Braun v. GT Solar International, Inc., et al

Filing 139

///APPROVED ORDER AND FINAL JUDGMENT re: 132 Motion for Final Approval of Settlement and Plan of Allocation. Signed by District Judge Joseph N. Laplante.(cmp)

U.S. DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

SEP 2 7 2011

FILED

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
IRVING S. BRAUN, individually and on
behalf of all others similarly situated,
Plaintiff,

CIVIL ACTION NO. 1:08-CV-00312-JL

vs.

(MAIN CASE)

GT SOLAR INTERNATIONAL, INC., et al.,

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Defendants.

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[PRBBOSEDl ORDER AND FINAL JUDGMENT
^T

On the ^ /

day of J&gj.

, 2011, a hearing having been held before

this Court to determine: (a) whether the above-captioned federal securities class action
(the "Action") satisfies the applicable prerequisites for class action treatment under Rule
23 of the Federal Rules of Civil Procedure; (b) whether the terms of the proposed
settlement ("Settlement") described in the Stipulation of Settlement dated May 4, 2011
(the "Stipulation"), are fair, reasonable and adequate, and should be approved by the
Court; (c) whether the proposed allocation of the Settlement Fund (the "Plan of
Allocation") is fair and reasonable and should be approved by the Court; (d) whether the
Order and Final Judgment as provided under the Stipulation should be entered,
dismissing the Action on the merits and with prejudice, and to determine whether the
release of the Released Claims as against the Released Persons, as set forth in the
Stipulation, should be ordered; (e) whether the Fee and Expense Application should be
approved; and (f) such other matters as the Court might deem appropriate; and
The Court having considered all matters submitted to it at the hearing held on
-XJfrpv' <s J

, 2011 and otherwise; and

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It appearing that a Notice of Proposed Settlement of Class Action, Motion for
Attorneys' Fees and Reimbursement of Expenses and Settlement Fairness Hearing
("Notice") substantially in the form approved by the Order for Notice and Hearing dated
May 13, 2011 was mailed to all persons and entities reasonably identifiable who
purchased the common stock that is the subject of the Action, except those persons and
entities excluded from the definition of the Class; and
It appearing that a Summary Notice of Pendency and Proposed Settlement of
Class Action ("Summary Notice") substantially in the form approved by the Court in the
Order for Notice and Hearing was published pursuant to the specifications of the Court,
and that a website was used for further availability of the Notice to the Class;
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED THAT:
1.

The Court has jurisdiction over the subject matter of the Action,

Plaintiffs, all Class Members and Defendants.
2.

Unless otherwise defined herein, all capitalized terms used herein shall

have the same meanings as set forth and defined in the Stipulation.
3.

The Court finds that the prerequisites for a class action under Rule 23(a)

and (b)(3) of the Federal Rules of Civil Procedure have been satisfied in that: (a) the
number of Class Members is so numerous that joinder of all members thereof is
impracticable; (b) there are questions of law and fact common to the Class; (c) the claims
of the Lead Plaintiff are typical of the claims of the Class it seeks to represent; (d) Lead
Plaintiff fairly and adequately represents the interests of the Class; (e) the questions of
law and fact common to the members of the Class predominate over any questions

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affecting only individual members of the Class; and (f) a class action is superior to other
available methods for the fair and efficient adjudication of the controversy.
4.

The Court hereby finds that the Notice distributed to the Class provided

the best notice practicable under the circumstances. The Notice provided due and
adequate notice of these proceedings and the matters set forth herein, including the
Settlement and Plan of Allocation of the Settlement Fund, to all persons and entities
entitled to such notice, and the Notice fully satisfied the requirements of Rule 23 of the
Federal Rules of Civil Procedure, Section 27 of the Securities Act of 1933, 15 U.S.C. §
77z-1(a)(7), as amended by the Private Securities Litigation Reform Act of 1995, due
process, and any other applicable law. A full opportunity has been offered to the Class
Members to object to the proposed Settlement and to participate in the hearing thereon.
Thus, it is hereby determined that all Class Members who did not timely elect to exclude
themselves by written communication are bound by this Order and Final Judgment.
5.

Pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure

and for purposes of the Settlement only, the Court hereby certifies the Action as a class
action on behalf of all persons or entities who purchased or otherwise acquired the
common stock of GT Solar from the effective date of the Company's Registration
Statement, through and including July 24, 2008, or who purchased or otherwise acquired
the common stock of GT Solar pursuant or traceable to the Registration Statement, and
who were damaged thereby. Excluded from the Class are Defendants and their affiliates;
members of their immediate families and their legal representatives, heirs, successors or
assigns; any entity in which Defendants have or had a controlling interest; and the current
and former officers and directors of the Company. Also excluded from the Class are any

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putative Class Members who have excluded themselves by filing a request for exclusion
in accordance with the requirements set forth in the Notice; these persons and entities are
listed on Exhibit A attached hereto.
6.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for

purposes of the Settlement only, Lead Plaintiff is certified as the class representative and
Lead Plaintiffs selection of Cohen Milstein Sellers & Toll PLLC as counsel for the Class
is approved.
7.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the

Settlement is approved as fair, reasonable and adequate, and in the best interests of the
Class. Lead Plaintiff and Defendants are directed to consummate the Settlement in
accordance with the terms and provisions of the Stipulation.
8.

The Federal Action is hereby dismissed with prejudice and without costs.

9.

Upon the Effective Date of this Settlement, Plaintiffs and members of the

Class on behalf of themselves and each of their past or present subsidiaries, affiliates,
parents, successors and predecessors, estates, heirs, trustees, executors, administrators,
and their respective officers, directors, shareholders, employees, members, partners,
assigns, agents, legal representatives, spouses and any persons they represent, shall, with
respect to each and every Released Claim, release and forever discharge, and shall
forever be enjoined from prosecuting, any Released Claims against any of the Released
Persons.
(a)

"Released Claims" means any and all claims, rights or causes of action or

liabilities whatsoever, direct, derivative, or otherwise, contingent or absolute, matured or
unmatured, whether based on federal, state, local, statutory or common law or any other

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law, rule or regulation, including both known and Unknown Claims (as defined below),
that Plaintiffs or any other member of the Class (a) asserted in the operative Complaint or
any other complaint in either the Federal or State Action, (b) could have asserted in any
forum, that arise out of, are based upon, or relate in any way, directly or indirectly, to the
allegations, transactions, facts, matters or occurrences, representations or omissions
involved, set forth, or referred to in the operative Complaint or in any other complaint in
either the Federal or State Action; or (c) could have asserted in any forum, that in any
way relate to the purchase or acquisition of GT Solar common stock from the effective
date of the Company's Registration Statement, through and including July 24, 2008.
Released Claims does not include any present claims in the consolidated derivative
action, Fan v. GT Solar Int'l, Inc., et al. No. 09-C-030, pending in New Hampshire state
court, nor does it include any claims to enforce the Settlement.
(b)

"Released Persons" means each and all of Defendants and their Related

Parties. "Related Parties" means each of Defendants' past or present subsidiaries,
parents, affiliates, successors and predecessors, and their respective past or present
officers, directors, shareholders, partners, members, principals, agents, employees,
attorneys, insurers, spouses and any person, firm, trust, corporation, officer, director or
other individual or entity in which any Defendant has a controlling interest or which is
related to or affiliated with any of the Defendants, and the legal representatives, heirs,
successors in interest or assigns of the Defendants.
10.

Upon the Effective Date of this Settlement, each of the Defendants and

Related Parties, on behalf of themselves and each of their past or present subsidiaries,
affiliates, parents, successors and predecessors, estates, heirs, executors, administrators,

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and the respective officers, directors, shareholders, agents, legal representatives, spouses
and any persons they represent, shall, with respect to each and every Settled Defendants'
Claims, shall release and forever discharge each and every of the Settled Defendants'
Claims, and shall forever be enjoined from prosecuting the Settled Defendants' Claims.
11.

The Court finds that all Parties to the Action and their counsel have

complied with each requirement of Rule 11 of the Federal Rules of Civil Procedure as to
all proceedings herein.
12.

The Stipulation and all negotiations, statements, and proceedings in

connection with the Settlement shall not, in any event, be construed or deemed to be
evidence of an admission or concession on the part of Plaintiffs, the Defendants, any
member of the Class, or any other person or entity, of any liability or wrongdoing by
them, or any of them, and shall not be offered or received in evidence in any action or
proceeding (except an action to enforce the Stipulation and the Settlement contemplated
hereby), or be used in any way as an admission, concession, or evidence of any liability
or wrongdoing of any nature, and shall not be construed as, or deemed to be evidence of,
an admission or concession that Plaintiffs, any member of the Class, any present or
former stockholder of GT Solar, or any other person or entity, has or has not suffered any
damage, except that the Released Persons may file the Stipulation and/or this Order and
Final 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, release,
good faith settlement, judgment bar or reduction or any other theory of claim preclusion
or issue preclusion or similar defense or counterclaim.

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13.

The Plan of Allocation is approved as fair and reasonable, and Lead

Counsel and the Claims Administrator are directed to administer the Stipulation in
accordance with its terms and provisions.
14.

Lead Counsel, on behalf of itself and Plaintiffs' Counsel, are awarded

attorneys' fees of <y^&ii^

" ^ percent ( P a %) of the Settlement Amount, plus

interest at the same rate as earned by the Settlement Fund, which shall be paid out of the
Settlement Fund. This award of attorneys' fees is reasonable, and represents a reasonable
percentage of the Settlement Fund, in view of the applicable legal principles and the
particular facts and circumstances of this action. The award of attorneys' fees shall be
allocated among Plaintiffs' Counsel in a manner which, in the opinion and sole discretion
of Lead Counsel, fairly compensates Plaintiffs' Counsel for their respective contributions
to the prosecution of the action.
15.

Lead Counsel, on behalf of itself and Plaintiffs' counsel, are awarded

reimbursement of expenses in the aggregate amount of$

/ /Oj/G^'^O,

which

shall be paid out of the Settlement Fund. These expenses are fair, reasonable, and were
necessarily incurred in connection with the prosecution and settlement of this litigation.
16.

The Claims Administrator is awarded $ S (=> //%

' Q for fees and

expenses accrued through August 23, 2011, which shall be paid out of the Settlement
Fund.
17.

State Action Plaintiff Joyce T. Hamel, in recognition of her efforts on

behalf of the Class and as an "award of reasonable costs and expenses (including lost
wages) directly relating to the representation of the [Settlement Class]" as provided for in
15 U.S.C. § 78u-4(a)(4), is awarded $

3 ; C^

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\ ^0, which shall be paid out of the

Settlement Fund. This award is reasonable and represents a fair and reasonable amount
in view of the work performed, applicable legal principles, and benefit obtained for the
Class.
18.

The attorneys' fees, case contribution award, and expenses approved by

the Court in ^114-16 hereof shall be payable from the Settlement Fund to Lead Counsel,
on behalf of itself, Plaintiffs' Counsel, and Plaintiffs immediately upon entry of this
Order, notwithstanding the existence of any potential appeal or collateral attack on this
Order.
19.

Exclusive jurisdiction is hereby retained over the Parties and the Class

Members for all matters relating to the Action, including the administration,
interpretation, effectuation or enforcement of the Stipulation and this Order and Final
Judgment, and including any application for fees and expenses incurred in connection
with administering and distributing the settlement proceeds to the Class Members.
20.

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

extensions of time to carry out any of the provisions of the Stipulation.
21.

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

with the terms of the Stipulation, then this Judgment shall be rendered null and void to
the extent provided by and in accordance with the Stipulation and shall be vacated and, in
such event, all orders entered, including those certifying a settlement Class, and releases
delivered in connection herewith shall be null and void to the extent provided by and in
accordance with the Stipulation.

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22.

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

Judgment and immediate entry by the Clerk of the Court is directed pursuant to Rule
54(b) of the Federal Rules of Civil Procedure.
SIGNED this Jf

day of

crf^j-

2011.

te^a
THE HONORABLE JpfSEPH N. LAPLANTE
UNITED STATES DISTRICT JUDGE

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