2014-09-02 Final Order - in Re International Textile Merger Litigation

FORM4
STATE OF SOUTH CAROLINA JUDGMENT IN A CIVIL CASE

COUNTY OF Greenville
IN THE COURT OF COMMON PLEAS F ,' L [ [) _ ,.., 1 f/9 2009 CP-23-03346
"-....t \vi- COURT
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In re International Textile Group Merger Litigation F ' 1 1 - ' v.
, ' . '
Submitted by: Chris topher D. King
NEXSEN PRUET, LLC
or
D Defendant
55 E. Camperdown Way, Suite 400
Greenville, SC 29601
D Self-Represented Litigant
(864) 370-2211
DISPOSITION TYPE (CHECK ONE)
D JURY VERDICT. This action came before the court for a trial by jury. The issues
have been tried and a verdict rendered.
[8] DECISION BY THE COURT. This action came to trial or hearing before the court.
The issues have been tried or heard and a decision rendered. [8J See Page 2 for additional information.
0 ACTION DISMISSED (CHECK REASON): 0 Rule 12(b), SCRCP; 0 Rule 4l(a),
SCRCP (Vol. Nonsuit); D Rule 43(k), SCRCP (Settled); D Other
D ACTION STRICKEN (CHECK REASON): D Rule 40(j), SCRCP; D Bankruptcy;
D Binding arbitration, subject to right to restore to confirm, vacate or modify
arbitration award; D Other
0 DISPOSITION OF APPEAL TO THE CIRCUIT COURT (CHECK APPLICABLE BOX):
D Affirmed; D Reversed; D Remanded; D Other
NOTE: ATIORNEYS ARE RESPONSIBLE FOR NOTIFYING LOWER COURT, TRIBUNAL, OR
ADMINISTRATIVE AGENCY OF THE CIRCUIT COURT RULING IN THIS APPEAL.
IT IS ORDERED AND ADJUDGED: [8J See attached order (formal order to follow) D Statement of Judgment
by the Court:
ORDER INFORMATION
This order [8J ends D does not end the case.
Additional Information for the Clerk:
INFORMATION FOR THE JUDGMENT INDEX
Complete this section below when the judgment affects title to real or personal property or if any amount
should be enrolled. If there is no judgment information, indicate " N/ A" in one of the boxes below.
Judgment in Favor of Judgment Against Judgment Amount To be Enrolled
(List name(s) below) (List name(s) below) (List amount(s) below)
(see Final Order and Judgment) $
$
$
If applicable, describe the property, including tax map information and address, referenced in the order:
The judgment information above has been provided by the submitting party. Disputes concerning the amounts contained in this
form may be addressed by way of motion pursuant to the SC Rules of Civil Procedure. Amounts to be computed such as interest
or additional taxable sts not available at the time the form and fi nal order are submitted to the judge may be provided to the
clerk. Note: Title ab. actors and re. archers should refer to the official court order for judgment details.
Circuit Court Judge Judge Code
For Clerk of Court Office Use Only
SCRCP Form 4C (03/2013) Page 1
..
?l .
This judgment was entered on the fill day of t v ~ f
placed in the appropriate attorney's box on this \ A ~ day of
to parties (when appearing prose) as follows:
, 2014 and a copy mailed first class or
5:epf-- , 2014 to attorneys of record or
Christopher D. King, Esq.
Burl Williams, Esq.
P.O. Box 10648
William Herlong, Esq.
P.O. Box 2003
Russell T. Burke
P.O. Box 2426
Columbia, SC 29202
Thomas Stephenson
207 Whitsett Street
SCRCP Form 4C (03/2013)
Lucas W. Andrews
Jean-Paul Boulee
Michael McConnell
Mark Weintraub
1420 Peachtree Street NE, Suite 800
Atlanta, GA 30309
W. Howard Boyd, Jr.
P.O. Box 10589
Jeffry P. Dunlaevy
Phillip W. Kilgore
Madison Baker Wyche III
P.O. Box 2757
Arthur Felsenfeld
Cassandra Porsch
Lynne Uniman
450 Lexington Ave.
New York, NY 10017
Michael Giese
T. Foster Haselden
P.O. Box 87
Mason Goldsmith
P.O. Box 1887
Peter Ladig
Lewis Lazarus
Brett McCartney
500 Delaware Ave. Suite 1500
Wilmington, DE 19801
H. Sam Mabry, III
J. Derrick Quattlebaum
P.O. Box 2048
George T. Manning
2727 North Harwood Street
Dallas, TX 75201
Matthew Smith
555 17'h Street Suite 3200
Denver, CO 80202
David Stecfel
1700 Lincon Street, Ste. 4 700
Denver, CO 80203
Myron Steele
1313 North Market Street, 6'h Floor
Page 2
ATIORNEY(S) FOR THE PLAINTIFF(S)
Court Reporter:
Donald J. Wolfe Jr.
P.O. Box 951
ATIORNEY(S) FOR THE DEFENDANT(S)
CLERK OF COURT
ADDITIONAL INFORMATION REGARDING DECISION BY THE COURT AS REFERENCED ON
PAGEl.
This action came to trial or hearing before the court. The issues have been tried or heard and a decision rendered.
See Final Order and Judgment.
SCRCP Form 4C (03/2013) Page3
***********************************
FORM 4C INSTRUCTIONS-JUDGMENT IN A CIVIL CASE
(Instructions for Information Only-Not to be filed with Form 4C)
1. Form 4C-Judgment in a Civil Case has been modified to add order information and
enrollment instructions for the clerk of court. The purpose of Form 4 has not changed
with the exception that judgment information is provided when applicable.
2. Please note that the Form 4C must be attached to all orders that include information to
enroll in the judgment index. The clerk will not be responsible for reading the order to
determine enrollment information.
The attorney or prevailing party will prepare and attach the Form 4C when submitting the
proposed order that includes judgment enrollment information for the judgment index.
The judge will review and sign Form 4C when he or she signs an order that includes
judgment enrollment information for the judgment index.
3. Form 4C is not required to be submitted to the Court with orders that do not include
information to enroll in the judgment index. If the clerk receives such an order without
Form 4C attached, the clerk should enter and process the order pursuant to Rule 58 and
Rule 77(d), SC Rules of Civil Procedure (i.e., the clerk should serve notice of entry of the
judgment by mail or provide the attorneys with copies of the signed order by other
means).
4. The "Information for the Judgment Index" section should be completed when the
judgment affects title to real or personal property or if any amount should be enrolled. In
the "Judgment in Favor of' column, enter the name of the party to whom the judgment is
awarded. In the "Judgment Against" column, enter the name of the person to whom the
judgment is against. The judgment amount to be enrolled should be noted in the
"Judgment Amount" column. As necessary, describe any property referenced in the
order if it is to be enrolled in the judgment index. If there is no judgment information to
enroll, indicate "N/A" in one of the boxes in this section of the form.
5. To enter information to accommodate multiple parties, additional Form 4Cs may be used
as necessary. Additional space may be inserted on the form as necessary.
6. The section "For the Clerk of Court Office Use Only" should be completed by the clerk
as it has been with the previous version of Form 4.
7. If the matter is on appeal to the Circuit Court, then the parties on the form should be
changed from Plaintiff and Defendant to Appellant and Respondent.
8. If an arbitrator prepares an order after arbitration, the arbitrator should strike through
"Circuit Court Judge" and indicate "Arbitrator" in the signature block.
9. If a Special Circuit Court Judge, Master in Equity, or Special Referee prepares an order
after hearing a Circuit Court matter, then he or she should strike through the title "Circuit
Court Judge" below the signature line and indicate the appropriate title.
10. When an Order of Foreclosure is filed, neither the parties or debt owed should be listed in
the Information for the Judgment Index Section, unless the foreclosure order specifically
requires entry of the full judgment amount before the foreclosure sale, pursuant to
Section 29-3-650 of the SC Code.
11. If the deficiency judgment is waived in a Foreclosure action, indicate N/A in the
"Judgment Amount To Be Enrolled" box.
12. Foreclosure actions should be ended by the Clerk of Court upon receipt of the Order of
Foreclosure. Subsequent information, including deficiency judgments, can be added to
the action after the case is ended. The Master in Equity should end the action in the MIE
system upon the receipt of the Order of Foreclosure.
13. When judgment enrollment information is included in the Information for the Judgment
Index Section (for example, when there is a deficiency judgment), only the parties who
the judgment is for and against should be included in the Section. Subordinate parties
and lienholders should not be included in the box if there is not a judgment amount
specifically for or against them.
14. Form 4C is not required to be attached to Transcripts of Judgment and Confession of
Judgment.
STATE OF SOUTH CAROLINA )
COUNTY OF GREENVILLE
) IN THE COURT OF COMMON PLEAS
)
In re International Textile Group Merger ) C.A. No. 2009-CP-23-3346
Litigation )
FINAL ORDER AND JUDGMENT
Pursuant to Paragraph 2 of the Order Preliminarily Approving Class Action and
Derivative Settlement and Establishing Schedule for Procedures to Consider Final Approval,
entered February 19, 2014 (the "Preliminary Approval Order") and subsequent comrn_unications, '""
( . .:...: --
, _ _. ..,..,.. (., r-
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a Settlement Hearing was held before this Court on June 26, 2014, starting at 9:0Q-,a.m. thea
r t l r ! 1
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Greenville County Courthouse, to: (1) determine whether the Settlement should be approved
f'-) --,
the Court as fair, just, reasonable, and adequate; (2) determine the award of fees and r:;
::3 ' -11
costs to Class/Derivative Counsel; (3) consider entry of Final Judgment on the Claims;
.) c.:
:- :xJ
and ( 4) any related matters as described in the Parties' Stipulation and Settlement -j
filed February 19, 2014 (the "Stipulation").
1
After careful consideration of the entire record,
based on the Court 's experience with the Actions to date, all papers fi led in the Actions, and the
presentations made by Counsel, the Court finds as follows:
I. SUMMARY OF LITIGATION. CERTIFICATION OF THE CLASS. AND
SETTLEMENT
These consol idated cases
2
involve a shareholder action (the "Class Action") and a
derivative action (the " Derivative Action") against the same Defendants challenging the fairness
of the 2006 merger between Safety Components, Inc. ("SCI") and the former International
Textile Group, Inc. ("FITG"). Plaintiffs allege that SCI and FITG were controlled by Wilbur L.
1
Capitalized terms not otherwise defined in this Order have the meanings ascribed to them in the
Preliminary Approval Order and/or the Stipulation.
2
This case was consolidated by order of this Court along with Case Nos. 2008-CP-23-270 l and
2009-CP-23-7320.
Ross, Jr., his investment company, W.L. Ross & Co., LLC, and his affiliates. After the merger,
SCI was renamed the new International Textile Group, Inc. ("NITG").
Plaintiffs allege that, among other things, the merger was not entirely fair to the SCI
minority shareholders and that Mr. Ross and his affiliates breached their fiduciary duties to SCI's
minority shareholders, and/or aided and abetted others in breaching their fiduciary duties to
SCI's minority shareholders. Plaintiffs also allege gross negligence and aiding and abetting
breach of fiduciary duty against RSM EquiCo Capital Markets LLC ("RSM"), which served as
the financial advisor to SCI's special committee charged with determining whether the proposed
merger was fair. Plaintiffs further allege that certain defendants were unjustly enriched by the
merger. The same claims were made in the Class Action and on behalf of NITG itself in the
Derivative Action.
Defendants
3
denied all material allegations against them, and asserted various affirmative
defenses in the Action.
After extensive discovery, the Court certified the Class in this case by Order entered
January 10, 2013 (the "Class Certification Order"), which also denied Defendants' motions to
disqualify Plaintiffs as derivative representatives. There was no collusion in the formation of the
Class. The issues of class certification and derivative status were vigorously contested by
Defendants, as shown by the Parties' discovery efforts and the extensive briefing by the Parties
on these issues. The Court incorporates herein by reference its findings and conclusions in the
Class Certification Order and, no new evidence having been presented, specifically finds again
that Plaintiffs and Class/Derivative Counsel are adequate representatives .of the Class and of
NITG. The Class as defined in the Class Certification Order and in Paragraph 33H of the
3
For convenience, the Defendants other than RSM are referred to herein as the "WLR
Defendants."
2
Stipulation is held to be the final settlement Class in this matter. For the reasons previously
discussed and analyzed in the Court's Class Certification Order, the Court finds that the final
Class meets all of the requirements of Rule 23(a), SCRCP.
Potential Class Members were notified of the Class Action pursuant to that Order, and
given the opportunity to opt out of the Class. No potential Class Member elected to opt out.
After additional discovery and motions practice, and after appointment of a Special
Litigation Committee ("SLC") by NITG to investigate and analyze the case, the Parties and the
SLC agreed to settle the case on the basis of an arm's-length negotiation process that lasted for
several months and concluded just before trial was to begin in September 2013. The Parties and
the SLC signed a Memorandum of Understanding on September 30, 2013, and, after several
more months of negotiations, signed a Stipulation and Settlement Agreement on February 19,
2014 (a copy of which is attached to the February 19, 2014, Preliminary Approval Order) ("the
Stipulation").
As to the Class Action, the Parties agreed that in exchange for a complete release, the
Defendants would pay Ten Million ($10,000,000.00) Dollars to the Claims Administrator, Rust
Consulting, Inc. ("Rust"), for distribution to Class Members who filed valid claim forms in
accordance with the Stipulation, less any attorneys' fees and costs awarded by the Court and
Rust's expenses.
As to the Derivative Action, the Parties agreed that in exchange for a complete release,
the Defendants would pay Twenty-six Million ($26,000,000.00) Dollars (the "Derivative Action
Settlement Cash Consideration"") to Rust, and further, that certain WLR entities would forgive
certain debt owed by NITG and cancel preferred shares in NITG in the face amount of
approximately $291,325,000.00 (the "Derivative Action Settlement Non-Cash Consideration").
In the Stipulation the Parties (excluding RSM) specifically agreed that the "actual economic
value" of the non-cash consideration was $45 million. Stipulation, n37 and 42. The total of the
cash and non-cash consideration in the Derivative Action was therefore $71 million.
By Order dated February 19, 2014, the Court preliminarily approved the Settlement (the
"Preliminary Approval Order"). As discussed more fully below, pursuant to the Preliminary
Approval Order, Rust mailed Notice of the Settlement on March 5 and 6, 2014, to Class
Members and to current shareholders of record of NITG. Among other things, the notice stated
that Class and Derivative Counsel would seek an attorneys' fee award of35% of the recovery for
the Class and for NITG, plus costs pro-rated between the cases totaling $2,621,601.22. No Class
Member objected to the fee request in the Class Action. The SLC and the WLR Defendants,
however, objected to the fee request in the Derivative Action, but took no position on the fee
request in the Class Action.
II. PERSONAL .JURISDICTION OVER PLAINTIFF CLASS MEMBERS
A. Introduction
In Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), the United States Supreme
Court held that a court may exercise jurisdiction over an absent class action plaintiff "even
though that plaintiff may not possess the minimum contacts with the forum which would support
personal jurisdiction over a defendant." Shutts, 472 U.S. at 811. In order to exercise personal
jurisdiction over a plaintiff class member, due process requires the class member:
Must receive notice plus an opportunity to be heard and participate in the
litigation, whether in person or through counsel. The notice must be the
best practicable, "reasonably calculated, under all the circumstances, to
apprise interested Parties of the pendency of the action and afford them an
opportunity to present their objections." The notice should describe the
action and the [class member's] rights in it. Additionally, ... due process
requires at a minimum that an absent plaintiff [class member] be provided
with an opportunity to remove himself from the class by executing and
returning an "opt out" or "request for exclusion" form to the court. Finally,
the Due Process Clause of course requires that the named plaintiff at all
times adequately represent the interests of the absent class members.
4
Id at 812 (citations omitted).
If the due process requirements of (I) notice; (2) opportunity to "opt out"; (3) opportunity
to be heard; and (4) adequate representation are met, a court properly asserts personal
jurisdiction over Class Members. See, e.g., Doe v. Bishop of Charleston, 407 S.C. 128, 754
S.E.2d 494 (2014); Hospitality Mgmt. Assoc., Inc. v. Shell Oil Co., 356 S.C. 644, 591 S.E.2d
611, 616 (2004). Here, each of the four requirements imposed by due process has not only been
met, but has been exceeded, so that this Court has personal jurisdiction over all persons falling
within the "Class" as defined in Paragraph 33.H of the Stipulation.
B. Notice
Due process requires that absent Class Members be given notice. However, notice does
not have to be perfect. A court does not lack personal jurisdiction over Class Members because
some Class Members did not get actual notice of the litigation. Notice must be "the best
practicable, reasonably calculated, under all the circumstances, to apprise interested Parties of
the pendency of the action and afford them an opportunity to present their objections." Shutts,
472 U.S. at 812 (quoting Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314-15
(1950) (internal quotation marks omitted)).
]-Jere, two notices were sent to the Class Members: (I) the Notice advising Class
Members that the Class had been certified and that they had the right to exclude themselves from
the Class; and (2) the Notice of Settlement to Class Members and NITG shareholders that the
Actions had been settled and that they had the right to object to the Settlement. As discussed
below, these Notices to Class Members met and far exceeded the requirements of due process.
5
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1. The First Notice
In the Class Certification Order, this Court approved a written Legal Notice to be mailed
to Class Members and a Legal Publication Notice of Class Certification. The Notices were
written in plain English and specifically advised Class Members of:
I. The pendency of the Class Action and the fact the Class had been certified
by the Court;
2. A general description of what the Class Action was about;
3. The specific Class definition contained in the Court's Certification Order;
4. The Class Member's options, including the right to retain their own
counsel and the right of a Class Member to exclude themselves from the
Class and how and the deadline to do so; and
5. The names and addresses of Class Counsel.
Class Members were expressly given until March 25, 2013, to exclude themselves from (to opt
out of) the Class. Importantly, Class Members were told that, "if you decide not to exclude
yourself [from the Class] all further actions in this lawsuit will bind you." The First Notice
provided Class Members with accurate, fair, and reasonable information regarding the Actions,
the Class, and Class Members' right to opt out.
The Court finds that, on February 7, 2013, the Legal Notice was sent, by First Class
United States Mail, to the last known address of persons falling within the Class definition.
Williams Aff. 2. Along with the Legal Notice, Class Members were also mailed, by First Class
Mail, a written form to use to exclude themselves from the Class if they wished to do so. Id, Ex.
A. The Court finds that the Legal Publication Notice was published in The Wall Street Journal
on February 9, 16, and 23, 2013. Id 3. Publication in this manner assured due process notice
even to Class Members who were not reasonably identifiable or for whom the Parties did not
have an accurate mailing address. Additionally, a website and toll-free number were set up to
provide information about the Actions to Class Members and interested persons.
2. The Second Notice
Pursuant to Rules 23(b)(l) and (c), SCRCP, this Court's Preliminary Approval Order
directed that the Claims Administrator cause a Notice of Settlement, in a form approved by the
Court, to be mailed by First Class United States Mail to Class Members and Shareholders of
NITG as provided in the Stipulation. See February 19, 2014 Order, 'If 8 at 3-4. This Notice of
Settlement was a comprehensive, 32-page document and included, inter alia, the following
information:
o A description of the nature ofthe Actions;
o The definition of the Class certified;
o The class claims, issues, or defenses;
o That a Class Member or NITG shareholder may enter an appearance
through an attorney if the member so desires;
o That Class Members and NITG shareholders must submit any objections
by June 12, 2014 (which was seven business days before the originally
scheduled date for the Settlement Hearing);
That the judgment will have a binding effect and constitutes a release of
and bar of the assertion of Settled Claims; and
o A reasonable description of the benefits to be made available to the Class
Member and the procedures for applying for same.
Additionally, the beginning of the Notice of Settlement included a 2-page "Dear Shareholder"
section from the Court which summarized the Actions and the major aspects of the Class Action
and Derivative Action Settlements. The Class, and NITG shareholders, were clearly provided
sufficient information about the Actions to enable them to make an informed decision about
whether to object to the Settlement. See Manual for Complex Litigation (Fourth), 21.311 at 289
(2004). The Second Notice provided Class Members and NJTG shareholders with accurate, fair,
and reasonable information regarding the Actions, the Settlement, and their rights under the
7
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Settlement.
Based on the uncontested Affidavit of Jason Rabe, a Senior Project Administrator with
Rust, the Claims Administrator, the Court finds that the Notice of Settlement described above
was mailed to Class Members and NITG shareholders, by First Class United States Mail, on
March 5, 2014, and March 6, 2014. See Rabe Aff. ~ ~ 7, 9. Additionally, Rust received from
brokerage firms, banks, institutions and other nominees an additional 31 0 names and addresses
of potential Class Members who were also mailed notice packets. !d. ~ I 0. In instances where
notice packets were returned as undeliverable, Rust made substantial efforts to locate new
addresses through LEXIS NEXIS and notice packets were promptly mailed to potential Class
Members at the updated addresses. d . ~ 12. As of June 8, 2014, almost 1,500 notice packets had
been mailed pursuant to the Preliminary Approval Order. A Summary Notice of Class and
Derivative Action Settlement was published in Investor's Business Daily and transmitted over
PR Newswire on April 8, 2014. !d. ~ 14. Finally, a website and toll-free hotline were created by
Rust to provide information to Class Members, NITG shareholders, and interested persons
concerning the Settlement. d . ~ ~ 16-17.
3. The Charles Schwab Names
On July 23, 2014, the Court entered an order supplementing the notice requirements set
forth in the Preliminary Approval Order (the "Order Regarding Supplemental Notice") to address
potential newly identified names that were mentioned by Class/Derivative Counsel at the end of
the June 26, 2014 Settlement Hearing. Pursuant to the Order Regarding Supplemental Notice, the
Court directed the Claims Administrator to send via First Class United States mail a copy of the
Notice of Settlement (the Second Notice) to three shareholders who held shares ofNITG through
Schwab on or about February 19, 2014, and to communicate to them that they may file
8
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objections to the Settlement by August 25, 2014 [over 30 days after the mailing].
4
In a
Supplemental Affidavit, the Claims Administrator confirmed that it complied with the
requirements of the Order Regarding Supplemental Notice. As of August 25,2014, none of these
shareholders filed an objection to the Settlement.
4. Summary
The notice program to the Class Members and NITG shareholders was the absolute best
notice practical under the circumstances, especially given the size of the Class and the number of
NJTG shareholders. The program used every modern means of communication available except
direct telephone calls, which would have been impracticable and excessively expensive. The
notice program, which was put together with careful thought by the Claims Administrator and
the Parties, included: (I) mailing the two Notices to each identifiable Class Member by First
Class United States Mail; (2) publishing the Notices of Class Certification and the Settlement in
newspapers with nationwide circulation; (3) establishing and maintaining websites with detailed
information on the Actions and the Settlement, including all pertinent pleadings and orders; and
(4) establishing and maintaining toll-free numbers where Class Members, NITG shareholders, or
4
The Second Notice specifically instructed holders of shares to forward the Notice to beneficial
owners. The mailing of the Notice of Settlement, particularly when considered with the Publication
Notice of the Settlement provided here, clearly complied with due process. There was no requirement
under Delaware law, South Carolina law or due process that any additional efforts be made to send the
Notice of Settlement (the Second Notice) to the shareholders whose shares were held by Schwab. See
American Hardware v. Savage Arms, 136 A.2d 690, 692 (Del. 1957) (holding "[i]f an owner of stock
chooses to register his shares in the name of a nominee, he takes the risks attendant upon such an
arrangement, including the risk that he may not receive notice of corporate proceedings ... . ");Preston v.
Allison, 650 A.2d 646, 649 (Del. 1994) (holding "[i]f a beneficial shareholder is disenfranchised because
of the record stockholder's failure to follow instructions no relief is afforded in the usual
case"). Nevertheless, the Court ordered re-mailing of the Notice of Settlement (the Second Notice) to the
three NJTG shareholders who may not have been directly mailed the Notice of Settlement by the Claims
Administrator and gave these three shareholders additional time to object to the Settlement.
interested persons could call to request information on the Actions or the Settlement.
5
The procedures utilized to advise Class Members of the Class Action, their right to
exclude themselves from the Class, their rights under the Settlement (including the right to
present objections and attend the Settlement Hearing) were extensive, well-reasoned, and easily
exceeded the requirements of due process. Similarly, the procedures followed to notify NITG
shareholders of the Derivative Action Settlement complied with Rule 23(b)(l), SCRCP, and with
due process. Each step of the Notice process was specifically approved and ordered by this
Court. All available, reasonable means of communication to convey notice to Class Members
and to NITG shareholders were used. The means of disseminating notice was, under the
circumstances, the best practical notice, reasonably calculated under all the circumstances to
apprise interested persons of: the pendency of Actions; the certification of the Class and each
Class Member's right to opt out; the proposed Settlement and Class Members' rights under that
Settlement and the way for a Class Member to submit a claim for Settlement benefits; and the
rights of the Class Members and NITG shareholders to object to the Settlement.
5
The original Legal Notice of class certification (the First Notice) was mailed to Class Members
using the names and addresses contained in NITG's shareholder records. See Instar Corp. v. Senouj, 535
A.2d 1351, 1355 (Del. 1997) (stating corporation is entitled to rely on its own stockholder list); American
Hardware v. Savage Arms, 136 A.2d 690 (Del. 1957) (holding corporation has ordinarily discharged its
obligations under Delaware law when it mails notice to the record owners). It appears that 32 of the First
Notice packets to Class Members were returned as undeliverable. However, as described above, the
Publication Notice of class certification, which was published in The Wall Street Journal for
approximately one month in January 2013, more than complied with South Carolina law and due process
to provide notice to Class Members who did not receive the mailed First Notice. Further, these 32 Class
Members were also mailed the Notice of Settlement (the Second Notice) by the Claims Administrator in
February 2014, at the same address used for sending the First Notice. It appears that 12 of the 32 Class
Members received the Notice of Settlement as only 20 of these Notices were returned to the Claims
Administrator as undeliverable. The Claims Administrator updated the addresses for these 20 people and
re-sent the Notice of Settlement (the Second Notice). After re-mailing, only six of the Notices of
Settlement sent to these 32 Class Members came back to the Claims Administrator as undeliverable. None
of these 32 Class Members objected to the Settlement or tried to opt out of the Class. The Court
specifically finds that the notice procedures used to notify these 32 Class Members of the certification of
the Class, their right to opt out of the Class, the Settlement and their right to object to the Settlement more
than complied with Delaware law, South Carolina law and due process.
10
C. Opportunity to Opt Out
The Class Certification Order and the First Notice to Class Members specifically notified
Class Members of their right to request exclusion from the Class. Class Members had over a
month from the date the First Notice was mailed and published to make a decision on whether to
opt out of the Class. The time period provided for Class Members to make a decision on whether
to exclude themselves from the Class was more than adequate to allow for Class Members to
investigate the issues and to make an informed decision and, thus, complied with due process.
Class Members were even provided a form on which to exercise their right to exclude
themselves from the Class. No Class Member timely opted out of the Class. In fact, no Class
Member has attempted to opt out of the Class whether on a timely or untimely basis.
Consistent with the Preliminary Approval Order, the Court finally finds and concludes
that Class Members were not required to be given a second opportunity to opt out of the Class
after the Parties reached a settlement in this matter. As previously mentioned, when the Court
certified the Class in January 2013, Class Members were mailed a written notice and given the
right to opt out of the Class in accordance with South Carolina law and due process. The written
notice expressly advised: "If you decide not to exclude yourself, all further actions in this lawsuit
will bind you." No Class Member opted out of the class. The Settlement does not change the
definition of the Class from the definition originally certified by the Court. Neither South
Carolina law nor due process requires that Class Members be given a second opt-out period to
exclude themselves from the settlement of a previously certified class action. Although Federal
Rule of Civil Procedure 23(e)(4) provides a federal district court the discretion to allow a second
opt-out period, no such provision appears in Rule 23, SCRCP. Based on the omission of such
provision, it appears the drafters of Rule 23, SCRCP, did not intend to permit a second or
subsequent opt-out period. See Salmonsen v. CGD, Inc., 377 S.C. 442, 448-52, 661 S.E.2d 81,
85-87 (2008) (finding the drafters' decision to exclude from Rule 23, SCRCP, a provision
II
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contained in Fed. R. Civ. P. 23 allowing for immediate interlocutory appeal of a class
certification order supported the conclusion that no such right to an immediate appeal was
intended in South Carolina state court); Littlefield v. South Carolina Forestry Comm 'n, 337 S.C.
348, 354, 523 S.E.2d 781, 784 (1999) ("Our state class action rule differs significantly from its
federal counterpart."). Moreover, even in federal district court, a subsequent right to opt out of a
settlement class is not required or mandated. See, e.g., Comer v. Life Ins. Co. of Ala., No. 08-CV-
228-JFA, 2011 U.S. Dis!. LEXIS 36042, *5 (D.S.C. Mar. 31, 2011) ("Because a full and
complete Class Notice as required by Rule 23 has already been provided to each Class Members,
no additional opt-out period is required for purposes of the pending settlement.").
D. Opportunity To Be Heard
Class Members were clearly given the right to be heard in this case. The Notice to Class
Members and NITG shareholders specifically gave them the right to submit written objections to
the proposed Settlement in the Actions and/or to appear at the Settlement Hearing. No Class
Member submitted a written objection to the Settlement and no Class Member submitted a
written notice to appear at the Settlement Hearing. No NITG shareholder objected to the
Settlement. The fact that there were no objectors demonstrates the Class as a group has no
objection to the Settlement in this matter. Flinn v. FMC Corp., 328 F.2d 1169, 1173 (4th Cir.
1975); Brunson v. Louisiana-Pacific Corp., 818 F. Supp. 2d 922, 927 (D.S.C. 2011); see also
Stoetzner v. United States Steel Corp., 897 F.2d 115, 118-19 (3d Cir. 1990) (finding the fact only
10% of class objected "strongly favors settlement"); Boyd v. Bechtel Corp., 485 F. Supp. 610,
624 (N.D. Cal. 1979) (finding the fact only 16% of class objected deemed "persuasive" on
adequacy of settlement).
E. Adequacy of Representation
Finally, due process requires that the Plaintiffs and their counsel at all times adequately
12
frt-r
represent the interest of the Class Members. Adequacy requires an examination into the capacity
of the Plaintiffs to act on behalf of the Class they seek to represent and into the competency and
conflicts of Class/Derivative Counsel. See AmChem Products, 521 U.S. at 625-26.
In its Class Certification Order, the Court previously conducted a preliminary
examination of the adequacy of representation in this case, both as to Named Plaintiffs and
Class/Derivative Counsel, and preliminarily found both the Plaintiffs and Class/Derivative
Counsel would be adequate representatives in this case. There has been no evidence introduced
in the record since this Court's Class Certification Order undermining these findings. The
Settlement in this case was negotiated in good faith through arms-length, non-collusive
negotiations. The Plaintiffs are members of the Settlement Class they purport to represent. The
SLC, and its own retained counsel, acted as an independent body vigorously looking out for the
interests ofNITG.
The Court has conducted a full and complete review of the Stipulation, the underlying
facts and the pleadings in the case and has concluded that the Class Settlement and Derivative
Settlement are, individually and jointly, fair, adequate and reasonable to the beneficiaries of
those Settlements. The Settlement itself adequately compensates Class Members for their.
individual damages. Moreover, there is absolutely no evidence in the record of any conflict of
interest between Class/Derivative Counsel and the Class or that Class/Derivative Counsel at any
time acted in conflict with or contrary to the interests of the Class. Class/Derivative Counsel
obtained a fair settlement for the Class, particularly given the hotly disputed procedural, legal
and factual issues in the Actions. Further, even after the Settlement was reached,
Class/Derivative Counsel spent and will spend significant periods of time to ensure that the
Settlement itself is administered fairly for the benefit of the Class and individual Class Members.
13
/n<t-
Two specific questions of adequacy/conflict were raised in the Actions which will be
addressed here. First, an issue was raised concerning whether the claims asserted in the Actions
could be maintained simultaneously as class claims on behalf of legacy SCI shareholders and as
derivative claims on behalf of NITG. The Court addresses this concern here only to the extent
the simultaneous pursuit of these claims creates an alleged conflict between the Class and NITG.
The Court finds this alleged conflict does not undermine the adequacy of representation provided
by Plaintiffs or Class/Derivative Counsel to either the Class or NITG. Class/Derivative Counsel
vigorously represented the interests of the Class and obtained a fair, adequate, and reasonable
settlement for the Class Members given the liability issues and the projected damages of the
Class. Class/Derivative Counsel did not put the interests ofNITG over those of the Class and the
Class did not obtain less in the Settlement because Class/Derivative Counsel was also
pursuing derivative claims for NITG. The Settlement does not prefer the Class Action over the
Derivative Action or vice versa. Indeed, the record demonstrates that simultaneous maintenance
of the claims benefited both the Class Action claims and the Derivative Action claims. Plaintiffs,
many of whom are sophisticated investors, also acted without conflict in approving the
Settlement for the Class. Similarly, NITG was represented by the SLC with its own independent
retained counsel who approved the terms of the Derivative Action Settlement as fair, adequate
and reasonable from the standpoint of NITG. Finally, the Court would note that a common
Notice of Settlement, which set forth the details of both the Class Action Settlement and
Derivative Action Settlement and the settlement funds being allocated to each Settlement, was
approved by the Court and mailed to Class Members and NITG shareholders. This Notice
included a two-page "Dear Shareholder" summary from the Court which clearly and plainly
discussed the financial aspects of the Class Action Settlement and Derivative Action Settlement.
No Class Member or NITG shareholder complained about or objected to any aspect of either
Settlement.
Second, on July 31, 2013, the WLR Entity Defendants filed a Motion to decertify the
Class and disqualify Attorney William Herlong on the grounds of a conflict created by Mr.
Herlong representing the Class and his prior/continuing representation of Brian Menezes. This
Motion had not been addressed by the Court at the time the Actions were tentatively settled and
the Parties' Memorandum of Understanding was executed in late September 2013. The Court has
carefully reviewed the Motion and denies the Motion. The grounds raised in the Motion do not
furnish a basis for the Court to conclude there is any conflict between Mr. Herlong's
representation of Mr. Menezes and the interests of the Class especially in light of the fact that an
independent Special Litigation Committee represented the interests of NITG, the holder of the
derivative claim, in connection with the settlement discussions. The Court finds any such alleged
conflict did not affect the fairness, adequacy or reasonableness of the Settlement negotiated on
behalf of the Class. Further, in addition to Mr. Herlong, the Class was represented by two other
law firms who did not have the disqualifying conflict alleged against Mr. Herlong.
III. FAIRNESS AND ADEQUACY OF SETTLEMENT
The next issue to be considered when a Court reviews a class action or derivative action
settlement is whether the settlement is fair, just, adequate, and reasonable. In deciding whether to
approve such a settlement, this Court is required to ensure that the agreement is not the product
of fraud or collusion and that, taken as a whole, the settlement is fair, just, adequate, and
reasonable to the Class as a whole and to NITG. Christina A. ex. Rel. Jennifer A. v. Bloomberg,
315 F.3d 990, 992 (8th Cir. 2003); Oslan v. Law Offices of Mitchell N. Kay, 232 F.Supp.2d 436,
440 (E.D. Pa. 2002). This Court must examine the settlement in its entirety, rather than isolating
individual components for analysis. Reed v. Rhodes, 869 F. Supp. 1274, 1282 (N.D. Ohio 1994);
Reynolds v. King, 790 F. Supp. 1101, 1108 (N.D. Ala. 1990) (holding that if"claims presented
and the relief afforded are homogenous, then settlement is an intrinsically class decision in which
majority sentiments should be given great weight" (internal quotation marks omitted)).
In Flinn v. FMC Corp., 528 F.2d 1169, 1173-74 (4th Cir. 1975), the Fourth Circuit set
forth several factors which should be considered when a court reviews a class action settlement
under former Rule 23(e) of the Federal Rules which is similar to Rule 23(c), SCRCP: (I) the
probabilities of ultimate success should the case be litigated; (2) the complexity, expense and
likely duration of the case if the case is not settled and litigation is pursued; (3) the stage of the
proceedings when the case is settled; (4) the lack of collusion in the Settlement between
plaintiffs and defendants; (5) the reaction of the plaintiff class to the Settlement; and (6) the
experience of counsel who have represented the plaintiffs and their opinion regarding the
Settlement. See also Brunson v. Louisiana-Pacific Corp., 818 F. Supp. 2d 922, 927 (D.S.C.
2011). Here, these factors, when considered both separately and together, demonstrate that the
Settlement in this case is fair, adequate, just, and reasonable to the Class as a whole and to NITG.
The likelihood of ultimate success if the Actions were fully litigated was uncertain.
Although Plaintiffs survived the Defendants' motions for summary judgment on some liability
issues, the law is well settled in South Carolina that denial of a motion for summary judgment is
not a ruling on the merits and merely allows the case to proceed to trial. The Actions would have
been extremely complex and expensive to litigate further and potentially difficult to try. The
amount of damages was uncertain. The Actions were certainly sufficiently well advanced,
however, that there was sufficient development of the facts to permit a reasonable and informed
judgment by Class/Derivative Counsel on the possible merits and the complexity of litigating the
matters further. The Settlement was reached without collusion and in good faith during arms-
length negotiations. No Class Member or NJTG shareholder has objected to the Settlement. The
Class and NITG were represented by competent and experienced counsel, including independent
counsel for the SLC, all of whom approve of the Settlement.
Substantial cash is being paid to the Class to settle the Class Action and substantial cash
and non-cash benefits are being paid to NITG to settle the Derivative Action. The Stipulation,
which is being finally approved by this Court, provides for a $10 million settlement fund to
which Class Members can make a claim for benefits and from which attorneys' fees and
expenses for the Class Action will be paid. The Stipulation provides for $26 million in cash
consideration and $45 million in non-cash consideration for the Derivative Action Settlement,
from which attorneys' fees and expenses for the Derivative Action will be paid. All Parties,
including the SLC acting for NITG, have stipulated that the non-cash consideration has an actual
economic value to NITG of $45 million. There is substantial evidence in the record that the non-
cash consideration has an actual economic value to NITG of $45 million and, based on its own
independent review of the evidence, the Court so finds. The Settlement affords a substantial and
immediate remedy for the Class Members and NITG, while obviating the need for a lengthy and
uncertain trial and potential appeals after trial.
IV. AWARD OF ATTORNEYS FEES AND COSTS
Class/Derivative Counsel petitioned the Court for an award of reasonable attorneys' fees
and costs in the amount of one-third of the settlement value in both the Class and Derivative
Actions, plus pro-rated expenses in each case. The attorneys' fee petition was supported by a
lengthy memorandum, affidavits from counsel and experts, and exhibits.
6
No Class Member
6
The SLC filed but has subsequently withdrawn a Motion to Alter or Amend Judgment Pursuant
to Rule 59(e) concerning the Court's denial of the SLC's "motion to compel production of items
identified as numbers 8 and 9 in the Subpoenas duces tecum." (SLC Rule 59( e) Motion at 1). The SLC's
Subpoenas duces tecum sought, at paragraphs 8 and 9, documents concerning paragraph 19 of the
affidavit of William B. Chandler Ill (appearing on page 17 of the appendix to Class/Derivative Counsel's
(footnote continued)
17
filed any objection to the proposed one-third attorneys' fee award plus pro-rated costs.
7
The
WLR Defendants and the SLC objected to the attorney fee petition in the Derivative Action only,
and served lengthy memoranda, affidavits, and exhibits in opposition. RSM took no position
concerning the fee petition. Class/Derivative Counsel thereafter filed a reply brief, with
supporting affidavits. The Court held a hearing on the fee petition on June 26, 2014, and has
carefully considered the arguments and memoranda submitted by counsel.
A. Choice of Law
Both the Class and Derivative Actions alleged a breach of fiduciary duty against the
WLR Defendants under Delaware law, unjust enrichment against all defendants under South
Carolina law, and aiding and abetting breach of fiduciary duty and gross negligence against RSM
under South Carolina law. The parties disagree as to whether Delaware or South Carolina law
should govern the attorneys' fee award.
As discussed below, the methodology for determining a reasonable fee from a common
fund is nearly identical in South Carolina and Delaware. Both states employ a factorial analysis
and do not employ per se rules or mechanical guidelines for a proper percentage award. See, e.g.,
brief in support of its petition to approve the settlement and for an award of fees and costs), and
paragraphs 5-6 of the affidavit of Russell T. Burke appearing at pages 249-251 ofthe same appendix).
The Court has not relied on the averments that were referenced by paragraphs 8 and 9 of the
SLC's Subpoenas duces tecum in reaching its decision granting an award of fees and costs here.
Similarly, the Court has not relied upon the evidence identified in Paragraphs 1-8 of the SLC's Motion to
Strike or Exclude Affidavits. As discussed below, the Court has considered the Affidavit of Eric A.
Powers, which is the subject of Paragraph 9 of the motion to strike, only to the extent that it supports the
parties' stipulation that the value ofthe non-cash consideration portion of the Derivative Settlement is $45
million.
The Court has, as discussed below, considered Counsel's averments concerning hours worked
and hourly rates. Such evidence is routinely introduced at the fee application stage, which is the first stage
in the case at which it becomes relevant.
7
The notice to the class stated that Class Counsel would seek 35% of the $10 million settlement
fund, plus costs, pursuant to their fee agreement with the class representatives. In the fee petition to this
Court, the request was reduced to one-third (33.333%), plus costs and expenses
Americas Mining Corp. v. Theriault, 51 A.3d 1213, 1261 (Del. 2012) ("[t]he adoption of a
mandatory methodology or particular mathematical model for determining attorney's fees in
common fund cases would be the antithesis of the equitable principles from which the concept of
such awards originated"). Therefore, based on the Court's review of South Carolina and
Delaware attorneys' fee decisions, the Court finds that its determination of a reasonable
attorneys' fee award in both the Class and the Derivative Actions is consistent with the law of
both states.
B. The Common Fund Doctrine
The Court finds that under both South Carolina and Delaware law, Class and Derivative
Counsel are entitled to an award of attorneys' fees in both cases under the common fund
doctrine. First Union Nat'/ Bank of S.C. v. Soden, 333 S.C. 554, 573-574, 511 S.E.2d 372, 382
(Ct. App. 1998); see also Tandycrafts, Inc. v. Initio Partners, 562 A.2d 1162, 1164-65
(Del.l989) (common fund doctrine applies to both derivative and class action cases); Americas
Mining Corp. v. Theriault, 51 A.3d 1213, 1252-53 (Del. 2012) (common fund doctrine applied in
derivative case). There is no dispute that Class/Derivative Counsel's efforts have led directly to
the creation of a $71 million common fund benefit for NITG, and the creation of a $10 million
common fund benefit for the Class. Therefore, Class/Derivative Counsel are entitled to
percentages of each of those funds as an award of reasonable attorneys' fees and costs.
C. Determination of Reasonable Attorneys' Fees
1. Legal Framework
The Court has broad discretion to determine the amount of a reasonable fee award from
the common fund created in the Class Action and the Derivative Action. Condon v. State, 354
S.C. 634, 643, 583 S.E.2d 430, 435 (2003) (circuit court's factual finding in awarding fee upheld
unless not supported by "any competent evidence.") (emphasis in original); Americas Mining, 51
19
f-r;r
A.3d at 1255, 1261 ("[t]he detennination of any attorney fee award is a matter within the sound
judicial discretion of the Court of Chancery"; "[t]he percentage awarded as attorneys' fees from
a common fund is committed to the sound discretion of the Court of Chancery.").
In common fund cases, "[m]ost courts utilize the percentage method for determining the
fee - that is, they award counsel a percentage of the fund as their fee - and most then apply a
series of factors to ensure that the resulting percentage is reasonable." Newberg on Class Actions
14.6 (2013); see also Federal Judicial Center, Manual for Complex Litigation, Fourth, 14.121
at 187 (2004). This percentage of recovery methodology has been used in both South Carolina
and Delaware for the determination of reasonable attorneys' fees from a common fund. See
Condon v. State, 345 S.C. 634, 643, 583 S.E.2d 430, 435 (2003) (common fund case approving
percentage of recovery method used by the court below); Layman v. State, 376 S.C. 434,452-54,
658 S.E.2d 320, 330 (2008) (noting that the lodestar method is used in statutory fee-shifting
cases, but the percentage of recovery method is often used in common fund cases); Americas
Mining Corp., 51 A.3d at 1252-54.
The factors used to determine a reasonable fee award are almost identical in South
Carolina and in Delaware. In particular, South Carolina courts have identified the following,
non-exclusive list of factors:
I) the nature, extent, and difficulty of the case;
2) the time necessarily devoted to the case;
3) professional standing of counsel;
4) contingency of compensation;
5) the beneficial results obtained; and
6) the customary legal fees for similar services.
20
frrr
Condon, 345 S.C. at 643, 583 S.E.2d at 435 (common fund case approving factors set forth in
Jackson v. Speed, 326 S.C. 289, 308, 486 S.E.2d 750, 760 (1997)). In Delaware, the courts
analyze the following factors set forth in Sugar/and Indus., Inc. v. Thomas, 420 A.2d 142 (Del.
1980):
1)
2)
3)
4)
5)
the results achieved;
the time and effort of counsel;
the relative complexities of the litigation;
any contingency factor; and
the standing and ability of counsel involved.
Americas Mining, 51 A. 3d at 1254 (citing Sugar/and).
The only Jackson v. Speed factor not specifically identified in Sugar/and is "the
customary legal fees for similar services." Nonetheless, Delaware courts routinely look to fee
awards granted in analogous cases to inform their judgments. See, e.g., Americas Mining, 51
A.3d at 1259-1260. Further, in Delaware, the primary factor in awarding attorneys' fees is the
beneficial results achieved. !d. at 1254.
Each factor is analyzed below.
2. Application of Jackson v. Speed and Sugar/and Factors to this Case
a. The nature, extent, and difficult of the case
The Court finds that the Class and Derivative Actions were extremely complicated and
involved novel issues under Delaware law as well as difficult valuation issues. The complexity
of the factual issues is amply demonstrated by the 83 single-spaced First Amended Complaint,
which amounts to a synopsis of nearly I 00 days of depositions, over a million pages of
documents produced in discovery, and 45 expert reports.
21
b. The time necessarily devoted to the case
The Court finds that Class/Derivative Counsel spent nearly six years prosecuting these
cases. There are very few, if any, reported decisions in South Carolina or Delaware, in which
plaintiffs' counsel devoted as much time and effort as was invested in these cases. The cases
required extensive discovery, multiple expert reports, dozens of depositions, and voluminous
motion practice. Class/Derivative Counsel aver they invested approximately 30,000 hours in the
two cases, which the Court finds easily believable, given the vigorous defense mounted in these
cases by multiple law firms. The enormous effort, as well as the thousands of hours, expended by
Class/Derivative Counsel prosecuting these cases easily support substantial fee awards to be paid
out ofthe common fund benefits created for the Class and NITG, respectively.
c. Professional standing of counsel
The Court finds that Class and Derivative Counsel enjoy a high standing in the bar. All
have significant experience working on both class action and complex business litigation cases.
In particular, Mr. Chandler served as Vice-Chancellor and Chancellor of the Delaware Court of
Chancery for twenty-two years, authoring many of the opinions relevant to this litigation.
d. Contingency of compensation
The Court finds that this case was taken on a fully contingent basis and fully litigated for
nearly six years before the parties settled it on the eve of trial. Class and Derivative Counsel were
fully at risk of receiving no compensation whatsoever throughout these cases.
e. The beneficial results obtained
This factor is of primary importance in the Delaware decisions, and it is also important in
South Carolina cases. See, e.g., Condon v. State, 345 S.C. 634, 643, 583 S.E.2d 430, 435 n.S
(2003). The Court finds that the beneficial results are substantial for both the minority
shareholders of SCI in the Class Action, and for NITG in the Derivative Action.
22
1-o-.Y
As for the recovery in the Class Action, the settlement amounts to $7.79/share for all
minority shareholders of SCI (excluding Mr. Menezes), which is nearly 60% of the $13.25/share
price of SCI at the time of the merger. The Court finds as a matter of fact that the Class Action
Settlement provides a substantial benefit to the Class Members.
As for the recovery in the Derivative Action, the settlement consisted of the cash
component of $26 million, and the noncash component consisting of the forgiveness of NITG
debt and the cancellation of NITG preferred shares (including future interest) with an aggregate
face value of $291.3 million. The SLC, the WLR Defendants, and Class/Derivative Counsel
stipulated that the economic value of the non-cash consideration was $45 million to NITG. The
Court finds as a matter of fact that the non-cash consideration is worth $45 million, and therefore
the total settlement value of the Derivative Action to NITG is $71 million.
8
The Court finds as a
matter of fact that based on the undisputed facts of the case and the legal issues presented, the
derivative settlement provides a substantial benefit to NITG.
f. The customary legal fees for similar services
It is the Court's responsibility and duty to ensure that the fee award is reasonable, and
examining fee awards in similar cases is designed to foster uniformity in fee decisions. Condon
v. State, 354 S.C. 634, 583 S.E.2d 430, 435 n.8 (2003) (noting the lengthy analysis by the circuit
court of fee awards in other cases, as opposed to the contingency fee agreement itself, was
"particularly persuasive"). Although this factor from Jackson v. Speed is not listed in Sugar/and,
8
This Court is not bound to accept the parties' stipulation that the noncash consideration was
worth $45 million. Plaintiffs' counsel therefore submitted the expert report on the valuation of Dr. Eric
Powers of USC's Moore School of Business. Dr. Powers opined that the actual value of the noncash
portion of the derivative settlement was between $74.4 million and $109 million. No contrary estimate
was submitted, although Defendants and the SLC objected to the admissibility of the report. The Court
has not considered the Powers report, except to the extent that it supports the parties' stipulation that the
derivative settlement is worth $71 million. Even in the absence of the Powers report, the Court finds that
the parties stipulated value of $71 million is a reasonable estimation of the value of the derivative
settlement.
23
the Delaware courts routinely consider awards in other common fund cases, and award higher
percentages the longer a case has progressed before being resolved. See, e.g., Americas Mining,
51 A.3d at 1259-1260.
9
A survey of attorneys' fee awards nationally reveals that courts have awarded a wide
percentage range in common fund cases, and that a one-third fee award is common in class
actions:
No general rule can be articulated on what is a reasonable percentage of a
common fund. A district court may use its discretionary powers to determine what
is a reasonable and fair award from a common fund, where the fund itself
represents the benchmark from which reasonableness is measured. Most courts
utilize the percentage method for determining the fee - that is, they award counsel
a percentage of the fund as their fee - and most then apply a series of factors to
ensure that the resulting percentage fee is reasonable ....
Usually 50 per cent of the fund is the upper limit on a reasonable fee award from
a common fund, in order to assure that fees do not consume a disproportionate
part of the recovery obtained for the class, though somewhat larger percentages
are not unprecedented. In the normal range of common fund recoveries in
securities and antitrust suits, common fee awards fall in the 20 to 33 per cent
range ....
Empirical studies show that, regardless whether the percentage method or
the lodestar method is used, fee awards in class actions average around one-
third of the recovery.
4 Newberg on Class Actions 14:6 at 1-2 (4th ed.) (footnotes omitted, emphasis added).
There are also numerous decisions from both the South Carolina Circuit Court
10
and the
Delaware Court of Chancery awarding fees of thirty percent or more.
11
Likewise, the South
Carolina federal district court has awarded fees of 30% or more.
12
9
Although Class/Derivative Counsel maintained that the fee agreement of 35% plus costs should
be the starting point of the analysis, the Court has not considered the fee agreements here.
10
See, e.g., Edwards v. SunCom, 2008 WL 4897935 (S.C. Ct. Com. Pl. May 5, 2008) (one-third
of the fund, plus costs); Lackey v. Green Tree Fin. Corp., C.A. No. 96-CP-06-073 (S.C. Ct. Com. Pl. July
24, 2000) (one-third fee award); Bazzle v. Green Tree Fin. Corp., C.A. No. 97-CP-18-258 (S.C. Ct. Com.
Pl. July 24, 2000) (one-third fee award); Fairey v. Exxon Corp., C.A. No. 94-CP-38-118 (S.C. Ct. Com.
Pl. Oct. 9, 2003) (noting fee range in federal securities cases of 19% to 45%, and awarding 40% of $30
24
There are, however, South Carolina and Delaware cases that have awarded fees less than
30% of the common fund, especially in settlement cases.
13
As noted by the Delaware Supreme
Court:
Delaware case law supports a wide range of reasonable percentages for attorneys'
fees, but 33% is "the very top of the range of percentages." The Court of
Chancery has a history of awarding lower percentages of the benefit where cases
have settled before trial. When a case settles early, the Court of Chancery tends to
award I 0-15% of the monetary benefit conferred. When a case settles after the
plaintiffs have engaged in meaningful litigation efforts, typically including
multiple depositions and some level of motion practice, fee awards in the Court of
million, plus costs); Global Prot. Corp. v. Halbersberg, 332 S.C. 149, 161, 503 S.E.2d 483, 489 (App.
1998) (approving one-third fee award and noting that the "typical range" of contingent fee arrangements
used "in complex cases ... [is] one-third to one-half the recovery").
11
See, e.g., In re Rural/Metro Corp. S'holders Litig., Del. Ch., C.A. No. 6350 (Nov. 19, 2013)
(TRANSCRIPT & ORDER) (fees and costs amounting to 36.17%); Gatz v. Ponsoldt, 2009 WL 1743760
(Del. Ch. June 12, 2009) (33% fee award); In re Intek Global Corporation Shareholders Litigation, Del.
Ch., C.A. No. 17207 (April24, 2000) (33%); In re Telecommunications, Inc., Del. Ch., C.A. No. 16470
(Feb. 1, 2007) (30%, plus costs); In re Te/ecorp PCS, Inc. Shareholders Litig., Del. Ch., C.A. No. 19260
(Aug. 20, 2003) (TRANSCRIPT at 91-104) (30%); In re USA Cafes, L.P. Litig., Cons. C.A. No. 11146
(Del. Ch. June 22,1994) (33%); Ryan v. Gifford, 2009 WL 18143 (Del. Ch. Jan. 2, 2009) (33%); In re
Genentech, Inc. Shareholders Litig., Del. Ch., C.A. No. 14625 (Aug. 26, 1996) (33%); Boyer v.
Wilmington Materials, Inc., 1999 Del. Ch. LEXIS 81, 20-22 (Del. Ch. May 17, 1999) (33% of the
derivative recovery, plus costs); Mayfield v. Western Wireless Corp., Del. Ch., C.A. No. 18717 (Oct. 21,
2002) (33%).
12
See, e.g., Cent. Wesleyan Call. v. W.R. Grace & Co., C.A. No. 2:87-1860-8 (D.S.C. Oct. 22,
2008) (30% award on a $35.5 million settlement) (Blatt, J.); Temp. Servs., Inc. v. Am. In!' I Group, Inc.,
2012 WL 2370523, at *9 (D.S.C. 2012) ("A one-third fee award from the common fund in this case is
consistent with, if not below, what is routinely privately negotiated in contingency fee litigation.");
Montague v. Dixie Nat'/ Life Ins. Co., 2011 WL 3626541 (D.S.C. Aug. 17, 2011) (33.3%) (citing
numerous federal cases, including Allapattah Serv., Inc. v. Exxon Corp., 454 F.Supp.2d 1185, 1212 (S.D.
Fla. 2006) (noting one-third fee is typical)); Savani v. URS Prqf'l Solutions LLC, 2014 WL 172503 at *4
(D.S.C. Jan. 15, 2014) (noting fee awards range from 20-40%) (citing Thomas Willging, et al., Empirical
Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil
Rules 69 (Federal Judicial Center 1996)).
13
Littlejohn v. State, 2002 WL 34454074 (S.C. Ct. Com. Pl. April 23, 2002) (28% fee award, plus
costs), aff'd sub nom. Condon v. State, 354 S.C. 634, 643, 583 S.E.2d 430, 435 (2003) (28% award, and
noting a Ninth Circuit opinion finding that fees ordinarily range from 20% to 30% of the common fund);
Americas Mining, 51 A.3d 1213 (Del. 2012) (15% of$2.0316 billion judgment); Berger v. Pubco Corp.,
2010 WL 2573881, *I (Del. Ch. June 23, 2010) (awarding 26% and noting that the award was "at the
bottom of the 25-33% range that is found in many Court of Chancery cases"); Teachers Retirement Sys. of
La. v. Greenberg, C.A. No. 20106-VCS (Del. Ch. Dec. 17, 2008) (22.5%, plus costs; consistent with fee
agreement); In reEl Paso Corp. S'holder Litig., C.A. No. 6949-2012 WL 6057331 (Del. Ch. Dec. 3,
2012) (23.6%); In reNews Corp. S'holder Deriv. Litig., C.A. No. 6285-VCN (Del. Ch. 2013) (20%); In
re Emerson Radio S'holder Derivative Litig., 2011 WL 1135006, *4 (Del. Ch. Feb. 6, 1997) (25%).
Chancery range from 15-25% of the monetary benefits conferred. "A study of
recent Delaware fee awards finds that the average amount of fees awarded when
derivative and class actions settle for both monetary and therapeutic consideration
is approximately 23% of the monetary benefit conferred; the median is 25%."
Higher percentages are warranted when cases progress to a post-trial adjudication.
Americas Mining, 51 A.3d at 1259-1260 (footnotes omitted, but citing two settlement cases that
awarded 33%) (quoting Richard A. Rosen, David C. McBride & Danielle Gibbs, Settlement
Agreements in Commercial Disputes: Negotiating, Drafting and Enforcement, 27.1 0, at 27-
100 (2010)). The "meaningful litigation" described in the cases noted in Americas Mining was
not nearly as extensive as the litigation in this case.
14
The Court of Chancery has awarded
percentages higher than 25% for cases that settled on the eve of trial. New Jersey Carpenters
Pension Fund v. Infogroup, Inc., C.A. No. 5334-VCN (Del. Ch. Apri130, 2014) (TRANSCRIPT
at 29-30) ("Where there has been extensive and serious motion practice and discovery over a
period of years, especially where there has been a preliminary injunction process, the fee would
normally be something above 25 percent.")
Finally, although some courts have employed a so-called "megafund rule" in awarding
lower fee percentages for substantial recoveries, even in jurisdictions where it may apply,
"megafund" cases are generally defined as those involving recoveries of $100 million or more.
15
14
See, e.g., Gatz v. Ponsoldt, 2009 WL 1743760 (Del. Ch. June 12, 2009) (33% award; plaintiffs'
counsel had appealed dismissals in federal and state court, but had less than l 0,000 hours in the case, had
reviewed only thousands of documents, and class had not been certified); Ryan v. Gifford, 2009 WL
18143 (Del. Ch. Jan. 2, 2009) (33% award; plaintiffs' counsel had logged less than 8,000 hours and
deposed only six witnesses before settlement); In re Emerson Radio S'holder Deriv. Litig., 2011 WL
1135005 (Del. Ch. Mar. 28, 2011) ("meaningful litigation" included "some level of motion practice";
plaintiffs' counsel had 2,136 hours in the case and had not conducted expert discovery; court found this
was "mid-stage" and granted 25% fee award).
15
Americas Mining notes cases in which fee percentages drop when the recovery is over $5 00
million. Professor Newburg notes the declining percentages in megafund cases, listing 24 cases involving
over $300 million in recovery. 4 Newberg on Class Actions 14:6 at 2-3 (4th ed.) Older cases place the
megafund bar at $100 million. See, e.g., In re Ikon Office Solutions, Inc. Sec. Litig., 194 F.R.D. 166, 195
(E.D.Pa. 2000) ("$100 million seems to be the informal marker of a 'very large' settlement"); In re
26
Further, the Delaware Supreme Court has expressly rejected this concept as a per se rule in
Delaware. Americas Mining, 51 A.3d at 1258. No South Carolina appellate decision has
addressed the "megafund" declining percentage rule.
Therefore, case law in both South Carolina and Delaware concerning fee awards paid out
of common funds generally support a reasonable fee percentage range between the 20%
suggested by the SLC on the low end and the 33.3% suggested by Class/Derivative Counsel on
the high end for pre-trial settlements.
16
More specifically, cases in Delaware that have
progressed beyond the "meaningful litigation" stage mentioned in Americas Mining support a fee
award of greater than 25%.
3. Fees and Cost Awards in the Class and Derivative Actions
a. The Class Action
Class Counsel petitioned the Court for a one-third fee award ($3,333,333 .33), plus pro-
rated costs ($323,654.48), in the Class Action. That percentage is lower than the 35% (plus
costs) identified in settlement notice, and no Class Member objected to the settlement notice or
the actual fee petition. Neither the SLC nor any Defendant has taken a position with respect to
the fee request in the Class Action.
Based upon the Jackson v. Speed and Sugar/and factors listed above and in particular the
beneficial results obtained for the class, Class Counsel's fee petition is therefore GRANTED.
Cendant Corp. Derivative Litig., 232 F. Supp. 2d 327, 337 (D. N.J. 2002) (application of megafund rule
"generaiJy require[s] awards of at least $100 miiJion.")
16
Condon v. State, 345 S.C. 634, 643, 583 S.E.2d 430, 435 (2003) (fees ordinarily range from
20% to 30%); Americas Mining, 51 A .3d at 1259-1260 and n. 114 (noting increasing percentage range up
to 33%, and a median of25%); Ryan v. Gifford, 2009 WL 18143 (Del.Ch. Jan. 2, 2009) (awarding 33%
of cash amount where plaintiffs' counsel engaged in "meaningful discovery," survived "significant, hard
fought motion practice" and incurred nearly $400,000 in expenses); Berger v. Pubco Corp., 20 I 0 WL
2573881, *I (Del. Ch. June 23, 2010) (noting 26% award was "at the bottom of the 25-33% range that is
found in many Court of Chancery cases.").
27
b. The Derivative Action
In the Derivative Action, counsel also petitioned for a one-third fee, plus pro-rated costs.
This request amounts to $23.6 million in fees, plus $2,297,946.82 in costs, for a total of
$25,946,613.48, slightly less than the $26 million cash settlement. The SLC and the WLR
Defendants argued that the percentage awarded should be lower for the noncash portion of the
settlement than for the cash portion of the settlement, and also that such an award would be
unprecedented because it would deprive NITG essentially of the cash benefit of the settlement.
The Court finds these arguments unavailing.
Both the SLC and the WLR Defendants agreed that the "economic value of the benefit to
NITG from the Derivative Action Settlement shall be the amount of the Derivative Action
Settlement Cash Consideration ($26 million) plus the economic value of the Derivative Action
Settlement Non-Cash Consideration ($45 million), without reduction ... " Stipulation, 'lf42. Thus,
the economic value of the entire settlement was $71 million dollars, without any distinction in
the method of monetary valuation between the cash and non-cash components of the settlement.
The Non-Cash consideration, according to the Stipulation, is therefore the same as cash in the
amount of $45 million. Given that, the Court finds that there is no logical basis for awarding a
lesser percentage of the $71 million recovery merely because a portion of that value will be paid
to the Company other than in cash.
17
17
Similarly, there is no legal basis for the SLC's argument. The SLC argues that in Condon v.
State, the Court awarded 28% of the up-front cash portion of the settlement, but did not award any
amount for the future benefits that would result, which were allegedly of equal value to the up-front cash
portion. Thns, according to the SLC, the overall percentage award in Condon was 14% of the total
benefits created. In Condon, however, any fees on the future benefits created by the relief obtained in the
case would necessarily have been paid by class members, even though those future benefits would have
flowed to non-class members. Here the situation is different: NITG will receive the full measure of both
the cash consideration and the non-cash consideration obtained through the derivative settlement. It is
therefore reasonable to award fees based on a percentage of the full value obtained by the Company,
without regard to the form of consideration providing that value.
28
NITG is in fact receiving a $71 million benefit derived directly and solely from the
efforts of Derivative Counsel, and that is the measure of the common fi.md created by the efforts
of Class/Derivative Counsel from which a reasonable fee is to be awarded.
Based on the Court's analysis of the cases, the factors set forth in Jackson v. Speed and
Sugar/and, its review of all the briefs, affidavits, and oral arguments (except as ( 1) otherwise
noted in this Order and (2) the Court stated during the hearing), on this issue, the Court awards
reasonable attorneys' fees equal to 28% of the $71 million common fund created in the
Derivative Action. This percentage is within the 20% to 30% percentage fee range for common
fund cases approved by the Supreme Court in Condon, and identical to the fee percentage in that
case. 354 S.C. 634, 583 S.E.2d 430 n.8 (2003). It is also consistent with those Delaware Court of
Chancery decisions in which a fee award of one-third of a settlement fund is reserved for cases
that go through trial.
The Court specifically finds that a 28% fee award is consistent with both South Carolina
and Delaware law, and is appropriate under the Jackson v. Speed and Sugar/and factors.
c. Costs
Class/Derivative Counsel seek costs of $2,621,601.31 million in addition to the
reasonable fee award, pro-rated between the two cases.
18
Class/Derivative Counsel have
submitted an itemized list of these expenses. Nearly 70% of these costs were related to expert
expenses, which is consistent with the expert-intensive nature of this case. Neither the SLC nor
the WLR Defendants (nor any shareholder of FITG or NITG) contests the reasonableness of
these costs, or the reasonableness of the pro-rata division between the Class and the Derivative
18
The total expenses of$2,621,601.31 are pro-rated based on a ratio of 10:71, which is the ratio
of the class settlement to the derivative settlement ($1 0 million to $71 million). The pro-rated expense
amount for the Class Action is therefore $323,654.48, and the pro-rated expense amount for the
Derivative Action is $2,297,946.82.
29
Actions. Nor do the SLC or the WLR Defendants contest that reasonable costs are typically
awarded in South Carolina in addition to fees.
19
Rather, the SLC and the WLR Defendants
contend that Delaware law applies, and that in Delaware the courts "more recently" favor "all-
in" fee awards.
No Delaware decision requires as a matter of law that the fees be awarded inclusive of
costs in the manner advanced by the SLC and the WLR Defendants. Rather, it is a matter within
the discretion of the Court. Teachers' Retirement System of Louisiana v. Greenberg, C.A. No.
20106-VCS (Del. Ch. Jan. 26, 2009) (TRANSCRIPT at 10; awarding fees plus costs); Louisiana
Municipal Police Employees' Retirement System v. Fertitta, C.A. No. 4339-VCL (Oct. 6, 2010)
(TRANSCRIPT at 26) (awarding "full amount" of fees plus costs). Although some Delaware
Chancery decisions indicate that an "a11-in" fee award, including costs, incentivizes plaintiff's
counsel to be parsimonious in prosecuting the case,
20
here there is no objection to the
reasonableness of any of the itemized costs (including the substantial expert costs necessary to
prosecute this case), and no indication that counsel in the Derivative Action was not frugal with
its out-of-pocket expenses incurred during the course of this lengthy litigation.
19
See, e.g., Edwards v. SunCom, 2008 WL 4897935 (S.C. Ct. Corn. Pl. May 5, 2008) (awarding
one-third fees plus costs); Littlejohn v. State, 2002 WL 34454074 at 3 (S.C. Ct. Corn. Pl. April 23, 2002)
(awarding fees plus costs, but disallowing lobbying expenses), affd sub nom. Condon v. State 354 S.C.
634, 583 S.E.2d 430 (2003); Lackey v. Green Tree Fin. Corp., C.A. No. 96-CP-06-073 (S.C. Ct. Corn. Pl.
July 24, 2000) (fees plus costs awarded); Bazzle v. Green Tree Fin. Corp., C.A. No. 97-CP-18-258 (S.C.
Ct. Corn. Pl. July 24, 2000) (companion case to Lackey, one-half cost awarded in each matter); Fairey v.
Exxon Corp., C.A. No. 94-CP-38-118 (S.C. Ct. Com. Pl. Oct. 9, 2003) (approving attorneys' fees and
costs). Federal courts also typically award fees plus costs. See, e.g., Cent. Wesleyan Coli. v. W:R. Grace &
Co., C.A. No. 2:87-1860-8 (D.S.C. Oct. 21, 2008) (30% fee award, plus costs); Spartanburg Reg'/ Health
Servs. Dist. Inc. v. Hillenbrand Indus. Inc., C.A. No. 7:03-cv-02141-HFF (D.S.C. Aug. 15, 2006)
(percentage fee plus costs awarded); Jones v. Dominion Res. Servs., Inc., 601 F. Supp. 2d 756 (S.D.
W.Va. 2009); In re The Mills Corp. Sec. Litig., 265 F.R.D. 246 (E.D. Va. 2009); see also 4 Newberg on
Class Actions 14:6 at 2 (4th ed.) ("When plaintiffs' judicially approved expenses were added to the fee
award, the fees and expenses averaged 34.74% ofthe created fund.") (emphasis added).
20
Brinckerhoffv. Tex. E. Prods. Pipeline, LLC, 986 A.2d 370, 395 (Del. Ch. 2010).
30
The Court therefore finds that Class/Derivative Counsel have reasonably incurred the
claimed expenses and has appropriately allocated them between the two actions. It further
awards $323,654.48 in expenses in the Class Action and $2,297,946.82 in expenses in the
Derivative Action. In both the Class and Derivative Actions the expenses are awarded in addition
to the fee awards.
d. Lodestar crosscheck
Neither South Carolina nor Delaware requires use of the lodestar method to determine
fees in a common fund case, nor does either state require the use of a lodestar "crosscheck" on
the reasonableness of a fee determined by the percentage of recovery method.
21
The Court finds
that in this case the percentage of recovery from the common fund, as determined by considering
the factors in Jackson v. Speed or Sugar/and, is sufficient to determine the reasonableness of the
fee award independently of any lodestar analysis. Therefore, the arguments of counsel
concerning the lodestar method are irrelevant to the Court's determination of a reasonable fee in
this case.
Although not required to do so, the Court may use a lodestar analysis as a backstop to test
the reasonableness of a fee award. This crosscheck is calculated by multiplying the reasonable
number of hours worked on the case by reasonable hourly rates in the community to determine
the "lodestar." The fee amount is then divided by the lodestar to determine the multiplier. As
Professor Newberg has noted in common fund class action cases, "Generally, multipliers from 1-
21
For example, in Littlejohn v. State of South Carolina, 2002 WL 34454074 at 2-3 and n.2
(S.C. Com. Pl. April 23, 2002), aff'd sub nom. Condon v. State, 354 S.C. 634, 583 S.E.2d 430 (2003), the
circuit court did not perform a lodestar crosscheck, and specifically rejected the lodestar methodology for
determining a reasonable fee. The Supreme Court affirmed the fee award and methodology, finding the
circuit court's analysis of fees customarily charged in other cases "particularly persuasive." See also
Temporary Services, Inc. v. American International Group, Inc., 2012 WL 2370523, at *9 (D.S.C. 2012)
(factorial analysis, and lodestar not mentioned); Edwards v. SunCom, 2008 WL 4897935 (S.C. Ct. Com.
Pl. 2008) (no lodestar analysis conducted); see also Americas Mining, 51 A3d at 1252-54.
31
3 are the norm." Newberg on Class Actions 14.7. There are numerous cases nationally with
multipliers above six.
22
The same is true in Delaware (most notably Americas Mining, in which
the court affirmed an award implying a lodestar multiplier of 66) and in South Carolina.
23
In this case, Class/Derivative Counsel submitted detailed spreadsheets summarizing the
hours expended for each timekeeper at various hourly rates (e.g., standard rates for Nexsen Pruet
21
See, e.g., In re Merry-Go-Round Enters., Inc., 244 B.R. 327 (Bankr. D. Md. 2000) (19.6
multiplier); Stop & Shop Supermarket Co. v. SmithKline Beecham Corp., NO. CIV.A. 03-457, 2005 WL
1213926, at *17-18 (E.D. Pa. May 19, 2005) (15.6); In re Dora! Fin. Corp. Sec. Litig., No. 05-md-1706
(S.D.N.Y. July 17, 2007) (10.26); Weiss v. Mercedes-Benz, 899 F. Supp. 1297 (D. N.J. 1995), affd, 66
F.3d 314 (3d Cir. 1995) (9.3); Doty v. Costco Wholesale Corp., No. 05-3241 (C.D.Cal. May 14, 2007)
(9); Conley v. Sears, Roebuck & Co., 222 B.R. 181 (D. Mass. 1998) (8.9); Cosgrove v. Sullivan, 759 F.
Supp. 166, 167 n.1 (S.D. N.Y. 1991) (8.74); New England Carpenters Health Benefits Fund v. First
Databank, Inc., C.A. No. 05-11148-PBS, 2009 WL 2408560 (D. Mass. Aug. 3, 2009) (8.3); Newman v.
Caribiner Int'l, Inc., No. 99 Civ. 2271 (S.D. N.Y. Oct. 19, 2001) (7.7); Hainey v. Parrott, No. 02-733 (S.
D. Ohio Nov. 6, 2007) (7.47 effective multiplier); In re Rite Aid Corp. Sec. Litig., 362 F. Supp. 2d 587,
589 (E.D.Pa. 2005) (6.96); Steiner v. Am. Broad. Co., Inc., 248 Fed. Appx. 780, 783 (9th Cir. 2007)
(6.85); In re UnitedHealth Group, Inc. PSLRA Litig., No. 06-1691 (D. Minn. Aug. 10, 2009) (6.49); The
Music Force, LLC v. Viacom, Inc., No. 04-8239 (C.D. Cal. Aug. 8, 2007) (6.43); In re Boston & Maine
Corp. v. Sheehan, Phinney, Bass & Green, P.A., 778 F.2d 890 (1st Cir. 1985) (6.0); In re Cardinal Health
Inc. Sec. Litig., 528 F. Supp. 2d 752, 768 (S.D. Ohio 2007) (6.0); In re Krispy Kreme Doughnuts, Inc.
Sec. Litig., No. 04-416 (M.D. N.C. Feb. 15, 2007) (6.0); In re RJR Nabisco, Inc. Sec. Litig., No. 88 Civ.
7905(MBM), 1992 WL 210138, at *5-6 (S.D.N.Y. Aug. 14, 1992) (6.0); Spartanburg Reg'/ Health Servs.
Dist., Inc. v. Hillenbrand Indus., Inc., No. 03-2141 (D. S.C. Aug. 15, 2006) (6.0).
23
See, e.g., Fairey v. Exxon Corp., C.A. No. 94-CP-38-118 (S.C. Ct.Com.Pl. Oct. 9, 2003) (fee
award of 40% resulted in a multiple of 2.1 using hourly rates of $300); Cent. Wesleyan Col/. v. W.R.
Grace & Co., C.A. No. 2:87-1860-8 (D.S.C. Oct. 21, 2008) (4.0 multiplier at hourly rate of $650);
Spartanburg Reg'/ Health Servs. Dist., Inc. v. Hillenbrand Indus. Inc., C.A. No. 7:03-cv-02141-HFF
(D. S.C. Aug. 15, 2006) (multiplier slightly above 6.0 at $500 hourly rate); Americas Mining v. Theriault,
51 A.3d 1213 (Del. 2012) (66.0); Franklin Balance Sheet Inv. Fund v. Crowley, 2007 WL 2495018
(48.82); In re ACS S'holders Litig., Cons. C.A. No. 4940-VCP (Del. Ch. Aug. 24, 2010) (ORDER) and
Slip. of Settlement at 16 (Del. Ch. May 19, 2010) (2.31); In re American International Group, Inc.
Consolidated Deriv. Litig., C.A. No. 769-VCS (Del. Ch. Jan. 25, 2011) (2.22) (fee petition); In re Clear
Channel Outdoor Holdings, Inc. Derivative Litig., Cons. C.A. No. 7315-CS (Del. Ch. Aug. 19, 2013) (fee
petition) (10.5); In re Del Monte Foods S'holders Litig. Cons., 2011 WL 2535256) (4.67); In re Delphi
Financial Group S'holder Litig., Del. Ch., Cons. C.A. No. 7144-VCG (3.87); In re Digex, Inc. S'holder
Litig., C.A. No. 18336 (Del. Ch. Apr. 6, 2001) (TRANSCRIPT) (9.0); In reEl Paso Corp. S'holder Litig.,
Cons. C. A. No. 6949-CS (Del. Ch. Nov. 8, 2012) (Fee petition) (4.9); In re Genentech, Inc. Shareholders
Litig., Cons. C.A. No. 3911 (Del. Ch. July 9, 2009) (11.3); In re NewsCorp. S'holders Deriv. Litig., C.A.
No. 6285-VCN (Del. Ch. Jun. 26, 2013) (3.6); In re SkyTerra Commc'ns S'holder Litig, Consol., C.A.
No. 4987-VCN (Del. Ch. May 24, 2010) (TRANSCRIPT) (4.31); In re TD Banknorth S'holder Litig.,
Cons. C.A. No. 2557-VCL (Del. Ch. June 24, 2009) (ORDER) (4.43); Louisiana Municipal Police
Employees' Ret. Sys. v. Crawford, C.A. No. 2635 (Del. Ch. June 9, 2007) (ORDER) (6.5); Louisiana
Municipal Police Employees' Ret. Sys. v. Fertitta eta/., C.A. No. 2635 (Del. Ch. June 9, 2007) (ORDER)
(2.3); Teacher's Ret. Sys. v. Crawford, C.A. No. 2635-CC (Del. Ch. June 8, 2007) (6.5).
32
and Wilson Sonsini; premium rates for complex litigation for South Carolina counsel; and
various rates for Mr. Herlong because he did not have a traditional "standard" rate
24
). Different
blended hourly rates were derived based on the various hourly rate categories, as well as the
lodestar multipliers implied from those blended rates. Multiplying the number of attorney hours
spent in this case before the signing of the Memorandum of Understanding, 28,342, by the lowest
proposed blended rate for Class/Derivative Counsel ($359.43, which is the rate most favorable to
the SLC and Defendants) yields a lodestar of $10,186,965.06. At the total (class and derivative)
fee awarded here, $23,213,333.33, the lodestar multiplier would be 2.28, well within the
reasonable range set forth in Newberg's treatise and the cases noted above.
25
The SLC and Defendants do not contest the number of hours reported by
Class/Derivative Counsel, but argue that 20% of the total hours in these cases are not
compensable with respect to the Derivative Action. Class/Derivative Counsel did not bifi.Ircate
their time between the Class and Derivative Actions on the grounds that the factual issues and
legal theories substantially overlapped between the two cases.
26
24
The premium rates were supported by expert affidavits. See, e.g., Savani v. URS Professional
Solutions LLC, 2014 WL 172503, *8 (D. S.C. January 15, 2014) (approving hourly rates of $500 to $650
as proposed by Professor Freeman for complex litigation in South Carolina complex).
25
At the highest blended rate ($488.94) offered by Class Derivative Counsel, the lodestar
multiplier would be 1.675 ($488.94 x 28,342 hours = Lodestar of $13,857,537.48;
$23,213,333.33/13,857,537.48 = 1.675).
26
See, e.g., Layman v. State, 376 S.C. 434, 658 S.E.2d 320 (2008), where the Court held that no
deduction was required for the hours spent on a claim that had not been resolved, because in that case the
two claims in question were "virtually indistinguishable." Further, no deduction was required for issues
that were not prosecuted successfully. 376 S.C. at 459-60, 658 S.E.2d at 333-34. Here, the Court finds
that the class and derivative claims were based on the same operative facts, and further that the liability
theories were identical, and therefore no deduction in hours is necessary for a lodestar crosscheck.
33
Even though no deduction in hours is necessary here, multiplying the lowest blended rate
of Class/Derivative Counsel ($359.43)
27
by 80% of the total attorney hours in these cases yields
a multiplier of 2.44, which is still well within the range of reasonableness. Thus, even if the
Court were to check the fee award in the Derivative Action against a lodestar analysis that
employs the reductions in the number of hours proposed by the SLC and Defendants, the result
shows that the award in the Derivative Action is reasonable.
The SLC and the WLR Defendants also claimed that Layman limits the appropriate
lodestar multiplier to a range of l.15 to 1.33.
28
Layman, however, was a statutory fee-shifting
case that used the lodestar method to determine a reasonable fee, not as a backstop or crosscheck
to ensure that the fee determined by the percentage methodology is appropriate in comparison to
other common fund cases?
9
No South Carolina decision has set forth. any "appropriate lodestar
multiplier" range in common fund case, and, as noted, Delaware has no set range or limit.
Indeed, in Americas Mining the Delaware Supreme Court affirmed a fee award equal to 66 times
the lodestar.
In addition, the award is reasonable in terms of the implied effective hourly rate that has
been used by the Delaware Court of Chancery.
30
Most often the Delaware Court of Chancery
27
This blended rate is derived using Nexsen Pruet's standard rates, and using Mr. Burke's
standard rate for Mr. Herlong.
28
The SLC and the WLR Defendants do not claim that under Delaware law there is a similar
limitation in the acceptable range for a multiplier.
29
The Layman court noted that the selection of a multiplier in a fee-shifting case is a subjective
exercise using a trial and error method to derive what the Court might feel is a reasonable fee award. 376
S.C. at 461, 658 S.E.2d at 335 n. 9. In contrast, the determination of the lodestar multiplier in a common
fund case is purely a mathematical exercise (fee award divided by [reasonable rate X reasonable hours]=
multiplier), which is then used to compare to multipliers mathematically derived .in other cases.
30
Again, this type of analysis is not required under either South Carolina or Delaware law. See,
e.g, Americas Mining, 51 A. 3d at 1257 ("Sugar/and does not require, as the Defendants argue, courts to
use the hourly rate implied by a percentage fee award, rather than the benefit conferred, as the benchmark
for determining a reasonable fee award.").
performs this crosscheck by dividing the fee award by the number of attorney hours to determine
an effective hourly rate for the plaintiffs' counsel. See, e.g., Berger v. Pubco, 2010 WL 2573881
(Del. Ch. June 23, 2010) (noting effective hourly rate of$3,450 per hour, was "nestled within the
range of hourly rates found among Court of Chancery monetary-benefit cases.") Given the
Delaware Supreme Court's affirmance in Americas Mining of a fee award implying an effective
hourly rate of $35,000/hour, this backstop check is not an exacting standard. In this case, the
effective hourly rate of the class and derivative awards is $819/hour,
31
again well within the
range of reasonableness, and well below rates that have been awarded in representative actions in
both Delaware
32
and South Carolina.
33
As such, given the risks inherent in these cases, the fee
award is reasonable under this version of a backstop check.
The Court therefore finds that although a lodestar crosscheck is not required under either
South Carolina law or Delaware law, the fee award in the Derivative Action is reasonable based
on a lodestar crosscheck.
31
The effective rate is calculated by dividing the total fee award ($23,213,333) by the total
attorneys' hours (28,342) attorneys hours (before the MOU was signed). If hours through the signing of
the Stipulation are used, the effective rate goes down to $788.93/hour. Further, even if 20% of the hours
are deducted from the Derivative Action, as the Defendants argue, the implied effective hourly is only
$1 000.33-again, well within the range of effective rates that have been awarded by South Carolina and
Delaware Courts in representative actions. As noted, however, the Court finds a lodestar crosscheck is not
required, but even if a crosscheck is used, no deduction in hours is necessary. Layman, 376 S.C. at 459-
60, 658 S.E.2d at 333-34.
32
As noted by Class/Derivative Counsel, there are over thirty Delaware decisions awarding more
than $1,000/hour effective hourly rate in common fund cases. E.g., Americas Mining v. Theriault, 51
A.3d 1213 (Del. 2012) ($35,000); Franklin Balance Sheet Inv. Fund v. Crowley, 2007 WL 2495018
($4,023);In re AXA. Financial, Inc. S'holders Litig., 2002 WL 128367 ($2,630); In re El Paso Corp.
S'holder Litig., Cons. C.A. No. 6949-CS (Del. Ch. Nov. 8, 2012) (fee petition) ($2,538); In re Genentech,
Inc. Shareholders Litig., Cons. C.A. No. 3911 (Del. Ch. July 9, 2009) ($5,445); In re Metro Mobil CTS,
Inc. S'holders Litig., Cons. C.A. No. 12300 (Del. Ch. Aug. 18, 1993) ($4,000); In re
Telecommunications, Inc., C.A.16470 (Del. Ch. Feb. I, 2007) ($3,611); In re TD Banknorth S'holder
Litig., Cons. C.A. No. 2557-VCL (Del. Ch. June 24, 2009) (ORDER) ($2,274); Ryan v. Gifford, 2009 WL
18143 (Del. Ch. Jan. 2, 2009) ($1,221).
33
See, e.g., Cent. Wesleyan Col/. v. WR. Grace & Co., C.A. No. 2:87-1860-8 (D.S.C. Oct. 22,
2008) ($2,662/hour for 4,000 hours); Spartanburg Reg'/ Health Servs. Dist., Inc. v. Hillenbrand Indus.
Inc., 7:03-cv-02141-HFF (Spartanburg Div.) ($2,977/hour for39,347 hours) (Floyd, J.).
e. Incentive awards to class representative groups
In addition to the foregoing, Class/Derivative Counsel have sought approval of the
following incentive payments to each of the four class representative groups to compensate them
for their time, effort, and services on behalf of the Class as indicated in the class and derivative
notice: FURSA, $35,000; Ramius, $25,000; the Asiafs, $15,000; and Mrs. Marett, $15,000.
These payments would be in addition to the benefits to which they will be entitled to under the
Class Action settlement. The incentive payments would be paid out of the attorneys' fees
awarded by the Court for the Class Action. No shareholder or party has objected to these
incentive payments, and the Court finds that they are merited for the efforts put in by the class
representatives. Therefore, the Court approves the requested incentive payments to be made out
of the fee award to Class Counsel.
NOW, THEREFORE, it is hereby ORDERED:
1. This Order incorporates, by reference, the definitions of the Stipulation and all
terms used herein shall have the same meaning as set forth in the Stipulation.
2. The Court finally certifies the Class as follows:
all persons who were stockholders of Safety Components
International, Inc. ("SCI") as of the Merger of the old International
Textile Group, Inc. ("FITG") into SCI on October 20, 2006,
excluding Defendants and persons or entities affiliated with
Defendants, and excluding all persons who would otherwise be
members but whose damages do not exceed one hundred dollars-
i.e., all minority stockholders of [pre-merger] SCI (non-WLR
affiliated stockholders) with damages in excess of$100.
The only persons who fall within this Definition that are excluded from the Class are those
persons expressly defined as "Excluded Persons" in Paragraph 33.Z of the Stipulation. All other
persons within this Definition are Class Members.
3. This Court has jurisdiction over the Settled Claims, the claims asserted in the
Actions, and the claims covered by or encompassed in Paragraph 71 of the Stipulation; personal
36
jurisdiction over the Class and Class Members; and subject matter jurisdiction to approve the
Settlement.
4. The Court approves the Class Action Settlement as being fair, just, reasonable and
adequate to the Plaintiffs and the Class.
5. The Court approves the Derivative Action Settlement as being fair, just,
reasonable, and adequate to NITG and its shareholders.
6. The Court finds that the Notices mailed and published fully complied with the
provisions of the Court's Class Certification Order and/or Preliminary Approval Order and were
mailed and published exactly as required by those Orders.
7. The Court finds that the Notices provided to Class Members and NITG
shareholders fully satisfied the requirements of Rules 23(b)(l) and (c), SCRCP.
8. The Court finds that the Notices provided to the Class constitute the best
practicable notice to Class Members and more than satisfy the requirements of due process. The
Court finds that Class Members were given proper opportunity to request exclusion from the
Class and have been given appropriate opportunity to object to the Settlement, and the Court
further finds that the interests of the Class have been adequately represented by Plaintiffs and
Class/Derivative Counsel.
9. There having been no requests for exclusion from the Class and no objections to
the Settlement, effective immediately, the Released Persons are completely discharged,
dismissed with prejudice, and fully and finally released, concerning all claims, demands, rights,
actions or causes of action, liabilities, damages, losses, obligations, judgments, suits, fees,
expenses, costs, matters and issues of any kind or nature whatsoever, whether known or
unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, matured or
un-matured, that have been, could have been, or in the future can or might be asserted in the
Actions or in any court, tribunal, or proceeding (including, but not limited to, any claims arising
under federal or state statutory or common law relating to alleged fraud, fraudulent inducement,
breach of any duty, negligence, gross negligence, aiding and abetting breach of fiduciary duty,
violations of the federal securities laws or otherwise) by or on behalf of any of the Releasors,
whether individual, class, derivative, representative, legal, equitable or any other type or in any
other capacity against the Released Persons, whether or not any such Released Persons were
named, served with process, or appeared in the Actions, which have arisen, could have arisen,
arise now, or hereafter arise out of, or relate in any manner to, the allegations, facts, events,
transactions, matters, acts, occurrences, statements, representations, misrepresentations,
omissions, or any other matter, thing or cause whatsoever, or any series thereof, from the
beginning of time through the date of the entry of this Final Order and Judgment, that are
embraced, involved or set forth in, or referred to or otherwise related, directly or indirectly, in
any way to, the Actions, the subject matter of the Actions, or any conduct in any way related to
the Merger and alleged in any of the Record Materials; the Merger Agreement; all transactions
related to or allegedly triggered by the Merger, the Merger Agreement or the closing of the
Merger, including the post-Merger debt for equity swaps referenced in any of the Record
Materials, the closing of the mattress division referenced in any of Record Materials, the BST
transaction referenced in any of the Record Materials, and NITG's new credit facility referenced
in any of the Record Materials; the amount and type of consideration to be received in the
Merger; the negotiations preceding the Merger, and any and all events leading up to the Merger
including but not limited to any alleged acts or omissions by the SCI Stockholder Representative
as defined in the Merger Agreement, the waiver of any contract provisions, the formation of any
committees preliminary to or in connection with Merger negotiations, the RSM fairness opinion,
38
fur
any service or information RSM provided or failed to provide, the Exchange Ratio in the Merger,
and any work performed in valuing or advising concerning the value of FITG or SCI or in
evaluating, assessing, considering, advising about, or approving the merger in any manner or
capacity whatsoever; approval of the Merger or the Merger Agreement; the Merger Agreement
as described in the Preliminary Proxy Statement, the Amended Preliminary Proxy Statement, and
the Definitive Proxy Statement; the adequacy, accuracy, and completeness of disclosures made
in connection with the Merger as described in the Preliminary Proxy Statement, the Amended
Preliminary Proxy Statement, and the Definitive Proxy Statement; allowing the Merger
Agreement to be signed and announced and the Merger to close; and any claims related in any
way or seeking any relief or remedy of any kind whatsoever related to any harm caused by or in
any way related to the Merger and alleged in any of the Record Materials, including any
damages or other harm, from the beginning of time through the final approval by the Court of the
Settlement, referenced in any of the Record Materials (collectively, the "Settled Claims"). The
claims released, dismissed, and discharged under this paragraph do not include (a) any claims
based solely on conduct which occurs after the date of the entry of this Final Order and
Judgment, or (b) the right of any of the Plaintiffs or any other Parties hereto to enforce the terms
of the Settlement or Stipulation. This release covers and is binding upon all of the Releasors,
including without limitation Class Members who do not submit a timely and valid Proof of
Claim or who, for whatever reason, do not receive funds from the Class Action Settlement Fund.
I 0. Effective immediately, Brian P. Menezes is completely discharged, dismissed
with prejudice, and fully and finally released from and concerning all claims, demands, rights,
actions or causes of action, liabilities, damages, losses, obligations, judgments, suits, fees,
expenses, costs, matters and issues of any kind or nature whatsoever, whether known or
unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, matured or
un-matured, that have been, could have been, or in the future can or might be asserted in the
Actions or in any court, tribunal or proceeding (including, but not limited to, any claims relating
to breach of contract) by or on behalf of any of the Defendants against Brian P. Menezes which
have a r i s ~ n could have arisen, arise now or hereafter arise out of, or relate in any manner to the
allegations, facts, events, transactions, matters, acts, occurrences, statements, representations,
misrepresentations, omissions, or any other matter, thing or cause whatsoever, or any series
thereof, embraced, involved or set forth in, or referred to or otherwise related, directly or
indirectly, in any way to, the Actions or the subject matter of the Actions, and including without
limitation any claims in any way related to the Confidential Settlement Agreement and Release
of All Claims, a copy of which is attached to the "Answer, Defenses And Counterclaim Of WL
Ross & Co. LLC; Wilbur L. Ross, Jr.; Michael J. Gibbons; David H. Storper; David L. Wax;
Gary L. Smith; Joseph L. Gorga; Stephen B. Duerk; WLR Recovery Fund II, L.P.; WLR
Recovery Fund Ill, L.P.; WLR Recovery Associates II LLC; And WLR Recovery Associates III
LLC" dated October 25, 2011 (collectively, the "Menezes Claims"). The claims released,
dismissed, and discharged under this paragraph do not include (a) any claims based solely on
conduct which occurs after the date of the entry of this Final Order and Judgment, or (b) the right
of any of the Defendants or any other Parties hereto to enforce the terms of the Settlement or this
Stipulation.
11. Effective immediately, all of the provisions of Paragraph 71 of the Stipulation
shall be in full force and effect.
12. This Final Order and Judgment completely discharges, dismisses with prejudice,
and settles and fully and finally releases, effective immediately, any and all claims and
counterclaims in the Actions such that all such claims are forever barred.
13. Effective immediately, (i) Brian P. Menezes, Ramius Securities, LLC, Ramius
Credit Opportunities Master Fund Ltd., FURSA, Joseph Asiaf, Marilyn Asiaf, Juanita Marett, all
persons and entities named as a party plaintiff in any of the Actions, and all of the Class
Members and NITG are permanently and finally barred and enjoined from commencing,
prosecuting, instigating, or in any way participating in the commencement or prosecution of any
action alleging any of the Settled Claims against any of the Released Persons, (ii) Defendants are
permanently and finally barred and enjoined from commencing, prosecuting, instigating, or in
any way participating in the commencement or prosecution of any action alleging any of the
Menezes Claims against Brian Menezes; and (iii) the Non-RSM Defendant Releasors, RSM, the
SLC Releasors, and the NITG Releasors, are permanently _and finally barred and enjoined from
commencing, prosecuting, instigating, or any way participating in the commencement or
prosecution of any action alleging any claim released under Paragraph 71 of the Stipulation.
14. The Court grants Class/Derivative Counsel's application for a fee and expense
award in connection with the Class Action in the amount of $3,333,333.33 in fees, plus expenses
in the amount of $323,654.48, for a total of $3,656,987.81. The Court finds that this amount is
reasonable. This amount shall be paid from the Class Action Settlement Fund in accordance with
the Stipulation.
15. The Court grants in part Class/Derivative Counsel's application for fees and
expenses in connection with the Derivative Action. Class/Derivative Counsel is awarded
$19,880,000.00 in fees, plus expenses in the amount of $2,297,946.82, for a total of
$22,177,946.82 for their work on and costs incurred in the Derivative Action. The Court finds
that this amount is reasonable. This amount shall be paid from the Derivative Action Settlement
Cash Consideration in accordance with the Stipulation.
16. Incentive payments shall be paid to certain Plaintiffs, in their capacity as class
representatives, as follows: to FURSA, $35,000.00; to Ramius, $25,000; to Joseph Asiaf and
Marilyn AsiafQointly), $15,000; and to Juanita Marett, $15,000. These incentive payments shall
be paid by Class/Derivative Counsel from the award of attorneys' fees and expenses for the
Class Action.
17. Administration of the Settlement and payment of settlement proceeds to
Authorized Claimants shall be made in accordance with the Stipulation.
18. As agreed in the Stipulation (Paragraph 59), the Court finds: "None of the
Released Persons or their respective counsel shall have any responsibility for or liability
whatsoever with respect to (i) any act, omission or determination of Class/Derivative Counsel,
the Claims Administrator, or any of their respective designees or agents, in connection with the
administration of the Settlement or otherwise; (ii) the management, investment or distribution of
the Global Settlement Fund; (iii) the Plan of Class Action Settlement Distribution; (iv) the
determination, administration, calculation or payment of any claims asserted against the Global
Settlement Fund; (v) any losses suffered by, or fluctuations in the value of, the Global Settlement
Fund; (vi) the payment or withholding of any Taxes, expenses and/or costs incurred in
connection with the taxation of the earnings of the Global Settlement Fund or the filing of any
returns; or (vii) any tax consequences of any kind to any Releasor."
19. As provided in Paragraph 85 of the Stipulation: "Th[e] Stipulation represents a
compromise of disputed claims and is not, and shall not be construed as, an admission by any
Party hereto of any liability whatsoever, all liability being expressly denied. Further, th[ e]
Stipulation, and all prior communications leading up to it, shall not in any event constitute, be
construed as, be deemed to be evidence of, or concession, admission or statement against interest
by any Party of any liability, improper conduct, or wrongdoing whatsoever on the Parties'
respective parts. Th[e] Stipulation and the transactions contemplated [!]hereby, whether or not
consummated, shall not be used or offered by any Party as an admission or as evidence as to the
merit or lack of merit of any claim, position, defense, allegation, fact, or non-fact in any
pleading, motion, or other paper in any proceeding in this Court or any other court, provided,
however, that th[ e] Stipulation, the other Operative Documents and/or the Final Order and
Judgment may be introduced in any proceeding, whether in the Court or otherwise (but not after
a Settlement Termination Event), as may be necessary (i) to argue that this Stipulation, the other
Operative Documents and/or the Final Order and Judgment has res judicata, collateral estoppel
or other issue preclusion or claim preclusion effect, and (ii) to otherwise consummate or enforce
the Settlement, the Stipulation, the other Operative Documents and/or the Final Order and
Judgment, or (iii) to enforce the injunctions referenced in Paragraph[] 73 [of the Stipulation
(Paragraph 13 of this Order)]."
20. The Parties and their respective officers, directors, managers, managing members,
and general partners, and the Claims Administrator shall comply with and perform their
obligations under the Stipulation and any related Operative Documents.
21. The Stipulation in its entirety is incorporated by reference herein. No quotes from
or references to portions of the Stipulation in this Order shall be construed as limiting or
affecting in any way the effectiveness of any other portion of the Stipulation or of its
incorporation by reference herein.
22. The Court reserves jurisdiction, without affecting the finality of this Final Order
and Judgment, over:
(a) Implementation of the Settlement;
(b) Disposition of the Global Statement Fund;
(c) Enforcing and administering the Stipulation and the
43
Settlement; and
(d) Receiving and approving a final report from the Claims
Administrator regarding further administration and
implementation ofthe Settlement.
IT IS SO ORDERED.
44
D. Garrison Hill
Circuit Judge

2014-09-02 Final Order - in Re International Textile Merger Litigation

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2014-09-02 Final Order - in Re International Textile Merger Litigation

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STATE OF SOUTH CAROLINA JUDGMENT IN A CIVIL CASE

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