Final Approval Order Re NEC Settlement
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Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 1 of 58 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 OAKLAND DIVISION 11 IN RE: LITHIUM ION BATTERIES Case No. 13-md-02420-YGR ANTITRUST LITIGATION 12 MDL No. 2420 13 This Document Relates To: [PROPOSED] ORDER GRANTING FINAL 14 APPROVAL OF CLASS ACTION ALL DIRECT PURCHASER ACTIONS SETTLEMENT WITH DEFENDANT NEC 15 CORPORATION 16 Date: August 29, 2017 Time: 2:00 p.m. 17 Judge: Hon. Yvonne Gonzalez Rogers Location: Courtroom 1, 4th Floor 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH DEFENDANT NEC CORPORATION—Case No. 13-md-02420-YGR Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 2 of 58 1 On July 24, 2017, Direct Purchaser Plaintiffs (“Plaintiffs”) filed a Memorandum in Support 2 of Final Approval of Class Action Settlements, including with Defendant NEC Corporation 3 (“NEC”). The Court, having reviewed the motion, the settlement agreement, the pleadings and 4 other papers on file in this action, and the statements of counsel and the parties, hereby finds that 5 the motion should be GRANTED. 6 NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 7 1. The Court has jurisdiction over the subject matter of this litigation, and the Actions 8 within this litigation and over the parties to the settlement agreement, attached hereto as Exhibit 1, 9 including all members of the settlement class and the Defendants. 10 2. For purposes of this Order, except as otherwise set forth herein, the Court adopts 11 and incorporates the definitions contained in the settlement agreement, to the extent not 12 contradictory or mutually exclusive. 13 3. The Court finds that Saveri & Saveri, Inc., Pearson, Simon & Warshaw, LLP, and 14 Berman Tabacco, previously appointed as Class Counsel pursuant to Rule 23(g) of the Federal Rules 15 of Civil Procedure, has and will fairly and competently represent the interests of the settlement class. 16 4. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court certifies the 17 following settlement class only with respect to NEC: 18 All persons and entities that purchased a Lithium Ion Battery or Lithium Ion Battery Product from any Defendant, or any division, subsidiary or affiliate thereof, or any 19 co-conspirator in the United States during the Class Period, from January 1, 2000 20 through May 31, 2011. Excluded from the Class are Defendants, their parent companies, subsidiaries and affiliates, any Co-Conspirators, federal governmental 21 entities and instrumentalities of the federal government, states and their subdivisions, agencies and instrumentalities, and any judge or jurors assigned to this 22 case. 23 5. The Court further finds that the prerequisites to certifying a settlement class under 24 Rule 23 are satisfied for settlement purposes in that: (a) there are thousands of geographically 25 dispersed settlement class members, making joinder of all members impracticable; (b) there are 26 questions of law and fact common to the settlement class which predominate over individual 27 issues; (c) the claims or defenses of the settlement class plaintiffs are typical of the claims or 28 defenses of the settlement class; (d) the plaintiffs will fairly and adequately protect the interests of 1 [PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH DEFENDANT NEC CORPORATION—Case No. 13-md-02420-YGR Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 3 of 58 1 the settlement class, and have retained counsel experienced in antitrust class action litigation who 2 have, and will continue to, adequately represent the settlement class; and (e) a settlement class 3 resolution is superior to individual settlements. 4 6. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, after a hearing, the 5 Court hereby finally approves and confirms the settlement set forth in the settlement agreement and 6 finds that said settlement is, in all respects, fair, reasonable and adequate to the settlement class. 7 7. This Court hereby dismisses on the merits and with prejudice the Action in favor of 8 Defendant NEC, with each party to bear their own costs and attorneys’ fees, except as provided in 9 the settlement agreement. 10 8. The NEC Releasees are hereby and forever released from all Released Claims as 11 defined in the settlement agreement. 12 9. The notice given to the settlement class, including individual notice to all members 13 of the settlement class who could be identified through reasonable efforts, was the best notice 14 practicable under the circumstances. Said notice provided due and adequate notice of those 15 proceedings and of the matters set forth therein, including the proposed settlement set forth in the 16 settlement agreement, to all persons entitled to such notice, and said notice fully satisfied the 17 requirements of Rule 23, Subdivisions (c)(2) and (e)(1) of the Federal Rules of Civil Procedure 18 and the requirements of due process. 19 10. Those persons/entities identified in the list attached hereto as Exhibit 2 are validly 20 excluded from the settlement class. Such persons/entities are not entitled to any recovery of the 21 settlement proceeds obtained in connection with the settlement. 22 11. Any member of the settlement class who failed to timely and validly request to be 23 excluded from the settlement class shall be subject to and bound by the provisions of the 24 settlement agreement, the Released Claims contained therein, and this Judgment with respect to all 25 Released Claims, regardless of whether such members of the settlement class seek or obtain any 26 distribution from the Gross Settlement Fund or the Net Settlement Fund. 27 12. The plan of allocation set forth in the class notice is, in all respects, fair, adequate, 28 and reasonable. Accordingly, the Court hereby grants final approval of the plan of allocation. 2 [PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH DEFENDANT NEC CORPORATION—Case No. 13-md-02420-YGR Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 4 of 58 1 13. Without affecting the finality of the Judgment in any way, this Court hereby retains 2 continuing jurisdiction over: (a) implementation of the settlement agreement and any distribution 3 to settlement class members pursuant to further orders of this Court; (b) disposition of the Gross 4 Settlement Fund; (c) hearing and determining applications by plaintiffs for attorneys’ fees, costs, 5 expenses, and interest; (d) the Actions until the Final Judgment has become effective and each and 6 every act agreed to be performed by the parties all have been performed pursuant to the settlement 7 agreement; (e) hearing and ruling on any matters relating to the plan of allocation of settlement 8 proceeds; and (f) the parties to the settlement agreement for the purpose of enforcing and 9 administering the settlement agreement and the mutual releases contemplated by, or executed in 10 connection with the settlement agreement. 11 14. In the event that the settlement does not become effective in accordance with the 12 terms of the settlement agreement, then the Judgment shall be rendered null and void and shall be 13 vacated, and in such event, all orders entered and releases delivered in connection herewith shall 14 be null and void and the parties shall be returned to their respective positions ex ante. 15 15. The Court finds, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, that 16 Judgment should be entered and further finds that there is no just reason for delay in the entry of 17 Judgment as to the parties to the settlement agreement. Accordingly, the Clerk is hereby directed to 18 enter Judgment forthwith for Defendant NEC. 19 IT IS SO ORDERED. 20 21 Dated: _____________________September 5, 2017 ________________________________ Hon. Yvonne Gonzalez Rogers 22 United States District Judge 23 24 25 26 27 28 3 [PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT WITH DEFENDANT NEC CORPORATION—Case No. 13-md-02420-YGR Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 5 of 58 EXHIBIT 1 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 6 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 7 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 8 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 9 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 10 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 11 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 12 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 13 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 14 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 15 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 16 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 17 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 18 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 19 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 20 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 21 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 22 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 23 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 24 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 25 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 26 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 27 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 28 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 29 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 30 of 58 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 31 of 58 EXHIBIT 2 Case 4:13-md-02420-YGR Document 1942 Filed 09/05/17 Page 32 of 58 In re: Lithium Ion Batteries Antitrust Litigation Report on Exclusions Received - NEC Monday August 28, 2017 No.