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Kenney v. Gertel

United States District Court, N.D. California, San Jose Division

June 27, 2019

JAMES KENNEY, Derivatively on Behalf of FINISAR CORPORATION, Plaintiff,
v.
EITAN GERTEL, JERRY S. RAWLS, KURT ADZEMA, ROGER C. FERGUSON, ROBERT N. STEPHENS, THOMAS E. PARDUN, MICHAEL C. CHILD, and DOMINIQUE TREMPONT, Defendants, and FINISAR CORPORATION, a Delaware corporation, Nominal Defendant.

          ROBBINS ARROYO LLP BRIAN J. ROBBINS (190264) KEVIN A. SEELY (199982) ASHLEY R. RIFKIN (246602) STEVEN M. McKANY (SBN 271405) Attorneys for Plaintiff

          [PROPOSED] ORDER AND FINAL JUDGMENT

          JUDGE: HON. EDWARD J. DAVILA

         This matter came before the Court for hearing on June 27, 2019, to consider approval of the proposed settlement ("Settlement") set forth in the Stipulation of Settlement dated February 14, 2019, and the exhibits thereto (the "Stipulation"). The Court has reviewed and considered all documents, evidence, objections (if any), and arguments presented in support of or against the Settlement. Good cause appearing therefore, the Court enters this Judgment.

         IT IS HEREBY 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 Action, including all matters necessary to effectuate the Settlement, and over all Settling Parties to the Action.

         3. The Court finds that the Notice provided to Finisar shareholders constituted the best notice practicable under the circumstances. The Notice fully satisfied the requirements of Rule 23.1 of the Federal Rules of Civil Procedure and the requirements of due process.

         4. The Court finds that the Settlement as set forth in the Stipulation is fair, reasonable, adequate, and in the best interests of Finisar and its shareholders.

         5. The Action and all claims contained therein, as well as all of the Released Claims against Released Persons, are dismissed with prejudice. The Settling Parties are to bear their own costs, except as otherwise provided in the Stipulation.

         6. Upon the Effective Date, the Releasing Persons shall be deemed to have fully, finally, and forever released, relinquished, and discharged the Released Claims (including Unknown Claims) against the Released Persons and any and all derivative claims arising out of, relating to, or in connection with the defense, settlement, or resolution of the Action against the Released Persons, Nothing herein shall in any way impair or restrict the rights of any Settling Party to enforce the terms of the Stipulation.

         7. Except as set forth in paragraph 6.3 in the Stipulation, upon the Effective Date, each of the Defendants shall be deemed to have fully, finally, and forever released, relinquished, and discharged Plaintiff and Plaintiffs Counsel from all claims (including claims related to Unknown Claims), arising out of, relating to, or in connection with the institution, prosecution, assertion, settlement, or resolution of the Action or the Released Claims. Nothing herein shall in any way impair or restrict the rights of any Settling Party to enforce the terms of the Stipulation.

         8. During the course of the litigation, all parties and their respective counsel at all times complied with the requirements of Rule 11 of the Federal Rules of Civil Procedure, and all other similar laws or statutes, including Section 128.7 of the California Code of Civil Procedure.

         9. The Court hereby approves the sum of $190, 000 for the payment of Plaintiffs Counsel's attorneys' fees and expenses ("Fee and Expense Amount"), and finds that the Fee and Expense Amount is fair and reasonable. No other fees, costs, or expenses may be awarded to Plaintiffs Counsel in connection with the Settlement. The Fee and Expense Amount shall be distributed in accordance with the terms of the Stipulation.

         10. The Court hereby approves the service award of $2, 000 for Plaintiff to be paid from Plaintiffs Counsel's Fee and Expense Amount in recognition of Plaintiffs ...


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