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TEACHERS' RETIREMENT SYSTEM OF LOUISIANA v. A.C.L.N.

United States District Court, S.D. New York


February 18, 2004.

TEACHERS' RETIREMENT SYSTEM OF LOUISIANA, individually and on behalf of itself and all others similarly situated, Plaintiff, -v- A.C.L.N., LIMITED, JOSEPH J.H. BISSCHOPS, ALDO LABIAD A/K/A ABDERRAZAK LABIADH, ALEX DE RIDDER, CHRISTIAN L. PAYNE, MICHAEL S. DOHERTY, EARL GOULD, CHARLES L. BROCK, MARINA SAVVA, YIANNAKIS ECONOMIDES, BDO INTERNATIONAL, BDO INTERNATIONAL ACCOUNTANTS & CONSULTANTS (CYPRUS), BDO SEIDMAN, LLP, and BDO INTERNATIONAL B.V., Defendants

The opinion of the court was delivered by: MILTON POLLACK, Senior District Judge

ORDER PRELIMINARILY APPROVING PARTIAL SETTLEMENT OF ACTION
WHEREAS:
A. Lead Plaintiff, the Teachers' Retirement System of Louisiana, and A.C.L.N., Limited ("ACLN"), Aldo Labiad a/k/a Abderrazak Labiadh, Christian L. Payne, Michael S. Doherty, Earl Gould and Charles L. Brock (the "Settling Defendants") have entered into a Stipulation and Agreement of Settlement dated as of January 23, 2004 (the "Stipulation") in settlement of all claims asserted against Settling Defendants in the actions consolidated in the above-captioned action (the "Action"), the terms of which are set forth in the Stipulation (the "Settlement"); Page 2

B. By order entered November 13, 2002, the Court certified the Action to proceed as a Class Action on behalf of all persons who purchased ACLN common stock on the New York Stock Exchange or other U.S. Exchanges during the period beginning on June 29, 2000 through March 18, 2002, inclusive and who were damaged thereby excluding the company and certain other persons as set forth in the Stipulation.

  C. Lead Plaintiff and Settling Defendants have moved, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, for an Order preliminarily approving the Settlement in accordance with the terms of the Stipulation and providing for notice to the Class; and

  D. The Court having read and considered the Stipulation and exhibits thereto, including the proposed (i) Notice to the Class; (ii) Proof of Claim; and (iii) Order and Final Judgment, and finding that substantial and sufficient grounds exist for entering this Order;

  NOW, THEREFORE, IT IS HEREBY ORDERED:

  1. The Court, for purposes of this Order, adopts all defined terms as set forth in the Stipulation.

  2. The Court preliminarily approves the partial Settlement of this consolidated class action on the terms set forth in the Stipulation subject to further consideration at a hearing to be held before this Court on May 14, 2004, at 11:00 a.m. at the United States Courthouse, 40 Centre Street, New York, N.Y. 10007, (the "Settlement Fairness Hearing") to determine whether the proposed Settlement of the Action on the terms and conditions provided for in the Stipulation is fair, reasonable and adequate and should be approved by the Court; whether a judgment as Page 3 provided in ¶ 30 of the Stipulation should be entered herein; and to determine the amount of fees and expenses that should be awarded to Plaintiffs' counsel

  3. The Court approves the form, substance and requirements of the Notice of Pendency of Class Action, Hearing On Proposed Partial Settlement and Attorneys' Fee Petition and Right to Share in Settlement Fund (the "Notice"), Summary Notice of Pendency of Class Action, Proposed Partial Settlement and Settlement Hearing ("Publication Notice") (together the "Notices) and the Proof of Claim form ("Proof of Claim"), and finds that the procedures established for publication, mailing and distribution of such Notices substantially in the manner and form set forth in ¶ 4 and 5 of this Order constitute the best notice practicable under the circumstances and are in full compliance with the notice requirements of due process, Fed.R.Civ.P. 23 and Section 21D(a)(7) of the Securities Exchange Act of 1934, 15 U.S.C. § 78u-4(a)(7) as amended by the Private Securities Litigation Reform Act.

  4. Lead Counsel, shall cause the Notice substantially in the form annexed hereto as Exhibit 1 to be mailed, by first class mail, postage prepaid, on or before March 15, 2004, to all Class Members at the address of each such person as set forth in the records of ACLN or its transfer agent, or who otherwise can be identified through reasonable effort. Settling Defendants shall cooperate in making ACLN's transfer records and shareholder information available to Lead Counsel or its agents for the purpose of identifying and giving notice to the Class. Lead Counsel shall, at or before the Settlement Fairness Hearing, file with the Court proof of mailing of the Notice. Page 4

  5. Lead Counsel shall cause the Publication Notice, substantially in the form annexed hereto as Exhibit 3, to be published once in the national edition of The Wall Street Journal within ten days of the mailing of the Notice. Lead Counsel shall, at or before the Settlement Fairness Hearing, file with the Court proof of publication of the Published Notice.

  6. To effectuate the provision of notice provided for in paragraph 4 hereof, Lead Counsel or its agents shall lease and maintain a post office box of adequate size for communications from Class Members. All Notices to the Class shall designate said post office box as the return address for the purposes designated in the Notices. Lead Counsel or its agents shall be responsible for the receipt of all responses from the Class and, until further order of the Court, shall preserve all entries of appearance, Proofs of Claim, and all other written communications from members of the Class, nominees or any other Person in response to the Notices. The Notice and Administration Costs, which include the costs of Notice (including printing, mailing and publication of all required notices) and the costs of administration, shall be paid out of the Gross Settlement Fund and Lead Counsel may withdraw up to $100,000 of the Gross Settlement Fund without further order of the Court to pay such costs.

  7. Lead Counsel shall use reasonable efforts to give notice to nominee owners such as brokerage firms and other persons or entities who purchased ACLN common stock during the Class Period as record owners but not as beneficial owners. Such nominees who hold or held ACLN common stock for beneficial owners who are members of the Class are directed (a) to provide the firm mailing the Notice ("Mailing Firm") with lists of the names and last known addresses of the beneficial owners for whom they purchased ACLN stock during the Class Page 5 Period within seven (7) days of receipt of the Notice, or (b) to request additional copies of the Notice within seven (7) days of receipt of the Notice. If the nominee elects to send the Notice to beneficial owners, the nominee is directed to mail the Notice within seven (7) days of receipt of the copies of the Notice from the Mailing Firm and upon such mailing the nominee shall send a statement to the Mailing Firm confirming that the mailing was made as directed and the nominee shall retain the list of names and addresses for use in connection with any possible future notice to the Class. Upon full compliance with this Order, such nominees may seek reimbursement of their reasonable expenses actually incurred in complying with this Order by providing the Mailing Firm with proper documentation supporting the expenses for which reimbursement is sought. Such properly documented expenses incurred by nominees in compliance with the terms of this Order shall be paid from the Gross Settlement Fund.

  8. Lead Counselor its agents are authorized and directed to prepare any tax returns required to be filed on behalf of the Settlement Fund and to cause any Taxes due and owing to be paid from the Settlement Fund without further Order of the Court.

  9. All members of the Class who do not timely request exclusion from the Class by April 30, 2004, in the form and manner set forth in the Notice will be bound by the proposed Settlement provided for in the Stipulation, and by any judgment or determination of the Court affecting the Class.

  10. Class Members requesting exclusion from the Class shall not be entitled to receive any payment out of the Net Settlement Fund as described in the Stipulation and Notice. Page 6

  11. Lead Counsel shall submit its papers in support of final approval of the Settlement and application for attorneys' fees and reimbursement of expenses by no later than April 16, 2004.

  12. Any member of the Class who has not requested exclusion from the Class may appear at the Settlement Fairness Hearing to show cause why the proposed partial Settlement should not be approved as fair, reasonable and adequate; why a judgment should not be entered thereon; or why Lead Counsel's application for an award of attorneys' fees and reimbursement of expenses should not be granted, provided, however, that no member of the Class shall be heard or entitled to contest the approval of the terms and conditions of the proposed Settlement, the Order and Final Judgment to be entered approving the same, or the attorneys' fees and reimbursement of expenses requested, unless no later than April 30, 2004, such Class Member has served by hand or by overnight delivery written objections and copies of any supporting papers and briefs (which must contain proof of all purchases of ACLN common stock during the Class Period) upon each of the following: Daniel L. Berger, Esq., Bernstein Litowitz Berger & Grossmann LLP, 1285 Avenue of the Americas, New York, New York 10019, on behalf of Plaintiffs; and Seth Aronson, Esq., 400 South Hope Street, Los Angeles, CA 90071, on behalf of Settling Defendants, and has filed said objections, papers and briefs, showing due proof service on Lead Counsel and Defendant's Counsel with the Court of Clerk of the United States District Court for the Southern District of New York, United States Courthouse, 500 Pearl Street, New York, New York 10007. Persons who intend to object to the Settlement, and/or counsel's application for an award of attorneys' fees and expenses and desire to present evidence at the Page 7 Settlement Fairness Hearing must include in their written objections the identity of any witness they may call to testify and exhibits they intend to introduce into evidence at the Settlement Fairness Hearing.

  13. Any member of the Class who does not object in the manner prescribed above shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to the fairness, adequacy or reasonableness of the proposed Settlement, the Order and Final Judgment to be entered approving the Settlement, or the attorney's fees and reimbursement of expenses requested.

  14. In order to be entitled to participate in the Settlement, in the event the Settlement is effected in accordance with all of the terms and conditions set forth in the Stipulation, each Class Member shall take the following actions and be subject to the following conditions:

  (a) A properly executed Proof of Claim (the "Proof of Claim"), substantially in the form attached hereto as Exhibit 2, must be submitted to the Claims Administrator, at the Post Office Box indicated, postmarked no later than the date to be set by the Court. Such deadline may be further extended by Court Order. Each Proof of Claim shall be deemed to have been submitted when postmarked (if properly addressed and mailed by first class mail, postage prepaid) provided such Proof of Claim is actually received prior to the motion for an order of the Court approving distribution of the Net Settlement Fund. Any Proof of Claim submitted in any other manner shall be deemed to have been submitted when it was actually received at the address designated. Page 8

 

(b) The Proof of Claim submitted by each Class Member must satisfy the following conditions: (i) it must be properly completed, signed and submitted in a timely manner in accordance with the provisions of the preceding subparagraph; (ii) it must be accompanied by adequate supporting documentation for the transactions reported therein, in the form of broker confirmation slips, broker account statements, an authorized statement from the broker containing the transactional information found in a broker confirmation slip, or such other documentation as is deemed adequate by Lead Counsel; (iii) if the Person executing the Proof of Claim is acting in a representative capacity, a certification of his current authority to act on behalf of the Class Member must be included in the Proof of Claim; and (iv) the Proof of Claim must be complete and contain no material deletions or modifications of any of the printed matter contained therein and must be signed under penalty of perjury.
(c) As part of the Proof of Claim, each Class Member shall submit to the jurisdiction of the Court with respect to the claim submitted, and shall (subject to effectuation of the Settlement) release all Settled ACLN Claims as provided in the Stipulation.
  15. The Court expressly reserves the right to adjourn the Settlement Hearing, or any adjournment thereof, without any further notice other than an announcement at the Settlement Hearing, or any adjournment thereof, and to approve the Stipulation with modification approved by the parties to the Stipulation and without further notice to members of the Class.

  16. Neither Settling Defendants nor Settling Defendants' Counsel shall have any responsibility for the Plan of Allocation to be submitted to the Court or any application for Page 9 attorneys' fees or reimbursement of expenses submitted by Lead Counsel, and such matters will be considered separately from the fairness, reasonableness and adequacy of the Settlement.

  17. The administration of the proposed partial Settlement and the determination of all disputed questions of law and fact with respect to the validity of any claim or right of any person to participate in the distribution of the Net Settlement Fund shall be under the authority of this Court.

  18. Pending final determination of whether the Settlement should be approved, Lead Plaintiff and all Class Members, and each of them, and anyone who act or purports to act on their behalf, shall not institute, commence or prosecute any action which asserts Settled ACLN Claims against any Settling Defendants.

  19. The Court retains exclusive jurisdiction over the Action with respect to its ongoing prosecution against the BDO Entities and to consider all further matters arising out of or connected with the Settlement.

  IT IS SO ORDERED.

20040218

© 1992-2004 VersusLaw Inc.



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