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Class Action Litigation Securities Litigation Antitrust Litigation ERISA Litigation Consumer Litigation Trials and Appeals Product Liability and Tort Law Litigation Securities Arbitration Martindale-Hubble AV Rated

Emerson Poynter LLP has a national class action legal practice with offices in Houston,

Texas, and Little Rock, Arkansas.

Emerson Poynter, and its team of experienced Attorneys and Paralegals, handles complex

commercial litigation with a concentration in those cases that involve violations of federal and

state securities or antitrust laws, consumer protection laws, and violations of the Employee

Retirement Income Security Act of 1974 (“ERISA”). Our law firm has handled numerous

securities and shareholder derivative cases representing investors. Emerson Poynter and its

predecessor firms have also been active in many mass tort, class action, and individual cases of

note. In the class action litigation area, Emerson Poynter has represented and currently

represents plaintiffs in well over 100 class action cases, some of which are being prosecuted with

other leading national firms.

Emerson Poynter has served as Co-Lead Counsel in several recent Multidistrict Litigation

(“MDL”) cases involving product liability and consumer protection issues. In 2004, Emerson

Poynter was appointed by the Honorable Stephen P. Friot as Plaintiffs’ Co-Lead Counsel in In re

Farmers Insurance Co., Inc. FCRA Litigation, which was recently settled in the Western District

of Oklahoma. This case was litigated on behalf of a certified class of Farmers’ current and past

customers who were charged more than the lowest premium for insurance based upon

information in a consumer report, and received certain “adverse action” notices that willfully

Emerson Poynter LLP Little Rock

Attorneys at Law Houston

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failed to conform to the Fair Credit Reporting Act. The case resolved in late 2011 and provided

class members with about $100 million in cash and other relief. Emerson Poynter LLP also

represent numerous long-grain rice farmers in Arkansas and other states, and continues to serve

as Co-Chairman of Plaintiffs’ Executive Committee in the MDL action In re Genetically

Modified Rice Litigation (the “Rice MDL Action”) having been appointed to such position by the

Honorable Catherine D. Perry of the Eastern District of Missouri in April 2007. The Rice MDL

Action sought damages for long-grain rice producers in Arkansas, Missouri, Mississippi,

Louisiana, and Texas for defendants’ contamination of the United States’ rice supply with

genetically modified rice as revealed by Bayer and the USDA in August 2006. This MDL action

was settled for over $750 million in cash relief for American rice farmers. Emerson Poynter

additionally served as Co-Lead Plaintiffs’ Counsel in an MDL case transferred to the Honorable

Richard D. Bennett of the District of Maryland captioned In Re; Tyson Foods, Inc. Chicken

Raised Without Antibiotics Consumer Litigation. The case involved false advertising claims

associated with the sale of Tyson Foods’ chicken as being raised without antibiotics, when in fact

the chicken was raised with antibiotics. The action was settled for $5 million in cash and other

relief for class members who purchased the chicken products at issue.

Emerson Poynter is also active in cases seeking to improve corporate governance in

public companies through its involvement in shareholder derivative litigation. Most notably,

Emerson Poynter served as Co-Lead Counsel in cases resulting in significant and far-reaching

corporate governance and compliance improvements within companies such as AOL/Time

Warner, Computer Associates, Nicor, Cryolife, Inc., and Crompton (Chemtura). The Firm has

also represented shareholders in claims involving corporate buyouts and other change-of-control

transactions. In 2007, Emerson Poynter represented shareholders of Alltel Corporation in an

acquisition of the company by an affiliate of Goldman Sachs. The action was settled favorably

for the shareholders, and the Honorable Judge Chris Piazza of the Pulaski County Circuit Court,

Arkansas, approved the settlement in August of 2008.

In the consumer protection litigation area, Emerson Poynter is a leader in fighting for the

rights of consumers. Besides the aforementioned Tyson RWA Chicken MDL Action, Emerson

Poynter is also a leader in the MDL action captioned In Re; Bisphenol-A (BPA) Polycarbonate

Plastic Products Liability Litigation pending in the United States District Court for the Western

District of Missouri. Emerson Poynter is Co-Lead Counsel in the Webb et al. v. Carters Inc. et

al. litigation currently pending in the United States District Court for the Central District of

California concerning Carter’s line of tagless baby clothing; in the Montanez et al. v. Gerber

Childrenswear, Inc., et al. litigation currently pending in the United States District Court for the

Central District of California concerning Gerber’s line of tagless baby clothing; in the Horne et


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al. v. The Dannon Company Inc. litigation currently pending in the United States District Court

for the Eastern District of Arkansas concerning Dannon’s line of yogurt products; and, in the

Herrington, et al. v. Johnson and Johnson Consumer Companies, Inc. et al. litigation currently

pending in the United States District Court for the Northern District of California concerning

numerous baby products.

In the retirement plan/pension area, Emerson Poynter served as Co-Lead Counsel in the

Winn-Dixie Stores, Inc. ERISA Litigation that settled in the Middle District of Florida in 2008,

and served as Co-Lead Counsel in the ADC Telecommunications ERISA litigation that settled in

the District of Minnesota in 2006. Emerson Poynter served on the Enron ERISA Litigation

Plaintiffs’ Counsel Steering Committee. This case settled in the United States District Court,

Southern District of Texas, Houston Division in 2005.

Mr. Emerson is a founding partner of the Firm. He was born in

Little Rock, Arkansas, and was raised there and in Houston, Texas. He is a

member of the state bars of Texas, Washington and Arkansas. Mr.

Emerson obtained his Bachelor of Arts from the University of Texas at

Austin. He then earned his Juris Doctorate from South Texas College of

Law.

Mr. Emerson has represented numerous stockholders in shareholder derivative lawsuits

brought against corporate boards. These suits sought to impose corporate governance reforms

aimed at protecting shareholders and eliminating corporate waste and abuse. For example, Mr.

Emerson served as one of the Lead Derivative Counsel in the Federman v. Artz derivative action

brought on behalf of Computer Associates in the Federal District Court for the Eastern District of

New York. This action was brought against the Computer Associates board of directors and led

to the resignation of the Company's CFO, the resignation of two other senior financial officers,

and the adoption of certain corporate governance measures that Computer Associates has

represented as the "gold standard" of governance reform. Mr. Emerson was Co-Lead Counsel in

the In Re Nicor, Inc. Shareholder Derivative Litigation in the Circuit Court of Cook County,

John G. Emerson Partner

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Illinois County Department, Chancery Division. This action was brought against Nicor's board of

directors and its settlement resulted in significant corporate governance improvements at Nicor.

In 2005, Mr. Emerson was Co-Lead Counsel in the In Re Cryolife Derivative Litigation pending

in the Superior Court of Fulton County, Georgia. The settlement of this action in 2005 resulted in

wide-sweeping and significant corporate governance improvements at Cryolife. Mr. Emerson

was also Co-Lead Counsel in the AOL Time Warner Shareholder Derivative Litigation which

was settled in the Federal District Court for the Southern District of New York in 2006. This

settlement resulted in wide ranging corporate governance and compliance changes and was a

substantial factor in Time Warner’s ability to obtain $200 million from its Directors and Officers

(D&O) insurance carriers. Mr. Emerson was Lead Counsel in the Crompton (now known as

Chemtura) Shareholder Derivative Litigation which settled in the Bankruptcy Court for the

Southern District of New York in 2009. This settlement resulted in significant corporate

governance improvements that were put in place during bankruptcy and continued after the

Company’s reorganization and exit from bankruptcy in 2010.

In the tort area, Mr. Emerson, has represented plaintiffs against many of the country’s

largest Fortune 500 companies. He was a co-lead counsel in mass tort litigation in which he

represented numerous plaintiffs who had been diagnosed with radiogenic cancers alleged to have

been caused by exposure to radioactive materials associated with the mining and milling of

uranium and the disposal and supposed storage of radioactive wastes and toxic chemicals. These

cases involved the operations of Exxon, Conoco, U.S. Steel, Chevron, and others. These mass

tort cases were settled under a confidential agreement. Mr. Emerson currently serves as

Chairman of the Expert Witness Committee in the MDL Action In Re Bisphenol-A (BPA)

Polycarbonate Plastic Products Liability Litigation on file in the United States District Court for

the Western District of Missouri. Mr. Emerson has extensive jury trial experience over the past

30 years.

In the consumer class action area, Mr. Emerson represented one of the Lead Plaintiffs in

the AOL Version 5.0 software litigation. He also served as Co-Lead Counsel in litigation for

consumers against the Farmers Insurance Group of Companies involving alleged violations of

the Fair Credit Reporting Act.

In the antitrust area, Mr. Emerson has represented plaintiffs in the Compact Disc

Antitrust Litigation filed against the music industry in the United States, and has represented

plaintiffs in the High Pressure Laminates Antitrust Litigation in both the direct and indirect

purchaser cases. Currently, Mr. Emerson is involved in the following Antitrust cases: CRT

(Cathode Ray Tube) Antitrust Litigation; Flash Memory Antitrust Litigation; GPU (Graphics

Processing Units) Antitrust Litigation; Packaged Ice Antitrust Litigation; Ocean Shipping


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Antitrust Litigation; SRAM (Static Random Access Memory) Antitrust Litigation; TFT-LCD

(Flat Panel) Antitrust Litigation; and Trans-Pacific Airline Surcharge Litigation.

Mr. Emerson was also a consultant to Canadian plaintiffs’ counsel in the Canadian

Medtronic Pacemaker Pacing Lead Product Liability Litigation that was certified and settled in

British Columbia as a Canadian national class action. He has also been a consultant to Canadian

counsel in the Canadian compact disc antitrust litigation, the Canadian Publishers Clearing

House litigation, and the Canadian AOL 5.0 Software Litigation, which were of course

companion cases to those discussed above.

Mr. Emerson is committed to representing employees or former employees who

participated in their public company’s retirement plans and sustained significant losses in these

plans due to corporate malfeasance. In this regard, he was appointed to the Plaintiffs’ Counsel

Steering Committee by Judge Melinda Harmon in the consolidated Enron ERISA Litigation,

Pamela M. Tittle v. Enron Corp., et al.

Mr. Emerson was admitted to the Texas Bar in 1980. He is admitted to practice

before the U.S. Supreme Court; U.S. Court of Appeals, 5th Circuit; U.S. Court of Appeals, 8th

Circuit; U.S. District Courts for the Southern, Northern, Western and Eastern Districts of Texas;

Western and Eastern Districts of Arkansas; Western District of Washington; District of Colorado;

and all Texas, Washington and Arkansas state courts.

Mr. Emerson was affiliated with the fraternity Delta Theta Phi. He is a member of the

American Bar Association (Tort and Insurance Practice Section, Legal Economics Section);

American Association for Justice (AAJ); Supporting Fellow of the Pound Civil Justice Institute;

Class Action Trial Lawyers (CATL); AAJ Class Action Litigation Group; Texas Trial Lawyers

Association; State Bar of Texas (Grievance Committee 4-D, Houston, 7/91 through 7/94;

Membership Services Committee, 91-92); Sustaining Life Fellow Texas Bar Foundation; Bar

Association for the United States District Court for the Eastern District of Texas; Houston Bar

Association; Fellow of the Houston Bar Foundation; Washington State Bar; King County Bar

Association; Pulaski County Bar Association; and, the Arkansas Bar Association.

Mr. Emerson is “AV Preeminent” Rated by Martindale-Hubbel.

Mr. Emerson’s email address is [email protected].


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Mr. Scott Poynter is also a founding partner of the Firm. He was

born in Fayetteville, Arkansas and was raised in Mountain Home. Mr.

Poynter earned his Bachelor of Science Degree in Accounting from

Arkansas Tech University. He then earned his Juris Doctorate from the

University of Arkansas in 1989. While in law school, Mr. Poynter was

active in Phi Alpha Delta legal fraternity and was awarded a leadership

scholarship from the school. After completing law school, Mr. Poynter

joined the Judge Advocate Department of the United States Air Force and

served six years of active duty as a Judge Advocate and litigated more than fifty jury trials. In

1995, then Captain Poynter was selected by the Air Force for its Advanced Trial Advocacy

Course, a course reserved for the military’s finest litigators. After leaving active duty, Mr.

Poynter was a partner at a national class action law firm, which focused its work on the

representation of investors. He also continued his military career in the Arkansas Air National

Guard and attained the rank of Major.

As Plaintiffs’ Co-Lead Counsel in the Farmers MDL Action, Mr. Poynter was devoted to

recovering statutory damages in a certified class action brought on behalf of Farmers’ customers

who paid higher insurance premiums based upon credit information without their knowledge due

to faulty FCRA notices prepared by Farmers. As a result of his and his co-counsel’s effort, they

secured a $100 million settlement on behalf of class members last fall. In another MDL action,

In Re Genetically Modified Rice Litigation, Mr. Poynter serves as Co-Chair of Plaintiffs’

Executive Committee on behalf of long-grain rice farmers who experienced a deflated rice

market after America’s rice supply was contaminated by Bayer’s genetically modified rice in

2006 and markets in Europe and Asia were lost. A $750 million cash settlement was achieved

last year, and Mr. Poynter continues to work on behalf of his clients in securing their cash relief.

Mr. Poynter also served as Co-Lead Plaintiffs’ Counsel in the Tyson RWA Chicken MDL Action

before Judge Bennett in the District of Maryland, which provided class members over $5 million

in relief. Additionally, he served as class counsel in multiple consumer actions against Alltel,

and thus far, has secured over $60 million of relief former Alltel subscribers who were members

of certain consumer classes.

Scott E. Poynter Partner


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Mr. Poynter is also an experienced ERISA litigator, having served as Co-Lead Plaintiffs’

Counsel for retirement plan participants involving retirement plans at ADC Telecommunications,

Inc. and Winn Dixie Stores, Inc. Due to Mr. Poynter’s efforts, millions of dollars were

recovered in those retirement plans in settlements approved by judges in the District of

Minnesota in 2006 and the Middle District of Florida in 2008. Mr. Poynter was also

instrumentally involved in ERISA Actions involving Enron, Reliant Energy, and he also

represented numerous Goodyear Tire & Rubber Company employees in an ERISA action

brought in Ohio.

As an active participant in the representation of investors whose shares are acquired

through leveraged buyouts, mergers, tender offers, and other “change of control” transactions,

Mr. Poynter has challenged the fairness of such transactions, the adequacy of disclosures made in

connection with the transactions, and the price offered to shareholders for their equity. These

types of cases have resulted in the restructuring of scores of corporate transactions and the

recovery of hundreds of millions of dollars in additional compensation for shareholders. Most

recently, Mr. Poynter was a lead counsel in such litigation and represented Alltel shareholders in

a case assigned to Pulaski Circuit Judge Chris Piazza. In re Alltel Corp. Shareholders Litigation,

Circuit Court of Pulaski County, Arkansas, Case No. 07-6406. This case was settled in late

August 2008.

Mr. Poynter also devotes a significant amount of his law practice to representing

investors seeking financial recovery for losses suffered as a result of securities fraud.

Additionally, Mr. Poynter has represented stockholders in shareholder derivative lawsuits

brought against corporate boards, seeking to impose corporate governance reforms aimed at

protecting shareholders and eliminating corporate waste and abuse. For example, Mr. Poynter

served as one of the counsel in Perkins v. Sortwell, et al., brought on behalf of Aurora Foods,

Inc. In this derivative action, certain corporate insiders were forced to relinquish more than 3.6

million of their personal shares to Aurora Foods representing nearly a $15 million benefit to the

Company. Additionally, significant corporate governance safeguards were implemented to

significantly reduce the risk of accounting malfeasance. Mr. Poynter’s experience in this action

contributed significantly to the settlement achieved in a derivative action brought on behalf of

Computer Associates, which led to the resignation of the Company’s CFO and two other senior

financial officers. Moreover, Mr. Poynter was one of the lead counsel in derivative litigation in

Georgia involving Cryolife that led to the denial of the Cryolife’s Board of Directors’ motion to

dismiss based upon the investigation and report of a special litigation committee. Through his

effort in building Plaintiffs’ case in discovery, the motion to dismiss was denied very quickly and

a favorable settlement for Cryolife and its shareholders followed. Mr. Poynter has also led other

derivative actions involving Nicor, AOL Time Warner, and Crompton Corporation.


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Mr. Poynter has also been extensively involved in many telecommunications class action

cases brought under consumer protection statutes, and appeared on the nationally syndicated

television show The Morning Show with Mike and Juliet as an expert on the cell phone industry’s

early termination fees. Mr. Poynter provided viewers of this show with legal information

regarding the response of consumers to such fees, and the Federal Communications

Commission’s recent hearings on the subject.

Mr. Poynter is admitted to practice before: U.S. Court of Appeals for the Armed Forces;

U.S. District Courts for the Western and Eastern Districts of Arkansas; 8th

Circuit Court of

Appeals; and all Arkansas State Courts.

Mr. Poynter’s e-mail address is [email protected].

Mr. Jennings is an associate with the firm. His practice concentrates

on complex litigation and representing consumers, businesses, and

governmental entities in individual and class action antitrust, consumer

protection, derivative, products liability, and federal securities cases. Mr.

Jennings has assisted in prosecuting numerous individual, mass tort, and class

cases in state and federal courts throughout the nation.

Currently, Mr. Jennings is assisting in litigating several antitrust cases

including In re CRT (Cathode Ray Tube) Antitrust Litigation, MDL 1917 (N.D. Cal.); In re Flat

Glass Antitrust Litigation (II), MDL 1942 (W.D. Pa.); In re Packaged Ice Antitrust Litigation,

MDL 1952 (E.D. Mich.); In re Text Messaging Antitrust Litigation, MDL No. 1997 (N.D. Ill.);

and In re TFT-LCD (Flat Panel) Antitrust Litigation, MDL 1827 (N.D. Cal.).

Mr. Jennings is also involved in several consumer protection and products liability cases,

including multiple telecommunications class action cases brought under various state consumer

protection statutes. Two such class cases he has recently assisted in litigating have resulted in

settlements where approximately $61 million in total relief was made available to class members.

Most recently, Mr. Jennings successfully argued to the Arkansas Supreme Court the reversal of

an order denying class certification in a case involving Alltel Communications, Inc. Rosenow v.

Alltel Corp. et al., 2010 Ark. 26 (2010).

Christopher D. Jennings Associate


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Mr. Jennings also has experience in representing consumers and businesses in

consolidated multidistrict litigation. For example, in In re Tyson Consumer Litigation, MDL

1982 (D. Md. 2008), Mr. Jennings assisted in successfully arguing complex procedural and

jurisdictional issues and developing novel discovery techniques on behalf of his clients. He has

also worked extensively on behalf of Arkansas rice farmers in In re: Genetically Modified Rice

Litigation, MDL 1811 (E.D. Mo. 2006), most notably where his team successfully opposed

German holding company Bayer AG's jurisdictional challenges. In re Genetically Modified Rice

Litigation, 576 F.Supp.2d 1063 (E.D. Mo. 2008).

Mr. Jennings is a native of Little Rock. In 2001, Mr. Jennings obtained his Bachelor of

Arts Degree in Political Science from the University of Arkansas with a minor in History. In

2005, he earned a Masters in Public Administration (MPA) degree from the University of

Arkansas. His area of emphasis while obtaining his Masters focused on state level corporate and

non-profit lobbying strategy and development. In 2006, Mr. Jennings earned his Juris Doctorate

from the William H. Bowen School of Law at the University of Arkansas – Little Rock.

Mr. Jennings is admitted to practice in Arkansas state courts, the Eastern and Western

Districts of Arkansas and the 8th Circuit Court of Appeals. He has also been admitted to practice

in numerous federal district courts throughout the country.

Mr. Jennings is a member of the American Bar Association, American Association for

Justice; Arkansas Bar Association; Pulaski County Bar Association; and the Arkansas Young

Lawyers Section.

Mr. Jennings was recently named a Mid-South Super Lawyers Rising Star in 2010.

Mr. Jennings’ e-mail address is [email protected].

Mr. Crowder is an associate with the firm. He was born and raised

in Camden, Arkansas. In 2000, Mr. Crowder earned a Bachelor of Arts

Degree in Political Science from the University of Arkansas. In 2003, Mr.

Crowder earned his Juris Doctorate from the William H. Bowen School of

Law at the University of Arkansas at Little Rock. Mr. Crowder is a

member of the Arkansas Bar and admitted to the United States District Court

for the Eastern and Western Districts of Arkansas, the District of Colorado,

and the U.S. Court of Appeals for the Eighth Circuit.

Will T. Crowder Associate


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From 2004 until 2006, Mr. Crowder was a judicial clerk for U.S. District Judge Harry F.

Barnes in El Dorado, Arkansas. Following his clerkship he has been employed by the Little

Rock law firms of Jack, Lyon & Jones, P.A. (where he focused on defense work) and McMath

Woods, P.A. (where he began his representation of the injured).

During his time at Emerson Poynter, Mr. Crowder has been extensively involved in all

manner and types of class cases, including the firms’ consumer litigation cases:

Carrera v. Bayer Corporation, (D.N.J.), deceptive trade practices action for

marketing of Bayer’s WeightSmart diet pill.

Montantez v. Gerber Childrenswear, LLC (C.D. Cal) and Webb v. Carter’s, Inc.

(C.D. Cal), cases involving tagless labels on children’s garments.

In re: Cheerios Marketing and Sales Practices Litigation (D.N.J.), multidistrict

litigation pending against General Mills for health and cancer-prevention claims

made by their products.

Mr. Crowder has also lead the firm’s efforts in litigation of cases on behalf of Arkansas’s

citizens

Claims against major retailers who manufacture products with dangerous levels

of heavy metals and other chemicals;

Claims against manufacturers of “toning shoes” on behalf of Arkansas’s citizens;

Claims against banks relating to overdraft practices.

Mr. Crowder is a member of the American Bar Association, American Association for

Justice, the Arkansas Trial Lawyers Association and the Pulaski County Bar Association.

In 2009, 2010, and 2011, Mr. Crowder was selected as a Mid-South Super Lawyer Rising

Star.

Mr. Crowder’s email is [email protected].

Mr. McGaha, is an associate with Emerson Poynter LLP since

July 2011. He is admitted to practice in the state courts of Arkansas and

Texas, the United States District Courts for the Eastern and Western

Districts of Arkansas, and the United States District Court for the Eastern

District of Texas. Mr. McGaha graduated cum laude from Ouachita

Corey D. McGaha

Associate


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Baptist University and received his law degree from the University of Arkansas in 2002.

After graduating law school, Mr. McGaha served as a law clerk to the Hon. Harry F.

Barnes, United States District Court for the Western District of Arkansas from 2002-2006. He is

a member of the American Bar Association, the ABA’s Young Lawyers Division, the Arkansas

Bar Association, and the Texas Bar Association.

Mr. McGaha worked as an attorney at Patton Roberts PLLC in Texarkana, Texas from

2006 through 2011. Mr. McGaha assisted the firm in successfully litigating and settling a

number of security fraud cases including:

In Re: Brocade Securities Litigation, Northern District of California - A national

securities fraud class action which resulted in a court-approved cash settlement of

$160 million for shareholders.

In Re: Salomon Analyst Metromedia Litigation, Southern District of New York –

A securities fraud class action which resulted in a court-approved cash settlement

of $35 million for shareholders of Metromedia Fiber Network.

Walker v. Rent-A-Center, Inc., Eastern District of Texas – A securities fraud class

action which resulted in a court approved cash settlement of $3.6 million for the

shareholders of Rent-A-Center, Inc.

McClure, et al, v. AOL Time Warner, Inc., Texas state court – An individual

securities fraud action in which clients received 100% more than they would have

received in the global settlement of the national securities fraud class action.

Mr. McGaha also assisted the Firm in representing the Industrial Technology Research

Institute (ITRI), the prominent Taiwanese national research institute, in its first prosecution of its

patent portfolio in the United States against Samsung Electronics, and its second ongoing

prosecution of its patent portfolio against LG Electronics.

Mr. McGaha enjoyed a strong local civil litigation practice at Patton Roberts, focused on

commercial, real estate, and personal injury litigation that included:

Arkansas State Highway Commission v. Wilson, et al, Arkansas state court - In

his first jury trial, Mr. McGaha secured an $188,000 jury verdict on his client’s

counterclaim against the Arkansas State Highway Commission after the State

condemned a third of his clients’ farm. The jury verdict was substantially higher

than the amount of money, $116,000, the State originally interpled into the court’s

registry.


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Reported decision in Buck v. City of Hope, 2009 Ark. App. 105, 303 S.W.3d 85

(Ark.App. 2009) – Mr. McGaha successfully argued for his client that the trial

court erred in finding it lacked subject matter jurisdiction over claims for

nuisance, inverse condemnation, trespass and negligence against the City of

Hope, Arkansas.

Watz, et al. v. Red Robin International, Inc., et al, Arkansas state court – Mr.

McGaha successfully gained a dismissal of a wrongful death lawsuit against his

clients, the Red Robin restaurant chain, for lack of subject matter jurisdiction.

Lancaster v. Red Robin International, Inc., Arkansas state court – Mr. McGaha

achieved another success for the Red Robin restaurant chain by defeating a former

employee’s defamation claim by a motion for summary judgment.

While living in Texarkana, Mr. McGaha was active in the bar as a member of the

Texarkana Bar Association, and treasurer for the Texarkana Young Lawyers Association. Mr.

McGaha was also a member of the Texarkana Chapter of Kiwanis International.

Mr. McGaha’s email is [email protected].

Mr. Terry Poynter was born in Springfield, Missouri, and grew up in Mountain Home,

Arkansas. He earned his Bachelor of Science Degree in Business Administration at the

University of Arkansas in Fayetteville, Arkansas in 1962, and earned his Juris Doctorate from

the same institution in January, 1965. Mr. Poynter was a part-time sports journalist during his

undergraduate and law school days. He worked for the Arkansas Democrat, Arkansas Gazette,

was an assistant to the sports information director, and, finally, in 1964, was the sports editor of

the Northwest Arkansas Times in Fayetteville. During law school, he was Co-Editor-in-Chief of

the Arkansas Law Review and Bar Journal.

During his distinguished legal career, Mr. Poynter served two terms as prosecuting

attorney for the 16th

Judicial District. He has, at one time or another, been primary counsel for

six different financial institutions, in addition to serving on the Arkansas Supreme Court’s Board

of Legal Specialization from 1998 through 2002; the Arkansas Supreme Court Board of Bar

Examiners from 1999 through 2003; and the Arkansas Bar Association’s Board of Governors.

Terry M. Poynter Of Counsel


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Mr. Poynter was appointed as Special Chief Justice of the Arkansas Supreme Court by

Governor Bill Clinton in 1990, to sit for Mr. Jack Holt Jr., who had recused in a case.

Mr. Poynter is admitted to the U.S. Court of Appeals for the 8th Circuit; U.S. District

Court for the Eastern and Western Districts of Arkansas, and all Arkansas State Courts. He is a

member of the American Association for Justice, Arkansas Trial Lawyers, the Arkansas Bar

Association and the Baxter County Bar Association.

Mr. Poynter retired from the practice of law in January 2012, but remains a trusted

advisor to his son and other attorneys at Emerson Poynter.

Mr. Jigarjian received his Bachelor of Arts degree from Hamilton College in 1981, his

Masters of Business Administration from Tulane University in 1985 and his Juris Doctorate from

Golden Gate University in 1993. Prior to law school, Mr. Jigarjian worked as an institutional

sales trader with Keefe Bruyette & Woods, Inc., where he specialized in sales and trading of

equity securities in the bank and savings and loan sectors.

Mr. Jigarjian was a founding member of Green & Jigarjian LLP. He joined Emerson

Poynter in 2007. Prior to founding Green & Jigarjian, Mr. Jigarjian was employed at Girard &

Green LLP.

Mr. Jigarjian has substantial experience in the representation of individual and

institutional investors in class action and derivative litigation. He represented one of the lead

plaintiffs in the class action captioned In re Prison Realty Securities Litigation, Case No.

3:99-0452 (M.D. Tenn.) which resulted in a settlement that created a fund for the class valued at

approximately $105 million. He also represented one of the lead plaintiffs in the consolidated

class and derivative action captioned In re Digex, Inc. Shareholders Litigation, C.A. No. 18336

NC (Del. Ch.), which resulted in a settlement that created a fund for the class valued at

approximately $180 million and provided for other non-cash benefits valued at approximately

$450 million. Mr. Jigarjian currently represents the derivative plaintiffs in Saito, et al. v. McCall,

et al., C.A. No. 17132-NC (Del. Ch.). The Delaware Chancery Court recently approved a

settlement in the Saito litigation that provided for payment by directors and officers liability

insurers to McKesson Corporation of $30 million and certain corporate governance

Robert Jigarjian Of Counsel


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improvements. Mr. Jigarjian also represents the lead class plaintiffs in In Re: Salomon Analyst

XO Litigation, 02-CV-8114 (GEL) (S.D.N.Y.).

Mr. Jigarjian is a member of the State Bar of California and is admitted to the United

States District Courts for the Northern, Southern, Eastern and Central Districts of California and

to the Ninth Circuit Court of Appeals.

Mr. Jigarjian’s email address is [email protected].


EXHIBIT 2


Mr. Alan M. Mansfield has specialized in the area of national consumer class action and public interest litigation since 1991, focusing on telecommunications, health care and consumer privacy issues. He has been involved over the years in numerous significant matters, including the Joe Camel teen smoking case, Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, and the DMV motor vehicle Smog Impact Fee refund case (Jordan v. Department of Motor Vehicles (1999) 75 Cal.App.4th 449). Mr. Mansfield was previously responsible for several years for the consumer law group in the San Diego office of the largest class action firm in the United States, now known as Robbins Geller Rudman & Dowd. His clients have included such public interest organizations as Consumer Watchdog, the Privacy Rights Clearinghouse and the California Medical Association. Mr. Mansfield was one of the lead counsel in Garrett v. City of Escondido, 465 F.Supp. 2d 1043 (S.D. Cal. 2006) in the U.S. District Court for the Southern District of California, which successfully challenged the legality of the City of Escondido’s immigration landlord-tenant enforcement ordinance and which resulted in one of the first decisions addressing the constitutionality of local ordinances addressing immigration issues. Based on that and other work he and the previous firm he was the managing partner for (Rosner & Mansfield) performed in the community, he and his firm was awarded the 2007 Public Service by A Law Firm Award by the San Diego County Bar Association. Mr. Mansfield has been appointed as co-lead counsel and litigated a variety of class and private Attorney General actions to successful resolution in both state and federal courts. Highlights of recent successful actions where he was appointed as one of the lead class counsel include a class action against American Honda for misrepresenting gas mileage on Honda Civic Hybrids, resulting in a settlement valued at over $400 million (Lockabey v. American Honda, S.D. Sup. Ct. Case No. Case No. 37-2010-00087755-CU-BT-CTL); a class action against Anthem Blue Cross for improperly closing certain health plans, resulting in a settlement requiring defendant to limit plan rate increases and requiring any plan changes to be without medical underwriting for several years (Feller v. Anthem Blue Cross, Ventura County Superior Court Case No. 56-2010-00368587-CU-BT-VTA) a class action against Sprint Communications for charging customers telephone fees for data plan communication, resulting in a settlement that fully refunded the vast majority of such charges (Taylor v. Sprint Communications, Case No. C07-CV-2231-W (RJB)); a class action involving billing customers for previously promised airtime, resulting in a class action settlement that resulted in the ability of over 1 million customers to claim full reimbursement for the uncredited airtime (Nelson v. Virgin Mobile, Case No. 05-CV-1594-AJB); an action involving the unauthorized billing of consumers for overdraft fees on checking and debit account, resulting in the creation of a $35 million common fund and significant cy pres contributions to several non-profit organizations (Closson v. Bank of America, San Francisco Superior Court Case No. CGC 04436877); a case challenging Sprint’s failure to provide a cancellation window when it imposed certain additional fees against customers in July 2003, resulting in a class-wide settlement returning Early Termination Fees that had been charged consumers, as well as improving certain disclosure practices (UCAN v. Sprint Spectrum LP, San Diego Superior Court Case No. GIC 814461) and Maycumber v. PowerNet Global Telecommunications, Case No. 06-cv-1773-H (RBB) (S.D. Cal.), where the action challenged a practice of charging a “Network Access Charge” as a tax when it was not, and PowerNet agreed to recalculate and classify such fees and a class-wide resolution where current customers were able to obtain bill credits for a significant portion of such charges and former customers could obtain cash refunds or calling cards for such amounts, at the customers’ option. Mr. Mansfield also represented the public interest group UCAN in an action before the California Public Utilities Commission involving billing for Early Termination Fees, resulting in a refund of over


$18 million in fees to over 100,000 former Cingular Wireless customers (In Re Cingular Wireless, CPUC Case No. I.02-06-003) as well as an action challenging AT&T California’s practice of terminating 911-only service to California residents in violation of the Public Utilities Code, resulting in a multi-million dollar fine and an order requiring significant practice changes by AT&T (UCAN v. SBC California, CPUC Case NO. C.05-11-011). He also successfully prevailed after a two week long class action arbitration in January 2009 on behalf of a class of senior citizens residing at a senior living community who were charged entrance fees in violation of California’s landlord-tenant laws, obtaining significant relief for the benefit of the class members and contributions for Alzheimer’s Disease research (VanPelt v. SRG). He recently assisted the ACLU in obtaining a significant First Amendment victory regarding the improper seizure by the U.S. Government of property belonging to members of the Mongols Motorcycle Club (Rivera v. Melson, No. 2:09-cv-02435 DOC (JCx)(C.D. Cal.), as well as recently obtained a significant decision from the Ninth Circuit interpreting the scope of the First Amendment as applied to California law (Beeman v. Anthem Prescription, 2011 U.S. App. LEXIS 14687 (9th Cir., July 19, 2011, en banc review granted). Mr. Mansfield has written extensively on a number of subjects, including being the primary author of the chapter and update on the scope of the Consumers Legal Remedies Act in Anti-Trust and Unfair Competition Law - Third, published by the California Bar Association, and is one of the authors of the current revision of that chapter for the Fourth Edition of that treatise. He also has been the author of several recently published articles, including "Class Action Waivers After the Supreme Court Decision in AT&T v. Concepcion”, San Diego ABTL Report (Summer 2011) and the San Diego Defense Bar Journal (Summer 2011); "Kwikset Corp. v. Superior Court: Re-affirming the Vitality of Private Enforcement of the Unfair Competition Law", State Bar of California Competition Magazine (Spring 2011)(co-authored with Pamela M. Parker); and “Supreme Court’s Most Recent Prop. 64 Decision Provides Guidance On Standing”, San Diego ABTL Report (Winter 2011). Other articles he has authored include “Is Your Client Prepared to Comply With the Data Security Breach Notification Laws?”, San Diego Association of Business Trial Lawyers Report (Spring 2007); “Has The Class Certification Inquiry Changed Due To Proposition 64?”, State Bar of California Anti-Trust and Unfair Competition Section (May 2005); “Hartwell: Are Courtroom Doors Open To Litigation Involving Regulated Industries?”, San Diego ABTL Report (August 2002); “Litigation Issues Arising from the Use of Websites,” Practicing Law Institute (April 2001); “Kraus, Cortez and Future Battlegrounds In Representative Actions Under the Unfair Competition Law,” Consumer Attorneys of California Forum (July/August 2000) (co-authored with Mark A. Chavez); “Private Enforcement of California’s Consumer Protection Unfair Business Practices Act,” CAOC Annual Meeting (November 1997); “Life After BMW v. Gore - Who Is Now The Trier of Fact?,” PLI (Fall 1997). Mr. Mansfield is a regular speaker and panelist in continuing legal education programs relating to California’s consumer protection statutes, including making presentations to the California Center for Judicial Education and Research (July 2001), the Privacy Foundation (October 2011, March 2009, February 2007 and October 2005) and the Naval College for JAG Officers (May 2004). He is also a panelist on litigating arbitration provisions after Concepcion in a national symposium for "Litigating Class Actions" (LSI May 2012), and was also a panelist in February 2008 for a Lexis-Nexis conference entitled “Weathering Mass Tort and Class Action Settlements and Negotiations”. He has also made several presentations to both the Enright Inn of Court and the Southern District Judicial Conference on state and federal data breach notification laws.


Mr. Mansfield is the past editor of the ABTL Report for the San Diego Chapter of the Association of Business Trial Lawyers and on its Board of Governors and Editorial Board, has previously served on the Board of Directors of the National Association for Consumer Advocates, and is a current member of the American Bar Association, the Anti-trust Section of the California Bar Association, the San Diego County Bar Association, the Federal Bar Association, the Consumer Attorneys of California and San Diego. He is currently a member of the William B. Enright Inn of Court and recently finished serving a term as a Lawyer Representative for the Southern District of California at the Ninth Circuit Judicial Conference. Mr. Mansfield received his B.S. degree, cum laude, in Business Administration - Finance from California Polytechnic State University, San Luis Obispo in 1983 and his Juris Doctorate degree from the University of Denver School of Law in 1986. He is admitted to the Bar of the State of California, to the United States District Courts for all Districts of California and to the Third, Fifth, Ninth and Tenth Circuit Courts of Appeal. April 2012


EXHIBIT 3


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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

JOHN RIGO D/B/A ALTERED AIR, on Behalf of Himself and All Others Similarly Situated,

Plaintiff, vs.

KASON INDUSTRIES, INC., PETER A. KATZ, COMPONENT HARDWARE GROUP, INC.; THOMAS CARR; and DOES 1-10,

Defendants,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO. 3:11-CV-00064-MMA (DTBx)

Hon. Michael M. Anello

INDIRECT PURCHASER SETTLEMENT AGREEMENT

This Indirect Purchaser Settlement Agreement (“Agreement”) is made and

entered into this 4th day of September, 2012, by and among Kason Industries, Inc.

and Peter A. Katz (collectively the “Kason Defendants”), Component Hardware

Group, Inc. and Thomas Carr (collectively the “CHG Defendants”) (the Kason

Defendants and CHG Defendants are sometimes collectively referred to as

“Defendants”) and Plaintiff John Rigo d/b/a Altered Air (“Plaintiff”), both

individually and on behalf of all members of the Indirect Purchaser Class as


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defined and described in paragraph B.7 below, by and through their respective

attorneys.

A. RECITALS.

WHEREAS, on January 12, 2011, Plaintiff filed a complaint (“Complaint”)

(Doc. 1) initiating an action against Defendants Kason Industries, Inc., Peter A.

Katz, Component Hardware Group, Inc., and Thomas Carr, styled John Rigo d/b/a

Altered Air, on Behalf of Himself and All Others Similarly Situated vs. Kason

Industries, Inc., et al., Case No. 3:11-CV-00064-MMA (DTBx) (“Indirect

Purchaser Action” or the “Action”), in the United States District Court for the

Southern District of California.

WHEREAS, on January 24, 2011, Plaintiff filed a corrected Complaint

(Doc. 3).

WHEREAS, on March 7, 2011, the Defendants filed separate Motions to

Dismiss the Action, which were granted in part and denied in part by the Court’s

Order of July 19, 2011 (Doc. 42).

WHEREAS, following the Court’s Order on the Defendants’ Motion to

Dismiss the Action, the Parties have conducted formal and informal discovery,

including numerous arms-length settlement discussions, and the exchange and

analysis of a significant number of confidential, non-public documents.


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WHEREAS, Plaintiff and Class Counsel believe that the claims asserted in

the Complaint have merit, while the Defendants believe that their defenses have

merit and in particular believe that Plaintiffs would be unable to prove injury or

damages. However, the Parties have each looked at the uncertainties of trial and

the benefits to be obtained under the proposed settlement and have considered the

costs, risks, and delays associated with the continued prosecution of this complex

and time-consuming litigation and likely appeals of any rulings in favor of Plaintiff

or Defendants. Accordingly, it is now the intention of the Parties and the objective

of this Agreement to avoid the costs of continued litigation and trial and to settle

and dispose of, fully and completely and forever, any and all claims and causes of

action in the Action.

WHEREAS, Plaintiff and Class Counsel have determined that the

Settlement is fair, reasonable, and adequate, and in the best interests of the

Settlement Class Members because it provides meaningful and immediate relief

and avoids the considerable risks and delays of further litigation.

NOW, THEREFORE, in consideration of the covenants, agreements and

releases set forth herein, and for other good and valuable consideration, the receipt

and sufficiency of which is hereby acknowledged, it is agreed by and among the

undersigned that this Action be settled, compromised and dismissed on the merits

with prejudice, without costs as to Plaintiff, the Indirect Purchaser Class, or


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Defendants except as provided for herein, subject to the approval of the Court, on

the following terms and conditions:

B. DEFINITIONS.

The following terms, as used in this Agreement, have the following

meanings:

1. “Action” or “Indirect Purchaser Action” means John Rigo d/b/a

Altered Air, on Behalf of Himself and All Others Similarly Situated vs. Kason

Industries, Inc., et al., Case No. 3:11-CV-00064-MMA (DTBx).

2. “Administrator” means any person or entity agreed to by the parties

and appointed by the Court to perform the tasks necessary to provide notice and to

otherwise administer and handle the claims of Indirect Purchaser Class Members

under this Agreement in accordance with the terms set forth herein.

3. “Defendant Releasees” means, jointly and severally, individually and

collectively, Kason Industries, Inc., Component Hardware Group, Inc., Peter Katz,

and Thomas Carr and each of their respective past, present and future officers,

directors, employees, agents, stockholders, attorneys, trustees, servants,

representatives, direct and indirect parents and owners, subsidiaries, affiliates,

heirs, principals, estates, executors, administrators, assigns and their respective

past, present and future officers, directors, employees, agents, stockholders,


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attorneys, trustees, servants, representatives, parents, subsidiaries, affiliates, heirs,

principals, estates, executors, administrators and assigns.

4. “Court” means the United States District Court for the Southern

District of California.

5. “Effective Date” and/or “Effective Date of Settlement” means the

latest of the following dates: (a) if no appeal from the Final Order and Judgment

(as such term is defined in paragraph D.3 hereof) is filed, the date of the expiration

of the time for the filing or noticing of any appeal from the Final Order and

Judgment; or (b) if an appeal from the Final Order and Judgment is filed and not

voluntarily withdrawn, and the Court of Appeals affirms the Final Order and

Judgment or dismisses the appeal, and (i) if a petition for writ of certiorari review

is filed and denied, the date such petition is denied, or (ii) if no writ of certiorari

review is filed and denied, the date of expiration of the time for the filing of such

petition passes; or (c) if a petition for a writ of certiorari is filed and granted, the

date of the final affirmance of the Final Order and Judgment or final dismissal of

the review proceeding initiated by the petition for writ of certiorari. The Parties

agree that neither the provisions of Rule 60 of the Federal Rules of Civil Procedure

nor the All Writs Act, 28 U.S.C. § 1651 shall be taken into account in determining

the above-stated times.


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6. “Final Order and Judgment” shall mean any final order and judgment

entered by the Court approving the fairness and adequacy of this Settlement

Agreement pursuant to the procedure set forth in Section D. 3.

7. “Indirect Purchaser Class” or “Settlement Class” means all persons or

entities, including but not limited to individuals, companies, corporations,

partnerships, joint ventures, agents, principals, and employees who purchased Food

Service Equipment Component Hardware or Food Service Equipment that

incorporated Food Service Equipment Component Hardware anywhere in the

United States from a person or entity other than the Defendants from February 1,

2004, through February 11, 2009. Excluded from the Indirect Purchaser Class are

the Defendants, the Trial judge and his or her spouse, parents, siblings or children,

and any person deemed by the Court to have properly requested to be excluded

from the Settlement.

8. “Indirect Purchaser Class Member” or “Class Member” means

each and every member of the Indirect Purchaser Class.

9. “Class Counsel” means the CONSUMER LAW GROUP OF

CALIFORNIA, 10200 Willow Creek Road, Suite 160, San Diego, CA 92131, and

EMERSON POYNTER LLP, 500 President Clinton Avenue, Suite 305, Little Rock,

AR 72201.


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10. “Opt Out” means any Indirect Purchaser Class Member that timely

and validly exercises its right to opt out of the Indirect Purchaser Class for

purposes of this Agreement pursuant to the procedures specified in the Settlement

Notice and ordered by the Court.

11. “Parties” means Plaintiff both individually and on behalf of the

Indirect Purchaser Class, and Defendants.

12. “Preliminary Approval Order” means an order entered by the Court

in a form substantially similar to the Preliminary Approval Order attached hereto

as Exhibit A.

13. “Food Service Equipment Component Hardware” means any type

of food service equipment component hardware products as defined by paragraph

11 of Plaintiff’s Corrected Complaint filed on January 24, 2011 (Doc. 3), sold by

Defendants, or any alleged co-conspirator from February 1, 2004, through

February 11, 2009.

14. “Food Service Equipment” means any type of equipment used in the

food service industry (e.g., and not by way of limitation, refrigerators, stoves,

ovens, etc.) that contain Food Service Equipment Component Hardware as an

incorporated component.

15. “Releasors” means Plaintiff, the Indirect Purchaser Class Members

and their respective past, present and future officers, directors, employees, agents,


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stockholders, attorneys, trustees, servants, representatives, parents, subsidiaries,

affiliates, heirs, principals, estates, executors, administrators, assigns and their

respective past, present and future officers, directors, employees, agents,

stockholders, attorneys, trustees, servants, representatives, parents, subsidiaries,

affiliates, heirs, principals, estates, executors, administrators and assigns of each of

the foregoing.

16. “Settlement Amount” means an aggregate of Seven Hundred and

Twenty Thousand and No/100 Dollars ($720,000) to be paid into the Settlement

Fund pursuant to the terms of this Agreement. Three Hundred Twenty Thousand

and No/100 Dollars ($320,000) of such Settlement Amount shall be paid by the

CHG Defendants and Four Hundred Thousand and No/100 ($400,000) of such

Settlement Amount shall be paid by the Kason Defendants.

17. “Settlement Fund” means the Settlement Amount plus any interest

that may accrue thereon.

18. “Settlement Notice” means the notice of the settlement, substantially

in the form attached hereto as Exhibit B, to be distributed to Indirect Purchaser

Class Members pursuant to the Preliminary Approval Order.

19. “Summary Notice” means the summary form of notice, substantially

in the form attached hereto as Exhibit C, to be published and distributed pursuant

to the Preliminary Approval Order.


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C. CLASS CERTIFICATION.

1. The Parties stipulate, for the purposes of Settlement only, to the

certification of the Indirect Purchaser Class pursuant to Rule 23(b)(2) and (3) of

the Federal Rules of the Civil Procedure.

2. Any class certification order entered in this Action sought pursuant to

this Agreement shall not constitute, in this Action or any other action or

proceeding, an admission by Defendants, or finding or evidence, that Plaintiff’s

claims, or those of any alleged Settlement Class Member who purchased Food

Service Component Hardware, are appropriate for class treatment for purposes

other than settlement or that any requirement for class certification for purposes

other than settlement is otherwise satisfied.

D. APPROVAL OF AGREEMENT AND DISMISSAL OF CLAIMS.

1. Preliminary Approval. Plaintiff and Defendants shall use their best

efforts to effectuate this Agreement. The Plaintiff shall file an unopposed motion

to the Court for preliminary approval of the settlement and certification for

settlement purposes only of the Indirect Purchaser Class sought pursuant to Section

C above. The Parties will further present to the Court the proposed Preliminary

Approval Order attached as Ex. A hereto, which will provide for, by, or in


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connection with this Agreement, inter alia: (a) preliminary approval of the

settlement; (b) appointment of Class Counsel; (b) Certification of an Indirect

Purchaser Class for settlement purposes only; (d) dissemination of the Settlement

Notice and Summary Notice; (e) a stay of all proceedings in the Action against

Defendants; (f) a preliminary injunction against Plaintiffs and Indirect Purchaser

Class Members for commencing or proceeding with any action that includes

allegations or claims within the scope of the Release as described in Section E

below prior to the Effective Date; (g) specifying the terms for objections; and (h)

setting a date for a fairness hearing to determine whether to finally approve the

settlement. Within ten (10) days of the filing of the Motion for Preliminary

Approval, the Administrator shall, on behalf of all Parties to this Agreement, notify

federal and state officials as specified in 28 U.S.C. §§ 1715(a) & (b). The Parties

agree to cooperate to attempt to provide reasonable estimates of the numbers of

Indirect Purchaser Class Members residing in each State, to the extent feasible,

pursuant to 28 U.S.C. §1715(b)(7)(A) and (B). The Parties will also provide the

Court the proposed Final Order and Judgment.


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2. Notice of Settlement

a. No later than twenty (20) days after entry of the Preliminary

Approval Order, subject to the Court’s approval and direction, the Parties shall

provide notice to Indirect Purchaser Class Members in the following manner:

i. Written notice substantially in the form of the Settlement

Notice shall be served via electronic mail or via United States mail, first class,

postage prepaid, to be mailed out within twenty (20) days after the entry of the

Preliminary Approval Order to those Indirect Purchaser Class Members who the

Parties are able to identify through reasonable efforts and for whom mailing

addresses may be found.

ii. A website operated by the Administrator will: (i) enable

Indirect Purchaser Class Members to access, download and submit the Settlement

Notice; (ii) provide a list of dates and deadlines in the settlement process; (iii)

permit Indirect Purchaser Class Members to submit a claim online; and (iv)

provide relevant updates and information with respect to the settlement and claims

process, including a link to the Full Settlement Notice, substantially in the form of

Exhibit B to this Agreement.

iii. A dedicated, toll-free telephone number that persons can

call to hear information regarding the settlement including the status of the Claims


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Submission Period and the Full Settlement Notice, substantially in the form of

Exhibit B to this Agreement.

iv. A summary form of the Notice (the “Summary Notice”),

in a form substantially similar to that attached as Exhibit C to this Agreement, as a

national press release via PR Newswire (or similar entity), and in the following

trade publications:

A. Nation’s Restaurant News

B. Restaurant Hospitality

C. Food Service Director

D. Food Management

E. Food Service Equipment & Supplies

F. Food Service Equipment Reports

v. The Parties agree that the methods of notice set forth in this

Section constitute the best form of notice to the Settlement Class that is practicable

under the circumstances.

vi. All costs associated with disseminating, publishing and posting

the Settlement Notice and all associated expenses of the claims administrator shall

be paid out of the Settlement Fund.

b. Should the Court enter a Preliminary Approval Order that requires a

notice program that, together with other related expenses, is likely to result in the


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expenditure from the Settlement Fund prior to Final Approval of an amount

exceeding Seventy Five Thousand and No/100 Dollars, the Kason Defendants and

CHG Defendants shall have the right to terminate this Agreement without further

obligation. If the Kason Defendants and/or CHG Defendants elect such an option,

they must so elect in writing within seven (7) days of the Court’s Preliminary

Approval Order, and shall only do so after conferring in good faith with counsel

for the other parties to determine if an agreement as to Notice costs can be reached

to resolve the parties’ concerns. If any Defendant terminates within such seven (7)

day period, the other Defendant(s) may do so as well by written notice given

within seven (7) days thereafter.

c. Class Counsel, either directly, or in its discretion, through the

Administrator, shall be responsible for responding to all inquiries from Indirect

Purchaser Class Members as appropriate. The Parties shall review and have an

opportunity to object to any voice prompt recordings or scripts prior to their use in

this settlement in accordance with a schedule set forth in the Preliminary Approval

Order. Should the parties not be able to immediately resolve their differences, the

parties agree to submit the dispute to the Court for resolution.


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3. Final Order And Judgment.

a. Upon obtaining preliminary approval of this Agreement from

the Court in accordance with Section D.1 above, the Parties shall seek the prompt

scheduling of a fairness hearing. Plaintiff shall propose that the court enter a Final

Order and Judgment (“Proposed Final Order”) in a form reasonably acceptable to

the Defendants. The text of the Proposed Final Order will include, without

limitation, the following:

i. approve finally this Agreement and its terms as being a

fair, reasonable and adequate settlement of this Action within the meaning of Rule

23 of the Federal Rules of Civil Procedure and direct its consummation according

to its terms;

ii. direct that the Action be dismissed with prejudice and

without costs;

iii. reserve exclusive jurisdiction over the settlement and this

Agreement, including the administration and consummation of this settlement;

iv. determine under Federal Rule of Civil Procedure 54(b)

that there is no just reason for delay and direct that the judgment of dismissal shall

be final and entered forthwith; and


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v. approve a record of Opt Outs, which Class Counsel shall

have provided a copy of to counsel for Defendants in advance of the fairness

hearing.

4. This Agreement shall become final only upon the Effective Date.

This Agreement shall, if either Defendants or the Plaintiff elects, be null and void

and shall have no further force and effect in the event that: (a) preliminary and

final approval of the Agreement is not obtained, or such approval is reversed on

appeal; (b) entry of the Final Order and Judgment is reversed; or (c) the Final

Order and Judgment is substantially modified by the Court, or on appeal, and

Defendants or Plaintiff do not agree with its modification. In the event the

agreement is nullified as provided herein, the Settlement Fund shall be returned

forthwith to Defendants, less all costs for notice and administration of the

settlement reasonably incurred up to the date the Agreement becomes null and

void.

5. Reservation of Rights. Defendants and Plaintiff expressly reserve

all of their rights if the Agreement does not become effective. In the event the

Agreement does not become effective, Defendants and Plaintiff further agree that

this Agreement, and any discussions or negotiations associated with it, shall not be

discoverable or offered into evidence or used in this Action or any other action for

any purpose, including, but not limited to, the existence, certification or


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maintenance of any purported class or in connection with a trial or appeal of this

matter or any other matter. In such event, this Agreement and all negotiations,

proceedings, documents prepared and statements made in connection with this

Agreement and filings to be made in conjunction herewith shall be without

prejudice to the Parties and shall not be admissible into evidence, and shall not be

deemed or construed to be an admission or confession by any of the Parties of any

fact, matter, or proposition of law, and shall neither be discoverable nor used in

any manner for any purpose, and all Parties to the Action shall stand in the same

position as if this Agreement had not been negotiated, made or filed with the

Court.

E. RELEASE AND DISCHARGE.

1. As of the Effective Date, the Plaintiff and other Settlement Class

Members who have not excluded themselves from the Settlement Class, by

operation of entry of the Final Judgment and Order of Dismissal, release and

forever discharge the Defendant Releasees from all Released Claims. For purposes

of this Agreement, "Released Claims" shall mean any and all claims, actions,

causes of action, rights, demands, suits, debts, liens, contracts, agreements, offsets

or liabilities, including but not limited to tort claims, claims for breach of contract,

breach of the duty of good faith and fair dealing, breach of statutory duties, actual


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or constructive fraud, misrepresentations, fraudulent inducement, statutory and

consumer fraud, anti-trust, breach of fiduciary duty, unfair business or trade

practices, restitution, rescission, compensatory and punitive damages, injunctive or

declaratory relief, attorneys’ fees, interests, costs, penalties and any other claims,

whether or not alleged in the Action, whether known or unknown, suspected or

unsuspected, contingent or matured, under federal, state or local law, which the

Plaintiff and/or any Settlement Class Member had, now have or may in the future

have with respect to any conduct, acts, omissions, facts, matters, or transactions

asserted or relating to or arising out of the conduct, acts, omissions, facts, matters,

or transactions asserted in the Action by the Plaintiff and/or the Settlement Class

Members including, without limitation, causes of action for violations of federal or

state antitrust laws or Cal. Bus. & Prof. Code § 17200, et seq., Cal Bus. & Prof.

Code § 17000, et seq., and similar claims under the statutes and common law of

other states as well as claims for unjust enrichment.

a. Without in any way limiting the scope of the Release, this

Release covers, without limitation, any and all claims for attorneys’ fees, costs or

disbursements incurred by Class Counsel or any other counsel representing the

Plaintiff or Settlement Class Members, or any of them, in connection with or

related in any manner to the Action, the settlement of the Action, the


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administration of such settlement and/or the Released Claims as well as any and all

claims for incentive awards to Plaintiff.

b. The Defendant Releasees, on behalf of themselves and their

respective successors, assigns, past, present, and future parents, subsidiaries, joint

venturers, partnerships, related companies, affiliates, unincorporated entities,

divisions, groups, directors, officers, shareholders, employees, agents, attorneys,

representatives, servants, partners, executors, administrators, assigns, predecessors,

successors, descendants, dependents, and heirs, by operation of the Final Order and

Judgment are deemed to have fully released and forever discharged Plaintiff,

Settlement Class Members and Class Counsel from any claims arising out of the

investigation, filing, prosecution or resolution of the Action.

2. THE PLAINTIFF, THE SETTLEMENT CLASS MEMBERS AND

THE DEFENDANT RELEASEES EXPRESSLY ACKNOWLEDGE THAT

THEY ARE FAMILIAR WITH PRINCIPLES OF LAW SUCH AS SECTION

1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA, WHICH

PROVIDES:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MIGHT HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.


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TO THE EXTENT THAT CALIFORNIA OR OTHER LAW MAY BE

APPLICABLE TO THIS AGREEMENT, THE PARTIES HEREBY EXPRESSLY

AGREE THAT THE PROVISIONS, RIGHTS AND BENEFITS OF SECTION

1542 AND ALL SIMILAR FEDERAL OR STATE LAWS, RIGHTS, RULES OR

LEGAL PRINCIPLES OF ANY OTHER JURISDICTION THAT MAY BE

APPLICABLE HEREIN ARE HEREBY KNOWINGLY AND VOLUNTARILY

WAIVED AND RELINQUISHED TO THE FULLEST EXTENT PERMITTED

BY LAW SOLELY IN CONNECTION WITH UNKNOWN CLAIMS ARISING

FROM OR RELATING TO THE FACTS AND CIRCUMSTANCES ALLEGED

IN THE COMPLAINT, AND THE PARTIES HEREBY AGREE AND

ACKNOWLEDGE THAT THIS IS AN ESSENTIAL TERM OF THE RELEASE.

IN CONNECTION WITH THE RELEASE, THE PARTIES ACKNOWLEDGE

THAT THEY ARE AWARE THAT THEY MAY HEREAFTER DISCOVER

CLAIMS PRESENTLY UNKNOWN AND UNSUSPECTED OR FACTS IN

ADDITION TO OR DIFFERENT FROM THOSE WHICH THEY NOW KNOW

OR BELIEVE TO BE TRUE WITH RESPECT TO MATTERS RELEASED

HEREIN.

F. SETTLEMENT CONSIDERATION.

1. Defendants shall provide the following consideration in connection

with the Settlement:


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a. Settlement Fund. Subject to approval by the Court, the CHG

Defendants and the Kason Defendants or their designees shall each pay fifty

percent (50%) of their respective share of the Settlement Amount into the

Settlement Fund by wire transfer within fourteen (14) days after the Court’s entry

of the Preliminary Approval Order. The remaining fifty percent (50%) of the

respective shares Settlement Amount shall be paid into the Settlement Fund by

such Defendants within ten (10) days following the Effective Date of this

Agreement. The Settlement Fund shall be established at a financial institution

designated by Class Counsel, subject to the reasonable approval of Defendants, and

administered by the Administrator in accordance with the provisions of this

Agreement. In the event that the Court does not grant final approval of this

settlement, then any amounts in the Settlement Fund shall be returned to the

Defendants, proportionally to their respective payments, within ten (10) days,

except as provided for in Section H.1 of this Agreement (Settlement Fund

Disbursements).

b. Injunctive Relief. Defendants and all persons acting on their

behalf consent to the entry of an injunction in the general form of Exhibit E hereto.

G. SETTLEMENT FUND.

1. The Defendant Releasees shall have no liability or responsibility for

disbursements from, or administration of, the Settlement Fund. The Defendant


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Releasees shall not be liable for any costs or attorneys’ fees of Plaintiff or the

Indirect Purchaser Class Members, including but not limited to costs or expenses

of Plaintiff’s counsel, experts, consultants, agents or representatives, except as

provided for herein. Such costs and attorneys’ fees as approved by the Court shall

be paid out of the Settlement Fund. Defendant Releasees further shall not be liable

for any of the expenses of notice to the Indirect Purchaser Class or administration

of the Settlement Fund, except that all such expenses properly and reasonably

incurred shall be paid out of the Settlement Fund as set forth herein.

2. Class Counsel shall seek approval from the Court for payment of not

more than thirty percent (30%) of the Settlement Fund for attorneys’ fees, plus

litigation costs and expenses, and an additional amount to Plaintiff not exceeding

$2,500. Defendants agree that such sums are reasonable, and will not oppose the

Court’s awarding of such sums. The award by the Court of any particular amount

of attorneys’ fees, costs and expenses or payments to Plaintiff shall not affect the

binding nature of the Settlement and this Agreement by the Parties.

3. Subject to Court approval, Plaintiff and Class Counsel shall be

reimbursed and paid solely out of the Settlement Fund for all reasonable expenses

including, but not limited to, attorneys’ fees and past, current, or future litigation

expenses. Attorneys’ fees and expenses awarded by the Court shall be payable

from the Settlement Fund within 10 days after the Final Order and Judgment,


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notwithstanding the existence of any timely filed objections thereto, or potential

for appeal therefrom any collateral attack on the settlement or any part thereof,

subject to Class Counsel’s joint and several obligation to make appropriate refunds

or repayments to the Settlement Fund, if and when, as a result of any appeal and/or

further proceedings on remand, or successful collateral attack, the fee or cost

award is reduced or reversed. Defendants shall not be liable for any costs, fees, or

expenses of any of Plaintiff’s respective attorneys, experts, advisors, agents, or

representatives, but all such costs, fees, and expenses as approved by the Court

may be paid out of the Settlement Fund. In the event that attorneys’ fees or costs

are paid out of the Settlement Fund, and the Effective Date does not take place

Class Counsel shall reimburse all withdrawn attorneys’ fees and costs, except for

the reasonable costs of notice and administration, to the Settlement Fund prior to

the return of the Settlement Fund to Defendants.

4. Any escrow fees or charges shall be deducted from the Settlement

Fund. Defendants will not be responsible for any escrow fees or charges incurred

beyond its payment of the Settlement Amount. All interest earned on the

Settlement Fund shall become and remain part of the Settlement Fund. In the

event that the Effective Date does not take place or in the event that the Agreement

is rescinded, the Settlement Fund, including any and all interest that has accrued,

shall be immediately returned, in its entirety, to Defendants proportionally to the


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Defendants’ respective payments, except as provided for in Section H.1 of this

Agreement (Settlement Fund Disbursements).

H. SETTLEMENT FUND DISBURSEMENTS.

1. Disbursement for all reasonable costs and expenses associated with

providing notice of the settlement to the proposed Indirect Purchaser Class, all

reasonable expenses and costs associated with administering the settlement,

including claims administration, work with financial institutions and experts, and

consulting and advisory fees, Court-approved Notice, and any payments, costs and

expenses incurred in connection with taxation matters relating to the settlement and

this Agreement, shall be paid from the Settlement Fund following preliminary

approval and up to the Effective Date of Settlement without the prior approval of

the Court. In the event the Agreement is disapproved, rescinded, or otherwise

fails to become effective, all such amounts incurred as of the date of such

occurrence shall not be refundable to Defendants.

2. Except as provided for herein, Defendants shall have no

responsibility, financial obligation or liability whatsoever with respect to: (a) the

investment, distribution or administration of the Settlement Fund, including but not

limited to, the costs and expenses of such distribution and administration; (b) any

fees, costs or expenses of any of Plaintiff’s attorneys, experts, advisors, agents, or

representatives, with all such fees, costs and expenses as approved by the Court to


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be paid out of the Settlement Fund; or (c) the giving of notice of this settlement to

Indirect Purchaser Class Members, including, but not limited to, the expense and

costs of such notice.

3. The Parties to this Agreement and their counsel shall treat, and shall

cause the Claims Administrator to treat, the Settlement Fund as being at all times a

“qualified settlement fund” within the meaning of Treas. Reg. § 1.468B 1. The

Parties, their counsel, the Claims Administrator, and the Escrow Agent agree that

they will not ask the Court to take any action inconsistent with the treatment of the

Settlement Fund in such manner. In addition, the Claims Administrator and, as

required, the Parties shall timely make such elections as necessary or advisable to

carry out the provisions of this paragraph, including the “relation-back election”

(as defined in Treas. Reg. § 1.468B l(j)) back to the earliest permitted date. Such

elections shall be made in compliance with the procedures and requirements

contained in such regulations. It shall be the responsibility of the Claims

Administrator timely and properly to prepare and deliver the necessary

documentation for signature by all necessary parties and thereafter to cause the

appropriate filing to occur. All provisions of this Agreement shall be interpreted in

a manner that is consistent with the Settlement Fund being a “qualified settlement

fund” within the meaning of Treas. Reg. § 1.468B 1.


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I. SETTLEMENT FUND ELIGIBILITY.

1. After accounting for the costs of Attorneys’ fees, Costs and Expenses,

incentive payments, Claims Administration and Notice Costs, the distribution of

the remainder of the Settlement Fund will proceed a within ninety (90) days after

the Effective Date of the Settlement. The Settlement Fund shall be distributed in

accordance with the Plan of Allocation attached as Exhibit D to this Agreement.

2. If there are any funds remaining in the Settlement Fund after the

distributions completed in paragraph I.1 above, all such remaining funds shall be

distributed through cy pres distribution. All funds resulting from returned or un-

cashed checks shall remain in the Settlement Fund for one year, at which time the

funds will be distributed through cy pres distribution. In the event that all funds

in the Settlement Fund are paid to Indirect Purchaser Class Members, Defendants

will have no obligation to make a cy pres distribution under this Paragraph or as

part of the Settlement. The cy pres distribution shall be made as follows:

a. The Settling Parties agree that the funds remaining in the

Settlement Fund shall be distributed to no more than two organizations, one

selected by Plaintiff and one selected by Defendants. The Court will be requested

to approve these recipients as part of the Final Approval Order. The purpose of

such cy pres payments shall be directed to be consistent with or related to the

underlying allegations in the Lawsuit.


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b. If more than one organization is designated by the Parties, each

designated nonprofit organization shall receive an equal share of the cy pres

distribution.

c. The cy pres distribution shall be paid as soon as is practicable

following the final distribution of funds to the Indirect Purchaser Class Members.

J. TAXES.

1. The Administrator shall be solely responsible for filing all information

and other tax returns necessary to report any net taxable income earned by the

Settlement Fund and shall file all informational and other tax returns necessary to

report any income earned by the Settlement Fund and shall be solely responsible

for taking out of the Settlement Fund, as and when legally required, any tax

payments, including interest and penalties due on income earned by the Settlement

Fund. All taxes (including interest and penalties) due with respect to the income

earned by the Settlement Fund shall be paid from the Settlement Fund.

Defendants shall have no responsibility to make any filings relating to the

Settlement Fund or pay any taxes on the Settlement Fund, unless the settlement is

not consummated and the Settlement is returned to Defendants. In the event the

settlement is not consummated and the Settlement Fund is returned to Defendants,

Defendants shall be responsible for the payment of any taxes (including interest or

penalties) on said income, and the Administrator shall be obliged to apply for a


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refund of any taxes previously paid and, upon receipt of such refund, forward said

refund to Defendants.

K. OBJECTIONS AND EXCLUSIONS.

1. Any Class Member who does not request exclusion or opt out of the

Indirect Purchaser Class may object to the Settlement by timely filing with the

Court a written statement of objection. The Parties may request the Court to allow

the Parties to take the deposition of any person filing an objection to the

Settlement. To be timely, a written statement of an objection in appropriate form

must be filed with the Clerk of the Southern District of California, twenty-one (21)

days prior to the date set in the Notice of Final Fairness Hearing, and also served

on Class Counsel and Defendants’ Counsel so that it is received by that date. The

written statement of objection must set forth:

a. The title of the Action;

b. The objector’s full name, address, telephone number;

c. An explanation of the basis upon which the objector claims to

be a Class Member;

d. All grounds for the objection, accompanied by any legal

support for the objection known to the objector or his or her counsel;

e. The identity of all counsel representing the objector, if any;


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f. The identity of all counsel representing the objector, if any,

who will appear at the Final Fairness Hearing;

g. A list of all persons who will be called to testify by the objector

at the Final Fairness Hearing in support of the objection;

h. A statement confirming whether the objector intends to

personally appear and/or testify at the Final Fairness Hearing;

i. The objector’s signature or the signature of the objector’s duly

authorized attorney or other duly authorized representative (along with

documentation setting forth such representations).

2. Any Settlement Class Member may request to be excluded from the

Settlement by timely submitting to the Administrator a written statement of

exclusion. To be timely, a written statement of exclusion must be sent to the

Administrator with a postmark no later than twenty-one (21) days prior to the date

set in the Notice of Final Fairness Hearing. The written statement of exclusion

must set forth:

a. The title of the Action;

b. The person's full name, address, telephone number;

c. An explanation of the basis upon which the person claims to be

a Settlement Class Member;


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d. A statement confirming the person is requesting exclusion from

the settlement;

e. The person's signature or the signature of the person’s duly

authorized attorney or other duly authorized representative (along with

documentation setting forth such representations).

L. MISCELLANEOUS.

1. Gender and Plurals. As used in this Agreement, the masculine,

feminine, or neuter gender, and the singular or plural number, shall each be

deemed to include the others whenever the context so indicates.

2. Cooperation by the Parties. The Parties agree to cooperate with

each other and to take all steps necessary to seek and to obtain all Court approvals

required for final approval of the Agreement and to dismiss the Action with

prejudice, including taking all necessary steps in appropriate sequence to effect

final approval of the Settlement. The Parties shall jointly take any steps as may be

necessary or as may be request by the Court, and otherwise use their best efforts to

effectuate the Settlement provided for in this Agreement.

3. Obligation to Meet and Confer. Before filing any motion in the

Court raising a dispute arising out of or related to this Agreement, the Parties shall

consult with each other and certify to the Court in writing that they have so

consulted.


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4. Entire Agreement. This Agreement and its Exhibits, which are

incorporated into and considered part of this Agreement, constitute the entire

agreement between and among the Settling Parties with respect to the Settlement

of the Action. This Settlement shall not be construed more strictly against one

party than another merely because it may have been prepared by counsel for one of

the Settling Parties, it being recognized that, because of the arm’s length

negotiations resulting in the Settlement, all Settling Parties hereto have contributed

substantially and materially to the preparation of the Agreement. This Agreement

supersedes all prior negotiations and agreements and may not be modified or

amended expect by a writing signed by the Settling Parties.

The Exhibits to this Agreement are:

A. EXHIBIT A – PRELIMINARY APPROVAL ORDER

B. EXHIBIT B – SETTLEMENT NOTICE

C. EXHIBIT C – SUMMARY NOTICE

D. EXHIBIT D – PLAN OF ALLOCATION

E. EXHIBIT E – FORM OF INJUNCTION

F. EXHIBIT F—PRESS RELEASE

5. No Conflict Intended. Any inconsistency between the headings

used in this Agreement and the text of the paragraphs of this Agreement shall be


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resolved in favor of the text. Any inconsistency between this Agreement and the

Exhibits shall be resolved in favor of the text in the Exhibits.

6. Binding Effect. The Settlement shall be binding upon, and shall

inure to the benefit of the Plaintiff, the Settlement Class Members, the Defendant

Releasees, and the respective heirs, administrators, successors and assigns of each

of them. Except as provided in the foregoing sentence, nothing in this Agreement

is intended to create any legally enforceable rights in any other person or to make

any other person, including, but without limitation, any agreed upon recipient of cy

pres funds, a beneficiary of this Settlement.

7. Governing Law. This Agreement shall be construed, enforced, and

administered in accordance with the laws of the State of California, without

reference to its conflict of law principles.

8. Jurisdiction. The Court shall retain jurisdiction with respect to the

implementation and enforcement of the terms of the Settlement, and Plaintiff,

Defendants, and all Settlement Class Members consent to the jurisdiction of the

Court for purposes of implementing and enforcing the Settlement.

9. Counterparts. This Agreement may be executed in counterparts,

each of which shall be deemed to be an original, but all of which together

constitute one and the same instrument, even though all Parties do not sign the


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same counterparts. Original signatures are not required. Any signature submitted

by facsimile or through email of an Adobe PDF shall be deemed an original.

10. Modification and Amendment. This Agreement may be amended

or modified only by a written instrument signed by the parties or their respective

counsel.

11. Authority. Plaintiff and Defendants represent and warrant that the

persons signing this Agreement on their behalf have full power and authority to

bind every person, partnership, corporation or entity included within the definitions

of Plaintiff and Defendants to all terms of this Agreement. Any person executing

this Agreement in a representative capacity represents and warrants that he or she

is fully authorized to do so and to bind the party on whose behalf he or she signs

this Agreement to all of the terms and provisions of this Agreement.

12. Notice. Where this Agreement requires any party to provide notice

or any other communication or document to any other party, such notice,

communication, or document shall be provided by letter transmitted by facsimile

or overnight delivery or through email of an Adobe PDF to Counsel reflected on

the signature pages.


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IN WITNESS WHEREOF, the Plaintiff and Defendants have executed or

caused the Settlement Agreement to be executed, by themselves or their duly

authorized representatives or attorneys.

John Rigo d/b/a Altered Air

By:__________________

EMERSON POYTNER LLP

By:__________________

CONSUMER LAW GROUP OF CALIFORNIA

By:__________________

Kason Industries, Inc.,

By:__________________

Peter A. Katz

By:____________________

Component Hardware Group, Inc.

By:_________________________

Thomas Carr

By:___________________


IN \ryITNESS WHEREOF, the Plaintiff and Defendants have executed or

caused the Settlement Agreement to be executed, by themselves or their duly

authonzed representatives or attorneys.

John Rigo dlb/aAltered Air Kason Industries, Inc.,

By:

EMERSON POYTNER LLP

Peter A.Katz

By: By:

CONSUMER LAW GROUPCALIFORNIA

OF I Component Hardware Group, Inc.

gleR\" By:By:

Thomas Carr'*!t'

By: ,.,.

Page 33 of33


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EXHIBIT A

SETTLEMENT AGREEMENT

John Rigo d/b/a Altered Air, on Behalf of Himself and All Others Similarly Situated vs. Kason Industries, Inc., et al., Case No. 3:11-CV-00064-MMA (DTBx)


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-1- ORDER GRANTING MTN FOR PRELIMINARY APPROVAL OF CASE NO.: 3:11-CV-00064-MMA (DTBx) CLASS ACTION SETTLEMENT & DIRECTING DISSEMINATION OF CLASS NOTICE Error! Unknown document property name.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

JOHN RIGO D/B/A as ALTERED AIR, on Behalf of Himself and All Others

Similarly Situated, Plaintiff, v. KASON INDUSTRIES, INC.; PETER A. KATZ; COMPONENT HARDWARE GROUP, INC.; THOMAS CARR; and DOES 1-10, Defendants.

CASE NO. 3:11-CV-00064-MMA (DTBx) CLASS ACTION ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND DIRECTING DISSEMINATION OF CLASS NOTICE PROGRAM Courtroom: Hon. Michael M. Anello Complaint Filed: January 12, 2011

THIS MATTER having been brought before the Court by Plaintiff JOHN

RIGO dba ALTERED AIR, through Emerson Poynter LLP and The Consumer Law

Group of California (“CLGCA”) (together, “Plaintiffs’ Counsel”), and unopposed

by Defendants KASON INDUSTRIES, INC., PETER A. KATZ, COMPONENT

HARDWARE GROUP, INC. and THOMAS CARR (together “Defendants’),

through their attorneys, Sandler Lasry Laube Byer & Valdez, LLP, Sutherland

Asbill & Brennan, LLP, Kirkland & Ellis, LLP and Baker & McKenzie, LLP,


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-2- ORDER GRANTING PRELIMINARY APPROVAL OF CLASS CASE NO.: 3:11-CV-00064-MMA (DTBx) ACTION SETTLEMENT & DIRECTING DISSEMINATION OF CLASS NOTICE Error! Unknown document property name.

pursuant to Fed. R. Civ. P. 23(e), for an Order granting preliminary approval of a

class action settlement, and directing the dissemination of class notice (the

“Motion”); and the Court having reviewed the submissions of the parties, having

held a hearing on _____________, 2012, and having found that the parties are

entitled to the relief they seek, and for good cause shown;

IT IS ORDERED that the Motion is GRANTED, and it is further ORDERED

as follows:

1. The proposed Class Settlement Agreement and Release dated August

__, 2012 (the “Settlement Agreement”), submitted with the Motion, is preliminarily

approved.1 The Court finds that the terms of Settlement Agreement fall “within the

range of possible approval” sufficient to warrant sending notice thereof to the

Settlement Class. Federal Judicial Center, Manual for Complex Litigation (“MCL

4th”) §21.632 (4th

2.

ed. 2004). This finding that the settlement is reasonable is subject

to a final determination to be made after a Fairness Hearing, as set forth below.

Conditional Class Certification For Settlement Purposes

1 Except as otherwise specified herein, all defined terms set forth in this Order shall have the same meaning as that set forth in the Settlement Agreement.

: Based upon

the submissions of the Parties, for purposes of the settlement only, the Court finds

with respect to the Settlement Class that: (a) the Settlement Class Members are so

numerous as to make joinder of them impracticable; (b) there are questions of law

and fact common to the Settlement Class, and such questions predominate over any

questions affecting only individual Settlement Class Members; (c) the Class

Representative’s claims and the defenses asserted thereto are typical of the claims

of Settlement Class Members and the defenses asserted thereto; (d) the Class

Representative and Settlement Class Counsel have fairly and adequately protected

the interests of Settlement Class Members throughout this action; and (e) a class

action is superior to all other available methods for fairly and efficiently resolving

this action, considering: (i) the interests of the Settlement Class Members in


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individually controlling the prosecution of separate actions; (ii) the extent and

nature of the litigation concerning the controversy already commenced by

Settlement Class Members; (iii) the desirability and undesirability of concentrating

the litigation of these claims in a particular forum; and (iv) the difficulties likely to

be encountered in the management of a class action. Based on such findings, the

Court preliminarily approves Plaintiff as representative of the Settlement Class and

conditionally certifies a Settlement Class pursuant to Fed. R. Civ. P. 23(a) and

(b)(3) comprised of all persons or entities (except those provided under the

Settlement Agreement), including, but not limited to, individuals, companies,

corporations, partnerships, joint ventures, agents, principals, and employees, who

purchased Food Service Equipment Component Hardware or Food Service

Equipment that incorporated Food Service Equipment Component Hardware

anywhere in the United States from a person or entity other than the Defendants

from February 1, 2004, through February 11, 2008.

3. Emerson Poynter LLP and CLGCA are appointed as Settlement Class

Counsel.

4. A hearing (the “Fairness Hearing”) shall be held before this Court on

____________, 2012 at __________ ___.m., to determine whether (a) this action

finally meets each of the prerequisites for class certification set forth in Fed. R. Civ.

P. 23(a), and may properly be maintained as a class action on behalf of the

Settlement Class under Fed. R. Civ. P. 23(b)(3); (b) the Settlement Agreement

should receive final approval as fair, reasonable, adequate, and in the best interests

of the Settlement Class; (c) orders should be entered granting final approval of the

Settlement Agreement, entering final judgment and dismissing the First Amended

Complaint (Dkt. No. 26) in the above-captioned action with prejudice (“Final

Settlement Order and Judgment”), consistent with the terms provided for in the

Settlement Agreement; and (d) the application of Settlement Class Counsel for the

payment of attorneys’ fees and expenses, and payment to the Class Representative,


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is reasonable and should be approved. The Fairness Hearing may be postponed,

adjourned or continued by further order of this Court, without further notice to the

Settlement Class.

5. At the Fairness Hearing, the Court will consider any timely and

verified objections presented by Settlement Class Members and the Parties’

responses to any such objections.

6. Any Settlement Class Member may object to the fairness,

reasonableness or adequacy of the proposed settlement. Any member of the

Settlement Class who so objects may (but need not) appear at the Fairness Hearing,

in person or through counsel, to show cause why the proposed settlement should

not be approved as fair, adequate and reasonable. Each Settlement Class Member

who wishes to object to any term of the Settlement Agreement must do so in writing

by filing a written objection with the Clerk of the Court and mailing it to counsel

for the Parties. Any such objection must be filed with the Clerk of the Court and

received by counsel for the Parties no later than __ days before the date of the

Fairness Hearing. The objection must include the types and date(s) or approximate

date(s) of the Settlement Class Member’s purchase(s) of Food Service Equipment

Component Hardware or Food Service Equipment that incorporated Food Service

Equipment Component Hardware and copies of any materials that will be submitted

to the Court or presented at the Fairness Hearing. The objection must be signed by

the Settlement Class Member and must clearly state in detail the legal and factual

grounds for objection; must include the Settlement Class Member’s name, address,

and, if available, telephone number; and, if represented by counsel, counsel’s

name, address, and telephone number. All objections that fail to satisfy the

requirements of this paragraph or that are not properly and timely submitted will

not be considered by this Court and will be deemed waived, and those Settlement

Class Members shall be bound by the final determination of this Court.


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7. Any Person included within the Settlement Class who wishes to be

excluded from membership in the Settlement Class must do so in writing by

mailing a request for exclusion from the Settlement Class to the Settlement

Administrator, so that such request is postmarked no later than 21 days before the

date of the Fairness Hearing. The request must set forth (a) the title of the Action;

(b) the person’s full name, address and telephone number; (c) an explanation of the

basis upon which the person claims to be a Settlement Class Member; (d) a

statement confirming the person is requesting exclusion from the settlement; and (e)

the person’s signature or the signature of the person’s duly authorized attorney or

other duly authorized representative (along with documentation setting forth such

representations).. Any Person within the Settlement Class who wishes to be

excluded from the Settlement Class can only opt out for himself or herself and,

except for minors, cannot opt out for any other Person, nor can any Person within

the Settlement Class authorize another Person to opt out on his or her behalf. Any

request for exclusion that fails to satisfy the requirements of this paragraph or that

is not properly and timely submitted, as required above, shall not be effective. Such

Person shall be deemed to have waived all rights to opt out of the Settlement Class,

and shall be deemed a Settlement Class Member for all purposes pursuant this

Order.

8. The Court finds that the manner and content of the settlement notice

program specified in the Settlement Agreement will provide the best notice

practicable to the Settlement Class under the circumstances. All costs incurred in

connection with the preparation and dissemination of any notices to the Settlement

Class shall be borne by Defendants and be paid out of the Settlement Fund, subject

to the provisions of the Settlement Agreement.

9. If the Settlement Agreement is finally approved, the Court shall enter a

separate order finally approving the Settlement Agreement, entering judgment and

dismissing the Corrected Complaint with prejudice consistent with the terms of the


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Settlement Agreement. Such order and judgment shall be fully binding with respect

to Plaintiff, all members of the Settlement Class and the Defendant Releasees.

10. In the event that the proposed settlement provided for in the

Settlement Agreement is not approved by this Court, or entry of the final order and

judgment set forth herein does not occur for any reason, then the Settlement

Agreement, all drafts, negotiations, discussions, and documentation relating thereto,

and all orders entered by this Court in connection therewith shall become null and

void and all monies (except for incurred settlement notice and administrative

costs) returned to Defendants by the Settlement Administrator. In such event,

the Settlement Agreement and all negotiations and proceedings relating thereto

shall be withdrawn without prejudice to the rights of the Parties, who shall be

restored to their respective positions as of the date of the execution of the Settlement

Agreement.

11. The Court hereby appoints Kurstman Carson Consultants LLC as the

Settlement Administrator to perform the duties set forth in the Settlement

Agreement in accordance with the schedule set forth in this Order. The dates of

performance are as follows:

(a) The Settlement Notice shall be posted on www.

kasonsettlement.com, or such other domain as agreed to by the

Parties, within 20 days of entry of this Order. A copy of the

Settlement Agreement shall be made available to the public through a

link on the Settlement Website, or by calling a toll free number to be

established by the Settlement Administrator. This website shall be

operational no later than 10 days after entry of this Order.

(b) Beginning no later than 20 days of entry of this Order, or

at the earlier or later date of publication, the Summary Notice shall be

published one time in the following magazine publications:

A. Nation’s Restaurant News


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B. Restaurant Hospitality

C. Food Service Director

D. Food Management

E. Food Service Equipment & Supplies

F. Food Service Equipment Reports

(c) Within 20 days from the date of entry of this Order, the

Settlement Administrator shall disseminate the Summary Notice to

those Settlement Class Members who the Parties are able to identify

through reasonable efforts and for whom mailing addresses may be

found.

(d) Within 10 days of entry of this Order, the Settlement

Administrator shall provide to counsel for the Parties for comment

any proposed voice prompt recordings or scripts that the Settlement

Administrator may use to answer any questions Settlement Class may

have regarding the Settlement, either electronically or live. Should

the Parties not be able to resolve their differences, the Parties agree to

submit the dispute to the Magistrate Judge assigned to this action for

resolution.

(e) Within 20 days of entry of this Order, the Settlement

Administrator shall establish a dedicated, toll-free telephone number

that members of the Settlement Class can call to hear information

regarding the Settlement. This toll-free number will be available

through the end of the claims submission period. The Settlement

Administrator shall also place information regarding the status of the

claims submission period on the settlement website, continuing until

the end of the claims submission period.

/ / /


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(f) The Parties shall file and serve papers in support of final

approval of the Settlement, including any requested payment of

attorneys’ fees, representative payments, costs and litigation expenses,

by ______________, 2012, and any responses to any objections that

may be filed are due by ____________, 2012.

(g) The Fairness Hearing shall be held on __________, 2012

at ___.m.

12. This Court hereby enters a preliminary injunction barring and

enjoining all Settlement Class Members from bringing, filing, commencing,

prosecuting, continuing to prosecute, maintaining, intervening in, participating in,

or receiving any benefits from any other lawsuit, arbitration, or administrative,

regulatory, or other proceeding in law or equity that asserts, arises from, concerns,

or is in any way related to the Released Claims, until such time as this Court has

ruled on the fairness of the settlement terms following the Fairness Hearing. This

injunction shall be vacated without further court order if the settlement is not finally

approved. DATED: , 2012 Hon. MICHAEL M. ANELLO U.S. District Court Judge


EXHIBIT B




Questions? Call the Settlement Administrator at 1-888-XXX-XXXX or Visit www.KasonSettlement.com 1

UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA JOHN RIGO v. KASON INDUSTRIES, INC.,

et al. CIVIL ACTION NO.: 3:11-cv-000649-MMA (DTBx)

NOTICE OF CLASS ACTION SETTLEMENT

IF YOU HAVE PURCHASED CERTAIN TYPES OF FOOD SERVICE EQUIPMENT COMPONENT HARDWARE MANUFACTURED BY KASON INDUSTRIES, INC. OR COMPONENT HARDWARE GROUP,

INC. PLEASE READ THIS NOTICE. YOU MAY BE ENTITLED TO A CASH REFUND.

Key Dates for Settlement Class Members Last Day to Opt Out of Settlement , 2012 Last Day to Object to Settlement , 2012 Final Fairness Hearing Before the Hon. Michael M. Anello @ 9:00 a.m.

Last Day to Submit Claims , 2012 1. Why is this Notice Being Provided to Me? Plaintiff John Rigo in the above lawsuit (the “Lawsuit”) has reached a settlement of the lawsuit against Kason Industries, Inc. Peter A. Katz, Component Hardware Group, Inc. and Thomas Carr (“Defendants”), for himself and also on behalf of everyone else (other than certain persons affiliated with Defendants or the Court) who purchased certain types of food service equipment component hardware manufactured by Kason Industries, Inc. or Component Hardware Group, Inc. between February 1, 2004 through February 11, 2008. A list of the products in question can be reviewed by accessing www.KasonSettlement.com/ProductList. The purpose of this Notice is to: (1) inform you of the terms of a proposed settlement and the benefits available to you under the settlement, (2) inform you how this Lawsuit and the settlement may affect your legal rights, (3) advise you of the steps you must take if you want to object to or exclude yourself from the Settlement Class, and (4) advise you of the steps that you must take if you want to receive benefits under the settlement, which includes submitting a Claim Form.

2. What is the Lawsuit About? Plaintiff filed the Lawsuit alleging that Defendants conspired to fix prices for food service equipment component hardware manufactured by them (but not purchased directly from these two companies), in violation of federal and state anti-trust and unfair competition laws. The Lawsuit seeks damages and restitution of funds that Plaintiff and potential class members paid, an Order enjoining Defendants from engaging in any conduct that violates such laws, attorneys’ fees, and costs of suit.

Defendants deny these claims, have asserted numerous defenses, and have vigorously defended the Lawsuit. The Court has made no determination about the correctness or validity of any of the Plaintiff’s contentions or any

of Defendants' defenses in the Lawsuit. Instead, the parties have entered into a Settlement Agreement to end the time, expense, and uncertainty of this litigation.

3. What are the Settlement Terms? The Court has preliminarily approved a settlement on the following terms, for the benefit of each Settlement Class Member who chooses to participate in the settlement:

A. Compensation to each Settlement Class Member: For each Settlement Class Member who does not request to be excluded from (in other words, “opt-out” of) the Settlement Class and submits a Claim, they can receive a cash refund for the purchase price of such items based on a Plan of Allocation, which can be reviewed at the settlement website listed below. For those who purchased covered components, they can make a claim for the full purchase price of the item, and for those who purchase products that contained covered components, they can make a claim for 1.4% of the purchased price of that product. If you are not sure whether you purchased an affected product, for a list of covered products or to download or submit a Claim Form, visit www.KasonSettlement.com. There shall be a total settlement fund for paying these claims of $720,000, less attorney’s fees and costs, including settlement administration costs. If the amount of Claims submitted exceeds the amount of remaining settlement funds, such Claims shall be prorated by (1) dividing the remaining settlement funds by the total value of valid Claims submitted, (2) applying the percentage from the above calculation to reduce the total value of an individual Claimants' refund, and (3) rounding up the reduced Claim value to the nearest dollar. Once Claims reach the amount of this total value cap, Defendants shall have no further obligation to provide additional compensation consistent with the above proration formula. Such a Claim can be submitted electronically at www.KasonSettlement.com or by mailing the completed Claim Form to the address listed in Section 11 below. If you are not sure whether you purchased an affected product, please visit this website for a list of



covered products. To download or submit a Claim Form, visit www.KasonSettlement.com/claim. You may also request to have a Claim Form mailed to you by calling 1-888-XXX_XXXX. The deadline for submitting a Claim is ___________, 2012.

If any funds are remaining after Claims have been paid, any unclaimed funds shall not return to Defendants but shall be contributed to charitable organizations to be approved by the Court.

B. Injunctive Relief. Defendants have agreed to act in compliance with all applicable state and federal anti-trust laws and not engage in any anti-competitive conduct that might raise prices for food service equipment component hardware. This injunctive relief shall be in place for five years from when the settlement becomes effective and the Court shall retain jurisdiction to enforce this injunction.

C. Payment Procedure. If the Court approves this settlement, the cash refunds will be distributed on or before the later of (1) 30 days after the Claims Submission Period is over, (2) 10 days after the time to appeal the trial court’s decision overruling an objection to approval of the settlement has expired without the filing of such an appeal, presuming a person or entity objects to the approval of the settlement, or (3) if a person objects to the approval of the settlement and timely files an appeal, 30 days after the date that the trial court's entry of Judgment is affirmed in its entirety and not subject to further appellate review. Check back at www.KasonSettlement.com for an update on when the refunds will be issued. In the event that your address and/or contact information changes in the meantime, you should provide your updated contact information and address to the company administering the settlement at the address set forth in Section 11 below.

D. Release of Claims. If you do not opt out of the settlement, you will be deemed to have fully and finally waived and released the following claims. The phrase “Released Claims” in the Settlement Agreement refers to any and all claims, actions, causes of action, rights, demands, suits, debts, liens, contracts, agreements, offsets or liabilities, including but not limited to tort claims, claims for breach of contract, breach of the duty of good faith and fair dealing, breach of statutory duties, actual or constructive fraud, misrepresentations, fraudulent inducement, statutory and consumer fraud, anti-trust, breach of fiduciary duty, unfair business or trade practices, restitution, rescission, compensatory and punitive damages, injunctive or declaratory relief, attorneys’ fees, interests, costs, penalties and any other claims, whether or not alleged in the Lawsuit and arising out of the claims asserted in the Lawsuit whether known or unknown, alleged in the Lawsuit, suspected or unsuspected, contingent or matured, under federal, state or local law, which the Plaintiff and/or any Settlement Class Member had, now have or may in the future have with respect to any conduct, acts, omissions, facts, matters, or transactions asserted or relating to or arising out of the conduct, acts, omissions, facts, matters, or transactions asserted in the Action by the Plaintiff and/or the Settlement Class Members including, without limitation, causes of action for violations of federal or state antitrust laws or Cal. Bus. & Prof. Code § 17200, et seq., Cal Bus. & Prof. Code § 17000, et seq., and similar claims under the statutes and common law of other states as well as claims for unjust enrichment, and any and all claims, damages, suits, demands, liabilities, judgments, losses, and causes of action as asserted in the Complaint (a copy of that Complaint can be viewed at www.KasonSettlement.com/court). The Court shall approve the release of all claims relating to the allegations in the Complaint as defined above.

E. Attorneys’ Fees and Costs. You will not be required to pay any attorneys’ fees or costs if you remain in this Lawsuit. An award of attorneys’ fees and costs will be determined by the Court, but in no event shall such award exceed 30% of the Settlement Fund plus costs, which shall be awarded based on a combination of a percentage of overall fund and lodestar/multiplier and approach. Plaintiff’s Counsel are also requesting the Plaintiff receive an additional amount for acting as class representative of up to $2,500, which is also subject to Court approval. These amounts were only negotiated after the other material settlement terms were agreed to between the parties.


http://www.krosslandsettlement.com/claim�


4. Effect of Not Opting Out. Unless you opt out of (i.e., you request to be excluded from) the Settlement Class as set forth below, you will automatically be in the Settlement Class. If you remain a member of the Settlement Class, you will be bound by the Court’s Order finally approving this settlement and the Judgment entered by the Court. Settlement Class Counsel caution that if you participate in this settlement and do not opt-out, you shall be deemed to have released Defendants from the Released Claims as described in Section 3.D above.

5. What Has Occurred in the Lawsuit? This Lawsuit was filed on January 12, 2011and has been the subject of motion practice, with the Court upholding the Complaint on July 19, 2011. The Parties have conducted formal and informal discovery, and the exchange and analysis of a significant number of confidential, non-public documents. The parties, through their respective counsel, have engaged in extensive arm’s length negotiations in reaching this settlement among the parties.

6. Who Represents the Settlement Class? Settlement Class Counsel are:

EMERSON POYNTER LLP

William Crowder

500 President Clinton Avenue, Suite 305 Little Rock, AR 72201

The Consumer Law Group Alan M. Mansfield 10200 Willow Creek Rd., Suite 160 San Diego, California 92131

7. The Settlement Agreement. If you would like to obtain a complete copy of the Settlement Agreement and the exhibits, you may review them at www.KasonSettlement.com.

8. Is the Settlement Final? Not yet. The Final Fairness Hearing will be held on ______, 2012, at 9:00 a.m. at the following address:

United States District Judge Michael M. Anello Southern District of California 940 Front Street San Diego, California 92101-8900

This settlement will not be final or take effect unless and until: (A) it is finally approved by the Court after the Final Fairness Hearing and a Final Order and Judgment have been entered by the Court, and (1) the applicable period for the appeal of the Final Order and Judgment has expired without any appeals having been filed, or (2) all such appeals have been dismissed; or (B) the Ninth Circuit Court of Appeals has entered a final judgment affirming the Final Order and Judgment, which (1) is no longer subject to any further appellate challenge, or (2) has been affirmed by the United States Supreme Court. Counsel do not know at this time if any objections or appeals will be filed. Check back periodically at www.KasonSettlement.com for an update on the status of these proceedings.

9. If the Court Finally Approves the Settlement, What Will Happen to Any Claims I May Have against Defendants? If the settlement receives final judicial approval, it will result in a release by Plaintiff and all Settlement Class Members of all Released Claims, which are described in Section 3.D of this Notice. This means that if you do not exclude yourself from the Settlement Class, you will not be able to sue, or join another lawsuit against, Defendants for the claims described in that Section.

10. Why is Counsel Recommending the Class Settlement? Plaintiff and Settlement Class Counsel are supporting this settlement based on the fairness of the settlement in terms of providing refunds to Settlement Class Members of the amounts they were likely overcharged on average, the risks of and uncertainty at trial and/or appeal, and the delays associated with such litigation. Plaintiff and Settlement Class Counsel reached this settlement after weighing the risks and benefits to the Settlement Class of this settlement as compared to continuing the litigation. The factors that counsel considered included the uncertainty associated with continued litigation, including various legal issues that have not yet been determined by the Court. Counsel balanced these and other risks, including Defendants’ financial condition, in determining that the settlement is fair, reasonable and adequate in light of all the circumstances, and is in the best interests of the Settlement Class considering the substantial benefits provided to Settlement Class Members under this settlement.

11. What If I Do Not Want to Participate in the Settlement? You will be bound by the Judgment entered in the Lawsuit unless you submit a valid and timely request for exclusion (an “opt-out request”) from the Settlement Class. If you wish to be excluded from the Settlement Class, you must send an opt-out request by mail to the Settlement



Administrator. The opt-out request must be postmarked no later than ______, 2012 and mailed to the following address:

Rigo v. Kason Industries, Inc. et al c/o KCC P.O. Box XXXX Novato, CA XXXXX

To be valid, an opt-out request must (a) refer to the “Kason Settlement” and provide the names of the products you purchased, and the location and approximate dates of purchase; (b) identify the name and address of the individual who is opting out and state your wish to be excluded from the Settlement Class; and (c) state that such person is authorized to opt out of the Settlement Class. If you opt out, you will not be bound by the Court’s Final Order and Judgment and you will not waive or release any of the Released Claims asserted in the Lawsuit, but you will not be entitled to receive any benefit or monetary relief under this settlement. If you choose not to opt out, your interests will be represented by Plaintiff through the attorneys listed in Section 6 above.

12. Right to Object to the Settlement. Any member of the Settlement Class has the right to object to the proposed settlement and may appear personally or through counsel at the Fairness Hearing to be held on _______, 2012, and object to approval of the settlement. Even if you object to the settlement, you may still be entitled to participate in the settlement. In order to be heard or to have papers or briefs considered by the Court, any objecting Settlement Class Member must file, by ________, 2012, an original of the Settlement Class Member’s objection with the Court at the address listed in Section 8. The objection must include: (a) the case name and case number; (b) a list of all available names of the products that were purchased by the Settlement Class Member and the approximate date and location of such purchase(s); (c) attach copies of any materials that will be submitted to the Court or presented at the Fairness Hearing; (d) be signed by the Settlement Class Member; and (e) state in detail: (i) the legal and factual ground(s) for the objection, (ii) the Settlement Class Member’s name, address and, if available, telephone number, and (iii) if represented by counsel, such counsel’s name, address and telephone number. Any objecting Settlement Class Member who fails to submit a timely written objection shall waive and forfeit any and all rights that he or she may have to appear separately and/or object, and shall be bound by all the terms of the settlement, release and by all proceedings, orders and judgments in this Lawsuit.

Copies of all documents filed with the Clerk of the Court must also be sent to the following counsel:

Settlement Class Counsel

THE CONSUMER LAW GROUP Alan M. Mansfield, Esq. 10200 Willow Creek Rd., Suite 160 San Diego, CA 92131

Counsel for Defendants

KIRKLAND & ELLIS, LLP Christopher T. Casamassima, Esq. 333 South Hope Street Los Angeles, CA 90071 BAKER & MCKENZIE, LLP Colin H. Murray, Esq. Two Embarcadero Center, 11th Floor San Francisco, CA 94111 SUTHERLAND, ASBILL & BRENNAN LLP Joshua A. Mayes, Esq. 999 Peachtree Street, NE Atlanta, GA 30309 SANDLER LASRY LAUBE BYER & VALDEZ LLP Richard M. Valdez, Esq. 402 W. Broadway, Suite 1700 San Diego, CA 92101

IF YOU DO NOT OPPOSE THE PROPOSED SETTLEMENT, YOU NEED NOT APPEAR AT THE FINAL FAIRNESS HEARING OR FILE ANY PAPERS. IF YOU FILE AN OBJECTION, IT WILL BE CONSIDERED BY THE COURT. YOU NEED NOT APPEAR AT THE FINAL FAIRNESS HEARING.



13. Resolution of Disputes. If there is a dispute regarding your settlement amount, or any other aspect of your participation in the settlement, this dispute shall be decided by the Judge before which the Lawsuit is pending or the assigned Magistrate Judge if the dispute cannot be informally resolved.

14. Where You Can Obtain Further Information. If you want additional information about the Lawsuit and this settlement that is not answered or available at www.KasonSettlement.com, you should contact the Settlement Administrator at the following toll-free telephone number: 1-XXX-XXX-XXX.

DO NOT CONTACT THE COURT OR DEFENDANTS’ COUNSEL, OR DEFENDANTS DIRECTLY ABOUT THIS LAWSUIT.


EXHIBIT B – revised August 31, 2012





UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA JOHN RIGO v. KASON INDUSTRIES, INC.,

et al. CIVIL ACTION NO.: 3:11-cv-000649-MMA (DTBx)

NOTICE OF CLASS ACTION SETTLEMENT

IF YOU HAVE PURCHASED CERTAIN TYPES OF FOOD SERVICE EQUIPMENT COMPONENT HARDWARE MANUFACTURED BY KASON INDUSTRIES, INC. OR COMPONENT HARDWARE GROUP, INC. OR

PURCHASED FOOD SERVICE EQUIPMENT THAT INCORPORATED SUCH FOOD SERVICE EQUIPMENT COMPONENT HARDWARE PLEASE READ THIS NOTICE. YOU MAY BE ENTITLED TO A CASH REFUND.

Key Dates for Settlement Class Members

Last Day to Opt Out of Settlement , 2012

Last Day to Object to Settlement , 2012 Final Fairness Hearing Before the Hon. Michael M. Anello @ 9:00 a.m.

Last Day to Submit Claims , 2012 1. Why is this Notice Being Provided to Me? Plaintiff John Rigo in the above lawsuit (the “Lawsuit”) has reached a settlement of the lawsuit against Kason Industries, Inc. Peter A. Katz, Component Hardware Group, Inc. and Thomas Carr (“Defendants”), for himself and also on behalf of everyone else (other than certain persons affiliated with Defendants or the Court) who purchased certain types of food service equipment component hardware manufactured by Kason Industries, Inc. or Component Hardware Group, Inc. or purchased food service equipment that incorporated such food service equipment component hardware between February 1, 2004 and February 11, 2008. A list of the products in question can be reviewed by accessing www.KasonSettlement.com/ProductList. The purpose of this Notice is to: (1) inform you of the terms of a proposed settlement and the benefits available to you under the settlement, (2) inform you how this Lawsuit and the settlement may affect your legal rights, (3) advise you of the steps you must take if you want to object to or exclude yourself from the Settlement Class, and (4) advise you of the steps that you must take if you want to receive benefits under the settlement, which includes submitting a Claim Form.

2. What is the Lawsuit About? Plaintiff filed the Lawsuit alleging that Defendants conspired to fix prices for food service equipment component hardware manufactured by them (but not purchased directly from these two companies), in violation of federal and state anti-trust and unfair competition laws. The Lawsuit seeks damages and restitution of funds that Plaintiff and potential class members paid, an Order enjoining Defendants from engaging in any conduct that violates such laws, attorneys’ fees, and costs of suit.

Defendants deny these claims, have asserted numerous defenses, and have vigorously defended the Lawsuit. The Court has made no determination about the correctness or validity of any of the Plaintiff’s contentions or any of

Defendants' defenses in the Lawsuit. Instead, the parties have entered into a Settlement Agreement to end the time, expense, and uncertainty of this litigation.

3. What are the Settlement Terms? The Court has preliminarily approved a settlement on the following terms, for the benefit of each Settlement Class Member who chooses to participate in the settlement:

A. Compensation to each Settlement Class Member: For each Settlement Class Member who does not request to be excluded from (in other words, “opt-out” of) the Settlement Class and submits a Claim, they can receive a cash refund for the purchase price of such items based on a Plan of Allocation, which can be reviewed at the settlement website listed below. For those who purchased covered components, they can make a claim for the full purchase price of the item, and for those who purchase products that contained covered components, they can make a claim for 1.4% of the purchased price of that product. If you are not sure whether you purchased an affected product, for a list of covered products or to download or submit a Claim Form, visit www.KasonSettlement.com. There shall be a total settlement fund for paying these claims of $720,000, less attorney’s fees and costs, including settlement administration costs. If the amount of Claims submitted exceeds the amount of remaining settlement funds, such Claims shall be prorated by (1) dividing the remaining settlement funds by the total value of valid Claims submitted, (2) applying the percentage from the above calculation to reduce the total value of an individual Claimants' refund, and (3) rounding up the reduced Claim value to the nearest dollar. Once Claims reach the amount of this total value cap, Defendants shall have no further obligation to provide additional compensation consistent with the above proration formula. Such a Claim can be submitted electronically at www.KasonSettlement.com or by mailing the completed Claim Form to the address listed in Section 11 below. If you are not sure whether you purchased an affected product, please visit this website for a list of covered products. To download or submit a Claim Form, visit www.KasonSettlement.com/claim. You may


http://www.krosslandsettlement.com/claim�


also request to have a Claim Form mailed to you by calling 1-888-XXX_XXXX. The deadline for submitting a Claim is ___________, 2012.

If any funds are remaining after Claims have been paid, any unclaimed funds shall not return to Defendants but shall be contributed to charitable organizations to be approved by the Court.

B. Injunctive Relief. Defendants have agreed to act in compliance with all applicable state and federal anti-trust laws and not engage in any anti-competitive conduct that might raise prices for food service equipment component hardware. This injunctive relief shall be in place for five years from when the settlement becomes effective and the Court shall retain jurisdiction to enforce this injunction.

C. Payment Procedure. If the Court approves this settlement, the cash refunds will be distributed on or before the later of (1) 30 days after the Claims Submission Period is over, (2) 10 days after the time to appeal the trial court’s decision overruling an objection to approval of the settlement has expired without the filing of such an appeal, presuming a person or entity objects to the approval of the settlement, or (3) if a person objects to the approval of the settlement and timely files an appeal, 30 days after the date that the trial court's entry of Judgment is affirmed in its entirety and not subject to further appellate review. Check back at www.KasonSettlement.com for an update on when the refunds will be issued. In the event that your address and/or contact information changes in the meantime, you should provide your updated contact information and address to the company administering the settlement at the address set forth in Section 11 below.

D. Release of Claims. If you do not opt out of the settlement, you will be deemed to have fully and finally waived and released the following claims. The phrase “Released Claims” in the Settlement Agreement refers to any and all claims, actions, causes of action, rights, demands, suits, debts, liens, contracts, agreements, offsets or liabilities, including but not limited to tort claims, claims for breach of contract, breach of the duty of good faith and fair dealing, breach of statutory duties, actual or constructive fraud, misrepresentations, fraudulent inducement, statutory and consumer fraud, anti-trust, breach of fiduciary duty, unfair business or trade practices, restitution, rescission, compensatory and punitive damages, injunctive or declaratory relief, attorneys’ fees, interests, costs, penalties and any other claims, whether or not alleged in the Lawsuit and arising out of the claims asserted in the Lawsuit whether known or unknown, alleged in the Lawsuit, suspected or unsuspected, contingent or matured, under federal, state or local law, which the Plaintiff and/or any Settlement Class Member had, now have or may in the future have with respect to any conduct, acts, omissions, facts, matters, or transactions asserted or relating to or arising out of the conduct, acts, omissions, facts, matters, or transactions asserted in the Action by the Plaintiff and/or the Settlement Class Members including, without limitation, causes of action for violations of federal or state antitrust laws or Cal. Bus. & Prof. Code § 17200, et seq., Cal Bus. & Prof. Code § 17000, et seq., and similar claims under the statutes and common law of other states as well as claims for unjust enrichment, and any and all claims, damages, suits, demands, liabilities, judgments, losses, and causes of action as asserted in the Complaint (a copy of that Complaint can be viewed at www.KasonSettlement.com/court). The Court shall approve the release of all claims relating to the allegations in the Complaint as defined above.

E. Attorneys’ Fees and Costs. You will not be required to pay any attorneys’ fees or costs if you remain in this Lawsuit. An award of attorneys’ fees and costs will be determined by the Court, but in no event shall such award exceed 30% of the Settlement Fund plus costs, which shall be awarded based on a combination of a percentage of overall fund and lodestar/multiplier and approach. Plaintiff’s Counsel are also requesting the Plaintiff receive an additional amount for acting as class representative of up to $2,500, which is also subject to Court approval. These amounts were only negotiated after the other material settlement terms were agreed to between the parties.



4. Effect of Not Opting Out. Unless you opt out of (i.e., you request to be excluded from) the Settlement Class as set forth below, you will automatically be in the Settlement Class. If you remain a member of the Settlement Class, you will be bound by the Court’s Order finally approving this settlement and the Judgment entered by the Court. Settlement Class Counsel caution that if you participate in this settlement and do not opt-out, you shall be deemed to have released Defendants from the Released Claims as described in Section 3.D above.

5. What Has Occurred in the Lawsuit? This Lawsuit was filed on January 12, 2011and has been the subject of motion practice, with the Court upholding the Complaint on July 19, 2011. The Parties have conducted formal and informal discovery, and the exchange and analysis of a significant number of confidential, non-public documents. The parties, through their respective counsel, have engaged in extensive arm’s length negotiations in reaching this settlement among the parties.

6. Who Represents the Settlement Class? Settlement Class Counsel are:

EMERSON POYNTER LLP William Crowder 500 President Clinton Avenue, Suite 305 Little Rock, AR 72201

The Consumer Law Group Alan M. Mansfield 10200 Willow Creek Rd., Suite 160 San Diego, California 92131

7. The Settlement Agreement. If you would like to obtain a complete copy of the Settlement Agreement and the exhibits, you may review them at www.KasonSettlement.com.

8. Is the Settlement Final? Not yet. The Final Fairness Hearing will be held on ______, 2012, at 9:00 a.m. at the following address:

United States District Judge Michael M. Anello Southern District of California 940 Front Street San Diego, California 92101-8900

This settlement will not be final or take effect unless and until: (A) it is finally approved by the Court after the Final Fairness Hearing and a Final Order and Judgment have been entered by the Court, and (1) the applicable period for the appeal of the Final Order and Judgment has expired without any appeals having been filed, or (2) all such appeals have been dismissed; or (B) the Ninth Circuit Court of Appeals has entered a final judgment affirming the Final Order and Judgment, which (1) is no longer subject to any further appellate challenge, or (2) has been affirmed by the United States Supreme Court. Counsel do not know at this time if any objections or appeals will be filed. Check back periodically at www.KasonSettlement.com for an update on the status of these proceedings.

9. If the Court Finally Approves the Settlement, What Will Happen to Any Claims I May Have against Defendants? If the settlement receives final judicial approval, it will result in a release by Plaintiff and all Settlement Class Members of all Released Claims, which are described in Section 3.D of this Notice. This means that if you do not exclude yourself from the Settlement Class, you will not be able to sue, or join another lawsuit against, Defendants for the claims described in that Section.

10. Why is Counsel Recommending the Class Settlement? Plaintiff and Settlement Class Counsel are supporting this settlement based on the fairness of the settlement in terms of providing refunds to Settlement Class Members of the amounts they were likely overcharged on average, the risks of and uncertainty at trial and/or appeal, and the delays associated with such litigation. Plaintiff and Settlement Class Counsel reached this settlement after weighing the risks and benefits to the Settlement Class of this settlement as compared to continuing the litigation. The factors that counsel considered included the uncertainty associated with continued litigation, including various legal issues that have not yet been determined by the Court. Counsel balanced these and other risks, including Defendants’ financial condition, in determining that the settlement is fair, reasonable and adequate in light of all the circumstances, and is in the best interests of the Settlement Class considering the substantial benefits provided to Settlement Class Members under this settlement.

11. What If I Do Not Want to Participate in the Settlement? You will be bound by the Judgment entered in the Lawsuit unless you submit a valid and timely request for exclusion (an “opt-out request”) from the Settlement Class. If you wish to be excluded from the Settlement Class, you must send an opt-out request by mail to the Settlement Administrator. The opt-out request must be postmarked no later than ______, 2012 and mailed to the following address:

Rigo v. Kason Industries, Inc. et al c/o KCC P.O. Box XXXX Novato, CA XXXXX



To be valid, an opt-out request must (a) refer to the “Kason Settlement” and provide the names of the products you purchased, and the location and approximate dates of purchase; (b) identify the name and address of the individual who is opting out and state your wish to be excluded from the Settlement Class; and (c) state that such person is authorized to opt out of the Settlement Class. If you opt out, you will not be bound by the Court’s Final Order and Judgment and you will not waive or release any of the Released Claims asserted in the Lawsuit, but you will not be entitled to receive any benefit or monetary relief under this settlement. If you choose not to opt out, your interests will be represented by Plaintiff through the attorneys listed in Section 6 above.

12. Right to Object to the Settlement. Any member of the Settlement Class has the right to object to the proposed settlement and may appear personally or through counsel at the Fairness Hearing to be held on _______, 2012, and object to approval of the settlement. Even if you object to the settlement, you may still be entitled to participate in the settlement. In order to be heard or to have papers or briefs considered by the Court, any objecting Settlement Class Member must file, by ________, 2012, an original of the Settlement Class Member’s objection with the Court at the address listed in Section 8. The objection must include: (a) the case name and case number; (b) a list of all available names of the products that were purchased by the Settlement Class Member and the approximate date and location of such purchase(s); (c) attach copies of any materials that will be submitted to the Court or presented at the Fairness Hearing; (d) be signed by the Settlement Class Member; and (e) state in detail: (i) the legal and factual ground(s) for the objection, (ii) the Settlement Class Member’s name, address and, if available, telephone number, and (iii) if represented by counsel, such counsel’s name, address and telephone number. Any objecting Settlement Class Member who fails to submit a timely written objection shall waive and forfeit any and all rights that he or she may have to appear separately and/or object, and shall be bound by all the terms of the settlement, release and by all proceedings, orders and judgments in this Lawsuit.

Copies of all documents filed with the Clerk of the Court must also be sent to the following counsel:

Settlement Class Counsel

THE CONSUMER LAW GROUP Alan M. Mansfield, Esq. 10200 Willow Creek Rd., Suite 160 San Diego, CA 92131

Counsel for Defendants

KIRKLAND & ELLIS, LLP Christopher T. Casamassima, Esq. 333 South Hope Street Los Angeles, CA 90071 BAKER & MCKENZIE, LLP Colin H. Murray, Esq. Two Embarcadero Center, 11th Floor San Francisco, CA 94111 SUTHERLAND, ASBILL & BRENNAN LLP Joshua A. Mayes, Esq. 999 Peachtree Street, NE Atlanta, GA 30309 SANDLER LASRY LAUBE BYER & VALDEZ LLP Richard M. Valdez, Esq. 402 W. Broadway, Suite 1700 San Diego, CA 92101

IF YOU DO NOT OPPOSE THE PROPOSED SETTLEMENT, YOU NEED NOT APPEAR AT THE FINAL FAIRNESS HEARING OR FILE ANY PAPERS. IF YOU FILE AN OBJECTION, IT WILL BE CONSIDERED BY THE COURT. YOU NEED NOT APPEAR AT THE FINAL FAIRNESS HEARING.

13. Resolution of Disputes. If there is a dispute regarding your settlement amount, or any other aspect of your participation in the settlement, this dispute shall be decided by the Judge before which the Lawsuit is pending or the assigned Magistrate Judge if the dispute cannot be informally resolved.

14. Where You Can Obtain Further Information. If you want additional information about the Lawsuit and this settlement that is not answered or available at www.KasonSettlement.com, you should contact the Settlement Administrator at the following toll-free telephone number: 1-XXX-XXX-XXX.

DO NOT CONTACT THE COURT OR DEFENDANTS’ COUNSEL, OR DEFENDANTS DIRECTLY ABOUT THIS LAWSUIT.


EXHIBIT C




THIS NOTICE ADVISES YOU OF A PROPOSED CLASS ACTION SETTLEMENT WITH KASON INDUSTRIES, INC., PETER A. KATZ, COMPONENT HARDWARE GROUP, INC. AND THOMAS CARR (“DEFENDANTS”). THIS NOTICE MAY AFFECT YOUR LEGAL RIGHTS -- PLEASE READ IT CAREFULLY.

SUMMARY CLASS NOTICE

This summary notice informs you about the settlement of John Rigo v. Kason Industries Inc. et al., United States District Court, Southern District of California, Case No. 3:11-CV-00064-MMA (DTBx). John Rigo represents a class of customers who purchased (but not directly from these two companies) certain types of food service equipment component hardware manufactured by Kason Industries, Inc. or Component Hardware Group, Inc. between February 1, 2004 through February 11, 2008. A list of the products in question can be reviewed by accessing www.KasonSettlement.com/ProductList

If you timely submit a Claim Form by [date], if this settlement is finally approved you can receive a cash refund for up to the purchase price of such items or 1.4% of the purchase price of an item that contains a covered component. There shall be a total settlement fund for paying these claims of $720,000, less certain fees and costs. These claims are also subject to possible proration as described in the full class settlement notice. You can submit a Proof of Claim Form online at

.

www.KasonSettlement.com

To exclude yourself from this settlement, or to object to the settlement, you must follow the instructions in the Notice, which can be located as described below. The deadline to opt out of the settlement is [DATE]. The deadline to submit any objection is [DATE].

or by requesting a Proof of Claim Form from the Settlement Administrator and submitting it to the address below. Plaintiff's counsel will ask the Court to approve payment of 30% of the above fund plus costs incurred, as well as $2,500 for Mr. Rigo as the class representative.

This is only a summary of the settlement. For additional information regarding this settlement, the full Notice of Class Action Settlement (“Notice”) is available to review or download at www.KasonSettlement.com, or by mail from the Settlement Administrator at Rigo v. Kason Industries, Inc. et al. c/o KCC, P.O. Box XXX. You may also call 1-888-XXX-XXXX if you have any questions or to request a copy.


EXHIBIT D




EXHIBIT D

PLAN OF ALLOCATION

After the payment of any amounts awarded by the Court in the Final

Approval Order for Class Counsel's fees and expenses and additional

compensation to Plaintiff, the payment of all allowed expenses of the

Administrator, and the setting aside of an appropriate reserve, if any, for Taxes (the

"Net Settlement Fund"), the Administrator shall determine each Claimant’s award

in the manner set forth below by reference to the total amount the Claimant paid

for Food Service Equipment Component Hardware, including but not limited to

Food Service Equipment Component Hardware incorporated in Food Service

Equipment, during the Class Period, as stated on a valid and timely Claim Form

returned by said Claimant (a “Recognized Claim”).

For purposes of computing the amount to which each participating class

member will be entitled, the following rules of allocation will be followed.

• For those that indirectly purchased Food Service Equipment

Hardware that was not incorporated into Food Service Equipment

(e.g., repair parts), the entire amount of the purchase price will be

taken into account in making such calculations.

• For those that indirectly purchased Food Service Equipment

Component Hardware that was incorporated into Food Service


Equipment, 1.4% of the purchase price of the Food Service

Equipment will be taken into account, unless the Claimant

demonstrates in its Claim that the Equipment contains Food Service

Component Equipment Hardware worth more than 1.4% of the

purchase price.

• The amount paid for Food Service Equipment Hardware by each

claimant under a Recognized Claim as determined above is referred

to herein as a “Claim Purchase Amount” and the aggregate of Claim

Purchase Amounts under all such Recognized Claims shall be

referred to herein as the “Aggregate Claim Purchase Amount.”

• Each claimant will be entitled to recover up to 100% of its “Claim

Purchase Amount”, provided that:

o If the Net Settlement Fund available to satisfy claims is less

than 100% of the Aggregate Claim Purchase Amount, the Net

Settlement Fund will be distributed pro rata to the Claimants in

the proportion that such Claimant’s Claimed Purchase Amount

bears to the Aggregate Purchase Amount.

o If the Net Settlement Fund is greater than 100% of the

Aggregate Claim Purchase Amount, then each Claimant shall

receive 100% of its Claimed Purchase Amount, and the excess


will be distributed on a cy pres basis as set forth in Section I.2.

of the Settlement Agreement.

• In no event shall Defendants have any further obligation to provide

additional compensation or contribute any further amounts to the

Settlement Fund.


EXHIBIT E




of 4

Error! Unknown document property name.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

JOHN RIGO D/B/A ALTERED AIR, on Behalf of Himself and All Others Similarly Situated,

Plaintiff, vs.

KASON INDUSTRIES, INC., PETER A. KATZ, COMPONENT HARDWARE GROUP, INC.; THOMAS CARR; and DOES 1-10,

Defendants,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO. 3:11-CV-00064-MMA (DTBx)

Hon. Michael M. Anello

[PROPOSED] AGREED and STIPULATED INJUNCTION and ORDER

Kason Industries, Inc. and Peter A. Katz (collectively the “Kason

Defendants”), Component Hardware Group, Inc. and Thomas Carr (collectively

the “CHG Defendants”) (the Kason Defendants and CHG Defendants are

sometimes collectively referred to as “Defendants”) and Plaintiff John Rigo d/b/a

Altered Air (“Plaintiff”) (collectively, Defendants and Plaintiff are referred to as

the “Parties”), agree and stipulate to the following Antitrust Injunction and

Compliance.


of 4


WHEREFORE, based on all matters appearing of record and the agreement

and stipulation of counsel,

IT IS HEREBY ORDERED, that for a period of five (5) years from the date

of entry of this Injunction and Order the Defendants shall be enjoined from

engaging in horizontal price fixing, market allocation, bid rigging, or other conduct

involving a contract, combination or conspiracy with a competitor that violates

Section 1 of the Sherman Act, with respect to the sale of any “Food Service

Equipment Component Hardware,” (defined by paragraph 11 of Plaintiff’s

Corrected Complaint filed on January 24, 2011 (Doc. 3)), that are likely, through

the reasonably anticipated stream of commerce, to be sold to end-user purchasers

in the United States.

IT IS FURTHER ORDERED, that, within ninety days of the Effective Date,

Kason Industries, Inc. and Component Hardware Group, Inc. each agree to

provide a comprehensive antitrust compliance training presentation, at their

expense, for the officers and employees responsible for the pricing or production

capacity of Food Service Equipment Component Hardware, and establish a

designated legal counsel resource for all officers and employees regarding any

antitrust compliance inquiries for the next five years. Kason Industries, Inc. and


of 4


Component Hardware Group, Inc. each shall certify compliance in writing and

make the certification available on demand by Class Counsel for five years.

IT IS SO ORDERED, this ______, day of _________________.

___________________________________ Hon. Michael M. Anello U.S. District Judge

AGREED AND STIPLUATED:

John Rigo d/b/a Altered Air

By:__________________

EMERSON POYTNER LLP

By:__________________

CONSUMER LAW GROUP OF CALIFORNIA

Kason Industries, Inc.,

By:__________________

Peter A. Katz

By:____________________

Component Hardware Group, Inc.

By:_________________________


of 4


Thomas Carr

By:____________________


EXHIBIT F




Media Contact(s): The Consumer Law Group

Alan M. Mansfield, Esq.

10200 Willow Creek, Suite 160

San Diego, CA 92131

THIS NOTICE IS AN ADVISORY OF A PROPOSED CLASS ACTION SETTLEMENT WITH KASON INDUSTRIES INC., PETER A. KATZ, COMPONENT HARDWARE

GROUP INC. AND THOMAS CARR.

San Diego, CA [Date of release]. The following statement is being issued by regarding the John Rigo, et al. v.Kason Industries et al. case.

This summary notice is issued in accordance with the Court order dated [DATE] preliminarily approving the settlement of

SUMMARY CLASS NOTICE

John Rigo, et al. v. Kason Industries, Inc. et al,, United States District Court, Southern District of California, Case No. 3:11-CV-00064-MMA (DTBx). John Rigo represents a class of customers who purchased (but not directly from these two companies) certain types of food service equipment component hardware manufactured by Kason Industries or Component Hardware Group between February 1, 2004 through February 11, 2008. A list of the products in question can be reviewed by accessing www.KasonSettlement.com/ProductList

If customers timely submit a Claim Form by [date], if this settlement is finally approved they can receive a cash refund for up to the purchase price of such items or 1.4% of the purchase price of an item that contains a covered component. There shall be a total settlement fund for paying these claims of $720,000, less certain fees and costs. These claims are also subject to possible proration as described in the full class settlement notice. They can submit a Proof of Claim Form online at

.

www.KasonSettlement.com

To be excluded from this settlement, or to object to the settlement, Settlement Class Members must follow the instructions in the Notice, which can be located as described below. The deadline to opt out of the settlement is [DATE]. The deadline to submit any objection is [DATE].

or by requesting a Proof of Claim Form from the Settlement Administrator and submitting it to the address below. Plaintiff's counsel will ask the Court to approve payment of 30% of the above fund plus costs incurred, as well as $2,500 for Mr. Rigo as the class representative.

This is only a summary of the settlement. For additional information regarding this settlement, the full Notice of Class Action Settlement (“Notice”) is available to review or download at www.KasonSettlement.com

###

, or by mail from the Settlement Administrator at Rigo v. Kason Industries, Inc. et al. c/o KCC, P.O. Box XXX. You may also call 1-888-XXX-XXXX if you have any questions or to request a copy of the Notice.

Source: The Consumer Law Group of California (www.clgca.com)


EXHIBIT 4


UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

IN RE FOOD SERVICE EQUIPMENT HARDWARE ANTITRUST LITIGATION

Master Consolidated Case File No. 1:10-cv-1849-WSD

THIS DOCUMENT RELATES TO: DIRECT PURCHASER ACTIONS


This Settlement Agreement (“Settlement Agreement”) is made and entered into this 17th

day of September by and between the following “Parties”: Component Hardware Group, Inc.

(“CHG”) and putative plaintiff class representative Kohlder Manufacturing Co., Inc. individually

and on behalf of the Participating Class Members of the Settlement Class (as defined herein)

(“Plaintiffs”) as a purchaser of Food Service Equipment (as defined herein) in the United States

from CHG (or any of its subsidiaries or affiliates) or any Defendant or alleged co-conspirators

named or that may be named in the Consolidated Class Action Complaint filed on September 17,

2010, for the period from February 1, 2004 through February 11, 2009 or such later date through

which the anticompetitive effects of the conspiracy continued, as may be determined in the Class

Action:

WHEREAS, there is pending in the United States District Court for the Northern District

of Georgia, the Class Action, In Re Food Service Equipment Hardware Antitrust Litigation (No.

1:10-cv-1849-WSD), brought on behalf of direct purchasers of Food Service Equipment, in

which Plaintiffs have alleged violations of law, including the existence of unlawful conspiracies

Case 1:10-cv-01849-WSD Document 86 Filed 02/03/11 Page 1 of 41Case 1:10-cv-01849-WSD Document 105-2 Filed 05/09/11 Page 1 of 41Case 3:11-cv-00064-MMA-DHB Document 91-6 Filed 01/10/13 Page 2 of 42

2

to restrict competition, fix prices, rig bids, and allocate customers regarding the sale of Food

Service Equipment in the United States in violation of Section 1 of the Sherman Antitrust Act

and Section 4 of the Clayton Act;

WHEREAS, although CHG denies any liability, injury, or damage to the Settlement

Class, and would assert a number of defenses were it to be named in the Class Action, CHG has

concluded that it will enter this Settlement Agreement to avoid the expense, inconvenience, and

burden of litigation and any other present or future litigation arising out of the same facts that

gave rise to the Class Action, and to avoid the distraction and diversion of its personnel and

resources, and to put to rest this controversy with business customers;

WHEREAS, due to its financial position, CHG is unable to offer economic value,

including any additional cash payment, to the Settlement Class in excess of the terms of this

settlement to resolve the Action without imperiling its operations and its continued viability as a

competitor in its industry;

WHEREAS, CHG agrees to cooperate with Plaintiffs in the ongoing prosecution of the

Class Action in accordance with the Antitrust Criminal Penalty Enhancement and Reform Act

(“ACPERA”) as set forth in this Settlement Agreement;

WHEREAS, Plaintiffs recognize the benefits of CHG’s cooperation in part because such

cooperation will ease Plaintiffs’ burden and relieve the expense of additional litigation, and

further recognize and will submit to the Court that CHG’s cooperation contemplated by this

Settlement Agreement satisfies the requirements of ACPERA to eliminate the availability of

treble damages and joint liability for the sales of other participants in the alleged conspiracy, an

exemption that does not apply to any other named Defendants in the Class Action;


3

WHEREAS, Plaintiffs’ Counsel have concluded, after due investigation and after

carefully considering the relevant circumstances, including, without limitation, the claims

asserted in the Class Action and the legal and factual defenses thereto and the applicable law, as

well as CHG’s eligibility for protection from treble and joint damages under ACPERA, and after

extensive review of documents and data provided by CHG and otherwise obtained by the

Plaintiffs, that it would be in the best interests of the Plaintiffs and the Class Members to enter

into this Settlement Agreement in order to avoid the uncertainties of litigation, to assure that the

benefits reflected herein are obtained for the Plaintiffs and all Class Members, and that this

settlement fairly reflects the maximum value CHG can realistically afford to offer to resolve the

Class Action; and, as a result, Plaintiffs’ Counsel consider the settlement set forth herein to be

fair, reasonable, adequate, and in the best interests of Plaintiffs and all members of the Class;

WHEREAS, arm’s-length settlement negotiations have taken place between Plaintiffs’

Counsel and counsel for CHG, and this Settlement Agreement, which embodies all of the terms

and conditions of the settlement between the CHG and the Plaintiffs and the Class, has been

reached, subject to the approval of the Court and Final Approval as provided herein;

WHEREAS, it is anticipated that this Settlement Agreement will resolve all claims,

potential claims, or other relief against or potentially against the Releasees (defined herein)

raised in the Class Action; and

NOW, THEREFORE, in consideration of the covenants, terms, and releases in this

Settlement Agreement and for other good and valuable consideration, it is by and among the

undersigned agreed that the Class Action be settled, compromised, and fully resolved as to the

Releasees, without costs as to Plaintiffs, the Class, or CHG, including all such costs that the


4

Parties would have otherwise been entitled to recover, such as costs related to electronic

discovery, all subject to the approval of the Court and the following terms and conditions:

A. Definitions

The following terms, as used in this Settlement Agreement, have the following meanings:

1. “Action” or “Class Action” means the action captioned In re Food Service

Equipment Hardware Antitrust Litigation (No. 1:10-cv-1849-WSD), (“FSEH”), which is

currently pending in the Northern District of Georgia, and includes all cases that have been

consolidated or coordinated with FSEH, may be consolidated or coordinated with FSEH, or

which raise allegations related or similar to the allegations raised or that could have been raised

in FSEH, and includes all actions based on the same conduct at issue in FSEH.

2. “CHG” means Component Hardware Group, Inc., and all of its successors.

3. “Claims” shall mean any and all suits, claims, rights, demands, assertions,

allegations, causes of action, controversies, proceedings, losses, damages, injuries, attorneys’

fees, costs, expenses, debts, liabilities, judgments, or remedies, which are related to the subject

matter of the Class Action, whether arising under federal or state or any other law, including all

“Claims” that were or could have been brought in the Class Action.

4. “Claims Administrator” means an independent professional service to be selected

by Class Counsel and charged with administering the claims process and distribution of the

settlement.

5. “Class Counsel” or “Plaintiffs’ Counsel” shall refer to the law firms of Labaton

Sucharaow LLP, 140 Broadway, New York, NY, 10005, and Hausfeld LLP, 1700 K Street, NW,

Suite 650, Washington, D.C., 20006.

6. “Class Member” or “Settlement Class Member” or “Class” means each member

of the proposed Settlement Class.


5

7. “Class Period” means the period from and including February 1, 2004 up to and

including February 11, 2009 or such later date through which the anticompetitive effects of the

conspiracy continued, as may be determined in the Class Action.

8. “Court” means the U.S. District for the Northern District of Georgia, Atlanta

Division.

9. “Defendants” mean the Defendants to this Action: Kason Industries Inc., Peter

A. Katz, CHG, Thomas Carr, and all others named in consolidated complaint filed on September

17, 2010.

10. “Document” is defined to be synonymous in meaning and equal in scope to the

usage of this term in Fed. R. Civ. P. 34(a), including, without limitation, electronic or

computerized data compilations. A draft or non-identical copy is a separate document within the

meaning of this term.

11. “Effective Date” means the date on which the Settlement Agreement becomes

final in accordance with the terms of paragraph 31.

12. “Execution Date” shall mean the date of the execution of this Settlement

Agreement by counsel for each and every party thereto.

13. “Food Service Equipment” means any type of food service equipment component

hardware products as defined by paragraph 17 of the consolidated complaint filed on September

17, 2010, sold by Defendants in the Class Action, or any alleged co-conspirators from February

1, 2004, through February 11, 2009 or such later date through which the anticompetitive effects

of the conspiracy continued, as may be determined in the Class Action, excluding oven canopy

hoods and any plumbing product.


6

14. “Opt Out” means a Class Member who has submitted a timely and valid request

for exclusion from the Settlement Class pursuant to the opt-out procedure adopted by the Court.

15. “Participating Class Member” means every entity and person falling within the

definition of the Settlement Class defined herein that is not an Opt-Out (i.e., has not made a

timely and valid request for exclusion from the Settlement Class pursuant to the opt-out

procedure approved by the Court).

16. “Releasees” shall refer jointly and severally, individually and collectively to

CHG, and its past, present and future parents, subsidiaries, divisions, affiliates, stockholders,

investors, equity holders (and their parent entities, owners, members, officers, and advisors),

investors, and each and any of its past, present, and future respective members, officers,

directors, insurers, general or limited partners, employees, agents, legal representatives (and the

predecessors, heirs, attorneys and executors, administrators, successors and assigns of any of the

foregoing). Notwithstanding the foregoing, “Releasees” does not include (i) any Defendant

formerly or currently named in the Action, other than CHG and those others included in the

definition of Releasees above; (ii) any Defendant (other than CHG and those others included in

the definition of Releasees) subsequently added or joined in the Action; or (iii) any other co-

conspirator of Defendants in the Action (other than CHG and those others included in the

definition of Releasees).

17. “Releasors” shall refer jointly and severally, individually and collectively, to each

and every Plaintiff and Participating Class Member, including any of his, her or its past, present

or future parents, subsidiaries, divisions, affiliates, stockholders, and each and any of their

respective past, present, and future stockholders, officers, directors, insurers, general or limited

partners, agents, attorneys, employees, legal representatives, trustees, associates, heirs, executors,


7

administrators, purchasers, predecessors, successors and assigns, acting in their capacity as such,

and anyone claiming by or through them.

18. “Cash Settlement Amount” means eight hundred thousand dollars ($800,000).

19. “Settlement Rebate” means rebates discussed and defined in section F.

20. “Settlement Class” means: All persons and entities that purchased Food Service

Equipment within the United States, directly from Defendants in the Class Action or any of their

affiliates, or from any alleged co-conspirators or any of their affiliates, during the period from

February 1, 2004 through February 11, 2009 or such later date through which the anticompetitive

effects of the conspiracy continued, as may be determined in the Class Action. Excluded from

the Class are Defendants, their respective parents, employees, subsidiaries, and affiliates, their

alleged co-conspirators, and all government entities.

21. “Settlement Fund” means the Cash Settlement Amount and any interest earned

on that amount.

22. “Taxes” mean any sums due to be paid to governmental taxing authorities from,

or as a consequence of, the Cash Settlement Amount, payment for attorneys’ fees, and payment

for notice and administration costs, including taxes, estimated taxes, interest and penalties.

23. “Tax Expenses” mean any and all reasonable fees and costs due to be paid to tax

preparers, tax consultants or others for determining the tax liability of the Cash Settlement

Amount, payment for attorneys’ fees, and payment for notice and administration costs and

otherwise assisting Class Counsel in carrying out their responsibilities under this Settlement

Agreement.

B. Stipulation to Class Certification

24. The Parties hereby stipulate for the purposes of this Settlement Agreement that

the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3) are satisfied in this case,


8

and, subject to Court approval, the following Settlement Class shall be certified for settlement

purposes as to the Releasees:

All persons and entities that purchased Food Service Equipment within the United States, directly from CHG or any of its affiliates, Defendants or any of their affiliates, or from any alleged co-conspirators or any of their affiliates, during the period from February 1, 2004 through February 11, 2009 or such later date through which the anticompetitive effects of the conspiracy continued, as may be determined in the Class Action. Excluded from the Class are Defendants, their respective parents, employees, subsidiaries, and affiliates, their alleged co-conspirators, and all government entities.

25. The Parties’ agreement as to certification of the Settlement Class is only for

purposes of effectuating the Settlement and for no other purpose. The Parties retain all of their

respective objections, arguments and/or defenses with respect to class certification if the

Settlement Agreement is rescinded or otherwise does not receive Final Approval as defined

herein. The Parties acknowledge that there has been no stipulation to a class or certification of a

class for any purposes other than effectuating the Settlement Agreement, and that if the

Settlement Agreement does not receive Final Approval as defined herein, this agreement as to

certification of the Settlement Class becomes null and void ab initio and no Party may cite to this

Settlement Agreement or certification of the Settlement Class in support of an argument for

certifying a class.

C. Approval of this Settlement Agreement and Dismissal of Claims

26. Plaintiffs, Class Counsel, and CHG and its counsel agree to use their reasonable

best efforts to effectuate this Settlement Agreement, including but not limited to cooperating in

promptly seeking both preliminary and final approval of this Settlement Agreement (including

the giving of class notice under Federal Rules of Civil Procedure 23(c) and (e) to secure


9

certification of the Settlement Class), and the prompt, complete, and final dismissal with

prejudice of the Action as to all Releasees.

27. Within thirty (30) days of the Execution Date of this Settlement Agreement,

Plaintiffs shall submit to the Court a motion, to be joined in by CHG, for preliminary approval of

this Settlement Agreement, for authorization to disseminate notice to the Settlement Class, and

for a stay of all proceedings against the Releasees in the Class Action or in any action asserting

claims based on the facts alleged in the Action brought by or on behalf of any members of the

proposed Settlement Class (the “Motion”). The Motion shall include: (a) the definition of the

Settlement Class to be certified by the Court pursuant to this Settlement Agreement; (b) the

proposed form of, method for, and date of dissemination of notice to the Settlement Class; (c) a

proposed form of preliminary approval order; and (d) a proposed form of final judgment order.

28. Within ten (10) days of the filing of the Motion, Class Counsel shall, on behalf of

all Parties to this Settlement Agreement, notify federal and state officials as specified in 28

U.S.C. §§ 1715(a) & (b).

29. Upon preliminary approval of the Settlement Agreement, Class Counsel shall, in

accordance with Fed. R. Civ. P. 23 and the Court’s order, provide Settlement Class Members

who have been identified by reasonable means with notice by first class mail of the Settlement

Agreement and the date of the hearing scheduled by the Court to consider the fairness, adequacy,

and reasonableness of the proposed Settlement Agreement (the “Settlement Hearing”).

Individual notice of the settlement shall be mailed to persons and entities who have been

identified by CHG, and any other entity identified by Defendants, whether provided voluntarily

or ordered by a Court, as direct purchasers of Food Service Equipment in the United States from

CHG or any of its affiliates, from Defendants in the Class Action, or from any alleged co-


10

conspirators from February 1, 2004 through February 11, 2009 or such later date through which

the anticompetitive effects of the conspiracy continued, as may be determined in the Class

Action, and notice of the settlement shall be published once in accord with the notice plan

described in the motion for preliminary approval. The failure of any Class Member to receive

notice or any other document as described in this Settlement Agreement shall not be a basis for

invalidating this Settlement Agreement or any order entered pursuant thereto, and the Settlement

Agreement, Release, and covenants not to sue shall nevertheless be binding and the final

judgment approving the Settlement Agreement effective, in accordance with their terms.

30. Class Counsel shall promptly submit a motion for final approval of the Settlement

Agreement by the Court after notice is given to the members of the Settlement Class of the

Settlement Hearing. If the Court approves the Settlement Agreement, Class Counsel shall seek

entry of an order and final judgment, which includes the following findings and orders:

a) Approving finally this Settlement Agreement and its terms as a fair, reasonable, and adequate settlement as to the Participating Class Members within the meaning of Rule 23 of the Federal Rules of Civil Procedure and directing its consummation according to its terms;

b) Ordering that, as to the Releasees, the Action be dismissed with prejudice and, except as specifically provided for in this Settlement Agreement, without costs;

c) Discharging and releasing the Releasees from all Released Claims, in conformance with this Settlement Agreement;

d) Reserving exclusive jurisdiction over the Settlement and this Settlement Agreement, including the administration and consummation of this settlement;

e) Determining under Federal Rule of Civil Procedure 54(b) that there is no just reason for delay and directing that the judgment of dismissal as to the Releasees shall be final and entered forthwith; and

f) Requiring Class Counsel to file with the Clerk of the Court a record of Opt-Outs, and to provide a copy of the record to counsel for CHG.


11

31. This Settlement Agreement shall become final and shall be deemed to have

received final approval (“Final Approval”) on the date that: (a) the Court has entered a final

order approving this Settlement Agreement under Rule 23(e) of the Federal Rules of Civil

Procedure and a final judgment dismissing the Action as against CHG and the Releasees with

prejudice as to all Participating Class Members and without costs; and (b) the time for appeal or

to seek permission to appeal from the Court’s approval of this Settlement Agreement and entry

of a final judgment as described in clause (a) above has expired or, if appealed, approval of this

Settlement Agreement and the final judgment has been affirmed in its entirety by the court of last

resort to which such appeal has been taken and such affirmance has become no longer subject to

further appeal or review (the “Effective Date”). The Parties agree that neither the provisions of

Rule 60 of the Federal Rules of Civil Procedure nor the All Writs Act, 28 U.S.C. § 1651, shall be

taken into account in determining the time of finality of the judgment. On the Execution Date of

this Settlement Agreement, the Parties shall be bound by its terms, and this Settlement

Agreement shall not be rescinded unless in accordance with terms provided herein. Appeals

relating solely to attorneys’ fees, costs and/or the plan of distribution shall not delay the Final

Approval of this Settlement Agreement and shall not delay the entry of final judgment, or the

finality of the judgment, as to the claims against any of the Releasees. In the event that Final

Approval is not received, this Settlement Agreement becomes null and void, and any and all

funds in the Settlement Fund shall be returned to CHG in accordance with the terms below.

32. The Parties acknowledge that CHG is entering into this Settlement Agreement to

eliminate the uncertainty, burden, and expense of litigation without any presumption or inference

of admission of liability or wrongdoing or bad faith on the part of the Releasees, or without any

inference of admission of any impact, losses, or damages to Plaintiffs or to the Settlement Class.


12

The terms of this Settlement Agreement, the negotiations leading up to this Settlement

Agreement, performance in accordance with this Settlement Agreement, and the data,

documents, or information exchanged between the Parties in connection with, or pursuant to, this

Settlement Agreement, may not be offered, taken, construed, or introduced as evidence of

liability or as an admission or statement of wrongdoing by the Releasees, either in this Class

Action, or in any pending or future civil or criminal proceeding in any court of law or equity or

before any government, administrative, or regulatory agency or other tribunal in the United

States or elsewhere in the world, except in a proceeding to enforce this Settlement Agreement or

to defend against the assertion of the claims in this Class Action or as otherwise required by law.

D. Release and Discharge

33. Upon the occurrence of the Final Approval, and in consideration of payment of

the Cash Settlement Amount and the offering of the Settlement Rebates, as specified in Sections

E and F of this Settlement Agreement, and for other valuable consideration recited herein,

including the provisions addressing cooperation with Plaintiffs, the Releasees shall be

completely released, acquitted, and forever discharged to the fullest extent permitted by law from

and against any and all claims, demands, actions, suits, and causes of action, whether class,

individual, or otherwise in nature, damages of any nature whatsoever, liabilities of any nature

whatsoever, including costs, expenses, penalties and attorneys fees, that Releasors, or anyone of

them, whether directly, indirectly, derivatively, or in any capacity whatsoever, ever had, now

has, or hereafter can, shall, or may have against the Releasees, whether known or unknown,

suspected or unsuspected, in law or equity, relating in any way to or on account of or arising out

of the facts, occurrences, transactions, or other matters alleged in the Complaint in the Action, or

contained in complaints containing the same or similar allegations of conspiracy or collusion or

aiding and abetting or other wrongful conduct between or among Defendants or CHG or any co-


13

conspirators, including any conduct that could have been alleged in this Action based on conduct

or events from the beginning of time through the Effective Date of this Settlement Agreement,

with respect to the product and geographic markets in the Action, which arise under any federal,

state, or common law or the law of any nation or domestic or foreign or governmental entity,

including antitrust, unfair competition, unfair practices, price discrimination, unitary pricing,

trade practice, unjust enrichment, or civil conspiracy law, including, without limitation, the

Sherman Antitrust Act, 15 U.S.C. § 1 et seq. (all of the foregoing collectively the “Released

Claims”).

34. Each Releasor waives California Civil Code Section 1542 and similar provisions

in other states. Each Releasor hereby certifies that he, she, or it is aware of and has read and

reviewed the following provision of California Civil Code Section 1542 (“Section 1542”): “A

general release does not extend to claims which the creditor does not know or suspect to exist in

his or her favor at the time of executing the release, which if known by him or her must have

materially affected his or her settlement with the debtor.” The provisions of the release set forth

above shall apply according to their terms, regardless of the provisions of Section 1542 or any

equivalent, similar, or comparable present or future law or principle of law of any jurisdiction.

Each Releasor may hereafter discover facts other than or different from those which he, she, or it

knows or believes to be true with respect to the claims that are the subject matter of this

Settlement Agreement, but each Releasor hereby expressly and fully, finally and forever waives

and relinquishes, and forever settles and releases any known or unknown, suspected or

unsuspected, contingent or non-contingent, claim whether or not concealed or hidden, without

regard to the subsequent discovery or existence of such different or additional facts, as well as

any and all rights and benefits existing under (i) Section 1542 or any equivalent, similar or


14

comparable present or future law or principle of law of any jurisdiction and (ii) any law or

principle of law of any jurisdiction that would limit or restrict the effect or scope of the

provisions of the release set forth above, without regard to the subsequent discovery or existence

of such other or different facts.

35. This Settlement Agreement is intended to fully and finally release all claims

against the Releasees that have been brought or could have been brought by the Settlement Class.

Each Releasor hereby covenants and agrees that he, she, or it shall not sue or otherwise seek to

establish or impose liability against any Releasee based, in whole or in part, on any of the

Released Claims. Nothing herein shall be construed to release any claims relating to geographic

markets outside the United States or product markets not at issue in this Action; however

Releasees do not agree or admit, and nothing in this Settlement Agreement establishes, implies,

or can be used to suggest, that Plaintiffs, the Class Members, or any other persons or entities

have any valid claims against the Releasees. The release and discharge set forth in Paragraphs

33 through 35 herein do not include claims relating solely to payment disputes, physical harm,

defective product, breach of contract, or bodily injury (the “Excepted Claims”).

36. The Releasors shall not, after the Execution Date of this Settlement Agreement,

seek to recover against any of the Releasees for any of the Released Claims.

E. Cash Settlement

37. CHG shall pay or cause to be paid the Cash Settlement Amount of $800,000 in

settlement of the Action. The Cash Settlement Amount is the total and exclusive amount that

CHG will pay under this Settlement Agreement for the benefit of the Released Claims, including

without limitation funds to satisfy claims by any Participating Class Member, attorneys’ fees and

costs, any Court-approved incentive awards to the Class Representative(s), payment of any and


15

all estimated taxes, taxes, tax preparations fees, and payment of any and all administrative and

notice expenses associated with the Action or this Settlement Agreement.

38. CHG shall pay the Cash Settlement Amount in two installments. The first

installment, for $400,000, shall be wire transferred by CHG or its designee within ten (10)

business days of the preliminary approval of the Settlement Agreement by the Court (the “First

Settlement Installment”). The First Settlement Installment shall be paid into an escrow account

at identified by Class Counsel (the “Escrow Account”) and administered in accordance with the

provisions of this Settlement Agreement. CHG or its designee shall wire transfer the second

installment of the Cash Settlement Amount, for $400,000, (the “Second Settlement Installment”)

to the Escrow Account ten (10) days after the one-year anniversary of payment of the First

Settlement Installment into the Escrow Account, unless such date falls on a weekend or bank

holiday, in which case CHG shall wire the Second Settlement Installment on the first day

American banks are open for business following thirty (30) days after the one-year anniversary

of payment of the First Settlement Installment into the Escrow Account. CHG shall not make

any contributions to the Settlement Fund other than the First Settlement Installment and the

Second Settlement Installment. The Escrow Account shall be established by Class Counsel for

the benefit of Participating Class Members and all expenses associated with the Escrow Account

shall be the sole responsibility of Class Counsel. Interest earned by the Settlement Fund shall be

for the benefit of the Participating Class Members.

F. The Settlement Rebate

39. As further consideration for this settlement, CHG shall offer to all Participating

Class Members a 2.75% rebate off the purchase price for all purchases of Food Service

Equipment from CHG made in the U.S. during the twenty four (24) month period starting the

first day of the month most immediately following the month in which Final Approval occurs


16

(the “Settlement Rebate”). The Settlement Rebate will be earned upon each eligible customer

purchase. If annual purchases during this 24-month period were to occur at the level of annual

sales of Food Service Equipment conservatively projected by CHG for 2011 and 2012, the total

Settlement Rebate would represent an approximate value of $1,708,500 over the 24-month

period.

G. Most Favored Nation

40. Plaintiffs and Class Counsel agree to use their best efforts to ensure that they do

not settle with any Defendant that executes a settlement agreement with Plaintiffs or the Class

after the date of the execution of this Settlement Agreement at a value lower than the value of

this Settlement Agreement. The value of CHG’s settlement compared to that of any other

Defendant will be calculated as follows. CHG’s total settlement value for comparison purposes

shall be $2,508,500 (“CHG Settlement Value”). A settling Defendant’s settlement value shall be

calculated by (1) calculating the cash value of any non-cash settlement terms, including any

rebates, discounts, or other non-cash price relief, had those terms applied to that settling

Defendant’s 2009 sales of Food Service Equipment, and (2) then adding that total to all cash paid

or to be paid by the settling Defendant in conjunction with the settlement (in total, the

“Defendant Settlement Value.”)

41. Plaintiffs and Class Counsel shall notify CHG of the full terms and conditions of

any such settlement(s) with any other Defendants within ten (10) days after any such settlement

is entered so that CHG shall have reasonable time to review the settlement. CHG shall have ten

(10) days after receiving such notice to notify plaintiffs in writing if CHG contends that Plaintiffs

and Class Counsel have failed to use best efforts, as required by the preceding paragraph, in

reaching a settlement with such other Defendants.


17

H. The Settlement Fund

42. CHG and the Releasees shall have no liability or responsibility for disbursements

from, or administration of, the Settlement Fund. CHG and the Releasees shall not be liable for

any costs or attorneys’ fees of Plaintiffs or the Participating Class Members, including but not

limited to costs or expenses of Plaintiffs’ counsel, experts, consultants, agents or representatives.

Such costs and attorneys’ fees as approved by the Court shall be paid out of the Settlement Fund.

CHG and the Releasees further shall not be liable for any of the expenses of notice to the Class

or administration of the Settlement Fund, except that all such expenses shall be paid out of the

Settlement Fund.

43. Class Counsel may at an appropriate time, determined in their sole discretion,

submit a motion seeking approval of the payment of attorneys’ fees and expenses from the

Settlemetn Fund. CHG shall have no obligation to pay any amount of Class Counsel’s attorneys’

fees or the costs or expenses of litigation for the Settlement Class.

44. Subject to Court approval, Plaintiffs and Class Counsel shall be reimbursed and

paid solely out of the Settlement Fund for all expenses including, but not limited to, attorneys’

fees and past, current, or future litigation expenses. Attorney’s fees and expenses awarded by the

Court shall be payable from the Settlement Fund upon award, notwithstanding the existence of

any timely filed objections thereto, or potential for appeal therefrom, or collateral attack on the

settlement or any part thereof, subject to Class Counsel’s obligation to make appropriate refunds

or repayments to the Settlement Fund, if and when, as a result of any appeal and/or further

proceedings on remand, or successful collateral attack, the fee or cost award is reduced or

reversed. CHG shall not be liable for any costs, fees, or expenses of any of Plaintiffs’ respective

attorneys, experts, advisors, agents, or representatives, but all such costs, fees, and expenses as

approved by the Court may be paid out of the Settlement Fund. In the event that attorneys’ fees


18

or costs are paid out of the Settlement Fund and Final Approval is not subsequently received,

Class Counsel shall reimburse all withdrawn attorneys’ fees and costs, except for the costs of

notice, to the Settlement Fund prior to the return of the Settlement Fund to CHG.

45. Except as provided for herein, CHG and the Releasees agree not to object, subject

to an order of the Court in the Action, to the payment to Class Counsel of approved attorneys’

fees, costs, and expenses out of the Settlement Fund. Disbursement of such fees, costs, and

expenses shall not be delayed by reason of any appeal of the Final Judgment in the Action;

provided, however, that if the Court’s award of fees, costs, and expenses is vacated, reversed, or

reduced on or as a result of an appeal, Class Counsel shall within ten (10) business days after

receiving written notice from the Court inform CHG of such vacatur, reversal, or reduction, and

make a refund to the Escrow Account in the amount of such vacatur, reversal, or reduction.

46. Any Escrow Accounts shall be invested in United States Government Treasury

Bills or Notes of no more than six (6) month’s duration (provided, however, that such portions of

the Settlement Fund as may reasonably be needed to pay current expenses associated with

providing notice to the Class, administering the Settlement Fund and the settlement may be

deposited in a federally insured bank account in an amount not exceeding $40,000.) Any escrow

fees or charges shall be deducted from the Settlement Fund. CHG will not be responsible for any

escrow fees or charges incurred beyond its payment of the Cash Settlement Amount. All interest

earned on the Settlement Fund shall become and remain part of the Settlement Fund. In the

event that Final Approval is not received on the Settlement Agreement or in the event that the

Settlement Agreement is rescinded, the Settlement Fund shall be immediately returned, in its

entirety, to CHG, including any and all interest that has accrued.


19

I. Cooperation Agreement

47. CHG agrees to use commercially reasonable efforts to provide cooperation

(including but not limited to production of documents, witness interviews, depositions and

testimony at trial) to Plaintiffs as part of the settlement as set forth in this section. CHG agrees to

use commercially reasonable efforts to obtain cooperation from Thomas Carr, including but not

limited to production of any documents under his control, an interview, deposition, declaration

and/or affidavit, and testimony at trial. All cooperation shall be coordinated to avoid all

unnecessary duplication and expense. The terms of CHG’s cooperation with Plaintiffs’

prosecution and of the Action are set forth specifically below.

48. Confidentiality. In connection with its provision of information, testimony, and

documents, CHG shall have the right to assert the attorney-client privilege, attorney-work

product protection, whether arising under U.S. or foreign law, or applicable privacy laws

available under the pertinent foreign law.

49. Plaintiffs and Class Counsel will not use or disclose any information, testimony,

or documents provided by CHG for any purpose other than the investigation or prosecution of

the claims asserted in the Action. Any materials produced by CHG that are marked

“Confidential,” or any testimony designated “Confidential,” shall not be disclosed to any persons

other than Class Counsel and/or individuals affiliated with CHG, except as follows. To the

extent that Class Counsel disclose any such information designated “Confidential” in the Action

to the Court, Class Counsel shall only disclose such information pursuant to the terms of any

protective orders entered in the Action, unless otherwise ordered by the Court, and shall file any

documents reflecting “Confidential” information with the Court only under seal, unless first

informed by CHG’s counsel that filing a particular document under seal is not necessary.

Information, testimony, or documents provided by CHG in the United States shall remain in the


20

United States unless Plaintiffs are validly compelled to produce it by a court, tribunal, or

governmental entity to a litigation or governmental entity outside the United States or unless

Class Counsel share the documents with retained consulting or testifying experts outside the

United States who agree in writing to abide by the applicable protective order and terms of this

paragraph and not to disclose the information, testimony, or documents outside the scope of their

work in this Action. In the event the Plaintiffs are requested to produce such information, Class

Counsel shall provide adequate prior notice of at least five (5) business days to CHG and its

counsel to permit CHG to object to such production. These confidentiality protections

supplement — and do not limit or restrict — any additional protections afforded by any

Protective Orders entered by the Court.

50. The Parties and their counsel further agree that any statements made by CHG’s

counsel in connection with and/or as part of this settlement shall be protected by Federal Rule of

Evidence 408, and shall in no event be discoverable by any Person or treated as evidence of any

kind.

51. Interviews. Beginning seven (7) days after Preliminary Approval, CHG shall use

commercially reasonable efforts to make available for interviews with Class Counsel and/or

experts, upon reasonable notice and at a mutually agreeable date and time, (subject to the

qualifications in paragraph 55 below), current and former employees of CHG, to be designated

by Class Counsel, who Class Counsel reasonably believe in good faith possess information that

may be relevant to Plaintiffs’ claims as alleged in the Class Action.1

1 In agreeing to make persons available pursuant to this Settlement Agreement, CHG does not concede that any such person has knowledge that supports Plaintiffs’ claims.

The number of such

interviews will be mutually agreed upon by CHG’s counsel and Class Counsel, and shall take

place at a location of CHG’s choosing. Each party shall be responsible for its own costs of


21

preparing for and conducting the interview, including the costs of its counsel and any individuals

affiliated with that party. The substance of the interviews must be relevant to the Claims in the

Class Action. Further, CHG and the interviewees do not waive and shall be entitled to assert all

testimonial privileges and protections. Such interviews must be conducted within 12 months of

the Effective Date of this Agreement, unless good cause is shown.2

52. Declarations and Affidavits. Upon reasonable notice and at a mutually

convenient date and time, but no earlier than seven (7) days after Final Approval, CHG shall use

commercially reasonable efforts to make available to Class Counsel (subject to the qualifications

in paragraph 55 below), current and former employees of CHG that Class Counsel have a good-

faith reason to believe may provide declarations or affidavits reasonably necessary to the

prosecution of the Action. Any such meeting will take place at a location of CHG’s choosing,

and shall be conducted for the purpose of preparing such affidavits or declarations. The content

of the affidavit or declaration must be relevant to the Claims in the Class Action and shall be

such that the declarant or affiant is willing to sign under penalty of perjury. Further, CHG and

the declarant or affiant do not waive and shall be entitled to assert all testimonial privileges and

protections. Such declarations or affidavits must be prepared and executed within 12 months of

the Effective Date of this Agreement, unless good cause is shown.

If any person initially

refuses to cooperate under this paragraph, CHG shall use commercially reasonable efforts to

make such person available for interviews with Class Counsel. Class Counsel acknowledge that

such employees or former employees of CHG may be represented by separate counsel and

therefore may not be made available to CHG or Class Counsel for this purpose.

3

2 Any unresolved disputes shall be resolved by the Court as to what constitutes “good cause.”

Class Counsel acknowledge

3 Any unresolved disputes shall be resolved by the Court as to what constitutes “good cause.”


22

that such employees or former employees of CHG may be represented by separate counsel and

therefore may not be made available to CHG for this purpose.

53. Depositions. Following the Final Approval of this Settlement Agreement, and

upon reasonable notice by Class Counsel, upon reasonable notice and at a mutually agreeable

date and time, CHG shall use commercially reasonable efforts to make available (subject to the

qualifications in paragraph 55 below) current and former employees of CHG for depositions

provided that Class Counsel has a good-faith reason to believe that such depositions are

reasonably necessary for the prosecution of the Class Action. Such depositions shall take place

at a location of CHG’s choosing. Each party shall be responsible for its own costs of preparing

for and conducting the deposition, including the costs of its counsel and any individuals affiliated

with that party. The number of depositions under this paragraph shall be mutually agreed upon

between CHG’s Counsel and Class Counsel. If any person initially refuses to cooperate under

this paragraph, CHG shall use commercially reasonable efforts to make such person available for

deposition. Class Counsel acknowledges that such employees or former employees of CHG may

be represented by separate counsel and therefore may not be made available to CHG or Class

Counsel for this purpose. Depositions shall be designated as confidential.

54. Testimony at Trial. Upon reasonable notice, and upon consultation with counsel

for CHG, CHG shall use commercially reasonable efforts to request to be available for trial

testimony in the United States, at the Settlement Class’s expense, (subject to the qualifications in

paragraph 55 below), current and former employees of CHG who possess information that Class

Counsel or CHG believe in good faith would reasonably assist Plaintiffs in prosecution of the

Class Action. If any person initially refuses to cooperate under this paragraph, CHG shall use

commercially reasonable efforts to make such person available for testimony at trial. Class


23

Counsel acknowledges that such employees or former employees of CHG may be represented by

separate counsel and therefore may not be made available to CHG or Class Counsel for this

purpose.

55. Efforts as to Former Employees. With respect to all former employees, CHG

shall use commercially reasonable efforts to request in good faith that such former employees

appear for interviews, depositions, and trial testimony, and to provide declarations or affidavits

as set out in the preceding subparagraphs, and CHG shall have no further obligations with

respect to securing the person’s cooperation or appearance.

56. Production of Documents. Upon Plaintiffs’ request, CHG agrees to use

commercially reasonable efforts to provide full cooperation with Class Counsel with respect to

discovery and gathering evidentiary materials relating to Plaintiffs’ claims in this Action.

However, Plaintiffs agree to not use the documents publicly until Preliminary Approval of this

Settlement Agreement is granted. In the event that Final Approval is not received, Plaintiffs

agree to return all gathered materials provided by CHG to CHG pursuant to this agreement, and

not to further use those materials for any purpose, except to the extent such materials were

already relied upon in the Class Action. CHG’s cooperation under this paragraph includes but

not limited to the production of the following categories of documents, to the extent such

documents exist and are in its possession, custody, or control: (i) transaction data in electronic

format sufficient to show all of the CHG’s sales of Food Service Equipment in the United States

during the Class Period, to the extent that information has not been previously produced to

Plaintiffs; (ii) documents relating to or reflecting actual or potential communications between

CHG and one or more Defendants regarding pricing, bidding, or markets for purchases in the

United States; (iii) copies of Documents provided to the United States Department of Justice or


24

any other Governmental Entity investigating alleged antitrust violations in the Food Service

Equipment industry relevant to Plaintiffs’ claims as alleged in the Action; (iv) upon reasonable

and specific requests, and within a reasonable time frame, any other documents relevant to

Plaintiffs’ claims as alleged in the Class Action, to the extent such documents have not already

been produced. If any document protected by the attorney-client privilege or work product

doctrine is accidentally or inadvertently produced, the Document shall promptly be returned to

CHG, and its production shall in no way be construed to have waived any privilege or protection

attached to such Document.

57. Authentication of Documents. After Final Approval, CHG agrees to use

commercially reasonable efforts to produce at trial or deposition, or through affidavits or

declarations, at CHG’s option, qualified representatives of their choice to authenticate CHG’s

documents produced in the Class Action, and if applicable, to provide the testimony reasonably

necessary to lay the foundation for the admission of the documents as a business record.

58. Scope of Discovery. Plaintiffs acknowledge that this Class Action is limited to

sales in the United States, and will not request interviews, testimony, documents, or other

evidence relating to sales or alleged conduct affecting or occurring in markets outside the United

States.

59. Nothing in this Settlement Agreement, including the cooperation provisions under

Section I, shall be deemed a waiver by CHG of any privilege (including the attorney-client

privilege) or protection (including the work product doctrine or any confidentiality agreement),

and CHG shall be entitled to assert those privileges and protections notwithstanding this

Settlement Agreement.


25

60. Nothing in this Settlement Agreement, including the cooperation provisions under

Section I, shall constitute a representation or agreement to provide information, documents, or

testimony that is not completely truthful and accurate. Further, nothing in this Settlement

Agreement, including the cooperation provisions under Section I, shall constitute an agreement

to provide any particular substantive testimony (by declaration or otherwise), whether favorable

or unfavorable to any party in the Class Action, other than truthful testimony on topics that that

in Class Counsel’s good faith view are reasonably relevant to the Claims in the Class Action.

61. Nothing in this Settlement Agreement shall be construed to require CHG to

commit any act, including the transmittal or disclosure of any information, which would violate

any law protecting the privacy of personal information about any individual employed or

formerly employed by CHG.

62. If the Settlement Agreement is rescinded, terminated, or otherwise becomes

ineffective or void, at any time subsequent to the Effective Date, Plaintiffs shall, if requested by

CHG, return to the CHG or destroy, and provide CHG with a written certification by Class

Counsel of such destruction, all Documents or other materials provided to the Plaintiffs, the

Class or Class Counsel by CHG pursuant to the cooperation provisions of this Settlement

Agreement.

J. Taxes

63. Class Counsel shall be solely responsible for filing all informational and other tax

returns necessary to report any net taxable income earned by the Settlement Fund and shall file

all informational and other tax returns necessary to report any income earned by the Settlement

Fund and shall be solely responsible for taking out of the Settlement Fund, as and when legally

required, any tax payments, including interest and penalties due on income earned by the

Settlement Fund. All taxes (including any interest and penalties) due with respect to the income


26

earned by the Settlement Fund shall be paid from the Settlement Fund. CHG shall have no

responsibility to make any filings relating to the Settlement Fund and will have to responsibility

to pay tax on any income earned by the Settlement Fund or to pay any taxes on the Settlement

Fund unless the settlement is not consummated, and the Settlement Fund is returned to CHG. In

the event the settlement is not consummated and the Settlement Fund is returned to CHG, CHG

shall be responsible for the payment of all taxes (including any interest or penalties), if any, of on

said income.

64. The Parties to this Settlement Agreement and their counsel shall treat, and shall

cause the Claims Administrator to treat, the Escrow Accounts as being at all times a “qualified

settlement fund” within the meaning of Treas. Reg. § 1.468B 1. The Parties, their counsel, the

Claims Administrator, and the Escrow Agent agree that they will not ask the Court to take any

action inconsistent with the treatment of the Escrow Accounts in such manner. In addition, the

Claims Administrator and, as required, the Parties shall timely make such elections as necessary

or advisable to carry out the provisions of this paragraph, including the “relation-back election”

(as defined in Treas. Reg. § 1.468B l(j)) back to the earliest permitted date. Such elections shall

be made in compliance with the procedures and requirements contained in such regulations. It

shall be the responsibility of the Claims Administrator timely and properly to prepare and deliver

the necessary documentation for signature by all necessary parties and thereafter to cause the

appropriate filing to occur. All provisions of this Settlement Agreement shall be interpreted in a

manner that is consistent with the Escrow Accounts being a “qualified settlement fund” within

the meaning of Treas. Reg. § 1.468B 1.

K. Miscellaneous

65. This Settlement Agreement does not settle or compromise any claim by Plaintiffs

or any Class Member against any Defendant or alleged co-conspirator or any other person or


27

entity other than the Releasees. All rights of any Class Member against a Defendant or co-

conspirator or any other person or entity other than the Releasees are specifically reserved by

Plaintiffs and the Class Members.

66. Plaintiffs and CHG agree that persons or entities that exercised their opportunity

to opt-out of the Settlement Class and do not elect to be bound by the terms of this Settlement

Agreement in accordance with the Court’s opt-out procedure are not entitled to the benefits and

relief of this Settlement Agreement, including receipt of any portion of the Cash Settlement

Amount and the Settlement Rebate.

67. Class Counsel and Plaintiffs shall not assist any person or entity that timely opted

out of the Settlement Class, or their counsel, in any way in litigation or preparation for litigation

concerning the subject matter of the Class Action.

68. Class Counsel and Plaintiffs agree that immediately following the Execution

Date, CHG and their counsel may contact and communicate directly or indirectly with, in person

or otherwise at CHG’s discretion, any members of the putative Settlement Class for the purpose

of describing and explaining the Settlement Agreement and the basis for the Settlement

Agreement. Class Counsel agree to make themselves available on reasonable notice to

participate in any such contact or communication, if requested to do so by CHG.

69. CHG and Plaintiffs expressly reserve all of their respective rights and positions in

the Class Action, without prejudice, to the extent that the Settlement Agreement does not receive

Final Approval from the Court or, if appealed, from the Appellate Court or if the Settlement

Agreement is rescinded by any party to this Settlement Agreement or otherwise becomes null

and void.


28

70. For the purpose of construing or interpreting this Settlement Agreement, Plaintiffs

and CHG agree that it is to be deemed to have been drafted equally by all parties hereto and shall

not be construed strictly for or against any party.

71. Should any of the Cash Settlement Amount remain in the Settlement Fund after

the distribution of all payments to Participating Class Members and the distribution of other

funds as authorized by the Court, including the distribution of funds to Plaintiffs’ Counsel but

excluding any cy pres award, all such remaining funds shall be returned to CHG within thirty

(30) days of final distribution of all other funds. Plaintiffs agree not to seek cy pres or fluid

distribution of any portion of the Settlement Fund.

72. This Settlement Agreement shall constitute the entire agreement between

Plaintiffs and CHG pertaining to the settlement of the Class Action with regard to the Releasees

and supersedes any and all prior and contemporaneous undertakings of Plaintiffs and CHG in

connection therewith.

73. All terms of the Settlement Agreement are contractual and not mere recitals. This

Settlement Agreement shall be binding upon, and inure to the benefit of, the successors and

assigns of Releasors and Releasees. Without limiting the generality of the foregoing each and

every covenant and agreement made herein by Plaintiffs shall be binding upon all Participating

Class Members and Releasors.

74. Nothing expressed or implied in this Settlement Agreement is intended to or shall

be construed to confer upon or give any person or entity other than Plaintiffs, Participating Class

Members, CHG, Releasors, and Releasees any right or remedy under or by reason of this



29

75. This Settlement Agreement may be modified or amended only by a writing jointly

executed by Class Counsel and counsel for CHG, subject (if after preliminary or final approval

by any court) to approval by the Court. Amendments and modifications may be made without

notice to the Settlement Class unless notice is required by law or by the Court.

76. All terms of this Settlement Agreement shall be governed by and interpreted

according to the substantive laws of the State of Georgia without regard to its choice of law or

conflict of law principles.

77. CHG, the Releasors, and each Participating Class Member hereby irrevocably

submit to the exclusive jurisdiction of the Court for any suit, action, proceeding or dispute

arising out of or relating to this Settlement Agreement or the applicability of this Settlement

Agreement. Nothing herein shall be construed as a submission to jurisdiction for any purpose

other than enforcement of the Settlement Agreement.

78. Any disputes between or among CHG and any Participating Class Member or

Settlement Class Members concerning matters contained in this Settlement Agreement shall, if

they cannot be resolved by negotiation and agreement, be submitted to the Court. The Court

shall retain jurisdiction over the implementation and enforcement of this Settlement Agreement.

79. The headings used in this Settlement Agreement are intended for convenience of

the reader only and shall not affect the meaning or interpretation of this Settlement Agreement.

80. This Settlement Agreement contains an entire, complete and integrated statement

of each and every term and provision agreed to by and among the parties, and it is not subject to

any condition not provided for herein.


30

81. This Settlement Agreement may be executed in counterparts by Class Counsel,

CHG and its counsel, and a facsimile or pdf signature shall be deemed an original signature for

purposes of executing this Settlement Agreement.

82. Each of the undersigned attorneys and parties represents that they are fully

authorized to enter into the terms and conditions of, and to execute, this Settlement Agreement,

subject to Court approval; and the undersigned Plaintiffs’ counsel represents that they are

authorized to execute this Settlement Agreement on behalf of Plaintiffs and the Settlement Class.

All of the undersigned attorneys shall use their best efforts to effectuate this Settlement

Agreement. The Settlement Agreement shall be deemed executed on the date of signature for

Class Counsel and counsel for CHG.

83. Where this Settlement Agreement requires any party to provide notice or any

other communication or document to any other party, such notice, communication, or document

shall be provided letter transmitted by facsimile or by overnight delivery at the address(es)

reflected on the signature pages.


Dated: September 17, 2010

}~7~ WIlliam P. Carr CARR & PALMER, LLP 10 North Parkway Square 4200 Northside Parkway Atlanta, GA 30327 Tel: (404) 442-9000 Fax: (404) 442-9700 Email: [email protected]

~~~ Ryan Kriger LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Tel: (212) 907-0700 Fax: (212) 818-0477 Email: [email protected]

[email protected]

1700 K Street, NW Suite 650 Washington, D.C. 20006 Email: [email protected]

[email protected]

Co-Counsel for the Settlement Class

31


James H. Mutchnik, P.C. Christopher T. Casamassima Andrew T. Dustin Jonathan Lahn KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 Tel: (312) 862-2000 Fax: (312) 862-2200 Email: ·[email protected]

[email protected] [email protected] j [email protected]

Counsel for Component Hardware Group, Inc.

31


CONFIDENTIAL SETTLEMENT MATERIALS


ATLANTA DIVISION



Master Consolidated Case File No.1: 1 O-cv-1849-WSD

SETTLEMENT AGREEMENT ADDENDUM

WHEREAS, on September 17, 2010, putative plaintiff class representative in the above-

captioned litigation Kohlder Manufacturing Co., Inc., ("Kohlder") individually and on behalf of

the Participating Class Members of the Settlement Class, did enter into a settlement agreement

("Settlement Agreement") with Component Hardware Group, Inc. ("CHG");

WHEREAS, QualServ Corporation ("QuaIServ"), an additional putative plaintiff class

representative in the above-captioned litigation, has reviewed the Settlement Agreement and,

having conferred with its counsel, hereby agrees to all of the terms and provisions thereof, which

agreement is reflected by its signature below;

ACCORDINGL Y, IT IS HEREBY STIPULATED, CONSENTED TO AND AGREED,

pursuant to paragraph 75 of the Settlement Agreement, by and among counsel for Kohlder,

QualServ, and CHG (the "Settling Parties") herein, that the Settlement Agreement is amended as

follows:

1. The introductory paragraph is amended to state, in relevant paIt: "This Settlement

Agreement ("Settlement Agreement") is made and entered into this 5th day of October by and


between the following "Parties": Component Hardware Group, Inc . ("CHG") and putative

plain!~ff.(Jass representative~ Kohlder Manufacturing Co., Inc. and OualServ Corporation on

behalf of themselves and the Participating Class Members of the Settlement Class (as defined

herein) ("Plaintiffs") as purchaser~ of Food Service Equipment (as defined herein) in the United

States from CHG (or any of its subsidiaries or affiliates) or any Defendant or alleged co-

conspirators named or that may be named in the Consolidated Class Action Complaint filed on

September 17, 2010, for the period from FeblUary 1, 2004 through February 1 1, 2009 or such

later date through which the anticompetitive effects of the conspiracy continued, as may be

determined in the Class Action:"

2. The Settlement Agreement, as amended herein, remains in full force and effect.

3. Capitalized terms used herein, but not otherwise defined, have the meaning

assigned to them in the Settlement Agreement

Dated: October~, 2010

Wil iam P. Carr CARR & PALMER, LLP 10 North Parkway Square 4200 NOlihside Parkway Atlanta, GA 30327 Tel: (404) 442-9000 Fax: (404) 442-9700 Email: [email protected]

2


140 Broadway New York, NY 10005 Tel: (212) 907-0700 Fax: (212) 818-0477 Email: [email protected]

[email protected]

1700 K Street, NW Suite 650 Washington, D.C. 20006 Email: [email protected]

[email protected]

Co-Counseljor the Settlement Class

3


Dated: October S, 2010

~~-n) Frank M. Lowrey IV Georgia Bar No. 410310 BONDURANT, MIXSON & ELMORE LLP 1201 West Peachtree Street, N. W. 3900 One Atlantic Center Atlanta, Georgia 30309 Tel: (404) 881-4118 Email: [email protected]

James H. Mutchnik, P.C. Christopher T. Casamassima Andrew T. Dustin Jonathan Lahn KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 Tel: (312) 862-2000 Fax: (312) 862-2200 Email: [email protected]

[email protected] [email protected] j [email protected]

Counsel Jor Component Hardware Group, Inc.

746793 v2 [1015/201015:\3] 4


CONFIDENTIAL SETTLEMENT MATERIALS


A TLANT A DIVISION



Master Consolidated Case File No.l:10-cv-1849-WSD

SETTLEMENT AGREEMENT SECOND ADDENDUM

Pursuant to paragraph 75 of the Settlement Agreement entered into on September 17,

2010 and amended in an Addendum signed October 4, 2010 between putative plaintiff class

representatives Kohlder Manufacturing Co., Inc. and QualServ Corporation, individually and on

behalf of the Participating Class Members of the Settlement Class, and Component Hardware

Group, Inc., IT IS HEREBY STIPULATED, CONSENTED TO AND AGREED that the

Settlement Agreement is further amended as follows:

I. This Settlement Agreement ("Settlement Agreement") is made and entered into

this 5th day of October by and between the following "Parties": Component Hardware Group,

Inc. ("CHG") and putative plaintiff class representative Kohlder Manufacturing Co., Inc. and

QualServ Corporation on behalf of themselves and the Participating Class Members of the

Settlement Class (as defined herein) ("Plaintiffs") as a purchasers of Food Service Equipment (as

defined herein) in the United States from CHG (or any of its subsidiaries or affiliates) or any


Defendant or alleged co-conspirators named or that may be named in the Consolidated Class

Action Complaint filed on September 17,2010, for the period from February 1,2004 through

February 11, 2009 or SUCH later date tHroUgH \\<ilich tHe aftticompetitive effeots of the conspiracy

continued, as may be determined in the Class Action:.

2. Paragraph 7 is amended to state:

"Class Period" means the period from and including February 1, 2004 up to and

including February 11, 2009 01' such later date through whiCH the amicompetitive effects of the

conspiracy continued, as may be determined in the Class Action.


"Food Service Equipment" means any type of food service equipment component

hardware products as defined by paragraph 17 of the consolidated complaint filed on September

17,2010, sold by Defendants in the Class Aetion, or any alleged co-conspirators from February

1, 2004, through February 11, 2009 or such later date tHrough WHich tHe anticompetitive effects

of the conspiracy continued, as may be determined in tHe Class Action, excluding oven canopy

hoods and any plumbing product.


"Settlement Class" means: All persons and entities that purchased Food Service

Equipment within the United States, directly from Defendants in the Class Action or any of their

affiliates, or from any alleged co-conspirators or any of their affiliates, during the period from

February 1, 2004 through February 11, 2009 or SUCH later date through vihich the anti competitive

effects of tHe conspiracy continued, as may be determined in tHe Class Action. Excluded from

the Class are Defendants, their respective parents, employees, subsidiaries, and affiliates, their

alleged co-conspirators, and all government entities.

2



The Parties hereby stipulate for the purposes of this Settlement Agreement that the

requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3) are satisfied in this case,

and, subject to Court approval, the following Settlement Class shall be certified for settlement

purposes as to the Releasees:

All persons and entities that purchased Food Service Equipment within the United States, directly from CHG or any of its affiliates, Defendants or any of their affiliates, or from any alleged co-conspirators or any of their affiliates, during the period from February I, 2004 through February I I, 2009 or such later date through which the anticompetitive effects of the conspiracy continued, as may be determined in the Class Action. Excluded from the Class are Defendants, their respective parents, employees, subsidiaries, and affiliates, their alleged co-conspirators, and all government entities.


Upon preliminary approval of the Settlement Agreement, Class Counsel shall, in

accordance with Fed. R. Civ. P. 23 and the Court's order, provide Settlement Class Members


Agreement and the date of the hearing scheduled by the Court to consider the fairness, adequacy,

and reasonableness of the proposed Settlement Agreement (the "Settlement Hearing").

Individual notice of the settlement shall be mailed to persons and entities who have been

identified by CHG, and any other entity identified by Defendants, whether provided voluntarily

or ordered by a Court, as direct purchasers of Food Service Equipment in the United States from

CHG or any of its affiliates, from Defendants in the Class Action, or from any alleged co-

conspirators from February I, 2004 through February I I, 2009 6f-ffiIch later date through which

the anti competitive effects of the conspiracy continued, as may be determined in the Class

Action, and notice of the settlement shall be published once in accord with the notice plan

described in the motion for preliminary approval. The failure of any Class Member to receive

notice or any other document as described in this Settlement Agreement shall not be a basis for

3


invalidating this Settlement Agreement or any order entered pursuant thereto, and the Settlement

Agreement, Release, and covenants not to sue shall nevertheless be binding and the final

judgment approving the Settlement Agreement effective, in accordance with their terms.

7. The Settlement Agreement, as amended herein, remains in full force and effect.

8. Capitalized terms used herein, but not otherwise defined, have the meaning

assigned to them in the Settlement Agreement.

Dated: February 3, 2011

ktL~G\ Q ('O ... ~C.o'\ l-t "::J William P. Carr CARR & PALMER, LLP 10 North Parkway Square 4200 NOIthside Parkway Atlanta, GA 30327 Tel: (404) 442-9000 Fax: (404) 442-9700 Email: [email protected]

4v=tiJ d~C41\kl/l H't.T Hollis Salzman LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Tel: (212) 907-0700 Fax: (212) 818-0477 Email: [email protected]

Megan Jones HAUSFELD LLP 1700 K Street, NW Suite 650 Washington, D.C. 20006 Email: [email protected]

mjonesCGlhausfeldllp.com


4


Dated: February 3, 2011

/"'1w,,-t_JJJL)Wl~ Z T Frank M. Lowrey IV Georgia Bar No. 410310 BONDURANT, MIXSON & ELMORE LLP 1201 West Peachtree Street, N.W. 3900 One Atlantic Center Atlanta, Georgia 30309 Tel: (404) 881-4118 Email: [email protected]

Cl1jA(!,11 i[nu:tthl'--( r 11 cr James H. Mutchnik, P.C. Christopher T. Casamassima Andrew T. Dustin Jonathan Lahn KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 Tel: (312) 862-2000 Fax: (312) 862-2200 Email: [email protected]

[email protected] [email protected] [email protected]

Counsel jar Component Hardware Group, Inc.

5


EXHIBIT 5



ATLANTA DIVISION


THIS DOCUMENT RELATES TO: ALL CASES

Master Consolidated Case File No.1: 1O-cv-1849-WSD


This Settlement Agreement ("Settlement Agreement") is made and entered into this first

day of March, 2011, by and between the following "Parties": Kason Industries, Inc. ("Kason"),

Peter A. Katz ("Katz"), and putative plaintiff class representatives Kohlder Manufacturing Co.,

Inc. and Qualserv Corporation, (collectively, "Plaintiffs" in the captioned action) , individually

and on behalf of the Participating Class Members (as defined herein) of the Settlement Class (as

defined herein) as purchasers of Food Service Equipment Hardware (as defined herein) in the

United States from Kason (or any of its subsidiaries, divisions, or affiliates), Component

Hardware Group, Inc. (or any of its subsidiaries, divisions, or affiliates) ("CHG"), or any other

Defendant or alleged co-conspirators named or that may be named in the Consolidated Class

Action Complaint filed on September 17, 2010, for the period from February 1,2004 through

February 11,2009.

WHEREAS, Plaintiffs brought this action on behalf of themselves and other direct

purchasers of Food Service Equipment Hardware (including but not limited to All Star Carts &

Vehicles, Inc., American Hood Systems, Inc., and Raymond L. Masse d/b/a Capital Area

Case 1:10-cv-01849-WSD Document 100-2 Filed 04/08/11 Page 1 of 27Case 3:11-cv-00064-MMA-DHB Document 91-7 Filed 01/10/13 Page 2 of 28

Refrigeration and d/b/a Lou's Refrigeration, Heating & Cooling) alleging violations oflaw by

Kason, Katz, and others, including the existence of unlawful conspiracies to restrict competition,

allocate customers, fix prices, and rig bids with respect to the sale of Food Service Equipment

Hardware in the United States in violation of Section 1 of the Sherman Antitrust Act and Section

4 of the Clayton Act;

WHEREAS, although Kason and Katz deny any and all liability, injury, or damage to the

Settlement Class, have filed a Motion to Dismiss the Complaint, and would assert a number of

defenses to Plaintiffs' claims if such Motion were denied, Kason and Katz have concluded that

they will enter this Settlement Agreement to avoid the expense, inconvenience, and burden of

litigation and any other present or future litigation arising out of the same facts that gave rise to

the Class Action, and to avoid the distraction and diversion of Kason's personnel and resources,

and to put to rest this controversy with its customers;

WHEREAS, due to its fmancial position, Kason is unable to offer economic value,

including any additional cash payment, to the Settlement Class in excess of the terms of this

settlement to resolve the Action without imperiling its operations and its continued viability as a

competitor in its industry;

WHEREAS, Class Counsel have concluded, after due investigation and after carefully

considering the relevant circumstances, including, without limitation, the claims asserted in the

Class Action and the legal and factual defenses thereto and the applicable law, and after review

of documents and data provided by Kason and otherwise obtained by the Plaintiffs, that it would

be in the best interests of the Plaintiffs and the Class Members to enter into this Settlement

Agreement to avoid the uncertainties oflitigation, to assure that the benefits reflected herein are

obtained for the Plaintiffs and all Class Members, and that this settlement fairly reflects the value

2


of the claims taking into account what Kason and Katz can realistically afford to offer to resolve

the Class Action; and, as a result, Class Counsel consider the settlement set forth herein to be

fair, reasonable, adequate, and in the best interests of Plaintiffs and all members of the Class;

WHEREAS, arm's-length settlement negotiations have taken place between Class

Counsel and counsel for Kason and Katz, and this Settlement Agreement, which embodies all of

the terms and conditions of the settlement between Kason, Katz, and the Plaintiffs and the Class,

has been reached, subject to the approval ofthe Court and Final Approval as provided herein;

WHEREAS, it is anticipated that this Settlement Agreement will resolve all claims,

potential claims, or other relief against or potentially against the Releasees (as defined herein)

that have been, or could have been, raised in the Class Action.

NOW, THEREFORE, in consideration ofthe covenants, terms, and releases in this

Settlement Agreement and for other good and valuable consideration, it is by and among the

undersigned agreed that the Class Action be settled, compromised, and fully resolved as to the

Releasees, without costs as to Plaintiffs, the Class, Kason, or Katz, including all such costs that

the Parties would have otherwise been entitled to recover, such as costs related to electronic

discovery, all subject to the approval of the Court and the following terms and conditions:

A. Definitions

The following terms, as used in this Settlement Agreement, have the following meanings.

The definitions herein are solely for purposes ofthis Agreement and do not constitute an

admission by any party with respect to the underlying facts as they may be relevant to the

Plaintiffs' claims:

1. "Action" or "Class Action" means the pending litigation among the parties

captioned In re Food Service Equipment Hardware Antitrust Litigation (No. 1:1O-cv-1849-

WSD), ("FSEH'), which is currently pending in the Northern District of Georgia, and includes 3


all cases that have been consolidated or coordinated with FSEH, may be consolidated or

coordinated with FSEH, or which raise allegations related or similar to the allegations raised or

that could have been raised in FSEH, and includes all actions based on the same conduct at

issue in FSEH.

2. "CHG" means Component Hardware Group, Inc., and all of its successors.

3. "CHG Settlement Agreement" means the settlement agreement dated September

17,2010, between Plaintiffs and CHG relating to the claims in this Action.

4. "Claims" means any and all suits, claims, rights, demands, assertions, allegations,

causes of action, controversies, proceedings, losses, damages, injuries, attorneys' fees, costs,

expenses, debts, liabilities, judgments, or remedies, which are related to the subject matter of

the Class Action, whether arising under federal or state or any other law, including all claims

that were or could have been brought in the Class Action.

5. "Claims Administrator" means an independent professional service to be selected

by Class Counsel and charged with administering the claims process and distribution of the

settlement.

6. "Class Counsel" means the law firms of Labaton Sucharow LLP, 140 Broadway,

New York, NY, 10005, and Hausfeld LLP, 1700 K Street, NW, Suite 650, Washington, D.C.,

20006.

7. "Class Member" or "Settlement Class Member" or "Class" means each member

of the proposed Settlement Class.

8. "Class Period" means the period from and including February I, 2004, up to and

including February 11,2009.

4


9. "Complaint" means the Consolidated Class Action Complaint filed in the Action

on September 17, 2010 (the "Complaint").

10. "Court" means the U.S. District for the Northern District of Georgia, Atlanta

Division.

11. "Defendants" means the Defendants to this Action: Kason Industries, Inc., Peter

A. Katz, CHG, and Thomas Carr.

12. "Kason Defendants" means Defendants Kason Industries, Inc. and Peter A. Katz.

13. "Effective Date" means the date on which the Settlement Agreement becomes

final in accordance with the terms of paragraph 34 hereof.

14. "Execution Date" means the date ofthe execution of this Settlement Agreement

by counsel for the Plaintiffs and each of the Kason Defendants.

15. "Food Service Equipment Hardware" means any type of food service equipment

component hardware products, as defined by paragraph 17 of the Complaint, sold by

Defendants in the Class Action, or any alleged co-conspirators during the Class Period, together

with oven canopy hoods and all plumbing products sold by Defendants Kason or CHG during

such time period.

16. "Kason" means Kason Industries, Inc. and all of its successors.

17. "Opt Out" means a Class Member who has submitted a timely and valid request

for exclusion from the Settlement Class pursuant to the opt -out procedure adopted by the Court.

18. "Participating Class Member" means every entity and person falling within the

definition of the Settlement Class defined herein that is not an Opt-Out (i.e., has not made a

timely and valid request for exclusion from the Settlement Class pursuant to the opt-out

procedure approved by the Court).

5


19. "Releasees" means, jointly and severally, individually and collectively, Kason and

Peter A. Katz and Kason's past, present and future parents, subsidiaries, divisions, affiliates,

stockholders, investors, equity holders, parent entities, owners, members, officers, advisors,

investors, and each and any of its past, present, and future respective members, officers,

directors, insurers, general or limited partners, employees, agents, legal representatives, together

with the predecessors, heirs, attorneys and executors, administrators, successors and assigns of

of the foregoing. Notwithstanding the foregoing, "Releasees" does not include (i) any

Defendant formerly or currently named in the Action, other than Kason, Katz, and those others

included in the definition of Releasees above; (ii) any Defendant (other than Kason, Katz, and

those others included in the definition of Releasees above) subsequently added or joined in the

Action; or (iii) any other co-conspirator of Defendants in the Action (other than Kason, Katz,

and those others included in the definition of Releasees above).

20. "Releasors" means, jointly and severally, individually and collectively, each and

every Plaintiff and Participating Class Member, including any of his, her or its past, present or

future parents, subsidiaries, divisions, affiliates, stockholders, and each and any of their

respective past, present, and future stockholders, officers, directors, insurers, general or limited

partners, agents, attorneys, employees, legal representatives, trustees, associates, heirs,

executors, administrators, purchasers, predecessors, successors and assigns, acting in their

capacity as such, and anyone claiming by or through them.

21. "Cash Settlement Amount" means one million and 001100 dollars ($1,000,000).

22. "Settlement Rebate" means the rebates discussed and defined in Section F of this


6


23. "Settlement Class" means the following: All persons and entities that purchased

Food Service Equipment Hardware within the United States, directly from Defendants in the

Class Action or any oftheir affiliates, or from any alleged co-conspirators or any of their

affiliates, during the Class Period or such later date through which the anticompetitive effects of

the conspiracy continued, as may be determined in the Class Action. Excluded from the

Settlement Class are Defendants, their respective parents, employees, subsidiaries, and

affiliates, their alleged co-conspirators, and all government entities.

24. "Kason-Settled Class Members" means Class Members that have previously

entered into a settlement agreement with the Kason Defendants.

25. "Settlement Fund" means the Cash Settlement Amount and any interest earned on

that amount.

26. "Taxes" means any sums due to be paid to governmental taxing authorities from,

or as a consequence of, the Cash Settlement Amount, paymentfor attorneys' fees, and payment

for notice and administration costs, including taxes, estimated taxes, interest and penalties.

27. "Tax Expenses" means any and all reasonable fees and costs due to be paid to tax

preparers, tax consultants or others for determining the tax liability ofthe Cash Settlement

Amount, payment for attorneys' fees, and payment for notice and administration costs and

otherwise assisting Class Counsel in carrying out their responsibilities under this Settlement

Agreement.

B. Stipulation to Class Certificatiou

28. The Parties hereby stipulate for the purposes of this Settlement Agreement that

the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3) are satisfied in this

7


case, and, subject to Court approval, the following Settlement Class shall be certified for

settlement purposes as to the Releasees:

All persons and entities that purchased Food Service Equipment Hardware within the United States, directly from Kason or CHG or any of their respective affiliates, or any other Defendants or any of their affiliates, or from any alleged co-conspirators or any of their affiliates, during the period from February 1,2004 through February 11,2009. Excluded from the Settlement Class are Defendants, their respective parents, employees, subsidiaries, and affiliates, their alleged co-conspirators, and all government entities.

29. The Parties' agreement as to certification of the Settlement Class is only for

purposes of effectuating this settlement and for no other purpose. The Parties retain all of their

respective objections, arguments and/or defenses with respect to class certification ifthe

Settlement Agreement is rescinded or otherwise does not receive Final Approval as defined

herein. The Parties acknowledge that there has been no stipulation to a class or certification of a

class for any purposes other than effectuating the Settlement Agreement, and that if the

Settlement Agreement does not receive Final Approval as defined herein, this agreement as to

certification of the Settlement Class becomes null and void ab initio and no party may cite to

this Settlement Agreement or certification of the Settlement Class in support of an argument for

certifYing a class.

C. Approval of this Settlement Agreement and Dismissal of Claims

30. Plaintiffs, Class Counsel, Kason, Katz, and their counsel agree to use their

reasonable best efforts to effectuate this Settlement Agreement, including, but not limited to,

cooperating in promptly seeking both preliminary and final approval of this Settlement

Agreement (including the giving of class notice under Federal Rules of Civil Procedure 23( c)

and (e) to secure certification of the Settlement Class), and the prompt, complete, and final

dismissal with prejudice ofthe Action as to all Releasees.

8


31. By the court-ordered deadline, Plaintiffs shall submit to the Court a motion for

preliminary approval of this Settlement Agreement, for authorization to disseminate notice to

the Settlement Class, and for a stay of all proceedings against the Releasees in the Class Action

or in any action asserting claims based on the facts alleged in the Action brought by or on behalf

of any members of the proposed Settlement Class (the "Motion"). The Motion shall include:

(a) the definition of the Settlement Class to be certified by the Court pursuant to this Settlement

Agreement; (b) the proposed form of, method for, and date of dissemination of notice to the

Settlement Class; (c) a proposed form of preliminary approval order; and (d) a proposed form of

final judgment order.

32. Within ten (10) days ofthe filing of the Motion, Class Counsel shall, on behalf of

all Parties to this Settlement Agreement, notify federal and state officials as specified in 28

U.S.C. §§ 1715(a) & (b).

33. Upon preliminary approval of the Settlement Agreement, Class Counsel shall, in

accordance with Fed. R. Civ. P. 23 and the Court's order, provide Settlement Class Members


Agreement and the date of the hearing scheduled by the Court to consider the fairness,

adequacy, and reasonableness of the proposed Settlement Agreement (the "Settlement

Hearing"). Individual notice ofthe settlement shall be mailed to persons and entities who have

been identified by Kason and Katz, and any other person or entity identified by Defendants,

whether provided voluntarily or ordered by a Court, as direct purchasers of Food Service

Equipment Hardware in the United States from Kason or any of its affiliates, from Defendants

in the Class Action, or from any alleged co-conspirators of Defendants during the Class Period,

and notice of the settlement shall be published once in accord with the notice plan described in

9


the motion for preliminary approval. The failure of any Class Member to receive notice or any

other document as described in this Settlement Agreement shall not be a basis for invalidating

this Settlement Agreement or any order entered pursuant thereto, and the Settlement Agreement,

Release, and covenants not to sue shall nevertheless be binding and the fmal judgment

approving the Settlement Agreement effective, in accordance with each of their respective

terms.

34. Class Counsel shall promptly submit a motion for final approval of the Settlement

Agreement by the Court after notice is given to the members of the Settlement Class of the

Settlement Hearing. lfthe Court approves the Settlement Agreement, Class Counsel shall seek

entry of an order and final judgment, which includes the following findings and orders:

a) Approving finally this Settlement Agreement and its terms as a fair, reasonable, and adequate settlement as to the Participating Class Members within the meaning of Rule 23 ofthe Federal Rules of Civil Procedure and directing its consummation according to its terms;

b) Ordering that, as to the Releasees, the Action be dismissed with prejudice and, except as specifically provided for in this Settlement Agreement, without costs;

c) Discharging and releasing the Releasees from all Released Claims, in conformance with this Settlement Agreement;

d) Reserving exclusive jurisdiction over the Settlement and this Settlement Agreement, including the administration and consummation of this settlement;

e) Determining under Federal Rule of Civil Procedure 54(b) that there is no just reason for delay and directing that the judgment of dismissal as to the Releasees shall be final and entered forthwith; and

f) Requiring Class Counsel to file with the Clerk of the Court a record of Opt-Outs, and to provide a copy of the record to counsel for Kason and Katz.

35. This Settlement Agreement shall become final and shall be deemed to have

received fmal approval ("Final Approval") on the date that: (a) the Court has entered a fmal

order approving this Settlement Agreement under Rule 23( e) of the Federal Rules of Civil

10


Procedure and a final judgment dismissing the Action as against Kason, Peter A. Katz, and the

Releasees with prejudice as to all Participating Class Members and without costs; and (b) the

time for appeal or to seek permission to appeal from the Court's approval of this Settlement

Agreement and entry of a final judgment as described in clause (a) above has expired or, if

appealed, approval of this Settlement Agreement and the final judgment has been affirmed in its

entirety by the court of last resort to which such appeal has been taken and such affirmation has

become no longer subject to further appeal or review. The Parties agree that neither the

provisions of Rule 60 of the Federal Rules of Civil Procedure nor the All Writs Act, 28 U.S.C. §

1651, shall be taken into account in determining the time of finality of the judgment. On the

Execution Date of this Settlement Agreement, the Parties shall be bound by its terms, and this

Settlement Agreement shall not be rescinded unless in accordance with terms provided herein.

Appeals relating solely to attorneys' fees, costs, or the plan of distribution shall not delay the

Final Approval of this Settlement Agreement and shall not delay the entry of final judgment, or

the finality of the judgment, as to the claims against any of the Releasees. In the event that

Final Approval is not received or this Settlement Agreement is rescinded as provided herein, (i)

this Settlement Agreement becomes null and void, (ii) any and all funds in the Settlement Fund

shall be returned to Kason in accordance with the terms below, and (iii) the Parties retain all of

their respective objections, arguments, and defenses with respect to class certification or any of

the Claims asserted by Plaintiffs in the Action.

36. The Parties acknowledge that Kason and Katz are entering into this Settlement

Agreement to eliminate the uncertainty, burden, and expense oflitigation without any

presumption or inference of admission of liability or wrongdoing or bad faith on the part of the

Releasees, and without any inference of admission of any impact, losses, or damages to

11


Plaintiffs or to the Settlement Class. The terms of this Settlement Agreement, the negotiations

leading up to this Settlement Agreement, performance in accordance with this Settlement

Agreement, and the data, documents, or information exchanged between the Parties in

connection with, or pursuant to, this Settlement Agreement, may not be offered, taken,

construed, or introduced as evidence ofliability or as an admission or statement of wrongdoing

by the Releasees, either in this Class Action, or in any pending or future civil or criminal

proceeding in any court of law or equity or before any government, administrative, or regulatory

agency or other tribunal in the United States or elsewhere in the world, except in a proceeding

to enforce this Settlement Agreement or to defend against the assertion of the claims in this

Class Action by Releasees or as otherwise required by law.

D. Release and Discharge

37. Upon the occurrence ofthe Final Approval, and in consideration of payment of

the Cash Settlement Amount and the offering ofthe Settlement Rebates, as specified in Sections

E and F ofthis Settlement Agreement, and for other valuable consideration recited herein, the

Releasees shall be completely released, acquitted, and forever discharged to the fullest extent

permitted by law from and against any and all Claims, demands, actions, suits, and causes of

action, whether class, individual, or otherwise in nature, damages of any nature whatsoever,

liabilities of any nature whatsoever, including costs, expenses, penalties, and attorneys fees, that

Releasors, or anyone of them, whether directly, indirectly, derivatively, or in any capacity

whatsoever, ever had, now has, or hereafter can, shall, or may have against the Releasees,

whether known or unknown, suspected or unsuspected, in law or equity, relating in any way to

or on account of or arising out of the facts, occurrences, transactions, or other matters alleged in

the Complaint in the Action, or contained in complaints containing the same or similar

allegations of conspiracy or collusion or aiding and abetting or other wrongful conduct between 12


or among Defendants, Kason, Katz, or any co-conspirators of Defendants, including any

conduct that could have been alleged in this Action based on conduct or events from the

beginning of time through the Effective Date of this Settlement Agreement, with respect to the

product and geographic markets in the Action, which arise under any federal, state, or common

law or the law of any nation or domestic or foreign or governmental entity, including antitrust,

unfair competition, unfair practices, price discrimination, unitary pricing, trade practice, unjust

enrichment, or civil conspiracy law, including, without limitation, the Sherman Antitrust Act,

15 U.S.C. § 1 et seq. (all of the foregoing collectively the "Released Claims").

38. Each Releasor waives California Civil Code Section 1542 and similar provisions

in other states. Each Releasor hereby certifies that he, she, or it is aware of and has read and

reviewed the following provision of California Civil Code Section 1542 ("Section 1542"): "A

general release does not extend to claims which the creditor does not know or suspect to exist in

his or her favor at the time of executing the release, which if known by him or her must have

materially affected his or her settlement with the debtor." The provisions ofthe release set forth

above shall apply according to their terms, regardless of the provisions of Section 1542 or any

equivalent, similar, or comparable present or future law or principle of law of any jurisdiction.

Each Releasor may hereafter discover facts other than or different from those which he, she, or

it knows or believes to be true with respect to the Claims that are the subj ect matter of this

Settlement Agreement, but each Releasor hereby expressly and fully, finally and forever waives

and relinquishes, and forever settles and releases any known or unknown, suspected or

unsuspected, contingent or non-contingent, Claim, whether or not concealed or hidden, without

regard to the subsequent discovery or existence of such different or additional facts, as well as

any and all rights and benefits existing under (i) Section 1542 or any equivalent, similar or

13


comparable present or future law or principle of law of any jurisdiction and (ii) any law or

principle of law of any jurisdiction that would limit or restrict the effect or scope of the

provisions of the release set forth above, without regard to the subsequent discovery or

existence of such other or different facts.

39. This Settlement Agreement is intended to fully and finally release all claims

against the Releasees that have been brought or could have been brought by the Settlement

Class. Each Releasor hereby covenants and agrees that he, she, or it shall not sue or otherwise

seek to establish or impose liability against any Releasee based, in whole or in part, on any of

the Released Claims. Nothing herein shall be construed to release any Claims relating to

geographic markets outside the United States or products other than Food Service Equipment

Hardware; however Releasees do not agree or admit, and nothing in this Settlement Agreement

establishes, implies, or can be used to suggest, that Plaintiffs, the Class Members, or any other

persons or entities have any valid claims against the Releasees. The release and discharge set

forth herein do not include Claims relating solely to payment disputes, physical harm, defective

product, breach of contract claims that did not arise from Released Claims, or bodily injury (the

"Excepted Claims"); provided that any claims that the violations oflaw alleged in this Action

constitute a breach of contract or an excuse for non-payment are not excluded claims and are

intended to be covered by the release and discharge set forth herein.

40. The Releasors covenant that, after the Execution Date ofthis Settlement

Agreement, they shall not seek to recover against any ofthe Releasees for any of the Released

Claims.

E. Cash Settlement

41. Kason shall payor cause to be paid the Cash Settlement Amount of$I,OOO,OOO in

settlement of the Action. The Cash Settlement Amount is the total and exclusive amount that 14


Kason will pay under this Settlement Agreement for the benefit of the Released Claims,

including without limitation funds to satisfy claims by any Participating Class Member,

attorneys' fees and costs, any Court-approved incentive awards to the Class Representative(s),

payment of any and all estimated taxes, Taxes, Tax Expenses, tax preparations fees, and

payment of any and all administrative and notice expenses associated with the Action or this


42. Kason shall pay the Cash Settlement Amount in two installments. The first

installment, for $500,000, shall be wire transferred by Kason or its designee within ten (10)

business days of the preliminary approval of the Settlement Agreement by the Court (the "First

Settlement Installment"). The First Settlement Installment shall be paid into an escrow account

identified by Class Counsel (the "Escrow Account") and administered in accordance with the

provisions ofthis Settlement Agreement. Kason or its designee shall wire transfer the second

installment of the Cash Settlement Amount, for $500,000, (the "Second Settlement

Installment") to the Escrow Account ten (10) days after the one-year anniversary of payment of

the First Settlement Installment into the Escrow Account, unless such date falls on a weekend or

bank holiday, in which case Kason shall wire the Second Settlement Installment on the first day

American banks are open for business following ten (10) days after the one-year anniversary of

payment of the First Settlement Installment into the Escrow Account. Kason shall not make any

contributions to the Settlement Fund other than the First Settlement Installment and the Second

Settlement Installment. Interest earned by the Settlement Fund shall be for the benefit ofthe

Participating Class Members.

43. Notwithstanding the foregoing, in the event that certain Class Members that have

not settled with Kason ("Non-Kason-Settled Class Members") submit timely and valid requests

15


for exclusion from the Settlement Class pursuant to the opt-out procedure adopted by the Court,

and such Class Members' purchases exceed an agreed upon amount, submitted to this Court in

camera, then Kason, at their option, may opt to withdraw from the settlement, in which event

the Plaintiffs and the Kason defendants would return to their respective positions immediately

prior to signing this agreement.

F. The Settlement Rebate

44. As further consideration for this settlement, Kason shall offer to all Participating

Class Members a 2.75% rebate off the purchase price for all purchases of Food Service

Equipment Hardware from Kason made in the U.S. during the thirty (30) month period starting

the first day of the month most immediately following the month in which Final Approval

occurs (the "Settlement Rebate"). The Settlement Rebate will be earned upon each eligible

customer purchase. If annual purchases during this 30-month period were to occur at the level

of annual s.ales of Food Service Equipment Hardware conservatively projected by Kason for the

period in which the rebates would be effective and if all Kason-Settled Class Members elect to

rescind their existing settlement agreements with Kason and participate in this settlement

pursuant to Section G of this Settlement Agreement, Kason estimates that based on its projected

sales that the total Settlement Rebate would represent an approximate value of $3,437,000 over

the 30-month period, and the overall settlement would have a value of $4,437,500.

G. Treatment of Kason-Settled Class Members

45. Pursuant to the terms of the individual settlement agreements between Kason and

Kason-Settled Customers, Kason represents that such customers have released all Claims and

are otherwise not entitled to participate in the distributions and rebates established by this

Settlement Agreement. Notwithstanding the foregoing, the Parties agree that each Kason-

Settled Participating Class Member shall have the option, in its sole discretion, to refund the

16


value of all cash consideration (including discounts and rebates) and non-cash consideration

paid or granted to such Kason-Settled Participating Class Member and forego any future

consideration under the terms of that agreement and elect instead to receive the benefits of this

Settlement. Any Kason-Settled Class Member that becomes a Participating Class Member and

that makes such an election shall be referred to herein as a "Kason Class Settlement Recipient."

46. If a Kason-Settled Participating Class Member wishes to make the foregoing

election and become a Kason Class Settlement Recipient, it must give notice of such election on

or before the date specified in the Notice. Within 10 calendar days after such election, each

electing Kason Settlement Class Recipient shall refund to Kason (i) the amount of all cash

consideration (including discounts and rebates) previously received from Kason pursuant to an

individual settlement agreement with Kason, and (ii) the fair value of any non-cash

consideration received by such Kason Class Settlement Recipient under such individual

settlement agreement. The return of all such consideration shall be a prerequisite to participate

in the benefits of the Settlement Agreement. Any dispute about such refund or the amount

thereof shall be subject to the jurisdiction of the Court. Plaintiffs take no position on the fair

value of any non-cash consideration received by any Kason-Settled Class Members in any

settlement previously agreed by such Class Member and Kason. The parties agree that any

unresolved conflicts regarding this provision shall not delay the proceeding, related to Final

Approval and distribution of the Settlement Fund to the Class. If such matters cannot be

resolved within 10 calendar days after the above referenced election, such Kason-Settled

Participating Class Members may not participate in this Settlement.

47. No Kason-Settled Class Member other than a Kason Class Settlement Recipient

will be entitled to participate in any distributions from Kason's Settlement Fund or to receive

17


any Settlement Rebate hereunder. Nothing in this Settlement Agreement, however, shall be

construed as limiting or preventing any Participating Class Member from participating in the

settlement described in the CHG Settlement Agreement, including without limitation

distributions from the CHG Settlement Fund (as defined below).

48. Nothing in this Agreement will affect or impair the validity or enforceability of

any individual settlement agreement between Kason and any Kason-Settled Class Member or

any release set forth therein in the event that such Kason-Settled Class Member (i) opts out of

the Settlement Class or (ii) becomes a Participating Class Member but does not elect to become

a Kason Class Settlement Recipient.

H. The Settlement Fund

49. Kason, Katz, and the Releasees shall have no liability or responsibility for

disbursements from, or administration of, the Settlement Fund. Kason, Katz, and the Releasees

shall not be liable for any costs or attorneys' fees of Plaintiffs or the Participating Class

Members, including but not limited to costs or expenses of Plaintiffs' counsel, experts,

consultants, agents or representatives. Such costs and attorneys' fees as approved by the Court

shall be paid out ofthe Settlement Fund. Kason, Katz, and the Releasees further shall not be

liable for any of the expenses of notice to the Class or administration of the Settlement Fund,

except that all such expenses shall be paid out of the Settlement Fund.

50. Class Counsel may at an appropriate time, determined in their sole discretion,

submit a motion seeking approval of the payment of attorneys' fees and expenses from the

Settlement Fund. Kason and Katz shall have no obligation to pay any amount of Class

Counsel's attorneys' fees or the costs or expenses of litigation for the Settlement Class.

51. Subject to Court approval, Plaintiffs and Class Counsel shall be reimbursed and

paid solely out ofthe Settlement Fund for all expenses including, but not limited to, attorneys' 18


fees, expert fees, costs, and past, current, or future litigation expenses. Attorneys' fees and

expenses awarded by the Court shall be payable from the Settlement Fund upon award,

notwithstanding the existence of any timely filed objections thereto, or potential for appeal

therefrom, or collateral attack on the settlement or any part thereof, subject to Class Counsel's

obligation to make appropriate refunds or repayments to the Settlement Fund, if and when, as a

result of any appeal andlor further proceedings on remand, or successful collateral attack, the

fee or cost award is reduced or reversed. Kason and Katz shall not be liable for any costs, fees,

or expenses of any of Plaintiffs' respective attorneys, experts, advisors, agents, or

representatives, but all such costs, fees, and expenses as approved by the Court may be paid out

of the Settlement Fund. In the event that attorneys' fees or costs are paid out of the Settlement

Fund and Final Approval is not subsequently received, Class Counsel shall reimburse all

withdrawn attorneys' fees and costs, except for the costs of notice, to the Settlement Fund prior

to the return ofthe Settlement Fund to Kason.

52. Except as provided for herein, Kason, Katz, and the Releasees agree not to object,

subject to an order of the Court in the Action, to the payment to Class Counsel of approved

attorneys' fees, costs, and expenses out of the Settlement Fund. Disbursement of such fees,

costs, and expenses shall not be delayed by reason of any appeal of the Final Judgment in the

Action; provided, however, that if the Court's award of fees, costs, and expenses is vacated,

reversed, or reduced on or as a result of an appeal, Class Counsel shall within ten (10) business

days after receiving written notice from the Court inform Kason and Katz of such vacatur,

reversal, or reduction, and make a refund to the Escrow Account in the amount of such vacatur,

reversal, or reduction.

19


53. Any Escrow Accounts shall be invested in United States Government Treasury

Bills or Notes of no more than six (6) month's duration (provided, however, that such portions

of the Settlement Fund as may reasonably be needed to pay current expenses associated with

providing notice to the Class, administering the Settlement Fund and the settlement may be

deposited in a federally insured bank account in an amount not exceeding $40,000.) Any

escrow fees or charges shall be deducted from the Settlement Fund. Kason and Katz will not be

responsible for any escrow fees or charges incurred beyond Kason's payment of the Cash

Settlement Amount. All interest earned on the Settlement Fund shall become and remain part of

the Settlement Fund. In the event that Final Approval is not received on the Settlement

Agreement or in the event that the Settlement Agreement is rescinded, the Settlement Fund shall

be immediately returned, in its entirety, to Kason, including any and all interest that has

accrued.

I. Taxes

54. Class Counsel shall be solely responsible for filing all informational and other tax

returns necessary to report any net taxable income earned by the Settlement Fund and shall file

all informational and other tax returns necessary to report any income earned by the Settlement

Fund and shall be solely responsible for taking out of the Settlement Fund, as and when legally

required, any tax payments, including interest and penalties due on income earned by the

Settlement Fund. All taxes (including any interest and penalties) due with respect to the income

earned by the Settlement Fund shall be paid from the Settlement Fund. Kason and Katz shall

have no responsibility to make any filings relating to the Settlement Fund and will have to

responsibility to pay tax on any income earned by the Settlement Fund or to pay any taxes on

the Settlement Fund unless the settlement is not consummated, and the Settlement Fund is

returned to Kason. In the event the settlement is not consummated and the Settlement Fund is 20


returned to Kason, Kason shall be responsible for the payment of all taxes (including any

interest or penalties), if any, of on said income.

55. The Parties to this Settlement Agreement and their counsel shall treat, and shall

cause the Claims Administrator to treat, the Escrow Accounts as being at all times a "qualified

settlement fund" within the meaning of Treas. Reg. § 1.468B 1. The Parties, their counsel, the

Claims Administrator, and the Escrow Agent agree that they will not ask the Court to take any

action inconsistent with the treatment of the Escrow Accounts in such manner. In addition, the

Claims Administrator and, as required, the Parties shall timely make such elections as necessary

or advisable to carry out the provisions of this paragraph, including the "relation-back election"

(as defined in Treas. Reg. § 1.468B 10)) back to the earliest permitted date. Such elections shall

be made in compliance with the procedures and requirements contained in such regulations. It

shall be the responsibility of the Claims Administrator timely and properly to prepare and

deliver the necessary documentation for signature by all necessary parties and thereafter to

cause the appropriate filing to occur. All provisions of this Settlement Agreement shall be

interpreted in a manner that is consistent with the Escrow Accounts being a "qualified

settlement fund" within the meaning of Treas. Reg. § 1.468B 1.

J. Miscellaneous

56. Kason shall restore the credit terms for Kohlder Manufacturing Co., Inc. and

Qualserv Corporation that existed prior to the filing of this Class Action.

57. This Settlement Agreement does not settle or compromise any claim by Plaintiffs

or any Class Member against any Defendant or alleged co-conspirator or any other person or

entity other than the Releasees. All rights of any Class Member against a Defendant or co

conspirator or any other person or entity other than the Releasees are specifically reserved by

Plaintiffs and the Class Members. 21


58. Class Counsel and Plaintiffs shall not assist any person or entity that timely opted

out of the Settlement Class, or their counsel, in any way in litigation or preparation for litigation

concerning the subject matter of the Class Action.

59. Class Counsel and Plaintiffs agree that immediately following the Execution

Date, Kason, Katz, and their counsel may contact and communicate directly or indirectly with,

in person or otherwise at Kason's or Katz's discretion, any members of the putative Settlement

Class for the purpose of describing and explaining the Settlement Agreement and the basis for

the Settlement Agreement. Class Counsel agree to make themselves available on reasonable

notice to participate in any such contact or communication, if requested to do so by Kason or

Katz.

60. Kason, Katz, and Plaintiffs expressly reserve all of their respective rights,

defenses, and positions in the Class Action, without prejudice, to the extent that the Settlement

Agreement does not receive Final Approval from the Court or, if appealed, from the Appellate

Court or if the Settlement Agreement is rescinded by any party to this Settlement Agreement or

otherwise becomes null and void.

61. For the purpose of construing or interpreting this Settlement Agreement,

Plaintiffs, Kason, and Katz agree that it is to be deemed to have been drafted equally by all

parties hereto and shall not be construed strictly for or against any party.

62. Should any of the Cash Settlement Amount remain in the Settlement Fund after

the distribution of all payments to Participating Class Members and the distribution of other

funds as authorized by the Court, including the distribution of funds to Plaintiffs' Class Counsel

but excluding any cy pres award, all such remaining funds shall be returned to Kason within

22


thirty (30) days offinal distribution of all other funds. Plaintiffs agree not to seek cy pres or

fluid distribution of any portion of the Settlement Fund.

63. The Parties acknowledge and agree that this Settlement Agreement contains the

entire understanding between the parties with respect to the subject matter hereof, that there is

no representation, agreement, or obligation regarding the settlement which is not expressly set

forth in this Settlement Agreement, and that no representation, inducement, promise, or

agreement not expressly set forth in the text of this Agreement shall be of any force or effect.

64. The Parties agree to execute and deliver to each other party from time-to-time

such reasonable additional instruments or documents and to perform such other reasonable acts

as may be necessary or desirable to effectuate this Settlement Agreement.

65. All terms of the Settlement Agreement are contractual and not mere recitals. This

Settlement Agreement shall be binding upon, and inure to the benefit of, the successors and

assigns of Releasors and Releasees. Without limiting the generality of the foregoing each and

every covenant and agreement made herein by Plaintiffs shall be binding upon all Participating

Class Members and Releasors.

66. Nothing expressed or implied in this Settlement Agreement is intended to or shall

be construed to confer upon or give any person or entity other than Plaintiffs, Participating

Class Members, Kason, Katz, Releasors, and Releasees any right or remedy under or by reason

of this Settlement Agreement.

67. This Settlement Agreement may be modified or amended only by a writing jointly

executed by Class Counsel and counsel for Kason and Katz, subject (if after preliminary or final

approval by any court) to approval by the Court. Amendments and modifications may be made

without notice to the Settlement Class unless notice is required by law or by the Court.

23


68. All tenns ofthis Settlement Agreement shall be governed by and interpreted

according to the substantive laws of the State of Georgia without regard to its choice of law or

conflict of law principles.

69. Kason, Katz, the Releasors, and each Participating Class Member hereby

irrevocably submit to the exclusive jurisdiction of the Court for any suit, action, proceeding or

dispute arising out of or relating to this Settlement Agreement or the applicability of this

Settlement Agreement. Nothing herein shall be construed as a submission to jurisdiction for

any purpose other than enforcement of the Settlement Agreement.

70. Any disputes between or among Kason, Katz, and any Participating Class

Member or Settlement Class Members concerning matters contained in this Settlement

Agreement shall, if they cannot be resolved by negotiation and agreement, be submitted to the

Court. The Court shall retain jurisdiction over the implementation and enforcement of this


71. The headings used in this Settlement Agreement are intended for convenience of

the reader only and shall not affect the meaning or interpretation of this Settlement Agreement.

72. This Settlement Agreement contains an entire, complete and integrated statement

of each and every tenn and provision agreed to by and among the parties, and it is not subject to

any condition not provided for herein.

73. This Settlement Agreement may be executed in counterparts by Class Counsel,

Kason, Katz, and their counsel, and a facsimile or pdf signature shall be deemed an original

signature for purposes of executing this Settlement Agreement.

74. Each of the undersigned attorneys and parties represents that they are fully

authorized to enter into the tenns and conditions of, and to execute, this Settlement Agreement,

24


subject to Court approval; and the undersigned Plaintiffs' counsel represents that they are

authorized to execute this Settlement Agreement on behalf of Plaintiffs and the Settlement

Class. All of the undersigned attorneys shall use their best efforts to effectuate this Settlement

Agreement. The Settlement Agreement shall be deemed executed on the date of signature for

Class Counsel, Kason, Katz, and their counsel.

75. Where this Settlement Agreement requires any party to provide notice or any

other communication or document to any other party, such notice, communication, or document

shall be provided by letter transmitted by overnight delivery at the address( es) reflected on the

signature pages, and shall be deemed effective upon receipt.

Dated: March 1,2011

IA : ' ". "

Wiliiam . Carr CARR & PALMER, LLP 10 North Parkway Square 4200 Northside Parkway Atlanta, GA 30327 Tel: (404) 442-9000 Fax: (404) 442-9700 Email: @calmer.com

TON SUCHAROW LLP 140 Broadway New York, NY 10005 Tel: (212) 907-0700 Fax: (212) 818-0477 Email: [email protected]

Megan Jone HAUSFELD LLP 1700 K Street, NW

25


Suite 650 Washington, D.C. 20006 Email: [email protected]

[email protected]


Dated:

Georgia Bar No.

(

SUTHERLAND ASBILL & BRENNAN LLP 999 Peachtree Street, NE Atlanta, Georgia 30309 Tel: (404) 853-8000 Email: [email protected]

Counsel for Kason Industries, Inc. and Peter A. Katz

26


Michael Hausfeld Megan Jones HAUSFELD LLP 1700 K Street, NW Suite 650 Washington, D.C. 20006 Email: [email protected]

[email protected]


Dated: March 1,2011

Georgia Bar No. SUTHERLAND ASBILL & BRENNAN LLP 999 Peachtree Street, NE Atlanta, Georgia 30309 Tel: (404) 853-8000 Email: [email protected]

Counsel for Kason Industries, Inc. and Peter A. Katz

3


EXHIBIT 6


Electronic copy available at: http://ssrn.com/abstract=1736642

1

AAI Working Paper No. 10-03 ABSTRACT: Indirect Purchaser Class Action Settlements Author: Patrick E. Cafferty, Cafferty Faucher LLP Consumers and business entities at the bottom of a chain of distribution — i.e., those who cannot “pass on” overcharges — often bear the full financial brunt of antitcompetitive activity. Unless they purchased goods or services directly from the alleged antitrust violators, however, they are “indirect purchasers” who lack standing to bring suit for damages under the federal antitrust laws. Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). In California v. ARC America Corp., 490 U.S. 93 (1989), the Supreme Court held that Illinois Brick interpreted federal antitrust law only and states could allow indirect purchasers to seek damages under state law. Several states and the District of Columbia reaffirmed an indirect purchaser’s right to recover damages by passing “Illinois Brick repealer” statutes that expressly allow for indirect purchaser actions. Even where no “repealer” statute has been enacted, some state courts have interpreted their state’s antitrust laws to allow for indirect purchaser standing. See, e.g., Comes v. Microsoft Corp., 646 N.W.2d 440 (Iowa 2002); Bunker's Glass Co. v. Pilkington PLC, 75 P.3d 99 (Ariz. 2003). State law indirect purchaser actions are an important component of antitrust enforcement, especially in cases where direct purchasers’ continuing business relationship with the antitrust violators blunts any incentive to bring suit. Moreover, utilizing class action procedures, indirect purchaser class actions can provide redress to the targeted victims of unlawful conduct. The purpose of this paper is to compile a comprehensive list of indirect purchaser class action settlements, including the amount of money (or other consideration) recovered for classes. This project began in 2005 at the request of counsel for the Antitrust Modernization Commission and was intended to respond to the contentions made by corporate interests that indirect purchaser antitrust actions benefitted only plaintiffs’ attorneys and resulted in, at best, cy pres recoveries for the indirect benefit of the class members. Accordingly, this listing attempts to include both the method of distribution of settlement proceeds and the amount of attorneys’ fees awarded. While cy pres distributions are sometimes necessary, many cases (especially in the area of pharmaceuticals) provide for cash distributions to class members. The settlements listed below have recovered an aggregate value $4,363,237,265 since the mid-1990s. This total consists of $2,069,252,500 in cash, $163,464,000 worth of product (i.e., infant formula and prescription drugs) and $2,130,520,765 in Microsoft vouchers. One development since 2005 is worthy of comment: the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (2005), which became effective February 18, 2005, greatly


Electronic copy available at: http://ssrn.com/abstract=1736642

2

expanded federal jurisdiction over state law class actions. As class actions are the primary avenue for assertion of indirect purchaser antitrust claims, opportunities for state courts to interpret their own states’ antitrust statutes will likely be few and far between. This development may impede — or at least freeze in place — judicial development of indirect purchaser antitrust law. This list was compiled with assistance from attorneys Bernard Persky (Labaton Sucharow LLP) and Daniel Gustafson (Gustafson and Gluek PLLC) and includes: (1) cases in which one or more of our firms appeared as counsel; (2) cases that we have discerned from public sources (such as the Internet and legal research databases); and (3) information received from other practitioners. Where possible, we have sorted state court cases according to common underlying facts. While the information on the list is accurate to the best of our knowledge, information and belief, we are certain that we have not captured many cases, especially in California which has a long-standing history of indirect purchaser antitrust class actions. See, e.g., B.W.I. Custom Kitchen v. Owens-Illinois, Inc., 191 Cal. App. 3d 1341 (Cal. Ct. App. 1987). We expressly request feedback from anyone with information about a settlement that should be added to the list. Date: June 2006 (revised June 2010) Keywords: Indirect purchaser, class action, settlements, attorneys’ fees Author Contact: Patrick Cafferty ([email protected]) AAI working papers are works in progress that will eventually be revised and published elsewhere. They do not necessarily represent the position of the American Antitrust Institute.


SETTLEMENTS OF INDIRECT PURCHASER ANTITRUST CLASS ACTIONS UNDER STATE LAW

TABLE OF CONTENTS

A. NATIONAL AND MULTISTATE CLASS ACTION SETTLEMENTS IN FEDERAL COURT ........................................................................................................1 B. STATE COURT CLASS ACTION SETTLEMENTS (ORGANIZED BY

RELATEDNESS OF CASES) .............................................................................................9

1. INFANT FORMULA ..................................................................................9 2. BRAND-NAME PRESCRIPTION DRUGS .................................13 3. VITAMINS ....................................................................................17 4. MICROSOFT .................................................................................25 5. SORBATES ...................................................................................30 6. MISCELLANEOUS ......................................................................31 SETTLEMENT TOTALS .............................................................................................................32


Settlements of Indirect Purchaser Antitrust Class Actions Under State Law — June 2010 -1-

SETTLEMENTS OF INDIRECT PURCHASERANTITRUST CLASS ACTIONS UNDER STATE LAW

A. NATIONAL AND MULTISTATE CLASS SETTLEMENTS IN FEDERAL COURT.

Case Nature of

Allegations

Governmental

(Civil/Criminal),

Direct Purchaser or

Competitor

Action(s)

Type of Class Amount of

Settlement

Distribution

Method

Attorneys’

Fees

In re Lorazepam &

Clorazepate Antitrust

Litig., 205 F.R.D. 369

(D.D.C. 2002)

Defendant Mylan

secured exclusive

contract from

supplier of active

ingredient and

drastically

increased price

after competitors

were frozen out of

the market

Civil actions by FTC

and state AGs; direct

purchaser class

action

nationwide class of

consumers and third-

party payors of

prescription drugs

Lorazepam and

Clorazepate

$135,285,600

($72,000,000 for

consumers and

$28,000,000 for state

agencies;

$25,285,600 for

third-party payors in

Illinois Brick

repealer states; and

$10,000,000 for

TPPs in non-Illinois

Brick repealer states)

Direct

distribution of

cash proceeds

through claims

process

7.4% (15% of

$25 million;

22.5% of $10

million and

4% of $100

million

[although

these fees

were paid

separately by

defendants])

In re Cardizem CD

Antitrust Litig., 218

F.R.D. 508 (E.D. Mich.

2003), app. dismissed,

391 F.3d 812 (6th Cir.

2004)

(cardizemsettlement.co

m)

Brand

manufacturer

(Aventis) paid

generic

manufacturer

(Andrx) to

withhold

marketing of

generic version of

Cardizem CD

competitor action;

FTC civil action;

actions by state AGs

(following grant of

partial summary

judgment in favor of

civil plaintiffs);

direct purchaser class

action

nationwide


party payors of

prescription drug

Cardizem CD

$80,000,000

($7,000,000 state

agencies;

$40,150,000 third

party payors; and

$32,850,000

consumers)

Direct

distribution of

cash proceeds

through claims

process

17%


Case Nature of

Allegations

Governmental

(Civil/Criminal),

Direct Purchaser or

Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


In re Warfarin Sodium

Antitrust Litig., 212

F.R.D. 231 (D. Del.

2002), aff’d, 391 F.3d

516 (3d Cir. 2004)

coumadinsettlement.co

m

Brand

manufacturer took

steps to deter

substitution of

generic versions of

Coumadin

competitor action nationwide class of


party payors of

prescription drug

Coumadin

$44,500,000 Direct

distribution of

cash proceeds

through claims

process

22.5%

In re Buspirone Patent

Litig., MDL No. 1410

(S.D.N.Y.)

Brand

manufacturer

(Bristol Myers

Squibb) paid

generic

manufacturer

(Schein) to

withdraw efforts to

market generic

version of BuSpar;

listing of phony

patents to

unlawfully extend

monopoly

Direct purchaser

class action; civil

actions by several

state attorneys

general

nationwide class of

third-party payors

and multistate class

of consumers of

prescription drug

BuSpar

$100,000,000 (for

consumers in most

states and state

agencies by attorneys

general);

$90,000,000

($74,000,000 for

third-party payors;

and $16,000,000 for

consumers in

remaining states)

Direct

distribution of

cash proceeds

through claims

process

20% (of $90

million)

Vista Healthplan, Inc.

v. Bristol-Myers Squibb

Co., 287 F. Supp.2d 65

(D.D.C. 2003)

Bristol Myers

Squib listed phony

patents to

unlawfully extend

monopoly for

Taxol

Direct purchaser

action, state attorneys

general civil action

nationwide class of

consumers of

prescription drug

Taxol

$55,000,000

(consumers by

attorneys general);

$15,185,000 (third-

party payors)

Direct

distribution of

cash proceeds

through claims

process

33.33% (of

$15,185,000)


Case Nature of

Allegations

Governmental

(Civil/Criminal),

Direct Purchaser or

Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


In re Lupron Marketing

and Sales Practices

Litig., 228 F.R.D. 75

(D. Mass. 2005)

lupronclaims.com

Drug

manufacturers

engaged in

unlawful tactics to

induce physicians

to administer

Lupron Depot at

inflated prices.

Federal criminal

charges and penalty

nationwide class of


party payors of

prescription drug

Lupron Depot

$150,000,000 Direct

distribution of

cash proceeds

through claims

process

25%

Ryan-House v.

GlaxoSmithKline plc,

(“Augmentin

Litigation”) No.

2:02cv442m (E.D. Va.

Jan. 10, 2005)

augmentinlitigation.

com

GlaxoSmithKline

misled the Patent

Office into issuing

patents to protect

Augmentin® from

competition from

generic drug

substitutes.

Direct purchaser

class actions;

competitor actions

nationwide class of


party payors of

prescription drug

Augmentin

$29,000,000 Direct

distribution of

cash proceeds

through claims

process

25%


Case Nature of

Allegations

Governmental

(Civil/Criminal),

Direct Purchaser or

Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


Nichols v. SmithKline

Beecham Corp., No.

00-6222, 2005 WL

950616 (E.D. Pa. April

22, 2005)

paxilclaims.com

SmithKline

Beecham

stockpiled,

time-released, and

caused patents to

be listed in the

Orange Book in a

manner that has

enabled them to

indefinitely extend

their market

monopoly of

Paxil®.

Direct purchaser

class action;

competitor actions

nationwide class of


party payors of

prescription drug

Paxil

$65,000,000 Direct

distribution of

cash proceeds

through claims

process

30%

In re Terazosin

Antitrust Litig., No. 99-

D:-1317 (S.D. Fla. July

8, 2005)

terazosinlitigation.

com)

Abbott entered into

agreements to pay

generic

manufacturers

(Zenith Goldline

and Geneva) to

keep lower priced

generics off the

market

FTC civil action,

Direct purchaser



multistate class of


party payors of

prescription drug

Hytrin

$30,700,000 Direct

distribution of

cash proceeds

through claims

process

30%


Case Nature of

Allegations

Governmental

(Civil/Criminal),

Direct Purchaser or

Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


In re Remeron End-

Payor Antitrust Litig.,

No. 02-2007, 2005 WL

2230314 (D.N.J. Sept.

13, 2005)

remeronsettlement.

com

Organon USA Inc.

and Akzo Nobel

N.V. improperly

monopolized the

U.S. market for

Remeron®

Direct purchaser



nationwide class of


party payors of

prescription drug

Remeron

$33,000,000 Direct

distribution of

cash proceeds

through claims

process

23.6%

In re Relafen Antitrust

Litig., 231 F.R.D. 52

(D. Mass. 2005)

relafensettlement.

com

GlaxoSmithKline

listed fraudulently

procured patent

and used it to

foreclose generic

competition in the

market for Relafen

(nabumetone)

Direct purchaser

class action;

competitor actions


party payors of

prescription drug

Relafen

$75,000,000 Direct

distribution of

cash proceeds

through claims

process &

subpoena of

transaction data

from retailers

and PBMs

33.3% of $67

million

Vista Healthplan, Inc.

v. Warner Holdings

Co., 246 F.R.D. 349

(D.D.C. 2007)

Conspiracy to

prevent generic

versions of Ovcon

35 from reaching

market

Direct purchaser

class action, FTC

enforcement action,

consumer class

action

third-party payors for

prescription drug

Ovcon 35

$4,200,000 ($3

million of which was

in the form of

product)

product

distributed to

healthcare

providers

26%


Case Nature of

Allegations

Governmental

(Civil/Criminal),

Direct Purchaser or

Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


Sullivan v. DB

Investments, Inc., No.

04-02819, 2008 U.S.

Dist. LEXIS 81146

(D.N.J. May 22, 2008)

diamondsclassaction.co

m

Conspiracy to fix,

raise and control

rhe price of gem

diamonds

Direct purchaser

class action

Indirect purchaser

consumers and

retailers of diamond

products

$272,500,000 Direct

distribution of

cash proceeds

through claims

process

25% of total

fund less

expenses

In re Plastic Additives


2038 (E.D. Pa. June 26,

2008)

Plaintiffs allege

price-fixing of

plastic additives

Direct purchaser

class action

Indirect purchasers

of plastic additives in

several states

$325,000 Direct

distribution of

cash proceeds

through claims

process

30%

In re OSB Antitrust

Litig., No. 06-826

(E.D. Pa. Dec. 9, 2008)

Plaintiffs allege

that defendants

conspired to fix,

raise maintain or

stabilize prices for

oriented strand

board (OSB)

Direct purchaser

class action

Indirect purchaser

end-users of oriented

strand board

$9,940,000

(aggregate of

multiple settlements)

Direct

distribution of

cash proceeds

through claims

process; some cy

pres

33.3%

In re Abbott

Laboratories Norvir


1511 (N.D. Cal. Aug.

12, 2009)

Abbott

Laboratories raised

Norvir prices in an

effort to restrict

competition in the

market for protease

inhibitors used to

treat HIV patients.

Direct purchaser

class action


party payors of

prescription drug

Norvir used as

booster to other

protease inhibitors

$10,000,000 cy pres to non-

profit

organizations

serving

HIV/AIDS

patients

30%


Case Nature of

Allegations

Governmental

(Civil/Criminal),

Direct Purchaser or

Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


In re TriCor Indirect

Purchaser Antitrust

Litig., No. 05-360,

2009 WL 3460769 (D.

Del. Oct. 28, 2009)

(tricorsettlement.com)

Abbott

Laboratories

repeatedly changed

its formulations of

TriCor

(fenofibrate) to

foreclose generic

competition

Direct purchaser

class action;

competitor actions;

state attorneys



party payors of

prescription drug

TriCor

$67,300,000 Direct

distribution of

cash proceeds

through claims

process &

transaction data

from insurers

and retailers

33.3%

In re BP Propane

Indirect Purchaser


3541 (Feb. 10, 2010

N.D. Ill.)

(bpindirectpropanesettl

ement.com)

BP Products

attempted to corner

the market on

physical propane

Direct purchaser

class action

Persons or entities

who purchased

propane for anyone

unrelated to BP

Products

$15,250,000 Direct

distribution of

cash proceeds

through claims

process

33%

In re New Motor

Vehicles Canadian

Export Antitrust Litig.,

MDL No. 1532 (D.

Me.)

Auto

manufacturers

conspired to

preclude imports

of new vehicles

from Canada

No Persons or entities

that purchased

certain motor

vehicles

$35,700,000 (partial

settlement with

Toyota and Canadian

Automobile Dealers’

Association only;

approval pending)

Direct

distribution of

cash proceeds

through claims

process, cy pres

for some states


Case Nature of

Allegations

Governmental

(Civil/Criminal),

Direct Purchaser or

Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


In re Vitamins Antitrust

Litig. (Richardson et al.

v. Akzo Nobel Inc. et

al.), MDL No. 1285,

Misc. No. 99-197

(D.D.C.)

(indirectvitaminsettlem

ent.org)*

Horizontal price-

fixing and market

allocation

conspiracy among

vitamin

manufacturers

(related to state

cases addressed

below)

Direct purchaser

class action, state

attorneys general

actions

Persons and entities

that purchased

vitamin products

$25,030,000

(approval pending,

hearing held June 18,

2010)

Direct

distribution to

commercial

purchasers; cy

pres for

consumers

In re Static Random

Access Memory

(SRAM) Antitrust

Litig., No. 07-1819

(N.D. Cal.)

(indirectsramcase.com)

Plaintiffs alleged

conspiracy to fix,

raise maintain or

stabilize prices of

SRAM

Direct purchaser

class action


that indirectly

purchased SRAM

from one of several

defendants

$25,422,000

(approval pending,

hearing scheduled for

September 30, 2010

Reserved

pending further

litigation

In re Dynamic Random

Accesss Memory

(DRAM) Antitrust

Litig., No. 02-1486

(N.D. Cal.)

Plaintiffs alleged

conspiracy to fix,

raise maintain or

stabilize prices of

DRAM

Direct purchaser

class action, state

attorneys general

actions


that indirectly

purchased DRAM

from one of several

defendants

$173,000,000

(proposed settlement

announced June 24,

2010 for 33 state

attorneys general and

private plaintiffs;

approval pending)

Distributions to

consumers,

businesses, state

and local

governments,

school districts,

colleges and

universities are

contemplated

Total of amount of settlements in indirect purchaser class actions as

listed above:

Cash: $1,538,337,600 Product: $3,000,000

* See also state court vitamins settlements, p. 17, infra.



B. STATE COURT CLASS ACTION SETTLEMENTS (ORGANIZED BY RELATEDNESS OF CASES)

1. INFANT FORMULA

Infant Formula Case Nature of Allegations Governmental

(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees

Durrett v. Abbott

Laboratories, et. al, No. 93-

663 (Cir. Ct. Calhoun

County) and Lauderdale v.

Abbott Laboratories, et al.,

No. 95-652 (Cir. Ct.

Calhoun County, Ala.)

Horizontal price-fixing

conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

Alabama state-

wide class of

retail purchasers

infant formula

product valued

at $500,000

product

distributed free

of charge

through food

bank

none

In re California

Indirect-Purchaser Infant

Formula Antitrust Class

Action Litig. J.C .C.P. No.

2557 (L.A.Sup.Ct.1993)


conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

California state-

wide class of

retail purchasers

infant formula

$20,000,000 Claims

procedure for

distribution of

funds

[not available]

Stifflear v. Bristol-Myers

Squibb et al., No. 94-CV-

360 (Dist. Ct. Boulder

County, Col.)


conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

Colorado state-

wide class of

retail purchasers

infant formula

product valued

at $600,000

product

distributed free

of charge

through food

bank

none



(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


Mack v. Bristol-Myers

Squibb Co. et al., 94-581-

CA (Cir. Ct. Okaloosa

County, Fla.)


conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

Florida state-wide

class of retail

purchasers infant

formula

$5,000,000 and

product valued

at $2,300,000

claims procedure

for distribution

of funds;

product

distributed free

of charge

through food

bank

33% of $5

million

Vogt v. Abbott

Laboratories, et al., No. 94-

L-404 (Cir. Ct. St. Clair

County, Ill.)


conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

Illinois state-wide

class of retail

purchasers infant

formula

$12,940,000 claims procedure

for distribution

of funds

33.33%

Donelan v. Abbott

Laboratories, No. 94 C 709

(Dist. Ct. Sedgwick County,

Kan.)


conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

Kansas state-wide

class of retail

purchasers infant

formula

product valued

at $1,000,000

product

distributed free

of charge

through food

bank

none

Lambert v. Abbott

Laboratories, et. al., No.

94-CI-05684 (Cir. Ct.

Jefferson County, Ken.)


conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

Kentucky state-

wide class of

retail purchasers

infant formula

product valued

at $700,000

product

distributed free

of charge

through food

bank

none

Holmes v. Abbott

Laboratories, No. 94-774-

CP (Cir. Ct. Calhoun

County, Mich.)


conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

Michigan state-

wide class of

retail purchasers

infant formula

product valued

at $2,700,000

product

distributed free

of charge

through food

bank

none



(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


Humphrey ex. rel. State of

Minnesota v. Abbott

Laboratories, et al., No.

C8-95-6810 (Dist. Ct.

Ramsey County, Minn.)


conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

Minnesota state-

wide class of

retail purchasers

infant formula


for distribution

of funds

33.33%

Moore ex rel. State of

Mississippi v. Abbott


251-96-159 (Cir. Ct. Hinds

County, Miss.)


conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

Mississippi state-

wide class of

retail purchasers

infant formula


for distribution

of funds

33.33%

DeVincenzi v. Abbott

Laboratories, et. al., CV-

94-02528 (Dist. Ct. Washoe

County, Nev.)


conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

Nevada state-

wide class of

retail purchasers

infant formula

product valued

at $254,000

product

distributed free

of charge

through food

bank

none

Hyde v. Abbott

Laboratories, et al., No. 94

CVS 500 (Sup. Ct. Jackson

County, N.C.)


conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

North Carolina

state-wide class

of retail

purchasers infant

formula

product valued

at $1,410,000

product

distributed free

of charge

through food

bank

none

Heilman and Leintz v.


No. 94-C-2716 (Dist. Ct.

Burleigh County, N.D)


conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

North Dakota

state-wide class

of retail

purchasers infant

formula

$740,000 claims procedure

for distribution

of funds

33.33%



(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


Hagemann v. Abbott

Laboratories, No. 94-221

(Cir. Ct. Hughes County,

S.D.)


conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

South Dakota

state-wide class

of retail

purchasers infant

formula


for distribution

of funds

33.33%

Blake v. Abbott

Laboratories, et al., No. L-

8950 (Cir. Ct. Blount

County, Tenn.)


conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

Tennessee state-

wide class of

retail purchasers

infant formula

$2,000,000 and

product valued

at $1,000,000

claims procedure

for distribution

of funds;

product

distributed free

of charge

through food

bank

33% of $2

million

Buscher v. Abbott


C-221 (Cir. Ct. Kanawha

County, W.Va.)


conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

West Virginia

state-wide class

of retail

purchasers infant

formula


for distribution

of funds

33.33%

Carlson v. Abbott

Laboratories, No. 94-CV-

002608 (Cir. Ct. Milwaukee

County) and French v.


No. 94-CV-009007 (Cir. Ct.

Milwaukee County, Wisc.)


conspiracy among

infant formula

manufacturers

Direct purchaser

class actions

Wisconsin state-

wide class of

retail purchasers

infant formula


for distribution

of funds

33.33%

Total of Indirect Purchaser Infant Formula Settlements listed above: Product: $10,464,000; Cash: $68,120,000



2. BRAND-NAME PRESCRIPTION DRUGS

BNPD Case Nature of Allegations Governmental

(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees

McLaughlin v. Abbott

Laboratories, et al., No. CV

95-0628 (Super. Ct.,

Yavapai County, Az)

Horizontal conspiracy

among brand

manufacturers to refuse

discounts to “retail

class of trade”

Pharmacies

brought direct

purchaser actions

and Robinson-

Patman Act actions

state-wide class

of retail

purchasers of

brand-name

prescription drugs

$8,409,900 distribution

through

community

health centers to

subsidize cost of

patient

prescriptions

25%

Preciado v. Abbott

Laboratories, et al., Case

No. 962294 (San Francisco

Sup. Ct., Cal.)


among brand



class of trade”

Pharmacies

brought direct

purchaser actions

and Robinson-

Patman Act actions

state-wide class

of retail

purchasers of

brand-name

prescription drugs

Product valued

at approximately

$150,000,000

and

approximately

$25,000,000 in

cash

Goda v. Abbott


01445-96 (Super. Ct., D.C.)


among brand



class of trade”

Pharmacies

brought direct

purchaser actions

and Robinson-

Patman Act actions

District of

Columbia class of

retail purchasers

of brand-name

prescription drugs


through

community

health centers to

subsidize cost of

patient

prescriptions

25%



(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


Yasbin v. Abbott


01141 CA 03 (Cir. Ct.,

Dade County, Fla.)


among brand



class of trade”

Pharmacies

brought direct

purchaser actions

and Robinson-

Patman Act actions

state-wide class

of retail

purchasers of

brand-name

prescription drugs


through

community

health centers to

subsidize cost of

patient

prescriptions

25%

Holdren v. Abbott


96C15994 (Dist. Ct.,

Johnson County, Kan.)


among brand



class of trade”

Pharmacies

brought direct

purchaser actions

and Robinson-

Patman Act actions

state-wide class

of retail

purchasers of

brand-name

prescription drugs


through

community

health centers to

subsidize cost of

patient

prescriptions

25%

Karofsky v. Abbott


CV-95-1009 (Super. Ct.,

Cumberland County,

Maine);


among brand



class of trade”

Pharmacies

brought direct

purchaser actions

and Robinson-

Patman Act actions

state-wide class

of retail

purchasers of

brand-name

prescription drugs

$989,400 distribution

through

community

health centers to

subsidize cost of

patient

prescriptions

25%

Wood v. Abbott


512561-CZ (Cir. Ct.,

Oakland County, Mich.)


among brand



class of trade”

Pharmacies

brought direct

purchaser actions

and Robinson-

Patman Act actions

state-wide class

of retail

purchasers of

brand-name

prescription drugs


through

community

health centers to

subsidize cost of

patient

prescriptions

25%



(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


Kerr v. Abbott


2837 (Dist. Ct., Hennepin

County, Minn) and

Fontaine v. Abbott


012124 (Dist. Ct., Hennepin

County, Minn.)


among brand



class of trade”

Pharmacies

brought direct

purchaser actions

and Robinson-

Patman Act actions

state-wide class

of retail

purchasers of

brand-name

prescription drugs


through

community

health centers to

subsidize cost of

patient

prescriptions

25%

Levine v. Abbott


117320 (Sup. Ct., New

York County, N.Y.)


among brand



class of trade”

Pharmacies

brought direct

purchaser actions

and Robinson-

Patman Act actions

state-wide class

of retail

purchasers of

brand-name

prescription drugs


through

community

health centers to

subsidize cost of

patient

prescriptions

25%

Long v. Abbott


CVS-8289 (Super. Ct.,

Mecklenburg County,

N.C.);


among brand



class of trade”

Pharmacies

brought direct

purchaser actions

and Robinson-

Patman Act actions

state-wide class

of retail

purchasers of

brand-name

prescription drugs


through

community

health centers to

subsidize cost of

patient

prescriptions

10%

Meyers v. Abbott


97C612 (Cir. Ct., Davidson

County, Tenn.)


among brand



class of trade”

Pharmacies

brought direct

purchaser actions

and Robinson-

Patman Act actions

state-wide class

of retail

purchasers of

brand-name

prescription drugs


through

community

health centers to

subsidize cost of

patient

prescriptions

25%



(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


Scholfield v. Abbott

Laboratories, et al., No. 96

CV 0460 (Cir. Ct., Dane

County, Wisc.)


among brand



class of trade”

Pharmacies

brought direct

purchaser actions

and Robinson-

Patman Act actions

state-wide class

of retail

purchasers of

brand-name

prescription drugs


through

community

health centers to

subsidize cost of

patient

prescriptions

25%

Total of Indirect Purchaser BNPD settlements listed above: Product: $150,000,000; Cash: $89,311,000



3. VITAMINS

Vitamins Case Nature of Allegations Governmental

(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees

Richardson v. F. Hoffmann-

La Roche, et al., No. CV99-

06005 (Super.Ct. Maricopa

County, Az)


and market allocation

conspiracy among

vitamin manufacturers

Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$8,446,250

($3,318,250 for

commercial

entities;

$4,692,000 for

consumers; and

$436,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

Vitamin Cases, No. 301803

(Sup. Ct. San Francisco

County, California)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$80,000,000

($42,000,000 for

commercial

entities; and

$38,000,000 for

consumers)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

Giral v. Hoffmann-La

Roche, et al., No. 98 CA

007467 (Sup. Ct. D.C.)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

district-wide class

of indirect

purchasers of

price-fixed

vitamin products

$2,021,450

($1,451,450 for

commercial

entities;

$522,000 for

consumers; and

$48,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)



(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


Garofolo et al., v. F.

Hoffmann-Laroche, Ltd., et

al., No. 99-010358 (07)

(Cir. Ct. Broward County,

Fl)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$24,772,500

($8,391,500 for

commercial

entities;

$14,988,000 for

consumers; and

$1,393,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

State of Hawaii v. Hoffman-

La Roche, et al., Civil No.

01-1-001594 (1 Dist. Cir.st

Ct. Haw.)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$1,306,000

($1,195,000 for

consumers; and

$111,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

State of Idaho v. Daiichi

Pharmaceutical Co., et al.,

No. CV 0C 01031630 (4th

Jud. Dist. Idaho, Ada

County)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$1,855,050

($505,050 for

commercial

entities;

$1,235,000 for

consumers; and

$115,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)



(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


State of Illinois v.

Hoffmann-La Roche, et al.,

No. 01CH08502 (Cir. Ct.

Cook County, Ill.)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$22,989,750

($9,759,750 for

commercial

entities;

$12,105,000 for

consumers; and

$1,125,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

Todd v. F. Hoffman-La

Roche, et al., Case No. 98 C

4574 (Dist. Ct. Wyandotte

County, Kansas)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$6,386,600

($3,499,600 for

commercial

entities;

$2,642,000 for

consumers; and

$245,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

Headrick v. F. Hoffman-La

Roche, et al., No. CV-99-

148 (Super. Ct. Cumberland

County, Maine)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$1,697,050

($336,050 for

commercial

entities;

$1,245,000 for

consumers; and

$116,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)



(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


Bascomb v. F. Hoffman-La

Roche, et al., Consolidated

Case Nos. 99-906364 Cz,

99-917982 NZ (Cir. Ct.

Wayne County, Mich)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$15,808,450

($5,026,450 for

commercial

entities;

$9,865,000 for

consumers; and

$917,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

In re: The Minnesota

Vitamin Antitrust Litigation,

Court File No. CA-00-1800

(GEJ) (2d Jud. Dist. Ct.

Ramsey County, Minn)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$8,796,900

($3,604,900 for

commercial

entities;

$4,751,000 for

consumers; and

$441,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

State of Nevada v.


Case No. 01-00723A (1st

Jud. Dist. Ct. Carson

County, Nevada)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$2,577,500

($656,500 for

commercial

entities;

$1,758,000 for

consumers; and

$163,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)



(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


In re: New Mexico Vitamins

Indirect Purchasers

Antitrust Litigation, Case

No. CV 99-12056 (2d Jud.

Dist. Ct., Bernalillo County,

NM)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$4,035,500

($2,125,500 for

commercial

entities;

$1,748,000 for

consumers; and

$162,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

Scanlon v. F. Hoffman-La

Roche, et al., Index No.

99/1237 (Sup. Ct. NY,

Albany County)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$31,119,550

($11,158,550 for

commercial

entities;

$18,264,000 for

consumers; and

$1,697,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

Nicholson v. F. Hoffman-La

Roche, et al., Case No. 99-

CVS-3592 (Super. Ct. Div.

Mecklenburg County, NC)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$12,995,650

($4,706,650 for

commercial

entities;

$7,584,000 for

consumers; and

$705,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)



(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


O’Neill v. F. Hoffman-La

Roche, et al., Civil No. 99-

C-1673 (Dist. Ct. Burleigh

County, ND)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$1,264,500

($561,500 for

commercial

entities;

$643,000 for

consumers; and

$60,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

Commonwealth of Puerto

Rico v. F. Hoffman-La

Ruche, et al., Civil No.

KAC2000-1881 (Tribunal

de Primera Instancia Sala

Superior de San Juan)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

territory-wide

class of indirect

purchasers of

price-fixed

vitamin products

$5,945,150

($1,762,150 for

commercial

entities;

$3,827,000 for

consumers; and

$356,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

State of Rhode Island and

Providence Plantations v.

Aventis Animal Nutrition S.

A., et al., No. 00-5781

(Super. Ct. Providence,

R.I.)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$1,583,900

($497,900 for

commercial

entities;

$994,000 for

consumers; and

$92,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)



(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


Chaffee v. F. Hoffman-La

Roche, et al., No. 99-221

(Cir. Court Meade County,

S.D.)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$1,471,100

($659,100 for

commercial

entities;

$743,000 for

consumers; and

$69,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

McCampbell v. F. Hoffman

La-Roche et al., Case No.

16,628 (Cir. Ct. Jefferson

County, Tenn)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$8,951,350

($2,989,350 for

commercial

entities;

$5,455,000 for

consumers; and

$507,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

State of Vermont v. Daiichi

Pharmaceutical Co., et al.,

No. 292-6-01 W (Super. Ct.

Washington County, VT)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$916,100

($269,100 for

commercial

entities;

$592,000 for

consumers; and

$55,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)



(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees


State of Washington v.


No. 01-2-13960-6 SEA

(Super. Ct. King County,

WA)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$8,256,150

($2,009,150 for

commercial

entities;

$5,716,000 for

consumers; and

$531,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

Archer v. F. Hoffmann-La

Roche, et al., Civil Action

No. 99-C-327 (Cir. Ct.

Kanawha County, WV)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$4,067,000

($2,080,000 for

commercial

entities;

$1,818,000 for

consumers; and

$169,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

In re Vitamin Product

Antitrust Litigation, Case

No. 98-CV-7792 (Cir. Ct.

Milwaukee County, WI)



conspiracy among


Federal criminal

charges, direct

purchaser actions

and civil actions

by state attorneys

general

state-wide class

of indirect

purchasers of

price-fixed

vitamin products

$10,318,700

($4,587,700 for

commercial

entities;

$5,244,000 for

consumers; and

$487,000 for

State Economic

Impact Fund)

Direct

distribution

through claims

process for

business entities;

cy pres

programs for

consumer

recovery

16.67% (not

out of common

fund but paid

by defendants)

Total of Indirect Purchaser Vitamins Settlements listed above: $267,582,150.00



4. MICROSOFT (www.microsoft.com/mscorp/legal/class/#head1)

Microsoft Case Nature of

Allegations

Governmental

(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)

Type of

Class

Amount of

Settlement

Distribution M ethod Attorneys’ Fees

In re Arizona

Microsoft Litig., No.

00-0722. (Super. Ct.

Maracopa County,

Az)

Abuse of monopoly

power and unlawful

tie-in of internet

browser software

Civil action by

federal and state

authorities; direct

purchaser actions

state-wide

class of

software

purchasers

up to

$104,600,000

in vouchers

vouchers can be redeemed

for cash in connection with

purchases of qualifying

hardware or software; half

the value of unclaimed

benefits distributed to

disadvantaged schools

Microsoft to pay fee

agreed upon or

otherwise awarded by

court; notice indicates

request not to exceed

$34.8 million

Microsoft I-C

Cases, J.C.C.P. No.

4106 (Super. Ct.

San Francisco

County, Ca)

Abuse of monopoly

power and unlawful

tie-in of internet

browser software

Civil action by

federal and state

authorities; direct

purchaser actions

state-wide

class of

software

purchasers

up to

$1,100,000,000

in vouchers




hardware or software; 2/3


benefits distributed



agreed upon or




$275 million

Bernard v.

Microsoft Corp.,

Cummins v.

Microsoft Corp.,

Knight v. Microsoft

Corp. (Superior

Court, D.C.)

Abuse of monopoly

power and unlawful

tie-in of internet

browser software

Civil action by

federal and state

authorities; direct

purchaser actions

state-wide

class of

software

purchasers

up to

$6,200,000 in

vouchers








[information not

available on website]



Allegations

Governmental

(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)

Type of

Class

Amount of

Settlement



In re Florida

Microsoft Antitrust

Litig., 99-27340

(11 Jud. Cir.th

Miami-Dade

County, Fla.)

Abuse of monopoly

power and unlawful

tie-in of internet

browser software

Civil action by

federal and state

authorities; direct

purchaser actions

state-wide

class of

software

purchasers

up to

$202,000,000

in vouchers









agreed upon or




$48 million

In re Kansas

Microsoft Antitrust

Litig., 99-CV-17089

(Dist. Ct. Johnson

County, Kan.)

Abuse of monopoly

power and unlawful

tie-in of internet

browser software

Civil action by

federal and state

authorities; direct

purchaser actions

state-wide

class of

software

purchasers

up to

$32,000,000 in

vouchers









agreed upon or



request not to exceed $8

million

In re Microsoft

Corporation

Massachusetts

Consumer

Protection Litig.,

00-2456 (Mass.

Super. Ct.

Middlesex)

Abuse of monopoly

power and unlawful

tie-in of internet

browser software

Civil action by

federal and state

authorities; direct

purchaser actions

state-wide

class of

software

purchasers

up to

$34,000,000 in

vouchers









agreed upon or




$9.75 million

Gordon v. Microsoft

Corp., No. MC 00-

5994; Uglem v.

Microsoft Corp.,

No. MC 03-4162

(Dist. Ct. Hennepin

County, Minn.)

Abuse of monopoly

power and unlawful

tie-in of internet

browser software

Civil action by

federal and state

authorities; direct

purchaser actions

state-wide

class of

software

purchasers

up to

$174,500,000

in vouchers









agreed upon or




$59.4 million



Allegations

Governmental

(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)

Type of

Class

Amount of

Settlement



Arthur v. Microsoft

Corp., No. CI 01-

126 (Dist. Ct.

Dodge County,

Neb.)

Abuse of monopoly

power and unlawful

tie-in of internet

browser software

Civil action by

federal and state

authorities; direct

purchaser actions

state-wide

class of

software

purchasers

up to

$22,600,000 in

vouchers








Notice says that

Microsoft agreed to pay

fee not to exceed

$2,712,000

In re New Mexico

Indirect Purchasers

Microsoft

Corporation

Antitrust Litig., No.

D0101CV20001697

(1 Jud. Dist., N.M.)st

Abuse of monopoly

power and unlawful

tie-in of internet

browser software

Civil action by

federal and state

authorities; direct

purchaser actions

state-wide

class of

software

purchasers

up to

$31,500,000 in

vouchers









agreed upon or




25% of Face Value of

Settlement

MJM Investigations

Inc. v. Microsoft

Corp., Nos. 00 CVS

4073 and 00 CVS

1246 (N.C.

Business Court,

Raleigh, N.C.)

Abuse of monopoly

power and unlawful

tie-in of internet

browser software

Civil action by

federal and state

authorities; direct

purchaser actions

state-wide

class of

software

purchasers

up to

$89,194,765 in

vouchers






benefits distributed to N.C.

Dept. of Public Institution


agreed upon or




$22.25 million

Howe v. Microsoft

Corp., No. 00-C-

00328 (Dist. Ct.,

Grand Forks

County, N.D.)

Abuse of monopoly

power and unlawful

tie-in of internet

browser software

Civil action by

federal and state

authorities; direct

purchaser actions

state-wide

class of

software

purchasers

up to

$9,000,000 in

vouchers








[information not




Allegations

Governmental

(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)

Type of

Class

Amount of

Settlement



In re South Dakota

Microsoft Antitrust

Litig., (Cir. Ct. 6 th

Jud. Cir., Hughes

County, S.D.)

Abuse of monopoly

power and unlawful

tie-in of internet

browser software

Civil action by

federal and state

authorities; direct

purchaser actions

state-wide

class of

software

purchasers

up to

$9,330,000 in

vouchers








[information not


Sherwood v.

Microsoft Corp., 99

C 3562 (Cir. Court,

Davidson County,

Tenn.)

Abuse of monopoly

power and unlawful

tie-in of internet

browser software

Civil action by

federal and state

authorities; direct

purchaser actions

state-wide

class of

software

purchasers

up to

$64,000,000 in

vouchers







Tennessee Commissioner of

Education

Notice indicates award

of $8 million

Elkins v. Microsoft

Corp., No. 165-4-01

(Sup. Ct. Windham

County)

Abuse of monopoly

power and unlawful

tie-in of internet

browser software

Civil action by

federal and state

authorities; direct

purchaser actions

state-wide

class of

software

purchasers

up to

$9,700,000 in

vouchers









agreed upon or




$3.5 million

West Virginia ex

rel. McCraw v.

Microsoft Corp.,

No. 01-C-197

Abuse of monopoly

power and unlawful

tie-in of internet

browser software

Civil action by

federal and state

authorities; direct

purchaser actions

state-wide

class of

software

purchasers

up to

$18,000,000 in

vouchers








[information not




Allegations

Governmental

(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)

Type of

Class

Amount of

Settlement



Capp v. Microsoft

Corp., No.

00CV637, Spence

v. Microsoft Corp. ,

No. 00CV3042; and

Bettendorf v.

Microsoft Corp.,

No. 03CV563 (Cir.

Ct. Milwaukee Cty.,

Wisc.)

Abuse of monopoly

power and unlawful

tie-in of internet

browser software

Civil action by

federal and state

authorities; direct

purchaser actions

state-wide

class of

software

purchasers

up to

$223,896,000

in vouchers








Approximately $14

million to three different

groups. See Bettendorf

v. Microsoft Corp., No.

2008AP3215, 2009 WL

4984079 (Wis. App.

Dec. 22, 2009).

Total of Microsoft indirect purchaser settlements listed above: up to $2,130,520,765 in vouchers*

*There may be settlements in some other states not listed.



5. SORBATES

Sorbates Case Nature of Allegations Governmental

(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees

State of Illinois ex rel.

Madigan v. Daicel

Chemical Industries Ltd.,

No. 02CH19575 (Cir. Ct.

Cook County, Ill.)


conspiracy for sorbates,

an ingredient in foods,

beverages and other

household products

Federal criminal

charges; Direct

purchaser actions

state-wide class

of consumer

indirect

purchasers of

sorbates

$1,610,000 cy pres to

benefit physical

education

programs in

disadvantaged

public school

districts

$234,000 to

state attorney

general

Orlando’s Bakery v.

Nutrinova Nutrition

Specialties & Food

Ingredients, GmbH , No. 99-

560-II, (Chancery Court,

Davidson County, Tenn.)




beverages and other

household products

Federal criminal

charges; Direct

purchaser actions

state-wide class

of indirect

purchasers of

sorbates

$1,450,000 claims process

for business

purchasers; cy

pres for benefit

of consumers

32%

Kelley Supply, Inc. v.

Eastman Chemical Co., No.

99cv001528 (Cir. Ct., Dane

County, Wis.)




beverages and other

household products

Federal criminal

charges; Direct

purchaser actions

multistate-class of

indirect

purchasers of

sorbates

$8,866,750 claims process

for business

purchasers; cy

pres for benefit

of consumers

23.6%

Total of Indirect Purchaser Sorbates Settlements listed above: $11,926,750



6. MISCELLANEOUS

Miscellaneous Case Nature of Allegations Governmental

(Civil/Criminal),

Direct Purchaser

or Competitor

Action(s)


Settlement

Distribution

Method

Attorneys’

Fees

In re California Indirect

Purchaser X-Ray Film

Antitrust Litig., No. 960886

(Sup. Ct. Alameda County)

[1998 WL 1031494]

Defendants conspired

to raise, fix and

stabilize the prices of

medical x-ray film

Direct purchaser

actions

state-wide class

of indirect

purchasers of

medical x-ray

film

$3,750,000 Direct

distribution of

cash proceeds

through claims

process

30%

Strang v. Sumitomo Corp.,

(Sup. Ct. San Diego

County)

(gilardi.com/pdf/cps6noc.pd

f)

Defendants colluded to

fix, stabilize and

maintain copper prices

CFTC enforcement

action

multistate class of

purchasers of

copper products

multiple

settlements

aggregating

$83,350,000

Direct

distribution of

cash proceeds

through claims

process

Notices

indicated fee

requests of

33.33% of

$77,350,000

Premier Pork, Inc. v.

Rhone-Poulenc, S.A., No.

CV2000-3, 2006 WL

1388464 (Scott County

Kan, Dist. Ct. Jan. 31,

2006)

Defendants colluded to

fix, stabilize and

maintain prices for

methionine

Kansas indirect

purchasers of

methionine

$1,675,000 Direct

distribution of

cash proceeds

through claims

process

33.33% (of

common fund

less expenses)

Elizabeth Blevins, et al. v.

Wyeth-Ayerst Laboratories,

Inc., Case No. 324380 (Sup.

Ct. San Francisco, 2007)

(premarinsettlement.com)

Defendant engaged in

anticompetitive

conduct that blocked

access to alternative

drug

Direct purchaser

class action;

competitor action

Consumers and

Third-Party

Payors of

prescription drug

Premarin

purchased in

California

$5,200,000 Direct

distribution of

cash proceeds

through claims

process

25%

Total of settlements listed above: $93,975,000



SETTLEMENT TOTALS

Total of indirect purchaser settlements (including those with approval pending):

Settlement Groups Cash Non-cash benefit Total (cash and non-cash)

Federal Cases (includingapproval pending)

$1,538,337,600 $3,000,000(product: prescriptiondrugs)

$1,541,337,600

Infant Formula Cases $68,120,000 $10,464,000(product: infantformula)

$78,584,000

Brand-Name Drug Cases $89,311,000 $150,000,000(product: prescriptiondrugs)

$239,311,000

Vitamins State Cases $267,582,150.00 $267,582,150.00

Microsoft Cases $2,130,520,765(vouchers for hardwareand software)

$2,130,520,765

Sorbates Cases $11,926,750 $11,926,750

Miscellaneous Cases $93,975,000 $93,975,000

Total: $2,069,252,500 $2,293,984,765 $4,363,237,265
