-FFM Ace Marine Rigging and Supply Inc et al v. Virginia Harbor Services Inc et al, No. 8:2011cv00436 - Document 82 (C.D. Cal. 2012)
Court Description: RULE 54(b) FINAL JUDGMENT ORDER AS TO: (1) VIRGINIA HARBOR SERVICES, INC., FENTEK MARINE SYSTEMS GMBH, ROBERT B. TAYLOR AND DONALD MURRAY; (2) MARINE FENDERS INTERNATIONAL AND GERALD THERMOS; (3) WATERMAN SUPPLY CO, INC. AND SEYMOUR WATERMAN; AND (4) MARITIME INTERNATIONAL, INC. AND JOHN DEATS by Judge George H Wu, 81 (see attached for further details) (pj)
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-FFM Ace Marine Rigging and Supply Inc et al v. Virginia Harbor Services Inc et al 1 2 3 4 5 6 7 8 9 10 11 Lionel Z. Glancy (#134180) lglancy@glancylaw.com Michael Goldberg (#188669) mmgoldberg@glancylaw.com GLANCY BINKOW & GOLDBERG LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 Doc. 82 NO JS-6 Gregory S. Asciolla (pro hac vice) gasciolla@labaton.com Hollis L. Salzman (pro hac vice) hsalzman@labaton.com William V. Reiss (pro hac vice) wreiss@labaton.com LABATON SUCHAROW LLP 140 Broadway New York, New York 10005 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 12 13 UNITED STATES DISTRICT COURT 14 FOR THE CENTRAL DISTRICT OF CALIFORNIA 15 16 17 18 19 20 ACE MARINE RIGGING & SUPPLY, INC., v. Plaintiff, VIRGINIA HARBOR SERVICES, INC., ET AL., Defendants. 21 22 23 No. SACV11-00436-GW(FFMx) RULE 54(b) FINAL JUDGMENT ORDER AS TO: (1) VIRGINIA HARBOR SERVICES, INC., FENTEK MARINE SYSTEMS GMBH, ROBERT B. TAYLOR AND DONALD MURRAY; (2) MARINE FENDERS INTERNATIONAL AND GERALD THERMOS; (3) WATERMAN SUPPLY CO, INC. AND SEYMOUR WATERMAN; AND (4) MARITIME INTERNATIONAL, INC. AND JOHN DEATS Date: January 19, 2012 Time: 8:30 A.M. Judge: The Honorable George Wu Ctrm: 10 24 25 26 27 28 [PROPOSED] RULE 54(b) FINAL JUDGMENT ORDER Dockets.Justia.com 1 The Court has considered Plaintiff Ace Marine Rigging & Supply, Inc.’s 2 Motion for Final Approval of Class Action Settlements with Defendants: (1) 3 Virginia Harbor Services, Inc. (“VHS”), Fentek Marine Systems GmbH, Robert B. 4 Taylor and Donald Murray (“VHS Defendants”); (2) Marine Fenders International 5 and Gerald Thermos (“MFI Defendants); (3) Waterman Supply Co., Inc. and 6 Seymour Waterman (“Waterman Defendants”); and (4) Maritime International, 7 Inc. and John Deats (“Maritime Defendants”) (collectively, the “Settling 8 Defendants”) and has held a duly-noticed final approval hearing on January 19, 9 2012. The Court expressly finds, pursuant to Rule 54(b) of the Federal Rules of 10 Civil Procedure, that there is no just reason for delay, and therefore expressly 11 directs the entry of Final Judgment as to the Settling Defendants: 12 IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows: 13 1. The Court has jurisdiction over the subject matter of this litigation. 14 2. Terms used in this Final Judgment Order which are defined in the 15 Settlement Agreements between the Plaintiff and the Settlement Classes on the one 16 hand and the Settling Defendants on the other hand are, unless otherwise defined 17 herein, used in this Final Judgment Order as defined in the Settlement Agreements. 18 3. The Court finds that the Foam-Filled Fenders and/or Buoys 19 Settlements were based on vigorous arm’s-length negotiations, which were 20 undertaken in good faith by counsel with significant experience litigating antitrust 21 class actions. 22 4. The Court finds that due and adequate notice was provided pursuant 23 to Rule 23 of the Federal Rules of Civil Procedure to all members of the Settlement 24 Classes certified herein, notifying the Settlement Classes of, inter alia, the 25 pendency of the above-captioned action and the proposed Foam-Filled Fenders 26 and/or Buoys Settlements with the Settling Defendants. The notice provided was 27 the best notice practicable under the circumstances and included individual notice 28 [PROPOSED] RULE 54(b) FINAL JUDGMENT ORDER 1 by first-class mail to all members of the Settlement Classes who could be identified 2 through reasonable effort as well as notice published in the Investor’s Business 3 Daily and in Business Wire. Notice fully complied in all respects with the 4 requirements of Rule 23 of the Federal Rules of Civil Procedure and the due 5 process requirements of the Constitution of the United States. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 5. With respect to the VHS Defendants Settlement Agreement, this Court certifies the following class for settlement purposes only: All persons and entities (but excluding Defendants, their predecessors, parents, subsidiaries, affiliates, and coconspirators, United States federal government entities and the State of Florida and all Florida state and local government entities) who purchased Foam-Filled Fenders and/or Buoys in the United States directly from Settling Defendants, Named Co-Conspirators, any other Defendant or any of their predecessors, parents, subsidiaries, or affiliates at any time during the period from and including June 1, 2000 to and including December 31, 2005. 20 With respect to the MFI Defendants, Waterman Defendants and Maritime 21 Defendants Settlement Agreements, the Court certifies the following class for 22 settlement purposes only: 23 24 25 26 27 28 All persons and entities (but excluding Defendants, their predecessors, parents, subsidiaries, affiliates, and coconspirators and United States federal government entities) who purchased Foam-Filled Fenders and/or Buoys in the United States directly from Settling [PROPOSED] RULE 54(b) FINAL JUDGMENT ORDER 2 1 Defendants, Named Co-Conspirators, any other 2 Defendant or any of their predecessors, parents, 3 subsidiaries, or affiliates at any time during the period 4 from and including June 1, 2000 to and including 5 December 31, 2005. 6 7 8 9 10 11 12 13 14 15 16 17 18 6. For the purposes of this Order, “Foam-Filled Fenders” means structural protection marine fenders fabricated from an elastomer shell filled with closed-cell polyethelene foam, and related ancillary products, which are typically used as a cushion between ships and either fixed structures such as docks or piers, or floating structures such as other ships. “Foam-Filled Buoys” means buoys fabricated from an elastomer shell and filled with closed-cell polyethelene foam, and related ancillary products, which are used in a variety of applications, including as channel markers and navigational aids. “Foam-Filled Fenders and/or Buoys” means Foam-Filled Fenders and/or Foam-Filled Buoys. 7. The Court finds that certification of the Settlement Classes is appropriate because: (a) members is impracticable, satisfying the requirement of Rule 19 20 21 22 23 24 25 26 27 The Settlement Classes are so numerous that joinder of all 23(a)(1); (b) There are questions of law or fact common to the Settlement Classes, satisfying the requirements of Rule 23(a)(2), including: (1) did Defendants conspire to raise, fix, maintain or stabilize the prices, rig bids or allocate markets or customers of FoamFilled Fenders and Buoys purchased in the United States in violation of Section 1 of the Sherman Act; (2) the period of time the conspiracy operated; and (3) whether the conspiracy 28 [PROPOSED] RULE 54(b) FINAL JUDGMENT ORDER 3 1 raised, fixed, maintained or stabilized the prices of Foam-Filled 2 Fenders and/or Buoys; (c) 3 The claims of Representative Plaintiff Ace Marine Rigging & 4 Supply, Inc. are typical of the claims of the Settlement Classes, 5 satisfying the requirement of Rule 23(a)(3); (d) 6 The Representative Plaintiff will fairly and adequately protect 7 the interests of the Settlement Classes, satisfying the 8 requirements of Rule 23(a)(4); (e) 9 Questions of law or fact common to the members of the 10 Settlement Classes, as set forth above, predominate over 11 questions affecting only individual members and a class action 12 is superior to other methods available for the fair and efficient 13 adjudication of the controversy, satisfying the requirements of 14 Rule 23(b)(3); and (f) 15 purposes. 16 17 The action is manageable as a class action for settlement 8. The Court’s certification of the Settlement Classes as provided herein 18 is without prejudice to, or waiver of, the rights of any Defendant other than the 19 Settling Defendants to contest certification of any other proposed classes. The 20 Court’s findings in this Final Judgment Order shall have no effect on the Court’s 21 ruling on any motion to certify any litigation class and no party may cite or refer to 22 the Court’s approval of the Settlement Classes as persuasive or binding authority 23 with respect to any motion to certify such a class. 24 25 26 27 9. The Court finds that no Settlement Class Members have timely requested to be excluded from the Settlement Class(es). 10. The Court finds that the Settlement Agreements with the Settling Defendants are fair, reasonable and adequate to the Settlement Classes within the 28 [PROPOSED] RULE 54(b) FINAL JUDGMENT ORDER 4 1 meaning of Rule 23 of the Federal Rules of Civil Procedure. The Settlement 2 Agreements are hereby approved pursuant to Rule 23(e) of the Federal Rules of 3 Civil Procedure. 4 11. The Court finds that the escrow accounts described in the Settlement 5 Agreements are qualified settlement funds (“QSFs”) pursuant to Internal Revenue 6 Code Section 468B and the Treasury Regulations promulgated thereunder. 7 12. All claims of Plaintiff and the Settlement Classes that were asserted 8 against the Settling Defendants in the Complaint in the above-captioned Action are 9 dismissed with prejudice, and, except as provided for in the Settlement 10 11 Agreements, without costs. 13. Plaintiff, Settlement Class Members, their predecessors, successors, 12 past and present parents, subsidiaries affiliates, divisions, and departments, and 13 each of their respective past and present officers, directors, employees, agents, 14 attorneys, servants, and representatives, and the predecessors, successors, heirs, 15 executors administrators, and assigns of each of the foregoing (“Releasing 16 Parties”) are permanently barred and enjoined from prosecuting against Released 17 Parties, as defined in the respective Settlement Agreements, any and all claims, 18 demands, actions, suits, and causes of action, damages, liabilities of any nature, 19 including without limitation costs, expenses, penalties, and attorneys’ fees, whether 20 class, individual, or otherwise in nature, that Releasing Parties ever had, now have, 21 or hereafter can, shall, or may have directly, representatively, derivatively or in any 22 other capacity against the Released Parties, whether known or unknown, suspected 23 or unsuspected, in law or equity, concerning the pricing, selling, discounting, 24 marketing, manufacturing, or distribution of Foam-Filled Fenders and/or Buoys in 25 the United States, which arise under and/or relate to any United States federal or 26 state antitrust, unfair competition, unfair practices, price discrimination, unitary 27 pricing, trade practice, or civil conspiracy law, including, without limitation, the 28 [PROPOSED] RULE 54(b) FINAL JUDGMENT ORDER 5 1 Sherman Antitrust Act, 15 U.S.C. § 1 et seq., based in whole or in part on the facts, 2 occurrences, transactions, or other matters alleged in, or that could have been 3 alleged in the Class Action Complaint filed in Ace Marine Rigging & Supply, Inc. 4 v. Virginia Harbor Services, Inc. et al., No. SACV11-00436, the Class Action 5 Complaint filed in Ace Marine Rigging & Supply, Inc. v. Trelleborg AB, No. 10- 6 01553 and the Consolidated Amended Class Action Complaint filed in In re 7 Marine Products Antitrust Litigation, No. CV10-2319-GW (FFMx) (the “Released 8 Claims”), provided, however, that nothing herein shall release: (1) any claims 9 made by purchasers who are solely indirect purchasers of Foam-Filled Fenders 10 and/or Buoys as to such indirect purchases; (2) claims involving any negligence, 11 breach of contract, bailment, failure to deliver lost goods, damaged or delayed 12 goods or similar claim relating to Foam-Filled Fenders and/or Buoys; and/or (3) 13 claims under laws other than those of the United States. 14 14. Each member of the Settlement Classes has expressly agreed to waive 15 and release, and shall be deemed to have waived and released, any and all 16 provisions, rights and benefits conferred by section 1542 of the California Civil 17 Code, which reads: 18 19 20 Section 1542. Certain Claims Not Affected by General Release. 21 A general release does not extend to claims which the 22 creditor does not know or suspect to exist in his favor at 23 the time of executing the release, which if known by him 24 must have materially affected his settlement with the 25 debtor; and such release shall apply according to its 26 terms, regardless of the provisions of Section 1542 or any 27 equivalent, similar, or comparable present or future law 28 [PROPOSED] RULE 54(b) FINAL JUDGMENT ORDER 6 or principle of any jurisdiction. 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 15. Each member of the Settlement Classes may hereafter discover facts other than or different from those which he, she or it knows or believes to be true with respect to the claims which are the subject matter of the provisions of this paragraph, but each of those Settlement Class Members has expressly waived and has fully, finally and forever settled and released all rights and benefits existing under (i) Section 1542 or any equivalent, similar or comparable present or future law or principle of law of any jurisdiction and (ii) any law or principle of law of any jurisdiction that would limit or restrict the effect or scope of the provisions of the release set forth above, without regard to the subsequent discovery or existence of such other or different facts. 16. The Settling Defendants shall have no obligation for attorneys’ fees, costs or expenses, except that VHS shall pay or cause to be paid reasonable costs of disseminating notice of the settlement, including the cost of administration, in an amount not to exceed $25,000 as set forth in ¶ 31 of the VHS Defendants Settlement Agreement. 17. Nothing in this Final Judgment Order or the Settlement Agreements and no aspect of the settlements or negotiations thereof are or shall be deemed or construed to be an admission or concession of any violation of any statute or law or of any liability or wrongdoing by the Settling Defendants or of the truth of any of the claims or allegations in any of the complaints in the Action or any other pleading, and evidence thereof shall not be discoverable or used, directly or indirectly, in any way, whether in the Action or in any other action or proceeding other than to enforce the terms of this Final Judgment Order or the Settlement Agreements. 18. Without affecting the finality of the Final Judgment in any way, this Court hereby retains continuing jurisdiction for the purposes of, inter alia, [PROPOSED] RULE 54(b) FINAL JUDGMENT ORDER 7 1 implementing and enforcing the Settlement Agreements (including any issue that 2 may arise in connection with the formation and/or administration of the QSFs), 3 entering orders regarding the disbursement of the Settlement Amounts (as defined 4 in the Settlement Agreements) to the Settlement Classes and to Settlement Class 5 Counsel, and adjudicating the Action with respect to Plaintiff’s claims asserted 6 against the non-settling Defendants. 7 8 9 DONE AND ORDERED in Chambers in Los Angeles, California this 19th day of January, 2012. 10 11 _________________________________ HONORABLE GEORGE H. WU UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] RULE 54(b) FINAL JUDGMENT ORDER 8
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