In Re: Lernout & Hauspie Securities Litigation 00-CV-11589-Order And
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETT S IN RE LERNOUT & HAUSPIE ) CIVIL ACTION NO. SECURITIES LITIGATION ) 00-CV-11 589 (PBS) THIS DOCUMENT RELATES TO: ) ALL ACTIONS ) On the 20th day of December, 2004, a hearing having been held before this Court to determine : (1) whether the terms and conditions of the Amended Stipulation and Agreement o f Settlement with KPMG LLP, Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren ("KPMG Belgium") and Paul Behets dated December 16, 2004 (the "Stipulation") are fair , reasonable and adequate for the settlement of all claims asserted by the Class against KPMG LLP, Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren and Paul Behets (collectively the "KPMG Defendants") i n the First Consolidated and Amended Class Action Complaint (the "Complaint") now pending i n this Court under the above caption, including the release of the KPMG Defendants and the Released Parties, and should be approved; (2) whether judgment should be entered dismissing the claims asserted against the KPMG Defendants in the Complaint on the merits and with prejudice in favor of the KPMG Defendants and as against all persons or entities who ar e members of the Class herein who have not requested exclusion therefrom ; (3) whether to approv e the Plan of Allocation as a fair and reasonable method to allocate the settlement proceeds amon g the members of the Class; and (4) whether and in what amount to award Plaintiffs' Counsel fees and reimbursement of expenses and compensatory awards . The Court having considered all - l - matters submitted to it at the hearing and otherwise ; and it appearing that a notice of the hearing substantially in the form approved by the Court was given to all persons or entities reasonabl y identifiable who purchased the common stock of Lernout & Hauspie Speech Products N .V. ("L&H") on the NASDAQ Stock Market or who purchased L&H call options or sold L&H pu t options on any United States-based options exchange between April 28, 1998 and November 9 , 2000, inclusive (the "Class Period"); and that a summary notice of the hearing substantially in the form approved by the Court was published in the national edition of The Wall Street Journal, The Wall Street Journal Europe and the Belgian financial paper de Tiid pursuant to the specifications of the Court; and the Court having considered and determined the fairness and reasonableness o f the award of attorneys' fees ; and all capitalized terms used herein having the meanings as set forth and defined in the Stipulation. NOW, THEREFORE, IT IS HEREBY ORDERED THAT : 1 . The Court has jurisdiction over the subject matter of the Action, the Lead Plaintiffs, all Class Members, and the KPMG Defendants . 2. The Court certifies the Class for settlement purposes only under Fed. R. Civ. P . 23 (a) and (b)(3) and, for that purpose, finds : (a) the number of Class Members is so numerous tha t joinder of all members thereof is impracticable ; (b) there are questions of law and fact commo n to the Class; (c) the claims of the Class Representatives are typical of the claims of the Class the y seek to represent; (d) the Class Representatives have and will fairly and adequately represent the interests of the Class ; (e) the questions of law and fact common to the members of the Clas s predominate over any questions affecting only individual members of the Class ; and (f) a class action is superior to other available methods for the fair and efficient adjudication of th e -2- controversy. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Lead Plaintiffs Hans A. Quaak, Attilio Po and Karl Leibinger, and representative MM Holdings, Inc . are certified as Class Representatives. 3 . Pursuant to Rule 23 of the Federal Rules of Civil Procedure and for purposes of this Settlement only, this Court hereby certifies this action as a class action insofar as the Action relates to the claims asserted by the Class against the KPMG Defendants on behalf of all Class Members who purchased the common stock of L&H on the NASDAQ Stock Exchange or who purchased L&H call options or sold L&H put options on any United States-based option s exchange between April 28, 1998 and November 9, 2000, inclusive . Excluded from the Clas s are: (i) the KPMG Defendants, any partners or principals of KPMG LLP or KPMG Belgium, members of their immediate families and their legal representatives, heirs, successors or assigns, and any predecessors or successors of KPMG LLP or KPMG Belgium and any entity in which any of the above persons or entities have or had a controlling interest; (ii) KPMG International and all KPMG International member firms; (iii) Paul Behets and members of his immediate family and his legal representatives, heirs, successors or assigns ; (iv) L&H and any predecessors or successors of L&H ; (v) the officers and directors of L&H, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which any of the above persons or entities have or had a controlling interest ; (vi) the Transactional Plaintiffs, Rocker Plaintiffs and Trustee Plaintiffs ; and (vii) any defendants named in this Action or in Quaak v. Dexia S.A., 03-CV-11566 (PBS) (D. Mass.) (the "Dexia Action"), members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which any defendant has or had a controlling interest. Also excluded from the Class ar e -3- the persons and/or entities who requested exclusion from the Class as listed on Exhibit A annexed hereto . 4 . Notice of the pendency of this Action as a class action and of the propose d Settlement was given to all Class Members who could be identified with reasonable effort. The form and method of notifying the Class of the pendency of the action as a class action and of the terms and conditions of the proposed Settlement met the requirements of Rule 23 of the Federa l Rules of Civil Procedure, Section 21 D(a)(7) of the Securities Exchange Act of 1934, 15 U.S.C. 78u-4(a)(7), due process, and any other applicable law, constituted the best notice practicabl e under the circumstances, and constituted due and sufficient notice to all persons and entitie s entitled thereto . 5. The Settlement is approved as fair, reasonable and adequate, and the parties ar e directed to consummate the Settlement in accordance with the terms and provisions of th e Stipulation. 6. The claims asserted by Lead Plaintiffs and the Class against the KPM G Defendants in the Complaint, which the Court finds was filed on a good faith basis in accordanc e with the PSLRA and Rule 11 of the Federal Rules of Civil Procedure based upon all publicly available information, are hereby dismissed with prejudice and without costs, except as provide d in the Stipulation. 7 . Members of the Class and the successors and assigns of any of them are hereby permanently barred and enjoined from instituting, commencing or prosecuting all claim s (including "Unknown Claims" as defined in California Civil Code Section 1542), demands, rights, liabilities, and causes of action of every nature and description whatsoever, known o r -4- unknown, whether or not concealed or hidden, asserted or that might have been asserted, including, without limitation, claims for negligent misrepresentation, fraud, violations of any state, federal or foreign statutes, rules or regulations of or by members of the Class as against the Released Parties, arising out of the Class Members' purchases of L&H common stock on the NASDAQ Stock Market or purchases of call options to acquire L&H common stock or sales of put options related to L&H common stock on any United States-based options exchange during the Class Period that have been or could have been asserted in any forum directly by the Class Members against the Released Parties except claims relating to the enforcement of the settlement of the Action (the "Settled Claims"). "Released Parties" means : (i) KPMG LLP, its predecessors, successors and assigns and any current or former partners, principals, directors, officers, employees, attorneys, agents, insurers, co-insurers, and reinsurers of KPMG LLP ; (ii) Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren and all other Belgian legal entities entitled to use the KPMG name, together with their affiliates and predecessors, successors and assigns or any current or former partners, principals, directors, officers, employees, attorneys, agents, insurers, co-insurers, and reinsurers of KPMG Belgium and such other Belgian legal entities and affiliates; (iii) KPMG International and all KPMG International member firms ; and (iv) Paul Behets . It is understood that no named defendant in this Action or in the Dexia Action other tha n the KPMG Defendants constitutes a Released Party within the meaning of this Order . The Settled Claims are hereby compromised, settled, released, discharged and dismissed as against the Released Parties on the merits and with prejudice by virtue of the proceedings herein and this Order and Final Judgment. 8 . The KPMG Defendants and the successors and assigns of any of them, are hereb y -5- permanently barred and enjoined from instituting, commencing or prosecuting, either directly or in any other capacity, any and all claims, rights or causes of action or liabilities whatsoever, whether based on federal, state, local, statutory or common law or any other law, rule or regulation, including both known claims and Unknown Claims, that have been or could have been asserted in the Action or any forum by the KPMG Defendants or any of them or the successors and assigns of any of them against any of the Lead Plaintiffs, MM Holdings, Inc .