In re COLONIAL BANCGROUP, INC. ERISA LITIGATION (LEAD CASE)
Filing
207
FINAL JUDGMENT: IT IS THEREFORE ORDERED AND ADJUDGED that the Motionfor Final Approval of Proposed Settlement and for Approval of Allocation Plan (doc. no. 192 ) and the Motions for Award of Class Representative Fees and forthe Award of Attorneys Fe es and Expenses (doc. nos. 194 & 197 ) are granted as further set out in the judgment. Based on the Settlement, the Court hereby dismisses the Complaint and the Action against Defendants with prejudice on the merits. This case is closed. Signed by Honorable Judge Myron H. Thompson on 10/12/2012. (Attachments: # 1 Civil Appeals Checklist)(dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
In re COLONIAL BANCGROUP,
INC. ERISA LITIGATION
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CIVIL ACTION NO.
2:09cv792-MHT
(WO)
FINAL JUDGMENT
This action came on for a final fairness hearing,
held on October 12, 2012, on a proposed settlement (the
“Settlement”)
of
this
class
action
(the
“Action”)
preliminarily certified for settlement purposes, and the
issues having been duly heard and a decision having been
duly rendered,
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion
for
Final
Approval
of
Approval
of
Allocation
Proposed
Plan
Settlement
(doc.
no.
192)
and
for
and
the
Motions for Award of Class Representative Fees and for
the Award of Attorneys’ Fees and Expenses (doc. nos. 194
& 197) are granted as follows:
To the extent not otherwise defined herein, all terms
shall have the same meaning as used in the Stipulation of
Settlement executed on June 13, 2012 (the “Stipulation”).
The Court has jurisdiction over the subject matter of
this
Action
and
over
all
Parties
to
this
Action,
including all Members of the Settlement Class.
The Court hereby approves and confirms the Settlement
embodied in the Stipulation as being a fair, reasonable,
and adequate settlement and compromise of this Action,
adopts the Stipulation as its Judgment, and orders that
the Stipulation shall be effective, binding, and enforced
according to its terms and conditions.
The Court determines that Plaintiffs have asserted
claims on behalf of the Colonial BancGroup 401(k) Plan
(the “Plan”) to recover losses alleged to have occurred
as a result of violations of the Employee Retirement
Income
Security
Act
of
1974,
§§ 1001-1461 (“ERISA”).
2
as
amended,
29
U.S.C.
The
includes
Court
the
determines
payment
that
of
the
Settlement,
$2,500,000
on
which
behalf
of
Defendants, has been negotiated vigorously and at arm’s
length by Class Counsel, and further finds that, at all
times, Plaintiffs have acted independently and that their
interests are identical to the interests of the Plan and
the Settlement Class.
The Court further finds that the
Settlement arises from a genuine controversy between the
Parties and is not the result of collusion, nor was the
Settlement procured by fraud or misrepresentation.
The Court finds that the Plan’s participation in the
Settlement is on terms no less favorable than Plaintiffs’
and the Settlement Class’s and that the Plan does not
have
any
additional
claims
above
and
beyond
those
asserted by Plaintiffs that are released as a result of
the Settlement.
The Court determines that the Settlement is not part
of an agreement, arrangement, or understanding designed
to benefit a party in interest, but rather is designed
3
and intended to benefit the Plan, Plan participants, and
Plan beneficiaries.
Accordingly,
negotiation
and
the
Court
consummation
determines
of
the
that
Settlement
the
by
Plaintiffs on behalf of the Plan and the Settlement Class
does not constitute “prohibited transactions” as defined
by ERISA §§ 406(a) or (b), 29 U.S.C. §§ 1106(a) or (b).
Further, the Court finds that, to the extent any of the
transactions required by the Settlement constitute a
transaction prohibited by ERISA § 406(a), 29 U.S.C. §§
1106(a), such transactions satisfy the provisions of
Prohibited Transaction Exemption 2003-39.
68 Fed. Reg.
75632 (2003).
The
Court
determines
that
the
Class
Notice
transmitted to the Settlement Class, pursuant to the
Preliminary Approval Order concerning the Settlement and
the other matters set forth therein, is the best notice
practicable
under
the
circumstances
and
included
individual notice to all Members of the Settlement Class
4
who could be identified through reasonable efforts.
Such
Class Notice provides valid, due and sufficient notice of
these proceedings and of the matters set forth therein,
including the Settlement described in the Stipulation to
all persons entitled to such Class Notice, and such Class
Notice has fully satisfied the requirements of Federal
Rule of Civil Procedure 23 and the requirements of due
process.
The Court hereby approves the maintenance of the
Action as a non-opt-out class action pursuant to Federal
Rules of Civil Procedure 23(a) and 23(b)(1) with the
class being defined as:
“All persons, other than Defendants, who were
participants in or beneficiaries of the Plan at
any time between April 18, 2007 and August 25,
2009, and whose accounts included investments in
Colonial Stock.”
Pursuant to Federal Rule of Civil Procedure 23(g), the
Court hereby confirms its prior appointment of Whatley,
Drake & Kallas, LLC, Keller Rohrback LLP, and Harwood
Feffer LLP as co-lead class counsel (“Class Counsel”).
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Based on the Settlement, the Court hereby dismisses
the Complaint and the Action against Defendants with
prejudice on the merits.
As of the date of Complete Settlement Approval and
payment of the Settlement Amount, Plaintiffs, the Plan,
and each Member of the Settlement Class on their own
behalf and on behalf of their present or former agents,
employees,
attorneys,
accountants,
representatives,
advisers, investment bankers, trustees, parents, heirs,
estates,
executors,
administrators,
successors,
and
assigns, shall be deemed to have released each and all of
the Releasees from the Released Claims.
As of the date of Complete Settlement Approval and
payment of the Settlement Amount, Defendants, including
their present or former agents, employees, attorneys,
accountants,
representatives,
advisers,
investment
bankers, trustees, parents, heirs, estates, executors,
administrators, successors, and assigns, shall be deemed
6
to have released the Plaintiff Released Parties from any
claims that may have arisen out of this Action.
As of the date of Complete Settlement Approval and
payment of the Settlement Amount, all release provisions
shall be given full force and effect in accordance with
each and all of their express terms and provisions,
including those terms and provisions relating to unknown,
unsuspected, or future claims, demands, or causes of
action.
Further, Plaintiffs assume for themselves, and
on behalf of the Settlement Class, and Defendants assume
the risk of any subsequent discovery of any matter, fact,
or law, that, if now known or understood, would in any
respect have affected or could have affected any such
Person’s entering into the Stipulation.
The Court further determines that Defendants have
fully complied with the notice requirements of the Class
Action Fairness Act of 2005, to the extent possible.
All members of the Settlement Class and the Plan are
hereby
barred
and
enjoined
7
from
the
institution
and
prosecution, either directly or indirectly, of any other
actions in any court asserting any and all Released
Claims against any and all Releasees.
The litigation expenses incurred by Class Counsel in
the course of prosecuting this action are reasonable.
Accordingly Class Counsel is awarded expenses in the
amount of $104,404.22, to be paid from the Settlement
Fund.
The attorneys fees sought by Class Counsel in the
amount of twenty-six percent (26%) of the common fund
established in this Action are reasonable in light of the
successful
monetary
results
achieved
by
Class
Counsel,
the
benefits
obtained
in
this
Action,
the
with
the
substantial
risks
associated
Action,
Class
Counsel’s skill and experience in class action litigation
of this type, and the fee awards in comparable cases.
Accordingly, Class Counsel is awarded attorneys’ fees in
the
amount
of
26
percent
(26%)
of
the
common
fund
established in this Action, specifically $645,595.78.
8
Plaintiffs
are
hereby
awarded
case
contribution
awards in the amount of $5,000 each and shall be paid
pursuant to the timing requirements described in the
Stipulation.
The Plan of Allocation for the Settlement Fund is
approved
as
fair,
reasonable,
and
adequate.
Any
modification or change in the Plan of Allocation that may
hereafter be approved shall in no way disturb or affect
this Judgment and shall be considered separate from this
Judgment.
Neither this Order nor the Stipulation of Settlement
approved
pursuant
to
this
Order
precludes
any
claim
against the Defendants or any other Insured Person (as
defined in the D&O Policies) by the Federal Deposit
Insurance Corporation as Receiver for Colonial Bank or in
its corporate capacity, or by any other governmental or
regulatory
agency
asserted
administrative or civil action.
9
in
any
criminal,
Without affecting the finality of this Judgment, the
Court retains jurisdiction for purposes of implementing
the
Stipulation
and
reserves
the
power
to
enter
additional orders to effectuate the fair and orderly
administration and consummation of the Stipulation and
Settlement, as may from time to time be appropriate, and
resolution of any and all disputes arising thereunder.
This case is closed.
DONE, this the 12th day of October, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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