Siegal et al v. Gamble et al, No. 3:2013cv03570 - Document 195 (N.D. Cal. 2016)
Court Description: ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT. Final Approval Hearing set for 10/13/2016 at 01:30 PM. Signed by Judge Richard Seeborg on 6/7/16. (cl, COURT STAFF) (Filed on 6/7/2016)
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Siegal et al v. Gamble et al Doc. 195 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 STEVEN SIEGAL, et al., Case No. 13-cv-03570-RS Plaintiffs, 11 United States District Court Northern District of California v. ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT 12 13 G. THOMAS GAMBLE, et al., Defendants. 14 15 16 17 18 WHEREAS, a Settlement Agreement and Release (“Agreement”) has been entered into by and among the following parties in this action: 1. Plaintiffs Steven Siegal, James Rybicki, David Groblebe, individually and as General 19 Partner of Grobco II, and Christian Wipf, all individually and on behalf of those 20 similarly situated (the “California Plaintiffs”); and 21 2. Defendants G. Thomas Gamble, Loren J. Miller, Henry Lowenstein, Paul W. 22 Bateman, Edward M. Gabriel, James S. Mayer, Lynn Blystone, Maston Cunningham, 23 John Durbin, and Greg Billinger. 24 25 WHEREAS, there are several Bankruptcy actions pending in the District of Delaware (the “Bankruptcy Cases”) as follows: 26 1. In re Tri-Valley Corporation, Case No. 12-12291-MFW (Bankr. D. Del. 2012); 27 2. In re Tri-Valley Oil & Gas Co., Case No. 12-12292-MFW (Bankr. D. Del. 2012); 28 Dockets.Justia.com 1 3. 2012); and 2 3 4. 6 In re TVC Opus I Drilling Program, L.P., Case No. 12-12294-MFW (Bankr. D. Del. 2012). 4 5 In re Select Resources Corporation, Inc., Case No. 12-12293-MFW (Bankr. D. Del. WHEREAS, there are several adversarial actions pending in the District of Delaware (the “Adversary Proceedings”) as follows: 1. Stanziale, Jr. v. Blystone, et al., Adv. Pro. No. 13-51212-MFW (Bankr. Del. 2013); 8 2. Burtch v. Blystone, et al., Adv. Pro. No. 13-51214-MFW (Bankr. Del. 2013); 9 3. Stanziale, Jr. v. Gamble, et al., Adv. Pro. No. 13-51312-MFW (Bankr. D. Del. 2013); 10 4. Burtch v. Gamble, et al., Adv. Pro. No. 13-51316-MFW (Bankr. Del. 2013); 11 United States District Court Northern District of California 7 5. Official Committee of Equity Security Holders of TVC Opus I Drilling Program, L.P., et al. v. Gamble, et al., Adv. Pro. No. 12-50994-MFW (Bankr. D. Del. 2012); 12 13 6. Stanziale, Jr. v. Blystone, Adv. Pro. No. 14-50625-MFW (Bankr. D. Del. 2014); 14 7. Stanziale, Jr. v. Kromer, Adv. Pro. No. 14-50623 (Bankr. D. Del. 2014); 15 8. Stanziale, Jr. v. Bush, Adv. Pro. No. 14-50624 (Bank. D. Del. 2014); and 16 9. Stanziale, Jr. v. Kandle, Adv. Pro. 14-50622 (Bankr. D. Del. 2014). 17 WHEREAS, by virtue of the Bankruptcy Cases and the Adversary Proceedings, the 18 following additional parties (who are not parties to this action) have joined the Plaintiffs and the 19 above-listed Defendants as parties to the Agreement: 20 1. The Estates of Tri-Valley Corporation, Tri-Valley Oil & Gas Co., and Select 21 Resources Corp., Inc., (collectively “Tri-Valley”), by Charles A. Stanziale as Chapter 22 7 Trustee (the “TVC Trustee”); 23 2. The Estate of the TVC Opus I Drilling Program, L.P. (“Opus”), by Jeoffrey L. Burtch 24 as Chapter 7 Trustee (the “Opus Trustee”, and together with the TVC Trustee, the 25 “Trustees”); 26 27 28 3. Milton J. Carlson, Dennis Lockhart, Harold Noyes (named as defendants in the Delaware proceedings). ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT CASE NO. 13-cv-03570-RS 2 1 4. The following Directors and Officers Insurance Companies (collectively the “D&O 2 Insurers”): 3 i. National Union Fire Insurance Company of Pittsburgh, PA and AIG Claims, Inc. (“National Union”); 4 5 ii. Arch Insurance Company (“Arch”); 6 iii. Liberty Mutual Insurance Company (“Liberty”). 7 5. 8 WHEREAS, the Court has reviewed the Agreement, together with all exhibits thereto, the 9 10 George R. Miller record in this case, and the arguments of counsel; and WHEREAS, this Court preliminarily finds, for the purposes of settlement only, that the United States District Court Northern District of California 11 class alleged in the Action meets all the prerequisites of Rule 23 of the Federal Rules of Civil 12 Procedure for class certification, including numerosity, commonality, typicality, and that the 13 California Plaintiffs and Counsel for the California Plaintiffs are adequate representatives of the 14 Settlement Class, and that the class alleged in the Action meets all the prerequisites of Rule 23 of 15 the Federal Rules of Civil Procedure for class certification, in that the questions of law or fact 16 common to the members of the class predominate over any questions affecting only individual 17 members, and that a class action is superior to other available methods for the fair and efficient 18 adjudication of the controversy; 19 IT IS HEREBY ORDERED AS FOLLOWS: 20 1. 21 22 All terms and definitions used herein have the same meanings as set forth in the Agreement. 2. The proposed settlement set forth in the Agreement is hereby preliminarily 23 approved as being within the range of reasonableness such that notice thereof should be given to 24 members of the Settlement Class (as defined in the following paragraph). 25 3. The Action is provisionally certified as a class action, for the purposes of 26 settlement only, pursuant to Rule 23 of the Federal Rules of Civil Procedure, and concerning the 27 following Class: 28 ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT CASE NO. 13-cv-03570-RS 3 1 3 All persons and entities who purchased securities issued by or on behalf of TVC Opus I Drilling Program, L.P., directly or indirectly, personally or through aggregators (the “Settlement Class”). Excluded from the Settlement Class are all defendants in the Siegal Action, including their parent companies and subsidiaries, and members of their nuclear families, and any member of the judiciary presiding over this action. 4 4. 2 The Court preliminarily finds that the Settlement Class is sufficiently numerous that joinder is not practicable. The Court further preliminarily finds that there are questions of law 6 and fact common to the members of the Settlement Class which predominate over any questions 7 affecting individual members of the Settlement Class, and a class action is found, on a preliminary 8 basis for settlement purposes, to be superior to other available methods for the fair and efficient 9 resolution of the claims against the Settling Defendants. These common issues are provisionally 10 found to satisfy what is required for provisional class certification under Rule 23 of the Federal 11 United States District Court Northern District of California 5 Rules of Civil Procedure. On a preliminary basis, the Court finds that (a) the claims of Plaintiffs 12 are typical of the claims of the members of the overall alleged Settlement Class, and (b) the claims 13 of the Settlement Class and the Plaintiffs arise out of the same alleged facts and present the same 14 legal theories of alleged liability against the Settling Defendants. 15 5. The Court further preliminarily finds that (a) the California Plaintiffs will fairly and 16 adequately protect the interests of the Class, and (b) the California Plaintiffs have retained counsel 17 who have the experience and resources necessary to provide adequate representation of the Class 18 and meet the requirements of Rule 23 of the Federal Rules of Civil Procedure. 19 6. The Court hereby appoints CPT Group, Inc. as the Settlement Administrator. 20 7. Counsel for the Settlement Class and Settlement Class Representatives are hereby 21 found to be, and are, therefore, appointed as adequate representatives of the Settlement Class: 22 Edward S. Zusman, Kevin K. Eng, and Markun Zusman Freniere & Compton LLP, 465 California 23 Street, Suite 401, San Francisco, CA 94104, and John Fabry and Fabry Law Firm, 111 Congress 24 Avenue, Suite 400, Austin, Texas 78701, are hereby appointed as Counsel for the Settlement 25 Class, and Steven Siegal, James Rybicki, David Groblebe, individually and as General Partner of 26 Grobco II, and Christian Wipf are hereby appointed as Settlement Class Representatives. 27 28 ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT CASE NO. 13-cv-03570-RS 4 8. 1 Certification of the Settlement Class shall be solely for settlement purposes and 2 without prejudice to the Parties in the event that the Agreement is not finally approved by this 3 Court or otherwise does not take effect. Certification of the Settlement Class shall be vacated and 4 shall have no effect in the event that the Agreement is not finally approved by this Court or 5 otherwise does not take effect. 9. 6 The Notice of Proposed Settlement of Class Action (“Notice”) and the Claim Form, 7 which are attached to the Agreement as Exhibits A and B, respectively, are hereby approved as to 8 form. 9 10. A copy of the Notice, together with the Claim Form, shall be posted on a settlement website, www.cptgroup.com/SiegalvGamble (the “Settlement Website”) not later than 20 days 11 United States District Court Northern District of California 10 after the date of this Order. The Notice and the Claim Form shall be downloadable from the 12 Settlement Website. Settlement Class Members who are unable to download the Notice and/or 13 Claim Form may request that the Notice and/or Claim Form be mailed to them at no charge by 14 sending an e-mail to an e-mail address to be provided on the Settlement Website (“Settlement E- 15 mail Address”). In addition to the Notice and Claim Form, copies of the Settlement Agreement 16 and pertinent Pleadings and Court Orders shall also be posted on the Settlement Website. 17 11. The Court finds that the form of Notice, describing the pendency of the Litigation, 18 this Settlement, and Class Counsel’s anticipated fee and expense application, and the methods of 19 dissemination to members of the Settlement Class in accordance with the terms of this Order, 20 constitute the best notice practicable under the circumstances and constitute valid, due, and 21 sufficient notice to all members of the Settlement Class, complying fully with the requirements of 22 Rule 23 of the Federal Rules of Civil Procedure, the United States Constitution, and any other 23 applicable law. 24 12. Any member of the Settlement Class who does not, in connection with the 25 settlement notices, file a valid and timely request for exclusion will be bound by the Final 26 Judgment dismissing this action on the merits and with prejudice. 27 28 ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT CASE NO. 13-cv-03570-RS 5 1 13. A hearing (the “Final Approval Hearing”) shall be held by the Court on October 13, 2 2016, at 1:30 p.m., to consider and determine whether the requirements for certification of the 3 Settlement Class have been met and whether the proposed settlement of the Action on the terms 4 set forth in the Agreement should be approved as fair, reasonable, adequate, and in the best 5 interests of the Settlement Class Members; whether Counsel for the Settlement Class’s fee and 6 expense application should be approved; and whether the Final Judgment approving the settlement 7 and dismissing the Action on the merits and with prejudice against the Settlement Class 8 Representatives and all Settlement Class Members should be entered. 9 14. The Final Approval Hearing may, from time to time, and without further notice to the Settlement Class (except those who have filed timely and valid objections), be continued or 11 United States District Court Northern District of California 10 adjourned by Order of the Court. 12 13 14 15. The California Plaintiffs will file all papers in support of their application for payment of attorneys’ fees and expenses no later than August 2, 2016. 16. Any Settlement Class Member who seeks to be excluded from the Settlement Class 15 must send a request by first class mail, postmarked on or before August 26, 2016, to Counsel for 16 the Settlement Class, Edward S. Zusman and Kevin K. Eng, of Markun Zusman Freniere & 17 Compton LLP, 465 California Street, Suite 401, San Francisco, CA 94104. 18 17. Objections by any Settlement Class Member to: (A) certification of the Settlement 19 Class and the proposed settlement contained in the Agreement and described in the Notice; (B) 20 payment of fees and expenses to Counsel for the Settlement Class; and/or (C) entry of the Final 21 Judgment, shall be heard and any papers submitted in support of said objections shall be 22 considered by the Court at the Final Approval Hearing only if, on or before August 26, 2016, such 23 objector files with the Court a notice of his, her or its objections, submits documentary proof that 24 he, she or it is a member of the Settlement Class, states the basis for such objections, and serves 25 copies of the foregoing and all other papers in support of such objections on counsel for the 26 Settlement Class and counsel for Settling Defendants, as identified in the Notice. 27 28 ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT CASE NO. 13-cv-03570-RS 6 1 18. No later than September 15, 2016, the California Plaintiffs shall file all papers in 2 support of the application for final approval of the settlement, and/or any papers in response to any 3 valid and timely objections with the Court, and shall serve copies of such papers upon each other 4 and upon any objectors who have complied with the provisions of paragraph 12 of this Order. 5 Counsel for the Parties are hereby authorized to utilize all reasonable procedures in connection 6 with the administration of the Settlement which are not materially inconsistent with either this 7 Order or the terms of the Agreement, including making, without further approval of the Court, 8 minor changes to the form or content of the Notice, and other exhibits that they jointly agree are 9 reasonable or necessary. Disputes not resolved by the Parties in administering the proposed Settlement may be brought before the Court. 11 United States District Court Northern District of California 10 IT IS SO ORDERED. 12 13 14 15 Dated: June 7, 2016 ______________________________________ RICHARD SEEBORG United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT CASE NO. 13-cv-03570-RS 7
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