FAQs re: U.S. Settlements




1. Why did I get this notice package?

You or your company may have purchased Airfreight Shipping Services (paid, private air transport of freight or other cargo by an airline acting as a provider of such service) directly from one or more Defendants for shipments to, from, or within the United States from January 1, 2000 to September 11, 2006.

The Court sent you a notice because, as a possible class member, you have a right to know about Proposed Settlements of this class action lawsuit, and about all of your options, before the Court decides whether to approve the Proposed Settlements. The Notice package explains the lawsuit, the Proposed Settlements, and your legal rights.

The Court in charge of the case is the United States District Court for the Eastern District of New York, and the case is known as In re Air Cargo Shipping Services Antitrust Litigation, Master File 06-MD-1775 (JG) (VVP). The people who sued are called the Plaintiffs, and the companies they sued are called the Defendants. The Defendants that have agreed to these Proposed Settlements are called the Settling Defendants.

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2. What is this lawsuit about?

The lawsuit claims that the Defendants conspired to fix, raise, maintain, or stabilize prices of Airfreight Shipping Services by, among other things, coordinating surcharges (such as fuel and security surcharges) and by agreeing to eliminate or prevent discounting of surcharges. The lawsuit claims that, as a result, purchasers paid more for Airfreight Shipping Services than they otherwise would have paid. Settling Defendants have denied these claims and have asserted various defenses to the claims.

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3. Who are the Defendants?

The Settling Defendants are Cargolux, Qantas, ANA, and Thai Airways. The other Defendants are:


AC Cargo LP
Aerolineas Brasileiras S.A (Absa)
Air Canada
Air China Cargo Company Ltd.
Air China Ltd.
Air India
Air Mauritius Ltd.
Airways Corp. of New Zealand Ltd.
Alitalia Linee Aeree Italiane S.p.A.
American Airlines, Inc.
AMR Corporation
Asiana Airlines, Inc.
Atlas Air Worldwide Holdings, Inc.
British Airways PLC
Cathay Pacific Airways, Ltd.
China Airlines, Ltd.
DAS Air Ltd. (DAS Air Cargo)
Deutsche Lufthansa AG
El Al Israel Airlines
Emirates Airlines
Ethiopian Airlines Corp.

EVA Airways Corporation
Japan Airlines International Co., Ltd.
Kenya Airways Limited
Koninklijke Luchtvaart Maatschappij N.V.
Korean Airlines Co., Ltd.
Lan Airlines S.A. (Lan Chile)
Lan Cargo S.A.
Lufthansa Cargo AG
Malaysia Airlines
Martinair Holland N.V.
Nippon Cargo Airlines Co., Ltd.
Polar Air Cargo, Inc.
SAS Cargo Group A/S
Saudi Arabian Airlines, Ltd.
Scandinavian Airlines System
Société Air France
Singapore Airlines Cargo PTE, Ltd.
Singapore Airlines, Ltd.
South African Airways (Proprietary), Ltd.
Swiss International Air Lines, Ltd.
Viação Aérea Rio-Grandense, S.A. (Varig)

One former employee of Qantas Airways Limited, Bruce McCaffrey, was also named as a Defendant. Claims against Mr. McCaffrey will be released as a result of the Qantas Settlement.

The Court previously approved an $85 million settlement with Deutsche Lufthansa AG, Lufthansa Cargo AG, and Swiss International Air Lines, Ltd. (“Lufthansa”). In addition, the Court has approved approximately $118 million in settlements with Société Air France (“Air France”), Koninklijke Luchtvaart Maatschappij N.V. (“KLM”), Martinair Holland N.V. (“Martinair”), Japan Airlines International Co., Ltd. (“JAL”), American Airlines, Inc. and AMR Corporation (“AA”), and Scandinavian Airlines System and SAS Cargo Group A/S (“SAS”). You may have received notice of these other settlements previously. (Please note that if you submitted a claim form in connection with an earlier settlement, you needed to file a new claim form if you were entitled to a portion of the new settlements.) If all of the Proposed Settlements are approved by the Court, the total settlement proceeds recovered in the litigation so far will be approximately $278 million.

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4. Why is this a class action?

In a class action, one or more individuals or companies called Class Representatives (in this case Benchmark Export Services, FTS International Express, Inc., R.I.M. Logistics, Ltd., Olarte Transport Service, Inc., S.A.T. Sea & Air Transport, Inc. and Volvo Logistics AB) sue on behalf of others who have similar claims. All these individuals or companies are a class or class members. One court resolves the issues for all class members, except for those who excluded themselves from the class. U.S. District Judge John Gleeson is in charge of this class action.

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5. Why are there Proposed Settlements?

The Settling Defendants have denied all liability in this case and have asserted various defenses to the Plaintiffs’ claims. The Court did not decide in favor of the Plaintiffs or the Settling Defendants. Instead, both sides agreed to the Proposed Settlements. That way, they avoid the cost and risk of a trial, and the class members affected will get compensation. The Class Representatives and Class Counsel think the Proposed Settlements are best for all class members. The case is proceeding against other Defendants.

To see if you are affected by these Proposed Settlements, you first have to determine if you are a class member.

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6. How do I know if I am part of the Proposed Settlement?

Judge Gleeson decided that everyone who fits this description is a class member: All persons or entities (but excluding Defendants, their parents, predecessors, successors, subsidiaries, affiliates, as well as government entities) who purchased Airfreight Shipping Services for shipments to, from or within the United States directly from any of the Settling Defendants, any other Defendant, or from any of their parents, predecessors, successors, subsidiaries, or affiliates, at any time during the period January 1, 2000 up to and including September 11, 2006.

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7. I’m still not sure if I am included.

If you are still not sure whether you are a class member, you can ask for free help. See Question 24 below. You were not required to pay anyone to assist you in filing a claim.

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8. What do the Proposed Settlements provide?

Under the Cargolux Settlement, Cargolux has agreed to pay $35.1 million in installments and up to $150,000 for costs of notice of the settlement. It has already paid $25.1 million and will pay the remaining $10 million in two annual installments of $5 million each. These payments may occur sooner depending upon the factors described in Paragraph 39 of the Cargolux Settlement agreement. If any class member excluded itself from the Cargolux Settlement, the portion of the $35.1 million attributable to the excluded class member will be transferred to a separate escrow account and held for possible payment of those claims. Any amount remaining in that separate account may be returned to the settlement class after a specified period. This process is explained in Paragraph 50 of the Cargolux Settlement agreement. In addition, both Plaintiffs and Cargolux have the option to rescind the agreement if more than a certain percentage of class members excluded themselves from the class, as explained in Paragraph 48 of the Cargolux Settlement agreement, available on the Settlement Agreements section of this website.

Under the Qantas Settlement, Qantas has paid $26.5 million and has agreed to pay up to $250,000 for costs of notice of the settlement. If any class member excluded itself from the Qantas Settlement, the portion of the $26.5 million attributable to the excluded class member will be transferred to a separate escrow account and held for possible payment of those claims. Any amount remaining in that separate account may be returned to the settlement class after a specified period. One class member has already excluded itself from the class, for which Qantas will receive a refund of $4 million, plus interest, from the settlement fund. This process is explained in Paragraph 48 of the Qantas Settlement agreement, available on the Settlement Agreements section of this website.

Under the ANA Settlement, ANA has paid $10.4 million. If any class member excluded itself from the ANA Settlement, the portion of the $10.4 million attributable to the excluded class member will be transferred to a separate escrow account and held for possible payment of those claims. Any amount remaining in that separate account may be returned to the settlement class after a specified period. This process is explained in Paragraph 46 of the ANA Settlement agreement, available on the Settlement Agreements section of this website.

Under the Thai Airways Settlement, Thai Airways has paid $3.5 million. That amount will not be reduced because of class members who excluded themselves from the class.

Under all four Proposed Settlements, the Settling Defendants will also provide cooperation in Plaintiffs’ continuing litigation against the other remaining Defendants. This cooperation varies for each Settling Defendant, but includes meetings with their counsel, production of documents and electronic data, and witness interviews and testimony. Details about the cooperation are set forth in the settlement agreements, which have been filed with the Court and may be viewed on the Settlement Agreements section of this website.

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9. How do I get a payment?

Completed claim forms must have been postmarked no later than July 26, 2011.

If you did not mail a timely, properly addressed claim form, your claim may be rejected and you may not be able to get any payment. In order to get a payment from these settlements, you must have completed and submitted a new claim form even if you previously submitted a claim form for the Lufthansa settlement.

You must keep all of your records of your purchases from Defendants and Settling Defendants because you will need them to complete the claim form and may later be asked to provide them to the settlement administrator.

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10. How much will my payment be?

Class Counsel has proposed a Plan of Allocation describing the division of the settlement funds among class members. If the Court approves the Plan of Allocation, it will apply not only to the Cargolux Settlement, the Qantas Settlement, the ANA Settlement, and the Thai Airways Settlement described in this notice, but also to the Air France-KLM Settlement, the JAL Settlement, the American Airlines Settlement, and the SAS Settlement described in the earlier notice. (It will not apply to the settlement with Deutsche Lufthansa AG, Lufthansa Cargo AG, and Swiss International Air Lines, Ltd., which is being handled separately.) If you have excluded yourself from one or more of the settlements, you will not be able to share in those settlements but can only share in settlements from which you have not excluded yourself.

Under the Plan of Allocation, the settlement funds (following any reductions for class members that excluded themselves) will first be used to pay attorneys’ fees and expenses approved by the Court. The remaining amount will be distributed to class members that submitted valid claim forms in proportion to their relevant purchases of Airfreight Shipping Services. For purposes of this calculation, purchase amounts in currencies other than dollars will be converted by the settlement administrator to equivalent dollar amounts using currency exchange rates applicable on September 11, 2006, which is the last day of the class period.

The Plan of Allocation treats inbound and outbound purchases differently. An inbound purchase is a purchase of Airfreight Shipping Services for shipments to the United States. An outbound purchase is a purchase of Airfreight Shipping Services for shipments from or within the United States. For purposes of calculating a class member’s share of the settlement funds, inbound purchases will be valued at 1.625 times the dollar amount of such purchases. No multiplier will apply to outbound purchases. (These are the same multipliers previously approved by the Court for allocation of the settlement with Deutsche Lufthansa AG, Lufthansa Cargo AG, and Swiss International Air Lines, Ltd.)

If you wished to object to the Plan of Allocation, you must have filed your objection by June 6, 2011.

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11. What am I giving up to get a payment or stay in the class?

Unless you excluded yourself from a specific settlement, you are staying in the class, and that means that you can’t sue, continue to sue, or be part of any other lawsuit against that Settling Defendant about the legal issues in this case. This is called a release. It also means that all of the Court’s orders will apply to you and legally bind you.

However, you would not give up (a) any claim made with respect to any indirect purchase of Airfreight Shipping Services or (b) any claim for negligence, breach of contract, bailment, failure to deliver, lost goods, damaged or delayed goods or similar claim, or any other claim unrelated to the legal issues in this case. The Proposed Settlements also do not affect the rights of class members against any Defendants other than the Settling Defendants, and the lawsuit will continue against the other Defendants, which have not settled.

The settlement agreements describe the exact legal claims that you gave up if you stayed in the class.

If you wanted to keep the right to sue or continue to sue one or more of the Settling Defendants, on your own, about the legal issues in this case, then you must have taken steps to get out of the settlement(s) with those Settling Defendant(s). This is called excluding yourself – or sometimes referenced as opting out of the class. If you opted out of a settlement, you will not get any payment from that settlement.

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12. How do I get out of the Proposed Settlements?

The deadline to exclude yourself from the Proposed Settlements was May 27, 2011.

If you asked to be excluded from any of the Proposed Settlements, you will not get any payment from any settlement from which you excluded yourself, and you cannot object to those particular settlements.

Unless you excluded yourself, you gave up any right to sue the Settling Defendants for the claims that the Proposed Settlements resolve. If you have a pending lawsuit against the Settling Defendants involving the same legal issues in this case, speak to your lawyer in that case immediately. (You must have excluded yourself from this class in order to continue your own lawsuit against the Settling Defendants.)

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13. Could I remain as part of the class for some of the Proposed Settlements and exclude myself from others?

Yes. Because there are four separate Proposed Settlements (the Cargolux Settlement, the Qantas Settlement, the ANA Settlement, and the Thai Airways Settlement), you needed to decide, for each of the Proposed Settlements, whether to exclude yourself from the settlement class, or whether to remain in the class for any or all of them.

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14. If I excluded myself, can I get money from the Proposed Settlements?

No. If you decided to exclude yourself from a Proposed Settlement, you will not be able to get money from that Proposed Settlement. If you excluded yourself from some, but not all, of the Proposed Settlements, you will be eligible to receive payment from the Proposed Settlements for which you remain in the settlement class.

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15. Do I have a lawyer in this case?

The Court appointed Michael D. Hausfeld of Hausfeld LLP; Robert N. Kaplan of Kaplan Fox & Kilsheimer LLP; Hollis L. Salzman of Robins, Kaplan, Miller & Ciresi L.L.P.; and Howard J. Sedran of Levin, Fishbein, Sedran, and Berman to represent the class. These lawyers are called Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.

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16. How will the lawyers be paid?

You are not personally responsible for payment of attorneys’ fees or expenses for Class Counsel. Instead, as compensation for their time and the risk in litigating the case on a contingent basis, Class Counsel will ask the Court to approve from the settlements with ANA, AA, Air France, Cargolux, JAL, KLM, Martinair, Qantas, SAS, and Thai Airways an interim payment of attorneys’ fees in an amount not to exceed 25 percent of the settlement funds, as well as interim reimbursement for expenses incurred in the prosecution of the litigation in an amount not to exceed $5 million. If awarded by the Court, these amounts would be deducted proportionally from the settlement funds.

The attorneys have not received payment for any work done in this case since December 31, 2008. The Court previously awarded $12.5 million in attorneys’ fees from the $85 million settlement with Deutsche Lufthansa AG, Lufthansa Cargo AG, and Swiss International Air Lines, Ltd. No fees have yet been awarded on the approximately $193 million in settlements with ANA, AA, Air France, Cargolux, JAL, KLM, Martinair, Qantas, SAS, and Thai Airways.

If you wished to object to this attorneys’ fee and expense request, you must have filed your objection by June 6, 2011.

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17. How do I tell the Court that I don’t like the Proposed Settlements, the Plan of Allocation, or the request for attorneys’ fees and expenses?

The deadline to object to the Proposed Settlements, the Plan of Allocation, or the request for attorneys’ fees and expenses was June 6, 2011.

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18. What’s the difference between objecting and excluding?

Objecting is simply telling the Court that you don’t like something about the Proposed Settlements, Plan of Allocation, or request for interim attorneys’ fees and expenses. You could object to a Proposed Settlement only if you stayed in the class for that particular Proposed Settlement. If you excluded yourself, you had no right to object because the Proposed Settlement no longer affects you.

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19. When and where will the Court decide whether to approve the Proposed Settlements?

The U.S. District Court held a Fairness Hearing on June 23, 2011.

At this hearing the Court considered whether the Proposed Settlements are fair, reasonable and adequate, whether to approve the Plan of Allocation and whether to award attorneys' fees and expenses. If there were objections, the Court considered them. After the hearing, the Court will decide whether to approve the Proposed Settlements, the Plan of Allocation and the request for attorneys' fees and expenses.

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20. Do I have to come to the hearing?

The Fairness Hearing date has passed.

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21. May I speak at the hearing?

Your Notice of Intention to Appear must have been filed with the Court by June 6, 2011.

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22. What happens if I did nothing at all?

If you did nothing, you will remain in the settlement class for each of the Proposed Settlements but you will not receive a payment. To receive a payment, you must have submitted a claim form no later than July 26, 2011.

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23. Are there more details about the Proposed Settlements, the Plan of Allocation, or the request for attorneys’ fees and expenses?

This website summarizes the Proposed Settlements. More details are in the settlement agreements. You can get a copy of the settlement agreements on this website.

Class Counsel will file a motion for final approval of the Proposed Settlements and the Plan of Allocation, and a request for attorneys’ fees and expenses, which will contain additional information. These papers are currently due to be filed by May 10, 2011 and will be available on the Court Documents section of this website.

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24. How do I get more information?

If the answer to your question cannot be located on this website, you may contact the settlement administrator by email at Administrator@AirCargoSettlement2.com. You may also call the settlement administrator toll-free at 1-888-291-9655 in the U.S., U.S. territories, and Canada. Outside the U.S. and Canada, you may call 1-614-553-1296, but toll charges will apply. You may also write to:

Air Cargo Settlement 2
c/o Garden City Group, LLC
P.O. Box 9380
Dublin, OH 43017-4280
USA

You may also write to any of Class Counsel at the following addresses:


Michael D. Hausfeld
Hausfeld LLP
1700 K Street, NW
Suite 650
Washington, DC 20006

Robert N. Kaplan
Kaplan Fox & Kilsheimer LLP
850 Third Avenue, 14th Floor
New York, NY 10022
Hollis Salzman
Robins, Kaplan, Miller & Ciresi L.L.P.
601 Lexington Avenue
Suite 3400
New York, NY 10022-4611
Howard J. Sedran
Levin, Fishbein,
Sedran & Berman
510 Walnut Street
Philadelphia, PA 19106

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25. Can I update my address?

Yes. If your address changes, please enter your current information online, or send it to the settlement administrator at:

Air Cargo Settlement 2
c/o Garden City Group, LLC
P.O. Box 9380
Dublin, OH 43017-4280
USA

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Important Dates — Approved Canadian Settlements
DateEvent
May 11, 2017
(postmarked)
Claim Form Deadline