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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
IN RE GENERAL MOTORS ERISA : Civil Action No. 05-71085 LITIGATION : Honorable Nancy G. Edmunds : :
PLAINTIFFS’ MOTION FOR ORDER PRELIMINARILY APPROVING SETTLEMENT
STEVE W. BERMAN ANDREW M. VOLK Hagens Berman Sobol Shapiro 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 Telephone: (206) 623-7292
DAVID R. SCOTT Scott + Scott, LLC 108 Norwich Avenue P.O. Box 192 Colchester, CT 06415 Telephone: (860) 537-5537 -and- GEOFFREY M. JOHNSON Scott + Scott, LLC 33 River Street Chagrin Falls, OH 44022 Telephone: (440) 247-8200
Co-Lead Counsel for Plaintiffs
ELWOOD S. SIMON (P20499) JOHN P. ZUCCARINI (P41646) Elwood S. Simon & Associates, P.C. 355 South Old Woodward Avenue, Ste. 250 Birmingham, MI 48009 Telephone: (248) 646-9730
Liaison Counsel for Plaintiffs
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1. Pursuant to Federal Rule of Civil Procedure 23, Named Plaintiffs Al Balnius,
Michael Birmingham, Jerry L. Canter, Bryan Moore, Jerry Don Fowle and William LaPrad, request that the Court approve the Class Action Settlement Agreement (the “Settlement
Agreement”) (attached as Exhibit 1 to the memorandum in support of this motion).1
2. Attached as Exhibit 2 to the memorandum is a proposed Order Preliminarily
Approving Settlement2 which would:
a. Preliminarily approve the proposed Settlement;
b. Preliminarily certify the proposed Settlement Class;
c. Approve the form and method of disseminating Notice of the Settlement
to the Settlement Class consisting of (i) the mailing of a long-form Notice
to members of the Settlement Class (attached to the memorandum in
support of this motion as Exhibit 3); and (ii) a short-form Publication
Notice (attached to the memorandum in support of motion as Exhibit 4) to
be published in the USA Today (national edition) and the Detroit Free
Press); and
d. Set a date and time for a Fairness Hearing on the proposed Settlement, and
certain dates in advance of that Fairness Hearing as follows: (i) a deadline
for the Settling Parties to substantially accomplish Notice to Settlement
Class Members by mailing of the Notice and publication of the
Publication Notice at least 60 days prior to the Fairness Hearing (ii) a
deadline of 20 days prior to the Fairness Hearing for Settlement Class
1 Capitalized terms not otherwise defined in this Motion shall have the same meaning as ascribed to them in the Settlement Agreement filed herewith. 2 The proposed Order differs slightly from the proposed Order attached as Exhibit A to the Settlement Agreement.
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Members to object to the proposed Settlement, the proposed Plan of
Allocation, requests for Service Awards for the Named Plaintiffs, and the
application for an award of attorneys’ fees and costs by Class Counsel;
and (iii) a deadline of ten (10) business days prior to the Fairness Hearing
for Named Plaintiffs to file a motion for final approval of the proposed
settlement, and their application for Service Awards for the Named
Plaintiffs and Class Counsel’s application for an award of attorneys’ fees
and costs.
3. This motion is fully supported by the accompanying brief and its exhibits.
4. Pursuant to L.R. 7.1(1)(2)(B), Defendants’ counsel consent to the relief sought in this motion.
DATED: January 15, 2008 Respectfully Submitted,
By: s/ Andrew M. Volk HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 Email: [email protected]
SCOTT + SCOTT, LLC DAVID R. SCOTT 108 Norwich Avenue P.O. Box 192 Colchester, CT 06415 Telephone: (860) 537-5537 Facsimile: (860) 537-4432
-and-
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SCOTT + SCOTT, LLC GEOFFREY M. JOHNSON 33 River Street Chagrin Falls, OH 44022 Telephone: (440) 247-8200 Facsimile: (440) 247-8275
Co-Lead Counsel for Plaintiffs
ELWOOD S. SIMON & ASSOCIATES, P.C. ELWOOD S. SIMON (P20499) JOHN P. ZUCCARINI (P41646) 355 South Old Woodward Avenue, Ste. 250 Birmingham, MI 48009 Telephone: (248) 646-9730
Liaison Counsel for Plaintiffs
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
IN RE GENERAL MOTORS ERISA : Civil Action No. 05-71085 LITIGATION : Honorable Nancy G. Edmunds : :
MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER PRELIMINARILY APPROVING SETTLEMENT
STEVE W. BERMAN ANDREW M. VOLK Hagens Berman Sobol Shapiro 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 Telephone: (206) 623-7292
DAVID R. SCOTT Scott + Scott, LLC 108 Norwich Avenue P.O. Box 192 Colchester, CT 06415 Telephone: (860) 537-5537 -and- GEOFFREY M. JOHNSON Scott + Scott, LLC 33 River Street Chagrin Falls, OH 44022 Telephone: (440) 247-8200
Co-Lead Counsel for Plaintiffs
ELWOOD S. SIMON (P20499) JOHN P. ZUCCARINI (P41646) Elwood S. Simon & Associates, P.C. 355 South Old Woodward Avenue, Ste. 250 Birmingham, MI 48009 Telephone: (248) 646-9730
Liaison Counsel for Plaintiffs
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CONCISE STATEMENT OF ISSUES PRESENTED
1. Should the Court preliminarily approve the Settlement set forth in the Class Action Settlement Agreement dated December 17, 2007?
2. Should the Court preliminarily certify a Settlement Class?
3. Should the Court approve the proposed form and method of Notice to the Settlement Class?
4. Should the Court schedule a Fairness Hearing and set related deadlines?
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CONTROLLING OR MOST APPROPRIATE AUTHORITY
In re CMS Energy ERISA Litig., 225 F.R.D. 539 (E.D. Mich. 2004)
Rankin v. Rots, 220 F.R.D. 511 (E.D. Mich. 2004)
Rankin v. Rots, No. 02-71045, 2006 U.S. Dist. Lexis 45706 (E.D. Mich. June 28, 2006)
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TABLE OF CONTENTS
Page I. INTRODUCTION ...... 1
II. FACTUAL BACKGROUND RELEVANT TO APPROVAL ...... 1
A. Procedural History...... 1
B. The Settlement Provisions ...... 3
1. Settling Defendants...... 3
2. GM Plans Affected...... 3
3. Settlement Fund...... 3
4. Structural Changes...... 4
5. Settlement Class...... 4
6. Released Claims...... 5
7. Plan of Allocation...... 5
8. Notice...... 5
III. THE PROPOSED SETTLEMENT SHOULD BE PRELIMINARILY APPROVED...... 6
A. The Settlement Is Well Within the Range of Possible Approval...... 6
B. A Preview of the Criteria for Final Approval Demonstrates That Preliminary Approval Should Be Granted...... 7
1. The Likelihood of Success on the Merits Weighed Against the Amount and Form of the Relief Offered in the Settlement ...... 9
2. The Risks, Expense, and Delay of Continued Litigation...... 10
3. The Judgment of Experienced Counsel and the Amount and Character of Discovery ...... 11
4. The Settlement Is Fair to Unnamed Class Members ...... 12
5. The Settlement Is the Product of Arm’s-Length Negotiations ...... 13
6. The Settlement Is Consistent with the Public Interest ...... 13
C. This Court Should Preliminary Certify the Proposed Settlement Class ...... 14
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1. Rule 23(a)(1) – Numerosity...... 15
2. Rule 23(a)(2) – Commonality...... 15
3. Rule 23(a)(3) – Typicality ...... 16
4. Rule 23(a)(4) – Adequacy of Representation, and Rule 23(g)(1)(B)-(C)...... 17
5. The Requirements of Rule 23(b)(1) Are Met ...... 18
D. The Proposed Notice to the Class Satisfies Rule 23 and the Requirements of Due Process ...... 20
E. Proposed Schedule For Final Approval ...... 21
IV. CONCLUSION...... 22
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TABLE OF AUTHORITIES
CASES Page Amchem Prods. v. Windsor, 521 U.S. 591 (1997)...... 14
In re American Med. Sys., 75 F.3d 1069 (6th Cir. 1996) ...... 15, 16, 17
Atwood v. Burlington Indus. Equity, Inc., 164 F.R.D. 177 (M.D.N.C. 1995) ...... 15
Berry v. School Dist. of Benton Harbor, 184 F.R.D. 93 (W.D. Mich. 1998)...... 6, 8
Bublitz v. E.I. duPont de Nemours & Co., 202 F.R.D. 251 (S.D. Iowa 2001)...... 14
In re CMS Energy ERISA Litig., 225 F.R.D. 539 (E.D. Mich. 2004) ...... 14, 16, 18
In re Cardizem CD Antitrust Litig., 218 F.R.D. 508 (E.D. Mich. 2003) ...... 8, 9, 10, 11, 13
Carson v. Am. Brands, Inc., 450 U.S. 79 (1981)...... 8
Cross v. National Trust Life Ins. Co., 553 F.2d 1026 (6th Cir. 1977) ...... 17
DiFelice v. US Airways, Inc., 436 F. Supp. 2d 756 (E.D. Va. 2006), aff'd, 497 F.3d 410 (4th Cir. 2007) ...... 10
In re Enron Corp. Sec. Derivative & “ERISA” Litig., 2006 U.S. Dist. Lexis 43146 (S.D. Tex. June 5, 2006)...... 18
Furstenau v. AT&T Corp., 2004 U.S. Dist. Lexis 27042 (D.N.J. Sept. 2, 2004)...... 14
In re GM ERISA Litig., 2006 U.S. Dist. Lexis 16782 (E.D. Mich. Apr. 6, 2006) ...... 2
In re GM ERISA Litig., 2007 U.S. Dist. Lexis 63209 (E.D. Mich. Aug. 28, 2007)...... 2
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Gardner v. Lafarge Corp., 2007 U.S. Dist. Lexis 42536 (E.D. Mich. June 12, 2007) ...... 8
In re Global Crossing Sec. & ERISA Litig., 225 F.R.D. 436 (S.D.N.Y. 2004) ...... 14
Gruby v. Brady, 838 F. Supp. 820 (S.D.N.Y. 1993)...... 19
In re IKON Office Solutions, Inc. Sec. Litig., 191 F.R.D. 457 (E.D. Pa. 2000)...... 14, 19
Koch v. Dwyer, 2001 U.S. Dist. Lexis 4085 (S.D.N.Y. Mar. 23, 2001)...... 19
Kolar v. Rite Aid Corp., 2003 U.S. Dist. Lexis 3646 (E.D. Pa. Mar. 11, 2003) ...... 19
Kuper v. Iovenko, 66 F.3d 1447 (6th Cir. 1995) ...... 10
Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134 (1985)...... 19
Moore v. Simpson, 1997 U.S. Dist. Lexis 13791 (N.D. Ill. Sept. 5, 1997)...... 14
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950)...... 20
Nelson v. IPALCO Enters., Inc., 480 F. Supp. 2d 1061 (S.D. Ind. 2007), aff'd, 2008 U.S. App. Lexis 2 (7th Cir. Jan. 2, 2008) ...... 10
Rankin v. Rots, 220 F.R.D. 511 (E.D. Mich. 2004) ...... 14, 16, 17, 18
Rankin v. Rots, 2006 U.S. Dist. Lexis 45706 (E.D. Mich. June 28, 2006) ...... 8, 9
Reed v. Rhodes, 869 F. Supp. 1274 (N.D. Ohio 1994)...... 20
Rogers v. Baxter Int'l, Inc., 2006 U.S. Dist. Lexis 12926 (N.D. Ill. Mar. 22, 2006) ...... 18
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Senter v. GMC, 532 F.2d 511 (6th Cir. 1976) ...... 16
Swody v. Harrah's New Orleans Mgmt. Co., 1996 U.S. Dist. Lexis 5512 (E.D. La. Apr. 22, 1996) ...... 15
In re Telectronics Pacing Sys., Inc., 137 F. Supp. 2d 985 (S.D. Ohio 2001) ...... 6, 7, 10, 13
Thomas v. SmithKline Beecham Corp., 201 F.R.D. 386 (E.D. Pa. 2001)...... 14
In re Tyco Int'l, Ltd., 2006 U.S. Dist. Lexis 58278 (D.N.H. Aug. 15, 2006)...... 14
Weinberger v. Kendrick., 698 F.2d 61 (2d Cir. 1982)...... 20
White v. Sundstrand Corp., 1999 U.S. Dist. Lexis 15091 (N.D. Ill. Sept. 30, 1999)...... 14
Williams v. Vukovich, 720 F.2d 909 (6th Cir. 1983) ...... 12, 21
In re WorldCom, Inc., ERISA Litig., 2004 U.S. Dist. Lexis 19786 (S.D.N.Y. Oct. 13, 2004)...... 16, 19
STATUTES
29 U.S.C. § 1109(a) ...... 19
29 U.S.C. § 1132(a)(2)...... 17, 19
29 U.S.C. § 1104(a)(2)...... 14
MISCELLANEOUS
MANUAL FOR COMPLEX LITIGATION (THIRD) § 30.41 (1995)...... 6
4 HERBERT NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS § 11.41 (4th ed. 2002) ...... 8
3 HERBERT NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS § 8.34 (4th ed. 2002) ...... 21
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I. INTRODUCTION
Plaintiffs respectfully move this Court for preliminary approval of the Class Action
Settlement Agreement attached as Exhibit 1 to this memorandum. Under the Settlement, the
Settling Defendants will create a $37.5 million Settlement Fund. In addition, the Settlement
Class Members will benefit from valuable Structural Relief and the provision of financial
planning services. The Settlement was reached after vigorous motion practice and two orders on
motions to dismiss from this Court, and Class Counsel’s review of nearly a million pages of
documents covering all of the core issues in this case. With the issues in the case thus framed,
the parties engaged in arms-length negotiations, and two day-long mediation sessions.
Ultimately, the Settlement was reached with the assistance of the Honorable Layne R. Phillips.
The Settlement will provide significant benefits to the Settlement Class, while removing the risk
and delay associated with further litigation. The proposed Settlement is an excellent result for
the Settlement Class, and the Named Plaintiffs and Class Counsel respectfully request that this
Court grant Preliminary Approval.
II. FACTUAL BACKGROUND RELEVANT TO APPROVAL
A. Procedural History
The terms of the Settlement Agreement were reached after several years of hard-fought
litigation and only after extensive negotiation and thorough investigation by experienced
counsel. It was made with the benefit of two decisions on motions to dismiss by this Court, and
Plaintiffs’ review of extensive document productions by Defendants. The parties were fully
aware of the issues and risks associated with their respective claims and defenses. The
Settlement Agreement is the result of arm’s-length and often difficult negotiations that spanned
many months.
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The original complaints in this case were filed in March of 2005. On May 10, 2005, this
Court entered an Order consolidating the complaints. Then, on May 13, 2005, the Court entered
Pretrial Order No. 1, appointing co-lead and liaison counsel, and ordering Plaintiffs to file a
Consolidated Complaint. On June 24, 2005, Plaintiffs filed their Consolidated Class Action
Complaint For Violations Of The Employee Retirement Income Security Act (“Complaint”).
The Complaint named as Defendants all known fiduciaries of the Savings Plan and the Hourly
Plan.3
All Defendants moved to dismiss. After lengthy briefing and oral argument, the Court (i)
upheld Plaintiffs’ claims against the GM Defendants in large part; (ii) granted Plaintiffs leave to
amend with respect to the one claim it did not uphold – that Defendants “made material
misrepresentations” and “conveyed inaccurate information” to Plan participants; and (iii) granted
State Street’s motion to dismiss.4 See In re GM ERISA Litig., 2006 U.S. Dist. Lexis 16782 (E.D.
Mich. Apr. 6, 2006).
Plaintiffs filed their First Amended Consolidated Complaint on July 19, 2006. On
August 28, 2007, the Court ruled on Defendants’ Second Motion to Dismiss, and again denied it
in large part. However, the Court granted defendant GMIMCo’s motion to dismiss. See In re
GM ERISA Litig., 2007 U.S. Dist. Lexis 63209 (E.D. Mich. Aug. 28, 2007).
Plaintiffs have reviewed nearly one million pages of documents obtained from defendants
through vigorously contested discovery. In particular, Plaintiffs have reviewed relevant
3 The defendants included the General Motors Corporation, The Investment Funds Committee of the Corporation’s Board of Directors and its members, General Motors Investment Management Corporation (“GMIMCo.”), State Street Bank and Trust Company (“State Street”), the members of the Employee Benefits Committee of General Motors Corporation, and the CEO of the General Motors Corporation, Richard Wagoner, Jr. All of the defendants apart from State Street are referred to collectively as the “Settling Defendants” or simply the “Defendants” 4 The Court subsequently entered final judgment with respect to State Street pursuant to Fed. R. Civ. P. 54(b), and Plaintiffs chose not to appeal that decision. Accordingly, State Street is no longer a party to this action, and, in fact, is not named in Plaintiffs’ First Amended Consolidated Complaint.
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documents in connection with all the core issues in this case, including: (i) Plan documents, and
all communications with Plan participants; (ii) the meeting minutes of all relevant fiduciary bodies; (iii) documents produced by GM relating to the SEC investigations of GM and Delphi concerning GM’s guarantee of employee and retiree benefits for employees of Delphi, and the question of whether GM accounted properly for “Supplier Credits” during the years 2000-2004;
and (iv) thousands of documents concerning GM’s accounting for its pension and health care
liabilities. Class Counsel were therefore in a solid position to assess the strengths and
weaknesses of their case before agreeing on the terms of the proposed Settlement.
Thus the Settlement was only attained after substantial litigation, mediation, hard-fought negotiations, and considerable investigation.
B. The Settlement Provisions
The terms of the Settlement are embodied in the terms of the Settlement Agreement attached as Exhibit 1 hereto. The most important terms of the Settlement are summarized below.
1. Settling Defendants.
The Settling Defendants are the General Motors Corporation and all Defendants named in the current Complaint.
2. GM Plans Affected.
The GM Plans covered by the Settlement are the General Motors Savings-Stock Purchase
Program for Salaried Employees (“S-SPP” or “Salaried Plan”) and the General Motors Personal
Savings Plan for Hourly Rate Employees (“PSP” or “Hourly Plan”).
3. Settlement Fund.
The Class Settlement Amount is $37.5 million dollars, in cash.
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4. Structural Changes.
In addition to the Class Settlement Amount, Settlement Class Members will also benefit
from significant structural changes that have been made as a result of this litigation and which
GM will keep in place for a period of at least four years as a result of this Settlement. In
particular, pursuant to this Settlement, GM has agreed that: (1) it will retain an independent
fiduciary to continually monitor the prudence of offering the Company Stock Fund as an
investment in the Plans; (2) it will not require participants to invest contributions in Company
Stock; (3) it will not impose a Required Retention Period on investments in Company Stock; (4)
it will not make matching contributions in the form of Company Stock; (5) it will maintain
upgraded communications to the Plans’ participants; (6) it will make available to all Plan
participants free of charge the use of a Savings Plan portfolio tool for a period of one year that
will enable Plan participants to model various retirement scenarios based upon the investment
risk profile they select; and (7) it will make available to all Plan participants one year of
participation in the “Money in Motion” financial advisory program from the Ayco Company at a
reduced cost of $30 (currently, the “Money in Motion” program is only offered to Salaried Plan participants and at a cost of $200; thus the “Money in Motion” program represents a hard-cash value of $170 to each Plan participant who chooses to take advantage of it).
5. Settlement Class.
The Settlement Agreement contemplates that the Court will certify the following
Settlement Class pursuant to Fed. R. Civ. P. 23(b)(1):
All persons who were participants or beneficiaries of the Plans at any time between March 18, 1999 and May 26, 2006, inclusive, who bring claims for breach of fiduciary and co-fiduciary duty under ERISA. Defendants and their heirs, successors in interest, or assigns, to the extent such persons acquire an interest held by Defendants, are excluded from the Settlement Class.
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6. Released Claims.
The claims of the Settlement Class released under the Settlement Agreement are generally claims in connection with Company Stock held in the Plans which were or could have been asserted in the Complaint. Settlement Agreement, § 4.2. The Settlement and dismissal of the ERISA action would not release, bar or waive any claims that are brought in the General
Motors Corp. Securities litigation currently pending in In re General Motors Corp. Sec. Litig.,
MDL No. 1749, Master Case No. 06-md-1749 (2:06-cv-12258-GER; 2:06-cv-12259-GER (E.D.
Mich.)), or in other ERISA litigation currently pending against some of the Defendants in Young v. General Motors Inv. Mgmt. Corp., Case No. 07 Civ. 1994 (BSJ) (S.D.N.Y.); and Brewer v.
General Motors Inv. Mgmt. Corp. et al., Case No. 07-cv-02928 (BSJ) (S.D.N.Y.). Settlement
Agreement § 4.4.
7. Plan of Allocation.
The proposed Plan of Allocation appears as Exhibit C to the Settlement Agreement.
Under the Plan of Allocation, subject to Court approval and after payment of Court-approved attorneys’ fees, costs and Service Awards for the Named Plaintiffs, the Net Settlement Amount will be allocated amongst Class Members in proportion to the losses suffered by each Plan participant’s investment in Company Stock during the Class Period.
8. Notice
The proposed Preliminary Approval Order filed herewith as Exhibit 2 provides for the following notices: (1) a Mailed Notice, attached as Exhibit 3 to this memorandum, to be mailed to the last known address of all Settlement Class Members, and to be published on a website maintained by the Notice administrator; and (2) a short form Publication Notice (Exhibit 4 to this memorandum) to be published in the USA Today (national edition) and the Detroit Free Press.
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III. THE PROPOSED SETTLEMENT SHOULD BE PRELIMINARILY APPROVED
A. The Settlement Is Well Within the Range of Possible Approval
The dismissal or compromise of any class action requires the Court’s approval. Fed. R.
Civ. P. 23(e)(1)(A). Approval of a proposed class-action settlement is a three-step process: (1)
the court must preliminarily approve the proposed settlement; (2) members of the class must be
given notice of the proposed settlement; and (3) a final hearing must be held, after which the
court must decide whether the proposed settlement is fair, reasonable and adequate. See
MANUAL FOR COMPLEX LITIGATION (THIRD) § 30.41, at 236 (1995). See also, e.g., In re
Telectronics Pacing Sys., Inc., 137 F. Supp. 2d 985, 1026 (S.D. Ohio 2001) (citing Williams v.
Vukovich, 720 F.2d 909, 921 (6th Cir. 1983)).
The primary question raised by a request for preliminary approval is whether the proposed settlement is “within the range of possible approval.” See MANUAL FOR COMPLEX
LITIGATION (THIRD) § 30.41, at 237. In other words, “the Court first must determine whether the
proposed settlement is potentially approvable.” Berry v. School Dist. of Benton Harbor, 184
F.R.D. 93, 97 (W.D. Mich. 1998). The purpose of this review is to “ascertain whether there is any reason to notify the class members of the proposed settlement and to proceed with a fairness hearing.” Id. A district court “bases its preliminary approval of a proposed settlement upon its familiarity with the issues and evidence of the case as well as the arms-length nature of the negotiations prior to the settlement.” Telectronics, 137 F. Supp. 2d at 1026. “If the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or
segments of the class, and falls with[in] the range of possible approval, then the Court should
direct that notice be given to the class members of a formal fairness hearing, at which evidence
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may be presented in support of and in opposition to the settlement.” Id. at 1015 (quoting
MANUAL FOR COMPLEX LITIGATION § 30.44 (2d ed. 1985)).
Here, the parties engaged in extensive arm’s-length negotiations, including a face to face
meeting without a mediator, and two separate day-long mediations, and the proposed Settlement
Class was represented by experienced counsel. The resulting Settlement, if approved, will
ensure a substantial and prompt payment to Settlement Class Members in proportion to the
amounts lost as a result of their Plan investments in Company Stock. Just as important, the
Settlement provides for valuable structural relief which will both protect Plan participants from
catastrophic losses in the future and help ensure a greater degree of diversification of Plan
holdings. Gone is any match in Company Stock, and any resultant pressure on employees to
overweight their holdings in Company Stock. In place is an independent fiduciary with the express duty to monitor the ongoing prudence of allowing Plan assets to be invested in Company
Stock. All Plan participants will receive upgraded communications regarding their Plan
investments, and all will be offered the ability to obtain personalized investment counseling from
Ayco for a $30 co-pay. In short, the proposed Settlement is an excellent result for the Settlement
Class, and warrants preliminary approval.
B. A Preview of the Criteria for Final Approval Demonstrates That Preliminary Approval Should Be Granted
At the preliminary approval stage, this Court need not and should not determine whether
it will ultimately approve the Settlement. However, a preview of the factors this Court must
consider at the final approval stage is useful, and here demonstrates the propriety of a grant of preliminary approval.
Courts consistently favor the settlement of disputed claims. See, e.g., Telectronics, 137
F. Supp. 2d at 1008-09 (“[b]eing a preferred means of dispute resolution, there is a strong
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presumption by courts in favor of settlement”); see also Berry, 184 F.R.D. at 97 (settlements of
class actions are favored). “There is usually an initial presumption of fairness when a proposed
class settlement, which was negotiated at arm’s length by counsel for the class, is presented for
court approval.” 4 HERBERT NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS, § 11.41,
at 90 (4th ed. 2002).
It is axiomatic that, in evaluating a proposed settlement, courts “do not decide the merits
of the case or resolve unsettled legal questions.” Carson v. American Brands, Inc., 450 U.S. 79,
88 n.14 (1981); see also Rankin v. Rots, 2006 U.S. Dist. Lexis 45706, at *9 (E.D. Mich. June 28,
2006) (“The Court will not substitute its business judgment for that of the parties; the only
question … is whether the settlement, taken as a whole, is so unfair on its face as to preclude
judicial approval.”) (internal quotations omitted). Indeed, as Judge Lawson noted in Gardner v.
Lafarge Corp. 2007 U.S. Dist. Lexis 42536, at *14-15 (E.D. Mich. June 12, 2007):
[T]he Court’s role “‘must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.’” Clark Equip. Co. v. Int’l Union, Allied Indus. Workers of Am., AFL-CIO, 803 F.2d 878, 880 (6th Cir. 1986) (quoting Officers for Justice v. Civil Service Commissions, etc., 688 F.2d 615, 625 (9th Cir. 1982)). See also Williams, 720 F.2d at 921 (“The Court has no occasion to determine the merits of the controversy or the factual underpinning of the legal authorities advanced by the parties.”).
As this Court has stated, its role at the final approval stage is to “determine, after holding a
fairness hearing, whether the settlement is fair, adequate, and reasonable, as well as consistent
with the public interest.” In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 522 (E.D. Mich.
2003) (quoting Bailey v. Great Lakes Canning, Inc., 908 F.2d 38, 42 (6th Cir. 1990)).
In making the ultimate determination as to whether a settlement is fair, adequate, reasonable and consistent with the public interest, this Court will consider the following factors:
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(a) the likelihood of success on the merits weighed against the amount and form of the relief offered in the settlement; (b) the risks, expense, and delay of further litigation; (c) the judgment of experienced counsel who have competently evaluated the strength of their proofs; (d) the amount of discovery completed and the character of the evidence uncovered; (e) whether the settlement is fair to the unnamed class members; (f) objections raised by class members; (g) whether the settlement is the product of arm's length negotiations as opposed to collusive bargaining; and (h) whether the settlement is consistent with the public interest. See Granada Invs., Inc. v. DWG Corp., 962 F.2d 1203, 1205 (6th Cir. 1992); Williams v. Vukovich, 720 F.2d 909, 922-23 (6th Cir. 1983); Kogan v. AIMCO Fox Chase, L.P., 193 F.R.D. 496, 501-02 (E.D. Mich. 2000); Steiner v. Fruehauf Corp., 121 F.R.D. 304, 305-06 (E.D. Mich. 1988).
In re Cardizem CD Antitrust Litig., 218 F.R.D. at 522; accord, Rankin v. Rots, 2006 U.S. Dist.
Lexis 45706, at *9-10.
1. The Likelihood of Success on the Merits Weighed Against the Amount and Form of the Relief Offered in the Settlement
Having survived two separate sets of motions to dismiss filed by the core Defendants,
Plaintiffs believe that their claims are meritorious. They also believe that the evidence supports their claims under the standards outlined by this Court and other courts considering similar claims alleging breaches of fiduciary duty under ERISA. Not surprisingly, however, Defendants took a different view of the impact of this Court’s ruling, and forcefully advocated their views.
In the absence of Settlement, Defendants would have continued to vigorously contest the factual and legal issues in this case at the summary judgment stage and through trial and appeal if necessary. Plaintiffs therefore must acknowledge the risk that Defendants could prevail on certain legal or factual issues, which could reduce or eliminate the Class’ potential recovery.
The inherent risk in any litigation is even greater in an ERISA class action. The law of
ERISA claims on behalf of 401(k) Plan participants is complex, rapidly developing, and uncertain. There have been few trials of breach of fiduciary duty claims, and the reported
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decisions on summary judgments and after trial illustrate the burdens Plaintiffs would have faced. See, e.g., Kuper v. Iovenko, 66 F.3d 1447 (6th Cir. 1995); Nelson v. IPALCO Enters.,
Inc., 480 F. Supp. 2d 1061 (S.D. Ind. 2007), aff’d, 2008 U.S. App. Lexis 2 (7th Cir. Jan. 2,
2008); DiFelice v. US Airways, Inc., 436 F. Supp. 2d 756 (E.D. Va. 2006), aff’d, 497 F.3d 410
(4th Cir. 2007).
Accordingly, success after trial was far from certain in this case. Further, while the amount of the proposed Settlement is fixed at a substantial sum of cash ($37.5 million) together with highly valuable structural relief, the amount Plaintiffs might recover if successful is not – and must be discounted by the risk of taking nothing.
2. The Risks, Expense, and Delay of Continued Litigation
“Settlements should represent ‘a compromise which has been reached after the risks, expense and delay of further litigation have been assessed.’” Cardizem, 218 F.R.D. at 523
(quoting Williams, 720 F.2d at 922). “[T]he prospect of a trial necessarily involves the risk that
Plaintiffs would obtain little or no recovery.” Id. These risks are particularly pronounced with respect to class actions, which are “inherently complex.” Telectronics, 137 F. Supp. 2d at 1013.
“[S]ettlement avoids the costs, delays, and multitude of other problems associated with” class actions. Id.
Litigating this case to a resolution on the merits would be a massive undertaking, and would entail enormous expense and delay. As in Cardizem:
Although significant discovery has already taken place, substantial additional effort and expense would be required to prepare this matter for trial. This would include (1) completion of fact and expert discovery, (2) preparing witnesses, experts and exhibits, and (3) completion of pre-trial motion practice, including probable motions for summary judgment.
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218 F.R.D. at 525. Were this case to proceed to judgment on the merits, both sides would retain
experts in numerous areas – including, e.g., accounting, health care and pension costs, fiduciary
responsibility and damages. In addition, the huge volume of documents and the complexity of
the underlying factual issues would necessitate the presentation of large numbers of fact
witnesses and exhibits at trial. In short, the burdens on the parties and the Court would be
mammoth in the absence of a Settlement.
In addition to expense, the resolution of Plaintiffs’ claims on the merits poses risk to
Plaintiffs. Again, the law in this area is rapidly evolving, with new opinions being issued almost
weekly. Even after this Court’s rulings on Defendants’ two motions to dismiss, the parties
themselves disagree about what the Plaintiffs would need to prove in order to prevail on their claims. Plaintiffs fully expect that Defendants would continue to vigorously defend against their allegations, fighting them every step of the way through the remainder of discovery, on the merits at trial, and through a post-trial appeal. The Settlement eliminates that delay and, if approved, will advance the recovery to the Settlement Class by a number of years.
Hence, “the certain and immediate benefits to the Class represented by the Settlement outweigh the possibility of obtaining a better result at trial, particularly when factoring in the additional expense and long delay inherent in prosecuting this complex litigation through trial and appeal.” Cardizem, 218 F.R.D. at 525.
3. The Judgment of Experienced Counsel and the Amount and Character of Discovery
In deciding whether to approve a proposed settlement, “the Court also considers the opinion of experienced counsel as to the merits of the settlement.” Id. Indeed,
[T]he court should defer to the judgment of experienced counsel who has competently evaluated the strength of his proofs. Significantly, however, the deference afforded counsel should
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correspond to the amount of discovery completed and the character of the evidence uncovered.
Williams v. Vukovich, 720 F.2d 909, 922-23 (6th Cir. 1983) (internal citations omitted).
Here, Class Counsel has extensive experience in handling class action ERISA cases and other complex litigation. Hagens Berman Sobol Shapiro has served or is serving as lead or co- lead counsel in several ERISA class action cases, including In re Enron Corp. ERISA Litig., In re
Touch Am. ERISA Litig., Summers v. UAL Corp. ESOP Committee, and Nelson v. IPALCO
Enters., Inc. Scott and Scott has also served as lead or co-lead counsel in In re Royal
Dutch/Shell Petroleum ERISA Litig., and Shirk, et. al. v. Fifth Third Bancorp, et. al. Both firms have also served as co-lead or lead counsel in numerous other class actions across the country.
See Exhibits 5 and 6 (firm résumés).
The investigation, extensive document review, briefing on the motions to dismiss and the lengthy negotiation process have enabled Class Counsel to thoroughly assess the strengths and weaknesses of the ERISA claims. Based on that assessment, Class Counsel strongly believe that the proposed Settlement is fair, reasonable, and in the best interest of the Plans and the
Settlement Class.
4. The Settlement Is Fair to Unnamed Class Members
The Settlement provides for significant relief, both monetary and structural. The monetary component will be equitably allocated to Settlement Class Members after the deduction of Court-approved fees and costs, and will be based upon the amount of the Settlement
Class Members’ losses. In addition, the structural relief will benefit all of the Plans’ participants, and financial planning services will be made available to all. Accordingly, Plaintiffs submit that the Settlement is fair to unnamed Settlement Class Members.
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Of course, the Court cannot assess any objections by absent Settlement Class Members
until a Fairness Hearing has occurred.
5. The Settlement Is the Product of Arm’s-Length Negotiations
Absent evidence to the contrary, the Court should presume that settlement negotiations
were conducted in good faith and that the resulting agreement was reached without collusion.
Telectronics, 137 F. Supp. 2d at 1016 (“‘Courts respect the integrity of counsel and presume the
absence of fraud or collusion in negotiating the settlement, unless evidence to the contrary is
offered.’”) (quoting HERBERT NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS § 11.51
(3d ed. 1992)).
Here, the evidence is consistent with the presumption. Settlement discussions were
contentious and spanned the course of many months. When the first mediation was unsuccessful, Defendants proceeded to argue their second motion to dismiss. The case was only settled after two and one-half years of litigation, extensive discovery, and a second mediation
before an experienced mediator and retired federal judge. Under the circumstances, this Court
should find that the Settlement was negotiated at arm’s length, and that this factor weighs in
favor of approval.
6. The Settlement Is Consistent with the Public Interest
“[T]here is a strong public interest in encouraging settlement of complex litigation and
class action suits because they are ‘notoriously difficult and unpredictable’ and settlement
conserves judicial resources.” Cardizem, 218 F.R.D. at 530 (quoting Granada Inv., Inc. v. DWG
Corp., 962 F.2d 1203, 1205 (6th Cir. 1992)). Here, there is no reason to deviate from the strong public interest in favor of this class action Settlement which provides significant monetary and non-monetary relief to the Class.
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Accordingly, all of the factors which this Court must ultimately weigh at the Fairness
Hearing counsel strongly in favor of the preliminary approval of the proposed Settlement.
C. This Court Should Preliminary Certify the Proposed Settlement Class
Class certification is governed by Fed. R. Civ. P. 23, regardless of whether certification is
sought pursuant to a contested motion or, as here, pursuant to a settlement. See Amchem Prods.
v. Windsor, 521 U.S. 591, 619-29 (1997). Accordingly, in order to effectuate the proposed
Settlement, Plaintiffs seek preliminary certification of the following Class:
All persons who were participants or beneficiaries of the Plans at any time between March 18, 1999 and May 26, 2006, inclusive, who bring claims for breach of fiduciary and co-fiduciary duty under ERISA. Defendants and their heirs, successors in interest, or assigns, to the extent such persons acquire an interest held by Defendants, are excluded from the Settlement Class.
Plaintiffs brought this litigation seeking relief on behalf of the Plans and their participants for
claims based on Defendants’ alleged breaches of their fiduciary duties. Plaintiffs’ Plan-wide
claims for breach of fiduciary duty under the Employee Retirement Income Security Act of 1974
(“ERISA”) § 404(a) (29 U.S.C. § 1104(a)(2)) are well-suited for certification. Time and again,
courts have certified similar ERISA claims for breach of fiduciary duty for class treatment. See,
e.g., In re CMS Energy ERISA Litig., 225 F.R.D. 539 (E.D. Mich. 2004) (certifying claims for
breach of fiduciary duty under Rule 23(b)1)); Rankin v. Rots, 220 F.R.D. 511 (E.D. Mich. 2004)
(same).5 As the court cogently reasoned in White v. Sundstrand Corp., 1999 U.S. Dist. Lexis
15091, at *19 (N.D. Ill. Sept. 30, 1999) (citations omitted):
5 See also In re Tyco Int’l, Ltd., 2006 U.S. Dist. Lexis 58278 (D.N.H. Aug. 15, 2006) (certifying ERISA breach of fiduciary duty claims under Rule 23(b)(1)); Furstenau v. AT&T Corp., 2004 U.S. Dist. Lexis 27042, at *14 (D.N.J. Sept. 2, 2004) (certifying breach of fiduciary duty claims under Rule 23(b)(1) “where success necessarily results in plan-wide relief and failure to prove breach of fiduciary duty would necessarily preclude actions by other plan participants”); In re Global Crossing Sec. & ERISA Litig., 225 F.R.D. 436 (S.D.N.Y. 2004) (finding Rule 23(b)(1) certification appropriate for settlement class); Bublitz v. E.I. duPont de Nemours & Co., 202 F.R.D. 251, 259 (S.D. Iowa 2001); Thomas v. SmithKline Beecham Corp., 201 F.R.D. 386, 397-98 (E.D. Pa. 2001); Moore v. Simpson, 1997 U.S. Dist. Lexis 13791 (N.D. Ill. Sept. 5, 1997); In re IKON Office Solutions, Inc. Sec.
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[T]he only relief available for violations of breach of fiduciary duty under 29 U.S.C. § 1109 is relief on behalf of the plan…. This is because under section 1109, a plan participant or beneficiary may bring an action to remedy a breach of fiduciary duty only in a representative capacity, for which no individual relief is available…. Thus, a breach of fiduciary duty claim is properly pursued as a class action. Stanek v. AT & T, 1998 U.S. Dist. Lexis 18717, at *13 n.4, No. 96 C 4096 (N.D. Ill. Nov. 24, 1998).
Under Rule 23(a), a proposed class must satisfy four threshold requirements in order to
obtain certification: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of
representation. A proposed class must also satisfy the requirements of one or more of the three
subsections of Rule 23(b). Here, the proposed Class satisfies Rule 23(a)’s prerequisites, and it
also satisfies Rule 23(b)(1).
1. Rule 23(a)(1) – Numerosity
Rule 23(a)(1) permits class treatment where “the class is so numerous that joinder of all
members is impracticable.” Here, according to the Defendants, the Settlement Class includes
approximately 180,000 persons. Numerosity is easily established.
2. Rule 23(a)(2) – Commonality
The proposed Class satisfies Rule 23(a)(2), which requires “questions of law or fact common to the class.” As many courts have recognized, “The commonality test is qualitative rather than quantitative, that is, there need be only a single issue common to all members of the class.” See, e.g., In re American Med. Sys., 75 F.3d 1069, 1080 (6th Cir. 1996).
Common questions of fact and law permeate all of the claims alleged here. These
questions include: (a) Were Defendants fiduciaries in relation to the Plans and the members of the Class? (b) Did Defendants breach their fiduciary duties of prudence and loyalty to Plaintiffs and the members of the Class? (c) Did Defendants violate ERISA? and (d) Did the members of
Litig., 191 F.R.D. 457, 466 (E.D. Pa. 2000); Swody v. Harrah’s New Orleans Mgmt. Co., 1996 U.S. Dist. Lexis 5512 (E.D. La. Apr. 22, 1996); Atwood v. Burlington Indus. Equity, Inc., 164 F.R.D. 177, 179 (M.D.N.C. 1995).
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the Class sustain recoverable damages, and, if so, what is the proper measure of damages?
These common questions of law and fact are sufficient to meet the commonality requirement of
Rule 23(a)(2). See, e.g., In re CMS Energy ERISA Litig., 225 F.R.D. 539, 2004 U.S. Dist. Lexis
26862 at *9-11 (similar common questions sufficient to meet commonality requirement); Rankin
v. Rots, 220 F.R.D. at 517-18 (same); In re WorldCom, Inc., ERISA Litig., 2004 U.S. Dist. Lexis
19786, at *7 (S.D.N.Y. Oct. 13, 2004) (“There are common questions of law and fact including whether Merrill Lynch and the other defendants were ERISA fiduciaries for the Plan and
Predecessor Plans, whether they breached their fiduciary duties, and whether those breaches injured class members.”); Moore v. Simpson, 1997 U.S. Dist. Lexis 13791, at *9-10 (“All of these questions are sufficient to satisfy plaintiffs’ burden under Rule 23(a)(2) because they all address common issues of owed fiduciary responsibility to the plan participants.”).
3. Rule 23(a)(3) – Typicality
Plaintiffs’ claims are also typical of the claims of the Class, as required by Rule 23(a)(3).
“The typicality requirement is met if the plaintiff’s claim ‘arises from the same event or practice or course of conduct that gives rise to the claims of the other class members, and her or his claims are based on the same legal theory.’” Rankin v. Rots, 220 F.R.D. at 518 (quoting Little
Caesar Enters., Inc. v. Smith, 172 F.R.D. 236, 242-43 (E.D. Mich. 1997)); see also American
Med. Sys., 75 F.3d at 1082. Plaintiffs’ claims need not be identical to those of every Class
Member; rather, typicality is satisfied as long as the claims share a common element of fact or law. Senter v. GMC, 532 F.2d 511, 525 n.31 (6th Cir. 1976).
Here, Plaintiffs’ claims are typical of those of all Class Members. As with all of the
Plans’ participants, Plaintiffs’ claims arise from Defendants’ alleged breaches of fiduciary duty – and all seek to recover based upon the very same legal theories that govern all Class Members’ claims. See, e.g., Moore v. Simpson, 1997 U.S. Dist. Lexis 13791, at *11 (typicality met because
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“plaintiffs’ case stems from the defendants’ alleged course of conduct with respect to the Fund, in which all members of the plaintiff class have an interest”); see also Rankin v. Rots, 220 F.R.D. at 519 (ERISA company stock cases are properly certified since “the appropriate focus in a breach of fiduciary duty claim is on the conduct of the defendants”) (quoting In re IKON Office
Solutions, Inc. Sec. Litig., 191 F.R.D. 457, 465 (E.D. Pa. 2000)). Because each Class Member has the same claim arising from the same conduct and seeking the same relief on behalf of the
Plans pursuant to 29 U.S.C. § 1132(a)(2), the typicality requirement of Rule 23(a)(3) is easily satisfied.
4. Rule 23(a)(4) – Adequacy of Representation, and Rule 23(g)(1)(B)-(C)
Rule 23(a)(4) requires that the class representatives “will fairly and adequately protect the interests of the class.” In assessing adequacy the court must answer two questions: (1) Do the representative plaintiffs have common interests with the unnamed class members, and (2) will the representative plaintiffs and their counsel prosecute this action vigorously on behalf of the class? See, e.g., American Med. Sys., 75 F.3d at 1083; Cross v. National Trust Life Ins. Co., 553
F.2d 1026, 1031 (6th Cir. 1977) (adequacy rule tests “the experience and ability of counsel for the plaintiffs and whether there is any antagonism between the interests of the plaintiffs and other members of the class they seek to represent”).
Both prongs of the adequacy requirement are met here. As discussed above, Plaintiffs’ interests are fully aligned with those of absent Class Members, since they bring the same claims for the same remedies under the same legal theories. There is no antagonism between Plaintiffs and the Class Members; all seek to increase the value of the Plans’ holdings.
The second prong of the adequacy requirement is also met, as both Plaintiffs and their counsel have vigorously prosecuted this lawsuit. Plaintiffs have retained local and national firms with extensive experience in ERISA, class actions, and litigation in general. Copies of the
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résumés of the two lead counsels’ law firms are attached as Exhibits 5-6. Plaintiffs’ counsel
have extensive experience in class actions and other complex litigation – including class actions
on behalf of employees, and class actions based on alleged violations of ERISA. See id.
Plaintiffs’ counsel accordingly have sufficient knowledge about the applicable law of both class actions in general and ERISA cases in particular, and have devoted ample resources to this litigation.6
Plaintiffs therefore satisfy the adequacy requirement.
5. The Requirements of Rule 23(b)(1) Are Met
Under Rule 23(b)(1), a class may be certified if:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.
Certifications under both sub-sections of Rule 23(b)(1) are common in ERISA breach of
fiduciary duty cases because of the defendants’ alleged “unitary treatment” of putative class
members. See, e.g., In re Enron Corp. Sec. Derivative & “ERISA” Litig., 2006 U.S. Dist. Lexis
43146, *13-15 (S.D. Tex. June 5, 2006) (certifying ERISA breach of fiduciary duty claims under
Rule 23(b)(1)(A) and (B)); Rogers v. Baxter Int’l, Inc., 2006 U.S. Dist. Lexis 12926 (N.D. Ill.
Mar. 22, 2006) (same); Rankin v. Rots, 220 F.R.D. at 522 (same); see also In re CMS Energy
ERISA Litig., 225 F.R.D. 539, 2004 U.S. Dist. Lexis 26862 at *17-18 (claims similar to those at
issue here “‘as a practical matter’ would ‘be dispositive of the interests of the other members not
6 Plaintiffs have therefore satisfied Rule 23(g)(1)(B) and (C).
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parties to the adjudication”); Kolar v. Rite Aid Corp., 2003 U.S. Dist. Lexis 3646, at *9 (E.D. Pa.
Mar. 11, 2003) (because of ERISA’s distinctive “representative capacity” and remedial
provisions, “ERISA litigation of this nature presents a paradigmatic example of a (b)(1) class”);
In re IKON Office Solutions, Inc. Sec. Litig., 191 F.R.D. at 466 (same); In re WorldCom, Inc.
ERISA Litig., 2004 U.S. Dist. Lexis 19786, at *8 (certifying ERISA claims for breach of
fiduciary duty against ESOP and 401(k) plan trustee Merrill Lynch pursuant to Rule 23(b)(1)(B)
since “[a]ny adjudication with respect to individual members of the class will as a practical
matter be dispositive of the interests of the other members of the class”).7
Because this action seeks remedies arising from breaches of fiduciary duties under
ERISA, the only remedy available to Plan participants is Plan-wide relief, namely, the restoration
of losses to the Plans and their participants. See Mass. Mut. Life Ins. Co. v. Russell, 473 U.S.
134, 139-40 (1985); see also 29 U.S.C. § 1109(a) (liability for breach of fiduciary duty is “to the
plan”); 29 U.S.C. § 1132(a)(2) (authorizing plan participant to sue for breach of fiduciary duty
under § 409(a)). Thus, this action for breach of fiduciary duty under ERISA is by law a
representative action seeking to impose on the Defendants obligations applicable to all
participants in the Plans. Gruby v. Brady, 838 F. Supp. 820, 828 (S.D.N.Y. 1993) (quoting
Specialty Cabinets & Fixtures, Inc. v. Am. Equitable Life Ins. Co., 140 F.R.D. 474, 478 (S.D. Ga.
1991)) (holding that certification of class seeking relief for violations of ERISA was proper
under Rule 23(b)(1)); Koch v. Dwyer, 2001 U.S. Dist. Lexis 4085, at *14-19 (S.D.N.Y. Mar. 23,
2001) (same).
Accordingly, the Settlement Class’ claims should be certified pursuant to Rule 23(b)(1).
7 See also Fed. R. Civ. P. 23(b)(1)(B), Advisory Comm. Notes to 1996 Amendment (stating that certification under 23(b)(1) is appropriate in cases charging breach of trust by a fiduciary to a large class of beneficiaries).
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D. The Proposed Notice to the Class Satisfies Rule 23 and the Requirements of Due Process
Once a court grants preliminary approval to a proposed settlement, “[n]otice of the
proposed settlement and the fairness hearing must be provided to class members.” Reed v.
Rhodes, 869 F. Supp. 1274, 1278 (N.D. Ohio 1994); see also Fed. R. Civ. P. 23(e)(1)(B)(C).
To satisfy due process, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.
306, 314 (1950). The notice should provide a “very general description[]of the proposed settlement.” Weinberger v. Kendrick, 698 F.2d 61, 70 (2d Cir. 1982). This description should nonetheless be sufficient to provide class members with “a full and fair opportunity to consider the proposed decree and develop a response.” Reed, 869 F. Supp. at 1279.
Rule 23(c)(2)(A) provides that for classes certified under Rule 23(b)(1), as Plaintiffs request here, “the court may direct appropriate notice.” When a class action settlement is proposed, “[t]he court must direct notice in a reasonable manner to all class members who would be bound by the proposal.” Rule 23(e)(1). In this case, because the names and last know addresses of addresses of all Settlement Class Members are available from the Plans’ records,
Plaintiffs are able to provide not only “appropriate” and “reasonable” notice as required by these provisions, but the enhanced notice required for classes certified under Rule 23(b)(3), “the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Rule 23(c)(2)(B). Here, the proposed notice plan calls for mailing of individual Notice to the last known address of all Settlement Class
Members.
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Here, the proposed form of Notice summarizes in plain English the terms and operation
of the Class Action Settlement Agreement, the considerations that caused the Named Plaintiffs
and Class Counsel to conclude that the Settlement is fair and adequate, the maximum legal fees
and Service Awards that may be sought, the procedure for objecting to the Settlement, and the
date and place of the Fairness Hearing. See 3 HERBERT NEWBERG & ALBA CONTE, NEWBERG ON
CLASS ACTIONS § 8.34 (4th ed. 2002). Upon Court approval, the Class Notice will be mailed to
each Settlement Class Member’s last known address, no later than 60 days prior to the Fairness
Hearing,8 and will be published on a website established by the Notice administrator. A summary notice will also be published in USA Today (national edition) and the Detroit Free
Press. These Notices will fairly apprise Settlement Class Members of the Settlement and their options, and will satisfy the requirements of due process.
E. Proposed Schedule For Final Approval
If the Court preliminarily approves the Settlement, Class Counsel propose the following schedule:
Notice mailed to Settlement Class Members Within 45 days after the Order Preliminarily Approving Settlement is entered by the Court
Publication Notice appears in USA Today Within 45 days after thee Order Preliminarily (national edition) and Detroit Free Press Approving Settlement is entered by the Court
Last day for Settlement Class Members to No later than 20 days before the Final object to the Settlement Approval Hearing
Class Counsel to file application for attorneys’ No later than 10 business days before the Final fees and expenses, and Service Awards for Approval Hearing Named Plaintiffs
Settling Parties submit papers in support of No later than 10 business days before the Final final approval of Settlement Approval Hearing
8 While individual circumstances will dictate the length of time between the notice and the fairness hearing, no less than two weeks should be provided. Williams, 720 F.2d at 921.
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Final Approval Hearing At the Court’s convenience at least 60 days after the date the Notice is mailed to the Settlement Class
IV. CONCLUSION
For the reasons stated above, Plaintiffs respectfully request that this Court: (i) enter the
Preliminary Approval Order attached as Exhibit 2 hereto; (ii) preliminarily certify the Settlement
Class pursuant to Fed. R. Civ. P. 23(b)(1); and (iii) set a Fairness Hearing, along with deadlines for Class Counsel to file and serve their motion for final approval of the Proposed Settlement,
Plan of Allocation, award of attorneys’ fees and expenses to Class Counsel and Service Awards for the Named Plaintiffs.
DATED: January 15, 2008 Respectfully Submitted,
By: s/ Andrew M. Volk HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 Email: [email protected]
SCOTT + SCOTT, LLC DAVID R. SCOTT 108 Norwich Avenue P.O. Box 192 Colchester, CT 06415 Telephone: (860) 537-5537 Facsimile: (860) 537-4432 -and- SCOTT + SCOTT, LLC GEOFFREY M. JOHNSON 33 River Street Chagrin Falls, OH 44022 Telephone: (440) 247-8200 Facsimile: (440) 247-8275
Co-Lead Counsel for Plaintiffs
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ELWOOD S. SIMON & ASSOCIATES, P.C. ELWOOD S. SIMON (P20499) JOHN P. ZUCCARINI (P41646) 355 South Old Woodward Avenue, Ste. 250 Birmingham, MI 48009 Telephone: (248) 646-9730
Liaison Counsel for Plaintiffs
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CERTIFICATE OF SERVICE
I hereby certify that on January 15, 2008, I electronically filed the foregoing document with the Clerk of the Court using the ECF System which will send notification of such filing to the following:
• Timothy A. Duffy [email protected] [email protected],[email protected] • Geoffrey M. Johnson [email protected] • Jonathan E. Moore [email protected] [email protected] • John W. Reale [email protected] [email protected] • Elwood S. Simon [email protected] [email protected] • Andrew M. Volk [email protected] • Morley Witus [email protected] [email protected] • John P. Zuccarini [email protected] [email protected]
By: s/ Andrew M. Volk HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 Email: [email protected]
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
IN RE GENERAL MOTORS ERISA : Civil Action No. 05-71085 LITIGATION : Honorable Nancy G. Edmunds : :
INDEX OF EXHIBITS TO PLAINTIFFS’ MOTION FOR ORDER PRELIMINARILY APPROVING SETTLEMENT
Exhibit Description
1 Settlement Agreement, dated December 17, 2007
2 [Proposed] Order Preliminarily Approving Settlement
3 Notice of Proposed Settlement of Class Action (Mailed)
4 Notice of Proposed Settlement of Class Action (Published)
5 Résumé of Hagens Berman Sobol Shapiro LLP
6 Résumé of Scott + Scott, LLC
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
: IN RE GENERAL MOTORS ERISA : Civil Action No. 05-71085 LITIGATION : : Honorable Nancy G. Edmunds
This CLASS ACTION SETTLEMENT AGREEMENT (“Settlement Agreement”) is
entered into by and between Named Plaintiffs in the Action, for themselves and on behalf of the
Settlement Class, on the one hand, and the Defendants, on the other. Capitalized terms and
phrases have the meanings provided below.
RECITALS
WHEREAS:
A. The Named Plaintiffs commenced the Action in March of 2005 asserting various
claims for relief on behalf of the Settlement Class against the Defendants, all of which claims are
disputed by the Defendants;
B. The Action is pending before the Hon. Nancy G. Edmunds of the United States
District Court for the Eastern District of Michigan (the “Court”);
C. Beginning in late 2006, the Settling Parties exchanged proposals and then met in
early 2007 to discuss the Structural Relief that is a key part of this Settlement;
D. The Settling Parties participated in the first of two day-long mediation sessions to further explore a potential settlement of the Named Plaintiffs’ claims, but that mediation was unsuccessful;
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E. The Settling Parties then engaged the services of the Hon. Layne Phillips (Ret.),
and convened a second day-long mediation in a further effort to reach a settlement of the Named
Plaintiffs’ claims;
F. The Settling Parties are desirous of promptly and fully resolving and settling with
finality all of the Released Claims asserted by Named Plaintiffs, for themselves and on behalf of
the Settlement Class, against the Defendants;
G. To accomplish that goal, the Settling Parties have reached a settlement by and
through their respective undersigned counsel on the terms and conditions set forth in this
Settlement Agreement;
NOW, THEREFORE, the Settling Parties, in consideration of the promises, covenants
and agreements herein described and for other good and valuable consideration acknowledged by
each of them to be satisfactory and adequate, and intending to be legally bound, do hereby
mutually agree as follows:
1. DEFINITIONS
As used in this Settlement Agreement, capitalized terms and phrases not otherwise
defined have the meanings provided below:
1.1 “Action” shall mean: The case captioned In Re General Motors ERISA
Litigation, Civil Action No. 05-71085, in the United States District Court for the Eastern District
of Michigan.
1.2 “Agreement Execution Date” shall mean: the date on which this Settlement
Agreement is fully executed, as provided in Section 12.14.
1.3 “Class Counsel” shall mean: Scott & Scott, LLC and Hagens Berman Sobol
Shapiro LLP.
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1.4 “Class Notice” or “Mailed Notice” shall mean: the Notice of Settlement of Class
Action, to be agreed upon by the Settling Parties, approved by the Court in the Preliminary
Approval Order, and mailed to the last known address of all Settlement Class members.
1.5 “Class Period” shall mean: the period from March 18, 1999 through May 26,
2006.
1.6 “Class Settlement Amount” shall mean: $37.5 million dollars.
1.7 “Company” shall mean: General Motors Corporation (“GM”).
1.8 “Company Stock” shall mean: GM stock held by the Plans in the GM $1-2/3 Par
Value Common Stock Fund (“the Company Stock Fund”).
1.9 “Complaint” shall mean: the “Corrected” First Amended Consolidated Class
Action Complaint For Violations Of The Employee Retirement Income Security Act, filed on
July 19, 2006, in the Action.
1.10 “Defendants” shall mean: the following Persons named as defendants in the
Complaint: General Motors Corporation, The Investment Funds Committee of General Motors’
Board of Directors, E. Stanley O’Neal, Armando Codina, Kent Kresa, Eckhard Pfeiffer, Phillip
A. Laskawy, Percy N. Barnevik, Nobuyuki Idei, John F. Smith, Jr., George M.C. Fisher, Willard
Marriott, Jr., Ellen J. Kullman, G. Richard Wagoner, Jr., General Motors Investment
Management Corporation (“GMIMCo”), Jean Rose, Cindy Gier, Paul Gonzales, Terry Lee,
Jenny Machak, Robert Moroni, and Michael Morris.
1.11 “Effective Date” shall mean: the date, established pursuant to Section 10.1, on
which all of the conditions to settlement set forth in Section 3 of this Settlement Agreement have
been fully satisfied or waived and the Settlement shall have become Unconditional.
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1.12 “ERISA” shall mean: the Employee Retirement Income Security Act of 1974, as
amended, including all regulations promulgated, and case law, thereunder.
1.13 “Final” shall mean: with respect to any judicial ruling or order, that the period for
any appeals, petitions, motions for reconsideration, rehearing or certiorari or any other
proceedings for review (“Review Proceeding”) has expired without the initiation of a Review
Proceeding, or, if a Review Proceeding has been timely initiated, that there has occurred a full
and final disposition of any such Review Proceeding without a reversal or any material
modification, including the time for any motions for rehearing or reconsideration, and the
exhaustion of proceedings in any remand and/or subsequent appeal after remand.
1.14 “Liaison Counsel” shall mean: Elwood S. Simon & Associates, P.C.
1.15 “Mailed Notice” or “Class Notice” shall mean: the Notice of Settlement of Class
Action, to be agreed upon by the Settling Parties, approved by the Court in the Preliminary
Approval Order, and mailed to the last known address of all Settlement Class members.
1.16 “Named Plaintiffs” shall mean: the following persons, as plaintiffs on behalf of
themselves and on behalf of all members of the Settlement Class: Al Balnius, Jerry L. Canter,
Michael Birmingham, Bryan Moore, Jerry Don Fowle and William LaPrad, and each of their
Successors-In-Interest. Named Plaintiffs intend that all rights and obligations that are binding on
Named Plaintiffs under this Settlement Agreement, including each and every covenant, agreement, and warranty, also shall be binding on all members of the Settlement Class.
1.17 “Net Settlement Amount” shall mean: the balance of the Settlement Fund after
payment of (a) all costs and expenses reasonably and actually incurred in connection with
providing Class Notice to the Settlement Class; (b) all taxes incurred on the Settlement Fund’s
income as discussed in Section 9.3, in the event that any such are incurred; (c) the cost of
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administration of the Settlement; (d) any award of fees and expenses to Class Counsel as
discussed in Section 10.2; and (e) any award of Service Awards to the Named Plaintiffs as
discussed in Section 10.3.
1.18 “Person” shall mean: an individual, partnership, corporation, governmental entity
or any other form of entity or organization.
1.19 The “Plans” shall mean, collectively, the General Motors Personal Savings Plan
for Hourly Rate Employees (“PSP”) and the General Motors Savings-Stock Purchase Program for Salaried Employees (“S-SPP”).
1.20 “Plan of Allocation” shall mean: the plan or formula of allocation of the Net
Settlement Amount, substantially in the form set out in Exhibit C, subject to approval by the
Court, whereby the Net Settlement Amount will be distributed for the benefit of the Settlement
Class, as discussed in Section 10.4.
1.21 “Publication Notice” means the summary notice of the proposed Settlement and
hearing for publication.
1.22 “Releasees” shall mean the Defendants and their parents, subsidiaries, affiliates,
directors, officers, partners, employees, agents, attorneys, insurers, estates, heirs, successors, and
assigns.
1.23 “Representatives” shall mean: representatives and their agents.
1.24 “Required Retention Period” shall mean the period during which the Company’s
matching contribution to S-SPP accounts and 50% of certain employee contributions were
required to remain invested in Company Stock.
1.25 “Service Awards” shall mean: the requested amount, not more than $4,000 each
for Named Plaintiffs Al Balnius, Jerry L. Canter, Michael Birmingham, Bryan Moore, and not
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more than $2,000 each for Named Plaintiffs Jerry Don Fowle and William LaPrad, in recognition
of the benefits each has generated for the Settlement Class by coming forward and devoting time
and knowledge to the prosecution of the Action. Any such award shall be subject to the approval
of the Court as discussed in Section 10.3.
1.26 “Settlement” shall mean: the settlement to be consummated under this Settlement
Agreement.
1.27 “Settlement Agreement” or “Agreement” means this Class Action Settlement
Agreement.
1.28 “Settlement Class” shall mean: All persons who were participants or
beneficiaries of the Plans at any time between March 18, 1999 and May 26, 2006, inclusive, who
bring claims for breach of fiduciary and co-fiduciary duty under ERISA. Defendants and their
heirs, successors in interest, or assigns, to the extent such persons acquire an interest held by
Defendants, are excluded from the Settlement Class.
1.29 “Settling Parties” shall mean: the Named Plaintiffs and the Defendants.
1.30 “Stipulated Dismissal” shall mean the stipulated dismissal of the Action against
the Defendants.
1.31 “Successor-In-Interest” shall mean: a Person’s estate, legal representatives, heirs,
successors or assigns.
2. JUDICIAL APPROVAL PROCESS
2.1. Motion for Preliminary Approval of Settlement and of Notices. As soon as
reasonably possible upon the full execution of this Settlement Agreement by the Settling Parties,
Named Plaintiffs will file a motion (“Preliminary Motion”) with the Court seeking an order
substantially in the form annexed hereto as Exhibit A (the “Preliminary Approval Order”).
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2.2 Class Certification. The Preliminary Motion will ask that the Settlement Class be certified conditionally in connection with the Settlement.
2.2.1 Appropriateness of Class Certification. The Named Plaintiffs have
asserted that the Action should be certified as a class action as defined in the Federal Rules of
Civil Procedure. For settlement purposes only and for no other purpose than as set forth in and
to effectuate this Settlement Agreement, the Defendants do not object to such certification on the
terms set forth in this Settlement Agreement.
2.2.2 Motion for Class Certification. Class Counsel shall move for class
certification under Fed. R. Civ. P. 23(b)(1), with the Named Plaintiffs as the Settlement Class
representatives, and Class Counsel as counsel for the Settlement Class
2.2.3 Defendants’ Reservation of Rights. If the Court does not enter the
Final Order approving the Settlement, the Defendants specifically reserve their right to oppose
class certification in this Action. The Settling Parties further agree that if the Court does not
enter the Final Order, then no Settlement Class will be deemed to have been certified by or as a
result of this Settlement Agreement, and the Action will for all purposes with respect to the
Settling Parties revert to its status as of the day immediately before the execution of the Term
Sheet agreed to by counsel for the parties at the conclusion of the mediation with Judge Phillips.
2.3 Issuance of Class Notice and Publication Notice. On the timetable and in the
manner set by the Court in its Preliminary Approval Order, GM shall cause the Class Notice and
the Publication Notice to be transmitted by an entity that is mutually agreeable to the parties in
the form and manner approved by the Court in the Preliminary Approval Order.
2.4 Independent Fiduciary. The Company will retain an Independent fiduciary who is
mutually acceptable to the Settling Parties to ensure compliance with Prohibited Transaction
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Class Exemption 2003-39, and to ensure that the Plan of Allocation is fair and reasonable. All
Settling Parties shall cooperate in providing such information to the Independent Fiduciary as
may be required. The failure of the retained Independent Fiduciary to approve this Settlement
shall render this Settlement Agreement null and void and the Settling Parties shall return to their
respective positions as contemplated in Section 11.
2.4.1 Expenses Associated with the Independent Fiduciary. The fees and costs associated with the Independent Fiduciary shall be paid solely by the Defendants, separate from and in addition to the Class Settlement Amount, and no such fees or costs shall be charged to the
Named Plaintiffs, Settlement Class members, Class Counsel, or the Plans.
2.5 The Fairness Hearing. On or after the date set by the Court for the hearing (the
“Fairness Hearing”) the Court will determine whether to enter judgment finally approving the
Settlement, substantially in the form attached hereto as Exhibit B (which judgment is referred to
herein as the “Final Order” or the “Order of Final Judgment and Dismissal”). At the Fairness
Hearing, Class Counsel will urge the Court to enter the Final Order. At that time, Class Counsel will also request that the Court enter orders approving the proposed Plan of Allocation, awarding attorneys’ fees and expenses, and awarding Service Awards to the Named Plaintiffs. The
Settling Parties agree to support entry of the Final Order as contemplated by this Section 2.
Defendants will urge the Court to enter the Final Order, but Defendants will take no position concerning Class Counsel’s request for legal fees and expenses, or Class Counsel’s request for
Service Awards to the Named Plaintiffs. The Settling Parties covenant and agree that they will reasonably cooperate with one another in obtaining the Final Order as contemplated hereby at the
Fairness Hearing and will not do anything inconsistent with this provision in obtaining the Final
Order.
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3. CONDITIONS TO FINALITY OF THE SETTLEMENT
3.1 Final and Unconditional Settlement. The Settlement provided for in this
Settlement Agreement shall be final and unconditional (“Unconditional”) when each of the
following conditions has been satisfied or waived:
3.1.1 Preliminary Approval. The Court shall have entered the Preliminary
Approval Order.
3.1.2 Class Certification. The Court shall have certified a Settlement Class pursuant to Fed. R. Civ. P. 23(b)(1) and notice shall have been transmitted as provided in Section
2.3.
3.1.3 Independent Fiduciary Approval. An Independent Fiduciary shall have
approved the Settlement pursuant to Section 2.4 above.
3.1.4 Finality of Order of Final Approval of Settlement. The Court shall have
issued the Final Order and the Final Order shall have become Final.
3.1.5 Dismissals of Claims. The Action and all Released Claims shall have
been dismissed with prejudice.
3.1.6 Funding of Settlement Fund. The Defendants shall have caused the Class
Settlement Amount to be deposited at the time prescribed by, and otherwise as provided for, in
Section 9.2.
4. RELEASES AND COVENANT NOT TO SUE
4.1 Releases of the Releasees. Effective when the Final Order by the Court becomes
Final, Named Plaintiffs, on behalf of themselves and on behalf of the Settlement Class,
absolutely and unconditionally release and forever discharge the Releasees from Released
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Claims that Named Plaintiffs or the Settlement Class directly, indirectly, derivatively, or in any
other capacity ever had, now have or hereafter may have.
4.2 Released Claims. Subject to Section 4.4, the Released Claims shall be: any and
all claims of any nature whatsoever in connection with Company Stock held in the Plans
(including claims for any and all losses, damages, unjust enrichment, attorneys’ fees,
disgorgement of fees, litigation costs, injunction, declaration, contribution, indemnification or
any other type or nature of legal or equitable relief), whether accrued or not, whether already
acquired or acquired in the future, whether known or unknown, in law or equity, brought by way
of demand, complaint, cross-claim, counterclaim, third-party claim or otherwise (collectively,
“Claims”), which were or could have been asserted in the Action or that would be barred by
principles of res judicata had the claims asserted in the Action been fully litigated and resulted in
a Final judgment or order. The Settling Parties stipulate and agree that, by the terms of the Final
Order, each Settlement Class Member shall have and be deemed to have waived and
relinquished, to the fullest extent permitted by law, any and all provisions, rights and benefits
conferred by Section 1542 of the California Civil Code or any federal, state, or foreign law, rule,
regulation or common law doctrine that is similar, comparable, equivalent, or identical to, or
which has the effect of, Section 1542 of the California Civil Code, which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
Notwithstanding the provisions of Section 1542 and any similar provisions, rights and benefits
conferred by any law, rule, regulation or common law doctrine of California or in any federal,
state or foreign jurisdiction, the Settling Parties understand and agree that the releases to be given
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pursuant to this Settlement Agreement shall include Released Claims that are not known or suspected to exist at the time such releases are given.
4.3 Defendants’ Releases of Named Plaintiffs, the Settlement Class and Plaintiffs’
Counsel. Effective when the Final Order by the Court becomes Final, the Defendants absolutely
and unconditionally release and forever discharge the Named Plaintiffs, the Settlement Class,
Class Counsel, Liaison Counsel and other counsel who represent members of the Settlement
Class (collectively, the “Plaintiff Releasees”) from any and all Claims relating to the institution
or prosecution or settlement of the Action, as well as any and all Claims for contribution, for
indemnification, or any other Claims relating to payment of the Class Settlement Amount by the
Defendants (“Plaintiffs’ Released Claims”).
4.4 Claims Not Released. Nothing in this Settlement Agreement releases or shall be
deemed to release any Person or Claims other than as set forth in the express terms and
provisions of this Settlement Agreement. The Releases expressly do not include, and this
Settlement Agreement does not in any way bar, limit, waive, or release, any claims by the
Named Plaintiffs or the Settlement Class asserted in the currently pending complaints in the
following cases: (1) In Re General Motors Corp. Securities Litigation, MDL No. 1749, Master
Case No. 06-md-1749 (2:06-cv-12258-GER; 2:06-cv-12259-GER) (E. D. Mich.); (2) Young v.
General Motors Investment Management Corporation, Case No. 07 Civ. 1994 (BSJ) (S.D.N.Y.);
and Brewer v. General Motors Investment Management Corporation et al., Case No. 07-cv-
02928 (BSJ) (S.D.N.Y.).
5. COVENANTS
The Settling Parties covenant and agree as follows:
5.1 Cooperation. The Settling Parties shall reasonably cooperate with each other to
effectuate this Settlement. The Company shall make reasonable efforts to ensure that any third
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party retained to provide notice or implement the Plan of Allocation is provided with information
necessary to do so. The Company shall also take reasonable steps to cooperate fully with the
implementation of the Plan of Allocation. The Company shall be entitled to require that any
such third party agree to and provide reasonable assurances of compliance with any restrictions
on the use or dissemination of any such information and return such data to the Company at the
conclusion of its administration of the settlement.
5.2 Covenants Not to Sue. Named Plaintiffs covenant and agree on their own behalf,
and on behalf of the Settlement Class: (i) not to file against any Releasee any Claim based on or
arising from any Released Claim; and (ii) that the foregoing covenants and agreements shall be a
complete defense to any such Claims against any of the respective Releasees. Defendants
covenant and agree: (i) not to file against the Plaintiff Releasees any claim based on, related to,
or arising from any Released Claim; and (ii) that the foregoing covenants and agreement shall be
a complete defenses to any such claims against any Plaintiff Releasee.
6. REPRESENTATIONS AND WARRANTIES
6.1 Settling Parties’ Representations and Warranties. The Settling Parties, and each
of them, represent and warrant:
6.1.1 That they are voluntarily entering into this Settlement Agreement as a
result of arm’s-length negotiations among their counsel, that in executing this Settlement
Agreement they are relying solely upon their own judgment, belief and knowledge, and the
advice and recommendations of their own independently selected counsel, concerning the nature,
extent and duration of their rights and claims hereunder and regarding all matters which relate in
any way to the subject matter hereof, and that, except as provided herein, they have not been
influenced to any extent whatsoever in executing this Settlement Agreement by any
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representations, statements or omissions pertaining to any of the foregoing matters by any party
or by any person representing any party to this Settlement Agreement;
6.1.2 That they assume the risk of mistake as to facts or law;
6.1.3 That they have carefully read the contents of this Settlement Agreement,
and this Settlement Agreement is signed freely by each individual executing this Settlement
Agreement on behalf of each of the Settling Parties; and
6.1.4 That they have made such investigation of the facts pertaining to the
Settlement, this Settlement Agreement and all of the matters pertaining thereto, as they deem
necessary.
6.2 Signatories’ Representations and Warranties. Each individual executing this
Settlement Agreement on behalf of any Settling Party does hereby personally represent and
warrant to the other Settling Parties that he or she has the authority to execute this Settlement
Agreement on behalf of, and fully bind, each principal which such individual represents or
purports to represent.
7. NO ADMISSION OF LIABILITY
7.1 The Settling Parties understand and agree that this Settlement Agreement
embodies a compromise settlement of disputed claims, and nothing in this Settlement
Agreement, including the furnishing of consideration for this Settlement Agreement, shall be
deemed to constitute any finding of wrongdoing by any of the Defendants, or give rise to any
inference of wrongdoing or admission of wrongdoing or liability in this or any other proceeding.
This Settlement Agreement and the payments made hereunder are made in compromise of
disputed claims and are not admissions of liability of any kind, whether legal or factual.
Moreover, the Defendants specifically deny any such liability or wrongdoing. Neither the fact
nor the terms of this Settlement Agreement shall be offered or received in evidence in any action
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or proceeding for any purpose, except in an action or proceeding to enforce this Settlement
Agreement or arising out of or relating to the Final Order.
8. STRUCTURAL RELIEF AND PROVISION OF FINANCIAL PLANNING SERVICES
8.1 The Company has implemented certain structural changes to the Plans following
commencement of the Action, which are directly related to issues raised by Plaintiffs in the
Action and which constitute a material part of this Settlement. As a direct and substantial result
of the initiation of the Action, the Company has agreed to maintain the following structural
changes to the Plans for a period of at least 4 years following the Effective Date of the
Settlement at its sole expense:
8.1.1 The Company shall retain an independent fiduciary to monitor the
prudence of offering the Company Stock Fund.
8.1.2 No participant in the Plans will be required to invest any Plan
contributions in the Company Stock Fund.
8.1.3. No participant in the Plans will be subject to any Required Retention
Period for investments in the Company Stock Fund.
8.1.4. No matching contributions by the Company will be made in the form of
investments in the Company Stock Fund.
8.1.5 The Company shall maintain its currently upgraded communications to the
Plans’ participants advising that the Company Stock Fund is a non-diversified investment option
that is not intended to be a comprehensive investment program, and advising participants that
they should regularly review the Plans’ portfolio of investment options.
8.2 The Company shall make available to Settlement Class members who participate
in the Plans without charge for a period of one year commencing no later than January 1, 2009, a
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Savings Plan portfolio review tool. The tool will enable class members to model various
retirement scenarios based upon the investment risk profile they select and will provide fund
line-up guidance. At this time GM plans to use Fidelity Portfolio Review for this purpose; however, GM reserves the right in its sole discretion to instead use the Financial Engines portfolio advice tool or some other comparable tool that would perform a similar function.
8.3 Financial Planning Services. The Company will make available to members of
the Settlement Class the “Money in Motion” financial advisory program from the Ayco
Company (a division of Goldman Sachs) under the following terms:
8.3.1 Members of the Settlement Class will be offered one year of participation
in the Money in Motion program;
8.3.2 The one-year participation period shall commence no later than the first
January 1st occurring no less than 120 days after the Effective Date of this Settlement;
8.3.3 Within 60 days of the Effective Date of this Settlement, all participants in
the Plans will receive a notice from the Company (i) announcing the availability of participation
for a one-year period in the Money in Motion program; (ii) describing the program and the terms
of the Company’s offer; and (iii) providing the Plans’ participants with a 30-day period in which
to elect to participate;
8.3.4 Each member of the Settlement Class who elects to participate in the
Money in Motion program within the 30-day election period will pay $30 as a co-payment for
one year’s participation in the Money in Motion program, and the Company will pay the
remaining cost charged by Ayco. The Company represents that it will receive no financial
benefit as a direct result of offering the Financial Planning Services.
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9. INTERIM COSTS OF NOTICE; THE SETTLEMENT FUND; DELIVERIES INTO THE SETTLEMENT FUND
9.1 Costs of Notice. Subject to Section 9.2, and provided that the Settlement receives
Preliminary Approval, the Settling Defendants shall pay the costs of Notice. Under no circumstances shall Class Counsel be required to reimburse the Settlement Fund or the Settling
Defendants for the costs of Notice – even if the Settlement is terminated in accordance with the provisions of Section 11.
9.2 Settlement Fund. Within thirty (30) days after the entry of the Final Order as
contemplated in Section 2.5, the Defendants shall cause the Class Settlement Amount of $37.5
million, less any costs incurred pursuant to Section 9.1, to be placed into an interest bearing
escrow account maintained by Class Counsel. The resulting Settlement Fund shall be considered
a common fund created as a result of the Action, the interest on which will be added to the Class
Settlement Amount.
9.3 Taxes and Expenses of The Settlement Fund. The Settlement Fund shall bear
interest for the benefit of the Settlement Class. The Settlement Fund will pay any federal, state
or local taxes that may apply to the income of the Settlement Fund. Class Counsel shall arrange
for the preparation and filing of all tax reports and tax returns required to be filed by the
Settlement Fund and for the payment from the Settlement Fund of any taxes owed. All taxes on
the income of the Settlement Fund and tax-related expenses incurred in connection with the
taxation of the Settlement Fund shall be paid out of the Settlement Fund, shall be considered a
cost of administration of the Settlement, and shall be timely paid without further order of the
Court.
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10. EFFECTIVE DATE OF SETTLEMENT; DISTRIBUTION OF THE SETTLEMENT FUND
10.1 The Effective Date of the Settlement occurs when each and every condition in
Section 3 has been fully satisfied or waived. Any disputes as to whether the Effective Date has
occurred shall be resolved by the Court upon the request of any of the Settling Parties.
10.2 Attorneys’ Fees and Expenses. Pursuant to the common fund doctrine, Class
Counsel may apply to the Court for an award of attorneys’ fees and for reimbursement of
expenses, to be paid solely from the Settlement Fund.
10.2.1 No later than ten (10) business days prior to the Fairness Hearing, Class
Counsel shall submit an application to the Court for an award of attorneys’ fees for legal services
rendered, plus reimbursement of their expenses incurred in connection with the Action. Class
counsel may request that the Court award interest on such an award to accrue at a rate no higher
than the rate at which interest accrues on the Settlement Fund. Following the Effective Date of
the Settlement, Class Counsel may receive a disbursement from the Settlement Fund in the
amounts awarded by the Court for attorneys’ fees and expenses.
10.2.2 The Defendants will take no position with respect to any application for
attorneys’ fees and costs to be paid out of the Settlement Fund.
10.2.3 The effectiveness of this Settlement is not contingent upon the Court
awarding Plaintiffs’ attorneys’ fees or expenses, and the Settlement shall become Unconditional
when all of the conditions in Section 3 are satisfied or waived, regardless of the amount of any
fees or expenses approved by the Court. Apart from their responsibility for funding the
Settlement Fund, in no event shall Defendants or Releasees be responsible in any way for the
payment of any of Plaintiffs’ attorneys’ fees or expenses, regardless of the amount of any fees or
expenses approved by the Court, and regardless of any termination of this Settlement Agreement.
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10.3 Service Awards for Named Plaintiffs
10.3.1 No later than ten (10) business days prior to the Fairness Hearing, Class
Counsel shall submit an application to the Court for Service Awards to the Named Plaintiffs in
amounts not to exceed: (a) $4,000 for each of the Named Plaintiffs who have participated in the
Action from its onset in 2005, namely, Al Balnius, Jerry L. Canter, Michael Birmingham, Bryan
Moore; and (b) $2,000 each for the Named Plaintiffs who later intervened in the Action, namely,
Jerry Don Fowle and William LaPrad.
10.3.2. The Defendants will take no position with respect to any application for
Service Awards to be paid out of the common fund.
10.4 Plan of Allocation. Concurrently with the filing of the Preliminary Motion,
Plaintiffs will propose the Plan of Allocation to the Court, which the Court may approve in its
discretion, after consideration at the Fairness Hearing.
10.4.1 Reasonable fees and expenses of any third party retained by the Company
to implement the Plan of Allocation shall be paid out of the Settlement Amount without further
order of the Court provided such fees and expenses are approved by Class Counsel.
10.4.2 Defendants shall use reasonable efforts to facilitate the Plan of Allocation
by (i) providing the third party retained pursuant to Section 10.4.1 with Plan data pertaining to
Company Stock acquisitions, dispositions and balances as may be necessary to implement the
Plan of Allocation and (ii) facilitating the distribution to current participants and beneficiaries of
the Plans directly into their Plan accounts. The Company shall be entitled to require that any
such third party agree to and provide reasonable assurances of compliance with any restrictions
on the use or dissemination of any such data and return such data to the Company at the
conclusion of its administration of the settlement.
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11. TERMINATION OF THE SETTLEMENT AGREEMENT
11.1 Termination. This Settlement Agreement may automatically terminate or be
terminated by the Settling Parties, and thereupon become null and void, in the following
circumstances:
11.1.1 If the Independent Fiduciary declines to approve this Settlement, then
this Settlement Agreement shall automatically terminate, and thereupon become null and void.
11.1.2 If the Court declines to enter the Final Order, then this Settlement
Agreement shall automatically terminate, and thereupon become null and void.
11.1.3 If any Settling Party concludes that the Final Order does not satisfy the
terms and conditions of this Settlement Agreement in any material respect, such Settling Party
may, within ten (10) days after the Court’s entry of the Final Order, give the other Settling
Parties written notice thereof. If, within fourteen (14) days after the giving of such written
notice, the Settling Parties have not agreed in writing to proceed with all or part of the Settlement
Agreement pursuant to the Final Order as entered by the Court, any Settling Party may submit to
the Court the issue as to whether the Final Order in fact does not satisfy the terms and conditions
of this Settlement Agreement in any material respect. The Court’s decision on the issue shall be
binding. If the Court concludes that the Final Order does not satisfy the terms and conditions of
this Settlement Agreement in any material respect, then the Settling Party who submitted the
written notice contemplated by this Section 11.1.3 may terminate this Settlement Agreement by
giving further written notice to all Settling Parties.
11.1.4 If the Final Order entered by the Court is reversed or modified in any
material respect on appeal, and if within thirty-one (31) days after the date when such reversal or
modification becomes Final the Settling Parties have not agreed in writing to proceed with all or
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part of the Settlement Agreement in light of such ruling, then this Settlement Agreement shall
automatically terminate, and thereupon become null and void.
11.2 Consequences of Termination of the Settlement Agreement. If the Settlement
Agreement is terminated and rendered null and void for any reason specified in Section 11.1, the
following shall occur:
11.2.1 The Action shall for all purposes with respect to the Settling Parties
revert to its status as of the day immediately before the execution of the Term Sheet agreed to by
counsel for the parties at the conclusion of the mediation with Judge Phillips.
11.2.2 All Releases given under or pursuant to this Settlement Agreement, and
all Stipulated Dismissals, shall be null and void; none of the terms of the Settlement Agreement
shall be effective or enforceable, except Sections 2.2.3, 7.1, 9.1, 9.3, 11, and 12; neither the fact
nor the terms of this Settlement Agreement shall be offered or received in evidence in the Action
or in any other action or proceeding for any purpose, except in an action or proceeding arising
under this Settlement Agreement or arising out of or relating to the Final Order.
11.2.3 Class Counsel shall within thirty (30) days after the date of termination of
the Settlement cause the return to the Defendants of the amount contributed by them to the
Settlement Fund (if such fund has been established), with all net income earned thereon, reduced
by any taxes paid (if any) pursuant to Section 9.3.
12. MISCELLANEOUS PROVISIONS
12.1 Governing Law. This Settlement Agreement shall be governed by the laws of the
State of Michigan without giving effect to the conflict of laws or choice of law provisions
thereof, except to the extent that the law of the United States governs any matter set forth herein.
12.2 Dispute Resolution. Except as otherwise provided herein, any dispute or
controversy with respect to the rights or obligations of any Settling Party, or with respect to the
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terms and conditions of this Settlement Agreement shall be submitted to the Court for final and
binding determination. The Court shall retain jurisdiction over the Action and the Settling
Parties for purposes of enforcement of the Settlement.
12.3 Severability. The provisions of this Settlement Agreement are not severable.
12.4 Amendment. Before entry of the Final Order, the Settlement Agreement may be
modified or amended only by written agreement signed by or on behalf of all Settling Parties.
Following entry of the Final Order, the Settlement Agreement may be modified or amended only
by written agreement signed on behalf of all Settling Parties, and approved by the Court.
12.5 Waiver. The provisions of this Settlement Agreement may be waived only by an
instrument in writing executed by the waiving party. The waiver by any party of any breach of
this Settlement Agreement shall not be deemed to be or construed as a waiver of any other
breach, whether prior, subsequent, or contemporaneous, of this Settlement Agreement.
12.6 Construction. None of the Settling Parties hereto shall be considered to be the drafter of this Settlement Agreement or any provision hereof for the purpose of any statute, case law or rule of interpretation or construction that would or might cause any provision to be construed against the drafter hereof.
12.7 Further Assurances. Each of the Settling Parties agrees, without further
consideration, and as part of finalizing the Settlement hereunder, that they will in good faith
execute and deliver such other documents and take such other actions as may be necessary to
consummate and effectuate the subject matter and purpose of this Settlement Agreement.
12.8 Survival. All representations, warranties and covenants set forth in this
Settlement Agreement shall be deemed continuing and shall survive the Effective Date and
termination or expiration of this Settlement Agreement.
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12.9 Notices. Any notice, demand or other communication under this Settlement
Agreement (other than the Class Notice, or other notices given at the direction of the Court) shall be in writing and shall be deemed duly given upon receipt if it is addressed to each of the intended recipients as set forth below and personally delivered, sent by registered or certified mail (postage prepaid), sent by email, or delivered by reputable express overnight courier:
IF TO NAMED PLAINTIFFS:
David R. Scott SCOTT + SCOTT, LLC 108 Norwich Avenue P.O. Box 192 Colchester, CT 06415 Phone: (860) 537-5537 Email: [email protected]
Geoffrey M. Johnson Scott & Scott, LLC 33 River Street Chagrin Falls, OH 44022 Phone: (440) 347-8200 Email: [email protected]
Andrew M. Volk HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 Phone: (206) 623-7292 Email: [email protected] ` IF TO DEFENDANTS:
Robert J. Kopecky Timothy A. Duffy KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, Illinois 60601 Phone: (312) 861-2000 Email: [email protected] Email: [email protected]
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Michael A. Gruskin GM Legal Staff 400 Renaissance Center P.O. Box 400 Detroit, MI 48265-4000
12.10 Any Settling Party may change the address at which it is to receive notice by
written notice delivered to the other Settling Parties in the manner described above.
12.11 Entire Agreement. This Settlement Agreement contains the entire agreement
among the Settling Parties relating to this Settlement. It specifically supersedes any settlement
terms or settlement agreements relating to the Defendants that were previously agreed upon
orally or in writing by any of the Settling Parties.
12.12 Counterparts. This Settlement Agreement may be executed by exchange of faxed or emailed executed signature pages, and any signature transmitted by facsimile or email for the purpose of executing this Settlement Agreement shall be deemed an original signature for purposes of this Settlement Agreement. This Settlement Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same instrument.
12.13 Binding Effect. This Settlement Agreement binds and inures to the benefit of the
parties hereto, their assigns, heirs, administrators, executors and successors.
12.14 Agreement Execution Date. The date on which the final signature is affixed
below shall be the Agreement Execution Date.
IN WITNESS WHEREOF, the Settling Parties have executed this Settlement Agreement
on the dates set forth below.
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EXHIBITS TO THE SETTLEMENT AGREEMENT
Exhibits
A. [Proposed] Order Preliminarily Approving Settlement
B. [Proposed] Order of Final Judgment and Dismissal
C. [Proposed] Plan of Allocation
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Exhibit A
Case 2:05-cv-71085-NGE-RSW Document 100-3 Filed 01/15/2008 Page 29 of 48
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
: IN RE GENERAL MOTORS ERISA : Civil Action No. 05-71085 LITIGATION : : Honorable Nancy G. Edmunds
[PROPOSED] ORDER PRELIMINARILY APPROVING SETTLEMENT
WHEREAS, the proposed class action captioned In Re General Motors. ERISA
Litigation, No. 05-71085, is pending before this Court; and
WHEREAS, the Named Plaintiffs and the Defendants have applied to the Court, pursuant
to Fed. R. Civ. P. 23, for an Order preliminarily approving the Settlement of the above-named
action in accordance with the terms and provisions of the Class Action Settlement Agreement
(the “Settlement Agreement” or “Agreement”) which, together with the exhibits thereto, sets
forth the terms and conditions for a proposed settlement of the action as to the Defendants and
for dismissal of the action with prejudice as to the Defendants;
WHEREAS, the Court has read and considered that Agreement and the exhibits thereto
and has read and considered all other papers filed and proceedings had herein, and is otherwise
fully informed in the premises, and with good cause appearing therefore;
NOW, THEREFORE, IT IS HEREBY ORDERED:
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1. This Order (the “Preliminary Approval Order”) incorporates by reference the
definitions in the Agreement, and all capitalized terms shall have the same meanings set forth in
the Agreement.
2. The Court has jurisdiction over the subject matter of this action and over all
parties to this action, including all members of the proposed Settlement Class and Defendants.
3. The Court preliminarily finds, for purposes of the Settlement, that the
requirements of Federal Rules of Civil Procedure have been met as to the Settlement Class, in
that:
The Settlement Class is ascertainable from records kept with respect to the Plans and from other objective criteria, and members of the Settlement Class are so numerous that their joinder before the Court would be impracticable. Based on allegations in the Complaint, the Court preliminarily finds that there are one or more questions of fact and/or law common to the Settlement Class. Based on allegations in the Complaint, the Court preliminarily finds that Defendants engaged in uniform conduct affecting members of the proposed Settlement Class, and the Court finds that the claims of the Named Plaintiffs are typical of the claims of the Settlement Class. The Named Plaintiffs will fairly and adequately protect the interests of the Settlement Class in that (i) the interests of the Named Plaintiffs and the nature of their alleged claims are consistent with those of the members of the Settlement Class; (ii) there are no conflicts between or among the Named Plaintiffs and the Settlement Class; and (iii) the Named Plaintiffs are represented by qualified, reputable counsel who are experienced in preparing and prosecuting large, complex ERISA class actions of this type. The prosecution of separate actions by individual members of the Settlement Class would create a risk of (i) inconsistent or varying adjudications as to individual class members, that would establish incompatible standards of conduct for the parties opposing the claims asserted in the Action; or (ii) adjudications as to individual class members that would, as a practical matter, be dispositive of the interests of the other members not parties to the adjudication, or substantially impair or impede those persons’ ability to protect their interests.
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4. Based on the finding set out in Paragraph 3 above, the Court PRELMINARILY
CERTIFIES the following class for settlement purposes under Federal Rule of Civil Procedure
23(b)(1) (the Settlement Class):
All persons who were participants or beneficiaries of the General Motors Personal Savings Plan for Hourly Rate Employees or the General Motors Savings-Stock Purchase Program for Salaried Employees at any time between March 18, 1999 and May 26, 2006, inclusive, who bring claims for breach of fiduciary and co- fiduciary duty under ERISA. Excluded from the Settlement Class are Defendants, and their heirs, successors in interests and assigns.
The Court finds that the Settlement Class is sufficiently well-defined and cohesive to warrant certification as a non-opt-out class under Fed. R. Civ. P. 23(a) and 23(b)(1). 5. As indicated above, the Court finds that the Named Plaintiffs are adequate class representatives of the Settlement Class and, therefore, hereby appoints Named Plaintiffs as the representatives of the Settlement Class. 6. As required by Fed. R. Civ. P. 23(g), the Court has considered: (i) the work Class Counsel has done in identifying or investigating potential claims in this action; (ii) Class Counsel’s experience in handling class action, other complex litigation, and claims of the type asserted in this action; (iii) Class Counsel’s knowledge of the applicable law and, in particular, their knowledge of ERISA as it applies to claims of the type asserted in this action (breach of fiduciary duty claims arising from the Plans’ investments in company stock); and (iv) the resources Class Counsel has committed to representing the class. Based on these factors, the Court finds that Class Counsel has and will continue to fairly and adequately represent the interests of the Settlement Class. Accordingly, the Court finds that Class Counsel shall serve as class lead counsel with respect to the Settlement Class in this Action. 7. The Court having preliminarily determined that this Action may proceed as a non- opt-out class action under Fed. R. Civ. P. 23(a) and 23(b)(1), Settlement Class members shall be bound by any judgment concerning the Settlement in this Action, subject to the Court’s final determination as to whether this Action may so proceed.
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8. The Court preliminarily approves the Agreement, including the Releases
contained therein, and preliminarily finds the Settlement to be fair, reasonable, and adequate to
the Settlement Class.
9. The Court approves, as to form and content, the Notice of Settlement of Class
Action (the “Mailed Notice”) and the Publication Notice annexed to the Memorandum in
Support of Plaintiffs’ Motion for Preliminary Approval of Proposed Partial Settlement.
10. The date and time of the Fairness Hearing shall be added to the Mailed Notice and
the Publication Notice before they are mailed and published, respectively.
11. The Court finds that the mailing of the Mailed Notice in the manner set forth in
paragraph 12(a) below, together with the publication of the Publication Notice in the manner set
forth in paragraph12(b) and (c), below, constitutes the best notice practicable under the
circumstances, by providing individual notice to all Settlement Class members who can be
identified through reasonable effort, and constitutes valid, due, and sufficient notice to all
persons entitled thereto, complying fully with the requirements of Fed. R. Civ. P. 23 and due
process.
12. The notice procedure shall be as set forth below:
(a) No later than 45 days before the Fairness Hearing, GM shall cause to be
mailed, by first class mail, postage prepaid, copies of the Mailed Notice to all Settlement Class
members who can be identified with reasonable effort at each such Settlement Class member’s
last known address;
(b) No later than 45 days prior to the Fairness Hearing, GM shall cause the
Publication Notice to appear in (i) one edition of the Detroit Free Press and (ii) one edition of
U.S.A. Today; and
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(c) No later than 45 days prior to the Fairness Hearing, Class Counsel shall cause the Class Notice to appear on their websites.
13. At or prior to the Fairness Hearing (as defined below), GM shall file with the
Court and serve on Class Counsel proof by declaration or affidavit of the mailing, publication and posting described in paragraphs 12(a)–(c) above.
14. Settlement Class members who wish to comment or object to the Agreement must do so in accordance with the instructions contained in the Class Notice.
15. A hearing (the “Fairness Hearing”) shall be held on ______, 2008, at ______.m., before the Honorable Nancy Edmunds, United States District Court Judge, at the
United States District Court for the Eastern District of Michigan, Theodore Levin U.S.
Courthouse, 231 W. Lafayette Blvd., Detroit, Michigan 48226, for the purpose of determining
(a) whether the proposed Settlement as set forth in the Agreement is fair, reasonable and adequate and should be approved by the Court; (b) whether the Settlement Class satisfies the requirements of Fed. R. Civ. P. 23, and should be finally certified as preliminarily found by the
Court; (c) whether an Order of Final Judgment and Dismissal, substantially in the form of
Exhibit B to the Agreement, should be entered; (d) whether the proposed Plan of Allocation of the Net Settlement Fund is fair, reasonable and adequate and should be approved by the Court;
(e) whether the application for attorneys’ fees and expenses to be filed by Class Counsel should be approved; (f) whether the Named Plaintiffs should receive Service Awards in light of their assistance in prosecuting this Action; and (g) such other matters as the Agreement contemplates and as the Court may deem just and proper.
16. Any application by Class Counsel for attorneys’ fees and reimbursement of expenses, and all papers in support thereof, and any application for Service Awards for the
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Named Plaintiffs shall be filed with the Court at least ten (10) business days prior to the Fairness
Hearing.
17. All other papers in support of the Settlement shall be filed at least ten (10) business days prior to the Fairness Hearing.
18. Any Settlement Class member may appear and show cause (if he, she, or it has any) why the Court should or should not (a) approve the proposed Settlement as set forth in the
Agreement as fair, reasonable and adequate; (b) approve the Plan of Allocation; (c) approve
Class Counsel’s request for attorneys’ fess and reimbursement of expenses; (d) approve the
request for Service Awards for the Named Plaintiffs; and (e) enter the Order of Final Judgment
and Dismissal, substantially in the form of Exhibit B to the Agreement; provided, however, that no person shall be heard with respect to, or shall be entitled to contest, the foregoing matters unless on or before ______, 2008, that person has served by hand, express mail delivery service, or by first-class mail notice of his, her or its intention to appear, setting forth briefly each objection and the basis therefore, together with copies of any papers and briefs in support of said objections and proof of membership in the Settlement Class, upon: Andrew M.
Volk, Hagens Berman Sobol Shapiro LLP, 1301 Fifth Avenue, Suite 2900, Seattle, WA 98101
(on behalf of Named Plaintiffs and the Settlement Class) and upon Robert J. Kopecky and
Timothy A. Duffy, Kirkland & Ellis LLP, 200 East Randolph Drive, Chicago, Illinois 60601 (on behalf of the Defendants); and has filed said objection, papers, and briefs with the Court, upon:
Clerk of the Court, United States District Court, Eastern District of Michigan, Theodore Levin
U.S. Courthouse, 231 W. Lafayette Blvd., Detroit, Michigan 48226. Unless otherwise ordered by the Court, any Settlement Class member who does not make his, her, or its objection in the
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manner provide for herein, shall be deemed to have waived such objection and shall forever be
foreclosed from making any objection to the foregoing matters.
19. The Court may adjourn the Fairness Hearing from time to time and without
further notice to the Settlement Class. The Court reserves the right to approve the Settlement at or after the Fairness Hearing with such modifications as may be consented to by the Settling
Parties and without further notice to the Settlement Class. The Court further reserves the right to
enter a Final Order, dismissing the action with prejudice as to the Defendants and against the
Named Plaintiffs and the Settlement Class at or after the Fairness Hearing and without further notice to the Settlement Class.
20. Upon entry of the Final Order, the Named Plaintiffs, and each of the Settlement
Class members, on behalf of themselves, their successors, assigns, and any other person claiming
(now and in the future) through or on behalf of them, and regardless of whether any such Named
Plaintiff or Settlement Class member ever seeks or obtains by any means any distribution from the Settlement Fund, shall be deemed to have, and by operation of the Final Order shall have, fully, finally and forever released, relinquished and discharged all Released Claims against all
Releasees and shall have covenanted not to sue all such Releasees with respect to all such
Released Claims, and shall be permanently barred and enjoined from instituting, commencing, or prosecuting any such Released Claim against any Released Entity.
21. Upon entry of the Final Order, the Court will dismiss this action in its entirety as to Defendants General Motors Corporation, The Investment Funds Committee of General
Motors’ Board of Directors, E. Stanley O’Neal, Armando Codina, Kent Kresa, Eckhard Pfeiffer,
Phillip A. Laskawy, Percy N. Barnevik, Nobuyuki Idei, John F. Smith, Jr., George M.C. Fisher,
Willard Marriott, Jr., Ellen J. Kullman, G. Richard Wagoner, Jr., General Motors Investment
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Management Corporation (“GMIMCo”), Jean Rose, Cindy Gier, Paul Gonzales, Terry Lee,
Jenny Machak, Robert Moroni, and Michael Morris, with prejudice and without costs (except as
otherwise provided in the Agreement).
22. All reasonable costs and expenses incurred in identifying and providing notice to
Settlement Class members and in administering the Settlement Fund shall be paid as set forth in
the Agreement.
23. The Court retains jurisdiction over all proceedings arising out of or related to the
Settlement Agreement.
24. If for any reason the Settlement Agreement does not become effective in
accordance with the terms of the Settlement Agreement, this Preliminary Approval Order shall
be rendered null and void and shall be vacated nunc pro tunc, and the Action will for all
purposes revert to its status as of the day immediately before the execution of the Term Sheet
agreed to by counsel at the conclusion of the mediation with Judge Phillips.
25. Pending final determination as to whether the Settlement, as set forth in the
Settlement Agreement, should be approved, no Settlement Class member shall commence,
prosecute, pursue, or litigate any Released Claims against any Settling Defendant, whether
directly, representatively, or in any other capacity, and regardless of whether or not any such
Settlement Class member has appeared in the action.
IT IS SO ORDERED this _____ day of , 2008.
HONORABLE NANCY G. EDMUNDS United States District Court Judge
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Exhibit B
Case 2:05-cv-71085-NGE-RSW Document 100-3 Filed 01/15/2008 Page 38 of 48
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
: IN RE GENERAL MOTORS ERISA : Civil Action No. 05-71085 LITIGATION : : Honorable Nancy G. Edmunds
[PROPOSED] ORDER OF FINAL JUDGMENT AND DISMISSAL
This matter having come before the Court for hearing, pursuant to the Order of this
Court, dated , 200 , on the application of the Settling Parties for approval of the settlement set forth in the Class Action Settlement Agreement dated as of
December , 2007 (the “Settlement Agreement” or the “Agreement”), and due and adequate notice having been given to the Settlement Class (as defined in the Agreement) as required in
said Order, and the Court having considered all papers filed and proceedings had herein and
otherwise being fully informed in the premises and good cause appearing therefore, IT IS
HEREBY ORDERED, ADJUDGED AND DECREED that:
1. This Order incorporates by reference the definitions in the Agreement, and all
capitalized terms herein shall have the same meanings as set forth in the Agreement.
2. This Court has jurisdiction over the subject matter of this action and over all
members of the Settlement Class.
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3. Based on the finding set out in paragraph 3 of the Preliminary Order, the Court
CERTIFIES the following class for settlement purposes under Federal Rule of Civil Procedure
23(b)(1) (the Settlement Class):
All persons who were participants or beneficiaries of the General Motors Personal Savings Plan for Hourly Rate Employees or the General Motors Savings-Stock Purchase Program for Salaried Employees at any time between March 18, 1999 and May 26, 2006, inclusive, who bring claims for breach of fiduciary and co- fiduciary duty under ERISA. Excluded from the Settlement Class are Defendants, their heirs, successors in interest and assigns.
The Settlement Class is sufficiently well-defined and cohesive to warrant certification as a non- opt-out class under Fed. R. Civ. P. 23(a) and 23(b)(1). 4. The Named Plaintiffs are adequate class representatives of the Settlement Class and, therefore, the Court hereby appoints Named Plaintiffs as the representatives of the Settlement Class. 5. As required by Fed. R. Civ. P. 23(g), the Court has considered: (i) the work Class Counsel has done in identifying or investigating potential claims in this action; (ii) Class Counsel’s experience in handling class action, other complex litigation, and claims of the type asserted in this action; (iii) Class Counsel’s knowledge of the applicable law and, in particular, its knowledge of ERISA as it applies to claims of the type asserted in this action (breach of fiduciary duty claims arising from the Plans’ investments in company stock); and (iv) the resources Class Counsel has committed to representing the class. Based on these factors, the Court finds that Class Counsel has and will continue to fairly and adequately represent the interests of the Settlement Class. Accordingly, the Court finds that Class Counsel shall serve as class lead counsel with respect to the Settlement Class in this Action. 6. The Court having certified this Action as a non-opt-out class action under Fed. R.
Civ. P. 23(a) and 23(b)(1), Settlement Class members shall be bound by the Settlement in this
Action.
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7. The notice given to the Settlement Class of the Settlement and the other matters
set forth in the Agreement was the best notice practicable under the circumstances, including
individual notice to all members of the Settlement Class who could be identified through
reasonable effort. Said notice provided due and adequate notice of these proceedings and of the
matters set forth in the Agreement, including the proposed Settlement, to all persons entitled to
such notice, and said notice fully satisfied the requirements of Rule 23 of the Federal Rules of
Civil Procedure and due process.
8. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court hereby
approves the Settlement as set forth in the Agreement, finds that said Settlement is, in all
respects, fair, reasonable and adequate with respect to the Settlement Class, and directs that the
Settlement be consummated in accordance with the terms and conditions set forth in the
Agreement.
9. The Court hereby dismisses this action in its entirety as to Defendants General
Motors Corporation, The Investment Funds Committee of General Motors’ Board of Directors,
E. Stanley O’Neal, Armando Codina, Kent Kresa, Eckhard Pfeiffer, Phillip A. Laskawy, Percy
N. Barnevik, Nobuyuki Idei, John F. Smith, Jr., George M.C. Fisher, Willard Marriott, Jr., Ellen
J. Kullman, G. Richard Wagoner, Jr., General Motors Investment Management Corporation
(“GMIMCo”), Jean Rose, Cindy Gier, Paul Gonzales, Terry Lee, Jenny Machak, Robert Moroni, and Michael Morris, with prejudice and without costs (except as otherwise provided in the
Agreement).
10. Upon the Effective Date, the Named Plaintiffs and each of the Settlement Class members, on behalf of themselves, their successors and assigns, and other Persons claiming (now or in the future) through or on behalf of them, and regardless of whether any such Named
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Plaintiff or Settlement Class member ever seeks or obtains by any means, any distribution from
the Settlement Fund, shall be deemed to have, and by operation of this Order, shall have fully,
finally, and forever released, relinquished, and discharged all Released Claims against all
Releasees and shall have covenanted not to sue all such Releasees with respect to all such
Released Claims, and shall be permanently barred and enjoined from instituting, commencing or
prosecuting any such Released Claim against any Releasee.
11. Upon the Effective Date, all obligations of the Releasees to the Named Plaintiffs
and the Settlement Class members arising out of, based upon, or otherwise related to the
transactions and occurrences that were alleged, or could have been alleged, on behalf of the
Named Plaintiffs and the Settlement Class members in this action shall be fully, finally, and
forever discharged, and all Settlement Class members shall be permanently barred and enjoined
from instituting, prosecuting, pursuing or litigating in any manner (regardless of whether such
Settlement Class members purport to act individually, representatively, or in any other capacity and regardless of whether such Persons purport to allege direct claims, claims for contribution, indemnification, or reimbursement, or any other claims) any such obligations.
12. Upon the Effective Date, each of the Settling Defendants shall be deemed to have, and by operation of this Order shall have, fully, finally and forever released, relinquished, and discharged each and all of the Settlement Class members and Class Counsel from all claims
(including unknown claims) arising out of, in way relating to, or in connection with the institution, prosecution, assertion, settlement or resolution of this action or the Released Claims except to enforce the releases and other terms and conditions contained in the Agreement.
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13. This Order is a final judgment in the action as to all claims among the Settling
Defendants, on the one hand, and the Named Plaintiffs and all Settlement Class members, on the other.
14. The Court further finds the Plan of Allocation, as attached to the Settlement
Agreement as Exhibit C, is fair and reasonable to all concerned, and hereby approves the Plan of
Allocation.
15. The Court has considered Class Counsel’s request for attorneys’ fees and the
reimbursement of the costs reasonably incurred in the prosecution of this action, and hereby
awards the following amounts: ______in attorneys’ fees, and
______as reimbursement of costs.
16. The Court has also considered the request for Service Awards for the Named
Plaintiffs, and hereby awards the following amounts: Named Plaintiffs Al Balnius, Jerry L.
Canter, Michael Birmingham, and Bryan Moore, shall each receive Service Awards in the
amount of ______; Named Plaintiffs Jerry Don Fowle and William LaPrad shall
each receive Service Awards in the amount of ______.
17. Without affecting the finality of this Order in any way, this Court retains
continuing jurisdiction over (a) implementation of the Settlement, including the Structural Relief
detailed therein; (b) any award or distribution of the Settlement Fund, including interest thereon;
and (c) all other proceedings related to the implementation and enforcement of the terms of the
Settlement Agreement.
18. In the event that the Effective Date does not occur, this Order shall be rendered
null and void, and shall be vacated nunc pro tunc.
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19. Without further order of the Court, the parties may agree to reasonable extensions
of time to carry out any of the provisions of the Agreement.
IT IS SO ORDERED this _____ day of , 2008.
HONORABLE NANCY G. EDMUNDS United States District Court Judge
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Exhibit C
Case 2:05-cv-71085-NGE-RSW Document 100-3 Filed 01/15/2008 Page 45 of 48
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
: IN RE GENERAL MOTORS ERISA : Civil Action No. 05-71085 LITIGATION : : Honorable Nancy G. Edmunds
PLAN OF ALLOCATION
1. Capitalized terms used herein shall have the meanings ascribed to them in the
Class Action Settlement Agreement in this Action, or in this Plan of Allocation.
2. “Settlement Class Member” includes: All persons who were participants or
beneficiaries of the Plans at any time from March 18, 1999 through May 26, 2006 (the “Class
Period”) and whose accounts included investments in the Company Stock Fund.
3. “Settlement Administrator” means the person or entity retained to implement the
Plan of Allocation and as contemplated in Section 10.4.1 of the Settlement Agreement.
A. Amount to Be Distributed The Net Settlement Amount will be allocated among all eligible Settlement Class Members pursuant to the method described below. The Net Settlement amount is derived by deducting from the Settlement Fund those disbursements approved by the Court and as outlined in the Settlement Agreement § 9.1 (expense of Class Notice and Publication Notice); 9.3 (Taxes and Expenses of the Settlement Fund); 10.2 (attorneys’ fees and expenses); 10.3 (Service Awards for Named Plaintiffs); 10.4.1 (reasonable fees and expenses of any third party retained to implement and/or administer the Plan of Allocation).
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B. Calculation of Each Member’s Share of the Distribution Amount Each Settlement Class Member’s share of the Net Settlement Amount will be calculated as follows: (i) The Net Settlement Amount will be distributed among the Settlement Class Members in accordance with their alleged Net Losses. Each Settlement Class Member’s “Net Loss” will be A + B – C – D, where: A= the dollar amount of the Settlement Class Member’s Plan account balance invested in the Company Stock Fund at the beginning of the Class Period; B=the the dollar amount added to the Settlement Class Member’s Plan account balance invested in the Company Stock Fund during the Class Period; C= the dollar amount credited to the Settlement Class Member’s Plan account balance resulting from dispositions from the Company Stock Fund during the Class Period; and D=the dollar amount of the Settlement Class Member’s Plan account balance in the Company Stock Fund immediately after the end of the Class Period. (ii) If A + B – C – D is less than zero for a given Settlement Class Member, such Class Member’s Net Loss will be zero. (iii) If data is not available from the beginning date of the Class Period, than data from the nearest available date will be used. (iv) The Net Losses of the Settlement Class Members will be aggregated. Each Settlement Class Member will be assigned a Net Loss Percentage, reflecting the percentage of the Settlement Class Member’s loss in relation to all Settlement Class Members’ Net Losses. Each Settlement Class Member’s share of the Net Settlement Amount will be equal to the Net Settlement Amount multiplied by the Settlement Class Member’s Net Loss Percentage. This calculation will be called for each Settlement Class Member the “Preliminary Dollar Recovery.” (v) The Settlement Administrator shall identify all Settlement Class Members whose Preliminary Dollar Recovery is less than twenty-five dollars ($25.00). All such Settlement Class Members shall receive an allocation of zero from the Net Settlement Amount, and the
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Preliminary Dollar Recovery otherwise allocable to such Settlement Class Members shall be reallocated among the other Settlement Class Members proportionately in accordance with their Net Losses (the “Reallocation”). (vi) The Settlement Administrator shall then, taking into account the Reallocation (if applicable), recalculate the Final Dollar Recovery for each Settlement Class Member. If there is no Reallocation, the Preliminary Dollar Recovery for each Settlement Class Member shall also be their Final Dollar Recovery. The sum of the Final Dollar Recoveries must equal the Net Settlement Amount.
C. Distribution of the Allocated Amounts 1. Settlement Class Members who are current Plan participants (“Current Members”). As soon as practicable after deposit of the Net Settlement Amount into the Plan, the Settlement Administrator shall cause to be deposited into each Current Member’s account his or her Final Dollar Recovery as calculated above. The deposited amount shall be allocated among the Member’s investment options in accordance with the existing investment elections then in effect and treated thereafter for all purposes under the Plan as assets of the Plan properly credited to that Member’s account. 2. Settlement Class Members who are former Plan participants or beneficiaries thereof (“Former Members”). The Settlement Administrator shall invest the Former Members’ Final Dollar Recovery in a suitable short term investment vehicle, the primary purpose of which is the preservation of assets, pending distribution to the Former Members. The deposited amount, plus interest, shall then, as soon as practical, be distributed to each Former Member as a distribution from the Plan.
3. Undeliverable and unclaimed amounts. In the event a Former Member's Final Dollar Recovery cannot be delivered because the identity or location of the Former Member or his or her beneficiary cannot be determined after reasonable efforts, or the amount of the Final Dollar Recovery remains unclaimed after a period of one year, then the amount of such
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undeliverable or unclaimed Final Dollar Recovery shall be returned to the trust fund of the Plans and applied to reduce the reasonable expenses of the Plans.
D. Continuing Jurisdiction The Court will retain jurisdiction over the Plan of Allocation to the extent necessary to ensure that it is fully and fairly implemented.
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
: IN RE GENERAL MOTORS ERISA : Civil Action No. 05-71085 LITIGATION : : Honorable Nancy G. Edmunds
[PROPOSED] ORDER PRELIMINARILY APPROVING SETTLEMENT
WHEREAS, the proposed class action captioned In re General Motors. ERISA Litigation,
No. 05-71085, is pending before this Court; and
WHEREAS, the Named Plaintiffs and the Defendants have applied to the Court, pursuant to Fed. R. Civ. P. 23, for an Order preliminarily approving the Settlement of the above-named action in accordance with the terms and provisions of the Class Action Settlement Agreement
(the “Settlement Agreement” or “Agreement”) which, together with the exhibits thereto, sets forth the terms and conditions for a proposed settlement of the action as to the Defendants and for dismissal of the action with prejudice as to the Defendants;
WHEREAS, the Court has read and considered that Agreement and the exhibits thereto and has read and considered all other papers filed and proceedings had herein, and is otherwise fully informed in the premises, and with good cause appearing therefore;
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. This Order (the “Preliminary Approval Order”) incorporates by reference the definitions in the Agreement, and all capitalized terms shall have the same meanings set forth in the Agreement.
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2. The Court has jurisdiction over the subject matter of this action and over all
parties to this action, including all members of the proposed Settlement Class and Defendants.
3. The Court preliminarily finds, for purposes of the Settlement, that the
requirements of Federal Rules of Civil Procedure have been met as to the Settlement Class, in
that:
The Settlement Class is ascertainable from records kept with respect to the Plans and from other objective criteria, and members of the Settlement Class are so numerous that their joinder before the Court would be impracticable. Based on allegations in the Complaint, the Court preliminarily finds that there are one or more questions of fact and/or law common to the Settlement Class. Based on allegations in the Complaint, the Court preliminarily finds that Defendants engaged in uniform conduct affecting members of the proposed Settlement Class, and the Court finds that the claims of the Named Plaintiffs are typical of the claims of the Settlement Class. The Named Plaintiffs will fairly and adequately protect the interests of the Settlement Class in that (i) the interests of the Named Plaintiffs and the nature of their alleged claims are consistent with those of the members of the Settlement Class; (ii) there are no conflicts between or among the Named Plaintiffs and the Settlement Class; and (iii) the Named Plaintiffs are represented by qualified, reputable counsel who are experienced in preparing and prosecuting large, complex ERISA class actions of this type. The prosecution of separate actions by individual members of the Settlement Class would create a risk of (i) inconsistent or varying adjudications as to individual class members, that would establish incompatible standards of conduct for the parties opposing the claims asserted in the Action; or (ii) adjudications as to individual class members that would, as a practical matter, be dispositive of the interests of the other members not parties to the adjudication, or substantially impair or impede those persons’ ability to protect their interests. 4. Based on the finding set out in Paragraph 3 above, the Court PRELMINARILY
CERTIFIES the following class for settlement purposes under Federal Rule of Civil Procedure
23(b)(1) (the Settlement Class):
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All persons who were participants or beneficiaries of the General Motors Personal Savings Plan for Hourly Rate Employees or the General Motors Savings-Stock Purchase Program for Salaried Employees at any time between March 18, 1999 and May 26, 2006, inclusive, who bring claims for breach of fiduciary and co- fiduciary duty under ERISA. Excluded from the Settlement Class are Defendants, and their heirs, successors in interests and assigns.
The Court finds that the Settlement Class is sufficiently well-defined and cohesive to warrant certification as a non-opt-out class under Fed. R. Civ. P. 23(a) and 23(b)(1).
5. As indicated above, the Court finds that the Named Plaintiffs are adequate class representatives of the Settlement Class and, therefore, hereby appoints Named Plaintiffs as the representatives of the Settlement Class.
6. As required by Fed. R. Civ. P. 23(g), the Court has considered: (i) the work Class
Counsel has done in identifying or investigating potential claims in this action; (ii) Class
Counsel’s experience in handling class action, other complex litigation, and claims of the type asserted in this action; (iii) Class Counsel’s knowledge of the applicable law and, in particular, their knowledge of ERISA as it applies to claims of the type asserted in this action (breach of fiduciary duty claims arising from the Plans’ investments in company stock); and (iv) the resources Class Counsel has committed to representing the class. Based on these factors, the
Court finds that Class Counsel has and will continue to fairly and adequately represent the interests of the Settlement Class. Accordingly, the Court finds that Class Counsel shall serve as class lead counsel with respect to the Settlement Class in this Action.
7. The Court having preliminarily determined that this Action may proceed as a non- opt-out class action under Fed. R. Civ. P. 23(a) and 23(b)(1), Settlement Class members shall be bound by any judgment concerning the Settlement in this Action, subject to the Court’s final determination as to whether this Action may so proceed.
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8. The Court preliminarily approves the Agreement, including the Releases contained therein, and preliminarily finds the Settlement to be fair, reasonable, and adequate to the Settlement Class.
9. The Court approves, as to form and content, the Notice of Settlement of Class
Action (the “Mailed Notice”) and the Publication Notice annexed to the Memorandum in
Support of Plaintiffs’ Motion for Preliminary Approval of Proposed Partial Settlement.
10. The date and time of the Fairness Hearing shall be added to the Mailed Notice and the Publication Notice before they are mailed and published, respectively.
11. The Court finds that the mailing of the Mailed Notice in the manner set forth in paragraph 12(a) below, together with the publication of the Publication Notice in the manner set forth in paragraphs 12(b) and (c), below, constitutes the best notice practicable under the circumstances, by providing individual notice to all Settlement Class members who can be identified through reasonable effort, and constitutes valid, due, and sufficient notice to all persons entitled thereto, complying fully with the requirements of Fed. R. Civ. P. 23 and due process.
12. The notice procedure shall be as set forth below:
(a) No later than 60 days before the Fairness Hearing, GM shall cause to be mailed, by first class mail, postage prepaid, copies of the Mailed Notice to all Settlement Class members who can be identified with reasonable effort at each such Settlement Class member’s last known address;
(b) No later than 60 days prior to the Fairness Hearing, GM shall cause the
Publication Notice to appear in (i) one edition of the Detroit Free Press and (ii) one edition of the USA Today; and
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(c) No later than 60 days prior to the Fairness Hearing, Class Counsel shall cause the Class Notice to appear on their websites.
13. At or prior to the Fairness Hearing (as defined below), GM shall file with the
Court and serve on Class Counsel proof by declaration or affidavit of the mailing and publication described in paragraphs 12(a)–(b) above.
14. Settlement Class members who wish to comment or object to the Agreement must do so in accordance with the instructions contained in the Class Notice.
15. A hearing (the “Fairness Hearing”) shall be held on ______, 2008, at ______.m., before the Honorable Nancy Edmunds, United States District Court Judge, at the
United States District Court for the Eastern District of Michigan, Theodore Levin U.S.
Courthouse, 231 W. Lafayette Blvd., Detroit, Michigan 48226, for the purpose of determining
(a) whether the proposed Settlement as set forth in the Agreement is fair, reasonable and adequate and should be approved by the Court; (b) whether the Settlement Class satisfies the requirements of Fed. R. Civ. P. 23, and should be finally certified as preliminarily found by the
Court; (c) whether an Order of Final Judgment and Dismissal, substantially in the form of
Exhibit B to the Agreement, should be entered; (d) whether the proposed Plan of Allocation of the Net Settlement Fund is fair, reasonable and adequate and should be approved by the Court;
(e) whether the application for attorneys’ fees and expenses to be filed by Class Counsel should be approved; (f) whether the Named Plaintiffs should receive Service Awards in light of their assistance in prosecuting this Action; and (g) such other matters as the Agreement contemplates and as the Court may deem just and proper.
16. Any application by Class Counsel for attorneys’ fees and reimbursement of expenses, and all papers in support thereof, and any application for Service Awards for the
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Named Plaintiffs shall be filed with the Court at least ten (10) business days prior to the Fairness
Hearing.
17. All other papers in support of the Settlement shall be filed at least ten (10) business days prior to the Fairness Hearing.
18. Any Settlement Class member may appear and show cause (if he, she, or it has any) why the Court should or should not (a) approve the proposed Settlement as set forth in the
Agreement as fair, reasonable and adequate; (b) approve the Plan of Allocation; (c) approve
Class Counsel’s request for attorneys’ fess and reimbursement of expenses; (d) approve the
request for Service Awards for the Named Plaintiffs; and (e) enter the Order of Final Judgment
and Dismissal, substantially in the form of Exhibit B to the Agreement; provided, however, that no person shall be heard with respect to, or shall be entitled to contest, the foregoing matters unless, no later than twenty (20) days prior to the Fairness hearing, that person has served by hand, express mail delivery service, or by first-class mail notice of his, her or its intention to appear, setting forth briefly each objection and the basis therefore, together with copies of any papers and briefs in support of said objections and proof of membership in the Settlement Class, upon: Andrew M. Volk, Hagens Berman Sobol Shapiro LLP, 1301 Fifth Avenue, Suite 2900,
Seattle, WA 98101 (on behalf of Named Plaintiffs and the Settlement Class) and upon Robert J.
Kopecky and Timothy A. Duffy, Kirkland & Ellis LLP, 200 East Randolph Drive, Chicago, IL
60601 (on behalf of the Defendants); and has filed said objection, papers, and briefs with the
Court, upon: Clerk of the Court, United States District Court, Eastern District of Michigan,
Theodore Levin U.S. Courthouse, 231 W. Lafayette Blvd., Detroit, MI 48226. Unless otherwise ordered by the Court, any Settlement Class member who does not make his, her, or its objection
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in the manner provided for herein, shall be deemed to have waived such objection and shall
forever be foreclosed from making any objection to the foregoing matters.
19. The Court may adjourn the Fairness Hearing from time to time and without
further notice to the Settlement Class. The Court reserves the right to approve the Settlement at or after the Fairness Hearing with such modifications as may be consented to by the Settling
Parties and without further notice to the Settlement Class. The Court further reserves the right to
enter a Final Order, dismissing the action with prejudice as to the Defendants and against the
Named Plaintiffs and the Settlement Class at or after the Fairness Hearing and without further notice to the Settlement Class.
20. Upon entry of the Final Order, the Named Plaintiffs, and each of the Settlement
Class members, on behalf of themselves, their successors, assigns, and any other person claiming
(now and in the future) through or on behalf of them, and regardless of whether any such Named
Plaintiff or Settlement Class member ever seeks or obtains by any means any distribution from the Settlement Fund, shall be deemed to have, and by operation of the Final Order shall have, fully, finally and forever released, relinquished and discharged all Released Claims against all
Releasees and shall have covenanted not to sue all such Releasees with respect to all such
Released Claims, and shall be permanently barred and enjoined from instituting, commencing, or prosecuting any such Released Claim against any Released Entity.
21. Upon entry of the Final Order, the Court will dismiss this action in its entirety as to Defendants General Motors Corporation, The Investment Funds Committee of General
Motors’ Board of Directors, E. Stanley O’Neal, Armando Codina, Kent Kresa, Eckhard Pfeiffer,
Phillip A. Laskawy, Percy N. Barnevik, Nobuyuki Idei, John F. Smith, Jr., George M.C. Fisher,
Willard Marriott, Jr., Ellen J. Kullman, G. Richard Wagoner, Jr., General Motors Investment
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Management Corporation (“GMIMCo”), Jean Rose, Cindy Gier, Paul Gonzales, Terry Lee,
Jenny Machak, Robert Moroni, and Michael Morris, with prejudice and without costs (except as otherwise provided in the Agreement).
22. All reasonable costs and expenses incurred in identifying and providing notice to
Settlement Class members and in administering the Settlement Fund shall be paid as set forth in the Agreement.
23. The Court retains jurisdiction over all proceedings arising out of or related to the
Settlement Agreement.
24. If for any reason the Settlement Agreement does not become effective in accordance with the terms of the Settlement Agreement, this Preliminary Approval Order shall be rendered null and void and shall be vacated nunc pro tunc, and the Action will for all purposes revert to its status as of the day immediately before the execution of the Term Sheet agreed to by counsel at the conclusion of the mediation with Judge Phillips.
25. Pending final determination as to whether the Settlement, as set forth in the
Settlement Agreement, should be approved, no Settlement Class member shall commence, prosecute, pursue, or litigate any Released Claims against any Settling Defendant, whether directly, representatively, or in any other capacity, and regardless of whether or not any such
Settlement Class member has appeared in the action.
IT IS SO ORDERED this _____ day of , 2008.
HONORABLE NANCY G. EDMUNDS United States District Court Judge
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
: IN RE GENERAL MOTORS ERISA : Civil Action No. 05-71085 LITIGATION : : Honorable Nancy G. Edmunds
NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION
TO: All persons who were participants or beneficiaries of the General Motors Personal Savings Plan for Hourly Rate Employees or the General Motors Savings-Stock Purchase Program for Salaried Employees (collectively, the “Plans”) at any time between March 18, 1999 and May 26, 2006 (the “Class Period”), excluding Defendants and their heirs, successors in interest, and assigns.
If you fall within this group of persons, you are a “Settlement Class Member.”
PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY
WHY SHOULD I READ THIS NOTICE?
This Notice is given pursuant to orders issued by the United States District Court for the
Eastern District of Michigan (the “Court”). This Notice serves to inform you of the proposed settlement of this class action lawsuit (the “Settlement”) and the hearing (the “Fairness Hearing”)
to be held by the Court to consider the fairness, reasonableness and adequacy of the Settlement
as set forth in the Settlement Agreement among the Named Plaintiffs and General Motors
Corporation, The Investment Funds Committee of General Motors’ Board of Directors, E.
Stanley O’Neal, Armando Codina, Kent Kresa, Eckhard Pfeiffer, Phillip A. Laskawy, Percy N.
Barnevik, Nobuyuki Idei, John F. Smith, Jr., George M.C. Fisher, Willard Marriott, Jr., Ellen J.
Kullman, Richard Wagoner, Jr., General Motors Investment Management Corporation
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(“GMIMCo”), Jean Rose, Cindy Gier, Paul Gonzales, Terry Lee, Jenny Machak, Robert Moroni,
and Michael Morris (collectively, the “Defendants”), dated as of December 17, 2007 (the
“Agreement”) on file with the Court. This Notice is intended to inform you how this lawsuit and
proposed Settlement may affect your rights and what steps you may take in relation to it. This
Notice is not an expression of any opinion by the Court as to the merits of the claims or defenses
asserted in the lawsuit.
WHAT IS THE MONETARY VALUE OF THE PROPOSED PARTIAL SETTLEMENT?
The Settlement, if approved, would result in the creation of a cash settlement fund in the amount of $37.5 million (the “Settlement Fund”) which, subject to deduction for the costs of
Notice, Service Awards of up to $4,000 for each of the six Named Plaintiffs in recognition of the benefits each has generated for the Settlement Class by coming forward and devoting time and knowledge to the prosecution of this case, and attorneys’ fees and expenses as approved by the
Court, will be distributed to Settlement Class Members pursuant to the Plan of Allocation, which is described in the next section of this Notice.
WHAT IS THE PROPOSED PLAN OF ALLOCATION? The cost of this Notice and any Court-approved costs and attorneys’ fees and Named
Plaintiffs’ Service Awards will be deducted from the Settlement Fund. The remainder of the
Settlement Fund would be paid to Settlement Class Members in accordance with a Plan of
Allocation designed to distribute the Settlement Fund to Class Members roughly in proportion to
any decline in the value of their investments in Company Stock in one of the Plans during the
Class Period. A copy of the Plan of Allocation may be obtained at no charge by contacting Class counsel at the addresses provided below, or downloaded from the settlement website at
GMERISACLASSACTION.COM.
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DO I NEED TO CONTACT CLASS COUNSEL IN ORDER TO PARTICIPATE IN ANY FUTURE DISTRIBUTION OF THE SETTLEMENT FUND? No. If you have received this Notice by mail delivery to your correct address, that means that your name and address are properly maintained in the Plans’ database. If you did not
receive this Notice but believe you should have, or if your address changes, please advise Class
counsel at the address listed below.
WHAT OTHER BENEFITS WILL THE CLASS OBTAIN IF THE SETTLEMENT IS APPROVED?
In addition to the Settlement Fund, the Settlement also provides for significant additional
benefits for Settlement Class members. In particular, pursuant to this Settlement, GM has agreed
that: (1) it will retain an independent fiduciary to continually monitor the prudence of offering the Company Stock Fund as an investment in the Plans; (2) no participant in the Plans will be required to hold any Company Stock in their Plan accounts for any period of time; (3) the
Company will maintain upgraded communications to the Plans’ participants; (4) the Company will make available to all Plan participants free of charge the use of a Savings Plan portfolio tool for a period of one year that will enable Plan participants to model various retirement scenarios
based upon the investment risk profile they select; and (5) the Company will make available to all Plan participants one year of participation in the “Money in Motion” financial advisory program from the Ayco Company at a reduced cost of $30.
WHAT ARE THE REASONS FOR SETTLEMENT?
Plaintiffs’ Class counsel believe that this Settlement is fair and reasonable to the
Members of the Settlement Class. They have reached this conclusion for several reasons. First, if the Settlement is approved, the Settlement Class will receive a significant monetary recovery.
Second, the Settlement Class will receive the benefits outlined in the previous section which
have substantial value as they will allow all Settlement Class members to receive financial
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planning services, and will provide significant protections for Plan participants going forward.
Finally, Class counsel believe that the significant and immediate benefits of the proposed
Settlement is an excellent result for the Class – especially given the uncertain state of the case law under ERISA, which governs Plaintiffs’ claims in this case.
WHAT IS THIS LAWSUIT ABOUT?
A. The Allegations.
In this lawsuit, Plaintiffs allege that Defendants breached their fiduciary duties under the
Employee Income Retirement Securities Act (“ERISA”) by continuing to offer Plan investments
in GM stock, when, according to Plaintiffs, GM stock was no longer a prudent investment.
Plaintiffs further allege that Defendants’ failure to diversify the Plan’s investments harmed the
Plans and the participants in the Plans because of the decline in value of GM stock during the
Class Period. Finally, Plaintiffs allege that Defendants failed to adequately apprise the Plans’ participants of material and adverse information concerning the state of General Motors’ financial condition during the Class Period. Defendants deny Plaintiffs’ allegations, and have vigorously defended the litigation.
The Court has not ruled as to whether the Defendants are liable to Plaintiffs or to the
Class. This Notice is not intended to be an expression of any opinion by the Court with respect to the truth of the allegations in this lawsuit or the merits of the claims or defenses asserted. This
Notice is solely to advise you of the pendency of the action and proposed Settlement thereof and your rights in connection with that Settlement.
B. Status of the Case.
This litigation originally consisted of a series of cases filed in March of 2005. Shortly thereafter, the Court consolidated those cases and appointed lead counsel for Plaintiffs. In April
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of 2006, the Court granted in part and denied in part various motions to dismiss that the
Defendants had filed, but only dismissed the trustee of the Plans, who is not a party to the proposed Settlement. In February of 2007, Plaintiffs filed their motion for Class certification,
but the Court had not ruled on that motion as of the time this proposed Settlement was reached.
In August of 2007, the Court denied in part and granted in part a second motion to dismiss, dismissing only one Defendant, GMIMCo, who is a party to this Settlement. Through Discovery in this case, Plaintiffs obtained and reviewed nearly one million pages of documents.
WHO REPRESENTS THE SETTLEMENT CLASS?
The following attorneys are Class Counsel:
David R. Scott SCOTT + SCOTT, LLC 108 Norwich Avenue P.O. Box 192 Colchester, CT 06415 Phone: (860) 537-5537 Email: [email protected]
-and-
Geoffrey M. Johnson SCOTT & SCOTT, LLC 33 River Street Chagrin Falls, OH 44022 Phone: (440) 347-8200 Email: [email protected]
-and-
Andrew M. Volk HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 Phone: (206) 623-7292 Email: [email protected]
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The following individuals are the named plaintiffs and Class representatives:
Al Balnius Jerry L. Canter Michael Birmingham Bryan Moore Jerry Don Fowle William LaPrad
If you have any questions, you are entitled to consult with Class counsel by contacting them at the phone numbers or email addresses listed above. You may obtain a copy of the Settlement Agreement by contacting counsel at the
telephone number or email address listed above, or you may download a copy from the
Settlement website, GMERISACLASSACTION.COM.
CAN I CHOOSE TO EXCLUDE MYSELF FROM THE CLASS?
No. If you meet the description of a member of the Class, you are a member of the Class.
There is no right to opt-out. You will be bound by the outcome of this litigation, whether favorable or unfavorable to the Class. If this Settlement is approved, you will be bound by it.
HOW WILL THE LAWYERS AND NAMED PLAINITFFS BE PAID?
On or before ______, Class Counsel will file a motion for the award of attorneys’
fees and expenses for Class Counsel. The motion will be considered at the Fairness hearing.
Class Counsel will limit their application for an award of attorneys’ fees to not more than 30% of
the Settlement Fund, plus reimbursement of expenses incurred in connection with the Action.
The Named Plaintiffs will share in the allocation of money paid to the Plans on the same
basis and to the same extent as all other members of the Settlement Class, except that, in
addition, the Named Plaintiffs may each apply to the Court for compensation up to $4,000 in
recognition of the benefits each has generated for the Settlement Class by coming forward and
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devoting time and knowledge to the prosecution of this case. Any compensation awarded to the
Named Plaintiffs by the Court will be payable from the Settlement Fund.
CAN I OBJECT TO THE PROPOSESD SETTLEMENT, THE REQUESTED ATTORNEYS’ FEES, THE REQUESTED SERVICE AWARDS FOR NAMED PLAINTIFFS AND/OR THE PLAN OF ALLOCATION?
Yes. If you are a Settlement Class Member, you may object to the terms of the
Settlement and urge that the Court not approve the Settlement. Whether or not you object to the terms of the Settlement, you may also object to the requested attorneys’ fees and expenses, the requested service awards for the Named Plaintiffs, and/or The Plan of Allocation. In order for
any objection to be considered, you must file a written statement with the Court, Class Counsel
and Settling Defendants’ counsel at the addresses listed herein by ______,
2008.
WHAT ARE MY RIGHTS AND OBLIGATIONS UNDER THE PARTIAL SETTLEMENT?
If you are a Settlement Class Member, you may receive the benefit of, and you will be
bound by, the terms of the proposed Settlement described in this Notice, upon approval by the
Court.
If You Change Your Address, Or If This Notice Was Not Mailed To Your Correct
Address, You Should Immediately Send Notice In Writing Of Your Correct Address To:
GM ERISA Litigation, c/o Rust Consulting, P.O. Box 9478, Minneapolis, MN 55440-9478,
or call toll free at 1-877-625-9452.
WHAT CLAIMS WILL BE RELEASED BY THE PARTIAL SETTLEMENT?
If the proposed Settlement is approved by the Court, the Court will enter a Judgment that
will permanently dismiss this litigation against the Settling Defendants. In addition, on the day
the Judgment becomes effective, all Settlement Class Members, on behalf of themselves, their
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successors and assigns, shall be deemed to have fully, finally and forever released, relinquished,
and discharged all claims (whether known or unknown) of any nature whatsoever that they had
or may have against the Settling Defendants or their insurer based on, arising out of, or related to
any shares of GM stock held in either of the Plans. At the same time, all Settlement Class
Members shall be permanently barred and enjoined from instituting, commencing or prosecuting
any such claim against the Settling Defendants or their insurer. This Settlement does not release
or otherwise compromise any claims by any persons in In re General Motors Corp. Securities &
Derivative Litigation currently pending in the Eastern District of Michigan or any claims in
connection with Young v. General Motors Investment Management Corporation, and Brewer v.
General Motors Investment Management Corporation, both currently pending in the Southern
District of New York.
THE FAIRNESS HEARING
A hearing (the “Fairness Hearing”) will be held on ______, 2008, at ___
_.m., before the Honorable Nancy G. Edmunds, United States District Court Judge, at the United
States District Court for the Eastern District of Michigan, Theodore Levin U.S. Courthouse, 231
W. Lafayette Blvd., Detroit, Michigan 48226, for the purpose of determining (a) whether the
proposed Settlement as set forth in the Agreement is fair, reasonable and adequate and should be
approved by the Court; (b) whether the Named Plaintiffs will receive Service Awards in an
amount not to exceed $4,000 each; (c) whether Class counsel should receive an award in fees
and costs, and the amount of any such award; (d) whether the Proposed Plan of Allocation
should be approved by the Court; and (e) whether an Order of Final Judgment and Dismissal,
should be entered.
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Any Settlement Class Member may appear at the Fairness Hearing and be heard on any
of the foregoing matters; provided, however, that no such person shall be heard unless his, her or
its objection is made in writing and is filed, together with proof of membership in the Settlement
Class and with copies of all other papers and briefs to be submitted by him, her or it to the Court at the Fairness Hearing, with the Court no later than ______, 2008, and showing due proof of service on Plaintiffs’ Class counsel:
Andrew M. Volk HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 and upon the following counsel for the Defendants:
Robert J. Kopecky Timothy A. Duffy KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, IL 60601
Unless otherwise directed by the Court, any Settlement Class Member who does not make his, her or its objection in the manner provided shall be deemed to have waived all objections to this Settlement. HOW DO I OBTAIN ADDITIONAL INFORMATION?
This Notice contains only a summary of the terms of the proposed Settlement. The
records in this litigation may be examined and copied at any time during regular office hours, and subject to customary copying fees, at the Clerk of the Court, United States District Court,
Eastern District of Michigan. In addition, Settlement Documents may be downloaded from the website GMERISACLASSACTION.COM. If you have any questions concerning the matters contained in this Notice, you may call Class Counsel, toll-free, or send an email to Class Counsel
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at the address provided above. DO NOT WRITE TO OR TELEPHONE THE COURT,
DEFENDANTS, OR DEFENDANTS’ ATTORNEYS FOR INFORMATION.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
JUDGE NANCY G. EDMUNDS
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IN RE GENERAL MOTORS ERISA LITIGATION In The United States District Court For The Eastern District Of Michigan
NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND SETTLEMENT HEARING
IF YOU WERE A PARTICIPANT OR BENEFICIARY IN THE GENERAL MOTORS PERSONAL SAVINGS PLAN FOR HOURLY RATE EMPLOYEES OR THE GENERAL MOTORS SAVINGS-STOCK PURCHASE PROGRAM FOR SALARIED EMPLOYEES AT ANY TIME BETWEEN MARCH 18, 1999 AND MAY 26, 2006:
PLEASE READ THIS NOTICE CAREFULLY AS IT MAY AFFECT YOUR RIGHTS.
There is a proposed settlement for a class action pending in the United States District Court for the Eastern District of Michigan: In re General Motors ERISA Litigation, No. 05-71085. A class action complaint was filed against General Motors Corporation (“GM”), the Investment Funds Committee of GM’s Board of Directors, the GM Investment Management Corporation, and certain individuals (the “Defendants”) in March 2005 on behalf of the “Class.” The Class consists of participants or beneficiaries in the GM Personal Savings Plan for Hourly Rate Employees and the GM Savings-Stock Purchase Program for Salaried Employees (the “Plans”) between March 18, 1999 and May 26, 2006 (the “Class Period”). Plaintiffs alleged that the Defendants breached their fiduciary duties under the Employee Retirement Income Security Act of 1974 (“ERISA”) by continuing to offer Plan investments in GM stock when it was no longer prudent to do so, and that they failed to adequately apprise the Plans’ participants of material and adverse information concerning the state of GM’s financial condition during the Class Period. The Court has not ruled as to whether the Defendants are liable to Plaintiffs or to the Class.
Under the proposed settlement, the Defendants will pay $37.5 million into a Settlement Fund to settle all claims against them. If the Court finally approves the settlement, the Settlement Fund will be placed in an interest-bearing account, and certain deductions will be made from the Settlement Fund: 1) the cost of providing notice of the settlement; 2) any Court-approved service awards for each of the six Named Plaintiffs (of up to $4,000) in recognition of the benefits each has generated for the Class by coming forward and devoting time and knowledge to the prosecution of this case; and 3) Court-approved costs and attorneys’ fees (of up to 30% of the Settlement Fund). The remainder of the Settlement Fund will be paid to the Class roughly in proportion to the value of their investments in GM Stock in one of the Plans during the Class Period.
In addition to this monetary recovery, Defendants have agreed to other significant benefits for the Class: 1) GM will retain an independent fiduciary to monitor the prudence of offering GM stock as an investment in the Plans; 2) GM will not require participants to invest contributions in Company Stock; (3) GM will not impose a required retention period on investments in Company Stock; (4) GM will not make matching contributions in the form of investment in Company Stock; 5) GM will maintain upgraded communications to Plan participants; 6) GM will provide a Savings Plan portfolio tool that enables Plan participants to model various retirement scenarios free of charge for one year; and 7) “Money in Motion,” a one-year financial advisory program from Ayco Company, will be available to all Plan participants at a reduced cost of $30.
In connection with Plaintiffs’ request for approval of the settlement, Plaintiffs will ask the court to approve the Plan of Allocation of the Settlement Fund. All members of the Class will have the chance to comment on or object to the Plan of Allocation and/or any requests for attorneys’ fees and costs, as described below.
A hearing will be held on ______, 2008, at__:__ _.m., before the Honorable Nancy G. Edmunds, United States District Judge, at the United States District Court for the Eastern District of Michigan, located at Theodore Levin U.S. Courthouse 231 W. Lafayette Blvd., Detroit, Michigan 48226 to decide: 1) whether the proposed settlement should be approved; 2) whether the Named Plaintiffs will receive Service Awards; 3) whether Class counsel should
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receive an award in fees and costs, and the amount of that award; 4) whether the proposed Plan of Allocation should be approved; and 5) whether an Order of Final Judgment and Dismissal should be entered.
If you are a member of the Class, you do not need to do anything to remain in the Class and participate in the settlement, if it is approved. You will be bound by all proceedings, orders, and judgments entered in connection with the settlement, whether favorable or unfavorable. If the settlement is granted final approval, entry of the judgment will release any and all claims you may have against the Defendant relating in any manner to this case. You cannot exclude yourself from the Class. However, you may comment or object to the settlement, as discussed below.
HOW TO GET MORE INFORMATION
You can access the detailed Official Notice at GMERISACLASSACTION.COM. You can also request the Official Notice by contacting the Notice Administrator:
GM ERISA Litigation c/o Rust Consulting, Inc. P.O. Box 9478 Minneapolis, MN 55440-9478 Toll Free: 1-877-625-9452
HOW TO OBJECT TO THE SETTLEMENT
Any objection to the settlement must comply with the filing and service requirements detailed in the Official Notice no later than ______, 2008. Any objection must also comply with the other requirements set forth in the detailed legal notice referred to above.
THIS NOTICE IS NOT AN EXPRESSION BY THE COURT AS TO THE FAIRNESS OR ADEQUACY OF THE SETTLEMENT.
NO INQUIRIES SHOULD BE DIRECTED TO THE COURT.
Dated: ______, 2008
By Order of the Court THE HONORABLE NANCY G. EDMUNDS
Case 2:05-cv-71085-NGE-RSW Document 100-7 Filed 01/15/2008 Page 1 of 49 EXHIBIT 5
ONE MAIN STREET 4TH FLOOR CAMBRIDGE, MA 02142 TELEPHONE (617) 482-3700 FACSIMILE (617) 482-3003
700 SOUTH FLOWER STREET SUITE 2940 LOS ANGELES, CA 90017 TELEPHONE (213) 330-7150 FACSIMILE (213) 330-7152
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715 HEARST AVENUE SUITE 202 BERKELEY, CA 94710 TELEPHONE (510) 725-3000 FACSIMILE (510) 725-3001
1301 FIFTH AVENUE SUITE 2900 SEATTLE, WA 98101 TELEPHONE (206) 623-7292 FACSIMILE (206) 623-0594
WWW.HBSSLAW.COM
Case 2:05-cv-71085-NGE-RSW Document 100-7 Filed 01/15/2008 Page 2 of 49 HAGENS BERMAN SOBOL SHAPIRO LLP
Table of Contents The Firm 1 Our Major Successes 3 Leading Edge Cases 4 The Practice 7 An Overview of Current Litigation 7 Special Experience with Pharmaceutical Industry Litigation 11 Hagens Berman vs. Big Tobacco 13 A Short Historical Perspective of Major Litigation Handled by Hagens Berman Sobol Shapiro 15 Securities Litigation 17 Environmental Litigation 20 Partners Steve W. Berman 22 Jeniphr A.E. Breckenridge 23 Robert B. Carey 23 Elizabeth A. Fegan 24 Erin K. Flory 25 Reed R. Kathrein 25 Sean R. Matt 26 David P. Moody 26 David S. Nalven 27 Edward Notargiacomo 27 Christopher A. O’Hara 28 George W. Sampson 28 Anthony D. Shapiro 29 Thomas M. Sobol 29 Craig R. Spiegel 30 Jeffrey T. Sprung 31 Andrew M. Volk 31 Tyler S. Weaver 32 Of Counsel Jeffrey D. Friedman 33 Nicholas Styant-Browne 33 Associates Leonard W. Aragon 34 Ivy D. Arai 34 Lauren Guth Barnes 35 Elaine T. Byszewski 35 Kimberly Dougherty 36 Steve Fimmel 36 Debra A. Gaw 36 Lee M. Gordon 37 Lisa M. Hasselman 38 Daniel Kurowski 38 Jeffrey A. Lang 38 Robert F. Lopez 39 Barbara A. Mahoney 39 Timothy P. Mahoney 40 Gregory H. Matthews 40 Martin D. McLean 41 Diego Rodriguez 41 Shana E. Scarlett 41 Ronnie Seidel Spiegel 42
Case 2:05-cv-71085-NGE-RSW Document 100-7 Filed 01/15/2008 Page 3 of 49 HAGENS BERMAN SOBOL SHAPIRO LLP
Shayne C. Stevenson 42 Andrew St. John 43 Genessa A. Stout 43 Amy M. Wilkins 44 References 45 A Perspective on Our Performance from the Bench 46
Case 2:05-cv-71085-NGE-RSW Document 100-7 Filed 01/15/2008 Page 4 of 49 HAGENS BERMAN SOBOL SHAPIRO LLP
The Firm Based in Seattle, Washington, Hagens Berman Sobol Shapiro LLP (HBSS) was founded in 1993 with one purpose - to pursue the type of law that most interested the founders. This involved representing plaintiffs in class actions and multi-party, large-scale complex litigation and becoming engaged in cases that had the potential for having a positive impact on protecting the rights of investors, consumers, workers, and the environment.
Since then, the firm has stayed true to that purpose and become one of the nation’s leading firms in these fields, earning an international reputation for excellence and innovation.
Our Focus Our main focus is to represent plaintiffs in securities, investment fraud, product liability, tort, antitrust, consumer fraud, employment, environmental, and ERISA cases. In doing so, our firm has become particularly skilled at managing multi-state and nationwide class actions through an organized, coordinated approach that implements an efficient and aggressive prosecutorial strategy in order to place maximum pressure on the defendant. In the last two years the firm has been rated by the National Law Journal in the top ten of plaintiffs’ firms in the country.
We Win Lawyers in the field of mass tort and class action litigation are often accused of acting in their own interests or settling cheaply. HBSS believes that our excellence stems from a commitment to try each case and obtain maximum recovery for our clients. Our opponents know this and often seek to thwart HBSS’ appointment as a lead counsel.
Winning is especially important to HBSS because our compensation depends so much on our perform- ance. We devote approximately 95 percent of our time to litigation under fee agreements that tie our pay to the results we achieve, not to the hours we bill. We have developed innovative contingent and flat fee arrangements with many clients, including partial contingent fees that reduce our hourly rates for a stake in the outcome. We have even used reverse contingent fee arrangements for defending cases where the amount we saved our clients determined our compensation.
Working at our own risk and expense encourages efficient work habits. That efficient approach carries over to our hourly business. The quality of our service, the lack of duplication of effort, access to your lawyers, and our ability to gear up quickly to handle your case all make selecting HBSS a cost-effective decision.
Our Offices As we have flourished over the years, we have increased our national presence through a network of branch offices in Boston, Phoenix, Los Angeles, Chicago and San Francisco.
Founded in 1995, our Phoenix office has driven important litigation and has a strong legal presence in Arizona and the southwest. Shortly thereafter in 1996, we founded the Los Angeles office, which manages our significant case load in California.
In June 2002, our firm opened an office in the Boston area. Now referred to as the Cambridge office, this office leads our drug litigation efforts, challenging the prices of dozens of prescription drugs, and claiming that manufacturers artificially drove up drug prices through numerous anti-competitive practices.
In 2004, in another step to become the nation’s premier law firm in class-action and large-scale litigation, we opened a Chicago branch. The firm first created a presence among Illinois’ legal and political scene
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with the landmark litigation against the tobacco industry, in which Steve Berman served as special assistant attorney general for the state.
In another large step towards the firm’s continued growth and strong national presence, a San Francisco branch was opened in 2007. A great deal of consumer, antitrust and securities work is in the San Francisco courts and this office allows HBSS to become a major presence there.
A Nationwide Reach The firm expanded its practice to include representing governmental entities, including actions against the tobacco industry and the pharmaceutical industry. In the groundbreaking state tobacco litigation, the firm represented the states of Alaska, Arizona, Idaho, Illinois, Indiana, Montana, Nevada, New York, Ohio, Oregon, Rhode Island, Vermont, and Washington as special assistant attorneys general in their law enforcement actions against the tobacco industry. Our firm has also served as court-appointed lead class counsel in state and federal litigation in states throughout the country, with heavy caseloads in Arizona, California, Idaho, Illinois, New York, and Washington.
Hagens Berman Sobol Shapiro’s lawyers have played leading and major roles in cases that have resulted in total recoveries of more than $206 billion.
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Our Major Successes
STATE OF WASHINGTON, ET AL. V. PHILIP MORRIS, ET AL. HBSS represented 13 states in the largest recovery in litigation history ($206 billion recovery).
IN RE VISA-MASTERCARD ANTITRUST LITIGATION HBSS served as co-lead counsel in the largest antitrust settlement in history – valued at $27 billion.
ENRON ERISA LITIGATION HBSS is co-lead counsel in the ERISA litigation that has recovered in excess of $250 million, the largest ERISA settlement in history.
TENET HEALTHCARE LITIGATION The firm obtained a settlement – the first of its kind – on behalf of a class of 2 million uninsured patients in 19 different states. Based on novel theories upheld by the court, HBSS helped create a first of its kind settlement recently featured in the National Law Journal.
DRAM ANTITRUST LITIGATION HBSS was co-lead counsel and the case settled for $345 million resulting in a recovery for purchasers of DRAM.
LUPRON SETTLEMENT A $150 million settlement on behalf of patients using Lupron for prostate cancer.
RELAFEN SETTLEMENT A $75 million settlement in favor of plaintiffs who purchased Relafen.
HUNGARIAN GOLD TRAIN SETTLEMENT HBSS filed a class-action suit against the United States on behalf of Hungarian Holocaust survivors. The suit claimed the plaintiffs’ valuable personal property was loaded on a train by the Hungarian Nazi government during the waning days of WWII. The United States Army later seized the train and its contents. The suit contends that the property was never returned to its owners or heirs, and was instead unlawfully appropriated by the U.S.
The settlement in the case of Rosner, et al. v. United States creates a $25.5 million settlement fund, and provides for a statement by the United States government acknowledging the events surrounding the Gold Train property. Because of the passage of time, lost documentation, and lack of an inventory, there is limited information about the specific items that were on the Gold Train and taken into U.S. custody in 1945. Thus it is very hard to fairly assess and compensate individual class members based on their personal losses. Therefore, the U.S. government and representatives for the class have agreed that a minimum of $21 million in the settlement fund be used to augment existing social welfare programs for Hungarian victims of Nazi persecution. The settlement agreement also allocates $500,000 to fund and create an archival collection of information and artifacts for the benefit of the class and other educational purposes.
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Leading Edge Cases
CB RICHARD ELLIS SEXUAL HARASSMENT LITIGATION. Hagens Berman Sobol Shapiro filed a class-action lawsuit against CB Richard Ellis, Inc. on behalf of a group of female employees. Filed in U.S. District Court in Illinois, the suit claims that the company has perpetuated a climate of severe sexual harassment against its female employees. According to the complaint, CB Richard Ellis discriminates against female employees by subjecting them to a hostile, intimidating and offensive work environment, which has resulted in emotional distress and other physical and economic injuries to the class.
HBSS negotiated an innovative and unprecedented settlement of a nationwide class action alleging sexual harassment over an eight-year period on behalf of 16,000 current and former female employees of a commercial property brokerage firm. In addition to requiring changes to human resources policies and procedures, the settlement affords class members the opportunity to participate in a stream-lined claims process that provides the potential for individual awards up to $150,000 per class member. The “process- based” settlement, adjudicated by an independent and neutral Special Master, will award a range of damages to claimants who can demonstrate to the satisfaction of the Special Master that they were subjected to unlawful harassment. Claims are subject to certain monetary caps depending on a claimant’s elections regarding the extent of the process in which they wish to participate and the level of confidenti- ality their claim will be afforded. Additionally, under the terms of the settlement agreement, the company agreed to several human resources measures. These activities include amending or tightening existing harassment policies, implementing enhanced training for all employees, increasing supervisor accountability to address sexually inappropriate conduct in the workplace, enhancing record-keeping practices, and conducting two annual reviews of settlement compliance by a court appointed monitor.
DRAM MANUFACTURERS LITIGATION. Hagens Berman Sobol Shapiro has filed a suit on behalf of purchasers of DRAM (Dynamic Random Access Memory) from Micron Technology, Crucial Technologies, Infineon Technologies, Hynix Semiconductor Inc. and Samsung Electronics, claiming the companies secretly agreed to reduce supply of DRAM in order to artificially raise prices.
According to the suit, the companies conduct caused Michael Dell, founder and CEO of Dell Computers, to state during a news conference, “I think we saw cartel-like behavior by a couple of DRAM suppliers.”
HBSS won an appointment as co-lead counsel in a contested hearing and the case settled for $345 million.
PFIZER LITIGATION (CELEBREX). Hagens Berman Sobol Shapiro has filed a lawsuit on behalf of consumers who purchased the drug Celebrex®. The suit claims that the drug’s distributor, Pfizer, Inc., launched an aggressive and misleading marketing campaign to promote Celebrex, while failing to warn consumers that the drug poses risks of blood clots, heart attack, stroke, and other cardiovascular problems.
According to the complaint, Celebrex ads overstate its safety by saying that it provides effective pain relief without the side effects inherent to similar drugs. The misleading ads drove the demand and price of Celebrex beyond what it would have been, had Pfizer truthfully disclosed the drug’s risks, the suit states.
Pfizer’s misrepresentation of Celebrex is apparent in the process it used to gain approval by the FDA, the complaint alleges. The suit claims that despite Pfizer’s prior knowledge that Celebrex posed serious heart risks, it chose to downplay these risks and push the drug on claims that it improves gastrointestinal safety. To support these claims, in 1998 Pfizer funded a clinical CLASS trial to show that Celebrex has greater gastrointestinal safety than traditional pain relievers such as aspirin and ibuprofen. The suit also contends that in Pfizer’s plan to gain swift FDA approval, it did not conduct any significant tests on cardiovascular safety, or publish any data on cardiovascular events from the CLASS trial. Therefore, having only
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reviewed the results of the gastrointestinal safety tests, the FDA approved Celebrex for the relief of osteoarthritis in December 1998, the suit states.
Once it gained approval, Pfizer’s advertising campaign proved very profitable, the suit claims. Though the company spent more than $400 million on direct-to-consumer advertising for Celebrex, sales have yielded billions of dollars, including $2.3 billion for the first three quarters of 2004, the lawsuit states.
TENET HEALTHCARE. HBSS pioneered this suit with claims against Tenet Healthcare Corporation. Originally filed in December 2002, the lawsuit claimed that patients not covered by insurance plans were charged excessive prices at 114 hospitals owned and operated by Tenet subsidiaries in 16 different states.
The settlement class includes any uninsured patient who received medically necessary services at any of its hospitals between June 15, 1999 and December 31, 2004, and paid for services based on the hospital’s gross charges. Under the terms of the proposed settlement, Tenet has agreed to refund amounts paid in excess of certain thresholds.
INTEL ANTITRUST LITIGATION. HBSS has filed the nation’s first proposed class-action lawsuit against Intel on behalf of consumers, claiming the microprocessor giant has unlawfully maintained a monopoly by engaging in a relentless, worldwide campaign to coerce customers to refrain from dealing with AMD, another microprocessor manufacturer.
According to the suit, consumers ultimately foot this bill, in the form of inflated PC prices and the loss of freedom to purchase computer products that best fit their needs.
The proposed class action includes all United States residents who purchased a microprocessor in the United States indirectly from Intel from June 29, 2001 through the present.
HBSS is one of the co-lead counsel.
STARBUCKS ANTITRUST LITIGATION. HBSS is litigating an antitrust claim against Starbucks Corporation for its alleged monopolization of the retail coffee market in Class-A buildings in downtown Bellevue and Seattle. The plaintiff is a small coffee retailer who has attempted to enter the market but has allegedly been prevented from doing so by Starbucks’ dominant presence and use of exclusive-dealing arrangements that are designed to prevent competitors from entering the market.
CAREMARK LITIGATION. The class action lawsuit alleges that Caremark Rx. Inc., concealed revenues derived from drug manufacturers to avoid paying commissions to its marketing consultants. Caremark and its predecessor companies provide pharmaceutical and formulary services to corporate health plans, discount card programs, managed care organizations, insurance companies, labor unions, and governmental agencies. Caremark then contracts with drug manufacturers to sell the manufacturers’ drugs to its clients. In return, Caremark receives rebates, fees, and other revenue streams from the manufacturers
HBSS represented a marketing consultant who alleged that Caremark failed to honor its contractual obligations to pay its marketing consultants a percentage of total revenues or a set rate for each drug purchased. The complaint further alleged that Caremark paid commissions based on partial revenues and deliberately hid certain revenues to avoid paying proper commissions. The case settled amicable in September 2007.
INSURANCE LITIGATION. HBSS has pioneered theories to ensure that in first and third party contexts consumers and insureds always receive the treatment and benefits to which they are entitled. We have certified several cases, including those where we secured expanded coverage owed and therefore more benefits because of a statutory violation, where we seek to recover for underpayments of benefits based on software programs, where we seek a return if uninsured/underinsured premiums received because if misleading tactics of the insurer. In addition, on individual cases, we have taken insurers to
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trial and recovered millions of dollars for our clients by way of verdict for bad faith, punitive damages, wage losses, and medical and rehabilitative care.
SEXUAL ABUSE LITIGATION. HBSS has represented a wide spectrum of individuals who have been the victims of sexual abuse, including children and developmentally disabled adults. We treat each case individually, with compassion and attention to detail and have the expertise, resources and track record to stand up to the toughest opponents. In the area of sexual abuse, our attorneys have obtained record- breaking verdicts, including the largest personal injury verdict ever upheld by an appellate court in the State of Washington.
NURSING HOME NEGLIGENCE. Nursing home negligence is a growing problem throughout the nation. As our population ages, reports of elder abuse and nursing home negligence continue to rise. Today, elder abuse is one of the most rapidly escalating social problems in our society. HBSS is uniquely qualified to represent the victims of elder abuse and nursing home negligence. Our attorneys have secured record-breaking settlements in this area of the law and are committed to holding nursing homes accountable.
SOCIAL WORK NEGLIGENCE. Social workers play a critical role in the daily lives of our state’s most vulnerable citizens. Social workers, assigned to protect children, developmentally disabled and elderly adults are responsible for critical aspects in the lives of tens of thousands of citizens who are unable to protect themselves.
Many social workers do a fine job. Tragically, many do not. When a social worker fails to monitor and protect his/her vulnerable client, the results are often catastrophic. All too often, the failure to protect a child or disabled citizen leads to injury or sexual victimization by predators.
With over $40 million in recoveries on behalf of vulnerable citizens who were neglected by social workers, the Hagens Berman Sobol Shapiro Personal Injury Group is the most experienced, successful and knowledgeable group of attorneys in this dynamic area of the law.
CLEAR CHANNEL ANTITRUST LITIGATION. HBSS obtained class certification in five regional test cases on behalf of purchasers of tickets to live rock concerts promoted by Clear Channel Communica- tions Inc. or its successor Live Nation. Prosecuting 22 regional cases filed nationwide, HBSS is leading the fight against the nation’s largest media and entertainment companies, which used their market dominance to illegally inflate ticket prices to live rock concerts across the country. The lawsuits assert that Clear Channel used anticompetitive, monopolistic practices to coerce artists into using the company’s promotional services. The suits allege that Clear Channel’s unlawful leveraging of its economic strength in the FM radio business obligates artists who would otherwise turn to other concert promoters to use Clear Channel’s promotion services.
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The Practice
AN OVERVIEW OF CURRENT LITIGATION*
ANTITRUST LITIGATION. Hagens Berman Sobol Shapiro works to keep marketplaces free of price fixing and collusion, protecting the availability of high quality, low priced goods. The firm’s antitrust practice includes nationally certified class actions against manufacturers of disposable contact lenses and a high-profile case in which the Justice Department has commenced parallel proceedings challenging the charges imposed by Visa and MasterCard in connection with use of the debit card.
Microsoft honored the firm by selecting Hagens Berman to represent the company in antitrust litigation. The firm served as national counsel in more than 100 class actions currently faced by the company.
In another major antitrust action the firm was named lead trial counsel in the case of Information Resources, Inc. v. A.C. Nielsen and the case was settled thereafter
Other major antitrust cases include DRAM, Intel, SRAM, Flash Memory and Korean Air.
CIVIL RIGHTS. Hagens Berman Sobol Shapiro actively seeks out complex civil rights cases, taking on the role of advocate for a variety of individuals and organizations. The firm vigilantly keeps abreast of new state and national legislation that allows it to better represent its clients, including diverse communities such as World War II prisoners of war and conscripted civilians.
Hagens Berman Sobol Shapiro led a team of lawyers in the Hungarian Gold Train case. The firm’s involvement follows from its representation of former forced and enslaved laborers for German companies in the Nazi Slave Labor Litigation.
In conjunction with the Trial Lawyers for Public Justice, the firm recently won a settlement from city officials after filing a class action claiming violation of the First and Fourth Amendments. Tens of thousands of Seattle citizens became targets during their peaceful protest of the WTO convention on December 1, 1999. After Seattle officials banned any form of peaceful protest, Seattle police attacked anyone found in the designated “no protest” zones with rubber bullets and tear gas, arresting and incarcerating city residents for three to four days. A jury returned a verdict in favor of plaintiffs.
Riot Police Douse Peaceful Protesters with Pepper Spray Riot Police Confront Protes- tors on Downtown Seattle Streets
* In alphabetical order.
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CONSUMER LITIGATION. Using large-scale litigation to pressure defendants who defraud or take advantage of customers, Hagens Berman Sobol Shapiro pursues opportunities to confront deceptive advertising practices, financing and insurance scams, and redlining practices, among other consumer fraud techniques. Consumer litigation remains one of the firm’s largest practice areas, with attorneys representing millions of consumers in numerous actions.
DRUG LITIGATION. The firm actively engages in litigation that improves the quality of health products and medical systems, and confronts unscrupulous medical distributors and producers of products such as pharmaceutical drugs, herbal supplements and beauty products. Hagens Berman Sobol Shapiro frequently partners with consumer interest and senior organizations to challenge false advertising, pricing schemes, and other drug fraud activities.
Recent successes include reaching a settlement on behalf of all diet drug users in Montana and exerting landmark pressure on Abbott Laboratories causing them to send a letter warning laboratories about the risks of false positives in their tests for hCG. Hagens Berman Sobol Shapiro represents several plaintiffs in important litigation against Abbott after false positives erroneously diagnosed plaintiffs with cancer leading to unnecessary treatment including, in some cases, hysterectomies. In 2003, the firm settled a case against Rexall representing thousands of women who purchased their cellulite-fighting product “Cellasene.” The plaintiffs alleged that the product didn’t work, and Hagens Berman Sobol Shapiro filed the first case in the nation challenging Cellasene marketing. The FTC recently filed a similar action against Rexall.
ENVIRONMENTAL LITIGATION. Believing that protecting and repairing our ecosystem from irresponsible use is some of the most rewarding work a law firm can do, the firm frequently represents homeowners and landowners injured by environmental abuses. The firm has handled a variety of landmark environmental litigation cases in the Northwest and internationally, using relationships with top- notch environmental experts to develop compelling arguments.
In a recent high-profile case, the firm successfully pursued a class action on the adverse environmental Washington State Ferry Chinook impacts of fast ferry service in Washington state. The settlement brought relief to the class members and slowed ferry vessels when traveling in sensitive areas. In other litigation, the firm represented plaintiffs in a case against Kerr-McGee, on behalf of thousands of persons exposed to radioactive material in a residential area in West Chicago, Illinois.
The firm’s Arizona office represented the Sierra Club in a case challenging the U.S. Forest Service’s approval of a commercial shopping center on the edge of the Grand Canyon. The District Court granted the firm’s request to enjoin development of the shopping mall, protecting the Grand Canyon from overdevelopment.
ERISA LITIGATION. The federal Employee Retirement Income Security Act (ERISA) spells out the fiduciary duties that plan trustees owe to participants and beneficiaries in retirement programs such as stock options or 401(k) plans, along with guidelines on disability, medical insurance, and severance pay.
Hagens Berman Sobol Shapiro specializes in recovering pension and retirement funds lost due to imprudent direction by plan directors, as well as safeguarding the rights of plan participants. Courts have recognized the firm’s aptitude in handling large ERISA cases, most recently appointing the firm co-lead counsel in the Enron employee litigation. The firm is also litigating ERISA cases on behalf of employees of IPALCO and Montana Power.
The firm pioneered the discovery of fraud in discounts to employee health plans, representing thousands of Blue Cross health insurance plan participants in 10 states who allege that the insurer overcharges participants, obtaining discounts from hospitals but not passing that savings along when calculating co- payments.
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The firm’s discovery led to a Congressional inquiry concerning the company’s billing practices. Hagens Berman Sobol Shapiro also represents plaintiffs in a proposed class action against Regence, breaking new ground in the coverage of contraceptives by health insurance plans.
INSTITUTIONAL INVESTOR LITIGATION. Hagens Berman Sobol Shapiro provides specialized securities litigation services to public, private and Taft-Hartley pension funds, offering its proprietary and unparalleled asset protection and recovery services to both foreign and domestic institutions. By giving clients the ability to identify, investigate and react to potential wrongdoing by companies in which they invest, the firm enables them to be proactive, not merely reactive.
Recent class actions led by Hagens Berman Sobol Shapiro obtained significant settlements. In the Morrison Knudsen case, the firm secured a settlement of approximately 60 percent of the largest estimates of possible losses for class members, while in the Oppenheimer Delta Partners Litigation the class was awarded settlements of approximately 80 percent of possible losses. In the Midisoft case, Hagens Berman Sobol Shapiro obtained more than 50 percent of total damages. Numerous other recent cases such as Waste Management and Cendant have obtained hundreds of millions of dollars in settlements and recovered a large percentage of damages for injured shareholders.
INTELLECTUAL PROPERTY LITIGATION. Hagens Berman Sobol Shapiro has handled numerous cases involving various aspects of intellectual property (IP). Acting on inquiries from individuals and corporations, HBSS has conducted several investigations into the prosecution and defense of IP rights. IP law is designed to protect the property created by intellect, such as designs used in commerce, including inventions, patents, copyright, and trade dress. IP creations also include artistic works and literary works. In recent years, with the development of new electronic technology, advanced and specialized computer programs and Internet commerce, the definition of IP and how to protect the rights of such property has created very complicated and complex business issues. HBSS has successfully prosecuted and defended individuals and corporations in the area of intellectual property.
PRODUCT LIABILITY LITIGATION. When a product fails to meet accepted or advertised standards, the results can be hazardous or even deadly. In such cases, consumers deserve a right to redress. Hagens Berman Sobol Shapiro’s product liability practice represents consumers in variety of product cases including automobile defects, home equipment and defective software.
Firm successes include a settlement involving Louisiana-Pacific Siding in which more than 130,000 claims have been paid exceeding $500 million and a $925 million settlement in a polybutylene piping case. Hagens Berman Sobol Shapiro also represents plaintiffs alleging defects in trunk release mechanisms in a case surrounding the death of four children who died locked in the trunk of a car. The firm continues to pursue Ford and Nissan on behalf of consumers with defective accelerators.
SECURITIES LITIGATION. A cornerstone of the firm’s practice, Hagens Berman Sobol Shapiro contests securities fraud in courts across the nation. To prosecute these complex cases, the firm uses highly experienced experts in a variety of fields as an integral part of the prosecution team, expanding the group’s expertise in sophisticated financial and accounting issues.
In a high-profile case, Hagens Berman Sobol Shapiro pursued Boeing after a tremendous stock loss resulted from the company allegedly conspiring to conceal production problems and bolster share prices through the conclusion of a stock-swap purchase of McDonnell Douglas. After several years of intense discovery and litigation, Boeing eventually agreed to a settlement that provided more than $92 million to recoup investors for their losses.
The firm has also acted as co-lead counsel and plaintiffs’ counsel representing investors in class actions for securities violations against a variety of corporations including WPPSS, Boston Chicken, Oppenheimer, PriceCostco, MK Rail, Bonneville Pacific, Mercer International, and Omega Environmental.
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PERSONAL INJURY LITIGATION. Committed to justice and appropriate compensation in issues of personal injury and wrongful death, the firm assists clients in a range of personal injury litigation. Hagens Berman Sobol Shapiro knows that the health and quality of life of our clients hangs in the balance of the firm’s work and has developed an exceptional track record in obtaining significant settlements and awards for the firm’s clients.
WHISTEBLOWER LITIGATION. Hagens Berman Sobol Shapiro represents “whistleblowers” in a variety of industries with a significant number of cases involving clients using the False Claims Act to recover damages suffered by the federal government. Current cases include actions involving fraudulent Medicare billing, defense contractor fraud and distinctive theft cases.
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SPECIAL EXPERIENCE IN LITIGATION WITH THE PHARMACEUTICAL INDUSTRY For years, HBSS has aggressively pursued pharmaceutical industry litigation, helping lead the fight for more affordable prescription drugs and for a more responsible pharmaceutical and medical device industry. We believe HBSS’s pharmaceutical litigation practice is second to none in the nation in terms of expertise, commitment, and landmark results. In recent years, HBSS’s aggressive prosecution of pharmaceutical industry litigation amounted to recovery of over one-half billion dollars in gross settlement funds. Recently, HBSS was lead counsel in three significant settlements:
NEW ENGLAND CARPENTERS HEALTH BENEFITS FUND V. FIRST DATABANK. HBSS recently negotiated a settlement, preliminarily approved by the United States District Court in the District of Massachusetts, that will result in a four percent rollback of prices on hundreds of drugs which represent ninety-five percent of the nation’s retail branded drugs. The net impact of this rollback has been estimated to be in the billions of dollars and may lower the retail price for hundreds of brand name drugs, resulting in savings for health plans and consumers who have been overcharged for prescription drugs.
AVERAGE WHOLESALE PRICE DRUG LITIGATION. HBSS acted as lead trial counsel in a consolidated trial against four defendants. The court returned a verdict in favor of plaintiffs on claims against AstraZeneca and BMS, marking one of the first trial defeats for the pharmaceutical industry. On the heels of that verdict, AstraZeneca settled the consumer class for $34 million. Each class member may receive double damages if they make a claim, a result unprecedented in a class settlement. Settlement with the consumer class was then obtained with BMS, again at double class member damages.
HBSS was the lead negotiator and counsel in a $70 million settlement with GlaxoSmithKline, the world’s second largest pharmaceutical manufacturer, over its role in artificially inflating the Average Wholesale Price that is used as a benchmark for almost all prescription drug sales in the United States. Thirty percent of the settlement will go to consumers, primarily individuals treated for cancer, who incurred co- payments based on AWP for certain drugs manufactured by GSK. The remaining seventy percent will go to third party payors, including health plans, HMOs, and other organizations, which purchased the GSK drugs.
SERONO DRUG LITIGATION. On February 14, 2007, the United States District Court for the District of Massachusetts preliminarily approved a $24 million settlement negotiated by HBSS that will reimburse a class of consumers and third-party payors, including self-insured employers, health and welfare plans, and insurance companies, for part or all of their purchases of the AIDS drug Serostim. The underlying litigation alleges that Serono, Inc., a global biotechnology company, implemented a scheme to substantially increase the sales of Serostim by duping patients diagnosed with HIV into believing they were suffering from AIDS-wasting and required use of the drug.
In addition to these cases, HBSS is litigating more than two dozen other significant prescription drug and medical device cases involving antitrust and consumer protection claims. The various cases being prosecuted by HBSS challenge many aspects of systemic misconduct by pharmaceutical manufacturers and others in the prescription drug distribution chain, but they all have the same fundamental purposes: to lower prices of prescription drugs, improve access for consumers, and recover funds unfairly paid by governmental and private purchasers around the country. A description of existing and settled leading cases prosecuted by HBSS over the last five years is set forth below.
The following are examples of existing pharmaceutical and medical matters in which HBSS plays a lead role:
ZYPREXA PRODUCTS LIABILITY LITIGATION. HBSS is lead counsel for a nationwide class of private third-party payors in litigation against Eli Lilly & Co. This lawsuit challenges Lilly’s fraudulent
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promotion of the antipsychotic drug Zyprexa and alleges that Lilly engaged in a variety of fraudulent schemes to inflate sales at the expense of consumers and payors.
NEURONTIN MARKETING AND SALES PRACTICES LITIGATION. HBSS is the court- appointed liaison counsel for Plaintiffs and a member of the five-firm Plaintiffs Class Steering Committee. This lawsuit against Pfizer and its subsidiary, Parke-Davis, accuses the companies of circumventing FDA regulations to promote scientifically unproven “off-label” use of their drug Neurontin.
BEXTRA AND CELEBREX MARKETING SALES PRACTICES AND PRODUCT LIABILITY LITIGATION. HBSS is a member of the Plaintiffs Steering Committee and chair of the Purchase Claims Committee in MDL litigation against Merck and Pfizer on behalf of consumers and purchasers of the prescription pain medications Bextra and Celebrex. The suits allege Merck and Pfizer knowingly withheld information of the increased risk associated with the drugs of cardiovascular and other ailments in order to persuade doctors and consumers to purchase the drugs at inflated prices.
NEXIUM LITIGATION. HBSS is lead counsel in litigation against AstraZeneca Pharmaceuticals on behalf of purchasers of Nexium, a prescription drug used to treat heartburn. The suits allege AstraZeneca engaged in fraudulent and illegal activities related to the promotion and sale of Nexium, including sham patent infringement litigation against certain generic manufacturers in an attempt to extend the life and sales of Prilosec, Nexium’s precursor.
LOVENOX LITIGATION. HBSS is lead counsel in this litigation against Aventis Pharmaceuticals on behalf of end-payors of the anticoagulant Lovenox. The suit alleges Aventis engaged in sham patent infringement litigation against certain generic manufacturers in an attempt to thwart production of, and thus competition from, generic versions of Lovenox from entering the U.S. market.
The following examples show pharmaceutical and medical matters in which HBSS achieved substantial settlements:
LUPRON MARKETING AND SALES PRACTICES LITIGATION. This case alleges widespread fraudulent marketing and sales practices against TAP Pharmaceuticals, a joint venture between Abbott Laboratories and Takeda Pharmaceuticals, Inc., and it follows TAP’s agreement to pay $875 million in combined criminal and civil penalties regarding marketing and sales practices for the prostate cancer drug Lupron. In late 2004, a proposed resolution on behalf of consumers and third-party payers of Lupron in the amount of $150 million was announced.
AUGMENTIN ANTITRUST LITIGATION. HBSS is court-appointed co-lead counsel in this antitrust litigation against Glaxo SmithKline Corporation and its predecessors al1eging that GSK engaged in a pattern and practice of sham litigation and fraudulent procurement of a patent relating to the broad spectrum antibiotic, Augmentin. A settlement of $29 million on behalf of consumers and other payers of Augmentin was recently consummated.
PAXIL DIRECT PURCHASER LITIGATION. HBSS was court-appointed co-lead counsel in this litigation on behalf of direct purchasers of the “blockbuster” selective serotonin reuptake inhibitor Paxil in claims against Glaxo SmithKline Corporation alleging that GSK engaged in sham patent litigation with respect to certain patents, all in an effort to delay competition from the entry of a generic form of the drug. HBSS announced a $100 million resolution of these claims in 2004.
RELAFEN ANTITRUST LITIGATION. HBSS was court-appointed liaison counsel and the firm has helped spearhead this litigation against Glaxo SmithKline Corporation and its predecessors alleging that GSK fraudulently obtained a patent to prevent a generic version of Relafen, a frequently prescribed brand name pharmaceutical, from coming to market. Litigated for twelve to eighteen months, HBSS announced a proposed $75 million resolution of end-payor claims in 2004.
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Hagens Berman vs. Big Tobacco Hagens Berman Sobol Shapiro played a major role in representing state government in litigation against the tobacco industry. Because of the unprecedented nature of this litigation, Hagens Berman Sobol Shapiro’s role and approach is detailed here.
A TRIAL HARDENED LITIGATION TEAM. In the State Attorneys General actions, only two states actually took their cases to trial - Washington and Minnesota. This means that in a government tobacco law enforcement and medical cost recovery action, only two private firms in the entire country have trial experience against the industry - Hagens Berman Sobol Shapiro is one of those firms.
In the Washington case, the firm’s managing partner Steve Berman was co-lead trial counsel. In this role at trial, he participated in voir dire, delivered the majority of the State’s opening statement and presented witnesses, two of whom would become the most important witnesses in the liability phase of the case (Dr. Jack Henningfield, an expert on cigarette design, and Dr. William Farone, former director of research for Philip Morris). Steve also chaired major strategic decisions, and the firm assisted in the preparation of other witnesses presented by the State’s other trial lawyers in the case.
AN EMPHASIS ON LAW ENFORCEMENT. Hagens Berman Sobol Shapiro was instrumental in developing what came to be accepted as the predominant legal tactic to use against the tobacco industry; to wit, emphasizing traditional law enforcement claims such as state consumer protection, antitrust and racketeering laws. Before Hagens Berman Sobol Shapiro’s involvement in the state cases, the predominant claims being pursued by most of the states were traditional tort claims, which proved in many states to be unsuccessful. With the exception of the Idaho case, not a single court in a case where Hagens Berman Sobol Shapiro served as private counsel to a state dismissed a state’s consumer protection or antitrust claims.
In three states - Arizona, Ohio and Oregon - Hagens Berman Sobol Shapiro took the lead in pressing the respective states’ racketeering statutes and, as a result, the tobacco defendants were faced with the very real prospect of a profits disgorgement remedy, penalties and, in the case of Ohio, the payment of double damages.
EXCELLENT WITNESS RAPPORT. One of the keys to beating the tobacco industry lies with presenting the proper witnesses, both expert and lay witnesses. With so many states in litigation against the industry, the time and resources of many of the important expert witnesses were taxed. As a result, several witnesses decided to limit their involvement to a small number of states. We found that some of these witnesses most approved of the manner in which Hagens Berman Sobol Shapiro assisted in the preparation and presentation of their testimony. Therefore, our firm and the states we worked with became priority clients of these witnesses.
LEGAL RESEARCH AND BRIEFING. With the emphasis on law enforcement claims, Hagens Berman Sobol Shapiro attorneys built on their already considerable experience utilizing consumer statutes and became experts in consumer protection, antitrust and racketeering laws in the states the firm represented. Because many of these state statutes were patterned after and followed federal law, our expertise with the FTC Act, the Clayton and Sherman Acts, and federal RICO grew. In each state we represented, Hagens Berman Sobol Shapiro took the lead in opposing defendants’ onslaught of motions to dismiss and, where applicable, motions for summary judgment. As the record reflects, we achieved a remarkable degree of success in these endeavors.
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LIABILITY DOCUMENT DATABASE. Hagens Berman Sobol Shapiro helped initiate and coordinate the so-called multi-state document review project. This was instituted to ensure that all relevant documents were produced, reviewed and selected for use by the states in the Attorneys General actions. More than 30 million documents were reviewed under the firm’s supervision by 12 lawyers from the firm and more than 40 assistant attorneys general. As a result of these efforts, we have compiled comprehensive liability documents that are readily searchable by employing a variety of search criteria and are easily accessible. In addition, having gone to trial against the industry, we organized the best or “hottest” liability documents in our trial exhibit notebooks.
DE-PRIVILEGING EXPERTISE. Some of the most damaging liability documents for the industry were and are improperly cloaked from discovery by false claims of attorney-client and work product privilege. Many of these documents were brought to light in the Minnesota litigation, but thousands remained. In a coordinated strategy employed across many of the states that Hagens Berman Sobol Shapiro represented, we continued the de-privileging of these important documents. This effort required countless hours in hearings with judges and special masters, in addition to extensive briefing.
A FOCUS ON TARGETING MINORS. In tandem with our general law enforcement approach, Hagens Berman Sobol Shapiro focused the state legal claims on the industry’s deplorable practice of luring children to tobacco use. As part of this focus, in Arizona and Ohio we commissioned an expert survey of adolescents’ perception of tobacco advertising in general and, more specifically, on the deception of RJR’s Winston ‘No Bull/No Additives’ campaign. The survey data revealed that the vast majority of minors exposed to the campaign believed that the ‘No Additives’ slogan meant that the cigarette was either less addicting, safer or less harmful to health (when, of course, this was not true). This campaign was the target of a preliminary injunction motion in the Arizona case that was still pending when the states settled their cases. On March 3, 1998, the FTC announced it settled a claim it had subsequently filed on this issue based on our work in Arizona.
TESTING OUR TRIAL STRATEGY WITH FOCUS GROUP STUDIES. Hagens Berman Sobol Shapiro conducted numerous focus groups in different states, thus acquiring unparalleled experience with the reactions of potential jurors.
SERVING THE ELECTED CLIENT. Hagens Berman Sobol Shapiro was chosen, after competitive bidding, as counsel for 13 states, including those with Democratic and Republican leadership. The reason for our retention, in addition to excellent trial skills and complex litigation service, was our sensitivity to the needs of clients who were elected officials.
KEY ROLE IN THE NATIONAL SETTLEMENT NEGOTIATIONS. Steve Berman and Steven Mitchell were both heavily involved in the proposed June 20, 1997 national settlement and the November 1998 final state settlement that settled all of the state’s cases for $206 billion. As such, both have unparalleled experience in negotiating with tobacco industry lawyers and the tobacco companies’ CEOs.
TRIAL EXPERIENCE. The trial of the Washington case was one of the largest trials conducted in the United States, lasting three months. Thousands of exhibits were offered into evidence and the case was presented using state-of-the-art technology.
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A Short Historical Perspective
(in alphabetical order)
ALDUS LITIGATION. The firm acted as co-lead counsel for shareholders in an action settled for payment of up to $10.6 million to Aldus shareholders.
EGGHEAD LITIGATION. In two separate cases, the firm acted as lead counsel for shareholders injured as a result of misrepresentations made in connection with Egghead’s initial public offering of common stock, and secondary trading in Egghead stock.
FOODMAKER LITIGATION. The firm acted as co-lead counsel after Foodmaker’s stock declined in reaction to the Jack-in-the-Box poisoning outbreak. The discovery work done by the firm was utilized and copied by personal injury lawyers who recovered in excess of $100 million from Foodmaker.
IMMUNEX LITIGATION. The firm acted as co-lead counsel on behalf of a class of purchasers of Immunex stock. A settlement of $14 million was approved by the federal court.
INTERMEC LITIGATION. The firm acted as co-lead counsel for shareholders after Intermec stock dropped 30 percent in value over a two-quarter period as a result of a succession of overly optimistic earnings estimates. Our efforts netted a $5.9 million settlement for the shareholders.
LOUISIANA-PACIFIC SIDING LITIGATION. The firm acted as co-lead counsel on a consumer case arising from the failure of a new type of hardboard siding used to clad homes. Over a million consumers are in the class. The case resulted in a landmark, highly favorable settlement that has resulted in compensation for homeowners across the country.
MICHAEL MILKEN LITIGATION. The firm, on behalf of beneficiaries of several Washington State public employee pension funds which are administered by the Washington State Investments Board (‘WSIB’), brought a RICO and breach of fiduciary duty suit against noted junk bond king Michael Milken, and over forty individuals who were involved as principals or participants in the leveraged buyouts of Beatrice, Safeway, Pace, City and Motel Six. This case pitted the firm against some of America’s most powerful individuals and companies. A settlement was reached and received final approval from the Court.
MORRISON KNUDSEN LITIGATION (‘MK’). MK was at the time the largest employer in Boise, Idaho. After a significant write off, Hagens Berman Sobol Shapiro filed a shareholder class action, alleging that MK’s CEO, William Agee, and other officers, had misled the investors as to MK’s true status. The lawsuit claimed that MK was concealing hundreds of millions in losses. In Boise, the public and even the Court were skeptical that this venerable local company could have misled investors. After bitterly fighting the suit, MK ousted Agee and admitted that it was facing hundreds of millions in losses and declared bankruptcy. Hagens Berman Sobol Shapiro was able to recover over $63 million for investors, resulting in what is believed to be the largest settlement in the State of Idaho (except in the tobacco case).
NORDSTROM LITIGATION. The firm acted as co-lead counsel for shareholders claiming that the company had misrepresented its liabilities for labor in publicly filed documents distributed to the Investment Community. Steve Berman obtained a $7.5 million settlement from the company and its inside directors.
PIPER JAFFRAY. This action was brought as a class action on behalf of purchasers of common shares of eight closed-end investment companies established, marketed and operated by the Piper Jaffray Companies, Inc., and various subsidiaries. These funds contained Mortgage-backed securities that were routinely referred to as ‘AAA’ or ‘government securities’ by defendants in an effort to convince investors
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of their overall safety. Defendants ignored or misrepresented the effect that interest rate or market risks would have on these types of investments. In reality, these securities are extremely complex and intricate and are acutely sensitive to changes in market interest rates and are often used as part of an overall strategy to speculate on the course of market interest rates in the future. Unfortunately for Class members, the Defendants lost their gamble on interest rates using the shareholders’ money. Market interest rates rose sharply throughout 1994, dealing a devastating blow to the speculative portfolios of the various closed-end funds. Due to the undisclosed risks that defendants undertook, the closed-end funds – and the Class members – suffered massive losses. A settlement valued at over $50 million was achieved.
SPOKANE ASPHALT ANTITRUST LITIGATION. Carl Hagens and Steve Berman represented independent asphalt pavers who had been excluded from the Spokane asphalt industry. As a result of the case, the Spokane paving industry is open to independent contractors.
U.S. WEST LITIGATION. The firm represented shareholders of U.S. West New Vector in a challenge to the proposed buyout of minority shareholders by U.S. West. As a result of this litigation, the proposed buyout was stayed, and a settlement was achieved that resulted in a $63 million increase in the price of the buyout.
WASHINGTON PUBLIC POWER SUPPLY SYSTEM SECURITIES LITIGATION. Steve Berman and James Solimano represented bondholders and the bondholder trustee of WPPSS Nuclear Projects 4 and 5 bonds. Following the largest municipal bond default in history ($2.25 billion), the trustee, joined by bondholders, brought one of the most complex and protracted securities fraud cases ever filed. After more than five years of intensive litigation, the trustee and the other plaintiffs recovered in excess of $850 million in settlements from more than 100 defendants. The implementation of various settlement agreements continues and will be a firm matter.
WASHINGTON STATE FERRY WORKERS WAGE LITIGATION. The firm represented a class of on-call seamen who alleged that they were not paid for being ‘on call’ in violation of federal and state law. The case resulted in a rearrangement in work assignments and of the ‘on call’ system that has resulted in better working conditions.
WPPSS COST SHARING LITIGATION. The firm represented Chemical Bank, the trustee for WPPSS Projects 4 and 5 bondholders, in litigation against nearly 100 defendants. The bank recovered $55 million in costs misallocated among the WPPSS nuclear projects.
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Securities Litigation
Securities litigation has been one of the cornerstones of Hagens Berman Sobol Shapiro’s practice since the inception of our firm. We have recovered hundreds of millions of dollars for institutional and individual investors defrauded by unscrupulous management of publicly held corporations.
In light of recent cases, such as Enron, Hagens Berman Sobol Shapiro’s work is even more well recognized as crucial to protecting the rights of investors.
Hagens Berman Sobol Shapiro provides unparalleled services to combat corporate fraud. Our attorneys are experts in a wide array of issues unique to specific industries. We also use highly experienced experts in a variety of fields as an integral part of the prosecution team.
According to the former Chairman of the SEC, Arthur Levitt, “… we are witnessing an erosion in the quality of earnings, and therefore the quality of financial reporting. Managing may be giving way to manipulation; Integrity may be losing out to illusion.”1
We recognize that investing is, by nature, a speculative business involving a wide variety of risks. But no money manager or individual investor should be forced to endure undue risk as a result of misreported financial conditions. We vigorously pursue fraud recovery litigation that forces corporations to answer to the investors they have deceived.
Our firm has represented investors in nationwide class actions for securities violations against WPPSS, Boeing, Einstein-Noah Bagel, Boston Chicken, Exxon-Mobil, Oppenheimer, Morrison Knudsen, ProCyte, Wall Data, PriceCostco, MK Rail, Bonneville Pacific, Mercer International, NeoRx, Egghead and Omega Environmental.
We currently have securities actions in California, Colorado, Florida, Idaho, Michigan, Utah, Tennessee, Texas, Minnesota, New York, and Washington.
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1 The Numbers Game, remarks by Arthur Levitt on September 28, 1998 at the NYU Center for Law and Business.
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SERVICES PROVIDED TO INSTITUTIONAL INVESTORS
Hagens Berman Sobol Shapiro is a leading provider of specialized securities litigation services to public, private and Taft-Hartley pension funds. We offer proprietary and unparalleled asset protection and recovery services to both foreign and domestic institutions. Our institutional services provide participants with the ability to identify, investigate and react to potential wrongdoing by companies they invest in.
Our program enables clients to be proactive, not reactive. We update our clients on an ongoing basis regarding their exposure and advise them on their legal rights and potential remedies. We make a commitment to our institutional and pension fund clients to protect and defend all of their rights as shareholders and guardians of their beneficiaries’ retirement funds.
When money managers suffer lost percentage points as a result of corporate deception, our litigation services allow them to recover a substantial percentage of those losses, increasing the money manager’s performance. However, we realize that as a fiduciary, money managers may not have the ability or desire to risk funds on speculative litigation using typical hourly-rate law firms. Therefore, Hagens Berman Sobol Shapiro provides institutional investors with several methods of fraud recovery litigation services.
Depending on the size and facts of the case, we may bring individual action on behalf of the institutional investor. Another method is for the institutional investor to be the lead plaintiff in a securities class action against the offending company. Hagens Berman Sobol Shapiro helps clients decide which course of action is best for them, and is well-qualified to pursue either method of recovery.
THE VALUE OF CLASS-ACTION LITIGATION
Many class-action cases are very successful, and provide meaningful recoveries to the class members. For example, the Morrison Knudsen and Oppenheimer Delta Partners litigations - both led by Hagens Berman Sobol Shapiro - obtained settlements of approximately 60 percent and 80 percent, respectively, of the largest estimates of possible losses for the class members. The Midisoft case, also directed by Hagens Berman Sobol Shapiro, obtained more than 50 percent of total damages. Many other recent cases, such as Waste Management and Cendant, have obtained hundreds of millions of dollars in settlements and recovered a large percentage of damages for injured shareholders.
DUTIES OF A LEAD PLAINTIFF
As the lead plaintiff in a class action, the court requires that you will adequately and fairly represent the class. To perform these duties, the institution must be familiar with the litigation. This does not mean it must know every aspect of the litigation. Hagens Berman Sobol Shapiro will keep the institution informed of major events and this will satisfy its duty.
The institution may and should confer with us at any time it feels it is appropriate. The institution must also agree to vigorously prosecute the litigation. Meaning, you must hire lawyers experienced in class- action litigation. Hagens Berman Sobol Shapiro has national experience in class actions, and has vigorously prosecuted numerous securities fraud class-action cases, with combined recoveries in the hundreds of millions of dollars. All costs in prosecuting a class action are advanced and paid by Hagens Berman Sobol Shapiro, and the institution is not responsible for their payment whether we are successful or unsuccessful.
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In short, the institution has minimal time commitments and no financial responsibilities, but will be encouraged to provide its opinions and insights.
AN INSTITUTION'S PRESENCE CAN DRAMATICALLY AFFECT THE LITIGATION
As lead plaintiff, an institution has a direct influence on the strategies and disposition of the case, thereby having a profound effect on the ultimate success of the litigation.
As lead plaintiff, the institution will be a key member of the decision-making team. It will be able to help decide if a contemplated settlement is too low or if it is reasonable under the circumstances. For institutions that have been unhappy with the returns from previous class-action lawsuits they have participated in, overseeing the process to ensure that they are happy with the ultimate result is a compelling reason to participate.
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Environmental Litigation
Environmental litigation on behalf of victims of toxic spills or pollution and other land use practices is also an increasing area of focus for Hagens Berman Sobol Shapiro. The following is a profile of some of our cases.
CHINOOK FERRY LITIGATION. The firm represented a class of property owners who challenged Washington State Ferries’ high-speed operation of a new generation of fast ferries in an environmentally sensitive area of Puget Sound. Two of the ferries at issue, the Chinook and Snohomish, caused environmental havoc and property damage, compelling the property owners to take action. After a successful preliminary trial, the trial court enjoined the operation of the ferries at high speed pending compliance with environmental laws, which was later overturned on appeal by the Washington Supreme Court. A SEPA study conducted in response to the suit confirmed the adverse environmental impacts of the fast ferry service. The trial court approved a $4.4 million settlement that is among the most favorable in the annals of class litigation in the State of Washington.
GRAND CANYON LITIGATION. The firm represented the Sierra Club in a challenge to a Forest Service decision to allow commercial development on the southern edge of the Grand Canyon National Park. Recently the trial court enjoined the project.
Exxon Valdez Oil Spill Cleanup Exxon Valdez Oil Spill
EXXON VALDEZ OIL SPILL LITIGATION. The firm represents various classes of claimants, including fisherman and businesses located in Prince William Sound and other impacted areas, who were damaged by the worst oil spill in United States history. A $5 billion judgment was awarded by a federal court jury and a $98 million settlement was achieved with Alyeska, the oil company consortium that owned the output of the pipeline. The Ninth Circuit Court of Appeals recently overturned the punitive damage award and indicated the district court should reconsider the amount, but not the issue of whether punitive damages were appropriate.
KERR-MCGEE RADIATION CASE. The firm represented a class action on behalf of residents of West Chicago, Illinois, who have been exposed to radioactive uranium tailings from a rare earth facility operated by Kerr-McGee. The trial court has upheld plaintiff’s claim, and Kerr-McGee unsuccessfully sought review in the 7th Circuit Court of Appeals. A medical monitoring settlement valued in excess of $5 million has received court approval.
SEATAC LITIGATION. The firm represented homeowners who claimed that the operation of the Seattle-Tacoma Airport destroyed their property values. The case was the largest inverse condemnation case asserted against a governmental agency in the Pacific Northwest. After a jury trial, the case settled.
SKAGIT VALLEY FLOOD LITIGATION. The firm represented farmers, homeowners and businesses who claimed damages as a result of the 1990 flooding of this community. The case, which had been in litigation for ten years and involved a jury trial of over five months in Snohomish County, was the longest jury trial ever conducted in Snohomish County. Following the entry of 53
Skagit Valley Flood
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verdicts against Skagit County, the trial Court entered judgments exceeding $6.3 million. Ultimately, the State Supreme Court reversed this judgment. Despite this reversal, the firm is proud of this representation and believes that the Supreme Court erred.
RIO TINTO. In a landmark case, the firm represents victims of Rio Tinto’s mining operation on the island of Bougainville. To build the mine, Rio chemically defoliated, bulldozed and sluiced off an entire mountainside of rain forest. During the years of the mine’s operations, billions of tons of toxic mine waste was generated and dumped onto the land and into pristine waters, filling major rivers with tailings, polluting a major bay dozens of miles away, and the Pacific Ocean as well. As a result of its flagrant disregard for the environment and the people of Bougainville, Rio dispossessed the people of Bougain- ville from their land, destroyed their culture and polluted their environment and lifestyle. Rio destroyed previously pristine rivers and land that provided substance and a way of life for the native people and went to the heart of their local culture. The pollution is so extensive that plaintiffs and members of the class have been exposed to toxic chemicals. In certain villages, the chemicals still remaining have caused the death and/or illness of residents.
Rio’s actions on Bougainville were so egregious that they sparked an uprising designed to close the mine.
When the uprising succeeded, Rio and the PNG government brought troops in to reopen the mine. Rio Dead Forest Vegetation as a provided transport for these troops. After initial unsuccessful efforts, the PNG government, as the agent of Result of Raised Water Table Levels Near Old Kuneka or co-venturer of Rio and with the support and encouragement of Rio, instituted a military blockade of the island that lasted for almost ten years. The purpose of the military blockade was to coerce the Bougain-
ville people into surrender so that the mine could be reopened. Both Rio and PNG made enormous profits from the mine and were anxious for it to operate, notwithstanding the resistance of the island’s people. The blockade prevented medicine, clothing and other essential items from reaching the people of Bougainville. Hospitals were forced to close, women died needlessly in childbirth and young children died from easily preventable diseases. Rio’s top manager of the Bougainville mine encouraged continuation of the blockade for the purpose of ‘starving the bastards’ out. This blockade directly caused the deaths of at least 10,000 people between 1990 and 1997. According to the Red Cross, the blockade killed more than 2,000 children in just its first two years of operation. By the time the war ended in 1999, 10% of the population of Bougainville, approximately 15,000 civilians, were killed.
The action alleges that Rio’s conduct violated customary international law, including prohibitions against destruction of the right to life and health, and prohibitions against racial discrimination, and war crimes. Rio’s conduct violated the settled standards for the protection of human rights and the environment recognized by customary international law and United States legal precedent. The plaintiffs seek redress under the federal Alien Tort Claims Act (28 U.S.C. § 1350).
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The Partners
STEVE W. BERMAN Direct Dial: (206) 268-9320 Email: [email protected]
Mr. Berman helped to found the firm in 1993, and is the managing partner. He has served as lead or co- lead counsel in securities, consumer, products liability, antitrust, employment class actions, and complex litigations in the Northwest and throughout the country. Some of the high-profile matters Mr. Berman has prosecuted include the Washington Public Power Supply System, Exxon Valdez Oil Spill, Michael Milken Litigation, Enron Litigation, Tobacco Litigation, and the Visa/MasterCard Litigation.
Mr. Berman’s successes include obtaining a settlement of $92 million in the Boeing Securities Litigation, representing stock and bondholders in the Bonneville Pacific Securities Litigation which resulted in settlements exceeding $30 million, and gaining approval of a $290 million settlement in the Louisiana Pacific Siding Litigation, the largest product liability settlement in Pacific Northwest history. In the WPPSS Securities Litigation, Mr. Berman represented bond purchasers in the largest securities trial in U.S. history. In addition to being a member of the trial team, the lead counsel designated him as a core group member alongside a group of class plaintiffs and Chemical Bank attorneys charged with prosecuting the case. The case resulted in a settlement exceeding $850 million, the largest recovery in a securities class action at the time.
Mr. Berman’s innovative approaches to litigation have earned him significant recognition. When beneficiaries of state employee pension funds refused to pursue sums from Michael Milken’s misappropriation of warrants, Mr. Berman stepped forward, pioneering the Milken action and using a unique approach to recovery. As co-lead counsel in multi-state class actions against Blue Cross, he uncovered Blue Cross’ breach of fiduciary duties owing to plan participants in the manner in which co- payments are calculated. His discovery led to Blue Cross being sued in dozens of states with lawyers throughout the country emulating his approach. Eventually the way in which co-pays are calculated has changed industry-wide resulting in billions of savings for consumers.
Steve is currently working on the McKesson-First Data Bank Litigation, Nexium Litigation, Average Wholesale Price Litigation, Lipitor Litigation, as well as representing several states on drug pricing litigation (Arizona, Nevada, and Montana) and securities litigation (Ohio). He is also lead counsel in the DRAM Antitrust Litigation and the Rio Tinto Litigation.
Perhaps most notable is Mr. Berman’s role as a special assistant attorney general for the states of Washington, Arizona, Illinois, Indiana, New York, Alaska, Idaho, Ohio, Oregon, Nevada, Montana, Vermont, and Rhode Island in the landmark Tobacco Litigation.
A principal in the groundbreaking settlement with Liggett and the proposed national settlement, Mr. Berman was one of only two private attorneys acting as members of the negotiating team. He conceived the idea to use Liggett as the whistleblower and secured the cooperation of Bennet LeBow, Liggett’s CEO, as well as insisting that Liggett waive all claims of attorney-client privilege. Mr. Berman also negotiated the settlement that required Liggett to admit what the industry has denied to this day: smoking causes cancer and heart disease; nicotine addicts; and the industry targets children. Liggett’s admissions, the cooperation of LeBow, and the release of previously privileged documents were instrumental factors in driving the industry to settlement. Liggett’s ‘plea of guilty’ added momentum to the 1997 proposed national settlement, which led to the eventual $206 billion multi-state settlement in 1998.
The announcement of the final settlement found Mr. Berman in his ninth week of trial presenting the state of Washington’s case to a jury. His successful handling of the bulk of the trial earned him great respect. Subsequently, some of Washington State’s leading trial lawyers hired Mr. Berman to try a certified class action brought by union trust funds against tobacco. The book, People v. Big Tobacco, describes his role in the Tobacco Litigation.
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Other notable actions led by Mr. Berman include the Morrison Knudsen Securities Litigation, Contact Lens Disposable Antitrust Litigation and Piper Jaffray Closed-End Funds Litigation in which he obtained a settlement valued at nearly $60 million. Mr. Berman’s cases have also involved corporate entities such as Egghead, Foodmaker, SuperMac, Immunex, Digital Systems, and Aldus.
More recently, Microsoft recognized Mr. Berman’s experience and expertise when the company retained him to be part of the core national team representing the company in antitrust class actions arising from Judge Jackson’s Findings of Fact in the Department of Justice antitrust case against the company.
In April 2000, the National Law Journal listed Mr. Berman as the top litigator in the state and, in June, named him as one of the 100 most powerful lawyers in the nation. In January 2001, Seattle Magazine featured him in an issue profiling the top lawyers in Seattle. In June 2006, the National Law Journal once again named Mr. Berman as one of the nation’s 100 most influential lawyers in America. Mr. Berman was also named as a finalist for the Trial Lawyer of the Year award for 2006 by The Trial Lawyers for Public Justice.
Mr. Berman graduated from the University of Michigan in 1976 and earned his law degree from the University of Chicago Law School in 1980.
JENIPHR A.E. BRECKENRIDGE Direct Dial: (206) 224-9325 Email: [email protected]
Ms. Breckenridge is a partner at Hagens Berman Sobol Shapiro where she has practiced law since its founding in 1993. Ms. Breckenridge’s practice concentrates on securities fraud and consumer litigation. Ms. Breckenridge is involved with the firm’s Average Wholesale Price Litigation. Other notable cases include leading the firm’s efforts in the recently-settled Raytheon Securities Litigation, Boeing Securities Litigation, Abbott Laboratories Litigation and Tobacco Litigation.
In the Tobacco Litigation, Ms. Breckenridge spearheaded Hagens Berman Sobol Shapiro’s effort to develop facts surrounding defendant British American Tobacco Industries and its subsidiaries, including Brown & Williamson and BATCo. Reviewing BAT documents held in a repository in Guildford, England, she explored issues of American court jurisdiction over BAT entities; BAT’s participation in the worldwide industry conspiracy; and BAT and Brown & Williamson lawyer involvement in the conspiracy, as well as other issues related to liability.
Ms. Breckenridge earned her undergraduate degree from Georgetown University in political theory and economics. She graduated from the University of Maryland Law School, where she was the Notes and Comments editor of the Maryland Law Review.
ROBERT B. CAREY Direct Dial: (602) 224-2626 Email: [email protected]
Mr. Carey has been the managing partner at Hagens Berman Sobol Shapiro’s Phoenix office since 2002. His practice includes handling numerous class-action lawsuits against a variety of organizations and companies - including the Swift Truckers Litigation and the Average Wholesale Price Litigation. He recently acted as co-lead counsel for the Hyundai Litigation, which settled for approximately $100 million.
Mr. Carey’s previous experience focused on personal injury, medical malpractice and various class-action cases. In addition to arguing several high-profile cases in state Supreme Courts and Courts of Appeals, he litigated multi-billion dollar claims by counties for damages stemming from tobacco-related illnesses and dozens of consumer and insurance class actions in various states. Mr. Carey also served as judge pro
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tempore in Maricopa County Superior Court and as special counsel for Hagens Berman Sobol Shapiro suits to recover Medicaid and statutory damages in the landmark public health litigation.
From 1990 to 1996, as Arizona’s Chief Deputy Attorney General, Mr. Carey oversaw all major legal, policy, legislative, and political issues for the Arizona attorney general’s office. He also obtained a $4 billion divestiture, a landmark $165 million antitrust settlement, and won numerous consumer and tort cases. Mr. Carey drafted and spearheaded passage of Arizona’s law requiring the DNA testing of all sex offenders and instituted a penalty requiring that criminals pay the cost of victims’ rights. He was also a principal draftsman of the first major overhaul of Arizona’s criminal code, and drafted the bulk of the federal Prisoner Litigation Reform Act of 1995 for Senators Bob Dole and Jon Kyl, and authored the counterpart Arizona act that served as a model for other states and the federal act. His legislative experience began when he served as a former campaign staffer, intern, and staff member for U.S. Senator John McCain, during and after Senator McCain’s first run for public office.
Recognized by the judges of the Superior Court of Arizona in Maricopa County for outstanding contributions to the justice system, Mr. Carey frequently presents at national conferences and teaches tort, contract and public policy courses, most recently at the University of Colorado’s graduate business school.
Mr. Carey earned his bachelor’s degree from Arizona State University, and received his MBA and law degree from the University of Denver. He also attended Harvard University’s John F. Kennedy School of Government, where he studied in the state and local government program.
ELIZABETH A. FEGAN Direct Dial: (708) 776-5604 Email: [email protected]
Beth is a partner at Hagens Berman Sobol Shapiro’s Chicago office where she has worked since 2004. Beth’s practice includes a variety of complex commercial class action cases in the areas of antitrust, pharmaceutical litigation, insurance fraud, consumer protection and employment discrimination. Beth’s recent successes include the pending settlement of a nationwide class action alleging sexual harassment on behalf of 16,000 current and former female employees of a commercial property brokerage firm. In addition to requiring changes to human resources policies and procedures, the innovative settlement affords class members the opportunity to participate in a stream-lined claims process that provides the potential for individual awards up to $150,000 per class member.
Beth’s current cases include the Clear Channel Live Rock Concert Antitrust Litigation, the Baby Products Antitrust Litigation, the Midland Senior Annuities Fraud Litigation, and the American Equity Senior Annuities Fraud Litigation.
Prior to joining the firm, Ms. Fegan was a partner at The Wexler Firm LLP in Chicago. Her legal work consisted of finance lending discrimination lawsuits, pharmaceutical and antitrust litigation, civil rights charges and suits, and auditing and accounting malpractice litigation. She also served as legal writing instructor at the Loyola University Chicago School of Law.
While previously practicing at Shefsky & Froelich, Ltd. in Chicago, Ms. Fegan served in several local government appointments and on a special master team in federal and state court. The local government appointments included positions as special assistant corporation counsel to the city of Chicago, the Chicago Park District and the Public Building Commission of Chicago.
Ms. Fegan received her law degree from Loyola University Chicago School of Law. While there, she was editor at large of the Loyola Law Journal in which she published “Home Rule Hits the Road in Illinois: American Telephone & Telegraph Company v. Village of Arlington Heights.”
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ERIN K. FLORY Direct Dial: (206) 224-9332 Email: [email protected]
Mr. Flory is a partner at Hagens Berman Sobol Shapiro where he focuses on securities and class-action litigation. His writing and legal analysis have been vital to the firm’s rise to national prominence, helping to establish the high standards that exemplify the Hagens Berman Sobol Shapiro’s written court submissions.
Mr. Flory plays a prominent role in several securities cases, including Boeing, Boston Chicken, Einstein/Noah Bagel, Midcom, Wall Data, Immunex and Bonneville.
Prior to joining the firm, Mr. Flory worked for a leading corporate defense firm, leaving in 1991 to represent the interests of injured investors, consumers, workers, and homeowners in their challenges to corporate misconduct. After obtaining his law degree, he clerked for Judge Thomas S. Zilly of the United States District Court for the Western District of Washington and for the Washington State Court of Appeals.
Mr. Flory graduated summa cum laude and Phi Beta Kappa from the University of Washington in 1983 with a degree in economics. He earned his law degree from the University of Washington Law School, where he served as an executive editor of the Washington Law Review.
REED R. KATHREIN Direct Dial: (510) 725-3030 Email: [email protected]
Mr. Kathrein is a partner at Hagens Berman Sobol Shapiro’s San Francisco office. He has more than 30 years of experience in complex litigation in securities fraud, consumer and antitrust class actions. Among his most recent cases, he worked along side HBSS on a $1 billion settlement with Tenet Healthcare.
Mr. Kathrein has worked in the state of California since 1988, where he has developed a reputation as one of the region’s most successful attorneys in complex litigation and large class action cases. Some of Mr. Kathrein’s highlight cases include a $259 million settlement for shareholders against 3Com Corporation accusing the company of defrauding investors by hiding a $160 million loss. Mr. Kathrein also made the record books in 2003 with an earned settlement of $300 million, the largest investment fraud case in U.S. history against Capital Consultants.
Mr. Kathrein also serves on many committees and works within the community giving lectures on a variety of legal topics. He has served as the co-chair of the Securities Working Group in California and was tasked by Chief Justices Marilyn Hall Patel and Vaughn Walker to propose and assist in revising the Court’s local securities fraud class actions rules. He also served on the executive committee of the National Association of Securities and Consumer Law Attorneys, the Private International Law Committee of the American Bar Association and acted as an advisor to the U.S. State Department’s Advisory Committee on Private International Law.
Some of his most recent lectures address ‘Dealing with Analysts and the Press’ and ‘Ethics in Class Actions.’
Mr. Kathrein earned his bachelor’s degree in economics and politics of Latin America, and received his law degree from the University of Miami. He also attended Universidad Nacional Autonoma de Mexico in Mexico City.
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SEAN R. MATT Direct Dial: (206) 224-9327 Email: [email protected]
Mr. Matt is a partner at Hagens Berman Sobol Shapiro where he has worked since its founding in 1993. Mr. Matt’s practice focuses on multi-state and nationwide class actions and encompasses consumer, insurance, products, antitrust, environmental, employment, and labor issues. His ability to organize and develop a standardized approach to prosecuting individual class cases across many states involving the same defendants and similar factual and legal issues continues to be a key factor in the firm's success.
Mr. Matt’s cases include the Average Wholesale Price Litigation, Ford and Nissan Accelerator Litigation, Washington State Ferry Litigation and Tobacco Litigation. In the Tobacco Litigation, he assisted with client liaison responsibilities, working closely with assistant attorneys general in Oregon, Ohio, Arizona, Alaska, and New York, as well as assisting in briefing and arguing motions to dismiss. Working on various discovery issues, including discovery requests, briefing on discovery motions and appearances at discovery hearings, Mr. Matt also developed expert disclosure statements and prepared testimony for a variety of expert witnesses.
Mr. Matt’s publications include co-authoring the comment, “Providing a Model Responsive to the Needs of Small Businesses at Formation: A Focus on Ex Ante Flexibility and Predictability” appearing in the Oregon Law Review.
Mr. Matt earned his bachelor’s degree in finance from Indiana University, graduating with highest distinction. An associate editor of the University of Oregon School of Law’s Law Review, he graduated with his law degree in 1992, after earning membership in the prestigious Order of the Coif.
DAVID P. MOODY Direct Dial: (206) 268-9323 Email: [email protected]
Mr. Moody is a partner at Hagens Berman Sobol Shapiro where he has worked since 2006. He is a trial attorney with a passion for representing children, the disabled, elderly and incapacitated citizens. Raised in Olympia, Washington, Mr. Moody received his undergraduate degree from the University of Washington in 1990. After graduating from George Washington University School of Law in 1993, Mr. Moody joined the Seattle office of Gordon, Thomas, Honeywell where he became a partner in 1998. He left the firm in 2005.
Among his many cases on behalf of vulnerable citizens, Mr. Moody served as the lead trial attorney, obtaining the largest jury verdict ever upheld against the State of Washington ($17.8 million); the lead trial attorney, securing the largest single-plaintiff settlement against the State of Washington, DSHS ($8.8 million); the lead trial attorney, obtaining the largest single-plaintiff jury verdict on behalf of an incapacitated adult in Kitsap County, Washington ($2.6 million); and the lead trial attorney, obtaining the largest single-plaintiff settlement on behalf of a developmentally disabled adult in eastern Washington ($2.25 million) and incapacitated child ($4.5 million) in Spokane County, Washington.
Mr. Moody is actively involved in advocacy for citizens with disabilities, is a member of the Arc of King County, and the Arc of Washington State.
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DAVID S. NALVEN Direct Dial: (617) 475-1953 Email: [email protected]
Mr. Nalven is a partner at Hagens Berman Sobol Shapiro’s Cambridge office where he has worked since 2004. His practice focuses on prosecution of multi-state and nationwide class actions involving the pharmaceutical industry, securities fraud, and consumer protection.
Mr. Nalven has been appointed class counsel in the Serostim Off-Label Marketing Litigation, and serves as one of the lead counsel in the TriCor Indirect Purchaser Antitrust Litigation, and on the direct purchaser class executive committee in the Ovcon Antitrust Litigation. Mr. Nalven has also worked extensively on the nationwide Average Wholesale Price Litigation and in the representation of the State of Connecticut in multiple prescription drug pricing matters.
Prior to joining the firm, Mr. Nalven served as Chief of the Business and Labor Protection Bureau in the Massachusetts Attorney General’s Office, where he oversaw a staff of more than 100 on all cases and initiatives involving healthcare fraud, insurance fraud, workplace offenses, and other civil and criminal business matters.
Mr. Nalven graduated magna cum laude from University of Pennsylvania in 1980 with a bachelor’s degree in English, and from New York University School of Law in 1985, where he was Senior Research Editor of the Annual Survey of American Law. After law school, Mr. Nalven served as a law clerk to the Honorable John R. Gibson of the United States Court of Appeals for the Eighth Circuit. Mr. Nalven is admitted to practice in Massachusetts and New York.
EDWARD NOTARGIACOMO Direct Dial: (617) 475-1960 Email: [email protected]
Mr. Notargiacomo is a partner at Hagens Berman Sobol Shapiro’s Cambridge office where he has worked since 2002. He joined the firm to focus on complex consumer, commercial and antitrust litigation. His recent cases include the Average Wholesale Price Litigation and other class-action suits aimed at pharmaceutical companies who illegally attempt to deny market access to manufacturers of cheaper generic pharmaceuticals.
Mr. Notargiacomo’s extensive experience in complex cases includes consumer class actions against predatory lenders and employment litigation against a major retail chain, as well as intense involvement in high-profile impact litigation against cigarette manufacturers, the firearms industry and pharmaceutical manufacturers.
Prior to joining the firm, he served as special assistant attorney general for Massachusetts in its suit against the tobacco industry. Mr. Notargiacomo played a major role in discovery in that case, including the defense of more than 45 depositions of state agency employees and led the effort to marshal documents and exhibits in preparation for trial. He also helped represent Rhode Island, New Hampshire and Maine in their suits against the tobacco industry. In another case, he represented the city of Boston in its suit against gun manufacturers and distributors in order to force them to take responsibility for some of the violence perpetrated with firearms that are negligently and illegally distributed in cities like Boston.
Mr. Notargiacomo received his bachelor’s degree from Brown University in 1989. He earned his law degree with honors from Boston University in 1994 where he served on the Boston University Public Interest Law Review. He is admitted to practice in Massachusetts and in the U.S. District Court for the District of Massachusetts.
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CHRISTOPHER A. O’HARA Direct Dial: (206) 268-9351 Email: [email protected]
Mr. O’Hara is a partner at Hagens Berman Sobol Shapiro where he has worked since 1997. He practiced for nearly five years in the firm’s Phoenix office before returning to the Seattle office, where he currently concentrates on antitrust, consumer, and pharmaceutical class actions.
Mr. O’Hara serves as plaintiffs’ counsel in the third party payor Zyprexa litigation, Medtronic and Guidant actions, as well as the price fixing litigation against the Hydrogen Peroxide industry. An active member of the firm’s Microsoft defense team, he negotiates claims administration policy and processing rules on behalf of Microsoft in twenty consumer class action state settlements around the country.
While in Phoenix, Mr. O’Hara deposed more than a dozen of big tobacco’s expert witnesses, research scientists and marketing executives for the Tobacco Litigation, focusing predominantly on the Arizona case. He also defended the depositions of Arizona’s national and local expert witness, while contributing to all aspects of discovery and motion practice. Mr. O’Hara played a leading role in the firm’s successful defense of the state of Arizona against a claim brought by several Arizona Counties in the aftermath of the state’s tobacco litigation.
Prior to joining the firm, Mr. O’Hara focused on property loss subrogation and professional liability defense at a Seattle-area law firm.
Mr. O’Hara earned his bachelor’s degree in political science and French language and literature from the University of Washington in 1987. He subsequently graduated cum laude from Seattle University School of Law and is admitted to practice in state and federal courts in Arizona and Washington, as well as the United States Court of Appeals for the Ninth Circuit.
GEORGE W. SAMPSON Direct Dial: (206) 224-9345 Email: [email protected]
Mr. Sampson is a partner at Hagens Berman Sobol Shapiro where he has worked since 1994. He joined the firm to focus on antitrust and consumer class actions, and currently serves as co-lead counsel in the Disposable Contact Lens Litigation and the Visa/MasterCard debit card case. He also helped develop antitrust claims in the Tobacco Litigation.
Prior to joining the firm, Mr. Sampson served as chief of the Antitrust Bureau for the New York Attorney General’s Office. Mr. Sampson oversaw a 22 person staff and managed case selection and investigation for all civil and criminal prosecutions. He also served as attorney general liaison to the federal-state Executive Working Group-Antitrust. His position as chief involved a heavy trial practice, primarily in federal courts and often in conjunction with several states.
During his 10 years with the Antitrust Bureau, Mr. Sampson’s notable cases included winning a $7.8 million jury verdict in a highway bid rigging trial, serving as lead counsel for New York and obtaining a $30 million settlement in insurance antitrust litigation, and negotiating a $15 million return to consumers in a resale price maintenance settlement with Nintendo.
Mr. Sampson earned his bachelor’s degree in economics from Cornell University and graduated from New York University School of Law in 1977. A member of both the Washington and New York state bars, he sits on the Executive Committee of the Antitrust and Consumer Protection of the Washington State Bar Association and frequently speaks on antitrust issues. Mr. Sampson is admitted before the U.S. Supreme Court and numerous federal courts of appeal.
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ANTHONY D. SHAPIRO Direct Dial: (206) 268-9352 Email: [email protected]
Mr. Shapiro is a partner at Hagens Berman Sobol Shapiro where he concentrates on antitrust matters, environmental and general commercial disputes, and leads the firm’s Personal Injury Group. His personal injury practice includes cases of wrongful death, brain injury, and catastrophic personal injury matters resulting from construction site, workplace and automobile accidents, as well as product liability.
Mr. Shapiro’s work prosecuting plaintiffs’ claims against the Alyeska Pipeline Service Company resulting from the 1989 Exxon Valdez Oil Spill ultimately resulted in a $98 million settlement for plaintiffs. Other notable antitrust class actions include Brand Name Prescription Drug Antitrust Litigation, Carbon Dioxide Antitrust Litigation, Carpet Antitrust Litigation, Infant Formula Antitrust Litigation, Baby Food Antitrust Litigation, Scouring Pads Antitrust Litigation, Medical X-Ray Film Antitrust Litigation, High Fructose Corn Syrup Antitrust Litigation, Visa/MasterCard Antitrust Litigation, Commercial Tissue Products Antitrust Litigation, Flat Glass Antitrust Litigation, Lease Oil Antitrust Litigation, and Bromine Antitrust Litigation.
Prior to leading the firm’s personal injury litigation practice, Mr. Shapiro honed his courtroom skills in the Washington state prosecuting attorney’s office, where he represented the state in more than 50 serious felony jury trials, including some of the state’s most difficult and high-profile cases. Following his position at the prosecuting attorney’s office, he joined Schweppe Krug & Tausend, then Seattle’s oldest law firm, where he used his extensive courtroom experience to serve personal injury clients. He subsequently founded Rohan Goldfarb & Shapiro, a firm focusing on personal injury cases as well as commercial litigation and antitrust work.
Very involved in issues concerning juvenile diabetes, Mr. Shapiro has served as a board member of the Western Washington chapter of the Juvenile Diabetes Foundation for four years.
Mr. Shapiro was given an AV rating by Martindale-Hubbell, the highest rating a lawyer can obtain, indicating a very high to preeminent legal ability and exceptional ethical standards as established by confidential opinions from members of the Bar.
Mr. Shapiro graduated from Colgate University with honors and earned his law degree from Georgetown University Law Center in 1982.
THOMAS M. SOBOL Direct Dial: (617) 475-1950 Email: [email protected]
Mr. Sobol is the managing partner of Hagens Berman Sobol Shapiro’s Cambridge office, and handles numerous pharmaceutical and consumer class actions for the firm.
Mr. Sobol currently leads drug pricing litigation efforts against several pharmaceutical companies in order to remedy overcharges to consumers and other payors of brand name and generic drugs. Some current matters include the Average Wholesale Price Litigation, Zyprexa Litigation, Wellbutrin Antitrust Litigation and First DataBank Litigation. He is lead counsel for the Prescription Access Litigation (PAL) Project, the largest coalition of health care advocacy groups that have joined together to fight illegal, loophole-based overpricing by pharmaceutical companies. PAL has approximately 85 organiza- tional members and is located in more than 30 states.
In the groundbreaking Tobacco Litigations, Mr. Sobol represented the states of Massachusetts, New Hampshire, and Rhode Island and served as lead private counsel for Massachusetts and New Hampshire.
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These cases led to significant injunctive relief and monetary recovery in excess of $10 billion to those states.
For many years, Mr. Sobol was a leader for the New England Shelter for Homeless Veterans (NESHV) in Boston, Massachusetts, and served as chairman of the board of its company, the Vietnam Veterans Workshop, Inc., from 1995 to 2002. The shelter is a national model for homeless services, and NESHV is one of the largest private organizations delivering services to homeless veteran families and other veterans in need.
Mr. Sobol is a leader in the Massachusetts legal and healthcare community, serving on the board of Health Law Advocates, Inc., a non-profit legal organization that assists in health access for the poor. In 2000, the National Law Journal named Mr. Sobol as one of Massachusetts’ 10 leading litigators.
Mr. Sobol is a member of the bars of Massachusetts, Rhode Island, the U.S. District Court for Massachusetts and Rhode Island, and the United States Court of Appeals, First Circuit.
Mr. Sobol graduated summa cum laude from Clark University in Worcester, Massachusetts in 1980 and was elected to Phi Beta Kappa in 1979. He graduated from Boston University School of Law cum laude in 1983. Tom then served as a judicial clerk for then-Chief Justice Allan M. Hale of the Massachusetts Appeals Court from 1983 to 1984.
CRAIG R. SPIEGEL Direct Dial: (206) 268-9328 Email: [email protected]
Mr. Spiegel is a partner at Hagens Berman Sobol Shapiro where his practice primarily focuses on class actions in employee litigation. Recent cases include actions against Abbott Laboratories and the Boeing Race Litigation.
Prior to joining the firm, Mr. Spiegel served as co-counsel for plaintiffs in numerous class actions. As lead counsel for several hundred investors who lost substantial sums of money from investments with Property Mortgage Company, he obtained an $8 million settlement. Mr. Spiegel also helped represent a class of investors that lost millions of dollars investing in the production of oil after the court certified a class based on his argument.
In litigation with AT&T, Mr. Spiegel’s briefs and oral argument compelled the Ninth Circuit to reverse a summary judgment, obtaining a substantial sum for his client, a company that alleged that AT&T unlawfully changed its policies to drive the company out of business. In another notable case, he served as co-counsel for a family of three that was rendered homeless when a Santa Barbara businessman towed away their trailer, claiming it was on his land, reselling the vehicle and most of their possessions. He helped obtain a jury verdict of $225,000 for the family, after another attorney had obtained a $15,000 non- binding judicial arbitration award.
Mr. Spiegel graduated summa cum laude from St. Olaf College in 1975 and cum laude from Harvard Law School in 1979. Admitted to practice before several federal district and appellate courts, he is a member of the California, Illinois and Washington bars.
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JEFFREY T. SPRUNG Direct Dial: (206) 224-9329 Email: [email protected]
Mr. Sprung is a partner at Hagens Berman Sobol Shapiro where he has worked since 1994. Mr. Sprung specializes in government fraud suits brought under the False Claims Act, representing whistleblowers serving as “private Attorneys General.”
Mr. Sprung has sued a variety of companies, including the Compaq Computer Corporation, which resulted in a large, multi-state settlement on behalf of computer users; contractors for the U.S. Department of Energy concerning accounting fraud at the largest nuclear clean-up site in Hanford, Washington; health care providers and pharmaceutical companies for Medicare and Medicaid fraud; and military contractors for procurement fraud
Mr. Sprung’s expertise also includes prosecuting class actions for consumer fraud, employment discrimination and civil rights violations. He is extensively involved in race and gender employment discrimination class actions against The Boeing Company, and has handled class litigation arising from the use of slave and forced labor by Germany and Japan during World War II. He also worked on cases against foreign mining companies accused of destroying and contaminating indigenous people’s land and committing human rights abuses.
Prior to joining the firm, Mr. Sprung was an Assistant U.S. Attorney in the Office of the U.S. Attorney for the District of Columbia, where he specialized in civil fraud matters. He won the first civil suit for mail, wire and bank fraud brought in the District of Columbia, as well as the first civil suit brought by the government to punish insider trading in the mortgage-backed securities market. He served on a U.S. presidential campaign in 1988, after working at a large law firm in Washington, D.C. where he started his legal career.
Mr. Sprung is very active in the legal community. He was editor and contributing author of a leading practitioners’ guide on civil legal remedies in United States courts for hate crimes. He also speaks on the False Claims Act and international human rights to various law schools, including the University of Washington law school, and various trade groups. He is a member of the Washington State Bar Association, the Federal Bar Association, and the Association of Former Assistant U.S. Attorneys.
Mr. Sprung graduated magna cum laude and Order of the Coif from the University of Michigan in 1981 and received his law degree from the University of Chicago Law School in 1984. He is admitted to practice in the state of Washington and the District of Columbia, and he has appeared in numerous cases before United States district courts and courts of appeals.
ANDREW M. VOLK Direct Dial: (206) 224-9371 Email: [email protected]
Mr. Volk is a partner at Hagens Berman Sobol Shapiro where he has worked since 1996.
Mr. Volk was extensively involved in the Tobacco Litigation. He wrote many of the major briefs on behalf of the states represented by the firm. In addition, he helped research and develop legal theories used in the action, and headed the successful attack on defendants’ claims that millions of documents were privileged.
More recently, Mr. Volk has worked on ERISA cases for breach of fiduciary duties, including claims on behalf of current and former employees of Enron, IPALCO, the Montana Power Company, and
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General Motors. Mr. Volk has also worked on a variety of consumer protection cases, including the current case against Expedia, as well as RICO and employment discrimination cases.
Prior to joining the firm, Mr. Volk taught legal writing and research at the University of Oregon School of Law. He also spent three years as a staff attorney at the Criminal Appeals Bureau of the Legal Aid Society in New York City.
Mr. Volk earned his undergraduate degree from Columbia University. He graduated cum laude from Cornell Law School in 1991 and served as an articles editor of the Cornell International Law Journal. He is admitted to practice in New York, Oregon and Washington.
TYLER S. WEAVER Direct Dial: (206) 268-9355 Email: [email protected]
Mr. Weaver is a partner at Hagens Berman Sobol Shapiro where he has worked since 2001. He litigates in a wide variety of practice areas, with an emphasis on consumer litigation.
Mr. Weaver’s litigation at the firm has included the Raytheon Litigation, which resulted in a $39 million settlement on behalf of shareholders of Washington Group, Inc.; a $2.2 million settlement on behalf of Washington consumers unlawfully charged collection fees by Diamond Parking; and representation of individuals wrongfully arrested during the 1999 WTO protests in Seattle, which resulted in a favorable jury verdict and settlements of more than $1 million and extensive non-monetary relief. He has also been involved in consumer class actions concerning real estate transactions and nursing home abuses, antitrust litigation against Starbucks, and fiduciary duty litigation under ERISA (including the IPALCO and the GM ERISA litigation).
Mr. Weaver is admitted to practice in Washington and Oregon, and has made numerous appearances in United States district courts and appellate courts, as well as the trial and appellate courts of the State of Washington. Prior to joining the firm, Mr. Weaver clerked for two years for the Honorable Justin L. Quackenbush in the United States District Court for the Eastern District of Washington. He graduated cum laude from the University of Oregon Honors College in 1992 and received his law degree from the University of California, Berkeley School of Law (Boalt Hall) in 1996.
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Of Counsel
JEFFREY D. FRIEDMAN
Direct Dial: (510) 725-3031 Email: [email protected]
Mr. Friedman is Of Counsel at Hagens Berman Sobol Shapiro’s San Francisco office where he specializes in class actions against large corporations involving securities fraud, consumer protection and privacy rights violations and has litigated numerous cases on behalf of class members resulting in multi-million dollar settlements.
Prior to joining the firm, Mr. Friedman worked with Lerach Coughlin Stoia Geller Rudman & Robbins, where he recently negotiated a multi-million dollar settlement with Dell, Inc. on behalf of nearly one million consumers, based on allegations involving Dell’s bait-and-switch financing and sales practices.
Mr. Friedman’s legal experience covers wide-ranging areas of corporate fraud and complex commercial transactions. From 1997-2000, Mr. Friedman was an Assistant United States Attorney in the Criminal Division of the United States Attorney’s Office for the Central District of California (Los Angeles). As an AUSA, Mr. Friedman tried numerous federal cases and prosecuted matters involving investor, bank, and real estate fraud, tax evasion, narcotics trafficking, and money laundering. Prior to joining the U.S. Attorney’s office, Mr. Friedman clerked for the Honorable Manuel L. Real, United States District Court Judge, Central District of California.
Mr. Friedman graduated with a Bachelor of Arts degree in political science from the University of Washington in 1991, where he was a member of the varsity baseball team. Mr. Friedman obtained his law degree, magna cum laude, from Santa Clara University School of Law in 1994, where he was on the Dean’s list, an Emery School of Law Merit Scholarship Recipient, and a research assistant to the Dean of the law school. Mr. Friedman is a guest lecturer on class action practice at Stanford Law School. He is licensed to practice law in California and admitted in the Central and Northern Districts and the United States Court of Appeals for the Ninth Circuit.
NICHOLAS STYANT-BROWNE Direct Dial: (206) 268-9373 Email: [email protected]
Mr. Styant-Browne is Of Counsel at Hagens Berman Sobol Shapiro where he has practiced class-action and multi-plaintiff litigation since 2001. Recent projects include Rio Tinto Litigation for human rights and environmental abuses in respect of the Panguna mine on the Pacific island of Bougainville.
Prior to joining the firm, Mr. Styant-Browne was one of five senior partners at Australia’s largest plaintiff law firm working on class actions, environmental litigation and antitrust litigation. He served as co- counsel on Australia’s largest class action against a wholly owned subsidiary of Exxon, arising out of a gas plant explosion which shut down the gas supply to Melbourne and most of the State of Victoria for 10 days.
As lead counsel in a landmark case against BHP (now BHP Billiton), Mr. Styant-Browne’s meticulous outlining of the environmental devastation caused by the Ok Tedi mine in Papau New Guinea helped force mining companies adopt stricter environmental standards in developing countries.
Mr. Styant-Browne’s practice has involved several projects in the Pacific Rim, acting principally on behalf of the indigenous peoples of poor developing Pacific nations claiming environmental and human rights abuses. His successes and passion for the causes of indigenous peoples have led to him being retained by the national governments of Pacific States including Tuvalu and the Kingdom of Tonga.
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The Associates
LEONARD W. ARAGON Direct Dial: (602) 224-2629 Email: [email protected]
Mr. Aragon is an associate at Hagens Berman Sobol Shapiro’s Phoenix office. Prior to joining the firm, Leonard spent four years practicing in the areas of commercial litigation, election law and appellate advocacy at a Phoenix-based firm.
At his former firm, Mr. Aragon handled numerous initiative, referendum and redistricting matters, including representing the Arizona Independent Redistricting Commission in lawsuits related to Arizona’s congressional and legislative redistricting following the 2000 census. Additionally, he represented candidates from all levels of state and federal government.
Mr. Aragon is committed to pro bono and community service. He has represented numerous pro bono clients in the areas of insurance, immigration, family, and contract law, and serves on the board of directors of EMPACT-SPC (one of Arizona’s largest behavioral health organizations). He also recently served as the co-chair for a major Valley fundraiser benefiting children’s charities.
Before attending college, Mr. Aragon was a scout for the 2/68 Armored Tank Battalion. During that time, he was awarded the Army Achievement Medal and several expert marksmanship badges.
Mr. Aragon graduated summa cum laude from Arizona State University in 1998 with degrees in History and Political Science. He received his law degree from Stanford Law School in 2001. He is a member of the State Bar of Arizona and is admitted to practice in Arizona and Colorado federal district court.
IVY D. ARAI Direct Dial: (206) 268-9358 Email: [email protected]
Ms. Arai is an associate at Hagens Berman Sobol Shapiro where she has worked since 2002. She specializes in class actions, including employment discrimination, consumer protection, antitrust, and environmental law.
Among her most recent cases, Ms. Arai worked on a $1 billion dollar settlement for uninsured individuals against Tenet Healthcare. Currently, her work focuses on consumer protection cases, including Mattel and the Thomas the Train Lead Paint Litigation against RC2 and Learning Curve Brands. Ms. Arai is also working in class action suits against the Boeing Company for employment discrimination, and Babies “R” Us for antitrust violations.
Ms. Arai graduated cum laude from Princeton University. She subsequently earned her law degree from Georgetown University Law Center where she served on the Georgetown International Environmental Law Review. During law school, Ms. Arai also worked as a judicial extern for Judge Thomas S. Zilly of the United States District Court for the Western District of Washington. She is admitted to practice law in the state of Washington.
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LAUREN GUTH BARNES Direct Dial: (617) 475-1957 Email: [email protected]
Ms. Barnes is an associate at Hagens Berman Sobol Shapiro’s Cambridge office where she has worked since 2003. Her work has involved consumer protection, product liability, personal injury, and RICO litigation against drug and medical device manufacturers, including Eli Lilly, Guidant, Medtronic, and DePuy Spine. Ms. Barnes has had an active role in several recent preemption wins, enabling consumers and third party payers to continue consumer protection litigation against medical device makers.
Prior to joining the firm, Ms. Barnes worked with Conflict Management Group, a non-profit organization dedicated to promoting peaceful resolution of international disputes and teaching negotiation skills. During her association with the organization, Ms. Barnes worked with members of the United Nations High Commissioner for Refugees on a pilot project in Bosnia-Herzegovina designed to ease tensions and encourage reconciliation. Ms. Barnes helped edit a book developed out of the project – “Imagine Coexistence” – and contributed a chapter to it.
Ms. Barnes graduated cum laude from Williams College in 1998 with a Bachelor of Arts degree in International Relations. She earned her law degree cum laude from Boston College Law School in 2005, where she served as Articles Editor for the Boston College Law Review. She is admitted to practice law in the Commonwealth of Massachusetts and is active in the American Association for Justice and Massachusetts Academy of Trial Attorneys.
ELAINE T. BYSZEWSKI Direct Dial: (213) 330-7150 Email: [email protected]
Ms. Byszewski is an associate at Hagens Berman Sobol Shapiro’s Los Angeles office where she has worked since 2004. Her work has included consumer and employee protection suits against Merck (Vioxx), AstraZeneca Pharmaceuticals (Nexium), Berkeley Nutraceuticals (Enzyte), Solvay Pharmaceuticals (Estratest), Apple Computers, and Costco Wholesale Corporation, among others.
Prior to joining the firm, Ms. Byszewski focused her practice on public sector labor and employment litigation and counseling, including extensive work on a class action race discrimination case, a wrongful termination case and a disability discrimination case. During law school she worked in the trial division of the Attorney General of Massachusetts’ office.
Among Ms. Byszewski’s several publications are “Valuing Companion Animals in Wrongful Death Cases: A Survey of Current Court and Legislative Action and A Suggestion for Valuing Loss of Companionship” in Animal Law Review (2003), and “What’s in the Wine? A History of FDA’s Role” in Food and Drug Law Journal (2002).
Ms. Byszewski graduated summa cum laude from the University of Southern California in 1999 with a Bachelor of Science in public policy and management with a health care emphasis. She earned her law degree cum laude from Harvard Law School in 2002. She is admitted to practice law in the state of California.
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KIMBERLY DOUGHERTY Direct Dial: (617) 475-1964 Email: [email protected]
Ms. Dougherty is an associate at Hagens Berman Sobol Shapiro’s Cambridge office where she focuses her practice on civil litigation involving catastrophic injuries, pharmaceutical and medical device mass tort litigation, wrongful death, medical malpractice and personal injury actions.
Prior to joining the firm in 2007, Ms. Dougherty litigated cases involving catastrophically injured plaintiffs across the country in various pharmaceutical mass tort litigations. She has extensive experience in every facet of complex tort litigation from fact and expert discovery to Daubert litigation and preparation for and participation in trials.
Ms. Dougherty received her law degree from Northeastern University School of Law in 2003. She earned a master’s degree in social work from Columbia University as well as a bachelor’s degree magna cum laude, with highest honors in psychology, from Clark University and was elected to Phi Beta Kappa in 1997. Ms. Dougherty is a member of the Bar of Massachusetts. She is also a member of the American Association for Justice, the Massachusetts Academy of Trial Attorneys, is on the legislative policy committee for the Women’s Bar Association of Massachusetts and is a pro bono attorney with the Women’s Bar Foundation representing victims of domestic violence in probate matters.
STEVE FIMMEL Direct Dial: (206) 268-9362 Email: [email protected]
Mr. Fimmel is an associate at Hagens Berman Sobol Shapiro where he has worked since 2006, bringing over 13 years of experience working on high-value, document intensive cases. He worked for 5 years at Oles, Morrison, Rinker & Baker where he was a key member of the litigation team that won a judgment in Idaho Federal District Court involving claims exceeding $400 million. The court sustained an unprecedented Termination for Default against the Lockheed-Martin Corporation for breach of contract to remediate a nuclear waste site at the Idaho National Engineering Laboratory.
Prior to his work at Oles, Morrison, Rinker & Baker, Mr. Fimmel was an associate for seven years representing Hanford Downwinders at the Hanford Litigation Office in Seattle. Prior to his work at the Hanford Litigation Office, he was a sports anchor and reporter for KHQ-TV, Spokane’s NBC affiliate. Through his senior year at the University of Washington and while attending law school at Lewis & Clark in Portland, Mr. Fimmel was the sports play-by-play and color broadcaster for Seattle’s KCTS-TV on Seattle Sounder and Washington Husky basketball telecasts.
Mr. Fimmel is admitted to the Washington State Bar, the Federal Court for the Eastern District of Washington, and the Ninth Circuit Court of Appeals.
DEBRA A. GAW Direct Dial: (617) 475-1956 Email: [email protected]
Ms. Gaw is an associate at Hagens Berman Sobol Shapiro’s Cambridge office where she has worked since 2005.
Prior to joining the firm, Ms. Gaw was Vice President of Intellectual Property for a start-up pharmaceuti- cal company. Ms. Gaw has served as intellectual property counsel, both in-house and in law firms, where she gained extensive experience counseling clients in all phases in the development, expansion, and
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defense of intellectual property portfolios. Her clients included start-up and development stage companies, mid-sized corporations, and world class investigators in major academic institutions.
Ms. Gaw has specialized in the patent prosecution, trade secret protection and trademark issues unique to the pharmaceutical, biotechnology, and medical device industries. She has obtained patents for her clients in the areas of oncology, inflammatory diseases, antibacterial, antifungal and antiviral drugs, molecular imaging, diagnostic imaging, ultrasonic medical devices, replacement organs and tissues, surgical equipment, diagnostic assays, and nanotechnology-based biomedical devices. She has also developed patent portfolios for clients in the industrial chemical industry, primarily in coatings, paints, pigments, and polymeric materials. She has significant experience negotiating intellectual property license agreements, and the contracts common to the pharmaceutical industry.
Prior to her law career, Ms. Gaw was a polymer chemist developing specialty paints, coatings, adhesives and polymer materials; later she obtained extensive experience in regulatory affairs and clinical affairs in the pharmaceutical industry. Additionally, Ms. Gaw is named as a co-inventor on several patent applications, the technology of which are currently marketed or under development by various companies.
Ms. Gaw’s case experience includes patent-related antitrust litigation against the brand-name prescription drug industry.
Ms. Gaw earned a Bachelor of Arts in Natural Science from St. Anshelm College. She did advanced coursework in biotechnology, polymer chemistry, food and drug law and international intellectual property law. She earned her law degree from Franklin Pierce Law Center. She is admitted to practice in Massachusetts, the District of Massachusetts, the Court of Appeals for the Federal Circuit, and the United States Patent and Trademark Office. She has lectured on the conflict of laws between trademark law and FDA law in drug labeling, and various topics in securing and defending intellectual property rights for inventors and companies.
LEE M. GORDON Direct Dial: (213) 330-7136 Email: [email protected]
Mr. Gordon is an associate at Hagens Berman Sobol Shapiro’s Los Angeles office where his practice focuses on complex class actions. His recent cases include consumer and antitrust actions against several major pharmaceutical companies, and an employee protection suit against Costco.
Prior to joining the firm, Mr. Gordon’s practice covered a broad spectrum of complex litigation matters. He represented and advised clients in antitrust litigation, employment litigation, single-state and nationwide class actions, breach of contract and breach of warranty litigation, intellectual property cases, real estate and land use disputes, and matters involving challenges to government regulations.
Mr. Gordon’s employment law work included race discrimination, wrongful termination, disability discrimination, and compensation disputes. His class action work has included complex securities and unfair business practices litigation involving multi-million dollar claims against major public financial institutions and healthcare organizations such as Bank of America, Bear Stearns, and Paracelsus Healthcare Corporation.
Mr. Gordon graduated summa cum laude from the University of California at Los Angeles with a bachelor’s degree in Philosophy. In 1994, he earned his law degree from Harvard Law School, graduating cum laude. In 2002, he also received an MBA from the Anderson Graduate School of Management at UCLA, where he graduated with honors and received fellowship grants. Mr. Gordon is admitted to practice law in the state of California.
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LISA M. HASSELMAN Direct Dial: (206) 268-9363 Email: [email protected]
Ms. Hasselman is an associate at Hagens Berman Sobol Shapiro where she has worked since 2006. She focuses on class action litigation, and has been instrumental in the Bextra/Celebrex MDL matter.
Prior to joining the firm, Ms. Hasselman was an associate at Danielson Harrigan Leyh & Tollefson in Seattle. While there, she participated on every level in complex state and federal litigation actions including drafting and arguing summary judgment motions, depositions, mediating cases and preparing and participating in a multi-party trial.
Ms. Hasselman has served on the board of Chaya, a non-profit addressing domestic violence in local South Asian communities. She has volunteered for multiple local legal aid organizations including the Northwest Women’s Law Center’s Self Help Committee, the Refugee Immigrant Advocacy Project, the Public Interest Law Association, Immigrant Families Advocacy Project, Street Youth Legal Advocates of Washington and King County Bar Association’s Neighborhood Legal Clinics.
Ms. Hasselman graduated from the University of Michigan in 1996 with a Bachelor of Arts, English and Cultural Anthropology. She earned her law degree from the University of Washington School of Law in 2001. After law school, she clerked for the Honorable Marlin J. Appelwick at the Washington State Court of Appeals.
DANIEL KUROWSKI Direct Dial: (708) 776-5606 Email: [email protected]
Mr. Kurowski is an associate at Hagens Berman Sobol Shapiro’s Chicago office where he has worked since 2006. He joined the firm after serving in various capacities for a number of federal judges sitting with the U.S. District Court for the Northern District of Illinois. Following law school, Mr. Kurowski served as a judicial clerk for Judge Paul E. Plunkett and also for Magistrate Judge Maria Valdez. Additionally, he worked as a judicial extern for Judge Ronald A. Guzman during law school.
Mr. Kurowski graduated with honors from Loyola University Chicago. He earned his law degree cum laude from The John Marshall Law School in 2005. While there, he served as an editorial board member for the John Marshall Law Review and received an award for an appellate brief he submitted in connection with a national moot court competition. During law school, he also interned with the U.S. Attorney’s Office for the Northern District of Illinois and with the U.S. Department of Housing and Urban Development, where he assisted in the investigation of housing discrimination complaints. He is admitted to practice law in the state of Illinois as well as in the U.S. District Court for the Northern District of Illinois.
JEFFREY A. LANG Direct Dial: (206) 268-9357 Email: [email protected]
Mr. Lang is an associate at Hagens Berman Sobol Shapiro where he is involved in the firm’s pharmaceu- tical litigation.
Mr. Lang has several years of experience across a variety of practice areas. Prior to joining the firm, he practiced law at Preston Gates Ellis, where he was involved in the Microsoft antitrust litigation. He also
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gained experience in land-use, SEPA, and zoning and building compliance through his positions with the Whalen & Company and the Law Offices of Dan Clawson.
Mr. Lang received his bachelor’s degree from the University of Washington, and earned his law degree from the University of Puget Sound School of Law. He is admitted to practice in the state of Washington.
ROBERT F. LOPEZ Direct Dial: (206) 268-9304 Email: [email protected]
Mr. Lopez is an associate at Hagens Berman Sobol Shapiro where he has worked since 2004. He brings to the firm a broad range of legal experience including, complex commercial, franchise, and intellectual property, including trademark and trade-name, litigation; the law of trademark, trade name, and copyright; and commercial transactions.
Prior to joining the firm, Mr. Lopez was a founding member and owner of the Seattle firm Socius Law Group. His previous work included prosecuting and defending matters in the federal and state trial courts, including the probate department of the state superior court, and also federal and state administrative tribunals, the federal bankruptcy court, and the federal and state courts of appeal.
Mr. Lopez graduated from Gonzaga University in 1986 with a bachelor’s degree in English Literature. He received his law degree in 1991 from the University of Washington, and is admitted to practice in the state of Washington.
BARBARA A. MAHONEY Direct Dial: (206) 268-9308 Email: [email protected]
Ms. Mahoney is an associate at Hagens Berman Sobol Shapiro where she has worked since 2006. She brings broad experience in complex commercial litigation, including unlawful competition, antitrust, securities, trademark, CERCLA, RICO, FLSA as well as federal aviation and maritime law.
Prior to joining the firm, Ms. Mahoney was an associate at Danielson Harrigan Leyh & Tollefson in Seattle. While there, she participated on every level in state and federal litigation actions including taking and defending depositions, drafting discovery requests, motions and mediation briefs and preparing for trials.
Ms. Mahoney was named a 2005 “Rising Star” by Washington Law & Politics. She enjoys soccer and running and is a former director of Rain City Soccer. Ms. Mahoney has volunteered at the Downtown Neighborhood Legal Clinic and is a Q Law mentor and a Cooperating Attorney with American Civil Liberties Union of Washington. With Justice Richard Sanders she co-authored Restoration of Limited State Constitutional Government: A Dissenter’s View, 59 N.Y.U. ANN. SUR. AM. L. 269 (2003).
Ms. Mahoney graduated from the University of Washington School of Law in 2001. She also has a PhD in philosophy from the Universtät Freiburg, where she graduated magna cum laude in 1993. As a result of her many years in Europe and teaching in the United States she is fluent in German and has a strong reading knowledge of French. After law school, Ms. Mahoney clerked for the Honorable Saundra Brown Armstrong of the Northern District of California and the Honorable Justice Richard B. Sanders of the Washington Supreme Court. Ms. Mahoney is admitted to practice law in the state of Washington, U.S. District Court for the Western District of Washington, U.S. District Court for the Eastern District of Washington, and the Ninth Circuit Court of Appeals.
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TIMOTHY P. MAHONEY Direct Dial: (708) 776-5605 Email: [email protected]
Mr. Mahoney is an associate at Hagens Berman Sobol Shapiro’s Chicago office where he has worked since 2006.
Prior to joining the firm, Mr. Mahoney practiced as Senior Counsel with Neal Gerber Eisenberg LLP in Chicago. At Neal Gerber, Mr. Mahoney was a key member of a team of lawyers attempting to thwart a Fortune 10 company’s efforts to pass billions of dollars of its environmental and asbestos liabilities on to the re-insurers of the company’s captive insurer by deceitfully re-domesticating the captive insurance company to Bermuda, only to declare it bankrupt to attempt to take advantage of Bermuda’s creditor friendly liquidation scheme. While at Neal Gerber, Mr. Mahoney also litigated products liability, professional liability, insurance coverage and complex commercial matters. Mr. Mahoney has first and second chair jury and bench trial experience, and has argued before the Illinois Appellate Court.
Mr. Mahoney graduated from IIT Chicago-Kent College of Law in 1993. In 2001, he earned a Masters of Business Administration with concentrations in finance and eBusiness at Case Western Reserve University’s Weatherhead School of Management. While in business school Mr. Mahoney worked at a start-up eBusiness company in Cleveland, Ohio, where his duties included identifying and negotiating with potential strategic partners. Mr. Mahoney is admitted to practice law in the state of Illinois, the Northern District of Illinois and before the Seventh Circuit Court of Appeals.
GREGORY H. MATTHEWS Direct Dial: (617) 475-1959 Email: [email protected]
Mr. Matthews is an associate at Hagens Berman Sobol Shapiro’s Cambridge office where he has worked since 2005. Mr. Matthews’ varied dossier includes experience in a variety of areas, such as tax, social security, bankruptcy, labor and employment, civil rights, immigration, disability, copyright and trademark law.
Prior to joining the firm, Mr. Matthews was an assistant district attorney for the Middlesex County District Attorney’s Office. In this position he analyzed, drafted and litigated appeals before the Supreme Judicial Court and the Appeals Court. He also maintained an extensive caseload of 150 cases in various stages of prosecution, encompassing both bench and jury trials.
Mr. Matthews also gained experience as an attorney with the Court of Appeals for the Ninth Circuit in San Francisco, California. In this position he researched and drafted bench memoranda and depositions for the court and orally presented those depositions to three-judge panels bi-monthly. He was also responsible for research in a variety of legal areas. Mr. Matthews was also an attorney with the Sierra Club Legal Defense Fund, where he worked on issues related to the Endangered Species Act, Environ- mental Policy Act and National Forest Management Act.
Mr. Matthews received his bachelor’s degree in legal studies from Northeastern University in Boston, Massachusetts where he also earned his law degree. He is admitted to practice in the Commonwealth of Massachusetts.
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MARTIN D. MCLEAN Direct Dial: (206) 268-9359 Email: [email protected]
Mr. McLean is an associate at Hagens Berman Sobol Shapiro where he has worked since 2007.
DIEGO RODRIGUEZ Direct Dial: (602) 224-2630 Email: [email protected]
Mr. Rodriguez is an associate at Hagens Berman Sobol Shapiro’s Phoenix office where he has worked since 2004. He brings to the firm several years of civil and criminal trial experience.
Prior to joining the firm, Mr. Rodriguez practiced law at the largest plaintiffs’ personal injury law firm in Arizona. As part of that practice he represented plaintiffs in personal injury, product liability and wrongful death cases.
Before entering private practice, Mr. Rodriguez served as a deputy county attorney in the criminal division of the Office of the Pima County Attorney which is located in Tucson, Ariz. During his four years with that office, Mr. Rodriguez personally handled hundreds of cases and conducted 60 felony jury trials for a host of offenses including vehicular crimes, property crimes, fraud, child abuse, and first- degree homicides.
After he left his position as a deputy county attorney, Mr. Rodriguez gained even more litigation expertise in the areas of insurance defense, construction defect, toxic torts, insurance coverage, general business litigation, and automobile product liability defense, while practicing at Gust Rosenfeld, P.C. and Snell & Wilmer LLP, both major defense firms.
Mr. Rodriguez graduated from the University of Notre Dame in 1992, with a bachelor’s degree in Finance, and received his law degree from the University of Arizona in 1995. He is a member of the State Bar of Arizona and is authorized to represent clients in both the Arizona and Colorado federal district courts.
SHANA E. SCARLETT Direct Dial: (510) 725-3032 Email: [email protected]
Ms. Scarlett is an associate at Hagens Berman Sobol Shapiro’s San Francisco office where she specializes in the prosecution of class actions, including securities fraud, consumer protection and privacy rights violation. Among her most recent cases, she worked along side HBSS and co-counsel, Reed Kathrein, on a $1 billion settlement with Tenet Healthcare.
Ms. Scarlett has worked in the San Francisco area since 2001 and has had her hand in several large cases. She participated in In re National Security Agency Telecommunications Record Litigation, and in particular the lead case, Hepting, et al. v. AT&T, et al., defeating motions of several telecommunications companies and the Department of Justice.
Ms. Scarlett was also a member of the litigation team in In re Sony BMG Audio Compact Disc Litigation, where she helped plaintiffs to secure a multi-million dollar settlement for consumers and an agreement from Sony BMG to stop using harmful rootkit software that created a number of serious security, privacy and consumer protection issues on music CDs.
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Ms. Scarlett graduated with a bachelor’s degree from the University of British Columbia and received her law degree from Stanford Law School.
RONNIE SEIDEL SPIEGEL Direct Dial: (206) 268-9343 Email: [email protected]
Ms. Spiegel is an associate at Hagens Berman Sobol Shapiro where she has worked since 2005.
Prior to joining the firm, Ms. Spiegel practiced as a senior associate at Spector Roseman & Kodroff in Philadelphia. During her tenure at Spector Roseman & Kodroff, she also managed the firm’s North Carolina office. Ms. Spiegel has extensive experience managing complex litigation. She has worked on trial teams, developed case strategy, and has coordinated and organized all aspects of discovery in large class action cases.
Ms. Spiegel focuses on antitrust litigation. Her case experience includes: In re DRAM Antitrust Litigation; In re SRAM Antitrust Litigation; In re Brand Name Prescription Drugs Antitrust; In re NASDAQ Market-Makers Antitrust Litigation; In re Vitamins Antitrust Litigation; In re High Fructose Corn Syrup Antitrust Litigation; In re Commercial Tissue Paper Antitrust Litigation; In re Flat Glass Antitrust Litigation; and In re Linerboard Antitrust Litigation.
Ms. Spiegel earned a Bachelor of Arts in International Relations from Boston University. She earned her law degree from Temple University’s Beasley School of Law, where she was an editor of the Temple Law Review. She is admitted to practice in Washington and Pennsylvania as well as in federal court for the Eastern District of Pennsylvania and the Western District of Washington.
SHAYNE C. STEVENSON Direct Dial: (206) 268-9340 Email: [email protected]
Mr. Stevenson is an associate at Hagens Berman Sobol Shapiro, joining the firm in 2007, where he focuses on class action work.
He graduated first in his class from Gonzaga University in 1996 (summa cum laude) with a Bachelor of Arts in Philosophy and Political Science. He was recognized as a Truman Scholar in 1995, was active in Habitat for Humanity and became a member of Alpha Sigma Nu. Mr. Stevenson graduated from Yale Law School in 2000. While at Yale, he was co-founder and director of the YLS Workers’ Rights Project. While director, the Project drafted and filed a successful petition on behalf of thousands of immigrant workers under the NAFTA labor side agreement (with the endorsement of the AFL-CIO, ACLU, and numerous other civil and labor rights groups). The Project also supported local labor organizing efforts, and collaborated with labor rights groups to fight against sweatshops in Manhattan and Brooklyn.
Additionally , he served as submissions editor of the Yale Law and Policy Review, participated in the Greenhaven Prison Project (a prisoner rehabilitation effort in New York), and represented tenants in New Haven against landlord abuse. He was also an intern in the U.S. Attorney’s Office in Connecticut.
Mr. Stevenson then completed two federal clerkships. First as a law clerk to the Honorable Charles S. Haight, Jr., of the United States District Court for the Southern District of New York (2000-01); then as a law clerk for the Honorable Betty B. Fletcher, of the Ninth Circuit Court of Appeals (2001-02).
Following his clerkships, Mr. Stevenson developed his skills as a trial lawyer while working as a felony prosecutor in Seattle for over four years, successfully prosecuting hundreds of felony cases, including
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crimes of armed robbery, rape, murder, and assault in the first degree. He ended his tenure with an emphasis on the most egregious crimes of domestic violence.
He is admitted to practice in the State of Washington.
ANDREW ST. JOHN Direct Dial: (602) 224-2625 Email: [email protected]
Mr. St. John is an associate at Hagens Berman Sobol Shapiro’s Phoenix office. Currently, he is involved in the firm’s pharmaceutical litigation, insurance bad faith litigation, and several class actions.
Prior to, and during, his education Mr. St. John served in the United States military where he achieved the rank of sergeant. He was a crewman and gunner on an M1A1 Abrams main battle tank in two different armored battalions and an armored cavalry unit. His duties included being the unit retention NCO, demolitions/explosives expert, Sergeant of the Guard, and training NCO. Sergeant St. John earned expert pistol and rifle badges and was also awarded several medals and commendations for distinguished service.
Mr. St. John graduated magna cum laude with a Bachelor of Science in Psychology from Arizona State University. During his undergraduate education Mr. St. John was an intern in the Arizona Governor’s Office during the 1998 legislative session.
Mr. St. John earned his law degree at the Sandra Day O’Connor School of Law, with High Pro Bono Distinction. While in law school he served as a staff writer for the Arizona State Law Journal and was an extern for both U.S. District Judge Paul G. Rosenblatt and the Arizona Supreme Court Staff Attorney’s Office. Mr. St. John also represented many clients at the school’s civil practice clinic.
Mr. St. John is a member of the State Bar of Arizona and is authorized to represent clients in Arizona and Colorado federal district courts.
GENESSA A. STOUT Direct Dial: (206) 268-9365 Email: [email protected]
Ms. Stout is an associate at Hagens Berman Sobol Shapiro where she has worked since 2003. Her work has included the Hungarian Gold Train Litigation, Bextra/Celebrex, General Motors ERISA Litigation, and Countrywide ERISA Litigation.
Prior to joining the firm, Ms. Stout worked in Beijing and Cheng Du, China teaching English and Science and developing cultural exchange programs between China, the United States, and the European Union.
Ms. Stout graduated cum laude from the University of Washington with a Bachelor of Arts degree in Speech Communications. She earned her law degree from Seattle University School of Law in 2006. While in law school Ms. Stout served as a staff editor for the Seattle Journal for Social Justice and served on the Juvenile Court Accountability Board. During law school Ms. Stout also interned for the Federal Trade Commission where she worked on the CAN SPAM Act and the Do Not Call Registry. She is admitted to practice law in the State of Washington.
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AMY M. WILKINS Direct Dial: (602) 224-2636 Email: [email protected]
Ms. Wilkins is an associate at Hagens Berman Sobol Shapiro’s Phoenix office where she has worked since 2007. She has focused her practice on consumer class actions and appellate work.
Prior to joining the firm, Ms. Wilkins practiced commercial litigation for six years in Phoenix and Los Angeles, focusing on consumer and employment class actions, commercial contract disputes, wrongful competition cases, and employment disputes. She has also represented several pro bono clients.
Ms. Wilkins served on the board of directors of EMPACT-SPC (one of Arizona’s largest behavioral health organizations) for two years. She was a member of the Horace Rumpole Inn of Court and is currently involved in the Arizona Women Lawyer’s Association.
Ms. Wilkins graduated summa cum laude from the University of Arizona in 1995 with a Bachelor of Arts in creative writing. Prior to law school, Ms. Wilkins worked as an editor and writer in the tourism and technology fields. She graduated magna cum laude from the James E. Rogers College of Law at the University of Arizona in 2001. In law school, Ms. Wilkins served as Editor-in-Chief of the Arizona Law Review, was an Ares Fellow (a teaching assistant for a first-year small section), and was awarded the law school’s Outstanding Senior award at graduation. She is admitted to practice in Arizona and California.
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References
REPRESENTATION OF STATE OF WASHINGTON IN THE TOBACCO LITIGATION David Walsh 1125 Washington Street S.E., P.O. Box 401 Olympia, WA 98504-0100 (360) 753-6228
REPRESENTATION OF ARIZONA IN THE TOBACCO LITIGATION Former Attorney General Grant Woods Grant Woods PC 1726 North Seventh Street Phoenix, AZ 85006 (602) 258-2599
REPRESENTATION OF MICROSOFT Richard Wallis Microsoft Corporation One Microsoft Way Redmond, WA 98052-6399 (425) 882-8080
REPRESENTATION OF INVESTMENT ADVISOR IN VARIOUS LITIGATIONS Brent E. Johnson Johnson Capital Management, Inc. 12500 Fair Lakes Circle, Suite 280 Fairfax, VA 22033 (703) 803-4100
REPRESENTATION OF NEVADA IN THE PHARMACEUTICAL LITIGATION L. Timothy Terry Nevada Attorney General’s Office Medicaid Fraud Control Unit 100 North Carson Street Carson City, NV 89701-4717 (775) 684-1191
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A Perspective on our Performance from the Bench
Remarks from the Honorable Patti B. Saris, presiding over the AWP Litigation of which Hagens Berman Sobol Shapiro was lead trial counsel.
THE COURT: I wanted to express appreciation again to class counsel for taking this case. I be- lieve these are the kinds of cases Federal Courts should do and are appropriate for class resolu- tion. And while it’s a huge burden in terms of time and resources, it’s one of the things that the Multidistrict Litigation Court should appropriately do.
Perhaps one of the most telling references comes from the concluding comments of the Judge presiding over the State of Oregon’s case against Big Tobacco.
MR. BERMAN: Nothing further, Your Honor.
THE COURT: Anything else for the record? Well, may I take just a couple more minutes of your time to say this has been an extraordinary experience from my perspective. We have a lot of emphasis in our profession these days about people complaining that lawyers are not profes- sional, that they are not civil, they do things in the manner in which they practice that discredits the profession, and I wish those critics could have seen all of you in action.
This has been an extraordinary experience from my perspective. I cannot conceive of another case where there has been so much at stake, and all of you, from the outsiders to local counsel, have been extraordinarily responsible to resolve as much as you could and to bring to me only the issues that really needed rulings. I cannot tell you how much I appreciate all of your work in that regard, and I know that that was you, as individuals, doing the important thing because in a case of this magnitude, with local and regional and national and international levels of attorneys, it’s very hard to connect with people.
I just hope some time before I stop during this wonderful year, I have another chance to see this kind of lawyering. It’s been stunning, and I really want to say that it’s been a wonderful experi- ence.
So, Hallelujah.
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SCOTT + SCOTT, LLP
MISSION STATEMENT
The firm prides itself on its continuing dedication to client satisfaction and communication. Founded by alumni of larger firms, our attorneys encourage our clients to share their fiduciary, business and personal philosophies with us. We then invest the time to learn about our clients’ operations and interests so that each representation can truly be a collaborative effort. We believe strongly that the practice of law should be conducted in a straightforward and honorable manner. We work diligently to ensure that intelligence, preparation and knowledge, as opposed to abusive and often counterproductive gamesmanship, are utilized to achieve the best result for our clients in a cost-effective manner. In so doing, we dedicate ourselves to practicing at the highest legal and ethical standards. We believe that our clients, as well as the numerous established law firms with whom we work and oppose, trust our word and respect the nature of our advocacy.
Scott + Scott regularly works with other firms on major litigation and with firms of only the highest quality and reputation so as to ensure the best representation for our clients. From its inception, the firm has been committed to producing legal work of the highest professional quality. It combines the flexible, informal and cooperative atmosphere of a smaller firm with a sophisticated practice, involving substantial and challenging legal issues more typically associated with larger firms.
Securities Class Action and Corporate Governance/Shareholder Derivative Litigation
Scott + Scott is a nationally recognized law firm that recovers money for individual and institutional investors who have suffered from corporate stock fraud through securities class action and corporate governance/shareholder derivative litigation. Scott + Scott’s philosophy is simple – officers and directors of a corporation should be responsible to their shareholders and the public markets. The firm has participated in recovering billions of dollars and achieved precedent-setting reforms in corporate governance on behalf of investors and shareholders.
Employee Retirement Litigation
Scott + Scott actively litigates complex class actions across the United States on behalf of corporate employees alleging violations of the federal Employee Retirement Income Security Act of 1974 (ERISA). ERISA was enacted by Congress to prevent employers from exercising improper control over retirement plan assets and requires that pension and 401(k) plan trustees, including employer corporations, owe the highest fiduciary duties to retirement plans and their participants as to their retirement funds. Scott + Scott is committed to continuing its leadership
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in ERISA and related employee-retirement litigation, as well as to those employees who entrust their employers with hard-earned retirement savings.
Antitrust Litigation
The firm is actively involved in litigating many complex antitrust cases throughout the United States. In such actions, Scott + Scott works to ensure that the markets remain free, open and competitive to the benefit of both consumers purchasing and business enterprises operating in such markets. In addition to traditional price-fixing cases, the firm has taken the lead in a number of novel antitrust claims throughout the United States.
Consumer Rights Litigation
Scott + Scott regularly represents aggrieved consumers in a variety of class action cases pending throughout the United States. In addition to more typical cases involving consumer finance issues, such as In re: Providian Credit Card Litigation (Superior Court of California, County of San Francisco), the firm is litigating cases against a number of health maintenance organizations (HMO) and other corporate defendants, including: Albert v. Physician Health Services of Connecticut, Inc. and O’Brien v. Aetna, Inc. and Aetna-U.S. Healthcare, Inc. (United States District Court, District of Connecticut); Medical Society of the State of New York v. Connecticut General Corporation, et al. (New York Supreme Court, County of New York); and Granito, et al. v. International Business Machines, Inc. (Connecticut Superior Court). Scott + Scott also has been involved in a number of major consumer fraud cases under state consumer protection laws, including: Harnage v. Publishers Clearing House (Connecticut Superior Court); Gould v. IDT Corporation (United States District Court, District of New Jersey); In re: Kava Kava Litigation (Superior Court of California, County of Los Angeles); Fischer, et al. v. MasterCard International, Inc., et al. (New York Supreme Court, County of New York); and Paton, et al. v. Cingular Wireless, et al. (Superior Court of California, County of San Francisco).
Human Rights & Civil Rights Litigation
Scott + Scott is also an advocate of human and civil rights. For instance, Scott + Scott was active in the World War II Era Japanese Forced Labor Litigation, suing Japanese companies in U.S. court on behalf of thousands of aging veterans and civilians forced to work as slaves for Japanese corporations during World War II. In addition, Scott + Scott currently represents a nationwide class of workers of United Parcel Service (UPS), alleging that UPS violates the Americans with Disabilities Act.
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ATTORNEY BACKGROUND AND EXPERIENCE
MELVIN SCOTT is a graduate of the University of Connecticut (B.A. 1950) and the University of Kentucky (M.A. 1953; LL.B. 1957). Mr. Scott founded the firm in 1975. He is admitted to practice in Kentucky (now retired), Connecticut and Pennsylvania. Mr. Scott was a member of the Kentucky Law Review, where he submitted several articles for publication. He has served as an Attorney Trial Referee since the inception of this program in the State of Connecticut and is a member of the Fee Dispute Committee for New London County. Mr. Scott also formerly served as a Special Public Defender in criminal cases and as a member of the New London County Grievance Committee. Mr. Scott actively represents aggrieved parties in securities, commercial and criminal litigation and served or serves as counsel in: Irvine, et al. v. ImClone Systems, Inc., et al.; Schnall, et al. v. Annuity and Life Re (Holdings) Ltd., et al.; In re: 360networks Class Action Securities Litigation; In re: General Motors ERISA Litigation; and Hohider v. UPS, among others.
DAVID R. SCOTT is a graduate of St. Lawrence University (B.A., cum laude, 1986), Temple University School of Law (J.D., Moot Court Board, 1989) and New York University School of Law (LL.M. in taxation). He concentrates in commercial and class action trial work. Mr. Scott's trial work involves antitrust, intellectual property, commercial and complex securities litigation. Mr. Scott's antitrust litigation experience includes matters dealing with illegal tying, price-fixing and monopolization actions. He has served as lead counsel in numerous antitrust and securities class action lawsuits. Notably, Mr. Scott served as co-lead counsel in In re: Priceline.com Securities Litigation ($80 million settlement); Thurber v. Mattel, Inc. ($122 million settlement); In re: Emulex Corp. Securities Litigation ($39 million settlement); In re: Sprint Securities Litigation ($50 million settlement); In re: Northwestern Corporation Securities Litigation ($61 million settlement); Irvine, et al. v. Imclone Systems, Inc., et al.($75 million settlement); Schnall, et al. v. Annuity and Life Re (Holdings) Ltd., et al. ($16 million settlement); and In re: Qwest Communications International, Inc. (significant corporate governance reforms and $25 million for the company), among others. His securities litigation experience includes matters dealing with securities fraud class actions, derivative/corporate governance litigation and representation of start-up technology companies in private securities litigation. Presently, Mr. Scott is serving as lead counsel in: In re: General Motors ERISA Litigation; In re: Guidant Corp. Securities Litigation; Shirk v. Fifth Third Bancorp, et al.; In re Merck ERISA Litigation; and Pugh, et al. v. Tribune Company, et al., among others. Mr. Scott is admitted to practice in Connecticut, Pennsylvania, New York, the United States Tax Court and many United States District Courts.
ARTHUR L. SHINGLER is a graduate of Point Loma College (B.A., cum laude, 1989) and Boston University School of Law (J.D. 1995). Mr. Shingler specializes in complex consumer and securities class actions, as well as related shareholder derivative litigation. Mr. Shingler is or has been counsel in numerous actions, including: In Re: Lattice Semiconductor Derivative Litigation; In re: Priceline.com Securities Litigation; In re: 360networks Class Action Securities Litigation; Irvine, et al. v. ImClone Systems, Inc., et al.; In re: Cyberonics Securities Litigation; Lancaster, et al. v. Royal Dutch Petroleum Co.; In re: HealthSouth Corporation Derivative Case 2:05-cv-71085-NGE-RSW Document 100-8 Filed 01/15/2008 Page 4 of 7
Litigation; and In Re: Guidant Corp. Securities Litigation, among other representative actions. In addition to numerous successful recoveries in class litigation, of particular note are Mr. Shingler's efforts on behalf of the class in the Halliburton securities litigation, where he successfully argued against final approval of an inadequate settlement and continues to represent plaintiffs as the action proceeds. Mr. Shingler also played a primary role in substantially changing executive management and corporate governance, as well as advancing shareholder rights in the Lattice Semiconductor Derivative Litigation. Of additional note, Mr. Shingler has represented aggrieved class members in a number of consumer protection actions and has been instrumental in expanding and clarifying consumer and class interests nationwide. As two examples, Mr. Shingler was fundamentally involved before the Massachusetts Supreme Judicial Court in shaping the contours of class certification under Massachusetts state law (Weld v. Glaxo Wellcome, Inc., 434 Mass. 81 (2001)) and, before the California Court of Appeals, in shaping the scope of California's Unfair Practices Act and the limits of its False Claims Act (Rothchild v. Tyco Internat. (US), Inc., et al., 83 Cal. App. 4th 488 (Cal. App. 4th D.C.A. 2000)) Mr. Shingler is admitted to practice before the Supreme and all other Courts of the State of California, the United States Court of Appeals for the Third Circuit, and various United States District Courts.
ANITA MELEY LAING is a graduate of Ohio University (B.S., cum laude, 1963), University of Tennessee (M.S., summa cum laude, 1967) and University of Pittsburgh School of Law (J.D., cum laude, 1978). She is admitted to practice in California and Pennsylvania (inactive). Ms. Laing was the Notes Editor of the University of Pittsburgh Law Review and has authored articles for publication there and in the legal magazine Trial. Ms. Laing's entire legal career has involved complex commercial and class action cases. Her practice has ranged: from representation of employees in nationwide class action discrimination cases, to thousands of individuals who lived near a major California Superfund site for personal injuries and property damage sustained from exposure to toxic waste emissions; from companies who paid inflated premiums for workers' compensation insurance, to elderly investors in a multi-million dollar Ponzi scheme; and from purchasers of publicly traded securities at fraudulently inflated prices to consumers nationwide. Ms. Laing is active in litigation, including: Hohider v. UPS; In re: Guidant Securities Litigation; and In re: Diebold Inc. Securities Litigation, among others.
BETH KASWAN has represented plaintiffs in cases involving securities and consumer fraud since 1998. Prior to 1998, Ms. Kaswan served in the Giuliani administration as New York City's Chief Procurement Officer, a Deputy Commissioner in the Department of Investigations and the Finance Department's Chief Counsel.
Ms. Kaswan, having majored in accounting at college, began her career at Peat, Marwick, Mitchell & Co. and later served as a trial attorney with the U.S. Department of Justice, Tax Division. In 1985, she joined the U.S. Attorney's Office for the Southern District of New York, and was promoted to Chief of Commercial Litigation and then Deputy Chief of the Civil Division. While employed by the government, Ms. Kaswan litigated several high-profile cases to judgment, including the landmark case of United States v. Gleneagles Inv. Co., where following a multi- stage, thirteen month trial, the fraudulent conveyance laws were first applied to set aside a leveraged buy-out. She also represented the Federal Reserve for its enforcement actions against the rogue bank, BCCI, leading to the global RICO plea agreement and forfeiture of BCCI's $550 million of United States assets; the IRS for its $5 billion claim against Drexel, the Defense Department and MARAD for qui tam and other false claims actions against Goodyear Aerospace, Case 2:05-cv-71085-NGE-RSW Document 100-8 Filed 01/15/2008 Page 5 of 7
Loral and General Dynamics and the FDA to enjoin the manufacture of adulterated generic drugs. See, e.g., United States v. Gleneagles Inv. Co., 565 F. Supp. 556 ("Gleneagles I"), 571. F. Supp. 935 ("Gleneagles II"), 584 F. Supp. 671 ("Gleneagles III") (M.D. Pa. 1981), aff'd in part and rev'd in part sub. nom., United States v. Tabor Ct. Realty Corp., 803 F.2d 1288 (3d Cir. 1986); In re Smouha ("BCCI"), 136 B.R. 921 (S.D.N.Y. 1992); United States v. Davis, 803 F. Supp. 830 (S.D.N.Y. 1992), aff’d in part and rev'd in part sub. nom., United States v. General Dynamics Corp., 19 F.3d 770 (2d Cir. 1994); United States v. Barr Laboratories, Inc., 812 F. Supp. 458 (D.N.J. 1993).
Ms. Kaswan received several awards from the Justice Department and the agencies she represented, including the Justice Department's John Marshall award, Special Commendation from the Attorney General, a Superior Performance award from the Executive Office of U.S. Attorneys, Tax Division Outstanding Achievement awards, and awards from the FDA Commissioner and U.S. Customs Service. She has testified before the New York legislature as a government expert on money-laundering and lectured in Justice Department training programs on evidence and other subjects.
MARIA K. TOUGAS is a graduate of Bowdoin College (B.A., magna cum laude, 1985) and Western New England College School of Law (J.D. 1989), where she was a member of the National Moot Court Team. Ms. Tougas' experience includes complex commercial litigation, creditor's rights and bankruptcy. At Scott + Scott, Ms. Tougas is actively engaged in complex class action litigation, including securities, consumer and antitrust litigation. She also focuses on bankruptcy and creditor's rights issues associated with complex class action litigation. Ms. Tougas actively practices all types of commercial litigation. She is admitted to practice in Connecticut, as well as the U.S. Court of Appeals for the Second Circuit.
DEIRDRE DEVANEY is a graduate of New York University (B.A., cum laude, 1990) and the University of Connecticut School of Law (J.D., with honors, 1998) where she was the Managing Editor of the Connecticut Journal of International Law. Ms. Devaney's experience includes commercial and probate litigation, as well as trusts and estates. Currently, Ms. Devaney's practice areas include commercial and securities litigation. Ms. Devaney is involved in litigation, including: In re: Priceline.com Securities Litigation; and In re: Guidant Corp. Securities Litigation, among others. Ms. Devaney is admitted to practice in Connecticut, New York and the United States District Court for the District of Connecticut.
GEOFFREY JOHNSON is a graduate of Grinnell College (B.A., with honors, 1996) and the University of Chicago Law School (J.D., with honors, 1999), where he served on the law review. An attorney with the firm's Ohio office, Mr. Johnson's main practice areas include securities and ERISA class action litigation, corporate governance and other complex commercial litigation, including among others: In re: Priceline.com Securities Litigation; In re: GM ERISA Litigation;; Shirk v. Fifth Third Bancorp.; and In re: Merck ERISA Litigation. Prior to joining Scott + Scott, Mr. Johnson clerked for the Honorable Karen Nelson Moore, Sixth Circuit United States Court of Appeals. Mr. Johnson has been active in pro bono matters, handling cases for the Legal Aid Society of Cleveland. Mr. Johnson is a member of the Ohio Bar.
WALTER NOSS is a graduate of the University of Toledo (B.A., magna cum laude, Economics 1997) and the Ohio State University College of Law (J.D., with honors, 2000), where he served Case 2:05-cv-71085-NGE-RSW Document 100-8 Filed 01/15/2008 Page 6 of 7
as a member of the Ohio State Law Journal. Mr. Noss' main practice areas include securities, antitrust and complex litigation, including: In re: Rubber Chemicals Antitrust Litigation; In re: Plastic Additives Antitrust Litigation; and In re: Polychlorprene Rubber Antitrust Litigation, among others. Mr. Noss is a member of the Ohio Bar.
DONALD D. BROGGI is a graduate of University of Pittsburgh (B.A. 1990) and Duquesne University School of Law (J.D. 2000). He is licensed to practice in Pennsylvania and currently is engaged in the firm's complex securities, antitrust and consumer litigation, including: Hohider v. UPS; In re: Priceline.com Securities Litigation; In re: Rubber Chemicals Antitrust Litigation; and In re: Plastic Additives Antitrust Litigation, among others.
ERIN GREEN COMITE is a graduate of Dartmouth College (B.A., magna cum laude, 1994) and the University of Washington School of Law (J.D. 2002). Prior to entering law school, Ms. Comite was a legal assistant at The White House. At Scott + Scott she actively is engaged in the firm's complex securities, corporate governance and antitrust litigation, including: Hohider v. UPS; In re: Priceline.com Securities Litigation; and In re: Host America Securities Litigation, among others. Ms. Comite also assists in the firm's institutional investor and class member services. She is licensed to practice in Connecticut.
NICHOLAS J. LICATO, Ph.D. is a graduate of New York University (B.A. Chemistry, 1980), University of Utah (Ph.D. Medicinal Chemistry, 1985), University of Michigan - Ann Arbor (Postdoctoral Fellowship, 1988) and University of San Diego School of Law (J.D., 2002). Dr. Licato has over 12 years of industrial experience, including the management and direction of drug discovery, development and commercialization activities. As an attorney, Dr. Licato's practice emphasizes application of the Food, Drug and Cosmetic Act (FDCA) to the investigation, commencement and prosecution of securities fraud class actions, M&A litigation, and shareholder derivative suits, including: In re: Cyberonics Securities Litigation; In re: Guidant Securities Litigation; and In re: Diebold Securities Litigation. Dr. Licato is admitted to practice in California.
DAVID H. GOLDBERGER is a graduate of the University of Colorado (B.A. 1999) and California Western School of Law (J.D. 2002). Mr. Goldberger is currently actively involved in litigation, including: In re: Priceline.com Securities Litigation; In re: GM ERISA Litigation; and In re: Plastic Additives Antitrust Litigation, among others. He is licensed to practice in California and is currently involved in the firm's complex securities and antitrust litigation.
DESSETA MARSIE-HAZEN is a graduate of Wellesley College (B.A. 1978), the Woodrow Wilson School of Public and International Affairs at Princeton University (M.P.A. 1980) and the New York University School of Law (J.D. 1987). She is licensed to practice in the Virgin Islands, New York, Florida and the District of Columbia. She currently spearheads all aspects of discovery in the firm's antitrust and securities practice.
LUIS LORENZANA is a graduate of Santa Clara University (B.A. 1998) and The George Washington University Law School (J.D., with honors, 2006). Mr. Lorenzana is licensed to practice in California and is involved in the firm’s securities and antitrust class action litigation. Currently, Mr. Lorenzana is involved in litigation, including: In re: Priceline.com Securities Case 2:05-cv-71085-NGE-RSW Document 100-8 Filed 01/15/2008 Page 7 of 7
Litigation; and In re: Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, among others. As part of his pro bono work, Mr. Lorenzana has worked with La Raza Centro Legal in San Francisco, where he represented low-income, Spanish-speaking clients facing housing, labor and consumer issues.
HAL CUNNINGHAM is a graduate of Murray State University (B.S. Biological Chemistry, 1997) and the University of San Diego School of Law (J.D. 2005). In addition to his law practice, Mr. Cunningham has over eight years of research and development experience in the chemical and pharmaceutical industries. Mr. Cunningham is licensed to practice in California and currently is involved in the firm’s securities and consumer litigation, including: In re: Cardinal Health, Inc. Securities Litigation; Paton, et al. v. Cingular Wireless, et al. and Deitz v. Comcast Corporation.
JUDY SCOLNICK is a graduate of New York University (BA cum laude1972), Brandeis University (MA 1973) and Boston College Law School (JD summa cum laude1976) where she served on the Boston College Industrial and Commercial Law Review. She began her career as a law clerk to the late Honorable Anthony Julian of the United States District Court in Massachusetts and then served as a trial attorney in the Civil Division of the United States Department of Justice from 1977 until 1981. As a trial attorney Ms. Scolnick was the lead counsel in several high-profile employment discrimination lawsuits against various US agencies around the country. She also drafted the policy position followed by all US Attorneys’ offices concerning employment discrimination cases that ensured coordination between the positions of the Civil Rights Division as prosecutor of discrimination cases against private employer and the Civil Division as the defender of employment cases against US agencies. Ms Scolnick then served with the General Counsel’s office of British Airways, where she primarily practiced employment law. Ms. Scolnick also played a primary role in negotiating key operating contracts and obtaining governmental approval of the alliance between British Airways and American Airlines. Ms. Scolnick has lectured and written extensively in the areas of prosecution and defense of Title VII , Americans with Disabilities Act, age discrimination, and compliance with the discrimination provisions of the Air Carrier Access Act. Ms. Scolnick is admitted to practice in New York, New Jersey, and Massachusetts.
AMANDA F. LAWRENCE is a graduate of Dartmouth College (B.A. , cum laude, 1998) Yale University (J.D., 2002). Ms. Lawrence is admitted to practice in Connecticut. Her primary areas of practice are complex securities litigation, securities class action litigation, commercial and land use litigation.