Robert Stanger v. China Electric Motor, Inc. et al
Filing
189
ORDER AND FINAL JUDGMENT by Judge Manuel L. Real, The Litigation and the Complaint as to the China Electric Defendants,MaloneBailey, Roth, the WestPark Defendants, and the Kempisty Defendants arehereby dismissed with prejudice and without costs. Excl usive jurisdiction is hereby retained over China Electric, MaloneBailey, Roth, the WestPark Defendants, the Kempisty Defendants and theSettlement Class Members for all matters relating to the Litigation, (MD JS-6, Case Terminated). (SEE ATTACHED FOR FURTHER DETAILS) (pj)
1
JS-6
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
12
13
14
15
16
17
18
19
20
21
22
)
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
CHINA ELECTRIC MOTOR, INC.,
)
YUE WANG, HAIXIA ZHANG,
)
HEUNG SANG “DEXTER” FONG,
FUGUI WANG, GUOQIANG ZHANG, )
LIANG TANG, SHUIPING WANG,
)
WESTPARK CAPITAL, INC., ROTH )
CAPITAL PARTNERS, LLC,
)
RICHARD RAPPAPORT, PHILIP
)
KEMPISTY, KEMPISTY &
)
COMPANY CPAS, P.C., and
)
MALONEBAILEY, LLP,
)
)
Defendants.
)
MIKE MCGEE, BANKIM GOPANI,
NIRANJAN KUMAR DAS, MARK
STEPHENSON, MELVIN YOUNKER,
VICTOR BRANCACIO, and ROBERT
WALSH, Individually and On Behalf of
All Others Similarly Situated,,
No. CV 11-2794-R (AGRx)
CLASS ACTION
ORDER AND FINAL JUDGMENT
Hon. Manuel Real
23
24
25
26
27
28
[PROPOSED] ORDER AND FINAL JUDGMENT
No. CV 11-2794-R (AGRx)
1
On October 7, 2013 a hearing was held before this Court to determine: (1)
2
whether the terms and conditions of the Stipulation and Agreement of Settlement
3
dated March 18, 2013 (the “China Electric Stipulation”) are fair, reasonable and
4
adequate for the settlement of all claims asserted by the Settlement Class against
5
defendants China Electric Motor, Inc. (“China Electric”), Liang Tang, Fugui Wang,
6
Shuiping Wang, Yue Wang, Guoqiang Zhang, and Haixia Zhang, and Heung Sang
7
“Dexter” Fong (collectively, the “China Electric Defendants”); (2) whether the terms
8
and conditions of the Stipulation and Agreement of Settlement dated March 18, 2013
9
(the “MaloneBailey Stipulation”) are fair, reasonable and adequate for the settlement
10
of all claims asserted by the Settlement Class against MaloneBailey LLP
11
(“MaloneBailey”); (3) whether the terms and conditions of the Stipulation and
12
Agreement of Settlement dated May 3, 2013 (the “Roth Stipulation”) are fair,
13
reasonable and adequate for the settlement of all claims asserted by the Settlement
14
Class against Roth Capital Partners, LLC (“Roth”), (4) whether the terms and
15
conditions of the Stipulation and Agreement of Settlement dated February 26, 2013
16
(the “WestPark Stipulation”) are fair, reasonable and adequate for the settlement of
17
all claims asserted by the Settlement Class against WestPark Capital, Inc.,
18
(“WestPark”) and Richard Rappaport (“Rappaport”) (WestPark and Rappaport are
19
collectively the “WestPark Defendants”); and (4) whether the terms and conditions
20
of the Stipulation and Agreement of Settlement dated June 10, 2013 (the “Kempisty
21
Stipulation”) are fair, reasonable and adequate for the settlement of all claims
22
asserted by the Settlement Class against Kempisty & Company CPAs, P.C.
23
(“Kempisty CPAs”) and Philip Kempisty (Kempisty CPAs and Philip Kempisty are
24
collectively the “Kempisty Defendants”); and (4) whether to approve the proposed
25
Plan of Allocation as a fair and reasonable method to allocate the Net Settlement
26
Fund among Settlement Class Members; and
27
28
The Court having considered all matters submitted to it at the hearing and
otherwise; and
1
[PROPOSED] ORDER AND FINAL JUDGMENT
No. CV 11-2794-R (AGRx)
1
It appearing that the Notice substantially in the form approved by the Court in
2
the Court’s Order Preliminarily Approving Settlement and Providing For Notice
3
(“Preliminary Approval Order”) was mailed to all reasonably identifiable Settlement
4
Class Members; and
5
It appearing that the Summary Notice substantially in the form approved by
6
the Court in the Preliminary Approval Order was published in accordance with that
7
Order and the specifications of the Court;
8
9
10
11
12
13
14
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED THAT:
1.
Unless indicated otherwise, all capitalized terms used herein have the
same meanings as set forth and defined in the China Electric Stipulation.
2.
The Court has jurisdiction over the subject matter of the Litigation, Lead
Plaintiff, all Settlement Class Members and the Defendants.
3.
The District Court finds that the prerequisites for a class action under
15
Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure have been satisfied in
16
that: (a) the number of Settlement Class Members is so numerous that joinder of all
17
members thereof is impracticable; (b) there are questions of law and fact common to
18
the Settlement Class; (c) the claims of the Lead Plaintiff are typical of the claims of
19
the Settlement Class he seeks to represent; (d) Lead Plaintiff fairly and adequately
20
represents the interests of the Settlement Class; (e) the questions of law and fact
21
common to the members of the Settlement Class predominate over any questions
22
affecting only individual members of the Settlement Class; and (f) a class action is
23
superior to other available methods for the fair and efficient adjudication of this
24
Litigation. The Settlement Class is being certified for settlement purposes only.
25
4.
Pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil
26
Procedure, the Court hereby certifies this action as a class action for settlement
27
purposes only, and certifies as the Settlement Class all persons or entities who
28
purchased the publicly traded common stock of China Electric Motor, Inc. from
2
[PROPOSED] ORDER AND FINAL JUDGMENT
No. CV 11-2794-R (AGRx)
1
January 20, 2010 through March 30, 2011, and who were damaged thereby.
2
Excluded from the Settlement Class are:
3
a.
Defendants, and the members of their immediate families and
4
Defendants’ legal representatives, heirs, successors and assigns,
5
any entity in which any Defendant has or had a controlling
6
interest, and China Electric’s, MaloneBailey’s, Roth’s,
7
WestPark’s, and Kempisty CPAs’ predecessors;
8
b.
Present and former officers and/or directors of any Defendant;
9
c.
All such excluded persons’ immediate families, legal
10
representatives, heirs, predecessors, successors, and assigns, and
11
any entity in which any excluded person has or had a controlling
12
interest,
13
d.
Any persons who have separately filed actions against one or
14
more of Defendants, based in whole or in part on any claim
15
arising out of or relating to any of the alleged acts, omissions,
16
misrepresentations, facts, events, matters, transactions, or
17
occurrences referred to in the Litigation or otherwise alleged,
18
asserted, or contended in the Litigation, and
19
e.
Those persons who excluded themselves by filing timely and
20
valid requests for exclusion in accordance with the Preliminary
21
Approval Order, a list of whom is attached to this Order as
22
Exhibit A.
23
5.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Lead
24
Plaintiff is certified as the class representative and the Lead Plaintiff’s Counsel
25
previously selected by Lead Plaintiff and appointed by the Court is hereby appointed
26
as Lead Counsel for the Settlement Class.
27
28
6.
The Court hereby finds that the forms and methods of notifying the
Settlement Class of the Settlement and its terms and conditions met the requirements
3
[PROPOSED] ORDER AND FINAL JUDGMENT
No. CV 11-2794-R (AGRx)
1
of due process and Rule 23 of the Federal Rules of Civil Procedure, Section
2
21D(a)(7) of the Exchange Act, 15 U.S.C. § 78u-4(a)(7), as amended by the Private
3
Securities Litigation Reform Act of 1995; constituted the best notice practicable
4
under the circumstances; and constituted due and sufficient notice to all persons and
5
entities entitled thereto of these proceedings and the matters set forth herein,
6
including the Settlement and Plan of Allocation, to all persons entitled to such notice.
7
No Settlement Class Member is relieved from the terms of the Settlement, including
8
the releases provided for therein, based upon the contention or proof that such
9
Settlement Class Member failed to receive actual or adequate notice. A full
10
opportunity has been offered to the Settlement Class Members to object to the
11
proposed Settlement and to participate in the hearing thereon. The Court further
12
finds that the notice provisions of the Class Action Fairness Act, 28 U.S.C. § 1715,
13
were fully discharged and that the statutory waiting period has elapsed. Thus, it is
14
hereby determined that all members of the Settlement Class are bound by this Order
15
and Final Judgment except those persons listed on Exhibit A to this Order and Final
16
Judgment.
17
7.
The Settlement is approved as fair, reasonable and adequate, and in the
18
best interests of the Settlement Class. Lead Plaintiff, China Electric, MaloneBailey,
19
Roth, the WestPark Defendants, and the Kempisty Defendants are directed to
20
consummate the Settlement in accordance with the terms and provisions of the China
21
Electric Stipulation, the MaloneBailey Stipulation, the Roth Stipulation, the
22
WestPark Stipulation, and the Kempisty Stipulation, respectively. WestPark is
23
additionally directed to consummate the Settlement in accordance with the terms and
24
provisions of the payment plan set forth in the stipulation between WestPark Capital
25
Financial Services, LLF and Plaintiff (“WPCFS Stipulation”) (Dkt. No. 185). The
26
China Electric Stipulation, the MaloneBailey Stipulation, the Roth Stipulation, the
27
WestPark Stipulation, the Kempisty Stipulation and the WPCFS Stipulation are
28
collectively referred to as the “Stipulations.”
4
[PROPOSED] ORDER AND FINAL JUDGMENT
No. CV 11-2794-R (AGRx)
1
8.
The Litigation and the Complaint as to the China Electric Defendants,
2
MaloneBailey, Roth, the WestPark Defendants, and the Kempisty Defendants are
3
hereby dismissed with prejudice and without costs.
4
9.
Lead Plaintiff and the Settlement Class Members, on behalf of
5
themselves, their current and former heirs, executors, administrators, successors,
6
attorneys, legal representatives, and assigns, hereby release and forever discharge the
7
Released Parties from any and all Settled Claims. Lead Plaintiff and the Settlement
8
Class Members, and anyone acting or purporting to act for any of them, are hereby
9
permanently and forever enjoined from prosecuting, attempting to prosecute, or
10
11
assisting others in the prosecution of the Settled Claims against the Released Parties.
10.
China Electric, MaloneBailey, Roth, the WestPark Defendants, and the
12
Kempisty Defendants, including any and all of their respective successors in interest
13
or assigns, each hereby releases and forever discharges any and all Settled
14
Defendants’ Claims against the Lead Plaintiff, any of the Settlement Class Members
15
and any of their counsel, including Lead Counsel for the Settlement Class and any
16
counsel working under Lead Counsel’s direction.
17
11.
The Court hereby finds that the proposed Plan of Allocation is a fair and
18
reasonable method to allocate the Net Settlement Fund among Settlement Class
19
Members.
20
12.
Upon the Effective Date, all claims for contribution or indemnification,
21
however denominated, and all claims where the damage to the claimant is measured
22
by reference to the claimant’s liability to the Lead Plaintiff or the Settlement Class or
23
the claimant’s incurring of costs of defense of those claims, which may be or have
24
been brought against the Released Parties, MaloneBailey, Roth, the WestPark
25
Defendants, or the Kempisty Defendants and which arise under the federal securities
26
laws or state law in favor of Persons, including any Defendants, who are asserted to
27
be joint tortfeasors with the Released Parties, Roth, MaloneBailey, the WestPark
28
Defendants, or the Kempisty Defendants in the Settled Claims, are hereby
5
[PROPOSED] ORDER AND FINAL JUDGMENT
No. CV 11-2794-R (AGRx)
1
extinguished, barred, and dismissed with prejudice except as provided for herein. All
2
claims for contribution or indemnification in favor of the China Electric Defendants,
3
China Electric’s current, former, or future officers and directors, Roth,
4
MaloneBailey, the WestPark Defendants, or the Kempisty Defendants which arise
5
under the federal securities laws or state law against any non-settling Defendants
6
who are asserted to be joint tortfeasors with the China Electric Defendants, China
7
Electric’s current, former, or future officers and directors, MaloneBailey, Roth, the
8
WestPark Defendants, or the Kempisty Defendants in the Settled Claims, are
9
likewise extinguished, barred, and discharged, except as provided herein.
10
Notwithstanding any of the foregoing, claims among the China Electric Defendants
11
and China Electric’s current, former, or future officers and directors themselves,
12
including but not limited to claims for contractual and/or statutory indemnity
13
(including advancement of defense costs) by present and former officers and
14
directors of China Electric, as well as claims for insurance coverage by the China
15
Electric Defendants, China Electric’s current, former, or future officers and directors,
16
MaloneBailey, Roth, the WestPark Defendants, or the Kempisty Defendants are
17
expressly preserved and nothing in the China Electric Stipulation, the MaloneBailey
18
Stipulation, the Roth Stipulation, the WestPark Stipulation, the Kempisty Stipulation
19
or this Order and Final Judgment shall apply to extinguish, bar, discharge, waive or
20
otherwise affect such claims. Further, notwithstanding any of the foregoing, claims
21
by Roth against the WestPark Defendants, including but not limited to claims for
22
breach of contract, contractual and/or statutory indemnity and contribution are
23
expressly preserved and nothing in any stipulation, including the Roth Stipulation
24
and Westpark Stipulation or this Order and Final Judgment shall apply to extinguish,
25
discharge, waive or otherwise affect such claims. In the event of a trial, the liability
26
of all Defendants other than the China Electric Defendants, MaloneBailey, Roth, the
27
WestPark Defendants, and the Kempisty Defendants shall be limited to their
28
6
[PROPOSED] ORDER AND FINAL JUDGMENT
No. CV 11-2794-R (AGRx)
1
proportionate share of liability in the manner set forth in Franklin v. Kaypro Corp.,
2
884 F.2d 1222 (9th Cir. 1989) and other applicable law.
3
13.
The Court finds that all parties and their counsel have complied with
4
each requirement of Rule 11 of the Federal Rules of Civil Procedure as to all
5
proceedings herein.
6
7
14.
Neither this Order and Final Judgment, the Stipulations, nor any of the
negotiations, documents or proceedings connected with them shall be:
8
a.
9
referred to or used against the Released Parties or against the
Lead Plaintiff or the Settlement Class as evidence of wrongdoing
10
by anyone;
11
b.
construed against the Released Parties or against the Lead
12
Plaintiff or the Settlement Class as an admission or concession
13
that the consideration to be given hereunder represents the
14
amount which could be or would have been recovered after trial;
15
c.
construed as, or received in evidence as, an admission, concession
16
or presumption against the Settlement Class or any of them, that
17
any of their claims are without merit or that damages recoverable
18
under the Complaint would not have exceeded the Settlement
19
Fund; or
20
d.
used or construed as an admission of any fault, liability or
21
wrongdoing by any person or entity, or offered or received in
22
evidence as an admission, concession, presumption or inference
23
against any of the Released Parties in any proceeding other than
24
such proceedings as may be necessary to consummate or enforce
25
the Stipulation.
26
15.
Exclusive jurisdiction is hereby retained over China Electric,
27
MaloneBailey, Roth, the WestPark Defendants, the Kempisty Defendants and the
28
Settlement Class Members for all matters relating to the Litigation, including the
7
[PROPOSED] ORDER AND FINAL JUDGMENT
No. CV 11-2794-R (AGRx)
1
administration, interpretation, effectuation or enforcement of the Stipulation or
2
Settlement and this Order and Final Judgment, and including any application for fees
3
and expenses incurred in connection with administering and distributing the
4
settlement proceeds to the Settlement Class Members.
5
16.
Without further order of the Court, China Electric, MaloneBailey, Roth,
6
the WestPark Defendants, the Kempisty Defendants and Lead Plaintiff may agree to
7
reasonable extensions of time to carry out any of the provisions of the China Electric
8
Stipulation, the MaloneBailey Stipulation, the Roth Stipulation, the WestPark
9
Stipulation, the Kempisty Stipulation and the WPCFS Stipulation.
10
17.
There is no just reason for delay in the entry of this Order and Final
11
Judgment and immediate entry by the Clerk of the Court is directed pursuant to Rule
12
54(b) of the Federal Rules of Civil Procedure.
13
18.
The finality of this Order and Final Judgment shall not be affected, in
14
any manner, by rulings that the Court may make on Lead Plaintiff’s Counsel’s
15
application for an award of Attorneys’ Fees and Expenses.
16
19.
In the event that the Settlement does not become final and effective in
17
accordance with the terms and conditions set forth in the Stipulation, then this Order
18
and Final Judgment shall be rendered null and void and be vacated and the
19
Settlement and all orders entered in connection therewith shall be rendered null and
20
void (except as provided in Paragraph L in the Stipulation), and the parties shall be
21
deemed to have reverted to their respective status prior to the execution of this
22
Stipulation, and they shall proceed in all respects as if the Stipulation had not been
23
executed and the related orders had not been entered, preserving in that event all of
24
25
26
27
28
8
[PROPOSED] ORDER AND FINAL JUDGMENT
No. CV 11-2794-R (AGRx)
1
their respective claims and defenses in the Litigation, and shall revert to their
2
respective positions in the Litigation.
3
4
5
6
Dated: Nov. 12
, 2013
HON. MANUEL L. REAL
UNITED STATES DISTRICT JUDGE
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
[PROPOSED] ORDER AND FINAL JUDGMENT
No. CV 11-2794-R (AGRx)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?