In re: UTSTARCOM, INC. SECURITIES LITIGATION, No. 5:2004cv04908 - Document 471 (N.D. Cal. 2011)
Court Description: Revised Final Judgment and Order of Dismissal with Prejudice re 470 Notice (Other). Signed by Judge James Ware on 2/17/2011. (ecg, COURT STAFF) (Filed on 2/17/2011)
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In re: UTSTARCOM, INC. SECURITIES LITIGATION Doc. 471 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 In re UTSTARCOM, INC. SECURITIES 12 LITIGATION 13 14 (PSG) (PVT) ) Master File No. C-04-4908-JW(PVT) ) CLASS ACTION ) This Document Relates To: ALL ACTIONS. 15 ) REVISED [PROPOSED] FINAL ) JUDGMENT AND ORDER OF DISMISSAL ) WITH PREJUDICE February 7, 2011 DATE: 9:00 a.m. TIME: COURTROOM: The Honorable James Ware 16 17 18 19 20 21 22 23 24 25 26 27 28 609402_i Dockets.Justia.com 1 This matter came before the Court for hearing pursuant to the [Second Revised] Order 2! Preliminarily Approving Settlement and Providing for Notice ("Order") dated November 17, 2010, 3 on the application of the parties for approval of the settlement set forth in the Stipulation of 4 Settlement dated as of September 8, 2010 (the "Stipulation"). Due and adequate notice having been 5 given to the Class as required in said Order, and the Court having considered all papers filed and 6 proceedings had herein and otherwise being fully informed in the premises and good cause 7 appearing therefore, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that: 8 1. This Judgment incorporates by reference the definitions in the Stipulation, and all 9 terms used herein shall have the same meanings as set forth in the Stipulation, unless otherwise set 10 forth herein. 11 2. This Court has jurisdiction over the subject matter of the Litigation and over all 12 parties to the Litigation, including all Members of the Class. 13 3. The Court hereby finally certifies a Class defined as: All Persons who purchased or 14 otherwise acquired UTStarcom securities between February 21, 2003 and July 23, 2007, inclusive, 15 and who did not sell such acquired securities before October 23, 2003, who were damaged. 16 Excluded from the Class are the Defendants and officers and directors of UTStarcom, SoftBank 17 Corporation, SoftBank America, Inc. or SoftBank Holdings, Inc., as well as their families and 18 affiliates. Also excluded from the Class are those Persons (identified on Exhibit 1 attached hereto) 19 20 I who timely and validly requested exclusion from the Class. 4. Pursuant to Federal Rule of Civil Procedure 23, the Court hereby approves the 21 settlement set forth in the Stipulation and finds that: 22 (a) said Stipulation is, in all respects, fair, reasonable, and adequate and in the 23 best interest of the Class; 24 (b) there was no collusion in connection with the Stipulation; 25 (c) the Stipulation was the product of informed, arm’s-length negotiations among 26 I competent, able counsel; 27 28 609402_i REVISED [PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE - C- 04-4908-JW(PVT) -1- (d) 1 the record is sufficiently developed and complete to have enabled the Lead 2 Plaintiffs and the SoftBank Defendants to have adequately evaluated and considered their positions; 3 and (e) 4 5 the Court has reviewed and considered the one objection submitted and overrules the objection in all respects. 5. 6 Accordingly, the Court authorizes and directs implementation and performance of all 7 the terms and provisions of the Stipulation, as well as the terms and provisions hereof. The Court 8 hereby dismisses the Litigation and all Released Claims of the Class with prejudice as to the 9 SoftBank Defendants, without costs as to any Settling Party, except as and to the extent provided in 10 the Stipulation and herein. 6. 11 Upon the Effective Date, the Plaintiffs shall, and each of the Class Members shall be 12 deemed to have, and by operation of this Judgment shall have, fully, finally, and forever released, 13 relinquished, and discharged all Released Claims against the Released Persons, whether or not such 14 Class Member executes and delivers the Proof of Claim and Release or shares in the Settlement 15 Fund. 16 7. All Class Members are hereby forever barred and enjoined from prosecuting any of 17 the Released Claims against any of the Released Persons. 18 8. Upon the Effective Date, each of the Released Persons shall be deemed to have, and 19 by operation of this Judgment shall have, fully, finally, and forever released, relinquished, and 20 discharged each and all of the Plaintiffs, Class Members, and Lead Counsel from all claims 21 (including Unknown Claims) arising out of, relating to, or in connection with the institution, 22 prosecution, assertion, settlement or resolution of the Litigation or the Released Claims. 23 Notwithstanding the foregoing, this Judgment shall not be deemed a waiver or release of, and shall 24 not preclude the Released Persons from asserting, any claims not barred by ¶9 herein, and otherwise 25 permitted by any applicable federal or state statute or common law, against any person or entity, 26 including claims against the UTStarcom Defendants, their present or former officers, directors, 27 partners and employees, either in the form of a cross-claim, counterclaim, third-party complaint, or 28 other form, filed in the Litigation or by a separately-filed action. 609402_i REVISED [PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE - C- 04-4908-JW(PVT) -2- 1 9. To the extent permitted by applicable laws, including Section 21D(f)(7)(A) of the 2 Securities Exchange Act of 1934, codified at 15 U.S.C. §78u-4(f)(7)(A), upon the Effective Date, all 3 Persons are enjoined and barred from commencing or continuing any action against the SoftBank 4 Defendants, seeking, as damages, indemnity, contribution, or otherwise, the recovery of all or part of 5 any liability or settlement which such Persons (i) paid, (ii) were obligated to pay or agreed to pay, or 6 (iii) may become obligated to pay to the Class, as a result of such Persons’ liability for or 7 participation in any acts, facts, statements or omissions that were or could have been alleged in the 8 action captioned In re UTStarcom, Inc. Securities Litigation. Any Person whose claims are so barred shall be entitled to appropriate judgment credits or reductions. Furthermore, notwithstanding 10 the foregoing, nothing in this Judgment shall apply to, bar or otherwise affect any claim for 11 insurance coverage by any SofiBank Defendant. 12 10. The Notice of Proposed Settlement of Class Action given to the Class was the best 13 notice practicable under the circumstances, including the individual notice to all Members of the 14 Class who could be identified through reasonable effort. Said notice provided the best notice 15 practicable under the circumstances of those proceedings and of the matters set forth therein, 16 including the proposed settlement set forth in the Stipulation, to all Persons entitled to such notice, 17 and said notice fully satisfied the requirements of Federal Rule of Civil Procedure 23 and the 18 requirements of due process. 19 20 11. Any plan of allocation submitted by Lead Counsel or any order entered regarding any I attorneys’ fee and expense application shall in no way disturb or affect this Final Judgment and shall 21 be considered separate from this Final Judgment. 22 12. Neither the Stipulation nor the settlement contained therein, nor any act performed or 23 document executed pursuant to or in furtherance of the Stipulation or the settlement: (a) is or may be 24 deemed to be or may be used as an admission of, or evidence of, the validity of any Released Claim, 25 or of any wrongdoing or liability of the SoftBank Defendants or their respective Related Parties, or 26 (b) is or may be deemed to be or may be used as an admission of, or evidence of, any fault or 27 omission of any of the SofiBank Defendants or their respective Related Parties in any civil, criminal 28 or administrative proceeding in any court, administrative agency or other tribunal. The SoftBank 6094021 REVISED [PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE - C- 04-4908-JW(PVT) -3- 1 Defendants and/or their respective Related Parties may file the Stipulation and/or this Judgment from 2 this action in any other action that may be brought against them in order to support a defense or 3 counterclaim based on principles of resjudicata, collateral estoppel, release, good faith settlement, 4 judgment bar or reduction, or any theory of claim preclusion or issue preclusion or similar defense or 5 counterclaim. 13. 6 7 Without affecting the finality of this Judgment in any way, this Court hereby retains continuing jurisdiction over: (a) implementation of this settlement and any award or distribution of 8 the Settlement Fund, including interest earned thereon; (b) disposition of the Settlement Fund; 9 (c) hearing and determining applications for attorneys’ fees, interest, and expenses in the Litigation; 10 and (d) all parties hereto for the purpose of construing, enforcing, and administering the Stipulation. 14. 11 After all other provisions of ¶5.6 of the Stipulation of Settlement dated as of January 12 13, 2010 (Doc. No. 358) and the Stipulation of Settlement dated as of September 8, 2010 (Doe. No. 13 445) have been performed, any remaining funds shall be donated to The Silicon Valley Campaign 14 for Legal Services. 15. 15 16 17 18 The Court finds that during the course of the Litigation, the Settling Parties and their I respective counsel at all times complied with the requirements of Federal Rule of Civil Procedure 11. 16. In the event that the settlement does not become effective in accordance with the 19 terms of the Stipulation, or the Effective Date does not occur, or in the event that the Settlement 20 Fund, or any portion thereof, is returned to the SoftBank Defendants or their insurers, then this 21 Judgment shall be rendered null and void to the extent provided by and in accordance with the 22 Stipulation and shall be vacated and, in such event, all orders entered and releases delivered in 23 connection herewith shall be null and void to the extent provided by and in accordance with the 24 Stipulation. 25 26 27 28 609402_i REVISED [PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE - C- 04-4908-JW(PVT) -4- 1 Without further order of the Court, the Settling Parties may agree to reasonable 17. 2 extensions of time to carry out any of the provisions of the Stipulation. 3 IT IS SO ORDERED. 4 5 DATED: February 17, 2011 THE HONORABLE JAMES WARE UNITED STATES DISTRICT JUDGEJUDGE CHIEF 6 Submitted by: 7 ROBBINS GELLER RUDMAN 8 & DOWD LLP SHAWN A. WILLIAMS 9 DANIEL J. PFEFFERBAUM Post Montgomery Center 10 One Montgomery Street, Suite 1800 San Francisco, CA 94104 11 Telephone: 415/288-4545 415/288-4534 (fax) 12 ROBBINS GELLER RUDMAN 13 & DOWD LLP KEITH F. PARK 14 JOHN J. RICE 15 16 s/ Keith F. Park KEITH F. PARK 17 655 West Broadway, Suite 1900 18 San Diego, CA 92101 Telephone: 619/231-1058 19 619/231-7423 (fax) 20 Lead Counsel for Plaintiffs 21 22 23 24 25 26 27 28 609402_i REVISED [PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE - C- 04-4908-JW(PVT) -5- EXHIBIT 1 IN RE UTSTARCOM SECURITIES LITIGATION - REQUESTS FOR EXCLUSION EXHIBIT 1 TO FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE FIRST NAME LAST NAME OPT OUT NUMBER NICKOLAOS CHRISTIDIS UTSCOM-EXCL00001 08/19/10 RENEE ANDRES-NGUYEN UTSCOM-EXCL00002 08/19/10 DATE RECEIVED NAM THANH NGUYEN UTSCOM-EXCL00003 08/19/10 DONALD DRAEG ER UTSCO M-EXCL00004 08/24/10 PETER D. COOK UTSCOM-EXCL00005 08/24/10 ROBERT MICHAEL AND SUSAN DIANNE PILOT UTSCOM-EXCL00006 08/24/10 JOHN CARL KNIGHT UTSCOM-EXCL00007 08/24/10 TERENCE L. DRAKE UTSCOM-EXCL00008 08/24/10 BESSIE OCHSN ER UTSCOM-EXCL00009 08/27/10 DAVID J. LAUGHLIN UTSCOM-EXCL00010 08/27/10 THOMAS L. AND F. DORETHEA SCOBEY UTSCOM-EXCL00011 09/01/10 CAROLYN V. COE UTSCOM-EXCL00012 09/02/10 CLIFFORD P. SORENSEN UTSCOM-EXCL00013 09/02/10 JANIE L. SORENSEN UTSCOM-EXCL00014 09/02/10 KAREN L. STEVENS UTSCOM-EXCL00015 09/09/10 DOUGLAS W. STEELE UTSCOM-EXCL00016 09/09/10 S.A. SIDDIQU I HOPKINS JR. UTSCOM-EXCL00017 09/09/10 UTSCOM-EXCL00018 09/10/10 HtLEY W. PARRIS UTSCOM-EXCL00019 09/10/10 CONSTANTINE E. L. CATSAM BIS UTSCOM-EXCL00020 09/13/10 FRANCIS J. SHANNON UTSCOM-EXCL00021 09/13/10 STEVEN WALTER BENSON UTSCOM-EXCL00022 09/17/10 MARIAN (AND LEE A. BARBER) PETRON UTSCOM-EXCL00023 09/17/10 VICTOR N. AND LORRAINE M. BRENK UTSCOM-EXCL00024 09/20/10 VICTOR N. AND LORRAINE M. BRENK UTSCOM-EXCL00025 09/20/10 UTSCOM-EXCL00026 09/28/10 CHARLES FRANK SEAY III CHARLOTTE KI LPATRICK UTSCO M-EXCL00027 09/28/10 JAY Y. CHERNER UTSCOM-EXCL00028 09/28/10 JOHN W. AND LILIAN 0. BRADEN (CO-TRUSTEES) UTSCOM-EXCL00029 09/28/10 JOHN W. BRADEN JR. UTSCOM-EXCL00030 09/28/10 LILIAN 0. BRADEN UTSCOM-EXCL00031 09/28/10 PATRICIA I. LEATHERS UTSCOM-EXCL00032 09/28/10 NORMA LOUISE ROSE UTSCOM-EXCL00033 09/28/10 SALLY A. WOODLEY UTSCOM-EXCL00034 10/04/10 PHI LLIP F. REIMERS UTSCOM-EXCL00035 10/04/10 CHARLES W. MILLS UTSCOM-EXCL00036 10/07/10 VINCENT W. ALLEN UTSCOM-EXCL00037 10/08/10 Exhibit 1 1 2 CERTIFICATE OF SERVICE I hereby certify that on February 16, 2011, I authorized the electronic filing of the foregoing 3 with the Clerk of the Court using the CM!ECF system which will send notification of such filing to 4 the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I 5 caused to be mailed the foregoing document or paper via the United States Postal Service to the non- 6 CMIECF participants indicated on the attached Manual Notice List. 7 I further certify that I caused this document to be forwarded to the following Designated 8 Internet Site at: http://securities.stanford.edu . 9 I certify under penalty of perjury under the laws of the United States of America that the 10 foregoing is true and correct. Executed on February 16, 2011. 11 12 13 14 15 s/ Keith F. Park KEITH F. PARK ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: 619/231-1058 619/231-7423 (fax) 16 E-mail: KeithP(rgrd1aw.com 17 18 19 20 21 22 23 24 25 26 27 28 609402_i CAND-ECF- Page 1 of Mailing Information for a Case 5:04-cv-04908-JW Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case. Patricia I. Avery paveiy@wolfpopper.com Eric J. Belfi ebelfilabaton.com ,ElectronicCaseFiling@labaton.com Patrick J. Coughlin PatCrgrdIaw.com ,e_file_sdrgrdlaw.com,e_file_sf@rgrdlaw.com Stephanie L. Dieringer sldieringerhulettharper.com ,officehulettharper.com Kimberly C. Epstein e_file_sfcsgrrcom,mariam@lerachlaw.com ,e_filesf@lerachlawcom Cheryl Weisbard Foung cfoungwsgr.com ,bhickmanwsgr.com Marvin L. Frank mfrank@murrayfrank.com ,info@murrayfrank.com Gregory Phillip Freemon GFreemon@rgrdlaw.com Lionel Z. Glancy info@glancylaw.com Michael M. Goldberg info@glancylaw.com Philip Howard Gordon pgordongordonlawoffices.com ,tmurphy@gordonlawoflices.com Nicole M. Healy nhealywsgr.com ,llowwsgr.com Sverker Kristoffer Hogberg hogbergssullcrom.com ,singhl@sullcrom.com Shirley H. Huang shirIeyhrgrdlaw.com ,e_file_sdrgrdlawcomjdecena@rgrdlaw.com ,e_fIlesf@rgrdlaW.cOm Terry T. Johnson tjohnsonwagr.com ,calendar@wsgr.com ,lkerska@wsgr.com ,mevenson@wsgr.com Christopher J. Keller ckellerlabaton.com ,cchanlabaton.com ,electroniccasefiling@labaton.com Bryan Jacob Ketroser bketroser@wsgr.com William S. Lerach e_file_sf@lerachlaw.com Elizabeth Pei Lin elinmilberg.com ,schang@milberg.com ,cchaffins@milberg.com Dale MacDiarmid info@glancylaw.com Louis David Nefouse dnefousewsgrcom,lbeltran@wsgr.com Keith F. Park keithprgrdlaw.com ,kamoldrgrdlaw.comjstark@rgrdlaw.com ,ejile_sd@rgrdlaw.cOm Daniel Jacob Pfefferbaum Mark Punzalan Rachele R. Rickert rickert@whath.com Darren Jay Robbins e_filesdrgrdlaw.com https ://ecf.cand.uscourts.gov/cgi-binlMailList.pl?77323 710565231 6-L_3 66_0 1 2/16/2011 CAND-ECF- Page 2 of 2 Robert Andrew Sacks sacksr@sullcrom.com Bahram Seyedin-Noor bnoorwsgr.com ,rlustan wsgr.com Sylvia Sum SSumcsgrr.com ,e_fiIe_sfcsgrr.com,e_file_sd@csgrr.com Elizabeth K Tripodi ekt@ftllaw.com Shawn A. Williams shawnwrgrdlaw.com ,khuangrgrdlaw.com,e_filesdrgrdlaw.com,e_file_sf@rgrdlaw.com Jason de Bretteville Manual Notice List The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients. Sam Brott 550 West C Street San Diego, CA 92101 Paul T. Curley Murray Frank & Sailer LLP 275 Madison Avenue Suite 801 New York, NY 10016 Boris Feldman Wilson Sonsini Goodrich & Rosati 650 Page Mill Road Palo Alto, CA 94304-1050 S. A. Siddiqei Siddiqui Legal Enterprise P.O. Box 442067 Jacksonville, FL https ://ecf.cand.uscourts.gov/cgi-binlMailList.pl?77323 710565231 6L_3 66_0- 1 2/16/2011
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