Order Granting Final Approval of Proposed Class Action Settlement

Case 1:07-cv-02298-TCB Document 227 Filed 11/09/11 Page 4 of 16WHEREAS, on November 9, 2011, following notice to all parties andnotice to the Class, a hearing (the "Settlement Fairness Hearing" or the "Hearing")was held before this Court to consider, pursuant to Rules 23(e), 23(h), 54(b) and54(d) of the Federal Rules of Civil Procedure, inter aUa: (I) whether the terms andconditions of the Settlement embodied in the Stipulation are fair, reasonable andadequate for the settlement of all claims asserted by the Class in the Action nowpending in this Court under the above caption, including the release and bar ordersin favor of the Released Persons, and should be approved; (2) whether judgmentshould be entered dismissing the Complaint on the merits and with prejudice asagainst the Defendants and as against all persons who are members of the Classwho have not requested exclusion; (3) whether to approve the Plan of Allocation asa fair and reasonable method to allocate the Settlement proceeds among themembers of the Class; (4) whether and in what amount to award PlaintiffsCounsel attorneys' fees and to reimburse their costs and expenses; and (5) whetherand in what amount to reimburse Lead Plaintiff Robert Brown for his costs andexpenses;WHEREAS, the Court having considered all matters submitted to it at theSettlement Fairness Hearing and otherwise; (1) and it appearing that the Notice of4

Case 1:07-cv-02298-TCB Document 227 Filed 11/09/11 Page 5 of 16the Settlement Fairness Hearing, substantially in the form approved by the Courtwas mailed to all persons reasonably identifiable who purchased the public1yregisteredcommon stock of NetBank during the Class Period, and were damagedthereby; (2) and it appearing that a Summary Notice of the Hearing substantially inthe form approved by the Court was published in Investor's Business Daily, TheAtlanta Journal-Constitution and over PR Newswire pursuant to the specificationsof the Court; (3) and it appearing that the Printed Notice and Summary Noticewere posted to the web sites of Plaintiffs Counsel and the Court-appointed ClaimsAdministrator, Heffler, Radetich & Saitta LLP ("Claims Administrator") for theSettlement; (4) and it appearing that the Settlement is fair, adequate andreasonable; (5) the fairness and reasonableness of the award of attorneys' fees andreimbursement of costs and expenses; and (6) whether the reimbursement for LeadPlaintiff Robert A. Brown's costs and expenses is fair and reasonable;WHEREAS, all defined/capitalized terms contained in this Order shall havethe same meanings as set forth in the Stipulation; andWHEREAS, due and adequate notice having been given to the Class, asrequired in said Preliminary Approval Order, the Court having considered allpapers filed and proceedings had herein, and otherwise being fully informed in the5

Case 1:07-cv-02298-TCB Document 227 Filed 11/09/11 Page 6 of 16premises and good cause appearing,IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:1. The Court has jurisdiction over the subject matter of the Action, theLead Plaintiff and the Defendants.2. Notice of the pendency of this Action as a class action, the Notice andthe Summary Notice of the proposed Settlement of this Action and of theNovember 9, 2011 Hearing on the Settlement Approval Motion were given to allClass members who could be identified with reasonable effort. The form andmethod of notifying the Class of the pendency of the Action as a class action andof the terms and conditions of the proposed Settlement met the requirements ofFed.R.Civ.P. 23, Section 21D(a)(7) of the Securities Exchange Act of 1934, 15U.S.C. § 78u-4(a)(7), due process, and any other applicable law, constituted thebest notice practicable under the circumstances, and constituted due and sufficientnotice to all persons entitled such notice.3. As set forth in the Declaration of Michael Dell' Angelo ConfirmingDissemination of Notice of Proposed Settlement to Class Members, see Dkt. 220,filed October 19, 2011, Plaintiffs Lead Counsel complied andlor directedcompliance with the requirements of paragraphs 4(a), 4(b) and 4(c) of the6

Case 1:07-cv-02298-TCB Document 227 Filed 11/09/11 Page 7 of 16Preliminary Approval Order, in disseminating notice of the proposed Class. Thisnotice program included the mailing of a total of 18,130 copies of the PrintedNotice to members of the Class who could be identified by reasonable effort, thepublication of a Summary Notice in Investor's Business Daily and The AtlantaJournal-Constitution, and electronically via PR Newswire, and the posting of thePrinted Notice and Summary Notice on the websites of Plaintiff's Counsel and theClaims Administrator. The Court-approved Printed Notice described, inter alia, thebackground and history of this Action; the terms of the Settlement, the Plan ofAllocation, and the Parties' releases; the time, date and place of the SettlementFairness Hearing; the rights of Class members, including how to object to or optoutof the Settlement; and how to obtain further information.4. The Court finds that the form and method of notice utilized in thiscase was "reasonably calculated, under all the circumstances, to apprise interestedparties of the pendency of the action and afford them an opportunity to presenttheir objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,314 (1950). Accord Carpenters Health & Welfare Fund v. Coca-Cola Co., No.1:00-cv-2838-WBH, 2008 U.S. Dist. LEXIS 121093, at *25 (N.D. Ga. Oct. 20,2008) ("The dissemination of the Notice package by first-class mail to all7

Case 1:07-cv-02298-TCB Document 227 Filed 11/09/11 Page 10 of 16Dist. LEXIS 48278, at *30-31 (N.D. Ga. June 12, 2007) (Batten, J.) (holding that"[ a ]ny settlement typically offers far less than a full recovery").b. The range of possible recovery. A determination of areasonable settlement is not susceptible to a precise equation yielding a particularsum. Instead, as the Eleventh Circuit has recognized, "a just result is often no morethan an arbitrary point between competing notions of reasonableness." Bennett v.Behring Corp., 737 F.2d at 987 (citation omitted). Thus, the Court need onlydetermine whether the proposed Settlement falls within the "range of possiblerecovery." In re Corrugated Container Antitrust Litig., 643 F.2d 195,212 (5th Cir.1981); Behrens v. Wometco Enters., 118 F.R.D. 534, 541 (S.D. Fla. 1988), ajJ'd,899 F.2d 21 (11th Cir. 1990). The Settlement here is not only a reasonable, but acommendable, recovery for the Class. As set forth in the Dell' Angelo Declarationfiled in support of final approval, the Settlement provides a total recovery of $12.5million in circumstances where the total alleged damages were calculated byPlaintiff's Counsel to be approximately $35.7 million, a recovery of more than35% of those alleged damages. This percentage substantially exceeds thepercentage of estimated damages recovered in comparable securities fraud classactions.10

Case 1:07-cv-02298-TCB Document 227 Filed 11/09/11 Page 14 of 16member of the Class objected to any aspect of the Settlement, the Plan ofAllocation, or to the request for an award to Plaintiffs Counsel for attorneys' feesand reimbursement of costs and expenses, or to the request for the reimbursementof Lead Plaintiffs costs and expenses. Only five persons have purported to excludethemselves from the Settlement; those persons, to the extent that they weremembers of the Class, are hereby excluded. 2 In addition, and according to hisDeclaration filed in support of the Settlement, Lead Plaintiff approved theSettlement and supports the request for final Court approvaL Accord Hillis v.Equifax: Consumer Servs., 2007 U.S. Dist. LEXIS 48278, at *29.f. The stage ofproceedings at which the settlement was achieved.The Action was settled only "after a full evidentiary record had been developed."Hillis v. Equifax Consumer Servs., 2007 U.S. Dist. LEXIS 48278, at *9, 50 ("TheSettlement is a good result for the Class after development of a complete record,and it brings this difficult litigation to an end."). As a result, Plaintiffs Counseldeveloped a clear view of the legal and factual issues of this case, and had anample basis to negotiate the best possible result for the Class in the circumstances.2 A list of the excluded persons is attached as Exhibit A to this Order; copies oftheir requests for exclusion were previously filed as Exhibit C to the Affidavit ofRonald A. Bertino, C.P.A. Confirming Dissemination of Notice of ProposedSettlement to Class Members (Dkt. No. 220-1).14

Case 1:07-cv-02298-TCB Document 227 Filed 11/09/11 Page 15 of 16Given access of Plaintiffs Counsel to information and their extensiveinvestigation, "the trial court may legitimately presume that counsel's judgment'that they had achieved the desired quantum of information necessary to achieve asettlement' is reliable." In re Corrugated Container, 643 F.2d at 211 (citationomitted).8. Pursuant to Fed.R.Civ.P. 23, this Court hereby approves theSettlement set forth in the Stipulation and the Exhibits to the Stipulation and findsthat the Settlement is, in all respects, fair, reasonable and adequate to, and is in thebest interests of the Lead Plaintiff, the Class and each of the Class members.Accordingly, the Settlement is hereby approved in all respects and shall beconsummated in accordance with its terms and provisions. The settling Parties arehereby directed to perform the terms of the Stipulation.9. Without affecting the finality of this Order or the Order and FinalJudgment in any way, this Court hereby retains continuing jurisdiction over: (a)implementation of the Stipulation and of the Settlement and any award ordistribution of the Settlement Fund, including interest earned thereon; (b) allproceedings with respect to the administration, processing and determination ofclaims described in the Settlement, including disposition of the Settlement Fund,15

Case 1:07-cv-02298-TCB Document 227 Filed 11/09/11 Page 16 of 16and the determination of all controversies relating thereto, including disputedquestions of law and fact with respect to the validity of claims; (c) hearing anddetermining applications for attorneys' fees, interest and expenses in the Action;(d) any reimbursement of expenses and/or reimbursement to the Lead Plaintiff; (e)enforcing any equitable relief included within the Order and Final Judgment; and(f) all matters relating to the construction, enforcement and administration of theStipulation, the Settlement, the Plan of Allocation and the Order and FinalJudgment.10. Without further order of the Court, the Settling Parties may agree toreasonable extensions of time to carry out any of the provisions of the Stipulationand the Settlement, including the Plan of Allocation or the processing of Proof ofClaim and Release forms.IT IS SO ORDERED.Dated: --I(f-LI'L-tt~._,,__. , - ~'fIII'II"~THE NORABLE TIMOTHY C. BATTEN, SR.UNITED STATES DISTRICT JUDGE16