-FMO Avi Gold v. Brad A Morrice et al, No. 2:2007cv00931 - Document 505 (C.D. Cal. 2010)
Court Description: UNDERWRITER DEFENDANTS FINAL JUDGMENT ANDORDER OF DISMISSAL WITH PREJUDICE by Judge Dean D. Pregerson:The Consolidated Action and all claims contained therein aredismissed with prejudice as to the Underwriter Defendants. The parties are to beartheir own costs, except as otherwise provided in the Underwriter Stipulation.(see document for specifics). (lc)
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-FMO Avi Gold v. Brad A Morrice et al Doc. 505 1 2 NO JS-6 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 IN RE NEW CENTURY Case No. CV 07-00931 DDP (FMOx) (Lead Case) 11 12 13 14 UNDERWRITER DEFENDANTS FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] UNDERWRITER 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 Plaintiff”) and Plaintiffs Carl 5 Larson and Charles Hooten (collectively “Plaintiffs”) for approval of the 6 settlement between Plaintiffs and the Underwriter Defendants set forth in the 7 Stipulation Of Settlement Between Plaintiffs And The Underwriter Defendants 8 (the “Underwriter Stipulation” or “Underwriter Settlement”). Full and adequate 9 notice having been given to the Class as required in the Court’s Order, and the 10 Court having considered all papers filed and proceedings held herein and otherwise 11 being fully informed in the premises and good cause appearing therefor, 12 NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 13 1. This Judgment incorporates by reference the definitions in the 14 Underwriter Stipulation, and all capitalized terms used, but not defined herein, 15 shall have the same meanings as in the Underwriter Stipulation. 16 2. This Court has jurisdiction over the subject matter of the Consolidated 17 Action and over all Parties to the Consolidated Action, including all members of 18 the Class. 19 3. The Court hereby affirms its certification in the Preliminary Approval 20 Order pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil 21 Procedure, of a Class defined as follows: 22 23 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) Defendants; (b) members of the immediate families of the Individual Defendants; (c) the subsidiaries and affiliates of 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 Defendant; (e) any entity in which any Defendant has a controlling interest; and (f) the legal representatives, heirs, successors and assigns -1- [PROPOSED] UNDERWRITER FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) 1 2 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. 3 4 4. The Court also affirms its findings in the Preliminary Approval Order 5 that the prerequisites for a class action under Rules 23(a) and (b)(3) of the Federal 6 Rules of Civil Procedure have been satisfied in that: (a) the number of Class 7 Members is so numerous that joinder of all members thereof is impracticable; (b) 8 there are questions of law and fact common to the Class; (c) the claims of New 9 York State Teachers’ Retirement System (“NYSTRS”) and Plaintiffs Carl Larson 10 and Charles Hooten are typical of the claims of the Class they seek to represent; (d) 11 Plaintiffs have fairly and adequately represented the interests of the Class; (e) the 12 questions of law and fact common to the members of the Class predominate over 13 any questions affecting only individual members of the Class; and (f) a class action 14 is superior to other available methods for the fair and efficient adjudication of the 15 controversy. 16 5. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the 17 Court affirms its certification of Plaintiffs as Class Representatives and Lead 18 Counsel Bernstein Litowitz Berger & Grossmann LLP as Class Counsel. 19 6. Pursuant to Federal Rule of Civil Procedure 23, this Court hereby 20 approves the Underwriter Settlement set forth in the Underwriter Stipulation and 21 finds that the Underwriter Settlement is, in all respects, fair, reasonable, and 22 adequate to the Lead Plaintiff, the Class and each of the Class Members. The 23 Court further finds that the Underwriter Settlement set forth in the Underwriter 24 Stipulation is the result of arm’s-length negotiations between experienced counsel 25 representing the interests of the Parties. Accordingly, the Underwriter Settlement 26 embodied in the Underwriter Stipulation is hereby finally approved in all respects. 27 The Parties are hereby directed to perform its terms. 28 7. Pursuant to and in compliance with Rule 23 of the Federal Rules of -2- [PROPOSED] UNDERWRITER FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) 1 Civil Procedure, the Court hereby finds that due and adequate notice of these 2 proceedings was directed to all persons and entities who are Class Members, 3 advising them of the Underwriter Settlement, the Plan of Allocation, and Lead 4 Counsel’s intent to apply for attorneys’ fees and reimbursement of Litigation 5 Expenses associated with the Consolidated Action, and of their right to object 6 thereto, and a full and fair opportunity was accorded to all persons and entities 7 who are Class Members to be heard with respect to the foregoing matters. Thus, it 8 is hereby determined that all Class Members who did not timely and properly elect 9 to exclude themselves by written communication postmarked or otherwise 10 delivered on or before the date set forth in the Notice and the Preliminary 11 Approval Order, are bound by this Judgment. 12 8. The Consolidated Action and all claims contained therein are 13 dismissed with prejudice as to the Underwriter Defendants. The parties are to bear 14 their own costs, except as otherwise provided in the Underwriter Stipulation. 15 9. Upon the Effective Date, Plaintiffs and members of the Class, on 16 behalf of themselves, their parent companies, subsidiaries, affiliates, heirs, 17 executors, administrators, predecessors, successors and assigns, and any and all of 18 their current and former officers, directors, employees, agents and attorneys shall 19 be deemed by operation of law to have released, waived, discharged and dismissed 20 each and every Settled Claim, and shall forever be enjoined from prosecuting any 21 or all Settled Claims, against any Released Underwriter Party. 22 10. Upon the Effective Date, the Underwriter Defendants and each of the 23 other Released Underwriter Parties, on behalf of themselves, their parent 24 companies, subsidiaries, affiliates, heirs, executors, administrators, predecessors, 25 successors and assigns, and any and all of their current and former officers, 26 directors, employees, agents and attorneys shall be deemed by operation of law to 27 have released, waived, discharged and dismissed each and every one of the 28 Released Parties’ Claims, and shall forever be enjoined from prosecuting any or all -3- [PROPOSED] UNDERWRITER FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) 1 of the Released Parties’ Claims, against Plaintiffs and their employees, agents and 2 attorneys, and all other Class Members. 3 11. Upon the Effective Date, and conditioned on the Underwriter Defendants and 4 the other Released Underwriter Parties receiving substantively reciprocal releases from the 5 Settling Individuals, the Underwriter Defendants and the other Released Underwriter 6 Parties shall be deemed by operation of law to have released, waived, discharged 7 and dismissed, and shall forever be enjoined from prosecuting, all Claims Against 8 Officers And Directors against any of the Settling Individuals. 9 12. Pursuant to the Underwriter Judgment, upon the Effective Date, and 10 conditioned on the Underwriter Defendants and the other Released Underwriter 11 Parties receiving substantively reciprocal releases from KPMG and the Released 12 Auditor Parties, the Underwriter Defendants and the other Released Underwriter 13 Parties shall be deemed by operation of law to have released, waived, discharged 14 and dismissed each and every claim, and shall forever be enjoined from 15 prosecuting any claim, against KPMG and the Released Auditor Parties arising 16 under federal, state, common or foreign law, arising out of or based upon the 17 allegations, transactions, facts, matters or occurrences, representations or 18 omissions involved, set forth, or referred to in the Consolidated Action. 19 13. Upon the Effective Date, this Final Judgment And Order Of 20 Dismissal With Prejudice constitutes the final discharge of all obligations to the 21 Plaintiffs of the Underwriter Defendants arising out of the Consolidated Action. 22 All future claims for contribution arising out of the Consolidated Action by any 23 person or entity against the Underwriter Defendants or by the Underwriter 24 Defendants against any other person or entity, other than a person whose liability 25 has been extinguished by this Settlement, are barred pursuant to 15 U.S.C. § 78u- 26 4(f)(7)(A). 27 28 14. The distribution of the Notice of Pendency of Class Action and Proposed Settlement. Settlement Fairness Hearing and Motion for Attorneys’ Fees -4- [PROPOSED] UNDERWRITER FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) 1 and Reimbursement of Expenses (“Notice”) and the publication of the Summary 2 Notice as provided for in the Preliminary Approval Order constituted the best 3 notice practicable under the circumstances, including individual notice to all 4 members of the Class who could be identified through reasonable effort. Said 5 notice provided the best notice practicable under the circumstances of those 6 proceedings and of the matters set forth therein, including the proposed 7 Underwriter Settlement set forth in the Underwriter Stipulation, to all persons 8 entitled to such notice, and said notice fully satisfied the requirements of Federal 9 Rule of Civil Procedure 23, the Private Securities Litigation Reform Act of 1995, 10 due process, and any other applicable law. 11 15. The Court hereby finds and concludes that the formula for the 12 calculation of the claims which is set forth in the Plan of Allocation proposed by 13 Lead Plaintiff provides a fair and equitable basis upon which to allocate the 14 proceeds of the Settlements1 among the Class Members with due consideration 15 having been given to administrative convenience and necessity. 16 16. The Court hereby finds and concludes that the Plan of Allocation 17 proposed by Lead Plaintiff is, in all respects, fair and equitable to the Class. 18 Accordingly, the Court hereby approves the Plan of Allocation proposed by Lead 19 Plaintiff. 20 17. 21 Any order entered regarding any attorneys’ fees and for expense application shall in no way disturb or affect this Final Judgment And Order Of 22 23 24 25 26 27 28 “Settlements” herein includes the settlements as set forth in the Underwriter Stipulation, the Stipulation of Settlement Between Plaintiffs and KPMG LLP (“KPMG Settlement” or “KPMG Stipulation”), and the Stipulation of Global Settlement with New Century Officer and Directors (“Global Officer And Director Settlement” or “Global Officer And Director 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 -5- [PROPOSED] UNDERWRITER FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) 1 Dismissal With Prejudice and shall be considered separate from this Final 2 Judgment And Order Of Dismissal With Prejudice. 3 4 5 18. The Underwriter Stipulation and Underwriter Settlement set forth therein, whether or not consummated, and any proceedings taken pursuant to it: a. shall not be offered or received against any of the Released 6 Underwriter Parties as evidence of, or construed as, or deemed to be evidence of 7 any presumption, concession, or admission by any of the Released Underwriter 8 Parties with respect to the truth of any fact alleged by Plaintiffs or the validity of 9 any claim that was or could have been asserted against any of the Released 10 Underwriter Parties in this Consolidated Action or in any litigation, or of any 11 liability, negligence, fault, or other wrongdoing of any kind of any of the Released 12 Underwriter Parties; 13 b. shall not be offered or received against any of the Released 14 Underwriter Parties as evidence of a presumption, concession or admission of any 15 fault, misrepresentation or omission with respect to any statement or written 16 document approved or made by any of the Released Underwriter Parties, or against 17 the Plaintiffs or any Class Members as evidence of any infirmity in the claims of 18 Plaintiffs or the other Class Members; 19 c. shall not be offered or received against any of the Released 20 Underwriter Parties, or against the Plaintiffs or any other Class Members, as 21 evidence of a presumption, concession or admission with respect to any liability, 22 negligence, fault or wrongdoing of any kind, or in any way referred to for any 23 other reason as against any of the Released Underwriter Parties, in any other civil, 24 criminal or administrative action or proceeding, other than such proceedings as 25 may be necessary to effectuate the provisions of this Stipulation; provided, 26 however, that if this Stipulation is approved by the Court, Underwriter Defendants, 27 any other Released Underwriter Party, or any Class Member may refer to it to 28 effectuate the protection from liability granted them hereunder; -6- [PROPOSED] UNDERWRITER FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) d. 1 shall not be construed against any of the Released Underwriter 2 Parties, Plaintiffs or any other Class Members as an admission, concession, or 3 presumption that the consideration to be given hereunder represents the amount 4 which could be or would have been recovered after trial; e. 5 shall not be construed against Plaintiffs or any other Class 6 Members as an admission, concession, or presumption that any of their claims are 7 without merit or that damages recoverable under the Complaint would not have 8 exceeded the Underwriter Settlement Amount; and 9 f. shall not be construed as or received in evidence as an 10 admission, concession or presumption that class certification is appropriate in this 11 Consolidated Action, except for purposes of this Underwriter Settlement. 12 19. The Underwriter Stipulation may be filed in an action to enforce or 13 interpret the terms of the Underwriter Stipulation, the Underwriter Settlement 14 contained therein, and any other documents executed in connection with the 15 performance of the agreements embodied therein. The Released Underwriter 16 Parties and/or any Class Member may file the Stipulation and/or this Final 17 Judgment And Order Of Dismissal With Prejudice in any action that may be 18 brought against them in order to support a defense or counterclaim based on the 19 principles of res judicata, collateral estoppel, full faith and credit, release, good 20 faith settlement, judgment bar, or reduction or any other theory of claim preclusion 21 or issue preclusion or similar defense or counterclaim. 22 20. Without affecting the finality of this Final Judgment And Order Of 23 Dismissal With Prejudice in any way, this Court hereby retains continuing 24 jurisdiction over: (a) implementation of this Underwriter Settlement and any award 25 or distribution of the Settlement Fund. including interest earned thereon; (b) the 26 allowance, disallowance or adjustment of any Class Member’s claim on equitable 27 grounds and any award or distribution of the Settlement Fund; (c) disposition of 28 the Settlement Fund; (d) hearing and determining applications for attorneys’ fees -7- [PROPOSED] UNDERWRITER FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx) 1 and Litigation Expenses in the Consolidated Action; (e) enforcing and 2 administering this Judgment; (f) all parties hereto for the purpose of construing, 3 enforcing and administering the Underwriter Stipulation; and (g) other matters 4 related or ancillary to the foregoing. 5 21. The Court finds that during the course of the Consolidated Action, the 6 Parties and their respective counsel at all times complied with the requirements of 7 Federal Rule of Civil Procedure 11. 8 22. In the event that the Underwriter Settlement does not become 9 effective in accordance with the terms of the Underwriter Stipulation or the 10 Effective Date does not occur, or in the event that the Settlement Fund, or any 11 portion thereof, is returned to the Underwriter Defendants, then this Final 12 Judgment And Order Of Dismissal With Prejudice shall be rendered null and void 13 to the extent provided by and in accordance with the Underwriter Stipulation and 14 shall be vacated and, in such event, all orders entered and releases delivered in 15 connection herewith shall be null and void to the extent provided by and in 16 accordance with the Underwriter Stipulation. 17 23. Without further Order of the Court, the parties may agree to 18 reasonable extensions of time to carry out any of the provisions of the Underwriter 19 Stipulation. 20 21 22 24. 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, 23 24 DATED: November 15, 2010 25 26 27 THE HONORABLE DEAN D. PREGERSON UNITED STATES DISTRICT JUDGE 28 -8- [PROPOSED] UNDERWRITER FINAL JUDGMENT Case No. 2:07-cv-00931-DDP (FMOx)
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