In re Marvell Technology Group, Ltd. Securities Litigation, No. 5:2006cv06286 - Document 292 (N.D. Cal. 2009)
Court Description: ORDER and FINAL JUDGMENT by Judge Whyte granting 286 Motion for Settlement; granting 287 Motion for Attorney Fees (rmwlc1, COURT STAFF) (Filed on 11/13/2009)
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In re Marvell Technology Group, Ltd. Securities Litigation 1 2 3 4 5 6 Doc. 292 Michael K. Yarnoff (admitted Pro Hac Vice) John A. Kehoe (admitted Pro Hac Vice) Bharati O. Sharma BARROWAY TOPAZ KESSLER MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 myarnoff@btkmc.com jkehoe@btkmc.com bsharma@btkmc.com 7 Co-Lead Counsel 8 9 10 11 12 13 Joseph C. Kohn (admitted Pro Hac Vice) Denis F. Sheils (admitted Pro Hac Vice) William E. Hoese (admitted Pro Hac Vice) KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 Telephone: (215) 238-1700 Facsimile: (215) 238-1968 jkohn@kohnswift.com dsheils@kohnswift.com whoese@kohnswift.com Joseph J. Tabacco, Jr. (Bar No. 75484) Nicole Lavallee (Bar No. 165755) Julie J. Bai (Bar No. 227047) BERMAN DeVALERIO 425 California Street, Suite 2025 San Francisco, CA 94104 Telephone: (415) 433-3200 Facsimile: (415) 433-6382 jtabacco@bermandevalerio.com nlavallee@bermandevalerio.com jbai@bermandevalerio.com Co-Lead Counsel [Additional counsel appear on signature page] Liaison Counsel 14 15 16 17 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 18 19 20 21 22 23 Master File No. C-06-06286 RMW In re Marvell Technology Group Ltd. Securities Litigation CLASS ACTION _____________________________________ THIS DOCUMENT RELATES TO: ORDER AND FINAL JUDGMENT All Actions 24 25 26 27 28 ORDER AND FINAL JUDGMENT CASE NO. C-06-06286 RMW Dockets.Justia.com 1 WHEREAS, a consolidated class action is pending in this Court against Defendants, 2 captioned In re Marvell Technology Group Ltd. Securities Litigation, Master File No. C-06- 3 06286 RMW (the “Action”); and 4 WHEREAS, this matter came before the Court for hearing pursuant to the Order 5 Preliminarily Approving Class Action Settlement dated July 31, 2009 (the “Preliminary Approval 6 Order”), on the application of the parties for approval of the Settlement set forth in the Stipulation 7 and Agreement of Settlement dated June 9, 2009 (the “Stipulation”) entered into by plaintiffs 8 Police and Fire Retirement System of the City of Detroit, Monte Paschi Asset Management 9 S.G.R. S.p.A. and Puerto Rico Government Employees Retirement System (collectively, the 10 “Lead Plaintiffs”), on behalf of themselves and the Class (as defined herein), and defendants 11 Marvell Technology Group Ltd. (“Marvell” or the “Company”), Sehat Sutardja, Weili Dai and 12 George Hervey (collectively, the “Defendants” and together with Lead Plaintiffs, the “Parties”), 13 by and through their respective counsel; and 14 WHEREAS, due and adequate notice having been given to the Class, which was 15 preliminarily certified by the Court for settlement purposes, as required in the Preliminary 16 Approval Order, and the Court having considered all papers filed and proceedings had herein and 17 otherwise being fully informed in the premises and good cause appearing therefore; 18 IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows: 19 1. This Order and Final Judgment (the “Judgment”) incorporates by reference the 20 definitions in the Stipulation and all terms used herein shall have the same meanings as set forth 21 in the Stipulation. 22 2. 23 24 This Court has jurisdiction over the subject matter of the Action, and over all Parties to the Action, including all members of the Class. 3. The Notice of Pendency of Class Action and Proposed Settlement, Motion for 25 Attorneys’ Fees and Litigation Expenses, and Settlement Fairness Hearing (“Notice”) has been 26 given to the Class (as defined hereinafter), pursuant to and in the manner directed by the 27 Preliminary Approval Order, proof of the mailing of the Notice was filed with the Court by Co- 28 Lead Counsel, and full opportunity to be heard has been offered to all Parties, the Class, and all ORDER AND FINAL JUDGMENT 1 CASE NO. C-06-06286 RMW 1 interested persons and entities. The form and manner of the Notice and Summary Notice are 2 hereby determined to have been the best notice practicable under the circumstances and to have 3 been given in full compliance with each of the requirements of FED. R. CIV. P. 23, and it is further 4 determined that all members of the Class are bound by the Judgment herein. 5 4. Each of the provisions of FED. R. CIV. P. 23 has been satisfied and the Action has 6 been properly maintained according to the provisions of Rules 23(a) and 23(b)(3). Specifically, 7 this Court finds, for purposes of settlement only, that (a) the Class is so numerous that joinder of 8 all members is impracticable; (b) there are questions of law and fact common to the Class; (c) the 9 claims of Lead Plaintiffs are typical of the claims of the Class; (d) Lead Plaintiffs and their 10 counsel have fairly and adequately protected the interests of the Class; (e) the questions of law 11 and fact common to members of the Class predominate over any questions affecting only 12 individual members of the Class; and (f) a class action is superior to other available methods for 13 the fair and efficient adjudication of the controversy. 14 5. The Action is hereby certified as a class action for purposes of settlement only 15 pursuant to FED. R. CIV. P. 23(a) and 23(b)(3), on behalf of a class composed of all persons and 16 entities who purchased or acquired Marvell securities between February 27, 2003 and October 2, 17 2006, inclusive (the “Class”). Excluded from the Class are (i) the Defendants; (ii) members of 18 the immediate family of each Individual Defendant; (iii) any person who was an officer or 19 director of Marvell during the Class Period; (iv) any firm, trust, corporation, officer or other 20 entity in which any Defendant has a controlling interest; and (v) the legal representatives, agents, 21 affiliates, heirs, successors-in-interest or assigns of any excluded party. Also excluded from the 22 Class are all persons and entities who have excluded themselves from the Settlement by timely 23 requesting exclusion in accordance with the requirements set forth in the Notice, as listed on 24 Exhibit 1 annexed hereto. 25 6. The Settlement in the amount of $72,000,000 in cash is found to be fair, 26 reasonable, adequate, and in the best interests of the Class, and it is hereby approved. The Parties 27 to the Stipulation are hereby authorized and directed to comply with and to consummate the 28 Settlement in accordance with its terms and provisions; and the Clerk of this Court is directed to ORDER AND FINAL JUDGMENT 2 CASE NO. C-06-06286 RMW 1 2 enter and docket this Judgment in the Action. 7. The Action and all claims included therein, as well as all of the Released Claims 3 (defined in the Stipulation and in Paragraph 8(b) below) are dismissed with prejudice as to the 4 Lead Plaintiffs and the other members of the Class, and as against each and all of the Released 5 Parties (defined in the Stipulation and in Paragraph 8(a) below). The Parties are to bear their own 6 costs, except as otherwise provided in the Stipulation. 7 8. As used in this Judgment, the terms “Released Claims,” “Released Parties,” 8 “Settled Defendants’ Claims,” and “Unknown Claims” shall have the meanings as provided in the 9 Stipulation, and specified below: 10 (a) “Released Claims” means any and all claims, debts, demands, rights or 11 causes of action or liabilities whatsoever, whether based on federal, state, local, statutory or 12 common law or any other law, rule or regulation, whether fixed or contingent, accrued or un- 13 accrued, liquidated or un-liquidated, at law or in equity, matured or un-matured, whether class, 14 and/or individual in nature, including both known claims and Unknown Claims (as defined 15 herein), (i) that have been asserted in this Action by Lead Plaintiffs and/or the members of the 16 Class or any of them against any of the Released Parties, or (ii) that could have been asserted in 17 this Action, or in any other action or forum by Lead Plaintiffs and/or the members of the Class or 18 any of them against any of the Released Parties which arise out of or are based upon or relate in 19 any way to the allegations, transactions, facts, matters or occurrences, representations or 20 omissions involved, set forth, or referred to in the Action and which relate to the purchase or 21 acquisition of Marvell securities between February 27, 2003 and October 2, 2006, inclusive. 22 Released Claims does not include any claims asserted in the derivative action, In re Marvell 23 Technology Ltd. Derivative Litigation, Case No. 5:06-cv-03894-RMW, filed on June 22, 2006. 24 (b) “Released Parties” means Defendants, their parents, subsidiaries, 25 controlling persons, affiliates, and acquirers, and their respective current and former officers, 26 directors, partners, members, employees, agents, attorneys, advisors, auditors, underwriters, 27 insurers, reinsurers, representatives, heirs, predecessors, successors-in-interest, and assigns. 28 (c) “Settled Defendants’ Claims” means any and all claims, debts, demands, ORDER AND FINAL JUDGMENT 3 CASE NO. C-06-06286 RMW 1 rights or causes of action or liabilities whatsoever, whether based on federal, state, local, statutory 2 or common law or any other law, rule or regulation, whether fixed or contingent, accrued or un- 3 accrued, liquidated or un-liquidated, at law or in equity, matured or un-matured, whether class 4 and/or individual in nature, including both known claims and Unknown Claims (as defined 5 herein), that have been or could have been asserted in the Action or in any other action or forum 6 by the Defendants or any of them or the successors and assigns of any of them against the Lead 7 Plaintiffs, any Class Member or their attorneys, which arise out of or relate in any way to the 8 institution, prosecution, or settlement of the Action (except for claims to enforce the Settlement). 9 (d) “Unknown Claims” means any and all Released Claims that Lead Plaintiffs 10 and/or Class Members do not know or suspect to exist in his, her, or its favor as of the Effective 11 Date and any Settled Defendants’ Claims that any Defendant does not know or suspect to exist in 12 his, her or its favor as of the Effective Date, which if known by him, her or it might have affected 13 his, her or its decision(s) with respect to the Settlement. With respect to any and all Released 14 Claims and Settled Defendants’ Claims, the Parties stipulate and agree that upon the Effective 15 Date, Lead Plaintiffs and Defendants shall expressly waive, and each Class Member shall be 16 deemed to have waived, and by operation of the Judgment shall have expressly waived, any and 17 all provisions, rights, and benefits conferred by any law of any state of the United States, or 18 principle of common law or otherwise, which is similar, comparable, or equivalent to California 19 Civil Code § 1542, which provides: 20 22 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. 23 Lead Plaintiffs and Defendants acknowledge, and Class Members by operation of law shall be 24 deemed to have acknowledged, that the inclusion of “Unknown Claims” in the definition of 25 Released Claims and Settled Defendants’ Claims was separately bargained for and was a key 26 element of the Settlement. 21 27 28 9. Upon the Effective Date of this Settlement, Lead Plaintiffs and members of the Class, on behalf of themselves and each of their past or present subsidiaries, affiliates, parents, ORDER AND FINAL JUDGMENT 4 CASE NO. C-06-06286 RMW 1 successors, and predecessors, estates, heirs, executors, administrators, successors and assigns, and 2 the respective officers, directors, trustees, elected trustees, ex-officio trustees, Junta de Síndicos, 3 fiduciaries, executive secretaries, portfolio managers, investment advisors, managers, 4 shareholders, agents, legal representatives, and any Persons they represent, shall, with respect to 5 each and every Released Claim, release and forever discharge, and shall forever be enjoined from 6 prosecuting, any Released Claims against any of the Released Parties. 7 10. Upon the Effective Date of this Settlement, each of the Defendants, on behalf of 8 themselves and each of their past or present subsidiaries, affiliates, parents, successors, and 9 predecessors, estates, heirs, executors, administrators, successors and assigns, and the respective 10 officers, directors, shareholders, agents, legal representatives, and any Persons they represent, 11 shall, with respect to each and every Settled Defendants’ Claim, release and forever discharge, 12 and shall forever be enjoined from prosecuting the Settled Defendants’ Claims. 13 11. The Stipulation and all negotiations, statements, and proceedings in connection 14 herewith shall not, in any event, be construed or deemed to be evidence of an admission or 15 concession on the part of the Lead Plaintiffs, any Defendant, any member of the Class, or any 16 other Person, of any liability or wrongdoing by them, or any of them, and shall not be offered or 17 received in evidence in any action or proceeding (except an action to enforce this Stipulation and 18 settlement contemplated hereby), or be used in any way as an admission, concession, or evidence 19 of any liability or wrongdoing of any nature, and shall not be construed as, or deemed to be 20 evidence of, an admission or concession that Lead Plaintiffs, any member of the Class, or any 21 other Person, has or has not suffered any damage. The Released Parties may file the Stipulation 22 and/or the Judgment in any action that may be brought against them in order to support a defense 23 or counterclaim based on principles of res judicata, collateral estoppel, full faith and credit, 24 release, good faith settlement, judgment bar or reduction or any other theory of claim preclusion 25 or issue preclusion or similar defense or counterclaim. 26 12. The Plan of Allocation is approved as fair and reasonable, and Co-Lead Counsel 27 and the Claims Administrator are directed to administer the Settlement in accordance with the 28 terms and provisions of the Stipulation. ORDER AND FINAL JUDGMENT 5 CASE NO. C-06-06286 RMW 1 13. The Court finds that all Parties and their counsel have complied with each 2 requirement of the PSLRA and Rule 11 of the Federal Rules of Civil Procedure as to all 3 proceedings herein. 4 14. Only those Class Members filing valid Proof of Claim and Release forms (“Proofs 5 of Claim”) shall be entitled to participate in the Settlement and receive a distribution from the 6 Settlement Fund. The Proof of Claim to be executed by the Class Members shall further release 7 all Released Claims against the Released Parties. All Class Members shall, as of the Effective 8 Date, be bound by the releases set forth herein whether or not they submit a valid and timely 9 Proof of Claim. 10 15. No Authorized Claimant shall have any claim against Co-Lead Counsel, the 11 Claims Administrator, or other agent designated by Co-Lead Counsel based on the distributions 12 made substantially in accordance with the Settlement and Plan of Allocation as approved by the 13 Court and any further orders of the Court. No Authorized Claimant shall have any claim against 14 the Defendants, Defendants’ Counsel, or any of the Released Parties with respect to the 15 investment or distribution of the Net Settlement Fund, the determination, administration, 16 calculation or payment of claims, the administration of the Escrow Account, or any losses 17 incurred in connection therewith, the Plan of Allocation, or the giving of notice to Class 18 Members. 19 16. Any order approving or modifying the Plan of Allocation set forth in the Notice, or 20 the application for attorneys’ fees and litigation expenses shall not disturb or affect the finality of 21 this Judgment, the Stipulation or the Settlement contained therein. 22 17. Co-Lead Counsel are hereby awarded attorneys’ fees in the amount of 20.5% of 23 the Settlement Amount, net of litigation expenses, which sum the Court finds to be fair and 24 reasonable. Co-Lead Counsel are hereby awarded a total of $257,144.07 in reimbursement of 25 litigation expenses. The foregoing awards of fees and expenses shall be paid to Co-Lead Counsel 26 from the Settlement Fund, and such payment shall be made at the time and in the manner 27 provided in the Stipulation, with interest from the date the Settlement Amount was funded to the 28 date of payment at the same net rate that interest is earned by the Settlement Fund. The award of ORDER AND FINAL JUDGMENT 6 CASE NO. C-06-06286 RMW 1 attorneys’ fees and expenses shall be allocated among Plaintiffs’ Counsel in a fashion which, in 2 the opinion of Co-Lead Counsel, fairly compensates Plaintiffs’ Counsel for their respective 3 contributions in the prosecution of the Action. 4 5 18. In making this award of attorneys’ fees and reimbursement of litigation expenses to be paid from the Settlement Fund, the Court has considered and found that: 6 (a) the Settlement has created a fund of $72,000,000 in cash that is already on 7 deposit, plus interest thereon, and that numerous Class Members who submit valid Proofs 8 of Claim will benefit from the Settlement; 9 (b) Over 408,000 copies of the Notice were disseminated to putative Class 10 Members indicating that Co-Lead Counsel were moving for attorneys’ fees not to exceed 11 20.5% of the Settlement Amount, net of expenses, and reimbursement of litigation 12 expenses from the Settlement Fund not to exceed $325,000, plus interest on both 13 amounts, and not a single objection was filed against the terms of the proposed 14 Settlement or the amount of the fees and expenses contained in the Notice; 15 16 (c) Co-Lead Counsel have conducted the litigation and achieved the Settlement with skill, perseverance and diligent advocacy; 17 (d) The Action involves complex factual and legal issues and was actively 18 prosecuted for nearly three years and, in the absence of a settlement, would involve 19 further lengthy proceedings with uncertain resolution of the complex factual and legal 20 issues; 21 (e) Had Co-Lead Counsel not achieved the Settlement there would remain a 22 significant risk that Lead Plaintiffs and the Class may have recovered less or nothing at 23 all from the Defendants; and 24 (f) The amount of attorneys’ fees awarded and expenses reimbursed from the 25 Settlement Fund are fair and reasonable and consistent with awards in similar cases. 26 19. Without affecting the finality of the Judgment in any way, the Court reserves 27 exclusive and continuing jurisdiction over the Action, the Lead Plaintiffs, the Class, and the 28 Released Parties for the purposes of: (1) supervising the implementation, enforcement, ORDER AND FINAL JUDGMENT 7 CASE NO. C-06-06286 RMW 1 construction, and interpretation of the Stipulation, the Plan of Allocation, and the Judgment; (2) 2 hearing and determining any application by Co-Lead Counsel for an award of attorneys’ fees and 3 expenses if such determination is not made at the final hearing; and (3) supervising the 4 distribution of the Net Settlement Fund. 5 20. In the event that the Settlement does not become effective in accordance with the 6 terms of the Stipulation or in the event that the Settlement Fund, or any portion thereof, is 7 returned to the Defendants, then this Judgment shall be rendered null and void to the extent 8 provided by and in accordance with the Stipulation and shall be vacated and, in such event, all 9 orders entered, including those certifying a settlement Class, and releases delivered in connection 10 11 herewith shall be null and void to the extent provided by and in accordance with the Stipulation. 21. There is no reason for delay in the entry of this Judgment and immediate entry by 12 the Clerk of the Court is expressly directed pursuant to Rule 54(b) of the Federal Rules of Civil 13 Procedure. 14 15 IT IS SO ORDERED, this 13th day of November, 2009 16 _______________________________________ THE HONORABLE RONALD M. WHYTE UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 ORDER AND FINAL JUDGMENT 8 CASE NO. C-06-06286 RMW
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