Nickolas Van Windgerden v. Cadiz, Inc. et al

Filing 93

ORDER AND FINAL JUDGMENT by Judge John A. Kronstadt, Related to: Order on Motion for Settlement and Order on Motion for Attorney Fees 92 . See order for details. (ah)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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NICKOLAS VAN WINGERDEN and
BRIAN KOVAR, Individually and on
behalf of all others similarly situated,

Case No: 15-cv-03080-JAK-JEM
ORDER AND FINAL JUDGMENT

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Plaintiffs,

Hon. John A. Kronstadt

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v.

[JS-6]

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CADIZ INC., SCOTT S. SLATER,
TIMOTHY J. SHAHEEN and KEITH
BRACKPOOL,
Defendants.

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On February 6, 2017, a hearing having been held before this Court to

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determine: (1) whether the terms and conditions of the Stipulation of Settlement

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dated June 16, 2016 (the “Stipulation”) are fair, reasonable and adequate for the

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settlement of all claims asserted by (i) the Settlement Class against (ii) Defendants

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Cadiz Inc. (“Cadiz”), Scott S. Slater, Timothy J. Shaheen, and Keith Brackpool

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(collectively, “Defendants”); and (2) whether to approve the proposed Plan of

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Allocation as a fair and reasonable method to allocate the Net Settlement Fund

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among Settlement Class Members; and
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The Court having considered all matters submitted to it at the hearing and
otherwise; and

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It appearing that the Notice substantially in the form approved by the Court

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in the Court’s Order Re Plaintiffs’ Motion for Preliminary Class Action

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Settlement Approval (“Preliminary Approval Order”, Dkt. No. 78) was mailed to

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all reasonably identifiable Settlement Class Members; and

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It appearing that the Summary Notice substantially in the form approved by

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the Court in the Preliminary Approval Order was published in accordance with

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that Order and the specifications of the Court;

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NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED THAT:
1.

All capitalized terms used herein have the same meanings as set forth

and defined in the Stipulation.
2.

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

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Lead Plaintiffs, all Settlement Class Members and Defendants to the Litigation,

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including all Settlement Class Members who did not file, pursuant to the Court’s

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Preliminary Approval Order dated September 30, 2016, a timely request for

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exclusion from the Settlement Class by the requisite deadline.

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3.

The Court finds that the prerequisites for a class action under Rule

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23(a) and (b)(3) of the Federal Rules of Civil Procedure have been satisfied in

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that: (a) the number of Settlement Class Members is so numerous that joinder of

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all members thereof is impracticable; (b) there are questions of law and fact

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common to the Settlement Class; (c) the claims of the Lead Plaintiffs are typical

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of the claims of the Settlement Class they seek to represent; (d) Lead Plaintiffs

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fairly and adequately represent the interests of the Settlement Class; (e) the

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questions of law and fact common to the members of the Settlement Class

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predominate over any questions affecting only individual members of the

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Settlement Class; and (f) a class action is superior to other available methods for
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the fair and efficient adjudication of this Litigation. The Settlement Class is being

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certified for settlement purposes only.

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4.

Pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil

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Procedure, the Court hereby certifies as a settlement class all persons who

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purchased or otherwise acquired the common stock of Cadiz between March 11,

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2014 and October 9, 2015, inclusive (“Class Period”) and did not sell all of such

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common stock prior to April 21, 2015. Excluded from the Settlement Class are (i)

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persons who suffered no compensable losses (e.g., those who bought Cadiz

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common stock during the Class Period but sold all of their stock prior to any

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alleged corrective disclosure); (ii) Opt-Outs (i.e., those persons who file a valid

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and timely request for exclusion) listed in Exhibit A hereto; and (iii) Defendants

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and any entity in which Defendants have a controlling interest, and the officers,

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directors, affiliates, legal representatives, immediate family members, heirs,

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successors, subsidiaries and/or assigns of any such individual or entity in their

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capacity as such.

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5.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Lead

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Plaintiffs are certified as the class representatives on behalf of the Settlement

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Class and Plaintiffs’ Counsel previously selected by Lead Plaintiffs and appointed

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by the Court, is hereby appointed as Lead Counsel for the Settlement Class (or

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“Class Counsel”).

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6.

The Court hereby finds that the forms and methods of notifying the

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Settlement Class of the terms and conditions of the Settlement met the

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requirements of due process and Rule 23 of the Federal Rules of Civil Procedure,

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Section 21D(a)(7) of the Exchange Act, 15 U.S.C. § 78u-4(a)(7), as amended by

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the Private Securities Litigation Reform Act of 1995; constituted the best notice

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practicable under the circumstances; and constituted due and sufficient notice to

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all persons and entities entitled thereto of these proceedings and the matters set

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forth herein, including the Settlement and Plan of Allocation, to all persons
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entitled to such notice. No Settlement Class Member is relieved from the terms of

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the Settlement, including the releases provided for therein, based upon the

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contention or proof that such Settlement Class Member failed to receive actual or

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adequate notice. A full opportunity has been offered to the Settlement Class

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Members to object to the proposed Settlement and to participate in the hearing

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thereon. The Court further finds that the notice provisions of the Class Action

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Fairness Act, 28 U.S.C. § 1715, were fully discharged.

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determined that all members of the Settlement Class are bound by this Order and

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Final Judgment except those persons listed on Exhibit A to this Order and Final

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Thus, it is hereby

Judgment.
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The Settlement is approved as fair, reasonable and adequate, and in

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the best interests of the Settlement Class. Lead Plaintiffs and Defendants are

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directed to consummate the Settlement in accordance with the terms and

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provisions of the Stipulation.

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8.

The Litigation and the Second Amended Complaint (“Complaint”)

are hereby dismissed with prejudice and without costs.
9.

Lead Plaintiffs and the Settlement Class Members, on behalf of

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themselves, their current and former heirs, executors, administrators, successors,

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attorneys, legal representatives, and assigns, hereby release and forever discharge

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the Released Parties from any and all Released Claims. Lead Plaintiffs and the

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Settlement Class Members, and anyone acting or purporting to act for any of

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them, are hereby permanently and forever enjoined from prosecuting, attempting

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to prosecute, or assisting others in the prosecution of the Released Claims against

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the Released Parties.

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10.

Each of the Defendants, including any and all of their respective

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successors in interest or assigns, hereby releases and forever discharges any and

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all Defendants’ claims which arise out of, concern or relate to the institution,

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prosecution, settlement or dismissal of the Action against the Lead Plaintiffs, any
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of the Settlement Class Members and any of their counsel, including Plaintiffs’

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Counsel.

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11.

The Court hereby finds that the proposed Plan of Allocation is a fair

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and reasonable method to allocate the Net Settlement Fund among Settlement

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Class Members.

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12.

In accordance with 15 U.S.C. § 78u-4(f)(7) and any other applicable

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law or regulation, any and all claims which are brought by any Person or entity

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against Defendants (a) for contribution or indemnification arising out of any

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Settled Claim, or (b) where the damage to the claimant is measured by reference

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to the claimant’s liability to the Lead Plaintiffs or the Settlement Class, are hereby

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permanently barred and discharged. Any such claims brought by Defendants

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against any Person or entity (other than Persons or entities whose liability to Lead

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Plaintiffs or the Settlement Class is extinguished by this Judgment) are likewise

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permanently barred and discharged. Further, nothing in this Stipulation shall

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apply to bar or otherwise affect any claim for insurance coverage by any

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Defendant.

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13.

The Court finds that all parties and their counsel have complied with

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

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proceedings herein.

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14.

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

negotiations, documents or proceedings connected with them shall be:
(a)

referred to or used against Defendants or against Lead

Plaintiffs or the Settlement Class as evidence of wrongdoing by anyone;
(b)

construed against Defendants or against Lead Plaintiffs or the

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

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given hereunder represents the amount which could be or would have been

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recovered after trial;

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(c)

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construed as, or received in evidence as, an admission,

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concession or presumption against the Settlement Class or any of them, that

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any of their claims are without merit or that damages recoverable under the

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Complaint would not have exceeded the Settlement Fund; or
(d)

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used or construed as an admission of any fault, liability or

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wrongdoing by any person or entity, or offered or received in evidence as

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an admission, concession, presumption or inference against any of the

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Defendants in any proceeding other than such proceedings as may be

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necessary to consummate or enforce the Stipulation.

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15.

Exclusive jurisdiction is hereby retained over Defendants and the

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

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administration, interpretation, effectuation or enforcement of the Stipulation or

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Settlement and this Order and Final Judgment, and including any application for

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fees and expenses incurred in connection with administering and distributing the

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settlement proceeds to the Settlement Class Members.

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16.

Without further order of the Court, Defendants and Lead Plaintiffs

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may agree to reasonable extensions of time to carry out any of the provisions of

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the Stipulation.

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17.

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

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Judgment and immediate entry by the Clerk of the Court is directed pursuant to

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

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18.

The finality of this Order and Final Judgment shall not be affected, in

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any manner, by rulings that the Court may make on Plaintiffs’ Counsel’s

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application for an award of attorneys’ fees and expenses and/or award to Lead

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Plaintiffs.

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19.

In the event that the Settlement does not become final and effective

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in accordance with the terms and conditions set forth in the Stipulation, then this

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Order and Final Judgment shall be rendered null and void and be vacated and the
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Settlement and all orders entered in connection therewith shall be rendered null

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and void (except as provided in paragraphs 3, 4, 8.2, 9.1, 10.6, 10.7, 10.8, 10.9,

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and 12.1 in the Stipulation), and the parties shall be deemed to have reverted to

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their respective status prior to the execution of this Stipulation, and they shall

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proceed in all respects as if the Stipulation had not been executed and the related

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orders had not been entered, preserving in that event all of their respective claims

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and defenses in the Litigation, and shall revert to their respective positions in the

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Litigation.

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IT IS SO ORDERED.

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Dated: February 8, 2017

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______________________________
HON. JOHN A. KRONSTADT
UNITED STATES DISTRICT JUDGE

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EXHIBIT A
OPT-OUTS (PARTIES EXCLUDED FROM SETTLEMENT)

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No Settlement Class Members have requested exclusion from the Settlement in this
case.

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