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

Francis J. Balint, Jr. (007669) Andrew S. Friedman (005425) Bonnett, Fairbourn, Friedman & Balint, PC 2901 North Central Avenue, Ste 1000 Phoenix, AZ 85012 Tel: (602) 274-1100 Liaison Counsel for Plaintiff and the Class Michael C. Spencer Milberg Weiss LLP One Pennsylvania Plaza New York, NY 10119 Tel: (212) 594-5300 Guri Ademi Ademi & O'Reilly, LLP 3620 East Layton Avenue Cudahy, WI 53110 Tel: (414) 482-8000 Lead Counsel for Plaintiff and the Class UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA HARVEY L. POPPEL, individually and on Case No. CV-03-1915-PHX-JWS behalf of all other persons similarly situated, Class Action Plaintiff, vs. eFUNDS CORPORATION; JOHN A. BLANCHARD III; PAUL H. BRISTOW; and THOMAS S. LISTON, Defendants. MOTION FOR DISTRIBUTION OF CLASS SETTLEMENT FUND

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Upon the Declaration of Lara McDermott of Gilardi & Co. LLC ("Gilardi"), the Claims Administrator, attached as Exhibit A, and the accompanying Memorandum of Points and Authorities, and upon all prior proceedings herein, Plaintiffs respectfully move this Court for an Order pursuant to Rule 23(e) of the Federal Rules of Civil Procedure: (i) approving the administrative determinations of Gilardi accepting and rejecting claims submitted herein; (ii) authorizing payment of $34,193 out of the Settlement Fund to Gilardi for the balance of its fees and expenses incurred and to be incurred in connection with services performed and to be performed with respect to the settlement administration and distribution of the Net Settlement Fund; (iii) directing payment of $2,500 out of the Settlement Fund to the Certified Public Accounting firm of Eisner LLP, the tax accountants for the Settlement Fund, for its fees and expenses incurred and to be incurred in connection with services performed and to be performed with respect to preparing tax returns for the Settlement Fund for the year 2007; (iv) directing distribution of the Net Settlement Fund, after deduction of the payments requested herein, to Class Members whose Proofs of Claim have been accepted; (v) authorizing destruction of paper copies of Proof of Claim forms one year after distribution of the Net Settlement Fund, and authorizing destruction of electronic copies of claim records three years after distribution of the Net Settlement Fund; and (vi) for such other and further relief as this Court deems appropriate.

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Dated: March 13, 2008 Respectfully Submitted, BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C.

s/Francis J. Balint, Jr. Francis J. Balint, Jr. 2901 North Central Avenue, Ste 1000 Phoenix, AZ 85012 Liaison Counsel for Plaintiffs Michael C. Spencer Milberg Weiss LLP One Pennsylvania Plaza New York, NY 10119 Guri Ademi ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Lead Counsel for Plaintiff and the Class

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MEMORANDUM OF POINTS AND AUTHORITIES Lead Plaintiff Harvey L. Poppel on behalf of the Class through court-appointed Lead Counsel, Milberg Weiss LLP and Ademi & O'Reilly LLP, respectfully move the Court for an Order: (i) approving the administrative determinations of Claims Administrator, Gilardi & Co. LLC ("Gilardi"), accepting and rejecting claims submitted herein; (ii) authorizing payment of $34,193 out of the Settlement Fund to Gilardi for the balance of its fees and expenses incurred and to be incurred in connection with the settlement administration and distribution of the Net Settlement Fund; (iii) directing payment of $2,500 out of the Settlement Fund to the Certified Public Accounting firm of Eisner LLP, the tax accountants for the Settlement Fund, for the balance of its fees and expenses incurred and to be incurred in connection with services performed and to be performed with respect to preparing tax returns for the Settlement Fund for the year 2007; (iv) directing distribution of the Net Settlement Fund, after deduction of the payments requested herein, to Class Members whose Proofs of Claim have been accepted; (v) authorizing destruction of paper copies of Proof of Claim forms one year after distribution of the Net Settlement Fund, and authorizing destruction of electronic copies of claim records three years after distribution of the Net Settlement Fund; and (vi) for such other and further relief as this Court deems appropriate. Plaintiffs' Co-Lead Counsel submits this Motion pursuant to paragraph 10 of the Stipulation and Agreement of Settlement dated December 29, 2005 (the "Stipulation"). By Order and Final Judgment dated April 13, 2006 (the "Final Order"), this Court approved the Settlement and directed the parties to consummate the Stipulation in

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accordance with its terms and provisions. Paragraph 10 of the Stipulation requires Plaintiffs' Co-Lead Counsel to apply to the Court, on notice to Defendants' Counsel, for an order (the "Class Distribution Order") approving the Claims Administrator's administrative determinations concerning the acceptance and rejection of claims submitted herein and approving any fees and expenses not previously applied for, including the fees and expenses of the Clams Administrator, and, if the Effective Date has occurred, directing payment of the Net Settlement Fund to Authorized Claimants. BACKGROUND On December 29, 2005, Lead Plaintiffs and Defendants eFunds Corporation ("eFunds"), John A. Blanchard, III, Paul H. Bristow, and Thomas S. Liston, entered into the Stipulation. The Stipulation provided for the settlement of this action on behalf of a Class consisting of all persons who purchased the stock of eFunds between July 21, 2000, and October 24, 2002, inclusive. Excluded from the Class are the Defendants, the officers and directors of eFunds, members of their immediate families (parents, spouses, siblings, and children) and their legal representatives, heirs, successors or assigns, and any entity in which any Defendant has or had a controlling interest. A Notice of Pendency of Class Action and Proposed Settlement, Motion for Attorneys' Fees and Settlement Fairness Hearing (the "Notice") was mailed to all Class Members by Defendant eFunds pursuant to the Stipulation and the Preliminary Order for Notice and Hearing in Connection with Settlement Proceedings, dated January 13, 2006, 2006 (the "Preliminary Order").

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Pursuant to the Court's Preliminary Order, Plaintiffs' Co-Lead Counsel retained Gilardi, a firm specializing in the administration of class action settlements located in San Rafael, California, to process the Proof of Claim forms submitted by Class Members, and to effectuate distribution of the Net Settlement Fund to the Class Members who submitted acceptable Proofs of Claim. On April 7, 2006, the Court held a hearing to consider the proposed settlement, following which hearing the Court approved the proposed settlement as fair, reasonable, and adequate, and dismissed this action as against the Defendants. CLAIMS ADMINISTRATION Under the terms of the Stipulation, a $2,550,000 Settlement Fund was established for the settlement of the Settled Claims asserted against the Defendants. Pursuant to the Stipulation and the Notice, all Class Members wishing to participate in the Settlement Fund were required to submit Proofs of Claims by mail, postmarked on or before May 5, 2006. As demonstrated by the accompanying Affidavit of Lara McDermott in Support of Motion for Distribution of Class Settlement Fund (the "McDermott Affidavit"), Gilardi received and reviewed all submitted claims and, to the extent that a claim was deficient in any regard, Gilardi notified the claimant of the deficiency and advised the claimant as to the possible ways to cure the deficiency. Where a claimant failed to cure a defective claim after notice, or where the claim showed that the claimant was not entitled to receive a share of the Net Settlement Fund, Gilardi notified the claimant of the rejection of the claim and provided the claimant with notice of the method for the claimant to request this Court's review of Gilardi's administrative determination rejecting the claim. Copies of

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sample deficiency and rejection letters are attached as exhibits to the McDermott Affidavit. See McDermott Affidavit at ¶¶ 4-6. Pursuant to paragraph 16(e) of the Stipulation, all rejection letters specifically provided that a claimant had the right, within twenty days after the mailing of the rejection, to contest the rejection and request a hearing before the Court. No claimants have outstanding requests for this Court's review of the rejection of their claims. Approximately One Hundred Eleven eligible claims were received after the May 5, 2006 submission deadline. No claim has been rejected because it was received after the initial submission deadline and we believe no delay has resulted from the acceptance of these claims. It is our belief that when the equities are balanced, it would be unfair to prevent an otherwise valid claim from participating in the Net Settlement Fund solely because it was submitted after the cut-off date, but while the claims were still being processed. Accordingly, it is respectfully requested that this Court approve the

administrative determination not to reject claims submitted submission deadline because of lateness. However, there must be a final cut-off date after which no more claims may be accepted in order that there may be a proportional distribution of the Net Settlement Fund. Acceptance of any claim received after preparation of this application would necessarily require a delay in the distribution. Accordingly, it is also respectfully

requested that this Court enter an Order directing that no claim submitted after December 31, 2007, a date during the preparation of this application, be accepted for any reason whatsoever. See In re Orthopedic Bone Screw Prods. Liab. Litig., 246 F.3d 315, 329 (3d

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Cir. 2001) ("There is no question that in the distribution of a large class settlement fund, `a cutoff date is essential and at some point the matter must be terminated.'") (citations omitted). It is respectfully requested that the Court approve the administrative determinations accepting and rejecting claims as set forth herein. FEES AND EXPENSES OF CLAIMS ADMINISTRATOR AND TAX ACCOUNTANT Pursuant to the Stipulation, and as described to members of the Settlement Class in the Notice, Plaintiffs reserved the right to apply for a supplemental award of fees and expenses incurred in connection with the administration and distribution of the Settlement. In addition, in its Final Order, this Court retained exclusive jurisdiction "over the parties and the Class Members for all matters relating to this Action, including the administration, interpretation, effectuation or enforcement of the Stipulation and [the] Order and Final Judgment, and including any application for fees and expenses incurred in connection with administering and distributing the settlement proceeds to the Class Members." Plaintiff's Co-Lead Counsel retained Gilardi after a competitive bidding process in which qualified claims administrators were invited to bid on this job. Gilardi's proposal was the lowest cost bid. In accordance with Gilardi's agreement with Plaintiffs' Co-Lead Counsel to act as the Claims Administrator herein, Gilardi was responsible for processing the claims, and distributing the Net Settlement Fund to accepted claimants. As set forth in the

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McDermott Affidavit, Gilardi's fees and expenses for its work on behalf of the Class total $52,318. To date, Gilardi has received interim payments totaling $18,175. Accordingly, there is a balance due to Gilardi of $34,193 and Lead Plaintiffs respectfully request that the Court direct and authorize the payment of this balance. Plaintiffs also request that the Court direct and authorize payment of $2,500 to the Certified Public Accounting firm of Eisner LLP, the tax accountants for the Settlement Fund, for its services rendered and to be rendered in connection with determining the estimated and annual tax obligations of the Settlement Fund for the year 2007. Eisner LLP has been paid $4,200 with respect to its preparation of the tax returns for the Settlement Fund for years 2005 and 2006. DISTRIBUTION OF NET SETTLEMENT FUND It is also respectfully requested that the Court enter an Order directing and authorizing distribution of the balance of the Settlement Fund after the deduction of the fees and expenses previously awarded and requested herein (the "Net Settlement Fund") to the Class Members whose claims have been accepted as set forth on the list of accepted claims submitted with the McDermott Affidavit in proportion to their Recognized Claims as shown therein. See Ex. C to McDermott Affidavit. In order to allow the full and final distribution of the Net Settlement Fund, it is necessary to bar any further claims against the Net Settlement Fund and to provide that all persons involved in the review, verification, calculation, tabulation, or any other aspect of the processing of the claims submitted herein, or otherwise involved in the administration or taxation of the Settlement Fund or the Net Settlement Fund, be released

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and discharged from any and all claims arising out of such involvement beyond the amount allocated to them. Accordingly, it is respectfully requested that the Court bar any further claims against the Net Settlement Fund and release and discharge from any and all claims beyond the amount allocated to them arising out of the claims administration, all persons involved in the review, verification, calculation, tabulation, or any other aspect of the processing of the claims submitted herein, or otherwise involved in the administration of the Settlement Fund or the Net Settlement Fund. DISPOSITION OF ANY UNCLAIMED/UNCASHED BALANCE It may be expected that not all of the payments to be distributed to accepted Class Members will be cashed promptly. In order to encourage Class Members to promptly cash their distributions and to avoid or reduce future expenses relating to unpaid distributions, we propose that all the distribution drafts bear a notation "CASH PROMPTLY, VOID AND SUBJECT TO RE-DISTRIBUTION IF NOT CASHED BY [DATE]." The Plan of Allocation for the Net Settlement Fund set forth in the Notice and approved by this Court provides that any balance that may remain in the Settlement Fund one year after the initial distribution, whether by reason of returned funds, tax refunds, interest, un-cashed drafts, or otherwise, shall be re-distributed to Class Members who have cashed their payments and who would receive at least $10.00 from such redistribution. The Plan of Allocation further provides that after six months following such re-distribution any funds shall remain in the Net Settlement Fund, then such balance shall

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be contributed to non-sectarian, not-for-profit, 501(c)(3) organization(s) located in Arizona designated by Lead Counsel. The proposed Class Distribution Order confirms the Plan of Allocation's provisions for such re-distribution of any residue of the Net Settlement Fund. THE ORDER FOR DISTRIBUTION OF CLASS SETTLEMENT FUND SHOULD BE APPROVED Plaintiffs submit that the work performed by Gilardi, as explained above, was conducted fairly and in accordance with the terms and provisions of the Stipulation. Accordingly, Plaintiffs have moved for an Order: (i) approving the administrative determinations of Gilardi accepting and rejecting claims submitted herein; (ii) directing payment of $34,193 to Gilardi for the balance of its fees and expenses incurred and to be incurred in connection with the settlement administration and distribution of the Settlement Fund; (iii) directing payment of $2,500 to Eisner LLP for its fees and expenses incurred and to be incurred in connection with services performed and to be performed with respect to the taxation of the Settlement Fund for the year 2007; (iv) directing distribution of the Net Settlement Fund, after deduction of the payments requested herein, to Class Members whose Proofs of Claim have been accepted; and (v) authorizing destruction of paper copies of Proof of Claim forms one year after distribution of the Net Settlement Fund, and authorizing destruction of electronic copies of claim records three years after distribution of the Net Settlement Fund.

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CONCLUSION For the foregoing reasons, Plaintiffs' Motion for Distribution of Class Settlement Fund should be granted. Dated: March 13, 2008 Respectfully Submitted, BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C.

s/Francis J. Balint, Jr. Francis J. Balint, Jr. 2901 North Central Avenue, Ste 1000 Phoenix, AZ 85012 Liaison Counsel for Plaintiffs Michael C. Spencer Milberg Weiss LLP One Pennsylvania Plaza New York, NY 10119 Guri Ademi ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Lead Counsel for Plaintiff and the Class

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EFunds Corporation Service List

Attorneys for Plaintiffs Andrew S. Friedman, Esq. Francis J. Balint, Jr., Esq. Bonnett, Fairbourn, Friedman & Balint, PC 2901 North Central Ave., Ste 1000 Phoenix, Arizona 85012 Tel: (602) 274- 1100 Fax: (602) 274- 1199 Attorneys for Defendants Larry A. Hammond, Esq. Osborn Maledon 2929 N. Central Ave., Ste 2100 Phoenix, Arizona 85012 Tel: (602) 640- 9000 Fax: (602) 640- 9050

Guri Ademi, Esq. Shpetim Ademi, Esq. Robert O'Reilly, Esq. Ademi & O'Reilly, LLP 3620 East Layton Ave. Cudahy, Wisconsin 53110 Tel: (414) 482- 8000

Lawrence Iason, Esq. Stephen Juris, Esq. Morvillo, Abramovitz, Grand, Iason & Silberg, P.C. 565 Fifth Ave. New York, NY 10017 Tel: (212) 856- 9600 Fax: (212) 856- 9494

Don Bivens, Esq. Ed Hendricks, Jr., Esq. Meyer Hendricks & Bivens, P.A. 3003 North Central Ave., Ste 1200 Phoenix, Arizona 85021 Tel: (602) 604- 2200 Fax: (602) 263- 5333

Daniel E. Loeb, Esq. Jonathan P. Scott, Esq. Fried Frank Harris Shriver & Jacobson 1001 Pennsylvania Ave, N.W., Ste 800 Washington, DC 20004 Tel: (202) 639- 7000 Fax: (202) 639- 7003

Lawrence A. Kasten, Esq. Randy Papetti, Esq. Lewis & Roca, LLP 40 North Central Ave. Phoenix, Arizona 85004 Tel: (602) 262- 5311 Fax: (602) 262- 5747

Mark D. Cahn, Esq. Gordon Pearson, Esq. Wilmer Cutler Pickering Hale & Dorr, LLP 2445 M Street, N.W. Washington, DC 20037 Tel: (202) 663- 6000 Fax: (202) 663- 6363

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