Opinion
LERACH COUGHLIN STOIA & ROBBINS LLP, WILLIAM S. LERACH, DARREN J. ROBBINS, RANDALL J. BARON, LAURA M. ANDRACCHIO, ELLEN GUSIKOFF STEWART, STEPHEN J. ODDO, San Diego, CA, and PATRICK J. COUGHLIN, MARIA V. MORRIS, San Francisco, CA, Attorneys for Plaintiff.
SULLIVAN & CROMWELL LLP, ROBERT A. SACKS, KEVIN M. O'BARR, Los Angeles, CA, and SULLIVAN & CROMWELL LLP, Palo Alto, CA, Attorneys for Defendants.
STIPULATION AND [PROPOSED] ORDER OF DISMISSAL
SUSAN ILLSTON, Chief District Judge.
WHEREAS, the parties to the above-captioned litigation were parties to a parallel class action settled in the Superior Court for the State of California, County of Santa Clara, entitled Olmsted v. ADAC Laboratories, et al., Case No. CV793923 (the "State Court Action"); and
WHEREAS, the Stipulation of Settlement executed by the parties to the State Court Action provides for the dismissal of the above-captioned action; and
WHEREAS, notice that this action would be dismissed was included in the Notice of Pendency and Proposed Settlement of Class Action provided to the Settlement Class; and
WHEREAS, Judgment was entered in the State Court Action on May 10, 2004; and
WHEREAS, the Judgment in the State Court Action requires the parties to seek dismissal of this action, see Judgment attached hereto; and
WHEREAS, the parties previously informed the Court that the settlement of the State Court Action would include dismissal of this action, and proceedings in this action have been stayed pending final approval of the settlement in the State Court Action; and
WHEREAS, the parties hereto seek such dismissal pursuant to that Judgment.
IT IS HEREBY STIPULATED by the parties, through their attorneys of record, that
1. The above-captioned action is dismissed with prejudice, with each party to bear their own costs, except as set forth in the Stipulation of Settlement executed in the State Court Action and the Judgment entered therein.
ORDER
IT IS SO ORDERED.
EXHIBIT C
This matter came before the Court for hearing pursuant to an Order of this Court, dated January 21, 2004, on the application of the Settling Parties for approval of the settlement set forth in the Stipulation of Settlement dated as of January 15, 2004 (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 Settlement Class.
3. Except as to any individual claim of those Persons (identified in Exhibit 1 attached hereto) who validly and timely requested exclusion from the Settlement 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 Settlement Class, and as against the Defendants. The parties are to bear their own costs, except as otherwise provided in the Stipulation.
4. Pursuant to § 382 of the California Code of Civil Procedure and Rule 1859 of the California Rules of Court, the Court hereby certifies, for purposes of effectuating this settlement only, a Settlement Class of all Persons who sold ADAC stock in connection with the Acquisition of ADAC by Philips, whether in the Tender Offer/Merger or the Merger. Excluded from the Settlement Class are Defendants, members of the immediate families of any Defendant, any entity in which any Defendant has or had a controlling interest, directors and officers of ADAC and Philips, and the legal representatives, heirs, successors, or assigns of any such excluded Person or entity. Also excluded from the Settlement Class are those Persons (identified in Exhibit 1 attached hereto) who timely and validly requested exclusion from the Settlement Class.
5. With respect to the Settlement Class, this Court finds and concludes that: (a) the members of the class are so numerous that joinder of all class members in the Litigation is impracticable; (b) there are questions of law an fact common to the class which predominate over any individual questions; (c) the claims of the Representative Plaintiffs are typical of the claims of the class; (d) the Representative Plaintiffs and their counsel have fairly and adequately represented and protected the interests of all of the class members; and (e) a class action is superior to other methods for the fair and efficient adjudication of the matter.
6. Pursuant to § 382 of the California Code of Civil Procedure and Rule 1859 of the California Rules of Court, 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 Settlement Class and each of the Settlement 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 Settlement 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.
7. Upon the Effective Date hereof, the Representative Plaintiffs and each of the Settlement 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, including Unknown Claims, against the Released Persons, whether or not such Settlement Class Member executes and delivers a Proof of Claim and Release.
8. All Settlement Class Members are hereby forever barred and enjoined from prosecuting the Released Claims, including Unknown Claims, against the Released Persons.
9. 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 Settlement 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, the Federal Action or the Released Claims.
10. The parties are directed to obtain dismissal of the Federal Action.
11. The Notice of Pendency and Proposed Settlement of Class Action given to the Settlement Class was the best notice practicable under the circumstances, including the individual notice to all Members of the Settlement Class who could be identified through reasonable effort. Said Notice provided the best notice practicable under the circumstances of the settlement proceedings and of the matters set forth in the Stipulation to all Persons entitled to such notice, and said Notice fully satisfied the requirements of § 382 of the California Code of Civil Procedure and Rule 1856 of the California Rules of Court, and the requirements of due process.
12. The Plan of Allocation of the settlement proceeds is approved. Both the Plan of Allocation submitted by Plaintiffs' Settlement Counsel, as well as any order entered regarding the attorneys' fees application, shall in no way disturb or affect this Final Judgment and shall be considered separate from this Final Judgment.
13. During the course of the Litigation, all Settling Parties and their counsel complied with California Code of Civil Procedure § 128.7.
14. 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 or lack thereof of any Released Claim, or of any wrongdoing or liability of the Defendants; or (b) is or may be 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.
15. 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, costs, interest and expenses in the Litigation; (d) all parties hereto for the purpose of construing, enforcing and administering the Stipulation; (e) enforcing and administering this Judgment; and (f) other matters related or ancillary to the foregoing.
16. 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.
IT IS SO ORDERED.
EXHIBIT 1
From: Mary Breen for William J. Breen who is deceased
Date: March 8, 2004
My husband, Williams J. Breen, worked for ADAC Laboratories for 16 years. He died on December 3, 2003. Please see the enclosed copy of his death certificate. I have gone through my records and cannot find documentation of the sale of any stock during the time of the merger between Phillips and ADAC Laboratories. There may be (10) stocks that I can't really account for, but not enough for me to feel as if I would like to become involved in this litigation.
Please exclude my husband's estate, of which I am the sole heir, from the Settlement Class of this litigation.
Here are the details your requested:
I hope this has been helpful.
DECLARATION OF SERVICE BY MAIL
I, the undersigned, declare:
1. That declarant is and was, at all times herein mentioned, a citizen of the United States and a resident of the County of San Diego, over the age of 18 years, and not a party to or interest in the within action; that declarant's business address is 401 B Street, Suite 1700, San Diego, California 92101.
2. That on April 5, 2004, declarant served the [PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE by depositing a true copy thereof in a United States mailbox at San Diego, California in a sealed envelope with postage thereon fully prepaid and addressed to the parties listed on the attached Service List.
3. That there is a regular communication by mail between the place of mailing and the places so addressed.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 5th day of April, 2004, at San Diego, California.
DECLARATION OF SERVICE BY MAIL
I, the undersigned, declare:
1. That declarant is and was, at all times herein mentioned, a citizen of the United States and a resident of the County of San Diego, over the age of 18 years, and not a party to or interest in the within action; that declarant's business address is 401 B Street, Suite 1700, San Diego, California 92101.
2. That on May 14, 2004, declarant served the NOTICE OF ENTRY OF (1) ORDER AWARDING PLAINTIFFS' COUNSEL'S ATTORNEYS' FEES AND REIMBURSEMENT OF EXPENSES; (2) ORDER APPROVING PLAN OF ALLOCATION OF SETTLEMENT PROCEEDS; AND (3) FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE by depositing a true copy thereof in a United States mailbox at San Diego, California in a sealed envelope with postage thereon fully prepaid and addressed to the parties listed on the attached Service List.
3. That there is a regular communication by mail between the place of mailing and the places so addressed.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 14th day of May, 2004, at San Diego, California.