United States District Court, C.D. California, Southern Division
PAWEL I. KMIEC, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
v.
POWERWAVE TECHNOLOGIES INC., et al., Defendants.
FINAL JUDGMENT AND ORDER OF DISMISSAL WITH
PREJUDICE
HONORABLE CORMAC J. CARNEY UNITED STATES DISTRICT JUDGE
This
matter came before the Court for hearing pursuant to the
Order of this Court, dated December 4, 2015, on the
application of the parties for approval of the settlement set
forth in the Stipulation of Settlement dated October 30, 2015
(the “Stipulation”). Due and adequate notice
having been given to the Class as required in the Order, the
Court having considered all papers filed and proceedings held
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
Stipulation, and all terms used herein shall have the same
meanings as set forth in the Stipulation, unless otherwise
stated herein.
2. This
Court has jurisdiction over the subject matter of the
Litigation and over all parties to the Litigation, including
all Members of the Class.
3.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure,
the Court hereby certifies, for purposes of effectuating the
settlement, a Class defined as all Persons who, between
October 28, 2010 and October 18, 2011, inclusive, purchased
or otherwise acquired the common stock of Powerwave. Excluded
from the Class are Defendants, members of the immediate
family of each of the Defendants, the directors, officers,
subsidiaries and affiliates of Powerwave during the Class
Period, any person, firm, trust, corporation, officer,
director or other individual or entity in which any Defendant
has a controlling interest, and the legal representatives,
affiliates, heirs, successors-in-interest or assigns of any
such excluded party. Also excluded from the Class are those
Persons who made a timely and valid request for exclusion
from the Class (as identified in Exhibit 1 hereto).
4. With
respect to the Class, this Court finds for the purposes of
effectuating the settlement that: (a) the Members of the
Class are so numerous that joinder of all Class Members in
the Litigation is impracticable; (b) there are questions of
law and fact common to the Class that predominate over any
individual questions; (c) the claims of Lead Plaintiff are
typical of the claims of the Class; (d) Lead Plaintiff and
its counsel have fairly and adequately represented and
protected the interests of the Class Members; and (e) a class
action is superior to other available methods for the fair
and efficient adjudication of the controversy, considering:
(i) the interests of the Members of the Class in individually
controlling the prosecution of the separate actions; (ii) the
extent and nature of any litigation concerning the
controversy already commenced by Members of the Class; (iii)
the desirability or undesirability of concentrating the
litigation of these claims in this particular forum; and (iv)
the difficulties likely to be encountered in the management
of the Litigation.
5.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure,
the Court certifies Lead Plaintiff as a representative of the
Class. Lead Counsel is also certified as counsel to Lead
Plaintiff and the Class in the Litigation.
6.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure,
this Court hereby approves the settlement set forth in the
Stipulation and finds that:
(a) the Stipulation and the settlement contained therein are,
in all respects, fair, reasonable and adequate and in the
best interest of the Class;
(b) there was no collusion in connection with the
Stipulation;
(c) the Stipulation was the product of informed,
arm’s-length negotiations among competent, able
counsel; and
(d) the record is sufficiently developed and complete to have
enabled Lead Plaintiff and Defendants to have adequately
evaluated and considered their positions.
7.
Accordingly, the Court authorizes and directs implementation
and performance of all the terms and provisions of the
Stipulation, as well as the terms and provisions hereof.
Except as to any individual claim of those Persons who have
validly and timely requested exclusion from the Class
(identified in Exhibit 1 hereto), the Litigation and all
claims contained therein, as well as all of the Released
Claims, are dismissed with prejudice as to Lead Plaintiff and
the other Class Members and as against each and all of the
Released Parties. The Settling Parties are to bear their own
costs except as otherwise provided in the Stipulation.
8. Upon
the Effective Date, Lead Plaintiff and each of the Class
Members shall be deemed to have, and by operation of this
Judgment shall have, fully, finally and forever released,
relinquished, dismissed and discharged all Released Claims
(including Unknown Claims) against the Released Parties with
prejudice on the merits, whether or not Lead Plaintiff or
such Class Member executes and delivers the Proof of Claim
and Release and whether or not Lead Plaintiff or each of the
Class Members ever seeks or obtains any distribution from the
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