Ollila v. Babcock & Wilcox Enterprises, Inc. et al

Filing 94

ORDER granting 92 Motion for Disbursement of Funds. Signed by District Judge Max O. Cogburn, Jr on 4/30/2021. (ams)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17cv109-MOC-DCK

ERIC OLLILA, Individually and on Behalf of
All Others Similarly Situated,
Plaintiff,
vs.
BABCOCK & WILCOX ENTERPRISES,
INC., E. JAMES FERLAND and JENNY L.
APKER
Defendants.

ORDER APPROVING ADMINISTRATIVE
DETERMINATIONS AND AUTHORIZING DISTRIBUTION
OF THE NET SETTLEMENT FUND
Lead Plaintiff, Arkansas Teacher Retirement System ( “ATRS” or “Lead Plaintiff”),
having moved this Court for an order approving administrative determinations and authorizing
the distribution of the Net Settlement Fund 1 in the above-captioned class action, and the Court,
having considered all of the materials and arguments submitted in support of the motion,
including the Declaration of Luiggy Segura in Support of Lead Plaintiff’s Motion for Approval
of Distribution Plan (“Segura Declaration”), submitted on behalf of the Court-approved claims
administrator, JND Legal Administration (“JND” or “Claims Administrator”), and Lead
Plaintiff’s Memorandum of Law in Support of Lead Plaintiff’s Motion for Approval of
Administrative Determinations and Authorization to Distribute the Net Settlement Fund
submitted therewith, as well as all prior proceedings herein, and after due deliberation;

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All capitalized terms not otherwise defined herein shall have the meanings ascribed to
them in the June 21, 2019 Stipulation and Agreement of Settlement (ECF No. 77-1, the
“Stipulation”) and exhibits thereto.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1.

This Court has retained jurisdiction over this Action for the purposes of

considering, inter alia, any further application or matter in connection with the administration of
the Settlement and the distribution of the Net Settlement Fund to Authorized Claimants.
2.

The distribution plan proposed by JND as set forth in the Segura Declaration is

APPROVED. Accordingly,
a.

The administrative determinations of the Claims Administrator to accept

the timely submitted Proof of Claim Forms set forth in Exhibit B to the Segura Declaration,
and to accept the late but otherwise valid Proof of Claim Forms submitted after the January
2, 2020 deadline but on or before March 10, 2021, as set forth in Exhibit C to the Segura
Declaration, are adopted;
b.

The administrative determinations of the Claims Administrator to reject the

Proof of Claim Forms set forth in Exhibit D to the Segura Declaration are hereby approved,
and those claims are hereby rejected;
c.

No new Proof of Claim Forms may be accepted after March 10, 2021, and

no further adjustments to Proofs of Claim that would result in an increased Recognized Loss
may be made for any reason after March 10, 2021;
d.

Pursuant to the Distribution Plan for the distribution of the Net Settlement

Fund, JND shall distribute the Net Settlement Fund as follows:
1)

JND will distribute 100% of the available balance of the Net

Settlement Fund, after deducting any Notice and Administration Costs, Taxes,
and Tax Expenses, to the Authorized Claimants set forth in Exhibits B and C to
the Segura Declaration who would receive at least $10.00 based on their
Recognized Loss in comparison to the total Recognized Losses of all Authorized
Claimants.
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2)

In order to encourage Authorized Claimants to promptly deposit

their payments, all distribution checks will bear a notation “CASH PROMPTLY.
VOID AND SUBJECT TO REDISTRIBUTION IF NOT CASHED BY 90
DAYS AFTER ISSUE DATE.” JND is authorized to take appropriate action to
locate and/or contact any Authorized Claimant who has not cashed his, her, or its
check within said time as detailed in footnote 3 of the Segura Declaration;
3)

Authorized Claimants who do not negotiate their distribution

checks within the time allotted or on the conditions set forth in footnote 3 of the
Segura Declaration will irrevocably forfeit all recovery from the Settlement. The
funds allocated to all such stale-dated checks will be available to be distributed to
other Authorized Claimants if Lead Counsel determines that it is cost-effective to
conduct a second distribution. Similarly, Authorized Claimants who do not
negotiate their second or subsequent distributions (should such distributions
occur) within the time allotted or on the conditions set forth in footnote 3 of the
Segura Declaration will irrevocably forfeit any further recovery from the Net
Settlement Fund;
4)

Consistent with the Plan of Allocation, after JND has made

reasonable and diligent efforts to have Authorized Claimants cash their Initial
Distribution Checks, which efforts shall consist of the follow-up efforts described
in footnote 3 of the Segura Declaration, but not earlier than nine (9) months after
the Initial Distribution, JND will, after consulting with Lead Counsel, conduct a
second distribution of the Net Settlement Fund (the “Second Distribution”). Any
amounts remaining in the Net Settlement Fund after the Initial Distribution
(including the funds for all void stale-dated checks), after deducting JND’s unpaid
fees and expenses incurred in connection with administering the Settlement
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(including JND’s estimated costs of the Second Distribution), and after deducting
the payment of any estimated taxes, the costs of preparing appropriate tax returns,
and any escrow fees, will be distributed to all Authorized Claimants in the Initial
Distribution who cashed their first distribution check and who would receive at
least $10.00 from such distribution based on their pro rata share of the remaining
funds. Additional distributions, after deduction of costs and expenses as described
above and subject to the same conditions, may occur thereafter in six-month
intervals until Lead Counsel, in consultation with JND, determines that further
distribution is not cost-effective.
5)

At such time as Lead Counsel, in consultation with JND,

determines that further distribution of the funds remaining in the Net Settlement
Fund is not cost- effective, the remaining balance of the Net Settlement Fund,
after payment of any unpaid fees or expenses incurred in connection with
administering the Net Settlement Fund and after the payment of any estimated
taxes, the costs of preparing appropriate tax returns, and any escrow fees, will be
contributed to non-sectarian, not-for-profit 501(c)(3) organization(s), to be
recommended by Lead Counsel and approved by the Court.
e.

All persons involved in the review, verification, calculation, tabulation, or

any other aspect of the processing of the Proof of Claim Forms submitted herein, or
otherwise involved in the administration or taxation of the Settlement Fund or the Net
Settlement Fund, are hereby released and discharged from any and all claims arising out of
such involvement, and all members of the Settlement Class, whether or not they receive
payment from the Net Settlement Fund, are hereby barred from making any further claims
against the Net Settlement Fund, Lead Plaintiff, Lead Counsel, the Claims Administrator,
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the Escrow Agent, or any other agent retained by Lead Plaintiff or Lead Counsel in
connection with the administration or taxation of the Settlement Fund or the Net
Settlement Fund beyond the amount allocated to them as Authorized Claimants;
f.

The Claims Administrator is authorized to destroy the paper copies of the

Claims and all supporting documentation one year after the Initial Distribution, and may
destroy electronic copies of the same one year after all funds have been distributed;
g.

Fees and expenses in the amount of $223,475.37 that have been incurred or

are expected to be incurred by JND in connection with the administration of the Settlement
and the initial distribution of the Net Settlement Fund as set forth in paragraph 43 and
Exhibit E of the Segura Declaration, are hereby approved; and
h.

This Court retains jurisdiction over any further application or matter that

may arise in connection with the administration of the Settlement and such other and further
relief as this Court deems appropriate.
SO ORDERED.

Signed: April 30, 2021

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