The State of California by its Attorney General Bill Lockyer and the City and County of San Francisco Ex Rel Dennis J. Herrera and the Los Angeles Unified School District on Behalf of all other Politi et al v. Infineon Technologies AG et al

Filing 503

STIPULATION AND SECOND SUPPLEMENTAL ORDER RE: 1) APPOINTMENT OF HON. CHARLES RENFREW AS SPECIAL MASTER; AND 2) TREATMENT OF THE SETTLEMENT FUNDS AS QUALIFIED SETTLEMENT FUNDS UNDER TREASURY REGULATIONS re (2101 in 4:02-md-01486-PJH) Stipulation, filed by Petro Computer Systems, Inc.. Signed by Judge Phyllis J. Hamilton on 3/16/11. (nah, COURT STAFF) (Filed on 3/16/2011)

The State of California by its Attorney General E...Clara et al. v. Infineon Technologies AG, et al.

Doc. 503

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JOSEF D. COOPER (53015) TRACY R. KIRKHAM (69912) COOPER & KIRKHAM, P.C. 357 Tehama Street, Second Floor San Francisco, CA 94103 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] [e-mail] Co-Lead Counsel for Indirect-Purchaser Plaintiffs KAMALA D. HARRIS Attorney General of the State of California KATHLEEN FOOTE (65819) Senior Assistant Attorney General EMILIO E. VARANINI (163952) Deputy Attorney General 455 Golden Gate Avenue, Ste. 11000 San Francisco, CA 94102 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Attorneys for the State of California On Behalf of All Attorneys General and All Governmental Purchaser Class Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION In re DYNAMIC RANDOM ACCESS Master File No. M-02-1486-PJH MEMORY (DRAM) ANTITRUST LITIGATION MDL No. 1486 ____________________________________ Case No. C 06-4333 PJH This document relates to: Case No. C 06-6436 PJH ALL INDIRECT PURCHASER ACTIONS and STIPULATION AND [PROPOSED] SECOND SUPPLEMENTAL ORDER RE: (1) APPOINTMENT OF HON. CHARLES B. RENFREW AS SPECIAL MASTER; AND (2) TREATMENT OF THE SETTLEMENT FUNDS AS QUALIFIED SETTLEMENT FUNDS UNDER TREASURY REGULATIONS Judge: Honorable Phyllis J. Hamilton

22 23 24 and 25 26 27 28 State of New York v. Micron Technology, Inc., et al. State of California et. al. v. Infineon Technologies AG, et. al.

STIPULATION AND [PROPOSED] SECOND SUPPLEMENTAL ORDER APPOINTING THE HONORABLE CHARLES B. RENFREW AS SPECIAL MASTER 1

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STIPULATION AND [PROPOSED] ORDER WHEREAS, pursuant to the Court's November 15, 2007 Order and Federal Rule of Civil Procedure 53, the Indirect Purchaser Plaintiffs, the Governmental Purchaser Plaintiffs, and Attorneys General (collectively "Plaintiffs"), Defendants Samsung Semiconductor, Inc. and Samsung Electronics Company, Ltd. ("Samsung") and Defendants Winbond Electronics Corporation and Winbond Electronics Corporation America ("Winbond') entered into a Stipulation and [Proposed] Order on November 28, 2007; and WHEREAS, on November 30, 2007, the Court signed the proposed Stipulation and Order submitted by Plaintiffs, Samsung and Winbond, appointing the Honorable Charles B. Renfrew, United States District Court Judge (Retired), as Special Master in these proceedings pursuant to Federal Rule of Civil Procedure 53(a)(1)(A), and charging him with the duty of preparing a report and issuing recommendations on the subjects of: (1) the plan of allocation of settlement proceeds for the benefit of members of the Private Indirect Purchaser Settlement Class and the Government Purchaser Settlement Class, and (2) the development of form(s) of notice for the Classes (Dkt. # 1787); and WHEREAS, also on November 30, 2007, this Court entered an Order Modifying Stipulation and Order Appointing Special Master, in which the Court broadened the reference to Judge Renfrew to include the duty of preparing a report and issuing recommendations on the subject of whether, in light of the guidance of the Manual for Complex Litigation, Fourth, § 21.23, certification of the proposed settlement classes, including the creation of subclasses, is appropriate (Dkt. # 1789); and WHEREAS, Plaintiffs subsequently entered into a separate settlement agreement with Defendants Infineon Technologies AG and Infineon Technologies North America Corp. ("Infineon"), Elpida Memory, Inc. and Elpida Memory (USA) Inc. ("Elpida"), NEC Electronics America, Inc., presently known as Renesas Electronics America Inc. ("NEC"), Mosel Vitelic Corp. and Mosel Vitelic, Inc. ("Mosel"), Micron Technology, Inc. and Micron
STIPULATION AND [PROPOSED] SECOND SUPPLEMENTAL ORDER APPOINTING THE HONORABLE CHARLES B. RENFREW AS SPECIAL MASTER 2

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Semiconductor Products, Inc. ("Micron"), and Hynix Semiconductor Inc. and Hynix Semiconductor America Inc. ("Hynix") (collectively, the "Settling Defendants"); and WHEREAS, pursuant to Federal Rule of Civil Procedure 53, the Plaintiffs and Settling Defendants entered into a Stipulation and [Proposed] Order on November 22, 2010; and WHEREAS, on November 29, 2010, the Court signed the Stipulation and [Proposed] Order submitted by Plaintiffs and the Settling Defendants appointing the Honorable Charles B. Renfrew, United States District Court Judge (Retired), as Special Master in these proceedings pursuant to Federal Rule of Civil Procedure 53(a)(1)(A), and charging him with the duty of preparing a report and issuing recommendations on the subjects of: (1) the plan of allocation of settlement proceeds for the benefit of members of the Private Indirect Purchaser Settlement Class and the Government Purchaser Settlement Class, and (2) the development of form(s) of notice for the Classes (Dkt. # 2099); and WHEREAS, Plaintiffs have entered into a separate settlement agreement with Defendants Nanya Technology Corporation and Nanya Technology Corporation USA, Inc. (collectively "Settling Nanya Defendants"); and WHEREAS, the settlement agreement between the Plaintiffs and the Settling Nanya Defendants, as well as the settlement agreements entered into previously between the Plaintiffs and the Settling Defendants, the Plaintiffs and Samsung and the Plaintiffs and Winbond, all contemplate the establishment of one or more "Escrow Accounts," each intended to qualify as a "qualified settlement fund" within the meaning of section 1.468B-1, et. seq. of the Treasury Regulations promulgated under section 468B of the Internal Revenue Code. THEREFORE, the Plaintiffs and the Settling Nanya Defendants hereby stipulate to the following proposed Order:

STIPULATION AND [PROPOSED] SECOND SUPPLEMENTAL ORDER APPOINTING THE HONORABLE CHARLES B. RENFREW AS SPECIAL MASTER 3

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1.

The Honorable Charles B. Renfrew, United States District Court Judge

(Retired), previously appointed as Special Master in these proceedings pursuant to Federal Rule of Civil Procedure 53(a)(1)(A), shall have the authority granted by Rule 53(c), Federal Rules of Civil Procedure, as to Plaintiffs' proposed settlement with the Settling Nanya Defendants.1 2. The Special Master's duties shall be supplemented and modified to also

include assisting the Plaintiffs, the Settling Nanya Defendants and the Court by preparing a report and issuing recommendations on the following subjects in connection with Plaintiffs' proposed settlement with the Settling Nanya Defendants: a. The development of a plan of allocation of settlement proceeds for the benefit of members of the Private Indirect Purchaser Settlement Class and the Government Purchaser Settlement Class, including the consideration and/or addition of any subclasses or other means of ensuring a fair and equitable allocation; b. The development of a proposed form of notice, and methods to disseminate that notice, in order to adequately apprise settlement class members of the proposed settlements; c. In connection with the above duties, and taking into consideration the guidance provided by the Manual for Complex Litigation, Fourth, § 21.23, whether ultimate certification of the classes is appropriate; and d. The appropriate amount of fees and reimbursement of costs to be awarded to Plaintiffs and the appropriate amount of incentive awards to be awarded to class representatives pursuant to Section 29 of the settlement agreement between Plaintiffs and the Settling Nanya Defendants.
The Special Master's authority shall include the authority to appoint counsel to represent the interests of any portion of the Settlement Class if he, in his discretion, determines that would be helpful.
1

STIPULATION AND [PROPOSED] SECOND SUPPLEMENTAL ORDER APPOINTING THE HONORABLE CHARLES B. RENFREW AS SPECIAL MASTER 4

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3.

The Special Master shall proceed in the performance of these duties, which

may be combined with the performance of the duties for which he was previously appointed, with all reasonable diligence and shall file his report and recommendations with the Court and serve the report on the parties on or before a date to be specified in future orders of the Court. In all respects this Court's Orders of November 30, 2007 and November 29, 2010 shall remain in full force and effect. 4. The Special Master shall maintain and preserve any written order, report or

recommendation the Special Master may make pursuant to this Stipulation and Order until this matter is finally resolved. The Special Master may designate formal briefs, information submissions, or any other materials as materials to be preserved and filed as the record of the master's activities and shall file such record with the Court in electronic format pursuant to future order of the Court. In order to facilitate the fair and effective performance of the duties set forth in Paragraph 3 above, the Special Master may communicate ex parte with the Court, counsel and the settling parties. The Special Master may review confidential documents and other information that is subject to the Protective Order issued in these actions as a court officer and shall be bound by the terms of the Protective Order. 5. Except as ordered by the Special Master, all papers submitted to the Special

Master in connection with any hearing to be held by him shall be served upon counsel for Plaintiffs and the Settling Defendants at least five (5) court days before any hearing; responses shall be filed and served at least two (2) court days before any hearing; and reply briefs shall be filed and served at least one (1) court day before the hearing. 6. The Special Master's fee shall be computed by multiplying the hours incurred

by him by his normal and customary hourly rate and all expenses shall be reasonably incurred and shall be billed at the Special Master's actual out-of-pocket cost. All payments to the Special Master shall be made from the settlement funds and be allocated pursuant to

STIPULATION AND [PROPOSED] SECOND SUPPLEMENTAL ORDER APPOINTING THE HONORABLE CHARLES B. RENFREW AS SPECIAL MASTER 5

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the agreement of the parties or by order of the Court upon the recommendation of the Special Master. 7. The parties and the Court have reviewed the Declaration executed by Judge

Renfrew, attached as Exhibit 1, to the November 30, 2007, Stipulation and Order (Dkt. #1787), pursuant to Rule 53(b)(3), Federal Rules of Civil Procedure and 28 U.S.C. 455. 8. Pursuant to Rule 53(g)(1), Federal Rules of Civil Procedure, the Court may

adopt, affirm, modify, wholly or partly reject, or resubmit to the Special Master with instructions any order, report, or recommendation submitted by the Special Master. All objections to findings of fact and all conclusions of law made or recommended by the Special Master shall be reviewed by the Court de novo unless otherwise ordered by the Court. 9. The Escrow Accounts created pursuant to each and all of the settlement

agreements referenced above shall be administered under the continuing supervision of this Court, and shall be treated, administered, maintained, managed and operated at all times as qualified settlement funds within the meaning of Treas. Reg. Section 1.468B-1 through mechanisms that provide for the Escrow Agents to make such elections as are necessary or advisable to treat the Escrow Accounts as such, including the "relation-back election" (as defined in Treas. Reg. Section 1.468B-1) back to the earliest permitted date, and to make reasonable assurance that the Escrow Accounts will be in a financial position to pay all claims in strict compliance with the terms of the settlement agreements and as directed by the Court. This order shall be effective nunc pro tunc to the date(s) of lodging of each of the settlement agreements. This Stipulation and Proposed Order is respectfully submitted this 10th day of March, 2011 by the following counsel for the Plaintiffs and the Settling Nanya Defendants.

STIPULATION AND [PROPOSED] SECOND SUPPLEMENTAL ORDER APPOINTING THE HONORABLE CHARLES B. RENFREW AS SPECIAL MASTER 6

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COOPER & KIRKHAM, P.C.

By:

/s/ Josef D. Cooper Co-Lead Counsel for Indirect Purchaser Plaintiffs

By:

/s/ Emilio E. Varanini Liaison Counsel On Behalf of All Attorneys General and All Governmental Purchaser Class Plaintiffs

By:

/s/ Robert E. Freitas ORRICK, HERRINGTON, SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025-1015 Telephone: [phone] Counsel for Defendants Nanya Technology Corporation and Nanya Technology Corporation USA, Inc.

ATTESTATION OF FILING Pursuant to General Order No. 45§ X(B), I hereby attest that I have obtained concurrence in the service and filing of this Stipulation with electronic signatures from all counsel of the parties listed above. DATED: March 10, 2011 COOPER & KIRKHAM, P.C.

By:

/s/ Josef D. Cooper

STIPULATION AND [PROPOSED] SECOND SUPPLEMENTAL ORDER APPOINTING THE HONORABLE CHARLES B. RENFREW AS SPECIAL MASTER 7

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