By the Order and Final Judgment entered on March 17, 2006, signed by United States District Judge Phillip S. Figa, the Court grants the final approval of the Proposed Settlement. Further, it was ordered that all plaintiffs' claims, both direct and derivative, asserted in the Third Amended Complaint or any other pleadings or papers in the litigation are hereby dismissed with prejudice, each party to bear his, her or its own legal fees, costs and expenses incurred during the litigation of this action. As the remaining claims between plaintiffs and Defendants Hilliard Lyons, Anderson and Rogers are being resolved in arbitration (see Dkt. # 148), the Clerk of the Court is directed to administratively close this case subject to reopening only upon a showing of good cause by an arbitrating party.
On December 23, 2005, a motion to approve settlement of the derivative claims against certain defendants was filed. According to the motion, a Settlement Conference was convened before Magistrate Judge Patricia Coan on December 5, 2005. During the Settlement Conference, Plaintiffs and the Settling Defendants agreed to resolve the Direct Claims and Derivative Claims against the Settling Defendants, as well as the claims asserted by WebAccess against Prentice in the State Court Action, subject to Court approval, on the following terms (hereinafter described as “the Proposed Settlement”): Defendant Prentice has agreed to pay WebAccess the sum of $50,000.00 in full satisfaction of WebAccess's claim against him in the State Court Action and in full satisfaction of the Derivative Claims against the Settling Defendants, contingent upon this Court's approval of the Proposed Settlement. The Derivative Claims are to be dismissed with prejudice as to the Settling Defendants. The Proposed Settlement does not cover the claims against the Hilliard Lyons Defendants.
Plaintiffs originally filed this action in the District Court of the City and County of Denver on July 11, 2003 as a purported class action and shareholder derivative suit. The case was removed to federal court on August 8, 2003. Following removal, Plaintiffs amended their complaint several times, culminating with their Third Amended Complaint filed on or about January 12, 2004. On February 11, 2004, the Defendants filed motions to dismiss the action. On March 16, 2005, the Court entered the Order granting in part and denying in part the defendants’ motion to dismiss the Third Amended Complaint. The motion was granted as to Claims 1, 4 and 5, and those claims were dismissed. The motion was denied as to claims 2, 3, 5, 7 and 8. Those claims remain in the case. On October 19, 2005, the Court denied Plaintiffs’ motion for class certification.
The complaint asserts that the investments in WebAccess were securities required to be registered under federal and state law, but that defendants failed to so register them. The complaint also asserts that the sales of
WebAccess common stock and preferred stock were accomplished by the use of false and/or misleading statements. The complaint also alleges that the defendants violated federal and state civil racketeering statutes, and asserts claims of breach of fiduciary duty/constructive fraud, and negligent misrepresentation.