Opinion
Master File Nos. 02 Civ. 3288 (DLC), 03 Civ. 9490 (DLC).
April 25, 2005
FINAL JUDGMENT APPROVING SETTLEMENT AND DISMISSING ACTION
A hearing having been held before this Court on April 22, 2005 to determine (1) whether the terms and conditions of the Amended Stipulation of Settlement between Lead Plaintiff, on behalf of herself and the Class, and the Defendants, dated January 6, 2005 (the "Stipulation") are fair, reasonable and adequate for the settlement of all claims asserted by the Class Members against the Defendants; and (2) whether judgment should be entered dismissing the Complaint on the merits and with prejudice in favor of the Defendants, and the Released Claims should be released in favor of the Defendants and the other Releasees, as against all persons or entities who are Class Members and who have not requested exclusion from the Class;
And it appearing that a notice of the hearing substantially in the form approved by the Court was mailed to all persons and entities reasonably identifiable, who purchased or otherwise acquired Targeted Growth Enhanced Terms Securities With Respect to the Common Stock of MCI WorldCom, Inc. due August 15, 2002 during the Class Period, except those persons and entities excluded from the definition of the Class;
And it appearing that a summary notice of the hearing substantially in the form approved by the Court was published in Investor's Business Daily, pursuant to the specifications of the Court;
And the Court, having considered all matters submitted to it at the hearing, along with all prior submissions by the parties to the Settlement and others, and otherwise having determined the fairness and reasonableness of the proposed Settlement of the claims of the Class Members against the Defendants and the Releasees;
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Settlement is approved as fair, reasonable and adequate, and in the best interests of the Class Members. The parties to the Settlement are directed to consummate the Settlement in accordance with the terms and provisions of the Stipulation.
2. The Court reaffirms that all elements for maintenance of this Action as a class action have been met. Specifically, the Class satisfies the numerosity requirement of Rule 23(a)(1); there are common issues of fact and law sufficient to satisfy Rule 23(a)(2); the claims of the Plaintiffs are typical of the claims of absent Class Members, satisfying Rule 23(a)(3); the Plaintiffs are adequate representatives of the Class, satisfying Rule 23(a)(4); common issues predominate over individual issues, satisfying Rule 23(b)(3)(i); and class action treatment of this Action is a superior method of proceeding in this matter, satisfying Rule 23(b)(3)(ii). A more detailed explanation of the bases for these conclusions, which remain the conclusions of the Court, is contained in the Hearing Order of January 11, 2005.
3. The Class consists of all persons who purchased or otherwise acquired Targeted Growth Enhanced Terms Securities With Respect to the Common Stock of MCI WorldCom, Inc. due August 15, 2002 on the secondary market during the period between July 30, 1999 and April 21, 2002, inclusive, and were damaged thereby, excluding Defendants, members of Defendant Jack Grubman's family, any entity in which any Defendant has a controlling interest, and the legal representatives, heirs, successors, or assigns of any such excluded party. As used in this paragraph 3, "any entity in which any Defendant has a controlling interest" means that any such entity is excluded from the Class to the extent that the entity itself had a proprietary (i.e., for its own account) interest in TARGETS during the relevant time period. In the event that any such entity beneficially owned TARGETS in a fiduciary capacity or otherwise held TARGETS on behalf of third party clients or any employee benefit plans that otherwise fall within the Class, such third party clients and employee benefits plans shall not be excluded from the Class, irrespective of the identity of the entity or person in whose name the TARGETS were beneficially owned or otherwise held. For example, a TARGETS investor shall not be excluded from the Class to the extent it held TARGETS (i) in a registered or unregistered investment company (including a unit investment trust) for which any entity in which any Defendant has a controlling interest serves as investment manager, investment adviser or depositor; or (ii)(a) in a life insurance company separate account, or (b) in a segment or subaccount of a life insurance company's general account to the extent associated with insurance contracts under which the insurer's obligation is determined by the investment return and/or market value of the assets held in such segment or subaccount. A Defendant shall be deemed to have a "controlling interest" in an entity if such Defendant has a beneficial ownership interest, directly or indirectly, in more than 50% of the total outstanding voting power of any class or classes capital stock that entitle the holders thereof to vote in the election of members of the Board of Directors of such entity. "Beneficial ownership" shall have the meaning ascribed to such term under Rule 13d-3 of the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto. Also excluded from the Class are all the persons and entities listed on Exhibit A attached hereto, each of whom timely filed a valid request for exclusion from the Class.
4. The Court hereby finds that the notice described herein provided the best notice practicable under the circumstances. Said notice provided due and adequate notice of these proceedings and the matters set forth herein, including the Settlement and the Plan of Allocation, to all persons entitled to such notice, and said notice fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and the requirements of due process. Due and adequate notice of the proceedings has been given to the Class Members, and a full opportunity has been offered to the Class Members to object to the proposed Settlement and to participate in the hearing thereon. Thus, it is hereby determined that all members of the Class who did not elect to exclude themselves by written communication postmarked or delivered on or before April 1, 2005, as required in the Court's Hearing Order of January 11, 2005 are bound by this Final Judgment.
5. This Action is hereby dismissed on the merits and with prejudice, without fees or costs to any party except as otherwise provided in this Final Judgment. The Court finds the Complaint was filed on a good faith basis in accordance with the Private Securities Litigation Reform Act and Rule 11 of the Federal Rules of Civil Procedure based upon all publicly available information.
6. "Released Claims" means with respect to the Releasees, defined below, the release by Lead Plaintiff and all Class Members of all claims of every nature and description, known and unknown, arising out of or relating, directly or indirectly, to investments (including, but not limited to, the purchase, acquisition, exchange, retention, transfer or sale of, or investment decision involving) in TARGETS during the Class Period, whether arising under any federal, state, or foreign statutory or common law or rule, that has been, or might have been, or could be asserted against any of the Releasees at any time by or on behalf of any Class Member, in any capacity, in the Action or in any court, tribunal, or other forum or competent jurisdiction. In addition, by operation of law and of the Final Judgment, "Released Claims" also includes the release by Lead Plaintiff and Class Members of all claims of every nature and description, known and unknown, arising out of or relating, directly or indirectly, as to any or all Releasees and Parties, to any or all acts, omissions, nondisclosures, facts, matters, transactions, occurrences or oral or written statements or representations in connection with or directly or indirectly relating to the Stipulation or the Settlement of this Action.
7. "Releasees" means the Defendants, their respective present and former parents, subsidiaries, divisions and affiliates, the present and former employees, officers and directors of each of them, the present and former attorneys, accountants, insurers, partners, principals, and agents of each of them, and the predecessors, heirs, executors, administrators, successors and assigns of each, and any person or entity which is or was related to or affiliated with any Releasee or in which any Releasee has or had a controlling interest and the present and former employees, officers and directors, attorneys, accountants, insurers, partners, principals, and agents of each of them.
8. Class Members, the successors and assigns of any of them, and anyone claiming through or on behalf of any of them, are hereby permanently barred and enjoined from instituting, commencing or prosecuting, either directly or in any other capacity, any Released Claims against any of the Releasees.
9. The Released Claims against each and all of the Releasees shall be released and dismissed with prejudice and on the merits, without costs to any party, upon entry of this Final Judgment.
10. Neither the Stipulation, nor any of its terms and provisions, nor any of the negotiations or proceedings connected with it, nor any of the documents or statements referred to therein shall be:
a. Offered in evidence as proof of liability or a presumption, concession or an admission by any of the Releasees of the truth of any fact alleged or the validity of any claim that has been, could have been or in the future might be asserted in the Complaint, or otherwise against the Releasees, or of any purported liability, fault, wrongdoing or otherwise of the Releasees; or
b. Offered or received in evidence as proof of a presumption, concession or an admission of any purported liability, wrongdoing, fault, misrepresentation or omission in any statement, document, report or financial statement heretofore or hereafter issued, filed, approved or made by any of the Releasees or otherwise referred to for any other reason, other than for the purpose of and in such proceeding as may be necessary for construing, terminating or enforcing the Stipulation; or
c. Construed as a concession or an admission that Lead Plaintiff or the Class Members have suffered any damage; or
d. Construed as or received in evidence as an admission, concession or presumption against Lead Plaintiff or the Class Members, or any of them, that any of their claims are without merit or that damages recoverable under the Complaint would not have exceeded the Settlement Fund.
11. The Court finds that Lead Counsel and Lead Plaintiff adequately represented the Class for purposes of negotiating, entering into, and implementing the Settlement.
12. Lead Counsel is hereby awarded attorneys' fees in the amount of $350,000.00, to be paid from the Settlement Fund consistent with the terms of the Stipulation.
13. Lead Counsel is hereby awarded reimbursement of litigation expenses in the amount of $74,729.05, to be paid from the Settlement Fund consistent with the terms of the Stipulation.
14. Nothing in this Final Judgment shall preclude any action to enforce the terms of the Stipulation or this Final Judgment.
15. Exclusive jurisdiction is hereby retained over the parties and the Class Members for all matters relating to this Action, including the administration, interpretation, effectuation or enforcement of the Stipulation and this Final Judgment.
16. Defined terms herein are used as defined in the Stipulation.
17. In the event this Final Judgment does not become final, it shall be rendered null and void and shall be vacated and, in such event, all orders entered and releases delivered in connection herewith shall be null and void.
18. There is no just reason for delay in the entry of this Final Judgment and immediate entry by the Clerk of the Court is expressly directed pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.
SO ORDERED.