In re: UTSTARCOM, INC. SECURITIES LITIGATION

Filing 399

ORDER Approving Settlement and Providing For Notice re 398 Proposed Order. Fairness hearing set for 8/30/2010 at 9:00 AM in Courtroom 8, 4th Floor, San Jose. Signed by Judge James Ware on 5/13/2010. (ecg, COURT STAFF) (Filed on 5/13/2010)

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UNIT ED

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S DISTRICT TE C TA

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ER

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F D IS T IC T O R

UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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In re UTSTARCOM, INC. SECURITIES 12 LITIGATION
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) Master File No. C-04-4908-JW(PVT)

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) CLASS ACTION
This Document Relates To:
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) (PROPOSED) ORDER PRELIMINARILY

ALL ACTIONS.
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) APPROVING SETTLEMENT AND ) PROVIDING FOR NOTICE
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523054_1

A

C

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FO

m Judge Ja

es Ware

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OO IT IS S

RDERE

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1 WHEREAS, a consolidated action is pending before the Court entitled In re UTStarcom, Inc.
2 Securities Litigation, Master File No. C-04-4908-JW(PVT) (the "Litigation");

3 WHEREAS, the Court has received the Stipulation of Settlement dated as of January 13,

4 2010 (the "Stipulation"), that has been entered into by the Lead Plaintiffs and the UTStarcom
5 Defendants, and the Court has reviewed the Stipulation and its attached Exhibits;
6 WHEREAS, the Settling Parties having made application, pursuant to Federal Rule of

Civil

7 Procedure 23( e), for an order preliminarily approving the settlement ofthis Litigation, in accordance
8 with the Stipulation which, together with the Exhibits annexed thereto, sets forth the terms and

9 conditions for a proposed settlement of the Litigation as to the UTStarcom Defendants and for
10 dismissal of the Litigation with prejudice as to the UTStarcom Defendants upon the terms and

11 conditions set forth therein; and the Court having read and considered the Stipulation and the
12 Exhibits annexed thereto; and
13 WHEREAS, all defined terms contained herein shall have the same meanings as set forth in

14 the Stipulation;

15 NOW, THEREFORE, IT is HEREBY ORDERED:
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1.

For settlement purposes only, the Court certifies a Class defined as: All Persons who

17 purchased UTStarcom publicly traded securities on the open market between February 21,2003

18 through and including October 12,2007, and were damaged thereby. Excluded from the Class are
19 the Defendants and officers and directors ofUTStarcom, SoftBank Corporation, SoftBank America,

20 Inc. or SoftBank Holdings, Inc., as well as their families and affiliates. Also excluded from the
21 Class are those Persons who timely and validly request exclusion from the Class. If

the Stipulation

22 and the settlement set forth therein are not approved by the Court or are terminated or fail to become

23 effective in accordance with the terms therein, this conditional certification shall be vacated without

24 further order of the Court and without prejudice to the right of any party to seek or oppose class
25 certification thereafter.
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2.

The Court does hereby preliminarily approve the Stipulation and the settlement set

27 forth therein, subject to further consideration at the Settlement Hearing described below.
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3.

A hearing (the "Settlement Hearing") shall be held before this Court on August 30,

2 2010, at 9:00 a.m., at the United States Courthouse, 280 South First Street, San Jose, California, to
3 determine whether the proposed partial settlement of the Litigation on the terms and conditions

4 provided for in the Stipulation is fair, just, reasonable, and adequate to the Class and should be
5 approved by the Court; whether a Judgment as provided in iĦ1.11 ofthe Stipulation should be entered
6 herein; whether the proposed Plan of Allocation should be approved; to determine the amount offees

7 and expenses that should be awarded to plaintiffs' counsel; and to determine the amount of expenses
8 to be reimbursed to the Plaintiffs. The Court may adjourn the Settlement Hearing without further

9 notice to Members of the Class.
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4.

The Court approves, as to form and content, the Notice of

Pendency and Proposed

11 Settlement of Class Action (the "Notice"), the Proof of Claim and Release form (the "Proof of

12 Claim"), and Summary Notice annexed as Exhibits A-I, A-2, and A-3 hereto and finds that the
13 mailing and distribution of the Notice and publishing of

the Summary Notice substantially in the

14 manner and form set forth in iĦiĦ5-6 of this Order meet the requirements of Federal Rule of Civil

15 Procedure 23 and due process, and is the best notice practicable under the circumstances and shall

16 constitute due and sufficient notice to all Persons entitled thereto.
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5.

The firm of Gilardi & Co. LLC ("Claims Administrator") is hereby appointed to

18 supervise and administer the notice procedure as well as the processing of claims as more fully set

19 forth below:
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21 Members of

(a)

Lead Counsel shall make reasonable efforts to identify all Persons who are

the Class and not later than May 28, 2010 (the ''Notice Date"), Lead Counsel shall cause

22 a copy ofthe Notice and the Proof of

Claim, substantially in the forms annexed as Exhibits A-I and

23 A-2 hereto, to be mailed by first class mail to all Class Members who can be identified with
24 reasonable effort;
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(b)

Not later than June 8, 2010, Lead Counsel shall cause the Summary Notice to

26 be published once in Investor's Business Daily; and

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(c)

At least seven (7) calendar days prior to the Settlement Hearing, Lead Counsel

2 shall cause to be served on Defendants' counsel and filed with the Court proof, by affidavit or
3 declaration, of such mailing and publishing.

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6.

Nominees who purchased the publicly traded securities of UTStarcom for the
Class Members during the Class Period shall send the Notice and the Proof

5 beneficial ownership of

6 of Claim to all beneficial owners of such UTStarcom securities within ten (10) days after receipt
7 thereof, or send a list of the names and addresses of such beneficial owners to the Claims
8 Administrator within ten (10) days of receipt thereof, in which event the Claims Administrator shall

9 promptly mail the Notice and Proof of Claim to such beneficial owners. Lead Counsel shall, if
10 requested, reimburse banks, brokerage houses or other nominees solely for their reasonable out-of11 pocket expenses incurred in providing notice to beneficial owners who are Class Members out ofthe

12 Settlement Fund, which expenses would not have been incurred except for the sending of such
13 Notice, subject to further order of this Court with respect to any dispute concerning such

14 compensation.

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7.

All Members of

the Class shall be bound by all determinations and

judgments in the

16 Litigation concerning the settlement, whether favorable or unfavorable to the Class.
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8.
Class Members who wish to participate in the settlement shall complete and submit

18 Proof of Claim forms in accordance with the instructions contained therein. Unless the Court orders
19 otherwise, all Proof of Claim forms must be submitted no later than ninety (90) days from the Notice
20 Date. Any Class Member who does not timely submit a Proof of

Claim within the time provided for,

21 shall be barred from sharing in the distribution of the proceeds of the Settlement Fund, unless
22 otherwise ordered by the Court. Notwithstanding the foregoing, Lead Counsel may, in their

23 discretion, accept late-submitted claims for processing by the Claims Administrator so long as
24 distribution of

the Net Settlement Fund is not materially delayed thereby.
9.
Any Member of the Class may enter an appearance in the Litigation, at their own

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26 expense, individually or through counsel of their own choice. If they do not enter an appearance,
27 they will be represented by Lead Counsel.

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10.

Any Person falling within the definition of

the Class may, upon request, be excluded

2 from the Class. Any such Person must submit to the Claims Administrator a request for exclusion
3 ("Request for Exclusion"), postmarked no later than August 6,2010. A Request for Exclusion must
4 state: (a) the name, address, and telephone number of

the Person requesting exclusion; (b) each of

5 the Person's purchases and sales of UTStarcom publicly traded securities made during the Class
6 Period, including the dates of purchase or sale, the number of shares purchased and/or sold, and the
7 price paid or received per share for each such purchase or sale; and (c) that the Person wishes to be

8 excluded from the Class. All Persons who submit valid and timely Requests for Exclusion in the
9 manner set forth in this paragraph shall have no rights under the Stipulation, shall not share in the

10 distribution of the Net Settlement Fund, and shall not be bound by the Stipulation or the Judgment
11 entered in the Litigation.
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11. Any Member of

the Class may appear and show cause, ifhe, she or it has any, why

13 the proposed partial settlement of the Litigation should or should not be approved as fair, reasonable,
14 and adequate, why a judgment should or should not be entered thereon, why the Plan of Allocation

15 should or should not be approved, why attorneys' fees and expenses should or should not be awarded

16 to counsel for the plaintiffs, or why the expenses of the Plaintiffs should or should not be awarded;

17 provided, however, that no Class Member or any other Person shall be heard or entitled to contest
18 such matters, unless that Person has delivered by hand or sent by first class mail written objections

19 and copies of any papers and briefs such that they are received on or before August 6, 2010, by
20 Robbins Geller Rudman & Dowd LLP, Keith F. Park, 655 W. Broadway, Suite 1900, San Diego,
21 CA 92101; Wilson Sonsini Goodrich & Rosati, Terry T. Johnson, Boris Feldman, 650 Page Mill

22 Road, Palo Alto, CA 94304-1050, and filed said objections, papers, and briefs with the Clerk of

the

23 United States District Court for the Northern District of California, San Jose Division, on or before
24 August 6,2010. Any Member of

the Class who does not make his, her or its objection in the manner

25 provided shall be deemed to have waived such objection and shall forever be foreclosed from
26 making any objection to the fairness or adequacy of the proposed settlement as set forth in the
27 Stipulation, to the Plan of Allocation, or to the award of attorneys' fees and expenses to counsel for

28 the plaintiffs or expenses of the Plaintiffs, unless otherwise ordered by the Court.
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12.

All funds held by the Escrow Agent shall be deemed and considered to be in custodia

2 legis of

the Court, and shall remain subject to the jurisdiction of

the Court, until such time as such
the Court.

3 funds shall be distributed pursuant to the Stipulation and/or further order(s) of

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13.

Lead Counsel shall be entitled to withdraw seventy-five percent (75%) of their

5 expenses incurred in prosecuting the Litigation from the Settlement Fund, subject to final approval

6 of said expenses at the Settlement Hearing and the other provisions of iĦ6.1 of the Stipulation.
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14.
All opening briefs and supporting documents in support of

the settlement, the Plan of

8 Allocation, and any application by counsel for the plaintiffs for attorneys' fees and expenses or by
9 Plaintiffs for reimbursement of

their expenses shall be filed and served by June 18,2010. Replies to

10 any objections shall be filed and served by August 20, 2010.
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15.

Neither the UTStarcom Defendants and their Related Parties nor the UTStarcom

12 Defendants' counsel shall have any responsibility for the Plan of Allocation or any application for

13 attorneys' fees or expenses submitted by plaintiffs' counselor the Plaintiffs, and such matters will be
14 considered separately from the fairness, reasonableness, and adequacy of the settlement.

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16.

At or after the Settlement Hearing, the Court shall determine whether the Plan of

16 Allocation proposed by Lead Counsel, and any application for attorneys' fees or payment of
17 expenses shall be approved.
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17.

All reasonable expenses incurred in identifying and notifying Class Members, as well

19 as administering the Settlement Fund, shall be paid as set forth in the Stipulation. In the event the
20 settlement is not approved by the Court, or otherwise fails to become effective, neither the Plaintiffs

21 nor any of their counsel shall have any obligation to repay any amounts incurred or properly
22 disbursed pursuant to iĦiĦ2.6 or 2.7 of the Stipulation.
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18.
Neither the Stipulation, nor any of its terms or provisions, nor any of

the negotiations

24 or proceedings connected with it, shall be construed as an admission or concession by the
25 UTStarcom Defendants of the truth of any of

the allegations in the Litigation, or of any liability,

26 fault, or wrongdoing of any kind.
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19.
The Court reserves the right to adjourn the date of

the Settlement Hearing without

28 further notice to the Members of the Class, and retains jurisdiction to consider all further
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1 applications arising out of or connected with the proposed settlement. The Court may approve the
2 settlement, with such modifications as may be agreed to by the Settling Parties, if appropriate,

3 without further notice to the Class.
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20.

If

the Stipulation and the settlement set forth therein is not approved or consummated

5 for any reason whatsoever, the Stipulation and settlement and all proceedings had in connection
6 therewith shall be without prejudice to the rights of

the Settling Parties status quo ante.

7 IT is SO ORDERED.
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9 DATED: Dated: May 13, 2010
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11 Submitted by:

_____________________________ THE HONORABLE JAMES WARE JAMES WARE D STATES DISTRICT JUDGE UNITE United States District Judge

12 ROBBINS GELLER RUDMAN & DOWDLLP
13 PATRICKJ. COUGHLIN KEITH F. PARK

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s/ Keith F. Park
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KEITH F. PARK

17 655 W. Broadway, Suite 1900

San Diego, CA 92101
18 Telephone: [phone]

619/231-7423 (fax)
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ROBBINS GELLER RUDMAN DOWDLLP SHAWN A. WILLIAMS 21 SHIRLEY H. HUANG DANIEL J. PFEFFERBAUM 22 PHILLIP G. FREEMON
20 &

100 Pine Street, Suite 2600
23 San Francisco, CA 94111 Telephone: [phone] (fax)

25 Lead Counsel for Plaintiffs
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