Plaintiffs' Memorandum In Support Of Motion for Certification - IN by suchenfz

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									2:07-cv-00764-DCN      Date Filed 10/25/10    Entry Number 204-1    Page 1 of 20



                        IN THE UNITED STATES DISTRICT COURT
                            DISTRICT OF SOUTH CAROLINA
                                CHARLESTON DIVISION

IN RE HOUSEHOLD GOODS                           )
MOVERS ANTITRUST LITIGATION                     )      MDL DOCKET NO.: 1865
                                                )

DONALD J. BEACH, et al., Individually And       )
On Behalf Of All Others Similarly Situated,     )
                                                )
                    Plaintiffs,                 )
                                                )   Case No.: 2:07-cv-764-DCN
             v.                                 )
                                                )
ATLAS VAN LINES, INC., et al.,                  )
                                                )
                    Defendants.                 )
                                                )

GARY MOAD, et al., Individually And On          )
Behalf Of All Others Similarly Situated,        )
                                                )
                    Plaintiffs,                 )
                                                )   Case No.: 2:07-cv-2861-DCN
             v.                                 )
                                                )
ATLAS VAN LINES, INC., et al.,                  )
                                                )
                    Defendants.                 )
                                                )

ROBERT E. BOONE, JR., Individually And On       )
Behalf Of All Others Similarly Situated,        )
                                                )
                    Plaintiffs,                 )
                                                )
             v.                                 )
                                                )   Case No.: 2:08-cv-486-DCN
ATLAS VAN LINES, INC., et al.,                  )
                                                )
                    Defendants.                 )
                                                )

     PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR
 CERTIFICATION OF A SETTLEMENT CLASS, PRELIMINARY APPROVAL
           OF SETTLEMENT AND APPROVAL OF NOTICE
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           Plaintiffs, by and through counsel, hereby move this Court, pursuant to Federal

Rule of Civil Procedure 23(b)(3) and (e), for entry of an Order, in the form attached as

Exhibit A, for certification of the proposed settlement class, approval of the SIRVA Plan

of Distribution, and preliminary approval of the class action settlement.


I.         BACKGROUND OF THE LITIGATION AND THE SETTLEMENT

           For more than three years, Class Counsel have prosecuted federal antitrust claims

against the household goods moving and storage industry both here and in the United

States Bankruptcy Court for the Southern District of New York. These claims, held by

approximately one million putative class members, allege that the Defendants unlawfully

imposed fuel surcharges that over-compensated carriers for their increased fuel costs.

           Following the Chapter 11 bankruptcy of SIRVA, Inc., SIRVA Worldwide, Inc.,

North American Van Lines, Inc., and Allied Van Lines, Inc (collectively “SIRVA”),

Plaintiffs successfully challenged SIRVA’s efforts to discharge the unsecured claims of

class members without compensation. The U.S. Bankruptcy Court for the Southern

District of New York thereafter approved a nationwide class action settlement with the

reorganized debtors but left any determination on the distribution of the proceeds to this

Court following the conclusion of the entire litigation.

           The remaining parties thereafter undertook extensive settlement negotiations

while litigating the partial summary judgment now pending in the Fourth Circuit Court of

Appeals. These efforts have produced a comprehensive resolution in the form outlined in

the October 21, 2010 Settlement Agreement (hereinafter “Agreement”). See Agreement,

attached as Exhibit 1 to Tuck Affidavit. 1


1
    Defined terms identified in this Memorandum have the same meanings as listed in the Agreement.

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         The format of the Agreement is straightforward. Under the terms of the Chapter

11 class action settlement, SIRVA previously deposited three million in cash and the two

million dollar Beach Class Action Note (hereinafter “Note”), with a maturity date of May

12, 2015, with the escrow agent, Regions Bank. See Exhibit 2 to Tuck Aff. Regions is

entitled to pay taxes on those sums and administer those monies in accordance with the

bankruptcy settlement. At the time the parties executed the Agreement, the escrow

account had a balance of $2,779,097.60 in cash and $2,605,343.19 for the Note (which

includes interest added to the principal). Class Counsel proposes that, assuming a grant

of preliminary and final approval, this Court authorize the liquidation of the Note via a

sale to the Issuer at the best price Class Counsel can obtain for the Note.2 In recognition

that a portion of notice and claims administration is solely attributable to SIRVA class

members, Class Counsel request that the Court provide for at least $200,000 to be

deducted from the combined SIRVA fund for payment of such costs. See Agreement at

p. 4.

         Moreover, Class Counsel point out that there are anticipated costs associated with

the sale of the Note and payment of taxes on the Regions escrow account. Class Counsel

thus recommends that $250,000.00 of the SIRVA proceeds be set aside from the

settlement fund until the last of these administrative costs are incurred no earlier than

2011.3      For those monies that remain following the exit of the escrow agent’s

administration of the SIRVA funds, Class Counsel proposes that the Court order a cy pres

remedy following a final report on the total funds remaining in escrow.

2
  The Issuer’s closed financials and the Note’s lack of interest to institutional investors, in light of its value,
create limitations on identifying a market for the Note’s sale.
3
  By way of reference, Regions Bank has deducted a total of $237,572 to date from the escrow fund, almost
exclusively related to taxes. See Exhibit 3 to Tuck Aff. Class Counsel needs to insure that sufficient
monies are held back to cover similar future costs, including taxes and escrow agent fees.

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       In conjunction with the proposed distribution of the SIRVA settlement, see

Exhibit 4 to Tuck Aff., Plaintiffs propose to distribute a common fund set at a maximum

of $40 million from the remaining Defendants.        The fund will be administered on a

claims made basis with notice and administration costs of up to $600,000 deducted from

the fund. The proposed settlement fund provides relief to both individual customers

(“individual” shippers) and national accounts (“NAC” shippers) for corporate customers.

A simple claims process will be established for the payment of claims.

       Class Counsel, subject to this Court’s approval, will seek a reasonable attorneys’

fee, including expenses, of 25% of the total fund created by Defendants. Defendants do

not object to this percentage.    Class Counsel will separately move for approval of

reasonable attorneys’ fees and expenses for both funds at or prior to a motion for final

approval.

       The Defendants do not object to the class representatives receiving compensation

in the amount of $1000.00 per Plaintiff for their efforts on this litigation. Class Counsel

submit that this amount is reasonable in light of the representatives’ cooperation with

Class Counsel in bringing this lawsuit.

II.    THE PROPOSED CLASS MEETS ALL ELEMENTS FOR CLASS
       CERTIFICATION.

       District courts have “wide discretion in deciding whether or not to certify a

proposed class.” In re A.H. Robins Co., Inc., 880 F.2d 709, 728 (4th Cir. 1989) (quoting

Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 471-72 (5th Cir. 1986)). “The court must

accept the allegations made in support of certification as true, and not undertake an

examination of the merits of the case.” Cuming v. S.C. Lottery Comm’n, Civil Action

No.: 3:05-cv-03608-MBS, 2008 U.S. Dist. LEXIS 26917, at *6 (D.S.C. March 28, 2008).

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Plaintiffs do, however, bear the burden of satisfying Rule 23’s certification requirements.

Id.

       A.      The Proposed Class Meets All Prerequisites for Class Certification.

       In order to comply with Rule 23(a), Plaintiffs must show:

       (1)     The class is so numerous that joinder of all members is
               impracticable;
       (2)     there are questions of law or fact common to the class;
       (3)     the claims or defenses of the representative parties are typical of
               the claims or defenses of the class; and
       (4)     the representative parties will fairly and adequately protect the
               interests of the class.

Fed. R. Civ. P. 23(a).

       As an initial matter, the Court should “consider the definition of the class when

determining the appropriateness of class certification,” Kirkman v. N.C. R.R., 220 F.R.D.

49, 53 (M.D.N.C. 2004), in order to determine whether it is “precise, objective, and

ascertainable . . . [and whether it] captures all individuals or entities necessary for the

efficient and fair resolution of common questions of fact and law in a single proceeding,”

BARBARA J. ROTHSTEIN & THOMAS E. WILLGING, MANAGING CLASS ACTION LITIGATION:

A POCKET GUIDE FOR JUDGES 9 (Federal Judicial Center 2009).

       Plaintiffs here propose the following class definition for the $40,000,000 fund

(hereafter “Primary Fund”):

               All individuals or entities who purchased Household Goods
               Moving Services for interstate shipments from March 19, 2003
               through December 31, 2007 under Tariff 400N or contracts
               referencing or incorporating Item 16 of Tariff 400N, and who paid
               a fuel surcharge directly to any Household Goods Motor Carrier
               for such shipment. Excluded from the class are:

               (i) the Released Parties;




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               (ii) employees, officers, directors, agents and legal representatives
               of the Released Parties; and

               (iii) governmental entities.

       As set forth below, this proposed class meets all prerequisites for class

certification under Fed. R. Civ. P. 23(a).

       B.      The Class is so Numerous the Joinder of all Members is
               Impracticable.

       Rule 23(a)(1) states that the numerosity requirement is met if “joinder of all

members is impracticable.” FED. R. CIV. P. 23(a)(1). The Fourth Circuit has consistently

held the application of Rule 23 is to be considered in light of the particular circumstances

of the case, Cypress v. Newport News General & Nonsectarian Hosp. Ass’n, 375 F.2d

648, 653 (4th Cir. 1967), and, accordingly, it has not set a bright-line rule on numerosity.

See Holsey v. Aramour & Co., 743 F.2d 199, 217 (4th Cir. 1984) (holding that between

forty-six and sixty members of a class was a sufficient number to satisfy the Rule

23(a)(1) numerosity requirement for class certification), cert. denied, 470 U.S. 1028

(1985); Brady v. Thurston Motor Lines, 726 F.2d 136, 145 (4th Cir. 1984) (holding that

seventy-four members of a class was a sufficient number to satisfy the Rule 23(a)(1)

numerosity requirement for class certification), cert. denied, 469 U.S. 827 (1984); Lilly v.

Harris-Teeter Supermarket, 720 F.2d 326, 333 (4th Cir. 1983) (holding that 229 members

of a class was a sufficient number to satisfy the Rule 23(a)(1) numerosity requirement),

cert. denied, 466 U.S. 951 (1984).

       The proposed class here involves approximately one million class members,

including roughly 235,000 class members who previously received notice as part of the

SIRVA settlement. Although there is no precise measurement for numerosity, Kelley v.



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Norfolk & W. Ry. Co., 584 F.2d 34, 35 (4th Cir. 1978), this number easily satisfies the

Rule 23(a)(1) standard.

       C.      There Are Questions of Law and Fact Common to the Class.

       Fed. R. Civ. P. 23(a)(2) requires a showing that questions of law or fact are

common to the class. It does not require that all such issues in the litigation be common,

nor that common questions predominate, but only that common questions exist. See

Holsey, 743 F.2d at 216-17; see also Int’l Woodworkers of Am. v. Chesapeake Bay

Plywood Corp., 659 F.2d 1259, 1269-70 (4th Cir. 1981) (stating that differences in the

manner or degree of commonly caused injuries do not preclude certification). Indeed, a

single common question has been found to satisfy Rule 23(a)(2). See, e.g., Simon v.

Westinghouse Elec. Corp., 73 F.R.D. 480, 484 (E.D. Pa. 1977). “A common question is

one that can be resolved for each class member in a single hearing.” Thorn v. Jefferson-

Pilot Life Ins. Co., 445 F.3d 311, 319 (4th Cir. 2006).

       While courts have held that “commonality” exists under many different

circumstances, there are common questions if the claims of the class arise from the same

underlying set of facts or circumstances. Holsey, 743 F.2d at 216-17. In the present

action, the claims of Plaintiffs and their proposed class present a number of common

questions of law and fact, including, but not limited to:

               a.      Whether Defendants engaged in a combination or
                       conspiracy among themselves to unlawfully fix,
                       peg, raise, maintain, and/or stabilize fuel surcharge
                       prices charged for interstate moves within the
                       United States;

               b.      The duration of the conspiracy alleged in this
                       Complaint, and the nature and character of the acts
                       performed by Defendants in furtherance of the
                       conspiracy;

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                 c.     Whether the alleged conspiracy violated Section 1
                        of the Sherman Act;

                 d.     Whether the fuel surcharge agreed to            and
                        implemented by Defendants was unlawful;

                 e.     The effect of Defendants’ conspiracy on the fuel
                        surcharge prices charged for interstate moves within
                        the United States during the Class period;

                 f.     Whether the Defendants are statutorily immune
                        from the violations alleged here;

                 g.     Whether the Filed        Rate   Doctrine   precludes
                        Plaintiffs’ claims;

                 h.     Whether the conduct of Defendants, as alleged in
                        the Complaint, caused damages to the Plaintiffs and
                        the other members of the class, and

                 i.     The appropriate measure of damages sustained by
                        Plaintiffs and other members of the class.

       In sum, Plaintiffs’ allegations, together with the information Plaintiffs have

obtained through discovery and private investigation, describe a common nucleus of

operative facts showing that Defendants engaged in a uniform practice related to the

imposition of fuel surcharges that were in violation of federal law. Class members seek

redress for this same common injury; accordingly, the threshold for commonality has

been met here.

       D.        The Representative Plaintiffs’ Claims are Typical of the Class.

       Rule 23(a)(3) requires that “the claims or defenses of the representative parties”

be “typical of the claims or defenses of the class.” Decisions construing Rule 23(a)(3)

have given it a liberal construction, holding that a claim is typical if it arises from the

same events, practices, or course of conduct that gives rise to the claims of other class



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members, and if the claims are based on the same legal theories. See, e.g., Senter v. Gen.

Motors. Corp., 532 F.2d 511 (6th Cir.), cert. denied 429 U.S. 870 (1976); 1 H. Newberg,

Newberg on Class Actions § 3:13 (2002) (cases collected). “The representative party’s

interest in prosecuting his own case must simultaneously tend to advance the interests of

the absent Class members . . . [but] [t]hat is not to say that typicality requires that the

plaintiff’s claim and the claims of Class members be perfectly identical . . . .” Deiter v.

Microsoft Corp., 436 F.3d 461, 466-67 (4th Cir. 2006).

       Here, the representative parties’ claims are typical of the class as a whole. Each

of the named Plaintiffs is a member of the proposed class in that the Plaintiffs paid fuel

surcharges directly to one or more Defendants. Plaintiffs and remaining members of the

class also bring the same legal theories grounded in federal antitrust law.

       E.      The Representative Plaintiffs will Fairly and Adequately Protect the
               Interests of the Class.

       The final requirement of Rule 23(a) is that “the representative parties will fairly

and adequately protect the interests of the class.” FED. R. CIV. P. 23(a)(4).         This

requirement is satisfied in large part by the absence of any disabling antagonism or intra-

class conflict, as demonstrated from the preceding discussion of the “commonality” and

“typicality” requirements. Additional considerations more particularly associated with

Rule 23(a)(4) include the vigor with which the representative party can be expected to

assert and defend the interests of the class and the qualifications of class counsel. 1 H.

Newberg, Newberg On Class Actions § 3:21. See also Sosna v. Iowa, 419 U.S. 393, 403

(1975); Thomas v. Louisiana-Pacific Corp., 246 F.R.D. 505, 509 (D.S.C. 2007).

       Plaintiffs’ interests here are clearly not antagonistic to those claims asserted on

behalf of the class. The named Plaintiffs filed this action to seek compensation from

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illegal fuel surcharges, and these claims are coextensive with those of the remaining class

members.

       Moreover, Plaintiffs’ counsel has extensive experience in class action and other

complex litigation and are well suited to prosecute the claims. See Exhibit 5 to Tuck Aff.

Among their efforts in this case, Class Counsel prosecuted unsecured claims in

bankruptcy court when faced with the prospect of expending significant time and money

on ancillary litigation that could have proven unsuccessful. Class Counsel and Plaintiffs

share the same interest as class members in maximizing recovery, and this Court should

therefore find that the proposed representations are in the best interests of the class.

III.   THE PROPOSED CLASS ALSO SATISFIES RULE 23(b)’s CLASS
       CERTIFICATION REQUIREMENTS.

       In addition to meeting the requirements of Fed. R. Civ. P. 23(a), Plaintiffs’

proposed class also satisfies the requirements of Fed. R. Civ. P. 23(b). Rule 23(b)(3)

provides that a class action may go forward if the requirements of Rule 23(a) are met and

if:


       (3) the court finds that the questions of law or fact common to class
       members predominate over any questions affecting only individual
       members, and that a class action is superior to other available methods for
       fairly and efficiently adjudicating the controversy.

Fed. R. Civ. P. 23(b)(3). The rule gives further guidance on factors to be consulted by

the Court when making its superiority determination.            Those factors are: (A) the

individual class members’ interests in individually controlling the prosecution or defense

of separate actions; (B) the extent and nature of any litigation concerning the controversy

already begun by or against class members; (C) the desirability or undesirability of




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concentrating the litigation of the claims in the particular forum; and (D) the likely

difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3)(A) – (D).

       A.      Questions of Law and Fact Common to the Proposed Class Members
               Predominate Over Individual Issues.

       The “predominance inquiry tests whether proposed classes are sufficiently

cohesive to warrant adjudication by representation.” Amchem Prods. v. Windsor, 521

U.S. 591, 623 (1997). To satisfy the predominance standard “Plaintiffs need only show

that ‘common questions predominate over individual questions as to liability,’” Hunter v.

Am. Gen. Life & Accident Ins. Co., C/A No. 3:01-5000-22, MDL Docket No. 1429, 2004

U.S. Dist. LEXIS 30358, at *37 (D.S.C. Dec. 2, 2004) (quoting Gunnels v. HealthPlan

Servs., Inc., 348 F.3d 417, 428 (4th Cir. 2003)), even when individualized damages

inquiries may be necessary. At its core, the predominance inquiry focuses upon the

relationship between common and individual issues. “When common issues present a

significant aspect of the case and it can be resolved for all members of the Class in a

single adjudication, there is clear justification for handling the dispute on a representative

rather than on an individual basis.” 7A Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure § 1778 (2d ed. 1986).

       In this action, common questions predominate over questions affecting individual

class members. The factual and legal issues are subject to common proof since the proof

necessary to establish the class claims will be the same for each and every class member

via federal antitrust law. These claims are fully supported by the generalized proof of

concerted action by the Defendants in setting artificially high fuel surcharges. These

questions of law and fact can be handled in a single adjudication and are clearly worthy

of class treatment.

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        Plaintiffs acknowledge that the Defendants have some individual defenses to

claims brought by NAC shippers that they do not have for individual shippers. For

example, NAC shippers utilize individualized contracts. Class Counsel have, however,

taken these defenses into account in settlement discussions and have reflected those

additional certification defenses in the proposed distribution of the Primary Fund. See

Agreement at p. 15. While the NAC claims would be subject to these greater defenses at

certification of a litigation class, Plaintiffs contend that certification for NAC shippers

remains appropriate for settlement purposes here where the Court will not have to be

concerned with the manageability of the litigation.

        B.     The Class Action Device is the Superior Method for the Fair and
               Efficient Adjudication of this Matter.

        Before a class may be certified, the Court must also find that a class action is the

superior method for the fair and efficient adjudication of the action before it. Fed. R. Civ.

P. 23(b)(3).   “A class action may be superior if class litigation of common issues will

reduce litigation costs to promote greater efficiency, or if no rules to alternatives exist.”

Conner v. Automated Accounts, Inc., 202 F.R.D. 265 (271 (E.D.Wa. 2001). Because the

certification of the proposed settlement class will obviate manageability concerns,

Plaintiffs simply note that the use of the class device here will allow the Court to

conserve valuable judicial resources that would otherwise be allocated to individual

litigation.

        Plaintiffs also point out that the interests of individual or NAC shippers in

individually controlling the prosecution of separate actions appears to be minimal. This

multidistrict litigation remains relatively small and, as evidenced by the miniscule

number of opt outs in the SIRVA settlement, few class members have chosen to forego a

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class remedy in favor of separately litigating an individual claim. As such, this matter is

the very type of case for which the class action mechanism was created.

IV.      THIS COURT SHOULD GRANT PRELIMINARY APPROVAL FOR A
         REASONABLE SETTLEMENT THAT FACES SUBSTANTIAL RISKS IF
         LITIGATION CONTINUES.

         In determining whether preliminary approval is warranted, two issues must be

decided. The first issue is whether the proposed settlement is within the range of what

might ultimately be found fair, reasonable and adequate, under the standards set forth by

the Fourth Circuit Court of Appeals in Flinn v. FMC Corp., 528 F.2d 1169 (4th Cir.

1975), and its progeny, In re Jiffy Lube Securities Litigation, 927 F.2d 155 (4th Cir.

1991), and thus warrants publication of notice and scheduling of a hearing to consider

final settlement approval. The second issue is whether the proposed notice and notice

plan will provide the best notice practicable, as required under Rule 23 and the due

process clause of the Constitution. As explained below, the terms of the proposed

settlement are fair, reasonable and adequate (for preliminary approval purposes), and the

notice plan exceeds the requirements of Rule 23 and due process.

         A.     Legal Standard

         Rule 23(e) requires the Court to approve any class action settlement and to direct

reasonable notice to the class. Fed. R. Civ. Pr. 23(e)(1). Judicial approval is necessary to

insure that the rights of absent class members are adequately protected. See Jiffy Lube,

927 F.2d at 158; Clark v. Experian Info. Solutions, Inc., 219 F.R.D. 375, 378 (D.S.C.

2003).

         Courts apply a two-step approach to the settlement approval process. See Horton

v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 855 F. Supp. 825, 827 (E.D.N.C. 1994);



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Armstrong v. Bd. Of School Dirs., 616 F.2d 305, 314 (7th Cir. 1980), overruled on other

grounds by Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998); In re Mid-Atlantic Toyota

Antitrust Litig., 564 F. Supp. 1379, 1384 (D. Md. 1983). In the first step, preliminary

approval, the court reviews the proposed settlement for obvious deficiencies, schedules a

fairness hearing and provides the class with notice of the proposed settlement and

hearing; in the second step, the court considers final approval of the proposed settlement

at a formal fairness hearing. See Horton, 855 F. Supp. at 827; Armstrong, 616 F.2d at

314; Mid-Atlantic Toyota, 564 F. Supp. at 1384; Manual for Complex Litigation (Fourth)

§§ 21.632, 21.634 (2004) (hereinafter, “Manual”). At the later fairness hearing, the

Court will be asked to consider whether the proposed settlement is fair, reasonable, and

adequate under the factors well-established in this Circuit. See Jiffy Lube, 927 F.2d at

158-59 (setting forth fairness and adequacy factors to be considered for approval of class

settlement); Flinn, 528 F.2d at 1173-74 (same).

       On a motion for preliminary approval, however, the Court’s function is merely to

ascertain whether there is “probable cause” to notify class members of the proposed

settlement and to proceed with a fairness hearing. Mid-Atlantic Toyota, 564 F. Supp. at

1384; see Armstrong, 616 F.2d at 314. When a proposed settlement appears to fall within

the range of “possible approval,” it is appropriate to issue preliminary approval and direct

notice to members of the settlement class. See Horton, 855 F. Supp. at 827-28; see also

Manual, supra, §§ 21.632, 21.633.

       B.      There is Probable Cause to Notify the Class Because the Proposed
               Settlement is the Result of Arms’ Length Negotiations.

       Courts in the Fourth Circuit look to the fairness factors set forth in Flinn and Jiffy

Lube in determining whether there is probable cause to notify the class. See In re

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Serzone Prods. Liab. Litig., No. MDL No. 1477, 2004 WL 2849197, at *2-3 (S.D. W.

Va. Nov. 18, 2004) (applying Jiffy Lube factors in preliminarily approving class

settlement); see also Mid-Atlantic Toyota, 564 F. Supp. at 1383-85. The fairness factors

concern whether there has been arms’ length bargaining. See Mid-Atlantic Toyota, 564 F.

Supp. at 1383, 1385; South Carolina Nat’l Bank v. Stone, 139 F.R.D. 335, 339 (D.S.C.

1991). Courts consider (i) the posture of the case at the time of settlement, (ii) the extent

of discovery that has been conducted, (iii) the circumstances surrounding the

negotiations, and (iv) the experience of counsel. See Jiffy Lube, 927 F.2d at 158-59;

South Carolina Nat’l Bank, 139 F.R.D. at 339.

       The fairness factors, as applied to the present case, favor preliminary approval of

the proposed settlement. First, collusion is absent. A proposed class action settlement is

considered presumptively fair where, as here, there is no evidence of collusion and the

parties, through capable counsel, have engaged in arms’ length negotiations. See South

Carolina Nat’l Bank, 139 F.R.D. at 339 (“In assessing fairness and adequacy of a

proposed settlement ‘there is a strong initial presumption that the compromise is fair and

reasonable.’”) (citation omitted); see also Manual, supra. §§ 21.61, 21.62. Class Counsel

engaged in protracted negotiations over many months where the outcome was uncertain.

It was only on the eve of the appellate argument that the parties reached the proposed

Agreement.

       Next, Class Counsel were fully and sufficiently informed to vigorously advocate

on behalf of the class.     In addition to the formal discovery that the parties have

undertaken, Class Counsel conducted extensive factual investigation and legal analysis to

obtain sufficient information to weigh the benefits of the proposed Agreement against the



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risks of continued litigation. The parties have repeatedly litigated issues of statutory

immunity, filed rate doctrine and primary jurisdiction, and the parties now sit on the eve

of a hearing with the Fourth Circuit Court of Appeals that could potentially lead to the

dismissal of Plaintiffs’ case.

       Class Counsel also litigated throughout SIRVA’s Chapter 11 bankruptcy

proceedings as part of their efforts to assert the unsecured claims of class members. It is

on the basis of their extensive investigation and analysis that Class Counsel, who have

substantial experience in prosecuting and negotiating the settlement of class actions,

recommend approval of the proposed settlement as in the best interests of the putative

class. See Isby v. Bayh, 75 F.3d 1191, 1200 (7th Cir. 1996) (noting that the court is

“entitled to give consideration to the opinion of competent counsel that the settlement[ is]

fair, reasonable, and adequate”); see also Weinberger v. Kendrick, 698 F.2d 61, 74 (2d

Cir. 1982) (noting that absent fraud, collusion or the like, courts should be hesitant about

substituting their own judgment for that of counsel).

       C.      The Proposed Settlement Falls within the Range of Possible Approval.

       Courts should consider the adequacy of the settlement relief to determine whether

the compromise falls within the range of possible approval. See Serzone Prods. Liab.

Litig., 2004 WL 2849197, at *2-3 (applying Jiffy Lube factors in preliminarily approving

class settlement); see also Mid-Atlantic Toyota, 564 F. Supp. at 1385. Like the fairness

factors, courts in this Circuit weigh the adequacy factors articulated in Flinn and Jiffy

Lube: (i) the relative strength of the plaintiffs’ case on the merits; (ii) the existence of any

difficulties of proof or strong defenses the plaintiffs are likely to encounter if the case

goes to trial; (iii) the anticipated duration and expense of additional litigation; (iv) the



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solvency of the defendants and the likelihood of recovery of a litigated judgment; and (v)

the degree of opposition to the settlement. See Jiffy Lube, 927 F.2d at 159; Flinn, 528

F.2d at 1173-74. While the Court will also consider these factors at the final fairness

hearing, the weighing of these factors at this time demonstrates that the proposed

settlement is adequate for preliminary approval purposes (that the proposed settlement

falls within the range of possible approval).

       First, the strength of Plaintiffs’ case, balanced against the assured compensation

under the proposed Agreement, weighs in favor of the adequacy of the compromise.

Plaintiffs’ ability to prevail on the merits of this litigation, like all contested matters, is

uncertain.   This proposed Agreement, however, confers relief that would not be

achievable in the event that the Fourth Circuit rules in favor of Defendants. Class

Counsel recognizes that there are some relatively novel issues on the appeal and, given

the Fourth Circuit’s decision to review this case, there is the very real prospect that class

members could take nothing upon that ruling.

       Second, the proposed Primary Fund settlement also makes important distinctions

between the strengths of the claims brought by individual shippers and NAC shippers.

Individual shippers, unlike NAC shippers, utilize uniform contracts that create fewer

opportunities for the Defendants to challenge the propriety of class certification.

       Third, there can be no serious debate that this litigation, if resolved in favor of

Plaintiffs at the Fourth Circuit, could continue unabated at great expense and delay for

the class. For example, the issues pending before the Fourth Circuit at this moment may

be the subject of further appeal to the United States Supreme Court. In addition, the

litigation could very well proceed to the Fourth Circuit for a second trip following



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contested proceedings on class certification. Put quite simply, it is very difficult to

conclude that this litigation could be resolved efficiently and at a reasonable expense if

the settlement does not now meet with the Court’s approval.

        Fourth, the Court is already aware that the solvency of the Defendants is a

legitimate concern. The SIRVA entities have already reorganized through bankruptcy

and Class Counsel have no confidence that the remaining Defendants could sustain a

judgment rendered on the merits. Moreover, the troubled economy, particularly as it

relates to relocations in the household goods moving and storage industry, creates a

difficult environment for Class Counsel to conclude that the class can achieve a similar or

better result should the settlement fail to move forward.

        Finally, the parties cannot presently determine the degree of opposition to the

Agreement, but they can point out that opposition to the SIRVA settlement was

exceedingly small. Of the hundred of thousands of SIRVA class members, only 158

requested exclusion from the settlement and no substantive objection of settlement was

filed.4 Class Counsel suggest that, given their experience in the SIRVA settlement, it is

unlikely that there will be significant opposition to this Agreement.

V.      THE COURT SHOULD APPROVE THE PROPOSED NOTICE TO THE
        PUTATIVE CLASS.

        The proposed notice and accompanying plan (hereinafter “Notice”) satisfy Rule

23(e) and due process. Under Rule 23(e), the “court must direct notice in a reasonable

manner to all class members who would be bound by the proposal.” Fed. R. Civ. P.



4
  Jonathan Lee Riches, a habitual objector and federal prisoner at FCI-Williamsburg, did submit a half-page
motion to intervene and object. Documents indicated, however, that Mr. Riches was incarcerated
throughout the entire class period. The bankruptcy court denied the motion to intervene and approved the
settlement.

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23(e)(1). The Notice must be “the best practicable notice under the circumstances” and

must satisfy due process. South Carolina Nat’l Bank, 139 F.R.D. at 338.

       A.     Notice Contents

       Both the mailed version and the publication version of the Notice accurately

summarize the settlement terms and advise the putative class of the benefits, rights and

limitations of the proposed settlement. See Grice v. PNC Mortgages Corp. of America,

No. CIV. A. PIM-973084, 1998 WL 350581, at *7 (D. Md. May 21, 1998). While the

Notice condenses the terms of the proposed settlement, it covers all relevant topics: the

history of the litigation, the substantive terms of the proposed settlement, the class

definition, the effect of the proposed settlement and release of claims, the conditions of

the proposed settlement, what class members must do to exclude themselves from the

class, what they must do if they wish to object to the settlement, and the procedure for

filing a claim. The Notice, importantly, is written and formatted to communicate this

information in a manner that will be understood by members of the class, who,

presumably, are not lawyers. See id. (the notice should “employ[] plain language”); see

also In re Prudential Ins. Co. of American Sales Practices Litig., 962 F. Supp. 540, 495-

96 (D.N.J. 1997), aff’d., 148 F.3d 283 (3d Cir. 1998); Manual, supra, § 21.312.

       Class Counsel and the Defendants have retained Rust Consulting as the

Administrator for the settlement. The Settlement Administrator will provide direct notice

to approximately one million class members, including the members of the SIRVA class

who previously received notice of the earlier settlement in bankruptcy court. The class

will receive notice by publication once a week for two consecutive weeks in the national

edition of USA Today as soon as practicable following preliminary approval.           The



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Settlement Administrator will enhance the Notice by publishing details of the settlement

on its website located at www.HouseholdGoodsAntitrustSettlement.com. See Exhibit C.

VI.    CONCLUSION

       For the reasons set forth herein, Plaintiffs respectfully request that the Court enter

an Order, substantially in the form of Exhibit A, certifying the settlement class, approving

the SIRVA Plan of Distribution, and preliminarily approving the settlement so that

Notice may be issued.

Dated: October 25, 2010                       Respectfully submitted,


                                              /s/ T. Christopher Tuck
                                              Robert S. Wood, Esq.
                                              bwood@rpwb.com
                                              A. Hoyt Rowell, III, Esq.
                                              hrowell@rpwb.com
                                              T. Christopher Tuck, Esq.
                                              ctuck@rpwb.com
                                              Howard L. Siegel, Esq.
                                              hsiegel@hsiegelaw.com


                                              RICHARDSON, PATRICK,
                                              WESTBROOK & BRICKMAN LLC
                                              PO Box 1007
                                              Mt. Pleasant, SC 29465
                                              (843) 727-6500
                                              (843) 216-6509 – facsimile

                                              Mark C. Tanenbaum, Esq.
                                              John P. Algar, Esq.
                                              Mia L. Maness, Esq.
                                              MARK C. TANENBAUM, P.A.
                                              PO Box 20757
                                              Charleston, SC 29413-0757
                                              (843) 577-5100




                                            20
2:07-cv-00764-DCN   Date Filed 10/25/10   Entry Number 205   Page 1 of 9
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                            CERTIFICATE OF SERVICE

       I hereby certify that on October 25, 2010, I electronically filed the AFFIDAVIT

OF T. CHRISTOPHER TUCK IN SUPPORT OF PLAINTIFFS’ MOTION FOR

CERTIFICATION OF A SETTLEMENT CLASS, PRELIMINARY APPROVAL OF

SETTLEMENT AND APPROVAL OF NOTICE with the Clerk of the Court using the

CM/ECF system which will send notification of such filing to the e-mail addresses

denoted on the attached Electronic Mail Notice List.

       I also certify that I placed a copy of the aforementioned documents in the United

States Mail postage pre-paid, addressed to counsel on the attached Manuel Notice List:


Mark J. Andrews                              Eric J. Artrip
STRASBURGER AND PRICE                        WATSON JIMMERSON GIVHAM MARTIN AND
1800 K Street NW                             MCKINNEY
Suite 301                                    PO Box 18368
Washington, DC 20006                         Huntsville, AL 35804

Rebekah Keith McKinney                       Robert H. Rutherford
WATSON JIMMERSON GIVHAM MARTIN AND           BURR & FORMAN LLP
MCKINNEY                                     420 North 20th Street
PO Box 18368                                 Birmingham, AL 35203
Huntsville, AL 35804

Herman Watson
WATSON JIMMERSON GIVHAM MARTIN AND
MCKINNEY
PO Box 18368
Huntsville, AL 35804

DATED: October 25, 2010              RICHARDSON PATRICK WESTBROOK
                                     & BRICKMAN, LLC


                                     By: /s/ T. Christopher Tuck
                                     ROBERT S. WOOD, Fed. ID # 7965
                                     bwood@rpwb.com
                                     HOWARD L. SIEGEL (pro hac vice)
                                     hsiegel@hsiegelaw.com
2:07-cv-00764-DCN   Date Filed 10/25/10   Entry Number 205    Page 4 of 9



                             A. HOYT ROWELL, III, Fed. ID # 3665
                             hrowell@rpwb.com
                             T. CHRISTOPHER TUCK, Fed. ID #9135
                             ctuck@rpwb.com
                             DANIEL O. MYERS, Fed. ID # 9884
                             dmyers@rpwb.com
                             1037 Chuck Dawley Blvd, Bldg. A (29468)
                             Post Office Box 1007
                             Mt. Pleasant, SC 29465
                             Telephone: (843) 727-6500
                             Facsimile: (843) 216-9509
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