Steve Klein v. Silver Wheaton Corp. et al, No. 2:2015cv05173 - Document 68 (C.D. Cal. 2020)
Court Description: ORDER AND FINAL JUDGMENT by Judge Christina A. Snyder. The Court hereby awards attorneys fees of 30% of the Settlement Fund, or $12,450,000, reimbursement of expenses of $1,090,186.76, and awards Plaintiffs $12,500 each, fo r a total of $87,500, all of which the Court finds reasonable. In reaching this determination, the Court has considered (1) the results achieved; (2) the risk of litigation; (3) the skill required and the quality of work; (4) the contingent nature of the fee and the financial burden carried by the plaintiffs; and (5) awards made in similar cases. (SEE JUDGMENT FOR FURTHER DETAILS) (MD JS-6, Case Terminated). (yl)
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Steve Klein v. Silver Wheaton Corp. et al Doc. 68 1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Master File No: 2:15-cv-05146-CAS(PJWx) c/w: 2:15-cv-05173-CAS(PJWx) 12 13 14 In re Silver Wheaton Corp. Securities Litigation [PROPOSED] ORDER AND FINAL JUDGMENT 15 16 Hon. Christina A. Snyder 17 18 On the 3rd day of August, 2020, a hearing having been held before this Court 19 to determine: (1) whether the terms and conditions of the Stipulation of Settlement 20 dated January 31, 2020 (the “Stipulation”) are fair, reasonable and adequate for the 21 settlement of all claims asserted by (i) the Settlement Class against (ii) Defendants 22 Silver Wheaton Corp. (“Silver Wheaton”), Randy V. J. Smallwood, Peter Barnes, and 23 Gary Brown (collectively, the “Silver Wheaton Defendants”), and Deloitte LLP 24 (Canada) (“Deloitte”) (together, “Defendants”); (2) whether to approve the proposed 25 Plan of Allocation as a fair and reasonable method to allocate the Net Settlement Fund 26 among Settlement Class Members; (3) whether to finally certify the Deloitte 27 Settlement Class; (4) whether a judgment should be entered dismissing the Action 28 -1[PROPOSED] ORDER AND FINAL JUDGMENT Dockets.Justia.com 1 with prejudice as against all Defendants; and (5) to rule upon such other matters as the 2 Court deemed appropriate; and 3 The Court having considered all matters submitted to it at the hearing and 4 otherwise; and 5 It appearing that the Postcard Notice substantially in the form approved by the 6 Court in the Court’s Order Preliminarily Approving Settlement and Providing For 7 Notice Procedures (the “Preliminary Approval Order”) was mailed to all reasonably 8 identifiable Settlement Class Members; and 9 It appearing that the Summary Notice substantially in the form approved by the 10 Court in the Preliminary Approval Order was published in accordance with that Order 11 and the specifications of the Court; and 12 It appearing that a case-specific website was created which, among other things, 13 permitted electronic filing of claims; and 14 It appearing that the Internet Notice substantially in the form approved by the 15 Court in the Preliminary Approval Order was published in accordance with that Order: 16 NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND 17 DECREED THAT: 18 1. All capitalized terms used herein have the same meanings as set forth and 19 defined in the Stipulation, which is incorporated herein. 20 2. The Court has jurisdiction over the subject matter of the Litigation, 21 Plaintiffs, all Settlement Class Members and Defendants to the Litigation, including 22 all Settlement Class Members who did not file, pursuant to the Court’s Preliminary 23 Approval Order dated March 9, 2020, a timely request for exclusion from the 24 Settlement Class by the requisite deadline. 25 3. Pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure, 26 the Court hereby certifies, for purposes of the Settlement only, a settlement class as to 27 Deloitte (the “Deloitte Settlement Class”) consisting of all persons and entities who 28 purchased the publicly traded securities of Silver Wheaton (i) on a United States -2[PROPOSED] ORDER AND FINAL JUDGMENT 1 Exchange, or (ii) in a transaction in the United States, during the period from March 2 30, 2011 to July 6, 2015, inclusive, and did not sell such securities prior to July 6, 3 2015. Excluded from the Deloitte Settlement Class are Defendants, all present and 4 former officers and directors of Silver Wheaton and any subsidiary thereof, Deloitte 5 and all of its present and former partners, members of all such excluded persons’ 6 families and their legal representatives, heirs, successors or assigns and any entity 7 which such excluded persons controlled or in which they have or had a controlling 8 interest. 9 4. The Court finds, for purposes of the Settlement only, that the 10 prerequisites for a class action under Rule 23(a) and (b)(3) of the Federal Rules of 11 Civil Procedure have been satisfied in that: (a) the number of Deloitte Settlement Class 12 Members is so numerous that joinder of all members of the Deloitte Settlement Class 13 is impracticable; (b) there are questions of law and fact common to the Deloitte 14 Settlement Class; (c) the claims of the Plaintiffs are typical of the claims of the Deloitte 15 Settlement Class they seek to represent; (d) Plaintiffs fairly and adequately represent 16 the interests of the Deloitte Settlement Class; (e) the questions of law and fact common 17 to the members of the Deloitte Settlement Class predominate over any questions 18 affecting only individual members of the Deloitte Settlement Class; and (f) a class 19 action is superior to other available methods for the fair and efficient adjudication of 20 this Litigation. 21 5. On May 11, 2017, the Court certified a class as to the Silver Wheaton 22 Defendants (the “Silver Wheaton Class”) consisting of all persons and entities who 23 purchased the publicly traded securities of Silver Wheaton (i) on a United States 24 exchange, or (ii) in a transaction in the United States, during the period from March 25 30, 2011 to July 6, 2015, inclusive, and did not sell such securities prior to July 6, 26 2015. Excluded from the Silver Wheaton Class are Defendants, all present and former 27 officers and directors of Silver Wheaton and any subsidiary thereof, Deloitte and all 28 of its present and former partners, members of such excluded persons’ families and -3[PROPOSED] ORDER AND FINAL JUDGMENT 1 their legal representatives, heirs, successors or assigns and any entity which such 2 excluded persons controlled or in which they have or had a controlling interest. 3 6. For purposes of the Settlement only, the “Settlement Class” shall consist 4 of both the Silver Wheaton Class and the Deloitte Settlement Class. 5 7. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiffs 6 are certified as the class representatives on behalf of the Settlement Class and 7 Plaintiffs’ Counsel previously selected by Plaintiffs and appointed by the Court, is 8 hereby appointed as Lead Counsel for the Settlement Class (or “Plaintiffs’ Counsel”). 9 8. The Court hereby finds that the forms and methods of notifying the 10 Settlement Class of the terms and conditions of the Settlement met the requirements 11 of due process and Rule 23 of the Federal Rules of Civil Procedure, Section 21D(a)(7) 12 of the Exchange Act, 15 U.S.C. § 78u-4(a)(7), as amended by the Private Securities 13 Litigation Reform Act of 1995; constituted the best notice practicable under the 14 circumstances; and constituted due and sufficient notice to all persons and entities 15 entitled thereto of these proceedings and the matters set forth herein, including the 16 Settlement and Plan of Allocation, to all Persons entitled to such notice. No Settlement 17 Class Member is relieved from the terms of the Settlement, including the releases 18 provided for therein, based upon the contention or proof that such Settlement Class 19 Member failed to receive actual or adequate notice. A full opportunity has been 20 offered to the Settlement Class Members to object to the Settlement and to participate 21 in the hearing thereon. The Court further finds that the notice provisions of the Class 22 Action Fairness Act, 28 U.S.C. § 1715, were fully discharged. Thus, it is hereby 23 determined that all members of the Settlement Class are bound by this Order and Final 24 Judgment except those persons listed on Exhibit A to this Order and Final Judgment. 25 9. The Settlement is approved as fair, reasonable and adequate, and in the 26 best interests of the Settlement Class. Plaintiffs and Defendants are directed to 27 consummate the Settlement in accordance with the terms and provisions of the 28 Stipulation. -4[PROPOSED] ORDER AND FINAL JUDGMENT 1 10. The Litigation and the Second Amended Complaint (the “Complaint”) 2 are hereby dismissed with prejudice and without costs. 3 11. Plaintiffs, each and every member of the Settlement Class and each of 4 their respective parent entities, associates, affiliates, subsidiaries, predecessors, 5 successors, assigns, attorneys, heirs, representatives, administrators, executors, 6 devisees, legatees, and estates, hereby fully, finally, and forever release, relinquish, 7 and discharge any and all Released Claims against the Released Persons, and are 8 hereby permanently barred and enjoined from asserting, commencing, prosecuting, 9 instituting, assisting, instigating, or in any way participating in the commencement or 10 prosecution of any action or other proceeding, in any forum, asserting any Released 11 Claim, either directly, representatively, derivatively, or in any other capacity, against 12 any of the Released Persons. 13 12. Defendants, on behalf of themselves, their heirs, executors, predecessors, 14 successors, and assigns, hereby fully, finally, and forever release, relinquish, and 15 discharge any and all of Defendants’ Released Claims against the Plaintiffs, 16 Settlement Class Members and Plaintiffs’ Counsel, and are hereby permanently 17 enjoined from prosecuting the Defendants’ Released Claims against the Plaintiffs, 18 Settlement Class Members and Plaintiffs’ Counsel. 19 13. The Court orders that the Plan of Allocation be modified with Plaintiffs’ 20 assent by eliminating the portion of pp. 9:21-23 of the Preliminary Approval Order, 21 dkt. #487, which provides “in which case the Settlement Class Member’s Recognized 22 Loss will be reduced by $5 or 1%, whichever is greater.” The Recognized Losses of 23 Settlement Class Members who filed by mail will not be reduced. With that 24 modification, the Court hereby finds that the proposed Plan of Allocation is a fair and 25 reasonable method to allocate the Net Settlement Fund among Settlement Class 26 Members. 27 14. In accordance with 15 U.S.C. § 78u-4(f)(7) and any other applicable law 28 or regulation, any and all claims which are brought by any Person or entity against -5[PROPOSED] ORDER AND FINAL JUDGMENT 1 Defendants (a) for contribution or indemnification arising out of any Settled Claim, or 2 (b) where the damage to the claimant is measured by reference to the claimant’s 3 liability to the Plaintiffs or the Settlement Class, are hereby permanently barred and 4 discharged. Any such claims brought by Defendants against any Person or entity 5 (other than Persons or entities whose liability to Plaintiffs or the Settlement Class is 6 extinguished by this Judgment) are likewise permanently barred and discharged. 7 Further, nothing in this Stipulation shall apply to bar or otherwise affect any claim for 8 insurance coverage by any Defendant. 9 15. The Court finds that all parties and their counsel have complied with each 10 requirement of Rule 11 of the Federal Rules of Civil Procedure as to all proceedings 11 herein. 12 16. Neither this Order and Final Judgment, the Stipulation, nor any of the 13 negotiations, documents or proceedings connected with them shall be: 14 15 16 (a) referred to or used against Defendants or against Plaintiffs or the Settlement Class as evidence of wrongdoing by anyone; (b) construed against Defendants or against Plaintiffs or the 17 Settlement Class as an admission or concession that the consideration to be 18 given hereunder represents the amount which could be or would have been 19 recovered after trial; 20 (c) construed as, or received in evidence as, an admission, concession 21 or presumption against the Settlement Class or any of them, that any of their 22 claims are without merit or that damages recoverable under the Complaint 23 would not have exceeded the Settlement Fund; or 24 (d) used or construed as an admission of any fault, liability or 25 wrongdoing by any person or entity, or offered or received in evidence as an 26 admission, concession, presumption or inference against any of the Defendants 27 in any proceeding other than such proceedings as may be necessary to 28 consummate or enforce the Stipulation. -6[PROPOSED] ORDER AND FINAL JUDGMENT 1 17. The Court retains exclusive jurisdiction over Defendants, Plaintiffs and 2 the Settlement Class Members for all matters relating to the Litigation, including the 3 administration, interpretation, effectuation or enforcement of the Stipulation, the 4 Settlement and/or this Order and Final Judgment, and including any application for 5 fees and expenses incurred in connection with administering and distributing the 6 settlement proceeds to the Settlement Class Members. 7 18. Without further order of the Court, Defendants and Plaintiffs may agree 8 to reasonable extensions of time to carry out any of the provisions of the Stipulation. 9 19. There is no just reason for delay in the entry of this Order and Final 10 Judgment and immediate entry by the Clerk of the Court is directed pursuant to Rule 11 54(b) of the Federal Rules of Civil Procedure. 12 20. The finality of this Order and Final Judgment shall not be affected, in any 13 manner, by rulings that the Court may make on Plaintiffs’ Counsel’s application for 14 an award of attorneys’ fees and expenses and/or award to Plaintiffs. 15 21. The Court hereby awards attorneys’ fees of 30% of the Settlement Fund, 16 or $12,450,000, reimbursement of expenses of $1,090,186.76, and awards Plaintiffs 17 $12,500 each, for a total of $87,500, all of which the Court finds reasonable. In 18 reaching this determination, the Court has considered (1) the results achieved; (2) the 19 risk of litigation; (3) the skill required and the quality of work; (4) the contingent 20 nature of the fee and the financial burden carried by the plaintiffs; and (5) awards made 21 in similar cases. 22 22. If the Settlement does not become final and effective in accordance with 23 the terms and conditions set forth in the Stipulation, then this Order and Final 24 Judgment shall be rendered null and void and be vacated and the Settlement and all 25 orders entered in connection therewith shall be rendered null and void (except as 26 otherwise provided in the Stipulation), and the parties shall be deemed to have reverted 27 to their respective status prior to the execution of this Stipulation, and they shall 28 proceed in all respects as if the Stipulation had not been executed and the related orders -7[PROPOSED] ORDER AND FINAL JUDGMENT 1 had not been entered, preserving in that event all of their respective claims and 2 defenses in the Litigation, and shall revert to their respective positions in the 3 Litigation. 4 IT IS SO ORDERED. 5 6 Dated: August 6, 2020 7 8 9 __ HON. CHRISTINA A. SNYDER UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8[PROPOSED] ORDER AND FINAL JUDGMENT
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