Free Response to Motion - District Court of Colorado - Colorado

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

Document 135

Filed 01/23/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-0597-EWN-PAC IN RE: Ultimate Electronics, Inc. Securities Litigation

DEFENDANTS' RESPONSE TO MOTION FOR ORDER APPROVING (1) FINAL CLASS ACTION SETTLEMENT; (2) PLAN OF ALLOCATION; AND (3) AWARD OF ATTORNEYS' FEES AND COSTS

Defendants Ultimate Electronics, Inc., J. Edward McEntire, William J. Pearse, David J. Workman, Alan E. Kessock, Robert W. Beale, Randall F. Bellows and Larry D. Strutton (together, "Defendants"), through their undersigned counsel, respectfully submit this Response to Motion for Order Approving (1) Final Class Action Settlement; (2) Plan of Allocation; and (3) Award of Attorneys' Fees and Costs ("Motion"). In support hereof, Defendants state as follows: A. Defendants Join in the Request for Final Approval and Dismissal of this Lawsuit with Prejudice In the Motion, Lead Plaintiff seeks an order approving final settlement and dismissal of this litigation with prejudice. The proposed Final Judgment and Order of Dismissal with Prejudice (submitted as part of the Motion) is consistent with the Stipulation of Settlement filed by the Parties on September 15, 2005. Further, no objections to the proposed settlement have been filed. Accordingly, Defendants join in the request for approval of the Final Judgment and Order of Dismissal with Prejudice.

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

Document 135

Filed 01/23/2006

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B.

Defendants Take No Position with Regard to the Plan of Allocation and Request for an Award of Attorneys' Fees and Costs Defendants take no position with regard to the balance of the Motion, which seeks an

order approving Lead Plaintiff's plan of allocation of the settlement proceeds and request for an award of attorney's fees and costs from the existing Settlement Fund. CONCLUSION WHEREFORE, for the reasons set forth above, Defendants respectfully request this Court to approve the Final Judgment and Order of Dismissal with Prejudice. Respectfully submitted, January 23, 2006

s/ Jonathon D. Bergman Thomas P. Johnson Jonathon D. Bergman DAVIS GRAHAM & STUBBS LLP 1550 Seventeenth Street, Suite 500 Denver, CO 80202 Telephone: (303) 892-9400 Facsimile: (303) 893-1379 E-mail: [email protected] [email protected] Attorneys for Defendants Ultimate Electronics, Inc. J. Edward McEntire William J. Pearse David J. Workman Alan E. Kessock Robert W. Beale Randall F. Bellows Larry D. Strutton

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

Document 135

Filed 01/23/2006

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that on this 23rd day of January, 2006, I electronically filed the foregoing DEFENDANTS' RESPONSE TO MOTION FOR ORDER APPROVING (1) FINAL CLASS ACTION SETTLEMENT; (2) PLAN OF ALLOCATION; AND (3) AWARD OF ATTORNEYS' FEES AND COSTS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Kip B. Shuman / [email protected] Darby K. Kennedy / [email protected] Travis E. Downs III / [email protected] Jonah H. Goldstein / [email protected]

s/ Jonathon D. Bergman Thomas P. Johnson Jonathon D. Bergman Attorney for Defendants DAVIS GRAHAM & STUBBS LLP 1550 Seventeenth Street, Suite 500 Denver, CO 80202 Telephone: (303) 892-9400 Facsimile: (303) 893-1379 E-mail: [email protected] [email protected]