Joint Declaration of Stickney and Kessler in Support of Motion for ...

Case 1:09-md-02017-LAK Document 807 Filed 03/08/12 Page 42 of 63
well as their respective current and former trustees, officers, directors, principals, predecessors,
successors, assigns, attorneys, parents, affiliates, employers, employees, agents, and subsidiaries.
83. As part of the agreement with all of the Settling Underwriter Defendants, Lead
Plaintiffs obtained the right to withdraw from the proposed Underwriter Settlement at any time
prior to filing their motion for final approval of the proposed Underwriter Settlement if, in their
good faith discretion, Lead Plaintiffs determine that the proposed Underwriter Settlement is
unfair, unreasonable and/or inadequate based upon information obtained prior to moving for
final approval. For the reasons set forth herein and in the memorandum in support of the motion
for final approval of the Settlements, Lead Plaintiffs have determined that the Underwriter
Settlement is fair, reasonable and adequate in all respects.
3. Reasons For The Settlement With
The Settling Underwriter Defendants
84. The Securities Act claims against the Underwriter Defendants arise from twelve
of Lehman’s debt and equity offerings between July 2007 and May 2008. Lehman itself
underwrote most of each offering. Of the approximate $20.2 billion sold in the twelve offerings
that are the subject of the Securities Act claims in this Action, Lehman underwrote
approximately 83% of the securities offered. The Underwriter Defendants underwrote
approximately $3.5 billion. According to 15 U.S.C. § 77k(e), “In no event shall any
underwriter . . . be liable in any suit or as a consequence of suits authorized under [§ 11(a)] for
damages in excess of the total price at which the securities underwritten by him and distributed
to the public were offered to the public.” The Underwriter Defendants, therefore, contended
throughout that their liability would be statutorily limited to the amounts that each underwrote.
85. Lead Counsel engaged a consultant to assist in estimating potentially recoverable
damages. This estimate, before taking into account causation or other defenses to damages,
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