UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FILED IN CHAMBERS THOMAS W. THRASH JR. U . S. D. C. Atlanta

JAMES NiJGENT, Individually and on Behalf of all Others Similarly Situated, Plaintiff, v.

) ) ) ) )

AFC ENTERPRISES, INC ., FRANK BELATTI and GERALD J . WILKINS,

Defendants .

MY 2 2 203 LUTHER D.THOMAS, By' ~ ~

. ~?" p~lcep

ry 'e

CONSOLIDATED CIVIL ACTION NO. 1 :03-CV-0817-TWT

) ) )

)

FRED CRUZ, on Behalf of Himself ) and all Others Similarly Situated, ) Plaintiff, v.

) )

AFC ENTERPRISES, INC ., FRANK J . BELATTI and GERALD J . WILKINS, Defendants.

) ) )

erk

CIVIL ACTION NO. D~ 1 :03-CV-0836-TWT

)

[CAPTION CONTINUED ON FOLLOWING PAGE]

CONSENT CONSOLIDATION AND SCHEDULING ORDER

GEORGE ROYAL, Individually and on Behalf of all Others Similarly Situated,

Plaintiff,

CIVIL ACTION NO. 1 :03-CV-0857-TWT

v.

FRANK J. BELATTI, GERALD J . WILKINS and AFC ENTERPRISES, INC., Defendants . YASUO YAEZAWA, on Behalf of Himself and all Others Similarly Situated, Plaintiff,

CIVIL ACTION NO. 1 :03-CV-0944-TWT

v.

AFC ENTERPRISES, INC ., FRANK J. BELATTI and GERALD J. WILKINS,

Defendants.

[CAPTION CONTINUED ON FOLLOWING PAGE]

2

ALICIA REED, on Behalf of Herself and All Others Similarly Situated,

Plaintiff, CIVIL ACTION NO. 1 :03-CV-1173-TWT

v. AFC ENTERPRISES, INC., FRANK J . BELATTI, and GERALD J. WILKINS, Defendants . DENNIS C . SMITH, on behalf of Himself and all others Similarly Situated,

Plaintiff,

CIVIL ACTION NO . 1 :03-CV-1211-TWT

v

AFC ENTERPRISES, INC ., FRANK J. BELATTI, and GERALD J. WILKINS, Defendants.

[CAPTION CONTINUED ON FOLLOWING PAGE]

3

LYNNE E. READ, on Behalf of Herself and All Others Similarly Situated,

Plaintiff,

CIVIL ACTION NO. 1 :03-CV-1320-TWT

v. AFC ENTERPRISES, INC., FRANK J. BELATTI, and GERALD J. WILKINS, Defendants. MARK RICE, on Behalf of Himself and all Others Similarly Situated, Plaintiff,

CIVIL ACTION NO. 1 :03-CV-1357-TWT

v.

AFC ENTERPRISES, INC., FRANK J. BELATTI and GERALD J . WILKINS, Defendants .

4

WHEREAS, the parties agree that these cases should be consolidated pursuant to Fed. R. Civ. P . 42(a) in order to avoid unnecessary costs or delay; WHEREAS, the parties further agree to the establishment of a schedule for these cases in recognition of the fact that the Court will need to appoint a Lead Plaintiff and Lead Plaintiff's Counsel pursuant to § 21D(a)(3)(B) of the Securities Exchange Act of 1934; WHEREAS, the establishment of a schedule for the filing of certain pleadings, pretrial motions, and related matters will promote the efficient conduct of this litigation ; WHEREAS, the time for Defendants to answer or otherwise respond to the complaints filed in the above-captioned actions has not yet passed ; WHEREAS, the time established under Local Rule 23 .1(B) for Plaintiffs to file their motion for class certification has not yet passed ; and WHEREAS, the parties have agreed to the terms of this Consent Order as evidenced by the signatures of their counsel below, IT IS HEREBY ORDERED that :

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I.

CONSOLIDATION 1.

The above-captioned actions and any other actions filed as related to

any of these actions are hereby consolidated into one action (hereinafter, the "Consolidated Action") for all purposes, pursuant to Federal Rule of Civil Procedure 42. This order (the "Order") shall apply as specified to the Consolidated Action and to each case that relates to the same subject matter that is subsequently filed in this Court or transferred to this Court and is consolidated with the Consolidated Action . II.

MASTER DOCKET AND MASTER FILE 2.

A Master File is hereby established for this proceeding. The Master

File shall be captioned " In re AFC Enterprises, Inc . Securities Liti ate," File

No. 1 :03-CV-0817-TWT . The Clerk shall file all pleadings in the Master File and note such filings on the Master Docket. 3.

An original of this Order shall be filed by the Clerk in the Master File .

4.

The Clerk shall mail a copy of this Order to counsel of record in the

above-captioned actions .

6

III.

CAPTION OF THE CASE 5.

All pleadings and other papers filed in the Consolidated Action shall

have the following caption : UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION IN RE AFC ENTERPRISES, INC . SECURITIES LITIGATION IV.

) )

CONSOLIDATED CIVIL ACTION NO . 1 :03-CV-0817-TWT

NEWLY-FILED OR TRANSFERRED ACTIONS 6.

This Court requests the assistance of counsel in calling to the attention

of this Court the filing or transfer of any case that might properly be consolidated as part of the Consolidated Action. 7.

When a case that arises out of the same subject matter as the

Consolidated Action is hereafter filed in this Court or transferred to this Court from another Court, the Clerk of this Court shall : (a)

File a copy of this Order in the separate file for such action;

(b)

Mail a copy of this Order to the attorneys for the plaintiff(s) in

the newly-filed or transferred case and for any new defendant(s) in the newly-filed or transferred case; and (c)

Make the appropriate entry in the Master Docket for the

Consolidated Action . 7

8.

Each new case arising out of the same subject matter as the

Consolidated Action that is filed in this Court or transferred to this Court shall be consolidated with the Consolidated Action and this Order shall apply thereto, unless a party objects to consolidation as provided for herein, or to any provision of this Order, by filing an application for relief within ten (10) days after the date upon which a copy of this Order is served on counsel for such party, and this Court deems it appropriate to grant such application. Nothing in the foregoing shall be construed as a waiver of Defendants' right to object to the consolidation of any subsequently-filed or transferred related action. 9.

The terms of this Order shall not have the effect of making any

person, firm, or corporation a party to any action in which he, she, or it has not been named, served, or added as such in accordance with the Federal Rules of Civil Procedure and other relevant authority. 10 .

Nothing in this Order shall be construed as precluding Defendants'

rights, if any, to oppose motions for the appointment of lead plaintiff or lead counsel . In addition, nothing in this Order shall be construed as precluding or limiting Defendants' rights under Federal Rule of Civil Procedure 23 to oppose class certification on any and all grounds . 11 .

Waiving only the defenses

of insufficiency

of process and

insufficiency of service of process, the undersigned counsel, on behalf of each named defendant, acknowledges service of the complaint in each of the above-

8

captioned actions. As provided by Paragraph 13 below, Defendants are expressly relieved from answering or otherwise responding to these individual complaints or any complaint filed in any subsequent civil action that is consolidated and/or In re AFC Enterprises, Inc . Securities

transferred to this Court as part of

Litigation, Consolidated Civil Action No. 1 :03-CV-0817-TWT. V.

SCHEDULING 12 .

Plaintiffs shall serve a Consolidated Amended Complaint within sixty

(60) days of the Court's entry of an order appointing lead plaintiff and lead counsel . 13 .

Defendants are relieved from filing separate responses to the

individual Complaints and instead shall serve their response to the Consolidated Amended Complaint within forty-five (45) days of service of the Consolidated Amended Complaint. 14 .

If any Defendant moves to dismiss the Consolidated Amended

Complaint, Plaintiffs shall have forty-five (45) days from the date the motion is served to serve a response. The moving Defendant(s) shall have twenty (20) days from the date Plaintiffs serve their response to serve a reply, if any, in further support of the moving Defendant(s)' respective positions . 15 .

Notwithstanding the provisions of Local Rule 23 .1(B), Plaintiffs'

motion for class certification shall be due within 30 days after all Defendants file

9

their Answer(s). The parties will negotiate and present to the Court a schedule for class certification briefing and class discovery proceedings at that time . 16.

The parties shall effect service of papers filed with the Court on

opposing counsel by overnight mail service, hand delivery, or facsimile unless otherwise agreed .

After the Court appoints Lead Plaintiff and approves Lead

Plaintiffs choice of Lead Counsel, Defendants may serve papers required to be served on Plaintiffs by serving Lead Counsel by hand delivery, facsimile, or overnight mail, and such service shall be effective service for all Plaintiffs . IT IS SO ORDERED, this g, day of

art .,,

~/~fWA."i

32003 .

AS

Honorable Thomas W. Thrash, Jr. United States District Judge

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AGREED BY : KING & SPALDING LLP

HOLZER, HOLZER & CANNON, LLC ~

i.

Christi A. Cannon Georgia Bar No. 107869 Michael I. Fistel, Jr. Georgia Bar No . 262062 1117 Perimeter Center West Suite E-107

M. Robert Thornton Georgia Bar No . 710475 Michael R. Smith Georgia Bar No. 661689 John P. Brumbaugh Georgia Bar No. 085378 Robert C . Khayat, Jr . Georgia Bar No. 416981 191 Peachtree Street Atlanta, Georgia 30303 (404) 572-4600

Atlanta, Georgia 30338 (770) 392-0090 Counsel for Plaintiffs James Nugent George Royal

Counsel for Defendants AFC Enterprises, Inc. Frank J. Belatti Gerald J . Wilkins

CHITWOOD & HARLEY Martin D. Chitwood Georgia Bar No . 124950 Lauren S . Antonino Georgia Bar No. 652408 David A. Bain Georgia Bar No. 032449 1230 Peachtree Street, NE 2300 Promenade II Atlanta, Georgia 30309 (404) 873-3900 Counsel for Plaintiffs Fred Cruz Yasuo Yaezawa Alicia Reed Lynne E. Read Dennis C. Smith Mark Rice 11