Pahlavan v. British Airways PLC et al, No. 3:2006cv03905 - Document 81 (N.D. Cal. 2008)

Court Description: ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND VIRGIN ATLANTIC AIRWAYS, LTD. Signed by Judge Charles R. Breyer on 10/01/08. (Attachments: # 1 Appendix A: Schedule of Actions)(be, COURT STAFF) (Filed on 10/3/2008)
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Pahlavan v. British Airways PLC et al 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Doc. 81 Joseph W. Cotchett (36324; jcotchett@cpmlegal.com) COTCHETT, PITRE & McCARTHY San Francisco Airport Office Center 840 Malcolm Road, Suite 200 Burlingame, CA 94010 T: (650) 697-6000 F: (650) 697-0577 Michael D. Hausfeld (pro hac vice; mhausfeld@cmht.com) COHEN, MILSTEIN, HAUSFELD & TOLL P.L.L.C. 1100 New York Avenue, N.W. Suite 500, West Tower Washington, DC 20005 T: (202) 408-4600 F: (202) 408-4699 Co-Counsel for Plaintiffs and the Settlement Classes Charles E. Koob (047349; ckoob@stblaw.com) David E. Vann Jr. (pro hac vice; dvann@stblaw.com) SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017 T: (212) 455-2000 F: (212) 455-2502 Counsel for Defendant Virgin Atlantic Airways, Ltd. 16 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 17 18 19 20 IN RE INTERNATIONAL AIR TRANSPORTATION SURCHARGE ANTITRUST LITIGATION 21 22 This Document relates to: 23 ALL ACTIONS 24 25 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. M:06-cv-01793-CRB MDL No. 1793 Honorable Charles R. Breyer [PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND VIRGIN ATLANTIC AIRWAYS, LTD. 26 27 28 [PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND VIRGIN ATLANTIC AIRWAYS, LTD. CASE NO. M:06-CV-1793-CRB Dockets.Justia.com 1 WHEREAS, a class action is pending before the Court entitled In re International Air 2 Transportation Surcharge Antitrust Litigation, Master File 06-1793-CRB (N.D. Cal., San 3 Francisco division); 4 WHEREAS, the Court has received and reviewed the settlement agreement entered into 5 between Plaintiffs and Virgin Atlantic Airways, Ltd. (“Virgin Atlantic”), dated February 15, 6 2008 (the “Settlement Agreement”), and has considered the terms of the proposed settlement set 7 forth therein (the “Settlement”); 8 9 10 WHEREAS, all defined terms contained herein shall have the same meanings as set forth in the Settlement Agreement, unless otherwise defined herein; WHEREAS, on Plaintiffs’ motion for preliminary approval, the Court on April 25, 2008 11 entered an Order Preliminarily Approving Class Action Settlements With British Airways and 12 Virgin Atlantic Airways (the “Preliminary Approval Order”), in which the Court certified the 13 Settlement Classes, preliminarily approved the Settlement, set September 12, 2008 as the 14 deadline for filing of objections to the Settlement, and scheduled a Final Approval Hearing for 15 September 26, 2008; 16 WHEREAS, on Plaintiffs’ motion for approval of the proposed notice program, notifying 17 Settlement Class Members of the Settlement and the Final Approval Hearing, the Court on April 18 25, 2008 entered an Order Approving Notice Program and Forms (the “Notice Approval Order”); 19 WHEREAS, Settlement Class Counsel have submitted declarations to the Court 20 confirming that the notice program has been implemented in substantial accordance with the 21 Notice Approval Order; 22 WHEREAS, the Court has considered all timely filed objections to the Settlement; and 23 WHEREAS, the Court conducted a Final Approval Hearing on September 26, 2008, and 24 has considered the arguments presented, all papers filed and all proceedings had herein; 25 NOW, THEREFORE, IT IS HEREBY ORDERED: 26 1. 27 28 As used in this Order the following terms (together with their cognate forms) have the meanings specified below: -1[PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND VIRGIN ATLANTIC AIRWAYS, LTD. CASE NO. M:06-CV-1793-CRB 1 (a) “Actions” means this class action captioned In re International Air 2 Transportation Surcharge Antitrust Litigation, M-06-1793-CRB (N.D. Cal., San Francisco 3 division), MDL No. 1793, and all actions relating to the same claims alleged in Plaintiffs’ First 4 Consolidated Amended Complaint filed in this action, including those that were transferred to 5 this Court by the Judicial Panel on Multidistrict Litigation as part of MDL No. 1793 or that were 6 originally filed in this Court, including but not limited to those actions listed in Appendix A 7 hereto. 8 (b) “British Airways” means British Airways Plc. 9 (c) “Effective Date” means the earliest date on which all of the following 10 events and conditions have occurred or have been met: 11 (i) 12 terminate the Settlement Agreement pursuant to paragraph 13.2 of the 13 Settlement Agreement; 14 (ii) 15 Settlement Classes and the Final Approval Hearing, approving this 16 Settlement Agreement under Rule 23(e) of the Federal Rules of Civil 17 Procedure and dismissing the Actions against Virgin Atlantic with 18 prejudice as to all Settlement Class Members, and without costs except as 19 specified in the Settlement Agreement; and 20 (iii) 21 Judgment has expired or, if appealed, approval of the Settlement 22 Agreement and this Judgment has been affirmed in its entirety by the court 23 of last resort to which such appeal has been taken and such affirmance has 24 become no longer subject to further appeal or review. Neither the 25 provisions of Rule 60 of the Federal Rules of Civil Procedure nor the All 26 Writs Act, 28 U.S.C. § 1651, shall be taken into account in determining 27 the above-stated times. 28 Virgin Atlantic has not timely availed itself of any right to the Court has entered this Judgment, following notice to the the time for appeal or to seek permission to appeal from this -2[PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND VIRGIN ATLANTIC AIRWAYS, LTD. CASE NO. M:06-CV-1793-CRB 1 (d) “Judgment” means this final order of judgment, dismissal, and approval of 3 (e) “Person” means an individual or an entity. 4 (f) “Plaintiffs” means Kambiz Pahlavan, Frederick Waters, Maureen Ann 2 the Settlement. 5 Waters, and Deborah Holley, who have been designated by the Court as class representatives for 6 the Settlement Classes. 7 (g) “Release Date” means, with respect to U.S. Releasing Parties, the 8 Effective Date; and, with respect to U.K. Releasing Parties, the date of receipt of a U.K. Refund 9 Payment by each such U.K. Releasing Party. 10 (h) “Released Claims” means any and all claims, demands, actions, suits, and 11 causes of action, whether class, individual, or otherwise in nature, that the Releasing Parties, or 12 any one of them, ever had, now has, or hereafter can, shall, or may have, directly, 13 representatively, derivatively, or in any other capacity, against the Released Parties, on account 14 of, arising from, or in any way related to, the pricing of passenger air transportation by Virgin 15 Atlantic or British Airways, including, without limitation, with respect to fuel surcharges or any 16 other element of, component of, or surcharge upon, the price of passenger air transportation, and 17 with respect to the facts, occurrences, transactions or other matters that were alleged or could 18 have been alleged in the First Consolidated Amended Complaint in the above-captioned matter 19 or in the complaints in any of the Actions arising out of the conspiracy between Virgin Atlantic 20 and British Airways to fix the prices of passenger air transportation, whether such claims are 21 based on federal, state, local, statutory, or common law, or any other law, code, rule, or 22 regulation of any country or other jurisdiction worldwide, regardless of whether such claims are 23 known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, 24 actual or contingent, liquidated or unliquidated, regardless of legal theory, and regardless of the 25 type or amount of relief or damages claimed. 26 27 28 (i) “Released Parties” means, jointly and severally, individually and collectively: Virgin Atlantic, its present and former parents, subsidiaries, divisions and affiliates, -3[PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND VIRGIN ATLANTIC AIRWAYS, LTD. CASE NO. M:06-CV-1793-CRB 1 each of their respective past and present officers, directors, employees and agents, and the 2 predecessors, successors, heirs, executors, administrators, and assigns of each of the foregoing; 3 and, subject to conclusion of a Court-approved settlement between British Airways and Plaintiffs 4 and the Settlement Classes, British Airways, its present and former parents, subsidiaries, 5 divisions and affiliates, each of their respective past and present officers, directors, employees 6 and agents, and the predecessors, successors, heirs, executors, administrators, and assigns of each 7 of the foregoing. 8 (j) 9 10 11 12 13 14 “Releasing Parties” means, individually and collectively, the U.S. Releasing Parties and the U.K. Releasing Parties. (k) “Settlement Classes” means, collectively, the U.S. Settlement Class and the U.K. Settlement Class, as defined herein. (l) “Settlement Class Members” means, collectively, all members of the U.S. Settlement Class and the U.K. Settlement Class, as defined herein. (m) “U.K. Releasing Parties” means, individually and collectively: Plaintiffs 15 and all U.K. Settlement Class Members who, at any time, receive and accept a Refund Payment 16 under the Settlement Agreement, on behalf of themselves and any Person claiming by or through 17 them as an heir, administrator, devisee, predecessor, successor, parent, subsidiary, representative 18 of any kind, shareholder, partner, director, owner of any kind, affiliate, assignee, agent, 19 employee, contractor, attorney, or insurer. 20 (n) “U.S. Releasing Parties” means, individually and collectively: Plaintiffs 21 and all U.S. Settlement Class Members who did not timely submit a Request for Exclusion in 22 accordance with the Preliminary Approval Order, on behalf of themselves and any Person 23 claiming by or through them as an heir, administrator, devisee, predecessor, successor, parent, 24 subsidiary, representative of any kind, shareholder, partner, director, owner of any kind, affiliate, 25 assignee, agent, employee, contractor, attorney, or insurer. 26 27 28 (o) “U.S. Settlement Class” means all Persons to whom, in the period beginning on August 11, 2004 and ending on March 23, 2006, Virgin Atlantic sold, in the United -4[PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND VIRGIN ATLANTIC AIRWAYS, LTD. CASE NO. M:06-CV-1793-CRB 1 States, at least one coupon for passenger air travel on a flight operated by Virgin Atlantic and as 2 to which the long-haul fuel surcharge was paid and not refunded in whole as of the date of the 3 Settlement Agreement (“U.S. Qualifying Coupon”), but excluding the officers, directors, 4 employees, counsel and agents of Virgin Atlantic, and all government entities. 5 (p) “U.K. Settlement Class” means all Persons to whom, in the period 6 beginning on August 11, 2004 and ending on March 23, 2006, Virgin Atlantic sold, in the United 7 Kingdom, at least one coupon for passenger air travel on a flight operated by Virgin Atlantic and 8 as to which the long-haul fuel surcharge was paid and not refunded in whole as of the date of the 9 Settlement Agreement (“U.K. Qualifying Coupon”), but excluding the officers, directors, 10 employees, counsel and agents of Virgin Atlantic, and all government entities. 11 12 13 14 (q) 2. “Virgin Atlantic” means Virgin Atlantic Airways, Ltd. This Court finds that it has jurisdiction over the Actions, each of the parties to the Settlement Agreement, and each of the Settlement Class Members. 3. The notice given to the Settlement Classes of the Settlement and the Final 15 Approval Hearing, in substantial accordance with the terms of the Notice Approval Order, was 16 the best notice practicable under the circumstances, including individual notice to those 17 Settlement Class Members whose addresses could be identified through reasonable effort, and 18 notice by various means of publication and internet advertising as set forth in the proposed notice 19 program and approved by the Court in the Notice Approval Order. Said notice provided due and 20 adequate notice of these proceedings, the Final Approval Hearing, and the Settlement, to all 21 persons entitled to such notice, and said notice fully satisfied the requirements of Rule 23 of the 22 Federal Rules of Civil Procedure and due process. 23 24 25 26 4. The Settlement Agreement was the result of bona fide and arm’s-length negotiations between Settlement Class Counsel and counsel for Virgin Atlantic. 5. On September 26, 2008, the Court held a Final Approval Hearing to consider the fairness, reasonableness, and adequacy of the proposed Settlement. 27 28 -5[PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND VIRGIN ATLANTIC AIRWAYS, LTD. CASE NO. M:06-CV-1793-CRB 1 6. The Court has given fair consideration to all objections to the Settlement that have 2 been timely submitted by Settlement Class Members, and hereby overrules each such objection. 3 Any Settlement Class Member who failed to timely object to the Settlement in the manner 4 prescribed in the Preliminary Approval Order shall be deemed to have waived any objections to 5 the Settlement and the Settlement Agreement and by operation of this Judgment shall be forever 6 barred from making any such objections to the Settlement or the Settlement Agreement. 7 7. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court hereby 8 approves the Settlement as set forth in the Settlement Agreement, finds that said Settlement is, in 9 all respects, fair, reasonable, and adequate with respect to the Settlement Classes, and directs that 10 the Settlement be consummated in accordance with the terms and conditions set forth in the 11 Settlement Agreement. 12 8. The Actions are hereby dismissed with prejudice as to Virgin Atlantic, without 13 costs (except as set forth in the Settlement Agreement and in any order of this Court on 14 Settlement Class Counsel’s motion for attorneys’ fees and reimbursement of litigation expenses). 15 9. Upon the Release Date, and in consideration of the Settlement Payments specified 16 in paragraphs 10.1, 10.2, 10.3 and 10.4 of the Settlement Agreement, and for other good and 17 valuable consideration, the sufficiency and receipt of which the Plaintiffs have acknowledged, 18 each of the Releasing Parties shall be deemed to have, and by operation of this Judgment shall 19 have, fully, finally, and forever released, relinquished, and discharged all Released Claims 20 against the Released Parties, shall have covenanted not to sue any of the Released Parties with 21 respect to all such Released Claims, and shall be permanently barred and enjoined from 22 instituting, commencing, prosecuting or asserting any such Released Claim against any of the 23 Released Parties. 24 10. Each Settlement Class Member who submits a claim pursuant to the Settlement 25 will also be required, as a condition to obtaining a Refund Payment, to sign a written release (by 26 electronic means or by physical signature, depending on how the claim is submitted) expressly 27 releasing all Released Claims of such Settlement Class Member. -6- 28 [PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND VIRGIN ATLANTIC AIRWAYS, LTD. CASE NO. M:06-CV-1793-CRB 1 11. With respect to any and all Released Claims, upon the Effective Date, Plaintiffs 2 shall expressly waive, and, upon the Release Date, each of the Releasing Parties shall be deemed 3 to have waived, and by operation of this Judgment shall have waived, the provisions, rights, and 4 benefits of California Civil Code Section 1542 and Section 20-7-11 of the South Dakota 5 Codified Laws (to the extent either or both of them apply to the Actions), each of which 6 provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. 7 8 9 10 12. Plaintiffs shall further expressly waive, and each of the Releasing Parties shall be 11 deemed to have waived, and by operation of this Judgment shall have waived, any and all 12 provisions, rights, and benefits conferred by any law of any state or territory of the United States, 13 or of the United Kingdom, or of the European Union, or any principle of common law or foreign 14 law, that is similar, comparable, or equivalent in effect to California Civil Code Section 1542 or 15 that would otherwise act to limit the effectiveness or scope of the releases. Plaintiffs and the 16 Releasing Parties have acknowledged that they may hereafter discover facts in addition to or 17 different from those that any of them or their counsel now knows or believes to be true with 18 respect to the subject matter of the Released Claims or otherwise, but upon the Effective Date 19 each Plaintiff shall expressly have, and, upon the Release Date, each Releasing Party shall be 20 deemed to have, and by operation of the Judgment shall have, fully, finally, and forever settled 21 and released any and all Released Claims, known or unknown, suspected or unsuspected, 22 contingent or non-contingent, whether or not concealed or hidden, that now exist or heretofore 23 have existed, upon any theory of law or equity now existing or coming into existence in the 24 future, including, but not limited to, conduct that is negligent, reckless, intentional, with or 25 without malice, or a breach of any duty, law, or rule, without regard to the subsequent discovery 26 or existence of such different or additional facts. Plaintiffs have acknowledged, and the 27 28 -7[PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND VIRGIN ATLANTIC AIRWAYS, LTD. CASE NO. M:06-CV-1793-CRB 1 Releasing Parties shall be deemed to have acknowledged, and by operation of this Judgment 2 shall have acknowledged, that the foregoing waiver was separately bargained for and a key 3 element of the Settlement of which this release is a part. 4 13. Any U.K. Settlement Class Member who does not receive and accept a U.K. 5 Refund Payment shall not be deemed, directly or indirectly, to have released claims against 6 Virgin Atlantic by reason of the Settlement Agreement or this Judgment. Any such U.K. 7 Settlement Class Member who has not timely submitted a request for exclusion and who seeks to 8 pursue separately any claim that is described in the definition of “Released Claims” herein, must 9 first exhaust any and all rights and remedies in the United Kingdom before asserting any such 10 11 claim elsewhere. in the United States. (CRB) 14. Upon the Effective Date, and by operation of this Judgment, Virgin Atlantic will 12 be deemed to have waived any claim for indemnity or contribution, however denominated, 13 against British Airways, arising out of or related to the claims or allegations asserted by Plaintiffs 14 in the Actions, whether arising under state, federal, or foreign law as claims, cross-claims, 15 counterclaims, or third-party claims, and whether asserted in the Actions, in this Court, in any 16 federal or state court, or in any other court, arbitration proceeding, administrative agency, or 17 other forum in the United States, the United Kingdom, or elsewhere, and all such claims shall be 18 deemed extinguished, discharged, satisfied and unenforceable, provided however, that such 19 waiver by Virgin Atlantic is conditional upon this Court entering a judgment giving effect to a 20 waiver by British Airways in favor of Virgin Atlantic on the same terms, and such judgment 21 becoming final and effective. 22 15. This Judgment is a final judgment in the Actions as to all Released Claims. This 23 Court finds, for purposes of Rule 54(b) of the Federal Rules of Civil Procedure, that there is no 24 just reason for delay and expressly directs entry of judgment as set forth herein. 25 16. Neither this Judgment, the Settlement, the Settlement Agreement, nor any act 26 performed or document executed pursuant to or in furtherance of the Settlement or the 27 Settlement Agreement is or may be deemed to be or may be used as an admission of, or evidence -8- 28 [PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND VIRGIN ATLANTIC AIRWAYS, LTD. CASE NO. M:06-CV-1793-CRB 1 of, Virgin Atlantic’s conduct having caused any harm to consumers. Neither this Judgment, the 2 Settlement, the Settlement Agreement, nor any act performed or document executed pursuant to 3 or in furtherance of the Settlement or the Settlement Agreement, shall be admissible in any 4 proceeding for any purpose, except to consummate or enforce the terms of the Settlement, and 5 except that the Released Parties may file the Settlement Agreement or this Judgment in any 6 action for any purpose, including, but not limited to, in support of a defense or counterclaim 7 based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment 8 bar, or reduction, or any other theory of claim preclusion or issue preclusion or similar defense or 9 counterclaim. 10 17. Without affecting the finality of this Judgment in any way, this Court retains 11 jurisdiction over (a) implementation of the Settlement; (b) distribution of Refund Payments and 12 the U.S. Cy Pres Payment pursuant to the Settlement Agreement; and (c) all other proceedings 13 related to the implementation and enforcement of the terms of the Settlement Agreement and/or 14 the Settlement, and the administration of claims by Settlement Class Members. The time to 15 appeal from this Judgment shall commence upon its entry. 16 18. In the event that the Effective Date does not occur, this Judgment shall be 17 rendered null and void and shall be vacated, nunc pro tunc, except insofar as expressly provided 18 to the contrary in the Settlement Agreement, and without prejudice to the status quo ante rights 19 of Plaintiffs, Settlement Class Members, and Virgin Atlantic. 20 21 October IT IS SO ORDERED on this ______ day of ____________________, 2008. 1st 22 23 ___________________________ Hon. Charles R. Breyer United States District Judge 24 25 26 27 28 -9[PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT BETWEEN CLASS PLAINTIFFS AND VIRGIN ATLANTIC AIRWAYS, LTD. CASE NO. M:06-CV-1793-CRB