c'
'
JUne 5, 2015 03-15-00248-CV
Cause No. D-1-GN-11-003205
(Consolidated)
RAYMOND BOYTIM, et al., Individually and § IN THE DISTRICT COURT OF
on Behalf of All Others Similarly Situated, §
§
Plaintiffs, § TRAVIS COUNTY, TEXAS
§
vs. §
26lst JUDICIAL DISTRICT
BRIGHAM EXPLORATION COMPANY, et ~
al., §
§
Defendants.
§
________________________ §
PLAINTIFFS' RESPONSE TO DEFENDANTS STATOIL ASA AND FARGO
ACQUISITION, INC.'S SUPPLEMENTAL BRIEF IN SUPPORT OF OPPOSITION
TO CLASS CERTIFICATION AND OBJECTIONS TO PLAINTIFFS'
PROPOSED AMENDED PLAN FOR TRIAL OF CLASS CLAIMS
1014174_1
Plaintiffs respectfully submit this response to defendants Statoil ASA and Fargo Acquisition,
Inc.'s (collectively "Statoil") Supplemental Brief in Support of Opposition to Class Certification and
Objections to Plaintiffs' Proposed Amended Plan for Trial of Class Claims ("Supp. Brief'). 1
In its supplemental brief, Statoil makes two arguments for why a class of Brigham
shareholders should not be re-certified. First, unlike defendants' joint opposition, which simply
opposes the idea of class certification in these types of cases, Statoil actually addresses plaintiffs'
proposed trial plan. Focusing on plaintiffs' aiding and abetting a breach of fiduciary duty claim,
Statoil contends that the trial plan is deficient in that it does not: (i) address each element of
plaintiffs' aiding and abetting claim; and (ii) provide analysis of potential facts that might support
that claim. Supp. Brief at 3-5.
These criticisms are easily disposed of, as plaintiffs are more than willing to incorporate
Statoil' s input into the proposed trial plan. Accordingly, plaintiffs have amended their trial plan to
incorporate Statoil' s suggestions. See Second [Proposed] Amended Trial Plan for Trial of Class
Claims ("Second Amended Trial Plan") attached hereto as Ex. A, §§I.B and III.B.l.
Notably, these amendments only serve to further highlight the appropriateness of class
certification, which is why Statoillevies a procedural attack on the content of the trial plan, rather
On March 2, 2015, two briefs were filed in response to plaintiffs' proposed amended trial plan:
(i) all defendants filed a Joint Opposition to Class Certification and Plaintiffs' Proposed Amended
Plan for Trial of Class Claims; and (ii) defendant Statoil separately filed a Supplemental Brief in
Support of Opposition to Class Certification and Objections to Plaintiffs' Proposed Amended Plan
for Trial of Class Claims. Although both briefs were filed on the same day, due to an error in thee-
mail service of process for the supplemental brief, plaintiffs' counsel responsible for handling the
briefing on class certification did not become aware that the supplemental brief had been filed until
two weeks later, on March 17,2015. The e-mail address of the attorney primarily responsible for
handling the briefing was misspelled in the service e-mail. To their credit, counsel for Statoil
brought the error to plaintiffs' counsel's attention on March 17, 2015, after plaintiffs had filed their
response to the joint opposition. Plaintiffs have filed a response to Statoil's supplemental brief as
quickly as possible to ensure that Statoil and the Court have sufficient time to review and consider it
in advance of the March 31, 2015 hearing on plaintiffs' amended trial plan.
- 1-
1014!74_1
than arguing that the aiding and abetting claim raises individual issues. As explained in the trial plan,
plaintiffs' aiding and abetting claim is predicated on plaintiffs' breach of fiduciary duty claim. See
Second Amended Trial Plan, §III. B.!. These claims share three of the same elements (the existence of a
fiduciary relationship between the directors and shareholders, a breach of that duty, and damages) and
thus, will rei yon much of the same proof? As with their breach of fiduciary duty claim, plaintiffs will
establish the aiding and abetting claim through contemporaneously created internal Brigham and Statoil
documents, testimony from Brigham's directors and officers and certain of its executives, testimony
from Statoil's executives, e-mails and other correspondence between Brigham and Statoil, and
documents and testimony from the fmancial advisors retained by Brigham and Statoil. All of this
evidence is common to the class, and Statoil does not suggest otherwise. It is clear that plaintiffs' aiding
and abetting claim can be tried through class-wide proof. See In re Rural Metro Corp. S' holders Litig.,
88 A.3d 54 (Del. Ch. 2014) (finding, after class-wide trial, that the directors of Rural Metro Corp. had
breached their fiduciary duties to a class of shareholders in connection with a sale of the company and
that the Board's financial advisor had aided and abetted that violation).
As to Statoil' s second argument- that plaintiffs are not adequate class representatives for the
aiding and abetting claim, it has already been considered and rejected by this Court. Supp. Brief at 6-
9. Just as it does here, Statoil argued during the initial class certification proceedings that plaintiffs are
inadequate class representatives because they do not have not sufficient knowledge about the litigation.
Compare Defendants' Combined Opposition to Motion for Class Certification, filed October 18,2012,
2
To the extent Statoil suggests that plaintiffs must establish the merits of their aiding and abetting
claim before obtaining class certification, it is wrong. "'Deciding the merits of the suit in order to
determine ... its maintainability as a class action is not appropriate."' Exxon Mobil Corp. v. Gill,
299 S.W.3d 124, 126 (Tex. 2009); DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 315 (Tex.
2008) ("We have followed the United States Supreme Court's directive in Eisen, holding that
' [d]eciding the merits of the suit in order to determine the scope of the class or its maintainability as
a class action is not appropriate."').
- 2-
1014174_1
at 13-15 ("plaintiffs are inadequate class representatives because they not sufficiently familiar with the
litigation") with Supp. Brief at 6-9 (same). That argument extended to the sufficiency of plaintiffs'
knowledge as to the aiding and abetting claim against Statoil. Combined Opposition to Motion for
Class Certification at 14 (arguing that Ms. Goodman, Mr. Duncan, Mr. Whalen, and Mr. Boytirn were
not familiar with Statoil or the claims against it). The Court rejected these arguments, finding in its
class certification order that "[p]laintiffs will fairly and adequately protect the interests of the Class."
February 27, 2013 Order Granting Class Certification at 2.
Before making this finding, the Court considered extensive evidentiary submissions from the
parties. Along with full briefing on the issue, the Court held a full-day evidentiary hearing at which
it heard live testimony from four of the named plaintiffs. Defendants cross-examined these plaintiffs
at length during that hearing. In addition, following the hearing, the parties submitted: (i) a compact
disc, compiled by defendants, containing videotaped excerpts from the depositions of the proposed
class representatives which defendants believed supported their position that the named plaintiffs
were inadequate; and (ii) complete copies of the deposition transcripts of the named plaintiffs. In the
interest of brevity, plaintiffs will not repeat their discussion of the extensive evidence supporting the
Court's finding and rebutting Statoil' s arguments, but respectfully refer the Court to plaintiffs' class
certification briefs and exhibits, and incorporate them by reference.
This Court was no doubt in an excellent position to evaluate the sufficiency of each of the
plaintiffs as class representatives. Indeed, nothing in the Court of Appeal's decision indicates that it
had any problem with the Court's adequacy findings- factual findings which are committed to the
discretion of the Court. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 691 (Tex. 2002) ("[a] trial
court has discretion to rule on class certification issues, and some of its determinations -like those
based on its assessment of the credibility of witnesses, for example -must be given the benefit of the
-3-
1014174_1
doubt"); Farmers Ins. Exch. v. Leonard, 125 S.W.3d 55, 68 (Tex. App.-Austin 2003, pet. denied)
("the trial court is in the best position to weigh the credibility of Leonard and Sawyer as well as to
determine the ability and integrity of class counsel to represent the entire class"). There is no reason
for the Court to revisit its previous findings, especially since Statoil presents the Court with nothing
new in the law or in the factual record to support its argument.
Defendants have now had many opportunities over the past two years to demonstrate to this
Court why class certification is not warranted. At every turn, they have failed. The reason for that is
simple: cases such as this one are routinely certified and successfully tried as class actions in every
jurisdiction where class actions exist, including in Texas. Plaintiffs have proposed a trial plan which
has been proven workable by real-world experience. That plan explains how this case will be tried
in a timely, manageable way, and it should be adopted by the Court.
DATED: March 19, 2015 Respectfully submitted,
ROBBINS GELLER RUDMAN
&DOWDLLP
RANDALL J. BARON
DAVID T. WISSBROECKER
STEVEN M. JODLOWSKI
~ON
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: 619/231-1058
619/231-7423 (fax)
ROBBINS GELLER RUDMAN
&DOWDLLP
SAMUEL H. RUDMAN
MARK S. REICH
MICHAEL G. CAPECI
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: 631/367-7100
631/367-1173 (fax)
-4-
1014174_1
Class Counsel for Plaintiffs
BOULETTE & GOLDEN LLP
MICHAEL D. MARIN
Texas Bar #0079117 4
2801 Via Fortuna Drive, Suite 530
Austin, TX 78746
Telephone: 512/732-8900
512/732-8905 (fax)
Liaison Counsel
KENDALL LAW GROUP, LLP
JOE KENDALL
DANIEL HILL
JAMIE J. McKEY
3232 McKinney Avenue, Suite 700
Dallas, TX 75204
Telephone: 214/744-3000
214/744-3015 (fax)
THE BRISCOE LAW FIRM, PLLC
WILLIE C. BRISCOE
8150 N. Central Expressway, Suite 1575
Dallas, TX 75206
Telephone: 214/239-4568
281/254-7789 (fax)
ARMBURST & BROWN, PLLC
MICHAEL BURNETT
100 Congress A venue, Suite 1300
Austin, TX 78702
Telephone: 512/435-2300
512/435-2360 (fax)
ROBBINS ARROYO LLP
BRIAN J. ROBBINS
STEPHEN J. ODDO
EDWARD B. GERARD
JUSTIN D. RIEGER
600 B Street, Suite 1900
San Diego, CA 92101
Telephone: 619/525-3990
619/525-3991 (fax)
DUNNAM DUNNAM HARMON WEST
LINDLEY &RYANLLP
HAMILTON P. LINDLEY
4125 W. Waco Drive
Waco, TX 76710
Telephone: 254/753-6437
254/753-7434 (fax)
- 5-
1014174_1
BRODSKY & SMITH, LLC
EVAN J. SMITH
MARC ACKERMAN
Two Bala Plaza, Suite 510
Bala Cynwyd, PA 19004
Telephone: 610/667-6200
610/667-9029 (fax)
LEVI & KORSINSKY, LLP
SHANE T. ROWLEY
30 Broad Street, 24th Floor
New York, NY 10004
Telephone: 212/363-7500
866/367-6510 (fax)
KOHN, SWIFT & GRAF, P.C.
DENIS F. SHEILS
One South Broad Street, Suite 2100
Philadelphia, PA 19107-3389
Telephone: 215/238-1700
215/238-1968 (fax)
THE WEISER LAW FIRM, P.C.
PATRICIA C. WEISER
JAMES M. FICARO
22 Cassatt A venue
Berwyn, PA 19312
Telephone: 610/225-2677
610/225-2678 (fax)
RYAN & MANISKAS, LLP
KATHARINE M. RYAN
RICHARD A. MANISKAS
995 Old Eagle School Road, Suite 311
Wayne, PA 19087
Telephone: 484/588-5516
484/450-2582 (fax)
SAXENA WHITE P.A.
JONATHAN M. STEIN
5200 Town Center Circle, Suite 601
Boca Raton, FL 33486
Telephone: 561/394-3399
5611394-3382 (fax)
Additional Counsel for Plaintiffs
- 6-
1014174_1
CERTIFICATE OF SERVICE
Pursuant to the attached Declaration of Service by E-Mail, I hereby certify that a true and
correct copy of the foregoing instrument has been served in accordance to the Texas Rules of Civil
Procedure, to those listed on the attached service list, on this 19th day of March 2015.
/s/ Michael D. Marin
MICHAEL D. MARIN
- 7-
1014174_1
DECLARATION OF SERVICE BY E-MAIL
I, June P.lto, nota party to the within action, hereby declare that on March 19, 2015, I served
the attached PLAINTIFFS' RESPONSE TO DEFENDANTS STATOIL ASA AND FARGO
ACQUISITION, INC.'S SUPPLEMENTAL BRIEF IN SUPPORT OF OPPOSITION TO CLASS
CERTIFICATION AND OBJECTIONS TO PLAINTIFFS' PROPOSED AMENDED PLAN FOR
TRIAL OF CLASS CLAIMS on the parties in the within action by e-mail addressed as follows:
Counsel forDefendant(s)> .· . . . .
· ....
·..... ·. · .... .......... ··. . ... .. ... ..
..
. .. .
Timothy R. McCormick Thompson & Knight LLP timothy.mccormick@tklaw.com
Michael W. Stockham michael.stockham @tklaw .com
Timothy E. Hudson tim.hudson @tklaw .com
Debora B. Alsup debora.alsup @tklaw.com
Danley Cornyn danley.cornyn @tklaw .com
Michael C. Holmes Vinson & Elkins L.L.P. ntholmes @velaw .com
Jennifer B. Poppe jpoppe @velaw .com
Thomas S. Leatherbury tleatherbury@velaw.com
Fields Alexander Beck Redden LLP falexander@beckredden.com
Parth S. Gejji pgejji @beckredden.com
Christopher R. Cowan ccowan @beckredden.com
Coll.nselfor Plaintiff(s) · < . ··· .. ... .. ·. ....• ... ·. .······ .· ..
·
·· . .
.. .···.· ...•.... ·.···· · .. ••... >·· ·.· .. ·
Michael Burnett Armburst & Brown. PLLC mburnett@ abaustin.com
Kelly N. Reddell Baron & Budd, P.C. kreddell @baronbudd.com
Michael D. Marin Boulette & Golden LLP mmarin @boulettegolden.com
Evan J. Smith Brodsky & Smith, LLC esmith@ brodsky-smith.com
Marc L. Ackerman mackerman@ brodsky-smith.com
Hamilton Lindley Dunnam & Dunnam hlindley@ dunnamlaw.com
Shane T. Rowley Levi & Korsinsky LLP srowley@zlk.com
Joe Kendall Kendall Law Group, LLP jkendall @kendalllawgroup.com
Daniel Hill dhill@ kendalllawgroup.com
Jamie J. McKey imckey@kendalllawgrouo.com
Denis F. Sheils Kohn. Swift & Graf, P.C. dsheils@ kohnswift.com
Brian J. Robbins Robbins Arroyo LLP brobbins@robbinsarroyo.com
Stephen J. Oddo soddo @robbinsarroyo.com
Edward B. Gerard egerard@robbinsarroyo.com
Katharine M. Ryan .
Ryan & Maniskas, LLP kryan @rmclasslaw .com
Richard A. Maniskas rmaniskas @rmclasslaw .com
Jonathan M. Stein Saxena White P.A. istein @saxenawhite.com
Willie C. Briscoe The Briscoe Law Firm wbriscoe@thebriscoelawfmn.com
Patricia C. Weiser The Weiser Law Firm, P.C. pw@weiserlawfirm.com
James M. Ficaro imf@weiserlawfirm.com
March 19, 2015, at San Diego, California. d~ J
I declare under penalty of perjury that the foregoing is true and correct. Executed on
c::= hi Jli
JUNEP. ITO
. t(J
1014174_1
Brigham Exploration Company, Ben M. Brigham, David T. Brigham, Harold D. Carter, Stephen P. Reynolds, Stephen C. Hurley, Hobart A. Smith, Scott W. Tinker, Statoil ASA and Fargo Acquisition, Inc. v. Raymond Boytim, Hugh Duncan, Robert Fioravanta, Walter Schwimmer, Michael Ohler, Ryan Ohler, Walter Ohler, Jr., the Edward J. Goodman Life Income Trust and the Edward J. Goodman Generation Skipping Trust, Jeffrey Whalen, and Howard Weisberg, Individually
Combined Opinion