Opinion
1:16-cv-09727-JSR-DCF
08-10-2021
JON D. GRUBER, Individually And On Behalf Of All Others Similarly Situated, Plaintiff, v. RYAN R. GILBERTSON, et al., Defendants.
[PROPOSED] ORDER APPROVING NOTICE AND SUMMARY NOTICE OF PENDENCY OF CLASS ACTION
WILLIAM H. PAULEY, III, UNITED STATES DISTRICT JUDGE
WHEREAS, by Order dated September 17, 2019, the Court certified the above-captioned action (the “Action”) to proceed as a class action on behalf of a class consisting of all persons and entities who purchased or otherwise acquired Dakota Plains Holdings, Inc.'s (“Dakota Plains”) common stock during the period March 23, 2012 through August 16, 2016, inclusive (the “Class Period”) (the “Class”) and subclass consisting of all persons and entities who, during the Class Period, purchased Dakota Plains stock contemporaneously with sales of Dakota Plains stock by defendants Ryan R. Gilbertson and/or Michael L. Reger and/or any of their controlled custodians or nominees (the “Subclass”);
All members of the Subclass are also members of the Class.
WHEREAS, Defendants sought to immediately appeal the class certification order, and on February 12, 2020, the Second Circuit Court of Appeals denied Defendants' petition to appeal;
WHEREAS by its Order dated June 17, 2021, the Court denied defendants' motion for decertification;
WHEREAS, Plaintiff Jon D. Gruber (the “Class Representative”) has requested that the Court, pursuant to Rule 23 of the Federal Rules of Civil Procedure, enter an Order approving the proposed form and content of notices to be disseminated to the Class, and approving the proposed method for dissemination of these notices;
WHEREAS, Defendants do not oppose entry of such an Order; and
WHEREAS, the Court has reviewed the proposed notices submitted by the Class Representative, and has found good cause for entering the following Order.
NOW, THEREFORE, IT IS HEREBY ORDERED that:
1. This Court modifies the definition of the certified Class to exclude from the Class and Subclass (i) any Defendant in this Action; (ii) the officers and directors of Dakota Plains at all relevant times; (iii) members of the immediate families of the Defendants in this Action; (iv) any entity in which Defendants have or had a controlling interest; and (v) the legal representatives, heirs, successors, or assigns of any such excluded party.
2. The Court approves the form, substance and requirements of the Notice of Pendency of Class Action (the “Notice”) and the Summary Notice of Pendency of Class Action (the “Summary Notice” and together with the Notice, the “Notices”) attached hereto as Ex. A and B, respectively.
3. The proposed form and content of the Notice meet the requirements of Rule 23(c)(2)(B), as the Notice clearly and concisely states in plain and easily understood language the nature of the Action, the definition of the Class certified, the Class's claims, and defenses asserted thereto, that a Class Member may enter an appearance through an attorney if the member so desires, Class Members' right to request exclusion from the Class, the time and manner for requesting exclusion, and the binding effect of a judgment on Class Members under Federal Rule of Civil Procedure 23(c)(3). The Notices and the method and schedule set forth below for notifying the Class of the pendency of the Action as a class action meet the requirements of Rule 23 and due process, constitute the best notice practicable under the circumstances, and shall constitute due and sufficient notice to all persons and entities entitled thereto.
4. The Court approves the retention of Angeion Group as the Administrator.
5. No later than ten (10) business days after entry of this Order, Plaintiff shall provide or cause to be provided to the Administrator, in electronic form (at no cost to Class Representative, Class Counsel, or the Administrator), Dakota Plains' shareholder records (consisting of the shareholder names and addresses) previously obtained in the bankruptcy proceeding and by subpoena to Dakota Plains' stock transfer agent, identifying all record holders of Dakota Plains' common stock at any time during the Class Period.
6. The Administrator shall cause the Notice, substantially in the form attached hereto as Exhibit A, to be mailed, by first-class mail, postage prepaid, no later than thirty (30) days from entry of this Order (the “Notice Date”), to potential Class Members at the addresses set forth in the records provided by Plaintiff pursuant to paragraph 5 above, or who may otherwise be identified with reasonable effort. The Administrator shall use reasonable efforts to give notice to nominee purchasers such as brokerage firms and other persons and entities who purchased or otherwise acquired Dakota Plains' common stock during the Class Period. Such nominees shall either (i) within seven (7) calendar days of receipt of the Notice, request from the Administrator sufficient copies of the Notice to forward to all such beneficial owners and within seven (7) calendar days of receipt of those Notices forward them to all such beneficial owners; or (ii) within seven (7) calendar days of receipt of the Notice, provide a list of the names and addresses of all such beneficial owners to the Administrator and the Administrator shall send the Notice promptly to such identified beneficial owners. Nominees who elect to send the Notice to their beneficial owners shall send a statement to the Administrator confirming that the mailing was made and shall retain their mailing records for use in connection with any further notices that may be provided in the Action. Upon full and timely compliance with these directions, such nominees may seek reimbursement of their reasonable expenses actually incurred by providing the Administrator with proper documentation supporting the expenses for which reimbursement is sought.
7. Contemporaneously with the mailing of the Notice, the Administrator shall cause a copy of the Notice to be posted on the website designated for the Action, www.dakotaplainssecuritieslitigation.com, from which Class Members may download copies of the Notice.
8. The Administrator shall cause a copy of the Summary Notice, substantially in the form attached hereto as Exhibit B, to be published in The Wall Street Journal and Minneapolis Star Tribune, no later than thirty (30) days after the Notice Date.
9. Class Members shall be bound by all determinations and judgments in this Action, whether favorable or unfavorable, unless such persons or entities request exclusion from the Class in a timely and proper manner, as hereinafter provided. A Class Member wishing to make such a request shall mail the request in written form by first-class mail, postmarked no later than forty-five (45) days after the Notice Date (the “Exclusion Date”), to the address designated in the Notice. Such request for exclusion shall clearly state that the Class Member “request[s] exclusion from the Class in Gruber v. Gilbertson, et al., Civil Action No. 1:16-cv-09727-JSR” and must: (i) state the name, address and telephone number of the person or entity requesting exclusion, and, in the case of entities, the name and telephone number of the appropriate contact person; (ii) state the number of shares of Dakota Plains' common stock that the person or entity requesting exclusion purchased/acquired and/or sold during the Class Period (i.e., between March 23, 2012 and August 16, 2016, inclusive), as well as the dates and prices of each such purchase/acquisition and sale; and (iii) be signed by the person or entity requesting exclusion or an authorized representative, accompanied by proof of authorization. The request for exclusion shall not be effective unless it provides the required information and is made within the time stated above, or the exclusion is otherwise accepted by the Court.
10. Any Class Member who retains separate counsel in connection with this matter must enter an appearance pursuant to Rule 23(c)(2) of the Federal Rules of Civil Procedure, as set out in the Notice, no later than the Exclusion Date.
11. No later than fifteen (15) business days after the Exclusion Date, Class Counsel shall file an affidavit or declaration with the Court providing proof of mailing of the Notice and publication of the Summary Notice and setting forth a list of all persons and entities who have requested exclusion from the Class.
12. This Order may be modified by the Court upon motion by either or both parties, for good cause shown.
SO ORDERED.
(EXHIBIT A OMITTED)