Preview:

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND ------------------------------------------------------------x Civil No.: 1:03-MD-01539 IN RE ROYAL AHOLD N.V. SECURITIES & ERISA LITIGATION ALL SECURITIES ACTIONS -----------------------------------------------------------x ORDER CERTIFYING CLASS FOR PURPOSES OF SETTLEMENT, PRELIMINARILY APPROVING SETTLEMENT AND PROPOSED PLAN OF ALLOCATION, APPROVING FORM AND PLAN OF NOTICE, APPROVING THE NOTICE ADMINISTRATOR AND CLAIMS ADMINISTRATOR, AND SCHEDULING A SETTLEMENT FAIRNESS HEARING

WHEREAS: A. On November 27, 2005, the Public Employees' Retirement Association of

Colorado ("COPERA") and Generic Trading of Philadelphia, LLC ("Generic Trading") (together, "Lead Plaintiffs"), on behalf of themselves and all persons and entities that purchased and/or received as a dividend Royal Ahold N.V. ("Ahold") common stock and/or American Depository Receipts ("ADRs") during the period from July 30, 1999 through February 23, 2003 (the "Class Period"), regardless of where they live or purchased their Ahold shares (the "Class" or the "Class Members"), and Ahold, on behalf of itself and the other Specified Defendants (as defined herein), entered into a settlement (the "Settlement") of the claims asserted in the abovecaptioned action (the "Action"), the terms of which are set forth in a November 27, 2005 Settlement Agreement (the "Agreement") and certain amendments thereto as discussed and agreed upon in Court on January 6, 2006, which will be reflected in an Amended Settlement Agreement (the "Amended Agreement"). B. The Settlement provides that Ahold will make a cash payment of $1,100,000,000

(the "Settlement Fund") to pay the claims of Class Members, as well as attorneys' fees, costs, and expenses, in exchange for a full, complete and final settlement of all claims which have 1

been, might have been, are now or could be asserted against the following defendants in the Action (the "Specified Defendants"): Ahold (as defined in the Amended Agreement): Ahold USA, Inc.; Ahold USA Holdings, Inc.; U.S. Foodservice, Inc.; Cees Van der Hoeven; Michiel Meurs; Henny de Ruiter; Cor Boonstra; James L. Miller; Mark Kaiser; Michael Resnick; Tim Lee; Robert G. Tobin; William J. Grize; Roland Fahlin; Jan G. Andreae; ABN AMRO Rothschild; ABN AMRO Holding N.V.; ABN AMRO Bank N.V.; The Goldman Sachs Group, Inc.; Goldman Sachs International; Goldman, Sachs & Co.; Merrill Lynch, Pierce, Fenner & Smith Inc.; Merrill Lynch & Co., Inc.; Merrill Lynch International; ING Bank; ING Groep N.V.; ING Bank N.V.; ING U.S. Financial Services; Rabo Securities N.V.; Rabobank International; Rabobank Nederland; Robeco Group; Rabobank; Kempen & Co. N.V.; Kempen & Co. Corporate Finance; Kempen & Co. Securities; and any other party that could have been named as a defendant in the Action, except Deloitte & Touche Accountants and Deloitte & Touche LLP (together, "Deloitte") and each and all of the Specified Defendants' immediate families, parent entities, associates, joint ventures, affiliates or subsidiaries, and each and all of their respective past or present officers, directors, certificate holders, shareholders, representatives, employees, employers, attorneys, financial or investment advisors, consultants, accountants, insurers, advisors or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates, administrators, predecessors, successors and assigns, and any of their respective employees, agents, affiliates, or controlling persons, other than Deloitte. C. Pursuant to the Agreement, the Settlement Fund and the interest earned thereon

shall be the Gross Settlement Fund. Ahold will finance the Settlement Fund in two installments: (i) two thirds of the Settlement amount ($733,333,333) will be funded into escrow within three business days following preliminary approval of the Settlement; and (ii) the remaining one third ($366,666,667) will be funded into escrow within six months following final Court approval of the Settlement. Any interest earned on the amounts deposited as part of the Gross Settlement Fund shall become and remain part of the Gross Settlement Fund. The Gross Settlement Fund, less all taxes, approved costs, attorneys' fees and expenses, and amounts, if any, paid to Royal Ahold pursuant to paragraph 23 of the Agreement (the "Net Settlement Fund"), shall be distributed to members of the Class who submit valid and acceptable Proof of Claim and Waiver and Release Forms, as described herein ("Authorized Claimants").

2

D.

Lead Plaintiffs, on behalf of themselves and the Class, and Ahold, on behalf of

itself and the other Specified Defendants, have requested an Order pursuant to Fed. R. Civ. P. 23: (i) certifying the Class defined herein under Fed. R. Civ. P. 23(a) and (b)(3) for the purposes of the Settlement; (ii) preliminarily approving the Settlement pursuant to the terms and conditions of the Agreement; (iii) preliminarily approving the proposed Plan of Allocation; (iv) approving the proposed form of Notice and Notice Plan; (v) approving the proposed Notice Administrator and proposed Claims Administrator; and (vi) scheduling a hearing to consider whether to grant final approval of the Settlement and Lead Counsel's request for an award of attorneys' fees, costs, and expenses (the "Settlement Fairness Hearing"); and E. This Court having read and considered: (i) the Agreement; (ii) the proposed

Notice of Settlement of Class Action (the "Notice") and the Plan for the Dissemination of Worldwide Notice (the "Notice Plan"); (iii) the proposed Plan of Allocation; (iv) the proposed Proof of Claim and Waiver and Release (the "Proof of Claim"); (iv) the [Proposed] Final Judgment and Order of Dismissal (the "Judgment"); and (v) the pleadings and records on file, including Lead Plaintiffs' Motion for Class Certification, Appointment of Class Representatives and Appointment of Class Counsel (Docket No. 585) and all submissions related thereto, and finding that substantial and sufficient grounds exist for entering this Order; NOW, THEREFORE, IT IS HEREBY ORDERED: 1. To the extent not otherwise defined herein, all capitalized terms shall have the

meanings attributed to them in the Amended Agreement. 2. The Court has jurisdiction over the subject matter of this Action and over all

parties to the Action, including all Class Members and all Defendants. 3. Pursuant to Fed. R. Civ. P. 23(a) and (b)(3), and for the purposes of the

Settlement only, this action is hereby certified as a class action on behalf of the following Class: 3

All persons and entities who purchased and/or received as a dividend Royal Ahold N.V. common shares and/or American Depository Receipts from July 30, 1999 through February 23, 2003, regardless of where they live or where they purchased their Ahold shares. Excluded from the Class are: Royal Ahold N.V.; Ahold USA, Inc.; Ahold USA Holdings, Inc.; U.S. Foodservice, Inc.; Cees Van der Hoeven; Michiel Meurs; Henny de Ruiter; Cor Boonstra; James L. Miller; Mark Kaiser; Michael Resnick; Tim Lee; Robert G. Tobin; William J. Grize; Roland Fahlin; Jan G. Andreae; ABN AMRO Rothschild; ABN AMRO Holding, N.V.; ABN AMRO Bank N.V.; The Goldman Sachs Group, Inc.; Goldman Sachs International; Goldman, Sachs & Co.; Merrill Lynch & Co.; Inc., Merrill Lynch International; Merrill Lynch, Pierce, Fenner & Smith Inc.; ING Bank; ING Groep N.V.; ING Bank N.V.; ING U.S. Financial Services; Rabo Securities N.V.; Rabobank International; Rabobank Nederland; Rabobank; Robeco Group; Kempen & Co.; N.V.; Kempen & Co. Corporate Finance; Kempen & Co. Securities; Deloitte & Touche LLP; and Deloitte & Touche Accountants (the "Original Defendants"). 4. Solely for the purposes of the Settlement, the Court finds that the prerequisites for

a class action under Fed. R. Civ. P. 23(a) and (b)(3) have been satisfied in that: (i) the Class Members are so numerous that joinder of all Class Members is impracticable; (ii) there are questions of law and fact common to the Members of the Class; (iii) the claims of the Lead Plaintiffs and the other Proposed Class Representatives are typical of the claims of the Members of the Class; (iv) Lead Plaintiffs and the other Proposed Class Representatives will fairly and adequately represent the interests of the Class; (v) the questions of law and fact common to the members of the Class predominate over any questions affecting only individual Class Members; and (vi) certifying the Class in this Action is superior to other available methods for the fair and efficient adjudication of the controversy. 5. Pursuant to Fed. R. Civ. P. 23, the Court appoints: Lead Plaintiff COPERA as a

class representative for all purposes; Lead Plaintiff Generic Trading as a class representative for ADR purchasers; Itzehoer Aktien Club GbR ("IAC") as an additional class representative for non-United States domiciled members of the Class; Union Asset Management Holding AG 4

("Union") as an additional class representative for Class Members who purchased shares in the September 2001 Global Offering; and Deka Investment GmbH ("Deka") as an additional class representative for Class Members who purchased shares in the September 2001 Global Offering (collectively, the "Class Representatives"), as representatives of the Class for the purposes of the Settlement. Pursuant to Rule 23(g), the Court appoints Entwistle & Cappucci, LLP as counsel for the class ("Class Counsel"). Notice of this Order certifying the Class for the purposes of the Settlement shall be provided to all members of the Class, as detailed below. 6. The Settlement documented in the Agreement is hereby PRELIMINARILY

APPROVED as appearing on its face to be fair, adequate and reasonable; to have been entered into in good faith, and at arms' length; and to fall well within the range of possible final approval. 7. The Plan of Allocation of the Net Settlement Fund attached hereto as Exhibit A is

hereby PRELIMINARILY APPROVED as appearing on its face to be fair, adequate and reasonable. 8. The Court hereby APPROVES: (i) the form of the Notice; (ii) the form of

Summary Notice for publication ("Summary Notice"); and (iii) the form of Proof of Claim, which are attached to this Order as Exhibits B, C, and D. The Court further APPROVES the proposed Notice Plan, as set forth in the Affidavit of Todd B. Hilsee On International Settlement Notice Plan, dated December 19, 2005 (Docket No. 684). The Court finds that the form of Notice, the form of Summary Notice, and the Notice Plan satisfy the requirements of Fed. R. Civ. P. 23, due process, constitute the best notice practicable under the circumstances, and shall constitute due and sufficient notice to all members of the Class. 9. The Court APPROVES Lead Plaintiffs' selection of Hilsoft Notifications, d/b/a

Hilsoft, Inc. ("Hilsoft"), who designed the form of Notice, the Form of Summary Notice, as well 5

as the Notice Plan, to serve as the notice administrator (the "Notice Administrator") for the purposes of, among other things, translating the Notice and Summary Notice and other documents, placing the Summary Notice in appropriate media vehicles, and providing analyses of the overall effectiveness of the Notice Plan to the Court. In effectuating the Notice Plan, the Claims Administrator (defined below) shall coordinate its efforts with Todd Hilsee and other members of Hilsoft. 10. The Court APPROVES Lead Plaintiffs' selection of The Garden City Group, Inc.

to serve as claims administrator (the "Claims Administrator") for the purposes of, among other things, effectuating the individual Mailed Notice (defined below) and website aspects of the Notice Plan, processing Proof of Claim forms, and distributing payments to Class Members from the Net Settlement Fund. 11. In substantially the same form as approved pursuant to this Order, the Notice

(describing, among other things, the Settlement, Class Counsel's application for an award of attorneys' fees, costs, and expenses, and the Settlement Fairness Hearing, together with a cover page summarizing the information required by the Private Securities Litigation Reform Act of 1995 (the "PSLRA"), 15 U.S.C.

Download Royal-Ahold-Order-Certifying-Class-for-Settlement-and-Exhibits.pdf

Maryland Law