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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

____________________________________________ 

 : Case No. 2:03-CV-5336 

In Re DVI, Inc. Securities Litigation : 

____________________________________________: Hon. Legrome D. Davis 

LEAD PLAINTIFFS’ MOTION FOR ORDER APPROVING THIRD 

SETTLEMENT, PLAN OF ALLOCATION, CERTIFICATION OF A 

SETTLEMENT CLASS, AND ATTORNEYS’ FEES AND EXPENSES 

Lead Plaintiffs respectfully move this Court pursuant to Fed. R. Civ. Pro. 23(e) 

for an order, in the form attached hereto as Exhibit 1, approving the Settlement 

Agreement that Lead Plaintiffs have entered into with Defendant Merrill Lynch (the 

“Settlement”). 

For the reasons set forth in Lead Plaintiffs’ accompanying Memorandum of Law 

in Support of Motion for Entry of Order Approving Settlement, Lead Plaintiffs 

respectfully request that this Court (a) approve the Settlement; (b) approve the parties’ 

plan of allocation; (c) approve and certify a settlement class; and (d) award Plaintiffs’ 

Counsel’s requested attorneys’ fees and expense reimbursement. 

Dated: April 21, 2008 

 

 Respectfully submitted, 

 KRISLOV & ASSOCIATES, LTD. 

 By: /s/ Michael R. Karnuth

 Clinton A. Krislov, Esq. 

 Michael R. Karnuth, Esq. 

 20 North Wacker Drive 

 Chicago, Illinois 60606 

 Phone: 312-606-0500 

 Fax: 312-606-0207 

 Plaintiffs’ Lead Counsel

 

 

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 Steven A. Schwartz, Esq. 

 Attorney I.D. No. 50579 

 Chimicles & Tikellis LLP 

 361 W. Lancaster Avenue 

 One Haverford Centre 

 Haverford, PA 19041 

 Phone: 610-642-8500 

 Fax: 610-649-3633 

 Plaintiffs’ Liaison Counsel 

Case 2:03-cv-05336-LDD Document 606 Filed 04/21/08 Page 2 of 11
EXHIBIT 1 

Case 2:03-cv-05336-LDD Document 606 Filed 04/21/08 Page 3 of 11
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

_____________________________________ 

 : Case No. 2:03-CV-5336-LDD 

In Re DVI, Inc. Securities Litigation : 

____________________________________ : Judge Legrome D. Davis 

ORDER OF FINAL JUDGMENT AND DISMISSAL

On April 30, 2008, a hearing having been held before this Court to determine: (1) 

whether the terms and conditions of the Stipulation of Settlement dated December 31, 

2007 (hereinafter referred to individually and interchangeably as the “Stipulation” and 

the “Settlement”), including the releases provided for in the Stipulation, are fair, 

reasonable and adequate for the settlement of all claims asserted by the Settlement Class 

against Merrill Lynch & Co., Inc. (“Merrill Lynch”) respectively, in the Complaint now 

pending in this Court under the above caption, and should be approved; (2) whether a 

Settlement Class should be finally certified for purposes of the proposed Settlement; (3) 

whether judgment should be entered dismissing the Complaint with prejudice as to 

Merrill Lynch; and (4) whether and in what amount to award Plaintiffs' Lead Counsel 

fees and reimbursement of expenses. 

The Court, having previously granted preliminary certification of a Settlement 

Class as to Plaintiffs’ claims against Merrill Lynch on February 28, 2008, and having 

considered all matters submitted to it at the hearing and otherwise, and it appearing that a 

notice of the hearing substantially in the form approved by the Court was mailed to all 

persons or entities reasonably identifiable who purchased the DVI, Inc. securities at issue 

in this Litigation from August 10, 1999 to August 13, 2003 (dates inclusive) (the "Class 

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Period"), and who were damaged thereby, except those persons or entities excluded from 

the definition of the Settlement Class or who previously excluded themselves from the 

Settlement Class, and that a summary notice of the hearing substantially in the form 

approved by the Court was published on one occasion in: the national editions of The 

Wall Street Journal; USA Today, and editions of the Chicago Tribune and the 

Philadelphia Inquirer, as well as published on one occasion on the PrimeNewswire, and 

the Court having considered and determined the fairness and reasonableness of the award 

of attorneys' fees and expenses requested; and all capitalized terms used herein having the 

meanings as set forth and defined in the Stipulation; 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 

1. The Court has jurisdiction over the subject matter of the Litigation, the 

Plaintiffs, the Settlement Class Members, and Merrill Lynch. 

2. The Court determines for purposes of finally approving the Stipulation 

only that the Litigation as against Merrill Lynch may proceed for settlement purposes as a 

class action under Federal Rules of Civil Procedure 23(a) and (b)(3) in that: (a) the 

number of Settlement Class Members is so numerous that joinder of all members thereof 

is impracticable; (b) there are questions of law and fact common to the Settlement Class; 

(c) the claims of the Lead Plaintiffs (who have moved for appointment as Settlement 

Class Representatives) are typical of the claims of the Settlement Class they seek to 

represent; (d) the Lead Plaintiffs have and will fairly and adequately represent the 

interests of the Settlement Class; (e) the questions of law and fact common to the 

Settlement Class Members predominate over any questions affecting only individual 

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members of the Settlement Class; and (f) a class action is superior to other available 

methods for the fair and efficient adjudication of the controversy. 

3. The Court therefore also determines for purposes of finally approving the 

Stipulation only that the Lead Plaintiffs may represent a Settlement Class defined as 

follows, which the Court hereby certifies for settlement purposes only: 

All persons and entities who purchased or otherwise acquired the 

securities of DVI (its common stock and 9 7/8% Senior Notes), between 

August 10, 1999 and August 13, 2003, both dates inclusive. Excluded 

from the Settlement Class are Defendants; any entity in which a Defendant 

has a controlling interest or is a part or subsidiary of, or is controlled by a 

Defendant; the officers, directors, legal representatives, heirs, 

predecessors, successors and assigns of any of the Defendants; plaintiffs 

named in the WM High Yield Fund, et al. v. O’Hanlon, et al., No. 04-CV3423 (E.D. Pa.); and those persons or entities who timely and validly 

request exclusion from the Settlement Class pursuant to the Notice. 

4. Notice of the pendency of this Litigation as a class action and of the 

proposed Settlement was given to all Settlement Class Members who could be identified 

with reasonable effort. The form and method of notifying the Settlement Class of the 

pendency of the Litigation as a class action and the terms and conditions of the proposed 

Settlement met the requirements of Rule 23 of the Federal Rules of Civil Procedure, 

Section 21D(a)(7) of the Securities Exchange Act of 1934, 15 U.S.C. '78u-4(a)(7), as 

amended by the Private Securities Litigation Reform Act of 1995 (the "PSLRA"), due 

process, and any other applicable law; constituted the best notice practicable under the 

circumstances; and constituted due and sufficient notice to all persons and entities 

entitled thereto. 

5. The Settlement is approved as fair, reasonable and adequate, and the 

parties are directed to and shall consummate and abide by the Settlement in accordance 

with the terms and provisions of the Stipulation. 

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6. The Fifth Amended Complaint, which the Court finds was filed on a good 

faith basis in accordance with the PSLRA and Rule 11 of the Federal Rules of Civil 

Procedure based upon all publicly available information, is hereby dismissed with 

prejudice and without costs, except as provided in the Stipulation, as against Merrill 

Lynch only. 

7. Settlement Class Members who have not previously excluded themselves 

from the Settlement Class and the successors and assigns of any of them are hereby 

permanently barred and enjoined from instituting, commencing or prosecuting all claims, 

rights, demands, suits, matters, issues or causes of action, whether known or unknown, 

asserted or unasserted, whether under state or federal law, including the federal securities 

laws, and whether directly, indirectly, derivatively, representatively or in any other 

capacity, arising out of losses sustained by the Settlement Class with respect to any 

transaction in or related to the DVI, Inc. securities (the "Released Claims") (but excluding 

any claims to enforce the terms of the Settlement) against Defendant Merrill Lynch and 

each of its direct and indirect current and former parents, subsidiaries and affiliates, and 

each of their current and former heirs, executors, estates, administrators, predecessors, 

successors, assigns, stockholders, parents, subsidiaries, affiliates, associates, employees, 

insurers, directors, managing directors, officers, principals, partners, members, attorneys, 

accountants, agents, consultants, financial and other advisors, investment bankers, and 

any other representatives or agents of any of these persons and entities; provided, 

however, that nothing herein shall bar or enjoin any Members of the Class from 

instituting or pursuing any claims against Defendants Michael A. O’Hanlon, Steven R. 

Garfinkel, John P. Boyle, Terry Cady, Gerald Cohn, Harry T.J. Roberts, Deloitte & 

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Touche, LLP, Radnet Management, Inc., Richard E. Miller, Anthony J. Turek, Thomas 

Pritzker, the Pritzker Organization LLC, certain unnamed Pritzker family members, 

Clifford Chance LLP and Clifford Chance (US) LLP. Upon the Effective Date, the 

Released Claims are hereby compromised, settled, released, discharged and dismissed as 

against the Released Parties with prejudice by virtue of the proceedings herein and this 

Order of Final Judgment and Dismissal. All Settlement Class Members, whether or not 

any such Person submits a Proof of Claim and Release or shares in the Settlement Fund, 

on behalf of themselves and each of their present or past subsidiaries and affiliates, and 

their respective heirs, executors, estates, administrators, predecessors, successors, 

assigns, parents, subsidiaries, associates, affiliates, employers, employees, agents, 

consultants, insurers, directors, managing directors, officers, partners, principals, 

members, attorneys, accountants, financial and other advisors, investment bankers, 

underwriters, lenders, and any other representatives of any of these Persons and entities 

will be deemed by this Settlement on the Effective Date to release and forever discharge 

the Released Parties from any and all of the Released Claims. 

8. To the maximum extent permitted by law, the Court hereby permanently 

bars, enjoins and restrains (1) all claims against Merrill Lynch for indemnity or 

contribution or any other claim against Merrill Lynch arising out of the Litigation or 

otherwise where the injury to the claimant is the claimant's actual or threatened liability 

to the Class arising out of or related to any transactions with respect to the DVI securities, 

and (2) all claims by Merrill Lynch against any person for indemnity or contribution 

arising out of the Litigation or otherwise where the injury to the claimant is the claimant's 

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actual or threatened liability to the Class arising out of or related to any transactions with 

respect to the DVI securities. 

9. Any non-settling party shall be entitled to a reduction in any final verdict 

or judgment in an amount calculated as provided for in 15 U.S.C. '78u-4(f)(7)(B). 

10. Neither this Order and Final Judgment, the Stipulation, nor any of their 

terms and provisions, nor any of the negotiations or proceedings connected therewith, nor 

any of the documents or statements referred to therein shall be: 

 a. offered or received against Merrill Lynch as evidence of or 

construed as or deemed to be evidence of any presumption, concession, or admission by 

Merrill Lynch with respect to the truth of any fact alleged by the Plaintiffs or the validity 

of any claim that had been or could have been asserted in the Litigation or in any 

litigation, or the deficiency of any defense that has been or could have been asserted in 

the Litigation or in any litigation, or of any liability, negligence, fault, or wrongdoing of 

Merrill Lynch; 

 b. construed as or received in evidence as an admission, concession 

or presumption against Lead Plaintiffs or the Settlement Class, or any of them that any of 

their claims are without merit or are subject to any infirmities, or that damages 

recoverable under the Complaint would not have exceeded the Settlement Amount; or 

 c. construed against Merrill Lynch, or Lead Plaintiffs or the 

Settlement Class as an admission or concession that the consideration to be given 

hereunder represents the amount which could be or would have been recovered after trial. 

 11. On the Effective Date of the Settlement, all Settlement Class Members, 

whether or not any such Person submits a Proof of Claim and Release or shares in the 

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Settlement Fund, and anyone claiming through or on behalf of any of them, will be 

forever barred and enjoined from commencing, instituting, prosecuting or continuing to 

prosecute any action or other proceeding in any court of law or equity, arbitration 

tribunal, or administrative forum, asserting the Released Claims against any of the 

Released Parties, except that these releases shall not bar any suit or action to enforce the 

terms of the Stipulation or this Order of Final Judgment and Dismissal. 

12. The Court finds that all parties to the Stipulation and their counsel have 

complied with each requirement of Rule 11 of the Federal Rules of Civil Procedure as to 

all proceedings herein. 

13. Plaintiffs' Lead Counsel are hereby awarded $ in 

attorneys' fees, which shall be paid from the Settlement Fund and which the Court finds 

to be fair and reasonable, and $ in reimbursement of expenses, both of 

which shall be paid to Plaintiffs' Lead Counsel from the Settlement Fund with interest 

from the date such Settlement Fund was funded to the date of payment at the same 

interest rate that the Settlement Fund earns; provided, however, that no payment 

authorized by this paragraph shall be made prior to the Effective Date. 

14. Exclusive jurisdiction is hereby retained over the parties and the 

Settlement Class Members for all matters relating to this Litigation, including the 

administration, interpretation, effectuation or enforcement of the Stipulation and this 

Order and Final Judgment, and including any application for fees and expenses incurred 

in connection with administering and distributing the settlement proceeds to the Members 

of the Settlement Class. 

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15. In the event the Effective Date does not occur, the Order of Final 

Judgment and Dismissal shall be rendered null and void, and shall be vacated nunc pro 

tunc, and the provisions of paragraphs 41 and 42 and the last two sentences of paragraph 

31 of the Stipulation shall apply. 

16. Except as provided herein, each party shall bear its own costs. 

17. Without further order of the Court, the parties may agree to reasonable 

extensions of time to carry out any provisions of the Stipulation. 

18. There is no just reason for delay in the entry of this Order of Final 

Judgment and Dismissal, and immediate entry by the Clerk of Court is expressly directed 

pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. 

 ENTER: 

 ____________________________________ 

 Judge, United States District Court 

for the Eastern District of Pennsylvania 

Dated: , 2008 

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