Fulton County Employees' Retirement System v. Blankfein et al

Filing 94

ORDER PRELIMINARILY APPROVING DERIVATIVE SETTLEMENT AND PROVIDING FOR NOTICE: NOW, THEREFORE, this 16 day of September, 2022, upon application of the Parties, IT IS HEREBY ORDERED: 1. The Court does hereby preliminarily approve, subject to further consideration at the Settlement Hearing described below, the Settlement, as embodied in the Stipulation and the Exhibits attached thereto, including the terms and conditions for settlement of the Action. 2. For the purposes of the proposed Settlemen t only, the Court preliminarily finds that the Action was properly brought as a derivative action for and on behalf of The Goldman Sachs Group, Inc. ("Goldman Sachs"), and that Plaintiff fairly and adequately represents the interests of Goldman Sachs shareholders similarly situated in enforcing the rights of Goldman Sachs. 3. Plaintiff Counsel is authorized to act on behalf of Goldman Sachs shareholders with respect to all acts required by the Stipulation or such other acts which ar e reasonably necessary to consummate the Settlement set forth in the Stipulation. 4. A hearing (the "Settlement Hearing") shall be held before this Court on January 13, 2023, at 2:00 PM, Eastern Daylight Time, at the United States District Court for the Southern District of New York, 40 Foley Square, New York, New York 10007, to: As further set forth in this Order. SO ORDERED. (Signed by Judge Vernon S. Broderick on 9/16/2022) ( Settlement Conference set for 1/13/2023 at 02:00 PM before Judge Vernon S. Broderick.) (ks)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FULTON COUNTY EMPLOYEES’
RETIREMENT SYSTEM, Derivatively on Behalf
of THE GOLDMAN SACHS GROUP, INC.,
Plaintiff,
v.
LLOYD BLANKFEIN, DAVID M. SOLOMON,
M. MICHELE BURNS, MARK A. FLAHERTY,
WILLIAM W. GEORGE, JAMES A.
JOHNSON, ELLEN J. KULLMAN, LAKSHMI
N. MITTAL, ADEBAYO O. OGUNLESI,
PETER OPPENHEIMER, DAVID A. VINIAR,
and MARK O. WINKELMAN,
Defendants,

Case No. 1:19-cv-01562 (VSB)

and
THE GOLDMAN SACHS GROUP, INC.,
Nominal Defendant.
EXHIBIT A: [PROPOSED] ORDER PRELIMINARILY APPROVING DERIVATIVE
SETTLEMENT AND PROVIDING FOR NOTICE
WHEREAS, the Parties to the shareholder derivative action, styled Fulton County
Employees’ Retirement System v. Blankfein et al., 1:19-cv-01562 (VSB) (S.D.N.Y.) (the
“Action”), currently pending before the United States District Court for the Southern District of
New York (the “Court”), having applied pursuant to Federal Rule of Civil Procedure 23.1 for an
order preliminarily approving (“Preliminary Approval Order”) the proposed settlement of the
Action in accordance with the Stipulation and Agreement of Settlement entered into by the Parties
on May 13, 2022 (the “Stipulation” or the “Settlement”), upon the terms and conditions set forth
therein;
WHEREAS, all capitalized terms contained herein shall have the same meanings and

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definitions as set forth in the Stipulation and the Exhibits annexed thereto (in addition to those
capitalized terms defined herein); and
WHEREAS, the Court having read and considered the Stipulation and accompanying
documents, and all Parties having consented to the entry of this Preliminary Approval Order,
NOW, THEREFORE, this 16th
___ day of ___________,
September 2022, upon application of the
Parties, IT IS HEREBY ORDERED:
1.

The Court does hereby preliminarily approve, subject to further consideration at the

Settlement Hearing described below, the Settlement, as embodied in the Stipulation and the
Exhibits attached thereto, including the terms and conditions for settlement of the Action.
2.

For the purposes of the proposed Settlement only, the Court preliminarily finds that

the Action was properly brought as a derivative action for and on behalf of The Goldman Sachs
Group, Inc. (“Goldman Sachs”), and that Plaintiff fairly and adequately represents the interests of
Goldman Sachs shareholders similarly situated in enforcing the rights of Goldman Sachs.
3.

Plaintiff Counsel is authorized to act on behalf of Goldman Sachs shareholders with

respect to all acts required by the Stipulation or such other acts which are reasonably necessary to
consummate the Settlement set forth in the Stipulation.
4.

A hearing (the “Settlement Hearing”) shall be held before this Court on

January 13, 2023 at _______,
2:00 PM Eastern Daylight Time, at the United States District Court for the
_______________,
Southern District of New York, 40 Foley Square, New York, New York 10007, to:
i.

determine whether the Settlement on the terms and conditions provided for in
the Stipulation is fair, reasonable and adequate to Goldman Sachs shareholders
and to Goldman Sachs and should be approved by the Court;

ii.

determine whether a Final Judgment and Order of Dismissal should be entered
dismissing the Action with prejudice;

iii.

determine whether any application made by Plaintiff Counsel for an award of
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fees and expenses (the “Fee Application”) and any application by Plaintiff for
a service award (the “Service Award”), relating to its prosecution of the Action,
should be granted;

5.

iv.

hear and address any objections to the Settlement; and

v.

rule on such other matters as the Court may deem appropriate.
The Court reserves the right to: (i) approve the Settlement at or after the Settlement

Hearing with such modification(s) as may be consented to by the Parties to the Stipulation and
without further notice to Goldman Sachs shareholders; and (ii) adjourn the Settlement Hearing (or
any adjournment thereof), without further notice of any kind to Goldman Sachs shareholders.
6.

The Court approves, in form and substance, the Notice of Settlement of Shareholder

Derivative Litigation and Hearing (“Notice”), annexed as Exhibit B hereto, and the Summary
Notice of Settlement of Shareholder Derivative Litigation (“Summary Notice”), annexed as
Exhibit C hereto, and finds that the form and method of notice specified herein constitutes the best
notice practicable under the circumstances, constitutes due and sufficient notice of the Settlement
Hearing to all persons entitled to receive such notice and fully satisfies the requirements of due
process, Federal Rule of Civil Procedure 23.1 and applicable law.
7.

The Parties shall administer the notice procedure as more fully set forth below:
i.

Not later than seven (7) calendar days following entry of this Preliminary
Approval Order, Goldman Sachs shall publish the Notice as a Current Report
on Form 8-K filed with the Securities and Exchange Commission and shall
publish the Stipulation and Notice on an Internet page created by Goldman
Sachs that will be accessible via a link on the “Investor Relations” page of
http://www.goldmansachs.com, the address of which shall be contained in the
Notice and Summary Notice.

ii.

Not later than seven (7) calendar days following entry of the Preliminary
Approval Order, Goldman Sachs shall publish the Summary Notice, or a
substantially similar notice, (a) once as a quarter-page advertisement in the
national and local editions of the Wall Street Journal and New York Times, and
(b) via a national wire service.

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8.

iii.

Not later than seven (7) calendar days following entry of the Preliminary
Approval Order, Plaintiff Counsel shall publish the Stipulation and Notice on
the firm’s website, the address of which shall be contained in the Notice and
Summary Notice.

iv.

At least five (5) calendar days before the Settlement Hearing, counsel for
Plaintiff and Counsel for Goldman Sachs shall separately file with the Court the
appropriate notice of proof of compliance with the procedures described herein
in Paragraph 7.

The Notice Costs described in paragraph 7 shall be borne in accordance with the

terms of the Stipulation.
9.

All Goldman Sachs shareholders shall be bound by all orders, determinations, and

judgments in the Action concerning the Settlement, whether favorable or unfavorable to Goldman
Sachs shareholders.
10.

All proceedings and pending deadlines in the Action, other than such proceedings

as may be necessary to effectuate the terms and conditions of the Settlement are hereby stayed and
suspended until further order of this Court.
11.

All papers in support of the Settlement and any application for attorneys’ fees

and/or reimbursement of expenses submitted by Plaintiff and/or Plaintiff Counsel shall be filed with
the Court and served at least thirty-five (35) days before the Settlement Hearing.
12.

All objections to the Settlement, the Fee Application, and/or the Service Award

shall be submitted to the Court either by mailing them to the Clerk of the Court, or by filing them
in person at any location of the United States District Court for the Southern District of New York
on or before twenty-one (21) days before the Settlement Hearing. All objections to the Settlement,
the Fee Application, and/or the Service Award are subject to paragraph 14 below and will
potentially be waived and forever foreclosed, as outlined in paragraph 15 below.
13.

All papers in response to any objection to the Settlement, the Fee Application,

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and/or the Service Award shall be filed with the Court and served on or before seven (7) days before
the Settlement Hearing.
14.

Any Goldman Sachs shareholder who objects to any aspect of the Settlement, the

Fee Application, the Service Award, and/or the Final Judgment and Order of Dismissal to be entered
in the Action, may file an objection. Any objection must: (i) identify the case name and case number
Fulton County Employees’ Retirement System v. Blankfein et al., No. 1:19-cv-01562 (VSB)
(S.D.N.Y.); (ii) state the objector’s name, address, and telephone number, and if represented by
counsel, the name, address, and telephone number of the objector’s counsel, and must be signed by
the objector; (iii) contain a representation as to whether the objector and/or his, her, or their counsel
intends to appear at the Settlement Hearing; (iv) contain a statement of the objection(s) to any
matters before the Court, the grounds for the objection(s) or the reasons for the objector’s desiring
to appear and be heard, as well as all documents or writings the objector desires the Court to
consider, including any legal and evidentiary support; (v) if the objector has indicated that he, she,
or they intends to appear at the Settlement Hearing, state the identities of any witnesses the objector
may call to testify and any exhibits the objector intends to introduce into evidence at the Settlement
Hearing; and (vi) include documentation sufficient to prove that the objector owned shares of
Goldman Sachs common stock as of the close of business on May 13, 2022 (the “Record Date”),
together with a statement that the objector continues to hold shares of Goldman Sachs common
stock on the date of filing of the objection and will continue to hold shares of Goldman Sachs
common stock as of the date of the Settlement Hearing. Documentation establishing ownership of
Goldman Sachs common stock must consist of copies of a brokerage account statement or an
authorized statement from the objector’s broker containing the information found in an account
statement. The objecting shareholder may not ask the Court to order a larger settlement; the Court

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can only approve or deny the Settlement. Such shareholder may also appear at the Settlement
Hearing, either in person or through his, her or their own attorney. If said shareholder appears
through his, her, or their own attorney, he, she, or they is responsible for paying that attorney. Any
such written objections and supporting papers must: (i) clearly identify the case name and number;
(ii) be submitted to the Court (with copies to Plaintiff Counsel and Defendants Counsel) either by
mailing them to the Clerk of the Court for the United States District Court for the Southern District
of New York, 500 Pearl Street, New York, New York 10007, or by filing them in person at any
location of the United States District Court for the Southern District of New York; and (iii) be filed
and received on or before twenty-one (21) calendar days prior to the Settlement Hearing.
15.

Any Goldman Sachs shareholder who fails to object in the manner described above

shall be deemed to have waived the right to object (including any right of appeal) and shall forever
be foreclosed from raising such objection to the fairness, reasonableness or adequacy of the
Settlement as incorporated in the Stipulation and to any award of attorneys’ fees and expenses to
Plaintiff and/or Plaintiff Counsel, unless otherwise ordered by the Court, but shall otherwise be
bound by the Preliminary Approval Order and the Final Judgment and Order of Dismissal to be
entered and the Releases to be given.
16.

If the Settlement is approved by the Court following the Settlement Hearing, the

Final Judgment and Order of Dismissal will be entered as described in the Stipulation. If the
Settlement, including any amendment made in accordance with the Stipulation, is not approved by
the Court or shall not become effective for any reason whatsoever, the Settlement (including any
modification thereof made with the consent of the Parties as provided for in the Stipulation), any
certifications herein and any actions taken or to be taken in connection therewith (including this
Preliminary Approval Order and any judgment entered herein) shall be terminated and shall become

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null and void and of no further force and effect, except for Goldman Sachs, Plaintiff and Plaintiff
Counsel’s obligations to pay, in accordance with the terms of the Stipulation, expenses incurred in
connection with the provision of the notice prescribed by this Order. In that event, neither the
Stipulation, nor any provision contained in the Stipulation, nor any action undertaken pursuant
thereto, nor the negotiation thereof by any party, shall be deemed an admission, concession, or
received as evidence in this or any other suit, action or proceeding.
17.

The existence of the Stipulation, its contents and any negotiations, statements, or

proceedings in connection therewith will not be argued to be, and will not be construed or deemed
to be, a presumption, concession or admission by any of the Released Parties or any other Person
of any fault, liability or wrongdoing as to any facts or claims alleged or asserted in the Action, or
that Goldman Sachs, Plaintiff, Plaintiff Counsel, any present or former shareholders of Goldman
Sachs or any other Person, have suffered any damage attributable in any manner to any of the
Released Parties. Nor shall the existence of the Stipulation and its contents or any negotiations,
statements or proceedings in connection therewith be construed as a presumption, concession or
admission by Plaintiff or Plaintiff Counsel of any lack of merit of the Released Claims, or that
Goldman Sachs has not suffered cognizable damages caused by Defendants. The existence of the
Stipulation, its contents or any negotiations, statements, or proceedings in connection therewith,
shall not be offered or admitted in evidence or referred to, interpreted, construed, invoked or
otherwise used by any Person for any purpose in the Action or in any other civil, criminal or
administrative action, proceeding or forum, except as may be necessary to effectuate the Settlement.
This provision shall remain in force in the event that the Settlement is terminated for any reason
whatsoever. Notwithstanding the foregoing, any of the Released Parties may file the Stipulation or
any judgment or order of the Court related hereto in any other action that has been or may in the

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future be brought against them, in order to support any and all defenses or counterclaims based on
res judicata, collateral estoppel, release, good-faith settlement, judgment bar or reduction or any
other theory of claim preclusion or issue preclusion or similar defense or counterclaim, or as
necessary for any of the Released Parties to pursue their rights under any insurance policy.
18.

The Court retains jurisdiction to consider all further applications arising out of,

based upon or related to the Settlement.
SO ORDERED.
Dated:

September 16, 2022
New York, New York
_______________________________
The Honorable Vernon S. Broderick
United States District Judge

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