St. Louis Police Retirement Systems v. Severson et al

Filing 128

FINAL ORDER AND JUDGMENT. Signed by Judge Yvonne Gonzalez Rogers on 8/12/14. (Attachments: # 1 Exhibit A: Stipulation of Settlement)(fs, COURT STAFF) (Filed on 8/12/2014)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

7
8
9

ST. LOUIS POLICE RETIREMENT SYSTEM,
On Behalf Of Itself and All Others Similarly
Situated and Derivatively on Behalf of Nominal
Defendant ABAXIS, INC.,

10
11
12
13
14
15

Plaintiff,
v.

18
19

FINAL ORDER AND JUDGMENT

CLINTON H. SEVERSON, ALBERTO R.
SANTA INES, KENNETH P. ARON,
VLADIMIR E. OSTOICH, DONALD P.
WOOD, MARTIN V. MULROY, RICHARD J.
BASTIANI, MICHAEL D. CASEY, HENK J.
EVENHUIS, PRITHIPAL SINGH, VERNON
E. ALTMAN, AND ERNEST S. TUCKER,

16
17

CASE NO. 12-CV-05086-YGR

Defendants,
and
ABAXIS, INC.
Nominal Defendant.

20
21
22
23
24
25
26
27
28
FINAL ORDER AND JUDGMENT
CASE NO. 12-CV-05086-YGR

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

FINAL ORDER AND JUDGMENT
This matter came before the Court for hearing pursuant to the Order of this Court,
dated April 15, 2014 (“Order”), on the application of Plaintiff for approval of the
proposed settlement (“Settlement”) set forth in the Stipulation of Settlement dated
January 16, 2014, and attached hereto as Exhibit A (the “Stipulation”).
The Court has reviewed and considered all documents, evidence, objections (if
any) and arguments presented in support of or against the Settlement; the Court being
fully advised of the premises and good cause appearing therefore, the Court enters this
Final Order and Judgment.
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED this 12th day of August, 2014, that:
1.

This Final Order and Judgment incorporates by reference the definitions in

the Stipulation, and all capitalized terms used herein shall have the same meanings as set
forth in the Stipulation.
2.

This Court has jurisdiction over the subject matter of the Action, including

all matters necessary to effectuate the Settlement, and over all Parties.
3.

The Court finds that, for the purposes of settlement only, the Action is a

proper class action pursuant to Rules 23(a), 23(b)(1) and 23(b)(2) of the Federal Rules of
Civil Procedure. Specifically, this Court finds that: (a) the members of the Class are so
numerous that separate joinder of each member is impracticable; (b) there are questions
of law or fact common to the Class, including whether the disclosures made by Abaxis in
connection with the Plan Amendment were adequate, whether the Individual Defendants
breached their fiduciary duties to members of the Class and whether Plaintiffs and the
members of the Class were injured as a consequence of Defendants’ actions; (c) the
claims or defenses of the Plaintiff are typical of the claims or defenses of the Class in that
they all arise from the same allegedly wrongful course of conduct and are based on the
same legal theories; (d) Plaintiff and its counsel have fairly and adequately protected the
FINAL ORDER AND JUDGMENT
CASE NO. 12-CV-05086-YGR

-1-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

interests of Abaxis and the Class; (e) the prosecution of separate actions by individual
members of the Class would create a risk of either (i) inconsistent or varying
adjudications with respect to individual members of the Class which would establish
incompatible standards of conduct for Defendants, or (ii) adjudications with respect to
individual members of the Class which would as a practical matter be dispositive of the
interests of the other members of the Class who are not parties to the adjudications or
substantially impair or impede their ability to protect their interests; and (f) there were
allegations that Defendants acted or refused to act on grounds generally applicable to the
Class, thereby making appropriate final injunctive relief or corresponding declaratory
relief with respect to the Class as a whole. Thus, for the purposes of settlement only, the
Action is a proper class action pursuant to Federal Rules of Civil Procedure 23(a),
23(b)(1) and 23(b)(2).
4.

The Action is certified as a mandatory non-opt-out class action pursuant to

Federal Rules of Civil Procedure 23(a), 23(b)(1) and 23(b)(2) on behalf of a class
consisting of all persons and entities that held common stock in Abaxis as of the close of
business on August 31, 2012, which represents the record date for the shareholders
entitled to vote at Abaxis’s October 24, 2012 Annual Meeting (excluding the Individual
Defendants, members of the immediate family of any Individual Defendant, and any
person, firm, trust, corporation, or other entity related to, or affiliated with, any Individual
Defendant, and the legal representatives, heirs, successors or assigns of any such
Excluded Person).
5.

Plaintiff St. Louis Police Retirement System is hereby certified as Class

representative.
6.

The Court finds that the notice of the proposed Settlement disseminated to

Abaxis shareholders satisfied the requirements of due process and all other applicable
laws, and constitutes due and sufficient notice to all persons entitled thereto.

27
28

FINAL ORDER AND JUDGMENT
CASE NO. 12-CV-05086-YGR

-2-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

7.

All members of the Class are bound by this Final Order and Judgment, as

full and adequate notice of the proceedings was given and a full opportunity to be heard
was provided to members of the Class.
8.

The Court finds that, during the course of the litigation of the Action, the

Parties and their respective counsel at all times complied with the requirements of
Federal Rule of Civil Procedure 11 and all other similar laws.
9.

The Court finds that the terms of the Stipulation and Settlement are fair,

reasonable and adequate as to the Class and each of the Parties, and hereby finally
approves the Stipulation and Settlement in all respects, and orders the Parties to perform
its terms to the extent the Parties have not already done so.
10.

The Action and all claims contained therein, as well as all of the Released

Claims, are hereby dismissed with prejudice. The Parties are to bear their own costs,
except as otherwise provided in the Stipulation.
11.

Upon the Effective Date, as defined in the Stipulation, Plaintiff (acting on

its own behalf and derivatively on behalf of Abaxis), Abaxis, and each member of the
Class (solely in his, her or its capacity as an Abaxis shareholder) shall be deemed to have,
and by operation of this Final Order and Judgment shall have, fully, finally and forever
released, relinquished and discharged the Released Claims against the Released Persons
and any and all claims (including Unknown Claims) arising out of, relating to, or in
connection with, the defense, settlement or resolution of the Action against the Released
Persons.
12.

Upon the Effective Date, as defined in the Stipulation, each of the

Released Persons, Abaxis and each member of the Class (solely in his, her or its capacity
as a Abaxis shareholder) shall be deemed to have, and by operation of this Final Order
and Judgment shall have, fully, finally and forever released, relinquished and discharged
each and all of the Plaintiff and Plaintiff’s Counsel from all claims (including Unknown

27
28

FINAL ORDER AND JUDGMENT
CASE NO. 12-CV-05086-YGR

-3-

1
2
3
4
5
6

Claims) arising out of, relating to, or in connection with, the institution, prosecution,
assertion, settlement or resolution of the Action or the Released Claims.
13.

The Parties have expressly waived any and all provisions, rights and

benefits conferred by any law of any jurisdiction or any state or territory of the United
States, or principle of common law, which is similar, comparable or equivalent to
California Civil Code § 1542, which provides:

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED
HIS OR HER SETTLEMENT WITH THE DEBTOR.
The Parties acknowledge, and members of the Class are hereby deemed to have
acknowledged, that the waiver of Unknown Claims was separately bargained for and is a
key element of the Settlement.
14.

Abaxis, Plaintiff and each member of the Class (solely in his, her or its

capacity as an Abaxis shareholder) are hereby forever barred and enjoined from
instituting and/or prosecuting any other action against the Released Persons in any court
or jurisdiction asserting any Released Claims.
15.

Nothing herein shall in any way impair or restrict the rights of any Party to

enforce the terms of the Stipulation.
16.

Plaintiff’s Counsel is hereby awarded $579,429.53 for attorneys’ fees and

reimbursement of expenses, subject to Plaintiff’s Counsels’ joint and several obligations
to refund or repay within ten (10) business days any amounts paid if, for any reason,
including as a result of any appeal and/or further proceedings on remand, or successful
collateral attack, the amount awarded is lowered, overturned, or reduced.
17.

This Final Order and Judgment shall not be deemed a presumption,

concession, or admission by any Party of any fault, liability, or wrongdoing, or lack of
merit as to any facts or claims alleged or asserted in the Action or in any other action or
proceeding, and shall not be interpreted, construed, deemed, invoked, offered, or received
FINAL ORDER AND JUDGMENT
CASE NO. 12-CV-05086-YGR

-4-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

into evidence or otherwise used by any person in the Action or in any other action or
proceeding, whether civil, criminal, or administrative, except in connection with any
proceeding to enforce the terms of the Settlement. The Released Persons may file the
Stipulation and/or this Final Order and Judgment in any action that may be brought
against them in order to support a defense or counterclaim based on principles of res
judicata, collateral estoppel, full faith and credit, release, good faith settlement, judgment
bar or reduction or any other theory of claim preclusion or issue preclusion or similar
defense or counterclaim; and any of the Parties may file the Stipulation and documents
executed pursuant thereto and in furtherance thereof in any action to enforce the
Settlement.
18.

Without affecting the finality of this Final Order and Judgment in any

way, this Court hereby retains continuing jurisdiction for a period of one (1) year from
the date hereof with respect to implementation and enforcement of the terms of the
Stipulation.
19.

This Final Order and Judgment is a final, appealable judgment and should

be entered forthwith by the Clerk in accordance with Federal Rule of Civil Procedure 58
and all other similar laws.
IT IS SO ORDERED.

19
20

DATED: August 12, 2014
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT JUDGE

21
22
23
24
25
26
27
28

FINAL ORDER AND JUDGMENT
CASE NO. 12-CV-05086-YGR

-5-