UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION
November 16, 2009
VINCENT ALVIDRES, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
COUNTRYWIDE FINANCIAL CORPORATION, ET. AL., DEFENDANTS.
The opinion of the court was delivered by: Judge: Hon. John F. Walter
FINAL ORDER AND JUDGMENT
[PROPOSED] FINAL ORDER AND JUDGMENT
This Action involves claims for alleged violations of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001, et seq. ("ERISA"), with respect to the Countrywide Financial Corporation 401(k) Savings and Investment Plan as amended and restated effective December 31, 2008, and any successor plans and trusts created under the foregoing plans (the "Plan").*fn1
This matter came before the Court for a hearing pursuant to the Order of this Court entered on September 1, 2009, on the application of the Parties for approval of the Settlement set forth in the Stipulation and Agreement of Settlement (the "Settlement Agreement"), executed on August 5, 2009 and filed with the Court on August 5, 2009. The Court has received declarations attesting to the mailing of the Notice and publication of the Publication Notice in accordance with the Preliminary Approval Order.
Due and adequate notice having been given to the Class 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 as follows:
1. This Court has jurisdiction over the subject matter of this Action and over all Parties to the Action, including all members of the Class.
2. On September 23, 2009, 47,272 copies of the Notice were mailed to Class members.
3. On September 24, 2009, a copy of the Publication Notice was published in USA Today in accordance with the Settlement Agreement and the Court's Preliminary Approval Order.
4. In accordance with the Court's Preliminary Approval Order, the Notice and Settlement Agreement were posted on www.Countrywide401(k)Settlement.com.
5. The Notice and the Publication Notice fully informed Class members of their rights with respect to the Settlement, including the right to object to the Settlement or the application for an award of attorneys' fees and reimbursement of expenses.
6. The Notice and Publication Notice collectively met the statutory requirements of notice under the circumstances, including the individual notice to all members of the Class who could be identified through reasonable effort, and fully satisfied the requirements of Federal Rule of Civil Procedure 23 and the requirement of due process.
7. The Action and all claims contained therein, as well as all of the Settled Claims, are dismissed with prejudice as to the Named Plaintiff, the Class members, and the Plan, and as against the Released Parties. The Parties are to bear their own costs, except as otherwise provided in the Settlement Agreement.
8. The Court finds that the Settlement is fair, just, reasonable, and adequate as to each member of the Class, and that the Settlement Agreement, and the Settlement contained therein, is hereby finally approved in all respects, and the Parties are hereby directed to implement the Settlement in accordance with its terms and conditions.
9. The Named Plaintiff, on behalf of himself, the Plan and the Class, is deemed to have, and by operation of this Order and Judgment shall have, absolutely and unconditionally released and forever discharged the Released Parties from the Settled Claims.
10. All members of the Class are hereby forever barred and enjoined from prosecuting the Settled Claims against the Released Parties. As set forth in Paragraph 1.41 of the Settlement Agreement, the Settled Claims shall be: any and all claims, debts, demands, rights or causes of action, suits, matters, and issues or liabilities whatsoever (including, but not limited to, any claims for damages, interest, attorneys' fees, expert or consulting fees, and any other costs, expenses or liability whatsoever), whether based on federal, state, local, statutory or common law or any other law, rule or regulation, whether fixed or contingent, accrued or unaccrued, liquidated or unliquidated, at law or in equity, matured or unmatured, whether class or individual in nature (collectively, "Claims"), including both Claims and Unknown Claims against any of the Released Parties (i) asserted or that could have been asserted in this Action, (ii) that would have been barred by res judicata had thisAction been fully litigated to a final judgment, or (iii) that relate to any investment in Countrywide stock or the Countrywide Stock Fund in the Plan or by any Plan Participant through the Plan. Notwithstanding the foregoing, "Settled Claims" does not include any claims, debts, demands, rights or causes of action, suits, matters, and issues or liabilities whatsoever (including, but not limited to, any claims for damages, interest, attorney's fees, expert or consulting fees and any other costs, expenses or liability whatsoever), whether based on federal, state, local, statutory or common law or any other law, rule or regulation, whether fixed or contingent, accrued or unaccrued, liquidated or unliquidated, at law or in equity, matured or unmatured, whether class or individual in nature, including both known Claims and Unknown Claims, against any of the Released Parties related to the enforcement of the Settlement, claims asserted in the Securities Actions or Derivative Actions to the extent such claims were not brought under or pursuant to ERISA, claims for individual or vested welfare benefits under ERISA Section 502(a)(1)(B) unrelated to Plan investments or investment options, claims involving Bank of America stock, or claims involving any ERISA plan other than the Plan.
11. Each of the Defendants, by operation of this Order and Judgment, absolutely and unconditionally releases and forever discharges the Named Plaintiff, the Class, and Class Counsel from any and all claims relating to, or in connection with the institution or prosecution of this Action or the Settlement of any Settled Claim.
12. The Plan of Allocation is approved as fair and reasonable. Class Counsel and Countrywide are directed to administer the Settlement in accordance with its terms and provisions. Any modification or change in the Plan of Allocation that may hereafter be approved shall in no way disturb or affect this Judgment and shall be considered separate from this Judgment.
13. Class Counsel is hereby awarded attorneys' fees in the amount of 20% of the Settlement Fund, which the Court finds to be fair and reasonable, and $255,420.04 in reimbursement of Class Counsel's reasonable expenses incurred in prosecuting the Action. The attorneys' fees and expenses so awarded shall be paid from the Gross Settlement Fund pursuant to the terms of the Settlement Agreement, as provided in the Settlement Agreement, with interest on such amounts from the date the Settlement Fund was funded to the date of payment at the same net rate that the Gross Settlement Fund earns. All fees and expenses paid to Class Counsel shall be paid pursuant to the timing requirements described in the Settlement Agreement.
14. The Named Plaintiff is hereby awarded an incentive award in the amount of: $10,000.
15. In making this award of attorneys' fees and reimbursement of expenses to be paid from the Settlement Fund, and the compensation awards to the Named Plaintiff, the Court has considered and found that:
a) The Settlement achieved as a result of the efforts of Class Counsel has created a fund of $55,000,000 in cash that is already on deposit, plus interest thereon, and will benefit thousands of Class members;
b) Class Counsel have conducted the litigation and achieved the Settlement with skill, perseverance, and diligent advocacy;
c) The Action involves complex factual and legal issues prosecuted over several years and, in the absence of a settlement, would involve further lengthy proceedings with uncertain resolution of the complex factual and legal issues;
d) Had Class Counsel not achieved the Settlement, there would remain a significant risk that the Named Plaintiff and the Class may have recovered less or nothing from the Defendants;
e) The amount of attorneys' fees awarded and expenses reimbursed from the Settlement Fund are consistent with awards in similar cases; and
f) The Named Plaintiff rendered valuable service to the Plan and to all Plan Participants. Without this participation, there would have been no case and no settlement.
16. Neither the Settlement Agreement nor the terms of the Settlement Agreement shall be offered or received into any action or proceeding for any purposes, except (i) in an action or proceeding arising under the Settlement Agreement or arising out of or relating to the Preliminary Approval Order or the Final Order, or (ii) in any action or proceeding where the releases provided pursuant to this Settlement Agreement may serve as a bar to recovery, or (iii) in any action or proceeding to determine the availability, scope, or extent of insurance coverage (or reinsurance related to such coverage) for the sums expended for the Settlement and defense of the Action.
17. Without affecting the finality of this Judgment in any way, this Court hereby retains continuing jurisdiction over: (a) implementation of the Settlement and any award or distribution of the Settlement Fund, including interest earned thereon;
(b) disposition of the Settlement Fund; (c) hearing and determining applications for attorneys' fees, costs, interest and reimbursement of expenses in the Action; and (d) all Parties hereto for the purpose of construing, enforcing and administering the Settlement.
18. The Court finds that during the course of the litigation, the Named Plaintiff and the Defendants and their respective counsel at all times complied with the requirements of Federal Rule of Civil Procedure 11.
19. This Order and Judgment shall not be considered or used as an admission, concession, or declaration by or against Defendants of any fault, wrongdoing, breach or liability.
20. In the event that the Settlement does not become effective in accordance with the terms of the Settlement Agreement or in the event that the Gross Settlement Fund, or any portion thereof, is returned to the Defendants or their insurers, then this Judgment shall be rendered null and void to the extent provided by and in accordance with the Settlement Agreement and shall be vacated, and in such event, all orders entered and releases delivered in connection herewith shall be null and void to the extent provided by and in accordance with the Settlement Agreement.
21. Final Judgment shall be entered herein.
SO ORDERED this 16th day of November, 2009.
JUDGE JOHN F. WALTER UNITED STATES DISTRICT JUDGE