Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01030-WDM-CBS NOBLE ASSET MANAGEMENT LLC, on behalf of itself and all others similarly situated, Plaintiff, v. ALLOS THERAPEUTICS, INC., and MICHAEL E. HART, Defendants.

PLAINTIFFS' RENEWED UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT

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Preliminary Statement To Renewed Motion Plaintiffs submit this Renewed Unopposed Motion for Preliminary Approval of Settlement, which is essentially identical to the Unopposed Motion for Preliminary Approval of Settlement that was filed herein as Docket entry 60 on February 21, 2008. We call the Court's attention in particular to the following revisions to this Motion: First, because of the time elapsed since the original Motion was filed, the Proposed Schedule of Events, shown in Section V, page 19 below, has been updated; Second, we are pleased to report that the charges against Milberg LLP, discussed more fully in revised footnote 3 at pages 16 - 17 below, have been dismissed pursuant to a non-prosecution agreement; Third, the caption has been revised to reflect the reassignment of this case to Judge Walker D. Miller. In addition, we call the Court's attention to the changes that are proposed to be made to the form of the Notice to be mailed to the Class. Attached hereto as Exhibit A is a "Delta View" comparison of the Notice showing the current updated version of the Notice, as compared to the version that was attached as Exhibit A-1 to the Stipulation and Agreement of Settlement filed herein on February 21, 2008 as Docket entry 59. I. INTRODUCTION Plaintiff Noble Asset Management LLC ("NAM") and lead plaintiff applicant Patrick Haddad ("Haddad") respectfully move this Court for an order granting preliminary approval of the proposed settlement of this securities class action (the "Action").1 The proposed settlement

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Pursuant to Local Rule 7.1(A), Plaintiffs' Counsel have conferred with Defendants' Counsel, who consent to the relief the motion seeks.
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provides for a cash payment of $2,000,000 on behalf of the Settlement Class notwithstanding this Court's dismissal of Plaintiffs' complaint. This litigation involves claims against Defendants Allos Therapeutics, Inc. ("Allos") and Michael E. Hart (the "Defendants"), by purchasers of Allos common stock between May 29, 2003 and April 29, 2004, inclusive (the "Class Period"), who were damaged thereby. In the complaint filed in this litigation, Plaintiffs allege that Defendants misled investors regarding RSR13, a drug candidate in development by Allos designed to improve cancer treatments. Plaintiffs allege that, in a scheme to artificially inflate the value of Allos' securities, Defendants issued false and misleading press releases and other statements throughout the Class Period which falsely portrayed the results of the drug's clinical trials and thereby created a perception in the stock market that the U.S. Food and Drug Administration (FDA) would approve the drug in the then near future. The Defendants have strongly denied and continue to deny each and all of the claims and contentions alleged by Plaintiffs in the Action. The Defendants expressly have denied and continue to deny all charges of wrongdoing or liability against them arising out of any of the conduct, statements, acts, or omissions alleged, or that could have been alleged, in the Action. The Defendants also have denied and continue to deny, inter alia, the allegations that Plaintiffs or the Settlement Class have suffered damage, that the price of Allos common stock was artificially inflated by reasons of the alleged misrepresentations, non-disclosures or otherwise, or that Plaintiffs or the Settlement Class were harmed by any conduct alleged in the Action. Nevertheless, the Defendants desire to settle the Action on the terms provided under the Stipulation and Agreement of Settlement dated February 6, 2008 (the "Stipulation").

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By this motion, Plaintiffs seek preliminary approval of the settlement of the Action as against the Defendants and in connection therewith entry of an order providing: 1. 2. 3. preliminary approval of the settlement; certification, for purposes of the settlement only, of a Settlement Class; approval of the form of notice describing the terms of the settlement; Settlement

Class Members' rights with respect thereto; the proposed release of claims against the Released Parties and Plaintiffs and the Settlement Class; the proposed Plan of Allocation of settlement proceeds; the request for an award of attorneys' fees and reimbursement of litigation expenses to Plaintiffs' Counsel; and the procedures for submitting Proofs of Claim; and 4. setting the date for the hearing to consider final approval of the settlement and the

foregoing matters. The proposed $2,000,000 cash settlement is a very good result under the circumstances present here. Plaintiffs are aware of the significant risk that the Tenth Circuit would not reverse this Court's dismissal of the complaint. Furthermore, even if Plaintiffs were successful on appeal and this case returned to active litigation in this Court, Defendants have continued to maintain that they were willing and able to vigorously defend the litigation and had valid defenses to the claims alleged. Thus, for the Plaintiffs, the principal reasons for the settlement are the cash benefit to be provided to the Settlement Class now, and the elimination of the risk that no greater recovery might be obtained in light of the numerous uncertainties that would exist in continuing the litigation. For purposes of this motion for preliminary approval, the issue before the Court is whether the settlement is within the range of what might be approved as fair, reasonable and adequate in order to justify mailing and publishing notice of the settlement and scheduling a final

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hearing. "Where the proposed settlement appears to be the product of serious, informed, noncollusive negotiations . . . and falls within the range of possible approval, preliminary approval should be granted." In re NASDAQ Mkt.-Makers Antitrust Litig., MDL No. 1023, 1997 U.S. Dist. LEXIS 20835, at *22 (S.D.N.Y. Dec. 31, 1997). The Court is not required at this point to make a final determination regarding the reasonableness of the settlement, and no Class Members' substantive rights will be prejudiced by preliminary approval. Plaintiffs' Counsel became fully conversant with the strengths and weaknesses of this case, and thus could fairly evaluate the risks associated with the continued litigation, as well as the fairness of its resolution at this time. Plaintiffs submit that, in light of these strengths and weaknesses and risks, the proposed settlement is a good result for, and is in the best interests of, the Settlement Class. The settlement was the result of arm's-length negotiations conducted by experienced counsel, and warrants preliminary approval for purposes of notifying Settlement Class Members. II. SUMMARY OF THE ACTION On May 19, 2004, NAM filed the above-referenced action (the "Action") in this Court alleging violations of federal securities laws.2 On July 19, 2004, Haddad filed an application to be appointed lead plaintiff pursuant to the Private Securities Litigation Reform Act of 1995 ("PSLRA"). On July 29, 2004, this Court

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Five other class actions alleging violations of federal securities laws ­ Neil Einhorn v. Allos Therapeutics, Inc., et al., Civil Action No.: 04-M-1026 (CBS); Steven Malasky v. Allos Therapeutics, Inc., et al., Civil Action No.: 04-M-1057 (CBS); Neil Neuman v. Allos Therapeutics, Inc., et al., Civil Action No.: 04-M-1058 (CBS); Athanasios Tsakonas v. Allos Therapeutics, Inc., et al., Civil Action No.: 04-M-1108 (CBS); and Leonard Ladenheim v. Allos Therapeutics, Inc., et al., Civil Action No.: 04-M-1244 (CBS) ­ were filed in this Court in May of 2004. In each of these cases the plaintiff filed a notice of voluntary dismissal which resulted in the Court dismissing the case without prejudice.
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held that it would not rule on lead plaintiff applications until after it resolved any motions to dismiss under the PSLRA. On August 25, 2004, NAM filed the First Amended Class Action Complaint for Violations of Federal Securities Laws (the "Complaint") alleging that Defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), and Rule 10b-5 promulgated thereunder, and claiming that it and other Class Members were damaged as a result thereof. On October 12, 2004, Defendants moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and the PSLRA. By Memorandum Opinion and Order of Dismissal dated October 20, 2005, this Court dismissed the Complaint with prejudice and entered judgment in this Action in favor of the Defendants and against NAM. On November 17, 2005, NAM and Haddad filed a notice of appeal to the United States Court of Appeals for the Tenth Circuit, appealing the Court's order and judgment (the "Appeal"). At the direction of the Tenth Circuit, the Parties participated in discussions with a Circuit Mediator. Subsequently, with the assistance of retired United States District Judge Layn R. Phillips acting as a mediator, the parties, through their counsel, conducted discussions and arm's length negotiations with respect to a compromise and settlement of the Action. In furtherance of the Settlement, the Appeal was withdrawn without prejudice in favor of remand to this Court for the sole purpose of considering the Settlement pursuant to Rule 23 of the Federal Rules of Civil Procedure. The Defendants deny any wrongdoing whatsoever and the Stipulation shall in no event be construed or deemed to be evidence of or an admission or concession on the part of any

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Defendant with respect to any claim or of any fault or liability or wrongdoing or damage whatsoever, or any infirmity in the defenses that the Defendants have asserted. Nor shall the Stipulation be construed or deemed to be a concession by any Plaintiff of any infirmity in the claims asserted in the Action. Nonetheless, the parties to the Stipulation have concluded that it is desirable that the Action be fully and finally settled in the manner and upon the terms and conditions set forth in the Stipulation. In so doing, the parties have taken into account, among other things, the uncertainty and risks inherent in any litigation. Plaintiffs assert that their counsel have conducted an investigation relating to the claims and the underlying events and transactions alleged in the Complaint, and that counsel have analyzed the evidence adduced during its investigation and have researched the applicable law with respect to the claims of Plaintiffs and the Class against the Defendants and the potential defenses thereto. Based upon such investigation, Plaintiffs' Counsel have concluded that the terms and conditions of the Stipulation are fair, reasonable and adequate to Plaintiffs and the Class, and in their best interests, and have agreed to settle the claims raised in the Action pursuant to the terms and provisions of the Stipulation, after considering (a) the substantial benefits that Plaintiffs and the members of the Class will receive from settlement of the Action, (b) the attendant risks of litigation, and (c) the desirability of permitting the Settlement to be consummated as provided by the terms of the Stipulation III. THE PROPOSED SETTLEMENT WARRANTS PRELIMINARY APPROVAL A. The Settlement Is Within the Range of Possible Approval

Courts strongly favor settlement as a method for resolving disputes. See Amoco Prod. Co. v. Federal Power Com'n, 465 F.2d 1350, 1354 (10th Cir. 1972). This is especially true in complex actions such as this. Big O Tires, Inc. v. Bigfoot 44, Inc., 167 F. Supp. 2d 1216, 1229

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(D. Colo. 2001). Rule 23 (e) of the Federal Rules of Civil Procedure requires judicial approval of the compromise of claims brought on a class basis. At the final approval hearing, the Court will have before it extensive papers submitted in support of the proposed settlement and will be asked to make a determination as to whether the settlement is fair, reasonable and adequate, under all of the circumstances. See Fed. R. Civ. P. 23(e)(1)(C). At this juncture, however, the parties request only that the Court grant preliminary approval of the settlement. The procedure for review of a proposed class action settlement is well established: District court review of a class action settlement proposal is a two-step process. The first step is a preliminary, pre-notification hearing to determine whether the proposed settlement is "within the range of possible approval." This hearing is not a fairness hearing; its purpose, rather, is to ascertain whether there is any reason to notify the class members of the proposed settlement and to proceed with a fairness hearing. Manual for Complex Litigation § 1.46, at 53-55 (West 1977). "First, the judge reviews the proposal preliminarily to determine whether it is sufficient to warrant public notice and a hearing. If so, the final decision on approval is made after the hearing." Manual for Complex

Litigation (Fourth) §13.14 (2004). If the district court finds a settlement proposal "within the range of possible approval," it then proceeds to the second step in the review process, the fairness hearing. Id. Class members are notified of the proposed settlement and of the fairness hearing at which they and all interested parties have the opportunity to be heard. The parties are requesting the Court to take the first step in this process and "determine whether there is any reason not to notify the class members of the proposed settlement and to proceed with the fairness hearing." Lucas v. Kmart Corp., 234 F.R.D. 688, 693 (D. Colo. 2006).

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Plaintiffs submit that the proposed settlement here satisfies the standard for preliminary approval because it is "`within the range of possible approval.'" Armstrong v. Board of School Directors of City of Milwaukee, 616 F.2d 305, 314 (7th Cir. 1980) (citation omitted). The settlement is very beneficial to the Settlement Class under the circumstances, providing the sum of $2,000,000 (less Court-awarded fees and expenses) to compensate Settlement Class Members for their allowed losses in Allos common stock. Given the complexities of this litigation and the continued risks if Plaintiffs were to proceed with their appeal to the Tenth Circuit, the settlement represents a reasonable resolution of this action and eliminates the significant risk that the Settlement Class might otherwise recover nothing. Moreover, reference to factors considered by courts in granting final approval of class action settlements lend further support to the proposition that this settlement is well within the range of possible approval. See Lucas, 234 F.R.D. at 693 (citing Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir. 2002)) (on preliminary approval motion, considering (i) whether the settlement was fairly and honestly negotiated, (ii) if serious questions of law and fact placed the outcome of the litigation in doubt, (iii) whether the value of an immediate recovery outweighed the mere possibility of a later recovery, and (iv) the judgment of the parties that the settlement is fair and reasonable). First, the terms of the proposed settlement are the product of arm's-length negotiations with the assistance of an experienced and respected Circuit Mediator, retired United States District Judge Layn R. Phillips. Second, while Plaintiffs believe that their appeal to the Tenth Circuit could well have resulted in the reversal of the Court's decision to dismiss the Complaint, they were fully aware of the serious risks of continued litigation, namely: (1) the Tenth Circuit could ultimately uphold this Court's ruling and conclude that the Complaint did not adequately state a

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claim for securities fraud under Section 10(b) of Exchange Act of 1934 and Rule 10b-5; (2) even if Plaintiffs were successful on appeal and this case returned to active litigation in this Court, the record developed on discovery may not permit Plaintiffs to carry their burden of proving that Defendants, with intent to mislead or recklessness, concealed any material fact or made a material misrepresentation; and (3) in any event, Plaintiffs would not be able to prove any damages with reasonable certainty and in no event would be able to prove class-wide damages in excess of an amount substantially above $2,000,000. Third, because of these immediate and continued risks, along with the significant amount of time it would take to achieve a final judgment if Plaintiffs were entirely successful, the value of a $2,000,000 immediate recovery greatly outweighs the mere possibility of a higher recovery years from now. Finally, it is Plaintiffs' Counsel's informed opinion that, given the uncertainty and further substantial expense of pursuing this action on appeal to the Tenth Circuit, and if successful on appeal, through trial, the proposed settlement is fair, reasonable and adequate, and in the best interests of the Settlement Class. B. The Method of Notice is Proper

As part of the preliminary approval process, the Court is also requested to approve the method of providing notice to the Settlement Class. The proposed preliminary approval order submitted herewith provides that Plaintiffs' Counsel will cause individual copies of the Notice of Pendency of Proposed Settlement of Class Action, Motion for Attorneys' Fees and Settlement Fairness Hearing (the "Notice") and the Proof of Claim and Release form ("Proof of Claim") to be mailed to all Settlement Class Members who can be identified with reasonable effort. In addition, a summary notice ("Summary Notice") will be published in the national edition of Investor's Business Daily. This proposed method of giving notice (similar if not identical to the method used in countless other securities class actions) is appropriate because it provides a fair opportunity for

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Settlement Class Members to obtain full disclosure of the conditions of the settlement. See DeJulius v. New England Health Care Employees Pension Fund, 429 F.3d 935, 943-945 (10th Cir. 2005). The Notice will advise Settlement Class Members of the essential terms of the settlement, set forth procedures for requesting exclusion from the Settlement Class or objecting to the settlement, and will provide specifics on the date, time and place of the final settlement approval hearing. Thus, the Notice provides the necessary information for Settlement Class Members to make an informed decision regarding the proposed settlement. The Notice also contains information regarding Plaintiffs' Counsel's fee and expense application and the proposed plan for allocating the settlement proceeds among Settlement Class Members. Plaintiffs' Counsel believe the Notice fairly apprises class members of their rights with respect to the settlement and therefore is the best notice practicable under the circumstances and should be approved by the Court. See DeJulius, 429 F.3d at 943-45. IV. CERTIFICATION OF THE SETTLEMENT CLASS IS PROPER In connection with granting preliminary approval of the settlement, the Court should also certify a Settlement Class in this action, defined as follows: all persons who purchased the common stock of Allos between May 29, 2003 and April 29, 2004, inclusive, and who were damaged thereby. Excluded from the Settlement Class are the Defendants, the officers and directors of Allos at all relevant times, members of their immediate families (parents, spouses, siblings, and children) and their legal representatives, heirs, successors or assigns and any entity in which Defendants have or had a controlling interest. Also excluded from the Settlement Class are those persons and entities who timely and validly request exclusion from the Settlement Class. Courts routinely certify settlement classes in complex securities class actions arising under Rule 23 of the Federal Rules of Civil Procedure. Defendants have stipulated to certification for settlement purposes only.

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Before a settlement class may be certified, the requirements of Rule 23(a) must be satisfied: (i) impracticable, (ii) (iii) there are questions of law or fact common to the class, the claims or defenses of the representative parties are typical of the class is so numerous that joinder of all members is

the claims or defenses of the class, and (iv) interests of the class. Each requirement is clearly met here. A. The Class Is Sufficiently Numerous the representative parties will fairly and adequately protect the

Certification of a class action is appropriate when "the class is so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). Although there is no magic number that makes a class sufficiently numerous such that joinder becomes impracticable, courts generally assume that cases involving securities traded nationally on the open market, such as the NASDAQ National Market System, as here, meet the numerosity requirement. See In re Ribozyme Pharms., Inc. Sec. Litig., 205 F.R.D. 572, 577 (D. Colo. 2001) (citing In re Intelcom Group, Inc., 169 F.R.D. 142, 148 (D. Colo. 1996); Queen Uno Ltd. P'ship. v. Coeur D'Alene Mines Corp., 183 F.R.D. 687, 691 (D. Colo. 1998)); see also Lora C. Siegler, Meeting Numerosity Requirements, 69A Am. Jur. 2d § 1010 (1993) ("joinder impracticable [where] ... the action involves nationally traded securities"). Courts have held that as few as 35 class members is sufficient to meet Rule 23(a)(1)'s numerosity requirement. See Afro Am. Patromens'

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League v. Duck, 503 F.2d 294, 298 (6th Cir. 1974). Moreover, joinder is impractical where, as here, shareholders are "geographically dispersed" throughout the country. See Ribozyme, 205 F.R.D. at 578; Kerns v. Spectralink Corp., No. 02-D-263, 2003 U.S. Dist. LEXIS 11711, at *4 (D. Colo. July 1, 2003). The numerosity requirement is easily satisfied in this securities fraud case. The description of the proposed Settlement Class is sufficiently definite so that it is administratively feasible for Plaintiffs and the Court to determine whether a particular individual is a Class Member. Joseph v. General Motors Corp., 109 F.R.D. 635, 639 (D. Colo. 1986). The proposed Class of investors who purchased Allos common stock during the Class Period contains at least hundreds, and more likely thousands, of persons. See Queen Uno, 183 F.R.D. at 691 (numerosity met where "[the] stock was owned by hundreds, if not thousands, of shareholders" during the Class Period). Allos common stock was actively traded on the NASDAQ national market system, an open and efficient national market. See Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1039 (5th Cir. 1981) (the numerosity requirement is generally assumed to be met in class actions involving nationally traded securities). Under these circumstances, it cannot be disputed that the size of the Class and its geographical dispersion make it sufficiently numerous such that joining all of the claims of Class members in one lawsuit would be impractical. B. Common Questions of Law or Fact Exist

Rule 23(a)(2) provides that a suit may be maintained as a class action if "there are questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2) (emphasis added); see also IntelCom, 169 F.R.D. at 148 ("[F]actual differences in the claims of the individual class members should not result in a denial of class certification where common questions of law exist."). Courts have consistently found the commonality requirement of Rule 23(a) met in securities actions that involve the dissemination of false or misleading information to the market.
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See, e.g., Blackie v. Barrack, 524 F.2d 891, 902 (9th Cir. 1975) ("the overwhelming weight of authority holds that repeated misrepresentations ... satisfy the `common question' requirement."). In this case, there are many questions of both law and fact common to the Class, including, inter alia, the following: (a) herein; (b) Whether statements made by defendants to the investing public during the Class Period misrepresented material facts about the business and operations of Allos; and (c) To what extent the members of the Class have sustained damages and the proper measure of damages. Similar common questions have been held to support class certification. See, e.g., IntelCom, 169 F.R.D. at 148; Ribozyme, 205 F.R.D. at 578-79; Schwartz v. Celestial Seasonings, 178 F.R.D. 545, 551 (D. Colo. 1998). Therefore, the commonality requirement of Rule 23(a)(2) is satisfied. C. The Proposed Settlement Class Representative's Claims are Typical of those of the Settlement Class Whether the federal securities laws were violated by defendants' acts as alleged

The typicality element of Rule 23(a)(3) requires that "claims or defenses of the representative parties [be] typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). Courts routinely find that a class representative's claims are typical where, as here, they arise from the same events, practices or course of conduct giving rise to the claims of the other class members and the claims are based upon the same legal theories. See Ribozyme, 205 F.R.D. at 578; Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 923 (3d Cir. 1992). The class representative's claims, however, need not be identical to those of the class. Queen Uno, 183 F.R.D. at 691; Schwartz, 178 F.R.D. at 551. Factual differences will not render a claim atypical. Id.; see also IntelCom, 169 F.R.D. at 149 (typicality found where the "major issue presented is whether the Defendants have violated the federal securities laws").
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Here, the claims of proposed Settlement Class Representative Haddad are clearly "typical" of the proposed Class. Like all other absent Class members, Plaintiff Haddad purchased Allos common stock during the Class Period at allegedly artificially inflated prices as a result of the same series of allegedly materially misleading statements and omissions issued by Defendants. To obtain redress for their injuries resulting from the purchase of Allos common stock, Plaintiff Haddad, as well as the Class, would be required to prove the same set of facts and circumstances under the same theories of liability. Thus, Plaintiff Haddad's claims are typical of the Class. D. Plaintiff Haddad Will Fairly And Adequately Represent The Interests Of The Class

Fed. R. Civ. P. 23(a)(4) requires that the representative plaintiff must fairly and adequately protect the interests of the Class. The Courts apply a two-part test in determining the adequacy of representation element of Rule 23(a)(4). The two-part test requires (1) that the class representative's interests are common with the interests of the Class, and (2) that the class representative will vigorously pursue the interest of the Class through qualified counsel. Ribozyme, 205 F.R.D. at 578; Schwartz, 178 F.R.D. at 552. These requirements are satisfied here. To satisfy Rule 23(a)(4), the proposed Settlement Class Representative's interests need not be identical to those of the Class but rather need only be common with the Class. Schwartz, 178 F.R.D. at 553. Since Plaintiff Haddad, like other Class Members, purchased Allos shares during the Class Period, was allegedly damaged by Defendants' fraudulent conduct, and would be required to establish Defendants' liability under the same theories necessary to obtain relief for the Class, Plaintiff Haddad's interests here are common with those of the Class.

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With respect to the second aspect of Rule 23(a)(4) -- the adequacy of class representative's counsel -- the proposed Settlement Class Representative are represented by counsel who are among the most experienced and skilled practitioners in litigating securities fraud class action lawsuits and have been appointed class counsel in numerous other class action cases.3

Milberg LLP was formerly known as Milberg Weiss Bershad & Schulman LLP. On May 18, 2006 in the United States District Court for the Central District of California (Los Angeles), Milberg Weiss Bershad & Schulman LLP and two of its partners, David J. Bershad and Steven G. Schulman, and others, were named as defendants in an indictment. On September 20, 2007 a superseding indictment was filed which added Melvyn I. Weiss as a named defendant. The indictments alleged that, in certain cases identified in the indictments, portions of attorneys' fees awarded to the firm were improperly shared with certain plaintiffs. The three partners named in the indictments have left the firm and have pleaded guilty to a charge of conspiracy to obstruct justice. The indictments do not refer to this action, and makes no allegations of any impropriety in the conduct of this action. On June 16, 2008, Milberg LLP entered into a non-prosecution case disposition agreement with the government providing for dismissal of the indictment against Milberg LLP. The government determined that the former senior partners who had engaged in misconduct "took affirmative steps to conceal their illegal activities from other partners, associates, and employees of the Firm." The government determined that dismissal of the indictment and non-prosecution of Milberg LLP were appropriate in light of its belief that "no attorney currently a partner or associate with Milberg LLP is criminally culpable" with respect to conduct charged in the indictment. On July 14, 2008, in United States of America v. Milberg LLP, CR 05-587(D) (C.D. Cal.) the Court heard oral argument on the government's request to dismiss the first and second superseding indictments against Milberg LLP. The point of the hearing was for the Court to ask the government to justify its decision to dismiss the indictment against the Firm without a guilty plea, which the government succeeded in doing to the Court's satisfaction. We draw particular attention to the end of the hearing, where the Court sums up as follows: THE COURT: That's [responses to "inaccurate" press reports] what I'm having this discussion for, because I -- and I cut you off and I want you to finish, because I think it is important from the public's standpoint to understand, I think that point that you're about to make, but correct me if I'm wrong, is that the negotiations changed after you believed -- or after the government concluded that it had guilty pleas from all the responsible partners, and you're now dealing with a -- with a firm that's no longer tainted by those partnership interests or those partners, which changed the complexion of the negotiations and changes the government's position with respect to demanding a guilty plea, regardless of the amount of money, just the disposition of the case. . . . MR. ROBINSON: Your Honor is correct, that it changed the landscape when we were in a position to have guilty pleas from all the principal targets here that had been identified, so we were now dealing with a firm that had, basically, removed from control and influence the bad characters who appeared to have caused the firm, over an extended period of time, to have engaged in this criminal conduct. They were gone.
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For all the reasons stated above, Plaintiff Haddad's interests are aligned with the Class, demonstrating his adequacy to serve as Settlement Class Representative in this action. E. The Requirements of Rule 23(b)(3) Are Also Satisfied

A class action must also satisfy one of the subdivisions of Rule 23(b). Rule 23(b)(3) authorizes certification where common questions of law or fact predominate over any individual questions and a class action is superior to other available means of adjudication. Both Rule 23(b)(3) requirements are satisfied. With respect to the first requirement, common legal and factual questions surely predominate in this action. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625 (1997) ("Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws."). Plaintiffs alleged that the Defendants misled investors

THE COURT: Well I don't think the firm removed them, I think they removed themselves; because, by definition, this litigation committee didn't do anything to remove anybody. The individual conspiring partners made a determination, based upon their good counsel, that it was in their interest to enter a plea. . . . MR. ROBINSON: I think [Milberg's counsel] can probably better speak to that in terms of the internal mechanics of the firm, in terms of resignation versus forcing someone out. But, in any event, they were gone, your Honor, that's the most important point. . . . They were gone. They were no longer controlling the firm, and we were left with an organization that was not being dominated by culpable targets. THE COURT: Which has many, many fine lawyers and many, many fine men and women who work in a nonlawyer capacity in the firm. And I commend the government for its -- for its approach to allowing those good people who didn't have any involvement in the conspiracy to continue to earn a living, because they shouldn't -- it's -- it's harsh enough that they're going to have to bear the results of this conduct by paying $75 million penalty . . . . I commend the government in its use of discretion in that regard.(Italics added.) The Court then signed the Order Dismissing First and Second Superseding Indictments Without Prejudice as to Defendant Milberg LLP. As part of the non-prosecution case disposition agreement, the firm is continuing its affirmative, voluntary steps to ensure that no portion of any future fee is shared with any plaintiff. These steps include a mandatory review and approval process enforced in all cases by an independent monitor, Bart Schwartz, a highly respected former Chief of the Criminal Division of the U.S. Attorney's Office of the Southern District of New York.
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regarding RSR13 by falsely portraying the results of the drug's clinical trials, causing the market price for Allos common stock to be artificially inflated for all purchasers during the Class Period. The questions that would have to be answered to find Defendants' liability are common to all Settlement Class Members and predominate over any individual questions that might arise. These questions include the following: Did Defendants make a statement about RSR13 and the company's business prospects that was not true? Was it a material fact? Did the Defendants know, or were they reckless in not knowing, that the statement was not true? Was the price of Allos common stock affected by the statement? Did Plaintiffs rely on the statement, or were they entitled to rely on the market to efficiently reflect public statements in the price of Allos common stock? Were Plaintiffs damaged by the purchase when the stock price dropped in response to corrective disclosures? What is the measure of the damages? With respect to the second requirement of Rule 23(b)(3), a class action is the superior means to resolve this dispute. As explained in Amchem, when "[c]onfronted with a request for settlement-only class certification, a district 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." 521 U.S. at 620. Thus, any manageability problems that may have existed here -- and Plaintiffs knows of none -- are eliminated by the settlement. V. PROPOSED SCHEDULE OF EVENTS In connection with preliminary approval of the settlement, the Court must set dates for mailing of the Notice and publication of the Summary Notice, deadlines for submitting claims, requesting exclusion from the Settlement Class, objecting to the settlement, and submitting claim forms. The Court must also set the date of the final settlement fairness hearing. Should the Court

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grant preliminary approval of the proposed settlement on or before Friday, August 29, 2008, the parties suggest a schedule similar to the following: Notice Mailed to Settlement Class Summary Notice Published Deadline for Exclusion from the Settlement Class Deadline for Objection to the Settlement Settlement Hearing Settlement Hearing by Friday, September 12, 2008 by Monday, September 22, 2008

By Friday, November 14, 2008

By Friday, November 14, 2008 At the Court's Convenience, On or After: Monday, December 1, 2008 By Monday, January 5, 2009

Deadline for Submitting Proof of Claim Forms VI. CONCLUSION

For all of the foregoing reasons, Plaintiffs submit that the proposed settlement is a fair and reasonable compromise of the issues in dispute and warrants this Court's preliminary approval.

DATED: August 13, 2008

s/ Jeffrey A. Berens Robert J. Dyer III Jeffrey A. Berens Darby K. Kennedy DYER & BERENS LLP 682 Grant Street Denver, CO 80203-3507 Telephone: (303) 861-1764 FAX: (303) 395-0393 Email: [email protected] Email: [email protected] Email: [email protected] Jeff S. Westerman MILBERG LLP One California Plaza 300 S. Grand Ave., Suite 3900 Los Angeles, CA 90071 Telephone: (213) 617-1200
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FAX: (213) 617-1975 Email: [email protected] Michael A. Swick LAW OFFICES OF MICHAEL A. SWICK, PLLC One William Street, Suite 900 New York, NY 10004 Telephone: (212) 584-0770 FAX: (212) 584-0799 Email: [email protected] Counsel for Plaintiffs

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Appendix of Decisions Appointing/Affirming Milberg LLP as Counsel in Leadership Position (Post-Indictment in Chronological Order)
Memorandum & Order, In re Tyco Int'l, Ltd. Sec. Litig., No. 02-1335 (D.N.H. Dec, 19, 2007) (approving $3.2 billion settlement in class action in which Milberg LLP is co-lead counsel and noting that "Co-Lead Counsel's continued, dogged effort over the past five years is a major reason for the magnitude of the recovery"). Order & Final Judgment, In re Stillwater Mining Co. Sec. Litig., No. 03-93 (D. Mont. Dec. 17, 2007) (approving class action settlement from the bench in case in which Milberg LLP served as class counsel). Final Order & Judgment, In re PMA Capital Corp. Sec. Litig., No. 03-6121 (E.D. Pa. Dec. 13, 2007) (granting final approval to settlement in securities fraud class action in case in which Milberg LLP is sole class counsel). Judgment, In re Omnivision Techs., Inc., No. 04-2297 (N.D. Cal. Dec. 6, 2007) (approving settlement in case in which Milberg LLP serves as lead counsel for the class and noting that "[t]he primary Milberg Weiss attorneys working on this matter have not been implicated in any wrongdoing"). Order, In re Remec, Inc. Sec. Litig., No. 04-1948 (S.D. Cal. Nov. 21, 2007) (granting class certification and holding that "Milberg Weiss is qualified to represent the interests of the proposed class") Minutes of Status Conference, Park v. Korean Air Lines Co., Ltd., No. 07-5107 (C.D. Cal. Nov. 13, 2007) (appointing Milberg LLP co-interim class counsel in antitrust case). Marsden v. Select Med. Corp., No. 04-4020, 2007 U.S. Dist LEXIS 79450, at *20-21 (E.D. Pa. Oct. 26, 2007) (certifying class in case where Milberg LLP is co-class counsel and noting that none of the Milberg LLP partners litigating the case were named in the Indictment). Order, Spahn v. Edward D. Jones & Co., No. 04-86 (E.D Mo. Oct. 25, 2007) (granting final approval to class action settlement in case in which Milberg LLP is co-class counsel). Order, Cooper v. Pacific Life Ins. Co., No. 03-131 (S.D. Ga. Oct. 3, 2007) (approving settlement in securities fraud class action in which Milberg LLP is sole class counsel). Final Order, In re Columbia Entities Litig., No. 04-11704 (D. Mass. Sept. 18, 2007) (approving Milberg LLP as co-class counsel and granting final approval to class action settlement). Order & Final Judgment, In re CMS Energy Sec. Litig., No. 02-72004 (E.D. Mich. Sept. 6, 2007) (granting final approval of $200 million settlement of securities fraud class action in case in which Milberg LLP is co-class counsel and noting

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that the settlement was achieved with "skill, perseverance, and diligent advocacy" and noting at settlement hearing that Plaintiffs' effort was "truly extraordinary"). In re Flag Telecom Holdings, Ltd. Sec. Litig., 245 F.R.D. 147, (S.D.N.Y. Sept. 4, 2007) (certifying class and holding that "[i]n accord with the overwhelming majority of courts faced with this issue, we decline [to remove Milberg LLP as class counsel]").4 In re Magma Design Automation, Inc. Sec. Litig., No. 05-2394, 2007 U.S. Dist. LEXIS 62641, at *8 (N.D. Cal. Aug. 16, 2007) (certifying 10b class and appointing Milberg LLP sole Class Counsel). Order, In re Beazer Homes USA Inc. Sec. Litig., No. 07-725 (N.D. Ga. Aug. 8, 2007) (appointing Milberg LLP Co-lead Counsel) Order, Santiago v. GMAC Mortgage Group, Inc., No. 02-4048 (E.D. Pa. Aug. 7, 2007) (granting final approval to class action settlement in case in which Milberg LLP is co-class counsel). Order & Final Judgment, In re American Express Fin. Advisors Sec. Litig., No. 04-1773 (S.D.N.Y. Jul. 18, 2007) (appointing Milberg LLP Class Co-Counsel for settlement purposes and approving settlement) Final Judgment, Montoya v. Mamma.com, Inc., No. 05-2313 (S.D.N.Y. July 13, 2007) (approving settlement and distribution of attorneys' fees in case in which Milberg LLP served as co-lead counsel to the class). Order & Final Judgment, In re Freescale Semiconductor, Inc. S'holder Lawsuit, No. D-1-GN-06-003501 (Tex. Dist. Ct., Travis Cty, June 25, 2007) (certifying class and approving settlement in case in which Milberg LLP served as co-lead counsel to the class). Order & Final Judgment, In re Martha Stewart Living Omnimedia, Inc. Sec. Litig., No. 02-6273 (S.D.N.Y. June 8, 2007) (approving settlement in case in which Milberg LLP served as co-lead counsel to the class). Short Form Order, Trugman v. Aeroflex, Inc., No. 4246/2007 (N.Y. Sup. Ct. Nassau Cty. May 7, 2007) (consolidating related cases and appointing Milberg LLP co-lead counsel). Final Order & Judgment, In re PNC Fin. Servs. Group, Inc. Sec. Litig., No. 02271 (W.D. Pa. April 12, 2007) (approving settlement and distribution of attorneys' fees in case in which Milberg LLP served as co-lead counsel for the class). Order, In re Topps Co., Inc. S'holder Litig., No. 07-600715 (N.Y. Sup. Ct., N.Y. Cty. April 17, 2007) (appointing Milberg LLP co-lead counsel). In re Vivendi Universal, S.A. Sec. Litig., 242 F.R.D. 76 (S.D.N.Y. March 23, 2007) (certifying class in case in which Milberg LLP is co-lead counsel). The United States Court of Appeals for the Second Circuit has granted Rule 23(f) review of this decision.
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In re Novastar Fin. Sec. Litig., No. 04-0330, 2007 U.S. Dist. LEXIS 9039, at *21 (W.D. Mo. Feb. 8, 2007) ("[R]emoval of Milberg Weiss as co-lead counsel would not only harm the class, but prematurely punish the firm for unproven allegations. The Court does not believe it is appropriate to consider disqualification of the firm unless and until the claims have been substantiated.") Order, In re 99 Cents Only Stores Sec. Litig., No. 04-4273 (C.D. Cal. Feb. 8, 2007) (approving settlement and awarding attorneys' fees in case in which Milberg LLP serves as co-lead counsel for the class). Transcript of Hearing, In re: Merck & Co. Sec., Derivative, & "ERISA" Litig., No. 05-2367, MDL 1658 (D.N.J. Jan. 25, 2007) ("[T]his Court takes the presumption of innocence seriously. I have read decisions by other judges dealing with the Milberg Weiss situation and some of them I frankly disagree with. In short, having been a prosecutor for my entire career before I became a federal judge, I came to take not only the presumption of innocence very seriously but also those opening words in the charge to almost any criminal jury which is an indictment is merely an accusation. . . . It means nothing beyond that. . . . For this Court to regard the indictment of the Milberg Weiss firm as anything other than that, in my view, would be a total abdication of our criminal justice system and the way in which it's supposed to work."). Order & Final Judgment, Simons v. Dynacq Healthcare, Inc., et al., No. 03-5825 (S.D. Tex. Jan. 10, 2007) (approving settlement and stating that "Lead Plaintiffs' Counsel have conducted the litigation and achieved the Settlement with skill, perseverance and diligent advocacy"). Order & Final Judgment, In re Sears, Roebuck & Co., Sec. Litig., No. 02-7527 (N.D. Ill. Jan. 8, 2007) (In approving settlement of $215 million, Judge Bucklo's order stated that "Plaintiffs' Counsel have conducted the litigation and achieved the Settlement with skill, perseverance and diligent advocacy"). Order & Final Judgment, In re McLeod USA Inc. Sec. Litig., No. 02-0001 (N.D. Iowa Jan. 5, 2007) (approving settlement in case in which Milberg LLP served as co-lead counsel for the class). Decision & Order, In re Nortel Networks Corp. Sec. Litig. (Nortel I), No. 01-1855 (S.D.N.Y. Dec. 26, 2006) (approving settlement in case in which Milberg LLP served as lead counsel for the class). Order, In re Hibernia Foods, PLC Sec. Litig., No. 04-3182 (S.D.N.Y. Dec. 22, 2006) (approving settlement and awarding attorney's fees in case in which Milberg LLP serves as co-lead counsel for the class). Order, In re Lord Abbett Mut. Funds Fee Litig., No. 04-0559 (D.N.J. Dec. 1, 2006) ("[T]he Court finds insufficient reasons at the present time to relieve Milberg Weiss as counsel to Plaintiffs in this matter"). Order & Final Judgment, In re Broadwing Inc. Sec. Litig., No. 02-795 (S.D. Ohio Nov. 30, 2006) (approving $36 million settlement and stating that "Plaintiffs' CoLead Counsel have conducted the litigation and achieved the Settlement with skill, perseverance and diligent advocacy").
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Order, In re Freescale Semiconductor Inc. S`holder Litig., No. D-1-GN-06003501 (Dist. Ct. Travis Cty., Tex. Oct. 31, 2006) (Judge Dietz appointing Milberg LLP co-lead counsel). Consolidation Order, In re Diebold Sec. Litig., No. 05-2873 (N.D. Ohio Oct. 20, 2006) (Judge Economus appointing Milberg LLP co-lead counsel). In re Cabletron Sys., Inc. Sec. Litig., 239 F.R.D. 30 (D.N.H. Oct. 19, 2006) (certifying settlement class and approving settlement in case in which Milberg LLP is co-lead counsel). In re Martek Biosciences Corp. Sec. Litig., No. 05-1224 (D. Md. June 21, 2006) (in response to a letter disclosing the indictment, the Court issued a letter stating that it saw no need to address the indictment. The court subsequently certified the class.). Order & Final Judgment, In re Vistacare, Inc. Sec. Litig., No. 04-1661 (D. Ariz. Sept. 29, 2006) (approving settlement in case in which Milberg LLP served as class counsel). Order & Final Judgment, Pozniak v. Imperial Chem. Indus. PLC, No. 03-2457 (S.D.N.Y. Sept. 19, 2006) (approving settlement and stating that "Plaintiffs' CoLead Counsel have conducted the litigation and achieved the Settlement with skill, perseverance and diligent advocacy"). Order & Final Judgment, In re Tellium, Inc. Secs Litig., No. 02-5878 (D.N.J. Sept. 7, 2006) (approving settlement and stating that "Plaintiffs' Co-Lead Counsel have conducted the litigation and achieved the Settlement with skill, perseverance and diligent advocacy"). In re Arm Fin. Group, Inc., No. 99-539, 2006 U.S. Dist. LEXIS 63528, at *10 (W.D. Ky. Aug. 31, 2006) (approving settlement and stating that "counsel for both sides deserve the Court's praise for the manner in which they have conducted themselves."). Order, Cokely v. N.Y. Convention Ctr. Operating Corp., No. 00-4637 (S.D.N.Y. Aug. 15, 2006) (approving settlement with Milberg LLP sole lead counsel and approving consent decree granting Milberg LLP three-year supervisory role). Amended Case Management Order, In re New York Bextra & Celebrex Prod. Liab. Litig., No. 05-1699 (N.Y. Sup. Ct., N.Y. Cty. August 1, 2006) (confirming Milberg LLP's role on plaintiffs' steering committee). Order & Final Judgment, In re Network Engines, Inc. Secs Litig., No. 03-12529 (D. Mass. July 25, 2006) (approving settlement and stating that "Plaintiffs' Counsel have conducted the litigation and achieved the Settlement with skill, perseverance and diligent advocacy"). Memorandum, In re Williams Sec. Litig., No. 02-72 (N.D. Okla. July 19, 2006) (declining to appoint special master to determine whether Milberg LLP should remain co-lead because the matters alleged in the Indictment have no connection to the case before the court).

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Order & Final Judgment, In re Allegheny Energy, Inc. Sec. Litig., No. 03-1518 (D. Md. July 17, 2006) (Judge Davis's order in connection with the approval of a $15 million settlement, stated: "Plaintiffs' Counsel have conducted the litigation and achieved the Settlement with skill, perseverance and diligent advocacy"). Decision & Order, Sollins v. Alexander, No. 601272/2006, 2006 N.Y. Misc. LEXIS 2889, at *10 n.2 (N.Y. Sup. Ct., N.Y. Cty. July 13, 2006) ("[the indictment] has no effect on this litigation and . . . no bearing on this action or the attorneys who are appointed co-lead counsel. . . . [N]one of the attorneys here for Milberg Weiss have been indicted or have been accused of any wrongdoing...[U]nless and until Milberg Weiss is found guilty . . . the presumption of innocence is binding."). In re PNC Fin. Servs. Group, Inc., Sec. Litig., 440 F. Supp. 2d 421, 431 (W.D. Pa. July 13, 2006) (approving settlement and stating that "[C]o-lead counsel are highly experienced and skilled practitioners who have successfully prosecuted numerous class actions throughout the United States."). In re WRT Energy Sec. Litig., No. 96-3610, 2006 U.S. Dist. LEXIS 47483, at *9 n.2 (S.D.N.Y. July 13, 2006) (acknowledging the indictment and noting that plaintiffs' counsel's letter to the court assured it "that [Milberg LLP] remains ready and able to vigorously prosecute the WRT matter" and that "the indictment does not bear on the `pending' litigation in this case."). Order, Welmon v. Chicago Bridge & Iron Co., No. 06-01283 (S.D.N.Y. June 19, 2006) (Judge Sprizzo reaffirming Milberg LLP as co-lead counsel). Simon v. KPMG LLP, No. 05-3189, 2006 U.S. Dist. LEXIS 35943, at *18, 30-31 (D.N.J June 2, 2006) (Judge Cavanaugh, in approving settlement of $153 million, found that "Plaintiffs [] retained highly competent and qualified attorneys" and that "[t]he Initial Complaint . . . demonstrates that [Milberg LLP] expended considerable time and effort with the underlying factual and legal issues in this case before even filing this lawsuit. . . . Settlement discussions were conducted over a period of some fourteen months with the supervision and guidance of Judges Politan and Weinstein, and are evidence of [Milberg LLP's] appreciation of the merits and complexity of this litigation."). Transcript of Conference, In re Zyprexa Products Liab. Litig., No. 04-1596 (E.D.N.Y. June 1, 2006) (requesting that Melvyn I. Weiss remain co-chair of the Plaintiff's Steering Committee, Judge Weinstein stated "it is important to have some continuation of the expertise that has been acquired: in view of your eminence in this bar, I think that you, above all, are in a position to help reconstitute the PSC."). Order, In re Rhodia S.A. Sec. Litig., No. 05-5389 (MDL No. 1714) (S.D.N.Y. May 31, 2006) (appointing Milberg LLP lead counsel). Order, Congregation Ezra Sholom v. Blockbuster, Inc., No. 05-2213 (N.D. Tex. May 25, 2006) (appointing Milberg LLP lead counsel). Order of Consolidation, Showers v. Kanas, No. 06-4624 (N.Y. Sup. Ct., Nassau Cty. May 22, 2006) (appointing Milberg LLP co-lead counsel).
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CERTIFICATE OF SERVICE
I hereby certify that on August 13, 2008, I electronically filed the foregoing PLAINTIFFS' RENEWED UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT with [PROPOSED] PRELIMINARY ORDER FOR NOTICE AND HEARING IN CONNECTION WITH SETTLEMENT PROCEEDINGS with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following email addresses:
·

Tara L. Acton [email protected] Paul H. Schwartz [email protected],[email protected],[email protected], [email protected],[email protected]

·

and I hereby certify that I served the document with a copy of the Notice of Electronic Filing by depositing the same in the United States mail, first-class postage prepaid on the following nonCM/ECF participants:

s/ Jeffrey A. Berens Jeffrey A. Berens Attorney for Plaintiffs DYER & BERENS LLP 682 Grant Street Denver, CO 80203-3507 Telephone: (303) 861-1764 FAX: (303) 395-0393 Email: [email protected]

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