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