ORDER CONDITIONALLY CERTIFYING SETTLEMENT CLASS, PRELIMINARILY APPROVING PROPOSED SETTLEMENT, AND AUTHORIZING NOTICE TO BE SENT TO THE CLASS
Upon review and consideration of the (i) Stipulation of Settlement dated March 14, 2003, executed on behalf of Plaintiff Oncology & Radiation Associates, P.A. ("Plaintiff"), individually and as representative of the proposed class (as defined herein), and on behalf of Bristol-Myers Squibb Company ("Bristol"), and the exhibits attached thereto; and (ii) Stipulation of Settlement dated May 8, 2003, executed on behalf of Plaintiff Oncology & Radiation Associates, P.A. ("Plaintiff"), individually and as representative of the proposed class (as defined herein), and on behalf of American BioScience, Inc. ("ABI") (collectively, the "Settlement Agreements"), it is hereby ORDERED as follows:
PRELIMINARY APPROVAL OF SETTLEMENT AND CONDITIONAL CERTIFICATION OF THE SETTLEMENT CLASS
1. This Court finds that it has jurisdiction over this Action and each of the parties to the Settlement Agreements.
2. The terms of the Settlement Agreements are hereby preliminarily approved and discovery is hereby stayed except to the extent discovery is necessary with respect to opt outs and for purposes of administering and consummating the Settlement Agreements, subject to further consideration thereof at the hearing on final settlement (the "Fairness Hearing") provided for below. The Court finds that the settlement encompassed by the Settlement Agreements (the "Settlement") is sufficiently within the range of reasonableness so that notice of the Settlement should be given as provided in Paragraphs 6, 7 and 8 of this Order.
3. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court hereby conditionally finds that the prerequisites for a class action have been met and conditionally certifies the following class (the "Class") for settlement purposes only:
All persons and entities in the United States who purchased Taxol directly from Bristol or its subsidiaries at any time from January 1, 1999, through March 14, 2003. Excluded from the class are defendants, their parents, subsidiaries and affiliates, and government entities.
4. The Court further hereby conditionally finds that Plaintiff is an adequate class representative for the Class. If the Settlement Agreements are terminated or are not consummated for any reason whatsoever, the certification of the Class shall be void, and Plaintiff, Bristol and ABI (the "Settling Entities") shall have reserved all of their rights to propose or oppose any and all class certification motions and to contest the adequacy of Plaintiff as a representative of any putative plaintiff class.
5. Cohen, Milstein, Hausfeld & Toll, P.L.L.C. is appointed as lead counsel for the Class ("Lead Counsel").
NOTICE TO POTENTIAL CLASS MEMBERS
6. Within 20 days after the date of entry of this Order, Lead Counsel shall cause copies of the Notices of Proposed Settlement and Settlement Hearing, substantially in the form attached as Exhibit A hereto, to be mailed by first class mail, postage prepaid, to all members of the Class, to the extent that they can be identified with reasonable diligence.
7. Lead Counsel shall cause to be published a summary notice, which shall be substantially in the form attached as Exhibit B hereto ("Publication Notice") one day a week for two consecutive weeks in the Modern Healthcare Magazine and The Pink Sheet, as soon as practicable after Mail Notice, and in all events, at least 30 days prior to the Fairness Hearing.
8. Prior to the Fairness Hearing, Lead Counsel shall serve and file a sworn statement attesting to compliance with the provisions of Paragraphs 6 and 7 of this Order.
9. The foregoing notice provisions are hereby found to be the best means of providing notice under the circumstances and, when completed, shall constitute due and sufficient notice of the Settlement and the Fairness Hearing to all persons affected by and/or entitled to participate in the Settlement, in full compliance with the ...