Free Order - District Court of Arizona - Arizona

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Case 2:04-cv-00424-ROS Document 319 Filed 11/06/2007 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Barbara Allen, Richard Dippold, Melvin Jones, Donald McCarty, Richard Scates and Walter G. West, individually and on behalf of all others similarly situated, Plaintiffs, vs. Honeywell Retirement Earnings Plan, Honeywell Secured Benefit Plan, Plan Administrator of Honeywell Retirement Earnings Plan, and Plan Administrator of Honeywell Secured Benefit Plan, Defendants.

No. CV04-0424 PHX ROS PROPOSED ORDER PRELIMINARILY APPROVING PARTIAL SETTLEMENT AND SETTLEMENT CLASS

WHEREAS, the Court has read and considered the Class Action Partial Settlement Agreement (the "Agreement"), and the exhibits thereto, the Joint Motion and Memorandum in Support of Preliminary Approval of Partial Settlement and the exhibits thereto, and all other pleadings herein, and has read and considered all other

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papers filed and proceedings had herein, and is otherwise fully informed in the premises, and with good cause appearing therefore; IT IS HEREBY ORDERED: 1. This Order Preliminarily Approving Partial Settlement and Settlement

Class (the "Preliminary Approval Order") incorporates by reference the definitions in the Agreement, and unless otherwise stated, all terms used in the Order shall have the same meanings set forth in the Agreement. 2. The Court has jurisdiction over the subject matter of this Litigation and

over all parties to this Litigation, including all members of the proposed Settlement Class and Defendants. 3. This Court preliminarily approves the Partial Settlement set forth in the

Agreement between Named Plaintiffs, the Settlement Class and Defendants (hereinafter collectively referred to as "Settling Parties"). The Court preliminarily finds the Partial Settlement to be fair, reasonable, and adequate to the Settlement Class, and adequate to warrant notice of a full hearing for the final determination by the Court in the Final Fairness Hearing. 4. For the purposes of this Partial Settlement and Agreement, the

Settlement Class as defined in the Agreement and the Joint Motion and Order to Amend Class Certification is hereby conditionally certified pursuant to Fed. R. Civ. P. 23(a)(1)-(4) and 23(b)(1) and (b)(2), with Named Plaintiffs as the named class representatives and with Class Counsel as counsel for Named Plaintiffs and the Settlement Class for the reasons stated in the Joint Motion and Order to Amend Class Certification. The class certified by this Court in its September 6, 2006 Order is hereby conditionally vacated. 5. The Court approves, as to form and content, the Class Notice attached to

the Agreement as Exhibit 2.

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6.

The date and time of the Final Fairness Hearing shall be added to the

Class Notice before it is mailed and published, respectively, in accordance with paragraph 9(a), (b) and (c) below 7. The Court approves, as to form and content, the Claim Form attached to

the Agreement as Exhibit 1. 8. The Court finds that the mailing, publication, and distribution of the

Class Notice and Claim Form substantially in the manner and form set forth in paragraphs 9(a), (b), and (c) below, constitutes the best notice practicable under the circumstances, including individual notice to all Settlement Class members who can be identified through reasonable effort, and constitutes valid, due, and sufficient notice to all persons entitled thereto, complying fully with the requirements of Fed. R. Civ. P. 23 and due process. 9. The Class Notice and Claim Form procedure is set forth below: (a) Within ten (10) days after entry of the Preliminary Approval

Order, Defendants' Counsel will furnish to Class Counsel a list of the names and last known addresses of the Participants and SBA Participants together with a list of the names and last known addresses of any Beneficiaries who are in pay status. (b) Within fifteen (15) business days after entry of the Preliminary

Approval Order, Class Counsel will use its best efforts to provide Settlement Class members with the Class Notice, which will include details of the proposed Partial Settlement, the date and time for the Final Fairness Hearing, and their right to object to this Agreement. The Class Notice distribution shall also include the Claim Form and will be sent by first class mail to the last known address of each Settlement Class member as it appears in Defendants' records. (c) Within fifteen (15) business days after entry of the Preliminary Approval Order, Class Counsel will use its best efforts to have the
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Class Notice and Claim Form published in the Arizona Republic, the Arizona Daily Star, the Daily Breeze, the Los Angeles Times, and USA Today. Additionally, Class Counsel will post the Class Notice and the Claim Form and provide other notices and/or information to Settlement Class members on the website www.garrettaction.com. At or prior to the Final Fairness Hearing, Class Counsel shall file with

the Court and serve upon Defendants' Counsel proof by declaration or affidavit of the mailing and publication described in paragraphs 9(b) and (c) above. 11. To receive payment of Partial Settlement Benefits, a Participant or

Beneficiary or Eligible Estate Representative must return the Claim Form to Class Counsel within sixty (60) days of the mailing of the Class Notice. Class Counsel shall forward the Claim Forms in scanned electronic format to Defendants within fourteen (14) days of receipt by Class Counsel of same. For good cause, Class Counsel may, in its discretion, accept and forward to Defendants those Claim Forms returned after the sixty (60) day period, which shall also be deemed timely and eligible for payment of Partial Settlement Benefits. In no event shall a Claim Form received after the Partial Settlement becomes Final be deemed timely. There shall only be one Claim Form submitted on behalf of or with respect to a Participant. If a Participant is still alive during the period for submitting Claim Forms, the Claim Form shall be submitted by the Participant. If the Participant dies before submitting a Claim Form, the Claim Form shall be submitted by (i) the surviving Beneficiary, if any, with respect to that Participant, (ii) if there is no surviving Beneficiary and the Participant died after June 30, 2002, then the executor or administrator of the estate, or the qualified personal representative, of the Participant, or (iii) if the Participant died with a surviving Beneficiary and the surviving Beneficiary dies after June 30, 2002 and before submitting a Claim Form, the Claim Form shall be submitted by the executor or administrator of the estate, or the qualified personal representative, of the Beneficiary. Class Counsel shall be responsible for determining, and shall have the
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discretionary authority to determine, whether the executor or administrator of the estate, or the qualified personal representative of a Participant or Beneficiary, is an Eligible Estate Representative. Defendants shall cooperate with Class Counsel in providing pertinent information currently in their possession relevant to this issue. 12. Settlement Class members who wish to comment or object to the

Agreement must do so in accordance with the instructions contained in the Class Notice. 13. A Fairness Hearing shall be held on February 7, 2008, at 9:00 a.m.,

before the Honorable Roslyn O. Silver, United States District Court Judge, at the United States District Court for the District of Arizona, Sandra Day O'Connor US Courthouse, Courtroom 604, 401 West Washington Street, SPC 59, Phoenix, AZ 85003-2158, for the purpose of determining: (a) whether the proposed Partial Settlement as set forth in the Agreement is fair, reasonable and adequate, is in the best interests of the Settlement Class, and should be approved by the Court; (b) whether an Order of Partial Judgment should be entered, dismissing with prejudice the claims of the Named Plaintiffs and the Settlement Class against Defendants (excluding the Three Remaining Claims and claims for Subsequent Relief including attorneys' fees and costs with respect to the Three Remaining Claims); (c) the request of Class Counsel for an award of attorneys' fees and costs pursuant to the Initial Fee Application; (d) the request for Special Incentive Awards for the Named Plaintiffs; (e) whether the total value of relief for which Released Parties may be held liable to the Settlement Class members on the Three Remaining Claims will be limited to the Cap Amount; (f) to rule upon such other matters as the Agreement contemplates and as the Court may deem just and proper.
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14.

Any Settlement Class member who wishes to object to the fairness,

reasonableness, or adequacy of this Agreement, or the request by Class Counsel for an award of fees and costs, must file with the Clerk of the District Court and serve all counsel (to the individuals and addresses specified below), via hand delivery or first class mail, no later than fourteen (14) days before the Final Fairness Hearing, a statement of the objection, as well as the specific reason(s), if any, for each objection, including any legal support that the Settlement Class member wishes to bring to the Court's attention and any evidence the Settlement Class member wishes to introduce in support of the objection. Any Settlement Class member who files and serves a written objection, as described herein, may appear at the Final Fairness Hearing and request to be heard with respect to the objection timely filed in accordance with this Paragraph.
(a)

Service of objections should be made to the Court, to Class

Counsel, Susan Martin, of Martin & Bonnett, P.L.L.C., 3300 North Central Avenue, Suite 1720, Phoenix, AZ 85012-2517, and to

Defendants' counsel, Howard Shapiro, Proskauer Rose, LLP, 909 Poydras Street, Suite 1100, New Orleans, LA 70112.
(b)

If a Settlement Class member hires an attorney to represent him

or her (at his or her own cost and expense) in filing a written objection or appearing at the Final Fairness Hearing, the attorney must file a notice of appearance with the Clerk of the Court no later than fourteen (14) days before the Final Fairness Hearing or as the Court may otherwise direct, and serve a copy of such notice of appearance on all counsel for the Parties.
(c)

The Parties shall file any written replies to objections submitted

in accordance with this Paragraph no later than seven (7) calendar days before the Final Fairness Hearing.

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15.

Unless the Court finds good cause for an exception, any Settlement

Class member (or his or her attorney) who fails to comply with the provisions of Paragraph 14 shall be deemed to have waived any rights the Settlement Class member may have to appear separately and/or to object, and will be bound by all the terms of the Agreement and by all proceedings, orders, and judgments in the Litigation. 16. All other papers in support of the Partial Settlement shall be filed at

least fourteen (14) days prior to the Final Fairness Hearing. 17. The Court may adjourn the Final Fairness Hearing from time to time

and without further notice to the Settlement Class. The Court reserves the right to approve the Partial Settlement at or after the Final Fairness Hearing with such modifications as may be consented to by the Settling Parties and without further notice to the Settlement Class. The Court further reserves the right to enter a Partial Judgment, dismissing the Released Claims with prejudice as to the Settling Defendants and against the Named Plaintiffs and the Settlement Class at or after the Final Fairness Hearing and without further notice to the Settlement Class. 18. Upon entry of the Partial Judgment, the Named Plaintiffs, and each of

the Settlement Class members, on behalf of themselves, their successors, assigns, and any other person claiming (now and in the future) through or on behalf of them, and regardless of whether any such Named Plaintiff or Settlement Class member ever seeks or obtains by any means any distribution from the Settlement, shall be deemed to have, and by operation of the Partial Judgment shall have, fully, finally and forever released, relinquished and discharged all Released Claims against all Released Parties and shall have covenanted not to sue all such Released Parties with respect to all such Released Claims, and shall be permanently barred and enjoined from instituting, commencing, or prosecuting any such Released Claim against any Released Parties. In addition the Settlement Class agrees that the total value of relief for which the Released Parties may be held liable to the Settlement Class members on the Three

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Remaining Claims, including any Subsequent Fee Award, is limited to the Cap Amount as provided by the Agreement. 19. Upon entry of the Partial Judgment, the Court will dismiss this

Litigation against Defendants in its entirety with prejudice and without costs, except for the Three Remaining Claims and claims for Subsequent Relief including attorneys' fees and costs with respect to the Three Remaining Claims 20. The Retirement Plan will pay as an administrative expense all of the

reasonable costs and expenses of postage, printing, duplicating, mailing, and newspaper publication of the Class Notice. All other expenses incident to the

administration of providing the Class Notice and Claim Form and receipt of the Claim Form shall be borne by Class Counsel and the Settlement Class. The cost of

processing Partial Settlement Payments under this Agreement shall be borne by the Retirement Plan. If the Partial Settlement or this Agreement is terminated for any reason, the Parties shall have no obligation to reimburse any other Party for any of the costs incurred under Agreement. 21. The Court retains jurisdiction over all proceedings arising out of or

related to the Partial Settlement and the Agreement. 22. If for any reason the Agreement does not become effective in

accordance with the terms of the Agreement, this Preliminary Approval Order shall be rendered null and void and shall be vacated nunc pro tunc and the parties shall be restored to the status quo ante as of July 9, 2007. 23. Without further order of the Court, the Settling Parties may agree to

reasonable extensions of time to carry out any of the provisions of this Preliminary Approval Order or the Agreement. 24. Pending final determination as to whether the Partial Settlement, as set

forth in the Agreement, should be approved, no Settlement Class member shall commence, prosecute, pursue, or litigate any Released Claims against any Defendant,

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whether directly, representatively, or in any other capacity, and regardless of whether or not any such Settlement Class member has appeared in the Litigation. 25. The Court approves the Proposed Scheduling Order submitted by the

Parties in accordance with the provisions in the Agreement.

Dated this 5th day of November, 2007.

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