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Arkansas Teacher Retirement System v. Ferland

United States District Court, W.D. North Carolina, Charlotte Division

August 30, 2019

ARKANSAS TEACHER RETIREMENT SYSTEM, ERIC OLLILA, Plaintiffs,
v.
E. JAMES FERLAND, BABCOCK & WILCOX ENTERPRISES, INC., JENNY L. APKER, Defendants.

          AMENDED ORDER

          MAX O. COGBURN JR UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Plaintiff's Motion for Preliminary Approval of Class Action Settlement (#75).

         WHEREAS, a consolidated securities class action is pending in this Court captioned Ollila v. Babcock & Wilcox Enterprises, Inc. et al., No. 3:17-cv-109 (the “Action”);

         WHEREAS, on June 21, 2019, Lead Plaintiff Arkansas Teacher Retirement System (“Lead Plaintiff”) and Babcock & Wilcox Enterprises, Inc. (“B&W”), E. James Ferland, and Jenny L. Apker (collectively, the “Defendants”) (all together, the “Parties”), by and through their respective counsel, entered into a Stipulation and Agreement of Settlement (“Stipulation”);

         WHEREAS, the Stipulation is subject to review under Rule 23 of the Federal Rules of Civil Procedure and, together with the exhibits thereto, sets forth the terms and conditions for the proposed Settlement of the claims alleged in the Action; and

         WHEREAS, the Court is familiar with and has reviewed the record in the Action and has reviewed the Stipulation, together with the exhibits attached and incorporated by reference, and found good cause for entering the following Order.

         IT IS HEREBY ORDERED that:

         1. The Court, for purposes of this order (the “Preliminary Approval Order”), adopts all defined terms as set forth in the Stipulation.

         2. All proceedings in the Action, other than such proceedings as may be necessary to carry out the terms and conditions of the Settlement, are hereby stayed and suspended until further order of this Court. Pending final determination of whether the Settlement should be approved, Lead Plaintiff and all members of the Settlement Class are barred and enjoined from commencing, prosecuting, continuing, or asserting any action with regards to any Released Plaintiff's Claims against the Defendant Releasees as defined in the Stipulation.

         3. The Court preliminarily certifies, solely for purposes of effectuating the Settlement, pursuant to Rule 23, a class consisting of all persons and entities who purchased B&W publicly-traded common stock on the New York Stock Exchange (“NYSE”), on other U.S. exchanges or in a U.S. transaction, or who purchased B&W stock on the NYSE on a “when issued” basis during the period from June 17, 2015 through August 9, 2017, inclusive (the “Settlement Class”). Excluded from the Settlement Class are: (i) Defendants; (ii) members of the Immediate Family of any Defendant who is an individual; (iii) any person who was an officer or director of B&W during the Class Period; (iv) any firm, trust, corporation, or other entity in which any Defendant has or had a controlling interest; (v) B&W's employee retirement and benefit plan(s) and their participants or beneficiaries, to the extent they made purchases through such plan(s); and (vi) the legal representatives, affiliates, heirs, successors-in-interest, or assigns of any such excluded person. Also excluded from the Settlement Class are those persons who timely and validly request exclusion from the Settlement Class pursuant to the Notice of (I) Pendency of Class Action and Proposed Settlement; (II) Motion for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses; and (III) Settlement Fairness Hearing (the “Notice”).

         4. Pursuant to Rule 23 and for purposes of settlement only, the Court preliminarily certifies Lead Plaintiff Arkansas Teacher Retirement System as Class Representative for the Settlement Class and appoints Kaplan Fox & Kilsheimer LLP as Class Counsel for the Settlement Class (“Class Counsel”). Class Counsel is authorized to act on behalf of the Settlement Class with respect to all acts required by, or which may be undertaken pursuant to, the Stipulation or such other acts that are reasonably necessary to consummate the proposed Settlement set forth in the Stipulation.

         5. With respect to the Settlement Class, the Court preliminarily finds, solely for purposes of effectuating the Settlement, that the prerequisites for a class action under Rules 23(a) and (b)(3) have been satisfied. The members of the Settlement Class are so numerous that joinder of all Settlement Class Members in the class action is impracticable and there are questions of law and fact common to the Settlement Class which predominate over any individual questions. The claims of Lead Plaintiff are typical of the claims of the Settlement Class and Lead Plaintiff and its counsel have fairly and adequately represented and protected the interests of all of the Settlement Class Members. A class action is also superior to other available methods for the fair and efficient adjudication of the controversy, considering: (a) the interests of the members of the Settlement Class in individually controlling the prosecution of the separate actions; (b) the extent and nature of any litigation concerning the controversy already commenced by members of the Settlement Class; (c) the desirability or undesirability of continuing the litigation of these claims in this particular forum; and (d) the difficulties likely to be encountered in the management of a class action.

         6. The Court preliminarily approves: (i) the Settlement of the Action as set forth in the Stipulation, having found that the Parties have shown the Court that it will likely be able to approve the proposed Settlement under Federal Rule of Civil Procedure 23(e)(2), and (ii) the proposed Plan of Allocation described in the Notice, subject to the right of any Settlement Class Member to challenge the fairness, reasonableness, and adequacy of the Settlement, the Stipulation or the proposed Plan of Allocation, and to show cause, if any exists, why a final judgment dismissing the Action based on the Stipulation should not be ordered herein after due and adequate notice to the Settlement Class has been given in conformity with this Order.

         7. Class Counsel is hereby authorized to retain JND Legal Administration LLC as the Claims Administrator in connection with the Settlement to supervise and administer the notice and claims procedures as well as the processing of claims as more fully set forth below:

i No later than twenty (20) calendar days after entry of this Preliminary Approval Order, the Claims Administrator shall cause a copy of the Notice and Proof of Claim and Release form (“Claim Form”), substantially in the forms attached hereto as Exhibits A(1) and A(2), respectively, to be mailed by first class mail, postage prepaid, to all members of the Settlement Class who may be identified through reasonable effort, including through the cooperation of B&W and/or ...

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