DR. JULIO GARCIA, on behalf of himself and all others similarly situated, Plaintiff,
ALLERGAN, INC., Defendant.
[PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE [With attached list of exclusions]
PHILIP S. GUTIERREZ, District Judge.
This matter came before the Court for hearing pursuant to the Order of this Court, dated January 31, 2013, on Plaintiff's motion for final approval of the Class Settlement Agreement and Release ("Settlement Agreement") dated as of October October 31, 2012. 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 that:
1. This Judgment incorporates by reference the definitions in the Settlement Agreement, and all terms used herein shall have the same meanings as set forth in the Settlement Agreement.
2. This Court has jurisdiction over the subject matter of the Action and over all parties to the Action, including all Settlement Class Members.
3. Pursuant to Federal Rule of Civil Procedure 23, this Court hereby approves the settlement set forth in the Settlement Agreement and finds that said settlement is, in all respects, fair, reasonable and adequate to the Class. The Court also hereby reaffirms its findings and conclusion, set forth in the Order Granting Motion for: (1) Certification of Class for Settlement Purposes; (2) Preliminary Approval of Class Action Settlement; and (3) Dissemination of Class Notice, that, for purposes of settlement, the Class meets the prerequisites for bringing a class action set forth in Federal Rule of Civil Procedure Rule 23(a) and the requirements for maintenance of a class action under Rule 23(b)(3). The Court hereby makes final its previously conditional certification of the Class.
4. Except as to any individual claim of those persons/entities (identified in Exhibit 1 attached hereto) who have validly and timely requested exclusion fro the Class, the Action and all claims contained therein, as well as all of the Released Claims are dismissed with prejudice by the Plaintiff and the other Settlement Class Members, and as against the Allergan Releasee(s). The Parties are to bear their own costs, except as otherwise provided in the Settlement Agreement.
5. Upon the Effective Date hereof, Plaintiff and each of the Settlement Class Members shall be deemed to have, and by operation of this Judgment shall have, fully, finally, and forever released, relinquished and discharged all Released Claims (including Unknown Claims) against each and all of the Allergan Releasee(s), whether or not such Settlement Class Member executes and delivers a Claim Form.
6. All Settlement Class Members are hereby forever barred and enjoined from prosecuting the Released Claims (including Unknown Claims) against Allergan and the Allergan Releasee(s).
7. Upon the Effective Date, as defined in CJICJI 14 and 46 of the Settlement Agreement, each of the Releasors shall be deemed to have, and by operation of the Judgment shall have, fully, finally, and forever released, relinquished and discharged each and all of the Settlement Class Members and Class Counsel from all claims (including Unknown Claims), arising out of, relating to, or in connection with the institution, prosecution, assertion, settlement or resolution of (i) the Action, or (ii) the Released Claims, other than their obligations as Escrow Agents and other obligations provided in the Settlement Agreement.
8. The Legal Notice of Proposed Class Action Settlement ("Class Notice") given to the Class was the best notice practicable under the circumstances, including the individual notice to all members of the Class who could be identified through reasonable effort. Said notice provided the best notice practicable under the circumstances of those proceedings and of the matters set forth therein, including the proposed settlement set forth in the Settlement requirements of Federal Rule of Civil Procedure 23 and the requirements of due process.
9. Neither the Settlement Agreement, nor any act performed or document executed pursuant to or in furtherance of the Settlement Agreement: (i) is or may be deemed to be or may be used as an admission of, or evidence of, the validity of any Released Claim, or of any wrongdoing or liability of Allergan or the Allergan Releasee(s), or (ii) is or may be deemed to be or may be used as an admission of, or evidence of, any fault or omission of Allergan or the Allergan Releasee(s) in any civil, criminal or administrative proceeding in any court, administrative agency or other tribunal. Allergan and the Allergan Releasee(s) may file the Settlement Agreement and/or the Judgment from this Action in any other action that may be brought against it in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction or any theory of claim preclusion or issue preclusion or similar defense or counterclaim.
10. In accordance with 15 U.S.C. §78u-4(f)(7)(A), any and all claims for contribution and indemnification arising out of any Released Claim(s), including, but not limited to, any claims that are based upon any matters that were alleged or could have been alleged in the Action by any Person or entity against Allergan or any of the Allergan Releasee(s) are, by operation of this Judgment, hereby permanently barred, extinguished, discharged, satisfied and unenforceable. All Releasors are hereby barred and permanently enjoined, to the fullest extent allowed by law, from asserting, instituting or prosecuting in any capacity, before any court or governmental agency, any action or proceeding against Allergan or any of the Allergan Releasee(s) for equitable, partial, comparative or complete contribution, subrogation or indemnity, however denominated, based upon liability for the Released Claims, and the Court finds that all such claims extinguished, discharged, satisfied and unenforceable. Notwithstanding the foregoing, nothing in this Judgment shall apply to, bar or otherwise affect any claims for personal injury or product liability resulting in personal injuries to Settlement Class Members or their patients.
11. Without affecting the finality of this Judgment in any way, this Court hereby retains continuing jurisdiction over (a) implementation of this 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, interest and reimbursement of expenses in the Action and any incentive award; and (d) all parties hereto for the purpose of construing, enforcing and administering the Settlement Agreement.
12. The Court finds that during the course of the Action, the Parties and their respective counsel at all times prosecuted and defended the Action in good faith and at all times complied with the ...