Opinion
MDL No. 1290 (TFH), Misc. No. 99ms276, Case No.: 1:99cv00790 Consolidated with Case No.: 99 c 2228 (U.S. District Court for the District of Illinois)
January 29, 2002
Mitchell E. Zamoff, David J. Hensler, Hogan Hartson, LLP, Washington, D.C. 20004, Attorney for Mylan Defendants.
Gary W. Kubek, Christopher K. Tahbaz, DeBevoise Plimpton, New York, NY, Attorneys for Cambrex Corp. and Profarmaco S.r.L.
Irving Scher, Weil Gotshal Manges, LLP, New York, NY, Attorneys for Gyma Laboratories of America, Inc.
Sidney S. Rosdeitcher, Robert Kravitz, Paul Weiss Rifkind Wharton Garrison, New York, N.Y. 10019, Attorneys for SST Corporation.
Randall David Marks, Esq., Federal Trade Commission, 6th Washington, DC, Attorneys for Federal Trade Commission.
Mitchell L. Gentile, State of Ohio Attorney General's Office, Columbus, Ohio 43215, Lead Counsel for State Attorneys General.
Bernard Persky, Goodkind Labaton Rudoff Sucharow, LLP, New York, NY, Co-Lead Counsel for Indirect Purchaser Plaintiffs.
Robert S. Schachter, Joseph Tusa, Zwerling Schachter Zwerllng, LLP, New York, NY, Co-Lead Counsel for Indirect Purchaser Plaintiffs.
Richard M. Volin, Finkeistein, Thompson Lougliran, Washington, D.C., Retail Pharmacist Liaison Counsel.
FINAL ORDER AND JUDGMENT APPROVING SETTLEMENT BETWEEN PLAINTIFFS, THE SETTLEMENT CLASS, AND DEFENDANT SST CORPORATION
This action (the "Action") having come before this Court for a hearing on January 29, 2002, pursuant to the Order Conditionally Certifying Settlement Class and Preliminarily Approving Proposed Settlement Between Plaintiffs, the Settlement Class, and Defendant SST Corporation ("SST") dated April 27, 2001 (the "Preliminary Approval Order"); and due notice of said hearing having been published and given; and all persons having objections to the proposed settlement set forth in the Stipulation of Settlement dated February 6, 2001 (the "Settlement Agreement") and described in the Notice of Class Action Settlement (Partial) (the "Notice"), having been given an opportunity to present such objections to the Court; and all persons having been given an opportunity to request exclusion; and the Court having considered the matter, including all papers filed in connection therewith, and the oral presentations of counsel at said hearing; and good cause appearing therefor,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:
1. This Court has jurisdiction over this Action and each of the parties to the Settlement Agreement. The terms and phrases used in this judgment shall have the same definition and meaning as in the Settlement Agreement, unless otherwise defined herein.
2. The Court hereby confirms its Preliminary Approval Order and certifies the Settlement Class (as defined below) for settlement purposes pursuant to Rule 23 of the Federal Rules of Civil Procedure. The Court further finds that the named plaintiffs are adequate representatives for the Settlement Class, that their counsel are appropriate Class Counsel for the Settlement Class.
3. The Court finds that the prerequisites for a class action under Rule 23 of the Federal Rules of Civil Procedure have been met, and that the named plaintiffs and Class Counsel have represented the Settlement Class adequately to satisfy the requirements of due process and Rule 23.
4. The Court finds that adequate notice was given, whereby: (a) a Summary Notice by publication, as approved by the Court in its orders dated August 16, 2001 and August 28, 2001 (the "Notice Orders"), was published in MODERN HEALTHCARE MAGAZINE on September 10, 2001 and October 1, 2001 and THE PINK SHEET (published by the F.D.C. reports) on September 17, 2001 and Notice posted continuously on the Internet from September 15, 2001 to December 14, 2001; and (b) Notice, and Notice of Exclusion forms, as approved in the Notice Orders were mailed by first-class mail on September 15, 2001 to all of the members of the following "Settlement Class" who could reasonably be identified, as more fully set forth in the Supplemental Affidavit of Richard Cody Bland dated January 4, 2002:
All non-governmental hospitals, health maintenance organizations, health care delivery systems, managed healthcare companies, pharmaceutical wholesalers, distributors, retailers, and other entities that purchased Lorazepam and/or Clorazepate tablets directly from Mylan Laboratories, Inc., Mylan Pharmaceuticals, Inc., or UDL Laboratories, Inc. ("Mylan") during the period January 1, 1998 through December 31, 2000, including all such entities that purchased Lorazepam and/or Clorazepate tablets at prices contracted for directly with Mylan by a group purchasing organization of which the purchasing entity was a member. Excluded from the class are Defendants and their respective subsidiaries and affiliates.
Such notice is hereby determined to be in full compliance with requirements of Rule 23 of the Federal Rules of Civil Procedure and due process and is found to be the best notice practicable under the circumstances and to constitute due and sufficient notice to all persons entitled thereto.
5. Due and adequate notice of the proceedings having been given to the Settlement Class and a full opportunity having been offered to the Settlement Class to participate in the hearing, it is hereby determined that all Settlement Class Members (as defined in Paragraph 10 below) are bound by the Final Order and Judgment.
6. The Settlement of this Action was not the product of collusion between plaintiffs and SST Corporation or their respective counsel, but rather was the result of bona fide and arm's-length negotiation conducted in good faith by the Parties and their counsel.
7. The Settlement Agreement and the settlement set forth therein (the "Settlement"), are hereby approved and confirmed as fair, adequate and reasonable, and in the best interest of the Settlement Class as a whole, and its terms satisfy Rule 23 of the Federal Rules of Civil Procedure.
8. The Settlement Funds will remain in the Escrow Settlement Fund Account until such future time as the Allocation and Distribution Plan is filed with the Court and approved, potentially in conjunction with and in combination with future settlements or judgments, if any, involving the other remaining defendants in the Action. The proceeds of the Settlement Fund Account shall be distributed in the manner provided therein.
9. The Court hereby dismisses this Action as it pertains to SST, with prejudice and without costs.
10. The term "Settlement Class Members" as used herein refers to all members of the Settlement Class except those who timely requested exclusion as identified on Exhibit 1 to the Affidavit of Richard Cody Bland dated January 4, 2002 and attached hereto as Exhibit A. Without any further action by anyone, the Settlement Class Members, on behalf of themselves, their past and present partners, officers, directors, agents, attorneys, owners, shareholders, trustees, beneficiaries, parents, subsidiaries, divisions, affiliates and the heirs, executors, administrators, predecessors, successors and assigns of each of the foregoing (the "Releasors"), for good and sufficient consideration, are hereby deemed to have released and forever discharged each and every direct, individual, class, representative, derivative and other claim, right, action, allegation, demand, defense, counterclaim, issue, setoff, liability, penalty and cause of action of every nature and description whatsoever known or unknown, suspected or unsuspected, including (without limitation) all claims for damages, restitution, disgorgement or recission, or any other legal or equitable relief; liquidated or unliquidated, which the Releasors, or any of them, had, now has or may hereafter have against Releasees (as defined below), or any of them, arising from or in connection with or in any way related, directly or indirectly, to any of the acts, facts, matters, transactions, events, occurrences, disclosures, statements, representations, omissions or failure to act set forth, alleged, referred to or otherwise embraced in this Action, including but not limited to claims arising under the statutory or common laws of the United States, any state, territory or other jurisdiction (whether domestic or foreign), or arising from or in any way related to this Action, excepting only any claim to enforce the terms of this Settlement Agreement.
11. As used herein, "Releasees" means SST and its present and past parents, joint ventures, affiliates, subsidiaries, divisions or other organizational units of any kind, any entity now or in the past controlled by, controlling or under common control with any of the foregoing, the past and present officers, directors, partners, shareholders, employees, agents, attorneys, representatives, beneficial owners, investment advisors, investment bankers, independent contractors, accountants, heirs, executors, administrators of each of the foregoing, and the predecessors, successors and assigns of each of the foregoing.
12. Settlement Class Members are hereby severally and permanently barred and enjoined from commencing, instituting, maintaining, prosecuting, participating in or enforcing against any of the Releasees any of the Released Claims, either directly or indirectly, representatively, derivatively or in any other capacity.
13. The application of Class Counsel for an award of attorneys' fees, notice costs and other expenses shall be submitted to the Court in the future, potentially in conjunction with and in combination with future settlements or judgments, if any, involving the other remaining defendants in the Action. Such amounts as the Court awards for attorneys' fees, notice costs and other expenses shall be paid out of the Settlement Fund Account.
14. Neither this Final Order, the Settlement Agreement, nor any of its terms or the negotiations or papers related thereto shall constitute evidence or an admission by any Releasee that any acts of wrongdoing have been committed and shall not be deemed to create any inference that there is any liability therefor. Neither this Final Order, nor the Settlement Agreement nor any of its terms or the negotiations or papers related thereto, shall be offered or received in evidence or used for any purpose whatsoever, in this or any other matter or proceeding in any court, administrative agency, arbitration or other tribunal, other than as may be necessary to consummate or enforce the Settlement Agreement, the terms of the Settlement, or this Final Order, or by SST to obtain dismissal of any actions asserting Released Claims.
15. Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the Court finds that there is no just reason for delay and therefore orders that this Final Order and Judgment is final and immediately appealable.
16. Without in any way affecting the finality of this Final Order, this Court hereby retains jurisdiction over the Action for the purposes of implementing and enforcing the terms of the Settlement Agreement, including the administration of the settlement provided for therein, the approval of an Allocation and Distribution Plan, and award of attorneys' fees, notice costs and other expenses, as well as all matters relating to the terms of this Final Order.