-FMO Avi Gold v. Brad A Morrice et al, No. 2:2007cv00931 - Document 503 (C.D. Cal. 2010)
Court Description: OFFICER AND DIRECTOR FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE 484 by Judge Dean D. Pregerson: The Global Officer And Director Settlement embodied in the Global Officer And Director Stipulation is hereby finally approved in all respects. The Consolidated Class Action and all claims contained therein aredismissed with prejudice as to the Class Individual Defendants.The Parties are to bear their own costs, except as otherwise provided in the Global Officer And Director Stipulation. (see document for specific details). (lc)
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-FMO Avi Gold v. Brad A Morrice et al Doc. 503 1 2 3 NO JS-6 4 5 6 7 8 9 10 11 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA IN RE NEW CENTURY Case No. CV 07-00931 DDP (FMOx) (Lead Case) 13 14 15 16 OFFICER AND DIRECTOR FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] OFFICER AND DIRECTOR FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) Dockets.Justia.com 1 This matter came before the Court for hearing pursuant to the Order 2 Preliminarily Approving Settlements and Providing for Notice (“Preliminary 3 Approval Order” or “Notice Order”), on the application of Lead Plaintiff New 4 York State Teachers’ Retirement System (“Lead Class Plaintiff”) and Plaintiffs 5 Carl Larson and Charles Hooten (collectively “Class Plaintiffs”) for approval of 6 the settlement between the Class Plaintiffs, on behalf of the Class, and the Class 7 Individual Defendants set forth in the Stipulation Of Global Settlement With New 8 Century Officers And Directors (the “Global Officer And Director Stipulation” or 9 “Global Officer And Director Settlement”). Full and adequate notice having been 10 given to the Class as required in the Court’s Order, and the Court having 11 considered all papers filed and proceedings held herein and otherwise being fully 12 informed in the premises and good cause appearing therefor, 13 NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 14 1. This Judgment incorporates by reference the definitions in the Global 15 Officer And Director Stipulation, and all capitalized terms used, but not defined 16 herein, shall have the same meanings as in the Global Officer And Director 17 Stipulation. 18 2. This Court has jurisdiction over the subject matter of the Consolidated 19 Class Action and over all parties to the Consolidated Class Action, including all 20 members of the Class. 21 3. The Court hereby affirms its certification in the Preliminary Approval 22 Order pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil 23 Procedure, of a Class defined as follows: 24 25 26 27 28 all persons and entities who purchased or otherwise acquired New Century common stock, New Century Series A Preferred Stock, New Century Series B Preferred Stock, and/or New Century call options and/or who sold New Century put options, during the time period from May 5, 2005, through and including March 13, 2007, either in the Offerings, pursuant to a registration statement, or in the market, and who, upon disclosure of certain facts alleged in the Complaint, were injured thereby. Excluded from the Class are (a) Class Defendants; (b) members of the immediate families of the Class Individual Defendants; (c) the subsidiaries and affiliates of Class [PROPOSED] OFFICER AND DIRECTOR FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) 1 1 2 3 4 5 Defendants; (d) any person or entity who was a partner, executive officer, director or controlling person of New Century (including any of its subsidiaries or affiliates) or of any Class Defendant; (e) any entity in which any Class Defendant has a controlling interest; and (f) the legal representatives, heirs, successors and assigns of any such excluded party. Also excluded from the Class are any persons who exclude themselves by filing a request for exclusion in accordance with the requirements set forth in the Notice, as listed on Exhibit 1 annexed hereto. 6 7 4. The Court also affirms its findings in the Preliminary Approval Order 8 that the prerequisites for a class action under Rules 23(a) and (b)(3) of the Federal 9 Rules of Civil Procedure have been satisfied in that: (a) the number of Class 10 Members is so numerous that joinder of all members thereof is impracticable; (b) 11 there are questions of law and fact common to the Class; (c) the claims of Lead 12 Class Plaintiff and Class Plaintiffs Carl Larson and Charles Hooten are typical of 13 the claims of the Class they seek to represent; (d) Class Plaintiffs have fairly and 14 adequately represented the interests of the Class; (e) the questions of law and fact 15 common to the members of the Class predominate over any questions affecting 16 only individual members of the Class; and (f) a class action is superior to other 17 available methods for the fair and efficient adjudication of the controversy. 18 5. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the 19 Court affirms its certification of Class Plaintiffs as the Class representatives and 20 Lead Counsel Bernstein Litowitz Berger & Grossmann LLP as the Class counsel. 21 6. Pursuant to Federal Rule of Civil Procedure 23, this Court hereby 22 approves the Global Officer And Director Settlement set forth in the Global 23 Officer And Director Stipulation and finds that the Global Officer And Director 24 Settlement is, in all respects, fair, reasonable, adequate and entered into in good 25 faith within the meaning of California Code of Civil Procedure § 877. The Court 26 further finds that the Global Officer And Director Settlement set forth in the 27 Global Officer And Director Stipulation is the result of arm’s-length negotiations 28 between experienced counsel representing the interests of the Parties. [PROPOSED] OFFICER AND DIRECTOR FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) 2 1 Accordingly, the Global Officer And Director Settlement embodied in the Global 2 Officer And Director Stipulation is hereby finally approved in all respects. The 3 Parties are hereby directed to perform its terms. 4 7. Pursuant to and in compliance with Rule 23 of the Federal Rules of 5 Civil Procedure, the Court hereby finds that due and adequate notice of these 6 proceedings was directed to all persons and entities who are Class Members, 7 advising them of the Global Officer And Director Settlement, the Plan of 8 Allocation, and Lead Counsel’s intent to apply for attorneys’ fees and 9 reimbursement of Litigation Expenses associated with the Consolidated Class 10 Action, and of their right to object thereto, and a full and fair opportunity was 11 accorded to all persons and entities who are Class Members to be heard with 12 respect to the foregoing matters. Thus, it is hereby determined that all Class 13 Members who did not timely and properly elect to exclude themselves by written 14 communication postmarked or otherwise delivered on or before the date set forth 15 in the Notice and the Preliminary Approval Order, are bound by this Judgment. 16 17 18 19 20 8. The Consolidated Class Action and all claims contained therein are dismissed with prejudice as to the Class Individual Defendants. 9. The Parties are to bear their own costs, except as otherwise provided in the Global Officer And Director Stipulation. 10. Upon the Effective Date, the Settled Claims shall be discharged as 21 against each and every Released Officer And Director and the Insurance Carriers, 22 and Plaintiffs shall be deemed to forever be enjoined from prosecuting any or all 23 of the Settled Claims against each and every Released Officer And Director and 24 the Insurance Carriers. 25 11. Upon the Effective Date, the Settling Individuals’ Claims as against 26 Class Plaintiffs and all other Class Members, the Trust, the Trustee, Alan M. 27 Jacobs individually, the Debtors, the Debtors’ Estates, the Plan Advisory 28 Committee, and Kodiak, and their respective heirs, predecessors, successors, [PROPOSED] OFFICER AND DIRECTOR FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) 3 1 assigns, employees, agents and retained professionals (other than KPMG or the 2 Underwriter Defendants) shall be released, waived, discharged and dismissed, and 3 the Settling Individuals shall be deemed to forever be enjoined from prosecuting 4 each and every of the Settling Individuals’ Claims against Class Plaintiffs and all 5 other Class Members, the Trust, the Trustee, Alan M. Jacobs individually, the 6 Debtors, the Debtors’ Estates, the Plan Advisory Committee, and Kodiak, and 7 their respective heirs, predecessors, successors, assigns, employees, agents and 8 retained professionals. 9 12. Upon the Effective Date, the Settling Individuals shall be deemed to 10 have released, waived, discharged and dismissed each and every Settling 11 Individuals’ Claims against KPMG and the other Released Auditor Parties, and 12 shall forever be enjoined from prosecuting each and every Settling Individuals’ 13 Claim against KPMG and the other Released Auditor Parties. 14 13. Upon the Effective Date, the Settling Individuals shall be deemed to 15 have released, waived, discharged and dismissed each and every claim, and shall 16 forever be enjoined from prosecuting any claim, against any and all of the 17 Underwriter Defendants and the other Released Underwriter Parties whether 18 arising under federal, state, common or foreign law, arising out of or based upon 19 the allegations, transactions, facts, matters or occurrences, representations or 20 omissions involved, set forth, or referred to in the Consolidated Class Action. 21 14. Upon the Effective Date, Kodiak shall be deemed to have released, 22 waived, discharged and dismissed, and shall forever be enjoined from prosecuting 23 each and every of the Settled Kodiak Claims as against KPMG and the other 24 Released Auditor Parties. 25 15. Upon the Effective Date, this Final Judgment And Order Of 26 Dismissal With Prejudice constitutes the final discharge of all obligations to the 27 Plaintiffs of the Settling Individuals arising out of the Officer And Director 28 Litigations. All future claims for contribution arising out of the Officer And [PROPOSED] OFFICER AND DIRECTOR FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) 4 1 Director Litigations by any person or entity against the Settling Individuals or by 2 any Settling Individual against any other person or entity, other than a person 3 whose liability for the Claims asserted in the Director And Officer Litigations has 4 been extinguished by the Settlement of those Claims by that Settling Individual, 5 are barred pursuant to 15 U.S.C. § 78u-4(f)(7)(A). 6 16. The distribution of the Notice and the publication of the Summary 7 Notice as provided for in the Preliminary Approval Order constituted the best 8 notice practicable under the circumstances, including individual notice to all 9 members of the Class who could be identified through reasonable effort. Said 10 notice provided the best notice practicable under the circumstances of those 11 proceedings and of the matters set forth therein, including the proposed Global 12 Officer And Director Settlement set forth in the Global Officer And Director 13 Stipulation, to all persons entitled to such notice, and said notice fully satisfied the 14 requirements of Federal Rule of Civil Procedure 23, the Private Securities 15 Litigation Reform Act of 1995, due process, and any other applicable law. 16 17. The Court hereby finds and concludes that the formula for the 17 calculation of the claims which is set forth in the Plan of Allocation proposed by 18 Lead Class Plaintiff provides a fair and equitable basis upon which to allocate the 19 proceeds of the Settlements1 among the Class Members with due consideration 20 having been given to administrative convenience and necessity. 21 22 18. The Court hereby finds and concludes that the Plan of Allocation proposed by Lead Class Plaintiff is, in all respects, fair and equitable to the Class. 23 24 25 26 27 28 “Settlements” herein includes the settlements as set forth in the Global Officer And Director Stipulation, the Stipulation of Settlement Between Plaintiffs and KPMG LLP (“KPMG Stipulation” or “KPMG Settlement”), and the Stipulation of Settlement Between Plaintiffs and the Underwriter Defendants (“Underwriter Settlement” or “Underwriter Stipulation”) (collectively “Settlements” or “Stipulations”). The Plan of Allocation sets forth a plan for allocating to Class Members the funds allocated to the Class from all three of the Settlements. 1 [PROPOSED] OFFICER AND DIRECTOR FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) 5 1 Accordingly, the Court hereby approves the Plan of Allocation proposed by Lead 2 Class Plaintiff. 3 19. Any order entered regarding any attorneys’ fees and any expense 4 application shall in no way disturb or affect this Final Judgment and Order of 5 Dismissal with Prejudice and shall be considered separate from this Final 6 Judgment and Order of Dismissal with Prejudice. 7 20. The Global Officer And Director Stipulation and Global Officer And 8 Director Settlement set forth therein, whether or not consummated, and any 9 proceedings taken pursuant to it: 10 a. shall not be offered or received against any of the Released Officers 11 And Directors as evidence of, or construed as, or deemed to be evidence of any 12 presumption, concession, or admission by any of the Released Officers And 13 Directors with respect to the truth of any fact alleged by Plaintiffs or the validity of 14 any claim that was or could have been asserted against any of the Released 15 Officers And Directors in the Officer And Director Litigations or in any litigation, 16 or of any liability, negligence, fault, or other wrongdoing of any kind of any of the 17 Released Officers And Directors; 18 b. shall not be offered or received against any of the Released Officers 19 And Directors as evidence of a presumption, concession or admission of any fault, 20 misrepresentation or omission with respect to any statement or written document 21 approved or made by any of the Released Officers And Directors, or against the 22 Plaintiffs or any Class Members as evidence of any infirmity in the claims of 23 Plaintiffs or the other Class Members; 24 c. shall not be offered or received against any of the Released Officers 25 And Directors, or against the Plaintiffs or any other Class Members, as evidence of 26 a presumption, concession or admission with respect to any liability, negligence, 27 fault or wrongdoing of any kind, or in any way referred to for any other reason as 28 against any of the Released Officers And Directors, in any other civil, criminal or [PROPOSED] OFFICER AND DIRECTOR FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) 6 1 administrative action or proceeding, other than such proceedings as may be 2 necessary to effectuate the provisions of this Stipulation; provided, however, that if 3 this Stipulation is approved by the Consolidated Class Action Court, the Settling 4 Individuals, any other Released Officer And Director, or any Class Member may 5 refer to it to effectuate the protection from liability granted them hereunder; 6 d. shall not be construed against any of the Released Officers And 7 Directors, Plaintiffs or any other Class Members as an admission, concession, or 8 presumption that the consideration to be given hereunder represents the amount 9 which could be or would have been recovered after trial; 10 e. shall not be construed against Plaintiffs or any other Class Members 11 as an admission, concession, or presumption that any of their claims are without 12 merit or that damages recoverable under the Officer And Director Litigations 13 would not have exceeded the Officer And Director Settlement Amount; and 14 f. shall not be construed as or received in evidence as an admission, 15 concession or presumption that class certification is appropriate in this 16 Consolidated Class Action, except for purposes of this Settlement. 17 21. The Global Officer And Director Stipulation may be filed in an action 18 to enforce or interpret the terms of the Global Officer And Director Stipulation, the 19 Global Officer And Director Settlement contained therein, and any other 20 documents executed in connection with the performance of the agreements 21 embodied therein. The Stipulation and/or this Final Judgment And Order Of 22 Dismissal With Prejudice may be filed in any action in order to support a defense 23 or counterclaim based on the principles of res judicata, collateral estoppel, full 24 faith and credit, release, good faith settlement, judgment bar, or reduction or any 25 other theory of claim preclusion or issue preclusion or similar defense or 26 counterclaim. 27 28 22. Without affecting the finality of this Final Judgment And Order Of Dismissal With Prejudice in any way, this Court hereby retains continuing [PROPOSED] OFFICER AND DIRECTOR FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) 7 1 jurisdiction over: (a) implementation of this Global Officer And Director 2 Settlement and any award or distribution of the settlement fund, including interest 3 earned thereon; (b) the allowance, disallowance or adjustment of any Class 4 Member’s claim on equitable grounds and any award or distribution of the 5 settlement fund; (c) disposition of the settlement fund; (d) hearing and determining 6 applications for attorneys’ fees and Litigation Expenses in the Consolidated Class 7 Action; (e) enforcing and administering this Judgment; (f) all parties hereto for the 8 purpose of construing, enforcing and administering the Global Officer And 9 Director Stipulation; and (g) other matters related or ancillary to the foregoing. 10 23. The Court finds that during the course of the Consolidated Class 11 Action, the Parties and their respective counsel at all times complied with the 12 requirements of Federal Rule of Civil Procedure 11. 13 24. In the event that the Global Officer And Director Settlement does not 14 become effective in accordance with the terms of the Global Officer And Director 15 Stipulation or the Effective Date does not occur, or in the event that the settlement 16 fund, or any portion thereof, is returned to any person or entity contributing to the 17 settlement fund, then this Final Judgment And Order Of Dismissal with Prejudice 18 shall be rendered null and void to the extent provided by and in accordance with 19 the Global Officer And Director Stipulation and shall be vacated and, in such 20 event, all orders entered and releases delivered in connection herewith shall be null 21 and void to the extent provided by and in accordance with the Global Officer And 22 Director Stipulation. 23 25. Without further Order of the Court, the Parties may agree to 24 reasonable extensions of time to carry out any of the provisions of the Global 25 Officer And Director Stipulation. 26 \\ 27 \\ 28 \\ [PROPOSED] OFFICER AND DIRECTOR FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) 8 1 2 3 4 26. There is no just reason for delay in the entry of this Judgment and immediate entry by the Clerk of the Court is expressly directed. IT IS SO ORDERED, 5 6 DATED: November 15, 2010 7 8 9 10 11 THE HONORABLE DEAN D. PREGERSON UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] OFFICER AND DIRECTOR FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) 9
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