Hatamian et al v. Advanced Micro Devices, Inc. et al

Filing 362

***SEE DKT. NO 367 FOR CORRECT DOCKET ENTRY*** FINAL ORDER AND JUDGMENT [*AS MODIFIED BY THE COURT*]. Signed by Judge Yvonne Gonzalez Rogers on 3/2/18. (fs, COURT STAFF) (Filed on 3/2/2018) Modified on 3/6/2018 (fs, COURT STAFF).

1
2
3
4
5
6
7
8
9
10

LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
Katherine L. Benson (State Bar No. 259826)
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: [phone]
Liaison Counsel
LABATON SUCHAROW LLP
Jonathan Gardner (pro hac vice)
Carol C. Villegas (pro hac vice)
Alec T. Coquin (pro hac vice)
140 Broadway
New York, NY 10005
Telephone: [phone]
Facsimile: [phone]

MOTLEY RICE LLC
James M. Hughes (pro hac vice)
William S. Norton (pro hac vice)
Max N. Gruetzmacher (pro hac vice)
Michael J. Pendell (pro hac vice)
28 Bridgeside Blvd.
Mt. Pleasant, SC 29464
Telephone: [phone]
Facsimile: [phone]

Co-Lead Counsel for the Class

Co-Lead Counsel for the Class

11
12
13

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

14
15
16
17

BABAK HATAMIAN and LUSSA DENNJ
SALVATORE, individually and on behalf of
all others similarly situated,

18
Plaintiffs,
19
20
21
22
23
24

v.
ADVANCED MICRO DEVICES, INC.,
RORY P. READ, THOMAS J. SEIFERT,
RICHARD A. BERGMAN, AND LISA T.
SU,
Defendants.

25
26
27
28

[PROPOSED] FINAL ORDER AND JUDGMENT
CASE NO. 4:14-CV-00226-YGR

Case No. 4:14-cv-00226-YGR
CLASS ACTION
[PROPOSED] FINAL ORDER AND
JUDGMENT
* As Modified by the Court *

1

WHEREAS:

2

A.

3
4

A class action is pending in this Court entitled Hatamian, et al. v. Advanced

Micro Devices, Inc., et al., Case No. 14-cv-00226-YGR (the “Action”);
B.

Defendants in the Action are Advanced Micro Devices, Inc. (“AMD” or the

5

“Company”), and Rory P. Read, Thomas J. Seifert, Richard A. Bergman, and Lisa T. Su

6

(collectively, the “Individual Defendants” and with AMD, the “Defendants”);

7

C.

By Order entered March 16, 2016, the Court certified a Class of: all persons and

8

entities that, during the period from April 4, 2011 through October 18, 2012, inclusive, (the

9

“Class Period”) purchased or otherwise acquired shares of the publicly traded common stock of

10

AMD (the “Class”). Excluded from the Class are AMD and the Individual Defendants; members

11

of the immediate families of the Individual Defendants; AMD’s subsidiaries and affiliates; any

12

person who was an officer or director of AMD or any of AMD’s subsidiaries or affiliates during

13

the Class Period; any entity in which any Defendant has a controlling interest; AMD’s employee

14

retirement and benefit plan(s); any person or entity that validly and timely sought exclusion from

15

the Class in connection with the Notice of Pendency of Class Action (the “Class Notice”)

16

previously disseminated who has not opted back into the Class (see Exhibit A hereto); and the

17

legal representatives, heirs, successors and assigns of any such excluded person or entity.

18

Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure and the Court’s Order Granting

19

Preliminary Approval of Class Action Settlement, Approving Form and Manner of Notice, and

20

Setting Date for Hearing on Final Approval of Settlement, entered by the Court on October 25,

21

2017 (the “Preliminary Approval Order”), also excluded from the Class are those persons or

22

entities that submitted a timely and valid request for exclusion pursuant to the Settlement Notice

23

(defined below), which has been accepted by the Court (see also Exhibit A hereto);

24

D.

As of October 9, 2017, Class Representatives Arkansas Teacher Retirement

25

System (“ATRS”) and KBC Asset Management NV (“KBC”) (collectively, “Class

26

Representatives”), on behalf of themselves and each of the members of the certified Class, on the

27
28

[PROPOSED] FINAL ORDER AND JUDGMENT
CASE NO. 4:14-CV-00226-YGR

2

1

one hand, and Defendants, on the other hand, entered into a Stipulation and Agreement of

2

Settlement (the “Stipulation”) in the Action, which is annexed hereto as Exhibit B;

3

E.

Pursuant to the Preliminary Approval Order, the Court scheduled a hearing for

4

February 27, 2018, at 2:00 p.m. (the “Settlement Hearing”) to, among other things: (i) determine

5

whether the proposed Settlement of the Action on the terms and conditions provided for in the

6

Stipulation is fair, reasonable, and adequate, and should be approved by the Court; and (ii)

7

determine whether a judgment as provided for in the Stipulation should be entered;

8
9

F.

Also pursuant to the Preliminary Approval Order, the Court ordered that the

Notice of Proposed Class Action Settlement and Motion for Attorneys’ Fees and Expenses (the

10

“Settlement Notice”) and a Proof of Claim and Release form (“Proof of Claim”), substantially in

11

the forms attached to the Preliminary Approval Order as Exhibits 1 and 2, respectively, be

12

mailed by first-class mail, postage prepaid, on or before ten (10) business days after the date of

13

entry of the Preliminary Approval Order (“Notice Date”) to all potential Class Members who

14

could be identified through reasonable effort, and that a Summary Notice of Proposed Class

15

Action Settlement and Motion for Attorneys’ Fees and Expenses (the “Summary Notice”),

16

substantially in the form attached to the Preliminary Approval Order as Exhibit 3, be published

17

in Investor’s Business Daily and transmitted over PR Newswire within fourteen (14) calendar

18

days of the Notice Date;

19

G.

The Settlement Notice and the Summary Notice advised potential Class Members

20

of the date, time, place, and purpose of the Settlement Hearing. The Settlement Notice further

21

advised that any objections to the Settlement were required to be filed with the Court and served

22

on counsel for the Parties such that they were postmarked by February 6, 2018, that new requests

23

for exclusion from the Class were to be postmarked by February 6, 2018, and that any requests to

24

opt-back into the Class were to be postmarked by February 6, 2018;

25
26
27
28

H.

The provisions of the Preliminary Approval Order as to notice were complied

with;
[PROPOSED] FINAL ORDER AND JUDGMENT
CASE NO. 4:14-CV-00226-YGR

3

1

I.

On January 23, 2018, Class Representatives moved for final approval of the

2

Settlement, as set forth in the Preliminary Approval Order. The Settlement Hearing was duly

3

held before this Court on February 27, 2018, at which time all interested Persons were afforded

4

the opportunity to be heard; and

5

J.

This Court has duly considered Class Representatives’ motion, the affidavits,

6

declarations, memoranda of law submitted in support thereof, the Stipulation, and all of the

7

submissions and arguments presented with respect to the proposed Settlement;

8

NOW, THEREFORE, after due deliberation, IT IS ORDERED, ADJUDGED AND

9

DECREED that:

10

1.

This Judgment incorporates and makes a part hereof: (i) the Stipulation filed with

11

the Court on October 9, 2017 and annexed hereto as Exhibit B; and (ii) the Settlement Notice,

12

which was filed with the Court on January 23, 2018. Capitalized terms not defined in this

13

Judgment shall have the meaning set forth in the Stipulation.

14
15
16

2.

This Court has jurisdiction over the subject matter of the Action and over all

parties to the Action, including all Class Members.
3.

The Court finds that the mailing and publication of the Settlement Notice,

17

Summary Notice, and Proof of Claim: (i) complied with the Preliminary Approval Order; (ii)

18

constituted the best notice practicable under the circumstances; (iii) constituted notice that was

19

reasonably calculated to apprise Class Members of the effect of the Settlement, of the Plan of

20

Allocation, of Class Counsel’s request for an award of attorney’s fees and payment of litigation

21

expenses incurred in connection with the prosecution of the Action, of Class Members’ right to

22

object, seek exclusion from, and/or opt-back into the Class, and of their right to appear at the

23

Settlement Hearing; (iv) constituted due, adequate, and sufficient notice to all Persons entitled to

24

receive notice of the proposed Settlement; and (v) satisfied the notice requirements of Rule 23 of

25

the Federal Rules of Civil Procedure, the United States Constitution (including the Due Process

26

Clause), and Section 21D(a)(7) of the Securities Exchange Act of 1934, 15 U.S.C. § 78u-4(a)(7),

27
28

[PROPOSED] FINAL ORDER AND JUDGMENT
CASE NO. 4:14-CV-00226-YGR

4

1

as amended by the Private Securities Litigation Reform Act of 1995. No Class Member is

2

relieved from the terms of the Settlement, including the releases provided for therein, based upon

3

the contention or proof that such Class Member failed to receive actual or adequate notice. A

4

full opportunity has been offered to the Class Members to object to the proposed Settlement and

5

to participate in the hearing thereon. The Court further finds that the notice provisions of the

6

Class Action Fairness Act, 28 U.S.C. § 1715, were fully discharged and that the statutory waiting

7

period has elapsed. Thus, it is hereby determined that all members of the Class are bound by this

8

Judgment, except those persons listed on Exhibit A to this Judgment.

9

4.

There have been two objections to the Settlement. One submitted by John F.

10

Lackey (ECF Nos. 347, 355) and one submitted by Colin Hutcheson (ECF No. 351-3). Both

11

have been considered by the Court and each is hereby overruled. Mr. Lackey’s request for

12

reimbursement of expenses is also denied, as his objection did not confer a benefit on the Class.

13

Specifically, Mr. Lackey’s objection is based on a misunderstanding of the Supreme

14

Court’s holding in Dura Pharm., Inc. v. Broudo, 544 U.S. 336 (2005). In Dura, the

15

Supreme Court held that the Private Securities Litigation Reform Act of 1995 requires

16

“that a plaintiff prove that the defendant's misrepresentation (or other fraudulent conduct)

17

proximately caused the plaintiff's economic loss.” Id. at 356. In so holding, the Court

18

rejected a standard which “would allow recovery where a misrepresentation leads to an

19

inflated purchase price but nonetheless does not proximately cause any economic loss.” Id.

20

According to Mr. Lackey, “[i]f [named] plaintiffs, alone, are being paid under a

21

theory of ‘artificial inflation’ (as Plaintiffs assert), ‘interested parties’ are not receiving a

22

pro rate share in proportion to their Recognized Loses.” (Dkt. No. 369 at 2.) However,

23

Mr. Lackey is incorrect that some plaintiffs “are being paid under” a different theory of

24

recovery. As discussed at the hearing held on February 27, 2018, all plaintiffs including the

25

named plaintiffs in this matter shall receive the same pro rata share of the Settlement

26

amount.

27
28

[PROPOSED] FINAL ORDER AND JUDGMENT
CASE NO. 4:14-CV-00226-YGR

5

1
2
3

Next, Mr. Hutcheson’s objection is not directed to the Settlement but rather
plaintiffs’ counsel’s decision to pursue a case against defendants in the first place.
5.

In light of the benefits to the Class, the complexity, expense and possible duration

4

of further litigation against Defendants, the risks of establishing liability and damages, the costs

5

of continued litigation, the Court hereby fully and finally approves the Settlement as set forth in

6

the Stipulation in all respects, and finds that the Settlement is, in all respects, fair, reasonable and

7

adequate, and in the best interests of the Class. This Court further finds the Settlement set forth

8

in the Stipulation is the result of arm’s-length negotiations between experienced counsel

9

representing the interests of the Class and Defendants, all of whom had a firm understanding of

10

the factual and legal issues in dispute. Finally, the Court finds that the Settlement amount

11

represents approximately 7% of the estimated maximum damages in this matter. (Dkt. No.

12

349 at 8.) This percentage is more than double the median settlements as a percentage of

13

estimated damages obtained in securities class actions between 2007 and 2016. (See Dkt.

14

No. 351-10, Cornerstone Research Securities Class Action Settlements: 2016 Review and

15

Analysis at 12, Fig. 7) (median settlements ranged from 2–3% of estimated maximum

16

damages between 2007 and 2016).

17

6.

The Corrected Amended Class Action Complaint for Violations of the Federal

18

Securities Laws filed on June 11, 2014 (the “CAC”) is dismissed in its entirety, with prejudice,

19

and without costs to any Party, except as otherwise provided in the Stipulation.

20

7.

The Court finds that during the course of the Action, the Parties and their

21

respective counsel at all times complied with the requirements of Rule 11 of the Federal Rules of

22

Civil Procedure.

23

8.

Class Representatives and each and every other Class Member are hereby

24

permanently and forever enjoined from commencing, instituting, prosecuting, or maintaining any

25

and all of the Released Claims against any and all of the Released Defendant Parties, as set forth

26

in the Stipulation. Furthermore, Defendants are hereby permanently and forever enjoined from

27
28

[PROPOSED] FINAL ORDER AND JUDGMENT
CASE NO. 4:14-CV-00226-YGR

6

1

commencing, instituting, prosecuting, or maintaining any and all of the Released Defendants’

2

Claims against any and all of the Releasing Plaintiff Parties, as set forth in the Stipulation. For

3

purposes of this Judgment:

4

a.

“Released Claims” means any and all actions, suits, claims, demands,

5

rights, liabilities, damages, costs, restitution, rescission, interest, attorneys’

6

fees, expert or consulting fees, expenses, matters and issues known or

7

Unknown (as defined below), contingent or absolute, suspected or

8

unsuspected, disclosed or undisclosed, liquidated or unliquidated, matured

9

or unmatured, accrued or unaccrued, apparent or unapparent, whether

10

concealed or hidden, and causes of action of every nature and description,

11

including both known claims and Unknown Claims (as defined below),

12

whether based on federal, state, local, foreign, statutory or common law or

13

any other law, rule or regulation, including claims under the Securities Act

14

of 1933 or the Securities Exchange Act of 1934 or the securities laws of

15

any state or territory, that have been or that might have been asserted by

16

any Releasing Plaintiff Party against any of the Released Defendant

17

Parties, arising out of, relating to, based upon, or in connection with both:

18

(a) any purchase, acquisition, disposition, sale, or holding of AMD

19

publicly traded common stock during the Class Period and (b) any facts,

20

claims, matters, allegations, transactions, events, disclosures,

21

representations, statements, acts, or omissions or failures to act that were

22

alleged, set forth, referred to, or that could have been alleged in the Action

23

against the Released Defendant Parties. For the avoidance of doubt, the

24

following claims are not included as Released Claims: (i) Wessels v. Read,

25

et al., Case No. 1:14 cv-262486 (Santa Clara Super. Ct.); (ii) Christopher

26

Hamilton and David Hamilton v. Barnes, et al., Case No. 5:15-cv-01890

27
28

[PROPOSED] FINAL ORDER AND JUDGMENT
CASE NO. 4:14-CV-00226-YGR

7

1

(N.D. Cal.); (iii) Jake Ha v. Caldwell, et al., Case No. 3:15-cv-04485

2

(N.D. Cal.); (iv) those of any Person who is listed on Exhibit A hereto; or

3

(vi) claims relating to the enforcement of the Settlement.

4

b.

“Released Defendant Party” or “Released Defendant Parties” means

5

Defendants, Defendants’ Counsel, and each of their respective past or

6

present subsidiaries, parents, affiliates, principals, successors and

7

predecessors, joint venturers, assigns, officers, directors, shareholders,

8

underwriters, trustees, partners, members, agents, fiduciaries, contractors,

9

employees, attorneys, insurers, co-insurers, reinsurers, controlling

10

shareholders, accountants or auditors, financial or investment advisors or

11

consultants, banks or investment bankers, personal or legal

12

representatives, estates, heirs, related or affiliated entities, any entity in

13

which a Defendant has a controlling interest, any member of an Individual

14

Defendant’s immediate family, or any trust of which any Individual

15

Defendant is a settlor or which is for the benefit of any Defendant and/or

16

member(s) of his or her family, and each of the heirs, executors,

17

administrators, predecessors, successors, and assigns of the foregoing.

18

c.

“Released Defendants’ Claims” means all claims, demands, rights,

19

remedies, liabilities, and causes of action of every nature and description

20

whatsoever, including both known claims and Unknown Claims (as

21

defined below), whether arising under federal, state, local, statutory,

22

common or foreign law, or any other law, rule, or regulation, that

23

Defendants could have asserted against any of the Releasing Plaintiff

24

Parties that arise out of or relate in any way to the institution, prosecution,

25

or settlement of the claims in the Action, except for claims relating to the

26

enforcement of the Settlement.

27
28

[PROPOSED] FINAL ORDER AND JUDGMENT
CASE NO. 4:14-CV-00226-YGR

8

1

d.

2
3

“Released Parties” means the Released Defendant Parties and the
Releasing Plaintiff Parties.

e.

“Releasing Plaintiff Party” or “Releasing Plaintiff Parties” means each and

4

every Class Member, Class Representatives, Class Counsel, Liaison

5

Counsel, and each of their respective past or present trustees, officers,

6

directors, partners, employees, contractors, auditors, principals, agents,

7

attorneys, predecessors, successors, assigns, insurers, parents, subsidiaries,

8

general or limited partners or partnerships, and limited liability companies;

9

and the spouses, members of the immediate families, representatives, and

10

heirs of any Releasing Plaintiff Party who is an individual, as well as any

11

trust of which any Releasing Plaintiff Party is the settlor or which is for

12

the benefit of any of their immediate family members. Releasing Plaintiff

13

Parties does not include any Person who timely and validly seeks

14

exclusion from the Class.

15

f.

“Unknown Claims” means any and all Released Claims that Class

16

Representatives or any other Class Member does not know or suspect to

17

exist in his, her, or its favor at the time of the release of the Released

18

Defendant Parties, and any and all Released Defendants’ Claims that any

19

Defendant does not know or suspect to exist in his, her, or its favor at the

20

time of the release of the Releasing Plaintiff Parties, which if known by

21

him, her, or it might have affected his, her, or its decision(s) with respect

22

to the Settlement, including the decision to object to the terms of the

23

Settlement or to exclude himself, herself, or itself from the Class. With

24

respect to any and all Released Claims and Released Defendants’ Claims,

25

the Parties stipulate and agree that, upon the Effective Date, Class

26

Representatives and Defendants shall expressly, and each other Class

27
28

[PROPOSED] FINAL ORDER AND JUDGMENT
CASE NO. 4:14-CV-00226-YGR

9

1

Member and Released Defendant Parties shall be deemed to have, and by

2

operation of the Judgment or Alternative Judgment shall have, to the

3

fullest extent permitted by law, expressly waived and relinquished any and

4

all provisions, rights and benefits conferred by any law of any state or

5

territory of the United States, or principle of common law, which is

6

similar, comparable, or equivalent to Cal. Civ. Code § 1542, which

7

provides:

8

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

9

WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT

10

TO EXIST IN HIS OR HER FAVOR AT THE TIME OF

11

EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM

12

OR HER MUST HAVE MATERIALLY AFFECTED HIS OR

13

HER SETTLEMENT WITH THE DEBTOR.

14

Class Representatives, other Class Members, Defendants, or any Released

15

Defendant Party may hereafter discover facts, legal theories, or authorities

16

in addition to or different from those which any of them now knows or

17

believes to be true with respect to the subject matter of the Released

18

Claims and the Released Defendants’ Claims, but Class Representatives

19

and Defendants shall expressly, fully, finally, and forever waive,

20

compromise, settle, discharge, extinguish, and release, and each Class

21

Member and Released Defendant Party shall be deemed to have waived,

22

compromised, settled, discharged, extinguished, and released, and upon

23

the Effective Date and by operation of the Judgment or Alternative

24

Judgment shall have waived, compromised, settled, discharged,

25

extinguished, and released, fully, finally, and forever, any and all Released

26

Claims and Released Defendants’ Claims as applicable, known or

27
28

[PROPOSED] FINAL ORDER AND JUDGMENT
CASE NO. 4:14-CV-00226-YGR

10

1

unknown, suspected or unsuspected, contingent or absolute, accrued or

2

unaccrued, apparent or unapparent, which now exist, or heretofore existed,

3

or may hereafter exist, without regard to the subsequent discovery or

4

existence of such different or additional facts, legal theories, or authorities.

5

Class Representatives and Defendants acknowledge, and other Class

6

Members and Released Defendant Party by operation of law shall be

7

deemed to have acknowledged, that the inclusion of “Unknown Claims” in

8

the definition of Released Claims and Released Defendants’ Claims was

9

separately bargained for and was a material element of the Settlement.

10

9.

Contribution/Indemnification Bar Order: All Persons are barred from

11

commencing, prosecuting, or asserting any Barred Claims (defined below). All Barred Claims

12

are hereby extinguished, discharged, satisfied, and unenforceable. If any provision of this Bar

13

Order is held to be unenforceable after the date of entry of this Judgment, such provision shall be

14

replaced with such other provision as may be necessary to afford all Released Parties the fullest

15

protection permitted by law from any Barred Claim. For purposes of this Judgment, “Barred

16

Claim” means any claim, however styled, whether for indemnification, contribution, or

17

otherwise and whether arising under state, federal or common law, against a Person where the

18

claim is or arises from a Released Claim and the alleged injury to such Person bringing the claim

19

arises from that Person’s alleged liability to the Class or any Class Member, including any claim

20

in which a Person seeks to recover (i) any amounts such Person has or might become liable to

21

pay to the Class or any Class Member and/or (ii) any costs, expenses, or attorneys’ fees from

22

defending any claim by the Class or any Class Member.

23
24

10.

Notwithstanding the foregoing ¶ 9, nothing in this Judgment:
a.

will bar or constitute a release of any claim by any of the Released

25

Defendant Parties for insurance or reinsurance coverage arising out of,

26

related to, or in connection with this Action or the Released Claims; or

27
28

[PROPOSED] FINAL ORDER AND JUDGMENT
CASE NO. 4:14-CV-00226-YGR

11

1

b.

shall prevent any Person listed on Exhibit A hereto, and the legal

2

representatives, heirs, successors and assigns of any such excluded person

3

or entity, from pursuing any claim against any Released Defendant Party;

4

if any such Person pursues any such claim against any Released Defendant

5

Party, nothing in this Judgment or in the Stipulation shall operate to

6

preclude such Released Defendant Party from (i) asserting any claim of

7

any kind against such Person, including any Released Defendants’ Claim,

8

or (ii) seeking contribution or indemnity from any Person, including any

9

other Released Defendant Party, in respect of the claim made by a Person

10

listed on Exhibit A, and the legal representatives, heirs, successors and

11

assigns of any such excluded person or entity.

12

11.

Each Class Member, whether or not such Class Member executes and delivers a

13

Proof of Claim, is bound by this Judgment, including, without limitation, the release of claims as

14

set forth in the Stipulation.

15

12.

This Judgment and the Stipulation, whether or not consummated, and any

16

discussion, negotiation, proceeding, or agreement relating to the Stipulation, the Settlement, and

17

any matter arising in connection with settlement discussions or negotiations, proceedings, or

18

agreements, shall not be offered or received against or to the prejudice of the Parties or their

19

respective counsel, for any purpose other than in an action to enforce the terms hereof, and in

20

particular:

21

(a)

do not constitute, and shall not be offered or received against or to the

22

prejudice of Defendants as evidence of, or construed as, or deemed to be evidence of any

23

presumption, concession, or admission by Defendants with respect to the truth of any allegation

24

by plaintiffs and the Class, or the validity of any claim that has been or could have been asserted

25

in the Action or in any litigation, including but not limited to the Released Claims, or of any

26
27
28

[PROPOSED] FINAL ORDER AND JUDGMENT
CASE NO. 4:14-CV-00226-YGR

12

1

liability, damages, negligence, fault or wrongdoing of Defendants or any person or entity

2

whatsoever;

3

(b)

do not constitute, and shall not be offered or received against or to the

4

prejudice of Defendants as evidence of a presumption, concession, or admission of any fault,

5

misrepresentation, or omission with respect to any statement or written document approved or

6

made by Defendants, or against or to the prejudice of plaintiffs, or any other member of the Class

7

as evidence of any infirmity in the claims of plaintiffs, or the other members of the Class;

8
9

(c)

do not constitute, and shall not be offered or received against or to the

prejudice of Defendants, plaintiffs, any other member of the Class, or their respective counsel, as

10

evidence of a presumption, concession, or admission with respect to any liability, damages,

11

negligence, fault, infirmity, or wrongdoing, or in any way referred to for any other reason against

12

or to the prejudice of any of the Defendants, plaintiffs, other members of the Class, or their

13

respective counsel, in any other civil, criminal, or administrative action or proceeding, other than

14

such proceedings as may be necessary to effectuate the provisions of the Stipulation;

15

(d)

do not constitute, and shall not be construed against Defendants, plaintiffs,

16

or any other member of the Class, as an admission or concession that the consideration to be

17

given hereunder represents the amount that could be or would have been recovered after trial;

18

and

19

(e)

do not constitute, and shall not be construed as or received in evidence as

20

an admission, concession, or presumption against plaintiffs, or any other member of the Class

21

that any of their claims are without merit or infirm or that damages recoverable under the CAC

22

would not have exceeded the Settlement Amount.

23

13.

The administration of the Settlement, and the decision of all disputed questions of

24

law and fact with respect to the validity of any claim or right of any Person to participate in the

25

distribution of the Net Settlement Fund, shall remain under the authority of this Court.

26
27
28

[PROPOSED] FINAL ORDER AND JUDGMENT
CASE NO. 4:14-CV-00226-YGR

13

1

14.

In the event that the Settlement does not become effective in accordance with the

2

terms of the Stipulation, then this Judgment shall be rendered null and void to the extent

3

provided by and in accordance with the Stipulation and shall be vacated, and in such event, all

4

orders entered and releases delivered in connection herewith shall be null and void to the extent

5

provided by and in accordance with the Stipulation.

6
7

15.

of time to carry out any of the provisions of the Stipulation.

8
9
10

Without further order of the Court, the Parties may agree to reasonable extensions

16.

The Parties are hereby directed to consummate the Stipulation and to perform its

17.

A separate order shall be entered regarding Class Counsel’s motion for an award

terms.

11

of attorneys’ fees and payment of expenses. A separate order shall be entered regarding the Plan

12

of Allocation set forth in the Notice. Such orders shall in no way disturb or affect this Judgment

13

and shall be considered separate from this Judgment.

14
15
16

18.

The Court’s orders entered during this Action relating to the confidentiality of

information shall survive this Settlement.
19.

Without affecting the finality of this Judgment in any way, this Court hereby

17

retains continuing jurisdiction for a period of one year from the date of this Judgment over: (i)

18

implementation of the Settlement; (ii) the allowance, disallowance or adjustment of any Class

19

Member’s claim on equitable grounds and any award or distribution of the Settlement Fund; (iii)

20

disposition of the Settlement Fund; (iv) hearing and determining applications for attorneys’ fees,

21

costs, interest and payment of expenses in the Action; (v) all Parties for the purpose of

22

construing, enforcing and administering the Settlement and this Judgment; and (vi) other matters

23

related or ancillary to the foregoing. There is no just reason for delay in the entry of this

24

Judgment and immediate entry by the Clerk of the Court is expressly directed.
//
//
//
//

25
26
27
28

[PROPOSED] FINAL ORDER AND JUDGMENT
CASE NO. 4:14-CV-00226-YGR

14

1

Dated: ______________, 2018
March 2
HONORABLE YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT JUDGE

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

[PROPOSED] FINAL ORDER AND JUDGMENT
CASE NO. 4:14-CV-00226-YGR

15

EXHIBIT A

1
2
3
4
5
6
7
8
9

Count
1
2
3
4
5
6
7
8
9
10
11

10
11
12
13
14
15

12
13
14
15
16
17

Name
SAM MERCURIO
GUISEPPE MANZELLA
DAVID M SMITH
GLENN MCKOY
JAMES C GRAY
MICHAEL E MORAN
SERGE FAVRE
JASON GUTOWSKI
ANDREW BOORDA
RAYMOND J PIRES
RICHARD LETT & DIANE LETT
HAROLD VAN BUREN & SUE VAN
BUREN
ALICE STATON & LEONARD
EWENSTEIN
REZA ASADI & DOROTHY ESTERLEASSADI
MARCUS ROUX
ADAM FRISBIE
CLAUDIO ANDREONI

City
GRANBURY
CHICAGO
KANSAS CITY
NEW YORK
COOKEVILLE
GREENSBURG
GLAND
ROCKVILLE
MIDDLETOWN
LINCOLN
STOUTSVILLE

State
TX
IL
MO
NY
TN
PA
Switzerland
MD
RI
RI
MO

CHANDLER

AZ

NEW YORK

NY

ATHENS
AMBLER
CEDAR FALLS
NEW YORK

OH
PA
IA
NY

16
17
18
19
20
21
22
23
24
25
26
27
28

[PROPOSED] FINAL ORDER AND JUDGMENT
CASE NO. 4:14-CV-00226-YGR

16