Bright v. Conagra Foods Inc., et al.

ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT PURPOSES AND PRELIMINARILY APPROVING PROPOSED SETTLEMENT. Fairness Hearing will set for 11/16/2007 at 10:00 AM before Senior Judge Lyle E. Strom as set forth within the orderOrdered by Judge Lyle E. Strom.

District of Nebraska, ned-8:2005-cv-00348

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8:05-cv-00348-LES-TDT Doc # 95 Filed: 08/03/07 Page 1 of 14 - Page ID # 1429 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA DENISE A. BRIGHT, Individually and on CASE No.: 8:05-CV-00348 Behalf of All Others Similarly Situated, Plaintiff, vs. CONAGRA FOODS, INC., et al, Defendants. MICHAEL A. RANTALA, Individually and on CASE No.: 8:05-CV-00349 Behalf of All Others Similarly Situated, Plaintiff, vs. CONAGRA FOODS, INC., et al, Defendants. RICHARD J. BOYD, Individually and on CASE No.: 8:05-CV-00386 Behalf of All Others Similarly Situated, Plaintiff, vs. CONAGRA FOODS, INC., et al, Defendants. ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT PURPOSES AND PRELIMINARILY APPROVING PROPOSED SETTLEMENT This matter is before the Court on the motion by Co-Lead Plaintiffs for Preliminary Approval of a Settlement. The parties have filed a Stipulation of Settlement. Attached to the Stipulation of Settlement as Exhibits are the documents 8:05-cv-00348-LES-TDT Doc # 95 Filed: 08/03/07 Page 2 of 14 - Page ID # 1430 necessary to implement the settlement. The Stipulation of Settlement and its exhibits are referred to collectively in this Order as the "Settlement Agreement." If approved, the Settlement Agreement would result in, among other things, dismissal of these cases with prejudice. Unless otherwise specifically defined herein, the capitalized terms in this Order have the same meaning attributed to them in the Settlement Agreement. Upon review of the Settlement Agreement, the Plaintiffs' Motion for Preliminary Approval of a Settlement, and the prior filings in this case, it is hereby ORDERED, ADJUDGED AND DECREED as follows: 1. Class Findings – For purposes of the settlement of the Action (and only for such purposes, and without an adjudication of the merits), the Court preliminarily finds that the requirements of the Federal Rules of Civil Procedure, the United States Constitution, the Rules of the Court and any other applicable law have been met in that: a. The Class, as defined in paragraph 2 below, is ascertainable from records kept by the Defendants (or their subsidiaries) and/or their agents, and other objective criteria, and the Class Members are so numerous that their joinder before the Court would be impracticable; b. The commonality requirement of Fed. R. Civ. P. 23(a) is satisfied insofar as Co-Lead Plaintiffs have alleged numerous questions of fact and law purportedly common to the Class, including whether Defendants violated provisions of ERISA; c. Based on Co-Lead Plaintiffs' allegations that Defendants engaged in uniform misconduct affecting members of the Class, the Court preliminarily -2- 8:05-cv-00348-LES-TDT Doc # 95 Filed: 08/03/07 Page 3 of 14 - Page ID # 1431 finds that the claims of Co-Lead Plaintiffs are typical of the claims of the Class, and that Co-Lead Plaintiffs and Plaintiffs' Co-Lead Counsel will fairly and adequately protect the interests of the Class, in that: (i) the interests of Co-Lead Plaintiffs and the nature of their alleged claims are consistent with those of members of the Class; (ii) there appear to be no conflicts between or among Co-Lead Plaintiffs and other Class Members; (iii) Co- Lead Plaintiffs have been and appear to be capable of continuing to be active participants in both the prosecution and the settlement of this Action; and (iv) Co-Lead Plaintiffs and Class Members are represented by qualified, reputable counsel who are experienced in preparing and prosecuting large, complicated class actions, including class actions based upon violations of ERISA; d. The Court preliminarily finds that, for settlement purposes: (i) the prosecution of separate actions by individual Class Members would create a risk of (a) inconsistent or varying adjudications as to individual Class Members that would establish incompatible standards for the parties opposing the Class or (b) 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 adjudications, or substantially impair or impede those persons' ability to protect their interests; and (ii) according to the Co-Lead Plaintiffs' allegations, the parties opposing the Class have acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole (if the Co- Lead Plaintiffs could prove their allegations). In making these preliminary findings, the Court has considered, among other factors: (i) the interest of members of the Class in individually controlling the prosecution or defense of separate actions; (ii) the -3- 8:05-cv-00348-LES-TDT Doc # 95 Filed: 08/03/07 Page 4 of 14 - Page ID # 1432 impracticability or inefficiency of prosecuting or defending separate actions; (iii) the extent and nature of any litigation concerning these claims already commenced; and (iv) the desirability of concentrating the litigation of the claims in a particular forum. 2. Preliminary Class Certification for Settlement Purposes – Based on the findings set forth in paragraph 1 above, the Court preliminarily certifies the Class for settlement purposes under Fed. R. Civ. P. 23(b)(1) and/or 23(b)(2). The Class consists of all persons ("Class" or "Class Members") who were participants in, beneficiaries of, or had an interest in one or more of the ERISA Plans during the period from September 18, 2003 through July 10, 2007, inclusive (the "Class Period") and had an interest in the ConAgra Foods Stock Fund in one or more of the ERISA Plans at any time during the Class Period. The Court finds that, for the sole purpose of settlement, and without an adjudication of the merits, the Class is sufficiently well-defined and cohesive. The Class, as preliminarily certified pursuant to Fed. R. Civ. P. 23(b)(1) and/or 23(b)(2), is a non-opt-out class. 3. Findings Regarding Proposed Settlement – The Court finds that: (i) the proposed Settlement Agreement resulted from extensive arm's-length negotiations; and (ii) the Settlement Agreement is sufficiently fair, reasonable and adequate to warrant sending notice of the Action and proposed Settlement Agreement to Class Members and holding a full hearing on the proposed settlement. 4. Fairness Hearing – The Court hereby schedules a hearing (the "Fairness Hearing") for November 16, 2007, at 10 a.m. CST to consider, among other things: -4- 8:05-cv-00348-LES-TDT Doc # 95 Filed: 08/03/07 Page 5 of 14 - Page ID # 1433 a. whether this Action should be finally certified as a class action for settlement purposes; b. whether the proposed settlement of this Action should be approved as fair, reasonable and adequate and the Action dismissed with prejudice pursuant to the terms of the Settlement Agreement; c. whether the Notice, Summary Notice and notice methodology implemented pursuant to the Settlement Agreement: (i) constituted the best practicable notice; (ii) constituted notice that was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the Action, of the effect of the Settlement Agreement (including the Release) of their right to object to the proposed settlement and of their right to appear at the Fairness Hearing; (iii) were reasonable and constituted due, adequate and sufficient notice to all persons entitled to notice; and (iv) met all applicable requirements of the Federal Rules of Civil Procedure, the United States Constitution (including the Due Process Clause), the Rules of the Court and any other applicable law; d. whether Co-Lead Plaintiffs and Plaintiffs' Co-Lead Counsel adequately represented the Class for purposes of entering into and implementing the Settlement Agreement; e. whether Class Members, the ERISA Plans, the fiduciaries of the ERISA Plans, and their heirs, executors, administrators, beneficiaries, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b) and assigns of all of those -5- 8:05-cv-00348-LES-TDT Doc # 95 Filed: 08/03/07 Page 6 of 14 - Page ID # 1434 persons and entities should be bound by the Release set forth in the Settlement Agreement; f. whether Class Members, the ERISA Plans, the fiduciaries of the ERISA Plans, and the heirs, executors, administrators, beneficiaries, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b) and assigns of all of those persons and entities should, subject to certain exclusions set out in the Settlement Agreement, be permanently barred and enjoined from filing, commencing, prosecuting, intervening in, participating in (as class members or otherwise), or receiving any benefits or other relief from, any other lawsuit, arbitration or other proceeding or order in any jurisdiction that is based upon, arises out of, or relates to any Released Claim; g. whether any and all persons and entities should, subject to certain exclusions set out in the Settlement Agreement, be permanently barred and enjoined from organizing any Class Members for the purposes of pursuing as a purported class action (including seeking to amend a pending complaint to include class allegations, or by seeking class certification in a pending action) any lawsuit that is based upon, arises out of or relates to any Released Claim; h. whether, subject to certain exclusions set out in the Settlement Agreement, a complete bar (the "Bar Order") should be entered that: (i) permanently bars, enjoins and restrains Co-Lead Plaintiffs, the ERISA Plans, the fiduciaries of the ERISA Plans, and any and all Class Members, and the heirs, executors, administrators, beneficiaries, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b) and assigns of all of those persons and entities, and any person or entity claiming by or through any of the Class Members or representing any or all of the Class -6- 8:05-cv-00348-LES-TDT Doc # 95 Filed: 08/03/07 Page 7 of 14 - Page ID # 1435 Members from commencing, prosecuting, or asserting any claim against any Releasee arising under state law, federal law, foreign law, or common law doctrine, however styled, whether for indemnification or contribution or otherwise denominated, including, without limitation, claims for breach of contract and for misrepresentation, where the claim is based upon, arises out of, or relates to any Released Claim, whether such claims are legal or equitable, known or unknown, foreseen or unforeseen, matured or un- matured, accrued or un-accrued, including, without limitation, any claim in which a person or entity seeks to recover from any or all of the Releasees (a) any amounts such person or entity may become liable to pay to any of the Class Members and/or (b) any costs, expenses, or attorneys' fees from defending any claim by any of the Class Members; and (ii) permanently bars, enjoins and restrains all Parties and Releasees from commencing, prosecuting, or asserting any claim against any person or entity (including any other Releasee) arising under state law, federal law, foreign law, or common law doctrine, however styled, whether for indemnification or contribution, or otherwise denominated, to recover from any person or entity, including another Releasee, (a) any amounts such Party or Releasee has or may become liable to pay to any of the Class Members and/or (b) any costs, expenses or attorneys' fees incurred in defending any claim by any of the Class Members; and i. whether the application for attorneys' fees and expenses that will be filed by Plaintiffs' Co-Lead Counsel should be approved. 5. Notice to Class Members – Notice of the settlement of this Action shall be provided to Class Members as follows: -7- 8:05-cv-00348-LES-TDT Doc # 95 Filed: 08/03/07 Page 8 of 14 - Page ID # 1436 a. No later than October 10, 2007, which is at least thirty-five (35) days before the date set above for the Fairness Hearing to be held, the Plaintiffs' Co- Lead Counsel or the Settlem