In re Herald, Primeo and Thema Funds Securities Litigation

Filing 231

FILING ERROR - DEFICIENT DOCKET ENTRY - (SEE DOCUMENT #234) - MOTION to Approve of Partial Settlement. Document filed by Neville Seymour Davis. (Attachments: #1 Exhibit A-1, #2 Exhibit A-2, #3 Exhibit A-3, #4 Exhibit A-4, #5 Exhibit B, #6 Exhibit C, #7 Exhibit D, #8 Exhibit E, #9 Exhibit F-1)(Chang, Albert) Modified on 6/29/2011 (lb).

EXHIBIT B
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ECF Case
IN RE HERALD, PRIMEO, AND THEMA
FUNDS SECURITIES LITIGATION

Case No. 09 Civ. 0289 (RMB)

This Document Relates to:
Case No. 09 Civ. 2558 (RMB)
NEVILLE SEYMOUR DAVIS,
Plaintiff,
vs.
ALBERTO BENBASSAT, STÉPHANE
BENBASSAT, GENEVALOR, BENBASSAT &
CIE, GERALD J.P. BRADY, JOHN
HOLLIWELL, SONJA KOHN, DANIEL
MORRISSEY, PETER SCHEITHAUER, DAVID
T. SMITH, WERNER TRIPOLT, BANK MEDICI
AG, UNICREDIT SPA, HSBC INSTITUTIONAL
TRUST SERVICES (IRELAND) LTD., HSBC
SECURITIES SERVICES (IRELAND) LTD.,
HSBC BANK USA, N.A., HSBC HOLDINGS
PLC, PRICEWATERHOUSECOOPERS
INTERNATIONAL LTD.,
PRICEWATERHOUSECOOPERS (DUBLIN),
PRICEWATERHOUSECOOPERS LLP,
PRICEWATERHOUSECOOPERS BERMUDA,
THEMA ASSET MANAGEMENT LIMITED,
THEMA INTERNATIONAL FUND PLC, BA
WORLDWIDE FUND MANAGEMENT
LIMITED, PETER MADOFF, ANDREW
MADOFF, THE ESTATE OF MARK MADOFF,
WILLIAM FRY, JP MORGAN CHASE & CO.,
and THE BANK OF NEW YORK MELLON,
Defendants.

[Proposed] Preliminary
Approval Order for Notice
and Hearing on Settlement
of Class Action

[PROPOSED] PRELIMINARY APPROVAL ORDER
FOR NOTICE AND HEARING ON SETTLEMENT OF CLASS ACTION
WHEREAS, consolidated class actions are pending before the Court in In re
Herald, Primeo, and Thema Funds Securities Litigation, Case No. 09 Civ. 0289, which includes,
among others, the matter entitled Davis v. Benbassat et al., Case No. 09 Civ. 2558 (the
“Action”);
WHEREAS, the court-appointed lead plaintiff in the Action, Neville Seymour
Davis (the “Lead Plaintiff”), on behalf of himself and all others similarly situated, and
defendants HSBC Securities Services (Ireland), HSBC Institutional Trust Services (Ireland),
HSBC Holdings plc, and HSBC Bank USA, N.A. (the “Settling Defendants”) have entered into a
Stipulation and Agreement of Partial Settlement dated on June 7, 2011(the “Stipulation”), as
amended;
WHEREAS, the Stipulation, together with the exhibits annexed thereto, sets forth
the terms of the proposed settlement (the “Settlement”) of the claims that were or could have
been alleged in the complaint and amended complaints filed in the Action (the “Complaints”);
WHEREAS, the Settlement agreed to by the Lead Plaintiff and the Settling
Defendants (collectively, the “Settling Parties”) contemplates the dismissal of the Action as
regards the Settling Defendants on the merits and with prejudice;
WHEREAS, the Settling Parties having moved, pursuant to Rule 23 and Rule
23.1 of the Federal Rules of Civil Procedure for an order preliminarily approving the Settlement
as sufficiently fair, reasonable and adequate to warrant directing notice of the proposed
Settlement to members of the Settlement Class (as defined below) and providing for a hearing to
determine with finality the fairness, reasonableness and adequacy of the Settlement (the
“Fairness Hearing”); and

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WHEREAS, this matter came before the Court at a hearing held ___________,
2011 and upon consent of the Settling Parties, after review and due consideration of the
Stipulation filed with the Court and the exhibits thereto,
IT IS HEREBY ORDERED, this ___ day of ___________, 2011, that:
1.

The Court, for purposes of this order (the “Preliminary Settlement

Approval Order” or “Order”), adopts all defined terms as set forth in the Stipulation.
2.

The Court hereby decrees that neither the Stipulation, nor this Order, nor

the fact of the Settlement, constitutes any admission or concession by the Settling Defendants of
any liability or wrongdoing whatsoever.
3.

The Court hereby preliminarily finds and concludes that the proposed

Settlement set forth in the Stipulation is sufficiently fair, reasonable, and adequate to warrant
notice to the Settlement Class and to schedule the Fairness Hearing.
4.

With respect to the Action, the Court preliminarily finds and concludes,

for purposes of the Settlement only, in satisfaction of the requirements of Rules 23(a) and (b)(3)
of the Federal Rules of Civil Procedure that: (a) the members of the Settlement Class are so
numerous that joinder of all members is impracticable; (b) there are questions of law and fact
common to the Settlement Class; (c) the claims of the Lead Plaintiff are typical of the claims of
the Settlement Class; (d) Lead Plaintiff will fairly and adequately represent the interests of the
Settlement Class; (e) questions of law or fact common the Settlement Class predominate over
individualized questions or issues; and (f) a class action is superior to other available methods for
the fair and efficient adjudication of the controversy.
5.

Accordingly, pursuant to Rule 23(a) and (b)(3) of the Federal Rules of

Civil Procedure, the Court hereby preliminarily certifies, for purposes of the Settlement only, a

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Settlement Class consisting of all persons and entities (other than persons or entities who timely
and validly request exclusion from the Settlement Class) who owned shares of Thema
International Fund plc, or its sub-fund Thema Fund (collectively, the “Fund”), either directly or
beneficially, on December 10, 2008, and suffered damages thereby due to the wrongful conduct
alleged in the Complaints.
6.

Excluded from the Settlement Class are Defendants and each of their

officers and directors, as well as their families and affiliates, provided however that any affiliate
of the Settling Defendants acting as agent or nominee for a beneficial owner of shares of the
Fund who is not a person or entity described above shall be deemed to be a Settlement Class
Member.
7.

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

purposes of the Settlement only, Lead Plaintiff Neville Seymour Davis is preliminarily certified
as class representative for the Settlement Class and the law firm of Chapin Fitzgerald Sullivan &
Bottini LLP is appointed as lead counsel to the Settlement Class (“Plaintiff’s Lead Counsel”).
8.

Plaintiff’s Lead Counsel is hereby authorized to act on behalf of the

Settlement Class with respect to all acts required by, or which may be undertaken pursuant to,
the Stipulation or such other acts that are reasonably necessary to consummate the proposed
Settlement set forth in the Stipulation.
9.

Pursuant to Rule 23(e) and Rule 23.1(c) of the Federal Rules of Civil

Procedure, the Fairness Hearing is hereby scheduled to be held before the Honorable Richard M.
Berman, United States District Judge, at the United States District Court, Southern District of
New York, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, Courtroom 21-

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B, New York, NY 10007 on ____________, 2011 at __:___ a.m./p.m., seventy-five (75) days
from entry of this Order, for the following purposes:
(a)

to make final determination whether the Settlement terms and

conditions provided in the Stipulation are fair, reasonable, and adequate, and should receive the
final approval of the Court.
(b)

to determine whether, upon satisfaction of all conditions to the

Settlement forth in the Stipulation, the final judgment (the “Judgment”) provided for under the
Stipulation should be entered, thereby (i) dismissing the Complaints on the merits as against the
Settling Defendants; (ii) extinguishing and releasing all Released Claims; (iii) effecting
assignment of all Assigned Claims; and (iv) barring claims of contribution and indemnification
against the Settling Defendants.
(c)

to make final determination, for purposes of the Settlement only,

whether the Settlement Class should be certified, the Lead Plaintiff should be appointed as class
representative, and Plaintiff’s Lead Counsel should be appointed as class counsel;
(d)

to determine whether the proposed Plan of Allocation for the Net

Settlement fund, in substantially the form annexed hereto as Exhibit A-2, is fair and reasonable
and should be approved by the Court;
(e)

to consider Lead Plaintiff’s application for an award for his time,

expense and efforts incurred in the prosecution of the Action, if such applications are made; and
(f)
10.

to rule upon such other matters as the Court may deem appropriate.

The Court reserves the right to adjourn or continue the Fairness Hearing,

including the consideration of the application for a service award to Lead Plaintiff, without

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further notice of any kind to Settlement Class Members other than by an announcement of the
adjournment at the scheduled time of the Fairness Hearing.
11.

The Court reserves the right to modify any date established herein without

further notice to Settlement Class Members.
12.

The Court reserves the right to approve the Settlement at or after the

Fairness Hearing with or without modifications to the Stipulation consented to by the Settling
Parties and without further notice to the Settlement Class.
13.

The Court further reserves the right to approve the Settlement and enter

the Judgment provided for under the Stipulation regardless of whether it has approved the
proposed Plan of Allocation or awarded attorneys’ fees and expenses. None of the Settling
Defendants, nor any other Released Party, shall have any responsibility whatsoever for the Plan
of Allocation, for any application for attorneys’ fees and expenses submitted by Plaintiff’s Lead
Counsel nor for any application for an award submitted by Lead Plaintiff for his time, expense
and efforts incurred in the prosecution of the Action, and such matters will be considered
separate from the fairness, reasonableness, and adequacy of the Settlement.
14.

The Settling Parties having submitted for the Court’s approval a proposed

long form Notice of Pendency and Partial Settlement of Class Action (the “Notice”) and a short
form Publication Notice of Partial Settlement (the “Publication Notice,” and collectively with the
Notice, the “Settlement Notices”), the Court, upon review and due deliberation, finds and
concludes that the form and content of the Settlement Notices, and the methods set forth herein
of notifying the Settlement Class of the Settlement and its terms and conditions, meet the
requirements of Rule 23 of the Federal Rules of Civil Procedure, due process, and any other

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applicable law, constitute the best notice practicable under the circumstances, and shall constitute
due and sufficient notice to all Persons entitled thereto.
15.

Accordingly, the Court approves the Notice, in substantially the form

annexed hereto as Exhibit A-1, as well as the Publication Notice, in substantially the form
annexed hereto as Exhibit A-3.
16.

The Court appoints Gilardi & Co. as “Settlement Administrator” to

supervise and administer the Notice procedures, as well as to supervise and administer the
receipt and processing of claims and the disbursement of the Net Settlement Fund.
17.

The Settlement Administrator or HSSI shall cause the Notice to be mailed

by first class mail, postage prepaid, not later than fifteen (15) calendar days after entry of this
Order by the Court to all members of the Settlement Class who can be identified with reasonable
effort.
18.

To assist in dissemination of the Notice, the Settling Parties shall use

reasonable best efforts to facilitate the provision to the Settlement Administrator of the name and
last known address of each Settlement Class Member who is a shareholder registered on the
books of the Fund in a searchable database or other format agreed to by the Settling Parties for
the purpose of mailing the Notice to such registered shareholders. Alternatively, HSSI may mail
the Notice to registered shareholders and provide confirmation of the mailing to the Settlement
Administrator without providing the names and last known addresses of such registered
shareholders. In such event, HSSI shall (a) use best efforts, in compliance with EU data
protection legislation, to disclose such names and last known addresses on a confidential basis to
the Settlement Administrator for the purposes of administering the Settlement or (b) assist the

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Settlement Administrator in determining whether persons or entities submitting Proofs of
Claims, objections, or requests for exclusions are entitled to do so.
19.

The Settlement Administrator or HSSI shall use reasonable best efforts to

give notice to banks, brokerage firms, and other persons or entities that purchased or hold shares
in the Fund as nominee for beneficial owners by mailing the Notice to such nominee purchasers.
Within seven (7) days calendar days of their receipt of the Notice, such nominees are directed
either to (a) request additional copies of the Notice to send to any beneficial owners on whose
behalf they purchased or hold shares, and mail such copies within seven (7) calendar days of
receipt by first class mail, or to (b) provide the Settlement Administrator with lists of the names
and addresses of such beneficial owners. The Settlement Administrator is ordered to send the
Notice by first class mail promptly to any beneficial owners identified in this manner.
Additional copies of the Notice shall be made available to any nominee or owner of record
requesting copies for the purpose of distribution to beneficial owners, and such nominees or
owners of record may be reimbursed for their reasonable expenses incurred providing the Notice
to their beneficial owners, after receipt by the Settlement Administrator of appropriate
documentation.
20.

The Settlement Administrator shall also publish the Publication Notice

weekly for two weeks in two financial publications of general world-wide circulation and in at
least one paper of general national circulation in each of Ireland, the United Kingdom, Italy,
Switzerland, France, Austria, Germany, Russia, Israel, Mexico, Argentina and Brazil, with initial
publication made within fifteen (15) calendar days after entry of this Order by the Court. The
Settlement Administrator shall cause the Publication Notice to be translated into the common
languages of each country of general national publication.

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21.

The Settlement Administrator shall also post the Stipulation, Notice,

Publication Notice, Plan of Allocation, all motion papers in support of the Settlement, this order
of Preliminary Approval and all further orders of this Court on a website to be maintained by the
Settlement Administrator.
22.

Plaintiff’s Lead Counsel shall make the Stipulation, Notice, Publication

Notice, Plan of Allocation, and all motion papers in support of the Settlement available for
inspection at their offices by Settlement Class Members during regular business hours.
23.

Plaintiff’s Lead Counsel is further directed to file with the Court within

seven (7) days of the Fairness Hearing an affidavit or declaration of the person or persons under
whose general direction the mailing of the Notice to Settlement Class Members, the publishing
of the Publication Notice, and the posting of the Settlement papers to the Settlement website
were made, proving that such mailing, publication and posting were made in accordance with
this Order.
24.

No later than ten (10) days after the filing of the Settlement with the

Court, the Settling Defendants shall have provided notice of the proposed Settlement to
appropriate Federal and State officials as required by the Class Action Fairness Act of 2005, 28
U.S.C. § 1715. The Settling Defendants are directed to file with the Court no later than seven (7)
days before the Fairness Hearing an affidavit or declaration showing timely compliance with the
notice requirements of the Class Action Fairness Act.
25.

Any Settlement Class Member who is a beneficial owner of shares in the

Fund or a legal representative acting on behalf of a beneficial owner (such as an executor,
administrator, guardian, conservator, trustee or other similar fiduciary) and wishes to participate
in the Net Settlement Fund must sign and return a fully completed Proof of Claim, Release and

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Assignment Form (“Proof of Claim”) in accordance with the instructions contained therein and
in the Notice. The Proof of Claim form shall be substantially in the form attached to the Notice
as Exhibit A-4. Registered shareholders may not submit a Proof of Claim unless they are
beneficial owners or the legal representative of a beneficial owner. Registered shareholders who
acted only in a nominee or similar capacity may not submit a Proof of Claim but should take care
that those for whom they acted are afforded an opportunity to do so.
26.

All Proofs of Claim must disclose all of the information required therein,

including all requested documentation, and be submitted by first class mail to the address
indicated in the Notice and the Publication Notice no later than ninety (90) days after the initial
mailing of the Notice. Such deadline may be further extended by Court order. If a Settlement
Class Member chooses to return his, her, or its Proof of Claim in a manner other than by first
class mail (including electronic submission), then the Proof of Claim must be actually received
by the Settlement Administrator no later than ninety (90) days after the initial mailing of the
Notice or such other date as may be set by the Court. As part of the Proof of Claim, each Class
Member shall submit to the jurisdiction of the Court with respect to the claim submitted and
releases and assignments granted, and shall (subject to the effectuation of the Settlement as
reflected in the Stipulation) agree and enter into the releases and assignments provided for in the
Stipulation. Unless otherwise ordered by the Court, any Settlement Class Member who does not
sign and return a fully completed and valid Proof of Claim within the time prescribed shall
forever be barred from sharing in the distribution of the Net Settlement Fund, but shall
nonetheless be bound by the Judgment and Orders, and the releases and assignments therein,
unless such persons or entities request exclusion from the Settlement Class in a timely and
proper manner, as provided hereinafter.

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27.

Settlement Class Members shall be bound by all orders, determinations

and judgments in the Action. Any beneficial owner of shares or a legal representative acting on
behalf of a beneficial owner (such as an executor, administrator, guardian, conservator, trustee or
other similar fiduciary) may, upon request, be excluded from the Settlement Class per the
procedures set forth herein and in the Notice. The request for exclusion must be submitted by
first class mail to the Settlement Administrator, postmarked no later than twenty-one (21) days
before the Fairness Hearing to the address designated in the Notice and Publication Notice for
such exclusions. Registered shareholders may not submit requests for exclusion unless they are
beneficial owners or the legal representative of a beneficial owner. Registered shareholders who
acted only in a nominee or similar capacity may not submit requests for exclusion but should
take care that those for whom they acted are afforded an opportunity to submit such a request.
28.

To be valid, a request for exclusion shall clearly indicate the name,

address and telephone number of the beneficial owner seeking exclusion and that the beneficial
owner requests exclusion from the Settlement Class. If submitted by a legal representative for a
beneficial owner, the request shall also state the capacity of such legal representative and affirm
that such representative has authority to submit the request for exclusion and that no other
request has been submitted by the beneficial owner or on the beneficial owner’s behalf. Persons
or entities requesting exclusion must in their request for exclusion affirm the following: (a) the
aggregate amount invested per share class; (b) the aggregate amount of any redemptions per
share class; (c) the number of shares held in each class as of December 10, 2008, and as of the
present date; (d) the purported net asset value of the shares presently held, as reported in the last
account statement dated November 28, 2008; and (e) the name of any nominee or agent through
which the shares were held.

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29.

In order not to inhibit the submitting of Proofs of Claims or requests for

exclusion, all documents and data submitted in connection therewith that reveal the identity or
contact information or any direct or beneficial owners of shares of the Fund is hereby designated
as “Confidential Protected Information.” Such Confidential Protected Information shall be
maintained in confidence by the Settling Parties and the Settlement Administrator, who shall use
the same degree of care and exercise the same reasonable efforts to protect the Confidential
Protected Information as such parties use and exercise to protect their own similar confidential or
proprietary data. Absent further order of this Court based on a showing of necessity,
Confidential Protected Information shall be revealed by the Settlement Administrator only to
counsel for the Settling Parties or filed under seal by the Settling Parties to effectuate the terms
and requirements of the Settlement.
30.

A request for exclusion shall not be effective unless it provides all of the

information described above and in the Notice and is made within the time stated above, or the
exclusion is otherwise accepted by the Court. Any Member of the Settlement Class may submit
a written revocation of a request for exclusion to Settlement Administrator, provided that it is
received no later than seven (7) calendar days before the Fairness Hearing.
31.

Any Settlement Class Member who is excluded from the Settlement Class

shall not be entitled to participate in the Net Settlement Fund, as described in the Stipulation and
Notice, and may not object to the Settlement or appear at the Fairness Hearing.
32.

Within five (5) business days after the deadline for exclusion, the

Settlement Administrator shall provide the Settling Defendants with a report that, at minimum,
will identify all persons purporting to exclude themselves from the Class and will attach the
requests for exclusion submitted by each. Within five (5) business days after the deadline for

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Proofs of Claim, the Settlement Administrator shall provide the Settling Defendants with a report
that, at a minimum, will identify all persons who have purported to submit a Proof of Claim and
will attach the Proof of Claim submitted by each.
33.

Any Member of the Settlement Class who does not request exclusion may

object to the fairness, reasonableness, or adequacy of the Settlement, the Plan of Allocation, any
requests for awards of attorneys’ fees, reimbursement of expenses, or a service award for Lead
Plaintiff by filing a written objection no later than twenty-one (21) days before the Fairness
Hearing. An objector must file with the Court a statement of his, her, or its objection(s) that: (a)
clearly indicates the objector’s name, mailing address, telephone number, and e-mail address; (b)
states that the objector is objecting to the fairness, reasonableness, or adequacy of the Settlement,
the Plan of Allocation, any requests for awards of attorneys’ fees, reimbursement of expenses, or
a service award to Lead Plaintiff; and (c) specifies the ground(s), if any, for each such objection
made, including any legal support and/or evidence (see below) the objector wishes to bring to the
Court’s attention or introduce in support of such objection.
34.

Objectors are further directed to provide documentation evidencing: (a)

the aggregate amount invested per share class; (b) the aggregate amount of any redemptions per
share class; (c) the number of shares held in each class as of December 10, 2008, and as of the
present date; (d) the purported net asset value of the shares presently held, as reported in the last
account statement dated November 28, 2008; and (e) the name of any nominee or agent through
which the shares were held.
35.

The objector must mail the objection(s) and any supporting

papers/documentation to:
Clerk of the Court
United States District Court

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for the Southern District of New York
500 Pearl Street
New York, New York 10007
and deliver or send by first class mail copies of all such papers to the following counsel for the
Settling Parties:
CHAPIN FITZGERALD SULLIVAN &
BOTTINI LLP
Francis A. Bottini, Jr.
Albert Y. Chang
550 West C Street, Suite 2000
San Diego, CA 92101

MURRAY, FRANK & SAILER LLP
Brian P. Murray
275 Madison Avenue, Suite 801
New York, NY 10016
Plaintiff’s Counsel

Plaintiff’s Lead Counsel
ROBBINS GELLER RUDMAN & DOWD
LLP
Darren J. Robbins
James I. Jaconette
655 West Broadway, Suite 1900
San Diego, CA 92101

CLEARY GOTTLIEB STEEN &
HAMILTON LLP
Evan A. Davis
David E. Brodsky
One Liberty Plaza
New York, NY 10006

Plaintiff’s Counsel

Settling Defendants’ Counsel

36.

Any Settlement Class Member who does not object in the manner

prescribed above shall be deemed to have waived such objection and shall be forever foreclosed
from making any objection to the fairness, adequacy or reasonableness of the proposed
Settlement, as well as the final Judgment to be entered approving the Settlement and all Orders,
releases, and assignments therein, or from otherwise being heard concerning these subjects in
this or any other proceeding, except for good cause shown. Objections raised at the Settlement
Hearing will be limited to those previously submitted in writing.
37.

Any objector who files and serves a timely written objection in accordance

with the instructions above may also appear at the Fairness Hearing, either in person or through
counsel retained at the objector’s expense. Objectors or their attorneys intending to appear at the
Fairness Hearing must effect service of a notice of intention to appear, setting forth, among other
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things, the name, mailing address, telephone number, and e-mail address of the objector (and, if
applicable, the name, mailing address, telephone number, and e-mail address of the objector’s
attorney) on Plaintiff’s Lead Counsel and Settling Defendants’ counsel (at the addresses set out
above). Moreover, objectors who intend to present evidence at the Fairness Hearing must
include in their written objections the identity of any witnesses they may call to testify and
exhibits they intend to introduce into evidence at the Fairness Hearing. Finally, the objector
must serve counsel identified above and file the notice of intention to appear with the Court no
later than twenty-one (21) days before the Fairness Hearing. Any objector who does not timely
file and serve a notice of intention to appear in accordance with this paragraph shall not be
permitted to appear at the Fairness Hearing, except for good cause shown.
38.

Settlement Class Members do not need to appear at the Fairness Hearing

or take any other action to indicate their approval of the Settlement, the Plan of Allocation, or
any requests for attorneys’ fees, reimbursement of expenses, or a service award for Lead
Plaintiff.
39.

The passage of title and ownership of the Settlement Amount to the

Escrow Agent in accordance with the terms of the Stipulation is approved. No person or entity
who is not a Settlement Class Member or Plaintiffs’ Counsel shall have any right to any portion
of, or distribution from, the Settlement Amount unless otherwise ordered by the Court or
otherwise provided in the Stipulation.
40.

The contents of the Gross Settlement Fund held by the Escrow Agent shall

be deemed and considered to be in custodia legis of the Court, and shall remain subject to the
jurisdiction of the Court, until such time as the contents of those funds shall be distributed
pursuant to the Stipulation and/or further order(s) of the Court.

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41.

As provided in the Stipulation, Plaintiff’s Lead Counsel may pay the

Settlement Administrator the reasonable fees and costs associated with giving notice to the Class
and incurred in the review of claims and administration of the Settlement (“Administrative
Expenses”) out of the Gross Settlement Fund without further order of the Court.
42.

As provided in the Stipulation, Lead Plaintiff’s Counsel may set aside a

Reserve Amount from the Gross Settlement Fund in the amount of $10 million to be kept in a
segregated account maintained by Plaintiff’s Lead Counsel in order to fund expenses to be
incurred as a result of the litigation of claims and causes of action against the Non-Settling
Defendants. No funds shall be paid out the Reserve Amount prior to final approval of the
Settlement and entry of the Settlement Approval Order
43.

Plaintiff’s Lead Counsel or its agents are authorized and directed to

prepare any tax returns and any other tax reporting for or in respect of the Gross Settlement
Fund, pay from the Gross Settlement Fund any Taxes owed with respect to the Gross Settlement
Fund, and to otherwise perform all obligations with respect to Taxes and any reporting or filings
in respect thereof as contemplated by the Stipulation, without further order of the Court.
44.

In the event the Stipulation is terminated or becomes or is declared

invalid or unenforceable for any reason, or is ineffective in accordance with the provisions of
¶9.1 of the Stipulation, then within ten (10) business days after written notice is sent by
Plaintiff’s Lead Counsel or counsel for the Settling Defendants to all parties to the respective
Settlement, the balance of any cash deposited by the Settling Defendants into the Escrow
Account established pursuant to the Stipulation shall be refunded to the Settling Defendants,
including interest accrued, less any Taxes due and payable with respect to such income, and any
Administrative Expenses and notice expenses actually paid or incurred, and less up to $1 million

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of the Reserve Amount actually incurred or expended after entry of the Settlement Approval
Order. In such event, the Settling Parties shall be deemed to have reverted nunc pro tunc to their
respective status as of the date and time immediately before the execution of the Stipulation and
they shall proceed in all respects as if the Stipulation, this Order, and any related orders had not
been executed and without prejudice in any way from the negotiation, fact or terms of the
Settlement.
45.

All papers in support of the Settlement, the Plan of Allocation, the request

for a service award for Lead Plaintiff to be made at the Fairness Hearing shall be served and filed
with the Court no later than forty-five (45) days before the Fairness Hearing. Reply papers in
further support of the Settlement, the Plan of Allocation and the request for a service award for
Lead Plaintiff, if any, or in response to objections shall be served and filed no later than seven (7)
calendar days before the Fairness Hearing. Service of all papers shall be made by overnight
mail, hand delivery, or email.
46.

The Court retains exclusive jurisdiction over the Action to consider all

further matters arising out of or connected with the Settlement for a period of six years.
47.

Pending final determination as to whether the Settlement as set forth in the

Stipulation should be approved, no Settlement Class Member shall commence, prosecute, pursue
or litigate any Released Claim against any Released Party, whether directly, representatively or
in any other capacity, and regardless of whether or not any such Settlement Class Member has
appeared in the Action.
Dated: ___________, 2011

UNITED STATES DISTRICT JUDGE

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