Bright v. Conagra Foods Inc., et al.

STRICKEN - ORDER approving settlement; the Court will separately enter the judgment in accordance with Fed. R. Civ. P. 58. Ordered by Judge Lyle E. Strom. (CJP) Modified on 11/16/2007 to strike per order 119

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

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: 8:05-CV-00348-LES-TDT Doc # 117 Filed: 11/16/07 Page 1 of 10 - Page ID # 1677 FILED U.S. DISTRICT COURT DISTRICT OF NEBRASKA IN THE UNITED STATES DISTRICT COURT FBENDY6 PM 2:30 DISTRICT OF NEBRASKA OFFICE OF THE CLERK DENISE A. BRIGHT, Individually and on Behalf of All Others Similarly Situated, Case No.: 8:05-CV-00348 Plaintiff, vs. CONAGRA FOODS, INC., et al, Defendants. Case No.: 8:05-CV-00349 MICHAEL A. RANTALA, Individually and on Behalf of All Others Similarly Situated, Plaintiff, ys. CONAGRA FOODS, INC., et al, Defendants. RICHARD J. BOYD, Individually and on Behalf of All Others Similarly Situated, Case No.: 8:05-CV-00386 Plaintiff, vs. CONAGRA FOODS, INC., et al, Defendants. ORDER APPROVING SETTLEMENT WHEREAS, Co-Lead Plaintiffs and Defendants entered into a July 16, 2007 Stipulation of Settlement; and WHEREAS, the Court entered an August 3, 2007 Order (the "Preliminary Approval. i 8:05-CV-00348-LES-TDT Doc # 117 Filed: 11/16/07 Page 2 of 10 - Page ID # 1678 Order") preliminarily certifying the putative class in this Action for settlement purposes under Fed. R. Civ. P. 23(b)(1) and/or 23(b)(2), ordering individual and publication notice to Class Members, scheduling a Faimess Hearing for November 16, 2007 and providing Class Members with an opportunity to object to the proposed settlement; WHEREAS, the Court held a Fairness Hearing on November 16, 2007 to determine whether to give final approval to the Settlement Agreement; and WHEREAS, the Court is contemporaneously issuing a Judgment under Fed. R. Civ. P. 58 that, among other things, finally certifies the settlement Class, approves the Settlement Agreement and dismisses the Class Members' claims with prejudice; NOW THEREFORE, based on the submissions of the Parties, on the argument of counsel at the Fairness Hearing, and on the evidence presented to the Court, it is hereby ORDERED, ADJUDGED AND DECREED as follows: 1. Incorporation of Settlement Documents - This Order Approving Settlement (the "Order") incorporates and makes a part hereof: a. the July 16, 2007 Stipulation of Settlement filed with this Court on July 18, 2007; b. the November 15, 2007 Stipulation of Amendment; and C. Exhibits A through H to the Stipulation of Settlement. The Stipulation of Settlement, Stipulation of Amendment, and all exhibits thereto shall be referred to collectively as the "Settlement Agreement." 2. Jurisdiction - The Court has personal jurisdiction over all Class Members (as defined below) and has subject matter jurisdiction over this Action, including, without limitation, jurisdiction to approve the Settlement Agreement and the Plan of Allocation, grant final certification of the Class for settlement purposes and dismiss the Action with prejudice. 3. Final Class Certification – The Class this Court preliminarily certified as a non- Unless otherwise specifically defined herein, the capitalized terms in this Order Approving Settlement have the same meaning as attributed to them in the Settlement Agreement.:: 8:05-CV-00348-LES-TDT Doc # 117 Filed: 11/16/07 Page 3 of 10 - Page ID # 1679 opt-out class is hereby finally certified for settlement purposes under Fed. R. Civ. P. 23(b)(1) and/or 23(b)(2) as a non-opt-out class. 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 and including July 10, 2007, inclusive (the "Class Period"), and who had an interest in the ConAgra Foods Stock Fund in one or more of the ERISA Plans at any time during the Class Period. 4. Court Findings – The Court finds that (1) Co-Lead Plaintiffs are asserting, among other things, claims on behalf of the ERISA Plans, (ii) the settlement of the Action arises from a genuine controversy between the Co-Lead Plaintiffs and the Defendants, is not the result of collusion, and was not procured by fraud or misrepresentation, (iii) the Settlement Agreement was negotiated by counsel appointed by the Court in the Action and such counsel have acted in the best interest of Co-Lead Plaintiffs, Class Members and the ERISA Plans in negotiating the Settlement Agreement vigorously and at arm's-length, (iv) Plaintiffs' Co-Lead Counsel have no relationship to, or interest in, any of Releasees that might affect their judgment as counsel for Co- Lead Plaintiffs or Class Members, (v) the interests of Co-Lead Plaintiffs are identical to the interests of the ERISA Plans and Class Members, (vi) the ERISA Plans' participation in the settlement is not less favorable than that of Co-Lead Plaintiffs and Class Members, (vii) the settlement is not part of an agreement, arrangement or understanding designed to benefit a party in interest, but rather is designed to benefit the ERISA Plans and Class Members (who are or were all participants in, beneficiaries of, or had an interest in the ERISA Plans), (viii) an independent fiduciary reviewed the settlement and found that the settlement of this Action in accordance with the terms and conditions in the Settlement Agreement is in the best interests of the ERISA Plans and the Class Members, and (ix) accordingly, the negotiation and consummation of the Settlement Agreement by Co-Lead Plaintiffs on behalf of the ERISA Plans and Class Members satisfy the conditions of the class exemption published by the Department of Labor at 68 Fed. Reg. 75632 (Dec. 31, 2003), and, in any event, do not constitute "prohibited transactions" as defined by ERISA $$ 406(a)-(6), 29 U.S.C. $$ 1106(a)-(b). 8:05-CV-00348-LES-TDT Doc # 117 Filed: 11/16/07 Page 4 of 10 - Page ID # 1680 5. Adequacy of Representation - Named plaintiffs Denise A. Bright and Michael A. Rantala and the law firms of Scott + Scott, LLP and Harwood Feffer LLP were appointed Co-Lead Plaintiffs and Plaintiffs' Co-Lead Counsel, respectively, by the Court in an August 15, 2005 order. Timmermier, Gross & Prentiss was appointed Plaintiffs' Liaison Counsel by the same order. Co-Lead Plaintiffs, Plaintiffs' Co-Lead Counsel, and Plaintiffs' Liaison Counsel have fully and adequately represented the Class for purposes of entering into and implementing the settlement and have satisfied the requirements of Fed. R. Civ. P. 23(a)(4). 6. Notice – The Court finds that the distribution of the Notice, the publication of the Summary Notice and the notice methodology were all implemented in accordance with the terms of the Settlement Agreement and this Court's Preliminary Approval Order. The Court further finds that the Notice and Summary Notice were simply written and readily understandable, and that the Notice, Summary Notice and notice methodology: (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, their right to object to the proposed settlement and 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. 7. Final Settlement Approval - The terms and provisions of the Settlement Agreement have been entered into in good faith and are hereby fully and finally approved as fair, reasonable and adequate as to, and in the best interests of, each of the Parties and the Class Members, and in full compliance with 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. The Parties and their counsel are hereby directed to implement and consummate the Settlement Agreement according to its terms and provisions. .; 8:05-CV-00348-LES-TDT Doc # 117 Filed: 11/16/07 Page 5 of 10 - Page ID # 1681 8. Plan of Allocation - The Plan of Allocation is approved as a fair and reasonable method to allocate the relevant settlement proceeds among Class Members, and Plaintiffs' Co- Lead Counsel and the Settlement Administrator are directed to implement and administer the Plan of Allocation in accordance with its terms and provisions. 9. Binding Effect - The terms of the Settlement Agreement and of this Order and the accompanying Judgment shall be forever binding on Co-Lead Plaintiffs, the ERISA Plans, the fiduciaries of the ERISA Plans, and all Class Members, as well as the heirs, executors, administrators, beneficiaries, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b) and assigns of all those persons or entities and any person or entity claiming by or through any of the Class Members, and any person or entity representing any or all Class Members. 10. Release – The Release as set forth in the Settlement Agreement, as amended in the Stipulation of Amendment, (and as set out in Appendix A to this Order) is expressly incorporated herein in all respects. The Release shall be effective as of the Final Settlement Date. 11. Permanent Injunction - Co-Lead Plaintiffs, the ERISA Plans, the fiduciaries of the ERISA Plans, and all Class Members (and the heirs, executors and administrators, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b) and assigns of all those persons or entities and any person or entity claiming by or through any of the Class Members, and any person or entity representing any or all Class Members) are permanently 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 Claims. All persons or entities are permanently enjoined from organizing any Class Members for purposes of pursuing as a purported class action (including by 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 Claims.: 8:05-cv-00348-LES-TDT Doc # 117 Filed: 11/16/07 Page 6 of 10 - Page ID # 1682 12. Bar Order a. Any and all Parties and Releasees are permanently barred, enjoined and restrained from commencing, prosecuting or asserting any claim against any Releasee arising under state, federal or common law, however styled, whether for indemnification or contribution or otherwise denominated to recover (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. All such claims are hereby extinguished, discharged, satisfied and unenforceable, subject to a hearing to be held by the Court, if necessary. The provisions of this paragraph 12.a are intended to preclude any liability of any and all of the Releasees to any person or entity for indemnification, contribution, or otherwise on any claim based upon, arising out of, or relating to any Released Claim; provided that, with respect to any judgment against any person or entity on behalf of the Class or a Class Member based upon, arising out of, or relating to any Released Claim, that person or entity shall be entitled to a credit of the greater of (i) an amount that corresponds to the percentage of responsibility of Releasees for the loss to the Class or a Class Member or (ii) the amount of the Qualified Settlement Fund. If any provision of this paragraph 12.a is subsequently held to be unenforceable, such provision shall be substituted with such other provision as may be necessary to afford all of the Releasees the fullest protection permitted by law from any claim that is based upon, arises out of, or relates to any Released Claim; b