Davis v. Central Vermont Public Service Corporation et al
Filing
91
OPINION AND ORDER re: Settlement Approval, Class Certification, and Attorneys' Fee Award and Final Judgment. Signed by Chief Judge Christina Reiss on 9/27/2012. (pac)
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UNITED STATES DISTRICT COURT
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FOR THE
2012 SEP 27 AM II: 05
DISTRICT OF VERMONT
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CLERK
BY _ _
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HOWARD DAVIS, On Behalf of Himself and All
Others Similarly Situated,
Plaintiff,
v.
CENTRAL VERMONT PUBLIC SERVICE
CORPORATION, WILLIAM R. SAYRE,
LA WRENCE J. REILLY, ROBERT L.
BARNETT, ROBERT G. CLARKE, JOHN M.
GOODRICH, ROBERT B. JOHNSTON,
ELISABETH B. ROBERT, JANICE L. SCITES,
WILLIAM J. STENGER, DOUGLAS J. WACEK,
GAZ METRO LIMITED PARTNERSHIP, and
DANAUS VERMONT CORP.,
Defendants.
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DEFUl Y CLERK
Case No.
5:11~cv~181
OPINION AND ORDER RE: SETTLEMENT APPROVAL, CLASS
CERTIFICATION, AND ATTORNEY'S FEE AWARD AND FINAL JUDGMENT
This matter came before the court on July 11,2012 for a hearing (the "Fairness
Hearing") to determine whether the terms and conditions of the Settlement Agreement,
dated November 28,2011 (the "Settlement Agreement") are fair, reasonable, and
adequate, whether a class should be certified as proposed, and whether a Final Order and
Judgment should be entered. Post-hearing, on July 23, 2012, Plaintiff filed
contemporaneous time records in support of his requested award of attorney's fees and
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expenses. The Central Vermont Public Service Corporation ("CVPS") Defendants filed
a response to Plaintiff's contemporaneous time records on August 9,2012.
CVPS, William R. Sayre, Lawrence J. Reilly, Robert L. Barnett, Robert G. Clarke, John M.
Goodrich, Robert B. Johnston, Elisabeth B. Robert, Janice L. Scites, William J. Stenger, and
Douglas J. Wacek comprise the CVPS Defendants.
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I.
Factual and Procedural Background.
This action arises out of the acquisition of CVPS by Gaz Metro Limited
Partnership ("Gaz Metro") through the Merger (the "Gaz Metro Merger") which was
consummated on June 27, 2010. On July 13,2011, one day after CVPS announced its
decision to enter into the Gaz Metro Merger, Plaintiff filed this putative class action suit,
alleging breach of fiduciary claims under Vermont law.
On August 1,2011, CVPS filed a preliminary proxy statement (the "Preliminary
Proxy Statement") with the U.S. Securities and Exchange Commission ("SEC"). The
following day, Plaintiff filed an Amended Complaint, alleging violations of Sections
14(a) and 20 of the Securities Exchange Commission Act of 1934. The thrust of
Plaintiffs' amended allegations was a claim that the Preliminary Proxy Statement was
materially misleading because it failed to disclose the underlying data upon which Lazard
Freres & Co. LLC ("Lazard"), CVPS' s financial advisor which analyzed the proposed
sale and acquisition price, based its analyses. Notably, Plaintiff did not and has not
alleged that any of Lazard's conclusions would have changed had the omitted
information been disclosed.
On August 29,2011, CVPS filed its Final Proxy Statement with the SEC and
disseminated it to CVPS shareholders (the "8/29 Proxy"). The 8/29 Proxy contained the
disclosures set forth in the Preliminary Proxy and certain additional disclosures, including
the unlevered free cash flow projections the disclosure of which, among other things,
Plaintiff had sought in the Amended Complaint.
Following the filing of Plaintiff's Amended Complaint, the parties entered into
settlement negotiations which included negotiating a protective order governing
discovery, Defendants' disclosure of additional documents to Plaintiff, including the
minutes of the meetings of the CVPS Board and presentations to the Board by Lazard and
CVPS management, and other discovery.
On September 1, 2011, Plaintiff moved for a preliminary injunction, seeking to
enjoin the scheduled September 29,2011 shareholder vote on the proposed Gaz Metro
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Merger. In response, on September 16, 2011, the CVPS Defendants moved to dismiss
the Amended Complaint for failure to state a claim. Shortly thereafter, the parties
reached an agreement in principle to settle this action and, at their joint request, the court
cancelled the scheduled hearing on Plaintiffs motion for a preliminary injunction.
On September 19,2011, pursuant to the parties' settlement, CVPS filed a
Supplemental Proxy Statement (the "Supplemental Proxy") which included additional
information relied upon by Lazard in determining that the proposed acquisition price for
CVPS shares was fair. In exchange for these disclosures, Plaintiff seeks to release his
own claims and those of all putative class members relating to the sale of CVPS and the
accompanying sales process, with the exception of class members' exercise of any
appraisal rights.
On September 29,2011,97.56% of the CVPS shares casting votes at the
shareholder meeting approved the Gaz Metro Merger. Thereafter, Plaintiffs counsel
conducted two half-day depositions as confirmatory discovery and the parties finalized
their settlement. On November 28, 2011, the parties jointly sought the court's approval
of their Settlement Agreement and further sought class certification. At a December 21,
2011 hearing, the court denied class certification without prejudice, noting that Plaintiff
had failed to demonstrate that the requirements of Fed. R. Civ. P. 23 had been satisfied.
The court also rejected the proposed notice to putative class members as insufficient
under Fed. R. Civ. P. 23(c)(2).
On March 2, 2012, Plaintiff submitted a revised request for preliminary approval
and a revised proposed notice to putative class members. On April 10, 2012, the court
issued its Preliminary Approval Order (Doc. 60), granting preliminary approval of the
Settlement Agreement and class certification, setting the Fairness Hearing for July 11,
2012, and directing the parties as to the form and manner of notice to class members.
The court stayed all proceedings in this matter pending the outcome of the Fairness
Hearing.
Prior to the Fairness Hearing, the court received six objections, three of which
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were duplicative and filed on behalf of "The Arbitrage Funds." (Docs. 80-82.) These
objections state the filer does "not agree to the Release of Claims," without further
elaboration. The remaining objections consist of an objection to the requested award of
attorney's fees, contending that the lawsuit was without merit and the practice of filing
such lawsuits should not be "rewarded" (Doc. 71) and an objection to Plaintiffs lawsuit,
contending the "lawsuit is without merit," "was baseless from the beginning" and "should
be dismissed with prejudice." (Doc. 72.)
At the court's Fairness Hearing, no person appeared to object to the approval of
the Settlement Agreement or to class certification. Counsel for the plaintiffs in a pending
parallel putative class action, IBEW Local 98 Pension Fund v. Central Vermont Public
Service Corp., Docket No. 5:11-cv-222 ("IBEWv. CVPS"), appeared at the Fairness
Hearing and made statements on the record but neither objected to the Settlement
Agreement, nor opposed any aspect of class certification.
II.
Conclusions of Law, Analysis, and Order.
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED AS FOLLOWS:
1. Incorporation of Settlement Agreement. This Final Order and Judgment
incorporates the Settlement Agreement filed in the above-captioned matter on November
28,2011. (Doc. 43-3.)
2. Notice to the Proposed Class. The mailing of the Notice of Pendency of
Class Action, Proposed Settlement of Class Action and Settlement Hearing (the "Notice")
took place in accordance with the court's Preliminary Approval Order. More than three
thousand record holders of CVPS shares received direct notice. Brokerage firms and
other financial institutions holding CVPS shares on behalf of the beneficial owners were
also separately notified; they requested and received an additional 8,587 copies of the
Notice. The Notice is hereby determined to be the best notice practicable under the
circumstances and in compliance with the Fed. R. Civ. P. 23, the requirements of due
process, and applicable law.
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3. Certification of a Settlement Class. Plaintiff asks the court to certify a
settlement class pursuant to Fed. R. Civ. P. 23 consisting of the following class action
members:
All record holders and beneficial owners of any share(s) of Central
Vermont Public Service Corporation ("CVPS") common stock ("Common
Stock"), who held any such share(s) at any time during the period
beginning on and including January 1,2011, through and including the date
of the Preliminary Approval Order, including any and all of their respective
successors-in-interest, successors, predecessors-in-interest, predecessors,
representatives, trustees, executors, administrators, estates, heirs, assigns
and 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-in-interest, predecessors, successors-in-interest,
successors, and assigns, but excluding the Defendants.
"Although Fed. R. Civ. P. 23 does not explicitly provide for certifying settlement-only
classes, the district court derives its authority to do so from Fed. R. Civ. P. 23(d), which
authorizes the court to 'issue orders that [] determine the course ofproceedings.'" Chin
v. RCN Corp., 2010 WL 1257586, at *2 (S.D.N.Y. Mar. 12,2010) (citation omitted).
The Second Circuit has recognized that "[t]emporary settlement classes have proved to be
quite useful in resolving major class action disputes." Weinberger v. Kendrick, 698 F.2d
61, 72 (2d Cir. 1982). "Before certification is proper for any purpose -- settlement,
litigation, or otherwise -- a court must ensure that the requirements of Rule 23(a) and (b)
have been met." Denney v. Deutsche Bank AG, 443 F.3d 253,270 (2d Cir. 2006).
The party seeking certification "bears the burden of establishing the existence of
all four Rule 23(a) requirements, often referred to as the criteria of 'numerosity,
commonality, typicality, and adequacy.'" Bourlas v. Davis Law Assocs., 237 F.R.D. 345,
350 (E.D.N.Y. 2006) (citations omitted); see also Fed. R. Civ. P. 23(a).
a. Numerosity.
In determining whether a class is so numerous that joinder of all class members is
impracticable, joinder is "generally presumed to be impracticable when a putative class
exceeds 40 members." Menkes v. Stolt-Nielsen, S.A., 270 F.R.D. 80, 90 (D. Conn. 2010)
(citing Marisol A. v. Giuliani, 126 F.3d 372,376 (2d Cir. 1997)). Here, the proposed
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settlement class consists of all record and beneficial owners of CVPS common stock
since January 1,2011 through the date of this Order. The Amended Complaint alleges
that, as of February 28,2011, over 13 million shares were outstanding. Joinder of each of
these shareholders will be difficult, inconvenient, and expensive, and will unduly
complicate and delay the resolution of this lawsuit. Joinder is thus impracticable and the
numerosity requirement has been satisfied.
b. Commonality.
Commonality requires the existence of questions of law or fact common to the
class. It is "not a demanding standard, as it 'is established so long as the plaintiffs can
identify some unifying thread among the [class] members' claims.'" Menkes, 270 F.R.D.
at 90 (quoting Haddock v. Nationwide Fin. Servs., Inc., 262 F.R.D. 97, 116 (D. Conn.
2009)). In other words, class members' "claims must depend upon a common contention
... of such a nature that it is capable of class-wide resolution -- which means that
determination of its truth or falsity will resolve an issue that is central to the validity of
each one of the claims in one stroke." Wal-MartStores, Inc. v. Dukes, 131 S. Ct. 2541,
2551 (2011).
Rule 23(b )(3) also requires that common questions of law and fact predominate
over individual questions. This "predominance" requirement is met "when there exists
generalized evidence which proves or disproves an element on a simultaneous, class-wide
basis, since such proof obviates the need to examine each class member's individual
position." In re Cardizem CD Antitrust Litig., 200 F.R.D. 297, 307 (E.D. Mich. 2001).
This case challenges the adequacy ofCVPS's disclosures to shareholders, whether
the members ofCVPS's Board of Directors breached their fiduciary duty to shareholders,
and whether the Gaz Metro Merger is fair for all CVPS shareholders. These claims raise
issues of fact and law common to all proposed class members. See 1 J. McLaughlin,
Class Actions: Law and Practice § 4.8 at 4-46 (3d ed. 2006) ("Courts generally have held
that cases alleging violations of the federal securities law based on material
misrepresentations or omissions in uniform publicly filed or disseminated documents,
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such as registration statements and prospectuses, SEC filings, and press releases, reach
the low threshold required for commonality."). Correspondingly, whether the Settlement
Agreement is fair, reasonable, and adequate is also an issue common to all members of
the proposed class. Accordingly, the court finds that the requirements of commonality
and predominance have been satisfied.
c. Typicality.
Rule 23(a)(3) requires Plaintiffs claims to be "typical" of the class. This
requirement is satisfied when "each class member's claim arises from the same course of
events and each class member makes similar legal arguments to prove the defendant's
liability." In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29,35 (2d Cir. 2009)
(citation and quotation marks omitted). Plaintiffs claims in this case meet the typicality
requirement because they arise out of the same course of events experienced by all
shareholders of CVPS common stock during the relevant time period. In other words, a
class member who sought to assert the same or similar claims to those alleged by Plaintiff
would need to make the same or similar legal arguments to establish Defendants'
liability. The requirement of typicality has thus been satisfied.
d. Adequacy.
To ensure adequacy, a court determines whether "(1) the class representative's
interests are not antagonistic to other class members and the class representative's
character assures a vigorous prosecution; and (2) the class representative's counsel
possesses the competence to undertake the litigation." In re Playmobil Antitrust Litig., 35
F. Supp. 2d 231,242 (E.D.N.Y. 1998) (citations omitted). This inquiry focuses on
"uncovering 'conflicts of interest between named parties and the class they seek to
represent.'" Flag, 574 F.3d at 35 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S.
591,625 (1997)). "Only a conflict that goes to the very subject matter of the litigation
will defeat a party's claim of representative status." Dziennik v. Sealift, Inc., 2007 WL
1580080, at *6 (E.D.N.Y. May 29,2007) (internal quotation marks and citation omitted).
To warrant denial of class certification, "it must be shown that any asserted 'conflict' is
so palpable as to outweigh the substantial interest of every class member in proceeding
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with the litigation." In re NASDAQ Market.;.Makers Antitrust Litig., 169 F.R.D. 493, 514
15 (S.D.N.Y. 1996).
Plaintiff Howard Davis, as the proposed class representative, shares the same
interests as the members of the proposed class and has vigorously pursued this litigation.
He did not acquire his CVPS common stock for purposes of initiating this lawsuit but has
been a CVPS shareholder since May 2007. He has not served as a class representative
previously. 2 He seeks no incentive award for his services as a class representative. There
are no apparent conflicts of interest between him and the proposed class. Plaintiff
Howard Davis is hereby appointed as the Class Representative.
The "role of settlement counsel is to assist the [cJourt in the process leading to the
approval of the settlement." In re Holocaust Victim Assets Litig., 2010 WL 3851697, at
*1 (E.D.N.Y. Sept. 24, 2010) (citation omitted). Courts will approve class counsel for
purposes of settlement if they "will fairly and adequately protect the interests of the
Settlement Class[ J." In re Currency Conversion Fee Antitrust Litig., 2006 WL 3253037,
at * 1 (S.D.N.Y. Nov. 8,2006).
In its Preliminary Approval Order, the court noted that the attorneys in IBEW v.
CVPS may seek to be appointed counsel at the Fairness Hearing and the court would
consider "which counsel is best able to represent the interests of the class pursuant to Fed.
R. Civ. P. 23(g)(2)." (Doc. 60 at 11). As previously noted, although at the Fairness
Hearing counsel for the plaintiffs in IBEW v. CVPS appeared and made statements on the
record, he did not interpose any objections to the Settlement Agreement or class
certification, and did not request to be appointed class counsel.
Plaintiffs proposed counsel, Juan E. Monteverde, Esq. and Brian Moon, Esq. of
Faruqi & Faruqi, LLP, New York, New York, engage in a nationwide practice of class
action litigation. They are familiar with the applicable securities law and have pursued
many similar lawsuits elsewhere. They have pursued this litigation competently,
At the Fairness Hearing, the court expressed a concern regarding "class representatives who do
this kind of thing as a business and they have been class representatives in numerous class action
suits and have acquired their interest in the corporation shortly before the business deal
occurred." (Tr. 7/11112 at 4.) Plaintiff Howard Davis does not share these characteristics.
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diligently, and expeditiously. The court thus finds that they are "qualified, experienced
and generally able to conduct the litigation." In re Joint E. &
s. Dist. Asbestos Litig., 78
F.3d 764, 778 (2d Cir. 1996) (citation omitted). Their local counsel, Mark E. Furlan,
Esq. and A. Jeffry Taylor, Esq., are attorneys who are known to the court and who are
familiar with Vermont law. Plaintiffs proposed counsel is hereby appointed class
counsel.
e. Rule 23(b).
In addition to satisfying the numerosity, commonality, typicality, and adequacy
requirements of Rule 23(a), Plaintiff must establish that a class action is appropriate
under Rule 23(b). Rule 23(b)(1) permits class certification if Rule 23(a) is satisfied and if
the prosecution of separate actions by or against individual members of the class would
create the risk of inconsistent or varying adjudications that would establish incompatible
standards of conduct for the Defendants or if individual adjudications would, as a
practical matter, govern the interests of members not parties to the individual
adjudications or would substantially impair or impede their ability to protect their
interests.
Here, were this action to proceed by separate lawsuits, the Defendants may be
subject to inconsistent burdens with respect to the disclosures they are required or not
required to make to CVPS shareholders. One court may find the disclosures sought by
Plaintiff material to the Gaz Metro Merger, another court may conclude that the
disclosures are unnecessary and would only needlessly complicate and confuse the
information provided to shareholders and upon which they could reasonably be expected
to rely. Materiality may thus be a fluid concept dependent upon the facts and
circumstances of the case and the issues presented. See Va. Bankshares, Inc. v.
Sandberg, 501 U.S. 1083, 1090 (1991) (A fact is material, "if there is a substantial
likelihood that a reasonable shareholder would consider it important in deciding how to
vote[.]"). Individual adjudications of class members' claims regarding the adequacy of
CVPS's disclosures and whether the individual defendants acted consistently with their
fiduciary obligations would not only make it difficult for the Defendants to determine
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how to conduct themselves, but would make it difficult for class members to protect their
own interests.
Because Plaintiff has satisfied the requirements of Fed. R. Civ. P. 23(a) and (b)(l),
the court hereby certifies the class as a non-opt out class for settlement purposes.
4. Approval of the Settlement Agreement. In deciding whether to approve the
Settlement Agreement, the court acknowledges that "there is an overriding public interest
in settling and quieting litigation, and this is particularly true in class actions." In re
Prudential Sec. Inc. Ltd. P'ships Litig., 163 F.R.D. 200, 209 (S.D.N.Y. 1995) (citations
omitted) see also 2 1. McLaughlin, Class Actions: Law and Practice § 6.3 at 6-9-10
("Courts have consistently noted that the public interest in favoring the settlement of
litigation is even stronger in the context of class action litigation, where one proceeding
can resolve many thousands or even millions of claims that might otherwise threaten to
swamp the judiciary."). Settlements generally advance the public interest because they
minimize the expense of litigation, avoid the expenditure ofjudicial resources, and ensure
injured parties' recoveries without the time, expense, and inconvenience of litigation.
The claims of a certified class may be settled "only with the court's approval."
Fed. R. Civ. P. 23(e). In deciding whether to approve a settlement, the court must
determine, after a hearing, whether it is "fair, reasonable and adequate," Fed. R. Civ. P.
23(e)(2), and is not the product of collusion. See D'Amato v. Deutsche Bank, 236 F.3d
78, 85 (2d Cir. 2001).
In approving a settlement of a class action, the court has a special duty to
safeguard the interests of absent class members who will be bound by the disposition.
See In re Agent Orange Product Liability Litig., 996 F.2d 1425, 1438 (2d Cir. 1993).
Several courts, including the Second Circuit, have characterized this duty as fiduciary in
nature. See Goldberger v. Integrated Res., Inc., 209 F.3d 43,51 (2d Cir. 2000) (tasking
the district court to act "as a fiduciary who must serve as a guardian of the rights of
absent class members[.]"); see also Reynolds v. Beneficial Nat. Bank, 288 F.3d 277,279
80 (7th Cir. 2002) ("We and other courts have gone so far as to term the district court in
the settlement phase of a class action suit a fiduciary of the class[.]"). The court must
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thus scrutinize the proposed settlement from the absent class members' perspective;
"[t]his analysis requires the court to consider both 'the settlement's terms and the
negotiating process leading to settlement.'" Authors Guild v. Google, Inc., 770 F. Supp.
2d 666,674 (S.D.N.Y. 2011) (quoting Wal-Mart Stores, Inc. v. Visa US.A. Inc., 396 F.3d
96, 116 (2d Cir. 2005)). The Second Circuit has identified nine factors to be considered
in making this determination:
(l)the complexity, expense and likely duration of the litigation; (2) the
reaction of the class to the settlement; (3) the stage of the proceedings and
the amount of discovery completed; (4) the risks of establishing liability;
(5) the risks of establishing damages; (6) the risks of maintaining the class
action through the trial; (7) the ability of the defendants to withstand a
greater judgment; (8) the range of reasonableness of the settlement fund in
light of the best possible recovery; (9) the range of reasonableness of the
settlement fund to a possible recovery in light of all the attendant risks of
litigation.
City ofDetro it v. Grinnell Corp., 495 F.2d 448,463 (2d Cir. 1974) (citations omitted)
(abrogated on other grounds by Goldberger); see also Teachers' Ret. Sys. ofLa. v.
A.CL.N, Ltd., 2004 WL 1087261, at *1 (S.D.N.Y. May 14,2004) ("A proposed class
action settlement enjoys a strong presumption that it is fair, reasonable, and adequate if
... it was the product of arm's length negotiations conducted by capable counsel
experienced in class action litigation ... , and ifit occurred after meaningful discovery.")
(citations omitted).
In this case, the Settlement Agreement was negotiated on an arms-length basis
between experienced and competent counsel after a thorough investigation of the
underlying facts and the applicable law. In exchange for their release of claims, the class
members have received additional disclosures relevant to the price they were to receive
and ultimately received for their CVPS shares. Plaintiff characterizes this as a benefit to
the class because it assured class members that the price they were receiving for their
shares was fair. The additional information disclosed included some of the information
relied upon by Lazard in evaluating the fairness of the acquisition price. Plaintiff
concedes that the market did not react to the supplemental disclosures (Tr. 7/11/12 at 29)
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but argues that "[t]he fact that we con finned that that was a fair price is still ...
conferring a benefit." Id. at 29-30.
Although the CVPS Defendants note that they share the objectors' concerns about
the "lack of merit of this litigation," (Doc. 84 at 6)3 and characterize Plaintiff's claims as
"extremely weak" (Doc. 84 at 7), they maintain that the Settlement Agreement remains
fair, reasonable, and adequate because through it they have been spared the unrecoverable
costs of further litigation and have been permitted to settle the litigation on tenns
acceptable to them. See Doc. 84 at 6-7 (citing Mirfasihi v. Fleet Mortg. Corp., 551 F.3d
682,686 (7th Cir. 2008) ("defendants can be trusted to make [nuisance] settlements only
if it is in their best interest to do so"».
The court agrees that a settlement that finally resolves pending litigation should
not be rejected merely because the claims brought have dubious merit especially when
class members are not required to make any monetary contribution towards the
settlement. Although the release class members provide by virtue of the Settlement
Agreement has value, in light of the overwhelming approval of the Gaz Metro Merger
and its subsequent consummation, it is questionable whether any class members would
independently pursue litigation arising out of a merger they have overwhelmingly
approved and shares they have cashed out. The Settlement Agreement thus represents a
reasonable compromise wherein a release related to the transaction in question is offered
in exchange for additional disclosures related to that same transaction.
The litigation, had it proceeded, would have been relatively complex and
expensive and would have required counsel experienced in securities law, corporate
governance, and Vennont statutory and common law. It would have presumably lasted at
least eight months which is the standard pre-trial period authorized by this court's Local
Rules. Although the Settlement Agreement was reached in the nascent stages of the
litigation, it was nonetheless preceded by the filing of a complaint and motion for a
At the Fairness Hearing, counsel stated "We do think this case is one that should be tossed out
at the pleadings stage and would never have a chance of success." (Tr. 7/11112 at 52). They
nonetheless noted that there was consideration sufficient to support a release. Id
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preliminary injunction as well as negotiation of a voluntary disclosure of information
necessary to determine the adequacy of proxy disclosures; discovery including
depositions and expert witness evaluation, and negotiation and preparation of a protective
order.
Because of the nature of the claims, a class action was clearly the most effective,
and the only efficient, means of pursuing the claims. If the case proceeded to trial,
because of the nature of the claims, class action certification would have likely remained
intact.
The Settlement Agreement also falls within the range of reasonableness when
compared to the best possible outcome. In light of the court's dismissal on two separate
occasions of similar federal securities claims in IBEW v. CVPS, the risks of establishing
liability and damages would have been considerable. A substantial monetary judgment in
favor of the class thus is and was unlikely. It was also unlikely that Plaintiff would be
able to obtain preliminary injunctive relief to halt either the shareholder vote or the
subsequent merger in light of the exacting burden of proof required for such relief. See
Fed. R. Civ. P. 65; see also Winter v. Natural Res. De! Council, Inc., 555 U.S. 7,24
(2008) ("A preliminary injunction is an extraordinary remedy never awarded as of
right."). Accordingly, this case was arguably resolved at the most advantageous time for
class members. Although the Defendants could clearly withstand a greater judgment,
given the relative merit of Plaintiffs claims, it is not likely that a greater judgment would
have been forthcoming. The Settlement Agreement thus falls within a range of
reasonableness that properly reflects the potential risks and benefits of continued
litigation. See Wal-Mart Stores, Inc., 396 F.3d at 119 ("[T]here is a range of
reasonableness with respect to the settlement -- a range which recognizes the
uncertainties of the law and fact in any particular case and the concomitant risks and
costs necessarily inherent in taking any litigation to completion[.]").
"It is well settled that 'the reaction of the class to the settlement is perhaps the most
significant factor to be weighed in considering its adequacy.'" In re Am. Bank Note
Holographies, Inc., 127 F. Supp. 2d 418,425 (S.D.N.Y. 2001) (quoting Sala v. Nat 1 R.R.
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Passenger Corp., 721 F. Supp. 80, 83 (E.D. Pa. 1989)); see also 2 J. McLaughlin, Class
Actions: Law and Practice § 6.9 at 6-43 ("Many courts have stated that the reaction of the
class should be accorded the greatest weight in the fairness review.").
In this case, only a small handful of objections were received, they were primarily
directed at the attorney's fees award and the merits of the lawsuit, and none were
presented at the Fairness Hearing itself. Had there been strong opposition to the
Settlement Agreement, in light of the publicity that attended the case, the number of
direct and indirect recipients of notice, and the detailed nature of the notice, such
opposition would almost certainly have been reflected in objections; it was not. See Wal
Mart Stores, Inc., 396 F.3d at 118 ("If only a small number of objections are received,
that fact can be viewed as indicative of the adequacy of the settlement.") (internal
quotation marks and citation omitted); In re Gen. Motors Corp. Pick-Up Truck Fuel Tank
Prods. Liab. Lltig., 55 F.3d 768,785,812 (3d Cir. 1995) (the number and vociferousness
of the objectors is a factor to consider in weighing reasonableness of proposed
settlement); In re Visa CheckiMastermoney Antitrust Litig., 297 F. Supp. 2d 503,511
(E.D.N.Y. 2003) ("[A] certain number of objections are to be expected in a class action
with an extensive notice campaign and a potentially large number of class members. If
only a small number of objections are received, that fact can be viewed as indicative of
the adequacy of the settlement") (citation omitted).
Based upon the foregoing considerations, the Settlement Agreement, except
insofar as it addresses attorney's fees which are discussed below, is "fair, reasonable and
adequate" and is approved on that basis. Fed. R. Civ. P. 23(e)(2).
5. Plaintiff's Expenses and Attorney's Fees Award. Plaintiff requests an award
of expenses in the amount of$8,519.81, which includes an expert witness fee of
$4,770.00. The request for an award of expenses is not contested, appears reasonable,
and is supported by adequate documentation. The court thus approves it as part of the fee
award in this matter. See 2 J. McLaughlin, Class Actions: Law and Practice § 6.24 at 6
110-111 ("If supported by appropriate documentation, class counsel also is entitled to
reimbursement ... for the reasonable expenses incurred in prosecuting the litigation.");
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In re Global Crossing Securities and ERISA Litig., 225 F.R.D. 436, 468 (S.D.N.Y. 2004)
(ruling that plaintiffs' request for reimbursement of filing fees, expert fees, service of
process, travel, legal research, and document production and review were "the type for
which 'the paying, arms' length market' reimburses attorneys").
Plaintiffs request for an attorney's fee award is not as easily resolved. Plaintiff
initially requested an attorney's fee and expense award of "up to $975,000.00" as noted
in the court's Preliminary Approval Order. See Doc. 60 at 4. Plaintiff has since reduced
his request to an attorney's fees and expense award of $600,000. Plaintiffs counsel's
contemporaneous time records reveal that Class Counsel expended "over 530 hours in
attorney and paralegal time with a resulting lodestar of [$]250,464.00." (Doc. 66 at 60.)
Plaintiff stresses that the time incurred by Class Counsel reflects only part of the time
spent litigating this action. (Tr. 7111/12 at 60-61.) He notes that "[c]ourts grant
multipliers for risky cases of this sort[,]" (Doc. 66 at 61), urges the court to find that "the
fee requested is also comparable to fee awards in other cases where a similar benefit was
obtained[,] (Doc. 66 at 62) (collecting cases), asks the court to approve a multiplier to
reflect both the contingent nature of the fee award and the quality of representation in the
award, and argues that lawsuits of this nature are favored by public policy because they
"protect[] shareholder rights in corporate change-of-control transactions[.]" (Doc. 66 at
66.)
The CVPS Defendants oppose Plaintiffs attorney's fee request and contend that
Plaintiff should receive no more than an award of fees actually incurred less certain fees
which it contends were not specifically incurred in conjunction with this litigation.
4
The CVPS Defendants have reviewed Plaintiffs time records and object to the inclusion of
work associated with two entries involving Attorney Brian Moon's time: (1) July 13,2011: 6.5
hours drafting demand letter pertaining to derivative litigation; and (2) July 21, 2011: 8.75 hours
also spent drafting a demand letter pertaining to derivative litigation. Because no derivative
litigation was filed, the CVPS Defendants assert that it would be "unreasonable to include and
consider the[] [derivative demand letter] expenditures of 15.25 hours for purposes of
ascertaining Plaintiffs Counsel's lodestar in this matter." (Doc. 89 at 2.)
4
15
Pursuant to the Settlement Agreement, any award of attorney's fees and expenses
shall not be paid by CVPS shareholders either directly or indirectly. The CVPS merger
on June 27, 2012 "was an all cash deal" (Tr. 7111112 at 9), class members did not retain
their CVPS shares, and thus there is no possibility that class members will bear the
burden of the attorney's fees award in the form of increased corporate insurance
premiums, diminished dividends, a lower value for their shares, or otherwise. Instead,
the Settlement Agreement provides:
The Parties acknowledge and agree that CVPS or its successor(s)-in
interest shall pay, or cause their respective insurers to pay on behalf of the
Individual Defendants and the Company, any fees and expenses awarded
by the Court to Plaintiff or Plaintiffs Counsel in connection with the Fee
Application within ten (10) business days after the later of (i) the Effective
Date, or (ii) the date that an order by the Court approving any award of fees
and expenses becomes final and non-appealable, whether by affirmance or
on exhaustion of any possible appeal or review, lapse of time, or otherwise.
(Doc. 43-3 at ~ 13).
Plaintiffs counsel rates vary from $580 to $725 per hour for partners; $425 to
$475 per hour for associates, and from $165 to $250 for paralegals. The CVPS
Defendants agree that the rates charged by Class Counsel are appropriate and customary
for securities litigation of this nature and reflect "national rates." (Tr. 7111112 at 66.)
While the court agrees that national rates may be appropriate, any determination of the
attorney's fees award in this case must reflect that Plaintiffs counsel's rates are not
customary for the vast maj ority of lawsuits filed in Vermont, and thus appear to represent
premium rates for specialized litigation. This, in tum, supports a conclusion that
Plaintiffs counsel's hourly rates reflect ample compensation for time expended.
The court also "cross-checks" the hours expended in conjunction with a "blended
rate" of partners and associates rates yielding an hourly rate of$551.25 for attorneys and
of $207.50 for paralegals. See 2 J. McLaughlin, Class Actions: Law and Practice § 6.23
at 6-109 ("When applying the lodestar cross-check [for reasonableness], courts insist on
application of a blended rate of partners and associates."); see also In re Rite Aid Corp.
Securities Litig., 396 F.3d 294,306 (3rd Cir. 2005) ("Failure to apply a blended rate ...
16
is inconsistent with the exercise of sound discretion and requires vacating and remanding
for further consideration."). Excluding the 15.25 contested hours, a blended rate yields a
total of $225,428.18 for actual hours incurred by attorneys and $22,113.28 for paralegals
for a total of $247,541.46. Based upon the court's cross-check, the court accepts
Plaintiffs counsel's fees as reflecting a reasonable hourly rate for this litigation. The
court next turns to the nature and amount of the attorney's fees award requested.
"Courts have used two distinct methods to determine what is a reasonable attorneys'
fee." Goldberger, 209 F.3d at 47. "The first is the lodestar, under which the district court
scrutinizes the fee petition to ascertain the number of hours reasonably billed to the class
and then multiplies that figure by an appropriate hourly rate." Id. "Once that initial
computation has been made, the district court may, in its discretion, increase the lodestar
by applying a multiplier based on 'other less objective factors,' such as the risk of the
litigation and the performance of the attorneys." Id. (citation omitted). "The second
method is simpler. The court sets some percentage of the recovery as a fee." Id.
"In determining what percentage to award, courts have looked to the same 'less
objective' factors that are used to determine the multiplier for the lodestar." Id. (citation
omitted). "The trend in the Second Circuit has been to express the attorneys' fees as a
percentage of the total settlement[.]" In re Merrill Lynch & Co., Inc. Research Reports
Sec. Litig., 2007 WL 4526593, at *13 (S.D.N.Y. Dec. 20, 2007). In determining the
proper percentage, the Second Circuit has identified six factors:
(1) the time and labor expended by counsel; (2) the magnitude
and complexities of the litigation; (3) the risk of the litigation[ ];
(4) the quality of representation; (5) the requested fee in relation
to the settlement; and (6) public policy considerations.
Goldberger, 209 F.3d at 50 (quoting In re Union Carbide Corp. Consumer Prods.
Business Sec. Litig., 724 F. Supp. 160, 163 (S.D.N.Y. 1989)).
In this case, the court has no reason to question the time and labor expended by
counsel as actually representing fees incurred in this lawsuit. Although not all the fees
incurred were arguably necessary to bring about a "disclosures-only" Settlement
17
Agreement which occurred at a very early stage of the litigation, in general, there appears
to be a reasonable causal connection between the fees incurred and the settlement reached
that supports a lodestar award. Because Plaintiff represents that the time incurred does
not reflect all of the time Plaintiff's counsel expended in this lawsuit, any concern
regarding the necessity of the fees incurred is counterbalanced by the fact that not all fees
incurred are retlected in the lodestar amount.
As the court previously noted, the lawsuit was reasonably complex and required
experienced counsel. Plaintiff's attorneys were competent to pursue the litigation and
pursued it vigorously. The litigation posed considerable risk because the claims were
weak and a substantial recovery was unlikely. As Plaintiff's counsel points out, they
accepted the case on a contingent fee basis and thus there also was a risk of non-payment
of fees. However, these are not the type of risks that are ordinarily "rewarded" by adding
a multiplier. See Goldberger, 209 F.3d at 54 (noting that in a case "that [is] risky simply
because it [is] of 'highly questionable merit,' "public policy considerations justifly] the
award of no contingency allowance."); see also 2 J. McLaughlin, Class Actions: Law and
Practice § 6.23 at 6-102 ("[W]hen evaluating the risk of nonpayment, courts will not
consider the contingent nature of the fee arrangement and instead will evaluate the merits
of the claims, the strength of the defenses, and the quality of defense counsel."). Rather,
the courts "reward" the bringing of risky but meritorious class action lawsuits when they
seek to vindicate important rights that would be lost or imperiled if class counsel were
not adequately compensated for their efforts. The court does not find those
circumstances present here.
Of greatest importance in this case, and presumably in others, is the relationship of
the fee request to the results achieved. See 2 J. McLaughlin, Class Actions: Law and
Practice § 6.23 at 6-100 ("Litigation being result-oriented, the settlement attained for the
class clearly is the predominant consideration [in awarding attorney's fees], with the time
expended relegated to minimal or no consideration."). In this case, no common fund was
created and thus it would be difficult to factor an award that reflected a percentage of the
recovery. Moreover, no party ascribes a reliable monetary value to the benefits achieved
18
by virtue of the Settlement Agreement, and the market did not reflect any reaction to the
Supplemental Proxy. Plaintiff nonetheless contends that class members benefitted
substantially by receiving additional disclosures that would allow them to verify Lazard's
conclusion that the acquisition price was fair. These benefits, however, appear relatively
limited in light of the absence of any proof that a significant number of CVPS
shareholders were concerned about the adequacy of the disclosures or had questioned the
fairness of the acquisition price. See In re Nat 'I City Corp. S'holders Litig., 2009 WL
2425389, at *6 (Del. Ch. July 31, 2009) (observing that "[n]o evidence exists that the
additional disclosures significantly affected the outcome of the shareholder vote. Indeed,
[the] shareholders overwhelming voted in favor of the merger."). As the CVPS
Defendants observed at the Fairness Hearing:
Look, consistent with our view that this is not a case that has great
merit I appreciate that [Plaintiffs counsel] is, you know, making a valiant
effort to say that what was done here was a home run. It isn't. And while I
don't disagree that in some sense incremental information that further
shows this is a good deal is always helpful. And in a sense defendants can't
complain about that. To call these things home runs is simply wrong.
(Tr. 7/11112 at 64-65.) The court thus finds that a fee in the amount of$600,000,
which the CVPS Defendants characterize as "patently unreasonable" (Doc. 75 at
10), does not bear a reasonable relationship to the results achieved. Instead, the
lodestar appears to more reasonably approximate the relatively minor benefit
received by the class. See McDaniel v. County o/Schenectady, 595 F.3d 411,421
(2d Cir. 2010) (characterizing a lodestar award as "a presumptively reasonable
fee.").
Finally, the court considers whether public policy favors a multiplier in this
case and concludes that it does not. Although the court has found the Settlement
Agreement is supported by adequate consideration, the sale of CVPS, the
acquisition price, and the sale process were not materially altered by Plaintiff
bringing this lawsuit. Plaintiff also fails to identify a single material
misrepresentation that was corrected through the Supplemental Proxy. While
19
Plaintiff is correct that, in some instances, lawsuits such as this one act as market
"watchdogs," this lawsuit did not serve that particular purpose. Instead, at best,
Plaintiff helped confirm that the CVPS's existing disclosures summarizing the
data and methodologies underpinning Lazard's analysis were accurate and the
acquisition price was fair. A lawsuit that served this same purpose in all mergers
and acquisitions would drive up the cost of doing business with little or no
countervailing benefit to shareholders. See Why American firms cannot do deals
without being sued, The Economist, June 2,2012 at 1 (noting that "[m]any
[lawsuits are] filed within hours of the deal's announcement; 65% within two
weeks" and estimating that in 2011 "a hefty 96% of acquisitions worth more than
$500m were attracting suits" with each deal experiencing a "hit by an average 6.2
lawsuits"). Public policy considerations therefore do not support the imposition of
a multiplier to reward Plaintiff for bringing this suit or to provide an incentive for
other suits of this nature. See Maywalt v. Parker & Parsley Petroleum Co., 864 F.
Supp. 1422, 1436 (S.D.N.Y. 1994) (ruling that no multiplier was appropriate
where, among other things, "as a matter of public policy, judicial encouragement
of this type of action appears to be unnecessary.").
In rejecting the need for any multiplier, the court must also consider
whether the lodestar, itself, is excessive in the facts and circumstances of this case.
On balance, because the lodestar does not reflect the total fees incurred, because it
in large part reflects substantial national hourly rates that even the CVPS
Defendants concede are appropriate, because the CVPS Defendants, who will
directly or indirectly pay the award, do not object to a lodestar award but urge the
court to accept it, 5 and because class members will bear no responsibility for it, the
court concludes that a lodestar award represents a reasonable attorney's fee award
that is not excessive. See McDaniel, 595 F .3d at 423.
At the Fairness Hearing, the CVPS Defendants argued: "So we think that the lodestar or what
the Second Circuit has called the presumptive reasonable fee is really ... where the Court should
focus its consideration in terms of any attorney's fees award here." (Tr. 7/11/12 at 65.)
5
20
Based upon the foregoing, the court concludes that an attorney's fee award
in the amount of $243,220.25 is fair, reasonable and adequate in addition to the
previously approved expense award of$8,519.81. Such sums shall be paid
pursuant to the provisions of the Settlement Agreement. Neither the Plaintiff nor
Plaintiff's Counsel shall make any other application for an award of fees and
expenses in connection with the Action or the subject matter of the Action.
6. Authorization to Consummate Settlement Agreement. The parties to the
Settlement Agreement are hereby authorized to consummate the terms and provisions of
the Settlement Agreement. Without further order of this court, the parties may agree to
reasonable extensions of time to carry out any of the provisions of the Settlement
Agreement.
7. Released Claims, Released Persons, and Unknown Claims. Pursuant to the
Settlement Agreement and by virtue of this Final Order and Judgment, the following
"Released Claims" are fully, finally and forever released and discharged as to any and all
of the Released Parties by the Plaintiffs and each and every Class Member and their
respective heirs, executors, administrators, estates, predecessors-in-interest, predecessors,
successors-in-interest, successors, and assigns.
a. The "Released Claims" means:
any and all manner of claims, demands, rights, liabilities, losses,
obligations, duties, damages, costs, debts, expenses, interest, penalties,
sanctions, fees, attorneys' fees, actions, potential actions, causes of action,
suits, agreements, judgments, decrees, matters, issues and controversies of
any kind, nature or description whatsoever, whether known or unknown,
disclosed or undisclosed, accrued or unaccrued, apparent or not apparent,
foreseen or unforeseen, matured or not matured, suspected or unsuspected,
liquidated or not liquidated, fixed or contingent, including Unknown
Claims (defined below), that Plaintiff or any or all other members of the
Class ever had, now have, or may have, whether direct, derivative,
individual, class, representative, legal, equitable or of any other type, or in
any other capacity, against any of the Released Parties (defined below),
whether based on state, local, foreign, federal, statutory, regulatory,
common or other law or rule (including, but not limited to, any claims
under federal securities laws or state disclosure law or any claims that could
be asserted derivatively on behalf of CVPS), which, now or hereafter, are
21
based upon, arise out of, relate in any way to, or involve, directly or
indirectly, any of the actions, failures to act, transactions, occurrences,
statements, omissions, allegations, facts, practices, events, claims or any
other matters, things or causes whatsoever, or any series thereof, that were,
could have been, or in the future can or might be alleged, asserted, set forth,
claimed, embraced, involved, or referred to in, or related to, directly or
indirectly, this lawsuit or the subject matter of this lawsuit in any court,
tribunal, forum or proceeding, including, without limitation, any and all
claims which are based upon, arise out of, relate in any way to, or involve,
directly or indirectly, (i) the Gaz Metro Merger, including but not limited to
the terms and conditions thereof, (ii) the Fortis Agreement, including but
not limited to the terms and conditions thereof, (iii) any and all occurrences
or matters mentioned or referred to in the CVPS Proxy or Supplemental
Disclosures, (iv) the process conducted, and decisions made and actions
taken or not taken in connection therewith and in connection with the
potential sale of CVPS, (v) negotiations in connection with the Fortis
Agreement, the Gaz Metro Merger and with any actual or potential
acquirer, (vi) the consideration to be received by Class Members or by any
other Person in connection with the Gaz Metro Merger, (vii) the payment of
a termination fee in connection with the termination of the Fortis
Agreement, (viii) the CVPS Proxy or any other disclosures, public filings,
periodic reports, press releases, proxy statements or other statements issued,
made available or filed relating, directly or indirectly, to the Gaz Metro
Merger, the Fortis Agreement or CVPS' s consideration of strategic
alternatives, including but not limited to claims under the federal securities
laws, (ix) the fiduciary obligations of the Released Parties (defined below)
in connection with the Gaz Metro Merger, the Fortis Agreement or any of
the matters mentioned or referred to in the CVPS Proxy or Supplemental
Disclosures, (x) claims for fees, expenses or costs incurred in prosecuting
or settling this lawsuit, or in connection with any claim for benefits
conferred on the Class, except as set forth herein, or (xi) any of the matters
referred to or alleged in any complaint or amendment( s) thereto filed in this
lawsuit (all of the foregoing, including both the foregoing subparts and the
text preceding those subparts, being collectively referred to as the
"Released Claims"); provided, however, that the Released Claims shall not
include the right to enforce the Settlement Agreement or any claims for
statutory appraisal with respect to the merger of Danaus with and into
CVPS by CVPS stockholders who properly perfect such appraisal claims
do not otherwise waive their appraisal rights.
22
(b) The "Released Parties" means:
(i) Lawrence J. Reilly, Robert H. Young, William R. Sayre, Robert L.
Barnett, Robert G. Clarke, John M. Goodrich, Robert B. Johnston,
Elisabeth B. Robert, Janice L. Scites, William 1. Stenger, and Douglas 1.
Wacek, and their respective heirs, executors, personal representatives,
attorneys, advisors, estates, administrators and assigns; (ii) CVPS, Gaz
Metro, and Danaus, and their respective past, present or future
predecessors, predecessors-in-interest, successors, successors-in-interest,
assigns, affiliates, parents, subsidiaries, officers, directors, employees,
agents, attorneys, advisors, insurers, reinsurers, accountants, aUditors,
consultants, financial advisors, lenders, investment bankers, and
representatives; and (iii) as to any person or entity included in (ii), its
respective past, present or future predecessors, predecessors-in-interest,
successors, successors-in-interest, affiliates, parents, subsidiaries, officers,
directors, employees, agents, attorneys, advisors, insurers, reinsurers,
accountants, auditors, consultants, financial advisors, investment bankers,
representatives, heirs, executors, personal representatives, attorneys,
estates, administrators and assigns.
(c) The "Unknown Claims" means:
any claim that Plaintiff or any other member of the Class does not know or
suspect exists in his, her or its favor at the time of the release of the
Released Claims as against the Released Parties, including without
limitation those which, if known, might have affected the decision to enter
into the Settlement Agreement. With respect to any of the Released
Claims, the Parties stipulate and agree that upon court approval of the
Settlement Agreement, Plaintiff shall expressly and each member of the
Class shall be deemed to have, and by operation of the final order and
judgment by the court shall have, expressly waived, relinquished and
released any and all provisions, rights and benefits conferred by or under
Cal. Civ. Code § 1542 or any law of the United States or any state of the
United States or territory ofthe United States, or principle of common law,
which is similar, comparable or equivalent to Cal. Civ. Code § 1542, which
provides:
"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 MATERIALL Y
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
23
Plaintiff acknowledges and the members of the Class by operation of law
shall be deemed to have acknowledged, that they may discover facts in
addition to or different from those now known or believed to be true with
respect to the Released Claims, but that it is the intention of Plaintiff, and
by operation of law the members of the Class, to completely, fully, finally
and forever extinguish any and all Released Claims, known or unknown,
suspected or unsuspected, which now exist, or heretofore existed, or may
hereafter exist, and without regard to the subsequent discovery of additional
or different facts. Plaintiff acknowledges, and the members of the Class by
operation of law shall be deemed to have acknowledged, that the inclusion
of "Unknown Claims" in the definition of "Released Claims" was
separately bargained for and was a material element of the Settlement
Agreement and was relied upon by each and all of Defendants in entering
into the Settlement Agreement.
8. Dismissal with Prejudice. By stipulation of the parties, this case and all of the
claims alleged therein are hereby dismissed on the merits with prejudice as to all
Defendants as against the named Plaintiff and all members of the Class with no costs.
9. Non-occurrence of Effective Date. If the Effective Date does not occur, this
Final Order and Judgment shall be rendered null and void and shall be vacated and, in
such event, all orders entered and releases delivered in connection herewith except for
Paragraphs 18,25,26,27,29, and 37 of the Settlement Agreement which shall survive
any such termination or vacatur, shall be null and void; the parties returned, without
prejudice in any way, to their respective litigation positions immediately prior to the
execution of their Memorandum of Understanding.
10. Potential Appeal of Attorney's Fee Award. The binding effect of this Final
Order and Judgment and the obligations of Plaintiff and Defendants under the Settlement
Agreement shall not be conditioned upon or subject to the resolution of any appeal from
this Final Order and Judgment that relates solely to the issue of Plaintiffs Counsel's (or
any other counsel's) application for an award of attorneys' fees and expenses.
11. Retained Jurisdiction for Purposes of Enforcement of Settlement
Agreement. Without affecting the finality of this Final Order and Judgment in any way,
this Court reserves jurisdiction over all matters relating to the administration and
consummation of the Settlement Agreement.
24
12. The Clerk of the Court is directed to enter and docket this Final Order and
Judgment.
SO ORDERED.
~
Dated at Rutland, in the District of Vermont, this ).. 7day of September, 2012.
~
Christina Reiss, Chief Judge
United States District Court
25
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