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IN RE CHAMBERS DEV. SECS. LITIG.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


May 30, 1995

IN RE: CHAMBERS DEVELOPMENT SECURITIES LITIGATION; This Document Relates to: THE DERIVATIVE ACTION at Civil Action No. 92-1081

The opinion of the court was delivered by: LEE

FINAL ORDER AND JUDGMENT

 The Derivative Complaint (the "Complaint") in the Derivative Action was filed on April 14, 1992, by plaintiffs David M. Yeager and Sally Yeager ("Derivative Plaintiffs") against Defendants John G. Rangos, Sr.; John G. Rangos, Jr.; Alexander W. Rangos; Joseph G. Stotlemyer; Michael J. Peretto; Estate of Hugh Scott; William E. Moffett; John M. Arthur (collectively, "Chambers Defendants"); Richard A. Knight; Grant Thornton LLP ("Grant"); and, nominal defendant Chambers Development Company, Inc. ("Chambers").

 On February 24, 1995, Derivative Plaintiffs, Chambers Defendants and Chambers entered into a Derivative Action Stipulation and Settlement Agreement ("Chambers Defendants Derivative Settlement Agreement"). On March 17, 1995, Derivative Plaintiffs and Grant entered into a Derivative Action Stipulation and Settlement Agreement (the "Grant Thornton Derivative Settlement Agreement"). These two settlement agreements are referred to herein collectively as the "Settlement Agreements" and the settlements reached thereby are referred to herein collectively as "this Settlement."

 On March 22, 1995, this Court entered an Order scheduling a hearing with respect to this Settlement ("Settlement Hearing") and requiring that Notice of that hearing be given to all shareholders of record as of March 17, 1995 ("Shareholders").

 On May 17, 1995, with the consent of counsel for all parties, the plaintiffs in a certain derivative action pending at No. G.D. 93-3942 in the Court of Common Pleas of Allegheny County, Pennsylvania, and the plaintiffs in certain derivative actions consolidated and pending at Civil Action No. 12508 in the Court of Chancery of the State of Delaware in and for New Castle County, sought leave to intervene in the Derivative Action to join in and support the Settlement Agreements, and said motion has been granted by this Court.

 The Settlement Hearing was held on May 19, 1995. Prior to the Settlement Hearing, proof of Notice to the Shareholders, as directed in the order scheduling the Settlement Hearing, was presented and filed. The Shareholders were given the opportunity to file objections and were also notified of their right to appear at the Settlement Hearing in support of, or in opposition to, the Settlement Agreements.

 Capitalized terms used but not otherwise defined in this Order shall have the meanings ascribed to them in the Settlement Agreements.

 The Court, having heard counsel on behalf of the parties and having reviewed the submissions presented with respect to the Settlement Agreements, and having determined that the Settlement Agreements are fair, adequate and reasonable to Chambers and were entered into in good faith, and good cause appearing therefor, it is hereby

 NOW, THEREFORE, this 30th day of May, 1995, it is ordered that:

 1. The Settlement Agreements are in all respects fair, adequate, reasonable and proper and in the best interests of Chambers and were entered into in good faith, and the Settlement Agreements are hereby both finally approved.

 2. Notice to the Shareholders has been given in an adequate and sufficient manner.

 3. This Court finds, for purposes of this Settlement, as stipulated by the parties, that Derivative Plaintiffs and the plaintiffs that have intervened in the Derivative Action are adequate representatives to prosecute the Derivative Action, that their counsel are competent for such purposes, and that the Claims in the Derivative Action are properly brought on behalf of Chambers under Rule 23.1 of the Federal Rules of Civil Procedure.

 4. Derivative Plaintiffs, Chambers Defendants, Grant and Chambers shall consummate and fulfill their respective obligations under the Settlement Agreements in accordance with the terms of each thereof.

 5. The Derivative Action is dismissed on the merits and with prejudice as to all defendants, without costs to any party.

 6. Derivative Plaintiffs and the plaintiffs that have intervened in the Derivative Action, Chambers and Chambers' present and former shareholders are permanently barred and enjoined from instituting, maintaining, prosecuting or enforcing any other or further proceedings, whether brought directly, representatively, derivatively or in any other capacity, against the Chambers Defendants, Grant or any other Releasee consisting of, based on, arising from or related to any Claims; provided, however, that this order will not prevent Chambers or any of its officers, directors or employees from asserting any claim for set-off or counterclaim against defendant Richard A. Knight or any other Chambers' Releasee who is not a Settling Defendant, in the event that they, or any of them, assert any claim or cause of action of any kind whatsoever against Chambers or any of its officers, directors or employees. "Chambers' Releasee" as used in this paragraph 6 means Chambers, Chambers' present and former officers, directors, agents, employees, attorneys, consultants, representatives, affiliates, subsidiaries, successors and assigns and the individual Chambers Defendants' heirs, administrators and executors.

 7. All Non-Settling Persons (as defined below) and future defendants and third-party defendants are permanently barred and enjoined forever from filing or maintaining any and all Claims-Over in the nature of contribution or indemnity against the Chambers Defendants, Grant or any other Releasee. A "Non-Settling Person" is (a) any defendant that is or becomes a non-settling defendant because he or it is not a party to a settlement, or the settlement to which he or it is a party is either terminated or otherwise does not become finally effective, or (b) any other person or entity that asserts any Claims-Over against the Chambers Defendants, Grant or any other Releasee. This injunction and bar order applies to any form of action or attempted action, including without limitation, any claim by way of third-party or subsequent party complaint, collateral action, cross-claim, separate action or otherwise; provided, however, that this injunction and bar order: (a) shall not be construed to extend to claims in the nature of contribution or indemnity that are asserted in (i) the litigation styled as Option Resource Group et al v. Chambers Development Company, Civil Action No. 93-354 (W.D. Pa., filed Mar. 9, 1993), or (ii) in any litigation that is instituted by any member of the plaintiff class who or which duly excludes himself, herself or itself from that class in accordance with the procedures established by this Court; (b) shall not prevent defendant Richard A. Knight from asserting against Chambers or any of its officers, directors or employees any claim related to or arising from his employment with Chambers, including but not limited to, claims for compensation or other employee benefits; claims arising from or related to Knight's purchase and ownership of Chambers stock: and claims for retirement or pension benefits; or, (c) shall not prevent any Releasee from asserting any enforceable claim for contribution, indemnity or defense costs which is provided for in a written contract or in Chambers' bylaws or other governing corporate documents. The method for calculating judgment reduction credits available to Non-Settling Persons in the event that judgments are obtained against one or more of the Non-Settling Persons is set forth in paragraph 8 below. Any action to enforce this paragraph may be brought in this Court.

 8. The amount of any judgment otherwise obtained, derivatively on behalf of Chambers, by Derivative Plaintiffs or the plaintiffs that have intervened in the Derivative Action against any Non-Settling Persons in this or any other action in which Non-Settling persons have asserted any Claims-Over against the Chambers Defendants, Grant or any Releasee shall be reduced by the greater of:

 

(a) the total value of the settlement consideration paid by or on behalf of the Chambers Defendants and Grant under this Final Order and Judgment, exclusive of accrued interest; or

 

(b) an amount reflecting the proportionate responsibility, if any, of the Chambers Defendants and Grant as determined by the fact finder, for any judgment obtained derivatively on behalf of Chambers against any Non-Settling Persons.

 The set-off method described herein will apply for all Non-Settling Persons.

 9. With respect to any Claims-Over which are not barred pursuant to paragraph 7 of this Order, any judgment obtained, derivatively on behalf of Chambers, by Derivative Plaintiffs and the plaintiffs that have intervened in the Derivative Action against any Non-Settling Person consisting of, based on, arising from or related to any Claims, shall be automatically reduced in such manner as may be necessary to satisfy and/or extinguish any Claims-Over after all applicable appeals of such Claims-Over have been exhausted. By way of illustration, if Derivative Plaintiffs or the plaintiffs that have intervened in the Derivative Action obtain a judgment, derivatively on behalf of Chambers, against any Non-Settling Person, and that person obtains a final judgment against the Chambers Defendants, Grant or any other Releasee for any Claims-Over, then Derivative Plaintiffs and/or the plaintiffs that have intervened in the Derivative Action will automatically reduce their final judgment against such Non-Settling Person by the amount the Chambers Defendants, Grant or any other Releasee is obligated to pay under the Claims-Over. Any funds obtained by Derivative Plaintiffs or the plaintiffs that have intervened in the Derivative Action pursuant to any judgment against a Non-Settling Person, or a settlement with a Non-Steeling Person, shall be placed and retained in escrow until either such Non-Settling Person shall execute and deliver an appropriate release to the Chambers Defendants, Grant and the other Releasees, or such Claims-Over are finally determined. Such escrowed funds shall first be used to reduce any judgment from any Claims-Over before they are distributed for any other purpose. In the event that any final judgment on any Claims-Over is entered against the Chambers Defendants, Grant or any other Releasee, after all applicable appeals of such Claims-Over have been exhausted, escrow funds in an amount necessary to satisfy such judgment shall be paid to satisfy such judgment. The provisions of Rule 23.1 will apply to any settlement with a Non-Settling Person, and any such settlement shall be reduced to judgment.

 10. Chambers Defendants, through their insurance carrier, have paid TWO MILLION DOLLARS ($ 2,000,000), out of Chambers' Directors and Officers' Liability Insurance Policy, into an escrow account in accordance with paragraph 4 of the Chambers Defendants' Derivative Settlement Agreement and in accordance with the Chambers Defendants' Derivative Escrow Agreement attached as Exhibit D to the Chambers Defendants' Derivative Settlement Agreement. Grant Thornton has paid TWO HUNDRED THOUSAND DOLLARS ($ 200,000) in accordance with paragraph 3 of the Grant Thornton Derivative Settlement Agreement and in accordance with the Grant Thornton Derivative Escrow Agreement attached as Exhibit C to the Grant Thornton Derivative Settlement Agreement. These escrowed amounts shall be maintained, managed and disbursed in accordance with said escrow agreements.

 11. Chambers shall continue to implement, for a period of at least two (2) years after the Settlement Effective Date, appropriate therapeutic measures, including appointment of an outside director who is a certified public accountant as Chairman of the Audit Committee of the Board of Directors, and having the Audit Committee report to the Board at least semi-annually concerning Chambers' accounting practices, provided that this obligation shall end on the effective date of any merger of Chambers into a publicly traded corporation.

 12. Within ten (10) days after the Settlement Effective Date. Defendant John G. Rangos, Sr., shall transfer, or cause to be transferred, from Synergy Associates to Chambers that real estate owned by Synergy consisting of an approximately 7.018 acre improved site with an office building containing a gross floor space of approximately 55,319 square feet, which is currently occupied by Chambers. The property is identified as Block and Lots Nos. 369-B-361 and 369-C-314 by the Allegheny County Assessment Office and is located at 10700 Frankstown Road, Penn Hills Township, Pennsylvania, and is described in an appraisal dated October 31, 1994, previously provided by Derivative Plaintiffs' counsel in these proceedings. The conveyance of said property is subject to the encumbrances described in that appraisal, including the balance due on the mortgage on said property held by the Allegheny County Industrial Development Authority, which as of March 17, 1995, was $ 1,960,000, which shall be assumed or discharged by Chambers.

 13. Defendant John G. Rangos, Sr., shall provide a FIFTEEN MILLION DOLLAR ($ 15,000,000) personal guarantee in the form attached as Exhibit 13 to the Chambers Defendants' Derivative Settlement Agreement to be issued by Defendant John G. Rangos, Sr., with respect to payments to be made to settle the Securities Class Action in accordance with the terms of the Class Action Stipulation and Agreement of Compromise and Settlement concerning the Chambers Defendants.

 14. Nothing herein will divert Chambers and its Board of Directors of their rights and duties under applicable law.

 15. Without affecting the finality of this judgment, this Court shall retain jurisdiction over the Settlement Agreements and the parties thereto as to the matters related to the administration and consummation of this Settlement hereby approved and for payment of fees to plaintiffs' counsel.

 16. In the event the Chambers Defendants Derivative Settlement Agreement does not become effective in accordance with the terms hereof, this Final Order and Judgement shall be entered null and void and be vacated as to the parties and terms contained in the Chambers Defendants' Derivative Settlement Agreement, and the Chambers Defendants' Derivative Settlement Agreement and all orders entered in connection therewith (except for any bar order covering Grant and any other Releasee (as defined in the Grant Thornton Derivative Settlement Agreement)) shall be rendered null and void. This Final Order and Judgment as to Grant the Grant Thornton derivative Settlement Agreement and all orders entered in connection therewith are final and unconditional with respect to Grant.

 17. The Settlement Agreements are not an admission of the validity of any actions or claims which arise out of directly or indirectly or are in any way connected with the facts, circumstances, transactions or occurrences described in the Derivative Action or of any wrongdoing or violation of law. The Settlement Agreements are not a concession by the defendants and shall not be used as an admission of any fault by any party. The Settlement Agreements and any and all related documents shall not be offered or received in evidence in any civil, criminal or administrative action or proceeding other than such proceedings as may be necessary to consummate or enforce this Settlement.

 18. This Court finds that there is no just reason for delay in entry of a final judgment and this Order shall constitute a final judgment in accordance with Rule 54(b) of the Federal Rules of Civil Procedure.

 Donald J. Lee

 United States District Judge

19950530

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