Duncan v. Joy Global Inc et al

Filing 57

ORDER signed by Judge Pamela Pepper on 9/14/2018. 50 55 MOTIONS for Order Preliminarily Approving Settlement GRANTED. See order for details. Final Approval Hearing set for 12/20/2018 at 2:00 PM in Courtroom 222, 517 E. Wisconsin Ave., Milwaukee, WI before Judge Pamela Pepper. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

STEVEN DUNCAN, et al.,
Individually and on Behalf of
All Others Similarly Situated,
Plaintiffs,
v.

Case No. 16-cv-1229-pp

JOY GLOBAL INC., et al.,
Defendants,

ORDER GRANTING LEAD PLAINITFFS’ UNOPPOSED MOTION FOR
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT (DKT. NO. 50)
AND GRANTING MOTION FOR EXECUTION OF AMENDED PROPOSED
ORDER PRELIMINARILY APPROVING SETTLEMENT AND PROVIDING FOR
NOTICE (DKT. NO. 55)

The plaintiffs filed this class-action complaint on September 13, 2016,
alleging a breach of fiduciary duties and violations of §§14(a) and 20(A) of the
Securities Exchange Act. Dkt. No. 1. The plaintiffs filed an amended complaint
on April 26, 2017. Dkt. No. 33. The defendants filed a motion to dismiss the
amended complaint. Dkt. No. 35. Post-briefing—while the court had the motion
under advisement—the parties informed the court that they had reached a
settlement agreement. Dkt. No. 48. On May 23, 2018, the parties filed an
unopposed motion for preliminary approval of settlement agreement, along with
a proposed order. Dkt. Nos. 50, 50-1. The court somehow missed this in the
press of its docket, and failed to act. So the parties filed another motion, and
provided the court with an amended proposed order. Dkt. Nos. 55, 55-1.
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The court has read and considered the settlement agreement and the
attached exhibits (Dkt. No. 52). The court GRANTS the parties’ motions to
preliminarily approve the settlement agreement, dkt. nos. 50, 55, and
ORDERS:
1.

The court shall hold a hearing on December 20, 2018 at 2:00

p.m. (the “Final Approval Hearing”), at the United States Courthouse and
Federal Building, 517 E. Wisconsin Ave., Room 222, Milwaukee WI 53202, to:
(a) determine whether the proposed settlement is fair, reasonable, and
adequate to the Class and should be approved by the court; (b) determine
whether the court should enter the proposed Order and Final Judgment, found
at dkt. no. 52-5; (c) determine whether the court should approve the proposed
Plan of Allocation; (d) determine the amount of fees and expenses that the
court should award to Lead Counsel; (e) determine any award to Lead Plaintiffs
under 15 U.S.C. §78u-4(a)(4); (f) hear any objections by Class Members to (i)
the Settlement or Plan of Allocation; (ii) any award to Lead Plaintiffs; and/or (iii)
the award of fees and expenses to Lead Counsel; and (g) consider such other
matters the court deems appropriate. The court may adjourn the Final
Approval Hearing without further notice to the members of the class.
2.

The court FINDS that the settlement resulted from arms-length

negotiations, and PRELIMINARILY APPROVES the settlement agreement as
being fair, reasonable, and adequate to Class Members, subject to further
consideration at the Final Approval Hearing.

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3.

Under Rules 23(a) and (b)(3) of the Federal Rules of Civil

Procedure, and for purposes of this settlement only, the court PRELIMINARILY
CERTIFIES this litigation as a class action on behalf of all those who
purchased, sold or held Joy Global common stock during the period from and
including September 1, 2016, the record date for Joy Global’s special
stockholder meeting regarding the acquisition of Joy Global by Komatsu Ltd.
and certain of its subsidiaries (the “Acquisition”), through and including
April 5, 2017, the date the Acquisition closed (the “Class”). The court
EXCLUDES the following from the class: (i) Defendants; (ii) members of the
immediate families of each Defendant; (iii) Joy Global’s subsidiaries and
affiliates; (iv) any entity in which any Defendant has a controlling interest; and
(v) the legal representatives, heirs, successors, administrators, executors, and
assigns of each Defendant. The court also EXCLUDES from the Class those
Persons who properly exclude themselves by timely and validly requesting
exclusion from the Class under the Notice of Pendency and Proposed
Settlement of Class Action to be sent to Class Members under this Order.
4.

The court finds, for the purposes of the settlement only, that the

prerequisites for a class action under Rules 23(a) and (b)(3) of the Federal
Rules of Civil Procedure have been satisfied, in that: (a) the number of Class
Members is so numerous that joinder of all members is impracticable; (b) there
are questions of law and fact common to the Class; (c) the claims of Lead
Plaintiffs are typical of the claims of the Class they seek to represent; (d) Lead
Plaintiffs and Lead Counsel have and will fairly and adequately represent the
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interests of the Class; (e) the questions of law and fact common to the Members
of the Class predominate over any questions affecting only individual Class
Members; and (f) a class action is superior to other available methods for the
fair and efficient adjudication of the controversy.
5.

Under Rule 23 of the Federal Rules of Civil Procedure, and for the

purposes of the settlement only, the court PRELIMINARILY CERTIFIES the
Lead Plaintiffs as the class representatives and PRELIMINARILY CERTIFIES
Robbins Geller Rudman & Dowd LLP and Bronstein, Gewirtz & Grossman, LLC
as Lead Counsel.
6.

The court APPROVES the form, substance, and requirements of

the Notice of Pendency and Proposed Settlement of Class Action (“Notice”) and
Proof of Claim and Release, substantially in the forms annexed hereto as
Exhibits A-1 and A-2, respectively.
7.

The court APPROVES the form of the summary notice,

substantially in the form annexed hereto as Exhibit A-3.
8.

The court APPOINTS the firm of Gilardi & Co. LLC (“Claims

Administrator”) to supervise and administer the notice procedure as well as the
processing of claims as more fully set forth below.
9.

The court ORDERS that the Claims Administrator shall make

reasonable efforts to identify all Persons who are Members of the Class and not
later than seven (7) calendar days after the court signs and enters this Order
(the “Notice Date”), the Claims Administrator shall commence mailing of the
Notice and Proof of Claim and Release, substantially in the forms annexed
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hereto, by First-Class Mail, to Class Members who can be identified with
reasonable effort and post on its website at
www.JoyGlobalSecuritiesLitigation.com.
10.

The court ORDERS that not later than ten (10) calendar days after

the Notice Date, the Claims Administrator shall cause the Summary Notice to
be published once in the national edition of The Wall Street Journal and once
over a national newswire service.
11.

The court ORDERS that not later than seven (7) business days

prior to the Final Approval Hearing, Lead Counsel shall serve on Defendants’
Counsel and file with the court proof, by affidavit or declaration, of such
mailing and publishing.
12.

Nominees who held, purchased or acquired Joy Global common

stock for the benefit of another Person during the Class Period shall be
requested to send the Notice and Proof of Claim and Release to such beneficial
owners of Joy Global common stock within fifteen (15) calendar days after
receipt thereof, or, send a list of the names and addresses of such beneficial
owners to the Claims Administrator within fifteen (15) calendar days of receipt
thereof, in which event the Claims Administrator shall promptly mail the Notice
and Proof of Claim and Release to such beneficial owners.
13.

The court FINDS that the form and content of the notice program

described herein and the methods set forth herein for notifying the Class of the
Settlement and its terms and conditions, the Fee and Expense Application, and
the Plan of Allocation: (a) meets the requirements of Federal Rule of Civil
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Procedure 23, the United States Constitution (including the Due Process
Clause), the Private Securities Litigation Reform Act of 1995, 15 U.S.C. §78u4(a)(7), 15 U.S.C. §77z-1(a)(7) (the “PSLRA”), and any other applicable law, and
is the best notice practicable under the circumstances; (b) constitutes notice
that is reasonably calculated, under the circumstances, to apprise the Class
Members of the pendency of the Litigation, the effect of the proposed
Settlement (including the releases contained therein), and of their right to
object to the proposed Settlement, exclude themselves from the Class, and/or
appear at the Final Approval Hearing; and (c) constitutes due, adequate, and
sufficient notice to all Persons entitled thereto. The date and time of the Final
Approval Hearing shall be included in the Notice and Summary Notice before
they are mailed and published, respectively. All fees, costs, and expenses
incurred in notifying Class Members shall be paid from the Settlement Fund
and in no event shall any of the Defendants or Related Parties bear any
responsibility for such fees, costs or expenses. All Members of the Class (except
Persons who request exclusion under paragraph nineteen of this Order below)
shall be bound by all determinations and judgments in the Litigation
concerning the settlement, including, but not limited to, the releases provided
for therein, whether favorable or unfavorable to the Class, regardless of
whether such Persons seek or obtain by any means, including, without
limitation, by submitting a Proof of Claim and Release or any similar
document, any distribution from the Settlement Fund or the Net Settlement
Fund.
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14.

Pending final determination by the court as to whether the

settlement agreement, is fair, reasonable and adequate and should be finally
approved and whether the Order and Final Judgment dismissing the action
with prejudice should be approved, neither Lead Plaintiffs nor any Class
Member, either directly, representatively or in any other capacity, shall assert,
commence, aid or prosecute against any of the Defendants or the Released
Persons any of the Released Claims in this Litigation, or in any other
proceeding, arbitration, or forum. This injunction is necessary to protect and
effectuate the settlement, this Order, and the Court’s flexibility and authority to
effectuate the settlement and to enter judgment when appropriate, and is
ordered in aid of the court’s jurisdiction and to protect its judgments.
15.

Class Members who wish to participate in the settlement shall

complete and submit the Proof of Claim and Release in accordance with the
instructions contained in that document. Unless the court orders otherwise, all
Proofs of Claim and Releases must be postmarked or submitted electronically
no later than 120 calendar days after the date of this order. Any Class Member
who fails to submit a Proof of Claim and Release within the time provided, or
whose Proof of Claim and Release is otherwise not approved, shall in all other
respects be bound by all of the terms of the settlement agreement, included the
terms of the Order and Final Judgment and the releases provided for therein,
and will be barred from bringing any action against the Released Persons
concerning the Released Claims. Notwithstanding the foregoing, Lead Counsel
shall have the discretion (but not the obligation) to accept late-submitted
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claims for process by the Claims Administrator so long as distribution of the
Net Settlement Fund is not materially delayed thereby. No person shall have
any claim against Lead Plaintiffs, Lead Counsel or Claims Administrator by
reason of the decision to exercise or not exercise such discretion.
16.

The Proof of Claim and Release submitted by each Class Member

must, unless otherwise ordered by the court: (i) be properly completed, signed
and submitted in a timely manner in accordance with the provisions of the
preceding paragraph; (ii) be accompanied by adequate supporting
documentation for the transactions reported therein, in the form of broker
confirmation slips, broker account statements, an authorized statement from
the broker containing the transactional information found in a broker
confirmation slip, or such other documentation deemed adequate by Lead
Counsel or the Claims Administrator; (iii) include in the Proof of Claim and
Release a certification of current authority to act on behalf of the Class Member
if the person executing the Proof of Claim and Release is acting in a
representative capacity; (iv) be complete and contain no material deletions or
modifications of any of the printed matter contained therein; and (v) be signed
under penalty of perjury.
17.

By submitting a Proof of Claim, a Class Member will be deemed to

have submitted to the jurisdiction of this court with respect to the Class
Member's claim, including, but not limited to, all releases provided for in the
Stipulation and in the Order and Final Judgment.

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18.

Any Member of the Class may enter an appearance in the

Litigation, at his, her, or its own expense, individually or through counsel of
their own choice. If they do not enter an appearance, they will be represented
by Lead Counsel.
19.

Any Person falling within the definition of the Class may, upon

request, be excluded or “opt out” from the Class. Any such Person must submit
to the Claims Administrator a request for exclusion (“Request for Exclusion”),
by First-Class Mail such that it is received no later than twenty-one (21)
calendar days before the Final Approval Hearing. A Request for Exclusion must
be signed and state: (a) the name, address, and telephone number of the
Person requesting exclusion; (b) the number of shares of Joy Global common
stock held, purchased, acquired or sold during the Class Period and the dates
held during the Class Period; and (c) that the Person wishes to be excluded
from the Class. All Persons who submit valid and timely Requests for
Exclusion in the manner set forth in this paragraph shall have no rights under
the Stipulation, shall not share in the distribution of the Net Settlement Fund,
and shall not be bound by the Stipulation or any final judgment.
20.

Lead Counsel shall provide to Defendants’ Counsel copies of all

Requests for Exclusion and a list of all Class Members who have requested
exclusion, and any written revocation of Requests for Exclusion, as
expeditiously as possible and in any event no later than seventeen (17)
calendar days prior to the Final Approval Hearing.

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21.

Any Member of the Class may appear and object if he, she, or it: (a)

has any reason why the proposed Settlement of the Litigation should not be
approved as fair, reasonable and adequate, or why a judgment should not be
entered thereon; (b) why the Plan of Allocation should not be approved; and/or
(c) why fees and expenses should not be awarded to Lead Counsel or Lead
Plaintiffs; provided, however, that no Class Member or any other Person shall
be heard or entitled to contest the approval of the terms and conditions of the
proposed settlement, or, if approved, the Order and Final Judgment to be
entered thereon approving the same, or the order approving the Plan of
Allocation, or any fees and expenses to be awarded to Lead Counsel or Lead
Plaintiffs, unless written objections and copies of any papers and briefs are
received by Robbins Geller Rudman & Dowd LLP, David A. Knotts, 655 West
Broadway, Suite 1900, San Diego, CA 92101; Arnold & Porter Kaye Scholer
LLP, Vincent A. Sama, 250 West 55th Street, New York, NY 10019; Foley &
Lardner LLP, Bryan B. House, 777 East Wisconsin Avenue, Milwaukee, WI
53202; and Wachtell, Lipton, Rosen & Katz, Peter C. Hein, 51 West 52nd
Street, New York, NY 10019, no later than twenty-one (21) calendar days before
the Final Approval Hearing and said objections, papers and briefs are filed with
the Clerk of the United States District Court for the Eastern District of
Wisconsin, Milwaukee Division, United States Federal Building and
Courthouse, 517 E. Wisconsin Ave., Milwaukee, WI 53202, no later than
twenty-one (21) calendar days before the Final Approval Hearing. Any such
objection must: (a) indicate the objector’s name, address, and telephone
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number; (b) specify the reason(s) for the objection; (c) identify the date(s),
price(s), and number(s) of shares of Joy Global common stock held, purchased,
acquired or sold during the Class Period by the objector; (d) provide documents
demonstrating such holding(s), purchase(s), acquisition(s) and/or sale(s); and
(e) be signed by the objector. Any Member of the Class who does not make his,
her, or its objection in the manner provided for herein shall be deemed to have
waived such objection and shall forever be foreclosed from making any
objection to the fairness, reasonableness, or adequacy of the proposed
Settlement as incorporated in the Stipulation, to the Plan of Allocation, and to
the award of fees and expenses to Lead Counsel or Lead Plaintiffs, unless
otherwise ordered by the Court. Attendance at the Final Approval Hearing is
not necessary. However, Persons wishing to be heard orally in opposition to
the approval of the Settlement, the Plan of Allocation, and/or the application
for an award of fees and expenses are required to indicate in their written
objection their intention to appear at the hearing. Class Members do not need
to appear at the Final Approval Hearing or take any other action to indicate
their approval of the Settlement.
22.

All funds held by the Escrow Agent shall be deemed and

considered to be in custodia legis of the court, and shall remain subject to the
jurisdiction of the Court, until such time as such funds shall be distributed
pursuant to the Stipulation and/or further order(s) of the court.
23.

All papers in support of the settlement, Plan of Allocation, and any

application by Lead Counsel for attorneys’ fees and expenses and payment of
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time and expenses to Lead Plaintiffs shall be filed and served no later than
thirty-five (35) calendar days prior to the Final Approval Hearing and any reply
papers shall be filed and served no later than seven (7) calendar days prior to
the Final Approval Hearing.
24.

The Released Persons shall have no responsibility for the Plan of

Allocation or any application for attorneys’ fees and expenses submitted by
Lead Counsel or Lead Plaintiffs, and such matters will be considered separately
from the fairness, reasonableness, and adequacy of the settlement.
25. At or after the Final Approval Hearing, the court shall determine
whether the Plan of Allocation proposed by Lead Counsel, and any application
for attorneys’ fees and expenses, should be approved.
26.

All reasonable expenses incurred in identifying and notifying Class

Members as well as administering the Settlement Fund shall be paid as set
forth in the Stipulation. In the event the court does not approve the Settlement,
or it otherwise fails to become effective, neither Lead Plaintiffs nor any of their
counsel shall have any obligation to repay any amounts actually and properly
incurred or disbursed pursuant to ¶2.8 of the settlement agreement.
27.

Neither the Stipulation, nor any of its terms or provisions, nor any

of the negotiations, discussions, proceedings connected with it, nor any act
performed or document executed pursuant to or in furtherance of the
Stipulation or the Settlement may be construed as an admission, concession,
or presumption by or against any of the Defendants or any other Released
Persons of the truth of any of the allegations in the Litigation, or of any liability,
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fault, or wrongdoing of any kind; or as a waiver by any of the Parties of any
arguments, defenses, or claims he, she, or it may have in the event the
Stipulation is terminated; or offered or received in evidence, or otherwise used
by any person in the Litigation, or in any other action or proceeding, whether
civil, criminal, or administrative, in any court, administrative agency, or other
tribunal, except in connection with any proceeding to enforce the terms of the
Stipulation. The Released Persons, Lead Plaintiffs, Class Members, and each of
their counsel may file the Stipulation and/or the Order and Final Judgment in
any action that may be 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 other theory of claim
preclusion or issue preclusion or similar defense or counterclaim.
28.

The court ORDERS that all proceedings in the Litigation are

STAYED until further order of this court, except as may be necessary to
implement the Settlement or comply with the terms of the Stipulation. Pending
final determination of whether the Settlement should be approved, neither Lead
Plaintiffs nor any Class Member, either directly, representatively, or in any
other capacity shall commence or prosecute against any of the Released
Persons any action or proceeding in any court or tribunal asserting any of the
Released Claims.
29.

The court reserves the right to alter the time or the date of the

Final Approval Hearing without further notice to the Members of the Class,
provided that the time or the date of the Final Approval Hearing shall not be set
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at a time or date earlier than the time and date set forth in ¶1 above, and
retains jurisdiction to consider all further applications arising out of or
connected with the proposed Settlement. The court may approve the
settlement, with such modifications as may be agreed to by the Settling Parties,
if appropriate, without further notice to the Class.
30.

If the settlement fails to become effective as defined in the

Stipulation or is terminated, then, in any such event, the Stipulation, including
any amendment(s) thereof, except as expressly provided in the Stipulation, and
this Order 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 actions or proceedings by any person or entity against the Settling
Parties, and they shall be deemed to have reverted to their respective litigation
positions in the Litigation as of March 14, 2018.
Dated in Milwaukee, Wisconsin this 14th day of September, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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