The opinion of the court was delivered by: Thomas F. Hogan, United States District Judge
ORDER PRELIMINARILY APPROVING PROPOSED SETTLEMENT BETWEEN PLAINTIFFS AND
DEFENDANTS MYLAN LABORATORIES, INC., MYLAN PHARMACEUTICALS, INC., UDL
LABORATORIES, INC., CAMBREX CORPORATION, PROFARMACO S.R.L., GYMA
LABORATORIES OF AMERICA, INC., AND MILAN PUSKAR
Upon review and consideration of the Stipulation of Settlement and the exhibits attached thereto (the "Settlement Agreement"), made and entered into on March 31, 2003, between the named plaintiffs in the above-captioned actions (the "Direct Purchaser Actions"). Advocate Health Care, St. Charles Hospital and Rehabilitation Center, Dik Drug Company and Harvard Pilgrim Health Care, Inc. (collectively "Class Representatives"), individually and as representatives of the direct purchaser class certified by Order of this Court on July 2. 2001, as modified by Order of August 28, 2001 ("the Class"), and Mylan Laboratories, inc., Mylan Pharmaceuticals, Inc., UDL Laboratories, Inc., Cambrex Corporation, Profarmaco S.r.l; Gyma Laboratories of America, Inc., and Milan Puskar (collectively "Defendants"), it is hereby ORDERED as follows:
PRELIMINARY APPROVAL OF SETTLEMENT
1. This Court finds that it has jurisdiction over these Direct Purchaser Actions and each of the Parties to the Settlement Agreement.
2. The Settlement Agreement is hereby preliminarily approved, subject to further consideration thereof at the Fairness Hearing provided for below. The Court finds that the $35,000,000 settlement amount is within the range such that final settlement approval may be appropriate, following notice to the class. The Court tentatively finds that the terms of the Settlement Agreement are fair, reasonable, adequate, and in the best interests of the Class as a whole, and that the terms of the Settlement Agreement satisfy Federal Rule of Civil Procedure 23(e) and due process requirements.
3. Within twenty (20) days after entry of this Order, the Class Administrator shall: (a) cause the Notice of Proposed Settlement, attached hereto as Exh. 1, to be mailed by first-class mail, postage pre-paid, to all Class Members whose addresses can be obtained with reasonable diligence, including all Class Members who previously signed or filed requests for exclusion from the Class or Contractual Releases, and thereafter to all potential Class Members who request a copy; and (b) cause the Summary Notice, attached hereto as Exh. 2, to be published promptly thereafter in The Pink Sheet (published by F.D.C. Reports) and in Modern Healthcare, and posted on the Internet.
4. Prior to the Fairness Hearing, Class Counsel shall serve and file a sworn statement by the Class Administrator attesting to compliance with the provisions of Paragraph 3 of this Order.
5. The Court finds that the notice required by the foregoing provisions is the best notice practicable under the circumstances and shall constitute due and sufficient notice of the Settlement and the Fairness Hearing to all Class Members and other persons affected by and/or entitled to participate in the settlement, in full compliance with the notice requirements of Rule 23 of the Federal Rules of Civil Procedure and due process.
6. The Notice of Proposed Settlement and Summary Notice shall not provide any new opportunity for Class Members to request exclusion from the CLass. The Notice of Settlement shall advise Class Members who previously signed or filed a request for exclusion from the class and/or executed a Contractual Release that the filing of a timely Proof of Claim shall be deemed a withdrawal of the Class Member's request for exclusion and/or Contractual Release, which the Court will grant pursuant to the terms of the Settlement Agreement, so that the Class Member may share in the Direct Purchaser Settlement Fund to the extent set forth in the Settlement Agreement pursuant to a Court-approved Allocation and Distribution Plan.
7. The Court approves Class Counsel's retention of Poorman-Douglas Corporation as Class Administrator, to administer the distribution of the Notice of Proposed Settlement and publication of the Summary Notice, process all Proofs of Claim, and distribute the Direct Purchaser Settlement Fund to all eligible Class Members pursuant to a Court-approved Allocation and Distribution Plan.
8. The Class Administrator shall preserve all written communications from Class Members in response to the Notice Provision at least until December 31, 2004, or pursuant to further order of the Court. All written communications received by the Class Administrator from Class Members relating to the Settlement Agreement shall be available at all reasonable times for inspection and copying by Counsel for the Parties.
9. The Class Administrator shall be compensated from the Direct Purchaser Settlement Fund Account for its services in connection with notice and administration and for the costs of giving mailed and published notice, pursuant to such orders as the Court may enter from time to time.
10. A Fairness Hearing shall be held on June 16, 2003, at 9:30 a.m., approximately sixty (60) days after the mailing of Notice of Proposed Settlement, to consider: (a) the fairness, reasonableness, and adequacy of the Settlement; (b) whether a final order and judgment should be entered dismissing with prejudice the Direct Purchaser Actions; (c) the application by Class Counsel for attorneys' fees and expenses (the "Fee Petition") and the application for incentive awards to the Class Representatives ("Incentive Awards"), and (d) Class Counsel's proposed Allocation and Distribution Plan.
11. The date and time of the Fairness Hearing shall be set forth in the Notice of Proposed Settlement and Summary Notice, but shall be subject to adjournment by the Court without further notice to the Class Members other than that which may be posted at the Court and on the Court's web site.
12. Any Class Member who objects to the approval of the Settlement Agreement, the Fee Petition, the Incentive Awards or the Allocation and Distribution Plan may appear at the Fairness Nearing and show cause why the Settlement Agreement, the Fee Petition, the Incentive Awards or the Allocation and Distribution Plan should not be approved as fair, reasonable, and adequate, and why the Final Order and Judgment should not be entered, except that no such Class Member may appear at the Fairness Hearing unless the Class Member, by June 2, 2003, two weeks before the Fairness Hearing, (a) files with the Clerk of the Court a notice of such person's intention to appear, a statement that indicates the basis and grounds for such person's objection to the Settlement Agreement, the Fee Petition, the Incentive Awards and/or the Allocation and Distribution Plan, and all documentation, papers, or briefs in support of such objection; and on the same date (b) serves upon all Counsel to the Parties (as listed in the Notice of Proposed Settlement), either in person or by mail, copies of such notice of intention to appear, statement of objections and all documentation, papers, or briefs that such person files with the Court. The required documentation shall include proof that the objector is a Class Member. In the absence of the timely filing and timely service of the notice of intention to appear and all other materials required by this paragraph, any objection shall be deemed untimely and denied.
13. All discovery and other pretrial proceedings in this action among the Parties are hereby stayed and suspended, except such proceedings as are provided for in the Settlement Agreement or which may be necessary to implement the terms of the Settlement Agreement or this Order,
14. Pending final approval of the Settlement Agreement, no Class Member shall, either directly, representatively, or in any other capacity, commence, prosecute against any of the Defendants or participate in any action or proceeding in any court or tribunal asserting any of the matters, claims, or causes of action that are to be released by the Settlement Agreement upon final approval.
15. Upon final approval of the Settlement Agreement, all Class Members shall be forever enjoined and barred from asserting any of the matters, claims or causes of action released by the Settlement Agreement, and all such Class Members shall be deemed to have forever released any and all such matters, claims and causes of action as provided for in the Settlement Agreement.
16. Terms used in this Order that are defined in the Settlement Agreement are, unless otherwise defined herein, used in this Order as defined in the Settlement Agreement.
17. The Court approves the Escrow Agreement, attached to the Settlement Agreement as Exh. E.
18. Upon final approval of the Settlement Agreement, each and every term and provision of the Settlement Agreement shall be deemed incorporated herein as if expressly set forth and shall have the full force and effect of an Order of the Court.
19. In order to participate in the distribution of the Direct Purchaser Settlement Fund, Class Members must complete and mail by June 16, 2003, approximately sixty (60) days from the date of Class Notice, the Proof of Claim and Release Form attached to the Settlement Agreement as Exh. F.
20. In the event the Settlement is terminated in accordance with the provisions of the Settlement Agreement, the Settlement and all proceedings had in connection therewith shall be null and void, except insofar as expressly provided to the contrary in the Settlement Agreement, and without prejudice to the status quo ante rights of Plaintiffs, Defendants, and Class Members.
21. If the Settlement is terminated or ultimately not approved, the Court will modify any existing scheduling order to ensure that the Parties will have sufficient time to prepare for the resumption of litigation, including but not limited to the completion of discovery, preparation of expert reports, ...