Kinsey v. ClubCorp Holdings, Inc. et al

Filing 4

ORDER Granting 3 Stipulation of Dismissal. Signed by Judge Richard F. Boulware, II on 10/27/17. (Copies have been distributed pursuant to the NEF - ADR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
RONALD F. KINSEY, Individually and On
Behalf of All Others Similarly Situated,
Plaintiff,
v.
CLUBCORP HOLDINGS, INC., JOHN A.
BECKERT, DOUGLAS H. BROOKS, ERIC
L. AFFELDT, JANET GROVE, JEFF
LAMB, LOU J. GRABOWSKY, EMANUEL
R. PEARLMAN, MARGARET SPELLINGS,
WILLIAM E. SULLIVAN, and SIMON M.
TURNER,
Defendants.

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Case No. 2:17-cv-02198-RFB-PAL

STIPULATION OF DISMISSAL
WHEREAS, on August 16, 2017, plaintiff Ronald F. Kinsey (“Plaintiff”) filed the abovecaptioned action (the “Action”) challenging the disclosures made by ClubCorp Holdings, Inc.
(“ClubCorp”) in connection with the proposed acquisition of ClubCorp by funds managed by
affiliates of Apollo Global Management, LLC (“Apollo Global”), Constellation Club Parent, Inc.
(“Parent”) and Constellation Merger Sub Inc. (“Merger Sub,” and together with Parent and
Apollo Global, “Apollo”), pursuant to a definitive agreement and plan of merger filed with the
United States Securities and Exchange Commission (“SEC”) on July 9, 2017 (the
“Transaction”);
WHEREAS, the Action asserts claims for violations of Sections 14(a) and 20(a) of the
Securities Exchange Act of 1934 in connection with ClubCorp’s Preliminary Proxy Statement on

Schedule 14A filed with the SEC on July 26, 2017 and the Definitive Proxy Statement on
Schedule 14A filed with the SEC on August 8, 2017 (collectively, the “Proxy Statement”);
WHEREAS, on September 6, 2017, ClubCorp filed a Form 8-K that contained a
supplement to the Definitive Proxy Statement that included certain additional information
relating to the Transaction (the “Supplemental 8-K”);
WHEREAS, on September 15, 2017, ClubCorp stockholders voted to approve the
Proposed Transaction;
WHEREAS, based on his review and analysis of the above disclosures, among other
things, Plaintiff has determined to dismiss his Complaint as moot and/or not proceed on the
remaining claims;
WHEREAS, Defendants expressly deny that Plaintiff ever asserted any viable claim that
could now be considered moot, but concur that such dismissal is appropriate because no viable
claim exists;
WHEREAS Plaintiff believes that the Supplemental 8-K mooted claims set forth by
Plaintiff in the Complaint, and further believes that the prosecution of the Action caused the
disclosure of certain material information in the Supplemental 8-K which benefited shareholders.
As a result, plaintiff believes that his counsel are entitled to assert a claim for attorneys’ fees and
expenses based on mootness grounds (the “Mootness Fee Claim”);
WHEREAS, Defendants maintain that they have diligently complied with all of their
legal obligations, and expressly deny that the Complaint states any claim, that they committed or
aided and abetted in any violation of law or engaged in any wrongful acts alleged in the
Complaint, that the Action caused the disclosure of material information or obtained a benefit for

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shareholders, and that Plaintiff or his counsel is entitled to any attorneys’ fees or expenses on any
ground. Defendants accordingly reserve all rights, arguments, and defenses, including the right
to oppose any Mootness Fee Claim;
WHEREAS, no class has been certified in the Action;
WHEREAS, for the avoidance of doubt, no compensation in any form has passed directly
or indirectly to Plaintiff or his attorneys and no promise, understanding, or agreement to give any
such compensation has been made, nor have the parties had any discussions concerning the
amount of any mootness fee application;
NOW, THEREFORE, upon consent of the parties:
IT IS HEREBY STIPULATED AND AGREED, this 25th day of October 2017,
1.

The Action is dismissed.

2.

The Court retains jurisdiction of the Action solely for the purpose of

determining a Mootness Fee Claim, if filed.
3.

This Stipulation is entered into without prejudice to any right, position,

claim, or defense any party may assert with respect to the Mootness Fee Claim.
4.

Upon completion of briefing, the parties shall promptly contact the Court

to schedule argument regarding a Mootness Fee Claim at a time convenient to the Court.
5.

If the parties reach an agreement concerning the Mootness Fee Claim,

Plaintiff will notify the Court. Upon the filing of such a notice, the Action shall be closed
without requiring further action or order by the Court.

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Dated: October 25, 2017

OF COUNSEL:
LEVI & KORSINSKY LLP
Donald J. Enright
Elizabeth K. Tripodi
1101 30th Street, N.W.
Suite 115
Washington, DC 20007
[phone]

KEMP, JONES & COULTHARD LLP
By: /s/ Michael J. Gayan
Michael J. Gayan
Nevada Bar No. 11135
Wells Fargo Tower, 17th Floor
3800 Howard Hughes Parkway
Las Vegas, NV 89169
[phone]
Attorneys for Plaintiff

VINCENT WONG LAW OFFICES
Vincent S. Wong, Esq.
39 East Broadway, Suite 304
New York, NY 10002
Dated: October 25, 2017

OF COUNSEL:
SIMPSON THACHER &
BARTLETT LLP
James G. Kreissman
Stephen P. Blake
2475 Hanover Street
Palo Alto, California 94304
[phone]

BROWNSTEIN HYATT FARBER
SCHRECK, LLP
By: /s/ Maximilien D. Fetaz
Kirk B. Lenhard, Esq., NV Bar No. 1437
Maximilien D. Fetaz, Esq., NV Bar No. 12737
100 North City Parkway, Suite 1600
Las Vegas, NV 89106
Attorneys for Defendants

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SO ORDERED:

______________________________
Hon. Richard F. Boulware, U.S.D.J.
DATED this 27th day of October, 2017.
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