Pancoe v. JBI, Inc. et al

Filing 96

ORDER PRELIMINARILY APPROVING SETTLEMENT AND PROVIDING FOR NOTICE OF PROPOSED SETTLEMENT, re 93 Proposed Order. Settlement Hearing set for 4/27/2015 at 10:00 AM in Reno Courtroom 6 before Judge Robert C. Jones. Signed by Judge Robert C. Jones on 12/18/2014. (Copies have been distributed pursuant to the NEF - KR)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

HOWARD L. HOWELL, Lead Plaintiff,
ELLISA PANCOE, Individually and on
Behalf of All Others Similarly Situated,

Case No. 3:11-CV-00545-RCJ-WGC

Plaintiffs,
v.
JBI, INC., f/k/a 310 HOLDINGS, INC.,
JOHN BORDYNUIK, and RONALD
BALDWIN, JR.,
Defendants.
______________________________________________________________________________
ORDER PRELIMINARILY APPROVING SETTLEMENT AND PROVIDING FOR
NOTICE OF PROPOSED SETTLEMENT (“PRELIMINARY APPROVAL ORDER”)
______________________________________________________________________________

WHEREAS, a class action is pending before the Court entitled Howard L. Howell v.
JBI, Inc., et al., 3:11-CV-00545-RCJ-WGC, United States District Court for the District of
Nevada (the “Litigation”);
WHEREAS, the Court has received the Stipulation of Settlement dated as of August 8,
2013 (the “Stipulation”),1 which has been entered into by the Plaintiffs and the Defendants, and
the Court has reviewed the Stipulation and the Exhibits annexed thereto;
WHEREAS, the Parties having made application, pursuant to Federal Rule of Civil
Procedure 23(e), for an order preliminarily approving the Settlement of this Litigation
(“Preliminary Approval Order”), in accordance with the Stipulation of Settlement which,

1

For purposes of this Order, the Court adopts all defined terms as set forth in the Stipulation, and
the terms used herein shall have the same meaning as in the Stipulation.

together with the attached Exhibits A-1, A-2, A-3, and B, sets forth the terms and conditions for
a proposed Settlement of the Litigation and for dismissal of the Litigation with prejudice upon
the terms and conditions set forth therein; and the Court having read and considered the
Stipulation and the attached Exhibits;
NOW, THEREFORE, IT IS HEREBY ORDERED:
1.

The Court does hereby preliminarily approve the Stipulation and the terms of the

settlement set forth therein, subject to further consideration at the Settlement Hearing described
below.
2.

The Court finds that: (a) the Stipulation resulted from arm’s-length negotiations;

and (b) the Stipulation is sufficiently fair, reasonable and adequate to the Class Members to
warrant providing notice of the Settlement to Class Members and holding a Settlement Hearing.
3.

April 27, 2015
The Settlement Hearing shall be held before this Court on ___________ _____,

at 10:00 A.M. __.m., to determine whether the proposed Settlement of the Litigation on the
2014, at __:__
terms and conditions provided for in the Stipulation is fair, reasonable and adequate to the Class
and should be approved by the Court; whether a Judgment as provided in the Stipulation should
be entered herein; whether the proposed Plan of Allocation should be approved; whether to
certify the Settlement Class; whether to approve the Plaintiffs’ application for their reasonable
costs and expenses (including lost wages) directly relating to their representation of the Class;
and to determine the amount of fees that should be awarded to Lead Counsel. The Court may
adjourn the Settlement Hearing without further notice to Members of the Class.

4.

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

preliminarily certifies, solely for the purposes of effectuating this Settlement, a Settlement Class
consisting of all persons or entities who purchased or otherwise acquired JBI’s securities
between August 28, 2009 and January 4, 2012, inclusive, and who were damaged thereby.
Excluded from the Class are Defendants, the officers and directors of the Company, at all
relevant times, members of their immediate families (i.e., spouse and children), any entity in
which any Defendant has or had a legal controlling interest, and the legal representatives, heirs,
successors, or assigns of any Defendant. There has been no prior notice to Class Members of the
certification of the Class in this Litigation or prior opportunity for any Person or entity to request
to be excluded from the Class.
5.

In preliminarily certifying this Settlement Class, the Court finds that the

Settlement Class appears to satisfy the requirements of Rules 23(a) and (b)(3) of the Federal
Rules of Civil Procedure in that: (a) the number of Class Members is so numerous that joinder
of all members thereof is impracticable; (b) there are questions of law and fact common to the
Class; (c) the claims of the Court appointed Class Representative, Howard L. Howell, are
typical of the claims of the Class he represents; (d) the Class Representative has and will
continue to fairly and adequately represent the interests of the Class; (e) the questions of law
and fact common to the members of the Class predominate over any questions affecting only
individual members of the Class; and (f) a class action is superior to other available methods for
the fair and efficient adjudication of the controversy.
6.

The Court approves, as to form and content, the Notice of Proposed Settlement of

Class Action, Motion for Attorneys’ Fees, and Settlement Fairness Hearing (the “Notice”
attached to the Stipulation as A-1); the Proof of Claim and Release form (the “Proof of Claim,”
attached to the Stipulation as A-2), and Summary Notice (“Summary Notice,” attached to the
Stipulation as A-3). The Court further finds that the mailing, posting, and publishing of the

Notice, Proof of Claim, and Summary Notice as specified in ¶8 below, meets the requirements
of Federal Rule of Civil Procedure 23 and due process, is the best notice practicable under the
circumstances, and shall constitute due and sufficient notice to all Persons entitled thereto.
7.

Between the effective date of this Preliminary Approval Order and entry of any

Final Judgment and Order of Dismissal With Prejudice at the Settlement Hearing each Class
Member (directly, representatively, or in any other capacity) is expressly enjoined against
asserting, commencing or prosecuting any of the Defendants or their Related Parties any matters
related to the Released Claims in this Litigation, or in any proceeding or forum. This injunction
is necessary to protect and effectuate the Settlement and this Preliminary Approval Order; the
Court’s flexibility and authority to effectuate the Settlement and to enter judgment when
appropriate; and is ordered in aid of the Court’s jurisdiction and to protect its judgments.
8.

The Court appoints Gilardi & Co. LLC (“Claims Administrator”) to supervise

and administer the notice procedure as well as the processing of claims.
a.

Within 20 court days after the date of this Preliminary Approval Order,

the Claims Administrator shall cause (a) a copy of the Notice and the Proof of
Claim, substantially in the forms annexed as Exhibits A-1 and A-2 to the
Stipulation, to be mailed by first class mail to all Class Members who can be
identified with reasonable effort and (b) the Stipulation with Exhibits and the
Notice to be posted on the following website: www. gilardi.com/JBI.
b.

Within 30 court days after the date of this Preliminary Approval Order,

the Claims Administrator shall cause the Summary Notice to be published once
in Investor’s Business Daily, and on a different day shall cause the Summary
Notice to be published once in Globe Newswire;

c.

Within seventy court days after the date of this Preliminary Approval

Order, Class Counsel shall file with the Court and serve on Defendants’ counsel proof,
by affidavit or declaration, of such mailing, publishing and posting.
9.

Nominees who purchased or acquired JBI, Inc. securities between August 28,

2009 and January 4, 2012, inclusive, shall send the Notice and the Proof of Claim to all
beneficial owners of such JBI, Inc. securities within twenty (20) days after receipt thereof, or
send a list of the names and addresses of such beneficial owners to the Claims Administrator
within twenty (20) days of receipt thereof, in which event the Claims Administrator shall
promptly mail the Notice and the Proof of Claim to such beneficial owners. Class Counsel
shall, if requested, reimburse banks, brokerage houses or other nominees solely for their
reasonable out-of-pocket expenses incurred in providing the Notice to beneficial owners who
are Class Members out of the Settlement Fund, which expenses would not have been incurred
except for the sending of such Notice, subject to further order of this Court with respect to any
dispute concerning such compensation.
10.

Any Person falling within the definition of the Class may, upon request, be

excluded from the Class. Any such Person must submit to the Claims Administrator a request
for exclusion (“Request for Exclusion”), postmarked no later than twenty-one (21) days prior to
the Settlement Hearing.

A Request for Exclusion must state (a) the name, address, and

telephone number of the Person requesting exclusion; (b) each of the Person’s purchases and
sales of JBI, Inc. securities made during the Class Period, including the dates of purchase or
sale, the number of shares purchased and/or sold, and the price paid or received per share for
each such purchase or sale; and (c) that the Person wishes to be excluded from the Class. All
Persons who submit valid and timely Requests for Exclusion in the manner set forth in this

paragraph shall have no rights under the Settlement, shall not share in the distribution of the Net
Settlement Fund, and shall not be bound by the Settlement or the Judgment entered in this
Litigation.
11.

All Members of the Class (other than those Persons or entities who shall timely

and validly request exclusion from the Class) shall be bound by all determinations and
judgments in the Litigation concerning the Settlement, whether favorable or unfavorable to the
Class.
12.

Class Members (other than those Persons or entities who shall validly request

exclusion from the Class) who wish to participate in the Settlement shall complete and submit a
Proof of Claim form in accordance with the instructions contained therein. Unless the Court
orders otherwise, all Proof of Claim forms must be postmarked within 120 calendar days after
the date of this Preliminary Approval Order. Any Class Member who does not timely submit a
Proof of Claim shall be barred from sharing in the distribution of the proceeds of the Net
Settlement Fund, unless otherwise ordered by the Court.
13.

Any Member of the Class may enter an appearance in the Litigation, at his, her

or its own expense, individually or through counsel of his, her or its own choice. If they do not
enter an appearance, Lead Counsel will represent them.
14.

Any Member of the Class (other than those Persons or entities who shall validly

request exclusion from the Class) may appear and show cause, if he, she or it has any reason
why the proposed Settlement of the Litigation should or should not be approved as fair,
reasonable and adequate, why a Judgment should or should not be entered thereon, why the Plan
of Allocation should or should not be approved, or why attorneys’ fees and reimbursement of
expenses should or should not be awarded to Plaintiffs or Class Counsel; provided, however,

that no Class Member or any other Person shall be heard or entitled to contest the approval of
the terms and conditions of the proposed Settlement, or, if approved, the Judgment to be entered
thereon approving the same, or the order approving the Plan of Allocation, or the attorneys’ fees
and expenses to be awarded to Plaintiffs or Class Counsel, unless that Person has filed said
objections, papers and briefs with the Clerk of the United States District Court for the District of
Nevada, no later than twenty-one (21) days prior to the Settlement Hearing and delivered copies
of any such papers to counsel identified in the Notice, such that they are received on or before
such date. Any Member of the Class who does not make his, her or its objection in the manner
provided shall be deemed to have waived such objection and shall forever be foreclosed from
making any such objection, unless otherwise ordered by the Court. Class Members objection to
the Settlement must follow the requirements in the Notice.
15.

All papers in support of the Settlement, the Plan of Allocation, Plaintiffs’

application for reimbursement of expenses, and the application for attorneys’ fees and expenses,
shall be filed and served not later than thirty-five (35) days prior to the Settlement Hearing.
Any papers in further support of the Settlement, the Plan of Allocation, Plaintiffs’ application
for reimbursement of expenses, and the application for attorneys’ fees, shall be filed and served
no later than ten (10) days prior to the Settlement Hearing.
16.

Neither the Defendants nor their Released Parties shall have any responsibility

for or liability with respect to the Plan of Allocation, Plaintiffs’ application for reimbursement
of expenses, or any application for attorneys’ fees submitted by Lead Counsel, and such matters
will be considered separately from the fairness, reasonableness, and adequacy of the Settlement.
17.

At or after the Settlement Hearing, the Court shall determine whether the Plan of

Allocation proposed by Lead Counsel, Plaintiffs’ application for reimbursement of expenses,
and any application for attorneys’ fees shall be approved.

18.

Defendants may reimburse certain mediation expenses and certain administration

expenses, in the manner specified in the Stipulation.
19.

Funds held by the Escrow Agent shall be deemed and considered to be in

custodia legis of the Court, and shall remain subject to the jurisdiction of the Court, until such
time as such funds shall be distributed pursuant to the Stipulation or further order(s) of the
Court.
20.

Neither the Stipulation, nor any of its terms or provisions, nor any of the

negotiations or proceedings connected with it, shall be construed as an admission or concession
by the Defendants of the truth of any of the allegations in the Litigation, or of any liability, fault,
or wrongdoing of any kind and shall not be construed as, or deemed to be evidence of or an
admission or concession that Plaintiffs or any Class Members have suffered any damages, harm,
or loss.
21.

In the event that the Effective Date does not occur, then the Settling Parties shall

promptly move this Court to nullify the settlement contemplated by the Stipulation, and
otherwise return the parties to their respective litigation positions prior to the date of this
Preliminary Approval Order, all in a manner consistent with the Stipulation.
22.

Pending the Settlement Hearing, the Court stays all proceedings in the Litigation,

other than proceedings necessary to carry out or enforce the terms and conditions of the
Stipulation.
23.

The Court reserves the right to adjourn the date of the Settlement Hearing

without further notice to the Members of the Class, and retains jurisdiction to consider all
further applications arising out of or connected with the Settlement. The Court may approve the

Settlement, with such modifications as may be agreed to by the Settling Parties, if appropriate,
without further notice to the Class.
December 18, 2014
DATED: _______________
The Honorable Robert C. Jones
Chief United States District Judge