In re: UTSTARCOM, INC. SECURITIES LITIGATION

Filing 430

FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE AS MODIFIED. Signed by Judge James Ware on August 31, 2010. (jwlc1, COURT STAFF) (Filed on 8/31/2010)

In re: UTSTARCOM, INC. SECURITIES LITIGATION

Doc. 430

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UNITED STATES DISTRICT COURT
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F D IS T IC T O R

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

) CLASS ACTION
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This Document Relates To:
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) (PROPOSED) FINAL JUDGMENT AND ) ORDER OF DISMISSAL WITH PREJUDICE
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ALL ACTIONS.
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) DATE: August 30, 2010 TIME: 9:00 a.m.
COURTROOM: The Honorable James Ware

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FO

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1 This matter came before the Court for hearing pursuant to the Order Preliminarily Approving
2 Settlement and Providing for Notice ("Order") dated May 13,2010, on the application of

the parties

3 for approval of

the settlement set forth in the Stipulation of

Settlement dated as of January 13,2010

4 (the "Stipulation"). Due and adequate notice having been given to the Class as required in said
5 Order, and the Court having considered all papers filed and proceedings had herein and otherwise

6 being fully informed in the premises and good cause appearing therefore, IT is HEREBY
7 ORDERED, ADJUDGED, AND DECREED that:
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1. This Judgment incorporates by reference the definitions in the Stipulation, and all

9 terms used herein shall have the same meanings as set forth in the Stipulation, unless otherwise set
10 forth herein.
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2.

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

12 parties to the Litigation, including all Members of

the Class.

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3.

The Court hereby finally certifies a Class for settlement purposes only defined as: All

14 Persons (other than those Persons who timely and validly requested exclusion from the Class, as set

15 forth in Exhibit 1 hereto) who purchased UTStarcom publicly traded securities on the open market

16 between February 21, 2003 through and including October 12,2007, and were damaged thereby.
17 Excluded from the Class are the Defendants and officers and directors of UTStarcom, SoftBank

18 Corporation, SoftBank America, Inc. or SoftBank Holdings, Inc., as well as their families and

19 affiliates.
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4.
Pursuant to Federal Rule of Civil Procedure 23, the Court hereby approves the

21 settlement set forth in the Stipulation and finds that:
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(a)

said Stipulation is, in all respects, fair, reasonable, and adequate and in the

23 best interest of the Class;
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(b)
(c)

there was no collusion in connection with the Stipulation;
the Stipulation was the product of informed, arm's-length negotiations among

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(d)

the record is sufficiently developed and complete to have enabled the Lead

2 Plaintiffs and the UTStarcom Defendants to have adequately evaluated and considered their
3 positions.

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Accordingly, the Court authorizes and directs implementation and performance of all

5 the terms and provisions of the Stipulation, as well as the terms and provisions hereof. The Court

6 hereby dismisses the Litigation and all Released Claims of the Class with prejudice as to the

7 UTStarcom Defendants, without costs as to any Settling Party, except as and to the extent provided
8 in the Stipulation and herein.

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6.

Upon the Effective Date hereof, the Plaintiffs shall, and each of

the Class Members

10 shall be deemed to have, and by operation of

this Judgment shall have, fully, finally, and forever

11 released, relinquished, and discharged all Released Claims against the Released Persons, whether or

12 not such Class Member executes and delivers the Proof of Claim and Release or shares in the
13 Settlement Fund.

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7.

All Class Members are hereby forever barred and enjoined from prosecuting any of

15 the Released Claims against any of the Released Persons.
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Upon the Effective Date hereof, each of the Released Persons shall be deemed to
this Judgment shall have, fully, finally, and forever released, relinquished,

17 have, and by operation of

18 and discharged each and all of the Plaintiffs, Class Members, and Lead Counsel from all claims

19 (including Unknown Claims) arising out of, relating to, or in connection with the institution,
20 prosecution, assertion, settlement or resolution of the Litigation or the Released Claims.
21 Notwithstanding the foregoing, this Judgment shall not be deemed a waiver or release of, and shall

22 not preclude the Released Persons from asserting, any claims not barred by il9 herein, and otherwise

23 permitted by any applicable federal or state statute or common law, against any person or entity,

24 including claims against the Non-Settling Defendants, their present or former officers, directors,
25 partners and employees, either in the form of a cross-claim, counterclaim, third-party complaint, or

26 other form, filed in the Litigation or by a separately-filed action.
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9.
To the extent permitted by applicable laws, including Section 21D(f)(7)(A) of

the

28 Securities Exchange Act of 1934, codified at 15 U.S.C. §78u-4(f)(7)(A), upon the Effective Date, all

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1 Persons are enjoined and barred from commencing or continuing any action against the UTStarcom
2 Defendants, seeking, as damages, indemnity, contribution, or otherwise, the recovery of all or part of

3 any liability or settlement which such persons (i) paid, (ii) were obligated to payor agreed to pay, or

4 (iii) may become obligated to pay to the Class, as a result of such persons' liability for or
5 participation in any acts, facts, statements or omissions that were or could have been alleged in the

6 action captioned In re UTStarcom, Inc. Securities Litigation. Any Person whose claims are so
7 barred shall be entitled to appropriate judgment credits or reductions. Furthermore, notwithstanding

8 the foregoing, nothing in this Judgment shall apply to, bar or otherwise affect any claim of right to

9 indemnification between UTStarcom and any present or former officer or director ofUTStarcom, or
10 any claim for insurance coverage by any UTStarcom Defendant.

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10.

The Notice of

Pendency and Proposed Settlement of

Class Action given to the Class

12 was the best notice practicable under the circumstances, including the individual notice to all

13 Members of

the Class who could be identified through reasonable effort. Said notice provided the

14 best notice practicable under the circumstances of those proceedings and of the matters set forth
15 therein, including the proposed settlement set forth in the Stipulation, to all Persons entitled to such
16 notice, and said notice fully satisfied the requirements ofF ederal Rule of Civil Procedure 23 and the

17 requirements of due process.
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11.

Any Plan of Allocation submitted by Lead Counselor any order entered regarding

19 any attorneys' fee and expense application shall in no way disturb or affect this Final Judgment and
20 shall be considered separate from this Final Judgment.

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12.

Neither the Stipulation nor the settlement contained therein, nor any act performed or

22 document executed pursuant to or in furtherance of the Stipulation or the settlement: ( a) is or may be

23 deemed to be or may be used as an admission of, or èvidence of, the validity of any Released Claim,

24 or of any wrongdoing or liability of the UTStarcom Defendants or their respective Related Parties, or

25 (b) is or may be deemed to be or may be used as an admission of, or evidence of, any fault or
26 omission of any of the UTStarcom Defendants or their respective Related Parties in any civil,
27 criminal or administrative proceeding in any court, administrative agency or other tribunaL. The
28 UTStarcom Defendants and/or their respective Related Parties may file the Stipulation and/or the
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1 Judgment from this action in any other action that may be brought against them in order to support a
2 defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith
3 settlement, judgment bar or reduction or any theory of claim preclusion or issue preclusion or similar

4 defense or counterclaim.

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Without affecting the finality ofthis Judgment in any way, this Court hereby retains
jurisdiction over: (a) implementation of

this settlement and any award or distribution of

7 the Settlement Fund, including interest earned thereon; (b) disposition of the Settlement Fund;

8 (c) hearing and determining applications for attorneys' fees, interest, and expenses in the Litigation;
9 and (d) all parties hereto for the purpose of construing, enforcing, and administering the Stipulation.
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The Court finds that during the course ofthe Litigation, the Settling Parties and their

11 respective counsel at all times complied with the requirements of Federal Rule of Civil Procedure
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15.

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

14 terms of the Stipulation, or the Effective Date does not occur, or in the event that the Settlement
15 Fund, or any portion thereof, is returned to the UTStarcom Defendants' Insurers, then this Judgment
16 shall be rendered null and void to the extent provided by and in accordance with the Stipulation and

17 shall be vacated and, in such event, all orders entered and releases delivered in connection herewith
18 shall be null and void to the extent provided by and in accordance with the Stipulation.
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16.

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

20 extensions of time to carry out any of the provisions of the Stipulation.
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17.

There is no reason for delay in the entry of this Final Judgment and Order of

2 Dismissal with Prejudice and immediate entry by the Clerk of the Court is expressly directed
3 pursuant to Rule 54(b) of the Federal Rules of

Civil Procedure.

4 IT is SO ORDERED.

Within ten (10) days from the date of final disbursement of the Settlement Funds,

the parties shall file a Joint Proposed Order with respect to any residual funds and nominate the appropriate organizations for NITED distributions. U cy pres STATES DISTRICT JUDGE The Clerk shall close this file.
THE HONORABLE JAMES WARE

Dated: August 31, 2010

__________________________ JAMES WARE United States District Judge

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EXHIBIT 1

UTSTARCOM REQUESTS FOR EXCLUSION (TimelyNalid)
EXCLOOO02 EXCLOOO03 EXCLOOOI0

KoushikDas
Bradley H. Logan and Antoinette Logan Paul G. Dearman

EXCLOOOll
EXCLOOO19 EXCLOO023 EXCLOO027 EXCLOO028 EXCLOO033 EXCLOO035 EXCLOO037 EXCLOO038 EXCLOO045 EXCLOO046 EXCLOO048 EXCLOO049

Fay E. Brant and C.E. Brant Brian Anderson Elizabeth Schacht Lois 1. Street (for Acct. #xxxxxx08) Lois J. Street (for Acct. #xxxxxx50)
Maureen J. Neary Alan Hay

Walter W. Farmer and Jane F. Farmer Whitney Benefits Jose A. Chejanovich AnnH. Shute William Boyd and Alene Boyd William F. Guerin and Lillion J. Guerin

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