Summary
In HI/FN, the court was presented with particularized allegations demonstrating that sale personnel had confronted executives within top management with regard to revenue forecasts.
Summary of this case from In re Foundry Networks, Inc. Secur. Litig.Opinion
Master File No. C-99-4531-SI, This Document Relates To: ALL ACTIONS. C-99-4531-SI, C-99-4641-SI, C-99-21044-EM, C-99-21068-PVT, C-99-21114-EM C-99-21150-PVT
August 30, 2002
COUNSEL FOR PLAINTIFF(S):
Kenneth A. Elan, LAW OFFICES OF KENNETH A. ELAN, New York, NY.
Martin D. Chitwood, CHITWOOD HARLEY, Atlanta, GA.
James A. Caputo, SPECTOR, ROSEMAN KODROFF, P.C., San Diego, CA.
Leo W. Desmond, LAW OFFICES OF LEO W. DESMOND, West Palm Beach, FL.
Paul J. Geller, CATJLEY, GELLER, BOWMAN COATES, LLP Boca Raton, FL.
Alfred G. Yates, Jr., LAW OFFICES OF ALFRED G. YATES, JR. Pittsburgh, PA.
Patrick J. Coughlin, Jeffrey W. Lawrence, John K. Grant, MILBERG WEISS BERSHAD HYNES LEPACH LLP, San Francisco, CA.
Robert C. Susser, ROBERT C. SIJSSER, P.C., New York, NY.
Marc S. Henzel, LAW OFFICES OF MARC S. HENZEL, Bala Cynwyd, PA.
Stephen R. Basser, Matthew P. Montgomery Benjamin Gladston BARRACK, RODOS BACINE, San Diego, CA
William S. Lerach, MILBERG WEISS BERSHAD HYNES LERACH, San Diego, CA.
Brian Murray, RABIN PECKEL, LLP, New York, NY.
Jeffrey H. Squire, Ira M. Press, KIRBY, MCINERNEY SQUIRE, New York, NY.
Lionel Z. Glancy, GLANCY BINKOW LLP, Los Angeles, CA.
Jeffrey R. Krinsk, FINKELSTEIN KRINSK, San Diego, CA.
COUNSEL FOR DEFENDANTS :
Jerome F. Birn, Jr., WILSON SONSINI GOODRICH ROSATI, Palo Alto, CA.
CLASS ACTION FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE
FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE
This matter came before the Court for hearing pursuant to an Order of this Court, dated June 10, 2002, on the application of the Setting Parties for approval of the settlement set forth in the Stipulation of Settlement dated as of May 15, 2002 (the "Stipulation"). Due and adequate notice having been given of the settlement as required in said Order, and the Court having considered all papers filed and proceedings had herein and otherwise being fully informed in the premises and good cause appearing therefore, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:
1. This Judgment incorporates by reference the definitions in the Stipulation, and all terms used herein shall have the same meanings set forth in the Stipulation.
2. This Court has jurisdiction over the subject matter of the Litigation and over all parties to the Litigation, including all Members of the Class.
3. Except as to any individual claim of those Persons (identified in Exhibit 1 hereto) who have validly and timely requested exclusion from the Class, the Litigation as well as all of the Released Claims are dismissed with prejudice as to the Representative Plaintiffs and the other Members of the Class, and as against the Defendants. The parties are to bear their own costs, except as otherwise provided in the Stipulation.
4. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court hereby approves the settlement set forth in the Stipulation and finds that said settlement is, in all respects, fair, reasonable and adequate to, and is in the best interests of, the Representative Plaintiffs, the Class and each of the Class Members. This Court further finds the settlement set forth in the Stipulation is the result of arm's-length negotiations between experienced counsel representing the interests of the Representative Plaintiffs, the Class Members and the Defendants. Accordingly, the settlement embodied in the Stipulation is hereby approved in all respects and shall be consummated in accordance with its terms and provisions. The Settling Parties are hereby directed to perform the terms of the Stipulation.
5. Pursuant to § 3(a)(10) of the Securities Act of 1933, as amended (the "Securities Act"), the Court finds that the issuance of the Settlement Stock as part of the Settlement Fund for distribution to the Class and to Representative Plaintiffs' Counsel for attorneys' fees shall be without registration under the Securities Act in reliance upon the exemption under § 3(a)(10) thereto.
6. Upon the Effective Date hereof, the Representative Plaintiffs and each of the Class Members shall be deemed to have, and by operation of the Judgment shall have, fully, finally, and forever released, relinquished and discharged all Released Claims against the Released Persons, whether or not such Class Member executes and delivers a Proof of Claim and Release.
7. All Class Members are hereby forever barred and enjoined from prosecuting the Released Claims against the Released Persons.
8. Upon the Effective Date hereof, each of the Released Persons shall be deemed to have, and by operation of this Judgment shall have, fully, finally, and forever released, relinquished and discharged each and all of the Class Members and counsel to the Representative Plaintiffs from all claims (including "Unknown Claims"), arising out of, relating to, or in connection with the institution, prosecution, assertion, settlement or resolution of the Litigation or the Released Claims.
9. The Notice of Proposed Settlement of Class Action given to the Class was the best notice practicable under the circumstances, including individual notice to all members of the Class who could be identified through reasonable effort. Said Notice provided the best notice practicable under the circumstances of those proceedings and of the matters set forth therein, including the proposed settlement set forth in the Stipulation, to all Persons entitled to such notice, and said Notice fully satisfied the requirements of Federal Rule of Civil Procedure 23 and the requirements of due process.
10. Any plan of allocation submitted by Plaintiffs' Settlement Counsel or any order entered regarding the attorneys' fees and expense application shall in no way disturb or affect this Final Judgment and shall be considered separate from this Final Judgment.
11. Neither the Stipulation nor the settlement contained therein, nor any act performed or document executed pursuant to or in furtherance of the Stipulation or the settlement: (a) is or may be deemed to be or may be used as an admission of, or evidence of, the validity of any Released Claim, or of any wrongdoing or liability of the Defendants; or (b) is or may deemed to be or may be used as an admission of, or evidence of, any fault or omission of any of the Defendants in any civil, criminal or administrative proceeding in any court, administrative agency or other tribunal. Defendants may file the Stipulation and/or the Judgment in any other action that may be brought against them in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction or any theory of claim preclusion or issue preclusion or similar defense or counterclaim.
12. 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 the Settlement Fund, including interest earned thereon; (b) disposition of the Settlement Fund; (c) hearing and determining applications for attorneys' fees and expenses in the Litigation; and (d) all parties hereto for the purpose of construing, enforcing and administering the Stipulation.
13. The Court finds that during the course of the Litigation, the Settling Parties and their respective counsel at all times complied with the requirements of Federal Rule of Civil Procedure 11.
14. In the event that the settlement does not become effective in accordance with the terms of the Stipulation or in the event that the Settlement Fund, or any portion thereof, is returned to the Defendants, then this Judgment shall be rendered null and void to the extent provided by and in accordance with the Stipulation and shall be vacated and, in such event, all orders entered and releases delivered in connection herewith shall be null and void to the extent provided by and in accordance with the Stipulation.