JS Halberstam Irrevocable Grantor Trust v. Davis et al

Filing 43

JUDGMENT:. Signed on 5/9/2022 by Judge Michael H. Simon. (dino)

Case 3:21-cv-00413-SI

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JS HALBERSTAM IRREVOCABLE
GRANTOR TRUST, Derivatively and on
behalf of Portland General Electric
Company,

Case No . 3:21-cv-413-SI
ORDER AND FINAL JUDGMENT

Plaintiff,
V.

JACK E. DAVIS; JOHN W.
BALLANTINE; RODNEY L. BROWN,
JR.; KIRBY A. DYESS; MARK B. GANZ;
MARIE OH HUBER; KATHRYN J.
JACKSON, PH.D.; MICHAEL A. LEWIS;
MICHAEL H. MILLEGAN; NEIL J.
NELSON, M. LEE PELTON, PH.D;
MARIAM. POPE; CHARLES W.
SHIVERY; JAMES P.
TORGERSON; and JAMES LOBDELL,

Defendants,
and
PORTLAND GENERAL ELECTRIC
COMPANY,

Nominal Defendant.

Michael H. Simon, District Judge.

The Stipulation and Agreement of Settlement, dated February 11, 2022 (the Stipulation)
(ECF 32-1) and all exhibits thereto in the above-captioned action (the Action) and the settlement

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contemplated thereby (the Settlement) having been presented at the Settlement Hearing on
May 9, 2022, pursuant to the Order Preliminarily Approving Proposed Settlement, entered
herein on March 28, 2022 (the Preliminary Approval Order) (ECF 33), which Stipulation was
entered into between Defendants Maria M. Pope, James F. Lobdell, Jack E. Davis, John W.
Ballantine, Rodney L. Brown, Kirby A. Dyess, Mark B. Ganz, Marie Oh Huber, Kathryn J.
Jackson, Michael A. Lewis, Michael H. Millegan, Neil J. Nelson, M. Lee Pelton, Charles W.
Shivery, and James P. Torgerson (the Individual Defendants) and Nominal Defendant Portland
General Electric Company (POE or the Company), and Plaintiffs JS Halberstam In-evocable
Grantor Trust, Michael Shimberg, Melisa Ashabraner, and Jason Berning 1 (collectively,
Plaintiffs, and together with POE and the Individual Defendants, the Parties) all by and through
their undersigned attorneys; and the U .S. District Court for the District of Oregon (the Court),
having determined that notice of said hearing was given in accordance with the Preliminary
Approval Order and that said notice was adequate and sufficient; and the parties having appeared
by their attorneys of record; and the attorneys for the respective parties having been heard in
support of the Settlement of the Action, and an opportunity to be heard having been given to all
other persons desiring to be heard as provided in the notice, and the entire matter of the
Settlement having been considered by the Court;

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

1

The Settlement fully resolves all derivative claims against all Defendants in this action,
JS Halberstam Irrevocable Grantor Trust v. Davis, Case No. 3:21-cv-00413-SI (D . Or.) (the
Halberstam Action), as well as in Shimberg v. Pope, et al., Case No. 21CV02957 (Multnomah
Co. Cir. Ct.) (filed January 26, 2021) (the Shimberg Action); Ashabraner v. Pope et al., Case
No. 21CV13698 (Multnomah Co. Cir. Ct.) (filed April 7, 2021) (the Ashabraner Action); and
Berning, et al. vs. Pope, et al., Case No. 3:21-cv-00783-SI (D. Or.) (filed May 21 , 2021) (the
Berning Action). The Court refers to the Halberstam Action, the Shimberg Action, the
Ashabraner Action, and the Berning Action collectively as the Actions.

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1.

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This Order and Final Judgment (Judgment) incorporates herein and makes a paii

hereof, the Stipulation, including the exhibits thereto. Unless otherwise defined herein, all
capitalized te1ms used herein shall have the same meanings as set fo1ih in the Stipulation.
2.

This Court has jurisdiction over the subject matter of the Action, including all

matters necessary to effectuate the Settlement, and over all Paiiies.
3.

The record shows that notice has been given to Current PGE Stockholders in the

manner approved by the Court in its Preliminary Approval Order and a full opportunity to be
heard has been afforded to all parties to the Actions,2 Current PGE Shareholders, and persons in
interest. The Comi finds that the notice provided: (i) constitutes reasonable and the best notice
practicable under the circumstances; (ii) constitutes notice that was reasonably calculated, under
the circumstances, to apprise Current PGE Shareholders of the pendency of the Action, the te1ms
of the Settlement, and Current PGE Shareholders' right to object to and to appear at the
Settlement Hearing; (iii) constitutes due, adequate, and sufficient notice to all persons or entities
entitled to receive notice in accordance with Rule 23 .l(c) of the Federal Rules of Civil
Procedure; and (iv) meets the requirements of due process.
4.

The Comi finds that the Settlement was negotiated at arm's length, in good faith,

by capable and experienced counsel, with full knowledge of the facts, law and risks inherent in
litigating the Action, with the active involvement of the Paiiies, and with assistance from a wellqualified mediator. There is no substantial evidence of collusion or of any other conflict of
interest. No objections to the Settlement have been made, either in writing or orally.
5.

The Court hereby fully and finally approves the Settlement, pursuant to

Rule 23 .1 ( c) of the Federal Rules of Civil Procedure, as set f01ih in the Stipulation in all respects,

2

See n.1 , supra.

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and finds that the Settlement is, in all respects, fair, reasonable, and adequate, and in the best
interests of PGE and PGE's shareholders. The Pmiies are hereby directed to implement and
consummate the Settlement according to the terms and provisions of the Stipulation.
6.

The Action, all claims contained therein, and Settled Claims (defined below) are

hereby ordered as compromised, settled, released, discharged, and dismissed on the merits and
with prejudice by vi1iue of the proceedings herein and this Judgment, without costs to the
Pmiies, except as otherwise provided in the Stipulation and this Judgment; and any claims,
demands, rights, actions, causes of action, liabilities, damages, losses, obligations, judgments,
duties, suits, costs, expenses, matters, and issues known or unknown, contingent or absolute,
suspected or unsuspected, disclosed or undisclosed, liquidated or unliquidated, matured or
unmatured, accrued or unaccrued, apparent or unapparent, that have been or could have been,
asserted in any comi, tribunal, or proceeding (including but not limited to any claims arising
under federal, state, foreign, or common law, including the federal securities laws and any state
disclosure law), by or on behalf of Plaintiffs, PGE, or any PGE shareholder derivatively on
behalf of PGE (collectively, the Releasing Plaintiffs Persons) against the Defendants or any of
their families, parent entities, controlling persons, associates, affiliates, or subsidiaries and each
and all of their respective past or present officers, directors, shareholders, principals,
representatives, employees, attorneys, financial or investment advisors, consultants, accountants,
investment bankers, commercial bankers, entities providing fairness opinions, advisors or agents,
heirs, executors, trustees, general or limited partners or pminerships, limited liability companies,
members, joint ventures, personal or legal representatives, estates, administrators, predecessors,
successors, or assigns (the Released Defendants Persons) which the Releasing Plaintiffs Persons
ever had, now have, or may have had by reason of, arising out of, relating to, or in connection

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with the acts, events, facts, matters, transactions, occunences, statements, or representations, or
any other matter whatsoever set forth in or otherwise related, directly or indirectly, to (i) the
allegations in the Actions or (ii) to the purchase, sale, holding, or acquisition of PGE's stock
during the period February 13, 2020 through August 24, 2020 (the Settled Plaintiffs Claims), and
any claims, demands, rights, actions, causes of action, liabilities, damages, losses, obligations,
judgments, duties, suits, costs, expenses, matters, and issues known or unknown, contingent or
absolute, suspected or unsuspected, disclosed or undisclosed, liquidated or unliquidated, matured
or unmatured, accrued or unaccrued, apparent or unapparent, that have been or could have been,
asserted in any court, tribunal, or proceeding (including but not limited to any claims arising
under federal, state, foreign, or common law, including the federal securities laws and any state
disclosure law), by or on behalf of the Defendants, PGE, or any PGE shareholder (collectively,
the Releasing Defendants Persons, and together with the Releasing Plaintiffs Persons, the
Releasing Persons) against Plaintiffs or any of their families, parent entities, controlling persons,
associates, affiliates, or subsidiaries and each and all of their respective past or present officers,
directors, shareholders, principals, representatives, employees, attorneys, financial or investment
advisors, consultants, accountants, investment bankers, commercial bankers, entities providing
fairness opinions, advisors or agents, heirs, executors, trustees, general or limited partners or
partnerships, limited liability companies, members, joint ventures, personal or legal
representatives, estates, administrators, predecessors, successors, or assigns (the Released
Plaintiffs Persons) which the Releasing Defendants Persons ever had, now have, or may have
had by reason of, arising out of, relating to, or in connection with the commencement, litigation,
prosecution, or settlement of the Actions (the Settled Defendants Claims, together with the
Settled Plaintiffs Claims, the Settled Claims) are hereby baned, provided that the Settled Claims

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shall not include claims (i) relating to the enforcement of the Settlement; (ii) between any
Releasing Defendants Person and its, his or her respective insurance caniers, including claims
for indemnification; or (iii) relating to Plaintiffs' claims, if any, to their pro rata portion of the
settlement in In re Portland General Electric Company Securities Litigation, Case No . 3 :20-cv1583-SI (D. Or.) (the Securities Class Action).
7.

The release contemplated by this Order extends to claims that the Releasing

Persons do not know or suspect exists in his, her or its favor at the time of the release of the
Settled Claims, including without limitation those which, if known, might have affected the
decision to enter into the Settlement. The Releasing Persons acknowledge, or by operation of law
shall be deemed to have acknowledged, that they may discover facts in addition to or different
from those now known or believed to be true by them with respect to the Settled Claims, but that
it is the intention of the Releasing Persons to completely, fully, finally and forever compromise,
settle, release, discharge, extinguish, and dismiss any and all Settled Claims, known or unknown,
suspected or unsuspected, contingent or absolute, accrued or unaccrued, apparent or unapparent,
which now exist, or heretofore existed, or may hereafter exist, and without regard to the
subsequent discovery of additional or different facts. The Releasing Persons acknowledge, or by
operation of law shall be deemed to have acknowledged, that Unknown Claims are expressly
included in the definition of Settled Plaintiffs Claims and Settled Defendants Claims, and that
such inclusion was expressly bargained for and was a key element of the Settlement and was
relied upon by each and all of the Released Plaintiffs Persons and Released Defendants Persons
in entering into this Stipulation. The Releasing Persons shall waive and relinquish, to the fullest
extent permitted by law, the provisions, rights, and benefits of any state, federal, or foreign law
or principle of common law, which may have the effect of limiting the release set forth above.

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This shall include a waiver by the Releasing Persons of any rights pursuant to section 1542 of the
California Civil Code (or any similar, comparable, or equivalent provision of any federal, state,
or foreign law, or principle of common law), which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HA VE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.
Plaintiffs acknowledge, and the Releasing Plaintiffs Persons shall be deemed by operation of the
entry of this Judgment approving the Settlement to have acknowledged, and Defendants
acknowledge, and the Releasing Defendants Persons shall be deemed by operation of the entry of
this Judgment approving the Settlement to have acknowledged, that the foregoing waiver was
separately bargained for, is an integral element of the Settlement, and was relied upon by each
and all of the Defendants and Plaintiffs in entering into the Settlement.
8.

The Court finds Plaintiffs' Fee and Expense Amount to be fair, reasonable and

adequate and it is hereby approved.
9.

Neither the Stipulation, nor any provision contained in the Stipulation, nor any

action undertaken pursuant thereto, nor the negotiation thereof by any party to the Stipulation
shall be deemed an admission or received as evidence in this or any other action or proceeding.
Any Released Persons or his, her or its counsel may file the Stipulation and/or this Judgment in
any action that may be brought, or has been brought, against them in order to support a defense
or counterclaim based on principles of res judicata, collateral estoppel, release, good-faith
settlement, judgment bar or reduction, or any theory of claim preclusion or issue preclusion or
similar defense or counterclaim.

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10.

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Without affecting the finality of this Judgment, the Court retains continuing and

exclusive jurisdiction over all matters relating to administration, consummation, enforcement and
interpretation of the Stipulation, the Settlement, and of this Judgment, to protect and effectuate
this Judgment, and for any other necessary purpose. Plaintiffs, Defendants and each PGE
shareholder are hereby deemed to have irrevocably submitted to the exclusive jurisdiction of this
Court, for the purpose of any suit, action, proceeding or dispute arising out of or relating to the
'
Settlement or the Stipulation, including the exhibits thereto, and only for such purposes. Without

limiting the generality of the foregoing, and without affecting the finality of this Judgment, the
Court retains exclusive jurisdiction over any such suit, action or proceeding. Solely for purposes
of such suit, action or proceeding, to the fullest extent they may effectively do so under
applicable law, Plaintiffs, Defendants, and each PGE stockholder are hereby deemed to have
irrevocably waived and agreed not to assert, by way of motion, as a defense or otherwise, any
claim or objection that they are not subject to the jurisdiction of this Court, or that this Court is,
in any way, an improper venue or an inconvenient forum.
11.

In the event that the Settlement does not become effective in accordance with the

te1ms of the Stipulation, this Judgment shall be vacated, and all Orders entered and releases
delivered in connection with the Stipulation and this Judgment shall be null and void, except as
otherwise provided for in the Stipulation.
12.

This Judgment is a final, appealable judgment.

IT IS SO ORDERED.
DATED this 9th day of May, 2022.

~
Michael H. Simon
United States District Judge

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