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In re Lithium ion Batteries Antitrust Litigation

United States District Court, N.D. California, Oakland Division

April 25, 2017

IN RE LITHIUM ION BATTERIES ANTITRUST LITIGATION This Document Relates To ALL DIRECT PURCHASER ACTIONS No. 13-md-02420-YGR

          [PROPOSED] ORDER GRANTING SETTLEMENT CLASS CERTIFICATION AND PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT WITH DEFENDANT NEC CORPORATION

          Hon. Yvonne Gonzalez Rogers Judge

         On March 17, 2017, Direct Purchaser Plaintiffs (“Plaintiffs”) filed a Motion for Certification of Settlement Classes and Preliminary Approval of Class Action Settlements, including with Defendant NEC Corporation (“NEC”). The Court, having reviewed the motion, the settlement agreement, the pleadings and other papers on file in this action, and the statements of counsel and the parties, hereby finds that the motion should be GRANTED.

         NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

         1. For purposes of this Order, except as otherwise set forth herein, the Court adopts and incorporates the definitions contained in the settlement agreement, to the extent not contradictory or mutually exclusive.

         2. The Court hereby preliminarily approves the settlement agreement, which is attached hereto as Exhibit A.

         3. The Court finds that the settlement falls within the range of possible approval and that there is a sufficient basis for notifying the settlement class and for setting a Fairness Hearing.

         4. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court certifies the following settlement class for purposes of this Motion only with respect to NEC:

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 co-conspirator in the United States during the Class Period, from January 1, 2000 through May 31, 2011. Excluded from the Class are Defendants, their parent companies, subsidiaries and affiliates, any Co-Conspirators, federal governmental entities and instrumentalities of the federal government, states and their subdivisions, agencies and instrumentalities, and any judge or jurors assigned to this case.

         5. The Court further finds that the prerequisites to certifying a settlement class under Rule 23 are satisfied for settlement purposes in that: (a) there are thousands of geographically dispersed settlement class members, making joinder of all members impracticable; (b) there are questions of law and fact common to the settlement class which predominate over individual issues; (c) the claims or defenses of the settlement class plaintiffs are typical of the claims or defenses of the settlement class; (d) the plaintiffs will fairly and adequately protect the interests of the settlement class, and have retained counsel experienced in antitrust class action litigation who have, and will continue to, adequately represent the settlement class; and (e) a settlement class resolution is superior to individual settlements.

         6. The Court hereby appoints the Plaintiffs named in the Direct Purchaser Plaintiffs' Second Consolidated Amended Complaint, ECF No. 415 (Apr. 8, 2014) (“SCAC”), as Class Representatives of the settlement class.

         7. The Court appoints the law firms of Saveri & Saveri, Inc.; Pearson, Simon & Warshaw, LLP; and Berman DeValerio to serve as Class Counsel for the settlement class.

         8. The Court approves the form of the Long-Form Notice attached hereto as Exhibit B (“Long-Form Notice”). The Court also approves the form of the Short-Form Notice attached hereto as Exhibit C (“Short-Form Notice”). The Court finds that taken together, mailing of the Long-Form Notice (via U.S. Mail or electronic mail), publication of the Short-Form Notice, and internet posting of the Long-Form Notice are: (i) the best notice practicable; (ii) reasonably calculated to, under the circumstances, apprise the settlement class members of the proposed settlement and of their right to object or to exclude themselves as provided in the settlement agreement; (iii) reasonable and constitute due, adequate, and sufficient notice to all persons entitled to receive notice; and (iv) meet all applicable requirements of due process and any other applicable requirements under federal law.

         9. Plaintiffs' claims administrator shall provide notice of the class settlement. The claims administrator shall provide direct notice of the settlement to all members of the settlement class, previously identified by the claims administrator in connection with the Sony settlement, on or before May 10, 2017 by sending the Long-Form Notice to class members via first class U.S. mail (postage prepaid) or by electronic mail. The claims administrator shall publish the Short-Form Notice in the national edition of the Wall Street Journal on or before May 15, 2017. The claims administrator shall also cause a copy of the class notices and settlement agreement to be posted on the internet website www.batteriesdirectpurchaserantitrustsettlement.com on or before May 10, 2017.

         10. Each settlement class member shall have the right to be excluded from the settlement class by mailing a request for exclusion to the claims administrator no later than June 26, 2017. Requests for exclusion must be in writing and set forth the name and address of the person or entity who wishes to be excluded, as well as all trade names or business names and addresses used by such person or entity, and must be signed by the class member seeking exclusion. No later than July 10, 2017, Class Counsel shall file with the Court a list of all persons or entities who have timely requested exclusion from the settlement class as provided in the settlement agreement.

         11. Any settlement class member who does not properly and timely request exclusion from the settlement class as provided above shall, upon final approval of the settlement, be bound by the terms and provisions of the settlement so approved, including but not limited to the releases, waivers, and covenants described in the agreement, whether or not such person or entity objected to the settlement agreement and whether or not such person or entity makes a claim upon the settlement funds.

         12. Each settlement class member who has not timely excluded itself from the settlement shall have the right to object to (1) the settlement, and/or (2) the plan of allocation by filing written objections with the Court no later than June 26, 2017. Failure to timely file written objections will preclude a class member from objecting to any or all of the settlement.

         13. Each settlement class member as provided above shall have the right to appear at the Fairness Hearing by filing a Notice of Intention to Appear no later than June 26, 2017.

         14. The Court will conduct a Fairness Hearing on August 29, 2017 at 2:00 p.m. The Fairness Hearing will be conducted to determine the following:

a. Whether the proposed settlement is fair, reasonable, and adequate and should be granted final approval;
b. Whether final judgment should be entered dismissing with prejudice the claims of the settlement class against NEC;
c. Approval of the plan of allocation; and
d. Such other matters as the Court may deem appropriate.

         15. Each member of the settlement class shall retain all rights and causes of action with respect to claims against the remaining defendants other than NEC regardless of whether such member of the settlement class decides to remain in the settlement class or to exclude itself from the settlement class.

         16. All briefs, memoranda and papers in support of final approval of the settlement shall be filed no later than July 24, 2017.

         17. Class Counsel and their designees are authorized to expend funds from the escrow accounts to pay taxes, tax expenses, notice, and administration costs as set forth in the settlement agreement.

         18. All further direct purchaser class proceedings as to NEC are hereby stayed except for any actions required to effectuate the settlement.

         19. The Court retains exclusive jurisdiction over this action to consider all further matters arising out of or connected with the settlement.

         IT IS SO ORDERED.

         EXHIBIT A

         SETTLEMENT AGREEMENT

         This Settlement Agreement ("Agreement") is made and entered into this 4th day of April, 2016 by and between NEC Corporation ("NEC"), and the direct-purchaser plaintiff class representatives ("Plaintiffs"), both individually and on behalf of the direct purchaser class in the above-captioned class actions ("the Class") as more particularly defined in Paragraph 1 below.

         WHEREAS, Plaintiffs are prosecuting the above In Re Lithium Ion Batteries Antitrust Litigation, Case No. 13-MD-2420-YGR (N.D. Cal.) (the "Action") on their own behalf and on behalf of the Class against, among others, NEC;

         WHEREAS, Plaintiffs allege that NEC participated in an unlawful conspiracy to raise, fix, maintain, or stabilize the price of Lithium Ion Battery Cells at artificially high levels in violation of Section 1 of the Sherman Act;

         WHEREAS, NEC denies Plaintiffs' allegationsand has asserted defenses to Plaintiffs' claims;

         WHEREAS, Plaintiffs have conducted an investigation into the facts and the law regarding the Action and have concluded that resolving claims against NEC according to the terms set forth below is in the best interest of Plaintiffs and the Class;

         WHEREAS, NEC, despite its belief that it is not liable for the claims asserted and has good defenses thereto, has nevertheless agreed to enter into this Agreement to avoid further expense, inconvenience, and the distraction of burdensome and protracted litigation, and to obtain the releases, orders, and judgment contemplated by this Agreement, and to put to rest with finality all claims that have been or could have been asserted against NEC, based on the allegations of the Action, as more particularly set out below;

         NOW, THEREFORE, in consideration of the covenants, agreements, and releases set forth herein and for other good and valuable consideration, it is agreed by and among the undersigned that the Action be settled, compromised, and dismissed on the merits with prejudice as to Releasees, as defined below, and except as hereinafter provided, without costs as to Plaintiffs, the Class, or NEC, subject to the approval of the Court, on the following terms and conditions:

         A. Definitions

         1. For purposes of this Agreement, "the Class" and "Class Period" are defined in Direct Purchaser Plaintiffs' Second Consolidated Amended Complaint (Apr. 8, 2014) (ECF No. 415) (the "Complaint"). The parties to this Agreement hereby stipulate for purposes of this settlement only that the requirements of Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure are satisfied, 2. For purposes of this Agreement, "Lithium Ion Battery" ("Li-Ion Batteries"), "Lithium Ion Battery Cell(s)" ("Li-Ion Cells"), "Lithium Ion Battery Packs" ("Li-Ion Packs"), and "Lithium Ion Battery Products" ("Li-Ion Products") shall have the meanings as defined or otherwise referenced in the Complaint.

         3. "Releasees" shall refer to NEC and to all of its respective past and present, direct and indirect, parents, subsidiaries, and affiliates; the predecessors, successors and assigns of any of the above (excluding therefrom defendant NEC TOKTN Corporation); and each and all of the present and former principals, partners, officers, directors, supervisors, employees, agents, representatives, insurers, attorneys, heirs, executors, administrators, and assigns of each of the foregoing. "Releasees" does not include any defendant in the Action other than NEC.

         4. "Class Member" means each member of the Class who has not timely elected to be excluded from the Class.

         5. "Releasors" shall refer to the direct-purchaser plaintiff Class representatives and the direct-purchaser plaintiff Class Members, and to their past and present officers, directors, employees, agents, stockholders, attorneys, servants, representatives, parents, subsidiaries, affiliates, partners, insurers and all other persons, partnerships or corporations with whom any of the former have been, or are now, affiliated, and the predecessors, successors, heirs, executives, administrators and assigns of any of the foregoing.

         6. "The Settlement Fund" shall be $1, 000, 000 U.S. dollars specified in Paragraph 16 plus accrued interest on said deposits set forth in Paragraph 17. In addition, Releasees shall deposit an additional $100, 000 for notice and additional expenses as outlined below for a total of $1, 100, 000.

         7. "Interim Co-Lead Counsel" shall refer to the law firms of:

SAVERI & SAVERI, INC. R, Alexander Saveri 706 Sansome Street San Francisco, CA 94111 Telephone: (415)217-6810 Facsimile: (415)217-6813 rick@saveri.com
PEARSON, SIMON & WARSHAW, LLP Bruce L. Simon 44 Montgomery Street, Suite 2450 San Francisco, CA 94104 Telephone: (415)433-9000 Facsimile: (415)433-9008 bsimon@pswlaw.com
BERMAN DEVALERIO Joseph J, Tabacco, Jr. One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415)433-3200 Facsimile: (415)433-6382 jtabacco@bermandevalerio.com

         B. Approval of this Agreement and Dismissal of Claims Against NEC.

         8. Plaintiffs and NEC shall use their best efforts to effectuate this Agreement, including cooperating in seeking the Court's approval for the establishment of procedures (including the giving of class notice under Federal Rules of Civil Procedure 23(c) and (e)) to secure the prompt, complete, and final dismissal with prejudice of the Action as to NEC only.

         9. At a time mutually agreed upon by the parties, Plaintiffs shall submit to the Court a motion for authorization to disseminate notice of the settlement and final judgment contemplated by this Agreement to all Class members identified by NEC (the "Motion"). If notice to the Class is given jointly with any other settling defendant, for purposes of Paragraph 19 below, the costs of notice and claims administration shall be prorated with any other such defendant based on their respective settlement amounts. The Motion shall include (i) a proposed form of, method for, and date of dissemination of notice; and (ii) a proposed form of order and final judgment. The text of the foregoing items (i) and (ii) shall be agreed upon by Plaintiffs and NEC before submission of the Motion, with the understanding that, among other things, individual notice of the settlement shall be mailed by regular mail or email, with appropriate notice by publication (in the event required by the Court), with all expenses paid from the Settlement Fund subject to Paragraph 19(a). NEC will supply to Interim Co-Lead Counsel the names and addresses of putative Class members to the extent reasonably available in NEC's records, NEC, however, shall not be required to bear any undue burden or expense in providing such list. The Motion shall recite and ask the Court to find that the mailing of the notice of settlement to all members of the Class who can be identified upon reasonable effort constitutes valid, due and sufficient notice to the Class, constitutes the best notice practicable under the circumstances, and complies fully with the requirements of Federal Rule of Civil Procedure 23.

         10. Plaintiffs shall seek, and NEC will not object unreasonably to the entry of, an order and final judgment, the text of which Plaintiffs and NEC shall agree upon. The terms of that order and final judgment will include, at a minimum, the substance of the following provisions:

(a) certifying the Class described in Paragraph 1, pursuant to Rule 23 of the Federal Rules of Civil Procedure, solely for purposes of this settlement as a settlement class;
(b) as to the Action, approving finally this settlement and its terms as being a fair, reasonable and adequate settlement as to the Class Members within the meaning of Rule 23 of the Federal Rules of Civil Procedure and directing its consummation according to its terms;
(c) as to NEC, directing that the Action be dismissed with prejudice and, except as provided for in this Agreement, without costs;
(d) reserving exclusive jurisdiction over the settlement and this Agreement, including the administration and consummation of this settlement, to the United States District Court for the Northern District of California; and
(e) determining under Federal Rule of Civil Procedure 54(b) that there is no just reason for delay and directing that the judgment of dismissal as to NEC shall be final.

         11. This Agreement shall become final when (i) the Court has entered a final order certifying the Class described in Paragraph 1 and approving this Agreement under Federal Rule of Civil Procedure 23(e) and a final judgment dismissing the Action with prejudice as to NEC against all Class Members and without costs other than those provided for in this Agreement, and (ii) the time for appeal or to seek permission to appeal from the Court's approval of this Agreement and entry of a final judgment as to NEC described in (i) hereof has expired or, if appealed, approval of this Agreement and the final judgment as to NEC have been affirmed in their entirety by the Court of last resort to which such appeal has been taken and such affirmance has become no longer subject to further appeal or review. It is agreed that the provisions of Rule 60 of the Federal Rules of Civil Procedure shall not be taken into account in determining the above-stated times. On the date that Plaintiffs and NEC have executed this Agreement, Plaintiffs and NEC shall be bound by its terms and this Agreement shall not be rescinded except in accordance with Paragraphs 17(h), 19(a), 28, or 29 of this Agreement.

         12. Neither this Agreement (whether or not it should become final) nor the final judgment, nor any and all negotiations, documents and discussions associated with them, shall be deemed or construed to be an admission by NEC or evidence of any violation of any statute or law or of any liability or wrongdoing whatsoever by NEC, or of the truth of any of the claims or allegations contained in any complaint or any other pleading filed in the Action, and evidence thereof shall not be discoverable or used directly or indirectly, in any way, whether in the Action or in any other action or proceeding. Neither this Agreement, nor any of its terms and provisions, nor any of the negotiations or proceedings connected with it, nor any other action taken to carry out this Agreement by any of the settling parties shall be referred to, offered as evidence or received in evidence in any pending or future civil, criminal, or administrative action or proceedings, except in a proceeding to enforce this Agreement, or to defend against the assertion of Released Claims, or as otherwise required by law. C. Release, Discharge, and Covenant Not to Sue.

         13. In addition to the effect of any final judgment entered in accordance with this Agreement, upon this Agreement becoming final as set out in Paragraph 11 of this Agreement, and in consideration of payment of the Settlement Amount, as specified in Paragraph 16 of this Agreement, into the Settlement Fund, and for other valuable consideration, the Releasees shall be completely released, acquitted, and forever discharged from any and all claims, demands, actions, suits, causes of action, whether class, individual, or otherwise in nature (whether or not any Class Member has objected to the settlement or makes a claim upon or participates in the Settlement Fund, whether directly, representatively, derivatively or in any other capacity) that Releasors, or each of them, ever had, now has, or hereafter can, shall, or may have on account of, or in any way arising out of, any and all known and unknown, foreseen and unforeseen, suspected or unsuspected, actual or contingent, liquidated or unliquidated, claims, causes of action, injuries, damages, and the consequences thereof in any way arising out of or relating in any way to any act or omission of the Releasees (or any of them) that is alleged in the Complaint up to the date of the execution of this Agreement or that could have been alleged in the Complaint or in any other class action complaint filed in the Action (the "Released Claims"). The Released Claims does not include claims for product defect or personal injury or breach of contract arising in the ordinary course of business or indirect purchaser claims for Li-Ion Cells, Li-Ion Batteries or Li-Ion Products that were not purchased directly from Defendants or their subsidiaries, affiliates, or alleged co-conspirators. Releasors shall not, after the date of this Agreement, sue or otherwise seek to establish liability against any Releasee based, in whole or in part, upon any of the Released Claims or conduct at issue in the Released Claims. For purposes of clarity, the Released Claims include any claims under foreign antitrust or competition laws or state antitrust or competition laws (including indirect purchaser claims) that relate to or arise out of the subject of the Plaintiffs' Complaint, but do not include any foreign antitrust or competition law claims or any state law indirect purchaser claims that relate to or arise out of the sale of Li-Ion Cells Li-Ion Batteries or Li-Ion Products that: (a) were not purchased from a Defendant or alleged co-conspirator in the Action; or (b) were not sold in the United States.

         14. In addition to the provisions of Paragraph 13 of this Agreement, Releasors hereby expressly waive and release, upon this Agreement becoming final, any and all provisions, rights, and benefits conferred by § 1542 of the California Civil Code, which states:

CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR;

         or by any law of any state or territory of the United States, or principle of common law, which is similar, comparable, or equivalent to § 1542 of the California Civil Code. Each Releasor may hereafter discover facts other than or different from those which he, she, or it knows or believes to be true with respect to the Released Claims which are the subject matter of the provisions of Paragraph 13 of this Agreement, but each Releasor hereby expressly waives and fully, finally, and forever settles and releases, upon this Agreement becoming final, any known or unknown, suspected or unsuspected, contingent or non-contingent claim with respect to the subject matter of the provisions of Paragraph 13 of this Agreement, whether or not concealed or hidden, without regard to the subsequent discovery or existence of such different or additional facts.

         15. The release, discharge, and covenant not to sue set forth in Paragraph 13 of this Agreement does not include claims by any of the Class Members other than the Released Claims and does not preclude Class Members from pursuing claims based on indirect sales or foreign sales of Li-Ion Cells, Li-Ion Batteries or Li-Ion Products so long as such claims are not based on the same purchases included as part of the Released Claims defined in Paragraph 13. The Releasors hereby covenant and agree that they shall not, hereafter, sue or otherwise seek to establish liability against any of the Releasees based, in whole or in part, upon any of the Released Claims.

         D. Settlement Amount.

         16. Subject to the provisions hereof, and in full, complete and final settlement of the Action as provided herein, defendant NEC shall pay the Settlement Amount of $1, 000, 000 (the "Settlement Amount") plus up to $100, 000 for the cost of notice as provided below in Paragraph 19. The Settlement Amount plus the $100, 000 for the cost of notice shall be paid into an escrow account in United States Dollars to be administered in accordance with the provisions of Paragraph 17 of this Agreement (the "Escrow Account") within thirty (30) days after execution of this Agreement.

         17. Escrow Account.

         (a) The Escrow Account will be established at Citibank N.A.- Citi Private Bank, San Francisco, California, with such Bank serving as escrow agent ("Escrow Agent") subject to escrow instructions mutually acceptable to Interim Co-Lead Counsel and NEC, such escrow to be administered under the Court's continuing supervision and control.

         (b) The Escrow Agent shall cause the funds deposited in the Escrow Account to be invested in short-term instruments backed by the full faith and credit of the United States Government or fully insured in writing by the United States Government, or money market funds rated Aaa and AAA, respectively by Moody's Investor Services and Standard and Poor's, invested substantially in such instruments, and shall reinvest any income from these instruments and the proceeds of these instruments as they mature in similar instruments at their then current market rates.

         (c) All funds held in the Escrow Account 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 this Agreement and/or further order(s) of the Court.

         (d) Plaintiffs and NEC agree to treat the Settlement Fund as being at all times a qualified settlement fund within the meaning of Treas. Reg. §1.468B-1. In addition, the Escrow Agent shall timely make such elections as necessary or advisable to carry out the provisions of this Paragraph 17, including the relation-back election (as defined in Treas, Reg. §1.468B-1) back to the earliest permitted date, Such elections shall be made in compliance with the procedures and requirements contained in such regulations. It shall be the responsibility of the Escrow Agent to timely ...


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