Bekker v. Neuberger Berman Group LLC

Filing 151

CLERK'S JUDGMENT re: 149 Order on Motion to Approve in favor of Arthur Bekker against Neuberger Berman Group LLC 401(k) Plan Investment Committee, Neuberger Investment Committee. It is hereby ORDERED, ADJUDGED AND DECREED: That for the re asons stated in the Court's Order dated December 1, 2020, Approving Settlement of Class Action, there is no just reason to delay entry of final judgment with respect to the claims asserted in the Action. Accordingly, final judgment is entered and the case is closed. (see attached Order, ECF No. 149). (Signed by Clerk of Court Ruby Krajick on 12/2/2020) (Attachments: # 1 Right to Appeal) (km)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------X
ARTHUR BEKKER, individually, on behalf of a
class of all other persons similarly situated, and
on behalf of the Neuberger Berman 401(k) plan,
Plaintiff,

16 CIVIL 6123 (LTS)(BCM)

JUDGMENT

-againstNEUBERGER BERMAN GROUP 401(K)
PLAN INVESTMENT COMMITTEE,

Defendants
-------------------------------------------------------------X
It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons
stated in the Court's Order dated December 1, 2020, Approving Settlement of Class Action,
there is no just reason to delay entry of final judgment with respect to the claims asserted in the
Action. Accordingly, final judgment is entered and the case is closed. (see attached Order, ECF
No.
149).
Dated: New York, New York
December 2, 2020

RUBY J. KRAJICK
_________________________
Clerk of Court
BY:
_________________________
Deputy Clerk

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
ARTHUR BEKKER, individually, on behalf of a
class of all other persons similarly situated, and on
behalf of the Neuberger Berman 401(k) plan,
Plaintiff,
v.
NEUBERGER BERMAN GROUP 401(K) PLAN
INVESTMENT COMMITTEE,
Defendant.
---------------------------------------------------------------X

No. 16-cv-06123-LTS-BCM

ORDER APPROVING SETTLEMENT OF CLASS ACTION
WHEREAS, Arthur Bekker (the “Plaintiff”) in the above-captioned lawsuit (the
“Action”) on behalf of himself and the Settlement Class and the Plan, and Defendant Neuberger
Berman Group 401(k) Plan Investment Committee (“Defendant”), have entered into a Class
Action Settlement Agreement dated June 10, 2020 (the “Settlement Agreement”), that provides
for a complete dismissal with prejudice of all claims asserted in the Action against Defendant by
Settlement Class Members on the terms and conditions set forth in the Settlement Agreement,
subject to the approval of this Court (the “Settlement”);
WHEREAS, unless otherwise defined in this Order, the capitalized terms herein shall
have the same meaning as they have in the Settlement Agreement;
WHEREAS, by Order dated July 27, 2020 (Dkt. 134) (the “Preliminary Approval
Order”), this Court (1) conditionally certified the Settlement Class and appointed Class Counsel;
(2) preliminarily approved the Settlement; (3) directed notice to Settlement Class Members and
approved the plan and form of Notice; (4) approved the Plan of Allocation and appointed a
Settlement Administrator; (5) scheduled a Final Approval Hearing; and (6) scheduled a hearing
on Plaintiff’s Counsel’s motion for fees and costs and the payment of Case Contribution Awards;

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WHEREAS, due and adequate notice has been given to the Settlement Class;
WHEREAS, the Court conducted a hearing on November 19, 2020 (the “Final Approval
Hearing”) to consider, among other things, (a) whether the proposed Settlement on the terms and
conditions provided for in the Settlement Agreement is fair, reasonable, adequate and in the best
interests of the Settlement Class and should be approved by the Court; (b) whether a Judgment
substantially in the form attached as Exhibit A to the Agreement should be entered dismissing
with prejudice all claims asserted in the Action against Defendant; (c) whether the proposed Plan
of Allocation for the proceeds of the Settlement is fair and reasonable and should be approved;
(d) whether the motion by Plaintiff’s Counsel for an award of attorneys’ fees and reimbursement
of litigation expenses and for Case Contribution Awards should be approved; and
WHEREAS, the Court having reviewed and considered the Settlement Agreement, all
papers filed and proceedings held herein in connection with the Settlement, including the
supplemental submission dated November 20, 2020, (Dkt. 148), all oral and written comments
received regarding the proposed Settlement, and the record in the Action, and good cause
appearing therefor;
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
1.

Jurisdiction: The Court has jurisdiction over the subject matter of the Action,

and all matters relating to the Settlement, as well as personal jurisdiction over all of the Parties
and each of the Settlement Class Members.
2.

Incorporation of Settlement Documents and Proceedings: This Order

incorporates and makes a part hereof: (a) the Settlement Agreement filed with the Court on June
10, 2020, including the Plan of Allocation submitted therewith, (b) the Notice approved by the
Court on July 27, 2020, and (c) the Court’s reasoning stated on the record at the Final Approval

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Hearing on November 19, 2020.
3.

Objections: The Court has not received any objections to the Settlement. Counsel

have informed the Court that they are not aware of any objections, either. The lack of any
objections strongly weighs in favor of approval of the Settlement.
4.

Class Certification for Settlement Purposes: The Court hereby affirms its

determinations certifying, for the purposes of the Settlement only, the Action as a class action
pursuant to Rule 23(b)(1) of the Federal Rules of Civil Procedure with the Settlement Class
consisting of:
All Participants in the Neuberger Berman Group 401(k) Plan during the Class Period
(June 15, 2010 through December 16, 2019) who had any portion of their Plan
accounts, at any time during the Class Period, invested in the VEF. Excluded from
the class are: (i) Defendant Neuberger Berman Group 401(k) Plan Investment
Committee and those of its current and past members who served from June 15, 2010
through August 2, 2016; (ii) non-party Marvin Schwartz; and (iii) beneficiaries,
immediate family members, estates, and executors of (i) and (ii).
5.

Adequacy of Representation: Pursuant to Rule 23 of the Federal Rules of Civil

Procedure, and for the purposes of Settlement only, the Court hereby affirms its determinations
in the Preliminary Approval Order certifying Plaintiff as Class Representative for the Settlement
Class and appointing Plaintiff‘s Counsel as Class Counsel for the Settlement Class both in terms
of litigating the claims of the Settlement Class and for purposes of entering into and
implementing the Settlement and finding that the Settlement has satisfied the requirements of
Federal Rules of Civil Procedure 23(a)(4) and 23(g).
6.

Notice: The Court finds that the dissemination of the Notice: (i) was implemented

in accordance with the Preliminary Approval Order; (ii) constituted the best notice reasonably
practicable under the circumstances; (iii) constituted notice that was reasonably calculated, under
the circumstances, to apprise all Settlement Class Members of the pendency of the Action, of the

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effect of the Settlement (including the releases provided for therein), of Plaintiff’s Counsel’s
motion for an award of attorneys’ fees and reimbursement of litigation expenses and case
contribution awards, of their right to object to the Settlement, the Plan of Allocation and
Plaintiff’s Counsel’s motion for attorneys’ fee and reimbursement of litigation expenses, and of
their right to appear at the Final Approval Hearing; (iv) constituted due, adequate, and sufficient
notice to all persons or entities entitled to receive notice of the proposed Settlement; and (v)
satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure, the United States
Constitution including the Due Process Clause, and all other applicable law and rules.
7.

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

accordance with, Rule 23 of the Federal Rules of Civil Procedure, this Court hereby fully and
finally approves the Settlement set forth in the Settlement Agreement in all respects including,
without limitation, the amount of the Settlement; the releases provided for therein; and other
dismissal with prejudice of the claims asserted in the Action, and finds that the Settlement is, in
all respects, fair, reasonable and adequate, and is in the best interests of Plaintiff and the
Settlement Class. The Parties are directed to implement, perform and consummate the Settlement
in accordance with the terms and provisions of the Agreement.
8.

As of the Settlement Effective Date, pursuant to Fed. R. Civ. P. 54(b), all of the

claims asserted in this Action are hereby dismissed with prejudice. The Parties shall bear their
own costs and expenses, except as otherwise expressly provided in the Settlement Agreement.
9.

Binding Effect: The terms of the Settlement Agreement and of this Order shall be

forever binding on Defendant, Plaintiff, the Plan, and all Settlement Class Members, as well as
their respective current and former beneficiaries, dependents, representatives, heirs, executors,
administrators, predecessors, successors and assigns.

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10.

Releases: The releases set forth in the Settlement Agreement, including but not

limited to Paragraph 6 of the Settlement Agreement (the “Releases”), together with the
definitions contained in Paragraphs 2 of the Settlement Agreement relating thereto, are expressly
incorporated herein in all respects. The Releases are effective as of the date of the entry of this
Final Approval Order. Accordingly, the Court orders that, as of the date of entry of this Final
Approval Order:
a. The Plaintiff and each of the other Settlement Class Members (on behalf of
themselves and their past, present and future heirs, beneficiaries, executors,
administrators, estates, partners, officers, directors, agents, attorneys,
predecessors, successors, and assigns), for themselves and on behalf of the Plan,
shall be deemed to have, and by operation of law and of the judgment shall have,
fully, finally and forever compromised, settled, released, resolved, relinquished,
waived, discharged, and dismissed with prejudice all Released Claims;
b. The Plan, having received Independent Fiduciary approval as required by Section
3.8 of the Settlement Agreement, shall be deemed to have, and by operation of
law and of the judgment shall have, fully, finally and forever compromised,
settled, released, resolved, relinquished, waived, discharged, and dismissed with
prejudice all Released Claims;
c. Plaintiff and each Settlement Class Member (on behalf of themselves and their
past, present and future heirs, beneficiaries, executors, administrators, estates,
partners, officers, directors, agents, attorneys, predecessors, successors, and
assigns), for themselves and on behalf of the Plan, and the Plan (having received
Independent Fiduciary approval as required by Section 3.9 of the Settlement

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Agreement), acting individually or together, or in combination with others, shall
not sue or seek to institute, maintain, prosecute, argue, or assert in any action or
proceeding (including but not limited to an IRS determination letter proceeding, a
Department of Labor proceeding, an arbitration or a proceeding before any state
insurance or other department or commission), any cause of action, demand, or
claim on the basis of, connected with, or arising out of any of the Released Claims
and that the foregoing covenants and agreements shall be a complete defense to
any such Released Claims against any of the respective Released Parties. Nothing
herein shall preclude any action to enforce the terms of this Settlement
Agreement.
d. If any Settlement Class Member or the Plan violates the covenant in Section 10(c)
and the Released Party impacted is successful in having the claim dismissed, the
Released Party shall be deemed to be a prevailing party for purposes of
recovering attorneys’ fees and costs incurred in defending against any such action.
e.

Defendant shall be deemed to have, and by operation of law and of the judgment
shall have, fully, finally and forever compromised, settled, released, resolved,
relinquished, waived, discharged, and dismissed with prejudice, and shall forever
be enjoined from prosecuting, any or all claims against Plaintiff related to the
pursuit of the Action as provided in the Settlement Agreement.

11.

Bar Order: Upon the date of the entry of this Final Approval Order, all persons

and entities shall be permanently enjoined, barred and restrained from bringing, commencing,
prosecuting or asserting any and all claims, actions, suits, causes of actions, arbitrations, or
demands in any forum against any of the Released Parties for recovery, contribution,

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indemnification or otherwise for any damages allegedly arising from any of the Released Claims,
or the settlement thereof.
12.

Rule 11 Findings: The Court finds and concludes that the Parties and their

respective counsel have complied in all respects with the requirements of Rule 11 of the Federal
Rules of Civil Procedure in connection with the commencement, maintenance, prosecution,
defense and settlement of the claims asserted in the Action against Defendant by Settlement
Class Members.
13.

No Admissions: This Order, the Preliminary Approval Order, the Settlement

Agreement (whether or not consummated), including the exhibits thereto and the Plan of
Allocation contained therein (or any other plan of allocation that may be approved by the Court),
materials submitted in support of the Plan of Allocation, and the negotiations that led to the
agreement in principle reached on March 23, 2020, the negotiation of the Settlement Agreement
and its exhibits, and any papers submitted in support of approval of the Settlement, and any
proceedings taken pursuant to or in connection with the Settlement Agreement or approval of the
Settlement (including any arguments proffered in connection therewith): (a) shall not give rise to
any inference of, and shall not be construed or used as an admission, concession, or declaration
against any Released Party of wrongdoing or liability in the Action or any other proceeding; (b)
are not an admission of any liability of any kind, whether legal or factual; (c) shall not be offered
as evidence of, or construed as, or deemed to be evidence of any presumption, concession, or
admission by any Released Party with respect to the truth of any fact alleged by Plaintiff or the
validity of any claim that was, could have been, or may be asserted or the deficiency of any
defense that has been, could have been, or may be asserted in this Action or in any litigation, or
of any liability, negligence, fault, or other wrongdoing of any kind by any Released Party; (d)

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shall not be offered against Plaintiff as evidence of a presumption, concession or admission with
respect to any liability, negligence, fault or wrongdoing of any kind, or in any way referred to for
any other reason as against Plaintiff in any civil, criminal or administrative action or proceeding,
other than such proceedings as may be necessary to effectuate the provisions of the Settlement
Agreement; provided, however, that if the Settlement Agreement is approved by the Court, the
Parties and their respective counsel may refer to it to effectuate the protections from liability
granted thereunder or otherwise to enforce the terms of the Settlement; (e) shall not be construed
against any of the Parties as an admission, concession, or presumption that the Settlement
Amount represents the amount which could be or would have been recovered by the Settlement
Class after trial with respect to their claims in the Action; and (f) shall not be construed against
the Plaintiff as an admission, concession, or presumption that any of the claims asserted or to be
asserted in the Action are without merit, that any of the Defendants have or had meritorious
defenses, or that damages recoverable by the Settlement Class would not have exceeded the
Settlement Amount.
14.

Retention of Jurisdiction: Without affecting the finality of this Order in any

way, this Court retains continuing and exclusive jurisdiction over: (a) the Parties for purposes of
the administration, interpretation, implementation and enforcement of the Settlement; (b) the
disposition of the Settlement Fund; (c) any motion for an award of attorneys’ fees and litigation
expenses by Plaintiff’s Counsel in the Action that will be paid from the Settlement Fund; (d) any
motion to approve the Plan of Allocation; (e) the Settlement Class Members for all matters
relating to the Action; and (f) the interpretation, implementation and enforcement of this Order.
15.

Fees and Awards. A separate order shall be entered on the motion of Plaintiff’s

Counsel for an award of attorneys’ fees and reimbursement of litigation expenses and Case

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Contribution Fees. Such order shall in no way affect or delay the finality of this Order and shall
not affect or delay the Effective Date of the Settlement.
16.

Modification of Settlement Agreement. Without further approval from the

Court, Plaintiff and Defendant are hereby authorized to agree to and adopt such amendments or
modifications of the Settlement Agreement or any exhibits attached thereto to effectuate this
Settlement that: (i) are not materially inconsistent with this Order; and (ii) do not materially limit
the rights of Settlement Class Members in connection with the Settlement. Without further order
of the Court, Plaintiff and Defendant may agree to reasonable extensions of time to carry out any
provisions of the Settlement.
17.

Termination: If the Effective Date does not occur or the Settlement is terminated

as provided in the Settlement Agreement, then this Order (and any orders of the Court relating to
the Settlement) shall be vacated, rendered null and void and be of no further force or effect,
except as otherwise provided by the Settlement Agreement.
18.

Entry of Final Judgment: There is no just reason to delay entry of final

judgment with respect to the claims asserted in the Action. Accordingly, the Clerk of the Court is
directed to enter final judgment and close the case.

SO ORDERED this 1st day of December, 2020.

_/s/ Laura Taylor Swain _________
The Honorable Laura Taylor Swain
United States District Court Judge

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