Castillo, IV v. 6D Global Technologies, Inc. et al

Filing 254

ORDER AND PARTIAL FINAL JUDGMENT: IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT: 1. This Order and Partial Final Judgment incorporates by reference the definitions in the Settlement Stipulation, and all capitalized terms used herein shall have the same meanings as set forth therein. 2. The Court has jurisdiction over the subject matter of the Action, Plaintiffs, all Settlement Class Members, and Settling Defendants. 3. The Court finds that, for settlement purposes only, the prerequisites for a class action under Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure have been satisfied in that: as further set forth herein. 4. The Court hereby finally certifies this action as a class action for purposes of the Settlement, pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure, on behalf of all Persons (including, without limitation, their beneficiaries) all persons and entities, other than Defendants and their affiliates, who purchased publicly traded 6D Gl obal Technologies, Inc. f/k/a CleanTech Innovations, Inc. ("6D Global" or the "Company") securities from June 16, 2014 through September 10, 2015, both dates inclusive. Excluded from the Settlement Class are (i) Defendants; (ii) c urrent and former officers and directors of 6D Global and any other Released Party; (iii) the persons expressly excluded from the definition of Released Parties in paragraph 1.28 of the Settlement Stipulation (a) through (d); (iv) the respective spou ses, children, or parents of any person or entity excluded under subparagraphs, (i) through (iii) of this paragraph; (v) any person or entity more than 5% owned or directly or indirectly controlled by any person or entity excluded under subparag raphs (i) through (iv) of this paragraph or any trust of which such a person is a beneficiary or of which any person or entity is related or affiliated to a beneficiary or a trustee; (vi) the respective heirs, successors, trustees and assigns of any person excluded under paragraphs (i) through (v); and (vii) those persons who file valid and timely requests for exclusion in accordance with the Court's Preliminary Approval Order. 5. Pursuant to Rule 23 of the Federal Rules of Civil Procedu re, for the purposes of this Settlement only, Plaintiffs are certified as the class representatives on behalf of the Settlement Class ("Class Representatives") and Lead Counsel previously selected by Plaintiffs and appointed by the Court is hereby appointed as Class Counsel for the Settlement Class ("Class Counsel"). The Settlement is approved as fair, reasonable and adequate under Rule 23 of the Federal Rules of Civil Procedure, and in the best interests of the Settlement C lass. This Court further finds that the Settlement set forth in the Settlement Stipulation is the result of good faith, arm's length negotiations between experienced counsel representing the interests of Class Representative, Settlement Class Me mbers, and Settling Defendants. The Settling Parties are directed to consummate the Settlement in accordance with the terms and provisions of the Settlement Stipulation. 8. The Action and all claims contained therein, as well as all of the Released Claims, are dismissed with prejudice as against the Settling Defendants and the Released Parties. The Settling Parties are to bear their own costs, except as otherwise provided in the Settlement Stipulation. 19. There is no just reason for delay in the entry of this Order and Partial Final Judgment and immediate entry by the Clerk of the Court is expressly directed pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. 20. The finality of this Order and Partial Final Judgment shall not be affected, in any manner, by rulings that the Court may make on Class Counsel's application for an award of attorneys' fees and expenses to Class Counsel or awards to Class Representatives. 21. If the Settlement is not consummated in acc ordance with the terms of the Settlement Stipulation, then the Settlement Stipulation and this Order and Partial Final Judgment (including any amendment(s) thereof, and except as expressly provided in the Settlement Stipulation or by order of the Cou rt) shall be null and void, of no further force or effect, and without prejudice to any Settling Party, and may not be introduced as evidence or used in any action or proceeding by any Person against the Settling Parties or the Released Parties, and each Settling Party shall be restored to his, her or its respective litigation positions as they existed prior to October 7, 2019, pursuant to the terms of the Settlement Stipulation. (Signed by Judge Alison J. Nathan on 5/12/2021) (kv)

Case 1:15-cv-08061-AJN Document 235-2 Filed 02/16/21 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOSEPH
PUDDU,
MARK
GHITIS,
VALERY BURLAK, and ADAM BUTTER,
Case No: 15-cv-8061-AJN
Plaintiffs,
v.
6D GLOBAL TECHNOLOGIES, INC.,
NYGG
(ASIA),
LTD.,
BENJAMIN
TIANBING WEI A/K/A BENJAMIN WEY,
TEJUNE KANG, MARK SZYNKOWSKI,
TERRY MCEWEN, AND NYG CAPITAL
LLC D/B/A NEW YORK GLOBAL GROUP,

Defendants.

[PROPOSED] ORDER AND PARTIAL FINAL JUDGMENT

5/12/21

Case 1:15-cv-08061-AJN Document 235-2 Filed 02/16/21 Page 2 of 13

2021

February
23rd
On the ____ day of _______, 2020 a hearing having been held before this Court to

determine: (1) whether the terms and conditions of the Stipulation and Agreement of Settlement
dated October 7, 2019 (the “Settlement Stipulation”) are fair, reasonable and adequate for the
settlement of all claims asserted by the Settlement Class against the Settling Defendants (as
defined in the Settlement Stipulation), including the release of the Released Claims against the
Released Parties, and should be approved; (2) whether judgment should be entered dismissing
the Settling Defendants with prejudice; (3) whether to approve the proposed Plan of Allocation
as a fair and reasonable method to allocate the Net Settlement Fund among Settlement Class
Members; (4) whether and in what amount to award Lead Counsel as fees and reimbursement
of expenses; and (5) whether and in what amount to award Plaintiffs as incentive fees; and
The Court having considered all matters submitted to it at the hearing and otherwise; and
It appearing in the record that the Summary Notice substantially in the form approved by
the Court in the Court’s Order Granting Plaintiffs’ Motion for Preliminary Approval of Class
October 1, 2020

Action Settlement, dated ______ ____, 2019 (“Preliminary Approval Order”) was published; the
Postcard Notice was mailed to all reasonably identifiable Settlement Class Members; and the
Notice was emailed to all reasonably identifiably Settlement Class Members and posted to the
website of the Claims Administrator; all in accordance with the Preliminary Approval Order and
the specifications of the Court; and
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED THAT:
1.

This Order and Partial Final Judgment incorporates by reference the definitions

in the Settlement Stipulation, and all capitalized terms used herein shall have the same
meanings as set forth therein.

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2.

The Court has jurisdiction over the subject matter of the Action, Plaintiffs, all

Settlement Class Members, and Settling Defendants.
3.

The Court finds that, for settlement purposes only, the prerequisites for a class

action under Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure have been satisfied
in that:
(a) the number of Settlement Class Members is so numerous that joinder of all
members thereof is impracticable;
(b) there are questions of law and fact common to the Settlement Class;
(c) the claims of Plaintiffs are typical of the claims of the Settlement Class they seek to
represent;
(d) Plaintiffs and Lead Counsel fairly and adequately represent the interests of the
Settlement Class;
(e) questions of law and fact common to the members of the Settlement Class
predominate over any questions affecting only individual members of the Settlement
Class; and
(f) a class action is superior to other available methods for the fair and efficient
adjudication of this Action, considering:
i.

the interests of the Settlement Class Members in individually controlling

the prosecution of the separate actions;
ii.

the extent and nature of any litigation concerning the controversy

already commenced by Settlement Class Members;
iii.

the desirability or undesirability of concentrating the litigation of these

claims in this particular forum; and

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iv.

the difficulties likely to be encountered in the management of the class

action.
The Settlement Class is being certified for settlement purposes only.
4.

The Court hereby finally certifies this action as a class action for purposes of the

Settlement, pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure, on behalf of
all Persons (including, without limitation, their beneficiaries) all persons and entities, other than
Defendants and their affiliates, who purchased publicly traded 6D Global Technologies, Inc. f/k/a
CleanTech Innovations, Inc. (“6D Global” or the “Company”) securities from June 16, 2014
through September 10, 2015, both dates inclusive. Excluded from the Settlement Class are (i)
Defendants; (ii) current and former officers and directors of 6D Global and any other Released
Party; (iii) the persons expressly excluded from the definition of Released Parties in paragraph
1.28 of the Settlement Stipulation (a) through (d); (iv) the respective spouses, children, or parents
of any person or entity excluded under subparagraphs, (i) through (iii) of this paragraph; (v) any
person or entity more than 5% owned or directly or indirectly controlled by any person or entity
excluded under subparagraphs (i) through (iv) of this paragraph or any trust of which such a person
is a beneficiary or of which any person or entity is related or affiliated to a beneficiary or a trustee;
(vi) the respective heirs, successors, trustees and assigns of any person excluded under paragraphs
(i) through (v); and (vii) those persons who file valid and timely requests for exclusion in
accordance with the Court’s Preliminary Approval Order.
5.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, for the purposes of

this Settlement only, Plaintiffs are certified as the class representatives on behalf of the Settlement
Class (“Class Representatives”) and Lead Counsel previously selected by Plaintiffs and appointed
by the Court is hereby appointed as Class Counsel for the Settlement Class (“Class Counsel”).

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6.

In accordance with the Court’s Preliminary Approval Order, the Court hereby

finds that the forms and methods of notifying the Settlement Class of the Settlement and its terms
and conditions met the requirements of due process, Rule 23 of the Federal Rules of Civil
Procedure, and Section 21D(a)(7) of the Exchange Act, 15 U.S.C. § 78u-4(a)(7), as amended by
the Private Securities Litigation Reform Act of 1995; constituted the best notice practicable
under the circumstances; and constituted due and sufficient notice of these proceedings and the
matters set forth herein, including the Settlement and Plan of Allocation, to all persons and
entities entitled to such notice. No Settlement Class Member is relieved from the terms and
conditions of the Settlement, including the releases provided for in the Settlement Stipulation,
based upon the contention or proof that such Settlement Class Member failed to receive actual or
adequate notice. A full opportunity has been offered to the Settlement Class Members to object
to the proposed Settlement and to participate in the hearing thereon. The Court further finds that
the notice provisions of the Class Action Fairness Act, 28 U.S.C. § 1715, were fully discharged.
Thus, it is hereby determined that all Settlement Class Members are bound by this Order and Final
Judgment.
7.

The Settlement is approved as fair, reasonable and adequate under Rule 23 of the

Federal Rules of Civil Procedure, and in the best interests of the Settlement Class. This Court
further finds that the Settlement set forth in the Settlement Stipulation is the result of good faith,
arm’s-length negotiations between experienced counsel representing the interests of Class
Representative, Settlement Class Members, and Settling Defendants. The Settling Parties are
directed to consummate the Settlement in accordance with the terms and provisions of the
Settlement Stipulation.

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8.

The Action and all claims contained therein, as well as all of the Released

Claims, are dismissed with prejudice as against the Settling Defendants and the Released Parties.
The Settling Parties are to bear their own costs, except as otherwise provided in the Settlement
Stipulation.
9.

Subject to the caveat that nothing in the following subparagraphs of this Order or

in the final settlement agreement shall be deemed or construed to bar, alter, amend, release, or
waive any indemnification rights that any current or former officer, director, or employee of 6D
Global or any Defendant has against 6D Global under the Certificate of Incorporation of 6D
Global, or the bylaws of 6D Global, subject to applicable provisions of Delaware statutory or
common law governing such indemnification, nor to alter, amend, release, or waive any defenses
to such claims for indemnification that 6D Global has, and that nothing in the following
subparagraphs or in the Stipulation of Settlement shall constitute a general release by 6D Global
of any other claims that may exist or arise between 6D Global and any current or former officer,
director, or employee of 6D Global or any Defendant, all such rights being preserved, the Court
orders:
(a)

In accordance with 15 U.S.C. § 78u-4(f)(7)(A), any and all claims for

contribution arising out of any claim released by Plaintiffs and the Settlement Class
(hereafter “Released Claim”): (i) by any person against any of the Releasees and (ii) by
any of the Releasees against any person other than as set out in 15 U.S.C. § 78u4(f)(7)(A)(ii) are hereby permanently barred, extinguished, discharged, satisfied, and
unenforceable. Accordingly, without limitation to any of the above, (A) any person is
hereby permanently enjoined from commencing, prosecuting, or asserting against any of
the Releasees any such claim for contribution, and (B) the Releasees are hereby

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permanently enjoined from commencing, prosecuting, or asserting against any person any
such claim for contribution. In accordance with U.S.C. § 78u-4(f)(7)(B), any final verdict
or judgment that might be obtained by or on behalf of the Plaintiffs or a member of the
Settlement Class against any person for loss for which such person and any Releasees are
found to be jointly liable shall be reduced by the greater of (i) an amount that corresponds
to the total amount of the Settling Defendants’ percentage of responsibility for the loss to
the Plaintiffs or Settlement Class or (ii) the Settlement Consideration.
(b)

Any and all persons are permanently barred, enjoined, and restrained

from commencing, prosecuting, or asserting any claim against any Releasee arising under
any federal, state, or foreign statutory or common-law rule, however styled, whether for
indemnification or contribution or otherwise denominated, including claims for breach of
contract or for misrepresentation, where the claim is or arises from a Released Claim and
the alleged injury to such person arises from that person's alleged liability to the Settlement
Class or any Settlement Class member, including any claim in which a person seeks to
recover from any of the Releasees any amounts such person has or might become liable to
pay to the Settlement Class or any Settlement Class member (hereafter the “Complete Bar
Order”). All such claims are hereby extinguished, discharged, satisfied, and unenforceable,
subject to a hearing to be held by the Court, if necessary. The provisions of the Complete
Bar Order are intended to preclude any liability of any of the Releasees to any person for
indemnification, contribution, or otherwise on any claim that is or arises from a Released
Claim and where the alleged injury to such person arises from that person's alleged liability
to the Settlement Class or any Settlement Class member; provided however, that if the
Settlement Class or any Settlement Class member obtains any judgment against any such

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person based upon, arising out of, or relating to any Released Claim for which such person
and any of the Releasees are found to be jointly liable, that person shall be entitled to a
judgment credit equal to an amount that is the greater of (i) an amount that corresponds to
such Releasee’s or Releasees’ percentage of responsibility for the loss to the Class or Class
Member or (ii) the Settlement Consideration.
(c)

Each and every Releasee is permanently barred, enjoined, and restrained

from commencing, prosecuting, or asserting any claim against any other person (including
any other Releasee) arising under any federal, state, or foreign statutory or common-law
rule, however styled, whether for indemnification or contribution or otherwise
denominated, including claims for breach of contract and for misrepresentation, where the
claim is or arises from a Released Claim and the alleged injury to such Releasee arises
from that Releasee’s alleged liability to the Settlement Class or any Settlement Class
member, including any claim in which any Releasee seeks to recover from any person
(including another Releasee) (i) any amounts any such Releasee has or might become liable
to pay to the Settlement Class or any Settlement Class member and/or (ii) any costs,
expenses, or attorneys' fees from defending any claim by the Settlement Class or any
Settlement Class member. All such claims are hereby extinguished, discharged, satisfied
and unenforceable.
(d)

If any term of the Complete Bar Order entered by the Court is held to be

unenforceable after the date of entry, such provision shall be substituted with such other
provision as may be necessary to afford all of the Releasees the fullest protection permitted
by law from any claim that is based upon, arises out of, or relates to any Released Claim.
(e)

Notwithstanding the Complete Bar Order or anything else in the

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Stipulation of Settlement, nothing shall release, interfere with, limit, or bar the
assertion by any Releasee of any claim for or defense to the availability of insurance
coverage under any insurance, reinsurance or indemnity policy that provides coverage
respecting the conduct at issue in this Action, except as limited by the insurance
agreement.
(f)

For the avoidance of any doubt, nothing in this Order shall constitute a

release or bar of any claims, including for contribution or indemnity, that any Defendant
may have against 6D Global under the Certificate of Incorporation of 6D Global, the
bylaws of 6D Global or the statutory or common law of the applicable jurisdiction that
provides for indemnification of corporate officers or directors (not contribution or
indemnity for proportionate fault), subject to applicable provisions of statutory or
common law governing such indemnification rights.
10.

The Releasing Parties, on behalf of themselves, their successors and assigns, and

any other Person claiming (now or in the future) through or on behalf of them, regardless of
whether any such Releasing Party ever seeks or obtains by any means, including without limitation
by submitting a Proof of Claim and Release Form, any disbursement from the Settlement Fund,
shall be deemed to have, and by operation of this Order and Final Judgment shall have, fully,
finally, and forever released, relinquished, and discharged all Released Claims against the
Released Parties. The Releasing Parties shall be deemed to have, and by operation of this Order
and Partial Final Judgment shall have, covenanted not to sue the Released Parties with respect to
any and all Released Claims in any forum and in any capacity. The Releasing Parties shall be and
hereby are permanently barred and enjoined from asserting, commencing, prosecuting, instituting,
assisting, instigating, or in any way participating in the commencement or prosecution of any

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action or other proceeding, in any forum, asserting any Released Claim, in any capacity, against
any of the Released Parties, including Defendants’ Counsel. Nothing contained herein shall,
however, bar the Releasing Parties from bringing any action or claim to enforce the terms of the
Settlement Stipulation or this Order and Final Judgment.
11.

Settling Defendants, on behalf of themselves and their Related Parties, shall be

deemed to have, and by operation of the Final Judgment shall have, fully, finally, and forever
released, relinquished, and discharged Class Representatives, Settlement Class Members, Class
Counsel, and their Related Parties from all Claims, whether known or unknown, which arise
out of, concern or relate to the institution, prosecution, settlement or dismissal of the
Action (the “Defendants’ Released Claims”), and shall be permanently enjoined from
prosecuting the Defendants’ Released Claims against Class Representatives, Settlement Class
Members, Class Counsel, and their Related Parties. Nothing contained herein shall, however,
bar the Settling Defendants or their Related Parties from bringing any action or claim to
enforce the terms of the Settlement Stipulation or this Order and Final Judgment.
12.

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

reasonable method to allocate the Net Settlement Fund among Settlement Class Members, and
Class Counsel and the Claims Administrator are directed to administer the Plan of Allocation in
accordance with its terms and the terms of the Settlement Stipulation.
13.

The Court finds that the Settling Parties and their counsel have complied with

all requirements of Rule 11 of the Federal Rules of Civil Procedure and the Private Securities
Litigation Record Act of 1995 as to all proceedings herein.
14.

Neither this Order and Final Judgment, the Settlement Stipulation (nor the

Settlement contained therein), nor any of its terms and provisions, nor any of the negotiations,

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documents or proceedings connected with them:
(a)

is or may be deemed to be, or may be used as an admission, concession,

or evidence of, the validity or invalidity of any Released Claims, the truth or falsity of
any fact alleged by Class Representatives, the sufficiency or deficiency of any defense
that has been or could have been asserted in the Action, or of any wrongdoing, liability,
negligence or fault of Settling Defendants, the Released Parties, or each or any of them;
(b)

is or may be deemed to be or may be used as an admission of, or

evidence of, any fault or misrepresentation or omission with respect to any statement or
written document attributed to, approved or made by Settling Defendants or Released
Parties in any civil, criminal or administrative proceeding in any court, administrative
agency or other tribunal;
(c)

is or may be deemed to be or shall be used, offered or received against

the Settling Parties, Settling Defendants or the Released Parties, or each or any of them,
as an admission, concession or evidence of the validity or invalidity of the Released
Claims, the infirmity or strength of any claim raised in the Action, the truth or falsity of any
fact alleged by the Class Representatives or the Settlement Class, or the availability or
lack of availability of meritorious defenses to the claims raised in the Action;
(d)

is or may be deemed to be or shall be construed as or received in

evidence as an admission or concession against Settling Defendants, or the Released
Parties, or each or any of them, that any of Class Representatives’ claims or Settlement
Class Members’ claims are with or without merit, that a litigation class should or should
not be certified, that damages recoverable in the Action would have been greater or less
than the Settlement Fund or that the consideration to be given pursuant to the Settlement

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Stipulation represents an amount equal to, less than or greater than the amount which
could have or would have been recovered after trial.
15.

The Released Parties may file the Settlement Stipulation and/or this Order and

Final Judgment in any other action that may be brought against them in order to support a
defense or counterclaim based on principles of res judicata, collateral estoppel, full faith and
credit, release, good faith settlement, judgment bar or reduction or any other theory of claim
preclusion or issue preclusion or similar defense or counterclaim. The Settling Parties may file
the Settlement Stipulation and/or this Order and Final Judgment in any proceedings that may
be necessary to consummate or enforce the Settlement Stipulation, the Settlement, or this Order
and Final Judgment.
16.

Except as otherwise provided herein or in the Settlement Stipulation, all funds

held by the Escrow Agent shall be deemed to be in custodia legis and shall remain subject to the
jurisdiction of the Court until such time as the funds are distributed or returned pursuant to the
Settlement Stipulation and/or further order of the Court.
17.

Without affecting the finality of this Order and Partial Judgment in any way, this

Court hereby retains continuing exclusive jurisdiction over the Settling Parties and the Settlement
Class Members for all matters relating to the Action, including the administration, interpretation,
effectuation or enforcement of the Settlement Stipulation and this Order and Final Judgment, and
including any application for fees and expenses incurred in connection with administering and
distributing the Settlement proceeds to the Settlement Class Members.
18.

Without further order of the Court, Settling Defendants, and Class

Representatives may agree to reasonable extensions of time to carry out any of the provisions of
the Settlement Stipulation.

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19.

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

Judgment and immediate entry by the Clerk of the Court is expressly directed pursuant to Rule
54(b) of the Federal Rules of Civil Procedure.
20.

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

manner, by rulings that the Court may make on Class Counsel’s application for an award of
attorneys’ fees and expenses to Class Counsel or awards to Class Representatives.
21.

If the Settlement is not consummated in accordance with the terms of the Settlement

Stipulation, then the Settlement Stipulation and this Order and Partial Final Judgment (including
any amendment(s) thereof, and except as expressly provided in the Settlement Stipulation or by
order of the Court) shall be null and void, of no further force or effect, and without prejudice to
any Settling Party, and may not be introduced as evidence or used in any action or proceeding by
any Person against the Settling Parties or the Released Parties, and each Settling Party shall be
restored to his, her or its respective litigation positions as they existed prior to October 7, 2019,
pursuant to the terms of the Settlement Stipulation.

May 12
Dated:__________, 2021

HON. ALISON J. NATHAN
UNITED STATES DISTRICT JUDGE

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