Free Judgment - District Court of Colorado - Colorado

Case 1:00-cv-02149-REB-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Robert E. Blackburn, Judge

Civil Action No. 00-cv-1864-REB-BNB (Consolidated with 00-cv-1908-REB-BNB, 00-cv-1910-REB-BNB, 00-cv-1919-REB-BNB, 00-cv-1945-REB-BNB, 00-cv-1954-REB-BNB, 00-cv-1957-REB-BNB, 00-cv-1963-REB-BNB, 00-cv-1996-REB-BNB, 00-cv-2040-REB-BNB, 00-cv-2074-REB-BNB, 00-cv-2149-REB-BNB, 00-cv-2243-REB-BNB, and 00-cv-2316-REB-BNB) In re ICG COMMUNICATIONS, INC. SECURITIES LITIGATION This Document Relates To: All Actions

ORDER AND FINAL JUDGMENT Blackburn, J. This matter is before me on the Lead Plaintiffs' Motion for Final Approval of Class Action Settlement, Plan of Allocation and Certification of Settlement Class [#217], filed December 13, 2006. In an order [#210], filed July 28, 2006, I preliminarily certified a plaintiff class for the purpose of effectuating a settlement of this litigation, I approved the settlement preliminarily, and I directed that notice be given to the members of the settlement class. The terms of the proposed settlement are detailed in the Stipulation and Agreement of Settlement [#208], filed July 20, 2006 (the "Stipulation"). Due and adequate notice has been given to the Class as required in my order [#210]. I have considered all papers filed and proceedings had herein and I otherwise am informed fully in the premises. I have jurisdiction over this case under 15 U.S.C. § 78aa, and 28 U.S.C. § 1331. Under FED. R. CIV. P. 23(e)(1)(C), I may approve a settlement that binds members of a class only if the settlement is fair, reasonable, and adequate. The Tenth Circuit has

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outlined four factors to be considered in assessing whether a proposed settlement of a class action is fair, reasonable, and adequate: 1. Whether the proposed settlement was fairly and honestly negotiated; 2. Whether serious questions of law and fact exist, placing the ultimate outcome of the litigation in doubt; 3. Whether the value of an immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation; and 4. The judgment of the parties that the settlement is fair and reasonable. Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir. 2002) (citations omitted). I have considered and applied these factors in evaluating the proposed settlement in this case. In this case, each of these factors augurs toward approval of the Stipulation and Settlement, and I conclude that the Settlement is fair, reasonable, and adequate. THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: 1. This Judgment incorporates the Stipulation's definitions by reference, and all terms used herein shall have the same meanings as set forth in the Stipulation. 2. This Court has jurisdiction over the Action's subject matter and over all parties to the Action, including all Class members. 3. With respect to the Class, and for the sole purpose of the Settlement, this Court finds and concludes that the prerequisites to class certification under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure have been satisfied in that: (a) the Class members are so numerous that joinder of all Class members in the class action is impracticable; (b) there are legal and factual questions common to the Class that predominate over any individual question; (c) the Lead Plaintiffs' claims are typical of the Class's claims; (d) Lead Plaintiffs and their counsel have and will fairly and 2

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adequately represent and protect the Class members' interests; and (e) a class action is superior to other available methods for the controversy's fair and efficient adjudication, considering: (i) the Class members' interests in individually controlling the prosecution of the separate actions, (ii) the extent and nature of any litigation concerning the controversy already commenced by Class members, (iii) the desirability or undesirability of concentrating the litigation of these claims in this particular forum, and (iv) the difficulties likely to be encountered in the class action's management. 4. Under Federal Rule of Civil Procedure 23, and for the sole purpose of settlement, this Court, therefore, certifies a Class of all persons who purchased or otherwise acquired ICG common stock from December 9, 1999, through September 18, 2000, inclusive, and were damaged thereby. Excluded from the Class are (a) the Defendants, (b) ICG and all of its subsidiaries, affiliates, successors and assigns and any person who was a partner, officer, executive or director of any such entity at any time from December 9, 1999 through the date of the Second Consolidated and Amended Complaint; (c) members of the families of each of the defendants; (d) Liberty Media, Hicks, Muse, Tate & Furst and Gleacher Partners and their legal affiliates, partners, officers, employees, executives, directors, representatives, heirs, controlling persons, successors, and predecessors in interest or assigns or any of them; (e) any entity in which any such excluded person has a controlling interest; and (f) the legal representatives, heirs, successors and assigns of any such excluded person or entity. Also excluded from the Class are the putative Class members who or which properly requested exclusion, as set forth in Exhibit 1 hereto. 5. The Court finds that pursuant to Rule 23 of the Federal Rules of Civil Procedure, Strategic Market Analysis Fund, Retirement Systems of Alabama, and the 3

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Policemen's Annuity and Benefit Fund of Chicago are adequate class representatives and certifies them for purposes of the Settlement only as class representatives for the Class. 6. The Court finds the Settlement set forth in the Stipulation is fair, reasonable and adequate to the Class in all respects and is in the best interests of the Class and, therefore, finally approves the Settlement under Fed. R. Civ. P. 23. 7. Except for any individual claims of putative Class members (identified in Exhibit 1 hereto) who have validly and timely requested exclusion from the Class, the Action and all its claims, as well as all Released Claims, are dismissed with prejudice on the merits. The Parties shall bear their own costs, except as otherwise provided in the Stipulation. 8. The Court finds that the Stipulation, Settlement, and Plan of Distribution are fair, reasonable and adequate to each and all Parties and in the best interests of the Class, and the Stipulation, Settlement and Plan of Distribution are hereby finally approved in all respects, and the Parties are hereby directed to administer the Stipulation in accordance with its terms and conditions. 9. Plaintiffs and each Class member are adjudged to have fully, finally, and forever released, relinquished and discharged all Released Claims against the Released Parties, whether or not such Class member has executed or delivered the Proof of Claim and Release. 10. All Class members are hereby forever barred and enjoined from prosecuting any and all Released Claims against any and all Released Parties. 11. Each and all Released Parties are adjudged to have fully, finally, and forever released, relinquished and discharged all Settled Defense Claims against the Class 4

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members and Plaintiffs' Counsel. 12. Nothing herein shall release the parties from their obligations under the Stipulation. 13. The Court has considered and approved the proposed Bar Order language described in paragraph 5 of the Stipulation. Accordingly, all persons or entities are forever enjoined and barred from commencing any action or asserting any contribution claim, however denominated, against the Released Parties arising out of or in any way related to such person's or persons' participation in any acts, facts, statements or omissions that were or could have been alleged in the Action. 14. The Notice of Pendency and Settlement of Class Action, Hearing on Proposed Settlement and Attorneys' Fee Petition and Right to Share in Settlement Fund (the "Notice") given to the Class was the best notice practicable under the circumstances and is in full compliance with the notice requirements of due process, Rule 23 of the Federal Rules of Civil Procedure, and 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. 15. An appeal of the portions of this Order which relate to the Plan of Distribution or the award of attorney fees and expenses shall have no effect on the finality of any other portion of this Order or the Effective Date, as provided in the Stipulation. 16. The Stipulation and Settlement, and any act performed or document executed pursuant to or in furtherance of the Stipulation or the Settlement or any negotiation, discussion, document, submission, filing or proceedings in connection with this Stipulation or the Settlement: 5

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a. shall not be offered or received against any or all Released Parties for any reason including, without limitation, as evidence of or construed as or deemed to be evidence of any presumption, concession, or admission by any or all Released Parties with respect to the truth of any fact alleged by Lead Plaintiffs or the validity of any claim that had 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 any or all Released Parties; b. shall not be offered or received against any or all Released Parties as evidence of or construed as or deemed evidence of a presumption, concession or admission of any fault, misrepresentation or omission with respect to any statement or written document approved or made by any or all Released Parties, or against Lead Plaintiffs and the Class as evidence of any infirmity in the claims of Lead Plaintiffs and the Class; c. shall not be offered or received against any or all Released Parties as evidence of or construed as or deemed evidence of a presumption, concession or admission with respect to any liability, negligence, fault or wrongdoing, or in any way referred to for any other reason as against any of the Parties to this Stipulation, in any other civil, criminal or administrative action or proceeding (including, but not limited to, any formal or informal investigation or inquiry by any state or federal government body or any self-regulatory organization), other than such proceedings as may be necessary to effectuate the provisions of this 6

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Stipulation; provided, however, that if this Stipulation is approved by the Court, any or all Released Parties may refer to it to effectuate the liability, litigation and other protection granted them hereunder; d. shall not be offered, received, or construed against any or all Released Parties as an admission or concession that Plaintiffs would or could obtain any judgment at trial, or that the settlement consideration represents or approximates the amount that could be or would have been recovered at trial; e. shall not be offered, construed or received in evidence as an admission, concession or presumption against Lead Plaintiffs or the Class or any of them that any of their claims are without merit or that damages recoverable under the Complaint would not have exceeded the Settlement Fund. Any or all Released Parties may file the Stipulation and/or the Order and Final Judgment in any other action or proceeding that may be brought against any or all of them in support of a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment, bar or reduction, or any theory of claim preclusion or issue preclusion or similar defense or counterclaim. Lead Plaintiffs understand, acknowledge and agree that the Released Parties have denied and continue to deny each and all claims of alleged wrongdoing; and f. shall not be offered, construed or received in evidence as an admission, concession or presumption against any or all Defendants that class certification would be proper for any purpose other than this 7

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Settlement. 17. Without affecting this Judgment's finality in any way, this Court hereby retains continuing jurisdiction over: (a) this Settlement's implementation and any award or distribution of the Settlement Fund, including interest earned thereon; (b) the Settlement Fund's disposition; and (c) all Parties for the purpose of construing, enforcing and administering the Stipulation. 18. The Court finds that during the course of the Action, the Parties and their respective counsel at all times complied with the requirements of Fed. R. Civ. P. 11. 19. If the Settlement should become ineffective because of an event set forth in paragraphs 32 or 34 of the Stipulation, then (i) this Judgment shall be rendered null and void to the extent provided by and in accordance with the Stipulation and shall be vacated and, in such event, all orders entered and releases delivered in connection herewith shall be null and void to the extent provided by and in accordance with the Stipulation, (ii) the parties shall immediately revert to their litigation positions as of May 17, 2006, and (iii) the Court's Class certification shall be rescinded. 20. The Court finds, under Rules 54(a) and (b) of the Federal Rules of Civil Procedure, that this Order and Final Judgment constitutes this Action's final adjudication on the merits and should be entered without delay. Accordingly, the Clerk is directed to enter this Judgment forthwith. Dated January 19, 2007, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Judge

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