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Exhibit 99.1
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DISTRICT COURT, CITY AND COUNTY OF
DENVER, COLORADO
1437 Bannock Street
Denver, Colorado 80202
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PLAINTIFF: Douglas W. Heins, on behalf of himself and all
others similarly situated
DEFENDANTS: Metretek Technologies, Inc.; Marcum
Midstream 1997-1 Business Trust; Marcum Midstream-
Farstad, LLC; Marcum Gas Transmission, Inc.; Marcum
Capital Resources, Inc.; Farstad Gas and Oil, LLC;
Farstad Oil, Inc.; W. Phillip Marcum; Richard M. Wanger; [ ] COURT USE ONLY [ ]
Jeff Farstad and Daniel J. Packard
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Case No.: 01-CV-0026
Courtroom.: 2
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ORDER GRANTING FINAL APPROVAL OF THE PARTIAL SETTLEMENT AND APPROVING ATTORNEYS FEES AND
EXPENSE REIMBURSEMENTS
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The Representative Plaintiff and Settling Defendants, by and through
their respective counsel of record in the Litigation, have entered into a
proposed settlement of the Litigation (the "Settlement"). The Stipulation of
Settlement dated March 2, 2004 (the "Settlement Agreement"), together with the
documents incorporated therein, set forth the terms and conditions for the
proposed Settlement and the partial dismissal of the Litigation with prejudice.
(Unless otherwise indicated all defined terms have the meaning set forth in the
Settlement Agreement).
On April 15, 2004 the Court preliminarily approved the Settlement and
directed that a Class Notice be mailed to all Class Members that provided them
with notice and information about: (a) the terms of the Settlement, (b) the
requested attorneys fees, and
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(c) how to object to the Settlement and/or attorneys fees. The Class Notice was
mailed out by Class Counsel on April 16, 2004.
No objections have been received from any Class Member regarding any
aspect of the Settlement or attorneys fees.
In Colorado, a class action cannot be settled without the approval of
the court. C.R.C.P. 23(e) provides that "[a] class action shall not be dismissed
or compromised without the approval of the court, and notice of the proposed
dismissal or compromise shall be given to all members of the class in such
manner as the court directs." The standard for approval is whether the
Settlement is fundamentally fair, adequate and reasonable. Helen G. Bonfils
Foundation v. Denver Post Employees Stock Trust, 674 P.2d 997, 998 (Colo.App.
1983). In making the determination that the Settlement is fair, adequate and
reasonable the Court considered, among other things, the following eight
factors, all of which were addressed in the Plaintiff's Brief In Support Of
Motion For Final Approval Of Partial Class Action Settlement: [1] the strength
of plaintiffs' case; [2] the risk, expense, complexity, and likely duration of
further litigation; [3] the risk of maintaining class action status throughout
the trial; [4] the amount offered in settlement; [5] the extent of discovery
completed, and the stage of the proceedings; [6] the experience and views of
counsel; [7] the presence of a governmental participant; and [8] the reaction of
the class members to the proposed settlement. These factors are all relevant to
the determination of fairness, adequacy and reasonableness. Bonfils, 674 P.2d at
998.
In Colorado fee awards must be reasonable. Tallitsch v. Child Support
Services, Inc., 926 P.2d 143, 147 (Colo.App. 1996). In making the determination
that the attorneys
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fees and expense reimbursements requested by Class Counsel and set forth in the
Class Notice were reasonable the Court considered, among other things, the
factors set forth in Rule 1.5(a) of the Rules of Professional Conduct, all of
which were addressed in Class Counsels' Application For An Award Of Attorneys'
Fees And Costs.
In accordance with C.R.C.P. 23(e) and Rule 1.5(a) of the Rules of
Professional Conduct, the Court, having read and considered the Settlement
Agreement and the exhibits thereto, Plaintiff's Brief In Support Of Motion For
Final Approval Of Partial Class Action Settlement, Class Counsels' Application
For An Award Of Attorneys' Fees And Costs, the affidavits of Class Counsel filed
in connection with the final approval hearing, and having heard from the
Settling Parties and given due consideration hereby orders:
This Court finds that the Settlement before it and the transactions
contemplated thereby are fair, adequate, and reasonable to the Class Members,
and are in good faith and the product of non-collusive arms-length bargaining
between experienced counsel representing all Settling Parties.
Metretek is designated and approved as the "administrator" of the
Settlement Fund as such term is used in Treasury Regulation ss.1.468B-2(k)(3),
(b).
Upon the occurrence of the Effective Date as set forth in the
Stipulation: (a) the Settlement Fund shall be established and funded as provided
in Treasury Regulation ss.1.468B-1(c)(1) and all payments to Class Members
pursuant to the Settlement Agreement shall be made; (b) each and every cause of
action and claim set forth in the Complaint shall be dismissed on the merits as
to all Settling Defendants and Jeff Farstad in his capacity as trustee of the
Trust and with prejudice as to all Class Members; (c) all
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claims, rights, demands and causes of action that have been or might have been
asserted therein shall be extinguished and discharged as to the Settling
Defendants and Jeff Farstad in his capacity as trustee of the Trust; (d) the
Representative Plaintiff and Class Members, as well as their predecessors,
successors and assigns, shall be barred from asserting the Released Claims
against the Released Persons; and (e) all Released Persons shall be released
from the Released Claims.
Pending the occurrence of the Effective Date, neither the
Representative Plaintiff, nor any Class Member, either directly,
representatively, derivatively or in any other capacity shall commence or
prosecute any action or proceeding in any court or tribunal asserting any of the
Released Claims against the Released Persons;
The Court reserves jurisdiction over all matters relating to the
administration and consummation of the Settlement provided in the Settlement
Agreement;
All Settling Parties shall bear their own attorneys' fees, costs and
expenses.
Class Counsel are awarded a reasonable fee equal to 33% of both the
initial payment of $2.75 Million and all payments under the Metretek Note as and
when the Class Members are paid. In addition to the attorneys' fees, from
initial payment of $2.75 Million, Class Counsel shall be reimbursed for all of
their current expenses of litigation not to exceed $50,000. Class Counsel may
pay out of their own fee (not as an expense reimbursement) $5,000 to the
Representative Plaintiff for his service to date.
There is no just reason for delay in the entry of this Order and final
judgment and immediate entry by the Clerk of the Court is expressly directed
pursuant to Rule 54 of the Colorado Rules of Civil Procedure. Without affecting
the finality of the judgment, the Court reserves exclusive and continuing
jurisdiction and exclusive venue with respect to
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the consummation, implementation, enforcement, construction, interpretation,
performance and administration of the Settlement Agreement and judgment.
Dated this 11th Day of June, 2004
BY THE COURT:
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District Court Judge
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