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2777548v1/010438

JEFF S. WESTERMAN (94559) [email protected] LAW CORP.1925 Century Park East, Suite 2100Los Angeles, CA 90067Tel: (310) 698-7450

Fax: (310) 201-9160

SUSAN G. KUPFER (141724)[email protected] BINKOW & GOLDBERG LLPOne Embarcadero Center, Suite 760San Francisco, CA 94111Tel: (415) 972-8160Fax: (415) 972-8166

MARC M. SELTZER (54534)[email protected]

SUSMAN GODFREY L.L.P.1901 Avenue of the Stars, Suite 950Los Angeles, CA 90067Tel: (310) 789-3100Fax: (310) 789-3150

Plaintiffs’ Interim Class Counsel

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

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

This Document Relates to:

ALL ACTIONS

MDL No. 07-01891

Master File No. CV 07-05107 SJO(AGRx)

MEMORANDUM IN SUPPORT OFPLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OFSETTLEMENT BETWEENPLAINTIFFS AND DEFENDANT

KOREAN AIR LINES CO., LTD

Date: July 26, 2013Time: 10:00 a.m.Place: Courtroom of the

Hon. S. James Otero

Case 2:07-cv-05107-SJO-AGR Document 596 Filed 07/03/13 of 35 Page ID #:8039

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TABLE OF CONTENTS

Page

I. FACTUAL BACKGROUND ......................................................................... 1 II. THE SETTLEMENT AGREEMENT ............................................................. 3

A. The Terms of the Settlement ................................................................. 3 B. The Proposed Settlement Class ............................................................. 3

III. Preliminary Approval Is Warranted ................................................................ 4 A. The Standard For Preliminary Approval .............................................. 4 B. The Proposed Settlement Is Within the Range of Possible

Approval ................................................................................................ 7 IV. THE SETTLEMENT CLASS SHOULD BE CERTIFIED .......................... 10

A. The Class Is So Numerous That Joinder Is Impracticable .................. 11 B. There Are Questions of Law or Fact Common to the Class ............... 11 C. The Claims or Defenses of the Representative Parties Are

Typical of the Claims or Defenses of the Class .................................. 13 D. The Representative Parties Will Fairly and Adequately Protect

the Interests of the Class ..................................................................... 13 E. The Rule 23(b)(3) Requirements Are Satisfied .................................. 14

1. Common questions of law and fact predominate ..................... 15 2. A class action is superior to other available methods for

fairly and efficiently adjudicating the controversy ................... 17 F. The Court Should Appoint Plaintiffs’ Interim Class Counsel as

Settlement Class Counsel .................................................................... 18 G. Attorneys’ Fees And Expenses ........................................................... 19

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


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


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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.,

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

Boyd v. Bechtel Corp.,

485 F. Supp. 610 (N.D. Cal. 1979) ........................................................................ 9

Byrd v. Civil Service Comm’n 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


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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,

191 F.R.D. 472 (W.D. Pa. 1999) ......................................................................... 12

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


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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,

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

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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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.,

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

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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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

Utility Reform Project v. Bonneville Power Administration,

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

STATUTES

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


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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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1

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 Plaintiffsand 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

Coupon Settlement Administrator; (5) authorizing 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.

The settlement, if approved by this Court, will conclude this litigation in its

entirety.

I. FACTUAL BACKGROUND

On August 23, 2007, defendant Korean Air 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 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 complaint—the 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.

Case 2:07-cv-05107-SJO-AGR Document 596 Filed 07/03/13 of 35 Page ID#:8048

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2

Defendants each filed a motion to dismiss the SAC on April 4, 2008. The

Court granted defendants’ motions in part, dismissing plaintiffs’ “pass through”

claims— i.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 wasnot 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

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

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.

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

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.

Following months of arm’s-length negotiations—including numerous

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 andDefendant 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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3

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.

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

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 Air’s 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.

B. The Proposed Settlement Class

The settlement contemplates the certification of the following Settlement

Class:

All persons and entities (excluding governmental entities,

defendants, and defendants’ 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

judgment entered on July 15, 2011. (Doc. No. 507.) The Settlement Class only

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. PRELIMINARY APPROVAL IS WARRANTED

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

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. The Standard For Preliminary Approval

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

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 damagesunder the Sherman Act asserted by the Chun Plaintiffs originally in Case NoCV 07-06542 SJO (AGRx), which action was consolidated into the above-entitledlitigation pursuant to a stipulation of the parties and Order of the Court, filed onMarch 7, 2013. (Doc. No. 582) Thus, the settlement resolves all of the claimsremaining in the litigation.


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Inc. Ltd. P’ships 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 Cir1989); 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 step—the preliminary approval stage—consists of a

determination whether the proposed settlement “warrants public notice and a

hearing.” MANUAL FOR COMPLEX LITIGATION (Fourth) § 13.14 (2004) (the

“MANUAL”). That is, once a proposed settlement is reached, “a court must

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

2The court does not make a final determination of the merits of the proposed

settlement at the preliminary approval stage. Thomas v. NCO Financial Sys., No00-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 stageafter notice of the settlement has been given to the members of the class and classmembers have had an opportunity to voice their views of the settlement. See 3BMOORE’S 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 timeclass members and the settling parties may be heard with respect to final courtapproval.”).


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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 thereasonable 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

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

proceeding, the Court need only find that the proposed settlement fits ‘within the

range of possible approval.’”) (citation omitted).

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

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 court’s ultimate

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 amountoffered 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. Comm’n of the City and County of San

Francisco, 688 F.2d 615, 625 (9th Cir. 1982), cert. denied sub nom. Byrd v. Civil

Service Comm’n 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 court’s 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

settlement reached in arm’s-length negotiations between experienced, capable

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 arm’s length cannot be

gainsaid. Lawyers know their strengths and they know where the bones are

buried.”).

B. The Proposed Settlement Is Within the Range of Possible

Approval

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

determine whether the proposed settlement falls within the range of possible

approval. MANUAL FOR COMPLEX LITIGATION (Fourth) §21.62 (2004)

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 asettlement—a 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

sub nom. Reilly v. Tucson Elec. Power Co., 512 U.S. 1220 (1994) (listing factors).


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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 therecognition 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

on the merits. Nevertheless, Korean Air has vigorously contested this lawsuit.

Second , the settlement eliminates the cost of continuing the litigation of a

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 Antitrus

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 multiplemotions to dismiss, and on August 2, 2010, the Court dismissed the Korea-

purchaser 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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Fourth, plaintiffs’ counsel investigated and took into account information

concerning Korean Air’s 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 concernsover Korean Air’s 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, arm’s-length

negotiation. “[A]n initial presumption of fairness” exists where, as here, “a

proposed class settlement, which was negotiated at arm’s 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 arm’s-length negotiations conducted in good faith militates in favor of

approval.

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

counsel that the settlement is in the best interest of the Class. See, e.g., Nat’l 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 FSupp. 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). Plaintiffs’ counsel have extensive experience prosecuting

complex antitrust litigation, including antitrust class actions. Seltzer Decl. ¶¶ 3-5


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It is plaintiffs’ counsel’s 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 CERTIFIEDThe 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

actions are particularly well suited for compromise because of difficulties of proof,

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

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

of the class.

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

(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 theclass 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. 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 ImpracticableThe 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).

Based on documents reviewed in this case, information provided by

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.

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

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. 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

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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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 verynature 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)

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

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.

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

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

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 aremet here.

4Rule 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

Refining Corp. v. Dravo Corp., 130 F.R.D. 70, 73 (S.D. Tex. 1990).


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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 theclass 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.

The typicality requirement is often easily met in horizontal price-fixing

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 price-

fixing 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 orherself. 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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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 ClassPlaintiffs 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

class counsel is competent and sufficiently experienced to vigorously prosecute the

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 Plaintiffs will thus fairly and adequately protect the interests of the

class.

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

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

must also satisfy at least one subpart of Rule 23(b). Certification under Rule23(b)(3) is appropriate here. Rule 23(b)(3) requires that (1) the Court find tha

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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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 issuesthat 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

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

basis.” Hanlon, 150 F.3d at 1022.

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

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 price-

fixing 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

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 price-fixing 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 legaland factual questions about the existence, scope and effect of the allegedconspiracy.”) (internal quotation omitted); Estate of Jim Garrison, 1996 WL


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Proof of the existence of a conspiracy is a central issue in every price-fixing

antitrust case, and the “conspiracy issue—whether 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

In this case, one overarching and predominating question is whether

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 member’s 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 withcommon 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. Pa1979); 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 Infan

Formula Antitrust Litig., 1992 WL 503465 at *6 (N.D. Fla. 1992).


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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 chargedfor 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

question that common questions of predominant importance exist here. All

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

Plaintiffs also meet the superiority requirement of Rule 23(b)(3). 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 alternativemethods 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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adjudicating multiple claims in price-fixing cases, and they have consistently

certified class actions in such cases.7

Indeed, the alternative to a class action—the filing of duplicative individual

actions—would be both highly inefficient and unfair. “Numerous individuaactions 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

is difficult and expensive, many class members would likely choose not to pursue

their claims. Hanlon, 150 F.3d at 1023 (“many claims [that] could not be

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. The Court Should Appoint Plaintiffs’ Interim Class Counsel as

Settlement Class Counsel

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

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] counsel’s experience in handling class actions, other

complex litigation, and the types of claims asserted in the action; [3] counsel’s

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

Cannon Oil Co., 141 F.R.D. 516 (M.D. Ala. 1992); In re Commercial Tissue

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.

169 F.R.D. 493 (S.D.N.Y. 1996).


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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. Westermanof 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

Settlement Class Counsel, on behalf of all plaintiffs’ counsel, will apply for

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

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

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 insuch 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

8 Additional Court-approved costs and expenses were previously paid out ofthe settlement fund established pursuant to the settlement with Asiana. (Doc. 506.)


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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).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).

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.

Settlement Class members include both entities (including travel agents and

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, bothairlines 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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postal addresses and e-mail addresses for U.S. residents who are potentia

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 listedin 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.

Thus, in accordance with this proposed notice program, where e-mail

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 posta

address is available, a postcard containing the Summary Notice will be mailed by

first-class mail to the potential Settlement Class member’s 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 whomaddresses are not available, Settlement Class Counsel, in consultation with KM,

devised an extensive publication notice program utilizing both Korean and English-

language 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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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 andKorean) 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.

Settlement Class Counsel engaged CCC to give advice about and administer

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 NOTICE PLAN SHOULD BE APPROVED

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

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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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).

The notice must also be disseminated in a manner that satisfies Rule 23 and

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. Such direct notice plainly satisfies the

standards of due process, and postcard notice has been approved in numerous classactions. 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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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 beobtained 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

settlements, this plan provides “the best notice practicable under the circumstances,

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

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

for the deadlines for the notice plan and for the final fairness hearing, subject to the

convenience of the Court:

EVENT DAYS FROMPRELIMINARY

APPROVAL ORDER

PROPOSEDDATE / DEADLINE

Begin mail, e-mail and publication notice to

potential Settlement Classmembers; establishsettlement website, toll-free phone number, postoffice box and e-mailaddress for inquiries;claim forms are available

7 Days (if PreliminaryApproval Granted

July 26, 2013)

August 2, 2013

Complete publication of notice

42 Days September 6, 2013


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Settlement Class Counselto file proof of mailing and

publication of notice

49 Days September 13, 2013

Settlement Class Counselto file motion for award of

attorneys’ fees andex enses

October 4, 2013

Deadline to requestexclusion from theSettlement Class

84 Days From Date Notice Begins

October 25, 2013

Deadline for objections tosettlement

84 Days from Date Notice Begins

October 25, 2013

Settlement Class Counselto move for final approval

November 15, 2013

Final Fairness Hearing 21 Days After FinalApproval Papers Filed

December 2, 2013

VIII. CONCLUSION

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

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 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. Ku fer Susan G. Kupfer

JEFF S. WESTERMANWESTERMAN LAW CORP.

/s/ Jeff S. WestermanJeff S. Westerman

Plaintiffs’ Interim Class Counsel


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