cotchett, pitre & mccarthy, llp united states district … · 2019. 11. 7. · cotchett, pitre...

Declaration of Adam J. Zapala in Support of IPPs’ Motion for Final Approval of Settlements with All Defendants; Case No. 15-cv-03820-JD

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Adam J. Zapala (State Bar No. 245748) Elizabeth T. Castillo (State Bar No. 280502) Tamarah P. Prevost (State Bar No. 313422) COTCHETT, PITRE & MCCARTHY, LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577 [email protected] [email protected] [email protected] Interim Lead Counsel for Indirect Purchaser Plaintiffs

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

IN RE RESISTORS ANTITRUST LITIGATION

Case No. 3:15-cv-03820-JD DECLARATION OF ADAM J. ZAPALA IN SUPPORT OF INDIRECT PURCHASER PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF SETTLEMENTS WITH ALL DEFENDANTS Date: December 12, 2019 Time: 10:00 a.m. Place: Courtroom 11, 19th Floor Judge: Hon. James Donato

This Document Relates to: All Indirect Purchaser Actions

Case 3:15-cv-03820-JD Document 565-2 Filed 11/06/19 of 165

Declaration of Adam J. Zapala in Support of IPPs’ Motion for Final Approval of Settlements with All Defendants; Case No. 15-cv-03820-JD 1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

I, Adam J. Zapala, declare as follows:

1. I am an attorney duly licensed to practice law in the State of California and

admitted to practice in this Court. I am a partner with the law firm of Cotchett, Pitre & McCarthy,

LLP (“CPM”) and Interim Lead Counsel for Indirect Purchaser Plaintiffs (“IPPs”) in this

litigation. The matters described herein are based on my personal knowledge, and if called as a

witness, I could and would testify competently thereto. I make this declaration pursuant to 28

U.S.C. § 1746.

2. I make this Declaration in support of IPPs’ motion for final approval of settlements

with Defendants: (1) Panasonic Corporation and Panasonic Corporation of North America

(together, “Panasonic”); (2) KOA Corporation and KOA Speer Electronics, Inc. (together,

“KOA”); (3) ROHM Co. Ltd. and ROHM Semiconductor U.S.A., LLC (together, “ROHM”); (4)

Kamaya Electric Co., Ltd. and Kamaya Inc. (together, “Kamaya”); and (5) Hokuriku Electric

Industry Co. and HDK America, Inc. (together, “HDK”) (collectively, “Settling Defendants”).

3. As set forth in more detail in my Declaration in Support of IPPs’ Motion for

Attorneys’ Fees; Reimbursement of Expenses; and Class Representative Incentive Awards (Dkt.

548; 548-2), the settlements subject to this Motion were reached after hard-fought litigation and

significant discovery, are the result of arms-length negotiations, and counsel for IPPs believe the

settlements are in the best interests of the proposed classes. A full history of the litigation, and

the extensive tasks performed by Class Counsel to achieve these settlements, may be found in

my Declaration in Support of the Motion for Attorneys’ Fees, Reimbursement of Expenses; and

Class Representative Incentive Awards (Dkt. 548; 548-2).

4. A true and correct copy of the proposed KOA settlement agreement is attached

hereto as Exhibit 1.

5. A true and correct copy of the proposed Panasonic settlement agreement is attached


6. A true and correct copy of the proposed ROHM settlement agreement is attached




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7. A true and correct copy of the proposed Kamaya settlement agreement is attached


8. A true and correct copy of the proposed HDK settlement agreement is attached


9. This case arises from an alleged conspiracy by the Defendants to fix, raise,

maintain and/or stabilize the price of linear resistors sold in the United States. This case has been

heavily litigated, with multiple rounds of motions to dismiss. There have been significant

discovery challenges faced by IPPs, not only in regards to obtaining documents and information

from Defendants but also with respect to obtaining documents and information from non-party

resistor distributors to successfully prosecute this case.

10. IPPs engaged in extensive settlement negotiations with the Settling Defendants

after significant discovery in this litigation. As described more fully below, the parties held

multiple in-person and telephonic meetings, as well as exchanged information and settlement

proposals. The proposed settlements were arrived at only after both sides had the opportunity to

be fully informed of the relative strengths and weaknesses of their positions, litigation risks, and

issues involving ability to pay.

11. IPPs and the five Settling Defendants are represented by highly-skilled antitrust

counsel who are knowledgeable of the law and have extensive experience with complex antitrust

lawsuits. As the Court knows, IPPs and Defendants have been heavily litigating this case for

more than three years.

12. Document discovery was largely closed when the settlements were reached.

Defendants had produced roughly 2,752,883 documents to IPPs, comprised of 10,563,206 pages.

This information was in IPPs’ possession prior to reaching these settlements.

13. At the time of reaching these settlements, therefore, IPPs and the Settling

Defendants were well-informed about the facts, damages, and defenses relevant to this action.

14. Moreover, throughout this litigation, Settling Defendants have vigorously

contested this case, challenging IPPs’ legal theories of liability, whether the facts support



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Defendants’ level of involvement in such a conspiracy, and the damages for which each

Defendant may be liable.

15. The settlements with each of the Defendants cover the time period from January 1,

2003 through August 20, 2015. August 20, 2015 is when the underlying complaints were filed

and also is in or around the time that IPPs’ experts believe the anticompetitive effects of the

alleged cartel ceased.

16. The settlements reflect a favorable percentage of the overall affected commerce of

the Settling Defendants. IPPs’ expert estimated an overcharge of 5.75%. See Declaration of

Russell Lamb (Dkt. 531-1). Based on the data provided to IPPs, the settlement with KOA

represents approximately 8.5% of their overall affected commerce (approximately $217.5

million in sales to distributors) during the relevant class period. The $18.5 million settlement,

therefore, equates to a recovery of 147.9% of the damages attributable to KOA. See IPPs’

Supplemental Brief in Support of Preliminary Approval at 2 (Dkt. 531).

17. Based on the data provided to IPPs, IPPs have calculated that the settlement with

Panasonic represents approximately 6.2% of Panasonic’s affected commerce (approximately

$161.2 million in affected sales to distributors during the class period). The $10 million

settlement, therefore, equates to a recovery of 107.8% of the damages attributable to Panasonic.

See id.

18. Based on the data provided to IPPs, the settlement with ROHM represents

approximately 8.8% of ROHM’s affected commerce during the relevant class period

(approximately $22.6 million in sales to distributors during the class period). The $2 million

settlement, therefore, equates to a recovery of 153.8% of the damages attributable to ROHM. See

id.

19. Based on the transactional data provided to IPPs during the course of litigation,

IPPs have calculated that Kamaya’s relevant commerce (affected sales to distributors in the

United States during the class period) was approximately $13.7 million. The settlement with

Kamaya represents approximately 14.6% of Kamaya’s affected commerce during the relevant



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

class period. The $2 million settlement, therefore, equates to a recovery of 253.9% of the

damages attributable to Kamaya. See id.

20. Based on the data provided to IPPs, the settlement with HDK represents more than

300% of HDK’s affected commerce during the relevant class period (approximately $279,000

million in sales to distributors during the class period, with a $900,000 settlement).

21. The foregoing settlements are truly excellent recoveries for the classes in the view

of Class Counsel and by any objective standard.

22. The Settlements were reached after hard-fought litigation, are the result of arms-

length negotiations, and Interim Class Counsel believes that the settlements are in the best

interests of the Class.

23. IPPs engaged in settlement negotiations with Defendant KOA for many months.

These negotiations included a mediation session and the continued assistance of a nationally

renowned mediator and the exchange of confidential information reflecting the parties’

respective views of liability and damages. The case did not settle at the mediation, despite the

substantial efforts of the parties and the mediator. With the continued assistance of the mediator,

the parties engaged in several additional discussions and negotiations regarding an appropriate

settlement in the weeks following the mediation. These negotiations were at all times hard fought.

The proposed settlement was only agreed upon after the exchange of information, continued

dialogue between the parties, and negotiation concerning appropriate financial consideration.

24. Negotiations with Panasonic followed a similar, although not identical, process as

negotiations with KOA. The parties held in-person meetings, telephonic meetings, exchanged

information, and exchanged settlement proposals. The proposed settlement was arrived at only

after both sides had the opportunity to be fully informed of the relative strengths and weaknesses

of their positions, and litigation risks. As with the other settlements, the settlement with

Panasonic was only reached after substantial discovery in this action.

25. Negotiations with Kamaya occurred over approximately one year. The parties held

in-person meetings, telephonic meetings, exchanged information, and exchanged settlement



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

proposals. The proposed settlement was arrived at only after both sides had the opportunity to be

fully informed of the relative strengths and weaknesses of their positions, litigation risks, and


26. IPPs reached settlement with HDK before any other Defendant. Negotiations with

HDK occurred over many months. The parties held in-person meetings, telephonic meetings,

exchanged information, and exchanged settlement proposals. The monetary terms of the

settlement were reached during a mediation session in Chicago. The proposed settlement was

arrived at late in the evening at the end of the day, and only after both sides had the opportunity

to be fully informed of the relative strengths and weaknesses of their positions, and litigation

risks.

27. Negotiations with ROHM occurred over approximately one year. The parties held

in-person meetings, telephonic meetings, exchanged information, and exchanged settlement

proposals. The proposed settlement was arrived at only after both sides had the opportunity to

be fully informed of the relative strengths and weaknesses of their positions, litigation risks, and


28. Strategically, IPPs were able to resolve with the defendants that had smaller

volumes of commerce first: HDK, Kamaya, and ROHM, respectively. This permitted IPPs to

focus their energy and resources on the Defendants with larger volumes of commerce. The

strategy succeeded.

29. The cooperation provisions in the HDK, Kamaya, and ROHM settlements

provided IPPs with significant leverage in negotiations with Panasonic and KOA—the two

defendants with the largest volume of commerce.

30. Settling Defendants’ cumulative commerce to distributors during the class period

is approximately $415.3 million on a joint and several basis. The cumulative settlement fund

established by these three settlements is $33,400,000.00 ($33.4 million), which means that—

based on the estimated overcharge of 5.75%— the cumulative recovery in the case represents



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

139.7% of damages in the case. See IPPs’ Supplemental Brief in Support of Preliminary

Approval at 2 (Dkt. 531).

31. In addition to the foregoing, CPM is Interim Class Counsel for the Indirect

Purchaser Plaintiffs in In re Capacitors Antitrust Litig., No. 14-cv-3264 (N.D. Cal.)

(“Capacitors”). Capacitors is also pending before this Court and has many similarities to this

case in that it involves a Japan-based conspiracy to fix the price of passive electronic components.

My experience in Capacitors has also served to inform my judgment about the reasonableness

of the settlements in this case. I believe that the foregoing settlements represent excellent

recoveries for the class, are fair, reasonable, and adequate, and merit approval by this Court.

I declare under penalty of perjury, under the laws of the United States of America, that

the foregoing is true and correct. Executed on November 6, 2019 in Burlingame, California.

/s/ Adam J. Zapala ADAM J. ZAPALA


EXHIBIT 1


1

2

3

4

5

6

7

8

9UNITED STATES DISTRICT COURT

10FOR THE NORTHERN DISTRICT OF CALIFORNIA

11SAN FRANCISCO DIVISION

12

13 IN RE RESISTORS ANTITRUST LITIGATION

Case No. 3:15-cv-03820-JD

14 SETTLEMENT AGREEMENT

15 This Document Relates to:

16 Indirect Purchaser Actions

17

18

19

20

21

22

23

24

25

26

27

28

Settlement Agreement; Case No. 3;15-cv-03820-JD


WHEREAS, Indirect Purchaser Plaintiffs’ Class Counsel have concluded, after due

investigation and after carefully considering the relevant circumstances, including, without limitation,

the claims asserted in the Indirect Purchaser Plaintiffs’ Amended Consolidated Class Action

Complaint filed in Docket No. 3:15-cv-03820-JD, the legal and factual defenses thereto and the

applicable law, that it is in the best interests of the Indirect Purchaser Plaintiffs and the Class to enter

into this Settlement Agreement to avoid the uncertainties of litigation and to assure that the benefits

reflected herein are obtained for the Indirect Purchaser Plaintiffs and the Class, and, further, that

Indirect Purchaser Plaintiffs’ Class Counsel consider the Settlement set forth herein to be fair,

reasonable and adequate and in the best interests of the Indirect Purchaser Plaintiffs and the Class;

1

,2

3

4

5

6

7

8

9

and10

WHEREAS, KOA has concluded, despite their belief that neither is liable for the claims

asserted against them in the Actions and that they have good defenses thereto, that they will enter into

this Settlement Agreement to avoid further expense, inconvenience, and the distraction of

burdensome and protracted litigation, and thereby put to rest this controversy with respect to the

Indirect Purchaser Plaintiffs and the Class and avoid the risks inherent in complex litigation; and

WHEREAS, arm’s length settlement negotiations have taken place between counsel for

Indirect Purchaser Plaintiffs and KOA, and this Settlement Agreement, which embodies all of the

terms and conditions of the Settlement between the Settling Parties, both individually and on behalf

of the Class, has been reached as a result of the Settling Parties’ negotiations (subject to the approval

of the Court) as provided herein and is intended to supersede any prior agreements or understandings

between the Settling Parties.

11

12

13

14

15

16

17

18

19

20

21

22 AGREEMENT

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the

Settling Parties, by and through their undersigned attorneys of record, in consideration of the

covenants, agreements, and releases set forth herein and for other good and valuable consideration,

that the Actions and the Released Claims as against KOA shall be finally and fully settled,

compromised and dismissed on the merits and with prejudice, without costs as to Indirect Purchaser

23

24

25

26

27

28

Settlement Agreement; Case No. 3;15-cv-03820-JD -2-


Plaintiffs, the Class, or KOA, upon and subject to the approval of the Court, following notice to the

Class, on the following terms and conditions:

Definitions

1

2

3

1. As used in this Settlement Agreement the following terms shall have the meanings

specified below:

(a) “Action” or “Actions” means In re Resistors Antitrust Litigation - All Indirect Purchaser

Actions, Case No. 3:15-cv-03820-JD, and each of the cases brought on behalf of indirect purchasers

previously consolidated and/or included as part of Docket No. 3:15-cv-03820-JD.

(b) “Affiliates” means entities controlling, controlled by or under common control with a

Releasee or Releasor.

(c) “Authorized Claimant” means any Indirect Purchaser Plaintiff who, in accordance with

the terms of this Settlement Agreement, is entitled to a distribution consistent with any Distribution

Plan or order of the Court ordering distribution to the Class.

(d) “Linear Resistors” means electronic components that provide a specific amount of

resistance to an electronic circuit, including without limitation, chip and other fixed resistors, and

variable resistors. Linear Resistors are the subject of the Action.

(e) “Claims Administrator” means the claims administrator(s) to be selected by Class

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18 Counsel.

(f) “Class” is defined in the following manner:

All persons and entities in the United States who purchased one or more Linear Resistor(s)

fi'om a resistor distributor not for resale which a Defendant, its current or former subsidiary, or any

of its co-conspirators manufactured, between January 1, 2003 and August 20, 2015. Excluded from

the Class are Defendants, their parent companies, subsidiaries and affiliates, any co-conspirators.

Defendants’ attorneys in this case, federal government entities and instrumentalities, states and their

subdivisions, all judges assigned to this case, all jurors in this case, and all persons and entities who

directly purchased Linear Resistors from Defendants.

(g) “Class Counsel” means the law firm of Cotchett, Pitre & McCarthy, LLP.

19

20

21

22

23

24

25

26

27

28

Settlement Agreement; Case No. 3:15-cv-03820-JD -3-


(h) “Class Member” means a Person who falls within the definition of the Class and who does

not timely and validly elect to be excluded from the Class in accordance with the procedure to be

established by the Court.

(i) “Court” means the United States District Court for the Northern District of California.

(j) “Defendant” or “Defendants” means Panasonic Corporation, Panasonic Corporation of

North America, KOA Corporation, KOA Speer Electronics, Inc., ROHM Co. Ltd., ROHM

Semiconductor U.S.A., LLC, Kamaya Electric Co., Ltd., Kamaya Inc., Hokuriku Electric Industry

Co., Ltd. and HDK America, Inc.

(k) “Distribution Plan” means any plan or formula of allocation of the Gross Settlement Fund,

to be approved by the Court, whereby the Net Settlement Fund shall in the future be distributed to

Authorized Claimants.

(l) “Document” is 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

of non-identical copy is a separate document within the meaning of this term.

(m) “Effective Date” means the first date by which all of the following events and conditions

have been met or have occurred:

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

The Court has finally approved the Settlement Agreement and the motion after

providing notice to the Class as defined herein;

The Court has entered a Final Judgment; and

The Judgment (as more fully described in TI 6 of the Settlement Agreement) has

become Final, with the occurrence of the following: (A) the entry by the Court of a final order

approving the Settlement Agreement under Federal Rule of Civil Procedure 23(e) together with entry

of a final judgment dismissing the Class Action and all claims therein against KOA and releasing all

Released Claims against all Releasees with prejudice as to all Class Members (the “Final Judgment”),

and (B) the expiration of the time for appeal or to seek permission to appeal fi-om the Court's approval

of the Settlement Agreement and entry of the Final Judgment or, if an appeal from an approval and

Final Judgment is taken, the affirmance of such Final Judgment in its entirety, without modification,

by the court of last resort to which an appeal of such Final Judgment may be taken, provided, however.

17 (1)

18

19 (2)

20 (3)

21

22

23

24

25

26

27

28



a modification or reversal on appeal of any amount of Class Counsel’s fees and expenses awarded by

the Court from the Settlement Fund or any plan of allocation or distribution of the Settlement Fund

shall not be deemed a modification of all or part of the terms of this Settlement Agreement or the

Final Judgment. It is agreed that neither the provisions of Federal Rules of Civil Procedure 60 nor the

All Writs Act, 28 U.S.C. § 1651, shall be taken into account in determining the above-stated times.

(n) “Escrow Agent” means The Huntington National Bank, the escrow agent jointly

designated by Class Counsel and KOA, and any successor agent.

(o) “Execution Date” means the date of the last signature set forth on the signature pages

1

2

3

4

5

6

7

8

below.9

(p) “Final” means, with respect to any order of court, including, without limitation, the

Judgment, that such order represents a final and binding determination of all issues within its scope

and is not subject to further review on appeal or otherwise. Without limitation, an order becomes

Final” when: (a) no appeal has been filed and the prescribed time for commencing any appeal has

expired; or (b) an appeal has been filed and either (i) the appeal has been dismissed and the prescribed

time, if any, for commencing any further appeal has expired, or (ii) the order has been affirmed in its

entirety and the prescribed time, if any, for commencing any further appeal has expired. For purposes

of this Settlement Agreement, an “appeal” includes appeals as of right, discretionary appeals,

interlocutory appeals, proceedings involving writs of certiorari or mandamus, and any other

proceedings of like kind. Any appeal or other proceeding pertaining solely to any order adopting or

approving a Distribution Plan, and/or to any order issued in respect of an application for attorneys’

fees and expenses consistent with this Settlement Agreement, shall not in any way delay or preclude

the Judgment from becoming Final.

(q) “Gross Settlement Fund” means the Settlement Amount plus any interest that may accrue.

(r) “Indirect Purchaser Plaintiffs” means Microsystems Development Technologies, Inc.,

Michael Brooks, Nebraska Dynamics, Inc., MakersLED LLC, Linkitz Systems, Inc., Top Floor Home

Improvements, Angstrom, Inc., In Home Tech Solutions, Inc., Anthony Sakai, and any other Person

added as an Indirect Purchaser Plaintiff in the Actions.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



(s) “Indirect Purchaser States” means Alabama, Arizona, Arkansas, California, District of

Columbia, Florida, Hawaii, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota,

Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North

Carolina, North Dakota, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah,

Vermont, West Virginia, and Wisconsin.

(t) “Judgment” means the order of judgment and dismissal of the Actions with prejudice.

(u) “Net Settlement Fund” means the Gross Settlement Fimd, less the payments set forth in TI

1

2

3

4

5

6

7

8 16.

(v) “Notice, Administrative and Claims Administration Costs” means the reasonable sum of

money not in excess of $1,500,000 to be paid out of the Gross Settlement Fund to pay for notice to

the Class and related administrative and claims administration costs. The actual Notice,

Administrative and Claims Administration Costs shall be allocated pro rata from the Settlement

Funds all other settling Defendants.

(w) “Person(s)” means an individual, corporation, limited liability corporation, professional

corporation, limited liability partnership, partnership, limited partnership, association, joint stock

company, estate, legal representative, trust, unincorporated association, government or any political

subdivision or agency thereof, and any business or legal entity and any spouses, heirs, predecessors,

successors, representatives or assignees of any of the foregoing.

(x) “Proof of Claim and Release” means the form to be sent to the Class, upon further order(s)

of the Court, by which any member of the Class may make claims against the Gross Settlement Fimd.

(y) “Released Claims” means any and all manner of claims, demands, rights, actions, suits,

causes of action, whether class, individual or otherwise in nature, fees, costs, penalties, injuries,

damages whenever incurred, liabilities of any nature whatsoever, known or unknown (including, but

not limited to, “Unknown Claims”), foreseen or unforeseen, suspected or unsuspected, asserted or

unassorted, contingent or non-contingent, in law or in equity, which Releasors or any of them, whether

directly, representatively, derivatively, or in any other capacity, ever had, now have or hereafter can,

shall or may have, relating in any way to any conduct prior to August 20,2015 and arising out of or

related in any way in whole or in part to any facts, circumstances, acts, or omissions arising out of or

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



related to (1) the purchase, pricing, selling, discounting, marketing, manufacturing and/or distributing

of Linear Resistors; (2) any agreement, combination or conspiracy to raise, fix, maintain or stabilize

the prices of Linear Resistors or restrict, reduce, alter or allocate the supply, quantity or quality of

Linear Resistors or concerning the development, manufacture, supply, distribution, transfer,

marketing, sale or pricing of Linear Resistors, or any other restraint of competition alleged in the

Action or that could have been or hereafter could be alleged against the Releasees relating to Linear

Resistors, or (3) any other restraint of competition relating to Linear Resistors that could be asserted

as a violation of the Sherman Act or any other antitrust, unjust enrichment, unfair competition, unfair

practices, trade practices, price discrimination, imitary pricing, racketeering, civil conspiracy or

consumer protection law, whether under federal, state, local or foreign law, provided however, that

nothing herein shall release; (i) any claims made by direct purchasers; (ii) any claims made by any

State, State agency, or instrumentality or political subdivision of a State as to government purchases

and/or penalties; (iii) claims involving any negligence, personal injury, breach of contract, bailment,

failure to deliver lost goods, damaged or delayed goods, product defect, securities or similar claim

relating to any Linear Resistors; (iv) claims concerning electronic components other than Linear

Resistors; (v) claims under laws other than those of the United States relating to purchases of any

Linear Resistors made by any Releasor outside of the United States; and (vi) claims for damages

under the state or local laws of any jurisdiction other than an Indirect Purchaser State.

(z) “Releasees” means jointly and severally, individually and collectively, KOA Corporation

and KOA Speer Electronics, Inc., their respective past, present and future direct and indirect parents,

members, subsidiaries, and Affiliates; their past, present, and future respective officers, directors,

employees, managers, members, partners, joint ventures, agents, shareholders (in their capacity as

shareholders), attorneys and legal representatives, assigns, servants, and representatives; and the

predecessors, successors, heirs, executors, administrators, and assigns of each and any of the

foregoing.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

(aa) “Releasors” refers jointly and severally, individually and collectively to the Indirect

Purchaser Plaintiffs and each and every member of the Class on their own behalf and on behalf of

their respective past, present, and/or fiitine direct and indirect parents, members, subsidiaries and

26

27

28



Affiliates, and their past, present and/or future officers, directors, employees, agents, attorneys and

legal representatives, servants, and representatives, and the predecessors, successors, heirs, executors,

administrators and assigns of each of the foregoing.

(bb) “Settlement” means the settlement of the Released Claims set forth herein.

(cc) “Settlement Amount” means exactly Eighteen Million Five-Hundred Thousand U.S.

Dollars ($18,500,000.00). In no event shall KOA pay more than $18,500,000.

(dd) “Settling Parties” means, collectively, the Indirect Purchaser Plaintiffs (on behalf of

themselves and the Class) and KOA.

(ee) “Unknown Claims” means any Released Claim that an Indirect Purchaser Plaintiff and/or

Class Member does not know or suspect to exist in his, her or its favor at the time of the release of

the Releasees that if known by him, her or it, might have affected his, her or its settlement with and

release of the Releasees, or might have affected his, her or its decision not to object to this Settlement.

Such Unknown Claims include claims that are the subject of California Civil Code § 1542 and

equivalent, similar or comparable laws or principles of law. California Civil Code § 1542 provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF16

EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE17

MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.18

19 Preliminary Approval Order. Notice Order and Settlement Hearing

2. Reasonable Best Efforts to Effectuate this Settlement The Settling Parties: (a)

acknowledge that it is their intent to consummate this Settlement Agreement; and (b) agree to

cooperate to the extent reasonably necessary to effectuate and implement the terms and conditions of

this Settlement Agreement and to exercise their reasonable best efforts to accomplish the terms and

conditions of this Settlement Agreement.

3. Motion for Preliminary Approval At a time to be determined by Class Counsel, Class

Coxmsel shall submit this Settlement Agreement to the Court and shall apply for entry of a Preliminary

Approval Order, requesting, inter alia, preliminary approval of the Settlement. The motion shall

20

21

22

23

24

25

26

27

28



include (a) the proposed Preliminary Approval Order, and (b) a definition of the proposed settlement

class pursuant to Federal Rule of Civil Procedure 23.

4. Proposed Notice. At a time to be determined in their sole discretion, Class Counsel shall

submit to the Court for approval a proposed form of, method for and schedule for dissemination of

notice to the Class. To the extent practicable and to the extent consistent with this paragraph. Class

Coimsel may seek to coordinate this notice program with other settlements that may be reached in

the Action to reduce the expense of notice. This motion shall recite and ask the Court to find that the

proposed form of and method for dissemination of the notice to the Class constitutes valid, due and

sufficient notice to the Class, constitutes the best notice practicable under the circumstances, and

complies fully with the requirements of Federal Rule of Civil Procedure 23.

5. Claims Administrator. Indirect Purchaser Plaintiffs shall retain a Claims Administrator,

which shall be responsible for the claims administration process including distribution to Class

Members pursuant to a court-approved plan of distribution. The fees and expenses of the Claims

Administrator shall be paid exclusively out of the Settlement Fimd. In no event shall KOA or any

Releasee be separately responsible for any fees or expenses of the Claims Administrator.

6. Motion for Final Approval and Entry of Final Judgment Prior to the date set by the

Court to consider whether this Settlement should be finally approved. Class Counsel shall submit a

motion for final approval of the Settlement by the Court. The Settling Parties shall jointly seek entry

of the Final Approval Order and Judgment:

(a) certifying the Class, as defined in this Settlement Agreement, pursuant to Federal Rule of

Civil Procedure 23, solely for purposes of this Settlement;

(b) fully and finally approving the Settlement contemplated by this Settlement Agreement and

its terms as being fair, reasonable and adequate within the meaning of Federal Rule of Civil Procedure

23 and directing its consummation pursuant to its terms and conditions;

(c) finding that the notice given to the Class Members constituted the best notice practicable

under the circumstances and complies in all respects with the requirements of Federal Rule of Civil

Procedure 23 and due process;

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



(d) directing that the Actions be dismissed with prejudice as to KOA and, except as provided

for herein, without costs;

(e) discharging and releasing the Releasees from all Released Claims;

(f) permanently barring and enjoining the institution and prosecution, by Indirect Purchaser

Plaintiffs and Class Members, of any other action against the Releasees in any court asserting any

claims related in any way to the Released Claims;

(g) reserving continuing and exclusive jurisdiction over the Settlement, including all future

proceedings concerning the administration, consummation and enforcement of this Settlement

Agreement;

1

2

3

4

5

6

7

8

9

(h) determining pursuant to pederal Rule of Civil Procedure 54(b) that there is no just reason

for delay and directing entry of a final judgment as to KOA; and

(i) containing such other and further provisions consistent with the terms of this Settlement

Agreement to which the parties expressly consent in writing.

7. At least seven (7) business days prior to the filing of any motions or other papers in

connection with this Settlement, including without limitation, the Preliminary Approval Motion and

the Motion for Final Approval of the Settlement, Class Counsel will send working drafts of these

papers to counsel for KOA. The text of any proposed form of order preliminarily or finally approving

the Settlement shall be agreed upon by Indirect Purchaser Plaintiffs and KOA before it is submitted

to the Court and shall be consistent with the terms of this Settlement Agreement and the Class

definitions set forth herein.

8. Stay Order. Upon the Execution Date, the Action shall be stayed as against KOA only.

Should the Action be tried against any Defendants other than KOA, the parties specifically agree that

any findings therein shall not be binding on or admissible in evidence against KOA or any other

Releasee or prejudice any Releasee in any way in any future proceeding involving any Releasee.

9. Upon the date that the Court enters an order preliminarily approving the Settlement,

Indirect Purchaser Plaintiffs and members of the Class shall be barred and enjoined from

commencing, instituting or continuing to prosecute any action or any proceeding in any court of law

or equity, arbitration tribunal, administrative forum or other forum of any kind worldwide based on

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



the Released Claims. Nothing in this provision shall prohibit the Indirect Purchaser Plaintiffs or Class

Counsel from continuing to participate in discovery in the Actions that is initiated by other plaintiffs

or that is subject to and consistent with the cooperation provisions set forth in 32-35.

Releases

1

2

3

4

10. Released Claims. Upon the Effective Date, the Releasors (regardless of whether any such

Releasor ever seeks or obtains any recovery by any means, including, without limitation, by

submitting a Proof of Claim and Release, any distribution from the Gross Settlement Fund) by virtue

of this Settlement Agreement shall be deemed to have, and by operation of the Judgment shall have

fully, finally and forever released, relinquished and discharged all Released Claims against the

Releasees.

5

6

7

8

9

10

11. Ab Future Actions Following Release. The Releasors shall not, after the Effective Date,

seek (directly or indirectly) to commence, institute, maintain or prosecute any suit, action or

complaint or collect from or proceed against KOA or any other Releasee (including pursuant to the

Actions) based on the Released Claims in any forum worldwide, whether on his, her, or its ovm behalf

or as part of any putative, pmported or certified class of purchasers or consumers.

12. Covenant Not to Sue. Releasors hereby covenant not to sue the Releasees with respect to

any such Released Claims. Releasors shall be permanently barred and enjoined from instituting,

commencing or prosecuting against the Releasees any claims based in whole or in part on the

Released Claims. The Settling Parties contemplate and agree that this Settlement Agreement may be

pleaded as a bar to a lawsuit, and an injunction may be obtained, preventing any action from being

initiated or maintained in any case sought to be prosecuted on behalf of Indirect Purchaser Plaintiffs

with respect to the Released Claims.

13. Waiver of California Civil Code § 1542 and Similar Laws. The Releasors acknowledge

that, by virtue of the execution of this Settlement Agreement, and for the consideration received

hereunder, it is their intention to release, and they are releasing, all Released Claims, even Unknown

Claims. In furtherance of this intention, the Releasors expressly waive and relinquish, to the fullest

extent permitted by law, any rights or benefits conferred by the provisions of California Civil Code

§ 1542, as set forth in l(ee), or equivalent, similar or comparable laws or principles of law. The

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



Releasors acknowledge that they have been advised by Class Counsel of the contents and effects of

California Civil Code § 1542, and hereby expressly waive and release with respect to the Released

Claims any and all provisions, rights and benefits conferred by California Civil Code § 1542 or by

any equivalent, similar or comparable law or principle of law in any jurisdiction. The Releasors may

hereafter discover facts other than or different from those which they know or believe to be true with

respect to the subject matter of the Released Claims, but the Releasors hereby expressly waive and

fully, finally and forever settle and release any known or unknown, suspected or unsuspected,

foreseen or unforeseen, asserted or unasserted, contingent or non-contingent, and accrued or

unaccrued claim, loss or damage with respect to the Released Claims, whether or not concealed or

hidden, without regard to the subsequent discovery or existence of such additional or different facts.

The release of unknown, unanticipated, unsuspected, unforeseen, and unaccrued losses or claims in

this paragraph is not a mere recital.

14. Claims Excluded from Release. Notwithstanding the foregoing, the releases provided

herein shall not release claims against KOA for product liability, breach of contract, breach of

warranty or personal injury, or any other claim unrelated to the allegations in the Actions of restraint

of competition or unfair competition with respect to Linear Resistors. Additionally, the releases

provided herein shall not release any claims to enforce the terms of this Settlement Agreement.

Settlement Fund and Injunctive Relief

\5. Settlement Payment KOA shall pay by wire transfer the Settlement Amount to the

Escrow Agent pursuant to escrow instructions within fifteen (15) business days after the Execution

Date. This amount constitutes the total amount of payment that KOA is required to make in

connection with this Settlement Agreement. This amount shall not be subject to reduction, and upon

the occurrence of the Effective Date, no funds shall revert to KOA except as provided herein. The

Escrow Agent shall only act in accordance with the mutually agreed escrow instructions. Subject to

the provisions hereof, and in full, complete, and final settlement of the Actions as provided herein,

KOA further agrees that it will not engage in conduct that constitutes a per se violation of Section 1

of the Sherman Act (whether characterized as price fixing, market allocation, bid rigging, or

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



otherwise) with respect to the sale of Linear Resistors for a period of twenty-four (24) months from

the date of the entry of the final judgments.

\6. Disbursements Prior to Effective Date. No amount may be disbursed from the Gross

Settlement Fund unless and until the Effective Date, except that: (a) actual Notice, Administrative

and Claims Administration Costs, which shall be allocated pro rata from the Settlement Funds of all

other settling Defendants and in any event may not exceed $1,500,000 may be paid from the Gross

Settlement Fund as they become due; (b) Taxes and Tax Expenses (as defined in f 20 below) may be

paid from the Gross Settlement Fund as they become due, and (c) attorneys’ fees and reimbursement

of litigation costs may be paid as ordered by the Court, which may be disbursed during the pendency

of any appeals, which may be taken from the judgment to be entered by the Court finally approving

this Settlement.

1

2

3

4

5

6

7

8

9

10

11

17. Refund by Escrow Agent. If the Settlement as described herein is not finally approved by

any court, or it is terminated as provided herein, or the Judgment is overturned on appeal or by writ,

the Gross Settlement Fund, including the Settlement Amount and all interest earned on the Settlement

Amount while held in escrow, excluding only Notice, Administrative and Claims Administration

Costs and Taxes and/or Tax Expenses (as defined in below), shall be refimded, reimbursed and repaid

by the Escrow Agent to KOA within five (5) business days after receiving notice pursuant to f 43

below.

12

13

14

15

16

17

18

18. Refund by Class Counsel If the Settlement as described herein is not finally approved by

any court, or it is terminated as provided herein, or the Judgment as described herein is not approved

or entered or is overturned on appeal or by writ, any attorneys’ fees and costs previously paid pursuant

to this Settlement Agreement (as well as interest on such amounts) shall be refunded, reimbursed and

repaid by Class Counsel to KOA within thirty (30) calendar days after receiving notice pursuant to ^

43 below.

19

20

21

22

23

24

25 19. No Additional Payments by KOA. Under no circumstances will KOA be required to pay

more or less than the Settlement Amount pursuant to this Settlement Agreement and the Settlement

set forth herein. For purposes of clarification, the payment of any Fee and Expense Award (as defined

in ’ll 29 below), the Notice, Administrative and Claims Administrative Costs, and any other costs

26

27

28

Settlement Agreement; Case No. 3:15-cv-03820-ID -13-


associated with the implementation of this Settlement Agreement shall be exclusively paid from the

Settlement Amount.

20. Taxes. The Settling Parties and the Escrow Agent agree to treat the Gross Settlement Fund

as being at all times a “qualified settlement fund” within the meaning of Treas. Reg. §1.4688-1. The

Escrow Agent 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. §1.4688-1) 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 Escrow Agent to

prepare and deliver timely and properly the necessary documentation for signature by all necessary

parties, and thereafter to cause the appropriate filing to occur.

(a) For the purpose of §4688 of the Internal Revenue Code of 1986, as amended, and the

regulations promulgated thereunder, the “administrator” shall be the Escrow Agent. The Escrow

Agent shall satisfy the administrative requirements imposed by Treas. Reg. §1.4688-2 by, e.g., (i)

obtaining a taxpayer identification number, (ii) satisfying any information reporting or withholding

requirements imposed on distributions from the Gross Settlement Fund, and (iii) timely and properly

filing applicable federal, state and local tax returns necessary or advisable with respect to the Gross

Settlement Fund (including, without limitation, the returns described in Treas. Reg. §1.4688-2(k))

and paying any taxes reported thereon. Such rehims (as well as the election described in this

paragraph) shall be consistent with the provisions of this paragraph and in all events shall reflect that

all Taxes as defined in ^ 20(b) below on the income earned by the Gross Settlement Fund shall be

paid out of the Gross Settlement Fund as provided in ^120(b) hereof;

(b) The following shall be paid out of the Gross Settlement Fund: (i) all taxes (including any

estimated taxes, interest or penalties) arising with respect to the income earned by the Gross

Settlement Fund, including, without limitation, any taxes or tax detriments that may be imposed upon

KOA or their counsel with respect to any income earned by the Gross Settlement Fund for any period

during which the Gross Settlement Fund does not qualify as a “qualified settlement fund” for federal

or state income tax purposes (collectively, “Taxes”); and (ii) all expenses and costs incurred in

connection with the operation and implementation of this paragraph, including, without limitation.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Settlement Agreement; Case No. 3:15-cv-03820-ID -14-


expenses of tax attorneys and/or accountants and mailing and distribution costs and expenses relating

to filing (or failing to file) the returns described in this paragraph (collectively, “Tax Expenses”). In

all events neither KOA nor their counsel shall have any liability or responsibility for the Taxes or the

Tax Expenses. With fiuids fi’om the Gross Settlement Fund, the Escrow Agent shall indemnify and

hold harmless KOA and their counsel for Taxes and Tax Expenses (including, without limitation.

Taxes payable by reason of any such indemnification). Further, Taxes and Tax Expenses shall be

treated as, and considered to be, a cost of administration of the Gross Settlement Fund and shall timely

be paid by the Escrow Agent out of the Gross Settlement Fund without prior order from the Court

and the Escrow Agent shall be obligated (notvsdthstanding anything herein to the contrary) to withhold

fi-om distribution to Authorized Claimants any funds necessary to pay such amounts, including the

establishment of adequate reserves for any Taxes and Tax Expenses (as well as any amounts that may

be required to be withheld under Treas. Reg. §1.468B-2(1)(2)); neither KOA nor their coimsel are

responsible therefor, nor shall they have any liability therefor. The Settling Parties agree to cooperate

with the Escrow Agent, each other, their tax attorneys and their accountants to the extent reasonably

necessary to carry out the provisions of this paragraph.

Administration and Distribution of Gross Settlement Fund

21. Time to Appeal The time to appeal from an approval of the Settlement shall commence

upon the Court’s entry of the Judgment regardless of whether or not either the Distribution Plan or

an application for attorneys’ fees and expenses has been submitted to the Court or resolved.

22. Distribution of Gross Settlement Fund, Upon further orders of the Court, the Claims

Administrator, subject to such supervision and direction of the Court and/or Class Coimsel as may be

necessary or as circumstances may require, shall administer the claims submitted by members of the

Class and shall oversee distribution of the Gross Settlement Fund to Authorized Claimants pursuant

to the Distribution Plan. Subject to the terms of this Settlement Agreement and any order(s) of the

Court, the Gross Settlement Fund shall be applied as follows;

(a) To pay all costs and expenses reasonably and actually incurred in connection providing

notice to the Class in connection with administering and distributing the Net Settlement Fund to

Authorized Claimants, and in connection with paying escrow fees and costs, if any;

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



(b) To pay all costs and expenses, if any, reasonably and actually incurred in accepting claims

and assisting with the filing and processing of such claims;

(c) To pay the Taxes and Tax Expenses as defined herein;

(d) To pay any Attorney Fee and Expense Award that is allowed by the Court, subject to and

in accordance with this Settlement Agreement; and

(e) To distribute the balance of the “Net Settlement Fund” to Authorized Claimants as

allowed by the Agreement, any Distribution Plan or order of the Court.

23. Distribution of Net Settlement Fund, The Net Settlement Fimd shall be distributed in

accordance with the Distribution Plan that is approved by the Court.

24. All Persons who fall within the definition of the Class who do not timely and validly

request to be excluded from the Class shall be subject to and bound by the provisions of this

Settlement Agreement, the releases contained herein, and the Judgment with respect to all Released

Claims, regardless of whether such Persons seek or obtain by any means, including, without

limitation, by submitting a Proof of Claim and Release or any similar document, any distribution

from the Gross Settlement Fund or the Net Settlement Fund.

25. No Liability for Distribution of Settlement Funds. Neither the Releasees nor their counsel

shall have any responsibility for, interest in or liability whatsoever with respect to the distribution of

the Gross Settlement Fund; the Distribution Plan; the allocation of the Settlement Amount between

claimants with qualifying purchases of Linear Resistors; the determination, administration, or

calculation of claims; the Settlement Fund’s qualification as a “qualified settlement fund”; the

payment or withholding of Taxes or Tax Expenses; the distribution of the Net Settlement Fund; or

any losses incurred in connection with any such matters. The Releasors hereby fully, finally and

forever release, relinquish and discharge the Releasees and their counsel from any and all such

liability. No Person shall have any claim against Class Counsel or the Notice and Claims

Administrator based on the distributions made substantially in accordance with the this Settlement

Agreement, the Distribution Plan or further orders of the Court.

26. Balance Remaining in Net Settlement Fund. If there is any balance remaining in the Net

Settlement Fund (whether by reason of tax refunds, uncashed checks or otherwise). Class Counsel

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



may reallocate such balance among Authorized Claimants in an equitable and economic fashion,

distribute the remaining funds through cy pres, or allow the money to escheat to federal or state

governments, subject to Court approval. In no event shall the Net Settlement Fund revert to KOA.

27. Distribution Plan Not Part of Settlement It is understood and agreed by the Settling

Parties that any Distribution Plan, including any adjustments to any Authorized Claimant’s claim, is

not a part of this Settlement Agreement and is to be considered by the Court separately from the

Court’s consideration of the fairness, reasonableness and adequacy of the Settlement set forth in this

Settlement Agreement, and any order or proceedings relating to the Distribution Plan shall not operate

to terminate or cancel this Settlement Agreement or affect the finality of the Judgment, the Final

Approval Order, or any other orders entered pursuant to this Settlement Agreement. The time to

appeal from an approval of the Settlement shall commence upon the Court’s entry of the Judgment

regardless of whether either the Distribution Plan or an application for attorneys’ fees and expenses

has been submitted to the Court or approved.

Attorneys’ Fees and Reimbursement of Expenses

28. Fee and Expense Application. Class Counsel may submit an application or applications

(the “Fee and Expense Application”) for distributions from the Gross Settlement Fund, for: (a) an

award of attorneys’ fees; plus (b) reimbursement of expenses incurred in connection with prosecuting

the Actions; plus (c) any interest on such attorneys’ fees and expenses (until paid) at the same rate

and for the same periods as earned by the Settlement Fund, as appropriate, and as may be awarded

by the Court.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

29. Payment of Fee and Expense Award. Any amounts that are awarded by the Court

pursuant to the above paragraph (the “Fee and Expense Award”) shall be paid from the Gross

Settlement Fund consistent with the provisions of this Settlement Agreement.

30. Award of Fees and Expenses Not Part of Settlement The procedure for, and the

allowance or disallowance by the Court of, the Fee and Expense Application are not part of the

Settlement set forth in this Settlement Agreement, and are to be considered by the Court separately

from the Court’s consideration of the fairness, reasonableness and adequacy of the Settlement set

forth in this Settlement Agreement. Any order or proceeding relating to the Fee and Expense

21

22

23

24

25

26

27

28



Application, or any appeal from any Fee and Expense Award or any other order relating thereto or

reversal or modification thereof, shall not operate to terminate or cancel this Settlement Agreement,

or affect or delay the finality of the Judgment and the Settlement of the Actions as set forth herein.

No order of the Court or modification or reversal on appeal of any order of the Court concerning any

Fee and Expense Award or Distribution Plan shall constitute grounds for cancellation or termination

of this Settlement Agreement.

31. Ah Liability for Fees and Expenses of Class Counsel The Releasees shall have no

responsibility for, and no liability whatsoever with respect to, any payment(s) to Class Counsel

pursuant to this Settlement Agreement and/or to any other Person who may assert some claim thereto

or any Fee and Expense Award that the Court may make in the Actions, other than as set forth in this

Settlement Agreement.

Cooperation

1

2

3

4

5

6

7

8

9

10

11

12

32. Cooperation as Consideration. In return for the Release and Discharge provided herein,

KOA agrees to pay the Settlement Amoimt and agree to provide cooperation to Indirect Purchaser

Plaintiffs as set forth specifically below.

33. Attorney Proffer. Within thirty (30) business days after preliminary approval by the Court

of this Settlement Agreement (“Preliminary Approval”) or such time as mutually agreed by the

Settling Parties, counsel for KOA shall provide Class Counsel with an oral proffer of facts known to

them from their internal investigation into the allegations at issue in this Action, including meetings

or communications between competitors in the Linear Resistors industry. Should the attorney proffer

required by this paragraph not occur within the 30 business days after Preliminary Approval, Indirect

Purchaser Plaintiffs do not waive their right to an attorney proffer provided the proffer occurs within

six (6) months of the Preliminary Approval.

34. Cooperation Subject to and Consistent with Prior Obligations. KOA and the Indirect

Purchaser Plaintiffs shall not be obligated to provide cooperation that would violate an applicable

court order, any joint defense or coimnon interest agreement or privilege, or KOA’s commitments to

the United States Department of Justice or any other domestic or foreign governmental entity.

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-18-Settlement Agreement; Case No. 3:15-cv-03820-JD


Additionally, Indirect Purchaser Plaintiffs and KOA will take reasonable efforts to accommodate the

other's efforts to minimize duplication in the providing of any cooperation.

35. Further Cooperation. The Settling Parties agrees to the following, except that all

cooperation obligations by KOA shall cease if Indirect Purchaser Plaintiffs cease to be a party in the

Actions against all other Defendants.

(a) KOA will produce ordinary course of business documents that it provided to the U.S.

Department of Justice Antitrust Division, including English translations to the extent they exist,

concerning Linear Resistors within fifteen (15) business days after preliminary approval by the Court


(b) If KOA produces any declarations, documents, data, or other responses to discovery to

any other plaintiff in the Actions, they will produce the same to Indirect Purchaser Plaintiffs.

(c) The Settling Parties shall cooperate in good faith to authenticate by declaration or affidavit,

a reasonable number of documents produced by KOA in the Action, without the need to issue any

subpoenas, letters rogatory, letters of request, or formal discovery requests. Indirect Purchaser

Plaintiffs shall provide KOA with a list of production numbers and copies of the documents for which

authentication is requested no less than 15 business days prior to the requested date for completion.

(d) KOA will use their best efforts to, at Indirect Purchaser Plaintiffs’ election, either have

no more than two employees (i) provide a declaration, or (ii) make themselves available for trial

testimony through a deposition that shall occur within the fact discovery period in the litigation, or

as otherwise agreed by the Settling Parties or the other parties to the litigation. If mutually agreed,

such depositions may occur via videoconference or teleconference. Such depositions shall not exceed

seven (7) hours in length unless an interpreter is used, in which event the examination time shall not

exceed twelve (12) hours. Indirect Purchaser Plaintiffs will reimburse KOA for reasonable business

class airfare, a per diem of $100 for food and incidentals, and up to three (3) nights of reasonable

hotel expenses (not to exceed $400 per night) for each witness who is made available for deposition

testimony in the United States. Indirect Purchaser Plaintiffs shall provide KOA with no less than 45

days’ notice prior to the requested date of any such deposition. Barring unforeseen circumstances.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Settlement Agreement; Case No. 3:15-cv-03820-XD -19-


the Indirect Purchaser Plaintiffs agree to take these depositions, if at all, in the last two weeks of the

fact discovery period or any extension thereof.

(e) KOA agrees that Indirect Purchaser Plaintiffs may ask questions at depositions of any

KOA witnesses noticed by other plaintiffs in the litigation.

(f) KOA agrees that they will respond in writing to reasonable requests for clarification of the

transactional, production and cost data that each respectively produced in the Actions, and will

provide an overview of the methods KOA generally used in pricing the Linear Resistors they sold in

the United States during the relevant period.

(g) Indirect Purchaser Plaintiffs agree to withdraw all outstanding discovery served on the

KOA and neither KOA nor Indirect Purchaser Plaintiffs shall file motions against the other during

the pendency of the Agreement except to enforce the terms of this Settlement Agreement.

36. Other Discovery. Upon the Execution Date, neither KOA nor the Indirect Pinchaser

Plaintiffs shall file motions against the other or initiate or participate in any discovery, motion or

proceeding directly adverse to the other in connection with the Action, except as specifically provided

for herein. KOA and the Indirect Purchaser Plaintiffs shall not be obligated to respond or supplement

prior responses to formal discovery that has been previously propounded by the other in the Action.

37. Resolution of Disputes. To the extent the Settling Parties disagree about the interpretation

or enforcement of any terms of this Settlement Agreement relating to future cooperation by KOA, or

about the triggering of the threshold specified in the Confidential Termination Agreement referenced

in TI40(b), they agree to submit such disputes for binding resolution by Hon. Vaughn R. Walker in

San Francisco, California, or another mutually agreed neutral.

Conditions of Settlement. Effect of Disapproval. Cancellation or Termination

38. Occurrence ofEffective Date. Upon the occurrence of all of the events required to trigger

the Effective Date as defined in f l(m), any and all remaining interest or right of KOA in or to the

Gross Settlement Fund, if any, shall be absolutely and forever extinguished, and the Gross Settlement

Fund (less any Notice and Administrative Costs, Taxes or Tax Expenses or any Fee and Expense

Award paid) shall be transferred fi-om the Escrow Agent to the Notice and Claims Administrator as

successor Escrow Agent wdthin ten (10) days after the Effective Date.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



39. Failure of Effective Date to Occur. If, for whatever reason, the Effective Date does not

occur or is not met, then this Settlement Agreement shall be cancelled and terminated, subject to and

in accordance with f 43, below, vmless the Settling Parties mutually agree in writing to proceed with

this Settlement Agreement.

40. Exclusions.

a. Any Class Member that wishes to seek exclusion from the Settlement Class by “opting out

must timely submit a written request for exclusion to the Claims Administrator. Class Counsel shall

cause copies of requests for exclusion from the Class to be provided to KOA’s counsel. No later than

fourteen (14) days after the final date for mailing requests for exclusion. Class Counsel shall provide

KOA’s counsel with a complete and final list of opt-outs. With the motion for final approval of the

Settlement, Class Counsel will file with the Court a complete list of requests for exclusion from the

Class, including only the name, city and state of the person or entity requesting exclusion.

b. KOA shall have the option to rescind and terminate this Settlement Agreement in its entirety

and without liability of any kind if based on available data, the aggregate purchases of Linear

Resistors purchased from distributors by Class Members that opt out pursuant to Paragraph 40(a) of

this Settlement Agreement exceeds a threshold agreed to by Indirect Purchaser Plaintiffs and KOA

in the Confidential Termination Agreement that has been executed separately by Indirect Purchaser

Plaintiffs and KOA. KOA shall exercise this option to rescind and terminate this Settlement

Agreement by providing ten (10) business days written notice to Class Coimsel. Upon such rescission

and termination. Indirect Purchaser Plaintiffs and KOA will notify the Court immediately and

■withdraw all pending motions filed to effectuate this Settlement. Indirect Purchaser Plaintiffs and

KOA will also, as may be required by the Court, submit the Confidential Termination Agreement to

the Court for in-camera review. In the event that KOA exercises its option to rescind and terminate

this Settlement Agreement: (i) this Settlement Agreement shall be null and void as to KOA, and shall

have no force or effect and shall be without prejudice to the rights and contentions of Releasees and

Releasors in this or any other litigation; (ii) the Gross Settlement fund shall be refunded promptly to

KOA, minus such payment (as set forth in this Settlement Agreement) of Notice and Administrative

Costs and Taxes and Tax Expenses, consistent with the provisions of 16 and 20.

1

2

3

4

5yy6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



41. Objections. Settlement Class Members who wish to object to any aspect of the Settlement

must file with the Court a written statement containing their objection by end of the period to object

to the Settlement. Any award or payment of attorneys’ fees made to coimsel to an objector to the

Settlement shall only be made by Court order and upon a showing of the benefit conferred to the

class. In determining any such award of attorneys’ fees to an objector’s counsel, the Court will

consider the incremental value to the Class caused by any such objection. Any award of attorneys’

fees by the Court will be conditioned on the objector and his or her attorney stating under penalty of

pequry that no payments shall be made to the objector based on the objector’s participation in the

matter - other than as ordered by the Court.

42. Failure to Enter Proposed Preliminary Approval Order, Final Approval Order or

Judgment If the Court does not enter the Preliminary Approval Order, the Final Approval Order or

the Judgment, or if the Court enters the Final Approval Order and the Judgment and appellate review

is sought and, on such review, the Final Approval Order or the Judgment is finally vacated, modified

or reversed, then this Settlement Agreement and the Settlement incorporated therein shall be

cancelled and terminated; provided, however, the Settling Parties agree to act in good faith to secure

Final Approval of this Settlement and to attempt to address in good faith concerns regarding the

Settlement identified by the Court and any court of appeal. No Settling Party shall have any obligation

whatsoever to proceed under any terms other than substantially in the form provided and agreed to

herein; provided, however, that no order of the Court concerning any Fee and Expense Application

or Distribution Plan, or any modification or reversal on appeal of such order, shall constitute grounds

for cancellation or termination of this Settlement Agreement by any Settling Party. Without limiting

the foregoing, KOA shall have, in its sole and absolute discretion, the option to terminate the

Settlement in its entirety in the event that the Judgment, upon becoming Final, does not provide for

the dismissal with prejudice of all of the Actions against them and complete release of Released

Claims against all Releasees.

43. Termination. Unless otherwise ordered by the Court, in the event that the Effective Date

does not occur or this Settlement Agreement should terminate, or be cancelled or otherwise fail to

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



become effective for any reason, the Settlement as described herein is not finally approved by the

Court, or the Judgment is reversed or vacated following any appeal taken therefrom, then:

(a) within five (5) business days after written notification of such event is sent by counsel for

KOA to the Escrow Agent, the Gross Settlement Fund, including the Settlement Amount and all

interest earned on the Settlement Fund while held in escrow excluding only Notice Administrative

and Class Administration Costs that have either been properly disbursed or are due and owing. Taxes

and Tax Expenses that have been paid or that have accrued and will be payable at some later date,

and attorneys’ fees and costs that have been disbursed pursuant to Court order will be refunded,

reimbursed and repaid by the Escrow Agent to KOA; if said amount or any portion thereof is not

returned within such five (5) day period, then interest shall accrue thereon at the rate of ten percent

(10%) per annum until the date that said amount is returned;

(b) -within thirty (30) business days after written notification of such event is sent by Counsel

for KOA to Class Counsel, all attorneys’ fees and costs which have been disbursed to Class Counsel

pursuant to Court order shall be refunded, reimbursed and repaid by Class Counsel to KOA;

(c) the Escrow Agent or its designee shall apply for any tax refund owed to the Gross

Settlement Fund and pay the proceeds to KOA, after deduction of any fees or expenses reasonably

incurred in connection with such application(s) for refund, pursuant to such written request;

(d) the Settling Parties shall be restored to their respective positions in the Actions as of the

Execution Date, with all of their respective claims and defenses, preserved as they existed on that

date;

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

(e) the terms and provisions of this Settlement Agreement, with the exception of 43-46

(which shall continue in full force and effect), shall be null and void and shall have no further force

or effect with respect to the Settling Parties, and neither the existence nor the terms of this Settlement

Agreement (nor any negotiations preceding this Settlement Agreement nor any acts performed

pursuant to, or in furtherance of, this Settlement Agreement) shall be used in the Actions or in any

other action or proceeding for any purpose (other than to enforce the terms remaining in effect); and

(f) any judgment or order entered by the Court in accordance with the terms of this Settlement

Agreement shall be treated as vacated, nunc pro tunc.

21

22

23

24

25

26

27

28



No Admission of Liability1

44. Final and Complete Resolution. The Settling Parties intend the Settlement as described

herein to be a final and complete resolution of all disputes between them with respect to the Actions

and Released Claims and to compromise claims that are contested, and it shall not be deemed an

admission by any Settling Party as to the merits of any claim or defense or any allegation made in the

Actions.

2

3

4

5

6

45. Federal Rule of Evidence 408. The Settling Parties agree that this Settlement Agreement,

its terms and the negotiations surroimding this Settlement Agreement shall be governed by Federal

Rule of Evidence 408 and shall not be admissible or offered or received into evidence in any suit,

action or other proceeding, except upon the written agreement of the Settling Parties hereto, pursuant

to an order of a court of competent jurisdiction, or as shall be necessary to give effect to, declare or

enforce the rights of the Settling Parties with respect to any provision of this Settlement Agreement.

46. Use of Agreement as Evidence. Neither this Settlement Agreement nor the Settlement,

nor any act performed or document executed pursuant to or in furtherance of this Settlement

Agreement or the Settlement: (a) is or may be deemed to be or may be used as an admission of, or

evidence of, the validity of any Released Claims, of any allegation made in the Actions, or of any

wrongdoing or liability of KOA; or (b) is or may be deemed to be or may be used as an admission of,

or evidence of, any liability, fault or omission of the Releasees in any civil, criminal or administrative

proceeding in any court, administrative agency or other tribunal. Neither this Settlement Agreement

nor the Settlement, nor any act performed or document executed pursuant to or in furtherance of this

Settlement Agreement or the Settlement shall be admissible in any proceeding for any purpose, except

to enforce the terms of the Settlement, and except that the Releasees may file this Settlement

Agreement and/or the Judgment in any action for any purpose, including, but not limited to, to support

a defense or coimterclaim based on principles of res judicata, collateral estoppel, release, good faith

settlement, judgment bar or reduction or any other theory of claim preclusion or issue preclusion or

similar defense or counterclaim. The limitations described in this paragraph apply whether or not the

Court enters the Preliminary Approval Order, the Final Approval Order, or the Judgment, or if the

Settlement Agreement is terminated or rescinded.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



Miscellaneous Provisions

47. Voluntary Settlement The Settling Parties agree that the Settlement Amount and the other

terms of the Settlement as described herein were negotiated in good faith by the Settling Parties, and

reflect a settlement that was reached voluntarily and after consultation with competent legal counsel.

48. Consent to Jurisdiction. KOA and each Class Member hereby irrevocably submit to the

exclusive jurisdiction of the Court only for the specific purpose of any suit, action, proceeding or

dispute arising out of or relating to this Settlement Agreement or the applicability of this Settlement

Agreement. Solely for purposes of such suit, action, or proceeding, to the fullest extent that they may

effectively do so under applicable law, KOA and the Class Members irrevocably waive and agree not

to assert, by way of motion, as a defense or otherwise, any claim or objection that they are not subject

to the jurisdiction of the Court or that the Court is in any way an improper venue or an inconvenient

forum. Nothing herein shall be construed as a submission to jurisdiction for any purpose other than

any suit, action, proceeding, or dispute arising out of or relating to this Settlement Agreement or the

applicability of this Settlement Agreement.

49. Resolution of Disputes; Retention of Exclusive Jurisdiction. Any disputes between or

among KOA and any Class Members concerning matters contained in this Settlement Agreement and

the Confidential Termination Agreement referenced in H 40(b) of this Settlement Agreement shall, if

they cannot be resolved by negotiation and agreement, be submitted to Hon. Vaughn R. Walker. The

Court shall retain exclusive jurisdiction over the implementation and enforcement of any decision by

Mr. Walker concerning this Settlement Agreement.

50. Binding Effect This Settlement Agreement shall be binding upon, and inure to the benefit

of, the successors and assigns of the parties hereto. Without limiting the generality of the foregoing,

each and every covenant and agreement herein by Indirect Purchaser Plaintiffs and Class Counsel

shall be binding upon all Class Members.

51. A uthorization to Enter Settlement Agreement The imdersigned representatives of KOA

represent that they are fully authorized to enter into and to execute this Settlement Agreement on

behalf of KOA. Class Counsel, on behalf of Indirect Purchaser Plaintiffs and the Class, represent that

they are, subject to Court approval, expressly authorized to take all action required or permitted to be

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



taken by or on behalf of the Indirect Purchaser Plaintiffs and the Class pursuant to this Settlement

Agreement to effectuate its terms and to enter into and execute this Settlement Agreement and any

modifications or amendments to the Settlement Agreement on behalf of the Class that they deem

appropriate.

1

2

3

4

52. Notices. All notices under this Settlement Agreement shall be in writing. Each such notice

shall be given either by (a) e-mail; (b) hand delivery; (c) registered or certified mail, return receipt

requested, postage pre-paid; (d) Federal Express or similar overnight courier; or (e) facsimile and first

class mail, postage pre-paid and, if directed to any Class Member, shall be addressed to Class Counsel

at their addresses set forth below, and if directed to KOA, shall be addressed to their attorneys at the

addresses set forth below or such other addresses as Class Counsel or KOA may designate, fi-om time

to time, by giving notice to all parties hereto in the manner described in this paragraph.

If directed to the Indirect Purchaser Plaintiffs, address notice to:

5

6

7

8

9

10

11

12

13 COTCHETT, PITRE & MCCARTHY Adam J. Zapala ([email protected]) San Francisco Airport Office Center 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: 650-697-6000 Facsimile: 650-697-0577

If directed to KOA, address notice to:

14

15

16

17

18CROWELL & MORING LLPJason C. Murray ([email protected])515 S Flower St 40th FILos Angeles, CA 90071Telephone: (213) 443-5582Facsimile: (213) 622-2690

19

20

21

22

23 53. Confidentiality ofSettlement Negotiations. The terms of this Settlement Agreement (with

the exception of the terms of the Confidential Termination Agreement) shall be considered public as

of the Execution Date. Class Counsel shall keep strictly confidential and not disclose to any third

party, including specifically any counsel representing any other current or former party to the Action,

any non-public information regarding the Settling Parties’ negotiation of this settlement and/or the

Settlement Agreement. For the sake of clarity, KOA may issue a press release regarding execution of

24

25

26

27

28



mailto:[email protected]


the Settlement Agreement and the amount paid in connection with the Settlement Agreement, and

otherwise disclose information about the terms of the Settlement Agreement in compliance with

applicable securities or other laws, including but not limited to the rules of the Tokyo Stock Exchange.

5A. Headings. The headings used in this Settlement Agreement are intended for the

convenience of the reader only and shall not affect the meaning or interpretation of this Settlement

Agreement.

1

2

3

4

5

6

55. No Party Deemed to Be the Drafter. None of the parties hereto shall be deemed to be the

drafter of this Settlement Agreement or any provision hereof for the purpose of any statute, case law

or rule of interpretation or construction that would or might cause any provision to be construed

against the drafter hereof.

56. Choice of Law. This Settlement Agreement shall be considered to have been negotiated,

executed and delivered, and to be wholly performed, in the State of California, and the rights and

obligations of the parties to this Settlement Agreement shall be construed and enforced in accordance

with, and governed by, the internal, substantive laws of the State of California without giving effect

to that State’s choice of law principles.

57. Amendment; Waiver. This Settlement Agreement shall not be modified in any respect

except by a writing executed by all the parties hereto, and the waiver of any rights conferred hereunder

shall be effective only if made by written instrument of the waiving party. The waiver by any party

of any breach of this Settlement Agreement shall not be deemed or construed as a waiver of any other

breach, whether prior, subsequent or contemporaneous, of this Settlement Agreement.

58. Execution in Counterparts. This Settlement Agreement may be executed in one or more

counterparts. All executed counterparts and each of them shall be deemed to be one and the same

instrument. Counsel for the parties to this Settlement Agreement shall exchange among themselves

original signed counterparts and a complete set of executed counterparts shall be filed with the Court.

59. Notification of State Officials. KOA shall be responsible for providing all notices

required by the Class Action Fairness Act to be provided to state attorneys general or to the United

States of America.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



60. Integrated Agreement. This Settlement Agreement and the Confidential Termination

Agreement constitute the entire agreement between the Settling Parties and no representations,

warranties or inducements have been made to any party concerning this Settlement Agreement and

the Confidential Termination Agreement other than the representations, warranties and covenants

contained and memorialized herein. It is understood by the Settling Parties that, except for the matters

expressly represented herein, the facts or law with respect to which this Settlement Agreement and

the Confidential Termination Agreement is entered into may turn out to be other than or different

from the facts now known to each party or believed by such party to be true; each party therefore

expressly assumes the risk of the facts or law turning out to be so different, and agrees that this

Settlement Agreement and the Confidential Termination Agreement shall be in all respects effective

and not subject to termination by reason of any such different facts or law. Except as otherwise

provided herein, each party shall bear its own costs and attorneys’ fees.

IN WITNESS WHEREOF, the parties hereto, through their fully authorized representatives,

have executed this Settlement Agreement as of the date first herein above written.

INDIRECT PURCHASER PLAINTIFFS’ CLASS COUNSEL, on behalf of Indirect

Purchaser Plaintiffs individually and on behalf of the Class.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

By:18Adam J. ZapalaElizabeth T. Castillo ^ ^Mark F. Ram Tamarah P. Prevost COTCHETT, PITRE & MCCARTHY San Francisco Airport Office Center 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: 650-697-6000 Fax: 650-697-0577 azapala@cpmlegal .com ecastillo@cpmlegal .com [email protected] [email protected]

19

20

21

22

23

24

25

26

27DEFENDANTS KOA CORPORATION AND KOA SPEER ELECTRONICS, INC.

28





By:1

2CROWELL & MORIN 515 S Flower St 40th E Los Angeles, CA 90071 Telephone: (213) 443-5582 Facsimile: (213) 622-2690 [email protected]

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28




EXHIBIT 2


Settlement Agreement; Case No. 3:15-cv-03820-JD

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA



Case No. 3:15-cv-03820-JD SETTLEMENT AGREEMENT

This Document Relates to: Indirect Purchaser Actions



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

This Settlement Agreement (“Settlement Agreement”) is made and entered into on this 4th

day of October, 2018, by and among Panasonic Corporation (“Panasonic Corp.”), and the Indirect

Purchaser Plaintiffs (“IPPs”), both individually and on behalf of the Class in the above captioned

action. This Settlement Agreement is intended by the Settling Parties to fully, finally and forever

resolve, discharge and settle the Released Claims, upon and subject to the terms and conditions

hereof.

RECITALS

WHEREAS, IPPs are prosecuting the Action on their own behalf and on behalf of the Class

against, among others, Panasonic Corp., Panasonic Corporation of North America, (together, the

“Panasonic Defendants”) and other Defendants and alleged co-conspirators;

WHEREAS, IPPs allege, among other things, that the Panasonic Defendants violated U.S.

antitrust and consumer protection laws by conspiring to fix, raise, maintain, or stabilize the prices of

Linear Resistors (as defined below); and these acts caused the Class (as defined below) to incur

damages;

WHEREAS, the Panasonic Defendants have consistently denied and continue to deny each

and all of IPPs’ claims and allegations of wrongdoing; have not conceded or admitted any liability,

or that they violated or breached any law, regulation, or duty owed to the IPPs; have denied and

continue to deny all charges of wrongdoing or liability against them arising out of any of the conduct,

statements, acts or omissions alleged in the Action; and further deny the allegations that IPPs or any

member of the Class were harmed by any conduct by the Panasonic Defendants, alleged in the Action

or otherwise;

WHEREAS, IPPs and the Panasonic Defendants have engaged in extensive discovery

regarding the facts pertaining to IPPs’ claims and the Panasonic Defendants’ defenses;

WHEREAS, IPPs and the Panasonic Defendants agree that neither this Settlement Agreement

nor any statement made in the negotiation thereof shall be deemed or construed to be an admission

or evidence of any violation of any statute or law or of any liability or wrongdoing by the Panasonic

Defendants or of the truth of any of the claims or allegations alleged in the Action;



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

WHEREAS, Class Counsel has concluded, after due investigation and after carefully

considering the relevant circumstances, including, without limitation, the claims asserted in the IPPs’

Amended Consolidated Class Action Complaint filed in Docket No. 3:15-cv-03820-JD (the

“Complaint”), the legal and factual defenses thereto, and the applicable law, that it is in the best

interests of IPPs and the Class to enter into this Settlement Agreement to avoid the uncertainties of

litigation and to assure that the benefits reflected herein are obtained for IPPs and the Class, and,

further, that IPPs’ Class Counsel considers the Settlement set forth herein to be fair, reasonable and

adequate and in the best interests of IPPs and the Class; and

WHEREAS, the Panasonic Defendants have concluded, despite their belief that they are not

liable for the claims asserted against them in the Action and that they have good defenses thereto, and

without admitting any liability or wrongdoing, that they will enter into this Settlement Agreement to

avoid further expense, inconvenience and the distraction of burdensome and protracted litigation, to

obtain the releases, orders and judgment contemplated by this Settlement, and thereby put to rest this

controversy and all claims that have been or could have been asserted against the Panasonic

Defendants by IPPs and the Class and to avoid the risks inherent in complex litigation; and

WHEREAS, arm’s length settlement negotiations have taken place between counsel for IPPs

and the Panasonic Defendants, and this Settlement Agreement, which embodies all of the terms and

conditions of the Settlement between the Panasonic Defendants and the IPPs, both individually and

on behalf of the Class, has been reached as a result of the Settling Parties’ negotiations (subject to the

approval of the Court) as provided herein and is intended to supersede any prior agreements or

understandings between the Settling Parties (as defined below).

AGREEMENT


Settling Parties in consideration of the covenants, agreements, and releases set forth herein and for

other good and valuable consideration, that the Action and the Released Claims as against the

Panasonic Defendants shall be finally and fully settled, compromised and dismissed on the merits

and with prejudice as to the Releasees, as defined below, and except as hereinafter provided, without



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

costs as to IPPs, the Class, or the Panasonic Defendants, upon and subject to the approval of the

Court, following notice to the Class, on the following terms and conditions:

Definitions

1. As used in this Settlement Agreement the following terms shall have the meanings

specified below:

(a) “Action” or “Actions” means In re Resistors Antitrust Litigation – All Indirect Purchaser

Actions, Case No. 3:15-cv-03820-JD, and each of the cases brought on behalf of indirect purchasers

previously consolidated and/or included as part of Docket No. 3:15-cv-03820-JD.

(b) “Affiliates” means entities controlling, controlled by or under common control with a

Releasee or Releasor.

(c) “Authorized Claimant” means any indirect purchaser who, in accordance with the terms

of this Settlement Agreement, is entitled to a distribution consistent with any Distribution Plan or

order of the Court ordering distribution to the Class.

(d) “Claims Administrator” means the claims administrator(s) to be selected by Class

Counsel.

(e) “Class” is defined in the following manner:

All persons and entities in the United States who purchased one or more Linear Resistor(s),

from a resistor distributor not for resale which a Defendant, its current or former subsidiary, or any

of its co-conspirators manufactured and/or sold, between January 1, 2003 and August 20, 2015.

Excluded from the Class are Defendants, their parent companies, subsidiaries and Affiliates, any co-

conspirators, Defendants’ attorneys in this case, federal government entities and instrumentalities,

states and their subdivisions, all judges assigned to this case, all jurors in this case and all persons and

entities who directly purchased Linear Resistors from Defendants.

(f) “Class Counsel” means the law firm of Cotchett, Pitre & McCarthy, LLP.

(g) “Class Member” means a Person who falls within the definition of the Class and who does

not timely and validly elect to be excluded from the Class in accordance with the procedure to be

established by the Court.

(h) “Court” means the United States District Court for the Northern District of California.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(i) “Defendants” means Panasonic Corp., Panasonic Corporation of North America, KOA

Corporation, KOA Speer Electronics, Inc., ROHM Co. Ltd., ROHM Semiconductor U.S.A., LLC,

Kamaya Electric Co., Ltd., Kamaya Inc., Hokuriku Electric Industry Co., Ltd. and HDK America,

Inc.

(j) “Distribution Plan” means any plan or formula of allocation of the Gross Settlement Fund,

to be approved by the Court, whereby the Net Settlement Fund shall in the future be distributed to

Authorized Claimants.

(k) “Document” is 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 of non-identical copy is a separate document within the meaning of this term.

(l) “Effective Date” means the first date by which all of the following events and conditions

have been met or have occurred:

(1) The Court has finally approved this Settlement Agreement and the motion after

providing notice to the Class as defined herein; and

(2) The Judgment (as more fully described in Paragraph 6 of this Settlement

Agreement) has become Final, with the occurrence of the following: (A) the entry by the Court of a

final order approving this Settlement Agreement under Federal Rule of Civil Procedure 23(e) together

with entry of a final judgment dismissing the Class Action and all claims therein against the Panasonic

Defendants and releasing all Released Claims against all Releasees with prejudice as to all Class

Members (the “Final Judgment”) and (B) the expiration of the time for appeal or to seek permission

to appeal from the Court’s approval of this Settlement Agreement and entry of the Final Judgment

or, if an appeal from an approval and Final Judgment is taken, the affirmance of such Final Judgment

in its entirety, without modification, by the court of last resort to which an appeal of such Final

Judgment may be taken, provided, however, a modification or reversal on appeal of any amount of

Class Counsel’s fees and expenses awarded by the Court from the Gross Settlement Fund or any plan

of allocation or distribution of the Settlement Fund shall not be deemed a modification of all or part

of the terms of this Settlement Agreement or the Final Judgment. It is agreed that neither the



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

provisions of Federal Rules of Civil Procedure 60 nor the All Writs Act, 28 U.S.C. § 1651, shall be

taken into account in determining the above-stated times.

(m) “Escrow Agent” means the agent jointly designated by Class Counsel and counsel for the

Panasonic Defendants, and any successor agent.

(n) “Execution Date” means the date of the last signature set forth on the signature pages

below.

(o) “Final” means, with respect to any court order, including, without limitation, the

Judgment, that such order represents a final and binding determination of all issues within its scope

and is not subject to further review on appeal or otherwise. Without limitation, an order becomes

“Final” when: (a) no appeal has been filed and the prescribed time for commencing any appeal has

expired; or (b) an appeal has been filed and either (i) the appeal has been dismissed and the prescribed

time, if any, for commencing any further appeal has expired, or (ii) the order has been affirmed in its

entirety and the prescribed time, if any, for commencing any further appeal has expired. For purposes

of this Settlement Agreement, an “appeal” includes appeals as of right, discretionary appeals,

interlocutory appeals, proceedings involving writs of certiorari or mandamus, and any other

proceedings of like kind. Any appeal or other proceeding pertaining solely to any order adopting or

approving a Distribution Plan, and/or to any order issued in respect of an application for attorneys’

fees and expenses consistent with this Settlement Agreement, shall not in any way delay or preclude

the Judgment from becoming Final.

(p) “Gross Settlement Fund” means the Settlement Amount plus any interest that may accrue.

(q) “Indirect Purchaser Plaintiffs” means Microsystems Development Technologies, Inc.,

Michael Brooks, Nebraska Dynamics, Inc., MakersLED LLC, Linkitz Systems, Inc., Top Floor Home

Improvements, Angstrom, Inc., In Home Tech Solutions, Inc., Anthony Sakal and any other Person

added as an Indirect Purchaser Plaintiff in the Actions.

(r) “Indirect Purchaser States” means Alabama, Arizona, Arkansas, California, District of





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Vermont, West Virginia and Wisconsin.

(s) “Judgment” means the order of judgment and dismissal of the Actions with prejudice.

(t) “Linear Resistors” means electronic components that provide a specific amount of

resistance to an electronic circuit, in which the current produced is directly proportional to the applied

voltage, including without limitation, chip and other fixed resistors, and variable resistors. Linear

Resistors are the subject of the Action.

(u) “Net Settlement Fund” means the Gross Settlement Fund, less the payments set forth in

Paragraph 15.

(v) “Notice, Administrative and Claims Administration Costs” means the reasonable sum of

money not in excess of $750,000 to be paid out of the Gross Settlement Fund to pay for notice to the

Class and related administrative and claims administration costs. The actual Notice, Administrative

and Claims Administration Costs shall be allocated pro rata from the Settlement Funds all other

settling Defendants.

(w) “Person(s)” means an individual, corporation, limited liability corporation, professional





(x) “Proof of Claim and Release” means the form to be sent to the Class, upon further order(s)

of the Court, by which any member of the Class may make claims against the Gross Settlement Fund.

(y) “Released Claims” means any and all manner of claims, demands, rights, actions, suits,


damages whenever incurred, liabilities of any nature whatsoever, known or unknown (including, but

not limited to, “Unknown Claims”), foreseen or unforeseen, suspected or unsuspected, asserted or

unasserted, contingent or non-contingent, in law or in equity, which Releasors or any of them, whether

directly, representatively, derivatively, or in any other capacity, ever had, now have or hereafter can,

shall or may have, relating in any way to any conduct prior to the Execution Date and arising out of



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

or related in any way in whole or in part to any facts, circumstances, acts, or omissions arising out of

or related to (1) the purchase, pricing, selling, discounting, marketing, manufacturing and/or

distributing of Linear Resistors; (2) any agreement, combination or conspiracy to raise, fix, maintain

or stabilize the prices of Linear Resistors or restrict, reduce, alter or allocate the supply, quantity or

quality of Linear Resistors or concerning the development, manufacture, supply, distribution,

transfer, marketing, sale or pricing of Linear Resistors, or any other restraint of competition alleged

in the Action or that could have been or hereafter could be alleged against the Releasees relating to

Linear Resistors, or (3) any other restraint of competition relating to Linear Resistors that could be

asserted as a violation of the Sherman Act or any other antitrust, unjust enrichment, unfair

competition, unfair practices, trade practices, price discrimination, unitary pricing, racketeering, civil

conspiracy or consumer protection law, whether under federal, state, local or foreign law. Nothing

herein shall release: (i) any direct purchase claims made by direct purchasers; (ii) any claims made

by any State, State agency, or instrumentality or political subdivision of a State as to government

purchases and/or penalties; (iii) claims involving any negligence, personal injury, breach of contract

arising in the ordinary course of business, bailment, failure to deliver lost goods, damaged or delayed

goods, product defect, securities or similar claim relating to any Linear Resistors; (iv) claims

concerning electronic components other than Linear Resistors; (v) claims under laws other than those

of the United States relating to purchases of any Linear Resistors made outside of the United States

by any Releasor; and (vi) claims for damages under the state or local laws of any jurisdiction other

than an Indirect Purchaser State. For the purposes of clarity, the Released Claims include any claims

under federal antitrust or competition laws or state antitrust, competition, or consumer protection laws

that relate to or arise out of the sale of any of the Linear Resistors that are the subject of the Complaint.

For purposes of clarity, the Released Claims include claims for purchases of Linear Resistors from

any Releasee anywhere in the world made by any Releasor. The Released Claims also include any

claims under foreign antitrust or competition laws or state antitrust or competition laws that relate to

or arise out of the subject of the Complaint based on purchases made anywhere in the world, but do

not include any foreign antitrust or competition law claims based on purchases of Linear Resistors

that were not sold, billed, or shipped to or through the United States, or would otherwise not fall



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

within the jurisdictional reach of the Sherman Act as amended by the Foreign Trade Antitrust

Improvements Act of 1982.

(z) “Releasees” means jointly and severally, individually and collectively, Panasonic Corp.

and Panasonic Corporation of North America, their respective past, present and future direct and

indirect parents, members, subsidiaries and Affiliates; their respective past, present, and future

officers, directors, employees, managers, members, partners, joint ventures, agents, shareholders (in

their capacity as shareholders), attorneys and legal representatives, assigns, servants and

representatives; and the predecessors, successors, heirs, executors, administrators and assigns of each

and any of the foregoing.

(aa) “Releasors” refers jointly and severally, individually and collectively to the IPPs

and each and every member of the Class on their own behalf and on behalf of their respective past,

present and/or future direct and indirect parents, members, subsidiaries and Affiliates, and their past,

present and/or future officers, directors, employees, agents, attorneys and legal representatives,

servants and representatives, and the predecessors, successors, heirs, executors, administrators and

assigns of each of the foregoing.

(bb) “Settlement” means the settlement of the Released Claims set forth herein.

(cc) “Settlement Amount” means exactly ten million U.S. dollars ($10,000,000.00). In

no event shall Panasonic pay more than $10,000,000.00.

(dd) “Settling Parties” means, collectively, the IPPs (on behalf of themselves and the

Class) and the Panasonic Defendants.

(ee) “Unknown Claims” means any Released Claim that an Indirect Purchaser Plaintiff

and/or Class Member does not know or suspect to exist in his, her or its favor at the time of the release

of the Releasees that if known by him, her or it, might have affected his, her or its settlement with

and release of the Releasees, or might have affected his, her or its decision not to object to this

Settlement. Such Unknown Claims include claims that are the subject of California Civil Code § 1542

and equivalent, similar or comparable laws or principles of law. California Civil Code § 1542

provides:



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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.

Preliminary Approval Order, Notice Order and Settlement Hearing

2. Reasonable Best Efforts to Effectuate this Settlement. The Settling Parties: (a)

acknowledge that it is their intent to consummate this Settlement Agreement; and (b) agree to

cooperate to the extent reasonably necessary to effectuate and implement the terms and conditions of

this Settlement Agreement and to exercise their reasonable best efforts to secure the prompt, complete

and final dismissal with prejudice of the Action as to the Releasees.

3. Motion for Preliminary Approval. At a reasonably prompt time to be determined by Class

Counsel, Class Counsel shall submit this Settlement Agreement to the Court and shall apply for entry

of a preliminary approval order (the “Preliminary Approval Order”), requesting, inter alia,

preliminary approval of the Settlement. The motion shall include (a) the proposed Preliminary

Approval Order and (b) a definition of the proposed settlement class pursuant to Federal Rule of Civil

Procedure 23.

4. Proposed Notice. At a time to be determined in their sole discretion, Class Counsel shall

submit to the Court for approval a proposed form of, method for and schedule for dissemination of

notice to the Class. To the extent practicable and to the extent consistent with this paragraph, Class

Counsel may seek to coordinate this notice program with other settlements that may be reached in

the Action to reduce the expense of notice. This motion shall recite and ask the Court to find that the

proposed form of and method for dissemination of the notice to the Class constitutes valid, due and

sufficient notice to the Class, constitutes the best notice practicable under the circumstances, and

complies fully with the requirements of Federal Rule of Civil Procedure 23. In accordance with

Paragraph 22, the Panasonic Defendants and their counsel have no responsibility for, interest in,

financial obligation for, or liability whatsoever with respect to the distribution or administration of

the Gross Settlement Fund, nor shall the Panasonic Defendants or their counsel have any



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

responsibility for, interest in, financial obligation for, or liability whatsoever with respect to any plan

of distribution of allocation of the Gross Settlement Fund.

5. Claims Administrator. IPPs shall retain a Claims Administrator, which shall be

responsible for the claims administration process including distribution to Class Members pursuant

to a court-approved plan of distribution. The fees and expenses of the Claims Administrator shall be

paid exclusively out of the Settlement Fund. In no event shall the Panasonic Defendants or any

Releasee be separately responsible for any fees or expenses of the Claims Administrator.

6. Motion for Final Approval and Entry of Final Judgment. Prior to the date set by the

Court to consider whether this Settlement should be finally approved, Class Counsel shall submit a

motion for final approval of the Settlement by the Court. The Settling Parties shall jointly seek entry

of the Final Approval Order and Judgment:

(a) certifying the Class, as defined in this Settlement Agreement, pursuant to Federal Rule of

Civil Procedure 23, solely for purposes of this Settlement;

(b) fully and finally approving the Settlement contemplated by this Settlement Agreement and

its terms as being fair, reasonable and adequate within the meaning of Federal Rule of Civil Procedure

23 and directing its consummation pursuant to its terms and conditions;

(c) finding that the notice given to the Class Members constituted the best notice practicable

under the circumstances and complies in all respects with the requirements of Federal Rule of Civil

Procedure 23 and due process;

(d) directing that the Actions be dismissed with prejudice as to the Panasonic Defendants and,

except as provided for herein, without costs;

(e) discharging and releasing the Releasees from all Released Claims;

(f) permanently barring and enjoining the institution and prosecution, by IPPs and Class

Members, of any other action against the Releasees in any court asserting any claims related in any

way to the Released Claims;

(g) reserving continuing and exclusive jurisdiction over the Settlement, including all future

proceedings concerning the administration, consummation and enforcement of this Settlement

Agreement, except as provided in Paragraph 42 below;



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(h) determining pursuant to Federal Rule of Civil Procedure 54(b) that there is no just reason

for delay and directing entry of a final judgment as to the Panasonic Defendants; and

(i) containing such other and further provisions consistent with the terms of this Settlement

Agreement to which the Settling Parties expressly consent in writing.

7. At least seven (7) business days prior to the filing of any motions or other papers in

connection with this Settlement, including without limitation, the Preliminary Approval Motion and

the Motion for Final Approval of the Settlement, Class Counsel will send working drafts of these

papers to counsel for the Panasonic Defendants. The text of any proposed form of order preliminarily

or finally approving the Settlement shall be agreed upon by IPPs and the Panasonic Defendants before

it is submitted to the Court and shall be consistent with the terms of this Settlement Agreement and

the Class definitions set forth herein.

8. Stay Order. Upon the Execution Date, the Action shall be stayed as against the Panasonic

Defendants only. Should the Action be tried against any Defendants other than the Panasonic

Defendants, the Settling Parties specifically agree that any findings therein shall not be binding on or

admissible in evidence against the Panasonic Defendants or any other Releasee or prejudice any

Releasee in any way in any future proceeding involving any Releasee.

9. Upon the date that the Court enters the Preliminary Approval Order, IPPs and Class

Members shall be barred and enjoined from commencing, instituting or continuing to prosecute any

action or any proceeding in any court of law or equity, arbitration tribunal, administrative forum or

other forum of any kind worldwide based on the Released Claims. Nothing in this provision shall

prohibit IPPs or Class Counsel from continuing to participate in discovery in the Actions that is

initiated by other plaintiffs or that is subject to and consistent with the cooperation provisions set

forth in Paragraphs 28-31.

Releases

10. Released Claims. Upon the Effective Date, the Releasors (regardless of whether any such

Releasor ever seeks or obtains any recovery by any means, including, without limitation, by

submitting a Proof of Claim and Release, any distribution from the Gross Settlement Fund) by virtue

of this Settlement Agreement shall be deemed to have, and by operation of the Judgment shall have



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

fully, finally and forever released, relinquished and discharged all Released Claims against the

Releasees.

11. No Future Actions. The Releasors shall not, after the Execution Date, seek (directly or

indirectly) to commence, institute, maintain or prosecute any suit, action or complaint or collect from

or proceed against the Panasonic Defendants or any other Releasee (including, but not limited to,

pursuant to the Actions) based on the Released Claims in any forum worldwide, whether on his, her,

or its own behalf or as part of any putative, purported or certified class of purchasers or consumers.

12. Covenant Not to Sue. Releasors hereby covenant not to sue the Releasees with respect to

any such Released Claims. Releasors shall be permanently barred and enjoined from instituting,

commencing or prosecuting against the Releasees any claims based in whole or in part on the

Released Claims. The Settling Parties contemplate and agree that this Settlement Agreement may be

pleaded as a bar to a lawsuit, and an injunction may be obtained, preventing any action from being

initiated or maintained in any case sought to be prosecuted on behalf of IPPs or any Class member

with respect to the Released Claims.

13. Waiver of California Civil Code § 1542 and Similar Laws. The Releasors acknowledge

that, by virtue of the execution of this Settlement Agreement, and for the consideration received

hereunder, it is their intention to release, and they are releasing, all Released Claims, even Unknown

Claims. In furtherance of this intention, the Releasors expressly waive and relinquish, to the fullest

extent permitted by law, any rights or benefits conferred by the provisions of California Civil Code

§ 1542, as set forth in Paragraph 1(ee), or equivalent, similar or comparable laws or principles of law.

The Releasors acknowledge that they have been advised by Class Counsel of the contents and effects

of California Civil Code § 1542, and hereby expressly waive and release with respect to the Released

Claims any and all provisions, rights and benefits conferred by California Civil Code § 1542 or by

any equivalent, similar or comparable law or principle of law in any jurisdiction. The Releasors may

hereafter discover facts other than or different from those which they know or believe to be true with

respect to the subject matter of the Released Claims, but the Releasors hereby expressly waive and

fully, finally and forever settle and release any known or unknown, suspected or unsuspected,

foreseen or unforeseen, asserted or unasserted, contingent or non-contingent, and accrued or



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

unaccrued claim, loss or damage with respect to the Released Claims, whether or not concealed or

hidden, without regard to the subsequent discovery or existence of such additional or different facts.

The release of unknown, unanticipated, unsuspected, unforeseen, and unaccrued losses or claims in

this paragraph is not a mere recital.

Settlement Fund and Injunctive Relief

14. Settlement Payment. Panasonic Corp. shall pay by wire transfer the Settlement Amount

to the Escrow Agent pursuant to escrow instructions within sixty (60) business days after the

Execution Date. This amount constitutes the total amount of payment that the Panasonic Defendants

are required to make in connection with this Settlement Agreement. This amount shall not be subject

to reduction, and upon the occurrence of the Effective Date, no funds shall revert to the Panasonic

Defendants except as provided herein. The Escrow Agent shall only act in accordance with the

mutually agreed escrow instructions. Subject to the provisions hereof, and in full, complete, and final

settlement of the Actions as provided herein, Panasonic further agrees that it will not engage in

conduct that constitutes a per se violation of Section 1 of the Sherman Act (whether characterized as

price fixing, market allocation, bid rigging, or otherwise) with respect to the sale of Linear Resistors

for a period of twelve (12) months from the date of the entry of the Final Judgment.

15. Disbursements Prior to Effective Date. No amount may be disbursed from the Gross

Settlement Fund unless and until the Effective Date, except that: (a) actual Notice, Administrative

and Claims Administration Costs, which shall be allocated pro rata from the Settlement Funds of all

other settling Defendants and in any event may not exceed $750,000 may be paid from the Gross

Settlement Fund as they become due; (b) Taxes and Tax Expenses (as defined in Paragraph 17 below)

may be paid from the Gross Settlement Fund as they become due; and (c) attorneys’ fees and

reimbursement of litigation costs may be paid as ordered by the Court, which may be disbursed during

the pendency of any appeals, which may be taken from the judgment to be entered by the Court finally

approving this Settlement.

16. No Additional Payments by the Panasonic Defendants. Under no circumstances will the

Panasonic Defendants be required to pay more or less than the Settlement Amount pursuant to this

Settlement Agreement and the Settlement set forth herein. For purposes of clarification, the payment



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

of any Fee and Expense Award (as defined in Paragraph 25 below), the Notice, Administrative and

Claims Administrative Costs, and any other costs associated with the implementation of this

Settlement Agreement shall be paid exclusively from the Settlement Amount.

17. Taxes. The Settling Parties and the Escrow Agent agree to treat the Gross Settlement Fund

as being at all times a “qualified settlement fund” within the meaning of Treas. Reg. §1.468B-1. The

Escrow Agent 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-1) 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 Escrow Agent to

prepare and deliver timely and properly the necessary documentation for signature by all necessary

parties, and thereafter to cause the appropriate filing to occur.

(a) For the purpose of §468B of the Internal Revenue Code of 1986, as amended, and the

regulations promulgated thereunder, the “administrator” shall be the Escrow Agent. The Escrow

Agent shall satisfy the administrative requirements imposed by Treas. Reg. §1.468B-2 by, e.g., (i)

obtaining a taxpayer identification number, (ii) satisfying any information reporting or withholding

requirements imposed on distributions from the Gross Settlement Fund, and (iii) timely and properly

filing applicable federal, state and local tax returns necessary or advisable with respect to the Gross

Settlement Fund (including, without limitation, the returns described in Treas. Reg. §1.468B-2(k))

and paying any taxes reported thereon. Such returns (as well as the election described in this

paragraph) shall be consistent with the provisions of this paragraph and in all events shall reflect that

all Taxes as defined in Paragraph 17(b) below on the income earned by the Gross Settlement Fund

shall be paid out of the Gross Settlement Fund as provided in Paragraph 17(b) hereof;

(b) The following shall be paid out of the Gross Settlement Fund: (i) all taxes (including any

estimated taxes, interest or penalties) arising with respect to the income earned by the Gross

Settlement Fund, including, without limitation, any taxes or tax detriments that may be imposed upon

the Panasonic Defendants or their counsel with respect to any income earned by the Gross Settlement

Fund for any period during which the Gross Settlement Fund does not qualify as a “qualified

settlement fund” for federal or state income tax purposes (collectively, “Taxes”); and (ii) all expenses



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

and costs incurred in connection with the operation and implementation of this paragraph, including,

without limitation, expenses of tax attorneys and/or accountants and mailing and distribution costs

and expenses relating to filing (or failing to file) the returns described in this paragraph (collectively,

“Tax Expenses”). In all events neither the Panasonic Defendants nor their counsel shall have any

liability or responsibility for the Taxes or the Tax Expenses. With funds from the Gross Settlement

Fund, the Escrow Agent shall indemnify and hold harmless Panasonic and their counsel for Taxes

and Tax Expenses (including, without limitation, Taxes payable by reason of any such

indemnification). Further, Taxes and Tax Expenses shall be treated as, and considered to be, a cost

of administration of the Gross Settlement Fund and shall timely be paid by the Escrow Agent out of

the Gross Settlement Fund without prior order from the Court and the Escrow Agent shall be obligated

(notwithstanding anything herein to the contrary) to withhold from distribution to Authorized

Claimants any funds necessary to pay such amounts, including the establishment of adequate reserves

for any Taxes and Tax Expenses (as well as any amounts that may be required to be withheld under

Treas. Reg. §1.468B-2(1)(2)); neither the Panasonic Defendants nor their counsel are responsible

therefor, nor shall they have any liability therefor. The Settling Parties agree to cooperate with the

Escrow Agent, each other, their tax attorneys and their accountants to the extent reasonably necessary

to carry out the provisions of this paragraph.

Administration and Distribution of Gross Settlement Fund

18. Time to Appeal. The time to appeal from an approval of the Settlement shall commence

upon the Court’s entry of the Judgment regardless of whether or not either the Distribution Plan or

an application for attorneys’ fees and expenses has been submitted to the Court or resolved.

19. Distribution of Gross Settlement Fund. Upon further orders of the Court, the Notice and

Claims Administrator, subject to such supervision and direction of the Court and/or Class Counsel as

may be necessary or as circumstances may require, shall administer the claims submitted by members

of the Class and shall oversee distribution of the Gross Settlement Fund to Authorized Claimants

pursuant to the Distribution Plan. Subject to the terms of this Settlement Agreement and any order(s)

of the Court, the Gross Settlement Fund shall be applied as follows:



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(a) To pay all costs and expenses reasonably and actually incurred in connection providing

notice to the Class in connection with administering and distributing the Net Settlement Fund to

Authorized Claimants, and in connection with paying escrow fees and costs, if any;

(b) To pay all costs and expenses, if any, reasonably and actually incurred in accepting claims

and assisting with the filing and processing of such claims;

(c) To pay the Taxes and Tax Expenses as defined herein;

(d) To pay any Attorney Fee and Expense Award that is allowed by the Court, subject to and

in accordance with this Settlement Agreement; and

(e) To distribute the balance of the Net Settlement Fund to Authorized Claimants as allowed

by the Agreement, any Distribution Plan or order of the Court.

20. Distribution of Net Settlement Fund. The Net Settlement Fund shall be distributed in

accordance with the Distribution Plan that is approved by the Court.

21. All Persons who fall within the definition of the Class who do not timely and validly

request to be excluded from the Class shall be subject to and bound by the provisions of this

Settlement Agreement, the releases contained herein, and the Judgment with respect to all Released

Claims, regardless of whether such Persons seek or obtain by any means, including, without

limitation, by submitting a Proof of Claim and Release or any similar document, any distribution

from the Gross Settlement Fund or the Net Settlement Fund.

22. No Liability for Distribution of Settlement Funds. Neither the Releasees nor their counsel

shall have any responsibility for, interest in or liability whatsoever with respect to the distribution of

the Gross Settlement Fund; the Distribution Plan; the allocation of the Settlement Amount between

claimants with qualifying purchases of Linear Resistors; the determination, administration, or

calculation of claims; the Settlement Fund’s qualification as a “qualified settlement fund”; the

payment or withholding of Taxes or Tax Expenses; the distribution of the Net Settlement Fund; or

any losses incurred in connection with any such matters. The Releasors hereby fully, finally and

forever release, relinquish and discharge the Releasees and their counsel from any and all such

liability. No Person shall have any claim against Class Counsel or the Notice and Claims



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Administrator based on the distributions made substantially in accordance with this Settlement

Agreement, the Distribution Plan or further orders of the Court.

23. Balance Remaining in Net Settlement Fund. If there is any balance remaining in the Net

Settlement Fund (whether by reason of tax refunds, uncashed checks or otherwise), Class Counsel

may reallocate such balance among Authorized Claimants in an equitable and economic fashion,

distribute the remaining funds through cy pres, or allow the money to escheat to federal or state

governments, subject to Court approval. Except as provided in Paragraph 37 below, the Net

Settlement Fund shall not revert to Panasonic Corp.

24. Distribution Plan Not Part of Settlement. It is understood and agreed by the Settling

Parties that any Distribution Plan, including any adjustments to any Authorized Claimant’s claim, is

not a part of this Settlement Agreement and is to be considered by the Court separately from the

Court’s consideration of the fairness, reasonableness and adequacy of the Settlement set forth in this

Settlement Agreement, and any order or proceedings relating to the Distribution Plan shall not operate

to terminate or cancel this Settlement Agreement or affect the finality of the Judgment, the Final

Approval Order, or any other orders entered pursuant to this Settlement Agreement. The time to

appeal from an approval of the Settlement shall commence upon the Court’s entry of the Judgment

regardless of whether either the Distribution Plan or an application for attorneys’ fees and expenses

has been submitted to the Court or approved.

Attorneys’ Fees and Reimbursement of Expenses

25. Fee and Expense Application. Class Counsel may submit an application or applications

(the “Fee and Expense Application”) for distributions from the Gross Settlement Fund, for: (a) an

award of attorneys’ fees; plus (b) reimbursement of expenses incurred in connection with prosecuting

the Actions; plus (c) any interest on such attorneys’ fees and expenses (until paid) at the same rate

and for the same periods as earned by the Settlement Fund, as appropriate, and as may be awarded

by the Court.

26. Award of Fees and Expenses Not Part of Settlement. The procedure for, and the

allowance or disallowance by the Court of, the Fee and Expense Application are not part of the

Settlement set forth in this Settlement Agreement, and are to be considered by the Court separately



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

from the Court’s consideration of the fairness, reasonableness and adequacy of the Settlement set

forth in this Settlement Agreement. Any order or proceeding relating to the Fee and Expense

Application, or any appeal from any Fee and Expense Award or any other order relating thereto or

reversal or modification thereof, shall not operate to terminate or cancel this Settlement Agreement,

or affect or delay the finality of the Judgment and the Settlement of the Actions as set forth herein.

No order of the Court or modification or reversal on appeal of any order of the Court concerning any

Fee and Expense Award or Distribution Plan shall constitute grounds for cancellation or termination


27. No Liability for Fees and Expenses of Class Counsel. The Releasees shall have no

responsibility for, and no liability whatsoever with respect to, any payment(s) to Class Counsel

pursuant to this Settlement Agreement and/or to any other Person who may assert some claim thereto

or any Fee and Expense Award that the Court may make in the Actions, other than as set forth in this

Settlement Agreement.

Cooperation

28. Cooperation as Consideration. In return for the Release provided herein, the Panasonic

Defendants agree to pay the Settlement Amount and agree to provide cooperation to IPPs as set forth

specifically below in Paragraphs 29 through 31. In connection with this Settlement Agreement, IPPs

agree to cancel any and all presently scheduled depositions of the Panasonic Defendants’ witnesses.

Should this Settlement Agreement not become final, and should the parties return to their respective

positions, the Panasonic Defendants agree to make reasonable best efforts to make available for

deposition any former employee whose deposition was previously scheduled. Moreover, the

cooperation provisions set forth in Paragraphs 29 through 31 shall only become effective and

operative if one or more of IPPs’ settlements with any of the other Defendants is not approved, or

does not become final.

29. Cooperation Subject to and Consistent with Prior Obligations. Subject to the foregoing,

the Panasonic Defendants and the IPPs shall not be obligated to provide cooperation that would

violate an applicable court order, any joint defense or common interest agreement or privilege, or the

Panasonic Defendants’ commitments to the United States Department of Justice or any other



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

domestic or foreign governmental entity. Additionally, IPPs and the Panasonic Defendants will take

reasonable efforts to accommodate the other's efforts to minimize duplication in the providing of any

cooperation.

30. Cooperation. Subject to the foregoing, the Settling Parties agree to the following only if

one or more of IPPs’ settlements with any of the other Defendants is not approved, or does not become

final.

(a) If Panasonic produces any declarations, documents, data, or other responses to discovery

to any other plaintiff in the Actions, they will produce the same to Indirect Purchaser Plaintiffs.

(b) Attorney Proffer. At a time as mutually agreed by the Settling Parties, counsel for the

Panasonic Defendants shall make themselves available in the United States for up to one (1) meeting

to provide Class Counsel with an oral proffer of facts known to them relating to the allegations at

issue in this Action, including meetings or communications between competitors in the Linear

Resistors industry.

(c) The Settling Parties shall cooperate in good faith to authenticate by declaration or

affidavit, a reasonable number of Documents produced to date by the Panasonic Defendants in the

Action, without the need to issue any subpoenas, letters rogatory, letters of request, or formal

discovery requests. IPPs shall provide the Panasonic Defendants with a list of production numbers

and copies of the Documents for which authentication is requested no less than forty-five (45)

business days prior to the requested date for completion.

(d) The Panasonic Defendants will use their reasonable best efforts to, at IPPs’ election, either

have no more than two employees (i) provide a declaration, or (ii) make themselves available for trial

testimony through a deposition that shall occur within the fact discovery period in the litigation, or

as otherwise agreed by the Settling Parties. If mutually agreed, such depositions may occur via

videoconference or teleconference. Such depositions shall not exceed seven (7) hours in length unless

an interpreter is used, in which event the examination time shall not exceed twelve (12) hours. IPPs

will reimburse the Panasonic Defendants for reasonable business class airfare, a per diem of $100 for

food and incidentals, and up to three (3) nights of reasonable hotel expenses (not to exceed $400 per

night) for each witness who is made available for deposition testimony in the United States. IPPs



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

shall provide the Panasonic Defendants with no less than 30 days’ notice prior to the requested date

of any such deposition. Unless at the Panasonic Defendants’ election, barring unforeseen

circumstances, IPPs agree to take these depositions, if at all, in the last two weeks of the fact discovery

period or any extension thereof.

(e) While IPPs agree not to issue depositions subpoenas or notices to any current or former

employees of the Panasonic Defendants or any Releasee, the Panasonic Defendants agree that IPPs

may ask questions at depositions of any Panasonic witnesses noticed by other plaintiffs in the

litigation, provided however that IPPs’ participation in any such deposition shall not extend the time

limit allowed for the deposition pursuant to the Order re: Discovery Limits, ECF No. 307, or any

other applicable order. Similarly, the Panasonic Defendants will not subpoena or notice the

depositions of IPPs in this Action, although they may participate in questioning of such witnesses in

depositions noticed by other parties. IPPs shall not take any position on any motion to quash a

deposition subpoena or notice filed by the Panasonic Defendants.

(f) IPPs and their Counsel agree they will not use the information under this paragraph for

any purpose other than the pursuit of the Action, and will not publicize the information beyond what

is reasonably necessary for the prosecution of the Action or as otherwise required by law. Any

information provided under this paragraph will be deemed “Highly Confidential” and subject to the

protective order entered in the Action as if they had been produced or provided in response to

discovery requests and so designated.

(g) In the event that this Agreement fails to receive final approval by the Court as

contemplated in Paragraphs 6-7 hereof, or in the event that it is terminated by either party under any

provision herein, the Settling Parties agree that neither IPPs nor Class Counsel shall be permitted to

introduce into evidence, at any hearing, or in support of any motion, opposition or other pleading in

the Action or in any other federal or state or foreign action alleging a violation of any law relating to

the subject matter of this Action, any other information provided by the Panasonic Defendants’

counsel pursuant to the cooperation provisions of this paragraph.

31. Other Discovery. Upon the Execution Date, neither the Panasonic Defendants nor the IPPs

shall file motions against the other or initiate or participate in any discovery, motion or proceeding



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

directly adverse to the other in connection with the Action, except as specifically provided for herein.

In addition, IPPs agree that they will not serve or seek further discovery from the Panasonic

Defendants, or their current or former employees. The Panasonic Defendants and the IPPs shall not

be obligated to respond or supplement prior responses to formal discovery that has been previously

propounded by the other in the Action.

Conditions of Settlement, Effect of Disapproval, Cancellation or Termination

32. Occurrence of Effective Date. Upon the occurrence of all of the events required to trigger

the Effective Date as defined in Paragraph 1(l), any and all remaining interest or right of Panasonic

Corp. in or to the Gross Settlement Fund, if any, shall be absolutely and forever extinguished, and the

Gross Settlement Fund (less any Notice and Administrative Costs, Taxes or Tax Expenses or any Fee

and Expense Award paid) shall be transferred from the Escrow Agent to the Notice and Claims

Administrator as successor Escrow Agent within ten (10) days after the Effective Date.

33. Failure of Effective Date to Occur. If, for whatever reason, the Effective Date does not

occur or is not met, then this Settlement Agreement shall be cancelled and terminated, subject to and

in accordance with Paragraph 36, below, unless the Settling Parties mutually agree in writing to

proceed with this Settlement Agreement.

34. Exclusions.

a. Any Class Member that wishes to seek exclusion from the Settlement Class by “opting out”

must timely submit a written request for exclusion to the Claims Administrator. Class Counsel shall

cause copies of requests for exclusion from the Class to be provided to the Panasonic Defendants’

counsel. No later than fourteen (14) days after the final date for mailing requests for exclusion, Class

Counsel shall provide the Panasonic Defendants’ counsel with a complete and final list of opt-outs.

With the motion for final approval of the Settlement, Class Counsel will file with the Court a complete

list of requests for exclusion from the Class, including only the name, city and state of the person or

entity requesting exclusion. The Panasonic Defendants or Class Counsel may at their discretion

dispute an exclusion request, and, if possible, resolve the disputed exclusion request by agreement

and inform the Court of their position, if necessary, within thirty (30) days of the deadline set by the

Court for any class member to seek exclusion from the Settlement Class. With respect to any potential



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Class Member who requests exclusion from the Class, the Panasonic Defendants reserve all of their

legal rights and defenses, including, but not limited to, any defenses relating to whether the excluded

Class Member is an indirect purchaser of Linear Resistors and/or has standing to bring any claim.

b. Panasonic Corp. shall have the option to rescind and terminate this Settlement Agreement

in its entirety and without liability of any kind if based on available data, the aggregate purchases of

Linear Resistors purchased from distributors by Class Members that opt out pursuant to Paragraph

34(a) of this Settlement Agreement exceeds a threshold agreed to by IPPs and Panasonic Corp. in the

Confidential Termination Agreement that has been executed separately by IPPs and Panasonic Corp.

Panasonic Corp. shall exercise this option to rescind and terminate this Settlement Agreement by

providing thirty (30) business days written notice to Class Counsel. Upon such rescission and

termination, IPPs and the Panasonic Defendants will notify the Court immediately and withdraw all

pending motions filed to effectuate this Settlement. IPPs and the Panasonic Defendants will also, as

may be required by the Court, submit the Confidential Termination Agreement to the Court for in-

camera review. In the event that Panasonic Corp. exercises its option to rescind and terminate this

Settlement Agreement: (i) this Settlement Agreement shall be null and void as to the Panasonic

Defendants, and shall have no force or effect and shall be without prejudice to the rights and

contentions of Releasees and Releasors in this or any other litigation; (ii) the Gross Settlement fund,

including the Settlement Amount and all interest earned on the Settlement Amount while in escrow,

shall be refunded promptly to Panasonic Corp., minus such payment (as set forth in this Settlement

Agreement) of Notice and Administrative Costs and Taxes and Tax Expenses, consistent with the

provisions of Paragraphs 16 and 17.

35. Objections. Class Members who wish to object to any aspect of the Settlement must file

with the Court a written statement containing their objection by end of the period to object to the

Settlement. Any award or payment of attorneys’ fees made to counsel to an objector to the Settlement

shall only be made by Court order and upon a showing of the benefit conferred to the Class. In

determining any such award of attorneys’ fees to an objector’s counsel, the Court will consider the

incremental value to the Class caused by any such objection. Any award of attorneys’ fees by the

Court will be conditioned on the objector and his or her attorney stating under penalty of perjury that



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

no payments shall be made to the objector based on the objector’s participation in the matter - other

than as ordered by the Court.

36. Failure to Enter Proposed Preliminary Approval Order, Final Approval Order or

Judgment. If the Court does not enter the Preliminary Approval Order, the Final Approval Order or

the Judgment, or if the Court enters the Final Approval Order and the Judgment and appellate review

is sought and, on such review, the Final Approval Order or the Judgment is finally vacated, modified

or reversed, then this Settlement Agreement and the Settlement incorporated therein shall be

cancelled and terminated; provided, however, the Settling Parties agree to act in good faith to secure

Final Approval of this Settlement and to attempt to address in good faith concerns regarding the

Settlement identified by the Court and any court of appeal. No Settling Party shall have any obligation

whatsoever to proceed under any terms other than substantially in the form provided and agreed to

herein; provided, however, that no order of the Court concerning any Fee and Expense Application

or Distribution Plan, or any modification or reversal on appeal of such order, shall constitute grounds

for cancellation or termination of this Settlement Agreement by any Settling Party. Without limiting

the foregoing, the Panasonic Defendants shall have, in their sole and absolute discretion, the option

to terminate the Settlement in its entirety in the event that the Judgment, upon becoming Final, does

not provide for the dismissal with prejudice of all of the Actions against them and complete release

of Released Claims against all Releasees.

37. Termination. Unless otherwise ordered by the Court, in the event that the Effective Date

does not occur or this Settlement Agreement should terminate, or be cancelled or otherwise fail to

become effective for any reason, the Settlement as described herein is not finally approved by the

Court, or the Judgment is reversed or vacated following any appeal taken therefrom, then:

(a) within five (5) business days after written notification of such event is sent by counsel for

the Panasonic Defendants to the Escrow Agent, the Gross Settlement Fund, including the Settlement

Amount and all interest earned on the Settlement Fund while held in escrow excluding only Notice

Administrative and Class Administration Costs that have either been properly disbursed or are due

and owing, Taxes and Tax Expenses that have been paid or that have accrued and will be payable at

some later date, and attorneys’ fees and costs that have been disbursed pursuant to Court order will



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

be refunded, reimbursed and repaid by the Escrow Agent to Panasonic Corp.; if said amount or any

portion thereof is not returned within such five (5) business day period, then interest shall accrue

thereon at the rate of ten percent (10%) per annum until the date that said amount is returned;

(b) within thirty (30) business days after written notification of such event is sent by Counsel

for the Panasonic Defendants to Class Counsel, all attorneys’ fees and costs which have been

disbursed to Class Counsel pursuant to Court order shall be refunded, reimbursed and repaid by Class

Counsel to Panasonic Corp. Any interest accrued on the Settlement Payment does not become part of

the Gross Settlement Fund unless and until the Effective Date.;

(c) the Escrow Agent or its designee shall apply for any tax refund owed to the Gross

Settlement Fund and pay the proceeds to Panasonic Corp., after deduction of any fees or expenses

reasonably incurred in connection with such application(s) for refund, pursuant to such written

request;

(d) the Settling Parties shall be restored to their respective positions in the Actions as of the

Execution Date, with all of their respective claims and defenses, preserved as they existed on that

date;

(e) the terms and provisions of this Settlement Agreement, with the exception of Paragraphs

37-40 (which shall continue in full force and effect), shall be null and void and shall have no further

force or effect with respect to the Settling Parties, and neither the existence nor the terms of this

Settlement Agreement (nor any negotiations preceding this Settlement Agreement nor any acts

performed pursuant to, or in furtherance of, this Settlement Agreement) shall be used in the Actions

or in any other action or proceeding for any purpose (other than to enforce the terms remaining in

effect); and

(f) any judgment or order entered by the Court in accordance with the terms of this Settlement

Agreement shall be treated as vacated, nunc pro tunc.

No Admission of Liability

38. Final and Complete Resolution. The Settling Parties intend the Settlement as described

herein to be a final and complete resolution of all disputes between them with respect to the Actions

and Released Claims and to compromise claims that are contested, and it shall not be deemed an



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

admission by any Settling Party as to the merits of any claim or defense or any allegation made in the

Actions.

39. Federal Rule of Evidence 408. The Settling Parties agree that this Settlement Agreement,

its terms and the negotiations surrounding this Settlement Agreement shall be governed by Federal

Rule of Evidence 408 and shall not be admissible or offered or received into evidence in any suit,

action or other proceeding, except upon the written agreement of the Settling Parties hereto, pursuant

to an order of a court of competent jurisdiction, or as shall be necessary to give effect to, declare or

enforce the rights of the Settling Parties with respect to any provision of this Settlement Agreement.

40. Use of Agreement as Evidence. Neither this Settlement Agreement nor the Settlement,

nor any act performed or document executed pursuant to or in furtherance of this Settlement

Agreement or the Settlement: (a) is or may be deemed to be or may be used as an admission of, or

evidence of, the validity of any Released Claims, of any allegation made in the Actions, or of any

wrongdoing or liability of the Panasonic Defendants; or (b) is or may be deemed to be or may be used

as an admission of, or evidence of, any liability, fault or omission of the Releasees in any civil,

criminal or administrative proceeding in any court, administrative agency or other tribunal. Neither

this Settlement Agreement nor the Settlement, nor any act performed or document executed pursuant

to or in furtherance of this Settlement Agreement or the Settlement shall be admissible in any

proceeding for any purpose, except to enforce the terms of the Settlement, and except that the

Releasees may file this Settlement Agreement and/or the Judgment in any action for any purpose,

including, but not limited to, to support a defense or counterclaim based on principles of res judicata,

collateral estoppel, release, good faith settlement, judgment bar or reduction or any other theory of

claim preclusion or issue preclusion or similar defense or counterclaim. The limitations described in

this paragraph apply whether or not the Court enters the Preliminary Approval Order, the Final

Approval Order, or the Judgment, or if this Settlement Agreement is terminated or rescinded.

Miscellaneous Provisions

41. Voluntary Settlement. The Settling Parties agree that the Settlement Amount and the other

terms of the Settlement as described herein were negotiated in good faith by the Settling Parties, and

reflect a settlement that was reached voluntarily and after consultation with competent legal counsel.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

42. Consent to Jurisdiction. Except for disputes referred to the Hon. Walker pursuant to

Paragraph 43 below, the Panasonic Defendants and each Class Member hereby irrevocably submit to

the exclusive jurisdiction of the Court only for the specific purpose of any suit, action, proceeding or

dispute arising out of or relating to this Settlement Agreement or the applicability of this Settlement

Agreement. Solely for purposes of such suit, action, or proceeding, to the fullest extent that they may

effectively do so under applicable law, the Panasonic Defendants and the Class Members irrevocably

waive and agree not to assert, by way of motion, as a defense or otherwise, any claim or objection

that they are not subject to the jurisdiction of the Court or that the Court is in any way an improper

venue or an inconvenient forum. Nothing herein shall be construed as a submission to jurisdiction for

any purpose other than any suit, action, proceeding, or dispute arising out of or relating to this

Settlement Agreement or the applicability of this Settlement Agreement.


among the Panasonic Defendants and any Class Members concerning matters contained in this

Settlement Agreement and the Confidential Termination Agreement referenced in Paragraph 33 of

this Settlement Agreement shall, if they cannot be resolved by negotiation and agreement, be

submitted to Hon. Vaughn R. Walker. The Court shall retain exclusive jurisdiction over the

implementation and enforcement of any decision by Mr. Walker concerning this Settlement

Agreement.

44. Binding Effect. This Settlement Agreement shall be binding upon, and inure to the benefit

of, the successors and assigns of the parties hereto. Without limiting the generality of the foregoing,

each and every covenant and agreement herein by IPPs and Class Counsel shall be binding upon all

Class Members.

45. Authorization to Enter Settlement Agreement. The undersigned representatives of the

Panasonic Defendants represent that they are fully authorized to enter into and to execute this

Settlement Agreement on behalf of Panasonic Corp. Class Counsel, on behalf of IPPs and the Class,

represent that they are, subject to Court approval, expressly authorized to take all action required or

permitted to be taken by or on behalf of the IPPs and the Class pursuant to this Settlement Agreement



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

to effectuate its terms and to enter into and execute this Settlement Agreement and any modifications

or amendments to this Settlement Agreement on behalf of the Class that they deem appropriate.

46. Notices. All notices under this Settlement Agreement shall be in writing. Each such notice

shall be given either by (a) e-mail; (b) hand delivery; (c) registered or certified mail, return receipt

requested, postage pre-paid; (d) Federal Express or similar overnight courier; or (e) facsimile and first

class mail, postage pre-paid and, if directed to any Class Member, shall be addressed to Class Counsel

at their addresses set forth below, and if directed to the Panasonic Defendants, shall be addressed to

their attorneys at the addresses set forth below or such other addresses as Class Counsel or the

Panasonic Defendants may designate, from time to time, by giving notice to all parties hereto in the

manner described in this paragraph.

If directed to the IPPs, address notice to:

COTCHETT, PITRE & MCCARTHY Adam J. Zapala ([email protected]) San Francisco Airport Office Center 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: 650-697-6000 Facsimile: 650-697-0577

If directed to the Panasonic Defendants, address notice to: WINSTON & STRAWN LLP Jeffrey L. Kessler ([email protected]) 200 Park Avenue New York, NY 10166-4193 Telephone: (212) 294-4698 Facsimile: (212) 294-4700

47. Confidentiality of Settlement Negotiations. The terms of this Settlement Agreement (with

the exception of the terms of the Confidential Termination Agreement) shall be considered public as

of the Execution Date. Class Counsel shall keep strictly confidential and not disclose to any third

party, including specifically any counsel representing any other current or former party to the Action,

any non-public information regarding the Settling Parties’ negotiation of this settlement and/or the

Settlement Agreement. For the sake of clarity, Panasonic may issue a press release regarding

execution of the Settlement Agreement and the amount paid in connection with the Settlement



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Agreement, and otherwise disclose information about the terms of the Settlement Agreement in

compliance with applicable securities or other laws, including but not limited to the rules of the Tokyo

Stock Exchange.

48. Headings. The headings used in this Settlement Agreement are intended for the

convenience of the reader only and shall not affect the meaning or interpretation of this Settlement

Agreement.



or rule of interpretation or construction that would or might cause any provision to be construed

against the drafter hereof.

50. Choice of Law. This Settlement Agreement shall be considered to have been negotiated,

executed and delivered, and to be wholly performed, in the State of California, and the rights and

obligations of the parties to this Settlement Agreement shall be construed and enforced in accordance

with, and governed by, the internal, substantive laws of the State of California without giving effect

to that State’s choice of law principles.

51. Amendment; Waiver. This Settlement Agreement shall not be modified in any respect

except by a writing executed by all the parties hereto, and the waiver of any rights conferred hereunder

shall be effective only if made by written instrument of the waiving party. The waiver by any party

of any breach of this Settlement Agreement shall not be deemed or construed as a waiver of any other

breach, whether prior, subsequent or contemporaneous, of this Settlement Agreement.

52. Execution in Counterparts. This Settlement Agreement may be executed in one or more

counterparts. All executed counterparts and each of them shall be deemed to be one and the same

instrument. Counsel for the parties to this Settlement Agreement shall exchange among themselves

original signed counterparts and a complete set of executed counterparts shall be filed with the Court.

53. Notification of State Officials. The Panasonic Defendants shall be responsible for

providing all notices required by the Class Action Fairness Act to be provided to state attorneys

general or to the United States of America.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

54. Integrated Agreement. This Settlement Agreement and the Confidential Termination

Agreement constitute the entire agreement between the Settling Parties and no representations,

warranties or inducements have been made to any party concerning this Settlement Agreement and

the Confidential Termination Agreement other than the representations, warranties and covenants

contained and memorialized herein. It is understood by the Settling Parties that, except for the matters

expressly represented herein, the facts or law with respect to which this Settlement Agreement and

the Confidential Termination Agreement is entered into may turn out to be other than or different

from the facts now known to each party or believed by such party to be true; each party therefore

expressly assumes the risk of the facts or law turning out to be so different, and agrees that this

Settlement Agreement and the Confidential Termination Agreement shall be in all respects effective

and not subject to termination by reason of any such different facts or law. Except as otherwise

provided herein, each party shall bear its own costs and attorneys’ fees.

IN WITNESS WHEREOF, the parties hereto, through their fully authorized representatives,

have executed this Settlement Agreement as of the date first herein above written.


EXHIBIT 3



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(u) “Indirect Purchaser States” means Alabama, Arizona, Arkansas, California, District of




Vermont, West Virginia, and Wisconsin.

(t) “Judgment” means the order of judgment and dismissal of the Actions with prejudice.

(u) “Net Settlement Fund” means the Gross Settlement Fund, less the payments set forth in ¶

16.

(v) “ROHM Releasees” means collectively ROHM Co., Ltd. and ROHM Semiconductor

U.S.A., LLC, their respective past, present and future, direct and indirect parents, members,

subsidiaries, and affiliates, including but not limited to the predecessors, successors and assigns of

each of the above, and each and all of their past, present, and future respective principals, officers,

directors, supervisors, employees, managers, members, partners, agents, shareholders (in their

capacity as shareholders), attorneys and legal representatives, assigns, servants, and representatives,

and the predecessors, successors, heirs, executors, administrators, and assigns of each of the

foregoing.

(w) “Notice, Administrative and Claims Administration Costs” means the reasonable sum of

money not in excess of $250,000 to be paid out of the Gross Settlement Fund to pay for notice to the

Class and related administrative and claims administration costs.

(x) “Person(s)” means an individual, corporation, limited liability corporation, professional





(y) “Proof of Claim and Release” means the form to be sent to the Class, upon further order(s)

of the Court, by which any member of the Class may make claims against the Gross Settlement Fund.

(z) “Released Claims” means any and all manner of claims, demands, rights, actions, suits,



EXHIBIT 4


EXHIBIT 5


1

2

3

4

5

6

7

8

9

IO

11

12

13

14

UNITED ST ATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA



Case No. 3:IS-cv-03820-JD

-----------------1SETTLEMENTAGREEMENT

15 This Document Relates to:

16 Indirect Purchaser Actions

17

18

19

20

21

22

23

24

25

26

27

28



1 This Settlement Agreement ("Settlement Agreement") is made and entered into this 5th day

2 of July, 2018, by and among Defendants Hokuriku Electric Industry Co., Ltd, and HDK America,

3 Inc. (collectively, "the HDK Defendants"), and the Indirect Purchaser Plaintiffs ("IPPs"), both

4 individually and on behalf of the Class in the above captioned action. This Settlement Agreement is

5 intended by the Settling Parties to fully, finally, and forever resolve, discharge and settle the Released

6 Claims, upon and subject to the tenns and conditions hereof.

7 RECITALS

8 WHEREAS, Indirect Purchaser Plaintiffs are prosecuting the above-captioned action (the

9 "Class Action") on their own behalf and on behalf of the Class against, among others, the HDK

10 Defendants and other Defendants and alleged co-conspirators;

11 WHEREAS, Indirect Purchaser Plaintiffs allege, among other things, that the HDK

12 Defendants violated the antitrust and consumer protection laws by conspiring to fix, raise, maintain,

13 or stabilize the prices of Linear Resistors; and these acts caused the Class to incur damages;

14 WHEREAS, the HOK Defendants have consistently denied and continue to deny each and all

15 oflndirect Purchaser Plaintiffs' claims and allegations of wrongdoing; have not conceded or admitted

16 any liability, or that they violated or breached any law, regulation, or duty owed to the Indirect

I 7 Purchaser Plaintiffs; have denied and continue to deny all charges of wrongdoing or liability against

18 them arising out of any of the conduct, statements, acts or omissions alleged in the Actions; and

19 further deny the allegations that the Indirect Purchaser Plaintiffs or any member of the Class were

20 harmed by any conduct by the HDK Defendants alleged in the Actions or otherwise;

21 WHEREAS, Indirect Purchaser Plaintiffs and Defendants have engaged in extensive

22 discovery regarding the facts pertaining to Indirect Purchaser Plaintiffs' claims and Defendants'

23 defenses;

24 WHEREAS, Indirect Purchaser Plaintiffs and the HDK Defendants agree that neither this

2 5 Settlement Agreement nor any statement made in the negotiation thereof shall be deemed or construed

26 to be an admission or evidence of any violation of any statute or law or of any liability or wrongdoing

27 by the HD K Defendants or of the truth of any of the claims or allegations alleged in the Actions;

28



1 WHEREAS, Indirect Purchaser Plaintiffs' Class Counsel have concluded, after due

2 investigation and after carefully considering the relevant circumstances, including, without limitation,

3 the claims asserted in the Indirect Purchaser Plaintiffs' Amended Consolidated Class Action

4 Complaint filed in Docket No. 3:15-cv-03820-JD, the legal and factual defenses thereto and the

5 applicable law, that it is in the best interests of the Indirect Purchaser Plaintiffs and the Class to enter

6 into this Settlement Agreement to avoid the uncertainties of litigation and to assure that the benefits

7 reflected herein are obtained for the Indirect Purchaser Plaintiffs and the Class, and, further, that

8 Indirect Purchaser Plaintiffs' Class Counsel consider the Settlement set forth herein to be fair,

9 reasonable and adequate and in the best interests of the Indirect Purchaser Plaintiffs and the Class;

10 and

11 WHEREAS, the HDK Defendants have concluded, despite their belief that neither is liable

12 for the claims asserted against them in the Actions and that they have good defenses thereto, that they

13 will enter into this Settlement Agreement to avoid further expense, inconvenience, and the distraction

14 of burdensome and protracted litigation, and thereby put to rest this controversy with respect to the

15 Indirect Purchaser Plaintiffs and the Class and avoid the risks inherent in complex litigation; and

16 WHEREAS, arm's length settlement negotiations have taken place between counsel for

17 Indirect Purchaser Plaintiffs and the HDK Defendants, and this Settlement Agreement, which

18 embodies all of the terms and conditions of the Settlement between the Settling Parties, both

19 individually and on behalf of the Class, has been reached as a result of the Settling Parties'

20 negotiations (subject to the approval of the Court) as provided herein and is intended to supersede

21 any prior agreements or understandings between the Settling Parties.

22

23

AGREEMENT


24 Settling Parties, by and through their undersigned attorneys of record, in consideration of the

25 covenants, agreements, and releases set forth herein and for other good and valuable consideration,

26 that the Actions and the Released Claims as against the HDK Defendants shall be finally and fully

27 settled, compromised and dismissed on the merits and with prejudice, without costs as to Indirect

28

Settlement Agreement; Case No. 3:1S-cv-03820-JD -2-


1 Purchaser Plaintiffs, the Class, or the HOK Defendants, upon and subject to the approval of the Court,

2 following notice to the Class, on the following on the following terms and conditions:

3 Definitions

4 1. As used in this Settlement Agreement the following terms shall have the meanings

5 specified below:

6 (a) "Action" or "Actions" means In re Resistors Antitrust Litigation -All Indirect Purchaser

7 Actions, Case No. 3:15-cv-03820-JD, and each of the cases brought on behalf of indirect purchasers

8 previously consolidated and/or included as part of Docket No. 3:15-cv-03820-JD.

9 (b) "Affiliates" means entities controlling, controlled by or under common control with a

10 Releasee or Releasor.

11 ( c) "Authorized Claimant" means any Indirect Plaintiff Purchaser who, in accordance with

12 the terms of this Settlement Agreement, is entitled to a distribution consistent with any Distribution

13 Plan or order of the Court ordering distribution to the Class.

14 ( d) "Linear Resistors" means electronic components that provide a specific amount of

15 resistance to an electronic circuit, including without limitation, chip and other fixed resistors, and

16 variable resistors. Linear Resistors are the subject of the Action.

17 (e) "Claims Administrator" means the claims administrator(s) _to be selected by Class

18 Counsel.

19 (f) "Class" is defined in the following manner:

20 All persons and entities in the United States who purchased one or more Linear Resistor(s),

.J.1.A e 21 from a resistor distributor not for resale which a Defendant, its current or former subsidiary, or any y-·..,;

22 of its co-conspirators manufactured between January 1, 2003 and August 20, 2015. Excluded from

23 the Class are Defendants, their parent companies, subsidiaries and affiliates, any co-conspirators,

24 Defendants' attorneys in this case, federal government entities and instrumentalities, states and their

25 subdivisions, all judges assigned to this case, all jurors in this case, and all persons and entities who

26 directly purchased Linear Resistors from Defendants.

27

28

(g) "Class Counsel,, means the law firm of Cotchett, Pitre & McCarthy, LLP.

Settlement Agreement; Case No. 3: 15-cv-03820-JD -3-


1 (h) "Class Member" means a Person who falls within the definition of the Class and who does

2 not timely and validly elect to be excluded from the Class in accordance with the procedure to be

3 established by the Court.

4 (i) "Court" means the United States District Court for the Northern District of California.

5 G} CIDefendant" or "Defendants" means Panasonic Corporation, Panasonic Corporation of

6 North America, KOA Corporation, KOA Speer Electronics, Inc., ROHM Co. Ltd., ROHM

7 Semiconductor U.S.A., LLC, Kamaya Electric Co., Ltd., Kamaya Inc., Hokuriku Electric Industry

8 Co., Ltd. and HDK America, Inc.

9 (k) "Distribution Plan" means any plan or formula of allocation of the Gross Settlement Fund,

10 to be approved by the Court, whereby the Net Settlement Fund shall in the future be distributed to

11 Authorized Claimants.

12 (l) "Document" is synonymous in meaning and equal in scope to the usage of this term in Fed.

13 R. Civ. P. 34(a}, including, without limitation, electronic or computerized data compilations. A draft

14 of non-identical copy is a separate document within the meaning of this term.

I 5 (m) "Effective Date" means the first date by which all of the following events and conditions

16 have been met or have occurred:

17 (1) The Court has finally approved th~ Settlement Agreement and the motion after

18 providing notice to the Class as defined herein;

19 (2) The Court has entered a Final Judgment; and

20 (3) The Judgment (as more fully described in ,i 6 of the Settlement Agreement) has

21 become Final, with the occurrence of the following: (A) the entry by the Court of a final order

22 approving the Settlement Agreement under Federal Rule of Civil Procedure 23(e) together with entry

23 of a final judgment dismissing the Class Action and all claims therein against the HDK Defendants

24 and releasing all Released Claims against all Releasees with prejudice as to all Class Members (the

25 '1Final Judgment"), and (B) the expiration of the time for appeal or to seek permission to appeal from

26 the Court's approval of the Settlement Agreement and entry of the Final Judgment or, if an appeal

27 from an approval and Final Judgment is taken, the a:ffirmance of such Final Judgment in its entirety,

28 without modification, by the court of last resort to which an appeal of such Final Judgment may be



1 taken, provided, however, a modification or reversal on appeal of any amount of Class Counsel's fees

2 and expenses awarded by the Court :from the Settlement Fund or any plan of allocation or distribution

3 of the Settlement Fund shall not be deemed a modification of all or part of the tenns of this Settlement

4 Agreement or the Final Judgment. It is agreed that neither the provisions of Federal Rules of Civil

5 Procedure 60 nor the All Writs Act, 28 U.S.C. § 1651, shall be taken into account in determining the

6 above.stated times.

7 (n) "Escrow Agent" means the agent jointly designated by Class Counsel and the HOK

8 Defendants, and any successor agent.

9 ( o) "Execution Date" means the date of the last signature set forth on the signanrre pages

10 below.

11 (p) "Final" means, with respect to any order of court, including, without limitation, the

12 Judgment, that such order represents a final and binding determination of all issues within its scope

13 and is not subject to further review on appeal or otherwise. Without limitation, an order becomes

14 "Final" when: (a) no appeal has been filed and the prescribed time for commencing any appeal has

15 expired; or (b) an appeal hes been filed and either (i) the appeal has been dismissed and the prescribed

16 time, if any, for commencing any further appeal has expired, or (ii) the order has been affinned in its

17 entirety and the prescribed time, if any, for commencing any further appeal has expired. For purposes

18 of this Settlement Agreement, an "appeal" includes appeals as of right, discretionary appeals,

19 interlocutory appeals, proceedings involving writs of certiorari or mandamus, and any other

20 proceedings of like kind. Any appeal or other proceeding pertaining solely to any order adopting or

21 approving a Distribution Plan, and/or to any order issued in respect of an application for attorneys'

22 fees and expenses consistent with this Settlement Agreement, shall not in any way delay or preclude

23 the Judgment from becoming Final.

24 (q) "Gross Settlement Fund" means the Settlement Amount plus any interest that may accrue.

25 (r) "Indirect Purchaser Plaintiffs" means Microsystems Development Technologies, Inc.,

26 Michael Brooks, Nebraska Dynamics, Inc., MakersLED LLC, Linkitz Systems, Inc., Top Floor Home

27 Improvements, Angstrom, Inc., In Home Tech Solutions, Inc., and any other Person added as an

28 Indirect Purchaser Plaintiff in the Actions.



1 related to (1) the purchase, pricing, selling, discounting, marketing, manufacturing and/or distributing

2 of Linear Resistors; (2) any agreement, combination or conspiracy to raise, fix, maintain or stabilize

3 the prices of Linear Resistors or restrict, reduce, alter or allocate the supply, quantity or quality of

4 Linear Resistors or concerning the development, manufacture, supply, distribution, transfer,

5 marketing, sale or pricing of Linear Resistors, or any other restraint of competition alleged in the

6 Action or that could have been or hereafter could be alleged against the Releasees relating to Linear

7 Resistors, or (3) any other restraint of competition relating to Linear Resistors that could be asserted

8 as a violation of the Sherman Act or any other antitrust, unjust enrichment, unfair competition, unfair

9 practices, trade practices, price discrimination, unitary pricing, racketeering, civil conspiracy or

IO consumer protection law, whether under federal, state, local or foreign law, provided however, that

11 nothing herein shall release: (i) any claims made by direct purchasers; (ii) any claims made by any

12 State, State agency, or instrumentality or political subdivision of a State as to government purchases

13 and/or penalties; (iii) claims involving any negligence, personal injury, breach of contract, bailment,

14 failure to deliver lost goods, damaged or delayed goods, product defect, securities or similar claim

15 relating to any Linear Resistors; (iv) claims concerning electronic components other than Linear

16 Resistors; (v) claims under laws other than those of the United States relating to purchases of any

17 Linear Resistors made by any Releasor outside of the United States; and (vi) claims for damages

18 under the state or local laws of any jurisdiction other than an Indirect Purchaser State.

19 (z) "Releasees" means jointly and severally, individually and collectively, Hokuriku Electric

20 Industry Co., Ltd. and HDK America, Inc.; their respective past, present and future direct and indirect

21 parents, members, subsidiaries, and Affiliates; their past, present, and future respective officers,

22 directors, employees, managers, members, partners, joint ventures, agents, shareholders (in their

23 capacity as shareholders), attorneys and legal representatives, assigns, seivants, and representatives;

24 and the predecessors, successors, heirs, executors, administrators, and assigns of each and any of the

25 foregoing.

26 (aa) "Releasors" refers jointly and severally, individually and collectively to the Indirect

27 Purchaser Plaintiffs and each and every member of the Class on their own behalf and on behalf of

28 their respective past, present, and/or future direct and indirect parents, members, subsidiaries and

Settlement Agreement; Case No. 3:lS-cv-03820-JD -7-


1 Affiliates, and their past, present and/or future officers, directors, employees, agents, attorneys and

2 legal representatives, servants, and representatives, and the predecessors, successors, heirs, executors,

3 administrators and assigns of each of the foregoing.

4 (bb) "Settlement" means the settlement of the Released Claims set forth herein.

5 (cc) "Settlement AmoW1t" means exactly Nine Hwidred Thousand U.S. Dollars

6 ($900,000.00). In no event shall the HDK Defendants pay more than $900,000,

7 ( dd) "Settling Parties" means, collectively, the Indirect Purchaser Plaintiffs ( on behalf of

8 themselves and the Class) and the HDK Defendants.

9 (ee) "Unknown Claims" means any Released Claim that an Indirect Purchaser Plaintiff and/or

t O Class Member does not know or suspect to exist in his, her or its favor at the time of the release of

11 the Releasees that if known by him, her or it, might have affected his, her or its settlement with and

12 release of the Releasees, or might have affected his, her or its decision not to object to this Settlement.

13 Such Unknown Claims include claims that are the subject of California Civil Code § 1542 and

14 equivalent, similar or comparable laws or principles of law. California Civil Code§ 1542 provides:

15 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR

16 DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF

17 EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HA VE

18 MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

19 Preliminary Approval Order, Notice Order and Settlement Hearing

20 2. Reasonable Best Efforts to Effectuate this Settlement. The Settling Parties: (a)

21 acknowledge that it is their intent to consummate this Settlement Agreement; and (b) agree to

22 cooperate to the extent reasonably necessary to effectuate and implement the tenns and conditions of

23 this Settlement Agreement and to exercise their reasonable best efforts to accomplish the tenns and

24 conditions of this Settlement Agreement.

25 3. Motion for Preliminary Approval. At a time to be determined by Class Counsel, Class

26 Cowisel shall submit thls Settlement Agreement to the Court and shall apply for entry of a Preliminary

27 Approval Order, requesting, inter alia, preliminary approval of the Settlement. The motion shall

28



include (a) the proposed Preliminary Approval Order, and (b) a definition of the proposed settlement

2 class pursuant to Federal Rule of Civil Procedure 23.

3 4. Proposed Notice. At a time to be determined in their sole discretion, Class Counsel shall

4 submit to the Court for approval a proposed fonn of, method for and schedule for dissemination of

5 notice to the Class. To the extent practicable and to the extent consistent with this paragraph, Class

6 Counsel may seek to coordinate this notice program with other settlements that may be reached in

7 the Action to reduce the expense of notice. This motion shall recite and ask the Court to find that the

8 proposed fonn of and method for dissemination of the notice to the Class constitutes valid, due and

9 sufficient notice to the Class, constitutes the best notice practicable under the circumstances, and

10 complies fully with the requirements of Federal Rule of Civil Procedure 23.

11 5. Claims Administrator. Indirect Purchaser Plaintiffs shall retain a Claims Administrator,

12 which shall be responsible for the claims administration process including distribution to Class

13 Members pursuant to a court-approved plan of distribution. The fees and expenses of the Claims

14 Administrator shall be paid exclusively out of the Settlement Fund. In no event shall the HDK

15 Defendants or any Releasee be separately responsible for any fees or expenses of the Claims

16 Administrator.

17 6. Motion for Final Approval and Entry of Final Judgment. Prior to the date set by the

18 Court to consider whether this Settlement should be finally approved, Class Counsel shall submit a

19 motion for final approval of the Settlement by the Court. The Settling Parties shall jointly seek entry

20 of the Final Approval Order and Judgment:

21 (a) certifying the Class, as defined in this Settlement Agreement, pursuant to Federal Rule of

22 Civil Procedure 23, solely for purposes of this Settlement;

23 (b) fully and finally approving the Settlement contemplated by this Settlement Agreement and

24 its tenns as being fair, reasonable and adequate within the meaning of Federal Rule of Civil Procedure

25 23 and directing its consummation pursuant to its terms and conditions;

26 (c) finding that the notice given to the Class Members constituted the best notice practicable

27 under the circumstances and complies in all respects with the requirements of Federal Rule of Civil

28 Procedure 23 and due process;

Settlement Agreement; Case No. 3:1S-cv-03820-JD -9-


1 (d) directing that the Actions be dismissed with prejudice as to the HOK Defendants and,

2 except as provided for herein, without costs;

3 ( e) discharging and releasing the Releasees from all Released Claims;

4 (f) pennanently barring and enjoining the institution and prosecution, by Indirect Purchaser

5 Plaintiffs and Class Members, of any other action against the Releasees in any court asserting any

6 claims related in any way to the Released Claims;

7 (g) reserving continuing and exclusive jurisdiction over the Settlement, including all future

8 proceedings concerning the administration, consummation and enforcement of this Settlement

9 Agreement;

10 (h) determining pursuant to Federal Rule of Civil Procedure 54(b) that there is no just reason

11 for delay and directing entry of a final judgment as to the HOK Defendants; and

12 (i) containing such other and further provisions consistent with the tenns of this Settlement

13 Agreement to which the parties expressly consent in writing.

14 7. At least seven (7) business days prior to the filing of any motions or other papers in

15 connection with this Settlement~ including without limitation, the Preliminary Approval Motion and

16 the Motion for Final Approval of the Settlement, Class Counsel will send working drafts of these

17 papers to counsel for the HDK Defendants. The text of any proposed fonn of order preliminarily or

18 finally approving the Settlement shall be agreed upon by Plaintiffs and the HDK Defendants before

19 it is submitted to the Court and shall be consistent with the tenns .of this Settlement Agreement and

20 the Class definitions set forth herein.

21 8. Stay Order. Upon the Execution Date, the Action shall be stayed as against the HOK

22 Defendants only. Should the Action be tried against any Defendants other than the HOK Defendants,

23 the parties specifically agree that any findings therein shall not be binding on or admissible in

24 evidence against the HDK Defendants or any other Releasee or prejudice any Releasee in any way in

25 any future proceeding involving any Releasee.

26 9. Upon the date that the Court enters an order preliminarily approving the Settlement,

27 Indirect Purchaser Plaintiffs and members of the Class shall be barred and enjoined from

28 commencing, instituting or continuing to prosecute any action or any proceeding in any court of law



1 or equity, arbitration tribunal, administrative forum or other forum of any kind worldwide based on

2 the Released Claims. Nothing in this provision shall prohibit the Indirect Purchaser Plaintiffs or Class

3 Counsel from continuing to participate in discovery in the Actions that is initiated by other plaintiffs

4 or that is subject to and consistent with the cooperation provisions set forth in 1~ 32-35.

5 Releases

6 10. Released Claims. Upon the Effective Date, the Releasors (regardless of whether any such

7 Releasor ever seeks or obtains any recovery by any means, including, without limitation, by

8 submitting a Proof of Claim and Release, any distribution from the Gross Settlement Fund) by virtue

9 of this Settlement Agreement shall be deemed to have, and by operation of the Judgment shall have

10 fully, finally and forever released, relinquished and discharged all Released Claims against the

11 Releasees.

12 11. No Future Actions Following Release. The Releasers shall not, after the Effective Date,

13 seek (directly or indirectly) to commence, institute, maintain or prosecute any suit, action or

14 complaint or collect from or proceed against the HOK Defendants or any other Releasee (including

15 pursuant to the Actions) based on the Released Claims in any forwn worldwide, whether on his, her,

16 or its own behalf or as part of any putative, purported or certified class of purchasers or consumers.

17 12. Covenant Not to Sue. Releasers hereby covenant not to sue the Releasees with respect to

18 any such Released Claims. Releasors shall be permanently barred and · enjoined from instituting,

19 commencing or prosecuting against the Releasees any claims based in whole or in part on the

20 Released Claims. The Settling Parties contemplate and agree that this Settlement Agreement may be

21 pleaded as a bar to a lawsuit. and an injunction may be obtained> preventing any action from being

22 initiated or maintained in any case sought to be prosecuted on behalf of Indirect Purchaser Plaintiffs

23 with respect to the Released Claims.

24 13. Waiver of California Civil Code§ 1542 and Similar Laws. The Releasors acknowledge

25 that, by virtue of the execution of this Settlement Agreement, and for the consideration received

26 hereunder, it is their intention to release, and they are releasing, all Released Claims, even Unknown

27 Claims. In furtherance of this intention, the Releasors expressly waive and relinquish, to the fullest

28 extent permitted by law, any rights or benefits conferred by the provisions of California Civil Code

Settlement Agreement; Case No. 3:15-cv-03820-JD -11~


1 § 1542, as set forth in ,r l(ee), or equivalent, similar or comparable laws or principles of law. The

2 Re1easors acknowledge that they have been advised by Class Counsel of the contents and effects of

3 California Civil Code § 1542, and hereby expressly waive and release with respect to the Released

4 Claims any and all provisions, rights and benefits conferred by California Civil Code § 1542 or by

5 any equivalent, similar or comparable law or principle of law in any jurisdiction. The Releasors may

6 hereafter discover facts other than or different from those which they know or believe to be true with

7 respect to the subject matter of the Released Claims, but the Releasors hereby expressly waive and

8 fully, finally and forever settle and release any known or unknown, suspected or unsuspected,

9 foreseen or unforeseen, asserted or wiasserted, contingent or non-contingent, and accrued or

10 unaccrued claim, loss or damage with respect to the Released Claims, whether or not concealed or

11 hidden, without regard to the subsequent discovery or existence of such additional or different facts.

12 The release of unknown, unanticipated, unsuspected, unforeseen, and unaccrued losses or claims in

13 this paragraph is not a mere recital.

14 14. Claims Excluded from Release. Notwithstanding the foregoing, the releases provided

15 herein shall not release claims against the HDK Defendants for product liability, breach of contract,

16 breach of warranty or personal injury, or any other claim unrelated to the al legations in the Actions

17 of restraint of competition or Wtfair competition with respect to Linear Resistors. Additionally, the

18 releases provided herein shall not release any claims to enforce the terms of this Settlement

19 Agreement.

20 Settlement Fund and lniunctive Relief

21 15. Settlement Payment. The HD K Defendants shall pay by wire transfer the Settlement

22 Amount to the Escrow Agent pursuant to escrow instructions within fifteen (15) business days after

23 the Execution Date. This amowit constitutes the total amount of payment that the HDK Defendants

24 are required to make in connection with this Settlement Agreement. This amount shall not be subject

25 to reduction, and upon the occunence of the Effective Date, no funds shall revert to the HDK

26 Defendants except as provided herein. The Escrow Agent shall only act in accordance with the

27 mutually agreed escrow instructions. Subject to the provisions hereof, and in full, complete, and final

28 settlement of the Actions as provided herein, HDK further agrees that it will not engage in conduct



1 that constitutes a per se violation of Section 1 of the Sherman Act (whether characterized as price

2 fixing, market allocation, bid rigging, or otherwise) with respect to the sale of Linear Resistors for a

3 period of twelve (12) months from the date of the entry of the final judgments.

4 16. Disbursements Prior to Effective Date. No amount may be disbursed from the Gross

5 Settlement Fwid wiless and until the Effective Date, except that: (a) actual Notice, Administrative

6 and Claims Administration Costs, which shall be allocated pro rata from the Settlement Funds of all

7 other settling Defendants and in any event may not exceed $200,000 may be paid from the Gross

8 Settlement Fwid as they become due; (b) Taxes and Tax Expenses (as defined in ,i 20 below) may be

9 paid from the Gross Settlement Fund as they become due, and (c) attorneys' fees and reimbursement

10 of litigation costs may be paid as ordered by the Court, which may be disbursed during the pendency

11 of any appeals, which may be taken from the judgment to be entered by the Court finally approving

12 this Settlement.

13 17. Refund by Escrow Agent. If the Settlement as described herein is not finally approved by

14 any court, or it is terminated as provided herein, or the Judgment is overturned on appeal or by writ,

15 the Gross Settlement Fund, including the Settlement Amount and all interest earned on the Settlement

16 Amount while held in escrow, excluding only Notice, Administrative and Claims Administration

17 Costs and Taxes and/or Tax Expenses (as defined in below), shall be refunded, reimbursed and repaid

18 by the Escrow Agent to the HOK Defendants within five (5) business days after receiving notice

19 pursuant to ,J 43 below.

20 18. Refund by Class Counsel. If the Settlement as described herein is not finally approved by

21 any court, or it is terminated as provided herein, or the Judgment as described herein is not approved

22 or entered or is overturned on appeal or by writ, any attorneys' fees and costs previously paid pursuant

23 to this Settlement Agreement (as well as interest on such amounts) shall be refunded, reimbursed and

24 repaid by Class Counsel to the HDK Defendants within thirty (30) calendar days after receiving notice

25 pursuant to ,i 43 below.

26 19. No Additional Payments by the HDK Defendants. Under no circwnstances will the HOK

27 Defendants be required to pay more or less than the Settlement Amount pursuant to this Settlement

28 Agreement and the Settlement set forth herein. For pmposes of clarification, the payment of any Fee

Settlement Agreement; Case No. 3:1S-cv-03820.JD


and Expen~e A ward (as defined in~ 29 below), the Notice, Administrative and Claims Administrative

2 Costs, and any other costs associated with the implementation of this Settlement Agreement shall be

3 exclusively paid from the Settlement Amount.

4 20. Taxes. The Settling Parties and the Escrow Agent agree to treat the Gross Settlement Fund

5 as being at all times a "qualified settlement fund" within the meaning of Treas. Reg. § l .46SB-l. The

6 Escrow Agent shall timely make such elections as necessary or advisable to carry out the provisions

7 of this paragraph, including the "relation-back election., (as defined in Treas. Reg. § 1.468B-l) back

8 to the earliest permitted date. Such elections shall be made in compliance with the procedures and

9 requirements contained in such regulations. It shall be the responsibility of the Escrow Agent to

10 prepare and deliver timely and properly the necessary documentation for signature by all necessary

11 parties, and thereafter to cause the appropriate filing to occur.

12 (a) For the purpose of §468B of the Internal Revenue Code of 1986, as amended, and the

13 regulations promulgated thereunder, the "administrator" shall be the Escrow Agent. The Escrow

14 Agent shall satisfy the administrative requirements imposed by Treas. Reg. §l.468B-2 by, e.g., (i)

15 obtaining a tax.payer identification number, (ii) satisfying any information reporting or withholding

16 requirements imposed on distributions from the Gross Settlement Fund, and (iii) timely and properly

I 7 filing applicable federal, state and local tax returns necessary or advisable with respect to the Gross

18 Settlement Fund (including, without limitation, the returns described in Treas. Reg. § I .468B-2(k))

t 9 and paying any tax.es reported thereon. Such returns (as well as the election described in this

20 paragraph) shall be consistent with the provisions of this paragraph and in all events shall reflect that

21 all Taxes as defined in ,i 20(b) below on the income earned by the Gross Settlement Fund shall be

22 paid out of the Gross Settlement Fund as provided in 20(b) hereof;

23 (b) The following shall be paid out of the Gross Settlement Fund: (i) all taxes (including any

24 estimated taxes, interest or penalties) arising with respect to the income earned by the Gross

25 Settlement FW1d, including, without limitation, any taxes or tax detriments that may be imposed upon

26 the HDK Defendants or their counsel with respect to any income earned by the Gross Settlement

27 Fund for any period during which the Gross Settlement Fund does not qualify as a "qualified

28 settlement fund" for federal or state income tax purposes (collectively, "Taxes"); and (ii) all expenses

Settlement Agreement; Case No. 3:15~cv-03820-JD -14-


1 and costs incurred in connection with the operation and implementation of this paragraph, including,

2 without limitation, expenses of tax attorneys and/or accountants and mailing and distribution costs

3 and expenses relating to filing (or failing to file) the returns described in this paragraph (collectively,

4 "Tax Expenses"). In all events neither the HDK Defendants nor their counsel shall have any liability

5 or responsibility for the Taxes or the Tax Expenses. With funds from the Gross Settlement Fund, the

6 Escrow Agent shall indemnify and hold harmless the HDK Defendants and their counsel for Taxes

7 and Tax Expenses (including, without limitation, Taxes payable by reason of any such

8 indemnification). Further, Taxes and Tax Expenses shall be treated as, and considered to be, a cost

9 of administration of the Gross Settlement Fund and shall timely be paid by the Escrow Agent out of

10 the Gross Settlement Fund without prior order from the Court and the Escrow Agent shall be obligated

11 (notwithstanding anything herein to the contrary) to withhold from distribution to Authorized

12 Claimants any funds necessary to pay such amounts, including the establishment of adequate reserves

13 for any Taxes and Tax Expenses (as well as any amounts that may be required to be withheld under

14 Treas. Reg.§ 1.468B-2(1)(2)); neither the HOK Defendants nor their counsel are responsible therefor,

15 nor shall they have any liability therefor. The Settling Parties agree to cooperate with the Escrow

I 6 Agent, each other, their tax attorneys and their accountants to the extent reasonably necessary to carry

17 out the provisions of this paragraph.

18 Admioistration and Distribution of Gross Settlement Fund

19 21. Time to Appeal. The time to appeal from an approval of the Settlement shall commence

20 upon the Court's entry of the Judgment regardless of whether or not either the Distribution Plan or

21 an application for attorneys' fees and expenses has been submitted to the Court or resolved.

22 22. Distribution of Gross Settlement Fund. Upon further orders of the Court, the Notice and

23 Claims Administrator, subject to such supervision and direction of the Court and/or Class Counsel as

24 may be necessary or as circwnstances may require, shall administer the claims submitted by members

25 of the Class and shall oversee distribution of the Gross Settlement Fund to Authorized Claimants

26 pursuant to the Distribution Plan. Subject to the terms of this Settlement Agreement and any order(s)

27 of the Court, the Gross Settlement Fund shall be applied as follows:

28

Settlement Agreement; Case No. 3:15•cv-03820-JD -15-


1 (a) To pay all costs and expenses reasonably and actually incurred in connection providing

2 notice to the Class in connection with administering and distributing the Net Settlement Fund to

3 Authorized Claimants, and in coMection with paying escrow fees and costs, if any;

4 (b) To pay all costs and expenses, if any, reasonably and actually incurred in accepting claims

5 and assisting with the filing and processing of such claims;

6 (c) To pay the Taxes and Tax Expenses as defined herein;

7 (d) To pay any Attorney Fee and Expense Award that is allowed by the Court, subject to and

8 in accordance with this Settlement Agreement; and

9 (e) To distribute the balance of the "Net Settlement Fund" to Authorized Claimants as

IO allowed by the Agreement, any Distribution Plan or order of the Court.

11 23. Distribution of Net Settlement Fund. The Net Settlement Fund shall be distributed in

12 accordance with the Distribution Plan that is approved by the Court.

13 24. All Persons who fall within the definition of the Class who do not timely and validly

14 request to be excluded from the Class shall be subject to and bound by the provisions of this

15 Settlement Agreement, the releases contained herein, and the Judgment with respect to all Released

16 Claims, regardless of whether such Persons seek or obtain by any means, including, without

17 limitation, by submitting a Proof of Claim and Release or any similar document, any distribution

18 from the Gross Settlement Fund or the Net Settlement Fund.

19 25. No Liability for Distribution of Settlement Funds. Neither the Releasees nor their counsel

20 shall have any responsibility for, interest in or liability whatsoever with respect to the distribution of

21 the Gross Settlement Fund; the Distribution Plan; the allocation of the Settlement Amount between

22 claimants with qualifying purchases of Linear Resistors; the determination, administration, or

23 calculation of claims; the Settlement Fund's qualification as a "qualified settlement fund"; the

24 payment or withholding of Taxes or Tax Expenses; the distribution of the Net Settlement Fund; or

25 any losses incurred in connection with any such matters. The Releasors hereby fully, finally and

26 forever release, relinquish and discharge the Releasees and their counsel from any and all such

27 liability. No Person shall have any claim against Class Counsel or the Notice and Claims

28

Settlement Agreement; Case No. 3:15-cv-03820-JD .. J6-


Administrator based on the distributions made substantially in accordance with the this Settlement

2 Agreement, the Distribution Plan or further orders of the Court.

3 26. Balance Remaining in Net Settlement Fund. If there is any balance remaining in the Net

4 Settlement Fund (whether by reason of tax refunds, uncashed checks or otherwise), Class Counsel

5 may reallocate such balance among Authorized Claimants in an equitable and economic fashion,

6 distribute the remaining funds through cy pres, or allow the money to escheat to federal or state

7 governments, subject to Court approval, In no event shall the Net Settlement Fund revert to the HDK

8 Defendants.

9 27. Distribution Plan Not Part of Settlement. It is understood and agreed by the Settling

10 Parties that any Distribution Plan, including any adjustments to any Authorized Claimant's claim, is

11 not a part of this Settlement Agreement and is to be considered by the Court separately from the

12 Court's consideration of the fairness, reasonableness and adequacy of the Settlement set forth in this

13 Settlement Agreement, and any order or proceedings relating to the Distribution Plan shall not operate

14 to terminate or cancel this Settlement Agreement or affect the finality of the Judgment, the Final

15 Approval Order, or any other orders entered pursuant to this Settlement Agreement. The time to

16 appeal from an approval of the Settlement shall commence upon the Court's entry of the Judgment

17 regardless of whether either the Distribution Plan or an application for attorneys' fees and ex:penses

18 has been submitted to the Court or approved.

19 Attorneys' Fees and Reimbursement of Expenses

20 28. Fee and Expense Application. Class Counsel may submit an application or applications

21 (the "Fee and Expense Application") for distributions from the Gross Settlement Fund, for: (a) an

22 award of attorneys' fees; plus (b) reimbursement of expenses incurred in connection with prosecuting

23 the Actions; plus (c) any interest on such attorneys' fees and expenses (until paid) at the same rate

24 and for the same periods as earned by the Settlement Fund, as appropriate, and as may be awarded

25 by the Court.

26 29. Payment of Fee and Expense Award. Any amounts that are awarded by the Court

27 pursuant to the above paragraph (the "Fee and Expense Award") shall be paid from the Gross

28 Settlement Fund consistent with the provisions of this Settlement Agreement.



30. Award of Fees and Expenses Not Part of Settlement. The procedure for, and the

2 allowance or disallowance by the Court of, the Fee and Expense Application are not part of the

3 Settlement set forth in this Settlement Agreement, and are to be considered by the Court separately

4 from the Court's consideration of the fairness, reasonableness and adequacy of the Settlement set

5 forth in this Settlement Agreement. Any order or proceeding relating to the Fee and Expense

6 Application, or any appeal from any Fee and Expense Award or any other order relating thereto or

7 reversal or modification thereof, shall not operate to terminate or cancel this Settlement Agreement,

8 or affect or delay the finality of the Judgment and the Settlement of the Actions as set forth herein.

9 No order of the Court or modification or reversal on appeal of any order of the Court concerning any

10 Fee and Expense Award or Distribution Plan shall constitute grounds for cancellation or termination

11 of this Settlement Agreement.

12 31. No Liability for Fees and Expenses of Class Counsel. The Releasees shall have no

13 responsibility for, and no liability whatsoever with respect to, any payment(s) to Class Counsel

14 pursuant to this Settlement Agreement and/or to any other Person who may assert some claim thereto

15 or any Fee and Expense Award that the Court may make in the Actions, other than as set forth in this

16 Settlement Agreement.

17 Cooperation

18 32. Cooperation as Consideration. In return for the Release and Discharge provided herein,

19 the HDK Defendants agree to pay the Settlement Amount and agree to provide cooperation to Indirect

20 Purchaser Plaintiffs as set forth specifically below.

21 33. Attorney Proffer. Within thirty (30) business days after preliminary approval by the Court

22 of this Settlement Agreement ("Preliminary Approval") or such time as mutually agreed by the

23 Settling Parties, counsel for the HDK Defendants shaJl provide Class Counsel with an oral proffer of

24 facts known to them from their internal investigation into the allegations at issue in this Action,

25 including meetings or communications between competitors in the Linear Resistors industry. Should

26 the attorney proffer required by this paragraph not occur within the 30 business days after Preliminary

27 Approval, Indirect Purchaser Plaintiffs do not waive their right to an attorney proffer provided the

28 proffer occurs within six (6) months of the Preliminary Approval.



l 34. Cooperation Subject to and Consistent witli Prior Obligations. The HDK Defendants

2 and the Indirect Purchaser Plaintiffs shall not be obligated to provide cooperation that would violate

3 an applicable court order, any joint defense or common interest agreement or privilege, or the HOK

4 Defendants' commitments to the United States Department of Justice or any other domestic or foreign

5 governmental entity. Additionally, Indirect Purchaser Plaintiffs and the HOK Defendants will take

6 reasonable efforts to accommodate the other's efforts to minimize duplication in the providing of any

7 cooperation.

8 35. Further Cooperation. The Settling Parties agree to the following, except that all

9 cooperation obligations by the HOK Defendants shall cease if Indirect Purchaser Plaintiffs cease to

10 be a party in the Actions against aU other Defendants.

11 {a) The HDK Defendants will produce ordinary course of business documents that either has

12 provided to the U.S. and foreign law enforcement authorities, including English translations of such

13 documents to the extent they exist, concerning Linear Resistors within fifteen ( 15) business days after

14 preliminary approval by the Court of this Settlement Agreement.

15 (b) If the HD K Defendants produce any declarations, documents, data, or other responses to

16 discovery to any other plaintiff in the Actions, they will produce the same to Indirect Purchaser

17 Plaintiffs.

18 (c) The Settling Parties shall cooperate in good faith to authenticate by declaration or affidavit,

19 a reasonable number of documents produced by the HDK Defendants in the Action, without the need

20 to issue any subpoenas, letters rogatory, letters of request, or formal discovery requests. Plaintiffs

21 shall provide the HOK Defendants with a list of production numbers and copies of the documents for

22 which authentication is requested no less than 15 business days prior to the requested date for

23 completion.

24 (d) The HDK Defendants will use their best efforts to, at Plaintiffs' election, either have no

25 more than two employees (i) provide a declaration, or (ii) make themselves available for trial

26 testimony through a deposition that shall occur within the fact discovery period in the litigation, or

27 as otherwise agreed by the Settling Parties or the other parties to the litigation. If mutually agreed,

28 such depositions may occur via videoconference or teleconference. Such depositions shall not exceed



1 seven (7) hours in length unless an interpreter is used, in which event the examination time shall not

2 exceed twelve (12) hours. Plaintiff will reimburse the HDK Defendants for reasonable business class

3 airfare, a per diem of $ I 00 for food and incidentals, and up to three (3) nights of reasonable hotel

4 expenses (not to exceed $400 per night) for each witness who is made available for deposition

5 testimony in the United States. Plaintiffs shall provide the HDK Defendants with no less than 30

6 days' notice prior to the requested date of any such deposition. Barring unforeseen circumstances,

7 the Indirect Purchaser Plaintiffs agree to take these depositions, if at all, in the last two weeks of the

8 fact discovery period or any extension thereof.

9 (e) The HDK Defendants agree Indirect Purchaser Plaintiffs may ask questions at depositions

10 of any HD K De fend ants witnesses noticed by other plaintiffs in the litigation.

11 (f) The HDK Defendants agree that they will respond in writing to reasonable requests for

12 clarification of the transactional, production and cost data that each respectively produced in the

13 Actions, and will provide an overview of the methods the HD K Defendants generally used in pricing

14 the Linear Resistors they sold in the United States during the relevant period.

15 (g) Indirect Purchaser Plaintiffs agree to withdraw all outstanding discovery served on the

16 HD K Defendants and neither the HDK Defendants nor Indirect Purchaser Plaintiffs shall file motions

17 against the other during the pendency of the Agreement except to enforce the tenns of this Settlement

18 Agreement.

19 36. Other Discovery. Upon the Execution Date, neither the HDK Defendants nor the Indirect

20 Purchaser Plaintiffs shall file motions against the other or initiate or participate in any discovery,

21 motion or proceeding directly adverse to the other in connection with the Action, except as

22 specifically provided for herein. The HDK Defendants and the Indirect Purchaser Plaintiffs shall not

23 be obligated to respond or supplement prior responses to formal discovery that has been previously

24 propounded by the other in the Action.

25 3 7. Resolution of Disputes. To the extent the Settling Parties disagree about the interpretation

26 or enforcement of any terms of this Settlement Agreement relating to future cooperation by the HOK

27 Defendants, or about the triggering of the threshold specified in the Confidential Termination

28

Settlement Agreement; Case No. 3:IS-cv-03820-JD -20-


1 Agreement referenced in ,J40(b ), they agree to submit such disputes for binding resolution by Gerald

2 Saltarelli in Chicago, Illinois, or another mutually agreed neutral.

3 Conditions of Settlement, Effect of Disapproval, Cancellation or Termination

4 38. Occurrence of Effective Date. Upon the occurrence of all of the events required to trigger

5 the Effective Date as defined in ,r 1 (m), any and all remaining interest or right of the HOK Defendants

6 in or to the Gross Settlement Fund, if any, shall be absolutely and forever extinguished, and the Gross

7 Settlement Fund (less any Notice and Administrative Costs, Taxes or Tax Expenses or any Fee and

8 Expense Award paid) shall be transferred from the Escrow Agent to the Notice and Claims

9 Administrator as successor Escrow Agent within ten (10) days after the Effective Date,

10 39. Failure of Effective Date to Occur. If, for whatever reason, the Effective Date does not

11 occur or is not met, then this Settlement Agreement shall be cancelled and terminated, subject to and

12 in accordance with ,r 43, below, unless the Settling Parties mutually agree in writing to proceed with

13 this Settlement Agreement.

14

15

40. Exclusions.

a. Any Class Member that wishes to seek exclusion from the Settlement Class by ''opting out"

16 must timely submit a written request for exclusion to the Claims Administrator. Class Counsel shall

17 cause copies of requests for exclusion from the Class to be provided to the HDK Defendants' counsel.

18 No later than fourteen (14) days after the final date for mailing requests for exclusion, Class Counsel

19 shall provide the HDK Defendants' counsel with a complete and final list of opt~outs. With the motion

20 for final approval of the Settlement, Class Counsel will file with the Court a complete list of requests

21 for exclusion from the Class, including only the name, city and state of the person or entity requesting

22 exclusion.

23 b. The HOK Defendants shall have the option to rescind and terminate this Settlement

24 Agreement in its entirety and without liability of any kind if based on available data, the aggregate

25 purchases of Linear Resistors purchased from distributors by Class Members that opt 9ut pursuant to

26 Paragraph 40(a) of this Settlement Agreement exceeds a threshold agreed to by Indirect Purchaser

27 Plaintiffs and the HOK Defendants in the Confidential Termination Agreement that has been

28 executed separately by Indirect Purchaser Plaintiffs and the HOK Defendants. The HDK Defendants



1 shall exercise this option to rescind and tenninate this Settlement Agreement by providing ten (10)

2 business days written notice to Class Counsel. Upon such rescission and tennination, Indirect

3 Purchaser Plaintiffs and the HDK Defendants will notify the Court immediately and withdraw all

4 pending motions filed to effectuate this Settlement. Indirect Purchaser Plaintiffs and the HDK

5 Defendants will also, as may be required by the Court, submit the Confidential Tennination

6 Agreement to the Court for in-camera review. In the event that the HDK Defendants exercises its

7 option to rescind and terminate this Settlement Agreement: (i) this Settlement Agreement shall be

8 null and void as to the HDK Defendants, and shall have no force or effect and shall be without

9 prejudice to the rights and contentions of Releasees and Releasors in this or any other litigation; (ii)

10 the Gross Settlement fund shall be refunded promptly to the HDK Defendants, minus such payment

11 (as set forth in this Settlement Agreement) of Notice and Administrative Costs and Truces and Tax

12 Expenses, consistent with the provisions of~~ 16 and 20.

13 41. Objections. Settlement Class Members who wish to object to any aspect of the Settlement

14 must file with the Court a written statement containing their objection by end of the period to object

15 to the Settlement. Any award or payment of attorneys' fees made to counsel to an objector to the

16 Settlement shall only be made by Court order and upon a showing of the benefit conferred to the

17 class. In determining any such award of attorneys' fees to an objector's counsel, the Court will

18 consider the incremental value to the Class caused by any such objection. Any award of attorneys'

19 fees by the Court will be conditioned on the objector and his or her attorney stating under penalty of

20 perjury that no payments shall be made to the objector based on the objector's participation in the

21 matter - other than as ordered by the Court.

22 42. Failure to Enter Proposed Preliminary Approval Order, Final Approval Order or

23 Judgment If the Court does not enter the Preliminary Approval Order, the Final Approval Order or

24 the Judgment, or if the Court enters the Final Approval Order and the Judgment and appellate review

25 is sought and, on such review, the Final Approval Order or the Judgment is finally vacated, modified

26 or reversed, then this Settlement Agreement and the Settlement incorporated therein shall be

27 cancelled and tenninated; provided, however, the Settling Parties agree to act in good faith to secure

28 Final Approval of this Settlement and to attempt to address in good faith concerns regarding the



1 Settlement identified by the Court and any court of appeal. No Settling Party shall have any obligation

2 whatsoever to proceed under any terms other than substantially in the form provided and agreed to

3 herein; provided, however, that no order of the Court concerning any Fee and Expense Application

4 or Distribution Plan, or any modification or reversal on appeal of such order, shall constitute grounds

5 for cancellation or termination of this Settlement Agreement by any Settling Party. Without limiting

6 the foregoing, the HDK Defendants shall have, in its sole and absolute discretion, the option to

7 terminate the Settlement in its entirety in the event that the Judgment, upon becoming Final, does not

8 provide for the dismissal with prejudice of all of the Actions against them and complete release of

9 Released Claims against all Releasees.

10 43. Termination. Unless otherwise ordered by the Court, in the event that the Effective Date

11 does not occur or this Settlement Agreement should terminate, or be cancelled or otherwise fail to

12 become effective for any reason, the Settlement as described herein is not finally approved by the

13 Court, or the Judgment is reversed or vacated following any appeal taken therefrom, then:

14 (a) within five (5) business days after written notification of such event is sent by counsel for

15 the HDK Defendants to the Escrow Agent, the Gross Settlement Fund, including the Settlement

16 Amount and all interest earned on the Settlement Fund while held in escrow excluding only Notice

17 Administrative and Class Administration Costs that have either been properly disbursed or are due

18 and owing, Taxes and Tax Expenses that have been paid or that have accrued and will be payable at

19 some later date, and attorneys' fees and costs that have been disbursed pursuant to Court order will

20 be refunded, reimbursed and repaid by the Escrow Agent to the HDK Defendants; if said amount or

21 any portion thereof is not returned within such five (5) day period, then interest shall accrue thereon

22 at the rate of ten percent (10%) per annum until the date that said amount is returned;

23 (b) within thirty (30) business days after written notification of such event is sent by Counsel

24 for the HDK Defendants to Class Counsel, all attorneys' fees and costs which have been disbursed to

25 Class Counsel pursuant to Court order shall be refunded, reimbursed and repaid by Class Counsel to

26 the HDK Defendants;

27 (c) the Escrow Agent or its designee shall apply for any tax refund owed to the Gross

28 Settlement Fund and pay the proceeds to the HDK Defendants, after deduction of any fees or expenses

Settlement Agreement; Case No, 3:15-cv-03820-JD -23-


I reasonably incurred in connection with such application(s) for refund, pursuant to such written

2 request;

3 (d) the Settling Parties shall be restored to their respective positions in the Actions as of the

4 Execution Date, with all of their respective claims and defenses, preserved as they existed on that

5 date;

6 (e) the tenns and provisions of this Settlement Agreement, with the exception of~~ 43-46

7 (which shall continue in full force and effect), shall be null and void and shall have no further force

8 or effect with respect to the Settling Parties, and neither the existence nor the tenns of this Settlement

9 Agreement (nor any negotiations preceding this Settlement Agreement nor any acts performed

10 pursuant to, or in furtherance of, this Settlement Agreement) shall be used in the Actions or in any

11 other action or proceeding for any purpose ( other than to enforce the tenns remaining in effect); and

12 (t) any judgment or order entered by the Cowt in accordance with the tenns of this Settlement

13 Agreement shall be treated as vacated, nunc pro tune.

14 No Admission of Liability

15 44. Final and Complete Resolution. The Settling Parties intend the Settlement as described

16 herein to be a final and complete resolution of all disputes between them with respect to the Actions

17 and Released Claims and to compromise claims that are contested, and it shall not be deemed an

18 admission by any Settling Party as to the merits of any claim or defense or any allegation made in the

19 Actions.

20 45. Federal Rule of E1Jidence 408. The Settling Parties agree that this Settlement Agreement,

21 its tenns and the negotiations surrounding this Settlement Agreement shall be governed by Federal

22 Rule of Evidence 408 and shall not be admissible or offered or received into evidence in any suit,

23 action or other proceeding, except upon the wr_itten agreement of the Settling Parties hereto, pursuant

24 to an order of a court of competent jurisdiction, or as shall be necessary to give effect to, declare or

25 enforce the rights of the Settling Parties with respect to any provision of this Settlement Agreement.

26 46, Use of Agreement as Evidence. Neither this Settlement Agreement nor the Settlement,

27 nor any act perfonned or document executed pursuant to or in furtherance of this Settlement

28 Agreement or the Settlement: (a) is or may be deemed to be or may be used as an admission of, or

Settlement Agreement; Case No. 3:lS•cv-03820-JD .24.


1 evidence of, the validity of any Released Claims, of any allegation made in the Actions, or of any

2 wrongdoing or liability of the HDK Defendants; or (b) is or may be deemed to be or may be used as

3 an admission of, or evidence of, any liability, fault or omission of the Releasees in any civil, criminal

4 or administrative proceeding in any court, administrative agency or other tribunal. Neither this

5 Settlement Agreement nor the Settlement, nor any act performed or document executed pursuant to

6 or in furtherance of this Settlement Agreement or the Settlement shall be admissible in any proceeding

7 fur any purpose, except to enforce the terms of the Settlement, and except that the Releasees may file

8 this Settlement Agreement and/or the Judgment in any action for any purpose, including, but not

9 limited to, to support a defense or counterclaim based on principles of res judicata, col lateral estoppel,

IO release, good faith settlement, judgment bar or reduction or any other theory of claim preclusion or

11 issue preclusion or similar defense or counterclaim, The limitations described in this paragraph apply

12 whether or not the Court enters the Preliminary Approval Order, the Final Approval Order, or the

13 Judgment, or if the Settlement Agreement is terminated or rescinded.

14 Miscellaneous Provisions

15 47. Voluntary Settlement. The Settling Parties agree that the Settlement Amount and the other

16 terms of the Settlement as described herein were negotiated in good faith by the Settling Parties, and

17 reflect a settlement that was reached voluntarily and after consultation with competent legal counsel.

18 48. Consent to Jurisdiction. The HDK Defendants and each Class Member hereby

19 irrevocably submit to the exclusive jurisdiction of the Court only for the specific purpose of any suit,

20 action, proceeding or dispute arising out of or relating to this Settlement Agreement or the

21 applicability of this Settlement Agreement. Solely·for purposes of such suit, action, or proceeding, to

22 the fullest extent that they may effectively do so under applicable law, the HDK Defendants and the

23 Class Members irrevocably waive and agree not to assert, by way of motion, as a defense or

24 otherwise, any claim or objection that they are not subject to the jurisdiction of the Court or that the

25 Court is in any way an improper venue or an inconvenient forum. Nothing herein shall be construed

26 as a submission to jurisdiction for any purpose other than any suit, action, proceeding, or dispute

27 arising out of or relating to this Settlement Agreement or the applicability of th.is Settlement

28 Agreement.




2 among the HDK Defendants and any Class Members concerning matters contained in this Settlement

3 Agreement and the Confidential Termination Agreement referenced in ,i 40(b) of this Settlement

4 Agreement shall, if they cannot be resolved by negotiation and agreement, be submitted to Gerald

5 Saltarelli. The Court shall retain exclusive jurisdiction over the implementation and enforcement of

6 any decision by Mr. Saltarelli concerning this Settlement Agreement.

7 50. Binding Effect. This Settlement Agreement shall be binding upon, and inure to the benefit

8 of, the successors and assigns of the parties hereto. Without limiting the generality of the foregoing,

9 each and every covenant end agreement herein by Indirect Purchaser Plaintiffs and Class Counsel

10 shall be binding upon all Class Members.

11 51.Authorit.ation to Enter Settlement Agreement. The undersigned representatives of the

12 HDK Defendants represent that they are fully authorized to enter into and to execute this Settlement

13 Agreement on behalf of the HDK Defendants. Class Counsel, on behalf of Indirect Purchaser

14 Plaintiffs and the Class, represent that they are, subject to Court approvaJ, expressly authorized to

15 take aJl action required or permitted to be taken by or on behalf of the Indirect Purchaser Plaintiffs

16 and the Class pursuant to this Settlement Agreement to effectuate its terms and to enter into and

1 7 execute this Settlement Agreement and any modifications or amendments to the Settlement

18 Agreement on behalf of the Class that they deem appropriate.

19 52. Notices. All notices under this Settlement Agreement shall be in writing. Each such notice

20 shall be given either by (a) e-mail; (b) hand delivery; (c) registered or certified mail, return receipt

21 requested, postage pre-paid; ( d) Federal Express or similar overnight courier; or ( e) facsimile and first

22 class mail, postage pre-paid and, if directed to any Class Member, shall be addressed to Class Counsel

23 at their addresses set forth below, and if directed to the HDK Defendants, shall be addressed to their

24 attorneys at the addresses set forth below or such other addresses as Class Counsel or the HDK

25 Defendants may designate, from time to time, by giving notice to all parties hereto in the manner

26 described in this paragraph.

27 If directed to the Indirect Purchaser Plaintiffs, address notice to:

28



1

2

3

4

5

6

7

8

9

IO

11

COTCHETT, PITRE & MCCARTHY Adam J. Zapala ([email protected]) San Francisco Airport Office Center 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: 650-697-6000 Facsimile: 650-697-0577

If directed to the HOK Defendants, address notice to:

BARNES & THORNBURG, LLP Kendall Millard ([email protected]) 11 South Meridian Street Indianapolis, IN 46204-3535 Telephone: (317) 236-1313 Fax: (317) 231-7433

53. Confidentiality of Settlement Negotiations. The terms of this Settlement Agreement ( with

12 the exception of the terms of the Confidential Termination Agreement) shall be considered public as 13 of the Execution Date. Class Counsel shall keep strictly confidential and not disclose to any third

14 party, including specifically any cowisel representing any other current or fonner party to the Action,

15 any non-public information regarding the Settling Parties' negotiation of this settlement and/or the

16 Settlement Agreement. For the sake of clarity, the HOK Defendants may issue a press release

17 regarding execution of the Settlement Agreement and the amount paid in connection with the

18 Settlement Agreement, and otherwise disclose information about the terms of the Settlement

19 Agreement in compliance with applicable securities or other laws, including but not limited to the

20 rules of the Tokyo Stock Exchange.

21 54. Headings. The headings used in this Settlement Agreement are intended for the

22 convenience of the reader only and shall not affect the meaning or interpretation of this Settlement

23 Agreement.

24

25



26 or rule of interpretation or construction that would or might cause any provision to be construed

27 against the drafter hereof.

28

Settlement Agreement; Case No. 3:1S-cv~03820-JD -27-


1 56. Choice of Law. This Settlement Agreement shall be considered to have been negotiated,

2 executed and delivered, and to be wholly performed, in the State of California, and the rights and

3 obligations of the parties to this Settlement Agreement shall be construed and enforced in accordance

4 with, and governed by, the internal, substantive laws of the State of California without giving effect

5 to that State,s choice oflaw principles.

6 57. Amendment,· Waiver. This Settlement Agreement shall not be modified in any respect

7 except by a writing executed by all the parties hereto, and the waiver of any rights conferred hereunder

8 shall be effective only if made by written instrument of the waiving party. The waiver by any party

9 of any breach of this Settlement Agreement shall not be deemed or construed as a waiver of any other

10 breach, whether prior, subsequent or contemporaneous, of this Settlement Agreement.

11 58. Execution in Counterparts. This Settlement Agreement may be executed in one or more

12 counterparts. All executed counterparts and each of them shall be deemed to be one and the same

13 instrument. Counsel for the parties to this Settlement Agreement shall exchange among themselves

14 original signed counterparts and a complete set of executed counterparts shall be filed with the Court,

15 59. Notification of State Officials. The HDK Defendants shall be responsible for providing

16 all notices required by the Class Action Fairness Act to be provided to state attorneys general or to

17 the United States of America.

18 60. Jntegrated Agreement. This Settlement Agreement and the Confidential Termination

19 Agreement constitute the entire agreement between the Settling Parties and no representations,

20 warranties or inducements have been made to any party concerning this Settlement Agreement and

21 the Confidential Termination Agreement other than the representations, warranties and covenants

22 contained and memorialized herein. It is understood by the Settling Parties that, except for the matters

23 expressly represented herein, the facts or law with respect to which this Settlement Agreement and

24 the Confidential Termination Agreement is entered into may tum out to be other than or different

25 from the facts now known to each party or believed by such party to be true; each party therefore

26 expressly assumes the risk of the facts or law turning out to be so different, and agrees that this

27 Settlement Agreement and the Confidential Tennination Agreement shall be in all respects effective

28

Settlement Agreement; Case No. 3: 15-cv-03820-JD -28-


and not subject to termination by reason of any such different facts or law. Except as othe1wise

2 provided herein, each patty shall bear its own costs and attorneys' fees.

3 IN WITNESS WHEREOF, the parties hereto, through their fully authorized representatives,

4 have executed this Settlement Agreement as of the date first herein above written.

5 INDIRECT PURCHASER PLAINTIFFS' CLASS COUNSEL, on behalf of Indirect

6 Purchaser Plaintiffs individually and on beluilf of the Class.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

By: t/4rli2--Adam J. Zapata 2'( _ Elizabeth T. Castillo ·,_ . ____) MarkF. Ram Tamarah P. Prevost COTCHETT, PITRE & MCCARTHY San Francisco Airport Office Center 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: 650-697-6000 Fax:650-697-0577 [email protected] ccastil I o@cp mle gal .com [email protected] [email protected]

DEFENDANTS HOKURIKU ELECTRIC INDUSTRY CO. LTD, AND HDK AMERICA, INC.

By:~ll KendllMillard Bradley R. Love Barnes & Thornburg, LLP 11 South Meridian Street Indio.napolis, IN 46204-3535 Telephone: (J 17) 236-1313 Fax: (317) 231-7433 [email protected] [email protected]

