Epstein v. World Acceptance Corporation et al
Filing
194
AMENDED ORDER granting 189 MOTION for Preliminary Approval of Class Action Settlement as set out filed by Operating Engineers Construction Industry and Miscellaneous Pension Fund Signed by Honorable Mary Geiger Lewis on 8/29/2017. (abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
EDNA SELAN EPSTEIN, Individually and on )
Behalf of All Others Similarly Situated,
)
)
Plaintiff,
)
)
vs.
)
)
WORLD ACCEPTANCE CORPORATION, )
et al.,
)
)
Defendants.
)
)
Civil Action No. 6:14-cv-01606-MGL
CLASS ACTION
AMENDED ORDER PRELIMINARILY
APPROVING SETTLEMENT AND
PROVIDING FOR NOTICE
WHEREAS, a securities class action is pending in this Court entitled Epstein v. World
Acceptance Corporation, et al., No. 6:14-cv-01606-MGL (the “Litigation”);
WHEREAS, on August 24, 2017, the parties to the Litigation, Lead Plaintiff Operating
Engineers Construction Industry and Miscellaneous Pension Fund, on behalf of itself and the other
Members of the Settlement Class (defined below), and defendants World Acceptance Corporation
(“World Acceptance”), A. Alexander McLean, III, John L. Calmes, Jr., Kelly M. Malson and Mark
C. Roland (together, “Defendants,” and, collectively with Lead Plaintiff, the “Settling Parties”)
entered into the Stipulation of Settlement (the “Stipulation”), which is subject to review under Rule
23 of the Federal Rules of Civil Procedure and which, together with the Exhibits thereto, sets forth
the terms and conditions for the proposed settlement of the claims alleged in any of the complaints
filed in this Litigation on the merits and with prejudice;
WHEREAS, Lead Plaintiff has made an application, pursuant to Rule 23 of the Federal
Rules of Civil Procedure, for an order preliminarily approving the Settlement in accordance with
the Stipulation, certifying the Settlement Class for purposes of the Settlement only, and allowing
notice to Members of the Settlement Class as more fully described herein;
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WHEREAS, the parties to the Stipulation having consented to the entry of this Order;
WHEREAS, the Court having read and considered (a) Lead Plaintiff’s motion for
preliminary approval of the Settlement, and the papers filed and arguments made in connection
therewith; and (b) the Stipulation and the accompanying Exhibits attached thereto;
WHEREAS, unless otherwise specified all capitalized terms used, but not otherwise
defined, herein have the same meanings as set forth in the Stipulation; 1
NOW THEREFORE, IT IS HEREBY ORDERED, this 28th day of August, 2017, that:
1.
The Court hereby preliminarily approves the Stipulation and the Settlement set
forth therein as being fair, reasonable and adequate to Settlement Class Members (defined in ¶2
below), subject to further consideration at the Settlement Hearing described in ¶5 below.
2.
Pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure, the
Court preliminarily certifies, for purposes of settlement only, a Settlement Class consisting of all
Persons who purchased or otherwise acquired World Acceptance common stock between January
30, 2013 and August 10, 2015, inclusive. Excluded from the Settlement Class are: World
Acceptance; the affiliates and subsidiaries of World Acceptance; the Individual Defendants;
members of the Immediate Family of each of the Individual Defendants; the Officers and directors
of World Acceptance during the Class Period; the heirs, successors, and assigns of any excluded
person or entity; and any entity in which any excluded person has or had a controlling interest.
Also excluded from the Settlement Class are those Settlement Class Members who exclude
themselves by submitting a timely and valid request for exclusion in accordance with the
requirements set forth in the Notice (defined in ¶8 below).
1
The Exhibits attached to the Stipulation filed with the Court are incorporated herein as
though set forth in this Order.
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3.
The Court finds, for the purposes of the Settlement only, that the prerequisites for
a class action under Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure have been
satisfied in that: (a) the number of Settlement Class Members is 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 it seeks to
represent; (d) Lead Plaintiff and Lead Counsel have and will fairly and adequately represent the
interests of the Settlement Class; (e) the questions of law and fact common to the Members of the
Settlement Class predominate over any questions affecting only individual Settlement Class
Members; and (f) a class action is superior to other available methods for the fair and efficient
adjudication of the controversy.
4.
The Court finds and concludes that pursuant to Rule 23 of the Federal Rules of
Civil Procedure, and for the purposes of the Settlement only, Lead Plaintiff is an adequate class
representative and certifies Lead Plaintiff as the class representative for the Settlement Class. The
Court also appoints Lead Counsel as class counsel for the Settlement Class, pursuant to Rule 23(g)
of the Federal Rules of Civil Procedure.
5.
A hearing (the “Settlement Hearing”) pursuant to Rule 23(e) of the Federal Rules
of Civil Procedure is hereby scheduled to be held before the United States District Court for the
District of South Carolina, Greenville, Division, 300 East Washington Street, Greenville, South
Carolina 29601, on December 18, 2017, at 11:00 a.m. ET for the following purposes:
(a)
to finally determine whether this Litigation satisfies the applicable
prerequisites for class action treatment under Rules 23(a) and 23(b)(3) of the Federal Rules of
Civil Procedure;
(b)
to determine whether the proposed Settlement is fair, reasonable and
adequate to Settlement Class Members, and should be approved by the Court;
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(c)
to determine whether the Judgment as provided under the Stipulation should
be entered, dismissing the Litigation on the merits and with prejudice, and to determine whether
the release by the Settlement Class of the Released Claims, as set forth in the Stipulation, should
be provided to the Released Persons;
(d)
to determine whether the release by the Released Persons of the Released
Defendants’ Claims, as set forth in the Stipulation, should be provided;
(e)
to determine whether the proposed Plan of Allocation of the proceeds of the
Settlement is fair and reasonable and should be approved by the Court;
(f)
to consider Lead Counsel’s application for an award of attorneys’ fees and
expenses, including Lead Plaintiff’s expenses; and
(g)
to rule upon such other matters as the Court may deem appropriate.
Notice of the Settlement and the Settlement Hearing shall be given to the Members of the
Settlement Class as set forth in ¶¶11 and 14 of this Order.
6.
The Court may adjourn the Settlement Hearing without further notice to the
Settlement Class and reserves the right to approve the Settlement, including, if appropriate, with
any such modifications as may be agreed to by the parties without further notice to the Settlement
Class. The Court further reserves the right to enter its Judgment approving the Settlement and
dismissing the Litigation on the merits and with prejudice regardless of whether it has approved
the Plan of Allocation or awarded attorneys’ fees and expenses.
7.
Defendants shall no later than ten (10) calendar days following the filing of the
Stipulation with the Court serve upon the appropriate State official of each State in which a
Settlement Class Member resides and the Attorney General of the United States a notice of the
proposed Settlement in compliance with the requirements of the Class Action Fairness Act of 2005,
28 U.S.C. §1715 et seq. (“CAFA”). Defendants are solely responsible for the costs of the CAFA
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notice and administering the CAFA notice. At least fourteen (14) calendar days before the
Settlement Hearing, Defendants shall cause to be served on Lead Counsel and filed with the Court
proof, by affidavit or declaration, regarding compliance with CAFA §1715(b).
8.
The Court approves the form, substance and requirements of: the Notice of
Proposed Settlement of Class Action (the “Notice”); the Proof of Claim and Release form (the
“Proof of Claim”); and the Summary Notice (the “Summary Notice”), annexed to the Stipulation
as Exhibits A-1, A-2 and A-3, respectively, and finds that the form, content, and mailing and
distribution of the Notice and publishing of the Summary Notice, substantially in the manner and
form set forth in ¶¶11 and 14 of this Order, (i) meet the requirements of Rule 23 of the Federal
Rules of Civil Procedure, the United States Constitution (including the Due Process Clause), the
Private Securities Litigation Reform Act of 1995, 15 U.S.C. §78u-4, et seq., as amended, and all
other applicable laws and rules; (ii) is the best notice practicable under the circumstances; (iii)
constitutes due and sufficient notice that is reasonably calculated, under the circumstances, to
apprise Settlement Class Members of the pendency of the Litigation, of the effect of the proposed
Settlement (including the releases to be provided thereunder), of Lead Counsel’s application for
an award of attorneys’ fees and expenses, including Lead Plaintiff’s expenses, of their right to
exclude themselves from the Settlement Class, and of their right to appear at the Settlement
Hearing; and (iv) constitutes due, adequate, and sufficient notice to all persons and entities entitled
to receive notice of the proposed Settlement. The date and time of the Settlement Hearing shall
be included in the Notice and Summary Notice before they are mailed and published, respectively.
9.
The Court approves the appointment of Epiq Systems, Inc. as the Claims
Administrator to supervise and administer the notice procedure in connection with the proposed
Settlement as well as the processing of Proofs of Claim as more fully set forth below.
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10.
Within five (5) business days of the date of entry of this Order, World Acceptance
shall provide or cause World Acceptance’s transfer agent to provide to the Claims Administrator
transfer records in electronic searchable form, such as Excel, containing the names and addresses
of Persons who purchased or otherwise acquired World Acceptance common stock during the
Class Period.
11.
Within twenty-one (21) calendar days of the entry of this Order (the “Notice Date”),
the Claims Administrator shall cause the Notice and the Proof of Claim, substantially in the forms
annexed to the Stipulation as Exhibits A-1 and A-2, to be mailed by First-Class Mail, postage
prepaid, to all potential Settlement Class Members who can be identified with reasonable effort.
The Claims Administrator shall use reasonable efforts to give notice to nominee purchasers such
as brokerage firms and other persons or entities who purchased or otherwise acquired World
Acceptance common stock during the Class Period as record owners but not as beneficial owners.
Such nominee purchasers are directed, within seven (7) business days of their receipt of the Notice,
to either forward copies of the Notice and Proof of Claim to their beneficial owners or to provide
the Claims Administrator with lists of the names and addresses of the beneficial owners, and the
Claims Administrator is ordered to send the Notice and Proof of Claim promptly to such identified
beneficial owners. Nominee purchasers who elect to send the Notice and Proof of Claim to their
beneficial owners shall send a statement to the Claims Administrator confirming that the mailing
was made as directed. Additional copies of the Notice shall be made available to any record holder
requesting such for the purpose of distribution to beneficial owners, and such record holders shall
be reimbursed from the Settlement Fund, upon receipt by the Claims Administrator of proper
documentation, for the reasonable expense of sending the Notice and Proof of Claim to beneficial
owners. Lead Counsel shall, at least fifteen (15) calendar days prior to the Settlement Hearing,
file with the Court proof, by affidavit or declaration, of mailing of the Notice and Proof of Claim.
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12.
The Escrow Agent or its agents are authorized and directed to prepare any tax
returns and any other tax reporting form required to be filed on behalf of or in respect of the
Settlement Fund, to cause any Taxes due and owing to be paid from the 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.
13.
Lead Counsel shall submit its papers in support of final approval of the Settlement,
the Plan of Allocation, and application for attorneys’ fees and expenses, including Lead Plaintiff’s
expenses, by no later than forty-five (45) calendar days prior to the Settlement Hearing. All reply
papers in support of such motions shall be filed and served by no later than fifteen (15) calendar
days of the Settlement Hearing.
14.
The Claims Administrator shall cause the Summary Notice to be published once in
the national edition of The Wall Street Journal and once over the Business Wire within seven (7)
calendar days of the Notice Date. Lead Counsel shall, at least fifteen (15) calendar days prior to
the Settlement Hearing, file with the Court proof, by affidavit or declaration, of the publication of
the Summary Notice.
15.
In order to be entitled to participate in the Net Settlement Fund, in the event the
Settlement is effected in accordance with the terms and conditions set forth in the Stipulation, each
Settlement Class Member shall take the following actions and be subject to the following
conditions:
(a)
A properly executed Proof of Claim, substantially in the form attached to
the Stipulation as Exhibit A-2, must be submitted to the Claims Administrator, online at
www.WorldAcceptanceSecuritiesSettlement.com no later than December 26, 2017, or at the Post
Office Box indicated in the Notice, postmarked no later than December 26, 2017. Such deadline
may be further extended by Court order. Any Proof of Claim submitted in any other manner shall
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be deemed to have been submitted when it was actually received at the address designated in the
Notice. Lead Counsel may, at its discretion, direct the Claims Administrator to accept late claims
if they will not materially delay distribution of the Net Settlement Fund, but will not incur any
liability for declining to do so.
(b)
The Proof of Claim submitted by each Settlement Class Member must
satisfy the following conditions: (i) it must be properly completed, signed and submitted in a timely
manner in accordance with the provisions of the preceding subparagraph; (ii) it must be
accompanied by adequate supporting documentation for the transactions reported therein, in the
form of broker confirmation slips, broker account statements, an authorized statement from the
broker containing the transactional information found in a broker confirmation slip or such other
documentation as is deemed adequate by the Claims Administrator; (iii) if the person executing
the Proof of Claim is acting in a representative capacity, a certification of his current authority to
act on behalf of the Settlement Class Member must be included in the Proof of Claim to the
satisfaction of the Claims Administrator; and (iv) it must be complete and contain no material
deletions or modifications of any of the printed matter contained therein and must be signed under
penalty of perjury.
(c)
By submitting a Proof of Claim, a Person shall be deemed to have submitted
to the jurisdiction of this Court solely with respect to the claim submitted and the subject matter
of the Settlement and shall (subject to effectuation of the Settlement) release all Released Claims
as against the Released Persons provided in the Stipulation.
16.
Any Member of the Settlement Class who does not submit a Proof of Claim in the
manner stated in this Order or whose Proof of Claim is not otherwise approved by the Court shall
be deemed to have waived his, her or its right to share in the Net Settlement Fund and shall forever
be barred from sharing in the Net Settlement Fund. In all other respects, however, any such
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Member of the Settlement Class shall be subject to and bound by all of the terms of the Stipulation
and the Settlement and all proceedings, determinations, orders, and judgments in the Litigation
relating thereto, including, without limitations, the Judgment and the releases provided for therein,
whether favorable or unfavorable to the Settlement Class and will be barred from commencing,
maintaining, or prosecuting any of the Released Claims against the Released Persons unless such
Member of the Settlement Class has submitted a request to be excluded from the Settlement Class
in the manner required by this Order. Notwithstanding the foregoing, late Proofs of Claim may be
accepted for processing as set forth in ¶15 above.
17.
Settlement Class Members shall be bound by all determinations and judgments in
the Litigation, whether favorable or unfavorable, unless such persons request exclusion from the
Settlement Class in a timely and proper manner, as hereinafter provided. A putative Settlement
Class Member wishing to make such request shall mail the request to the Claims Administrator by
First-Class Mail postmarked no later than October 6, 2017, to the address designated in the Notice.
Such request for exclusion shall clearly indicate the name, address and telephone number of the
Person seeking exclusion, that the sender requests to be excluded from the Settlement Class and
must be signed by such person. Such persons requesting exclusion are also directed to state: the
date(s), price(s) and number(s) of shares of World Acceptance common stock they purchased,
acquired and sold during the Class Period. The request for exclusion shall not be effective unless
it provides all the required information and is made within the time stated above, or the exclusion
is otherwise accepted by the Court in a manner and with timing not inconsistent with the right of
Defendants to terminate the Settlement pursuant to the Stipulation. Putative Settlement Class
Members requesting exclusion from the Settlement Class shall not be entitled to receive any
payment out of the Net Settlement Fund as described in the Stipulation and Notice. The Claims
Administrator is authorized to request from any Person requesting exclusion documentation
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sufficient to prove his, her, or its purchases, acquisitions and/or sales of World Acceptance
common stock during the Class Period. Copies of all requests for exclusion shall be provided to
Defendants’ Counsel, as expeditiously as possible, but in no event later than ten (10) business days
before the Settlement Hearing.
18.
All Settlement Class Members shall be bound by all determinations and judgments
in the Litigation concerning the Settlement, including, but not limited to, the releases provided for
therein, whether favorable or unfavorable to the Settlement Class.
19.
Any Settlement Class Member that does not request exclusion from the Settlement
Class may file objections to the Settlement, the Plan of Allocation, and/or the application by Lead
Counsel for an award of attorneys’ fees and expenses, including Lead Plaintiff’s expenses. Any
such objections and any supporting papers shall be filed with the Court on or before October 6,
2017, and also delivered by hand or First-Class Mail to Ellen Gusikoff Stewart, Robbins Geller
Rudman & Dowd LLP, 655 West Broadway, Suite 1900, San Diego, CA 92101; and B. Warren
Pope, King & Spalding LLP, 1180 Peachtree Street, N.E., Atlanta, GA 30309, by that same date.
Any such objection must: (a) clearly indicate the objector’s name, mailing address, daytime
telephone number and e-mail address; (b) state that the objector is objecting to the proposed
Settlement, Plan of Allocation, and/or fee and litigation expense application in Epstein v. World
Acceptance Corporation, et al., No. 6:14-cv-01606-MGL; (c) specify the reason(s), if any, for the
objection, including any legal support for such objection; (d) state the number of shares of World
Acceptance common stock owned as of the beginning of trading on January 30, 2013 (the first day
of the Class Period); (e) list the date(s), price(s) and number(s) of shares of World Acceptance
common stock purchased, acquired and sold during the Class Period; and (f) provide written
documentation (whether from the objector’s bank, broker or otherwise) of such trading. In order
to be considered, an objection also must be signed by the Settlement Class Member making the
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objection. Attendance at the Settlement Hearing is not necessary. However, any persons wishing
to be heard orally, either individually or through counsel of his, her, or its own choice, in opposition
to the approval of the Settlement, the Plan of Allocation and/or the request by Lead Counsel for
attorneys’ fees and expenses, are required to indicate in their written objection their intention to
appear at the Settlement Hearing and to include in their written objection the identity of any
witnesses they may call to testify and copies of any exhibits they intend to introduce into evidence
at the Settlement Hearing. Settlement Class Members do not need to appear at the hearing or take
any other action to indicate their approval. Lead Counsel and Defendants’ Counsel shall promptly
furnish each other with copies of any and all objections that come into their possession.
20.
Any Settlement Class Member who does not object to the Settlement and/or the
Plan of Allocation, and any Settlement Class Member who does not object to Lead Counsel’s
application for an award of attorneys’ fees and expenses in the manner prescribed herein and in
the Notice shall be deemed to have waived such objection and his, her, or its right to object to the
Settlement, this Order, the Judgment, the Plan of Allocation, and Lead Counsel’s application for
an award of attorneys’ fees and expenses, shall be deemed a Settlement Class Member and shall
forever be barred and foreclosed from making any objection to the fairness, adequacy or
reasonableness of the proposed Settlement, this Order, the Final Judgment, the Plan of Allocation
and/or the application by Lead Counsel for an award of attorneys’ fees and expenses, and from
otherwise being heard concerning the Settlement, this Order, the Judgment, the Plan of Allocation,
or Lead Counsel’s application for an award of attorneys’ fees and expenses in this or any other
proceeding.
21.
Pending final determination of whether the Settlement should be approved, the
Lead Plaintiff, all Settlement Class Members, and each of them, and anyone who acts or purports
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to act on their behalf, shall not institute, commence or prosecute any action that asserts Released
Claims against any Released Person.
22.
Any Settlement Class Member may enter an appearance in the Litigation, at their
own expense, individually or through counsel of his/her/its own choice. If he/she/it does not enter
an appearance, he/she/it will be represented by Lead Counsel.
23.
All proceedings in the Litigation are stayed until further order of this Court, except
as may be necessary to implement the Settlement or comply with the terms of the Stipulation.
Pending final determination of whether the Settlement should be approved, neither the Lead
Plaintiff nor any Settlement Class Member, either directly, representatively or in any other capacity
shall commence or prosecute against any of the Released Persons any action or proceeding in any
court or tribunal asserting any of the Released Claims.
24.
The passage of title and ownership of the Settlement Fund to the Escrow Agent in
accordance with the terms and obligations of the Stipulation is approved. No person who is not a
Settlement Class Member or Lead Plaintiff’s Counsel shall have any right to any portion of, or in
the distribution of, the Settlement Fund unless otherwise ordered by the Court or otherwise
provided in the Stipulation.
25.
The contents of the Settlement Fund held by the Escrow Agent shall be deemed and
considered to be in custodia legis, and shall remain subject to the jurisdiction of the Court until
such time as such funds shall be distributed pursuant to this Order, the Stipulation, the Plan of
Allocation and/or further orders of the Court.
26.
All reasonable costs incurred in identifying Settlement Class Members and
notifying them of the Settlement as well as in administering the Settlement shall be paid as set
forth in the Stipulation.
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27.
If (a) the Settlement is terminated by Defendants pursuant to ¶8.3 of the Stipulation;
or (b) any specified condition to the Settlement set forth in the Stipulation is not satisfied and Lead
Counsel or Defendants elect to terminate the Settlement as provided in the Stipulation, then, in any
such event, the terms of ¶¶8.6 and 8.7 of the Stipulation shall apply, and this Order certifying the
Settlement Class and the class representative for purposes of the Settlement shall be null and void,
of no further force or effect, without prejudice to any party, and may not be introduced as evidence
or referred to in any actions or proceedings by any person or entity, and each party shall be restored
to his, her or its respective position in this Litigation as it existed prior to June 7, 2017.
28.
Neither the Settlement, Term Sheet, the Stipulation (whether or not consummated),
including the Exhibits thereto and the Plan of Allocation contained therein (or any other plan of
allocation that may be approved by the Court), the negotiations leading to the execution of the
Term Sheet, the Stipulation, and the Settlement, nor any proceedings taken pursuant to or in
connection with the Term Sheet, the Stipulation, and/or approval of the Settlement (including any
arguments proffered in connection therewith): (a) shall be offered or received against any
Defendant as evidence of or construed as or deemed to be evidence of any presumption,
concession, or admission by any Defendant of the truth of any allegations by Lead Plaintiff or any
Member of the Settlement Class or the validity of any claim that has been or could have been
asserted in the Litigation, or the deficiency of any defense that has been or could have been asserted
in the Litigation or in any other litigation, or of any liability, negligence, fault, or wrongdoing of
any kind of any of the Defendants or in any way referred to for any other reason as against any of
the Defendants, in any civil, criminal, or administrative action or proceeding, other than such
proceedings as may be necessary to effectuate the provisions of the Stipulation; (b) shall be offered
or received against any Defendant as evidence of a presumption, concession, admission of any
fault, misrepresentations, or omission with respect to any statement or written document approved
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or made by any Defendant, or against Lead Plaintiff or any Member of the Settlement Class as
evidence of any infirmity in the claims of Lead Plaintiff and the Settlement Class; (c) shall be
offered or received against any Defendant as evidence of a presumption, concession, or admission
of any liability, negligence, fault, or wrongdoing, or in any way referred to for any other reason as
against any of the parties to the Stipulation, in any other civil, criminal, or administrative action or
proceeding; provided, however, that if the Stipulation is approved by the Court, Defendants and
their Related Parties may refer to it to effectuate the release granted them hereunder; (d) shall be
offered or construed as evidence that a class should or should not be certified in the Litigation if
the Settlement is not consummated; or (e) shall be construed against Defendants, Lead Plaintiff,
or the Settlement Class as an admission or concession that the consideration to be given hereunder
represents the amount which could be or would have been recovered after trial; provided however,
that if the Stipulation is approved by the Court, the Settling Parties and the Released Persons and
their respective counsel may refer to it to effectuate the protections from liability granted
thereunder or otherwise to enforce the terms of the Settlement.
29.
The Court retains jurisdiction over the Litigation to consider all further matters
arising out of or connected with the Settlement.
DATED: August 29, 2017
s/Mary Geiger Lewis____________________
THE HONORABLE MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE
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