Thomas O. Morgan, et al. v. AXT, Inc et al

Filing 145

ORDER RE: DISTRIBUTION OF CLASS SETTLEMENT FUND. Signed by Judge Maxine M. Chesney on March 3, 2009. (mmclc1, COURT STAFF) (Filed on 3/3/2009)

1 MILBERG LLP JEFF S. WESTERMAN (SBN 94559) 2 [e-mail] KAREN T. ROGERS (SBN 185465) 3 [e-mail] One California Plaza 4 300 S. Grand Avenue, Suite 3900 Los Angeles, CA 90071-3172 5 Telephone: [phone] Facsimile: [phone] 6 Lead Counsel for the Class 7 CHARLES J. PIVEN 8 E-mail: [e-mail] BROWER PIVEN, A Professional Corporation 9 The World Trade Center-Baltimore 401 E. Pratt Street, Suite 2525 10 Baltimore, Maryland 21202 Telephone: [phone] Facsimile: [phone] 12 Plaintiff's Counsel 13 [Additional Counsel appear on Signature Page] 14 15 16 17 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) ) ) ) Case No. C-04-04362 MJJ CLASS ACTION [PROPOSED] ORDER Re: DISTRIBUTION OF CLASS SETTLEMENT FUND

18 THOMAS O. MORGAN, Individually and on Behalf of all others Similarly Situated, 19 Plaintiff, 20 vs. 21 AXT, INC., and MORRIS S. YOUNG, 22 Defendants. 23 24 25 26 27 28

[PROPOSED] ORDER Re: DISTRIBUTION OF CLASS SETTLEMENT FUND CASE NO. C-04-04362 MJJ
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WHEREAS, on February 26, 2008 this Court entered an Order and Final Judgment

2 approving the terms of the Stipulation and Agreement of Settlement dated as of September 10, 2007 3 (the "Stipulation") and the Plan of Allocation; and 4 WHEREAS, this Court has directed the parties to consummate the terms of the Stipulation

5 and the Plan of Allocation; and 6 WHEREAS, this Court has retained jurisdiction of the above-captioned action (the

7 "Action") for the purpose of considering any further application or matter which may arise in 8 connection with the administration and execution of the Settlement and the processing of Proof of 9 Claim forms ("Proofs of Claim") and the distribution of the Net Settlement Fund to the Authorized 10 Claimants. 11 NOW, THEREFORE, upon reading and filing the Affidavit of Lara McDermott of Gilardi

12 & Co. LLC, the Claims Administrator, and the memorandum of law, and upon all prior proceedings 13 herein and after due deliberation, it is hereby 14 ORDERED, that the administrative determinations of the Claims Administrator accepting

15 the claims as indicated on the computer printout of accepted claims submitted with and described in 16 the Affidavit of Lara McDermott including claims submitted after March 28, 2008 through and 17 including December 31, 2008, be and the same hereby are approved, and said claims are hereby 18 accepted; and it is further 19 ORDERED, that the administrative determinations of the Claims Administrator rejecting the

20 claims as indicated on the computer printout of rejected claims submitted with and described in the 21 Affidavit of Lara McDermott be and the same hereby are approved, and said claims are hereby 22 rejected; and it is further 23 ORDERED, that Gilardi & Co. LLC be paid the sum of $27,536 from the Settlement Fund

24 for the balance of its fees and expenses incurred and to be incurred in connection with services 25 performed and to be performed with respect to the settlement administration and distribution of the 26 Net Settlement Fund; and it is further 27 ORDERED, that the Certified Public Accounting firm of Eisner LLP, the tax accountants for

28 the Settlement Fund, be paid the sum of $6,000 from the Settlement Fund for its fees and expenses
[PROPOSED] ORDER Re: DISTRIBUTION OF CLASS SETTLEMENT FUND CASE NO. C-04-04362 MJJ
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1 incurred and to be incurred in connection with services performed and to be performed with respect 2 to the taxation of the Settlement Fund herein for the years 2007 and 2008; and it is further 3 ORDERED, that the balance of the Settlement Fund after deducting the payments previously

4 allowed and set forth herein (the "Net Settlement Fund") shall be distributed to the eligible claimants 5 listed on the computer printout submitted with the Affidavit of Lara McDermott1 in proportion to the 6 Recognized Claim allocable to each such eligible claimant as shown on such printout; and it is 7 further 8 ORDERED, that the payments to be distributed to the Authorized Claimants shall bear the

9 notation "CASH PROMPTLY, VOID AND SUBJECT TO RE-DISTRIBUTION IF NOT CASHED the "DATE" being one year from the date checks are initially mailed (see Doc. # 144 at 6:23-27). , 10 BY [DATE]."^ Plaintiffs' Co-Lead Counsel and the Claims Administrator are authorized to take 11 appropriate action to locate and or contact any eligible claimant who has not cashed his, her or its 12 distribution within said time; and it is further 13 ORDERED, that the costs of such services to locate and reissue payments to such

14 Authorized Claimants shall be payable from the unclaimed/un-cashed monies remaining in the Net 15 Settlement Fund; and it is further 16 ORDERED, that, as provided in the Plan of Allocation previously approved by the Court,

17 after one year after the initial distribution of the Net Settlement Fund to eligible claimants and after 18 reasonable and diligent efforts have been made to have the eligible claimants cash their distributions, 19 Plaintiffs' Lead Counsel are authorized to cause the Claims Administrator to distribute any funds 20 remaining in the Net Settlement Fund by reason of returned or unpaid distributions or otherwise, to 21 eligible claimants who have cashed their distributions, provided that they would receive at least 22 $10.00 on such re-distribution based on their Recognized Claims, after payment of any unpaid costs 23 or fees incurred in administering the Net Settlement Fund for such re-distribution. If after six 24 months after such re-distribution any funds shall remain in the Net Settlement Fund, then such 25 26 Provided however that Lead Plaintiff's Counsel are authorized to withhold payment from any claimant suspected of filing a fraudulent claim. Any such withheld payment shall be retained in the 27 Settlement Fund pending determination of the validity of the claim. 28
[PROPOSED] ORDER Re: DISTRIBUTION OF CLASS SETTLEMENT FUND CASE NO. C-04-04362 MJJ
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1 balance shall be contributed to non-sectarian, not-for-profit, 501(c)(3) organization(s) designated by 2 Plaintiffs' Lead Counsel; and it is further 3 ORDERED, that all persons involved in the review, verification, calculation, tabulation, or

4 any other aspect of the processing of the claims submitted herein, or otherwise involved in the 5 administration or taxation of the Settlement Fund or the Net Settlement Fund are released and 6 discharged from any and all claims arising out of such involvement, and all Class Members, whether 7 or not they are to receive payment from the Net Settlement Fund are barred from making any further 8 claim against the Net Settlement Fund or the released persons beyond the amount allocated to them 9 pursuant to this Order, and it is further 10 ORDERED, that the Claims Administrator is hereby authorized to discard paper or hard

11 copies of the Proofs of Claim and supporting documents not less than one year after the initial 12 distribution of the Net Settlement Fund to the eligible claimants and electronic or magnetic media 13 data not less than three years after the initial distribution of the Net Settlement Fund to the eligible 14 claimants; and it is further 15 ORDERED, that this Court retain jurisdiction over any further application or matter which

16 may arise in connection with this Action; and it is further 17 ORDERED, that no claim submitted, and no deficient claim corrected, after December 31,

18 2008 may be accepted for any reason whatsoever.

March 3 19 Dated: _______________________2009
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[PROPOSED] ORDER Re: DISTRIBUTION OF CLASS SETTLEMENT FUND CASE NO. C-04-04362 MJJ
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UNITED STATES DISTRICT COURT JUDGE

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