Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 1 of 23 PageID 8969 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION In re REGIONS MORGAN KEEGAN SECURITIES, DERIVATIVE and ERISA LITIGATION This Document Relates to: In re Morgan Keegan ERISA Litigation, No. 2:08-cv-02192-SHM-dkv ) ) ) ) ) ) ) ) ) ) No. 2:09-2009 SMH ORDER PRELIMINARILY APPROVING SETTLEMENT AND PROVIDING FOR NOTICE On behalf of the four Settlement Subclasses, Plaintiffs Gary Shamblin, Terry Hamby, Nancy Jackson, Robert Harrison, Caesar L. Smith, Barbara Williams, James K. Smith, II, and the Representative Customer Plans, including the court-appointed Trustee ad Litem of the trust or custodial accounts for the Representative Customer Plans, C. Fred Daniels 1, filed a Motion on December 18, 2013, for an Order Preliminarily Approving Settlement, Preliminarily Certifying the Settlement Subclasses and Appointing Co-Lead Class Counsel, Approving Forms and Dissemination of Class Notice, and Setting a Date and Time for the Fairness Hearing. The Motion seeks preliminary approval of 1 C. Fred Daniels is included among the Named Plaintiffs only and solely in his capacity as the court-appointed Trustee ad Litem of trusts or custodial accounts for each of the Representative Customer Plans
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 2 of 23 PageID 8970 the December 18, 2013 Class Action Settlement Agreement, and the attached Exhibits and Appendices (collectively, the Settlement Agreement ), Plaintiffs entered into with Defendants Regions Financial Corporation ( RFC ), Morgan Keegan & Company, Inc. ( Morgan Keegan ), Morgan Asset Management, Inc. ( MAM ), Regions Bank or Regions Bank d/b/a Regions Morgan Keegan Trust ( RMKT ), and the individual defendants listed in the Complaint (the Individual Defendants ). The Settlement Agreement sets forth the terms and conditions for a proposed settlement of the case and for dismissal of this case with prejudice upon the terms and conditions set forth therein (the Settlement ). The Court has reviewed the Settlement Agreement, Plaintiffs Motion for an Order Preliminarily Approving Settlement, Preliminarily Certifying the Settlement Subclasses and Appointing Co-Lead Class Counsel, Approving Forms and Dissemination of Class Notice, and Setting a Date and Time for the Fairness Hearing, the Declaration of Derek W. Loeser and Exhibits Nos. 1 to 4 attached thereto, and the proposed Order. A preliminary fairness hearing was held on June 23, 2014, during which the parties presented oral arguments addressing the proposed Settlement. For the following reasons, Plaintiffs Motion is GRANTED and IT IS HEREBY ORDERED: 1. Preliminary Findings Concerning Proposed Settlement. The Court preliminarily approves the Settlement Agreement 2
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 3 of 23 PageID 8971 and the Settlement set forth therein, subject to further consideration at the Settlement Hearing described below. 2 The Court preliminarily finds that the proposed Settlement Agreement should be approved as: (a) the result of extensive arm s-length and non-collusive negotiations; (b) fair, reasonable, and adequate; (c) having no obvious deficiencies; (d) not improperly granting preferential treatment to the Named Plaintiffs or segments of the Settlement Subclasses; (e) falling within the range of possible approval; and (f) warranting notice to Settlement Subclasses members of a formal fairness hearing, at which evidence may be presented in support of and in opposition to the proposed Settlement. 2. Class Certification. Pursuant to Federal Rule 23, the Court preliminarily certifies, solely for purposes of effectuating the Settlement, the following Subclasses (the first three of which are the In-House Settlement Subclasses and the last of which is the Customer Plans Settlement Subclass ): (a) The In-House Plans Regions Stock Settlement Subclass: all Persons, other than Defendants and Defendants officers and directors subject to Section 16 of the Securities Exchange Act of 1934, who were Participants 2 For purposes of this Order, the Court adopts all defined terms as set forth in the Settlement Agreement, and capitalized terms used in this Order shall have the same meaning as in the Settlement Agreement. 3
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 4 of 23 PageID 8972 in or Beneficiaries of the In-House Plans at any time between January 1, 2007 and December 31, 2010 and whose Plan accounts were invested in Regions Stock at any time during this period. (b) The In-House Plans Excessive Fee Settlement Subclass: all Persons, other than Defendants and Defendants officers and directors subject to Section 16 of the Securities Exchange Act of 1934, who were Participants in or Beneficiaries of the Legacy Plan and/or the Regions 401(k) Plan at any time between May 1, 2003 and May 15, 2009 and whose Plan accounts were invested in one or more of the RMK Select Funds at any time during this period. (c) The In-House Plans Bond Fund Settlement Subclass: all Persons, other than Defendants and Defendants officers and directors subject to Section 16 of the Securities Exchange Act of 1934, who were Participants in or Beneficiaries of the Legacy Plan and/or the Regions 401(k) Plan at any time between November 9, 2006 and July 29, 2008 and whose Plan accounts were invested at any time during this period in one or more of the RMK Bond Funds. (d) The Customer Plans Settlement Subclass: the Customer Plans and all Persons, other than 4
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 5 of 23 PageID 8973 Defendants, who were Participants in, Beneficiaries of, or Fiduciaries of any Customer Plan that at any time between November 9, 2006 and July 29, 2008 had plan assets invested in one or more of the RMK Bond Funds. Excluded from the Customer Plans Settlement Subclass are the Customer Plans that either (a) previously signed agreements releasing one or more of the Defendants from claims encompassed by the Released Plaintiffs Claims, or (b) validly and timely seek exclusion from the Customer Plans Settlement Subclass, and the Participants in, Beneficiaries of, or Fiduciaries of the Customer Plans described in Section 1.47.4 (a) or (b) of the Settlement Agreement. 3. Settlement Subclasses. Pursuant to Federal Rule 23, solely for the purposes of effectuating settlement, the Court preliminarily finds that the Settlement Subclasses satisfy the requirements of the United States Constitution, the Federal Rules of Civil Procedure, the Local Rules of the United States District Court for the Western District of Tennessee, and any and all other applicable laws, in that: (a) The members of the Settlement Subclasses are so numerous that their joinder before the Court would be impracticable, thus satisfying Federal Rule 23(a)(1); 5
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 6 of 23 PageID 8974 (b) There are one or more questions of fact and law that are common to each of the Settlement Subclasses, thus satisfying Federal Rule 23(a)(2); (c) The claims of the various Named Plaintiffs are typical of the claims of the various Settlement Subclasses in which they serve as Subclass Representatives, thus satisfying Federal Rule 23(a)(3); (d) Named Plaintiffs and their counsel, Keller Rohrback L.L.P. and Feinstein Doyle Payne & Kravec, LLC (together Interim Co-Lead Counsel ), have and will fairly and adequately protect the interests of the various Settlement Subclasses in which they serve as Subclass Representatives, thus satisfying Federal Rule 23(a)(4); (e) With respect to the three In-House Plans Settlement Subclasses, the prosecution of separate actions by individual members of the Settlement Subclasses would create a risk of: (i) inconsistent or varying adjudications as to individual Settlement Subclass members that would establish incompatible standards of conduct for the parties opposing the claims asserted in the Action; and/or (ii) adjudications as to individual Settlement Subclass members that, as a practical matter, would be dispositive of the 6
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 7 of 23 PageID 8975 interests of the other Settlement Subclass members not parties to the adjudications or substantially impair or impede the ability of those persons to protect their interests, thus satisfying Federal Rule 23(b)(1)-(2); (f) With respect to the Customer Plans Settlement Subclass, questions of law or fact common to Customer Plans Settlement Subclass members predominate over any questions affecting only individual subclass members, thus satisfying Federal Rule 23(b)(3); and (g) A class action is superior to other available methods for fairly and efficiently adjudicating the controversy, thus satisfying Federal Rule 23(b)(3). 4. Opt-Outs from the Customer Plans Settlement Subclass. Any member of the Customer Plans Settlement Subclass shall be bound by the Settlement Agreement and the Settlement, unless such Customer Plan requests exclusion (to opt-out ) from the Customer Plans Settlement Subclass in a timely and proper manner, as provided herein. To be considered a valid exclusion request, one or more fiduciaries of such Customer Plan must mail a written request to be excluded from the Settlement no later than November 7, 2014 (the Opt-Out Date ). The written request must comply with the requirements of this paragraph. Requests for exclusion must be mailed by First Class Mail 7
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 8 of 23 PageID 8976 (preferably by Certified First Class Mail, Return Receipt Requested) postmarked no later than October 31, 2014 to the following address: Regions Morgan Keegan ERISA Settlement c/o GCG P.O. Box 35105 Seattle, WA 98124-5015 Any such written request must be signed, must include the name and address of the plan fiduciary or duly authorized representative of the plan fiduciary executing the exclusion request on behalf of the Customer Plan, and must clearly manifest an intent to exclude the Customer Plan from the Customer Plans Settlement Subclass. The written opt-out request must state the full legal name of the Customer Plan, state the title or position of each person submitting the exclusion request on behalf of the Customer Plan, and include a statement that the person(s) executing the request is authorized to do so on behalf of the Customer Plan. Within fifteen (15) days after the Opt-Out Date, any Party to the Settlement Agreement may file a motion with this Court challenging the validity of any particular request for exclusion from the Settlement. 5. In-House Plans Subclass Representatives. The Court preliminarily appoints the following Named Plaintiffs as Class Representatives for the respective In-House Plans Settlement Subclasses: 8
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 9 of 23 PageID 8977 In-House Plan Settlement Subclass Regions Stock Subclass Named Plaintiffs Terry Hamby Nancy Jackson Robert H. Harrison Caesar L. Smith Gary Shamblin Barbara Williams Excessive Fee Subclass Caesar L. Smith Gary Shamblin Barbara Williams Bond Fund Subclass Gary Shamblin 6. In-House Plans Subclass Counsel. The Court preliminary appoints Keller Rohrback L.L.P. and Feinstein Doyle Payne & Kravec, LLC, as Co-Lead Class Counsel for the In-House Plans Settlement Subclasses. 7. Customer Plans Subclass Representatives. The Court preliminary appoints as Named Plaintiffs James K. Smith, II, and the Representative Customer Plans (identified as Keith Smith Company Inc. Employee Profit Sharing Plan and the Briscoe Production Company Employees Retirement Plan), including the court-appointed Trustee ad Litem of trust or custodial accounts for the Representative Customer Plans, C. Fred Daniels, as Class Representatives for the Customer Plans Settlement Subclass. 9
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 10 of 23 PageID 8978 8. Customer Plans Subclass Counsel. The Court preliminary appoints Keller Rohrback L.L.P. and Feinstein Doyle Payne & Kravec, LLC, as Co-Lead Class Counsel for the Customer Plans Settlement Subclass. 9. Class Notices. The Court approves, as to form and content, the Class Notice as attached hereto as Attachments A to D and Attachment G. The Court approves the form of the Summary Notices attached hereto as Attachments E and F. The Court finds that the mailing and distribution of the Class Notice and publishing of the Notice as set forth herein, meet the requirements of Federal Rule 23, due process, and constitute the best notice practicable under the circumstances and shall constitute due and sufficient notice to all persons and entities entitled thereto. The Court hereby appoints the Garden City Group, Inc. ( GCG ) as the Claims Administrator. The Claims Administrator shall have the responsibilities stated in Sections 3.2.3 and 9.4 of the Settlement Agreement and the Plan of Allocation. The Court directs that, consistent with the Settlement Agreement, Co-Lead Class Counsel and the Claims Administrator shall execute the following plan of dissemination for the Class Notices or cause that plan to be executed: (a) No later July 23, 2014, the Claims Administrator shall cause the Class Notices attached as Attachments A, C 10
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 11 of 23 PageID 8979 and D with such non-substantive modifications thereto as may be agreed upon by the Parties, to be mailed, by first-class mail, postage prepaid, to each such Settlement Subclass member within the Settlement Subclasses pursuant to sections 3.2.3 of the Settlement Agreement. Defendants will provide Co-Lead Class Counsel with the names and addresses described in section 3.2.3 of the Settlement Agreement, which names and addresses shall be used solely for the purpose of providing notice of this Settlement and for no other purpose; (b) No later than August 6, 2014, Co-Lead Class Counsel shall cause the Publication Notices attached as Attachments B and G to be published once in Investor s Business Daily, on a different day to be transmitted over PRN Newswire and to be posted on the website identified in the Class Notices; (c) No less than seven (7) days before the Fairness Hearing, Co-Lead Class Counsel shall file with the Court a proof of timely compliance with the foregoing mailing and publication requirements; and (d) The Plan Administrators shall disseminate the Summary Notices not less than sixty (60) days prior to the deadlines for submitting opt-out elections and 11
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 12 of 23 PageID 8980 objections to the Settlement, which is September 7, 2014. Dissemination of the Summary Notices may take the form of a method customarily used by a Customer Plan to communicate with its Participants, Beneficiaries, and Fiduciaries (which may include posting the Summary Notice on the Customer Plan s website or including the Summary Notice in the Customer Plan s next regular periodic communication with its Participants, Beneficiaries, and Fiduciaries). 10. Passage of Title. The passage of title and ownership of the Class Settlement Amount to the Qualified Settlement Fund in accordance with the terms and obligations of the Settlement Agreement is approved. No person who is not a Class Member or Co-Lead Counsel shall have any right to any portion of, or to any distribution of, the Qualified Settlement Fund unless otherwise ordered by the Court or otherwise provided in the Settlement Agreement. 11. Custodia Legis. All funds held by the Qualified Settlement Fund 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 such funds shall be distributed pursuant to the Settlement Agreement and/or further order of the Court. 12
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 13 of 23 PageID 8981 12. Notice Expenses. The expenses of publication, printing and mailing of all Class Notices required by this Order, shall be paid from the Qualified Settlement Fund as provided in Sections 9.2.2, 9.4.6 and 9.4.7 of the Settlement Agreement. Such funds will be paid upon completion of proper execution of Class Notice under the Settlement Agreement and this Order. Regardless of whether the Settlement gains final court approval, such expenses shall not be refundable to Defendants. 13. Declaration of Compliance. The Parties shall file with the Court a declaration attesting to compliance with the notice requirements of the Class Action Fairness Act of 2005, no later than December 7, 2014. 14. Provision of Data. No later than 125 days after entry of the Preliminary, October 30, 2014, RFC shall comply with its obligation under Section 9.4.3 of the Settlement Agreement to provide to the Claims Administrator investment holding and transaction data. 15. Fairness Hearing. A hearing is scheduled for December 15, 2014 (the Fairness Hearing ) at 9:00 A.M. at the Clifford Davis/Odell Horton Federal Building, 167 N. Main Street, 11 th Floor, Courtroom #2, Memphis, Tennessee, to determine, among other things: (a) Whether the Settlement should be finally approved as fair, reasonable, and adequate; 13
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 14 of 23 PageID 8982 (b) Whether the Action should be dismissed with prejudice pursuant and subject to the terms of the Settlement Agreement; (c) Whether the Class Notices and Internet/Publication Notices: (i) constituted the best practicable notice; (ii) constituted notice that was reasonably calculated, under the circumstances, to apprise members of the Settlement Subclasses of the pendency of the Action, their right to object to the Settlement, and their right to appear at the Fairness Hearing, and where applicable, their right to opt-out or to exclude themselves from the Customer Plans Settlement Subclass; (iii) was reasonable and constituted due, adequate, and sufficient notice to all persons and Customer Plans entitled to notice; and (iv) met all applicable requirements of the Federal Rules of Civil Procedure and any and all other applicable laws; (d) Whether Co-Lead Class Counsel adequately represented the Settlement Subclasses for purposes of entering into and implementing the Settlement Agreement; (e) Whether the proposed Plan of Allocation for the proceeds of the Settlement is fair and reasonable and should be approved by the Court; 14
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 15 of 23 PageID 8983 (f) Whether the application for attorneys fees and litigation expenses filed by Co-Lead Class Counsel should be approved; and (g) Whether the Case Contribution Awards for the Named Plaintiffs should be approved. 16. Objections to Settlement. Any member of the Settlement Subclasses who objects to the fairness, reasonableness or adequacy of the Settlement, to any term of the Settlement Agreement, to the Plan of Allocation, to the request for attorneys fees and expenses, or to the request for Case Contribution Awards, may file an objection. Written objections must (a) state all supporting bases and reasons for the objection; (b) set forth the basis of membership in at least one of the Settlement Subclasses; (c) describe any witnesses, documents and other evidence of any kind that may be proffered at the Fairness Hearing in connection with such objections; and (d) provide a summary description of the substance of any testimony they wish to offer themselves or through any witnesses in support of the objection. The Court will consider objections only if such objections and any supporting papers are filed in writing with the Clerk of the Court at the address below. The objector must also mail the objection and all supporting papers to Co-Lead Class Counsel and to Defendants Counsel. The 15
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 16 of 23 PageID 8984 addresses for filing objections with the Court and service on counsel are as follows: To the Court: Clerk of the Court Clifford Davis/Odell Horton Federal Building 167 North Main Street Memphis, Tennessee 38103 Re: Case No. 2:08-2192 To Co-Lead Class Counsel: Derek W. Loeser KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 Ellen M. Doyle FEINSTEIN DOYLE PAYNE & KRAVEC, LLC 1705 Allegheny Building 429 Forbes Avenue Pittsburgh, PA 15219 To Defendants Counsel: Michael J. Prame GROOM LAW GROUP, CHARTERED 1701 Pennsylvania Avenue, N.W., Suite 1200 Washington, DC 20006-5811 William B. Wahlheim, Jr. MAYNARD COOPER & GALE, PC 1901 6th Avenue North, Suite 2400 Birmingham, AL 35203-2602 The objector or his, her or its counsel (if any) must effect service of the objection on counsel listed above and file it with the Court so that it is received by the Clerk of the Court and counsel no later than October 28, 2014. If an objector hires an attorney to object pursuant to this paragraph, the 16
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 17 of 23 PageID 8985 attorney must both effect service of a Notice of Appearance on counsel listed above and file it with the Court by no later than October 28, 2014. Any Settlement Subclass member who does not object in the manner prescribed in the Class Notice shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to the fairness, adequacy or reasonableness of the Settlement, the Final and Judgment to be entered approving the Settlement, the Plan of Allocation, or the attorneys fees, reimbursement of litigation expenses, and Case Contribution Awards requested. 17. Appearance at Fairness Hearing. Any objector who files and serves a timely, written objection may 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 Intent to Appear at Fairness Hearing setting forth the name, address, and telephone number of the objector (and, if applicable, the name, address, and telephone number of the objector s attorney) on Co-Lead Class Counsel and on Defendants Counsel (at the addresses set out above). The objector must also file the Notice of Intent to Appear with the Court by no later than November 14, 2014. Any objector who does not timely file and serve a Notice of Intent to Appear in accordance with this 17
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 18 of 23 PageID 8986 paragraph shall not be permitted to appear at the Fairness Hearing, except for good cause shown. If any objector hires an attorney to appear at the Fairness Hearing, the attorney must also effect service of a Notice of Appearance on counsel above and file it with the Court by no later than November 14, 2014. 18. Service of Papers. If it appears that any objections were not properly served, the Parties shall furnish each other s counsel with copies of any and all such objections that come into their possession promptly after learning of the deficiency in service. 19. Additional Filings. Co-Lead Class Counsel shall file no later than ninety (90) days after entry of the Preliminary motions for final approval of the Settlement, approval of the proposed Plan of Allocation, and applications for awards of attorneys fees, expense reimbursement and Case Contribution Awards. Co-Lead Counsel will cause these pleadings to be posed at www.rmkerisasettlement.com. 20. Summary Schedule. In connection with the schedule set forth in the Settlement Agreement, the Parties have agreed, and the Court further orders the following: Calendar Date Time Frame Event June 23, 2014 Entry of Preliminary 18
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 19 of 23 PageID 8987 July 23, 2014 Within 30 days after entry of Preliminary Date by which Notices will be mailed August 6, 2014 September 23, 2014 September 23, 2014 Within 14 days after mailing of the Class Notice Within 90 days after entry of Preliminary Approval Order Within 90 days after entry of Preliminary October 30, 2014 Not later than 125 days after entry of Preliminary Date by which Publication Notice will be published and posted Plaintiffs move for Final Approval of Settlement Agreement Plaintiffs move for Award of Attorneys Fees, Costs and Case Contribution Awards Defendants transfer transaction data to Claims Administrator pursuant to Section 9.4.3 of the Settlement Agreement October 28, 2014 Not less than 123 days after entry of Preliminary October 28, 2014 Not less than 123 days after entry of Preliminary November 7, 2014 Not less than 133 days after entry of Preliminary Date by which Counsel retained by Objectors to file Objection must file Notice of Appearance Date by which all Objections must be filed and received by all Counsel Date by which Optouts must be received by the Claims Administrator 19
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 20 of 23 PageID 8988 November 14, 2014 Not less than 140 days after entry of Preliminary November 14, 2014 Not less than 140 days after entry of Preliminary November 19, 2014 Not less than 145 days after entry of Preliminary November 29, 2014 Not less than 155 days after entry of Preliminary December 7, 2014 Not less than 163 days after entry of Preliminary December 7, 2014 Not less than 163 days after entry of Preliminary December 15, 2014 Not less than 170 days from entry of Preliminary Approval Order Date by which Notice of Intent to Appear at Fairness Hearing must be filed by any Objector wishing to appear at Fairness Hearing Date by which Counsel retained by any Objector to appear at the Fairness Hearing must file Notice of Appearance Any party may challenge the effectiveness of any exclusion from the Customer Plans Settlement Subclass Plaintiffs respond to any Objections Defendants file Statement of Timely Compliance with CAFA Notice Requirements Plaintiffs file Statement of Timely Compliance with Notice Requirements Fairness Hearing 21. Injunction. Pending final determination of the fairness, reasonableness and adequacy of the proposed Settlement, all members of the Settlement Subclasses are 20
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 21 of 23 PageID 8989 enjoined from instituting or commencing any new action against Releasees based on the Released Plaintiffs Claims, and all proceedings in this Action, except those related to approval of the Settlement, are stayed. 22. No Settlement Discovery. Except as provided in Section 3.2.7 of the Settlement Agreement with respect to a request for information and/or documents by the Independent Fiduciary, no discovery by any person with regard to the Settlement or the Settlement Agreement shall be permitted as to any of the settling Parties other than as may be directed by the Court upon a proper showing by the person seeking such discovery pursuant to a motion properly noticed and served. 23. Termination of Settlement. This Order shall become null and void and shall be without prejudice to the rights of the Parties, all of whom shall be restored to their respective positions existing as of January 15, 2013, pursuant to Section 10 of the Settlement Agreement, if the Settlement is terminated in accordance with the Settlement Agreement or does not receive Final approval. In such event, Section 10 of the Settlement Agreement shall govern the rights of the Parties. 24. Use of Order. This Order is entered in compromise of disputed claims and does not reflect admissions of liability of any kind, whether legal or factual by the Releasees. Releasees specifically deny any liability or wrongdoing. Plaintiffs 21
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 22 of 23 PageID 8990 specifically believe they would have a good chance of prevailing at trial, but settle in recognition of the inherent uncertainty of litigation. Neither the fact nor the terms of this Order shall be construed or used as an admission, concession, or declaration by or against Releasees of any fault, wrongdoing, breach, or liability or as a waiver by any Party of any arguments, defenses, or claims he, she, or it may have, including, but not limited to, any objections by Releasees to class certification in the event that the Settlement Agreement is terminated or not given Final approval. 25. Continuance of Hearing. The Court may in its discretion continue the Fairness Hearing without further written notice. 26. Separation of Determinations. Neither Defendants nor their counsel shall have any responsibility whatsoever for the Plan of Allocation nor for any application for attorneys fees or reimbursement of litigation expenses or request for Case Contribution Awards submitted by Co-Lead Class Counsel, and such matters will be considered separately from the fairness, reasonableness and adequacy of the Settlement. The Court reserves the right to approve the Settlement and/or Plan of Allocation with or without modification and with or without further notice of any kind. The Court further reserves the right to enter its Final and Judgment approving 22
Case 2:08-cv-02192-SHM-dkv Document 327 Filed 06/23/14 Page 23 of 23 PageID 8991 the Settlement regardless of whether it has approved the Plan of Allocation or awarded attorneys fees and/or litigation expenses. It is so ORDERED this 23d day of June, 2014. /s/samuel H. Mays, Jr. Samuel H. Mays, Jr. United States District Judge 23