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JEFF S. WESTERMAN (94559) jwesterman@jswlegal.com 2 WESTERMAN LAW CORP. 1925 Century Park East, Suite 2100 3 Los Angeles, CA 90067 Tel: (310) 698-7450 4 Fax: (310) 201-9160
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Plaintiffs Interim Class Counsel

IN RE KOREAN AIR LINES CO., LTD. ANTITRUST LITIGATION

This Document Relates to: ALL ACTIONS

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MARC M. SELTZER (54534) 10 mseltzer@susmangodfrey.com SUSMAN GODFREY L.L.P. 11 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067 12 Tel: (310) 789-3100 Fax: (310) 789-3150

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION MDL No. 07-01891 Master File No. CV 07-05107 SJO (AGRx) MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT BETWEEN PLAINTIFFS AND DEFENDANT KOREAN AIR LINES CO., LTD Date: July 26, 2013 Time: 10:00 a.m. Place: Courtroom of the Hon. S. James Otero

SUSAN G. KUPFER (141724) skupfer@glancylaw.com 6 GLANCY BINKOW & GOLDBERG LLP One Embarcadero Center, Suite 760 7 San Francisco, CA 94111 8 Tel: (415) 972-8160 Fax: (415) 972-8166

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TABLE OF CONTENTS Page I. II. FACTUAL BACKGROUND ......................................................................... 1 THE SETTLEMENT AGREEMENT............................................................. 3 A. B. III. The Terms of the Settlement ................................................................. 3 The Proposed Settlement Class............................................................. 3

Preliminary Approval Is Warranted ................................................................ 4

IV.

V. VI.

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A. B. C. D. E. 1. 2. F. G. i

B.

The Proposed Settlement Is Within the Range of Possible Approval................................................................................................ 7

THE SETTLEMENT CLASS SHOULD BE CERTIFIED .......................... 10 The Class Is So Numerous That Joinder Is Impracticable .................. 11 There Are Questions of Law or Fact Common to the Class ............... 11 The Claims or Defenses of the Representative Parties Are Typical of the Claims or Defenses of the Class .................................. 13 The Representative Parties Will Fairly and Adequately Protect the Interests of the Class ..................................................................... 13 The Rule 23(b)(3) Requirements Are Satisfied .................................. 14 Common questions of law and fact predominate ..................... 15 A class action is superior to other available methods for fairly and efficiently adjudicating the controversy................... 17 The Court Should Appoint Plaintiffs Interim Class Counsel as Settlement Class Counsel .................................................................... 18 Attorneys Fees And Expenses ........................................................... 19

The Proposed Notice to Class Members ....................................................... 19 The Proposed notice plan should be approved .............................................. 22

A.

The Standard For Preliminary Approval .............................................. 4

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VII. PROPOSED SCHEDULE............................................................................. 24 VIII. CONCLUSION ............................................................................................. 25

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ii

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TABLE OF AUTHORITIES CASES Axelrod v. Saks & Co., 77 F.R.D. 441 (E.D. Pa. 1978) ............................................................................ 16 Ballard v. Blue Shield of Southern W.Va., Inc., 543 F.2d 1075 (4th Cir. 1976), ............................................................................ 12 Bogosian v. Gulf Oil Corp.,

Boyd v. Bechtel Corp.,

485 F. Supp. 610 (N.D. Cal. 1979)........................................................................ 9 Byrd v. Civil Service Commn of City and County of San Francisco, 459 U.S. 1217 (1983) ........................................................................................... 7 In re Carbon Dioxide Antitrust Litigation,

149 F.R.D. 229 (M.D. Fla. 1993) ........................................................................ 18 In re Catfish Antitrust Litigation,

826 F. Supp. 1019 (N.D. Miss. 1993) ................................................................. 18 In re Citric Acid Antitrust Litig.,

1996 WL 655791 (N.D. Cal. 1996) ............................................................... 13, 15

Coleman v. Cannon Oil Co., 141 F.R.D. 516 (M.D. Ala. 1992) ....................................................................... 18 In re Commercial Tissue Products, 183 F.R.D. 589 (N.D. Fla. 1998) ......................................................................... 18 In re Corrugated Container Antitrust Litig., 80 F.R.D. 244, 249 (S.D. Tex. 1978) ............................................................ 16, 17 In re Currency Conversion Fee Antitrust Litigation, MDL No. 1409, 2006 U.S. Dist. LEXIS 81440 (S.D.N.Y. Nov. 8, 2006) ........... 5 iii

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561 F.2d 434, 455 (3d Cir. 1977) ........................................................................ 16

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In re Domestic Air Transportation Antitrust Litig., 141 F.R.D. 534 (N.D. Ga. 1992) ....................................................................... 24 Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007) ................................................................. 11, 13, 14 In re Fine Paper Antitrust Litigation, 82 F.R.D. 143 (E.D. Pa. 1979) ............................................................................ 16 In re Flat Glass Antitrust Litigation,

In re Folding Carton Antitrust Litigation,

75 F.R.D. 727 (N.D. Ill. 1977) ............................................................................ 16 In re Glassine & Greaseproof Paper Antitrust Litigation, 88 F.R.D. 302 (E.D. Pa. 1980) ............................................................................ 16 Hanlon v. Chrysler Corp.,

150 F.3d 1011, 1020 (9th Cir. 1998) ................................................. 13, 14, 17, 18 In re Infant Formula Antitrust Litig.,

1992 WL 503465 at *6 (N.D. Fla. 1992) ............................................................ 16 In re Integra Realty Resources, Inc.,

262 F.3d 1089 (10th Cir. 2001) .................................................................... 20, 22

Estate of Jim Garrison v. Warner Brothers, Inc., No. CV 95-8328, 1996 WL. 407849 (C.D. Cal. June 25, 1996)................................................ 12, 15

Kirkorian v. Borelli, 695 F. Supp. 446 (N.D. Cal. 1988)........................................................................ 9 In re Lease Oil Antitrust Litigation(No. II), 186 F.R.D. 403 (S.D. Tex. 1999) ........................................................................ 18 Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (C.D. Cal. 1978) .................................................................... 18 iv
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191 F.R.D. 472 (W.D. Pa. 1999) ......................................................................... 12

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In re Linerboard Antitrust Litigation, 203 F.R.D. 197 (E.D. Pa. 2001), aff'd 305 F.3d 145 (3d Cir. 2002) ................... 13 In re Linerboard Antitrust Litigation, 305 F.3d 145 (3rd Cir. 2002) ............................................................................... 17 In re Medical X-Ray Film Antitrust Litigation, No. CV 93-5904, 1997 WL. 33320580 (E.D.N.Y. Dec. 26, 1997).................................................... 6 In re Michael Milken & Associate Sec. Litigation,

Molski v. Gleich,

318 F.3d 937 (9th Cir. 2003) ............................................................................... 10 In re Motorsport Merchandise Antitrust Litigation, 112 F. Supp. 2d 1329 (N.D. Ga. 2000) ................................................................. 8 In re NASDAQ Market-Makers Antitrust Litigation, 169 F.R.D. 493 (S.D.N.Y. 1996) ......................................................................... 18 In re NASDAQ Market-Makers Antitrust Litigation, 176 F.R.D. 99 (S.D.N.Y. 1997) ............................................................................. 5 National Rural Telecomms. Cooperative v. DIRECTV, Inc.,

221 F.R.D. 523 (C.D. Cal. 2004)........................................................................... 9

Newman v. Stein, 464 F.2d 689 (2d Cir. 1972) ...................................................................................... 8

Officers for Justice v. Civil Serv. Commission of the City and County of San Francisco, 688 F.2d 615 (9th Cir. 1982), ................................................................................ 7 In Re Prudential Insurance Co. Sales Practices Litigation, 148 F.3d 283 (3d. Cir. 1998) ......................................................................... 22, 23

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150 F.R.D. 57 (S.D.N.Y. 1993) ............................................................................. 7

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In re Prudential Sec. Inc. Ltd. P'ships Litigation, 163 F.R.D. 200 (S.D.N.Y. 1995) ........................................................................... 4 Reed v. General Motors Corp., 703 F.2d 170 (5th Cir. 1983) ................................................................................. 7 Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993) ................................................................................ 11 Rodriguez v. West Publishing Corp.,

In re Rubber Chemicals Antitrust Litig..

232 F.R.D. 346 (N.D. Cal. 2005) ............................................................ 11, 12, 15 Rutstein v. Avis Rent-A-Car System, Inc.,

211 F.3d 1228 (11th Cir. 2000) ........................................................................... 15 Schreiber v. NCAA,

167 F.R.D. 169 (1996) ......................................................................................... 15 Stambaugh v. Kansas Department of Corrections,

151 F.R.D. 664 (D. Kan. 1993) ........................................................................... 11 In re Sugar Industry Antitrust Litig.,

73 F.R.D. 322, 345 (E.D. Pa. 1976) .................................................................... 16

In re Sugar Industry Antitrust Litigation, 1976 WL. 1374 (N.D. Cal. May 21, 1976) ................................................... 12, 15 In re Sumitomo Copper Litigation, 189 F.R.D. 274 (S.D.N.Y. 1999) ........................................................................... 7 Thomas v. NCO Financial System, No. 00-CV-5118, 2002 U.S. Dist. LEXIS 14157 (E.D. Pa. July 31, 2002) .......... 5

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563 F.3d 948, 963 (9th Cir. 2009)......................................................................... 7

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Torrisi v. Tucson Electric Power Co., 8 F.3d 1370 (9th Cir. 1993), cert. denied sub nom. Reilly v. Tucson Elec. Power Co., 512 U.S. 1220 (1994) ......................................................................... 7 Transamerican Refining Corp. v. Dravo Corp., 130 F.R.D. 70 (S.D. Tex. 1990) .......................................................................... 12 Universal Serv. Fund Telephone Billing Practices Litigation, 219 F.R.D. 661 (D. Kan. 2004) ........................................................................... 13

869 F.2d 437 (9th Cir. 1989) ................................................................................. 5 Van Bronkhorst v. Safeco Corp.,

529 F.2d 943 (9th Cir. 1976) ................................................................................. 5 Wal-Mart Stores, Inc. v. Visa USA Inc.,

280 F.3d 124 (2d Cir. 2001) ................................................................................ 15 In re Wirebound Boxes Antitrust Litigation,

128 F.R.D. 268 (D. Minn. 1989) ......................................................................... 16 In re Wireless Facilities, Inc. Sec. Litigation II,

253 F.R.D. 607 (S.D. Cal. 2008) ......................................................................... 10

Zapata v. IBP, Inc.,

167 F.R.D. 147 (D. Kan. 1996) ........................................................................... 14

Fed. R. Civ. P. 23 .................................................................................................... 24 Fed. R. Civ. P. 23(a) ............................................................................................... 11 Fed. R. Civ. P. 23(a)(1)............................................................................................ 11 Fed. R. Civ. P. 23(a)(2)....................................................................................... 11,12 Fed. R. Civ. P. 23(b) ............................................................................................... 17 vii
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STATUTES

Utility Reform Project v. Bonneville Power Administration,

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Fed. R. Civ. P. 23(b)(3) ................................................................................... passim Fed. R. Civ. P. 23(c)(1)(B) ...................................................................................... 18 Fed. R. Civ. P. 23(c)(2)(B) ................................................................................ 20, 23 Fed. R. Civ. P. 23(e) ................................................................................ 6, 19, 20, 22 Fed. R. Civ. P. 23(g) ................................................................................................ 18 Fed. R. Civ. P. 23(g)(1)(A) ...................................................................................... 18 Section 1 of the Sherman Act, 15 U.S.C. 1 ........................................................ 1, 4

OTHER AUTHORITIES

4 Newberg on Class Actions 11.41 (4th ed. 2005) ................................................. 9 Manual for Complex Litigation (Third) 30.41 (1995) .......................................... 6 Manual for Complex Litigation (Fourth) 13.14 (2004) ...................................... 5, 7

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Pursuant to Rule 23 of the Federal Rules of Civil Procedure, plaintiffs Laura Albee, Joon Chung, Timothy Murphy, Sungshic Park, Yoon Park, Howard Ree, Leon Song, and Edward Yoo (collectively, Class Plaintiffs) respectfully seek an Order: (1) preliminarily approving the settlement reached between Class Plaintiffs and defendant Korean Air Lines Co., Ltd. (Korean Air); (2) certifying the Settlement Class, as defined below, for the purpose of effectuating the settlement; (3) approving the form and manner of providing notice to the Class of the proposed settlement and plan of distribution; (4) appointing Rust Consulting, Inc. (Rust) as the Settlement Administrator and Chicago Clearing Corporation (CCC) as the

Settlement Fund to pay the costs of notice and claims administration; (6) appointing the Interim Class Counsel as Settlement Class Counsel; and (7) appointing the Class Plaintiffs as Settlement Class Representatives. The settlement, if approved by this Court, will conclude this litigation in its

entirety. I.

conspiracies to fix prices for certain U.S./trans-Pacific air cargo services and certain

air passenger flights from the United States to Korea and agreed to pay a fine of $300 million. On May 6, 2009, defendant Asiana Airlines, Inc. (Asiana) also pled guilty to participating in conspiracies to fix prices for certain U.S./trans-Pacific air cargo services and certain air passenger flights from the United States to Korea. Asiana agreed to pay a fine of $50 million. Plaintiffs filed the operative complaintthe Second Amended Complaint

(SAC)on February 29, 2008, alleging that Korean Air and Asiana conspired to fix air fares and fuel surcharges for passenger air transportation on flights between the United States and Korea in violation of Section 1 of the Sherman Act, 15 U.S.C. 1.
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FACTUAL BACKGROUND 1

Coupon Settlement Administrator; (5) authorizing withdrawal of funds from the

On August 23, 2007, defendant Korean Air pled guilty to participating in

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Defendants each filed a motion to dismiss the SAC on April 4, 2008. The Court granted defendants motions in part, dismissing plaintiffs pass through claimsi.e., claims that were based on an itinerary that includes a U.S.-Korea flight segment but where the original point of departure or ultimate destination was not in Korea or the U.S. The Court denied defendants motions as to all other of plaintiffs claims. On August 12, 2009, defendants jointly filed a second motion to dismiss the claims of purchasers of Korea-origin travel pursuant to the Foreign Trade Antitrust Improvement Act (FTAIA). On December 22, 2009, the Court struck the parties

2010, defendants again filed a joint motion to dismiss the claims of purchasers of Korea-origin travel. On August 2, 2010, the Court granted defendants motion and dismissed claims based on purchases in Korea.

settlement of this action as to Asiana. That settlement provided for the payment of $11 million in cash and $10 million in air passenger travel coupons for the benefit of the Class.

conference calls and face-to-face discussions among counsel and with the assistance of the parties mediator the Hon. Layn R. Phillips, United States District Judge (Retired)plaintiffs and Korean Air agreed in principle to a settlement of the claims in this litigation as against Korean Air. The detailed terms of the settlement

are memorialized in the Stipulation of Settlement Between Class Plaintiffs and Defendant Korean Air Lines Co., Ltd., dated as of June 11, 2013 (Settlement Agreement), attached as Exhibit 1 to the Declaration of Marc M. Seltzer (Seltzer Decl.), filed concurrently herewith.

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briefing on the motion to dismiss and ordered further discovery. On February 26,

On July 15, 2011, following notice to the Class, the Court approved the

Following months of arms-length negotiationsincluding numerous

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II.

THE SETTLEMENT AGREEMENT A. The Terms of the Settlement

Under the terms of the Settlement Agreement, Korean Air has agreed to settle claims of the Settlement Class, as defined below, on the following terms: Korean Air will pay $39,000,000, in cash, which will be deposited in an escrow account established by Class Counsel, see Seltzer Decl., Ex. 1 25-26; and Korean Air will make available $26,000,000 in coupons to be used to purchase air passenger flight services sold by Korean Air, id. 27.

account the substantial expense and length of time necessary to prosecute the litigation through discovery, class certification, summary judgment, trial, post-trial motions and likely appeals; the significant uncertainties in predicting the outcome at each stage of this complex litigation; as well as Korean Airs financial condition. See Seltzer Decl. 14. Based on the consideration of these factors, plaintiffs counsel believe that the settlement provides an excellent result for the Class. Id. 14.

Class:


B. The Proposed Settlement Class defendants, and defendants 3

In determining to settle this action, plaintiffs counsel have taken into

The settlement contemplates the certification of the following Settlement

All persons and entities (excluding governmental entities, respective predecessors,

subsidiaries, and affiliates) who purchased Passenger Air Transportation on the airlines of Defendants in the Action, or any predecessor, subsidiary, or affiliate of the Defendants, at any time during the time period January 1, 2000 through August 1, 2007. As used in this definition, affiliates means entities controlling, controlled by, or under common control with a
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Defendant. The term affiliates does not include any travel agents. Settlement Agreement 4. The Settlement Agreement defines Passenger Air Transportation to mean passenger air transportation service purchased in the United States for flights originating in the United States and ending in the Republic of Korea (Korea) or flights originating in Korea and ending in the United States. Id. at 17. The definition of the Class and Passenger Air Transportation is substantially identical to that used in its settlement with Asiana, and approved by the Court in its final

includes persons and entities who may assert a claim for damages for violation of Section 1 of the Sherman Act, 15 U.S.C. 1.1 III.

policy favors the settlement of complex class actions such as this one, but also, as demonstrated herein, because the Settlement Agreement provides for an excellent result for the Settlement Class. The settling parties respectfully submit that the proposed settlement is fair, reasonable, and adequate to the Settlement Class and

warrants preliminary approval by this Court. A.

compromise of claims brought on a class basis. Approval of a proposed settlement is a matter within the discretion of the district court. See, e.g., In re Prudential Sec.
1

Included in the settlement are the indirect purchaser claims for damages under the Sherman Act asserted by the Chun Plaintiffs originally in Case No 26 CV 07-06542 SJO (AGRx), which action was consolidated into the above-entitled 27 litigation pursuant to a stipulation of the parties and Order of the Court, filed on March 7, 2013. (Doc. No. 582) Thus, the settlement resolves all of the claims 28 remaining in the litigation.
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judgment entered on July 15, 2011. (Doc. No. 507.) The Settlement Class only

PRELIMINARY APPROVAL IS WARRANTED

Class Plaintiffs request that this motion be granted not only because public

The Standard For Preliminary Approval

Federal Rule of Civil Procedure 23(e) requires judicial approval for any

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Inc. Ltd. Pships Litig., 163 F.R.D. 200, 209 (S.D.N.Y. 1995). This discretion should be exercised in light of the public policy which strongly favors the pretrial settlement of lawsuits, and most especially, class action lawsuits. See, e.g., Utility Reform Project v. Bonneville Power Administration, 869 F.2d 437, 443 (9th Cir. 1989); Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th Cir. 1976) ([T]here is an overriding public interest in settling and quieting litigation, and this is particularly true in class action suits.). The procedure for review of a proposed class action settlement is a two-step process. The first stepthe preliminary approval stageconsists of a

hearing.

MANUAL).

determine whether the terms of the proposed settlement warrants preliminary approval[i]n other words, the court must make a preliminary evaluation as to whether the proposed settlement is fair, reasonable and adequate. In re Currency Conversion Fee Antitrust Litig., MDL No. 1409, 2006 U.S. Dist. Lexis 81440, at *13 (S.D.N.Y. Nov. 8, 2006) (internal quotation omitted); see also In re NASDAQ Market-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997).2

The court does not make a final determination of the merits of the proposed settlement at the preliminary approval stage. Thomas v. NCO Financial Sys., No. 00-CV-5118, 2002 U. S. Dist. LEXIS 14157, at *14 (E.D. Pa. July 31, 2002) (citation omitted). Rather, full evaluation is made only at the final approval stage, after notice of the settlement has been given to the members of the class and class members have had an opportunity to voice their views of the settlement. See 3B MOORES FEDERAL PRACTICE 9 23.80[2.-1], at 23-479 (2d ed. 1993); See NASDAQ, 176 F.R.D. at 102 (Once preliminary approval is bestowed, the second step of the process ensues; notice is given to the class members of a hearing, at which time class members and the settling parties may be heard with respect to final court approval.).
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MANUAL
FOR

determination whether the proposed settlement warrants public notice and a COMPLEX LITIGATION (Fourth) 13.14 (2004) (the

That is, once a proposed settlement is reached, a court must

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Preliminary approval of a proposed settlement is warranted [w]here the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class and falls within the reasonable range of approval. See NASDAQ, 176 F.R.D. at 102 (citing MANUAL
FOR

COMPLEX LITIGATION (THIRD), at 30.41 (1995)); see also In re Medical X-

Ray Film Antitrust Litig., No. CV 93-5904, 1997 WL 33320580, at *6 (E.D.N.Y. Dec. 26, 1997) (preliminary approval should be granted and notice of the proposed settlement given to the class if there are no obvious deficiencies in the proposed

proceeding, the Court need only find that the proposed settlement fits within the range of possible approval.) (citation omitted).

district court should consider in assessing a proposed settlement: Although Rule 23(e) is silent respecting the standard by which a proposed settlement is to be evaluated, the universally applied standard is whether the settlement is fundamentally fair, adequate and reasonable. The district courts ultimate

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settlements); Prudential Sec. Inc., 163 F.R.D. at 210 (At this stage of the

Additionally, the Ninth Circuit has set out the following factors that the

determination will necessarily involve a balancing of several factors which may include, among others, some or all of the following: the strength of plaintiffs case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed, and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement.

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Officers for Justice v. Civil Serv. Commn of the City and County of San Francisco, 688 F.2d 615, 625 (9th Cir. 1982), cert. denied sub nom. Byrd v. Civil Service Commn of City and County of San Francisco, 459 U.S. 1217 (1983) (citations omitted).3 Finally, the opinion of experienced counsel supporting the settlement is entitled to considerable weight in a courts evaluation of a proposed settlement. In re Michael Milken & Assoc. Sec. Litig., 150 F.R.D. 57, 66 (S.D.N.Y. 1993). See also In re Sumitomo Copper Litig., 189 F.R.D. 274, 280-81 (S.D.N.Y. 1999) ([A] presumption of fairness, adequacy and reasonableness may attach to a class

counsel after meaningful discovery.) (internal quotation marks and citation omitted); Reed v. General Motors Corp., 703 F.2d 170, 175 (5th Cir. 1983) ([T]he value of the assessment of able counsel negotiating at arms length cannot be gainsaid. Lawyers know their strengths and they know where the bones are

buried.). B.

determine whether the proposed settlement falls within the range of possible approval. MANUAL
FOR

Preliminary approval by the Court permits notice to be given to class members of a final hearing at which they and the settling parties may be heard with respect to final approval. In any case there is a range of reasonableness with respect to a settlementa range which recognizes the uncertainties of law and fact in any particular case and the concomitant risks and costs necessarily inherent in taking
3

See also Rodriguez v. West Publishing Corp., 563 F.3d 948, 963 (9th Cir. 2009); Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375 (9th Cir. 1993), cert. denied 28 sub nom. Reilly v. Tucson Elec. Power Co., 512 U.S. 1220 (1994) (listing factors).
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Approval 7

settlement reached in arms-length negotiations between experienced, capable

The Proposed Settlement Is Within the Range of Possible

In considering a request for preliminary approval, the court is asked to

COMPLEX LITIGATION (Fourth) 21.62 (2004).

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any litigation to completion . . . . Newman v. Stein, 464 F.2d 689 (2d Cir. 1972). The proposed settlement here unquestionably falls well within the range of possible approval. First, an evaluation of the benefits of settlement must be tempered by the recognition that any compromise involves concessions on the part of all of the settling parties. Indeed, the very essence of a settlement is compromise, a

yielding of absolutes and an abandoning of highest hopes. Officers for Justice, 688 F.2d at 624 (citation omitted). Plaintiffs counsel believe that plaintiffs claims have merit and that plaintiffs would obtain class certification and eventually prevail

lengthy, complex, and hard-fought proceeding against one of the defendants. Seltzer Decl. 14. It is well-recognized that [a]n antitrust class action is arguably the most complex action to prosecute. In re Motorsport Merchandise Antitrust Litig., 112 F. Supp. 2d 1329, 1337 (N.D. Ga. 2000). Plaintiffs counsel have expended (and continue to expend) substantial time and resources, including working with economics and airline industry experts, conducting discovery, and analyzing the airlines methods for pricing and selling tickets for passenger air

travel. Seltzer Decl. 7. A settlement at this stage of the case eliminates the further expense, difficulty and risk inherent in prosecuting this case against Korean Air. Third, this lawsuit has been hotly contested for more than three years by

capable and experienced counsel on both sides. Defendants have brought multiple motions to dismiss, and on August 2, 2010, the Court dismissed the Koreapurchaser claims with prejudice following discovery and briefing. Extensive

document discovery has been conducted resulting in the production of hundreds of thousands of pages of documents. In addition, depositions have been taken of a number of witnesses.
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on the merits. Nevertheless, Korean Air has vigorously contested this lawsuit. Second, the settlement eliminates the cost of continuing the litigation of a

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Fourth, plaintiffs counsel investigated and took into account information concerning Korean Airs financial condition, including actions taken by the government in the companion criminal case to allow Korean Air to defer the payment of certain installment payments of its criminal fine because of concerns over Korean Airs financial condition. See Seltzer Decl. 9-12. Fifth, the benefit to the Settlement Class provided by this settlement is significant. Korean Air has agreed to pay $39,000,000 in cash, and $26,000,000 in travel vouchers. Sixth, the proposed settlement is the product of intense, arms-length

proposed class settlement, which was negotiated at arms length by counsel for the class, is presented for court approval. 4 NEWBERG ON CLASS ACTIONS 11.41 (4th ed. 2005). The negotiations leading to the settlement were conducted over the course of many months under the supervision and with the assistance of Judge Phillips, and included numerous conference calls, written exchanges of offers, and face-to-face discussions. Seltzer Decl. 7-8. The fact that the settlement is the product of arms-length negotiations conducted in good faith militates in favor of approval.

counsel that the settlement is in the best interest of the Class. See, e.g., Natl Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 528 (C.D. Cal. 2004) (Great weight is accorded to the recommendation of counsel, who are most closely acquainted with the facts of the underlying litigation.); Kirkorian v. Borelli, 695 F. Supp. 446, 451 (N.D. Cal. 1988) (opinion of experienced counsel is entitled to considerable weight); Boyd v. Bechtel Corp., 485 F. Supp. 610, 622 (N.D. Cal. 1979) (recommendations of plaintiffs counsel should be given a presumption of reasonableness).
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complex antitrust litigation, including antitrust class actions. Seltzer Decl. 3-5. 9

negotiation.

[A]n initial presumption of fairness exists where, as here, a

Seventh, significant weight should be attributed to the belief of experienced

Plaintiffs counsel have extensive experience prosecuting

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It is plaintiffs counsels informed judgment that the settlement is fair, reasonable, and adequate to the Class. Id. 16. In sum, this settlement is well within the range of possible approval. IV. THE SETTLEMENT CLASS SHOULD BE CERTIFIED The Settlement Agreement contains provisions for the certification of a class for purposes of settlement. Parties may settle a class action before class

certification and stipulate that a defined class be conditionally certified for settlement purposes. In re Wireless Facilities, Inc. Sec. Litig. II, 253 F.R.D. 607, 610 (S.D. Cal. 2008) (citing Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003)). Class

uncertainties of the outcome and the typical length of the litigation. For the purpose of conditionally certifying the class for settlement purposes,

the Court evaluates the relevant factors under Rule 23(a): (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the

claims or defenses of the class; and

of the class.

(1) that there is a risk of inconsistent or unfair adjudication if parties proceed with separate actions; (2) that the defendant acted or refused to act on grounds generally applicable to the class, making injunctive or declaratory relief appropriate to the class as a whole; or (3) that common questions of law or fact predominate and class resolution is superior to other available methods for fair and efficient adjudication of the controversy. Here, the Settlement Class satisfies the Rule 23(a) elements of numerosity, commonality, typicality, and adequacy of representation.
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actions are particularly well suited for compromise because of difficulties of proof,

(4) the representative parties will fairly and adequately protect the interests

In addition, plaintiffs must establish that one of the factors under Rule 23(b):

Additionally, the

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Settlement Class satisfies Rule 23(b)(3)s predominance and superiority requirement. The Court, of course, previously certified essentially the same class for purposes of effectuating the settlement with Asiana. A. The Class Is So Numerous That Joinder Is Impracticable

The first requirement of Rule 23(a) is that the class is so numerous that joinder of all members is impracticable. . . . FED. R. CIV. P. 23(a)(1). Plaintiffs need not allege the precise number or identity of class members; nor is numerosity judged against some absolute number. In re Rubber Chemicals Antitrust Litig., 232 F.R.D. 346, 350 (N.D. Cal. 2005).

defendants, and general industry information, plaintiffs estimate that thousands of geographically-dispersed potential class members are included in the proposed Settlement Class. Seltzer Decl. 15.

Rule 23(a)(1)s numerosity requirement is satisfied. See Stambaugh v. Kansas Dept. of Corrections, 151 F.R.D. 664, 673 (D. Kan. 1993) (quoting Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993) ([T]he difficulty in joining as few as 40 class members should raise a presumption that joinder is impracticable.) (citation

omitted). B.

the class. FED. R. CIV. P. 23 (a)(2). Commonality focuses on the relationship of common facts and legal issues among class members. Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1177 (9th Cir. 2007).

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11

Based on documents reviewed in this case, information provided by

Joinder of that many individual plaintiffs would be impracticable, and thus,

There Are Questions of Law or Fact Common to the Class

Rule 23(a)(2) also requires a showing of questions of law or fact common to

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4

As with most horizontal price-fixing cases, the commonality requirement of Rule 23(a)(2) is satisfied here.4 Numerous courts have recognized that antitrust cases, by their very nature, raise common legal and factual issues. See, e.g., In re Rubber Chemicals, 232 F.R.D. at 351 ([c]ourts consistently have held that the very nature of a conspiracy antitrust action compels a finding that common questions of law and fact exist) (quoting In re Sugar Industry Antitrust Litig., 1976 WL 1374, at *13 (N.D. Cal. May 21, 1976) (internal quotations omitted)); Ballard v. Blue Shield of Southern W.Va., Inc., 543 F.2d 1075, 1080 (4th Cir. 1976), cert. denied sub nom. Blue Shield of Southern W.Va., Inc. v. Ballard, 430 U.S. 922 (1977)

questions of law and fact that are common to the members of the class). In this case, plaintiffs counsel believe that common questions exist with

respect to each member of the proposed Settlement Class, including, among other common questions, whether defendants engaged in a combination or conspiracy to fix, raise, maintain, and stabilize the prices for passenger airfares and fuel surcharges for travel between the U.S. and Korea.

issue of the existence and effect of the alleged conspiracy. See Estate of Jim

Rule 23(a)(2), unlike Rule 23(b)(3), requires the existence of a common issue of law or fact but not necessarily the predominance of that issue. See Transamerican 28 Refining Corp. v. Dravo Corp., 130 F.R.D. 70, 73 (S.D. Tex. 1990).
27
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Garrison v. Warner Bros., Inc., No. CV 95-8328, 1996 WL 407849, at *2 (C.D. Cal. June 25, 1996); see also In re Flat Glass Antitrust Litig., 191 F.R.D. 472, 479 (W.D. Pa. 1999) ([g]iven plaintiffs allegation of a Section 1 conspiracy, the existence, scope and efficacy of the alleged conspiracy are certainly questions that are common to all class members). The requirements of Rule 23(a)(2) thus are met here.


12

(Class actions are frequently maintained in antitrust cases because of the many

These issues present a common core of questions focusing on the central

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C.

The Claims or Defenses of the Representative Parties Are Typical of the Claims or Defenses of the Class

In determining whether the typicality requirement is met, courts consider whether the injury allegedly suffered by the named plaintiffs and the rest of the class resulted from the same alleged common practice. See Dukes, 509 F.3d at 1184. [R]epresentative claims are typical if they are reasonably co-extensive with those of absent class members; they need not be substantially identical. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). The proposed class representatives are the Class Plaintiffs.

cases. See, e.g., In re Citric Acid Antitrust Litig., 1996 WL 655791, at *3 (N.D. Cal. 1996) (The alleged underlying course of conduct in this case is defendants conspiracy to fix the price of citric acid and to allocate customers among themselves. . . . The legal theory that plaintiffs rely on is antitrust liability.

Because plaintiffs and all class members share these claims and this theory, the representatives claims are typical of all.). This is because in horizontal pricefixing cases, the named plaintiffs typically must prove a conspiracy, its effectuation, and the resultant damages, which is precisely what all class members

must prove. See, e.g., Universal Serv. Fund Telephone Billing Practices Litig., 219 F.R.D. 661, 667 (D. Kan. 2004) (citing In re Linerboard Antitrust Litig., 203 F.R.D. 197, 207 (E.D. Pa. 2001), aff'd 305 F.3d 145 (3d Cir. 2002)). In this litigation, claims are asserted on behalf of all of the Class members based on the same legal theories. No plaintiff asserts any injury peculiar to him or herself. Consequently, the typicality requirement is readily satisfied here. D. The Representative Parties Will Fairly and Adequately Protect the Interests of the Class Rule 23(a)(4) requires the court to ensure that the representative parties will

fairly and adequately protect the interests of the class. This factor requires (1)
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The typicality requirement is often easily met in horizontal price-fixing

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that the proposed representative plaintiffs do not have conflicts of interest with the proposed class, and (2) that plaintiffs are represented by qualified and competent counsel. Dukes, 509 F.3d at 1185. Here, there are no actual or potential conflicts of interest between Class Plaintiffs and the other members of the Settlement Class. All allege that they were overcharged for their purchases of passenger air transportation service for travel between the U.S. and Korea and all have a mutual interest in establishing liability and recovering overcharges. Additionally, [i]n the absence of proof to the contrary, courts presume that

action on behalf of the class. Zapata v. IBP, Inc., 167 F.R.D. 147, 161 (D. Kan. 1996). Plaintiffs in this case are represented by experienced counsel thoroughly familiar with class action and antitrust litigation. See Seltzer Decl. 3-5. This Court appointed three individuals as Interim Class Counsel in the action based on previous submissions of their professional experience. Plaintiffs counsel have successfully prosecuted numerous antitrust class actions on behalf of injured purchasers throughout the United States and have demonstrated the ability and willingness to prosecute this action vigorously. Id.

class.

must also satisfy at least one subpart of Rule 23(b). Certification under Rule 23(b)(3) is appropriate here. Rule 23(b)(3) requires that (1) the Court find that common questions of law or fact predominate over individual questions; and (2) the class action provides a superior method for adjudicating the controversy. See FED. R. CIV. P. 23 (b)(3); Hanlon, 150 F.3d at 1022.
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E. 14

class counsel is competent and sufficiently experienced to vigorously prosecute the

Class Plaintiffs will thus fairly and adequately protect the interests of the

The Rule 23(b)(3) Requirements Are Satisfied

Once the four prerequisites of Rule 23(a) are satisfied, the potential class

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1.

Common questions of law and fact predominate

In order to meet the predominance requirement of Rule 23(b)(3), a plaintiff must establish that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, . . . predominate over those issues that are subject only to individualized proof. Wal-Mart Stores, Inc. v. Visa USA Inc., 280 F.3d 124, 136 (2d Cir. 2001) (quoting Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1233 (11th Cir. 2000)); see also FED. R. CIV. P. 23 (b)(3). When common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication, there is clear

basis. Hanlon, 150 F.3d at 1022.

met in certain cases alleging consumer or securities fraud or violations of the antitrust laws. 521 U.S. at 625. Many courts have held that, in horizontal pricefixing cases like this one, the predominance requirement is readily met. Plaintiffs believe the existence of a conspiracy is the overriding issue common to all plaintiffs, sufficient to satisfy the Rule 23(b)(3) predominance requirement. See, e.g., In re Rubber Chemicals, 232 F.R.D. at 352 (the great weight of authority

suggests that the dominant issues in cases like this are whether the charged

conspiracy existed and whether price-fixing occurred) (citation omitted).5

See also, e.g., In re Citric Acid, 1996 WL 655791, at *6 (common questions included whether a conspiracy existed; whether prices were fixed; and whether the prices paid by plaintiffs were higher as a result of the conspiracy); In re Sugar Industry, 1976 WL 1374, at *23 ([i]t is the allegedly unlawful horizontal pricefixing arrangement among defendants that, in its broad outlines, comprises the predominating, unifying common interest between the representative plaintiffs and potential class members); Schreiber v. NCAA, 167 F.R.D. 169, 173 (1996) (Antitrust price-fixing conspiracy cases, by their nature, deal with common legal and factual questions about the existence, scope and effect of the alleged conspiracy.) (internal quotation omitted); Estate of Jim Garrison, 1996 WL
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15

justification for handling the dispute on a representative rather than on an individual

As the Supreme Court stated in Amchem, [p]redominance is a test readily

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Proof of the existence of a conspiracy is a central issue in every price-fixing antitrust case, and the conspiracy issuewhether price information was exchanged; if it was, with what intent; whether action was taken by the defendants based upon such exchanges; etc.is susceptible of generalized proof, since it deals primarily with what the defendants themselves did and said. In re Corrugated Container Antitrust Litig., 80 F.R.D. 244, 250 (S.D. Tex. 1978). Indeed, [c]ourts have consistently found the conspiracy issue the overriding, predominating question. In re Folding Carton Antitrust Litig., 75 F.R.D. 727, 734 (N.D. Ill. 1977).6

defendants engaged in an illegal conspiracy to fix, raise, maintain, or stabilize passenger airfares or fuel surcharges for travel between the U.S. and Korea. The question of the existence of an illegal conspiracy, as well as the resulting injury and damages, is common to every class members antitrust claim. Likewise, proof of the fact of injury is an integral part of the proof necessary

to find a violation of the antitrust laws and requires that a plaintiff demonstrate that he or she suffered some loss in his business or property as a result of the violation. In re Corrugated Container, 80 F.R.D. at 249. Proof of a horizontal conspiracy is

often sufficient to prove class wide damage, simply because the plaintiff can prove that the free market prices would be lower than the prices paid and that he made some purchases at the higher price. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 455

407849, at *3 ([a]ntitrust price fixing conspiracy cases by their nature deal with common legal and factual questions . . .) (citation omitted). 6 See, e.g., In re Glassine & Greaseproof Paper Antitrust Litig., 88 F.R.D. 302, 306 (E.D. Pa. 1980); In re Fine Paper Antitrust Litig., 82 F.R.D. 143, 151 (E.D. Pa. 1979); Axelrod v. Saks & Co., 77 F.R.D. 441, 446 (E.D. Pa. 1978); In re Sugar Industry Antitrust Litig., 73 F.R.D. 322, 345 (E.D. Pa. 1976); In re Wirebound Boxes Antitrust Litig., 128 F.R.D. 268, 271 (D. Minn. 1989); see also In re Infant Formula Antitrust Litig., 1992 WL 503465 at *6 (N.D. Fla. 1992).
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In this case, one overarching and predominating question is whether

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(3d Cir. 1977) (a presumption of common impact arises where plaintiffs allege that defendants conspired to fix prices); see also In re Linerboard Antitrust Litigation, 305 F.3d 145, 151-53 (3rd Cir. 2002). Plaintiffs in this case allege an illegal conspiracy to inflate the prices charged for passenger airfares and fuel surcharges for flights between the United States and Korea. Common impact is an issue susceptible to common proof, inasmuch as no differences among class members exist that would prevent them from benefiting from increased competition. Common questions of law and fact predominate. Indeed, [t]here is no

plaintiffs will have to prove the existence of a conspiracy and fact of injury to plaintiffs class (impact). In re Corrugated Container, 80 F.R.D. at 249.

Consequently, the first requirement of Rule 23(b)(3) is satisfied. 2. A class action is superior to other available methods for fairly and efficiently adjudicating the controversy Rule

23(b)(3) requires that the class action be superior to other available methods for fairly and efficiently adjudicating the controversy. FED. R. CIV. P. 23(b)(3); see

also Hanlon, 150 F.3d at 1023. The superiority inquiry under Rule 23(b)(3)

requires determination of whether the objectives of the particular class action procedure will be achieved in the particular case. Hanlon, 150 F.3d at 1023. This determination necessarily involves a comparative evaluation of alternative mechanisms of dispute resolution. Id. Superiority exists where the alternative methods of resolution are individual claims for a small amount of consequential damages and litigation costs would dwarf potential recovery. Id. Courts

overwhelmingly have concluded that a class action is a superior method of

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question that common questions of predominant importance exist here.

All

Plaintiffs also meet the superiority requirement of Rule 23(b)(3).

17

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adjudicating multiple claims in price-fixing cases, and they have consistently certified class actions in such cases.7 Indeed, the alternative to a class actionthe filing of duplicative individual actionswould be both highly inefficient and unfair. Numerous individual

actions would be expensive and time-consuming and would create the danger of conflicting decisions as to persons similarly situated. Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (C.D. Cal. 1978). Further, as a practical matter that alternative would deprive many class members of a means of redress, because since the prosecution of an antitrust case against economically powerful defendants

their claims.

successfully asserted individually . . . would not only unnecessarily burden the judiciary, but would prove uneconomic for potential plaintiffs). A class action is a far superior means for adjudicating these individual

claims. The Rule 23(b)(3) requirements are met. F.

define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g). Rule 23(g)(1)(A), in turns, requires the court to

consider: [1] the work counsel has done in identifying or investigating potential claims in the action; [2] counsels experience in handling class actions, other complex litigation, and the types of claims asserted in the action; [3] counsels
7

See, e.g., In re Carbon Dioxide Antitrust Litig., 149 F.R.D. 229 (M.D. Fla. 1993); In re Catfish Antitrust Litig., 826 F. Supp. 1019 (N.D. Miss. 1993); Coleman v. 26 Cannon Oil Co., 141 F.R.D. 516 (M.D. Ala. 1992); In re Commercial Tissue 27 Prods., 183 F.R.D. 589 (N.D. Fla. 1998); In re Lease Oil Antitrust Litig.(No. II), 186 F.R.D. 403 (S.D. Tex. 1999); In re NASDAQ Market-Makers Antitrust Litig., 28 169 F.R.D. 493 (S.D.N.Y. 1996).
25
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Settlement Class Counsel 18

is difficult and expensive, many class members would likely choose not to pursue Hanlon, 150 F.3d at 1023 (many claims [that] could not be

The Court Should Appoint Plaintiffs Interim Class Counsel as

Rule 23(c)(1)(B) states that [a]n order that certifies a class action must

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knowledge of the applicable law; and [4] the resources that counsel will commit to representing the class. Plaintiffs respectfully request that the Court appoint as Settlement Class Counsel Susan G. Kupfer of Glancy Binkow & Goldberg LLP; Jeff S. Westerman of Westerman Law Corp. and Marc M. Seltzer of Susman Godfrey L.L.P. These individuals were previously appointed as Interim Class Counsel in this action, and each of them have a history of successfully prosecuting numerous significant class actions. See, e.g., Seltzer Decl. 3-5. G. Attorneys Fees And Expenses

an award of attorneys fees in the actions in the amount equal to 25% of the cash and coupon settlement funds established by the settlements with Asiana and Korean Air, plus unreimbursed costs and expenses incurred prior to the final fairness hearing.8

the plaintiffs firms who worked on the litigation. Subject to Court approval, the attorneys fees and expenses will be allocated by Settlement Class Counsel among other plaintiffs counsel in a manner that Settlement Class Counsel in good faith

believes reflects the contributions of plaintiffs counsel to the prosecution and settlement of the claims against the defendants in the action. V. THE PROPOSED NOTICE TO CLASS MEMBERS Rule 23(e) of the Federal Rules of Civil Procedure provides that notice of

the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. FED. R. CIV. P. 23(e). While due process and Rule 23(e) require notice of a settlement to be given, the content and form of that

Additional Court-approved costs and expenses were previously paid out of the settlement fund established pursuant to the settlement with Asiana. (Doc. 506.)
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Settlement Class Counsel, on behalf of all plaintiffs counsel, will apply for

If awarded, the attorneys fees and expenses would be paid, collectively, to

19

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notice are left to the courts discretion. The standard for the settlement notice under Rule 23(e) is that it must fairly apprise the class members of the terms of the proposed settlement and of their options. In re Integra Realty Resources, Inc., 262 F.3d 1089, 1111 (10th Cir. 2001) (internal quotations omitted). Rule 23(c)(2)(B) of the Federal Rules of Civil Procedure provides, in pertinent part, For any class certified under Rule 23(b)(3), the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through a reasonable effort. FED. R. CIV. P. 23(c)(2)(B). Such notice is the mechanism by which a court asserts

In Re Prudential Ins. Co. Sales Practices Litig., 148 F.3d 283, 306 (3d. Cir. 1998). Class Plaintiffs have consulted with Rust, and its subsidiary, Kinsella Media,

LLC (KM), firms specializing in class notice matters, to devise a class notice plan that satisfies the requirements of due process and Rule 23 of the Federal Rules of Civil Procedure. As is explained below, the proposed notice plan, described below and in the Declaration of Katherine Kinsella (Kinsella Declaration), dated June 30, 2013, filed concurrently herewith, has both mail and publication components.

corporations) and passengers on defendants airlines. Class Plaintiffs have access

to e-mail and postal addresses for only a portion of the Settlement Class. While defendants Asiana and Korean Air have records of the names and addresses of travel agents with whom they have done business during the Class Period, both airlines have advised plaintiffs counsel that they do not have records of the names and addresses of passengers who traveled on their respective airlines. The closest potential lists available are of the airlines frequent flyer club members. Asiana and Korean Air have provided plaintiffs counsel a list of certain potential Settlement Class members generated from their frequent flyer club records. This list includes
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20

jurisdiction in a class action over absent class members otherwise beyond its reach.

Settlement Class members include both entities (including travel agents and

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postal addresses and e-mail addresses for U.S. residents who are potential Settlement Class members. Class Plaintiffs counsel propose the travel agents identified by either of the defendants be mailed or e-mailed the Summary Notice and that those persons listed in the airlines frequent flyer club member records who appear to have flown on flights originating in the U.S. and terminating in Korea or on flights originating from Korea and terminating in the U.S. be mailed or e-mailed the Summary Notice, and that such notice be supplemented with an extensive publication program designed to notify other potential Settlement Class members.

addresses are available, Rust will disseminate the Summary Notice by e-mail. See Kinsella Decl., at 11-21. Where no e-mail address is available, but a postal address is available, a postcard containing the Summary Notice will be mailed by first-class mail to the potential Settlement Class members last known address. Id. 11, 14-16. Undeliverable mail returned with a forwarding address will be re-sent to the new address. Id. 16. Where undeliverable mail is returned without a forwarding address, Rust will cause an address search to be performed by Lexis/Nexis. Id. 17. If the search produces a new address, Rust will remail the

postcard notice to the Settlement Class member using the new address information. Id. The e-mail and postcard notices advise Settlement Class members about how they can obtain long form class notices, and the text of the notices will be available in both the Korean and English languages on the class settlement website. Id. 38. To give notice to those potential Settlement Class members for whom

addresses are not available, Settlement Class Counsel, in consultation with KM, devised an extensive publication notice program utilizing both Korean and Englishlanguage media. See generally id. 22-30. First, KM will place advertisements on Korean-language television reaching geographic markets throughout the United States. Id. 26-27. Second, KM will place advertisements in Korean-language
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Thus, in accordance with this proposed notice program, where e-mail

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print media serving various targeted local markets across the United States. Id. 28. Third, KM will place advertisements in both local and national English-

language print publications. Id. 29. Fourth, KM will establish a website on which both the long form Class Notice and Summary Notice (in both English and Korean) will be available. Id. 38. Fifth, KM will place banner advertisements on the Internet and will purchase sponsored keyword-triggered links on multiple popular search engine websites, including Google and Yahoo!. Id. 30. This robust notice plan is described in further detail in the Kinsella Declaration and its accompanying exhibits.

the coupon portions of the settlement with Korean Air and the prior settlement with Asiana, subject to the ongoing supervision by Settlement Class Counsel and the Court. CCC will create and maintain a database of the coupons once they have been allocated to class claimants through the claims process by Rust. CCC will also create and maintain an exchange mechanism so that coupons may be transferred and sold to others. VI.

the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. FED. R. CIV. P. 23(e). While due process and

Rule 23(e) require notice of a settlement to be given, the content and form of that notice are left to the court's discretion. The standard for the settlement notice under Rule 23(e) is that it must fairly apprise the class members of the terms of the proposed settlement and of their options. In re Integra Realty Resources, Inc., 262 F.3d 1089, 1111 (10th Cir. 2001) (internal quotations omitted). Proper notice should include: the essential terms of the proposed settlement; disclosure of any special benefits provided to the class representatives;
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Settlement Class Counsel engaged CCC to give advice about and administer

THE PROPOSED NOTICE PLAN SHOULD BE APPROVED Rule 23(e) of the Federal Rules of Civil Procedure provides that notice of

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information regarding attorney fees; the time and place of the hearing to consider approval of the settlement, and the method for objecting to the settlement; explanation of the procedures for allocating and distributing settlement funds; and provide the address and phone number of class counsel and the procedure for making inquiries. FED. R. CIV. P. 23(c)(2)(B).

due process. Rule 23(c)(2)(B) of the Federal Rules of Civil Procedure provides, in pertinent part, For any class certified under Rule 23(b)(3), the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through a reasonable effort. FED. R. CIV. P. 23(c)(2)(B). Such notice is the mechanism by which a court asserts jurisdiction in a class action over absent class members otherwise beyond its reach. In Re Prudential Ins. Co. Sales Practices Litig., 148 F.3d 283, 306 (3d. Cir. 1998). It is respectfully submitted that the proposed notice program and the form of

the notices comport with the foregoing and with the requirements of Rule 23 and due process. First, where addresses are available, notice will be mailed or e-mailed to

potential Settlement Class members.

standards of due process, and postcard notice has been approved in numerous class actions. See Kinsella Decl. 21 (collecting cases). Second, because the postal addresses or e-mail addresses are not available through defendants records for a significant number of potential Settlement Class members, an extensive publication program has been devised to give notice to potential Settlement Class members. Courts have routinely found that, where class
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The notice must also be disseminated in a manner that satisfies Rule 23 and

Such direct notice plainly satisfies the

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members could not be identified individually through reasonable effort, publication notice satisfies due process. For example, in In re Domestic Air Transportation Antitrust Litig., 141 F.R.D. 534 (N.D. Ga. 1992), the court found that where, as here, the names and addresses of individual airline ticket purchasers could not be obtained through the exercise of reasonable efforts from records maintained by defendants, publication notice was the best notice practicable under the circumstances. Id. at 547-48. In the professional opinion of Katherine Kinsella, President of KM, who has extensive experience in providing class notice in connection with class action

and is consistent with the standards employed by KM in notification programs designed to reach unidentified members of settlement groups or classes. Kinsella Decl., at 39. In her professional opinion, [t]he Notice Program as designed is fully compliant with Rule 23 of the Federal Rules of Civil Procedure. Id. VII. PROPOSED SCHEDULE

for the deadlines for the notice plan and for the final fairness hearing, subject to the convenience of the Court:

Begin mail, e-mail and publication notice to potential Settlement Class members; establish settlement website, tollfree phone number, post office box and e-mail address for inquiries; claim forms are available Complete publication of notice
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settlements, this plan provides the best notice practicable under the circumstances,

Class Plaintiffs will propose at the hearing of this matter the following dates

DAYS FROM PROPOSED PRELIMINARY DATE / DEADLINE APPROVAL ORDER 7 Days (if Preliminary Approval Granted July 26, 2013) August 2, 2013

September 6, 2013

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Settlement Class Counsel 49 Days to file proof of mailing and publication of notice Settlement Class Counsel to file motion for award of attorneys fees and expenses Deadline to request exclusion from the Settlement Class Deadline for objections to settlement Settlement Class Counsel to move for final approval Final Fairness Hearing

September 13, 2013

October 4, 2013

84 Days From Date Notice Begins 84 Days from Date Notice Begins

October 25, 2013

October 25, 2013 November 15, 2013 December 2, 2013

VIII. CONCLUSION

Order: (1) preliminarily approving the settlement reached between Class Plaintiffs and defendant Korean Air; (2) certifying the Settlement Class for the purpose of effectuating the settlement; (3) approving the form and manner of providing notice to the Class of the proposed settlement and plan of distribution; (4) appointing Rust

as the Settlement Administrator and CCC as the Coupon Settlement Administrator; (5) authorizing the withdrawal of funds from the Settlement Fund to pay the costs of notice and claims administration; (6) appointing the Interim Class Counsel as Settlement Class Counsel; and (7) appointing the Class Plaintiffs as Settlement Class Representatives. Respectfully submitted,

DATED: July 3, 2013

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21 Days After Final Approval Papers Filed

For the foregoing reasons, Class Plaintiffs respectfully request entry of an

MARC M. SELTZER SUSMAN GODFREY L.L.P. /s/ Marc M. Seltzer Marc M. Seltzer

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SUSAN G. KUPFER GLANCY BINKOW & GOLDBERG LLP /s/ Susan G. Kupfer Susan G. Kupfer JEFF S. WESTERMAN WESTERMAN LAW CORP. /s/ Jeff S. Westerman Jeff S. Westerman


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Plaintiffs Interim Class Counsel