# Petition for Writ of Certiorari — Harry & Jeanette Weinberg Foundation Inc. v. Croyden Associates, 113 S. Ct. 1251 (1993) (No. 92-613) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1428%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 ## Text No. \7OGAG2 OF Bia AlAs | In The Supreme Court of the United States October Term, 1992 ¢ THE HARRY AND JEANETTE WEINBERG FOUNDATION INCORPORATED, a Maryland corporation, Petitioner, CROYDEN ASSOCIATES; and SERVICE AMERICA CORPORATION, a Delaware corporation, Respondents. ¢ Petition For Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit * PETITION FOR WRIT OF CERTIORARI - RosBert ARTHUR BRUNIG O’ConnNorR & HANNAN 3800 IDS Tower 80 South Eighth Street Minneapolis, Minnesota 55402 Telephone: (612) 343-1200 Counsel of Record COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTIONS PRESENTED Whether a member of a conditionally certified class who enters a timely appearance in response to a district court's first notice and who objects to certification of and participation in a non-opt-out class, to the adequacy of the class representative and to the terms of a proposed settlement, but who does not move to intervene, lacks “standing” to appeal from a judgment certifying the class on a non-opt-out basis and approving the settlement. Whether an appeal by an unnamed class member whose intervention in an action under 28 U.S.C. § 1332 is precluded by 28 U.S.C. § 1367(b) because the class mem- ber’s intervention would have destroyed “complete diversity” may be dismissed for lack of “standing” because the class member did not move to intervene. ii PARTIES BELOW The parties to the proceedings in the United States Court of Appeals for the Eighth Circuit included Alleco Inc. in addition to the parties whose names appear in the caption.! Service America Corporation is a wholly-owned sub- sidiary of Servam Corporation. 1 The Eighth Circuit stayed the proceedings as to Alleco Inc. because Alleco Inc. had “sought protection under Chapter 11 of the Bankruptcy Act.” Croyden Assoc. v. Alleco Inc., 969 F.2d 675, 677 (8th Cir. 1992). The proceedings there remain subject to the “automatic stay,” and the Eighth Circuit has not filed an Opinion or entered a judgment as to Alleco Inc. ill TABLE OF CONTENTS Page OE eg 1 i ne Sin ven vk a Ged ule cabo kant ii es 5 > iii Ee tae as |) iv PETITION FOR WRIT OF CERTIORARI............ 1 pa rn as ei 2 aE ee a 2 8 > ea 3 merece GOP Fhte CASE... ccc cca n esas 4 REASONS FOR ISSUING THE WRIT — I. The Eighth Circuit’s Decision Is In Conflict With Decisions Of Other Courts Of Appeals. ...... 8 Il. The Eighth Circuit’s Decision So Far Departed From The Accepted And Usual Course Of Judi- cial Proceedings As To Call For An Exercise Of This Court’s Power of Supervision. .......... 14 Ill. The Eight Circuit Decided A Question Concerning The Federal Court’s “Supplemental Jurisdiction” Which Ought To Be Settled By This Court. ..... 19 renin cas bce sk su bei e a Nas whew 22 APPENDIX - Decision And Judgment (8th Cir. Jul. 13, ee re ce ocak sk bee Wk Cheian Pet. App. 1 Order Denying Petition For Rehearing With Sug- gestion For Rehearing En Banc (8th Cir. Aug. od ac wees a Pet. App. 13 : iV TABLE OF CONTENTS - Continued Page Excerpts From Class Action Complaint (D. Minn., ee et rere ere Pet. App. 14 Excerpts From Affidavit Of Bernard Siegel (D. iin, Tine fae. 7, TFPL) .. weve ne cvcses Pet. App. 15 Excerpts From Transcript Of Proceedings (D. ge eer, rea Pet. App. 16 Final Judgment And Order Of Dismissal (D. Minn. PU Be BR waka cee enced eet eedivuvds Pet. App. 18 i Amended Final Judgment And Order Of Dis- missal (D. Minn. Jul. 3, 1991)........... Pet. App. 24 Excerpts From Notice Of Appearance And Objec- tion To Motion For Amended Judgment (D. ts Minn., filed ful. S, THT)... 2.5 cece ccc Pet. App. 30 ee Vv TABLE OF AUTHORITIES Page CAsEs: Ace Heating & Plumbing Co. v. Crane Co., 453 oe 8 Es eg) rrr renee pute ra tt. Jt! 9 Adams v. Morton, 581 F.2d 1314 (9th Cir. 1978), cert. denied sub nom. Gros Ventre Tribe v. United States, 440 U.S. 958 (1979)................. 11 Aldinger v. Howard, 427 U.S. 1 ho, | OR io! 19 American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (BGA) oon vo ineeencecdsanidecsees eee 15, 16 Armstrong v. Board of School Directors of City of Milwaukee, 616 F.2d 305 (7th Cir. 1980)............ 9 Bender v. Williamsport Area School Dist., 475 U.S. Ne QUO ink bec ccun nse eeeayekeciasanes ee 21 Central S.C. Chapter, Soc’y of Professional Jour- nalists v. United States Dist. Ct., 551 F.2d 559 ROE CO DIFF one ck v0vn danse 11 Cohen v. Young, 127 F.2d 721 (6th Cir. et Sat 12 a Commercial Sec. Bank v. Walker Bank & Trust Co., 456 F.2d 1352 (10th Cir. 1972)................0005. 16 Croyden Assoc. v. Alleco Inc., 969 F.2d 675 (8th Cle, BORED as sexes axe eb sana bwyecuneieeereeee passim Dosier v. Miami Valley Broadcasting Corp., 656 rae Uo CR CH POs 5 ciccceecs eee 9 Finley v. United States, 490 U.S. 545 (1989).......... 19 Gendron v. Shastina Properties, Inc., 578 F.2d 1313 ee ME rnp re re, Jor st: 11 ee vi TABLE OF AUTHORITIES - Continued Page Greenfield v. Villager Indus., Inc., 483 F.2d 824 (3d Che, WSGSD aie vsncenen cde ensue eee eee 12 Grunin v. International House of Pancakes, 513 F.2d 114 (8th Cir.), cert. denied, 423 U.S. 864 (IGF SD os. 650 04dk cae vakeen eee eee chee eee ees 18 Guthrie v. Evans, 815 F.2d 626 (11th Cir. 1987)...... 13 Hansberry v. Lee, 511 U.S. So CURD). .55 xa ssesccenes 15 In re Cement Antitrust Litigation, 688 F.2d 1297 (9th Cir. 1982), aff’d sub nom. Arizona v. Ash Grove Cement Co., 459 U.S. 1190 (1983) ........... 9 In re Dennis Greenman Sec. Litigation, 829 F.2d 1559 Clith Cie 1967)... A more recent Seventh Circuit case, Bash v. Firstmark Stan- dard Life Insurance Co., 861 F.2d 159 (7th Cir. 1988), considered the appeal of three unnamed class members who objected to and appealed from a settlement. Id. at 160. Their attorney had also represented the settling plaintiff class and negotiated the court-approved settlement. Id. The thrust of the appeal is directed to counsel’s action, and standing does not seem to have been raised. On petition for rehearing, however, the court cited Guthrie, Shores and Walker, and made clear that the parties had not brought these cases to the court’s attention. Id. at 164. Because the principle of these cases had no practical conse- quences on the court’s decision, the court made no further comment on standing. Id. Pet. App. 11 unnamed class members who appealed from the court’s approval of the class action settlement. Id. at 1176. The Ninth Circuit stated that the appellants had legal rights affected by the settlement and had standing to sue. Id.é See also In re Cement Antitrust Litig., 688 F.2d 1297, 1309 (9th Cir. 1982) (court states in dicta that Rule 23 allows class member to appeal from order approving settlement to which member objects), aff'd sub nom. Arizona v. Ash Grove Cement Co., 459 U.S. 1190 (1983); Dosier v. Miami Valley Broadcasting Corp., 656 F.2d 1295, 1299 (9th Cir. 1981) (citing Research Corp., court states that dissatisfied class member could have challenged settlement by direct appeal). We have set out in some detail the reasoning articu- lated in Guthrie. We believe that Guthrie and Walker are persuasive authority and we see no decision that has pointed to a flaw in their analysis. Indeed, most of the cases advocating a contrary rule were decided before Guthrie and Walker. We believe it is particularly appropri- ate to require intervention as a condition for appeal when a class member’s challenge to the adequacy of a settle- ment is contrary to the view of all the other class mem- bers. This is such a case. We also believe that by requiring intervention as a condition of an appeal, the effect is to channel into one line of litigation all issues of the class action settlement. This will avoid the bifurcation that would result from dismissal of the appeal on a standing ® The appellees had argued that the appellants lacked standing, not because the appellants failed to intervene in the suit, but because they were not members of the plaintiff class. Marshall, 550 F.2d at 1176. Pet. App. 12 basis, followed by an independent action by the challeng- ing class member. We realize that the Weinberg Foundation could not have opted out of the class under Fed R.Civ.P. 23(b)(1) and (b)(2). We also recognize that both Guthrie and Walker refer to the right of individual nonnamed class members to file a separate suit challenging the adequacy of class representation. Walker, 858 F.2d at 1074-75; Guthrie, 815 F.2d at 628. In arguing the appeal before us, the parties seem to assume that other avenues of collateral attack were open. We express the thought that intervention to allow assertion of all objections to a class settlement, with respect to the settlement itself and adequacy of class representation, represents a preferable method of resolv- ing such differences. We need not consider whether inter- vention is necessary to assert a claim of inadequacy of class representation, and we will leave consideration of this question for another day. We dismiss the Weinberg Foundation’s appeal against Croyden Associates and Service America for lack of standing and stay further proceedings in this appeal with respect to Alleco. Pet. App. 13 No. 91-2641 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT CROYDEN ASSOCIATES, a Florida partnership, individually and on behalf of all those similarly situated, Appellee, and THE HARRY AND JEANETTE WEINBERG FOUNDATION, INCORPORATED, a Maryland corporation, Appellant, v. ALLECO INC. and SERVICE AMERICA CORPORATION, Appellee. ORDER DENYING PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC Appellant’s petition for rehearing with suggestion for rehearing en banc is denied as untimely. August 24, 1992 Pet. App. 14 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA THIRD DIVISION Civil No. 4-91-368 CROYDEN ASSOCIATES, individually and as representatives of a class of those similarly situated, Plaintiff, Vv. ALLECO INC. and SERVICE AMERICA CORPORATION, Defendants. CLASS ACTION COMPLAINT Plaintiff Croyden Associates (“Plaintiff”), individu- ally and as representative of a class of those similarly situated, for its complaint against Alleco Inc. (“Alleco”) and Service America Corporation (“Service America”) states as follows: + * * 2. Alleco, the successor to Allegheny Beverage Cor- poration, is a corporation organized and existing under the laws of the State of Maryland, with its principal place of business located at Allegheny Circle, Cheverly, Mary- land 20781. * * * 4. This Court has subject matter jurisdiction . pursuant to 28 U.S.C. § 1332 in that there is complete diversity... . 7. * * Dated: May 14, 1991. a Pet. App. 15 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA THIRD DIVISION Civil No. 4-91-368 AFFIDAVIT OF BERNARD SIEGEL Filed June 7, 1991 [Title Omitted In Printing] Bernard Siegel, being duly sworn, deposes and says: » * * 2. I am the president of The Harry and Jeanette Weinberg Foundation Incorporated, a Maryland corpora- tion (the “Foundation”). * * * I SOLEMNLY SWEAR AND AFFIRM under the pen- alties of perjury that the contents of the foregoing are true and correct. Dated: June 6, 1991. /s/ Bernard Siegel Pet. App. 16 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA THIRD DIVISION Civil No. 3-91-323 EXCERPT FROM TRANSCRIPT OF PROCEEDINGS ON JUNE 14, 1991 [Title Omitted In Printing] (p. 26) MR. BRUNIG: I represent The Harry and Jeanette Weinberg Foundation Incorporated. * * * (p. 29) Now, I’d like to look for a moment at the terms of rules — of Rule 23(b), because if we assume that 23(a) has been satisfied, it is clear that this case is most appropriately one brought under 23(b)(3), not (b)(1) or (b)(2). * * * Now, the obvious reason that counsel seeks to com- press this case into the strictures of (b)(1) and (b)(2) is that there is no opt-out under (b)(1) and (b)(2), and there would be an opt-out under (b)(3), the = where it is logically brought. * * * (p. 34) What we are saying is due process gives The Weinberg Foundation the right to pursue its right sep- arately. We’re not bound by an agreement reached by others even if they bought the same debentures. We a ‘a Pet. App. 17 ought to be allowed to pursue those and have our day in GONE 646 ed (p. 40) And at this point, at the very least, people should be given an opt-out option. Without an opt-out option, this becomes a kangaroo court, at best... . Pet. App. 18 UNITED STATES DISYRICT COURT DISTRICT OF MINNESOTA THIRD DIVISION Civil No. 3-91-323 FINAL JUDGMENT AND ORDER OF DISMISSAL Filed June 19, 1991 [Title Omitted In Printing] This matter has come before the court to determine whether there is any cause why this court should not approve the proposed settlement (the “Settlement”) set forth in the Settlement Agreement, dated as of May 24, 1991 (the “Settlement Agreement”), relating to the above- captioned action and the related action filed in this court captioned Alleco Inc., et al. v. IB] Schroder Bank & Trust Company (Civil File No. 3-87-0802) (the “Alleco Action”) now consolidated before this court. The court has consid- ered papers filed and proceedings had herein, and other- wise is fully informed in the premises, and has determined that the Settlement set forth ir the Settlement Agreement should be approved. The court hereby enters this judgment which constitutes a final adjudication of this matter on the merits. Good cause appearing therefore, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: 1. This court has jurisdiction over the subject matter of this litigation and over all parties to this litigation, including all members of the Class. This Action is hereby consolidated with the Alleco Action. arene Pet. App. 19 2. The definitions of terms set forth in the Settle- ment Agreement and in the Order certifying the action as a non-opt-out class action and approving the form of notice (the “Notice Order”) are hereby incorporated as though fully set forth in this judgment. 3. The court hereby approves the Settlement set forth in the Settlement Agreement and finds that said Settlement is, in all respects, fair, reasonable and ade- quate to the Class and within the authority of the parties. The court reaffirms its Order of May 21, 1991 certifying the Action as a class action for settlement purposes pur- suant to Rules 23(a) and 23(b)(1) and (2) of the Federal Rules of Civil Procedure. The Class, as defined in the Settlement Agreement and used herein (the “Class”), means a class consisting of the named plaintiff and all other holders of the 9 1/2% Debentures as of the date of this order and hereafter. 4. Neither this Judgment, the Settlement Agree- ment, nor the Settlement is an admission by any party of the validity of any of the claims in this Class Action or any of the claims, counterclaims or appeals in the Alleco Action or of any wrongdoing by any of them or of any violation of law. Neither this Judgment, the Settlement Agreement nor the Settlement is a concession and none shall be used as an admission of any fault or omission by any party to either the Alleco Action or the Class Action or any other person in any statement, release or written document issued, filed or made. Neither this Judgment, the Settlement Agreement, the Settlement nor any related document shall be offered or received in evidence in any civil, criminal or administrative action or proceeding Pet. App. 20 other than such proceedings as may be necessary to con- summate, enforce or demonstrate the occurrence of, this Judgment, the Settlement Agreement or the Settlement. 5. This court hereby dismisses this action on the merits and with prejudice against all persons and entities who are members of the Class” in favor of each and all of the defendants and without costs, except as agreed to by the parties. This court hereby dismisses the Alleco Action and all claims, counterclaims and appeals asserted therein with prejudice and without costs, except as agreed to by the parties. This court hereby vacates each of its prior orders in the Alleco Action including, without limitation, the order of August 16, 1989, the order of February 11, 1991, and the order of March 18, 1991. 6. All persons and entities who are members of the Class are, as of the Effective Date, hereby barred and permanently enjoined from prosecuting, commencing or continuing any and all causes of action, demands, rights, damages, liability, fees, costs or claims of any nature be whatsoever, known or unknown, suspected or unsuspected and whether or not concealed or hidden, that have been, could have been or in the future might be asserted by any member of the Class against either of the defendants, Allegheny Beverage Corporation, LP Acqui- sition Corp., Lapides Corporation and their past, present and future officers, directors, employees, agents, attor- neys, subsidiaries, affiliates, predecessors, successors and assigns, and the heirs, legal representatives and assigns 7 The judgment remains subject to the court's supplemental notice order of June 19, 1991. Pet. App. 21 of any of said persons, based in any manner upon the 9'/2% Debentures or the facts, transactions, events, occur- rences, acts, misrepresentations or omissions alleged in, arising out of or in any way related to the allegations in the Class Action or the Alleco Action, or based on, related to or arising out of the subject matter of the Class Action or the Alleco Action including, without limitation, claims to unpaid interest on the 91/2% Debentures. As of the Effective Date, Croyden Associates and all other Class members shall be conclusively deemed to have released and discharged the defendants of and from any and all such causes of action, demands, rights, damages, liability, fees, costs or claims, whether or not they have filed a Proof of Claim and Release form with the Exchange Agent; provided that this release and discharge of Alleco Inc., Allegheny Beverage Corporation, LP Acquisition Corp., Lapides Corporation and their successors and assigns (the “Alleco Releasees”), and the release of the Alleco Keleasees made in connection with the delivery of the Proof of Claim and Release Form in the form of Exhibit C to the Settlement Agreement, and any release delivered in the form of Exhibits D, E, G, M and O to the Settlement Agreement shall be null and void to the extent any holder of 9'/2% Debentures who had surrendered such 91/2% Debentures is compelled at any time to dis- gorge any portion of the case proceeds received from Alleco in the Settlement as a preferential transfer; provided further that any such holder who disgorges any such proceeds, while entitled to pursue in full any claim against the Alleco Releasees that existed prior to the Effective Date, shall hereby waive its right to recover on such claim from the Alleco Releasees in any subsequent Pet. App. 22 proceeding any amount exceeding the sum of (x) the amount of cash proceeds disgorged plus (y) interest on such amount form the date of disgorgement to the date such amount is recovered. 7. The court hereby declares that the 9'/2% Deben- tures and the Indenture shall be null and void and that the Trustee shall be discharged of any further obligations under the Indenture on the Effective Date and approves the plan of distribution of the Cash Settlement Fund and the New Securities set forth in Sections 4 and 5 of the Settlement Agreement. Holders of 9'/2% Debentures and the Trustee shall hereafter have no claims hereunder against any of the defendants jointly or individually, except claims under the Settlement or claims for recovery in the event of disgorgement of proceeds as described in the provisos of paragraph 6 hereof. 8. The Notice and Summary Notice given to the Settlement Class which set forth the principal terms of the Settlement and the other matters set forth therein, was the best notice practicable under the circumstances, including individual notice to all members of the Class who could be identified through reasonable efforts. Said notices provided due and adequate notice of these pro- ceedings and of the matters set forth therein, including the Settlement set forth in the Settlement Agreement, to all persons entitled to such notice, and said notices fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and the requirements of constitutional due process. 9. Without affecting the finality of this judgment in any way, this court hereby retains continuing jurisdiction | | Pet. App. 23 over: (a) implementation of this Settlement an [sic] any distributions to Class members pursuant to further orders of this court; (b) this action until this final judgment becomes effective and each and every act agreed to be performed by the parties has been performed pursuant to the Settlement Agreement and (c) all parties to this action for the purpose of enforcing and administering the Settle- ment Agreement. 10. In the event that the Settlement does not become effective in accordance with the terms of the Settlement Agreement, then this final judgment shall be rendered null and void and shall be vacated and, in such event, all orders entered in connection with the Class Action shall be null and void and all orders vacated pursuant to paragraph 5 hereof shall be reinstated ab initio. 11. It is expressly determined that there is no just reason for delay and the entry of this Judgment is hereby expressly directed by the court. Dated: June 19, 1992. /s/ Paul A. Magnuson United States District Court Judge CC Pet. App. 24 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA THIRD DIVISION Civil No. 3-91-323 AMENDED FINAL JUDGMENT AND ORDER OF DISMISSAL Filed July 3, 1991 [Title Omitted In Printing] THIS MATTER has come before the Court to deter- mine whether there is any cause why this Court should not approve the proposed settlement (the “Settlement”) _Set forth in the Settlement Agreement, dated as of May 24, 1991, as amended by the First Amendment to the Settlement Agreement dated as of July 1, 1991 (the “Set- tlement Agreement”), relating to the above-captioned action and the related action filed in this Court captioned Alleco Inc., et al. v. IBJ Schroder Bank & Trust Company (Civil File No. 3-87-0802) (the “Alleco Action”) now con- solidated before this court. The Court has considered papers filed and proceedings had herein, and otherwise is fully informed in the premises, and has determined that the Settlement set forth in the Settlement Agreement should be approved. The Court hereby enters this judg- ment which constitutes a final adjudication of this matter on the merits. Good cause appearing therefore, it is hereby ORDERED, ADJUDGED AND DECREED that: 1. This Court has jurisdiction over the subject mat- ter of this litigation and over all parties to this litigation, SE —&@&e oo” Pet. App. 25 including all members of the Class. This Action is hereby consolidated with the Alleco Action. 2. The definitions of terms set forth in the Settle- ment Agreement and in the Order certifying the action as a non-opt-out class action and approving the form of notice (the “Notice Order”) are hereby incorporated as though fully set forth in this judgment. 3. The Court hereby approves the Settlement set forth in the Settlement Agreement and finds that said Settlement is, in all respects, fair, reasonable and ade- quate to the Class and within the authority of the parties. The Court reaffirms its Order of May 21, 1991 certifying the Action as a class action for settlement purposes pur- suant to Rules 23(a) and 23(b)(1) and (2) of the Federal Rules of Civil Procedure. The Class, as defined in the Settlement Agreement and used herein (the “Class”), means a class consisting of the named plaintiff and all other holders of the 91/2% Debentures as of the date of this order and hereafter. 4. Neither this Judgment, the Settlement Agree- ment, nor the Settlement is an admission by any party of the validity of any of the claims in this Class Action or any of the claims, counterclaims or appeals in the Alleco Action or of any wrongdoing by any of them or of any violation of law. Neither this Judgment, the Settlement Agreement nor the Settlement is a concession and none shall be used as an admission of any fault or omission by any party to either the Alleco Action or the Class Action or any other person in any statement, release or written document issued, filed or made. Neither this Judgment, the Settlement Agreement, the Settlement nor any related Pet. App. 26 document shall be offered or received in evidence in any civil, criminal or administrative action or proceeding other than such proceedings as may be necessary to con- summate, enforce or demonstrate the occurrence of, this Judgment, the Settlement Agreement or the Settlement. 5. This Court hereby dismisses this action on the merits and with prejudice against all persons and entities who are members of the Class in favor of each and all of the defendants and without costs, except as agreed to by the parties. This Court hereby dismisses the Alleco Action and all claims, counterclaims and appeals asserted therein with prejudice and without costs, except as agreed to by the parties. This Court hereby vacates each of its prior orders in the Alleco Action including, without limitation, the order of August 16, 1989, the order of February 11, 1991, and the order of March 18, 1991. 6. All persons and entities who are members of the Class are, as of the Effective Date, hereby barred and permanently enjoined from prosecuting, commencing or continuing any and all causes of action, demands, rights, damages, liability, fees, costs or claims of any nature whatsoever, known or unknown, suspected or unsuspected and whether or not concealed or hidden, that have been, could have been or in the future might be asserted by any member of the Class against either of the defendants, Allegheny Beverage Corporation, LP Acqui- sition Corp., Lapides Corporation, General Electric Capi- tal Corporation, the holders of the Senior Subordinated Discount Debentures due 1999 of Service America and their respective past, present and future officers, direc- tors, employees, agents, attorneys, subsidiaries, affiliates, predecessors, successors and assigns, and the heirs, legal iceman inna tatiana Pet. App. 27 representatives and assigns of any of said persons, based in any manner upon the 9'/2% Debentures or the facts, transactions, events, occurrences, acts, misrepresentations or omissions alleged in, arising out of or in any way related to the allegations in the Class Action or the Alleco Action, or based on, related to or arising out of the subject matter of the Class Action or the Alleco Action including, without limitation, claims to unpaid interest on the 9'/2% Debentures and claims that any transaction operated as a fraudulent conveyance with respect to the holders of the 9'/2% Debentures. As of the Effective Date, Croyden Associates and all other Class members shall be conclusively deemed to have released and discharged the defendants of and from any and all such causes of action, demands, rights, damages, liability, fees, costs or claims, whether or not they have filed a Proof of Claim and Release form with the Exchange Agent; provided that this release and discharge of Alleco Inc., Allegheny Beverage Corporation, LP Acquisition Corp., Lapides Corporation and their successors and assigns (the “Alleco Releasees”), and the release of the Alleco Releasees made in connec- tion with the delivery of the Proof of Claim and Release Form in the form of Exhibit C to the Settlement Agree- ment, and any release delivered in the form of Exhibits D, E, G, M and O to the Settlement Agreement shall be null and void to the extent any holder of 9'/2% Debentures who has surrendered such 9!/2% Debentures is compelled at any time to disgorge any portion of the cash proceeds received from Alleco in the Settlement as a preferential transfer; provided further that any such holder who dis- gorges any such proceeds, while entitled to pursue in full any claim against the Alleco Releasees that existed prior iain iia ileal Pet. App. 28 to the Effective Date, shall hereby waive its right to recover on such claim from the Alleco Releasees in any subsequent proceeding any amount exceeding the sum of (x) the amount of cash proceeds disgorged plus (y) inter- est on such amount from the date of disgorgement to the date such amount is recovered. 7. The Court hereby declares that the 91/2% Deben- tures and the Indenture shall be null and void and that the Trustee shall be discharged of any further obligations under the Indenture on the Effective Date and approves the plan of distribution of the Cash Settlement Fund and the New Securities set forth in Sections 4 and 5 of the Settlement Agreement. Holders of 91/2% Debentures and the Trustee shall hereafter have no claims thereunder against any of the defendants jointly or individually, except claims under the Settlement or claims for recovery in the event of disgorgement of proceeds as described in the provisos of paragraph 6 hereof. 8. The Notice and Summary Notice given to the Settlement Class which set forth the principal terms of the Settlement and the other matters set forth therein, in combination with the Supplemental Notice approved by the Court’s June 19, 1991 Order and the Notice of the Proposed Amended Settlement and Amended Judgment approved by the Court’s July __, 1991 Order was the best notice practicable under the circumstances, including individual notice to all members of the Class who could be identified through reasonable efforts. Said notices pro- vided due and adequate notice of these proceedings and of the matters set forth therein, including the Settlement set forth in the Settlement Agreement, to all persons entitled to such notice, and said notices fully satisfied the ————eEeESESESV———eeaEEE Pet. App. 29 requirements of Rule 23 of the Federal Rules of Civil Procedure and the requirements of constitutional due process. 9. Without affecting the finality of this judgment in any way, this Court hereby retains continuing jurisdiction Over: (a) implementation of this Settlement and any dis- tributions to Class members pursuant to further orders of this Court; (b) this action until this final judgment becomes effective and each and every act agreed to be performed by the parties has been performed pursuant to the Settlement Agreement; and (c) all parties to this action for the purpose of enforcing and administering the Settlement Agreement. 10. In the event that the Settlement does not become effective in accordance with the terms of the Settlement Agreement, then this final judgment shall be rendered null and void and shall be vacated and, in such event, all orders entered in connection with the Class Action shall be null and void and all orders vacated pursuant to paragraph S hereof shall be reinstated ab initio. 11. It is expressly determined that there is no just reason for delay and the entry of this Judgment is hereby expressly directed by the Court. DATED this 3rd day of July, 1991. /s/ Paul A. Magnuson United States District Court Judge Pet. App. 30 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA THIRD DIVISION Civil No. 4-91-368 NOTICE OF APPEARANCE AND OBJECTION TO PROPOSED AMENDED JUDGMENT Filed July 9, 1991 [Title Omitted in Printing] PLEASE TAKE NOTICE THAT The Harry and Jeanette Weinberg Foundation Incorporated (“Founda- tion”), a Maryland corporation, is appearing for the pur- pose of objecting to the Proposed Amendment to the Settlement. The Foundation’s objections include, but are not lim- ited to, the following: * * * 4. The action is 10t maintainable as a class action pursuant to Fed.R.Civ.P. 23(b)(1) or 23(b)(2). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1428%3A1. Public record. Not legal advice.