Free Response - District Court of Colorado - Colorado

Case 1:04-cv-00665-RPM

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 04-cv-0665 RPM

DAVID HELLER, Individually and on behalf of all others similarly situated,
Plaintiff,
v.

LORI R. SWEENEY,
and GARY T. SCHERPING,
Defendants.

QUOV ADX, INC.,

DEFENDANT QUOV ADX, INC.'S RESPONSE TO THE COURT'S

SEPTEMBER 6, 2006, ORDER FOR CLARIFICATION OF MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT

Defendant Quovadx, Inc. ("Quovadx" or "the Company") respectfully submits this
Response to the Court's September 6,2006, Order for Clarification of

Motion for Preliminary

Approval of Settlement ("Clarification Order"), as well as to Messrs. Jeffrey Lawrence's and
Lawrence Rolnick's responses to the Clarification Order. i

i Mr. Rolnick opposes the fiing of Quovadx' s response to the Clarification Order one day out
of time and accuses Quovadx of misrepresenting that its request for a one-day extension was "unopposed." Pursuant to the Local Civil Rules, Quovadx's counsel conferred bye-mail with Mr. Lawrence-the only Class Counsel appointed to represent any party in this case-and Mr. Lawrence consented to the one-day extension. As a matter of professional courtesy, Quovadx's counsel informed SSF Class Counsel Paul Horan (Plaintiffs' counsel in related case 04-cvi 006) of Quovadx' s request for a one-day extension of time to fie its response and, as the Court has now seen, Messrs. Rolnick and Horan vehemently oppose Quovadx's requested extension. (See Letter from L. Rolnick to the Court, dated Oct. 9, 2006.)

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I. INTRODUCTION
Quovadx, Lead Plaintiff

David Heller ("Lead Plaintiff'), and Class Counsel Jeffrey

Lawrence have agreed to a proposed $ 1 0 million class settlement in this lawsuit that provides for

the compromise of claims under Section 1 O(b) of the Securities Exchange Act of 1934 ("Section
1 O(b )") that belong to two groups of investors: (1) the class of open-market purchasers of

Quovadx common stock that the Court certified for trial purposes in this action ("the Open
Market Class"); and (2) former shareholders of

Rogue Wave Software, Inc. ("Rogue Wave")
Quovadx common stock through the December 19, 2003, merger

who obtained their shares of

between Quovadx and Rogue Wave. The Rogue Wave shareholders are also members of the
class certified for trial purposes in Special Situations Funds v. Quovadx, Civil Action No. 04-cv-

1006 ("SSF case" or "SSF matter") ("the Rogue Wave Class"), which class is asserting claims
only pursuant to Section 1 1 of

the Securities Act of 1933 ("Section 1 I"). Thus, the Settlement

Class proposed by Mr. Lawrence, Lead Plaintiff, and Quovadx would provide compensation for
and release of

the Rogue Wave Class Members' Section 10(b) claims-claims that are not

asserted in the SSF case. Moreover, the proposed settlement would afford Rogue Wave Class
Members an opportunity immediately (and without litigation) to recover some of

their losses, if

any, on sales of

Quovadx shares that occurred on or after March 16, 2004. At the same time, the

proposed settlement would fully preserve Rogue Wave Class Members' claims asserted under
Section 1 1 in the SSF action.

Mr. Lawrence, Class Counsel in this action and the only counsel who has been appointed
to represent the interests of the Section 1 O(b) claimants, has endorsed this $ 1 0 million settlement.
Specifically, Mr. Lawrence argues that the proposed settlement is in the best interests of

the

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Rogue Wave Class Members because, if

they choose to participate in this settlement2, they will

recover at least a fraction of

their losses now, and yet fully retain the opportunity to recover any

remaining losses through litigation or settlement of the SSF matter. Although Mr. Rolnick,
counsel to the Rogue Wave Class, suggests that the Rogue Wave shareholders will "somehow"
be treated unfairly in this Section 1 O(b) settlement, his argument ignores that the actual plan of

distribution allows Rogue Wave Class Members to receive settlement proceeds in equal
per-share amounts up to $1.45 per share retained at the close of

trading on March 15, 2004.
Class Action ii 9.)

(Notice of

Pendency & Proposed Settlement of

Amazingly, Mr. Rolnick has opposed a class settlement that is payable, in part and on
equal terms, to his clients-the Rogue Wave Class Members-for the Section 10(b) claims that

Mr. Rolnick himself has never asserted on behalf of the Rogue Wave Class. (See generally
Compl. & First Am. Compl.) Such a position wholly disregards his fiduciary duty to the Rogue
Wave Class.

Contrary to Mr. Rolnick's arguments, the proposed settlement essentially would provide

"found" money to the Rogue Wave Class Members who elect to participate in the settlement, but
Mr. Rolnick demands that the Court reject this certain recovery for the Rogue Wave Class

2 In opposing the proposed settlement, Mr. Rolnick omits to mention that each of the Rogue

Wave Class Members, including the Special Situations Funds, will have the rights to (i) exclude himself or herself from the Settlement Class, (ii) appear at the fairness hearing, and (iii) make a
formal objection to the fairness of

the settlement. (See, e.g., (Proposed) Order Prelim.
Pendency & Proposed

Approving Settlement & Providing for Notice iiii 10- 12; Notice of

Settlement of Class Action at 8-10.) More conspicuously, Mr. Rolnick ignores that the actual plan of distribution treats Rogue Wave Class Members exactly the same as Open Market Class Members, such that each Settlement Class Member will receive settlement proceeds in equal pershare amounts up to $1.45 per share retained at the close of of Pendency & Proposed Settlement of

trading on March 15, 2004. (Notice

Class Action ii 9.)

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Members in exchange for the "chance" that those class members might collect the same dollars,
if at all, following extended litigation in the SSF case. If the proposed Section 1 O(b) settlement

is rejected, and ifMr. Rolnick fares poorly in the SSFtrial, then the Rogue Wave Class Members
may enjoy no recovery. If, on the other hand, the Section 1 O(b) settlement is approved, and Mr.

Rolnick prevails on the Section 1 1 claims, the only effect of the settlement would be to prevent,

via a dollar-for-dollar offset, participating Rogue Wave Class Members from enjoying a double
recovery.
In short, Mr. Rolnick has demonstrated an irreconcilable conflict of interest-a matter

that goes to his adequacy as class counsei3 -between SSF Class Counsel and the absent members
of

the Rogue Wave Class.4 Whereas near-term Section 10(b) settlement payments to the Rogue

Wave Class Members are clearly in their best interest, Mr. Rolnick recognizes that such payments may undercut his interest in a larger attorney's fee award, because the settlement offset
against Section 11 damages would not reduce the Rogue Wave Class's recovery, but would

reduce the size of the class recovery on which he will base his application for an award of

3 See, e.g., Albertson's, Inc. v. Amalgamated Sugar Co., 503 F.2d 459,463 (10th Cir. 1974)

(Because of the res judicata implications of class judgments, the "requirement of adequate representation must be stringently applied"); Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1375-76 (1 lth Cir. 1984) ("(A)n individual is an improper representative where there is a possibility that he will be more interested in maximizing the 'return' to his attorney than in aggressively presenting the proposed class action."); Sullvan v. Chase Investment Servs. of Boston, Inc., 79 F.RD. 246, 258 (N.D. Cal. 1978) ("The responsibility of class counsel to absent class members whose control over their attorneys is limited does not permit even the appearance of divided loyalties of counsel.").
the representation of that client may be materially limited by the lawyer" responsibilities to another client or to a third person, or by the lawyer's own interests, unless. . . .") (emphasis added).
4 See, e.g., Colo. R Profl Conduct 1.7(b) ("A lawyer shall not represent a client if

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attorney's fees and expenses.

II. RELEVANT BACKGROUND
A. The Mediation and Settement Negotiations
While Mr. Rolnick has acted improperly, if

not unethically, in disclosing to the fact-finder

numerous details regarding settlement negotiations, at a minimum his allegations of "collusion" in the
mediation directed by retired Judge Layn R. Phillips is outrageous and must be addressed.

On December 13 and 14,2005, the parties in this lawsuit and the SSFmatter jointly and
voluntarily submitted to mediation before former United States District Court Judge Layn R. Phillips.
On the morning of the second day of

the mediation, Mr. Rolnick and his client suddenly terminated the

mediation in the SSF matter without engaging Quovadx or Judge Phillips in any substantive discussion.
In a letter to Judge Phillips on December 15, 2005, Mr. Rolnick explained his actions as follows:

We hereby terminate the retainer agreement dated October 21,2005. As you know, we withdrew from mediation on the morning of December 14, 2005. We will not be responsible for any further work undertaken by Mr. Phillips.
With respect to your request for an additional $800 (representing the balance of mediation fees), we decline, on behalf SSF's share of of the Section 11 Class, to
pay such amount. As you know, the mediation was centered almost entirely on

the company's negotiations with its insurer. As we tried repeatedly to explain, we are indifferent to whether the Company can recover against its insurance policies as it has no bearing on our claim or our recovery. We spent two days and traveled 6,000 miles to wait in a conference room for an entire day. We were then presented with an offer that was less than the actual damages sustained individually by the lead plaintiff. We have no desire to continue working with Mr. Phillips or the Company.
(See Letter from M. Rolnick to Judge L. Phillips, dated Dec. 15,2005, attched as Ex. 1.)5

5 Even if Mr. Rolnick's December 15 version of events were true, it is hard to imagine how

Quovadx's ability to recover funds from its insurance carriers could be considered by SSF Class Counsel and the lead plaintiffs-who remain substantial shareholders of Quovadx-as irrelevant to the Rogue Wave Class's "claim" or "recovery," especially because it is those very insurance funds that would be used to satisfy, in part, Quovadx's payment obligations in both actions and to preserve Quovadx's cash reserves and other assets for forward-looking business operations.

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After Mr. Rolnick and his client departed the mediation, Judge Phillips continued to

mediate the Heller action. With the capable assistance of Judge Phillips, Lead Plaintiff, Mr.
Lawrence, and Quovadx were able to negotiate a settlement of all outstanding Section 1 O(b)

claims for a total amount of $ 1 0 million. Despite Mr. Rolnick's unsupported allegations, there

is absolutely no evidence before the Court that Lead Plaintiff, Mr. Lawrence, Quovadx, and

Judge Phillips colluded to reach an improper settlement or to "secretly" deprive the Rogue
Wave Class Members of any claims or rights.6
B. The Terms of the Proposed Settement

The Settlement Class, as defined in the parties' Stipulation of Settlement, means "all

Persons who purchased or acquired Quovadx common stock between October 22, 2003 and

March 15, 2004, inclusive." (Stip. ii 1.21.) The Settlement Class is defined more broadly than

the litigation Class certified by the Court on April 12, 2005. (Compare id ii 1.5 with id
ii 1.21.) The parties' intended purpose of expanding the class definition for settlement purposes
only was and remains to facilitate the compromise of live, but unasserted and as yet uncertified,
Section 1 O(b) claims that belong to members of the Rogue Wave Class.7 (See Lead PI.' s

Unopposed Mot. for Prelim Approval of Settlement at 6-7.) In fact, the Stipulation of
Settlement expressly excludes from the claims that will be released through the proposed
6 It is irrefutable that the proposed class settlement provides compensation to the Rogue Wave

Class Members for claims that no party has asserted on their behalf in either this or the SSF case.

7 Quovadx is interested in compensating its damaged shareholders now, both in this action and in

the SSF action, in exchange for peace and the release of all potential or actual claims, including
the unasserted Section 1 O(b) claims that could form the basis of a follow-on action. Even if the

likelihood of a follow-on action is remote, it is Quovadx's belief that the compromise of these ripe but unasserted claims is desirable, and Mr. Rolnick cannot achieve a contrary result here simply because the alternative outcome might have the effect of increasing his attorney's fee in
the SSF action.

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settlement "any claims arising under §§ 11 and 15 of

the Securities Act of 1933, including the

claims that are the subject of Henderson v. Quovadx, Inc., et ai., Civil Action No. 04-cv-1006RPM (D. Colo.)." (Stip. ii 1. 19.)

Moreover, Quovadx has repeatedly maintained that the only consequence of the proposed settlement will have on the Rogue Wave Class Members is that they will be able to
recover a portion of their total per-share losses through the Heller settlement and, if

those class

members elect to do so, Quovadx will be entitled to a dollar-for-dollar offset against those same
class members' damages pursuant to Section 11. (See, e.g., Notice of

Class Action Lawsuit &

Dismissal of Individual Defs. ii I.B( e) ("Quovadx is entitled to an offset against the damages of

those Class members who recover from Quovadx all or a portion of their losses through a
settlement or judgment in the related class action brought under Section 1 O(b) of the Securities

and Exchange Act of 1934, Heller v. Quovadx, Inc. et ai., Case Number C04-CV-0665-RPM

pending in this Court."). Contrary to Mr. Rolnick's argument, an offset against Section 11
damages is required under federal and Colorado law, and an offset based on the recovery under
one statutory claim does not operate to extinguish a co-existent claim for relief based on the

same factual allegations. Restated, the Rogue Wave Class Members' Section 11 claims are
unaffected, other than they may not collect for the same injury twice.

III. RESPONSE TO THE COURT'S QUESTIONS

A. The Definition of the Settement Class, and the Authority of Lead Plaintiff
and Class Counsel to Act on Behalf of Persons Other Than Members of the
Certified Litigation Class

As the Court correctly noted, the proposed Settlement Class includes more individuals

than the litigation Class certified by the Court on April 12, 2005. Specifically, the proposed
Settlement Class includes both the Open Market Class's and the Rogue Wave Class's Section

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1 O(b) claims, if any. Certainly there is nothing improper about including the Rogue Class

Members' Section 1 O(b) claims in the proposed class settlement.
a. Settlement classes routinely exceed the size and scope of certified

litigation classes, and no attorney or named plaintiff represented
the Rogue Wave Class Members' claims under Section 10(b).

It is common for certified settlement classes to exceed the size and scope of certified

litigation classes.8 The following are just some of the many situations in which a certified
settlement class exceeds the size or scope of

the certified litigation class: (i) cases where courts

certify statewide or otherwise limited classes for trial purposes but nationwide or otherwise

broad classes for settlement purposes, because the settlement eliminated the manageability
concerns that prevented certification of a nationwide class for trial purposes9; (ii) cases where

courts certify for trial purposes a limited set of claims, but subsequently certify additional
claims for settlement purposes10; and (iii) cases where the trial court approved the settlement

release of additional claims that had not been asserted or, if asserted, certified for trial

8 See, e.g., In re Initial Pub. Offering Sec. Litig., 226 F.RD. 186, 190 (S.D.N.Y. 2005) the class action at trial is not considered when approving a settlement class, a court may approve a settlement class broader than a litigation class that has already been certified."); In re Microstrategy, Inc. Sec. Litig., 148 F. Supp. 2d 654, (E.D. Va. 2001) ("the court conditionally certified a settlement subclass that is broader in scope than the original, conditionally certified subclass"); In re Ikon Offce Solutions, inc. Sec. Litig., 194 F.RD. 166, 172 (E.D. Pa. 2000) (same).
("(B)ecause manageability of

9 Cf Amchem Products, Inc. v. Windsor, 521 U.S. 591, 619-20 (1997) ("Confronted with a

request for settlement-only class certification, a (trial) court need not inquire whether the case, if tried, would present intractable management problems, see Fed. R Civ. P. 23(b )(3)(D), for the proposal is that there be no trial."); Ramirez v. DeCoster, 142 F. Supp. 2d 104, ILL (D. Me. 2001) (certifying settlement class even after the court had declined to certify litigation class).
10 E.g., In re Pac. Enter. Sec. Litig., 47 F.3d 373, 376 (9th Cir. 1995) (including for settlement

purposes in federal court the state-law derivative claims that previously had been asserted only in a state court action, while federal securities claims had been asserted only in federal court).

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purposes. 1 1 The core question, then, is not whether the proposed settlement would release

claims or includes claimants that were not included in the class that had been certified for trial

purposes, but whether the proposed settlement is fair, reasonable, and adequate. See, e.g., City

P'ship Co. v. Atlantic Acquisition Ltd, 100 F.3d 1041, 1043-44 (1st Cir. 1996). Further, when

"suffcient discovery has been provided and the parties have bargained at arms-Iength"-both
of

which are true here-"there is a presumption in favor of settlement." Id
b. The proposed Settlement Class and Stipulation of Settlement

were negotiated at arms-length with the assistance of an experienced, neutral third party, Judge Layn Phillips.
Mr. Rolnick's notion that the proposed settlement was negotiated at anything but arms-

length and with the "collusive" assistance of a partisan mediator does not warrant a serious

response. IfMr. Rolnick wishes to make such allegations to this Court, he should bring forth his
evidence of collusion, rather than rely on unsupported allegations.

B. The Effect of the Stipulation of Settlement on Members of the Class
Certified for Trial Purposes in Civil Action No. 04-cv-1006
The Court has asked the parties what effect, if any, would the Rogue Wave Class
Members' participation in the proposed Section 1 O(b) settlement have on the Rogue Wave Class

Members' claims for recovery in the SSF matter. In short, Quovadx would be entitled to a onefor-one offset against the Rogue Wave Class Members' Section 11 damages, if any, in the
amount of any monies those class members will have received in Heller for settlement of

their

11 "It is well settled that 'in order to achieve a comprehensive settlement that would prevent

relitigation of settled questions at the core of a class action, a court may permit the release of a claim based on the identical factual predicate as that underlying the claims in the settled class action even though the claim was not presented and might not have been presentable in the class action.'" CityP'shipCo. v.AtlanticAcquisitionLtd, 100F.3d 1041, 1044 Cir. 1996) (1st (quoting TBK Partners, Ltd v. W Union Corp., 675 F.2d 456,460 (2d Cir. 1982)).

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Section 1 O(b) claims. The reason for this damages offset is that Lead Plaintiffs and the Rogue
Wave Class Members are not entitled to a "double recovery" under Sections 11 and 1 O(b) for

losses they incurred on their Quovadx common stock acquired in the exchange offer.

It is well-established that a civil plaintiff is entitled to only one recovery of damages for
the actual

loss or injury he or she has incurred, which is known as the "one satisfaction rule."

Us. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1259-60 n.54, 1261 (10th Cir. 1988)
(district court correctly concluded that the plaintiffs' damages under Section 1 O(b)( 5) and for

breach of fiduciary duty were based on the same transaction and, therefore, duplicative),
overruled on other grounds as recognized by Anixter v. Home-Stake Prod Co., 77 F.3d 1215,

1231 (10th Cir. 1996). In other words, the plaintiff is to be made whole by the damages award,
but he is not entitled to double recovery, nor can the court put him in a better condition than he

would be in had the wrong not been committed. Stringer v. Dilger, 313 F.2d 536, 541 (10th Cir.
1963). The one satisfaction rule focuses on the victim's injury, not at the claims for relief

that

may arise from that injury. Touche Ross, 854 F.2d at 1261. "Where a single injury gives rise to
more than one claim for relief, a plaintiff may recover his damages under any claim, but he may

recover them only once. Id. at 1261-62. The 1934 Act also incorporates the one satisfaction
rule. See 15 U.S.C. § 78bb(a) ("but no person to maintain a suit for damages under the
provisions of this chapter shall recover, through satisfaction of judgment in one or more actions,
a total amount in excess of his actual damages on account of

the act complained of').

Based on the one satisfaction rule, the settlement monies awarded to the Rogue Wave

Class Members for compromise of their Section 1 O(b) claims for damaged shares that they

acquired in the exchange offer must offset their recovery in the SSF case for any losses incurred

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on the same shares. While this may reduce the total dollars the Rogue Wave Class may recover

under the Section 1 1 claim, it does not affect the total damages the class may recover through

settlement and Section 11 litigation. Total class recovery for each damaged share is precisely the
same. The Section 1 O(b) settlement simply guarantees that the Rogue Wave class recovers

something. Mr. Rolnick's opposition, therefore, can only be explained by his desire to minimize

the potential for a reduced attorneys' fee award: because he has played no role in effecting the
Section 1 O(b) settlement, the dollar-for -dollar offset will reduce any judgment he receives

following extended litigation in the SSF case, thereby reducing the basis for his fee recovery.
C. Undisclosed Supplemental Agreement

The Court has asked the parties why the Supplemental Agreement has not been disclosed

to the Court. The Supplemental Agreement contains the parties' agreement that, if Settlement
Class Members who represent a certain number of shares were to opt out of the Settlement Class,

then Defendants would have the option to withdraw from the settlement. In Quovadx's
counsel's experience, this opt-out limit often is not disclosed to avoid any incentive on the part
of unscrupulous attorneys to organize individual class members to "hold out" or opt-out of

the

settlement in the hope of obtaining additional compensation or, as is more often the case, an
award of attorney's fees for the attorney representing the "opt-out class.,,12 Quovadx respectfully

requests that the opt-out threshold remain confidential to the parties and the Court.
12 Unfortunately, there are a number of class-action plaintiffs' attorneys who actually have built

their practices on this idea of holding class action settlements hostage. Cf Deborah R Hensler et ai., CLASS ACTION DILEMMS: PURSUING PUBLIC GoALS FOR PRIVATE GAIN (Rand 2000)

("(A)ttorneys who fear that a class settlement will not serve their clients or themselves well may advise their clients to opt out; they may even attempt to scuttle the settlement altogether by mounting large-scale print or broadcast advertising campaigns urging prospective class members
to opt out.").

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iv. CONCLUSION
For the foregoing reasons, Quovadx respectfully requests that the Court grant Lead

Plaintiff s Unopposed Motion for Preliminary Approval of Settlement and reject Mr. Rolnick's
baseless objection to the proposed Section 1 O(b) settlement.
Dated: October 10, 2006
Respectfully submitted,

sf Michael T. Williams Hugh Q. Gottschalk John M. Vaught Michael T. Williams Wheeler Trigg Kennedy LLP 1801 California Street, Suite 3600 Denver, Colorado 80202
Telephone: (303) 244-1800

Facsimile: (303) 244-1879 E-mail: williams(£wtklaw.com
Attorneys for Defendant Quovadx, Inc.
Of Counsel:

Nina F. Locker Dale Bish Wilson Sonsini Goodrich & Rosati
Professional Corporation

650 Page Mill Road Palo Alto, California 94304
Telephone: (650) 493-9300

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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on October 10, 2006, I electronically fied the foregoing with the Clerk of Court using the CM/CF system which will send notification of such fiing to the following e-mail addresses:
. Frederick J. Baumann

fbaumann(£rothgerber. com, phenke(£rothgerber. com
. Joy Ann Bull

joyb(£lerachlaw.com
. Hugh Gottschalk

gottschalk(£wtklaw. com, hart(£wtklaw. com,gottesfeld(£wtklaw. com
. Dennis Jeremy Herman

dherman(£lerachlaw. com
. John Alonzo Hutchings

j hutchings(£dillanddill. com, chuffman(£dillanddill. com
. Jeffrey W. Lawrence

j effreyl(£lerachlaw. com, carolynb(£lerachlaw. com, e _fie _ sd(£lerachlaw. com
. Nina F. Locker

nlocker(£wsgr. com, Ikoontz(£wsgr. com
. Lawrence M. Rolnick

lrolnick(£lowenstein. com
. Ex Kano S. Sams

exkanos(£lerachlaw. com,kiyokof(£lerachlaw. com
. Kip Brian Shuman

kip(£shumanberens. com, lisa(£shumanberens. com
. Adam Philip Stapen

astapen(£dillanddill. com, chuffman(£dillanddill. com

. John Peter Stigi , III
j stigi(£sheppardmullin. com . John Mark Vaught

vaught(£wtklaw. com, como(£wtklaw. com

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. Craig Richard Wellng

cwelling(£rothgerber. com,kdail y(£rothgerber. com
. Michael T. Wiliams

williams(£wtklaw. com,huffaker(£wtklaw. com, chavez(£wtklaw. com

sf Michael T. Williams Michael T. Williams Wheeler Trigg Kennedy LLP 1801 California Street, Suite 3600 Denver, Colorado 80202
Telephone: (303) 244-1800

Facsimile: (303) 244-1879 E-mail: williams(£wtklaw.com

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