Opinion
No. 03-CV-5460 (SAS).
February 18, 2005.
FINAL JUDGMENT AND ORDER OF DISMISSAL OF CLAIMS AGAINST JENKENS GILCHRIST DEFENDANTS PURSUANT TO RULE 54(b)
On January 24, 2005, the Court heard:
A. The joint motion of the Class Representatives and the JG Defendants for entry of this Judgment confirming the Court's preliminary certification of a plaintiff settlement class pursuant to Fed.R.Civ.P. 23(b)(3); finally approving a settlement of Class claims against the JG Defendants and their Related Parties, as memorialized in a Stipulation of Settlement dated April 28, 2004, and in the December 2004 Amendment of Mediated Settlement Agreement;
B. Class Counsel's separate motion for approval of Class Counsel's Fee and Expense Applications;
C. The Class Representatives' motion for an Incentive Award; and
D. All objections filed in opposition to the settlement or to the certification of the Class herein.
Due and adequate notice was given to Class Members of these matters and of the January 24, 2005 hearing. Having considered all pleadings and other papers on file herein, the Stipulation of Settlement, the December 2004 Amendment of Mediated Settlement Agreement, all objections, and the evidence and the arguments of counsel, the Court is of the opinion that the relief requested by movants should be granted and all objections to that relief should be overruled.
THE COURT HEREBY ORDERS, ADJUDGES AND DECREES that:
1. This Judgment uses certain defined terms:
a) The " Camferdam Suit" means Henry N. Camferdam, Jr., et al. on their own behalf and on behalf of all others similarly situated v. Ernst Young Int'l, Inc., et al., Case No. 02-CV-10100 (BSJ), in the United States District Court, Southern District of New York.
b) "Claim Over" means any claim, however denominated, by a Non-Settling Defendant or Third Party against a Released Person that (i) directly or indirectly arises out of or is based upon, related to or connected with any of the Tax Strategies, and (ii) is for recovery of amounts that the Non-Settling Defendant or Third Party paid or owes to the Class (if the case in which an issue arises is a class action) or a Class Member (if the case in which an issue arises is brought by a Class Member). "Claims Over" includes, but is not limited to, all claims by a Non-Settling Defendant or Third Party for contribution and indemnity for amounts owed or paid to a Class Member. It does not, however, include claims based on a written indemnity agreement, such claims being expressly excluded.
c) The "Class" or the "Settlement Class" means all Persons who, from January 1, 1999, through December 31, 2003, inclusive, either (1) consulted with, relied upon, or received oral or written opinions or advice from Jenkens Gilchrist or any Jenkens Gilchrist attorney concerning any one or more of the Tax Strategies and who in whole or in part implemented, directly or indirectly, any one or more of the Tax Strategies or (2) filed with a Person described in (1) a joint tax return for the year(s) in which such Tax Strategy was implemented, and (3) the legal representatives, heirs, successors, and assigns of all Persons described in (1) and (2). The "Class" includes, without limitation, the individuals, partnerships, limited liability companies, trusts, corporations and other legal entities that Jenkens Gilchrist or any Jenkens Gilchrist attorney advised concerning, that were formed in connection with, or that engaged or were utilized in any one or more of the Tax Strategies. The "Class" excludes, however, any Persons described in (1), (2) and (3) who timely elected to be excluded from the Class and did not later timely revoke that election.
d) "Class Members" means a Person who falls within the definition of the Class, including but not limited to all of the Plaintiffs.
e) "Daugerdas" means Paul Daugerdas and Paul M. Daugerdas Chartered.
f) "Effective Date" means the first business day after which all of the events and conditions specified in section VIII.A.1) of the Stipulation of Settlement have been met and have occurred.
g) "Final" means —
1. in the event of an appeal of this Judgment, at the expiration of the time for seeking further review, following an affirmance;
2. in the absence of an appeal of this Judgment, at the expiration of the time for perfecting any appeal.
3. Any proceeding pertaining solely to any Plan of Allocation, Fee and Expense Application, or allowance or adjudication of Class Member claims shall not delay or preclude this Judgment from becoming Final.
h) The "JG Defendants" means Jenkens Gilchrist and all Persons (including Daugerdas, Mayer and Guerin) who, during all or any part of the period January 1, 1998, to date, held the status of director, officer, stockholder, partner, principal, member, owner and/or employee in any of the entities comprising Jenkens Gilchrist (whether or not any such Person has been sued in any of the Litigation).
i) "Jenkens Gilchrist" means Jenkens Gilchrist, a Texas Professional Corporation, Jenkens Gilchrist, an Illinois Professional Corporation, Jenkens Gilchrist Parker Chapin LLP, a New York limited liability partnership, and Jenkens Gilchrist LLP, a California limited liability partnership.
j) "Guerin" means Donna Guerin.
k) "Mayer" means Erwin Mayer.
l) "Non-Settling Defendants" means any and all defendants in the Litigation other than the Settling Defendants, including but not limited to BDO Seidman, L.L.P., Pasquale Bowers, L.L.P., Cantley Sedacca, L.L.P., Dermody, Burke, and Brown, Certified Public Accountants, PLLC, Paul Shanbrom, Edward Sedacca, Deutsche Bank AG, Deutsche Bank Securities, Inc., d/b/a Deutsche Bank Alex Brown, Ernst Young International, Inc., Ernst Young, L.L.P., Brian Upchurch, Carl Rhodes, Wayne T. Hoeing, John Richard Joyner, Sidley Austin, Brown Wood, L.L.P., and R.J. Ruble.
m) "Person" means a natural person, corporation, partnership, limited partnership, limited liability company, association, joint stock company, estate, legal representative, trust or trustee, bankruptcy estate or trustee, unincorporated association, and any other business or legal entity, and their representatives, heirs, executors, spouses, personal representatives, administrators, predecessors, successors, transferees, or assigns.
n) "Related Parties" means a Person's present or former directors, officers, partners, principals, members, stockholders, owners, employees, agents, servants, attorneys, underwriters, insurers (including, without limitation, the Carriers), subrogees, accountants, auditors, banks or investment bankers, advisors, personal or legal representatives, parent companies, subsidiaries, divisions, related and affiliated entities, predecessors, successors, joint venturers, heirs, executors, spouses, trusts, trustees, associates, administrators, any entity in which a Person has a controlling interest, any members of their immediate families, and each of their respective representatives, heirs, executors, spouses, trusts, trustees, personal representatives, conservators, administrators, successors, transferees and assigns; provided, however, that in no event shall the term Related Parties include any Non-Settling Defendants or Third Parties or their insurers.
o) "Released Claims" means any and all claims, rights, and causes of action (including Unknown Claims) for actual or exemplary damages, losses, fees, costs and other recoveries and remedies of any kind, nature and/or description whatsoever, matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown, suspected or unsuspected, contingent or non-contingent, whether or not asserted, threatened, alleged or litigated, at law, equity or otherwise. "Released Claims" include without limitation, claims for contribution, indemnification, attorneys' fees, violations of the Racketeer Influenced and Corrupt Organizations Act ( 18 U.S.C. § 1961, et seq.), civil conspiracy, breach of fiduciary duty, fraud, breach of contract, breach of the duty of good faith and fair dealing, negligence, gross negligence, negligent misrepresentation, professional malpractice, declaratory judgment, unjust enrichment, charging excessive fees, breach of any applicable duty of care, breach of duty of loyalty, defalcation, claims concerning disclosure of Class Members' identities to any Person or governmental entity pursuant to law (or a reasonable interpretation thereof), court order, subpoena or other legal compulsion, recovery of costs and expenses (including, without limitation, amounts paid in settlement) and any other breaches or violations of any federal, state or local statutes, common law doctrines, rules or regulations, that now exist or heretofore existed, that have been or could have been asserted, whether directly, indirectly, representatively, derivatively or in any other capacity, in the Litigation or any other forum (judicial, administrative, arbitral or other) against the Released Persons. Provided, however, that the Released Claims are only those (but all of those) which arise out of, are based upon, relate to, or are connected with advice, services, consultation, tax opinions, or other acts or omissions by any of the Released Persons concerning or relating directly or indirectly to any of the Tax Strategies and occurring prior to the Effective Date. "Released Claims" specifically include, but are not limited to, all claims and causes of action that the Representative Plaintiffs or the Settlement Class alleged or could have alleged against the Settling Defendants in the Litigation.
p) "Released Persons" means the Settling Defendants and their Related Parties; provided, however, that in no event shall "Released Persons" include the Non-Settling Defendants or Third Parties or their insurers, including without limitation those listed on Exhibit A.
q) The " Riggs Suit" means Jack Riggs et al. v. Jenkens Gilchrist, et al., Case No. 03-6291-C, in County Court at Law No. 3, Dallas County, Texas.
r) "Settlement Fund" means the aggregate of all payments made by the Settling Defendants, plus all accrued interest.
s) "Settling Defendants" means (i) those of Jenkens Gilchrist, Daugerdas, Mayer and Guerin who pay to the Special Master the amounts they are obligated to pay and (ii) the Carriers, only in their capacities as insurers of the JG Defendants, who pay to the Special Master the amounts they are obligated to pay under the Stipulation of Settlement.
t) "Stipulation of Settlement" means the document titled "Stipulation of Settlement" entered into by the JG Defendants, representative plaintiffs, and the settlement class on April 28, 2004, and all attachments thereto, as amended by the December 2004 Amendment of Mediated Settlement Agreement.
u) "Tax Strategies" means those tax-reducing strategies that are the basis of the Denney (i.e., this Suit), Camferdam and Riggs suits, as well as all other tax-reducing strategies advised upon or opined about by any of the JG Defendants involving (a) basis-enhancing investment transactions, (b) basis-enhancing derivatives structure, (c) basis leveraged investment swap spreads, (d) hedge option monetization of economic remainders, (e) basis adjustment remainder trust, (f) gain option partnerships, or (g) other basis-enhancing, basis-preserving, and/or gain-avoidance transactions utilizing options and/or indebtedness and involving corporations and/or partnerships. "Tax Strategy" means any one of the foregoing.
v) "Third Parties" means Persons who actually or allegedly participated, directly or indirectly, in any aspect of the design, marketing or implementation of the Tax Strategies other than the Non-Settling Defendants, the JG Defendants, and the JG Defendants' Related Parties. "Third Party" means any one of the foregoing.
2. The Court has personal and subject matter jurisdiction over all Class Members, all Settling Defendants, and all claims asserted against the JG Defendants.
3. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for purposes of this settlement only, the Court confirms its previous certification of a plaintiffs' settlement class (the Class) for purposes of settling the Released Claims against the Released Persons in accordance with the Stipulation of Settlement, and specifically finds:
(a) The number of Class Members is so numerous that joinder of all of them is impracticable.
(b) There are questions of law and fact common to the Class. The claims of all Class Members challenge the advice provided.
(c) The claims of the Class Plaintiffs (appointed below) are typical of the claims of the Class. Like the unnamed class members, the Class Plaintiffs all received legal advice, based on such advice, claimed tax benefits, and are now exposed to IRS claims for taxes, interest and penalties.
(d) The Class Plaintiffs will fairly and adequately represent the interests of the Class. There are no conflicts of interest between the Class Plaintiffs and the Class. The Class Plaintiffs have expressed and exhibited a willingness to serve as class representatives and, through Class Counsel, have exhaustively investigated this matter and aggressively pursued a fair settlement for the Class. Class Counsel (whose appointments are confirmed below) are experienced in class actions and complex commercial litigation.
(e) Questions of law and fact common to the Members of the Class predominate over any questions affecting only individual members of the Class. The following common questions, among others, predominate and will govern the outcome of the Class claims: (1) Was the legal advice correct? (2) If not, was the legal advice negligent, as measured by the appropriate standard of care applicable to tax practitioners? (3) Were JG's fees reasonable? (4) Did the legal advice cause harm in the form of (a) exposure to tax penalties measured by a percentage of the understated tax, interest, and (b) fees paid to obtain and defend this tax advice?
(f) A class action is superior to other available methods for the fair and efficient adjudication of the controversy. There are more than 1000 Class Members residing in 41 states. Given the Jenkens Gilchrist Defendants' limited resources, resolution by individual lawsuits would be unrealistic and, more importantly, unfair to the claimants. JG's insurance carriers asserted coverage defenses, and policy limits are eroded by defense costs. If the claims against the JG Defendants have merit and fall within JG's insurance coverage (both of which are uncertain), the defense costs, individual settlements, and adverse judgments incurred in multiple actions in multiple jurisdictions would quickly deplete available resources, permitting recovery only by those first few class members in line. Even prior to verdict, the pressure of multiple individual cases could cause JG lawyers to seek other opportunities and lead to the collapse of the firm. Multiple lawsuits would be an inefficient use of the limited resources of the parties and the judicial system and could lead to inconsistent decisions. Resolution of the claims against the JG Defendants by class action settlement would avoid these substantial dangers.
4. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for purposes of the Stipulation of Settlement only, the Court's previous certification of the following persons as Representative Plaintiffs is hereby confirmed and restated: Thomas Denney, R. Thomas Weeks, Norman R. Kirisits and Kathryn M. Kirisits, TD Cody Investments, LLC, RTW High Investments, LLC, NRK Syracuse Investments, LLC, DKW Partners, DKW Lockport Investors, Inc., Donald A. DeStefano and Patricia J. DeStefano, DD Tiffany Circle Investments, LLC, Tiffany Circle Partners, Diamond Roofing Company, Inc., Jeff Blumin, JB Hilltop Investments, LLC, Kyle Blumin, KB Hoag Lane Investments, LLC, Michael Blumin, MB St. Andrews Investments, LLC, Fayetteville Partners, Laurel Hollow Investors, Inc., Henry N. Camferdam, Jr. Jeffrey M. Adams, Jay Michener, Carol Trigilio, BAMC, Inc., Carmel Partners, HNC Ditch Investments, LLC, JMA Sedgemour Investments, LLC, JM Walnut Investments, LLC, CT Oak Tree Investments, LLC, Jack Riggs, Dot Com Investments, L.L.C., Sixth Street Partners, and Technology Capital Corporation.
5. The Court's previous appointment of the following attorneys as Lead Counsel and Other Class Counsel is confirmed:
Lead Class Counsel:
David R. Deary ddeary@dmdclegal.com W. Ralph Canada, Jr. rcanada@dmdclegal.com Stewart Clancy sclancy@dmdclegal.com Jeven R. Sloan jsloan@dmdclegal.com DEARY MONTGOMERY DEFEO CANADA, L.L.P. Chateau Plaza, Suite 1565 2515 McKinney Avenue Dallas, Texas 75201 (800) 497-6444 (toll free) (214) 360-9622 (214) 739-3879(fax)
Joe R. Whatley, Jr. JWhatley@WhatleyDrake.com Othni Lathram OLathram@WhatleyDrake.com WHATLEY DRAKE, LLC 2323 2nd Avenue North Birmingham, Alabama 35203 (877) 395-3238 (toll free) (205) 328-9576 (205) 328-9669 (fax)
Jeffrey H. Daichman KANE KESSLER, P.C 1350 Avenue of the Americas New York, New York 10019-4896 (212) 541-6222 (212) 245-3009 (fax)
Ernest Cory ecory@cwcd.com Jerome Tapley jtapley@cwcd.com Craig Niedenthal cniedenthal@cwcd.com CORY WATSON CROWDER DEGARIS 2131 Magnolia Avenue Birmingham, Alabama 35205 (205) 328-2200 (205) 324-7896(fax)
Other Class Counsel:
Stephen F. Malouf 3506 Cedar Springs Dallas, Texas 75219 214 969 7373 214 969 7648 (fax)
6. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court hereby approves the Stipulation of Settlement and the December 2004 Amendment of Mediated Settlement Agreement and orders that these agreements are binding upon all Class Members and the JG Defendants. The Representative Plaintiffs and the JG Defendants are hereby directed to perform the terms of these Agreements. Each Settling Defendant shall pay to the Special Masters the amount he/she/it is obligated to pay hereunder on or before the expiration of 30 days from the date this Judgment becomes Final.
7. All objections to the Settlement and to Class Certification have been considered and are hereby overruled except to the extent that their granting is reflected by this Judgment. These include the objections of Class Members Denise Hoasjoe, Robert Moore, Eric Harslem, Lorraine Clasquin, Douglas MacGregor, Jeffrey Clarke, Lorretta Clarke, James Mattei and Scott Mattei, and those of Non-Settling Defendants BDO Seidman, LLP, Paul Shanbrom, Deutsche Bank AG, and Deutsche Bank Securities, Inc., d/b/a Deutsche Bank Alex Brown.
8. Each Released Claim of each Class Member, whether or not such Class Member has filed a Proof of Claim, is hereby extinguished as against the Released Persons.
9. The Court dismisses with prejudice all of the Released Claims against all of the Released Persons.
10. The Representative Plaintiffs who are plaintiffs in Henry N. Camferdam, Jr., et al. on their own behalf and on behalf of all others similarly situated v. Ernst Young Int'l, Inc., et al., Case No. 02-CV-10100 (BSJ), in the United States District Court, Southern District of New York, and/or Jack Riggs et al. v. Jenkens Gilchrist, et al., Case No. 03-6291-C, in County Court at Law No. 3, Dallas County, Texas, are directed to seek a dismissal with prejudice of all Released Claims against all Released Persons in those two cases.
11. All Class Members, whether or not they file a Proof of Claim, are permanently enjoined from commencing or prosecuting, directly, indirectly, representatively, derivatively or in any other capacity any of the Released Claims against any of the Released Persons in this or any other proceeding, tribunal, or forum.
12. All Non-Settling Defendants and all Third Parties are permanently barred and enjoined from commencing or prosecuting any action against Released Persons based on a Claim Over. To make this bar order reciprocal, all Settling Defendants are permanently barred and enjoined from commencing or prosecuting any action against Non-Settling Defendants or Third Parties for recovery of the equivalent of a Claim Over — any amounts paid in this settlement. This paragraph does not bar or enjoin anyone from asserting contribution, indemnity or other Claims Over for recovery of amounts owed or paid to those who opted out of the Class and did not timely revoke the opt-out election.
13. Notwithstanding any other provision of this judgment, no Released Person shall be liable to any Non-Settling Defendant or Third Party on any Claim Over for amounts owed or paid to Class Members.
(a) To effectuate this protection of Released Persons and to compensate Non-Settling Defendants and Third Parties for the barring of their Claims Over, the Court orders that any judgment or award obtained by the Settlement Class (if the case in which an issue arises is a class action) or a Member thereof (if the case in which an issue arises is brought by a Class Member) against a Non-Settling Defendant or Third Party will be reduced by the amount or percentage, if any, necessary under applicable law to relieve the Released Persons of all liability to such Non-Settling Defendant or Third Party on such barred Claims Over. In any case in which applicable law is silent, the amount of settlement credit, offset or judgment reduction, if any, will be the amount or percentage agreed or determined in that case.
(b) The obligation of the Settlement Class (if the case in which an issue arises is a class action) or affected Members thereof (if the case in which an issue arises is brought by one or more Class Members) under this ¶ 13 shall be accomplished by judgment reduction, partial or complete release, settlement credit, setoff, election to recover exclusively under an award for which there is no Claim Over, or such other method as may be permitted by applicable law; this obligation exists only to the extent necessary to effectuate the Settling Parties' intent to fully protect the Released Persons from all Claims Over.
(c) Such judgment credit, settlement credit, release or setoff shall be in an amount or percentage sufficient under applicable law as determined by the court in which the issue arises to compensate the Non-Settling Defendant or Third Party for the loss of its Claim Over.
(d) No Class Member shall be obligated to protect Released Persons from Claims Over that are based on amounts owed or paid to another Class Member; thus, for example, Class Member X shall have no obligation to protect Released Persons from Claims Over asserted by a Non-Settling Defendant or Third Party for recovery of amounts owed or paid to Class Member Y.
(e) Nor shall any Class Member have any obligation to provide Claims Over protection in an amount greater than the amount awarded to him against Non-Settling Defendants or Third Parties.
(f) The Court finds this judgment credit, settlement credit, release or setoff to be fair and adequate compensation for any barred Claim Over.
(g) Nothing in this Judgment shall require the Class or any Class Member to reduce a judgment or award obtained against a Non-Settling Defendant or Third Party if such Non-Settling Defendant or Third Party has no Claim Over against Released Persons. If a Class Member obtains a judgment that consists of multiple awards, some on causes of action for which the Non-Settling Defendant or Third Party has a Claim Over against Released Persons and others on which the Non-Settling Defendant or Third Party does not, then if an award-specific reduction fully protects Released Persons from Claims Over, the Class Member need only reduce those awards for which the Non-Settling Defendant or Third Party has a Claim Over.
(h) Nothing in this Judgment shall require the Class or any Class Member to provide legal counsel to Released Persons or otherwise to defend Released Persons from Claims Over.
(i) Other than as specified herein, this ¶ 13 shall not affect or diminish the rights of Class Members to assert claims against any Non-Settling Defendant or Third Party for which the Non-Settling Defendant or Third Party and the Released Persons would, in the absence of this ¶ 13, be jointly and severally liable.
14. Neither this Judgment, the Stipulation of Settlement, nor any act performed or document executed pursuant to or in furtherance of the Stipulation of Settlement: (i) is or shall be deemed to be or shall be used as an admission of, or evidence of, the validity of any Released Claims or any wrongdoing by or liability of any Released Persons; (ii) is or shall be deemed to be or shall be used as an admission of, or any evidence of, any fault or omissions of any Released Person in any statement, release or written document or financial report issued, filed or made; (iii) shall be offered or received in evidence against any Released Person in any civil, criminal or administrative action or proceeding in any court, administrative agency, arbitral or other tribunal other than such proceedings as may be necessary to consummate or enforce the Stipulation of Settlement, the releases executed pursuant thereto, and/or the Judgment, except that the Stipulation of Settlement and the Judgment and the Exhibits thereto may be filed in the Litigation or in any subsequent action brought against any of the Released Persons in order to support a defense or counterclaim of any Released Person of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction, or any other theory of claim or issue preclusion or similar defense or counterclaim, including without limitation specific enforcement of the settlement embodied in the Stipulation of Settlement by way of injunctive relief.
15. Nothing in this Judgment prejudices or limits in any way the right of the Government of the United States to obtain or use information. In addition, all provisions regarding the Government contained in the Order and Agreements (as defined in the May 14, 2004 Order Preliminarily Certifying a Settlement Class Pursuant to Fed.R.Civ.P. 23(b)(3); Preliminarily Approving Settlement With And Enjoining Claims Against The Jenkens Gilchrist Defendants; Appointing Class Representatives And Class Counsel; Setting Hearing Date for Consideration Of Final Settlement, and Providing For Notice And Confidential Treatment of Class Member Identities) are incorporated by reference herein and apply to this Judgment with the same force and effect that those provisions apply to the Order and Agreements. Nothing in this Judgment or in any agreement of the parties that relates to the admissibility of evidence shall apply to or be binding on the Government or any federal administrative agency, or shall be binding on any court with respect to the Government or any federal administrative agency.
16. The Court hereby awards $11,985,965 to Lead Class Counsel and Other Class Counsel as fees and $575,650 to Lead Class Counsel and $48,854 to Other Class Counsel as expenses (the "Fee and Expense Awards"), to be paid by the Special Master out of the Settlement Funds. The Court also awards each of the Twelve Individual Representative Plaintiffs (the seven in the Denney Group, the four in the Camferdam Group, and Riggs) the sum of $10,000 (the "Incentive Awards"). The Court finds that the Incentive Awards are justified given the Individual Representative Plaintiffs' services in connection with the settlement.
17. The Fee and Expense Awards and Incentive Awards shall be paid from the Settlement Fund within three (3) business days after the Court executes an order making such Award and such Award becomes final and non-appealable, or three business days after the Settlement Fund is funded, whichever is later. If all or any part of the Fee and Expense Awards or the Incentive Awards is appealed, the Special Master shall segregate from the Settlement Fund an amount equal to those items that are the subject of the appeal, and hold such amount in escrow (invested in the same way as the Settlement Fund) pending a final disposition of the appeal. If some portions of the Fee and Expense Award or the Incentive Awards are appealed, but others are not, the Special Master need only escrow an amount equal to the portions that are appealed. For example, if the Fee award is appealed, but the Expense award is not, the Special Master shall escrow only an amount equal to the Fee Award and distribute to Class Counsel an amount equal to the Expense Award.
18. Without affecting the finality of this Judgment in any way, this Court retains continuing jurisdiction over (a) implementation of the Stipulation of Settlement and any award or distribution of the Settlement Fund, including interest earned thereon and (b) disposition of the Settlement Fund.
19. In the event that the Effective Date does not occur, then this Judgment shall be rendered null and void and shall be vacated and, in such event, subject to the Stipulation, all orders entered and releases delivered in connection herewith shall be null and void.
20. Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the Court finds that there is no just reason for delay of entry of a final judgment confirming the Settlement as between the Representative Plaintiffs and the Class, on the one hand, and the JG Defendants, on the other. If entry of final judgment were delayed, the settlement approved herein would likely collapse and the judgment would become a nullity. Accordingly, the Court expressly directs that this Judgment be deemed, and the same hereby is, Final.
21. The Clerk of the Court is directed to promptly prepare, sign and enter a final judgment in accordance herewith.
Exhibit A Third Parties Not Released
ALAN C. KLEIN ALIMARN, INC. ALTHEIMER GRAY AMERICAN CAPITAL FINANCIAL CORP AMERICAN EXPRESS COMPANY AMERICAN EXPRESS TAX AND BUSINESS SERVICES, INC. AMY KURZMAN ARNOLD B. MALK, LTD. ARTHUR ANDERSEN LLP ASHLEY QUINN ASHLEY QUINN NELSON ASSET SOLUTIONS GROUP, INC. BANK ONE BANK ONE INNOVATIVE STRATEGIES GROUP BANK ONE, NA BBGPR, LLC BEARD MILLER COMPANY, LLP BDO SEIDMAN BDO SELDMAN, LLP BEB CONSULTING BELL, NUNNALLY MARTIN, PLLC BLACKMAN KALLICK BARTELSTEIN BLACKMAN KALLICK BARTELSTEIN, LLP BRADLEY LAW FIRM BRIAN UPCHURCH BRIDGE CAPITAL GROUP BROWNLIE BRADEN GOODRICH CAPITOL SERVICES, INC. CARL RHODES CBIZ BUSINESS SOLUTIONS, INC. CHRIS FAY CLEARWATER CONSULTING CONCEPTS CORPORATE SERVICES GROUP, LLP/MOHN ASSETS CRAIG BRUBAKER CROSSLIN VADEN ASSOCIATES, P.C. J. DELL CROSSLINCYNDY MONTGOMERY DARBY MONROE MANAGEMENT DARLENE FINK DAVENPORT MARVIN JOYCE CO., LLP DAVID J. LUKINOVICH DAVID J. LUKINOVICH, ESQ. DAVID PARSE DAVID RHODES DELOITTE TOUCHE, LLP DEUTSCHE BANK A.G. DEUTSCHE BANK ALEX BROWN DEUTSCHE BANK SECURITIES, INC. DIXON ODOM FINANCIAL ADVISORS, DUMAINE CONSULTING EARL G. CHESSON ELLIOTT P. FOOTER ERIC WEINER ERNST YOUNG LLP ESOT RESOURCES, INC. ESSEX ESSEX, LLC EVC (EXIT VALUE CONSULTING) FEINGOLD ALPERT, L.L.P. FERS FINANCIAL SERVICES/MCK INC. FIRST UNION NATIONAL BANK FIRST UNION NATIONAL BANK OF N FOREIGN SALES ADVISORY, INC. FORT INVESTMENTS, INC. FRIDAY, ELDREDGE CLARK GDC CONSULTING, INC. GRADY DICKENS HANEY BENENATI, P.C. HARBOUR FINANCIAL RESOURCES, LTD. HENRY HELD ASSOCIATES, P.C. HILL CHESSON WOODY HOLLY ROUNDTREE HR INVESTORS, INC. HUDSON CISNE THESSING CO LLP
INLIGN ACCOUNTING, CPA, PLCC INTERSTAR CAPITAL GROUP, LLC INTERSTAR CAPITAL, LLC INVESTED INTEREST JACKSON TYLER, L.L.P. JACKSON TYLER, ESQ. JAMES SIEGFRIED JAYNES REITMEIER BOYD THERRELL, PC JEFFREY GOLDBERG JIM BLINKA JIM HELLER JOHN B. OHLE, III JOHN G. ROBINSON JOHNSON GRUSIN SURPRISE P.C. F/K/A JOHNSON, GRUSIN, KEE SURPRISE P.C. KALB PECK, P.L.L.C. KBL WEALTH MANAGEMENT STRATEGIES KENNETH T. KELLEY LAW ASSOC. KLEIN ASSOCIATES KLEIN POLLACK, LLP KPMG LLP KPMG PEAT MARWICK LLP KRAM BOULEVARD, INC. KRAUSE ASSOCIATES LAURENCE GOODRICH LAW, SNAKARD GAMBILL, P.C. LEGACY CAPITAL GROUP LINCOLN NATIONAL CORPORATION D/B/A LINCOLN FINANCIAL GROUP LINCOLN NATIONAL FINANCIAL INSTITUTIONS GROUP LINCOLN FINANCIAL ADVISORS CORPORATION LINKS CONSULTING LLC MARK BROWN MARK BROWN, CPA, P.C. MARK MANDELL MARK PUCKETT MARKUSON KALB MCK, INC. MICHAEL COLLINS MICHAEL KEREKES
MICHAEL KROSS MIKE MOORE MICHAEL NELSON MORGAN STANLEY CO. INCORPORATED MORGAN STANLEY CAPITAL GROUP INC. MORGAN STANLEY DW INC. NATION SMITH HERMES DIAMOND NEIL ROSENBERG NELSON COMPANY, P.C. F/K/A NELSON, FINK COMPANY, PC NJS ENTERPRISES, INC. PARAMOUNT CAPITAL CORPORATION PAUL SHANBROM PAUL YOUNG PAULA JEFFERSON ASSOCIATES, PHILLIP MILES PRICEWATERHOUSECOOPERS PRICEWATERHOUSECOOPERS LLP PTB PROPERTIES, INC. PROFESSIONAL FINANCIAL SERVICES CO. RANDY KRAUTHAMER RAGGI WEINSTEIN, LLP CPA CONSULTANTS BOB RAGGI RALPH LOVEJOY RANDY SMITH RAUZI RETIREMENT ESTATE PLAN REAGIN K. LORENZEN REB BORTZ RICHARD F. JUDD RITA ROTHSTEIN ROBERT A. GOLDSTEIN ROBERT DUDZINSKY ROBERT GREISMAN ROBERT T. NAPIER ASSOCIATES RONALD THON R.J. RUBLE S O CONSULTING GROUP INC. SCHEEF STONE, L.L.P. SCHMIDT FINANCIAL GROUP SCOTT D. DEICHMANN SEQUOYAH CAPITAL CONSULTING
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