Free Judgment - District Court of Colorado - Colorado

Case 1:03-cv-00597-EWN-PAC

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Filed 01/27/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham Civil Action No. 03­ 00597­ cv­ EWN­ PAC

In re: ULTIMATE ELECTRONICS, INC. SECURITIES LITIGATION

FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE

This matter came before the Court for hearing pursuant to the Order of this Court, dated November 8, 2005, on the application of the parties for approval of the settlement set forth in the Stipulation of Settlement dated as of September 15, 2005 (the " Stipulation" Due and adequate ). notice having been given to the Settlement Class as required in said Order, and the Court having considered all papers filed and proceedings had herein and otherwise being fully informed in the premises and good cause appearing therefore, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: 1. This Judgment incorporates by reference the definitions in the Stipulation, and all

terms used herein shall have the same meanings as set forth in the Stipulation. 2. This Court has jurisdiction over the subject matter of the Litigation and over all

parties to the Litigation, including all Members of the Settlement Class. 3. Pursuant to Rule 23 of the Federal Rules of Civil Procedure this Court certifies a

Settlement Class as all Persons who purchased the common stock of Ultimate Electronics during the period from May 1, 2002 through August 26, 2002, inclusive, and includes all persons who purchased shares in or traceable to the Company' May 1, 2002 public stock offering. Excluded s from the Settlement Class are Defendants, their affiliates and any of their officers or directors or

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their affiliates, and any members of the immediate families of the Defendants, any entity in which any Defendant has a controlling interest, and the legal representatives, heirs, successors, or assigns of any such excluded party. Also excluded are those Persons who timely and validly requested exclusion from the Settlement Class pursuant to the Notice of Settlement of Class Action sent to the class. 4. With respect to the Settlement Class, this Court finds and concludes that: (a) the

Members of the Settlement Class are so numerous that joinder of all Settlement Class Members in the class action is impracticable; (b) there are questions of law and fact common to the Settlement Class which predominate over any individual question; (c) the claims of Lead Plaintiff are typical of the claims of the Settlement Class; (d) Lead Plaintiff and its counsel have fairly and adequately represented and protected the interests of the Settlement Class Members; and (e) a class action is superior to other available methods for the fair and efficient adjudication of the controversy, considering: (i) the interests of the Members of the Settlement Class in individually controlling the prosecution of the separate actions, (ii) the extent and nature of any litigation concerning the controversy already commenced by Members of the Settlement Class, (iii) the desirability or undesirability of continuing the litigation of these claims in this particular forum, and (iv) the difficulties likely to be encountered in the management of the class action. 5. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court hereby

approves the settlement set forth in the Stipulation and finds that the contribution to the Settlement Fund is fair and that said settlement is, in all respects, fair, reasonable and adequate to the Settlement Class. 6. Except as to any individual claim of those Persons (identified on Exhibit 1 hereto)

who have validly and timely requested exclusion from the Settlement Class, this Court hereby

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dismisses with prejudice and without costs (except as otherwise provided in the Stipulation) the Litigation against the Defendants. 7. The Court finds that the Stipulation and settlement are fair, reasonable and adequate

as to each of the Settling Parties, and that the Stipulation and settlement are hereby finally approved in all respects, and the Settling Parties are hereby directed to perform its terms. 8. Upon the Effective Date hereof, Lead Plaintiff and each of the Settlement Class

Members shall be deemed to have, and by operation of this Judgment shall have, fully, finally, and forever released, relinquished and discharged all Released Claims against the Released Persons, whether or not such Settlement Class Member executes and delivers a Proof of Claim and Release. 9. This Judgment permanently bars and enjoins Lead Plaintiff and each of the

Settlement Class Members, from instituting, commencing or prosecuting, either directly, indirectly, representatively or in any other capacity, any and all Released Claims in any forum against the Released Persons. 10. Upon the Effective Date hereof, each of the Defendants shall be deemed to have, and

by operation of this Judgment shall have, fully, finally and forever released, relinquished and discharged Lead Plaintiff and counsel to the Representative Plaintiffs from all claims (including Unknown Claims), arising out of, in any way relating to, or in connection with the institution, prosecution, assertion, settlement or resolution of the Litigation, or the Released Claims, except claims to enforce the releases and other terms and conditions contained in the Stipulation. 11. The Notice of Settlement of Class Action provided to the Settlement Class was the

best notice practicable under the circumstances, including the individual notice to all Members of the Settlement Class who could be identified through reasonable effort. Said Notice provided the best notice practicable under the circumstances of those proceedings and of the matters set forth

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therein, including the proposed settlement set forth in the Stipulation, to all Persons entitled to such notice, and said Notice fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and the requirements of due process. 12. Lead Plaintiff and each of the Settlement Class Members, and all other Persons are

hereby permanently barred and enjoined from instituting, commencing or prosecuting, either directly, indirectly, representatively or in any other capacity, any and all Released Claims in any forum against the Released Persons. 13. Any court order regarding the Plan of Allocation or the attorneys'fee and expense

application shall in no way disturb or affect this Judgment and shall be considered separate from this Judgment. 14. Neither the Stipulation nor the settlement contained therein, nor any act performed

or document executed pursuant to or in furtherance of the Stipulation or the settlement: (a) is or may be deemed to be or may be used as an admission of, or evidence of, the validity or lack thereof of any Released Claim, or of any wrongdoing or liability of the Released Persons; or (b) is or may be deemed to be or may be used as an admission of, or evidence of, any fault or omission of any of the Released Persons in any civil, criminal or administrative proceeding in any court, administrative agency or other tribunal. The Released Persons may file the Stipulation and/or this Judgment in any other action that may be brought against them in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim. Nothing in this paragraph shall prevent the use of the Stipulation by the Defendants in any litigation against their insurers. 15. The Court finds that during the course of the Litigation, the Settling Parties and their

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respective counsel at all times complied with the requirements of Federal Rule of Civil Procedure 11. 16. Without affecting the finality of this Judgment in any way, this Court hereby retains

continuing jurisdiction over: (a) implementation of this settlement and any award or distribution of the Settlement Fund, including interest earned thereon; (b) disposition of the Settlement Fund; (c) hearing and determining applications for attorneys'fees, costs, interest and expenses (including fees and costs of experts and/or consultants) in the Litigation; and (d) all parties hereto for the purpose of construing, enforcing and administering the Stipulation. 17. In the event that the settlement does not become effective in accordance with the

terms of the Stipulation, then 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. 18. The Litigation is dismissed with prejudice.

IT IS SO ORDERED. DATED: January 27, 2006 s/ Edward W. Nottingham THE HONORABLE EDWARD W. NOTTINGHAM UNITED STATES DISTRICT JUDGE