Baker v. Seaworld Entertainment, Inc. et al

Filing 530

JUDGMENT and Order of Dismissal. In accordance with this Court's Order granting Plaintiffs' Motion for Final Approval of Class Action Settlement (Doc. No. 521 ) and Motion for Attorneys' Fees and Litigation Expenses (Doc. No. 522 ), the Court hereby APPROVES the parties' Settlement Agreement and ORDERS the parties to implement the Settlement Agreement according to its terms and conditions and this Court's Final Order. Signed by Judge Michael M. Anello on 7/24/2020. (tcf) (jms).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 14-cv-02129-MMA-AGS

LOU BAKER, Individually and on
Behalf of All Others Similarly Situated,

JUDGMENT AND ORDER OF
DISMISSAL

Plaintiff,
v.
SEAWORLD ENTERTAINMENT,
INC., et al.,

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Defendants.

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In accordance with this Court’s Order granting Plaintiffs’ Motion for Final

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Approval of Class Action Settlement (Doc. No. 521) and Motion for Attorneys’ Fees and

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Litigation Expenses (Doc. No. 522), the Court hereby APPROVES the parties’

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Settlement Agreement and ORDERS the parties to implement the Settlement Agreement

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according to its terms and conditions and this Court’s Final Order. 1

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This Order and Judgment hereby adopts and incorporates by reference the terms and
conditions of the Settlement Agreement, together with the definitions used therein.
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1.

Jurisdiction – The Court has jurisdiction over the subject matter of the

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Action, and all matters relating to the Settlement, as well as personal jurisdiction over all

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of the Parties and each of the Class Members.

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2.

Incorporation of Settlement Documents – This Judgment incorporates and

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makes a part hereof: (a) the Stipulation filed with the Court on February 11, 2020; and (b)

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the Postcard Notice, the Notice, and the Summary Notice, all of which were filed with the

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Court on June 17, 2020.

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3.

Notice and Plan of Allocation – The Court finds that the dissemination of

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the Postcard Notice, the posting of the Notice on the Settlement Website, and the

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publication of the Summary Notice: (a) were implemented in accordance with the

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Preliminary Approval Order; (b) constituted the best notice practicable under the

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circumstances; (c) constituted notice that was reasonably calculated, under the

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circumstances, to apprise Class Members of (i) the effect of the Settlement Agreement

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(including the Releases to be provided thereunder); (ii) Class Counsel’s motion for

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attorneys’ fees and Litigation Expenses; (iii) Class Members’ right to object to any aspect

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of the Settlement, the Plan of Allocation and/or Class Counsel’s motion for attorneys’

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fees and Litigation Expenses; and (iv) Class Members’ right to appear at the Settlement

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Fairness Hearing; (d) constituted due, adequate, and sufficient notice to all persons and

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entities entitled to receive notice of the Settlement Agreement; and (e) satisfied the

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requirements of Rule 23 of the Federal Rules of Civil Procedure, the United States

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Constitution (including the Due Process Clause), the Private Securities Litigation Reform

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Act of 1995, 15 U.S.C. §§ 77z-1, 78u-4, as amended, and all other applicable law and

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rules.

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a. The Court hereby approves the proposed Plan of Allocation. The Court has

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jurisdiction to enter this Order approving the proposed Plan of Allocation,

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and over the subject matter of the Action and all Parties to the Action,

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including all Class Members.

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b. Notice of Class Representatives’ motion for approval of the proposed Plan

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of Allocation was given to all Class Members who or which could be

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identified with reasonable effort. The form and method of notifying the

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Class of the motion for approval of the proposed Plan of Allocation satisfied

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the requirements of Rule 23 of the Federal Rules of Civil Procedure, the

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United States Constitution (including the Due Process Clause), the Private

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Securities Litigation Reform Act of 1995 (15 U.S.C. §§ 77z-1, 78u-4), as

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amended, and all other applicable law and rules, constituted the best notice

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practicable under the circumstances, and constituted due and sufficient

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notice to all persons and entities entitled thereto.

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c. More than 16,500 copies of the Postcard Notice and 4,400 copies of the

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Notice were mailed to potential Class Members and nominees, and the

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Notice which included the Plan of Allocation was posted on the Settlement

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Website, and there are no objections to the Plan of Allocation.

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d. The Court hereby finds and concludes that the formula for the calculation of

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the claims of Claimants as set forth in the Plan of Allocation provides a fair

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and reasonable basis upon which to allocate the proceeds of the Net

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Settlement Fund among Class Members with due consideration having been

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given to administrative convenience and necessity.

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e. The Court hereby finds and concludes that the Plan of Allocation is, in all

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respects, fair and reasonable to the Class. Accordingly, the Court hereby

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approves the Plan of Allocation proposed by Class Representatives.

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f. Any appeal or any challenge affecting this Court’s approval of the Plan of

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Allocation shall in no way disturb or affect the finality of the Judgment.

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4.

CAFA Notice – The Court finds that the notice requirements set forth in the

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Class Action Fairness Act of 2005, 28 U.S.C. § 1715, to the extent applicable to the

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Action, have been satisfied.

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5.

Final Settlement Approval and Dismissal of Claims – Pursuant to, and in

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accordance with, Rule 23(e)(2) of the Federal Rules of Civil Procedure, this Court hereby

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fully and finally approves the Settlement set forth in the Stipulation in all respects

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(including, without limitation, the amount of the Settlement, the Releases provided for

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therein, and the dismissal with prejudice of the claims asserted against Defendants in the

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Action), and finds that the Settlement is, in all respects, fair, reasonable, and adequate to

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the Class. Specifically, the Court finds that (a) Class Representatives and Class Counsel

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have adequately represented the Class; (b) the Settlement was negotiated by the Parties at

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arm’s length; (c) the relief provided for the Class under the Settlement is adequate taking

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into account the costs, risks, and delay of trial and appeal, the proposed means of

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distributing the Settlement Fund to the Class, and the proposed attorneys’ fee award; and

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(d) the Settlement treats members of the Class equitably relative to each other. The

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Parties are directed to implement, perform, and consummate the Settlement in accordance

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with the terms and provisions contained in the Stipulation.

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6.

The Action and all of the claims asserted against Defendants in the Action

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by Class Representatives and the other Class Members are hereby dismissed with

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prejudice as to all Defendants. The Parties shall bear their own costs and expenses,

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except as otherwise expressly provided in the Stipulation.

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7.

Binding Effect – The terms of the Stipulation and of this Judgment shall be

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forever binding on Defendants, Class Representatives, and all other Class Members

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(regardless of whether or not any individual Class Member submits a Claim Form or

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seeks or obtains a distribution from the Net Settlement Fund), as well as their respective

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successors and assigns. The persons and entities listed on Exhibit 1 hereto are excluded

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from the Class pursuant to request and are not bound by the terms of the Stipulation or

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this Judgment.

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8.

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Releases – The Releases set forth in paragraphs 5 and 6 of the Stipulation,

together with the definitions contained in paragraph 1 of the Stipulation relating thereto,

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are expressly incorporated herein in all respects. The Releases are effective as of the

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Effective Date. Accordingly, this Court orders that:

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(a)

Without further action by anyone, and subject to paragraph 9 below,

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upon the Effective Date of the Settlement, Class Representatives and each of the other

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Class Members, on behalf of themselves, and their respective heirs, executors,

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administrators, trusts, trustees, estates, beneficiaries, legatees, insurers, reinsurers,

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predecessors, successors, and assigns (and assignees of each of the foregoing), in their

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capacities as such, shall be deemed to have, and by operation of law and of this Judgment

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shall have, fully, finally, and forever compromised, settled, released, resolved,

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relinquished, waived, and discharged each and every Released Plaintiffs’ Claim against

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Defendants and the other Defendants’ Releasees, and shall forever be barred and enjoined

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from prosecuting any or all of the Released Plaintiffs’ Claims against any of the

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Defendants’ Releasees; and

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(b)

Without further action by anyone, and subject to paragraph 9 below,

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upon the Effective Date of the Settlement, Defendants, on behalf of themselves, and their

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respective heirs, executors, administrators, trusts, trustees, estates, beneficiaries, legatees,

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insurers, reinsurers, predecessors, successors, and assigns (and assignees of each of the

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foregoing), in their capacities as such, shall be deemed to have, and by operation of law

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and of this Judgment shall have, fully, finally, and forever compromised, settled,

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released, resolved, relinquished, waived, and discharged each and every Released

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Defendants’ Claim against Class Representatives and the other Plaintiffs’ Releasees, and

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shall forever be barred and enjoined from prosecuting any or all of the Released

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Defendants’ Claims against any of the Plaintiffs’ Releasees. This Release shall not apply

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to any person or entity who submitted a request for exclusion from the Class in

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connection with the Class Notice as listed on Exhibit 1 hereto.

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9.

Notwithstanding paragraphs 8(a) – (b) above, nothing in this Judgment shall

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bar any action by any of the Parties to enforce or effectuate the terms of the Stipulation or

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this Judgment.
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10.

Bar Order – Upon the Effective Date, to the fullest extent permitted by law,

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(i) all persons shall be permanently enjoined, barred and restrained from commencing,

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instituting, prosecuting, or maintaining any claims, actions, or causes of action for

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contribution, indemnity or otherwise against any of Defendants’ Releasees seeking as

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damages or otherwise the recovery of all or part of any liability, judgment or settlement

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which they pay or are obligated to pay or agree to pay to the Plaintiffs’ Releasees arising

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out of, relating to or concerning any acts, facts, statements or omissions that were or

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could have been alleged in the Action, both known and Unknown Claims, whether

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arising under state, federal or foreign law, as claims, cross-claims, counterclaims, third-

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party claims or otherwise, in the Court or any other federal, state, or foreign court, or in

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any arbitration proceeding, administrative agency proceeding, tribunal, or any other

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proceeding or forum; and (ii) all Defendants’ Releasees shall be permanently enjoined,

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barred and restrained from commencing, instituting, prosecuting, or maintaining any

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claims, actions, or causes of action for contribution, indemnity or otherwise against any

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persons seeking as damages or otherwise the recovery of all or part of any liability,

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judgment or settlement which they pay or are obligated to pay or agree to pay to the

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Plaintiffs’ Releasees arising out of, relating to, or concerning any acts, facts, statements

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or omissions that were or could have been alleged in the Action, both known and

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Unknown Claims, whether arising under state, federal or foreign law, as claims, cross-

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claims, counterclaims, third-party claims or otherwise, in the Court or any other federal,

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state, or foreign court, or in any arbitration proceeding, administrative agency

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proceeding, tribunal, or any other proceeding or forum; provided that clauses (i) and (ii)

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of this Paragraph shall not be construed to modify, amend, or supersede any agreements

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between or among the Defendants’ Releasees with respect to claims between or among

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those Defendants’ Releasees, including, without limitation, any claims for contractual or

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other indemnification rights, nor limit the Defendants’ ability to pursue insurance

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recoveries against their insurers for claims relating to this Action, including the

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Settlement Amount and legal fees and costs incurred in connection with the Action. The
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foregoing barred claims shall not include claims that arise out of or relate to a cause of

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action that has been or may be asserted by any person or entity who previously submitted

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a request for exclusion from the Class in connection with the Class Notice as set forth on

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Exhibit 1 hereto.

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11.

Any final verdict or judgment that may be obtained by or on behalf of the

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Class against any person or entity subject to the bar order set forth in paragraph 10 above

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shall, pursuant to 15 U.S.C. §78u-4(f)(7)(B), be reduced by the greater of (a) an amount

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that corresponds to the percentage of responsibility of the Defendants for common

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damages; or (b) the amount paid by or on behalf of Defendants and Former Defendants to

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the Class or a Class Member for common damages.
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Rule 11 Findings – The Court finds and concludes that the Parties and their

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respective counsel have complied in all respects with the requirements of Rule 11 of the

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Federal Rules of Civil Procedure in connection with the institution, prosecution, defense,

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and settlement of the Action.

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13.

No Admissions – Neither this Judgment, the Stipulation (whether or not

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consummated), including the exhibits thereto and the Plan of Allocation contained therein

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(or any other plan of allocation that may be approved by the Court), the negotiations

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leading to the execution of the Stipulation, nor any proceedings taken pursuant to or in

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connection with the Stipulation and/or approval of the Settlement (including any

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arguments proffered in connection therewith):

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(a) shall be offered against any of the Defendants’ Releasees as evidence of,

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or construed as, or deemed to be evidence of any presumption, concession, or admission

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by any of the Defendants’ Releasees with respect to the truth of any fact alleged by Class

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Representatives or the validity of any claim that was or could have been asserted or the

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deficiency of any defense that has been or could have been asserted in this Action or in

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any other litigation, or of any liability, negligence, fault, or other wrongdoing of any kind

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of any of the Defendants’ Releasees or in any way referred to for any other reason as

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against any of the Defendants’ Releasees, in any arbitration proceeding or other civil,
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criminal, or administrative action or proceeding, other than such proceedings as may be

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necessary to effectuate the provisions of the Stipulation;

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(b) shall be offered against any of the Plaintiffs’ Releasees, as evidence of,

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or construed as, or deemed to be evidence of any presumption, concession, or admission

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by any of the Plaintiffs’ Releasees that any of their claims are without merit, that any of

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the Defendants’ Releasees had meritorious defenses, or that damages recoverable under

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the Second Amended Complaint would not have exceeded the Settlement Amount or

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with respect to any liability, negligence, fault, or wrongdoing of any kind, or in any way

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referred to for any other reason as against any of the Plaintiffs’ Releasees, in any

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arbitration proceeding or other civil, criminal, or administrative action or proceeding,

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other than such proceedings as may be necessary to effectuate the provisions of the

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Stipulation; or

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(c) shall be construed against any of the Releasees as an admission,

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concession, or presumption that the consideration to be given hereunder represents the

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amount which could be or would have been recovered after trial; provided, however, that

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the Parties and the Releasees and their respective counsel may refer to it to effectuate the

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protections from liability granted hereunder or otherwise to enforce the terms of the

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Settlement, and may file the Stipulation and/or this Judgment in any action in order to

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support a defense, claim, or counterclaim based on principles of res judicata, collateral

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estoppel, release, good faith settlement, judgment bar or reduction, or any other theory of

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claim preclusion or issue preclusion or similar defense or counterclaim.

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Retention of Jurisdiction – Without affecting the finality of this Judgment

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in any way, this Court retains continuing and exclusive jurisdiction over:

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(a) the Parties for purposes of the administration, interpretation, implementation, and

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enforcement of the Settlement; (b) the disposition of the Settlement Fund; (c) any motion

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for an award of attorneys’ fees and/or Litigation Expenses by Class Counsel in the Action

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that will be paid from the Settlement Fund; (d) any motion to approve the Plan of

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Allocation; (e) any motion to approve the Class Distribution Order; and (f) the Class

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Members for all matters relating to the Action.

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Separate orders shall be entered regarding approval of a plan of allocation

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and the motion of Class Counsel for an award of attorneys’ fees and reimbursement of

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Litigation Expenses. Such orders shall in no way affect or delay the finality of this

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Judgment and shall not affect or delay the Effective Date of the Settlement.

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Modification of the Stipulation – Without further approval from the Court,

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Class Representatives and Defendants are hereby authorized to agree to and adopt such

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amendments or modifications of the Stipulation or any exhibits attached thereto to

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effectuate the Settlement that: (a) are not materially inconsistent with this Judgment; and

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(b) do not materially limit the rights of Class Members in connection with the Settlement.

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Without further order of the Court, Class Representatives and Defendants may agree to

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reasonable extensions of time to carry out any provisions of the Stipulation.

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Termination of Settlement – If the Settlement is terminated as provided in

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the Stipulation or the Effective Date of the Settlement otherwise fails to occur, this

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Judgment shall be vacated, rendered null and void, and be of no further force and effect,

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except as otherwise provided by the Stipulation, and this Judgment shall be without

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prejudice to the rights of Class Representatives, the other Class Members, and

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Defendants, and the Parties shall revert to their respective positions in the Action as of

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February 3, 2020, as provided in the Stipulation.

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Entry of Final Judgment – There is no just reason to delay the entry of this

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Judgment as a final judgment in this Action. Accordingly, the Clerk of the Court is

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expressly directed to immediately enter this final judgment and terminate this Action.

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IT IS SO ORDERED AND ADJUDGED.

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DATE: July 24, 2020

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