Summary
finding that costs such as filing fees, photocopy costs, travel expenses, postage, telephone and fax expenses, and computerized legal research fees were relevant and necessary expenses in class action litigation
Summary of this case from Austin v. Metro. Council Through Its Operating Div.Opinion
No. CIV.02-2677(DSD/FLN)
April 1, 2005.
Guri Ademi, Not Admitted, for Max Bruckner, Stephen Herod, Plaintiffs.
James L Altman, Xcel Energy, Mpls, for Xcel Energy, Defendant.
Carolyn Glass Anderson, Zimmerman Reed, Mpls, for Victor J Sakal, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Movants.
George E Barrett, Barrett Johnston Parsley, Nashville, TN, for Gene Barday, Jr., Plaintiff.
Andrew L Barroway, Schiffrin Barroway, LLP, Radnor, PA, for Private Asset Management, Movant.
Thomas J Basting, Jr, Briggs Morgan — Mpls, Mpls, for Xcel Energy, Edward J McIntyre, James J Howard, Wayne H Brunetti, Wayne H Brunette, A Barry Hirschfeld, A Patricia Sampson, Albert F Moreno, Allan L Schuman, C Coney Burgess, David A Christensen, David E Ripka, Douglas W Leatherdale, Giannantonio Ferrari, Margaret R Preska, Rodney E Slifer, Roger R Hemminghaus, W Thomas Stephens, Defendants.
Stuart Berman, Schiffrin Barroway, LLP, Radnor, PA, for Private Asset Management, Movant.
Garrett D Blanchfield, Jr, Reinhardt Wendorf Blanchfield, St Paul, for Max Bruckner, Stephen Herod, Chips Investments Limited Partnership, Plaintiffs.
Jeffrey D Bores, Chestnut Cambronne, Mpls, for Chips Investments Limited Partnership, L.A. Amundson Scholarships, Inc., Lake Benton Bancorporation, Inc., Lloyd Barbara Amundson Charity Foundation, Beverly K Aanenson, Catholic Workman, Harry C Andrews, Steven Aanenson, Thomas R Perry, Jr, Donald Newcome, Leonard Banks, All Plaintiffs, Plaintiffs.
Carole A Broderick, Not Admitted, for Chips Investments Limited Partnership, L.A. Amundson Scholarships, Inc., Lake Benton Bancorporation, Inc., Lloyd Barbara Amundson Charity Foundation, Beverly K Aanenson, Catholic Workman, Harry C Andrews, Steven Aanenson, Thomas R Perry, Jr, Plaintiffs.
Karl L Cambronne, Chestnut Cambronne, Mpls, for Chips Investments Limited Partnership, L.A. Amundson Scholarships, Inc., Lake Benton Bancorporation, Inc., Lloyd Barbara Amundson Charity Foundation, Beverly K Aanenson, Catholic Workman, Harry C Andrews, Steven Aanenson, Thomas R Perry, Jr, All Plaintiffs, Plaintiffs.
Steven E Cauley, Cauley Geller Bowman Coates, Little Rock, AR, for Victor J Sakal, Movant.
Darren J Check, Schiffrin Barroway, Bala Cynwyd, PA, for Private Asset Management, Movant.
Jack L Chestnut, Chestnut Cambronne, Mpls, for Chips Investments Limited Partnership, L.A. Amundson Scholarships, Inc., Lake Benton Bancorporation, Inc., Lloyd Barbara Amundson Charity Foundation, Beverly K Aanenson, Catholic Workman, Harry C Andrews, Steven Aanenson, Thomas R Perry, Jr, Plaintiffs.
Martin D Chitwood, Chitwood Harley, Atlanta, GA, for Max Bruckner, Stephen Herod, Chips Investments Limited Partnership, Plaintiffs.
John A Cochrane, Cochrane Bresnahan PA, St Paul, for Donald Newcome, Gene Barday, Jr., Leonard Banks, Plaintiffs.
Glen M Connor, Whatley Drake, Birmingham, AL, for Donald Newcome, Leonard Banks, Plaintiffs.
Harvey H Eckart, Eckart Leonetti PA, St. Paul, for Edith Gottlieb, Movant.
Nadeem Faruqi, Not Admitted, for Max Bruckner, Stephen Herod, Plaintiffs.
Adrienne M Ferraro, Jones Day — Cleveland, Cleveland, OH, for Xcel Energy, A Barry Hirschfeld, A Patricia Sampson, Albert F Moreno, Allan L Schuman, C Coney Burgess, David A Christensen, David E Ripka, Douglas W Leatherdale, Edward J McIntyre, Giannantonio Ferrari, Margaret R Preska, Rodney E Slifer, Roger R Hemminghaus, W Thomas Stephens, Wayne H Brunetti, Defendants.
Jeffrey P Fink, Robbins Umeda Fink LLP, San Diego, CA, for Gene Barday, Jr., Plaintiff.
Christine M Fox, Kaplan Fox Kilsheimer, New York, NY, for Chips Investments Limited Partnership, L.A. Amundson Scholarships, Inc., Lake Benton Bancorporation, Inc., Lloyd Barbara Amundson Charity Foundation, Beverly K Aanenson, Catholic Workman, Harry C Andrews, Steven Aanenson, Thomas R Perry, Jr, Plaintiffs.
Frederic S Fox, Kaplan Fox Kilsheimer, New York, NY, for Chips Investments Limited Partnership, L.A. Amundson Scholarships, Inc., Lake Benton Bancorporation, Inc., Lloyd Barbara Amundson Charity Foundation, Beverly K Aanenson, Catholic Workman, Harry C Andrews, Steven Aanenson, Thomas R Perry, Jr, Plaintiffs.
Carol V Gilden, Much Shelist Freed Denenberg Ament Rubenstein, Chicago, IL, for Chips Investments Limited Partnership, L.A. Amundson Scholarships, Inc., Lake Benton Bancorporation, Inc., Lloyd Barbara Amundson Charity Foundation, Beverly K Aanenson, Catholic Workman, Harry C Andrews, Steven Aanenson, Thomas R Perry, Jr, Plaintiffs.
Stephen D Gurr, Kamlet Shepherd Reichert, LLP, Denver, CO, for James J Howard, Defendant.
Daniel E Gustafson, Gustafson Gluek PLLC, Mpls, for Chips Investments Limited Partnership, Plaintiff.
Samuel D Heins, Heins Mills Olson, Mpls, for Chips Investments Limited Partnership, Plaintiff.
Lisa Hogan, Brownstein Hyatt Farber, Denver, CO, for A Barry Hirschfeld, A Patricia Sampson, Albert F Moreno, Allan L Schuman, C Coney Burgess, David A Christensen, David E Ripka, Douglas W Leatherdale, Edward J McIntyre, Giannantonio Ferrari, Margaret R Preska, Rodney E Slifer, Roger R Hemminghaus, W Thomas Stephens, Wayne H Brunetti, Defendants.
Elizabeth R Imhoff, Brownstein Hyatt Farber, Denver, CO, for A Barry Hirschfeld, A Patricia Sampson, Albert F Moreno, Allan L Schuman, C Coney Burgess, David A Christensen, David E Ripka, Douglas W Leatherdale, Edward J McIntyre, Giannantonio Ferrari, Margaret R Preska, Rodney E Slifer, Roger R Hemminghaus, W Thomas Stephens, Wayne H Brunetti, Defendants.
Geoffrey M Johnson, Law Firm Unknown, for Xcel Energy, Edward J McIntyre, Wayne H Brunetti, A Barry Hirschfeld, A Patricia Sampson, Albert F Moreno, Allan L Schuman, C Coney Burgess, David A Christensen, David E Ripka, Douglas W Leatherdale, Giannantonio Ferrari, James J Howard, Margaret R Preska, Rodney E Slifer, Roger R Hemminghaus, W Thomas Stephens, Defendants.
Douglas S Johnston, Jr, Barrett Johnston Parsley, Nashville, TN, for Gene Barday, Jr., Plaintiff.
Ellen M Kelman, Bruaer Buescher Goldhammer Kelman Dodge, Denver, CO, for Donald Newcome, Leonard Banks, Plaintiffs.
Ashley Kim, Not Admitted, for United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Movant.
Michael Charles Krikava, Briggs Morgan, Mpls, for Xcel Energy, Edward J McIntyre, James J Howard, Wayne H Brunetti, Wayne H Brunette, A Barry Hirschfeld, A Patricia Sampson, Albert F Moreno, Allan L Schuman, C Coney Burgess, David A Christensen, David E Ripka, Douglas W Leatherdale, Giannantonio Ferrari, Margaret R Preska, Rodney E Slifer, Roger R Hemminghaus, W Thomas Stephens, Defendants.
Joey P Leniski, Branstetter Kilgore Stranch Jennings, Nashville, TN, for Donald Newcome, Plaintiff.
William S Lerach, Lerach Coughlin Stoia Geller Rudman Robbins LLP — SD, San Diego, CA, for Max Bruckner, Stephen Herod, Plaintiffs.
Christopher Lometti, Not Admitted, for United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Movant.
Andrew Luger, Greene Espel, Mpls, for Luella G Goldberg, Defendant.
Eric J Magnuson, Rider Bennett LLP, Mpls, for James J Howard, Defendant.
Timothy L Miles, Barrett Johnston Parsley, Nashville, TN, for Gene Barday, Jr., Plaintiff.
Stacey L Mills, Heins Mills Olson, PLC, Mpls, for Chips Investments Limited Partnership, Plaintiff.
Patrick F Morris, Morris Morris LLC, Wilmington, DE, for Edith Gottlieb, Movant.
Bruce G Murphy, Murphy Law Offices, Vero Beach, FL, for Edith Gottlieb, Movant.
John M Newman, Jr, Jones Day — Cleveland, Cleveland, OH, for Xcel Energy, Edward J McIntyre, Wayne H Brunetti, Wayne H Brunette, A Barry Hirschfeld, A Patricia Sampson, Albert F Moreno, Allan L Schuman, C Coney Burgess, David A Christensen, David E Ripka, Douglas W Leatherdale, Giannantonio Ferrari, James J Howard, Margaret R Preska, Rodney E Slifer, Roger R Hemminghaus, W Thomas Stephens, Defendants.
William J Otteson, Greene Espel, Mpls, for Luella G Goldberg, Defendant.
Phyllis M Parker, Berger Montague, Philadelphia, PA, for Chips Investments Limited Partnership, L.A. Amundson Scholarships, Inc., Lake Benton Bancorporation, Inc., Lloyd Barbara Amundson Charity Foundation, Beverly K Aanenson, Catholic Workman, Harry C Andrews, Steven Aanenson, Thomas R Perry, Jr, Plaintiffs.
Randall K Pulliam, Cauley Geller Bowman Coates, Little Rock, AR, for Victor J Sakal, Movant.
Raja Raghunath, Gilbert Sackman, Los Angeles, CA, for Donald Newcome, Plaintiff.
Geoffrey J Ritts, Jones Day — Cleveland, Cleveland, OH, for Edward J McIntyre, James J Howard, Wayne H Brunetti, Wayne H Brunette, Xcel Energy, A Barry Hirschfeld, A Patricia Sampson, Albert F Moreno, Allan L Schuman, C Coney Burgess, David A Christensen, David E Ripka, Douglas W Leatherdale, Giannantonio Ferrari, Margaret R Preska, Rodney E Slifer, Roger R Hemminghaus, W Thomas Stephens, Defendants.
Brian J Robbins, Robbins Umeda Fink LLP, San Diego, CA, for Gene Barday, Jr., Plaintiff.
Darren J Robbins, Lerach Coughlin Stoia Geller Rudman Robbins LLP — SD, San Diego, CA, for Max Bruckner, Stephen Herod, Plaintiffs.
Robert M Roseman, Spector Roseman Kodroff, Philadelphia, PA, for Chips Investments Limited Partnership, L.A. Amundson Scholarships, Inc., Lake Benton Bancorporation, Inc., Lloyd Barbara Amundson Charity Foundation, Beverly K Aanenson, Catholic Workman, Harry C Andrews, Steven Aanenson, Thomas R Perry, Jr, Plaintiffs.
J Gordon Rudd, Jr, Zimmerman Reed, Mpls, for Victor J Sakal, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Movants.
Samuel H Rudman, Lerach Coughlin Stoia Geller Rudman Robbins LLP, Melville, NY, for Max Bruckner, Stephen Herod, Plaintiffs.
Joshua M Ryland, Jones Day, Cleveland, OH, for Xcel Energy, Edward J McIntyre, Wayne H Brunetti, Wayne H Brunette, Defendants.
Jay P Saltzman, Schoengold Sporn, New York, NY, for United Brotherhood of Carpenters and Joiners of America, AFLCIO, Movant.
Sherrie R Savett, Berger Montague, Philadelphia, PA, for Chips Investments Limited Partnership, L.A. Amundson Scholarships, Inc., Lake Benton Bancorporation, Inc., Lloyd Barbara Amundson Charity Foundation, Beverly K Aanenson, Catholic Workman, Harry C Andrews, Steven Aanenson, Thomas R Perry, Jr, Plaintiffs.
Stephen G Schulman, Milberg Weiss Bershad Hynes Lerach, New York, NY, for Max Bruckner, Stephen Herod, Plaintiffs.
Steven G Schulman, Not Admitted, for Coppedge Group, The, Movant.
Edward J Sebold, Not Admitted, for Xcel Energy, Edward J McIntyre, James J Howard, Wayne H Brunetti, Wayne H Brunette, Defendants.
Peter E Seidman, Not Admitted, for Coppedge Group, The, Movant.
Thomas Victor Seifert, Head Seifert Vander Weide, Mpls, for Edith Gottlieb, Movant.
James Edward Smith, Gilbert Sackman, Los Angeles, CA, for Donald Newcome, Leonard Banks, Plaintiffs.
Eugene A Spector, Spector Roseman Kodroff, Philadelphia, PA, for Catholic Workman, Plaintiff.
James G Stranch, Branstetter Kilgore Stranch Jennings, Nashville, TN, for Donald Newcome, Leonard Banks, Plaintiffs.
Jane B Stranch, Branstetter Kilgore Stranch Jennings, Nashville, TN, for Donald Newcome, Leonard Banks, Plaintiffs.
Joel B Strauss, Kaplan Fox Kilsheimer, New York, NY, for Chips Investments Limited Partnership, L.A. Amundson Scholarships, Inc., Lake Benton Bancorporation, Inc., Lloyd Barbara Amundson Charity Foundation, Beverly K Aanenson, Catholic Workman, Harry C Andrews, Steven Aanenson, Thomas R Perry, Jr, Plaintiffs.
Rachna B Sullivan, Rider Bennett LLP, Mpls, for James J Howard, Defendant.
Timothy R Thornton, Briggs Morgan — Mpls, Mpls, for Xcel Energy, Edward J McIntyre, James J Howard, Wayne H Brunetti, Wayne H Brunette, A Barry Hirschfeld, A Patricia Sampson, Albert F Moreno, Allan L Schuman, C Coney Burgess, David A Christensen, David E Ripka, Douglas W Leatherdale, Giannantonio Ferrari, Margaret R Preska, Rodney E Slifer, Roger R Hemminghaus, W Thomas Stephens, Defendants.
Marc A Topaz, Schiffrin Barroway, LLP, Radnor, PA, for Max Bruckner, Stephen Herod, Plaintiffs.
Erika M Van Ausdall, Law Firm Unknown 00000, for Xcel Energy, Edward J McIntyre, Wayne H Brunetti, Defendants.
Vernon Jay Vander Weide, Head Seifert Vander Weide, Mpls, for Private Asset Management, Edith Gottlieb, Movants.
Joe R Whatley, Jr, Whatley Drake, Birmingham, AL, for Donald Newcome, Leonard Banks, Gene Barday, Jr., Plaintiffs.
Richard Gregory Wilson, Maslon Edelman Borman Brand, Mpls, for David H Peterson, Leonard A Bluhm, Luella G Goldberg, Defendants.
Alfred G Yates, Jr, Yates Law Office, Pittsburgh, PA, for Max Bruckner, Stephen Herod, Plaintiffs.
ORDER AND FINAL JUDGMENT
This action came on for a final hearing on a proposed settlement (the "Settlement") of this conditionally certified class action and the issues having been duly heard and a decision having been duly rendered,
IT IS HEREBY ORDERED AND ADJUDGED:
1. To the extent not otherwise defined herein, all terms shall have the same meaning as used in the Stipulation and Agreement of Settlement of ERISA Actions dated January 14, 2005 (the "Agreement").
2. The Court has jurisdiction over the subject matter of this Action and over all parties to this Action, including the Plans, the Plans' fiduciaries, all members of the Settlement Class, and all Defendants.
3. The Court hereby approves and confirms the Settlement embodied in the Agreement as being a fair, reasonable, and adequate settlement and compromise of this Action, adopts the Agreement as its judgment, and orders that the Agreement shall be herewith effective, binding, and enforced according to its terms and conditions. Among the factors considered by the Court in concluding that the Settlement is fair, reasonable, and adequate are: (1) that cases involving investment of ERISA plan assets in company stock represent an unsettled and developing area of the law; (2) that the Defendants have asserted numerous substantive defenses, including the arguments that a "presumption of prudence" applies to investment of plan assets in company stock; (3) that Settlement removes the risks, delay, and costs to the Plans and the Class associated with continued litigation and delivers assured benefits to the Class (while preserving Class members' rights to participate in the proposed settlement of the Securities Action to the extent they may be eligible under that settlement agreement); and (4) that the structural changes to the Plans anticipated by the Agreement provide significant economic benefit to Class members, in addition to the cash payments to be made under the Agreement.
4. The Court determines that the Settlement has been negotiated vigorously and at arm's length by the Plaintiffs and their counsel on behalf of the Plans and the Settlement Class and further finds that, at all times, the Plaintiffs have acted independently and that their interests are identical to the interests of the Plans and the Settlement Class, and that Plaintiffs have at all times adequately represented the Class. Accordingly, the Court determines that the negotiation and consummation of the Settlement by the Plaintiffs on behalf of the Plans, the Plans' fiduciaries, and the Settlement Class do not constitute "prohibited transactions" as defined ERISA §§ 406(a) or (b).
5. The Court determines that the Notice transmitted to the Settlement Class, pursuant to the Preliminary Approval Order concerning the Settlement and the other matters set forth therein, is the best notice practicable under the circumstances and included individual notice to all members of the Settlement Class who could be identified through reasonable efforts. Such Notice provides valid, due, and sufficient notice of these proceedings and of the matters set forth therein, including the Settlement described in the Agreement, to all persons entitled to such notice, and such Notice has fully satisfied the requirements of Rule 23, Fed.R.Civ.P. and the requirements of due process.
6. The Court hereby approves the maintenance of this Action as a class action for purposes of the Settlement pursuant to Fed.R.Civ.P. Rule 23(a) and 23(b)(1) and (b)(2). Specifically, the Court finds that (a) the number of members of the Class 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 named Plaintiffs are typical of the claims of the Class; (d) the named Plaintiffs will fairly and adequately represent the interests of the Class; and that (e) (i) the prosecution of separate actions by individual members of the Class would create a risk of inconsistent or varying adjudications with respect to individual members of the Class that would establish incompatible standards of conduct for Defendants; (ii) adjudications with respect to individual members of the Class which would as a practical matter be dispositive of the interests of the other members of the Class; (iii) Defendants have acted or refused to act on grounds generally applicable to the class; (iv) Plaintiffs seek relief which is predominantly injunctive or declaratory in nature, and monetary relief sought therewith flows directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.
7. The Court hereby approves the maintenance of the Action as a class action for settlement purposes only pursuant to Fed.R.Civ.P. Rule 23(a), 23(b)(1) and (b)(2), with the class being defined as follows:
All Persons who were participants or beneficiaries under the Plans at any time between September 23, 1999, and March 31, 2003, inclusive, and who had Xcel common stock allocated to their Plan account at any time during that period, other than persons who are named as individual Defendants in the Complaints and their immediate family members.
8. The Court hereby dismisses the Complaints and the Action against the Defendants with prejudice and on the merits, and without taxation of costs in favor of or against any party.
9. As of the date of Final Approval of Settlement (as defined in the Agreement), the Plaintiffs, the Plans, the Plans' fiduciaries, and each member of the Class on their own behalf and on behalf of their respective heirs, executors, administrators, past and present partners, officers, directors, agents attorneys, predecessors, and assigns, shall have released, and shall be deemed to have released, each and all of the Released Persons from the Released Claims, and the Defendants shall be deemed to have released the Plaintiffs, the Settlement Class and Class Counsel from the Released Claims, in accordance with the terms of the Agreement.
10. The Plaintiffs, Plans, the Plans' fiduciaries, all members of the Settlement Class, and any other party are hereby permanently barred and enjoined from instituting or prosecuting, either directly, indirectly, or in a representative capacity, any other action in any court asserting any and all Released Claims against any and all Released Persons. Defendants are hereby permanently barred and enjoined from instituting or prosecuting, either directly, indirectly, or in a representative capacity, any other action in any court asserting any and all Released Claims against Plaintiffs, the Settlement Class and Class Counsel.
11. All parties are hereby permanently barred and enjoined from the institution and prosecution, either directly, indirectly, or in a representative capacity, of any actions against any Defendants, their Related Parties, Defendants' Counsel, any member of the Settlement Class, or Class Counsel based on the amount of any Settlement Claim issued pursuant to the Plan of Allocation approved in the Final Approval of the Settlement.
12. The Court hereby decrees that neither the Agreement nor the Settlement nor this Order and Final Judgment is an admission or concession by any Defendant of any liability or wrongdoing. This Final Judgment is not a finding of the validity or invalidity of any of the claims asserted or defenses raised in this Action. Neither the Agreement nor the Settlement nor the Order and Final Judgment nor the settlement proceedings nor the settlement negotiations nor any related documents shall be offered or received in evidence as an admission, concession, presumption or inference against any Defendant in any proceeding, other than such proceedings as may be necessary to enforce or consummate the agreement.
13. The Court will consider and decide the matter of attorneys' fees and expenses in a separate order.
14. Without affecting the finality of this Judgment, the Court retains jurisdiction for purposes of implementing the Agreement and reserves the power to enter additional orders to effectuate the fair and orderly administration and consummation of the Agreement and Settlement and reimbursement of Administrative Expenses, as may from time to time be appropriate, and resolution of any and all disputes arising thereunder.
LET JUDGMENT BE ENTERED ACCORDINGLY.