Robert Scott v. ZST Digital Networks, Inc. et al, No. 2:2011cv03531 - Document 209 (C.D. Cal. 2013)
Court Description: FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE by Judge Gary A. Feess: IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: 1. This Order and Final Judgment incorporates by reference the definitions in the Stipulation, and all terms used herein shall have the same meanings set forth in the Stipulation and Agreement of Settlement dated as of February 1, 2013 (the Stipulation ), except to the extent revised in this Order. 2. "Settled Claims", as set forth in paragraph A.18 of the Stipulation is revised to mean: (see document for further details) (bm)
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Robert Scott v. ZST Digital Networks, Inc. et al 1 2 3 4 5 6 7 Doc. 209 Stephen D. Hibbard, Esq. (SBN 177865) SHEARMAN & STERLING LLP Four Embarcadero Center, Suite 3800 San Francisco, CA 94111 Telephone: (415) 616-1100 Facsimile: (415) 616-1199 Email: shibbard@shearman.com Counsel for ZST Digital Networks, Inc., Zhong Bo, Zhong Lin, John Chen, and Zeng Yun Su 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 13 ROBERT SCOTT, Individually and On Behalf of All Others Similarly Situated, 14 15 16 17 18 19 Plaintiff, Case No. 11-CV-03531-GAF (JCx) FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE v. Judge: HON. GARY A. FEESS ZST DIGITAL NETWORKS, INC., et al., Defendants. 20 21 22 23 24 25 26 27 28 FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE Dockets.Justia.com 1 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: 2 1. This Order and Final Judgment incorporates by reference the 3 definitions in the Stipulation, and all terms used herein shall have the same 4 meanings set forth in the Stipulation and Agreement of Settlement dated as of 5 6 February 1, 2013 (the “Stipulation ”), except to the extent revised in this Order. 2. “Settled Claims”, as set forth in paragraph A.18 of the Stipulation is 7 revised to mean: 8 any and all claims, debts, demands, liabilities, rights, and causes of action of every nature and description whatsoever (including but not limited to any claims for damages, interest, attorneys’ fees, expert or consulting fees, and any other costs, expenses or liability whatsoever), whether based on federal, state, local, statutory, or common law or any other law, rule, or regulation, whether fixed or contingent, accrued or unaccrued, liquidated or unliquidated, a law or in equity, matured or unmatured, whether class or individual in nature, including both known claims and Unknown Claims (as defined below) (i) that have been alleged or asserted in the Litigation by Lead Plaintiff and/or Settlement Class Members against and of the Settling Defendants; or (ii) that could have been alleged or asserted in the Litigation by the Lead Plaintiff or Settlement Class Members, including but not limited to any claim arising out of or relating to any of the acts, omissions, misrepresentation, facts, events, matters, transactions or occurrences referred to in the Litigation or otherwise alleged or asserted in the Litigation. . .. Provided, however, that nothing in this Settlement nor any release or injunction hereunder shall be deemed a release of or will otherwise enjoin the Robert W. Seiden as Receiver for ZSTN (the “Receiver”) from commencing or pursuing in any manner any action with respect to the named defendants relating to any claims owned by the Receiver individually or on behalf of ZSTN against such named defendants. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3. This Court has jurisdiction over the subject matter of the Litigation and over the Settling Parties to the Litigation, including all Members of the 27 28 -1FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE 1 Settlement Class who did not timely file a request for exclusion from the Class by 2 3 the July 5, 2013 deadline pursuant to the Court’s Order dated March 27, 2013. 4. As set forth in the Final Approval Order, the Court certifies this 4 Litigation as a class action and finds that the prerequisites for a class action under 5 Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure have been satisfied 6 in that: (a) the number of Settlement Class Members is so numerous that joinder of 7 all members thereof is impracticable; (b) there are questions of law and fact 8 common to the Settlement Class; (c) the claims of the Court appointed Class 9 Representative, J. Malcolm Gray, are typical of the claims of the Settlement Class 10 he represents; (d) the Settlement Class Representative has and will continue to 11 fairly and adequately represent the interests of the Settlement Class; (e) the 12 questions of law and fact common to the members of the Settlement Class 13 predominate over any questions affecting only individual members of the 14 Settlement Class; and (f) a class action is superior to other available methods for 15 the fair and efficient adjudication of the controversy. Pursuant to Rule 23 of the 16 Federal Rules of Civil Procedure, this Court hereby finally certifies this Litigation 17 as a class action on behalf of all those who purchased or otherwise acquired ZST 18 Digital Networks, Inc. securities during the Class Period from October 20, 2009 19 through and including April 21, 2011, and were damaged thereby. Excluded from 20 the Settlement Class are Settling Defendants, any other officers, employees, or 21 directors of ZSTN, members of the immediate families of any excluded person, the 22 legal representatives, heirs, successors, or assigns of any excluded person or entity, 23 and any entity in which any Defendant has or had a controlling interest. 24 5. As set forth in the Final Approval Order, the distribution of the Notice 25 and the publication of the Summary Notice, as provided for in the Notice Order, 26 constituted the best notice practicable under the circumstances, including 27 individual notice to all members of the Settlement Class who could be identified 28 through reasonable effort. Said notices provided the best notice practicable under -2FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE 1 the circumstances of those proceedings and of the matters set forth therein, 2 including the proposed Settlement set forth in the Stipulation, to all Persons 3 entitled to such notices, and said notices fully satisfied the requirements of Federal 4 Rule of Civil Procedure 23, Section 21D(a)(7) of the Securities and Exchange Act 5 of 1934, the requirements of Due Process, and any other applicable law. 6 6. As set forth in the Final Approval Order, pursuant to Rule 23 of the 7 Federal Rules of Civil Procedure, this Court hereby approves the Settlement set 8 forth in the Stipulation and finds that said Settlement is, in all respects, fair, 9 reasonable and adequate to, and is in the best interests of the Lead Plaintiff, the 10 Settlement Class and each of the Settlement Class Members. This Court further 11 finds the Settlement set forth in the Stipulation is the result of arm’s-length 12 negotiations between experienced counsel representing the interests of the Lead 13 Plaintiff, Settlement Class Members and the Settling Defendants. Accordingly, the 14 Settlement embodied in the Stipulation of Settlement is hereby approved in all 15 respects and shall be consummated in accordance with its terms and provisions. 16 The Settling Parties are hereby directed to perform the terms of the Stipulation. 17 7. The Litigation and all claims contained therein, including all of the 18 Settled Claims and Settled Indemnification Claims, are dismissed with prejudice as 19 to the Lead Plaintiff and the other Members of the Settlement Class, and as against 20 each and all of the Released Parties. The Settling Parties are to bear their own 21 costs, except as otherwise provided in the Stipulation. 22 8. Upon the Effective Date, the Lead Plaintiff and each of the Settlement 23 Class Members shall be deemed to have, and by operation of the Order and Final 24 Judgment shall have, fully, finally, and forever released, relinquished and 25 discharged all Settled Claims against the Released Parties, whether or not such 26 Settlement Class Member executes and delivers a Proof of Claim and Release 27 form. Lead Plaintiffs and the Settlement Class Members, and anyone acting or 28 purporting to act for any of them, are hereby permanently and forever enjoined -3FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE 1 from prosecuting, attempting to prosecute, or assisting others in the prosecution of 2 the Settled Claims against the Released Parties. 3 9. The Settling Parties intend the Settlement to be a final and complete 4 resolution of all disputes asserted by the Lead Plaintiff or the Settlement Class 5 Members or which could be asserted by the Lead Plaintiff or the Settlement Class 6 Members against any and all Released Parties with respect to the Settled Claims, 7 Settled Defendants’ Claims, and/or Settled Indemnification Claims. Provided, 8 however, that nothing in this Settlement nor any release or injunction hereunder 9 shall release, enjoin, waive or in any way otherwise affect the right and ability of 10 Robert W. Seiden as Receiver for ZSTN (the “Receiver”) to commence or pursue 11 in any manner any action with respect to the named Defendants relating to any 12 claims by the Receiver individually or on behalf of ZSTN against such named 13 Defendants. 14 10. Upon the Effective Date hereof, each of the Released Parties shall be 15 deemed to have, and by operation of this Order and Final Judgment shall have, 16 fully, finally, and forever released, relinquished and discharged the Lead Plaintiff, 17 each and all of the Settlement Class Members, and Lead Counsel from all Settled 18 Defendants’ Claims. 19 11. Upon the Effective Date hereof, each of the WestPark Defendants 20 shall be deemed to have, and by operation of this Order and Final Judgment shall 21 have, fully, finally, and forever released, relinquished and discharged ZSTN, the 22 Individual Defendants, and the Released Parties from the Settled Indemnification 23 Claims. The WestPark Defendants, and anyone acting or purporting to act for any 24 of them, are hereby permanently and forever enjoined from prosecuting, 25 attempting to prosecute, or assisting others in the prosecution of the Settled 26 Indemnification Claims against ZSTN, the Individual Defendants or the Released 27 Parties. 28 -4FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE 1 12. Any further orders or proceedings solely regarding the Plan of 2 Allocation shall in no way disturb or affect this Order and Final Judgment and 3 shall be separate and apart from this Order and Final Judgment. 4 13. Neither the Stipulation nor the Settlement contained therein, nor any 5 act performed or document executed pursuant to or in furtherance of the 6 Stipulation or the Settlement: (a) is or may be deemed to be or may be used as an 7 admission of, or evidence of, the validity of any Settled Claim, or of any 8 wrongdoing or liability of the Settling Defendants; or (b) is or may be deemed to 9 be or may be used as an admission of, or evidence of, any fault or omission of any 10 of the Released Parties in any civil, criminal or administrative proceeding in any 11 court, administrative agency or other tribunal. The Released Parties may file the 12 Stipulation or the Order and Final Judgment in any other litigation that may be 13 brought against them in order to support a defense or counterclaim based on 14 principles of res judicata, collateral estoppel, release, good faith settlement, 15 judgment bar or reduction or any other theory of claim preclusion or issue 16 preclusion or similar defense or counterclaim. 17 14. Without affecting the finality of this Order and Final Judgment in any 18 way, this Court hereby retains continuing jurisdiction over: (a) implementation of 19 this Settlement and any award or distribution of the Settlement Fund, including 20 interest earned thereon; (b) disposition of the Settlement Fund; (c) hearing and 21 determining applications for attorneys’ fees and expenses in the Litigation; and (d) 22 all Parties hereto for the purpose of construing, enforcing and administering the 23 Stipulation. 24 15. The Court finds that during the course of the Litigation, the Settling 25 Parties and their respective counsel at all times complied with the requirements of 26 Federal Rule of Civil Procedure No. 11. 27 28 16. In the event that the Settlement does not become effective in accordance with the terms of the Stipulation or the Effective Date does not occur, -5FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE 1 or in the event that the Settlement Fund, or any portion thereof, is returned to the 2 Settling Defendants, then this Order and Final Judgment shall be rendered null and 3 void to the extent provided by and in accordance with the Stipulation and shall be 4 vacated and, in such event, all orders entered and releases delivered in connection 5 herewith shall be null and void to the extent provided by and in accordance with 6 the Stipulation of Settlement. 7 17. As set forth in the Final Approval Order, the Court GRANTS Lead 8 Counsel attorneys’ fees of 25% of the Settlement Fund, or $425,000, and expenses 9 in an amount of $48,066.44 together with the interest earned thereon for the same 10 time period and at the same rate as that earned on the Settlement Fund until paid. 11 The Court finds that the amount of fees awarded is fair and reasonable in light of 12 the time and labor required, the novelty and difficulty of the case, the skill required 13 to prosecute the case, the experience and ability of the attorneys, awards in similar 14 cases, the contingent nature of the representation and the result obtained for the 15 Class. Lead Counsel shall allocate such attorneys’ fees among Plaintiffs’ Counsel 16 in a fashion which, in the opinion of Lead Counsel, fairly compensates Plaintiffs’ 17 Counsel for their respective contributions in the prosecution of the Litigation. 18 18. The awarded attorneys’ fees and expenses, and interest earned 19 thereon, shall be paid to Lead Counsel from the Settlement Fund immediately after 20 the date this Order and Final Judgment is executed subject to the terms, conditions, 21 and obligations of the Stipulation and in particular section H thereof, which terms, 22 conditions, and obligations are incorporated herein. 23 24 25 19. As set forth in the Final Approval Order, the Court GRANTS an award of $1,500 to Lead Plaintiff for his time spent on this lawsuit. 20. If any funds remain in the Net Settlement Fund by reason of uncashed 26 checks or otherwise, then, after the Claims Administrator has made reasonable and 27 diligent efforts to have Settlement Class Members who are entitled to participate in 28 the distribution of the Net Settlement Fund cash their distribution checks and in no -6FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE 1 event earlier than one year after the initial distribution of such funds, Lead Plaintiff 2 may contribute any balance remaining in the Net Settlement Fund to one or more 3 non-sectarian, not-for-profit organizations exempt under Section 501(c)(3) of the 4 Internal Revenue Code designated by Lead Counsel. 5 6 21. If there is a conflict between the Stipulation and this Final Judgment and Order, the Final Judgment and Order governs. 7 8 9 10 11 12 DATED: October 9, 2013 The Honorable Gary A. Feess United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE
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