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Vista HealthPlan, Inc. v. Bristol-Myers Squibb Co.

October 22, 2003

VISTA HEALTHPLAN, INC., AND RAMONA SAKIESTEWA, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
BRISTOL-MYERS SQUIBB CO., AND AMERICAN BIOSCIENCE, INC., DEFENDANTS.



The opinion of the court was delivered by: Hon. Emmet G. Sullivan, United States District Judge.

FINAL ORDER AND JUDGMENT APPROVING SETTLEMENTS BETWEEN THIRD-PARTY PAYOR CLASS PLAINTIFFS AND DEFENDANTS BRISTOL-MYERS SQUIBB COMPANY AND AMERICAN BIOSCIENCE, INC.

This Third-Party Payor Action having come before the Court for a fairness hearing, as noticed, on October 22, 2003, pursuant to this Court's June 4, 2003 Order Preliminarily Approving Proposed Settlements between Plaintiff and Defendants Bristol-Myers Squibb Company ("Bristol") and American BioScience, Inc. ("ABI") (the "Preliminary Approval Order") to consider and determine the matters set forth in the Preliminary Approval Order; and due notice of said hearing having been published and given; and all entities that made timely objections to the proposed settlement set forth in the settlement agreements entered into as of May 28, 2003, on behalf of Plaintiff and the Class and Defendant Bristol, and as of May 27, 2003, on behalf of Plaintiff and the Class and Defendant ABI (collectively, the "Settlement Agreements") and described in the Notice of Proposed Settlement and Summary Notice; and having been given an opportunity to present, such objections to the Court; and the Court having entered an order on June 4, 2003 certifying the following class:

All "Third-Party Payors" (defined immediately below) in the United States which, at any time from January 1, 1999 through December 31, 2002, paid, in whole or in part, for Taxol and/or generic paclitaxel in the United States. Excluded from the Class are Defendants, their subsidiaries, affiliates, officers and directors, and government entities.

"Third-Party Payor" shall mean any entity that (i) is a party to a contract, issuer of a policy, or sponsor of a plan, which contract, policy or plan provides coverage for the administration of Taxol or generic paclitaxel to natural persons, and (ii) is also at risk, pursuant to such contract, policy or plan, to pay or reimburse all or part of the costs of providing such coverage.

A self-funded health benefit plan for employees of a government entity that satisfies the definition of "Third-Party Payor" shall not be considered a "government entity"; and the Court having considered the matter and all of the submissions filed in connection therewith, and the oral presentations of counsel at said hearing; and good cause appearing therefor,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

1. This Court has jurisdiction over this Third-Party Payor Action and each of the parties to the Settlement Agreements.

2. As required by this Court in its Preliminary Approval Order: (a) Notices of the proposed settlements were mailed by first-class mail to all Class Members whose addresses could be obtained with reasonable diligence, and to all potential Class Members who requested a copy; and (b) a Summary Notice was published in The New York Times and The National Underwriter: Life & Health/Financial Services Edition and posted continuously on the Internet. Such notice to members of the Class is hereby determined to be fully in compliance with requirements of Fed.R.Civ.P.23(e) and due process and is found to be the best notice practicable under the circumstances and to constitute due and sufficient notice to all entities entitled thereto.

3. Due and adequate notice of the proceedings having been given to the Class and a full opportunity having been offered to the Class to participate in the fairness hearing, it is hereby determined that all Class Members are bound by this Final Order and Judgment.

4. The settlement of this Third-Party Payor Action was not the product of collusion between Plaintiff and Defendants or their respective counsel, but rather was the result of bona fide and arm's length negotiations conducted in good faith between Class Counsel, Bristol and ABI.

5. The Court held a hearing on October 22, 2003, to consider the fairness, reasonableness and adequacy of the proposed settlement, has been advised of any objections to the settlement and has given fair consideration to any such objections. No objections were received by class counsel or the Court.

6. That the Settlement, as provided for by the Settlement Agreements, is hereby approved and found to be, in all respects, fair, reasonable, adequate and in the best interests of the Class as a whole and in satisfaction of Rule 23 of the Federal Rules of Civil Procedure and due process requirements.

7. As set forth in more detail in the Settlement Agreements, Defendants collectively have agreed to pay a total of $15,185,000 to settle this Action.

8. The Court approves the Allocation Distribution and Plan as proposed by Class Counsel and summarized in the Notice of Proposed Settlement, and directs Complete Claims Solutions, Inc., as the claims administrator, to distribute the net Settlement Funds and pay all necessary costs in the manner ...


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