Walter et al v. Hughes Communications, Inc. et al

Filing 132

ORDER GRANTING (118 in 3:09-cv-02136-SC) MOTION for Attorney Fees PLAINTIFFS MOTION FOR AWARD OF ATTORNEYS FEES, COSTS, AND SERVICE AWARDS TO THE NAMED PLAINTIFFS filed by Eric Schumacher, and GRANTING (119 in 3:09-cv-02136-SC) MOTION for Settlement Notice of Motion, Motion and Memorandum of Points and Authorities in support of Motion for Final Approval of Settlement. filed by Tina Walter, Eric Schumacher, Christopher Bayless, and JUDGMENT. Signed by Judge Samuel Conti on 11/16/2012. (sclc2, COURT STAFF) (Filed on 11/16/2012) Modified on 11/16/2012 (sclc2, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TINA WALTER, CHRISTOPHER BAYLESS,
and ERIC SCHUMACHER, individually and on
behalf of all others similarly situated,

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Plaintiffs,

CASE NO.: 09-CV-02136 SC
SECOND CORRECTED [PROPOSED]
SETTLEMENT ORDER AND
JUDGMENT

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v.
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HUGHES COMMUNICATIONS, INC. and
HUGHES NETWORK SYSTEMS, LLC,

Judge:
Honorable Samuel Conti
Courtroom: 1 – 17th Floor
Date: November 16, 2012
Time 10:00 a.m.

Defendants.

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SECOND CORRECTED [PROPOSED] SETTLEMENT ORDER AND JUDGMENT
CASE NO. 09-CV-02136 SC

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Plaintiffs, on behalf of themselves and the Settlement Class, having filed a motion

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(“Motion”) for an order preliminarily approving the parties’ Second Amended and Restated

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Stipulation of Settlement (the “Amended Settlement Agreement”); Defendants Hughes

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Communications, Inc. and Hughes Network Systems, LLC (collectively, “Hughes”), having joined

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in support of that Motion; said Motion having come for hearing before this Court; the Court having

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entered its Order Granting Preliminary Approval of Class Action Settlement on March 2, 2012; the

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Court having conducted a hearing regarding final approval of the Amended Settlement Agreement

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on November 16, 2012 at 10:00 a.m., at which it considered any objections filed with or presented

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to the Court and the parties’ responses thereto; the Court being fully advised and good cause

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appearing, the Court enters its order granting final approval of the Amended Settlement Agreement,

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and finds and orders as follows:

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1.

The Court has jurisdiction over the subject matter of this Action and all parties to this

Action, including all members of the Settlement Class.
2.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court hereby

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certifies, for purposes of effectuating this settlement, a Settlement Class consistent with that defined

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in Sections 1.23 and 1.24 of the Settlement Agreement:

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All persons and entities residing in the United States of America who, during any time
between May 15, 2005 and March 2, 2012, were subscribers to any one of the one of the
following satellite broadband internet service plans offered by Hughes: Hughes Home, Pro,
Pro Plus, Small Office, Business Internet, Elite, ElitePlus, ElitePremium, Basic, Power 150,
or Power 200 (together “Hughes Consumer Service Plans”). Excluded from this definition
are Hughes Communications, Inc. and Hughes Network Systems, LLC, and any wholesaler,
distributor, reseller, retailer, sales agent or dealer of Hughes’ products or services; all of
Hughes Communications, Inc.’s and Hughes Network Systems, LLC’s past and present
respective parents, subsidiaries, divisions, affiliates and persons and entities directly or
indirectly under its or their control in the past or in the present; Hughes Communications,
Inc.’s and Hughes Network Systems, LLC’s respective assignors, predecessors, successors
and assigns; and the past or present partners, shareholders, managers, members, directors,
officers, employees, agents, attorneys, insurers, accountants and representatives of any and
all of the foregoing, as well as any government entities. Also excluded from the Settlement
Class are those persons who timely and validly requested exclusion from the Settlement
Class, as set forth on Exhibit 1 attached hereto.

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3.

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With respect to the Settlement Class, this Court finds, for purposes of effectuating

this settlement, that (a) the members of the Settlement Class are so numerous that joinder of all

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SECOND CORRECTED [PROPOSED] SETTLEMENT ORDER AND JUDGMENT
CASE NO. 09-CV-02136 SC

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Settlement Class Members in the class action is impracticable; (b) there are questions of law and

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fact common to the Settlement Class which predominate over any individual questions; (c) the

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claims of the Plaintiffs are typical of the claims of the Settlement Class; (d) the Plaintiffs and

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Plaintiffs’ Counsel have fairly and adequately represented and protected the interests of all the

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Settlement Class Members; and (e) a class action is superior to other available methods for the fair

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and efficient adjudication of the controversy, considering: (i) the interests of the Settlement Class

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Members in individually controlling the prosecution of the separate actions; (ii) the extent and

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nature of any litigation concerning the controversy already commenced by members of the

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Settlement Class; (iii) the desirability or undesirability of continuing the litigation of these claims in

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this particular forum; and (iv) the difficulties likely to be encountered in the management of the

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class action.

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4.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court finds that the

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Amended Settlement Agreement and the settlement set forth therein, are fair, reasonable, and

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adequate, and are in the best interests of the Settlement Class, and are hereby approved and ordered

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performed by all parties to the Amended Settlement Agreement.

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5.

The Court has determined that the notice given to the Settlement Class fully and

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accurately informed the Settlement Class of all material elements of the proposed settlement and

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constituted the best practicable notice to all members of the Settlement Class and fully meets the

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requirements of Federal Rule of Civil Procedure 23, the requirements of due process, and any other

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applicable law.

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6.

Immediately upon entry of this Settlement Order and Judgment, the Complaint in

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this Action shall be dismissed in its entirety with prejudice. This dismissal shall be without costs to

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any party, except as specifically provided in the Amended Settlement Agreement.

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7.

This Settlement Order and Judgment applies to all claims or causes of action settled

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under the terms of the Amended Settlement Agreement, and shall be fully binding with respect to

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all members of the Settlement Class who did not timely and properly request exclusion. The

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persons who filed timely and valid requests for exclusion from the Settlement Action and who are

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therefore not bound by this Settlement Order and Judgment are set forth in Exhibit 1 attached

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SECOND CORRECTED [PROPOSED] SETTLEMENT ORDER AND JUDGMENT
CASE NO. 09-CV-02136 SC

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hereto.
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Effective as of the Final Order Date as defined in Paragraph 1.9 of the Amended

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Settlement Agreement, the releases by the Settlement Class Members and by Hughes of the

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Settlement Class Members, as specified in Sections 4.1 and 4.2 of the Amended Settlement

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Agreement, shall be effectuated and given full weight, including all terms and provisions therein.

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9.

Representative Plaintiffs and all members of the Settlement Class who did not timely

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and properly request exclusion are barred and permanently enjoined from asserting, instituting, or

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prosecuting, either directly or indirectly, any claims settled under the terms of the Amended

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Settlement Agreement to the extent provided in the Amended Settlement Agreement.

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10.

Without affecting the finality of this Settlement Order and Judgment in any way, the

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Court retains jurisdiction over: (1) the implementation and enforcement of the Amended Settlement

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Agreement until each and every act agreed to be performed by the parties to the Amended

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Settlement Agreement shall have been performed; (2) any other action necessary to conclude this

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settlement and to implement the Amended Settlement Agreement; and (3) the enforcement,

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construction and interpretation of the Amended Settlement Agreement and any order entered

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pursuant to the Amended Settlement Agreement.

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11.

This Settlement Order and Judgment does not constitute an expression by the Court

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of any opinion, position or determination as to the merit or lack of merit of any of the claims and/or

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defenses of the Representative Plaintiffs, the Settlement Class, or Hughes. Neither this Settlement

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Order and Judgment, nor the Amended Settlement Agreement, nor the fact of settlement, nor the

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settlement proceedings, nor the settlement negotiations, nor any related document, shall be used as

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an admission of any fault or omission by Hughes or be offered or received in evidence as an

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admission, concession, presumption, or inference against Hughes for any purpose whatsoever other

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than in such proceedings as may be necessary to consummate or enforce the Amended Settlement

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Agreement.

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12.

Plaintiffs’ Counsel are awarded costs, expenses, and attorneys’ fees in the amount of

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630,000.00
$_______________ for their work in connection with the prosecution of this action to be paid by

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Hughes as set forth in the Amended Settlement Agreement. This award shall be allocated among

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SECOND CORRECTED [PROPOSED] SETTLEMENT ORDER AND JUDGMENT
CASE NO. 09-CV-02136 SC

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Plaintiffs’ Counsel as proposed in their motion for an award of costs, expenses, and attorneys’ fees.
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In the event that the settlement does not become effective in accordance with the

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terms of the Amended Settlement Agreement, then this judgment shall be rendered null and void ab

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initio to the extent provided by and in accordance with the Amended Settlement Agreement and

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shall be vacated and, in such event, all orders entered and releases delivered in connection herewith

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shall be null an void to the extent provided by and in accordance with the Amended Settlement

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Agreement.

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2,500.00
Incentive awards, to be paid by Hughes, in the sum of $_________ each for Mr.

Bayless, Ms. Walter, and Mr. Schumacher, are hereby approved.

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November 16
Dated: _______________, 2012

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HON. SAMUEL CONTI
UNITED STATES DISTRICT JUDGE

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SECOND CORRECTED [PROPOSED] SETTLEMENT ORDER AND JUDGMENT
CASE NO. 09-CV-02136 SC

EXHIBIT 1