in re barrick gold securities litigation 13-cv-03851...

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

In re BARRICK GOLD SECURITIES LITIGATION

This Document Relates To:

ALL ACTIONS.

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC#: ______ _

DATE FILED: \~f :l fl'-

Civil Action No. 1: 13-cv-03851-RMB

FINAL JUDGMENT APPROVING CLASS ACTION SETTLEMENT

WHEREAS, LR! Invest S.A. and Union Asset Management Holding AG (collectively,

"Lead Plaintiffs"), on behalf of themselves and the members of the Class, and Defendant Barrick

Gold Corporation ("Barrick") and the Individual Defendants (collectively "Defendants" and,

together with Lead Plaintiffs, the "Parties"), entered into an Amended Stipulation of Settlement

between Lead Plaintiffs and Defendants dated as of June 9, 2016 and attached hereto as Exhibit A

(the "Stipulation"), that provides for a complete dismissal with prejudice of the claims asserted in

the above-captioned action (the "Action") against all Defendants on the terms and conditions set

fmih in the Stipulation, subject to the approval of this Court (the "Settlement");

WHEREAS, unless otherwise defined in this Judgment, the capitalized terms herein shall

have the same meaning as they have in the Stipulation;

WHEREAS, by Order dated June 15, 2016 (the "Preliminary Approval Order"), this Comi

(Berman, J.) (a) preliminarily approved the Settlement and certified a Class solely for purposes of

effectuating this Settlement; (b) ordered that notice of the proposed Settlement be provided to

potential Class Members; ( c) provided Class Members with the oppmiunity either to exclude

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Case 1:13-cv-05437-RMB Document 21 Filed 12/02/16 of 50

themselves from or object to the proposed Settlement; and ( d) scheduled a hearing regarding final

approval of the Settlement; 1

WHEREAS, due and adequate notice has been given to the Class by the Claims

Administrator;

WHEREAS, the Court conducted a hearing on October 18, 2016, to consider, among other

things: (i) whether the terms and conditions of the Settlement are fair, reasonable and adequate

and should therefore be approved; and (ii) whether a judgment should be entered dismissing the

Action with prejudice as against the Defendants;

WHEREAS, the Court having reviewed and considered the Stipulation, the record herein,

including the briefs of the parties, and oral and written comments received regarding the proposed

Settlement, and good cause appearing therefor;

NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

1. Jurisdiction: The Comi has jurisdiction over the subject matter of the Action, and

all matters relating to the Settlement, as well as personal jurisdiction over all of the Patiies and

each of the Class Members.

2. Incorporation of the Stipulation: This Judgment incorporates and makes a part

hereof the Stipulation of Settlement, attached hereto as Exhibit A.

3. Class Findings: With respect to the Class set forth below, this Court finds only

for the purpose of effectuating this Settlement and only as pe1iains to the claims asse1ied against

Barrick and the Individual Defendants by Lead Plaintiffs and the Class that the prerequisites for a

class action under Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure have been

1 Prior to the assignment of this action to this Comi, it was assigned to the late Honorable Judge Robert Patterson, and then to the Honorable Judge Shira Scheindlin.

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satisfied in that: (a) the members of the class are so numerous that their joinder would be

impracticable; (b) there are questions of law and fact common to the Class which predominate

over any individual questions; ( c) the claims of Lead Plaintiffs in the Action are typical of the

claims of the Class; (d) Lead Plaintiffs and Lead Counsel have "fairly and adequately protect[ed]

the interests of the class," Fed. R. Civ. P. 23(a)(4); and (e) a class action is superior to other

available methods for the fair and efficient adjudication of the controversy.

4. Final Class Certification: Pursuant to Rule 23 of the Federal Rules of Civil

Procedure, the Court hereby finally certifies, solely for the purpose of effectuating this Settlement,

a class of all persons and entities who purchased Barrick common stock on the New York Stock

Exchange from May 7, 2009, through November I, 2013, inclusive (the "Class Period"), and who

were damaged thereby. Excluded from the Class are: (i) Defendants; (ii) members of the

immediate families of the Individual Defendants; (iii) all subsidiaries and affiliates of Defendants,

including Barrick's employee retirement and benefit plans; (iv) any person who was a Barrick

director or officer during the Class Period, as well as their liability insurance carriers, assigns, or

subsidiaries thereof; (v) any entity in which any Defendant has a controlling interest; and (vi) the

legal representatives, heirs, successors, and assigns of any such excluded person or entity. Also

excluded from the Class are any putative Class Members who have excluded themselves by filing

a request for exclusion in accordance with the requirements set forth in the Notice, including those

persons listed in Exhibit B attached hereto.

5. Adequacy of Representation: Lead Plaintiffs and Lead Counsel appear to have

fully and adequately represented the Class for purposes of entering into and implementing the

Settlement and have satisfied the requirements of Federal Rules of Civil Procedure 23(a)(4) and

23(g). Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for purposes of the

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Settlement only, Lead Plaintiffs are certified as Class Representatives and Lead Counsel 1s

certified as Class Counsel.

6. Settlement Notice:

The Court finds that the distribution of the Notice and the Summary Notice:

a. were implemented in accordance with the Preliminary Approval Order;

b. constituted the "best notice [to class members] that [wa]s practicable under

the circumstances," Fed. R. Civ. P. 23(c)(2)(B);

c. was reasonably calculated under the circumstances to appnse Class

Members of (i) the pendency of the Action; (ii) the effect of the proposed Settlement; and (iii) their

right to object to any aspect of the proposed Settlement, exclude themselves from the Class, and/or

appear at the Settlement Hearing; and

d. satisfied the requirements of Rule 23 of the Federal Rules of Civil

Procedure.

The Comt has carefully reviewed the objections of Edward F. Siegel; James

Leonard Eisman on behalf of himself, his wife, and the Jesus Christ's Army Church; Elinor White;

and Ann M. Kirk, each of whom contend that Class Counsel's request for legal fees of$35,000,000

is excessive. (See Hughes Deel., filed Sept. 30, 2016, Ex. 2.) As explained in the Comt's fee

analysis in Exhibit C attached hereto, the Comt agrees with these objectors that some reduction in

fees is warranted.

7. Final Settlement Approval and Dismissal of Claims: Pursuant to, and in

accordance with, Rule 23 of the Federal Rules of Civil Procedure, this Court hereby approves the

Settlement set forth in the Stipulation and finds that the Settlement is fair, reasonable and adequate,

and appears to be in the best interests of Lead Plaintiffs and the other Class Members. The Paities

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are directed forthwith to implement, perform, and consummate the Settlement in accordance with

the terms and provisions contained in the Stipulation.

8. Dismissal with Prejudice: The Action and all of the claims against Defendants by

Lead Plaintiffs and the other Class Members are hereby dismissed with prejudice subject to the

Paiiies' compliance with the direction in Paragraph 7 supra to implement the Settlement fo1ihwith.

The Parties shall bear their own costs and expenses, except as otherwise expressly provided in the

Stipulation.

9. Binding Effect: The terms of the Stipulation and of this Judgment shall be binding

on Lead Plaintiffs and all other Class Members, as well as their respective heirs, executors,

administrators, predecessors, successors, affiliates, and assigns.

10. Releases: The releases as set fmih in paragraph 4 of the Stipulation, together with

the definitions contained in paragraph 1 of the Stipulation relating thereto, are expressly

incorporated herein in all respects. Accordingly, this Court orders that:

a. Pursuant to this Judgment, without further action by anyone, upon the

Effective Date of the Settlement, Lead Plaintiffs and each of the other Class Members (whether or

not such person submitted a Claim Form), on behalf of themselves, and their respective heirs,

executors, administrators, predecessors, successors, affiliates, agents, attorneys, representatives,

and assigns in their capacities as such, shall be deemed to have, and by operation of law and of

this Judgment shall have, fully, and finally compromised, settled, released, resolved, relinquished,

waived and discharged each and every Settled Claim (including, without limitation, any Unknown

Claims) against any and all of the Defendants and any and all of the other Released Persons, and

shall be barred and enjoined from prosecuting any and all of the Settled Claims against any and all

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of the Defendants and Released Persons, subject to the Parties' compliance with the direction in

Paragraph 7 supra to implement the Settlement forthwith.

b. Pursuant to this Judgment, without further action by anyone, upon the

Effective Date of the Settlement, Defendants, on behalf of themselves, and their respective heirs,

executors, administrators, predecessors, successors, affiliates, agents, attorneys, representatives,

and assigns in their capacities as such, shall be deemed to have, and by operation of law and of

this Judgment shall have, fully, and finally compromised, settled, released, resolved, relinquished,

waived and discharged each and every Released Defendants' Claims (including, without

limitation, any Unknown Claims), and shall be barred and enjoined from prosecuting any or all of

the Released Defendants' Claims, subject to the Parties' compliance with the direction in

Paragraph 7 supra to implement the Settlement forthwith.

c. Notwithstanding the foregoing, nothing in paragraphs IO(a) and IO(b)

above shall bar any action or claim to enforce the terms of the Stipulation or this Judgment.

d. The foregoing Releases shall not apply to any person or entity who or which

is excluded from the Class in Paragraph 11 infra.

11. Exclusions: All Persons whose names appear on the attached Exhibit B are hereby

excluded from the Class, are not bound by this Judgment, and may not make any claim with respect

to, or receive any benefit from, the Settlement.

12. Bar Order: In accordance with 15 U.S.C. § 78u-4(f)(7)(A), this Order "shall bar

all future claims for contribution arising out of the action--(i) by any person against the

[Defendants]; and (ii) by the [Defendants] against any person, other than a person whose liability

has been extinguished by the settlement of the [Defendants]."

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13. Enforcement of Stipnlation or Jndgment: Notwithstanding anything to the

contrary herein, nothing in the Stipulation or this Judgment shall bar any action by any of the

Parties to enforce or effectuate the terms of the Stipulation or this Judgment.

14. No Admissions: Neither the Stipulation, including the exhibits thereto, nor any

Court proceedings taken pursuant to or in connection with the Stipulation and/or approval of the

Settlement:

a. shall be offered against any of the Defendants or Released Persons as

evidence of, or construed as, or deemed to be evidence of any presumption, concession, or

admission by any of the Defendants or Released Persons with respect to the truth of any fact

alleged by Lead Plaintiffs or the validity of any claim that was or could have been asserted or the

deficiency of any defense that has been or could have been asserted in the Action or in any other

litigation, or of any liability, negligence, fault, or other wrongdoing of any kind of any of the

Defendants or Released Persons, other than such proceedings as may be necessary to effectuate

the provisions of the Stipulation;

b. shall be offered against any of the Lead Plaintiffs or Class Members as

evidence of, or cons!tued as, or deemed to be evidence of any presumption, concession or

admission by any of the Lead Plaintiffs or Class Members that any of their claims are without

merit, that any of the Defendants or Released Persons had meritorious defenses, or that damages

recoverable under the Complaint would not have exceeded the Settlement Amount or with respect

to any liability, negligence, fault or wrongdoing of any kind, other than such proceedings as may

be necessary to effectuate the provisions of the Stipulation;

c. shall be construed against any of the Defendants, Released Persons, Lead

Plaintiffs, or Class Members as an admission, concession, or presumption that the consideration

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to be given hereunder represents the amount that could be or would have been recovered after trial;

provided, however, that Defendants, Released Persons, Lead Plaintiffs, or Class Members and

their respective counsel may refer to the Stipulation to effectuate the protections from liability

granted hereunder or otherwise to enforce the terms of the Stipulation; and provided further that

nothing herein shall limit the materials or evidence that may be offered or refened to by Defendant

or Released Person in disputes, actions, or proceedings arising between any Defendant or Released

Person and any insurer.

15. Retention of Jurisdiction: Without affecting the finality of this Judgment in any

way, this Court retains continuing and exclusive jurisdiction over: (a) the Paities and Class

Members for purposes of the administration, interpretation, implementation, and enforcement of

the Settlement; and (b) the disposition of the Settlement Fund.

16. Termination: If the Effective Date does not occur or the Settlement is terminated

as provided in the Stipulation, then this Judgment (and any orders of the Court relating to the

Settlement) shall, upon approval by the Court, be vacated, rendered null and void, and be of no

further force or effect, except as otherwise provided by the Stipulation. Within five (5) business

days after joint written notification of termination is sent by Defendants' Counsel and Lead

Com1sel to the Escrow Agent, upon approval by the Cou1t, the Settlement Fund (including accrued

interest thereon and MY funds received by Lead Plaintiffs' Counsel consistent with the

Stipulation), less MY expenses and any costs approved by the Comt that have either been disbursed

or incurred and chargeable to Notice and Administration Costs, and less any Taxes paid or due or

owing, shall be refunded by the Escrow Agent to Banick and its insurers (in propmtion to the

amount contributed by each), following Court approval. In the event that any funds received by

any of Lead Plaintiffs' Counsel have not been refunded or repaid (as provided for by the

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Stipulation) within the five (5) business days specified in the second sentence of this paragraph,

and are thereafter refunded or repaid to the Escrow Account, those funds shall, upon approval by

the Court, be refunded or repaid by the Escrow Agent to Barrick and its insurers (in proportion to

the amount contributed by each) upon any deposit of such funds into the Escrow Account.

17. Entry of Final Judgment: The Clerk of the Court is directed pursuant to Rule

54(b) of the Federal Rules of Civil Procedure to immediately enter final judgment in this Action.

18. Attorneys' Fees and Expenses: The Court hereby awards Class Counsel fees of

$25,200,000, which amount to 18% of the Settlement Fund. See Exhibit C hereto for an

explanation of this fee award pursuant to the factors set forth in Goldberger v. Integrated

Resources, Inc., 209 F.3d 43 (2d Cir. 2000). The Court hereby awards expenses in the amount of

$981,296.48. Attorneys' fees and expenses are not to be paid to Class Counsel until at least 80%

of the Settlement Fund has been distributed (i.e. checks have been mailed) to the Class.

19. Claims Administrator's Fees and Expenses: The Coutt authorizes up to $3

million of the funds in the Settlement Fund to be set aside for the Claims Administrator's

anticipated fees and expenses. See Exhibit C hereto. Fees and expenses are not to be paid to the

Claims Administrator until at least 80% of the Settlement Fund has been distributed (i.e. checks

have been mailed) to the Class, at which time they will be reviewed and approved by the Court.

SO ORDERED this 2nd day of December 2016.

THE HONORABLE RICHARD M. BERMAN UNITED STATES DISTRICT COURT JUDGE

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Case 1:13-cv-03851-RMB Document 167-1 Filed 06/09/16 Page 2 of 81

ln re BARlUCK GOLD SECURITIES LITIGATION

Exhibit A

x

AMENDED STIPULATION OF SETTLEMENT



This Amended Stipulation of Settlement, dated June 9, 2016 (the "Amended Stipulation"),

is made and entered into by and among: (i) lead plaintiffs LR! Invest S.A. and Union Asset

Management Holding AG ("Lead Plaintiffs") (on behalf of themselves and each of the class

members), by and thrnugh their counsel of record in the litigation; and (ii) Barrick Gold

Corporation ("Barrick" or the "Company"), Aal'On W. Regent, Jamie C. Sokalsky, Ammar Al

Joundi, Peter Kinver, Igor Gonzales, George Potter, and Sybil E. Veenman (the "Individual

Defendants," and with Barrick, the "Defendants"), by and through their counsel of record. The

Lead Plaintiffs and the Defendants are referred to as the "Settling Pa11ies." The Amended

Stipulation is intended to fully, finally, and forever resolve, discharge, and settle the released

claims, subject to the approval of the Court and the terms and conditions set forth in this Amended

Stipulation (the "Settlement").

I. THE LITIGATION

The litigation is pending before the Honorable Richard A. Berman in the United States

District Court for the Southern District of New York (the "Court"). The initial complaint in this

action was filed on June 5, 2013. On September 20, 2013, the Court entered an order appointing

Lead Plaintiffs. On December 12, 2013, Lead Plaintiffs filed the operative Consolidated Amended

Class Action Complaint (the "Complaint") alleging violations of§§ IO(b) and 20(a) of the

Secul'ities Exchange Act of 1934 against the Defendants. Defendants moved to dismiss the

Complaint on February 11, 20 l 4. Lead Plaintiffs filed their opposition to the molion on March

25, 2014. Defendants filed their reply brlefon April 22, 2014. The Court held oral argument on

the motion on September 5, 2014. On April I, 2015, the Com1 issued an Order granting in part

and denying in part Defendants' motion to dismiss.

On April 15, 2015, Defendants tiled a Motion for Reconsideration of the Order, and

Defendant Veenman filed a Motion to Certify the Order for Appeal Pursuant to 28 U.S.C.

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§ 1292(b). On May 1, 2015, Lead Plaintiffs filed oppositions to both motions. The Court denied

both of these motions on June 2, 2015.

On May 15, 2015, Barrick answered the Complaint.

On November 30, 2015, Lead Plaintiffs filed a Motion for Class Ceitification, Appointment

of Class Representatives, and Appointment of Class Counsel (the "Motion for Class

Certification"). On December 21, 2015, Defendants filed an opposition to the Motion for Class

Cettification. On January 15, 2016, Lead Plaintiffs filed a Reply Memorandum of Law in Further

Support of Lead Plaintiffs' Motion for Class Cettification, Appointment of Class Representatives,

and Appointment of Class Counsel. On March 23, 2016, the Court granted the Motion for Class

Certification.

In an effort to conserve judicial resources and attempt to settle the litigation, while

simultaneously continuing to litigate the action through discovery, the parties engaged the services

of the Hon. Layn R. Phillips (Ret.), a mediator. The parties prepared detailed mediation statements

and presentations and engaged in foll-day in-person mediation sessions with Judge Phillips on July

31, 2015, November 3, 2015, and April 16, 2016. These efforts culminated with the patties

agreeing to settle the litigation for $140,000,000, subject to the negotiation of the terms of a

Stipulation of Settlement and approval by the Court.

II. DEFENDANTS' DENIALS OF WRONGDOING AND LIABILITY

Defendants have denied, and continue to deny, that they have committed any act or

omission giving rise to any liability or violation of law. Specifically, Defendants expressly have

denied, and continue to deny, each and all of the claims alleged by Lead Plaintiffs in the litigation,

along with all the charges of wrongdoing or liability against them arising out of any of the conduct,

statements, acts, or omissions alleged, or that could have been alleged, in the litigation. Defendants

also have denied, and continue to deny, among other allegations, the allegations that Lead Plaintiffs

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or the class have suffered any damage, or that Lead Plaintiffs or the class were harmed by the

conduct alleged in the litigation or that could have been alleged as part of the litigation. Defendants

have asserted, and continue to assert, that their conduct was at all times pl'Oper and in compliance

with all applicable provisions of law, and believe that the evidence developed to date supports their

position that they acted properly at all times and that the litigation is without merit. In addition,

Defendants maintain that they have meritorious defenses to all claims alleged in the litigation.

As set forth below, neither this Settlement nor any of the terms of this Amended Stipulation

shall constitute an admission or finding of any fault, liability, wrongdoing, or damage whatsoever

or any infirmity in the defenses that Defendants have, or could have, asserted. Defendants are

entering into this Amended Stipulation solely to eliminate the burden and expense of further

litigation. Defendants have determined that it is desirable and beneficial to them that the litigation

be settled in the manner and upon the terms and conditions set forth in this Amended Stipulation.

III. LEAD PLAINTIFFS' CLAIMS AND THE BENEFITS OF SETTLEMENT

Lead Plaintiffs believe that the claims asserted in the litigation have merit and that the

evidence developed to date suppotts their claims. However, Lead Plaintiffs and their counsel

recognize and acknowledge the expense and length of continued proceedings necessary to

prosecute the litigation against Defendants through trial and through appeals, Lead Plaintiffs and

their counsel also have taken into account the uncertain outcome and the risk of any litigation,

especially in complex actions such as this litigation, as well as the difficulties and delays inherent

in such litigation. Lead Plaintiffs and their counsel also are mindful of the inherent problems of

proof under and possible defenses to the securities law violations asserted in the litigation. Lead

Plaintiffs and their counsel believe that the Selllement set forth in this Amended Stipulation

confers substantial benefits upon the class. Based on their evaluation, Lead Plaintiffs and their



counsel have determined that the Settlement set forth in this Stipulation is in the best interests of

Lead Plaintiffs and the class.

IV. TERMS OF THE STIPULATION AND AGREEMENT OF SETTLEMENT

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among

Lead Plaintiffs (for themselves and the class members) and Defendants, by and through their

counsel or attorneys of record, that, subject to the approval of the Court pursuant to Rule 23(e) of

the Federal Rules of Civil Procedure, the litigation and the released claims shall be finally and

fully compromised, settled, and released, and the litigation shall be dismissed with prejudice, as

to all Settling Parties, upon and subject to the terms and conditions of this Stipulation, as follows.

1. Definitions

As used in this Stipulation the following terms have the meanings specified below:

1.1 "Authorized Claimant" means any class member whose claim for recovery has

been allowed pursuant to the terms of this Amended Stipulation.

1.2 "Claims Administrator" means the firm of The Garden City Group, LLC.

1.3 "Class" means all Persons (defined below) who purchased Barrick publicly traded

common stock on the New York Stock Exchange from May 7, 2009, through and including

November 1, 2013. Excluded from the Class are: (i) Defendants; (ii) members of the immediate

families of the Individual Defendants; (iii) all subsidiaries and affiliates of Defendants, including

Barrick's employee retirement and benefit plans; (iv) any person who was a Barrick director or

officer during the Class Period, as well as their liability insurance carriers, assigns, or

subsidiaries thereof; (v) any entity in which any defendant has a controlling interest; and (vi) the

legal representatives, heirs, successors, or assigns of any excluded party. Also excluded from the

Class is any Class Member that validly and timely requests exclusion in accordance with the

requirements set by the Court.

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1.4 "Class Member" or "Member of the Class" mean a Person who falls within the

definition of the Class as set forth in if 1.3 above.

1.5 "Class Period" means the period from May 7, 2009, through November 1, 2013,

inclusive.

1.6 "Defendants" means Barrick and the Individual Defendants.

I. 7 "Effective Date," or the date upon which this Settlement becomes "effective,"

means three (3) business days after the date by which all of the events and conditions specified in

if 7.1 of this Amended Stipulation have been met and have occurred.

1.8

below).

1.9

"Escrow Account" means the account controlled by the Escrow Agent (defined

"Escrow Agent" means Huntington Bank. The rights and t·esponsibilities of the

Escrow Agent shall not be assigned except upon reasonable notice to, and with written consent of,

Defendants and approval of the Court.

1.10 "Final" means when the last of the following with respect to the judgment

approving this Amended Stipulation, substantially in the form of Exhibit B attached hereto

("Judgment"), shall occur: (i) the expiration of the time to file a motion to alter or amend the

Judgment under Federal Rule of Civil Procedure 59(e) without any such motion having been filed;

(ii) the time in which to appeal the Judgment has passed without any appeal having been taken;

and (iii) if a motion to alter or amend is filed or if an appeal is taken, immediately after the

determination of that motion or appeal so that it is no longer subject to any further judicial review

or appeal whatsoever, whether by reason of affirmance by a court of last resort, lapse of time,

voluntary dismissal of the appeal or otherwise in such a manner as to permit the consummation of

the Settlement, substantially in accordance with the terms and conditions of this Amended

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Stipulation. For purposes of this paragraph, an "appeal" shall include any petition fo1· a writ of

certiorari or other writ that may be filed in connection with appmval or disapproval of this

Settlement. Any appeal or proceeding seeking subsequent judicial review pe1taining solely to

attorneys' fees and expenses, the plan of allocation, or the procedures for determining Authorized

Claimants' recognized claims shall not in any way delay or affect the time set fo1th above for the

Judgment to become Final, or otherwise preclude the Judgment from becoming Final.

1.11 "Individual Defendants" means Aaron W. Regent, Jamie C. Sokalsky, Ammar Al-

Joundi, Peter Kinver, Igor Gonzales, George Potter, and Sybil E. Veenman.

1.12 "Judgment" means the Final Judgment and Order of Dismissal with Prejudice to be

rendered by the Cou1t, substantially in the form attached hereto as Exhibit B.

l. l 3 "Lead Counsel" means Motley Rice LLC.

1.14 "Lead Plaintiffs" means LR! Invest S.A. and Union Asset Management Holding

AG.

1.15 "Lead Plaintiffs' Counsel" means any attorney or firm who has appeared in the

litigation on behalfofLead Plaintiffs.

l .16 "Liaison Counsel" means Labaton Sucharow LLP.

l .17 "Litigation" means the action captioned In re Barrick Gold Securities Litigation,

Case No. 13 Civ. 3851 (RMB).

1.18 "Net Settlement Fund" means the Settlement Fund (defined below) less: (i) any

Court-awarded attorneys' fees, costs, expenses, and interest thereon; (ii) Notice and

Administration Expenses (defined below); (iii) Taxes and Tax Expenses (defined below); and

(iv) other Court-approved deductions.

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Case 1:13-cv-03851-RMB Document 167-1 Filed 06/09/16 Page g of 81

l.19 "Person" means an individual, corporation, partnership, limited partnership,

association, joint stock company, estate, legal representative, trust, unincorporated association,

government or any political subdivision or agency thereot; and any business or legal entity and

their spouses, heirs, predecessors, successors, representatives, or assignees.

1.20 "Plan of Allocation" means a plan or formula of allocation of the Net Settlement

Fund whereby the Net Settlement Fund shall be distributed to Authorized Claimants. Any plan of

allocation is not part of the Amended Stipulation and neither Defendants nor their Related Pa1ties

(as defined below) shall have any responsibility or liability with respect thereto.

l.21 "Proof of Claim and Release" or "Claim Form" means the Proof of Claim and

Release form for submitting a claim, which, subject to approval of the Cou1t, shall be substantially

in the form attached hereto as Exhibit A-2.

1.22 "Related Pa1ties" means each of a Defendant's respective former, present or future

parents, subsidiaries, divisions and affiliates and the respective present and former employees,

members, partners, principals, officers, directors, controlling shareholders, attorneys, advisors,

accountants, auditors, and insurers of each of them; and the predecessors, successors, estates,

spouses, heirs, executorn, trusts, trustees, administrators, agents, legal or personal representatives

and assigns of each of them, in their capacity as such.

1.23 "Released Claims" means any and all claims and causes of action of every nature and

description, whether known or unknown, whether arising under federal, state, common or foreign

law, whether class or individual in nature, that the Lead Plaintiffs or any Class Member asserted or

could have asserted in the Litigation or any forum, which arise out of or relate in any way to both:

(i) the purchase of shares of publicly traded Barrick common stock on the New York Stock Exchange

during the Class Period, and (ii) any disclosures, public filings, registration statements, or other

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statements by Barrick or any Defendant in this Litigation based upon or arising out of any facts,

matters, allegations, transactions, events, disclosures, statements, acts or omissions that were

asserted or could have been asse1ted by Lead Plaintiffs or any Class Members in the Litigation.

"Released Claims" does not include claims to enforce the Settlement, or claims alleged in any related

BRISA or derivative actions. "Released Claims" includes "Unknown Claims" as defined in~ 1.31

hereof.

l.24 "Released Defendants' Claims" means any and all claims and causes of action of

every nature and description (including Unknown Claims), whether arising under federal, state,

common or foreign law, that arise out of or relate in any way to the institution, prosecution or

settlement of the claims against Defendants, except for claims relating to the enfoJ"cement of the

Settlement.

1.25 "Released Persons" means each and all of the Defendants and their Related Parties.

1.26 "Settlement" means the resolution of the Litigation in accordance with the terms

and provisions of this Stipulation.

1.27 "Settlement Amount" means One Hundred and Forty Million Dollars

($140,000,000) in cash to be paid into the Escrow Account pursuant to ~ 2.1 of this Amended

Stipulation.

1.28 "Settlement Fund" means the Settlement Amount plus all interest and accretions

thereto.

I.29 "Settling Parties" means, collectively, the Defendants and the Lead Plaintiffs, on

behalf of themselves and the Class.

1.30 "Tax" or "Taxes" mean any and all taxes, fees, levies, duties, tariffs, imposts, and

other charges of any kind (together with any and all interest, penalties, additions to tax and


Case 1:13-cv-03851-RMB Document 167-1 Filed 06/09/16 Page 11of81

additional amounts imposed with respect thereto) imposed by any governmental authority,

including, but not limited to, any local, state, and federal taxes.

l.3 l "Unknown Claims" means any Released Claims or Released Defendants' Claims

which any of the Settling Parties or Class Members do not know or suspect to exist in his, her, or

its favor at the time of the release of the Released Persons, Lead Plaintiffs, Lead Plaintiffs'

Counsel, or Class Members which, if known by him, her, or it, might have affected his, her, or its

settlement with and release, or might have affected his, her, or its decision(s) with respect to the

Settlement, including, but not limited to, whether or not to object to this Settlement or to the release

of the Released Persons, Lead Plaintiffs, Lead Plaintiffs' Counsel, or Class Members. With respect

to any and all Released Claims and Released Defendants' Claims, the Settling Parties stipulate and

agree that, upon the Effective Date, the Settling Parties shall expressly waive and each of the

Settling Parties shall be deemed to have, and by operation of the Judgment shall have, expressly

waived the provisions, rights, and benefits of California Civil Code§ 1542, which provides:

A general release does not extend to claims which the creditor does not know or suspect to exist In his or her favor at the time of executing the 1·elease, which if known by him or her must have materially affected his or he•· settlement with the debtor.

The Settling Parties shall expressly waive and each of the Class Members shall be deemed to have,

and by operation of the Judgment shall have, expressly waived any and all provisions, rights, and

benefits confe1Ted by any law of any state or territory of the United States, 01· principle of common

law, which is similar, comparable or equivalent to California Civil Code § 1542. The Settling

Parties may hereafter discover facts in addition to 01· different from those which he, she, or it now

knows or believes to be true with respect to the subject matter of the Released Claims or Released

Defendants' Claims, but such person or entity shall expressly settle and 1·elease, and each Class

Member, upon the Effective Date, shall be deemed to have, and by operation of the Judgment shall

- 9 -



have, fully, finally, and forever settled and released any and all Released Claims and Released

Defendants' Claims, known or unknown, suspected or unsuspected, contingent or non-contingent,

whether or not concealed or hidden, which now exist, or heretofore have existed, upon any theory

of law or equity now existing or coming into existence il1 the future, including, but not limited to,

conduct which is negligent, intentional, with or without malice, or a breach of any duty, law or

rule, without regard to the subsequent discovery or existence of such different or additional facts.

The Settling Parties acknowledge, and the Class Members shall be deemed by operation of the

Judgment to have acknowledged, that the foregoing waiver was separately bargained for and is a

key element of the Settlement of which this release is a part.

2. The Settlement

a. The Settlement Amount

2.1 Defendants shall cause the Settlement Amount to be t1·ansferred to an account

controlled by the Escrow Agent within thirty (30) calendar days after the entry of an order granting

preliminary approval of the Settlement, or July 30, 2016, whichever is later, provided that

Defendants' counsel receives wire insiluctions and a Form W-9 providing the tax identification

number for the Escrow Account.

b. The Escrow Agent

2.2 The Escrow Agent shall invest the Settlement Fund deposited pursuant to ~ 2J

hereof in instruments backed by the full faith and credit of the United States Government or fully

insured by the United States Government or an agency thereof and shall reinvest the proceeds of

these instruments as they mature in similar instruments at their then-current market rates. All costs

and risks related to the investment of the Settlement Fund in accordance with the guidelines set

forth in this paragraph shall be borne by the Settlement Fund and the Released Persons shall have

- 10 -



no responsibility for, interest in, or liability whatsoever with respect to investment decisions or the

actions of the Escrow Agent, or any transactions executed by the Escrow Agent.

2.3 The Escrow Agent shall not disburse the Settlement Fund except (a) as provided in

the Stipulation, (b) by an order of the Court, or (c) with the written agreement of counsel forthe

Settling Parties.

2.4 Subject to further orde1·(s) and/or directions as may be made by the Court, or as

provided in the Stipulation, the Escrow Agent is authorized to execute such transactions as are

consistent with the terms of the Stipulation. The Released Persons shall have no responsibility for,

interest in, or liability whatsoever with respect to, the actions of the Escrow Agent, or any

transaction executed by the Escrow Agent.

2.5 All funds held by the Escrow Agent shall be deemed and considered to be in

custodia /egis ofthc Court, and shall remain subject to the jurisdiction of the Court, until such time

as such funds shall be distributed pursuant to the Stipulation and/or further order(s) of the Court.

2.6 If the entire Settlement Amount is not timely deposited into the Escrow Account,

Lead Plaintiffs may terminate the Settlement but only if: (i) Lead Counsel has notified

Defendants' counsel in writing of Lead Plaintiffs' intention to terminate the Settlement, and (ii) the

entire Settlement Amount is not transferred to the Escrow Account within three (3) business days

after Lead Counsel has provided such written notice.

2. 7 Other than the obligation of Defendants to pay or cause to be paid the Settlement

Amount into the Escrow Account, Defendants shall have no obligation to make any other payment

into the Settlement Fund pursuant to this Stipulation.

2.8 Prior to the Effective Date, upon approval of the Court, up to $500,000 of the

Settlement Fund may be used by Lead Counsel to pay reasonable costs and expenses actually

- l I •



incurred in connection with providing notice of the Settlement to the Class by mail, publication,

and other means, locating Class Members, assisting with the submission of claims, processing

Proof of Claim and Release forms, maintaining any escrow accounts, and administering the

Settlement ("Notice and Administration Expenses"), The Released Persons shall have no

responsibility for or liability whatsoever with respect to the Notice and Administration Expenses,

nor shall they have any responsibility or liability for any claims with respect thereto. After the

Effective Date, Lead Counsel may pay all further reasonable Notice and Administration Expenses,

upon approval by the Comt,

c. Taxes

2.9 (a) The Settling Parties agree to treat the Settlement Fund as being at all times

a "qualified settlement fund" within the meaning of Treas. Reg. § l.468B-1. In addition, Lead

Counsel shall timely make, or cause to be made, such elections as necessary or advisable to carry

out the provisions of this ~ 2.9, including the "relation-back election" (as defined in Treas. Reg.

§ 1.468B-I) back to the earliest permitted date. Such elections shall be made in compliance with

the procedures and requirements contained in such regulations. It shall be the responsibility of

Lead Counsel to timely and properly prepare and deliver, 01· cause to be prepared and delivered,

the necessary documentation for signature by all necessary parties, and thereafter to cause the

appropriate filing to occur.

(b) For the purpose of § l.468B of the Internal Revenue Code of 1986, as

amended, and the regulations promulgated thereunder, the "administrator" shall be Lead Counsel.

Lead Counsel shall timely and properly file, or cause to be filed, all informational and other tax

returns necessary or advisable with respect to the Settlement Fund (including, without limitation,

the returns described in Treas. Reg. § l .468B-2(k)). Such returns (as well as the election described

- 12 -



in 12.9(a) hereof) shall be consistent with this 1J 2.9(b) and in all events shall reflect that all Taxes

(including any estimated Taxes, interest, or penalties) on the income earned by the Settlement

Fund shall be paid out of the Settlement Fund as provided in~ 2.9(c) hereof.

(c) All (i) Taxes (including any estimated Taxes, interest, or penalties) arising

with respect to the income earned by the Settlement Fund, Including any Taxes or tax detriments

that may be imposed upon the Released Persons or their counsel with respect to any income earned

by the Settlement Fund for any period during which the Settlement Fund does not qualify as a

"qualified settlement fund" for federal or state income tax purposes, and (ii) expenses and costs

incurred in connection with the operation and implementation of this 12.9 (including, without

limitation, expenses of tax attorneys and/or accountants and mailing and distribution costs and

expenses relating to filing (or failing to file) the returns described in this , 2.9(c)) ("Tax

Expenses"), shall be paid out of the Settlement Fund; in all events the Released Persons and their

counsel shall have no liability orresponsibility whatsoever for the Taxes or the Tax Expenses. The

Settlement Fund shall indemnify and hold each of the Released Persons and their counsel harmless

for Taxes and Tax Expenses (including, without limitation, Taxes payable by reason of any such

indemnification). Further, Taxes and Tax Expenses shall be treated as, and considered to be, a

cost of administration of the Settlement Fund and shall be timely paid, or caused to be paid, by the

Escrow Agent out of the Settlement Fund and the Claims Administrator shall be authorized

(notwithstanding anything herein to the contrary) to withhold from distribution to Authorized

Claimants any funds necessary to pay such amounts, including the establishment of adequate

reserves for any Taxes and Tax Expenses (as well as any amounts that may be required to be

withheld under Treas. Reg. § 1.4688-2(1)(2)); neither the Released Persons nor their counsel are

1·esponsible nor shall they have any liability for any Taxes or Tax Expenses. The Settling Parties

- 13 -



hereto agree to cooperate with the each other, and their tax attorneys and accountants to the extent

reasonably necessary to ca1·1·y out the provisions of this~ 2.9.

2.10 This is not a claims-made settlement. As of the Effect,ive Date, Defendants, and/or

any other Person funding the Settlement on a Defendant's behalf, shall not have any right to the

return of the Settlement Fund or any portion thereof for any reason.

d. Termination of Settlement

2.11 In the event that this Amended Stipulation is not approved or this Amended

Stipulation is terminated or canceled, or the Effective Date othe1wise fails to occur for any reason,

the Settlement Fund less Notice and Administration Expenses or Taxes or Tax Expenses paid,

incurred, or due and owing in connection with the Settlement provided for herein, shall be refunded

to the Defendants pursuant to written instl'Uctions from counsel for the Defendants in accordance

with~ 7.5 herein.

3. Preliminary Approval Order and Fairness Hearing

3.1 Promptly after execution of this Amended Stipulation, Lead Counsel shall submit

this Amended Stipulation together with its exhibits to the Court and shall apply for entry of an

order (the "Prelimina1·y Approval Order"), substantially in the form of Exhibit A attached hereto,

requesting, inter alia, the preliminary approval of the Settlement set forth in this Amended

Stipulation, and approval for the mailing of a settlement notice (the "Notice") and publication of

a summary notice ("Summary Notice"), substantially in the forms of Exhibits A-1 and A-3

attached hereto. The Notice shall include the general terms of the Settlement set forth in this

Amended Stipulation, the proposed Plan of Allocation, the general terms of the fee and expense

application, as defined in~ 6,1 hereof, and the date of the fairness hearing, as defined below.

3.2 Defendants shall provide to the Claims Administrator, at no cost to Lead Plaintiffs

or the Class, within five (5) business days of entry of the Preliminary Approval Order, transfer

- 14



records in electronic searchable form, such as Excel, containing the names and addresses of

Persons who purchased or otherwise acquired Barrick publicly traded common stock on the New

York Stock Exchange during the Class Period.

3.3 It shall be solely Lead Counsel's responsibility to disseminate the Notice and

Summary Notice to the Class in accordance with this Amended Stipulation and as ordered by the

Court. Class Mcmbe1·s shall have no recourse as to the Released Persons with respect to any claims

they may have that arise from any failure of the notice process. If Defendants choose to provide

notice under the Class Action Fairness Act of2005, such notice shall be their responsibility and at

their own expense.

3.4 Lead Counsel shall request that after notice is given, the Court hold a hearing (the

"Fairness Hearing") and approve the Settlement of the Litigation as set forth herein. At or after

the Fairness Hearing, Lead Counsel also will request that the Court approve the proposed Plan of

Allocation and the fee and expense application.

4. Releases

4.1 Upon the Effective Date, as defined in~ 1.7 hereof, Lead Plaintiffs shall, and each

of the Class Members shall be deemed to have, and by operation of the Judgment shall have, fully,

finally, and forever released, relinquished, and discharged all Released Claims against the

Released Persons (including Unknown Claims), whether or not such Class Member executes and

delivers the Proof of Claim and Release or shares in the Net Settlement Fund. Claims to enforce

the terms of this Amended Stipulation are not released.

4.2 Upon the Effective Date, as defined in~ 1.7 hereof, all Class Members nnd anyone

claiming through or on behalf of any of them, will be forever barred and enjoined from

commencing, instituting, prosecuting, or continuing to prosecute any action or other proceeding in

• 15 •



any court of law or equity, arbitration tribunal, or administrative forum, asserting the Released

Claims against any of the Released Persons.

4.3 Upon the Effective Date, as defined in~ 1.7 hereof, each of the Released Persons

shall be deemed to have, and by operation of the Judgment shall have, fully, finally, and forever

released, relinquished, and discharged all Released Defendants' Claims against the Lead Plaintiffs,

each and all of the Class Members, and Lead Plaintiffs' Counsel. Claims to enfol'ce the terms of

this Amended Stipulation are not released.

5. Administration and Calculation of Claims, Final Awards, and Supervision and Distribution of the Settlement Fund

5.1 The Claims Administrator, subject to such supervision and direction of Lead

Counsel and the Comt as may be necessary or as circumstances may require, shall administer and

calculate the claims submitted by Class Members and shall oversee distribution of the Net

Settlement Fund to Authorized Claimants.

5.2 The Settlement Fund shall be applied as follows:

(a) to pay all Notice and Administration Expenses;

(b) to pay the Taxes and Tax Expenses;

(c) to pay attorneys' fees and expenses of Lead Plaintiffs' Counsel (the "Fee

and Expense Award"), if and to the extent allowed by the Court;

(d) to pay the time and expenses of Lead Plaintiffs, pursuant to 15 U.S.C. § 78u-

4(a){4) of the Private Securities Litigation Reform Act of 1995 ("PSLRA"), if and to the extent

allowed by the Court; and

(e) after the Effective Date, to distribute the Net Settlement Fund to Authorized

Claimants as allowed by this Amended Stipulation, the Plan of Allocation, or the Court.

- 16.



5.3 After the Effective Date, and in accordance with the terrns of this Arnended

Stipulation, the Plan of Allocation, and such furthet' approval and further order(s) of the Court as

rnay be necessary or as circumstances may require, the Net Settlement Fund shall be distributed to

Authorized Claimants, subject to and in accordance with the following provisions of this Amended

Stipulation.

5.4 Within the time set by the Comt, each Class Member shall be required to submit to

the Claims Administrator a completed Proof of Claim and Release, substantially in the form of

Exhibit A-2 attached hereto, signed under penalty of perjury and supported by such documents as

are specified in the Proof of Claim and Release,

5.5 Except as otherwise ordered by the Court, all Class Members who fail to timely

submit a valid Proof of Claim and Release within such period, or such other period as may be

ordered by the Comt, or otherwise allowed, shall be forever barred from receiving any payments

pursuant to this Amended Stipulation and the Settlement set forth herein, but will in all other

respects be subject to and bound by the provisions of this Amended Stipulation, the releases

contained herein, and the Judgrnent. Notwithstanding the foregoing, Lead Counsel shall have the

discretion (but nol an obligation) to accept late-submitted claims for processing by the Claims

Administrator so long as the distribution of the Net Settlement Fund to Authorized Claimants is

not rnaterially delayed thereby. No Person shall have any claim against Lead Plaintiffs, their

counsel, the Claims Administmtor or any Class Member by reason of the exercise or non-exercise

of such discretion.

5.6 Each Proof of Claim and Release shall be submitted to and reviewed by the Claims

Administrator, under the supervision of Lead Counsel, who shall determine, in accordance with

this Amended Stipulation, the extent, if any, to which each claim shall be allowed.

- 17 -



5.7 Proof of Claim and Release forms that do not meet the submission requirements

may be rejected. Prior to rejecting a Proof of Claim and Release in whole or in part, the Claims

Administrator shall communicate with the claimant in writing to give the claimant the chance to

remedy any curable deficiencies in the Proof of Claim and Release submitted. The Claims

Administrator, under the supervision of Lead Counsel, shall notify, in a timely fashion and in

writing, all claimants whose claims the Claims Administrator proposes to reject in whole or in part

for curable deficiencies, setting forth the reasons therefo1·, and shall indicate in such notice that the

claimant whose claim is to be rejected has the right to a review by the Court if the claimant so

desires and complies with the requirements of~ 5.8 below.

5.8 If any claimant whose timely claim has been rejected in whole or in part for curable

deficiency desires to contest such rejection, the claimant must, within twenty (20) calendar days

after the date of mailing of the notice required in i\ 5.7 above, or a lesser period of time if the claim

was untimely, serve upon the Claims Administrator a notice and statement of reasons indicating

the claimant's grounds for contesting the rejection along with any suppotting documentation, and

requesting a review thereof by the Court. If a dispute concerning a claim cannot be otherwise

resolved, Lead Counsel shall thereafter present the claimant's request for review to the Court.

5.9 Each claimant who submits a Proof of Claim and Release shall be deemed to have

submitted to the jurisdiction of the Court with respect to the claimant's claim, including, but not

limited to, all releases provided for herein and in the Judgment, and the claim will be subject to

investigation and discovery under the Federal Rules of Civil Prncedure, provided that such

investigation and discovery shall be limited to the claimant's status as a Class Member and the

validity and amount of the claimant's claim. In connection with processing the Proofu of Claim

and Release, no discovery shall be allowed on the merits of the Litigation or the Settlement.

"18 -



5.10 The Net Settlement Fund shall be distributed to the Authorized Claimants

substantially in accordance with the Plan of Allocation approved by the Court. If there is any

balance remaining in the Net Settlement Fund aller a reasonable period of time after the date of

the initial distribution of the Net Settlement Fund and payment of any outstanding Notice and

Administration Expenses and Taxes, Lead Counsel shall, if feasible and economical, reallocate

(which reallocation may occur on multiple occasions) such balance among Authorized Claimants

in an equitable and economical fashion. Any de minimis balance that still remains in the Net

Settlement Fund after such reallocation(s) and payments, which is not feasible or economical to

reallocate, shall be donated to an appropriate non-sectarian, non-profit charitable organization(s)

serving the public interest selected by Lead Counsel and approved by the Court.

5.11 The Defendants and their Related Parties shall have no 1·esponsibility for, interest

in, or liability whatsoever with respect to the distribution of the Net Settlement Fund, the Plan of

Allocation, the determination, administration, or calculation of claims, the payment or withholding

of Taxes or Tax Expenses, or any losses incurred in connection therewith. No Person shall have

any claim of any kind against the Defendants, their Related Parties, or counsel for Defendants with

respect to the matters set forth in~~ 5.1-5.13 hereof; and the Class Members, Lead Plaintiffs, and

Lead Plaintiffs' Counsel release the Defendants and their Related Parties from any and all liability

and claims arising from or with respect to the administration, investment, or distribution of the

Settlement Fund.

5 .12 No Person shall have any claim against Defendants or their Related Parties, counsel

for Defendants, Lead Plaintiffs, Lead Plaintiffs' Counsel or the Claims Administrator, or any other

Person designated by Lead Counsel based on determinations or distributions made substantially in

- 19 -



accordance with this Amended Stipulation and the Settlement contained herein, the Plan of

Allocation, or further order(s) of the Court.

5.13 It is understood and agreed by the Settling Parties that any proposed Plan of

Allocation of the Net Settlement Fund, including, but not limited to, any adjustments to an

Authorized Claimant's claim set forth therein, is not a part of this Amended Stipulation and is to

be considered by the Court separately from the Court's consideration of the fairness,

reasonableness, and adequacy of the Settlement set forth in this Amended Stipulation, and any

order or proceeding relating to the Plan of Allocation shall not operate to terminate or cancel this

Amended Stipulation or affect the finality of the Court's Judgment approving this Amended

Stipulation and the Settlement set fotth herein.

6. Lead Plaintiffs' Counsel's Attorneys' Fees and Expenses

6.1 Lead Counsel, on behalfofLead Plaintiffs' Counsel, may submit an application or

applications (the "Fee and 13xpense Application") from the Net Settlement Fund for: (a) an award

of attorneys' fees; plus (b) expenses or cha1·ges in connection with prosecuting the Litigation; plus

(c) any interest on such attorneys' fees and expenses at the same rate and for the same periods as

earned by the Settlement Fund (until paid) as may be awarded by the Court.

6.2 Any fees and expenses, as awarded by the Court, shall be paid to Lead Counsel

from the Settlement Fund, as ordered, immediately after the Court executes the Judgment and an

order awarding such fees and expenses, notwithstanding the existence of any timely filed

objections thereto or to the Settlement, 01· potential for appeal therefrom, or collateral attack on the

Settlement or any part thereof. Lead Counsel shall thereafter allocate the attorneys' fees among

Lead Plaintiffs' Counsel in a manner in which it in good faith believes reflects the contributions

of such counsel to the initiation, prosecution, and resolution of the Litigation.

- 20 -



6.3 In the event that the Effective Date does not occur, or the Judgment or the order

making the Fee and Expense Award or any award to Lead Plaintiffs is reversed or modified, or

this Amended Stipulation is canceled or terminated for any other reason, and such reversal,

modification, cancellation or termination becomes final and not subject to review, and in tl-ie event

that the Fee and Expense Award has been paid to any extent, then Lead Plaintiffs' Counsel who

have received any portion of the Fee and Expense Award shall, within twenty (20) business days

from receiving notice from the Defendants' counsel or from a court of appropriate jurisdiction,

refund to the Settlement Fund all such fees and expenses previously paid to them from the

Settlement Fund plus interest thei·eon at the same rate as earned on the Settlement Fund in an

amount consistent with such reversal or modification. Each such Lead Plaintiffs' Counsel's law

firm receiving fees and expenses, as a condition of receiving such fees and expenses, on behalf of

itself and each partner and/oi· shareholder of it, agrees that the law firm and its partners and/or

shareholders are subject to the jurisdiction of the Court for the purpose of enforcing the provisions

of this paragraph.

6.4 The procedure for and the allowance or disallowance by the Court of any

applications by any Lead Plainti!fa' Counsel for attorneys' fees and expenses, or the time and

expenses of the Lead Plaintiffs, to be paid out of the Settlement Fund, are not part of the Settlement

set forth in this Amended Stipulation, and are to be considered by the Court separately from the

Cout1's consideration of the fairness, reasonableness, and adequacy of the Settlement set forth in

this Amended Stipulation, and any order or proceeding relating to the Fee and Expense

Application, or any appeal from any order relating thereto or reversal or modification thereof, shall

not operate to terminate or cancel this Amended Stipulation, or affect or delay the finality of the

- 21 -



Judgment approving this Amended Stipulation and the Settlement of the Litigation set forth

therein.

6.5 Any fees and/or expenses awarded by the Court shall be paid solely from the

Settlement Fund. With the sole exception of Defendants' obligation to pay or cause the Settlement

Amount to be paid into the Escrow Account as provided for in ii 2.1, Defendants and their Related

Parties shall have no responsibility for, and no liability whatsoever with respect to, any payment

of attorneys' fees and/or expenses to Lead Plaintiffs' Counsel or any other counsel or Pel'son who

receives payment from the Net Settlement Fund.

6.6 Defendants and their Related Parties shall have no responsibility for the allocation

among Lead Plaintiffs' Counsel, and/or any other Person who may assert some claim thereto, of

any Fee and Expense Award, that the Court may make in the Litigation.

7. Conditions of Settlement, Effect of Disapproval, Cancellation, or Termination

7.1 The Effective Date of the Settlement shall be conditioned on the occurrence of all

of the following events:

(a) the Court has entered the Preliminary Approval Order, as required by~ 3.1

hereof;

(b) The Settlement Amount has been deposited into the Escrow Account;

(c) Defendants have not exercised their option to terminate the Amended

Stipulation pursuant to~ 7.3 hereof;

( d) the Court has entered the Judgment, or a Judgment substantially in the form

of Exhibit B attached hereto; and

(e) the Judgment has become Final, as defined in~ 1.10 hereof'.

- 22 -



7.2 Upon the Effective Date, any and all remaining interest or right of the Defendants

or the Defendants' insurers in or to the Settlement Fund, if any, shall be absolutely and forever

extinguished. If the conditions specified in~ 7.1 hereof are not met, then the Settlement shall be

canceled and terminated subject to~~ 7.4 and 7.6 hereof unless Lead Counsel and counsel for the

Defendants mutually agree in writing to proceed with the Settlement.

7.3 Defendants shall have the right (which right must be exercised collectively) to

terminate the Settlement and t'ender it null and void in the event that Class Members who purchased

or otherwise acquired more than a certain percentage of Barrick common stock subject to this

Settlement exclude themselves from the Class, as set forth in a separate agreement (the

"Supplemental Agreement") executed between Lead Plaintiffs and the Defendants, by and through

their counsel. The Supplemental Agreement, which is being executed concurrently herewith, shall

not be filed with the Court and its te1·ms shall not be disclosed in a11y other manner (other than the

statements herein, to the extent necessary, or as otherwise provided in the Supplemental

Agreement), unless and until the Court otherwise directs or a dispute arises between the Settling

Parties concerning its interpretation or application. If submission of the Supplemental Agreement

is required for resolution of a dispute or is otherwise ordered by the Court, the Settling Parties will

seek to have the Supplemental Agreement submitted to the Court in camera or filed under seal.

7.4 Barrick warrants and represents as to itself only, that it is not "insolvent" within the

meaning of 11 U.S.C. § I 01(32) as of the time this Amended Stipulation is executed and as of the

time the payments are actually transferred or made as reflected in this Amended Stipulation. In

the event of a final order of a court of competent jurisdiction, not subject to any further

proceedings, determining the transfer of the Settlement Fund, or any portion thereof, by or on

behalf of any Defendant to be a preference, voidable transfer, fraudulent transfer or similar

• 23 -



transaction under Title 11 of the United States Code (Bankruptcy) or applicable state law and any

portion thereof is required to be refunded and such amount is not promptly deposited in the

Settlement Fund by or on behalf of any other Defendant, then, at the election of Lead Plaintiffs'

Counsel, as to the Defendant as to whom such order applies, the settlement may be terminated and

the releases given and the judgment entered in favor of such Defendant pursuant to the settlement

shall be null and void. In such instance, the releases given and the judgments entered in favor of

other Defendants shall remain in full force and effect. Alternatively, Lead Plaintiffs' Counsel may

elect to terminate the Settlement as to all Defendants and all of the releases given and the

judgments entered in favor of the Defendants pursuant to the settlement shall be null and void and

plaintiff(s) may proceed as if the Settlement were never entered into.

7.5 Unless otherwise ordered by the Court, in the event this Amneded Stipulation shall

terminate, or be canceled, or shall not become effective for any reason, within twenty (20) business

days after written notification of such event is sent by counsel for the Defendants or Lead Counsel

to the Escrow Agent, the Settlement Fund, Jess Taxes, Tax Expenses and Notice and

Administration Expenses which have either been disbursed pursuant to iii! 2.8 and 2.9 hereof, or

are chargeable to the Settlement Fund pursuant to iii! 2.8 and 2.9 hereof, shall be refunded by the

Escrow Account pursuant to written instructions from Lead Counsel, based on information

provided by Defendants' counsel. Lead Counsel or its designee shall apply for any tax refund

owed on the Settlement Amount and pay the proceeds, after deduction of any fees or expenses

incurred in connection with such application(s) for refund, pursuant to written instructions from

Defendants' counsel.

7.6 In the event that this Amended Stipulation is not approved by the Court or the

Settlement set forth in this Amended Stipulation is terminated or fails to become effective in

- 24.



accordance with its terms, the Settling Parties shall be restored to their respective positions in the

Litigation as of April 21, 2016. In such event, the terms and provisions of the Amended

Stipulation, with the exception ofifi! 1.1-1.30, 2.8·2. 11, 6.3-6.4, 7.4·7. 7, and 8.4 hereof, shall have

no further force and effect with respect to the Settling Parties and shal I not be used in this Litigation

or in any other proceeding for any purpose, and any judgment or order entered by the Court in

accordance with the tel'mS of this Amended Stipulation shall be treated as vacated, nuno pro tune.

No order of the Coutt or modification or reversal on appeal of any order of the Court concerning

the Plan of Allocation or the amount of any attorneys' fees, costs, expenses, and interest awarded

by the Court to any of Lead Plaintiffs' Counsel shall operate to terminate or cancel this Amended

Stipulation or constitute grounds for cancellation or termination of this Amended Stipulation.

7.7 If the Effective Date does not occu1·, or if this Amended Stipulation is terminated

pursuant to its terms, neither Lead Plaintiff nor any of its counsel shall have any obligation to repay

any amounts disbursed pursuant to iI~ 2.8 or 2.9. In addition, any amounts already incurred

pursuant to if1j 2.8 or 2.9 hereof at the time of such termination or cancellation but which have not

been paid, shall be paid by the Escrow Account in accordance with the terms of this Amended

Stipulation prior to the balance being refunded in accordance with 1lil 2. 11 and 7.5 hereof.

8, Miscellaneous Provisions

8.1 The Settling Parties: (a) acknowledge that it is their intent to consummate this

agreement; and (b) agree to cooperate to the extent reasonably necessary to effectuate and

implement all terms and conditions of this Amended Stipulation and to exercise their best efforts

to accomplish the foregoing terms and conditions of this Amended Stipulation.

8.2 The Settling Parties intend this Settlement to be a final and complete resolution of

all disputes between them with respect to the Litigation. The Settlement compromises claims that

are contested and shall not be deemed an admission by any Settling Party as to the merits of any

• 25.



claim or defense, The Judgment will contain a finding that, duri11g the course of the Litigation,

the Settling Parties and their respective counsel at all times complied with the requirements of

Federal Rule of Civil Procedure 11. The Settling Parties agree that the Settlement Amount and

the other terms of the Settlement were negotiated in good faith by the Settling Parties, and reflect

a settlement that was reached voluntarily after consultation wlth competent legal counsel. The

Settling Parties reserve thelr right to rebut, in a manner that such party determines to be

apprnpriate, any contention made in any public forum regarding the Litigation, including that the

Litigation was brought or defended in bad faith or without a reasonable basis.

8.3 Neither this Amended Stipulation nor the Settlement contained herein, nor any act

performed or document executed pursuant to or in furtherance of this Amended Stipulation or the

Settlement: (a) is or may be deemed to be or may be used as an admission of, or evidence of, the

validity of any Released Claim, or of any wrongdoing or liability of the Defendants or their

respective Related Parties, or (b) is or may be deemed to be or may be used as an admiss.ion of, or

evidence of, any fault or omission of any of the Defendants or their respective Related Parties in

any civil, criminal, or administrative proceeding in any court, administrative agency, or other

tribunal. The Defendants and/or their respective Related Parties may file this Amended Stipulation

and/or the Judgment from this action in any other action that may be brought against them in order

to support a defense or counterclaim based on principles of res judicata, collateral estoppel,

release, good faith settlement, judgment bar or reduction, or any theory of claim preclusion or issue

preclusion or similar defense or counterclaim.

8.4 All agreements made and orders entered during the course of the Litigation relating

to the confidentiality of information shall survive this Amended Stipulation.

- 26 -



8.5 All of the exhibits to this Amended Stipulation are material and integral parts hereof

and are fully incorporated herein by this reference.

8.6 This Amended Stipulation may be amended or modified only by a written

instrument signed by or on behalf of all Settling Parties or their respective successors-in-interest.

8.7 This Amended Stipulation and the exhibits attached hereto and the Supplemental

Agreement constitute the entire agreement among the Settling Parties hereto and no

representations, warranties, or inducements have been made to any party concerning this· Amended

Stipulation or its exhibits other than the representations, warranties, and covenants contained and

memorialized in such documents. Except as otherwise provided herein, each patty shall bear its

own foes and costs.

8.8 Lead Counsel, ori behalf of the Class, is expressly authorized by Lead Plaintiffs to

take all appropriate action required or permitted to be taken by the Class pursuant to this Amended

Stipulation to effectuate its terms and also is expressly authorized to enter into any modifications

or amendments to this Amended Stipulation on behalf of the Class which it deems appropriate,

8.9 Each counsel or other Person executing this Amended Stipulation or any of its

exhibits on behalf of any pa1ty hereto hereby warrants that such Person has the full authority to do

so.

8.10 This Amended Stipulation may be executed in one Ol' more counterparts. All

executed counterparts and each of them shall be deemed to be one and the same instrument. A

complete set of executed counterparts shall be filed with the Court. Signatures sent by facsimile

or pdf d via e-mail shall be deemed originals.

8. l 1 All notices, requests, demands, claims, and other communications hereunder shall

be in writing and shall be deemed duly given (i) when delivered personally to the recipient, (ii) one

. 27.



(l) business day after being sent to the recipient by reputable overnight courier service (charges

prepaid), or (iii) seven (7) business days after being mailed to the recipient by certified or

registered mail, return receipt requested and postage prepaid, and addressed to the intended

recipient as set forth below:

If to Lead Plaintiffs or to Lead Counsel:

James M. Hughes Christopher F. Moriarty MOTLEY RICE LLC 28 Bridgeside Blvd. Mt Pleasant, SC 29464

I/to Defendants or lo Defendants' counsel:

Jonathan R. Tuttle Ada Fernandez Johnson DEBEVOISE & PLIMPTON LLP 801 Pennsylvania Ave., N.W. Washington, D.C. 20004

8.12 This Amended Stipulation shall be binding upon, and inure to the benefit of, the

successors and assigns of the parties hereto.

8.13 The Court shall retain jurisdiction with respect to implementation and enforcement

of the terms of this Amended Stipulation, and all Settling Parties submit to the jurisdiction of the

Court for purposes of implementing and enforcing the Settlement embodied in this Amended

Stipulation and matters related to the Settlement.

8.14 Pending approval of the Court of this Amended Stipulation and its exhibits, all

proceedings in this Litigation shall be stayed and all Members of the Class shall be barred and

enjoined from prosecuting any of the Released Claims against any of the Released Persons.

8.15 This Amended Stipulation and the exhibits hereto shall be considered to have been

negotiated, executed and delivered, and to be wholly performed, in the State of New York, and the

rights and obligations of the parties to the Amended Stipulation shall be construed and enforced in

• 28 -


Case 1:13-cv-03851-RMB Document 167-1 Filed 06/09/16 Page 31of81

accordance with, and governed by, the internal, substantive laws of New York without giving

effect to its choice-of-law principles.

IN WITNESS Wf!BREOF, the parties hereto have caused the Amended Stip1Jlatlon to be

executed, by their duly authorized attorneys, dated June 9, 2016.

MOTLEY RICE LLC

JAMES M. HUGHES

James M. Hughes (pro h.ac Vi9e) Christopher F. Moria11y (pro hac vice) 28 Bridgeside Blvd. Mt. Pleasant, South Carolina 29464 Telephone: (843) 216-9000 Facsimile: (843) 2J6-94SO [email protected] [email protected]

MOTLEY RICE LLC William fl. Narwold One Corporate Center 20 Church Street, 17'" Floor Hartford, CT 06103 Telephone: (860) 882-1676 [email protected]

Lead Coimsel for Lead Plainlljfe and the PutatiVe Class

LABATON SUCHAROW LLP

--1++-.-/-',\ . r11L,~---ATH~--c;f RDNER

1j

. 29.



Jonathan Gardner Serena P. Hallowell 140 Broadway New York, New York 10005 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 jgardne1·@labaton.com [email protected]

Liaison Counsel for Lead Plaintiff.» and the Putative Class

DEBEVOISE & PLIMPTON LLP

JONATHAN R. TUTTLE

Jonathan R. Tuttle (pro hac vice) Ada Fernandez Johnson (pro hac vice) 801 Pennsylvania Ave., N.W. Washington, D.C. 20004 Telephone; (202) 383-8000 202/3 83-8118 (fax)

DEBEVOISE & PLIMPTON LLP Bruce E. Yannett Elliot Greenfield 919 Third A venue New York, NY l 0022 Telephone: (212) 909-0600 212/909-6836 (fax)

Attorneys for Defendants Barrick Gold Corporation, Aaron W. Regent, Jamie C. Sokalsky, Ammar Al-Joundi, Peter Kinver, Igor Gonzales, George Potter and Sybil E. Veenman

- 30-


EXHIBIT B - Exclusions Approved by Class Counsel and the Claims Administrator

Request# GCGID Name 6 1073565 ALLEN & PAMELA J WITT

7 242 UMBERTO GIANOLA

9 1716413 ANNY OZGENCIL

13 1430495 CHARLES T ROBINTON

14 1265881 RONALD L HENDRICKS

16 1298138 BRIANWMALO

20 1430482 CHARLES R OATES

21 1579645 LEONARD A WYMAN ANDREAS SVORONOS & BETTY

24 1592787 SVORONOS

26 1280757 ESTATE OF THOMAS H BEDDALL

32 1880565 WILLIAM & WILMA LINK

35 1737977 ROY STEARNS

37 1493248 MARCY C WELCH

42 1015478 BEVERLY POPE

43 1957543 ROGER L & GAIL D MILLER JOSEPH D RUSSO & HELEN L OBACK-

44 1597233 RUSSO

45 1454608 HELEN L OBACK-RUSSO

46 1443773 RICHARD E ZEDNIK

50 1450648 PEARL D MONSANTO

51 2036818 TRENTONJSTREETER

52 1881774 PA TRICIA M GESSMENN

56 1695262 ANN MARIE KIRK

57 1882068 STEPHEN F KW APICH

58 1448110 JAY JU RAJ ZEDNIK

60 1624015 WALLACE J HECKENBERG

61 1721215 LARRY G HANSEN LUBOMIR KOLLARIK AND SONA

62 2356 KOLLARIKOV A

63 1472968 NORMAND NYKODYM

65 1194756 GAIL MEYERS

66 1880316 WILLIAM C BOTOS & JEANIE L BOTOS

67 2037530 MATTHEW PERDONI TOD

74 3105 CAROLINE HERON

76 3322 PENNY DEMPSEY

77 3328 CLAUDINE BAZIN

78 1368708 J LEE VAN METRE JR

81 1564878 JUANITA NIVER KEITH ERICKSON & DOROTHEA G

83 1640257 ERICKSON

I


85 4006 ROBERT DOUCET

86 1452838 LEWIS EDWARD THOMAS JR

88 1490214 ELIZABETH KANGAS NATASCHA ALEXANDROVNA BEZDENEJNIH-SNYDER MATTHEW J

89 2009076 SNYDER JT TEN

92 1298719 CARL F CROWNOVER

93 4468 GEORGE E WATTS

98 2039711 CHARLES & JANICE WEINBERG TRUST

99 1567432 ELIZABETH RODRIGUEZ

101 2036184 MARGARET RUTH WATSON

102 2018276 BRENDA HEADEN

103 5173 SARAMINA THOMAS - ESAU

108 2041229 BETH TATELMAN

109 5974 JANICE ARIY ANA Y AGAM

2


EXHIBIT C - Legal Fees and Claims Administrator's Fees'

Legal Fees

Class Counsel has requested $35 million in attorneys' fees which amounts to 25% of the

$140 million Settlement Fund, as well as $981,296.48 in expenses. Pursuant to the factors set

forth in Goldberger v. Integrated Resources, Inc., 209 F.3d 4 3 (2d Cir. 2000), the Comi awards

Class Counsel $25,200,000 in legal fees, which amounts to 18% of the Settlement Fund, as well

as $981,296.48 in expenses. See Goldberger, 209 F.3d at 45 (awarding fees of 4% where the

request was for 20%); In re Citigroup Inc. Bond Litig., 988 F. Supp. 2d 371, 373 (S.D.N.Y.

2013) (awarding fees of 16% of the settlement fund where the request was for 20%); Hall v.

Children's Place Retail Stores, Inc., 669 F. Supp. 2d 399, 405 (S,D.N.Y. 2009) (awarding fees of

15% of the settlement fund where the request was for 27%); In re Elan Sec. Litig., 385 F. Supp.

2d 363, 375 (S.D.N.Y. 2005) (awarding fees of 12% of the settlement fund where the request

was for 20%); In re Interpublic Sec. Litig., 2004 WL 2397190, at *12 (S.D.N.Y. Oct. 26, 2004)

(awarding fees of 12% of the settlement fund where the request was for 17%); see also Brian T.

Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J.

Empirical Legal Stud. 811, 839 (201 O)(finding that the median fee award is 16.9% for

settlements valued at $100 million to $250 million).

Goldberger Factors

The first factor-"the time and labor expended by counsel"-reflects that 41,891 hours

were worked by four law firms (Motley Rice LLC ("Motley Rice"), Labaton Sucharow LLP

("Labaton"), Sturman LLC, and Robbins Geller Rudman & Dowd LLP ("Robbins Geller"))

' The Co mi has also issued Exhibit C in the form of a (separate) Order entitled "Order Granting Legal Fees and Claims Administrator's Fees in Class Action," dated today.

1


since the inception of this case on June 5, 2013. It is noteworthy that only two of these firms

were actually appointed by former Judge Shira Scheindlin (or any other judge) to represent the

Class. See In re Barrick Gold Sec. Litig., 314 F.R.D. 91, 107 (S.D.N.Y. 2016) (appointing

Motley Rice as Lead Counsel and Labaton as Liaison Counsel). Notwithstanding this fact, the

Court has here considered all four firms' time and labor and finds that $25,200,000 (18% of the

Settlement Fund) appropriately compensates them for their work. See Allen v. Dairy Farmers of

Am., Inc., 2016 WL 3361544, at *5 (D. Vt. June 14, 2016) (where counsel had worked 64,000

hours, the court awarded fees of 14% of the settlement fund, $7 million, where the request was

for 33%); Meredith Corp. v. SESAC, LLC, 87 F. Supp. 3d 650, 669 (S.D.N.Y. 2015) (where

counsel had worked 30,360 hours, the court awarded fees of$1 l,891,751).

The second factor-"the magnitude and complexities of the litigation"-does not appear

to distinguish this case appreciably from most other securities fraud cases. See Elan Sec. Litig.,

385 F. Supp. 2d at 374 (reducing fee award from 20% to 12% where "the factual and legal issues

were not exceptionally novel"). "[W]hile it is undisputed that counsel for the plaintiffs conducted

extensive discovery and litigated both the Motion to Dismiss and the class certification issue, it

cannot be said that these eff01is were out of the ordinary. In fact, this case settled before

proceeding to the trial stage, or even the summary judgment stage, when a more thorough

presentation of the facts and the law would ce1iainly have been required." In re Fine Host Corp.

Sec. Litig., 2000 WL 33116538, at *4 (D. Conn. Nov. 8, 2000) (awarding fees of 17.5%). Lead

Plaintiffs argue unpersuasively that this case was complex because counsel needed to research

"compliance with [Generally Accepted Accounting Principles ("GAAP") and Chilean

environmental regulations," and most of the documents were in Spanish. (Lead Pis.' Mem. of

Law in Suppo1i of Mot. for Award of Attorneys' Fees and Expenses, filed Sept. 8, 2016 ("Pis.'

2


MemJ'), at 20.) But Lead Plaintiffs do not show how or why these aspects of the case made it

more significantly complex. See In re Twinlab Corp. Sec. Litig., 187 F. Supp. 2d 80, 86

(E.D.N. Y. 2002) (awarding fees of 12% where, "[i]n somewhat conclusory fashion, c01msel

argue[ d] that they successfully guided a complex and challenging litigation and settlement

negotiations"). Class Counsel's efforts in hiring translators to translate Spanish documents is

adequately addressed through reimbursement of translation expenses. See Hart v. RCI Hosp.

Holdings, Inc., 2015 WL 5577713, at *18 (S.D.N.Y. Sept. 22, 2015) (granting request for

translation expenses); Campos v. Goode, No. 10 CIV. 0224 DF, 2011WL9530385, at *8

(S.D.N.Y. Mar. 4, 2011) (same).

The third factor-the risk of the litigation-also favors a reduced award. Lead Plaintiffs

argue, "[i]t is wrong to presume that a law firm handling complex contingent litigation always

wins," and they cite (routine) litigation risks such as the difficulty of proving scienter or loss

causation. (See Pls.' Mem. at 15, 18-19.) But the test is the "risk of success," and courts are

hesitant to award high fees where "counsel point[s] to ... general hurdles-such as the defenses

available to defendants, including lack of scienter-that they overcame in achieving a

settlement." See Goldberger, 209 F.3d at 54. Indeed, "[t]he vast majority of [securities class

actions] that survive motions to dismiss resolve themselves via agreed-upon settlements."

Citigroup, 988 F. Supp. 2d at 379 (awarding fees of 16%). The Couti finds that neither Lead

Plaintiffs nor Lead Counsel have shown significant litigation risk to justify a larger fee award

than contemplated by the Couti.

"The fourth Goldberger factor-'the quality of representation'-was acceptable and

expected. Courts should not necessarily award an increased fee where counsel simply displays

3


the general level of skill expected." Beane v. Bank ofN.Y. Mellon, 2009 WL 874046, at *8

(S.D.N.Y. Mar. 31, 2009).

"With respect to the fifth Goldberger factor-i.e., 'the requested fee in relation to the

settlement'- ... a 'fee award should be assessed based on scrutiny of the unique circumstances

of each case.'" Elan Sec. Litig., 385 F. Supp. 2d at 375 (quoting Goldberger, 209 F.3d at 53). In

earlier years, "Courts in this and nearby Districts ... [often] awarded 33 Yi% in securities class

actions where there ha[d] been a significant monetary recovery early on in the litigation." Maley

v. Del Glob. Techs. Corp., 186 F. Supp. 2d 358, 368 (S.D.N.Y. 2002). "Nevertheless, in more

recent years, ... Courts in this District have tended toward regarding 25% (or less) as a more

appropriate bench-mark." Gordon v. Sonar Capital Mgmt. LLC, 2016 WL 4272994 (S.D.N.Y.

Aug. 10, 2016). Now, fees below 20% are not uncommon. See, e.g., Citigroup, 988 F. Supp. 2d

at 373 (16%); Hall, 669 F. Supp. 2d at 405 (15%); Elan Sec. Litig., 385 F. Supp. 2d at 375

(12%); Fitzpatrick, An Empirical Study at 839 (median fee award of 16.9% for settlements

valued at $100 million to $250 million).

Also, the Court's review of Class Counsel's time sheets indicates that a reduction is

warranted. The time sheets from each law firm include vague, nonspecific, and uninformative

descriptions such as "Prepare for client deposition," "Document review," and "Attend Meeting"

(Motley Rice's Time and Expense Information, filed Nov. 1, 2016 ("Motley Rice Time Sheets"),

Ex. A-1); "Conduct research re: Barrick Gold," "Attend to case strategy," and "Prepare for

mediation" (Labaton's Time and Expense Information, filed Nov. 1, 2016, Ex. A-1); and "Attend

meeting with client," "Attention to client advice," and "Review documents and translate"

(Robbins Geller's Time and Expense Information, filed Nov. 1, 2016 ("Robbins Geller Time

Sheets"), Ex. A-1). See Flores v. Mamma Lombardi's of Holbrook, Inc., 104 F. Supp. 3d 290,

4


311 (E.D.N.Y. 2015) (entries such as "Review files," "Review/Meeting," "Meet with client,"

"Call adversary," "Memo to file," "Call to client," and "Organize file" "fail[ ed] to provide

sufficient information to permit review for reasonableness"); Mills v. Capital One, N.A., 2015

WL 5730008, at *13 (S.D.N.Y. Sept. 30, 2015) (entries such as "Communication with witness

regarding information" "[we]re vague and d[id] not by themselves provide enough information

to assess the reasonableness of the hours billed"); In re Nortel Networks Corp. Sec. Litig., 2010

WL 3431152, at *3 (S.D.N.Y. Aug. 20, 2010) (entries such as "claims project cont'd," "project

work," and "fmiher legal research" "[we ]re too imprecise and vague for meaningful review

much less reimbursement"). The time sheets also appear to include unnecessary tasks such as a

paiiner's entry for "[r]eview of order on page limits" ($725 per hour) (see Robbins Geller Time

Sheets, Ex. A-1). See Hall v. ProSource Techs., LLC, 2016 WL 1555128, at *13 (E.D.N.Y. Apr.

11, 2016) ("Courts should not award attorneys' fees for hours that were ... unnecessary to the

litigation.").

Class Counsel's lodestar, as noted, includes the work of attorneys that the Comi did not

appoint to represent the Class. See Blan Sec. Litig., 385 F. Supp. 2d at 374. At the fairness

hearing on October 18, 2016, the Court inquired, "Did [Judge Scheindlin appoint Robbins

Geller] explicitly in some order?" Counsel responded, "I don't think she wrote it in an order."

(H'rg Tr., dated Oct. 18, 2016, at 20.) Counsel then stated that it was sufficient that Robbins

Geller attorneys "were at every hearing or discove1y conference that we had, and that they

were-that she [presumably the Comi] recognized that-she asked who was there for the

plaintiffs and [appointed Counsel] always said: And Robbins Geller is here as well." (Id. at 20-

21.) The Court has found no express approval by Judge Patterson either, and Counsel has pointed

to none. Robbins Geller has submitted a lodestar of$3,241,557.00 in this case, which, as noted,

5


the Comt has considered because of their retention by Lead Counsel, see Flanagan, Lieberman,

Hoffman & Swaim v. Ohio Pub. Emps. Ret. Sys., 814 F.3d 652, 657-58 (2d Cir. 2016). (See

Robbins Geller Time Sheets, Ex. A.) Similarly, Counsel submits time sheets for Deborah

Sturman of Sturman LLC, described as "Co-Counsel" to Motley Rice. (See Moriarty Deel., filed

Sept. 8, 2016, Ex. A.) The Court has found no approval in the record of Sturman LLC's

participation in this case, and Counsel has pointed to none. Sturman LLC accounts for $110,250

of Class Counsel's lodestar. (See id.) Notwithstanding the lack of approval, the Court, as noted,

includes these unappointed firms' lodestars in its analysis. See Flanagan, Lieberman, 814 F.3d at

659; Elan Sec. Litig., 385 F. Supp. 2d at 374.

The sixth factor-"public policy considerations"-supports a lower fee because "[t]he

Court does not believe that an exceedingly high rate of compensation is required to encourage

plaintiffs' counsel to bring securities class actions." In re Merrill Lynch & Co., Inc. Research

Reports Sec. Litig., 2007 WL 313474, at *21 (S.D.N.Y. Feb. 1, 2007) (reducing counsels' fee

request by 5.5%); see also Goldberger, 209 F.3d at 57 (affirming award of 4% because of, among

other reasons, "[the Court's] longstanding concern for moderation[] ... [which] [wa]s amplified

by [its] nagging suspicion that attorneys in [securities class action] cases are routinely

overcompensated for such things as contingency risk"); In re Twinlab, 187 F. Supp. 2d at 87

(awarding fees of 12% rather than the requested 33% because, among other reasons, "public

policy may not be the major reason for bringing a securities fraud class action"); In re Arakis

Energy Corp. Sec. Litig., 2001WL1590512, at *10 (E.D.N.Y. Oct. 31, 2001) (reducing

counsels' fee request because, among other reasons, "a Congressional finding that approximately

300 securities lawsuits are filed each year, of which 93% are settled" suggested the "potential of

6


a large payday guaranteed by a high percentage benchmark may not be necessary in order to

persuade plaintiffs' attorneys to fulfill the public necessity of bringing these class actions").

The Second Circuit Court of Appeals "encourage[s) the practice of requiring

documentation of hours as a 'cross check' on the reasonableness of the requested percentage,"

known as a "lodestar cross check." Carlson v. Xerox Corp., 355 F. App'x 523, 526 (2d Cir.

2009). In this case, the lodestar is $20,126.871.25. (Hughes Deel., filed Sept. 8, 2016, ii 132.)1

Thus, the Court's award of $25,200,000 reflects a lodestar multiplier of 1.25. The Court finds

such a multiplier (easily) to be within the range of reasonableness. See Carlson, 355 F. App'x at

526 (where District Court reduced fees from 20% to 16%, yielding a lodestar multiplier of 1.25,

"[the Court of Appeals) could not conclude that the fee awarded in th[ e) case [ wa )s

unreasonable"); In re Hi-Crush Partners L.P. Sec. Litig., 2014 WL 7323417, at* 18 (S.D.N.Y.

Dec. 19, 2014) ("This multiplier [of 1.4) is well within the range of multipliers that are typically

approved in this Circuit."); In re Telik, Inc. Sec. Litig., 576 F. Supp. 2d 570, 590 (S.D.N.Y.

2008) ("[A) l.6x multiplier is well within the range ofreasonableness."); In re Glob. Crossing

Sec. & ERISA Litig., 225 F.R.D. 436, 470 (S.D.N.Y. 2004) (awarding a 19% fee that "yield[ed)

a multiplier of approximately 1.5").

Claims Administrator's Fees

The Claims Administrator anticipates requesting fees and out-of-pocket expenses totaling

up to $3.5 million. (See discussion at H'rg Tr., dated Dec. 1, 2016.) Having discussed the issue

with the parties on December 1, 2016, and having reviewed the record and recent claims

administrator awards in other securities actions, the Court finds that it is fair and appropriate to

1 Counsel initially calculated the lodestar as $20,132,916.25 (Hughes Deel., filed Sept. 8, 2016, ii 132), but in submitting time sheets for Court review, Robbins Geller identified duplicate entries and reduced its lodestar by $6,045.00 (Robbins Geller Time Sheets, Ex. A n.1 ).

7


cap the amount and to permit Lead Counsel to set aside (no more than) $3 million of the

Settlement Fund for fees and expenses of claims administration. The Court finds that a reduction

of at least $500,000 of the $3.5 million in claims administration fees and expenses suggested by

the Claims Administrator is wan-anted. See CitiGroup, 08-cv-9522 (S.D.N.Y. Aug. 1, 2014)

(awarding $974,335.83 in claims administration fees and expenses relating to a settlement fund

of$730,000,000); Shapiro v. JPMorgan Chase & Co., l l-cv-8331 (S.D.N.Y.) (Nov. 16, 2015,

ECF 86) (Nov. 24, 2014, ECF 81) (Mar. 24, 2014, ECF 67) (awarding a total of$1,084,927.55 in

claims administration fees and expenses for a settlement fund of $218,000,000); In re Bear

Stearns Companies, Inc. Sec., Derivative, & Erisa Litig., 08-md-1963 (S.D.N.Y.) (July 10, 2014,

ECF 448) (Sept. 20, 2013, ECF 390) (awarding a total of$1,382,492.27 in claims administration

fees and expenses for a settlement fund of $294,900,000); Ohio Pub. Emps. Ret. Sys. v. Freddie

Mac, MDL 1584 (S.D.N.Y. May 23, 2008) (awarding $610,871.76 in claims administration fees

and expenses for a settlement fund of $410,000,000). The Claims Administrator is directed to

submit its application for fees and expenses, and the Court will review and approve claims

administration fees and expenses, when 80% of the Settlement Fund has been distributed.

Conclusion and Order

Lead Plaintiffs' Motion [#182] is granted in part and denied in part.

Dated: New York, New York December 2, 2016

8

RICHARD M. BERMAN U.S.D.J.


in re barrick gold securities litigation 13-cv-03851...

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