, the
Lead Plaintiffs, and all other Class Members (as defined below) and has jurisdiction to enter this
Order and the Judgment.
Final Class Certification. The Court grants certification of the Class solely for
purposes of the Settlement pursuant to Fed. R. Civ. P. 23(b)(3). The Class is defined to consist
of all persons and entities who purchased or otherwise acquired YRC Securities during the
period from March 10, 2014 through December 14, 2018, inclusive, and who were damaged
a.

thereby. Excluded from the Class are:
such persons or entities who submitted valid and timely requests for

b.

such persons or entities who, while represented by counsel, settled an

c.

YRC and (i) all officers and directors of YRC during the Class Period

exclusion from the Class;

actual or threatened lawsuit or other proceeding against one or more of the Releasees arising out
of or related to the Released Class Claims; and

(including James L. Welch, Jamie G. Pierson, Stephanie D. Fisher, and Darren D. Hawkins),
(ii) YRC’s Affiliates, subsidiaries, successors, and predecessors, (iii) any entity in which YRC or
any individual identified in subpart (i) has or had during the Class Period a Controlling Interest,
and (iv) for the individuals identified in subpart(s) (i), (ii), and/or (iii), their Family Members,
legal representatives, heirs, successors, and assigns.

1

Select definitions from the Settlement Agreement are set out in the Appendix to this
Order.
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This certification of the Class is made for the sole purpose of consummating the
Settlement of the Action in accordance with the Settlement Agreement. If the Court’s approval
of the Settlement does not become Final for any reason whatsoever, or if it is modified in any
material respect deemed unacceptable by a Settling Party, this class certification shall be deemed
void ab initio, shall be of no force or effect whatsoever, and shall not be referred to or used for
any purpose whatsoever, including in any later attempt by or on behalf of Lead Plaintiffs or
anyone else to seek class certification in this or any other matter.
For purposes of the settlement of the Action, and only for those purposes, the
Court finds that the requirements of Fed. R. Civ. P. 23(a) and 23(b)(3), and any other applicable
laws (including the PSLRA) have been satisfied, in that:
a.

The Class is ascertainable from business records and/or from objective

b.

The Class is so numerous that joinder of all members would be

c.

One or more questions of fact and law are common to all Class Members;

d.

Lead Plaintiffs’ claims are typical of those of the other members of the

e.

Lead Plaintiffs have been and are capable of fairly and adequately

criteria;

impractical;

Class;

protecting the interests of the members of the Class, in that (i) Lead Plaintiffs’ interests have
been and are consistent with those of the other Class Members, (ii) Lead Counsel have been and
are able and qualified to represent the Class, and (iii) Lead Plaintiffs and Lead Counsel have
fairly and adequately represented the Class Members in prosecuting this Action and in
negotiating and entering into the proposed Settlement; and

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f.

For settlement purposes, questions of law and/or fact common to members

of the Class predominate over any such questions affecting only individual Class Members, and
a class action is superior to all other available methods for the fair and efficient resolution of the
Action. In making these findings for settlement purposes, the Court has considered, among other
things, (i) the questions of law and fact pled in the Complaint, (ii) the Class Members’ interest in
the fairness, reasonableness, and adequacy of the proposed Settlement, (iii) the Class Members’
interests in individually controlling the prosecution of separate actions, (iv) the impracticability
or inefficiency of prosecuting separate actions, (v) the extent and nature of any litigation
concerning these claims already commenced, and (vi) the desirability of concentrating the
litigation of the claims in a particular forum.
Final Certification of Lead Plaintiffs and Appointment of Lead Counsel for
Settlement Purposes. Solely for purposes of the proposed Settlement, the Court hereby
confirms its (i) certification of Lead Plaintiffs as representatives of the Class and (ii) appointment
of Kaplan Fox & Kilsheimer LLP and Pomerantz LLP as Lead Counsel for the Class pursuant to
Fed. R. Civ. P. 23(g).
Notice. The Court finds that the distribution of the Postcard Notice, Long-Form
Notice, and Claim Form, the publication of the Summary Notice, and the notice methodology as
set forth in the Preliminary Approval Order all were implemented in accordance with the terms
of that Order. The Court further finds that the Postcard Notice, Long-Form Notice, Claim Form,
Summary Notice, and notice methodology (i) constituted the best practicable notice to potential
Class Members, (ii) constituted notice that was reasonably calculated, under the circumstances,
to apprise potential Class Members of the pendency of the Action, the nature and terms of the
proposed Settlement, the effect of the Settlement Agreement (including the release of claims),

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their right to object to the proposed Settlement, their right to exclude themselves from the Class,
and their right to appear at the Fairness Hearing, (iii) were reasonable and constituted due,
adequate, and sufficient notice to all persons or entities entitled to receive notice (including any
State and/or federal authorities entitled to receive notice under the Class Action Fairness Act of
2005), and (iv) met all applicable requirements of the Federal Rules of Civil Procedure, the
United States Constitution (including the Due Process Clause), the PSLRA, the Rules of the
Court, and any other applicable law.
Final Settlement Approval. The Court finds that the proposed Settlement
resulted from serious, informed, non-collusive negotiations conducted at arm’s length by the
Settling Parties and their experienced counsel – under the auspices of retired California Superior
Court Judge Daniel Weinstein and Jed Melnick, Esq. serving as mediators – and was entered into
in good faith. The terms of the Settlement Agreement do not have any material deficiencies, do
not improperly grant preferential treatment to any individual Class Member, and treat Class
Members equitably relative to each other. Accordingly, the proposed Settlement as set forth in
the Settlement Agreement is hereby fully and finally approved as fair, reasonable, and adequate,
consistent and in full compliance with all applicable requirements of the Federal Rules of Civil
Procedure, the United States Constitution (including the Due Process Clause), the PSLRA, and
the Rules of the Court, and in the best interests of the Class Members.
The Court hereby finds that the proposed Plan of Allocation is a fair and
reasonable method to allocate the Net Settlement Amount among eligible Class Members.
In making these findings and in concluding that the relief provided to the Class is
fair, reasonable, and adequate, the Court considered, among other factors, (i) the complexity,
expense, and likely duration of the litigation if it were to continue, including the Court’s

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dismissal of the Complaint and the costs, risks, and delay of appeal and, potentially, trial; (ii) the
reaction of the potential Class Members to the proposed Settlement, including the number of
exclusion requests and the number of objections; (iii) the stage of the proceedings and the
amount of materials available to Lead Counsel, including the Due-Diligence Discovery provided
to Lead Counsel; (iv) Lead Plaintiffs’ chances of prevailing on appeal and their risks of
otherwise establishing liability and damages, including the nature of the claims asserted and the
strength of Lead Plaintiffs’ claims and Defendants’ defenses as to liability and damages; (v) Lead
Plaintiffs’ risks of obtaining certification of a litigation class and of maintaining certification
through trial; (vi) the ability of Defendants to withstand a greater judgment; (vii) the range of
reasonableness of the Settlement Amount in light of the best possible recovery; (viii) the range of
reasonableness of the Settlement Amount to a possible recovery in light of all the attendant risks
of litigation; (ix) the availability of opt-out rights for potential Class Members who do not wish
to participate in the Settlement; (x) the effectiveness of the procedures for processing Class
Members’ claims for relief from the Settlement fund and distributing such relief to eligible Class
Members; (xi) the terms of the proposed award of attorneys’ fees, including the timing of the
payment; (xii) the terms of the Supplemental Agreement; (xiii) the treatment of Class Members
relative to each other; (xiv) the involvement of respected and experienced mediators (retired
California Superior Court Judge Daniel Weinstein and Mr. Melnick); (xv) the experience and
views of the Settling Parties’ counsel; (xvi) the submissions and arguments made throughout the
proceedings by the Settling Parties; and (xvii) the submissions and arguments made at and in
connection with the Fairness Hearing.

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The Settling Parties are directed to implement and consummate the Settlement
Agreement in accordance with its terms and provisions. The Court approves the documents
submitted to the Court in connection with the implementation of the Settlement Agreement.
Releases. Pursuant to this Approval Order and the Judgment, without further
action by anyone, and subject to paragraph 15 below, on and after the Final Settlement Date,
Lead Plaintiffs and all other Class Members (whether or not a Claim Form has been executed
and/or delivered by or on behalf of any such Class Member), on behalf of themselves and the
other Releasors, for good and sufficient consideration, the receipt and adequacy of which are
hereby acknowledged, shall be deemed to have, and by operation of law and of this Order and
the Judgment shall have, fully, finally, and forever released, relinquished, settled, and
discharged:
a.

all Released Class Claims against each and every one of the Releasees;

b.

all Claims, damages, and liabilities as to each and every one of the

Releasees to the extent that any such Claims, damages, or liabilities relate in any way to any or
all acts, omissions, nondisclosures, facts, matters, transactions, occurrences, or oral or written
statements or representations in connection with, or directly or indirectly relating to, (i) the
prosecution, defense, or settlement of the Action, (ii) the Settlement Agreement or its
implementation, (iii) the Settlement terms and their implementation, (iv) the provision of notice
in connection with the proposed Settlement, and/or (v) the resolution of any Claim Forms
submitted in connection with the Settlement; and
c.

all Claims against any of the Releasees for attorneys’ fees, costs, or

disbursements incurred by Plaintiffs’ Counsel or any other counsel representing Lead Plaintiffs
or any other Class Member in connection with or related in any manner to the Action, the

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settlement of the Action, or the administration of the Action and/or its Settlement, except to the
extent otherwise specified in the Settlement Agreement.
Pursuant to this Order and the Judgment, without further action by anyone, and
subject to paragraph 15 below, on and after the Final Settlement Date, each and every Releasee,
including Defendants’ Counsel, for good and sufficient consideration, the receipt and adequacy
of which are hereby acknowledged, shall be deemed to have, and by operation of law and of this
Order and the Judgment shall have, fully, finally, and forever released, relinquished, settled, and
discharged each and all Releasors, including Lead Counsel, from any and all Released
Releasees’ Claims, except to the extent otherwise specified in the Settlement Agreement.
Pursuant to this Order and the Judgment, without further action by anyone, and
subject to paragraph 15 below, on and after the Final Settlement Date, Plaintiffs’ Counsel and
any other counsel representing Lead Plaintiffs or any other Class Member in connection with or
related in any manner to the Action, on behalf of themselves, their heirs, executors,
administrators, predecessors, successors, Affiliates, and assigns, and any person or entity
claiming by, through, or on behalf of any of them, for good and sufficient consideration, the
receipt and adequacy of which are hereby acknowledged, shall be deemed to have, and by
operation of law and of this Order and the Judgment shall have, fully, finally, and forever
released, relinquished, settled, and discharged Defendants, Defendants’ Counsel, and all other
Releasees from any and all Claims that relate in any way to any or all acts, omissions,
nondisclosures, facts, matters, transactions, occurrences, or oral or written statements or
representations in connection with, or directly or indirectly relating to, (i) the prosecution,
defense, or settlement of the Action, (ii) the Settlement Agreement or its implementation, or
(iii) the Settlement terms and their implementation.

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Notwithstanding paragraphs 12 through 14 above, nothing in this Order or in the
Judgment shall bar any action or Claim by the Settling Parties or their counsel to enforce the
terms of the Settlement Agreement, this Order, or the Judgment.
Permanent Injunction. The Court orders as follows:
a.

Lead Plaintiffs and all other Class Members (and their attorneys,

accountants, agents, heirs, executors, administrators, trustees, predecessors, successors,
Affiliates, representatives, and assigns) who have not validly and timely requested exclusion
from the Class – and anyone else purporting to act on behalf of, for the benefit of, or derivatively
for any of such persons or entities – are permanently enjoined from filing, commencing,
prosecuting, intervening in, participating in (as class members or otherwise), or receiving any
benefit or other relief from any other lawsuit, arbitration, or administrative, regulatory, or other
proceeding (as well as a motion or complaint in intervention in the Action if the person or entity
filing such motion or complaint in intervention purports to be acting as, on behalf of, for the
benefit of, or derivatively for any of the above persons or entities) or order, in any jurisdiction or
forum, as to the Releasees based on or relating to the Released Class Claims;
b.

All persons and entities are permanently enjoined from filing,

commencing, or prosecuting any other lawsuit as a class action (including by seeking to amend a
pending complaint to include class allegations or by seeking class certification in a pending
action in any jurisdiction) or other proceeding on behalf of any Class Members as to the
Releasees, if such other lawsuit is based on or related to the Released Class Claims; and
c.

All Releasees, and anyone purporting to act on behalf of, for the benefit

of, or derivatively for any such persons or entities, are permanently enjoined from commencing,

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prosecuting, intervening in, or participating in any claims or causes of action relating to Released
Releasees’ Claims.
Notwithstanding paragraph 16 above, nothing in this Order or in the Judgment
shall bar any action or Claim by the Settling Parties or their counsel to enforce the terms of the
Settlement Agreement, this Order, or the Judgment.
Contribution Bar Order. In accordance with 15 U.S.C. § 78u-4(f)(7)(A), any
and all Claims for contribution arising out of any Released Class Claim (i) by any person or
entity against any of the Releasees and (ii) by any of the Releasees against any person or entity
other than as set out in 15 U.S.C. § 78u-4(f)(7)(A)(ii) are hereby permanently barred,
extinguished, discharged, satisfied, and unenforceable. Accordingly, without limitation to any of
the above, (i) any person or entity is hereby permanently enjoined from commencing,
prosecuting, or asserting against any of the Releasees any such Claim for contribution, and
(ii) the Releasees are hereby permanently enjoined from commencing, prosecuting, or asserting
against any person or entity any such Claim for contribution. In accordance with 15 U.S.C.
§ 78u-4(f)(7)(B), any Final verdict or judgment that might be obtained by or on behalf of the
Class or a Class Member against any person or entity for loss for which such person or entity and
any Releasee are found to be jointly liable shall be reduced by the greater of (i) an amount that
corresponds to such Releasee’s or Releasees’ percentage of responsibility for the loss to the
Class or Class Member or (ii) the amount paid by or on behalf of Defendants to the Class or
Class Member for common damages, unless the court entering such judgment orders otherwise.

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Complete Bar Order. To effectuate the Settlement, the Court hereby enters the
following Complete Bar:
a.

Any and all persons and entities are permanently barred, enjoined, and

restrained from commencing, prosecuting, or asserting any Claim against any Releasee arising
under any federal, state, or foreign statutory or common-law rule, however styled, whether for
indemnification or contribution or otherwise denominated, including Claims for breach of
contract or for misrepresentation, where the Claim is or arises from a Released Class Claim and
the alleged injury to such person or entity arises from that person’s or entity’s alleged liability to
the Class or any Class Member, including any Claim in which a person or entity seeks to recover
from any of the Releasees (i) any amounts that such person or entity has or might become liable
to pay to the Class or any Class Member and/or (ii) any costs, expenses, or attorneys’ fees from
defending any Claim by the Class or any Class Member. All such Claims are hereby
extinguished, discharged, satisfied, and unenforceable, subject to a hearing to be held by the
Court, if necessary. The provisions of this subparagraph are intended to preclude any liability of
any of the Releasees to any person or entity for indemnification, contribution, or otherwise on
any Claim that is or arises from a Released Class Claim and where the alleged injury to such
person or entity arises from that person’s or entity’s alleged liability to the Class or any Class
Member; provided, however, that, if the Class or any Class Member obtains any judgment
against any such person or entity based upon, arising out of, or relating to any Released Class
Claim for which such person or entity and any of the Releasees are found to be jointly liable, that
person or entity shall be entitled to a judgment credit equal to an amount that is the greater of
(i) an amount that corresponds to such Releasee’s or Releasees’ percentage of responsibility for
the loss to the Class or Class Member and (ii) the amount paid by or on behalf of Defendants to

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the Class or Class Member for common damages, unless the court entering such judgment orders
otherwise.
b.

Each and every Releasee is permanently barred, enjoined, and restrained

from commencing, prosecuting, or asserting any Claim against any other person or entity
(including any other Releasee) arising under any federal, state, or foreign statutory or commonlaw rule, however styled, whether for indemnification or contribution or otherwise denominated,
including Claims for breach of contract and for misrepresentation, where the Claim is or arises
from a Released Class Claim and the alleged injury to such Releasee arises from that Releasee’s
alleged liability to the Class or any Class Member, including any Claim in which any Releasee
seeks to recover from any person or entity (including another Releasee) (i) any amounts that any
such Releasee has or might become liable to pay to the Class or any Class Member and/or
(ii) any costs, expenses, or attorneys’ fees from defending any Claim by the Class or any Class
Member. All such Claims are hereby extinguished, discharged, satisfied, and unenforceable.
c.

Notwithstanding anything stated in the Complete Bar Order, if any person

or entity (for purposes of this subparagraph, a “petitioner”) commences against any of the
Releasees any action either (i) asserting a Claim that is or arises from a Released Class Claim
and where the alleged injury to such petitioner arises from that petitioner’s alleged liability to the
Class or any Class Member or (ii) seeking contribution or indemnity for any liability or expenses
incurred in connection with any such Claim, and if such action or Claim is not barred by a court
pursuant to this paragraph 19 or is otherwise not barred by the Complete Bar Order, neither the
Complete Bar Order nor the Settlement Agreement shall bar Claims by that Releasee against
(i) such petitioner, (ii) any person or entity who is or was controlled by, controlling, or under
common control with the petitioner, whose assets or estate are or were controlled, represented, or

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administered by the petitioner, or as to whose Claims the petitioner has succeeded, and (iii) any
person or entity that participated with any of the preceding persons or entities described in
items (i) and/or (ii) of this subparagraph in connection with the assertion of the Claim brought
against the Releasee(s).
d.

If any term of the Complete Bar Order entered by the Court is held to be

unenforceable after the date of entry, such provision shall be substituted with such other
provision as may be necessary to afford all of the Releasees the fullest protection permitted by
law from any Claim that is based upon, arises out of, or relates to any Released Class Claim.
e.

Nothing in the Contribution Bar Order or Complete Bar Order shall (i)

expand the release provided by Class Members and other Releasors to the Releasees under
Paragraph 12 above or (ii) bar any persons who are excluded from the Class by definition or by
request from asserting any Released Class Claim against any of the Releasees. Notwithstanding
the Complete Bar Order or anything else in the Settlement Agreement, (i) nothing shall prevent
the Settling Parties from taking such steps as are necessary to enforce the terms of the Settlement
Agreement, and (ii) nothing shall release, interfere with, limit, or bar the assertion by any
Releasee of any Claim for insurance coverage under any insurance, reinsurance, or indemnity
policy that provides coverage respecting the conduct and Claims at issue in the Action.
No Admissions. This Order and the Judgment, the Settlement Agreement, the
offer of the Settlement Agreement, and compliance with the Judgment or the Settlement
Agreement shall not constitute or be construed as an admission by any of the Releasees of any
wrongdoing or liability, or by any of the Releasors of any infirmity in Lead Plaintiffs’ Claims.
This Order, the Judgment, and the Settlement Agreement are to be construed solely as a
reflection of the Settling Parties’ desire to facilitate a resolution of the Claims in the Complaint

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and of the Released Class Claims. In no event shall this Order, the Judgment, the Settlement
Agreement, any of their provisions, or any negotiations, statements, or court proceedings relating
to their provisions in any way be construed as, offered as, received as, used as, or deemed to be
evidence of any kind in the Action, any other action, or any judicial, administrative, regulatory,
or other proceeding, except a proceeding to enforce the Settlement Agreement. Without limiting
the foregoing, this Order, the Judgment, the Settlement Agreement, and any related negotiations,
statements, or court proceedings shall not be construed as, offered as, received as, used as, or
deemed to be evidence or an admission or concession (i) of any kind against the Settling Parties
or the other Releasees and Releasors in the Action, any other action, or any judicial,
administrative, regulatory, or other proceeding or (ii) of any liability or wrongdoing whatsoever
on the part of any person or entity, including Defendants, or as a waiver by Defendants of any
applicable defense, or (iii) by Lead Plaintiffs or the Class of the infirmities of any claims, causes
of action, or remedies.
Notwithstanding anything in paragraph 20 above, this Order, the Judgment,
and/or the Settlement Agreement may be filed in any action against or by any Releasee to
support a defense of res judicata, collateral estoppel, release, waiver, good-faith settlement,
judgment bar or reduction, injunction, full faith and credit, or any other theory of claim
preclusion, issue preclusion, or similar defense or counterclaim.
Attorneys’ Fees and Expenses Award. Plaintiffs’ Counsel are hereby awarded
attorneys’ fees in the amount of 27.5% of the Settlement Amount and expenses in the amount of
$116,861.23, plus interest at the same rate and for the same periods as earned by the Settlement
Fund (until paid). Those amounts shall be paid out of the Settlement Fund (as that term is
defined in the Settlement Agreement) pursuant to the terms set out in Section X of the Settlement

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Agreement. The Court finds that the Attorneys’ Fees and Expenses Award is fair, reasonable,
and appropriate.
In making this award of attorneys’ fees and reimbursement of expenses, the Court
has considered and found that: (a) the Settlement has created a fund of $2.1 million that has
been paid into escrow pursuant to the terms of the Settlement and that numerous Class Members
who submit acceptable Claim Forms will benefit from the Settlement; (b) the fee sought by Lead
Counsel has been reviewed and approved as fair and reasonable by Lead Plaintiffs; (c) copies of
the Postcard Notice, which were mailed to all potential Class Members who could be identified
with reasonable effort, as well as the Long-Form Notice, which was available to any potential
Class Member by request or on the Settlement website, stated that Lead Counsel would apply for
attorneys’ fees in an amount not to exceed 33.33% of the Settlement Fund and reimbursement of
Litigation Expenses in an amount not to exceed $140,000; (d) Plaintiffs’ Counsel conducted the
litigation and achieved the Settlement with skill, perseverance, and diligent advocacy; (e) the
Action raised complex issues; (f) the Action presented significant risks to establishing liability
and damages, especially in light of this Court’s prior dismissal of the Action; and (g) the amount
of attorneys’ fees and expenses is fair and reasonable and consistent with awards in similar cases.
PSLRA Award. The Court finds that the requested PSLRA Award of $2,500 to
the Lead Plaintiff Peter Szabo is reasonable in the circumstances. This amount shall be paid out
of the Settlement Fund pursuant to the terms set out in Section XI of the Settlement Agreement.
Modification of Settlement Agreement. Without further approval from the
Court, the Settling Parties are hereby authorized to agree to and adopt such amendments,
modifications, and expansions of the Settlement Agreement (including its exhibits) that (i) are

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not materially inconsistent with this Order and the Judgment and (ii) do not materially limit the
rights of Class Members under the Settlement Agreement.
Dismissal of Action. The Action, including all Claims that have been asserted, is
hereby dismissed on the merits and with prejudice, without fees or costs to any Settling Party
except as otherwise provided in the Settlement Agreement.
Retention of Jurisdiction. Without in any way affecting the finality of this
Order and the Judgment, and subject to the Mediator’s ability to make final, binding, and
nonappealable rulings as prescribed in the Settlement Agreement, the Court expressly retains
continuing and exclusive jurisdiction over the Settlement and all Settling Parties, the Class
Members, and anyone else who appeared before this Court for all matters relating to the Action,
including the administration, consummation, interpretation, implementation, or enforcement of
the Settlement Agreement or of this Order and the Judgment, and for any other reasonably
necessary purposes, including:
a.

enforcing the terms and conditions of the Settlement Agreement, this

Order, and the Judgment (including the Complete Bar Order, the PSLRA Contribution Bar
Order, and the permanent injunction);
b.

resolving any disputes, claims, or causes of action that, in whole or in part,

are related to or arise out of the Settlement Agreement, this Order, or the Judgment (including
whether a person or entity is or is not a Class Member and whether Claims or causes of action
allegedly related to the Released Class Claims are or are not barred by this Order and the
Judgment or the Release);

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c.

entering such additional orders as may be necessary or appropriate to

protect or effectuate this Order and the Judgment, including whether to impose a bond on any
parties who appeal from this Order or the Judgment; and
d.

entering any other necessary or appropriate orders to protect and effectuate

this Court’s retention of continuing jurisdiction.
Rule 11 Findings. The Court finds that all complaints filed in the Action were
filed on a good-faith basis in accordance with the PSLRA and with Rule 11 of the Federal Rules
of Civil Procedure based upon all publicly available information. The Court finds that all
Settling Parties and their counsel have complied with each requirement of Rule 11 of the Federal
Rules of Civil Procedure as to all proceedings herein.
Termination. If the Settlement does not become Final in accordance with the
terms of the Settlement Agreement, or is terminated pursuant to the Settlement Agreement
(including pursuant to Section XIV), this Order and the Judgment shall be rendered null and void
to the extent provided by and in accordance with the Settlement Agreement; provided, however,
that paragraph 40 of the Preliminary Approval Order (concerning the Confidentiality Agreement)
shall remain in effect even if this Order and the Judgment are rendered null and void.
Entry of Judgment. There is no just reason to delay the entry of this Order and
the Judgment, and immediate entry by the Clerk of Court is expressly directed pursuant to
Rule 54(b) of the Federal Rules of Civil Procedure. Any appeal from this Order or other
proceeding seeking subsequent judicial review of this Order pertaining solely to (i) the attorneys’
fees or expenses awarded to Plaintiffs’ Counsel or the PSLRA Award to Lead Plaintiffs and/or

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(ii) the Plan of Allocation shall not in any way delay or preclude this Order from becoming Final
under the terms of the Settlement Agreement.
SO ORDERED this 9th day of September, 2021.

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Appendix A
APPENDIX OF SELECTED SETTLEMENT DEFINITIONS
“Action” means the securities class action now pending in this Court and captioned
Lewis v. YRC Worldwide Inc., Case No. 1:19-cv-00001-GTS-ATB (N.D.N.Y), previously on
appeal as No. 20-1427-cv (2d Cir.).
“Operative Facts” means those facts and circumstances that provide the factual
predicate for the claims asserted in the Action and shall include the following to the extent they
provide the bases for the claims asserted in the Action:
a.

any alleged violations of the federal False Claims Act, any state-law analogue of

that statute, any consumer-protection law, or any principle of contract law by YRC or any YRC
Affiliate in connection with charges to customers for freight shipping, and/or any alleged
knowledge by any Releasee of such alleged conduct including as alleged in the Complaint at
¶¶ 11, 17, 93-129, 482-86;
b.

any alleged misconduct concerning charges for the weight of freight shipped

(including through reweighing and elimination of “negative reweighs”), charges for the amount
of freight shipped (e.g., charging for a full truckload even if the truck was not full),
misclassification of freight, imposition of allegedly improper fees or surcharges (including fuel
surcharges), targeting of particular customers for overcharges, incentivization of employees to
accumulate reweighs, and criticism of employees for adjusting weights and charges in favor of
customers including as alleged in the Complaint at ¶¶ 8-10, 12-13, 61-92, 101-68;
c.

any alleged failure to disclose, or concealment of, the U.S. Department of Justice

investigation into the matters described in the action captioned United States ex rel. Hannum v.
YRC Freight, Inc., Civ. Action No. 08-0811(A) (W.D.N.Y.), including the U.S. Department of

APP-1

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Justice’s complaint in intervention, including the magnitude of potential liability to the U.S.
Government, including as alleged in the Complaint at ¶¶ 15, 169-74, 183-91, 199g;
d.

any recordkeeping and information systems relating to reweighs and other

customer charges including as alleged in the Complaint at ¶¶ 117-22;
e.

financial reporting and conformance (or alleged nonconformance) with

accounting principles generally accepted in the United States (“GAAP”) concerning allegedly
improper recognition of revenues and allegedly inflated reported operating revenue, operating
income, and net income (or understating operating loss or net loss), and any statements about
conformity to GAAP and compliance with other legal requirements including as alleged in the
Complaint at ¶¶ 9, 14-15, 67, 71, 175-93, 216-19, 273-74, 325-26, 385-86, 443-44;
f.

YRC’s internal controls over financial reporting, or its governance, policies,

practices, procedures, and internal controls (including its Code of Business Conduct), including
any deficiencies and weaknesses in, or compliance or purported noncompliance with, any of
them, including as alleged in the Complaint at ¶¶ 194-97, 512-14;
g.

any disclosures, statements, representations, communications, or omissions during

the Class Period – whether in SEC filings or Sarbanes-Oxley certifications, at industry or
investor conferences, or in analyst meetings, earnings calls, or otherwise – about business
operations, financial results, revenue recognition, reserves, business strategy, pricing, customers’
needs, commitment, contingencies, legal matters, and internal control over financial reporting,
including any alleged failure to disclosure that purported misconduct was materially misstating
YRC’s business, operations and financial results including as alleged in the Complaint at ¶¶ 15,
198-481;

APP-2

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h.

any alleged inflation or decline in the price of YRC Securities during the Class

Period that is related to or arises out of the alleged conduct and/or topics described in Sections
I.A.42.a.-g above including as alleged in the Complaint at ¶¶ 15-16, 18;
i.

any Claims under Exchange Act §§ 10(b) and/or 20(a) and/or SEC Rule 10b-5

arising out of the alleged conduct and/or topics described in Sections I.A.42.a-g above during the
Class Period including as alleged in the Complaint at ¶¶ 539-54;
j.

any Claims related to sales of YRC Securities by any Releasees during the Class

Period, including any Claims under Exchange Act §§ 10(b), 20(a), or 20A or SEC Rule 10b-5
relating to such sales, to the extent that such Claims are related in any way to the alleged conduct
and/or topics described in Sections I.A.42.a-g above including as alleged in the Complaint at
¶¶ 16, 28, 32, 35, 39, 491-93;
k.

Releasees’ knowledge of the alleged conduct described in Sections I.A.42.a-g

above including as alleged in the Complaint at ¶¶ 487-89, 497-514; and
l.

Releasees’ alleged motive to commit securities fraud in connection with any of the

matters described in Sections I.A.42.a.-g above including as alleged in the Complaint at ¶¶ 49096.
“Released Class Claims” means each and every Claim that (i) arises from or relates to
the Action (including all Claims alleged in the Complaint) and is asserted against the Releasees
or (ii) could have been or could be asserted against any of the Releasees in connection with or
relating directly or indirectly to any of the Operative Facts or any alleged statements about,
mischaracterizations of, or omissions concerning them, whether arising under any federal, state,
or other statutory or common-law rule or under any foreign law, in any court, tribunal, agency, or
other forum, and such Claim arises out of or relates to the purchase or other acquisition of YRC

APP-3

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Securities, or to any other Investment Decision, during the Class Period; provided, however, that
the term “Released Class Claims” does not include (and will not release or impair) (i) any
shareholder derivative action, including without limitation the claims asserted in Bhandari v.
Carty, No. 2021-0090 (Del. Ch.), or (ii) any claims to enforce this Settlement Agreement.
“Released Releasees’ Claims” means each and every Claim that has been, could have
been, or could be asserted in the Action or in any other proceeding by any Releasee, including
Defendants and their successors and assigns, or his, her, or its respective estates, heirs, executors,
agents, attorneys (including in-house counsel, outside counsel, and Defendants’ Counsel),
beneficiaries, accountants, professional advisors, trusts, trustees, administrators, and assigns,
against Lead Plaintiffs, any other Class Members, or any of their respective attorneys (including,
without limitation, Plaintiffs’ Counsel), including their successors and assigns, or his, her, its, or
their respective estates, heirs, executors, agents, attorneys (including in-house counsel and
outside counsel), beneficiaries, accountants, professional advisors, trusts, trustees,
administrators, and assigns, and that arises out of or relates in any way to the initiation,
prosecution, or settlement of the Action or the implementation of this Settlement Agreement;
provided, however, that Released Releasees’ Claim shall not include any Claim to enforce the
Settlement Agreement.
“Releasee” means each and every one of, and “Releasees” means all of, (i) YRC,
(ii) YRC Affiliates, (iii) each of YRC’s and YRC Affiliates’ current and former officers
(including Messrs. Welch, Pierson, and Hawkins and Ms. Fisher), directors, employees, agents,
representatives, any and all in-house counsel and outside counsel (including Defendants’
Counsel), advisors, administrators, accountants, accounting advisors, auditors, consultants,
assigns, assignees, beneficiaries, representatives, partners, successors-in-interest, insurance

APP-4

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carriers, reinsurers, parents, affiliates, subsidiaries, successors, predecessors, fiduciaries, service
providers, and investment bankers and any entities in which YRC or any YRC Affiliate has or
had a Controlling Interest or that has or had a Controlling Interest in YRC or any YRC Affiliate,
and (iv) for each of the foregoing Releasees, (y) to the extent the Releasee is an entity, each of its
current and former officers, directors, employees, agents, representatives, any and all in-house
counsel and outside counsel (including Defendants’ Counsel), advisors, administrators,
accountants, accounting advisors, auditors, consultants, assigns, assignees, beneficiaries,
representatives, partners, successors-in-interest, insurance carriers, reinsurers, parents, affiliates,
subsidiaries, successors, predecessors, fiduciaries, service providers, and investment bankers,
and any entities in which any Releasee has or had a Controlling Interest or that has or had a
Controlling Interest in the Releasee and (z) to the extent the Releasee is an individual, each of his
or her Family Members, estates, heirs, executors, beneficiaries, trusts, trustees, agents,
representatives, attorneys, advisors, administrators, accountants, consultants, assigns, assignees,
representatives, partners, successors-in-interest, insurance carriers, and reinsurers
“Releasor” means each and every one of, and “Releasors” means all of, (i) Lead
Plaintiffs, (ii) all other Class Members, and (iii) for each of the foregoing Releasors, their
respective heirs, executors, administrators, predecessors, successors, and assigns, in their
capacities as such, or any person purporting to assert a Released Class Claim on behalf of, for the
benefit of, or derivatively for any such Releasors, provided that Releasors shall not include any
YRC shareholder to the extent that such person or entity seeks to assert a derivative claim on
behalf of YRC.

APP-5

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“YRC Affiliate” means any Affiliate, holding company, or subsidiary of YRC, and any
other person or entity affiliated with YRC through direct or indirect ownership of YRC shares.
“YRC Securities” means publicly traded securities issued by YRC.

APP-6
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