Newman v. Network Equipment Technologies, Inc. et al

Filing 57

ORDER by Judge Lucy H. Koh granting 50 Motion for Settlement (lhklc4, COURT STAFF) (Filed on 1/28/2014)

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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SUZANNE NEWMAN, Individually and on
behalf of all others similarly situated,

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Plaintiff,

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v.

CASE NO. 12-CV-03937-LHK
CLASS ACTION
ORDER AND FINAL JUDGMENT

NETWORK EQUIPMENT
TECHNOLOGIES, INC., DAVID
WAGENSELLER, DIXON R. DOLL, C.
NICHOLAS KEATING, JR.,
FREDERICK D’ALESSIO, DAVID R.
LAUBE, SONUS NETWORKS, INC., and
NAVY ACQUISITION SUBSIDIARY,
INC.,

Complaint Filed: July 26, 2012

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Defendants.
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The Stipulation of Settlement dated February 20, 2013 (the “Stipulation”) of the
above-captioned action (the “Action”), and the settlement contemplated thereby (the “Settlement”)
having been presented at the Settlement Hearing on January 16, 2014, pursuant to the Scheduling
Order entered herein on August 2, 2013 (the “Scheduling Order”) and the Court having determined
that notice of said hearing was given to the Class in accordance with the Scheduling Order and that
said notice was adequate and sufficient; and the parties having appeared by their attorneys of record;
and the attorneys for the respective parties having been heard in support of the Settlement of the

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ORDER AND FINAL JUDGMENT
CASE NO. 12-CV-03937-LHK

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Action, and an opportunity to be heard having been given to all other persons desiring to be heard as
provided in the notice; and the entire matter of the Settlement having been considered by the Court;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED, this 28th day of January,
2014, as follows:
1.

Unless otherwise defined herein, all defined terms shall have the meanings as set

forth in the Stipulation.
2.

The Notice of Pendency of Class Action, Proposed Settlement of Class Action,

Settlement Hearing and Right to Appear (“Notice”) has been given to the Class (as defined below)
pursuant to and in the manner directed by the Scheduling Order, proof of the mailing of the Notice
has been filed with the Court and a full opportunity to be heard has been offered to all parties to the
Action, the Class and persons in interest. The form and manner of the Notice is hereby determined
to have been the best notice practicable under the circumstances and to have been given in full
compliance with each of the requirements of Rule 23 of the Federal Rules of Civil Procedure and
due process, and it is further determined that all members of the Class are bound by the Order and
Final Judgment herein.
3.

Based on the record of the Action, the Court hereby finds, pursuant to Rule 23 of the

Federal Rules of Civil Procedure, as follows:
a.

that (i) the Class, as defined below, is so numerous that joinder of all

members is impracticable, (ii) there are questions of law and fact common to the Class, (iii) the
claims of Plaintiffs are typical of the claims of the Class, and (iv) Plaintiffs and Plaintiffs’ Counsel
have fairly and adequately protected the interests of the Class;
b.

that the requirements of Rule 23(a) and (b) of the Federal Rules of Civil

Procedure have been satisfied;
c.

that the requirements of the Federal Rules of Civil Procedure and due

process have been satisfied in connection with the Notice;
d.

that the Action is hereby certified as a non-opt out class action pursuant to

Rule 23 of the Federal Rules of Civil Procedure with the class defined as all record and beneficial

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ORDER AND FINAL JUDGMENT
CASE NO. 12-CV-03937-LHK

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holders of NET common stock, their respective successors and predecessors in interest,
representatives, trustees, executors, administrators, heirs, assigns or transferees, immediate and
remote, and any person or entity acting for or on behalf of, or claiming under any of them, and each
of them, together with their predecessors and successors and assigns, who held NET common stock
at any time between and including June 18, 2012 and August 24, 2012, but excluding Defendants
and their respective affiliates; and

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e.

that Plaintiff is hereby certified as the Class representative, and Plaintiffs’

Counsel are certified as Class Counsel.
4.

The Settlement is found to be fair, reasonable and adequate and in the best interests

of the Class, and it is hereby approved pursuant to Rule 23(e) of the Federal Rules of Civil
Procedure. The Parties are hereby authorized and directed to comply with and to consummate the
Settlement in accordance with the terms and provisions of the Stipulation, and the clerk for the
Northern District of California Court is directed to enter and docket this Order and Final Judgment
in the Action.
5.

This Order and Final Judgment shall not constitute any evidence or admission by

any of the Parties herein that any acts of wrongdoing have been or have not been committed by any
of the Parties to the Action and should not be deemed to create any inference that there is any
liability or lack of any liability therefor.
6.

The Action is hereby dismissed with prejudice in its entirety as to the Defendants

and against Plaintiffs and all other members of the Class on the merits and, except as provided in
the Stipulation, without costs.
7.

Any and all claims, demands, rights, actions, causes of action, liabilities, damages,

losses, obligations, judgments, duties, suits, costs, expenses, matters and issues known or unknown,
contingent or absolute, suspected or unsuspected, disclosed or undisclosed, liquidated or
unliquidated, matured or unmatured, accrued or unaccrued, apparent or unapparent, that have been,
could have been, or in the future can or might be asserted in the Action or in any other court,
tribunal or proceeding (including but not limited to any claims arising under federal, state, foreign

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ORDER AND FINAL JUDGMENT
CASE NO. 12-CV-03937-LHK

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or common law, including the federal securities laws and any state disclosure law) by or on behalf
of Plaintiffs, the Class, or any member of the Class, whether individual, direct, class, derivative,
representative, legal, equitable, or any other type or in any other capacity (collectively, the
“Releasing Persons”) against Defendants, or any of their families, parent entities, controlling
persons, associates, affiliates, successors or subsidiaries, and each and all of their respective past or
present officers, directors, stockholders, principals, representatives, employees, attorneys, financial
or investment advisors, insurers, consultants, accountants, investment bankers, commercial
bankers, entities providing fairness opinions, underwriters, brokers, dealers, advisors or agents,
heirs, executors, trustees, general or limited partners or partnerships, limited liability companies,
members, joint ventures, personal or legal representatives, estates, administrators, predecessors,
successors and assigns (collectively, the “Released Persons”), which have arisen, could have
arisen, arise now or hereafter may arise out of or relate in any manner to the acts, events, facts,
matters, transactions, occurrences, statements, representations, misrepresentations or omissions or
any other matter whatsoever set forth in or otherwise related, directly or indirectly, to (i) the
allegations in the Action; (ii) the merger agreement, announced on June 19, 2012 (the “Merger
Agreement”), whereby Sonus was to acquire NET in a cash merger at a purchase price of $1.35 per
share (the “Transaction”), and the transactions contemplated therein; or (iii) disclosures made in
connection with the Transaction (including the adequacy and completeness of such disclosures)
(collectively, the “Released Claims”) are fully and completely discharged, dismissed with
prejudice on the merits, settled and released; provided, however, that the Released Claims shall not
include any claims to enforce the Settlement or any claims for appraisal properly asserted by NET
stockholders.
8.

Any and all claims by the Released Persons arising out of the commencement,

prosecution, settlement or resolution of the Actions against Plaintiffs, members of the Class and
their counsel are hereby fully and completely settled and released; provided, however, that the
Defendants and Released Persons shall retain the right to enforce the terms of the Stipulation.
9.

The release contemplated by the Settlement extends to all Released Claims, known

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ORDER AND FINAL JUDGMENT
CASE NO. 12-CV-03937-LHK

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or unknown, suspected or unsuspected, which now exist, or heretofore existed, or may hereafter
exist, without regard to the subsequent discovery of additional or different facts. The releases
contemplated by the Stipulation shall extend to claims that the Releasing Persons do not know or
suspect to exist at the time of the release, which if known, might have affected their decision to
enter into the release or whether or how to object to the Settlement. The Settlement hereby
extinguishes all Released Claims, and the Releasing Persons shall be deemed to waive any and all
provisions, rights, and benefits conferred by any law of the United States, any state or territory of
the United States, foreign law or any principle of common law that may have the effect of limiting
the releases set forth above. The Releasing Persons shall be deemed to relinquish, to the extent
applicable, and to the full extent permitted by law, the provisions, rights and benefits of Section
1542 of the California Civil Code, which states that:

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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.

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The Releasing Persons shall be deemed to waive any and all provisions, rights and benefits

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conferred by any law of any state or territory of the United States, or principle of common law,

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which is similar, comparable or equivalent to California Civil Code Section 1542. The Releasing

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Persons acknowledge that they may discover facts in addition to or different from those that they

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now know or believe to be true with respect to the subject matter of this Settlement, but that it is

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their intention to fully, finally, and forever settle and release any and all claims released hereby,

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whether known or unknown, suspected or unsuspected, which now exist or heretofore existed or

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may hereafter exist and without regard to the subsequent discovery or existence of such additional

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or different facts.

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10.

Plaintiffs’ Counsel are hereby awarded attorneys’ fees in the amount of $250,000,

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inclusive of expenses, which amount the Court finds to be fair and reasonable and which shall be

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paid to Plaintiffs’ Counsel in accordance with the terms of the Stipulation. Plaintiffs’ Counsel’s

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lodestar through the date of the settlement, February 20, 2013, is $238,848.25. The requested
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ORDER AND FINAL JUDGMENT
CASE NO. 12-CV-03937-LHK

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attorneys’ fees of $250,000 represent a multiplier of approximately 1.04. However, the lodestar
only includes the hours billed up to the date of the settlement on February 20, 2013. Plaintiffs’
Counsel did additional work after February 20, 2013, including work on preliminary approval and
final approval of the settlement. If Plaintiffs’ Counsel included their time after February 20, 2013,
in their lodestar, Plaintiffs’ Counsel’s actual total lodestar is even greater, and thus the multiplier is
even less than 1.04.
11.

Plaintiffs and the members of the Class, and any of their respective representatives,

trustees, successors, heirs and assigns, are hereby individually and severally permanently barred
and enjoined from instituting, commencing, prosecuting, participating in or continuing any action
or other proceeding in any court or tribunal of this or any other jurisdiction, either directly,
representatively, derivatively or in any other capacity, against any of the Released Persons, based
upon, arising out of, or in any way related to or for the purpose of enforcing any Released Claim, all
of which Released Claims are hereby declared to be compromised, settled, released, dismissed with
prejudice and extinguished by virtue of the proceedings in this Action and this Order and Final
Judgment.
12.

The effectiveness of the provisions of this Order and Final Judgment and the

obligations of the Plaintiffs and Defendants under the Settlement shall not be conditioned upon or
subject to the resolution of any appeal from this Order and Final Judgment that relates solely to the
issue of Plaintiffs’ counsel’s application for an award of attorneys’ fees and expenses.
13.

Without affecting the finality of this Order and Final Judgment, jurisdiction is

hereby retained by this Court for the purpose of protecting and implementing the Stipulation and
the terms of this Order and Final Judgment, including the resolution of any disputes that may arise
with respect to the effectuation of any of the provisions of the Stipulation, and for the entry of such
further orders as may be necessary or appropriate in administering and implementing the terms and
provisions of the Settlement and this Order and Final Judgment.
14.

The Clerk shall close the file.

IT IS SO ORDERED.

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ORDER AND FINAL JUDGMENT
CASE NO. 12-CV-03937-LHK

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Dated: January 28, 2014

__________________________________________
Hon. Lucy H. Koh
United States District Judge

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ORDER AND FINAL JUDGMENT
CASE NO. 12-CV-03937-LHK