The opinion of the court was delivered by: Honorable Gary A. Feess
A. On April 16, 2010, Lead Plaintiff, Kwok Wong ("Lead Plaintiff"), acting on behalf of himself and the Settlement Class, entered into a Stipulation and Agreement of Settlement (the "Stipulation") with Defendants in these consolidated actions (the "Litigation").
B. Pursuant to the Preliminary Approval Order Providing for Notice and Hearing in Connection With Proposed Class Action Settlement, entered May 17, 2010 (the "Preliminary Approval Order"), the Court scheduled a hearing for November 15, 2010, at 9:30 a.m. (the "Settlement Hearing") to inter alia: (a) determine whether the proposed settlement of the Litigation on the terms and conditions provided for in the Stipulation is fair, reasonable and adequate, and should be approved by the Court; and (b) determine whether a judgment as provided for in the Stipulation should be entered. The Court ordered that the Notice of Pendency of Class Action and Proposed Settlement (the "Notice") and a Proof of Claim and Release form ("Proof of Claim"), in the form attached as Exhibits 1 and 2 to the Preliminary Approval Order, be mailed by first-class mail, postage prepaid, on or before May 31, 2010 ("Notice Date") to all putative Class Members at the address of each such Person as set forth in the records of MRV Communications, Inc. ("MRV") or its transfer agent, or who otherwise could be identified through reasonable effort, and that a Summary Notice of Pendency of Class Action and Hearing on Proposed Settlement (the "Summary Notice"), in the form attached to the Preliminary Approval Order as Exhibit 3, be published in Investor's Business Daily and transmitted over PRNewswire within fourteen (14) calendar days of the Notice Date.
C. The Notice and the Summary Notice advised Class Members of the date, time, place and purpose of the Settlement Hearing. The Notice further advised that any objections to the Settlement were required to be filed with the Court and served on counsel for the Parties by November 1, 2010.
D. The provisions of the Preliminary Approval Order as to notice were complied with.
E. On October 18, 2010, Lead Plaintiff moved for final approval of the Settlement, as set forth in the Preliminary Approval Order. The Settlement Hearing was duly held before this Court on November 15, 2010, at which time all interested Persons were afforded the opportunity to be heard.
F. This Court has duly considered the Lead Plaintiff's motion, the affidavits, declarations and memorandum of law submitted in support thereof, and all of the submissions and arguments presented with respect to the proposed Settlement.
NOW, THEREFORE, after due deliberation, IT IS ORDERED, ADJUDGED AND DECREED that:
1. This Judgment incorporates by reference the definitions in the Stipulation, and all capitalized terms used herein shall have the same meanings as set forth in the Stipulation.
2. This Court has jurisdiction over the subject matter of the Litigation and over all Parties to the Litigation, including all members of the Settlement Class.
3. The Court hereby finally certifies the following class for the purposes of settlement only (the "Settlement Class"), pursuant to Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure: all Persons that purchased the common stock of MRV during the period between March 31, 2003 and October 8, 2009, inclusive, and were damaged thereby. Excluded from the Settlement Class are: Defendants; the current and former officers and directors of the Company; the members of the immediate families of any excluded Person; the legal representatives, heirs, successors or assigns of any excluded Person; any entity in which any Defendant has or had a controlling interest; and any Person that timely and validly sought exclusion from the Settlement Class, as listed in Exhibit A hereto.
4. The Court hereby appoints Kwok Wong as Class Representative and Labaton Sucharow LLP as Class Counsel.
5. The notification provided for and given to the Settlement Class was in compliance with the Preliminary Approval Order, and said notification constituted the best notice practicable under the circumstances and is in full compliance with the notice requirements of due process, Federal Rule of Civil Procedure 23 and ...