Free Motion for Appointment - District Court of Colorado - Colorado

Case 1:04-cv-01267-WYD

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Filed 02/24/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01267-WYD

SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. AUGUSTINE M. CRUCIOTTI, Defendant. ______________________________________________________________________________ Order Granting Plaintiff's Unopposed Motion for Distribution of Funds in CRIS Account and Application for Appointment of Distribution Agent ______________________________________________________________________________ Having considered Plaintiff's Unopposed Motion for Distribution of Funds in CRIS Account and Application for Appointment of Distribution Agent (the "Motion"), it is hereby: Ordered that the Motion is granted, and the Commission's settlement distribution plan as outlined in the Motion (the "Distribution Plan"), is approved. Ordered that Gilardi & Co., LLC, is appointed distribution agent ("Distribution Agent") over the Distribution Fund with the following powers and duties: a. The Distribution Fund shall be deposited by the Distribution Agent in an interest-

bearing account at a federally insured U.S. bank. The Distribution Agent shall invest and reinvest the Distribution Fund only in the following investments: (i) direct obligations of the United States, (ii) obligations whose principal and interest are unconditionally guaranteed by the United States, and (iii) money market funds authorized to invest solely in direct obligations of

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the United States. The Distribution Agent shall invest and reinvest the Distribution Fund with a view first toward conserving and preserving the principal, and second toward maximizing investment return. b. The Distribution Agent shall allocate the Distribution Fund, less taxes, registry

fees, fees paid to the Tax Administrator and the Distribution Agent, and other expenses authorized by this Court, to: (i) each settlement class member in In Re Qwest Communications International Inc. Securities Litigation, Civil Action No. 01-CV-1451-REB -CBS (the "Consolidated Class Action"), who (1) submits a valid claim for Class Action settlement funds, as provided in the November 23, 2005 Stipulation of Partial Settlement in the Class Action and the Notice of Pendency of Proposed Class Action Settlement, as amended ("Notice of Pendency"), which is approved for payment in the Consolidated Class Action; and (2) who purchased Qwest common stock, bonds, and/or options from July 27, 1999, through and including July 28, 2002; and (ii) each person who (1) elects to be excluded from the Consolidated Class Action settlement; (2) purchased Qwest common stock, bonds, and/or options from July 27, 1999, through and including July 28, 2002; and (3) submits a valid claim for distribution from the Distribution Fund. c. After allocating the Distribution Fund, the Distribution Agent shall print and mail

checks to those persons entitled to receive a distribution at the same time and, where appropriate, with the distribution of the Class Action Settlement. All checks shall be valid for a period of 180 days from the date of issuance. Each check shall include on the check stub advice that the

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distribution derives, in part or in whole, from the Securities and Exchange Commission settlement proceeds which is being distributed pursuant to this Order. d. Within 14 days after mailing the checks described in paragraph c above, the

Distribution Agent shall provide the Commission with a statement showing: (a) the total fees retained by the Distribution Agent pursuant to court order; (b) the total number of checks issued; (c) an administrative control number for each check; (d) the date each check was issued; and (e) the amount of each check. The Distribution Agent shall send the statement to Mary S. Brady, U.S. Securities and Exchange Commission, Central Regional Office, 1801 California St., Suite 1500, Denver, CO 80202. e. Within 14 days after all checks issued pursuant to paragraph c above have

expired, the Distribution Agent shall provide a second statement to the Commission showing the remaining monies in the Distribution Fund. The Distribution Agent shall send the statement to Mary S. Brady, Central Regional Office, U.S. Securities and Exchange Commission, 1801 California St., Suite 1500, Denver, CO 80202. f. The Distribution Agent shall calculate and pay from the Distribution Fund all

applicable federal, state and local taxes owed by the Distribution Fund, and prepare and file all appropriate tax forms, schedules, and applications. The Court has previously authorized a Tax Administrator for the Distribution Fund and the Distribution Agent shall continue to use the Tax Administrator to assist in this effort. All taxes and Tax Administrator fees shall continue to be approved by the court before payment. g. Other than the payment of fees for the court registry fee assessment, all other

payments from the Distribution Fund, must be approved by the court in advance of payment.

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h.

The Distribution Agent shall promptly transfer to the Commission all unclaimed

or unallocated funds remaining in the Distribution Fund after all court approved payments have been paid. The Commission shall pay those funds to the U.S. Treasury, pursuant to the written directions the Commission shall provide to the Distribution Agent. i. The Distribution Agent shall retain paper or hard copies of the Proof of Claim

forms and supporting documents for not less than one year after the final distribution of the Distribution Fund to the Authorized Claimants and electronic or magnetic media data for not less than two years after the final distribution of the Net Settlement Fund to the Authorized Claimants. The Distribution Agent is authorized to destroy all such documents upon the expiration of the relevant periods. Ordered that, to the extent that the Distribution Agent performs any services at the specific request of the Commission relating to the Distribution Fund that are not necessary for the performance of its services in connection with the Consolidated Class Action settlement, specifically including allocating and distributing the Distribution Fund to persons who opt out of the Class Action Settlement, the Distribution Agent shall be paid its reasonable fees and costs from the Distribution Fund. All such fees must be reported to the Commission and provided the Commission has no objection to the fees, approved by the Court upon motion by the Commission or sua sponte. Ordered that when the Distribution Agent deems necessary, the Distribution Agent may, after consulting with and receiving the written consent of the Commission, and subject to approval by the Court, modify the procedures outlined herein to effectuate the general purposes of this Order.

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Ordered that the Distribution Agent and the Distribution Agent's designees, agents and assistants are excused from any requirement to post a bond, and shall not be liable to any person for their actions hereunder, except on a finding of misfeasance, gross negligence or reckless disregard of duty. Ordered that the Notice to Possible SEC Fair Fund Claimants is approved; Ordered that the Clerk of the Court for the United States District Court for the Southern District of Texas wire transfer the total amount of the Distribution Fund of $252,869,387.50, including all post-judgment interest earned on the account, less taxes, registry fees, fees paid to the Tax Administrator, and other expenses authorized by this Court within ten (10) days of the date from this Order, to the following account: Payee: Tax Payer ID#: Account Number: Name of Bank: SEC v. Qwest Communications Settlement Fund 20-2883185 756-013215 Bank of the West Business Services 1450 Treat Blvd. Walnut Creek, CA 94596 121100782

ABA Routing No.:

Ordered that, after the Distribution Agent completes its duties specified herein, the Commission shall file with the Court a report describing the Distribution Agent's activities and the distribution made under this Order. Dated: _____________________, 2006

______________________________ United States District Judge

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