Free Order on Motion for Attorney Fees - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Harvey L. Poppel, individually and on behalf of all other persons similarly situated, Plaintiff, vs. eFunds Corporation; John A. Blanchard III; Paul H. Bristow; and Thomas S. Liston, Defendants. : : : : : : : : : : : : : : : : Case No. CV-03-1915-PHX-SRB

Class Action [Motions at dockets 92 and 93 GRANTED]

ORDER AND FINAL JUDGMENT On the 7th day of April, 2006, a hearing having been held before this Court to determine: (1) whether the terms and conditions of the Stipulation and Settlement Agreement dated December 29, 2005 (the "Stipulation") are fair, reasonable and adequate for the settlement of all claims asserted by the Class against the Defendants in the Consolidated Amended Complaint now pending in this Court under the above caption and the settlement and release of all Settled Claims against the Defendants and the Released Parties, and should be approved; (2) whether judgment should be entered dismissing the Consolidated Amended Complaint on the merits and with prejudice in favor of the Defendants and as against Lead Plaintiff and all persons or entities who are members of the Class herein who have not requested exclusion therefrom; (3) whether to approve the Plan of Allocation as a fair and reasonable method to allocate the settlement proceeds among the Class Members; and (4) whether and in what amount to award Plaintiffs' Counsel fees and reimbursement of expenses. The Court having considered all matters

submitted to it at the hearing and otherwise; and it appearing that a notice of the hearing

Case 2:03-cv-01915-JWS

Document 97

Filed 04/14/2006

Page 1 of 10

substantially in the form approved by the Court was mailed to all persons or entities reasonably identifiable, who purchased the stock of eFunds Corporation ("eFunds") during the period between July 21, 2000 and October 24, 2002, inclusive (the "Class Period"), except those persons or entities excluded from the definition of the Class, as shown by the records of eFunds' transfer agent, at the respective addresses set forth in such records, and that a summary notice of the hearing substantially in the form approved by the Court was published in the national edition of Investor's Business Daily pursuant to the specifications of the Court; and The Court having considered and determined that the Settlement is fair and reasonable and adequate. NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. The Stipulation, including the definitions contained therein, is incorporated by

reference in this Order and Final Judgment. All Capitalized terms herein shall have the meaning as set forth for in the Stipulation. 2. The Court has jurisdiction over the subject matter of the Action, the Lead

Plaintiff, all Class Members, the Defendants and the Original Defendants. 3. For the purposes of the Settlement only, the Court finds that the prerequisites for a

class action under Federal Rules of Civil Procedure 23(a) and (b)(3) have been satisfied in that: (a) the number of Class Members is so numerous that joinder of all members thereof is impracticable; (b) there are questions of law and fact common to the Class; (c) the claims of the Class Representatives are typical of the claims of the Class they seek to represent; (d) the Class Representatives have and will fairly and adequately represent the interests of the Class; (e) the questions of law and fact common to the members of the Class predominate over any questions

2 Case 2:03-cv-01915-JWS Document 97 Filed 04/14/2006 Page 2 of 10

affecting only individual members of the Class; and (f) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 4. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for the purposes

of the Settlement only, this Court hereby finally certifies this action as a class action on behalf of all persons who purchased the stock of eFunds during the period 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 and assigns, and any entity in which any Defendant has or had a controlling interest. Also excluded from the Class are the persons and/or entities who requested exclusion from the Class as listed on Exhibit 1 annexed hereto. 5. Notice of the pendency of this Action as a class action and of the proposed

Settlement was given to all Class Members who could be identified with reasonable effort. The form and method of notifying the Class of the pendency of the action as a class action and of the terms and conditions of the proposed Settlement met the requirements of Rule 23 of the Federal Rules of Civil Procedure, Section 21D(a)(7) of the Securities Exchange Act of 1934, 15 U.S.C. 78u-4(a)(7) as amended by the Private Securities Litigation Reform Act of 1995, due process, and all other applicable law, constituted the best notice practicable under the circumstances, and constituted due and sufficient notice to all persons and entities entitled thereto. 6. The Stipulation and Settlement are approved as fair, reasonable and adequate, and

the Class Members and the parties are directed to consummate the Settlement in accordance with the terms and provisions of the Stipulation. 7. The Consolidated Amended Complaint, which the Court finds was filed on a good

faith basis in accordance with the Private Securities Litigation Reform Act and Rule 11 of the

3 Case 2:03-cv-01915-JWS Document 97 Filed 04/14/2006 Page 3 of 10

Federal Rules of Civil Procedure based upon all publicly available information, all claims contained therein, and the Action, are hereby dismissed with prejudice in their entirety and without costs, except as provided in the Stipulation. 8. Upon the Effective Date of the Settlement, Lead Plaintiff, the Class Members and

their heirs, executors, administrators, successors and assigns, are hereby permanently barred and enjoined from asserting, instituting, commencing or prosecuting, either directly or in any other capacity, any and all of the Settled Claims against any of the Released Parties whether or not such Class Member executes or delivers a Proof of Claim and Release. The Settled Claims of Lead Plaintiff and the Class Members are hereby fully, finally and forever released, settled, compromised, relinquished, discharged and dismissed on the merits with prejudice as against any and all of the Released Parties by virtue of the proceedings herein and this Order and Final Judgment, provided, however, that nothing herein is meant to bar any claim relating to the performance or enforcement of the Stipulation. 9. Upon the Effective Date of the Settlement, the Defendants and their heirs,

executors, administrators, successors and assigns, are hereby permanently barred and enjoined from asserting, instituting, commencing or prosecuting any and all Settled Defendants' Claims. The Settled Defendants' Claims are hereby fully, finally and forever released, settled, compromised, relinquished, discharged and dismissed on the merits with prejudice as against the Lead Plaintiff, any of the Class Members, or their attorneys by virtue of the proceedings herein and this Order and Final Judgment, provided, however, that nothing herein is meant to bar any claim relating to the performance or enforcement of the Stipulation.

4 Case 2:03-cv-01915-JWS Document 97 Filed 04/14/2006 Page 4 of 10

10.

Neither this Order and Final Judgment, the Stipulation, nor any of its terms and

provisions, nor any of the negotiations or proceedings connected with it, nor any of the documents or statements referred to therein shall be: (a) invoked, offered or received against the Defendants as evidence of, or

interpreted, construed as or deemed to be evidence of, any presumption, concession, admission or finding against any of the Defendants with respect to the truth of any fact alleged by any of the plaintiffs or the validity of any claim that has been or could have been asserted in the Action or in any litigation, or the deficiency of any defense that has been or could have been asserted in the Action or in any litigation, or of any liability, negligence, fault, or wrongdoing of the Defendants; (b) invoked, offered or received against the Defendants as evidence of, or

interpreted, construed as or deemed to be evidence of, any presumption, concession, admission or finding of any fault, misrepresentation or omission with respect to any statement or written document approved or made by any Defendant; (c) invoked, offered or received against the Defendants as evidence of, or

interpreted, construed as or deemed to be evidence of, any presumption, concession, admission or finding with respect to any liability, negligence, fault or wrongdoing, or in any way referred to for any other reason as against any of the Defendants, in any other civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of this Stipulation; provided, however, that if this Stipulation is approved by the Court, Defendants may refer to it to effectuate the liability protection granted them hereunder;

5 Case 2:03-cv-01915-JWS Document 97 Filed 04/14/2006 Page 5 of 10

(d)

invoked, offered or received against the Defendants as evidence of, or

interpreted, construed as or deemed to be evidence of, any presumption, admission, concession or finding that the consideration to be given hereunder represents the amount which could be or would have been recovered after trial; or (e) invoked, offered or received against the Lead Plaintiff or any of the Class

Members as evidence of, or interpreted, construed as or deemed to be evidence of, any admission, concession, presumption or finding against Lead Plaintiff or any of the Class Members that any of their claims are without merit, or that any defenses asserted by the Defendants have any merit, or that damages recoverable under the Consolidated Amended Complaint would not have exceeded the Settlement Amount. 11. Nothing contained in this Order and Final judgment shall be construed to prevent

the Stipulation or this Order and Final Judgment from being introduced or filed in any other action or proceeding for the purposes of: (a) supporting a defense of res judicata, collateral estoppel, release, good-faith settlement, judgment bar or any other theory of claim preclusion or similar defense; or (b) enforcing or otherwise effectuating the terms of the Stipulation and Settlement. 12. The Plan of Allocation is approved as fair and reasonable, the motion at docket 92

is GRANTED, and Plaintiffs' Counsel and the Claims Administrator are directed to administer the Stipulation in accordance with its terms and provisions. 13. Any further orders and proceedings solely regarding either the Plan of Allocation

or any attorneys' fees and expense applications shall in no way disturb or affect this Order and Final Judgment and shall be separate and apart from this Order and Final Judgment.

6 Case 2:03-cv-01915-JWS Document 97 Filed 04/14/2006 Page 6 of 10

14.

The Court finds that all parties and their counsel have complied with each

requirement of Rule 11 of the Federal Rules of Civil Procedure as to all proceedings herein. 15. The motion at docket 93 is GRANTED. Plaintiffs' Counsel are hereby awarded

TWENTY-FIVE PERCENT [25%] of the Gross Settlement Fund in fees, which sum the Court finds to be fair and reasonable, and THIRTY-NINE THOUSAND NINETY THREE DOLLARS AND 26/100 [$39,093.26] in reimbursement of expenses, which expenses shall be paid to Lead Counsel from the Settlement Fund with interest from the date such Settlement Fund was funded to the date of payment at the same net rate that the Settlement Fund earns. The award of attorneys' fees shall be allocated among Plaintiffs' Counsel in a fashion which, in the opinion of Lead Counsel, fairly compensates Plaintiffs' Counsel for their respective contributions in the prosecution of the Action. 16. In making this award of attorneys' fees and reimbursement of expenses to be paid

from the Settlement Fund, the Court has considered and found that: (a) the settlement has created a fund of $2.55 million in cash that is already on

deposit, plus interest thereon, and that numerous Class Members who submit acceptable Proofs of Claim and Release will benefit from the Settlement created by Plaintiffs' Counsel; (b) in addition to the cash settlement fund, eFunds on behalf of all Defendants

has agreed to pay the costs of giving the individual mail notice to the Class Members and a publication notice, thereby benefiting the Class; (c) Over 33,500 copies of the Notice were disseminated to putative Class

Members indicating that Plaintiffs' Counsel were moving for attorneys' fees in the amount of up to twenty-five percent (25%) of the Gross Settlement Fund and for reimbursement of expenses in an amount of approximately $50,000 and no objections were filed against the terms of the

7 Case 2:03-cv-01915-JWS Document 97 Filed 04/14/2006 Page 7 of 10

proposed Settlement or the ceiling on the fees and expenses requested by Plaintiffs' Counsel contained in the Notice; (d) Plaintiffs' Counsel have conducted the litigation and achieved the

Settlement with skill, perseverance and diligent advocacy; (e) The action involves complex factual and legal issues and was actively

prosecuted over three years and, in the absence of a settlement, would involve further lengthy proceedings with uncertain resolution of the complex factual and legal issues; (f) Had Plaintiffs' Counsel not achieved the Settlement there would remain a

significant risk that Lead Plaintiff and the Class may have recovered less or nothing from the Defendants; (g) Plaintiffs' Counsel have devoted over $2,365.70 hours, with a lodestar

value of $898,433.25, to achieve the Settlement; and (h) The amount of attorneys' fees awarded and expenses reimbursed from the

Settlement Fund are consistent with awards in similar cases. 17. Without affecting the finality of this Order and Final Judgment, this Court hereby

retains exclusive jurisdiction over the parties and the Class Members for all matters relating to the administration, interpretation, effectuation or enforcement of the Stipulation and this Order and Final Judgment, including any application for fees and expenses incurred in connection with administering and distributing the settlement proceeds to the Class Members. 18. As set forth in the Stipulation, the Defendants and their counsel have no

responsibilities, obligations or liability whatsoever in connection with the administration, allocation and distribution of the Settlement Fund.

8 Case 2:03-cv-01915-JWS Document 97 Filed 04/14/2006 Page 8 of 10

19.

In accordance with and pursuant to 15 U.S.C. § 78u-4(f)(7)(A), as of the Effective

Date of the Settlement, all future claims for contribution arising out of the Action are barred (i) by any person against the Defendants or Original Defendants, and (ii) by the Defendants or Original Defendants against any person; provided, however, that this bar is in no way intended to affect contractual or related claims by the Defendants or Original Defendants against third parties for reimbursement of amounts paid in connection with the Action or the Settlement. 20. Without further order of the Court, the parties may agree to reasonable extensions

of time to carry out any of the provisions of the Stipulation. 21. In the event that the Effective Date of the Settlement does not occur, this Order

and Final Judgment shall, with the exception of paragraph 10 hereof, automatically be rendered null and void and shall be vacated and, in such event, all orders entered and releases delivered in connection herewith shall be null and void. 22. Pending the occurrence of the Effective Date of the Settlement, no Class member

may, either directly, representatively, or in any other capacity, assert, institute, commence or prosecute any individual, class, or other action or proceeding relating to any of the Settled Claims against any of the Released Parties. 23. There is no just reason for delay in the entry of this Order and Final Judgment and

immediate entry by the Clerk of the Court is expressly directed pursuant to Rule 54 (b) of the Federal Rules of Civil Procedure. Dated at Anchorage, Alaska, this 13th day of April 2006. /s/ Honorable John W. Sedwick UNITED STATES DISTRICT JUDGE

9 Case 2:03-cv-01915-JWS Document 97 Filed 04/14/2006 Page 9 of 10

EXHIBIT 1 Persons and Entities Requesting Exclusion from the Class Richard C. Goldstein Account (JP Morgan Account No. 1014032010) Richard C. Goldstein Private FDN Account (JP Morgan Account No. 1000013000) Alton Associates Account (JP Morgan Account No. 1014032030) Daniel J. Sullivan, M.D.

10 Case 2:03-cv-01915-JWS Document 97 Filed 04/14/2006 Page 10 of 10