# Darish v. Northern Dynasty Minerals Ltd.

> District Court, E.D. New York · August 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10310253

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- discussing the “strict rule” that any request for attorneys’ fees must be “accompanied by contemporaneous time records” (quotation marks omitted)

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------X

IN RE NORTHERN DYNASTY MEMORANDUM
MINERALS LTD. SECURITIES AND ORDER
LITIGATION 20-CV-5917 (TAM)

----------------------------------------------------------X

TARYN A. MERKL, United States Magistrate Judge:
This is a consolidated, putative class action brought against Northern Dynasty
Minerals Ltd.; its Chief Executive Officer, Ronald William Thiessen (who is also the
Director of the Pebble Limited Partnership (“Pebble Partnership”), a wholly owned
subsidiary of Northern Dynasty); and the former Chief Executive Officer of the Pebble
Partnership, Thomas Collier. ( Amended Complaint (“Amend. Compl.”), ECF No.
37, ¶¶ 14–16.) Plaintiffs Lawrence Keleman and Charles Hymowitz each purchased
Northern Dynasty’s common stock between December 21, 2017, and November 24, 2020
(the “Class Period”), and have filed suit on behalf of all similarly situated purchasers,
other than Defendants and other specified groups, as set forth more fully below. (
¶¶ 1, 12–13.) Plaintiffs claim monetary harm resulting from Defendants’ alleged
violations of Sections 10(b) and 20(a) of the Exchange Act of 1934, 15 U.S.C. §§ 78j(b)
and 78t(a), and Rule 10b-5, 17 C.F.R. § 240.10b-5. ( ¶¶ 142–57.)
Currently pending before the Court is Plaintiffs’ motion for preliminary
settlement approval. For the following reasons, the Court grants Plaintiffs’ motion.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY1

I. Factual Background
Northern Dynasty is a mining exploration and development company, and
“owns 100% of the Pebble Partnership, which was established in mid-2007 to engineer,
permit, construct[,] and operate a mine at the Pebble Project.” (Amend. Compl., ECF
No. 37, ¶ 19.) During the Class Period, “Northern Dynasty’s [proposed] plan [was] to
develop what Defendants deemed ‘one of the world’s most important mineral

resources,’” through its mining efforts in the United States, including Alaska.2 ( ¶ 2.)
Northern Dynasty securities were trading during the Class Period on the New York
Stock Exchange under the ticker symbol “NAK.” ( ¶ 14.) Thiessen served as CEO of
the company from November 2001 to present, and served as the Director of the Pebble
Partnership, established in 2007, to present. ( ¶ 15.) Collier served as CEO of the
Pebble Partnership from February 4, 2014 until September 23, 2020. ( ¶ 16.)

In order to move forward with their plan, Northern Dynasty needed to obtain a
permit under Section 404 of the Clean Water Act, which may be issued by the U.S.
Army Corps of Engineers (“Army Corps”). ( ¶ 23.) “Under [Section] 404(c), however,

1 The Court recites the facts as alleged in the amended complaint.
, No. 19-CV-4349 (NGG) (RER), 2021 WL 1259559, at *1 (E.D.N.Y. Jan. 6, 2021).
Defendants deny these allegations and dispute liability. ( Revised Settlement, ECF No. 64-1,
at 3–4.)

2 Plaintiffs’ amended complaint alleges as follows: “Although the Pebble Project would
have been located on state land, it was still subject to federal permitting requirements.”
(Amend. Compl., ECF No. 37, ¶ 23.)
the Environmental Protection Agency (‘EPA’) may prohibit or restrict fill activities if it
determines that a project would have an ‘unacceptable adverse effect’ on the fishery
habitats . . . .” ( ) The EPA ultimately concluded that given the original proposals

made by Northern Dynasty, it had “reason to believe that mining of the Pebble deposit
at any of [the proposed sizes], even the smallest, could result in significant and
unacceptable adverse effects on ecologically important streams, wetlands, lakes, and
ponds and the fishery areas they support.” ( ¶ 32.) “Northern Dynasty sued the EPA
over the regulatory actions that prevented the Pebble Project from advancing to a
permit application with the Army Corps,” and following the settlement of the lawsuit,

“on December 21, 2017, Northern Dynasty announced its intention to apply for a Clean
Water Act permit with the Army Corps using a significantly smaller footprint and a
closure plan after 20 years.” ( ¶ 33.) “Defendants deliberately crafted a much smaller,
limited, 20-year mining proposal and offered a mine closure plan to obfuscate their
actual plans for future expansions . . . design[ing] this scheme in hopes of securing a
permit from the Army Corps.” ( ¶ 34 (emphasis omitted).)

Plaintiffs allege that in order to obtain the permit, “Northern Dynasty and the
Individual Defendants made false and misleading statements and engaged in a scheme
to deceive the market . . . artificially inflat[ing] the prices of Northern Dynasty’s
securities . . . by misrepresenting the size, scope, and duration of the Pebble Project,”
leading to the fall of Northern Dynasty’s stock price and investor losses, once these
misrepresentations surfaced. ( ¶ 112; ¶¶ 58–128.) More specifically,
Plaintiffs claim that Defendants issued press releases on December 21, 2017 and on
January 5, 2018 (which were also filed with the SEC), collectively misrepresenting the
planned size, scope, and duration of the Pebble Project. ( ¶¶ 59–73.) Ultimately,
Plaintiffs contend Northern Dynasty made “materially false and misleading”

statements on its official website, in SEC filings, and in press releases throughout the
entirety of the Class Period. ( ¶¶ 58–111.)
A series of conversations (“The Pebble Tapes”) recorded between undercover
investigators belonging to a non-profit organization, i.e., the Environmental
Investigation Agency (“EIA”), expressing interest in investment opportunities related to
the Pebble Project, and Defendants Thiessen and Collier, “revealed Northern Dynasty’s

actual plans to build a much larger and long-lived mine than described in Northern
Dynasty’s permit application with the Army Corps, in public SEC filings, and in
Congressional testimony.” ( ¶ 45; ¶¶ 46–57.) The tapes revealed that, when
pitching to individuals whom they had thought were potential investors, Defendants
Thiessen and Collier represented “that the 20-year project described publicly will . . . be
merely the first stage in Northern Dynasty’s planned, expansive development.” (

¶ 46 (emphasis omitted).) Unbeknownst to the public, Defendants had hatched this
plan, from the very beginning of the Class Period, to scheme and mislead for the
purposes of obtaining a permit, while covertly planning to develop one of the largest
mines in the world. ( ¶¶ 57, 44.) “When the truth emerged through a series of
corrective disclosures and materializations of risks that the Pebble Project would not
receive a permit, Northern Dynasty’s stock went into a tailspin, wiping out hundreds of
millions of dollars in market capitalization and injuring hundreds of thousands of
investors.” ( ¶ 6.)
On August 24, 2020, the Army Corps released a statement finding that “‘the

project, as currently proposed, cannot be permitted under [S]ection 404 of the Clean
Water Act.’” ( ¶ 113 (quoting U.S. Army Public Affairs,
, U.S. Army (Aug. 24, 2020),
https://www.army.mil/article/238426/).) With this news, Northern Dynasty’s
common share price fell 37.9%, to close at $0.9 per share on August 24, 2020, damaging
investors who purchased the stock at artificially inflated prices. ( ¶¶ 114, 144.) For the

next several months (leading up until the remainder of the Class Period), news
contradictory to Northern Dynasty’s publicly filed and shared plans emerged from
various sources, including , the EIA, the , ,
the , the office of Alaska Senator Lisa Murkowski, and finally the Army Corps
(again), announcing that it has denied the permit for the Pebble Project. ( ¶¶ 113–
28.3) Each of these instances resulted in a falling of Northern Dynasty’s common share

price, further damaging investors each time. ( )

3 On August 25, 2020, published an article called “Pebble Problems Stack Up,”
reporting that “‘[t]he mitigation projects required may be difficult for the mine developers to
meet . . . push[ing] any final decision on the mine beyond the end of Trump’s first term,
potentially leaving it up to his challenger, Joe Biden, who opposes the project.’” (Amend.
Compl., ECF No. 37, ¶ 115.) On September 21, 2020, the EIA put out a press release containing a
transcript of the Pebble Tapes. ( ¶ 117.) The next day, on September 22, 2020, both the
and published articles in reaction to the tapes. (
¶ 118.) On October 28, 2020, the followed suit, publishing their own article in reaction
to the tapes. ( ¶ 120.) On October 29, 2020, the EIA released additional tapes and emails,
“includ[ing] Thiessen discussing his influence over Alaska’s senators and pro-Pebble governor”
( ¶ 122.) On November 18, 2020, Alaska Senator Lisa Murkowski issued the text of her
remarks at the Resource Development Council 2020 Alaska Resources Conference, where she
II. Procedural History
Plaintiffs filed suit in December 2020, alleging causes of action under Section
10(b) of the Exchange Act and Rule 10b-5 against all Defendants, and Section 20(a) of

the Exchange Act against Thiessen and Collier. ( ¶¶ 142–57; Dec. 4, 2020
Compl., ECF No. 1; Dec. 17, 2020 Compl., Case No. 20-CV-6126 (ENV) (TAM), ECF No.
1.) Specifically, investors filed two separate actions, which the Honorable Roanne L.
Mann consolidated on March 17, 2021, appointing Lawrence Kelemen as lead plaintiff
and Pomerantz LLP as lead counsel.4 ( Mem. and Order, ECF No. 32.)
Thereafter, Defendants moved to dismiss the action on December 15, 2021, for

failure to state a claim to relief. ( Mot. to Dismiss, ECF No. 39; Mem. in Supp. of Mot.
to Dismiss, ECF No. 41.) On January 25, 2023, the Honorable Eric N. Vitaliano denied
Defendants’ motion. ( Order Den. Mot. to Dismiss, ECF No. 47.) The undersigned
magistrate judge directed Defendants to file an answer or otherwise respond to the
complaint by February 16, 2023. ( Jan. 26, 2023 ECF Order.) Defendants requested a
stay in order to attempt resolution through mediation. ( Letter Mot. to Stay, ECF No.

48.) The motion was granted, in part, on consent, in light of the parties’ representations

stated “that this is the wrong mine in the wrong place” and that she thought “that the Army
Corps should deny [Northern Dynasty’s] permit application.” ( ¶ 124.)

4 The later filed action, No. 20-CV-6126, was initiated by Charles Hymowitz, whom the
Court notes was named as a plaintiff in the amended complaint filed after case consolidation.
( Amend. Compl., ECF No. 37.) Early on in this action, several class members moved to
consolidate cases, i.e., the original action (20-CV-5917) and Hymowitz’s later filed action (20-
CV-6126), as well as to be appointed as lead plaintiff and lead counsel, pursuant to the
provisions of the PSLRA. ( Mots. to Consolidate Cases and Appoint Counsel and
Lead Pl., ECF Nos. 5, 8, 10, 13, 14, 19.) On March 17, 2021, Judge Mann granted all motions to
consolidate the cases, as well as Lawrence Keleman’s motion for appointment as lead plaintiff
and his choice of counsel as lead counsel. ( Mem. and Order, ECF No. 32.)
that they had a mediation scheduled for March 27, 2023. ( Jan. 30, 2023 ECF Order.)
The parties were directed to file a joint status report by April 3, 2023, providing an
update as to the status of mediation, and, in the event that the parties did not settle at

mediation, Defendants were directed to file an answer by April 10, 2023. ( ) The
mediation was ultimately unsuccessful, and Defendants filed their Answer on April 10,
2023. ( Letter Post-Mediation Update, ECF No. 50; Answer, ECF No. 51.)
On April 17, 2023, Plaintiffs filed a motion to stay proceedings in anticipation of
finalizing a motion for preliminary settlement approval after the parties reached an
agreement-in-principle to settle on April 11, 2023. ( Letter Mot. to Stay Proceedings,

ECF No. 52.) The motion was granted, and the parties filed a status report on May 9,
2023, indicating that they had reached a settlement in principle. ( Apr. 18, 2023 ECF
Order; May 3, 2023 ECF Order; May 9, 2023 Status Report, ECF No. 54.)
Plaintiffs filed their proposed settlement agreement on June 7, 2023, along with a
motion for preliminary settlement approval, a proposed order, and proposed notices.
( Proposed Settlement Agreement (“Settlement”), ECF No. 58; Mot. for Prelim.

Settlement Approval, ECF No. 56; Proposed Order (“Preliminary Approval Order”),
ECF No. 58-1; Mem. in Supp. of Mot. for Prelim. Settlement Approval (“Supp. Mem.”),
ECF No. 57; Long Notice, ECF No. 58-2; Summary Notice, ECF No. 58-4; Postcard
Notice, ECF No. 58-5; Proposed Final J., ECF No. 58-6.) Per these submissions, the
parties “have agreed to settle this Action for $6,375,000 . . . by the terms stated in the
[proposed settlement agreement].” (Supp. Mem., ECF No. 57, at 1.) Plaintiffs represent
that the agreement “was achieved only after substantial arm’s-length negotiations with
the aid of a highly regarded mediator, Robert Meyer of JAMS.”5 ( ; at 3
(stating that the parties “participated in an all-day private mediation session” on March
27, 2023).) On May 15, 2023, Judge Vitaliano referred Plaintiffs’ pending motion to the

undersigned magistrate judge “to schedule a conference and, at her discretion, any
subsequent motions or rulings arising from the conference.” (May 15, 2023 ECF Referral
Order.)
The Court subsequently held a fairness hearing on July 24, 2023. ( July 24,
2023 ECF Minute Entry and Order; Tr. of July 24, 2023 Fairness Hearing (“Fairness
Hearing”), ECF No. 62.) The Court heard argument regarding Plaintiffs’ pending

motion, including the likelihood of final settlement approval and class certification, as
well as the parties’ proposed notice procedures. ( Fairness Hearing, ECF
No. 62.) The Court noted a discrepancy regarding Plaintiffs’ projected cost estimates,
i.e., the settlement agreement and preliminary approval order indicated potential
administrative costs exceeding those numbers presented to the class in the proposed

5 JAMS, previously known as the Judicial Arbitration and Mediation Services, Inc.,
represents itself to be “the world’s largest private alternative dispute resolution (ADR)
provider.” , JAMS, https://www.jamsadr.com/about/ (last visited Aug. 23, 2023). It
is further represented that Mr. Meyer has been a mediator for more than 12 years, with
experience in “complex business litigation pending throughout the United States, including
securities and derivative class actions.” , JAMS,
https://www.jamsadr.com/meyer/ (last visited Aug. 23, 2023). Courts in this circuit have
observed Mr. Meyer to be “an experienced mediator,” , No. 18-
CV-6716 (TAM), 2022 WL 198491, at *8, 13 (E.D.N.Y. Jan. 21, 2022);
, No. 20-CV-2031 (JSR), 2021 WL 911216, at
*11 (S.D.N.Y. Mar. 7, 2021) (referring to Mr. Meyer of JAMS as “a well-respected and
experienced mediator”).
forms of notice.6 ( at 18:6–21, 19:17–21, 20:3–20, 21:5–15.) In addition, in light of
Plaintiffs’ representation in their motion papers that, along with the proposed
settlement agreement, the parties had entered into a “supplemental agreement,” the

Court directed the parties to submit the supplemental agreement for review.
(Supp. Mem., ECF No. 57, at 21; Fairness Hearing, ECF No. 62, at 29:25–30:8.) The
Court also expressed a concern regarding the parties’ proposed notices — specifically,
that certain of the notices did not clearly indicate that class members could appear
through their own attorney if desired, as required by Federal Rule of Civil Procedure
23(c)(2)(B)(iv). ( Fairness Hearing, ECF No. 62, at 26:17–27:14.) Accordingly, the

Court directed the parties to submit revised notices and took the pending motion under
advisement. ( July 24, 2023 ECF Minute Entry and Order.)
On July 26, 2023, Plaintiffs filed the parties’ supplemental agreement for
review. ( Suppl. Agreement, ECF No. 63.) Plaintiffs also filed revised
versions of their proposed settlement agreement and proposed notices, which
addressed the concerns raised by the Court at the Fairness Hearing. ( Revised

Settlement, ECF No. 64-1; Revised Proposed Order (“Revised Preliminary Approval
Order”), ECF No. 64-3; Revised Long Notice, ECF No. 64-5; Revised Summary Notice,

6 The settlement agreement and preliminary approval order anticipated administrative
costs of up to “$500,000 from the Settlement Fund prior to the Effective Date to pay
Administrative Costs . . . [and] additional amounts, up to $200,000 . . . for any necessary
additional Administrative Costs without further order of the Court.” (Settlement, ECF No. 58,
¶ 3.4; Proposed Order, ECF No. 58-1, ¶ 12; Long Notice, ECF No. 58-2; Summary Notice,
ECF No. 58-4; Postcard Notice, ECF No. 58-5 (making no mention to potential class members
that the attorneys anticipated potential administrative costs of up to $200,000, in addition to the
administrative costs of up to $500,000).)
ECF No. 64-7; Revised Postcard Notice, ECF No. 64-9.) Also on July 26, 2023, the parties
consented to magistrate judge jurisdiction, and the next day, Judge Vitaliano reassigned
the case to the undersigned magistrate judge to conduct all proceedings and order the

entry of a final judgment. ( Consent to Juris., ECF No. 65; Signed Consent to Juris.,
ECF No. 66.)
DISCUSSION
Plaintiffs “request that the Court: (1) preliminarily certify the Settlement Class for
the purposes of settlement; (2) preliminarily approve the Settlement as set forth in the
[agreement; and] (3) approve the [proposed] form and manner of notice and direct that

such notice be disseminated to the Settlement Class.” (Supp. Mem., ECF No. 57, at 25–
26.) Plaintiffs also request an order appointing Lead Counsel as class counsel for
purposes of Settlement. ( Revised Preliminary Approval Order, ECF No. 64-3, ¶ 5;
Supp. Mem., ECF No. 57, at 9–10.)
Under Federal Rule of Civil Procedure 23(e), “[t]he claims, issues, or defenses of
a certified class — or a class proposed to be certified for purposes of settlement — may

be settled, voluntarily dismissed, or compromised only with the court’s approval.” Fed.
R. Civ. P. 23(e). “At the preliminary approval stage, a court makes an initial evaluation
of fairness prior to notifying the class . . . .” , No. 18-CV-6720 (NGG)
(PK), 2021 WL 508339, at *3 (E.D.N.Y. Feb. 11, 2021).
Preliminary approval is guided by a “likelihood standard,” i.e., “whether the
parties have shown that the court will be able to grant final approval and certify
the class.” ,
330 F.R.D. 11, 28 n.21 (E.D.N.Y. 2019); Fed. R. Civ. P. 23(e)(1)(B)(i)–(ii). “If the
court determines that notice to class members is ‘justified by the parties’ showing’” as to
the likelihood of final approval and class certification, “it ‘must direct notice in a

reasonable manner to all class members who [would] be bound by the proposal.’”
, 2021 WL 508339, at *4 (quoting Fed. R. Civ. P. 23(e)(1)(B)). The court must
also appoint class counsel for purposes of settlement. , 330 F.R.D. at 58.
The Court begins with an analysis of the likelihood of final settlement approval
and class certification, then assesses the proposed form and manner of notice, and
concludes with appointment of class counsel.

I. Likelihood of Final Settlement Approval
A. Legal Principles
In assessing the likelihood of final approval, courts “look[] to the factors
contained in the text of Rule 23(e)(2).” , 330 F.R.D. at 28. Under Rule
23(e)(2), courts must consider whether:
(A) the class representatives and class counsel have adequately
represented the class;

(B) the proposal was negotiated at arm’s length;

(C) the relief provided for the class is adequate, taking into account:

(i) the costs, risks, and delay of trial and appeal;

(ii) the effectiveness of any proposed method of distributing relief to
the class, including the method of processing class-member claims;

(iii) the terms of any proposed award of attorney’s fees, including
timing of payment; and

(iv) any agreement required to be identified under Rule 23(e)(3); and
(D) the proposal treats class members equitably relative to each other.

Fed. R. Civ. P. 23(e)(2). “[P]aragraphs (A) and (B) are ‘procedural’ factors that address
‘the conduct of the litigation and of the negotiations leading up to the proposed
settlement,’ whereas . . . paragraphs (C) and (D) are ‘substantive’ factors that address
the ‘relief that the settlement is expected to provide to class members.’” , 2021
WL 508339, at *3 (quoting Fed. R. Civ. P. 23 advisory committee’s note to 2018
amendment).
The substantive factors are supplemented by the nine factors, which
“courts in this Circuit have traditionally considered” when “evaluating the fairness,
reasonableness, and adequacy of the proposed settlement.” (citing
, 495 F.2d 448, 463 (2d Cir. 1974),
, 209 F.3d 43 (2d Cir. 2000)); , 330 F.R.D.

at 29 (noting the “significant overlap” between the and substantive factors).
The factors include:
(1) the expense, complexity, and likely duration of the litigation; (2) the
class’s reaction to the settlement; (3) the stage of the proceedings and
amount of discovery completed; (4) the risks of establishing damages;
(5) the risks of establishing liability; (6) the risks of maintaining the class
throughout the litigation; (7) defendants’ ability to withstand greater
judgment; (8) the range of reasonableness of the settlement amount
considering the best possible recovery; and (9) the range of reasonableness
of the settlement amount[,] given the risks of litigation.

, 2021 WL 508339, at *3 (citing , 495 F.2d at 463).
B. Procedural Factors
1.
“In determining the adequacy of class representatives and counsel, courts

consider ‘whether (1) plaintiff[s’] interests are antagonistic to the interests of other
members of the class and (2) plaintiff[s’] attorneys are qualified, experienced[,] and able
to conduct the litigation.’” , 2021 WL 508339, a *4 (quoting
, 502 F.3d 91, 99 (2d Cir. 2007)); ,
330 F.R.D. at 30 n.25 (explaining that “Rule 23(a)(4) case law . . . guide[s]” the Rule
23(e)(2)(A) analysis). Class representatives “‘must be part of the class and possess the

same interest and suffer the same injury as the [other] class members.’”
, 564 U.S. 338, 348–49 (2011) (quoting
, 431 U.S. 395, 403 (1977)); , 330 F.R.D. at 31
(explaining that the Due Process Clause requires adequate representation). As for class
counsel, “[a] court reviewing a proposed settlement must pay close attention to the
negotiating process, to ensure that . . . counsel have possessed the experience and

ability, and have engaged in the discovery[] necessary to effective representation of the
class’s interests.” , 236 F.3d 78, 85 (2d Cir. 2001) (quotation
marks omitted); Fed. R. Civ. P. 23 advisory committee’s note to 2018 amendment
(“For example, the nature and amount of discovery in this or other cases . . . may
indicate whether counsel negotiating on behalf of the class had an adequate information
base.”).
Here, the record illustrates that Plaintiffs’ interests are aligned with those of the
proposed class. Plaintiffs seek to represent “all persons and entities . . . who purchased
or otherwise acquired Northern Dynasty securities from December 21, 2017 through

November 24, 2020,” with certain exclusions,7 and Plaintiffs themselves purchased
Northern Dynasty securities during the Class Period. (Amend. Compl., ECF No. 37,
¶¶ 1, 12–13.) Plaintiffs also claim financial harm resulting from Defendants’ alleged
violations of the Exchange Act — harm that the other proposed class members are also
alleged to have suffered. ( ¶¶ 144–50.) Absent any indication that Plaintiffs’ interests
in this action “are antagonistic to the interest[s] of other members of the class,” the

record demonstrates that Plaintiffs are well positioned to represent the proposed class.
, 502 F.3d at 99.
The Court similarly finds that Plaintiffs are adequately represented by their
attorneys, considering Judge Mann’s previous observation that Lead Counsel “is
experienced, competent, and well-qualified to conduct the class action securities
litigation at hand.” (Mem. and Order, ECF No. 32, at 13; Pomerantz Firm

Resume, ECF No. 17-6.) The Court further notes that Lead Counsel has on several

7 Specified groups excluded from the class include: the Individual Defendants, the
officers and directors of Northern Dynasty, members of the Individual Defendants’ immediate
families and their legal representatives, heirs, successors or assigns, and any entity in which
Individual Defendants have or had a controlling interest. ( Revised Proposed Settlement
Agreement (“Revised Settlement”), ECF No. 64-1, ¶ 1.39.) Also excluded from the class is any
individual or entity, who or which has: asserted claims against any or all of the Defendants in
any cross-border litigation initiated outside of the United States; been deemed by a court to be a
member of a class in such litigation, for settlement purposes or otherwise; is entitled to a
settlement or other distribution payment in connection with the resolution of the cross-border
litigation, regardless of whether such payment is cashed; and those who or which exclude
themselves by submitting a request for exclusion from the class that is accepted by the Court.
( )
occasions been appointed class counsel for the purpose of settlement.
, 317 F. Supp. 3d 858, 863, 876 (S.D.N.Y. 2018);
, 312 F.R.D. 307, 329 (S.D.N.Y. 2016) (appointing Pomerantz LLP as lead counsel).

Both the pleadings and motion papers demonstrate a thorough investigation by Lead
Counsel into the underlying facts and applicable law. ( Amend. Compl.,
ECF No. 37; Pls.’ Mem. in Opp’n to Mot. to Dismiss, ECF No. 40.) Lead Counsel also
“attended a full-day mediation session,” during which “negotiations were at all times
hard-fought.” (Supp. Mem., ECF No. 57, at 15.)
Plaintiffs acknowledge that “the Parties had not begun formal discovery” prior

to the settlement, a fact that could call into question whether Lead Counsel has
adequately represented the interests of the proposed class. ( at 17.) The Court is
mindful, however, that Defendants promptly moved to dismiss after Plaintiffs filed the
amended complaint, thereby triggering the discovery stay mandated by the Private
Securities Litigation Reform Act (“PSLRA”). 15 U.S.C. § 77z-1(b)(1). ( Mot. to
Dismiss, ECF No. 39.) Given that statutory limitation, and in light of Lead Counsel’s

extensive pre- and post-filing efforts to investigate and substantiate the alleged
violations, the Court finds that Plaintiffs are being represented by “qualified,
experienced” legal counsel. , 502 F.3d at 99.
2.
“A class settlement reached through arm’s-length negotiations between
experienced, capable counsel knowledgeable in complex class litigation is entitled to a
presumption of fairness.” , 2021 WL 508339, at *5 (quotation marks omitted).
Likewise, “a court-appointed mediator’s involvement in pre-certification settlement
negotiations helps to ensure that the proceedings were free of collusion and undue
pressure.” , 236 F.3d at 85.

As to the parties’ selected mediator, Robert Meyer, several courts in this circuit
have held that Mr. Meyer’s involvement has supported a finding that settlement
negotiations were at arm’s length. , No. 18-CV-6716
(TAM), 2022 WL 198491, at *8–9 (E.D.N.Y. Jan. 21, 2022);
, No. 00-CV-1884 (AVC), 2007 WL 2115592, at *3 (D. Conn. July 20, 2007).
Additionally, as noted above, Plaintiffs represent that the mediation was a “full-day”

session and that “negotiations were at all times hard-fought.” (Supp. Mem., ECF No. 57,
at 15.) Based on the record in this case, the Court perceives no “‘evidence or indicia
suggesting that the negotiations were collusive.’” , 2022 WL 4296092, at *4
(quoting , No. 17-CV-1091 (VAB), 2019 WL 1435055, at
*13 (D. Conn. Jan. 14, 2019)). The Court therefore finds that the parties’ proposed
settlement was the result of arm’s length negotiations.

C. Substantive Factors
1.
a. Costs, Risks, and Delay of Trial and Appeal
The first factor in assessing whether the proposed settlement provides adequate
relief for the putative class is an evaluation of the “costs, risks, and delay of trial and
appeal.” Fed. R. Civ. P. 23(e)(2)(C)(i). This factor “‘subsumes several factors,’
including the complexity, expense and likely duration of litigation, the risks of
establishing liability, the risks of establishing damages, and the risks of maintaining the
class through trial” (factors 1, 4, 5, and 6). , 2021 WL 508339, at *5 (quoting
, 330 F.R.D. at 36). Put simply, courts must assess whether the proposed

settlement “‘results in substantial and tangible present recovery, without the attendant
risk and delay of trial.’” (quoting , 330 F.R.D. at 36).
Plaintiffs have submitted the parties’ proposed settlement agreement, which
indicates that the settlement amount is $6.375 million. ( Revised Settlement, ECF No.
64-1, ¶ 1.38.) Plaintiffs acknowledge that this amount “represents a recovery of
approximately 2.3%” of the total potential maximum damages award, which Plaintiffs’

damages expert estimated at approximately $281 million. (Supp. Mem., ECF No. 57, at
19.) They clarify, however, that the $281 million figure represents Plaintiffs’ best-case
scenario — “if Plaintiffs fully prevailed at summary judgment and trial, and the Court
and jury accepted Plaintiffs’ damages theory.” ( ) Plaintiffs therefore argue that the
$6.375 million settlement amount is reasonable given the costs, risks, and likely
duration of the litigation. ( at 16.) For example, Plaintiffs assert that “[i]f the

Settlement were not reached, the Parties would have to incur substantial costs and
engage in prolonged litigation through class certification, summary judgment, trial[,]
and if applicable, subsequent appeals.” ( ; Fairness Hearing, ECF No. 62, at 13:4–
15:10.) As to the “substantial risks” of continued litigation, Plaintiffs point to the risk of
establishing liability and damages, noting that “[p]roving, not merely alleging, that
Defendants’ statements and omissions were false or misleading . . . would be a difficult
task,” as well as the risks of maintaining the class action through trial. (Supp. Mem.,
ECF No. 57, at 17–18.)
The Court agrees that the costs, risks, and likely duration of continuing to litigate

this matter are significant and that a settlement would result in a tangible present
recovery. This factor therefore weighs in favor of preliminary approval of the parties’
proposed settlement.
b. Effectiveness of Proposed Method of Distributing Relief
The Court next evaluates the parties’ “proposed method of distributing relief to
the class, including the method of processing class-member claims.” Fed. R. Civ. P.

23(e)(2)(C)(ii). “An allocation formula need only have a reasonable, rational basis” and
“need not be perfect.” , 330 F.R.D. at 40 (quotation marks omitted). As to
claims processing, the proposed method should “‘deter or defeat unjustified claims’
without imposing an undue demand on class members.” , 2021 WL 508339, at
*6 (quoting Fed. R. Civ. P. 23 advisory committee’s note to 2018 amendment).
The parties have submitted a Proposed Plan of Allocation, indicating that

claimants are to receive a “ share of the Net Settlement Fund based upon” their
respective losses. (Revised Long Notice, ECF No. 64-5, at 7.) As a general matter, shares
of the fund will be calculated by evaluating each claimant’s estimated loss per share
based on when the claimant purchased or otherwise acquired the shares, when the
shares were sold, and the inflation of the stock price per share at the time of purchase
and sale. ( at 7–10; Fairness Hearing, ECF No. 62, at 16–17.) No distribution will
be made to claimants “who would otherwise receive a distribution of less than $10.00.”
(Revised Long Notice, ECF No. 64-5, at 12.) Claimants will be required to report their
losses by submitting a proof of claim form, which the Claims Administrator will review
to determine each claimant’s respective share of the settlement amount. (

at 7.) The process for distributing the claims follows a standard formula that was
reviewed by Plaintiff’s retained experts. ( Fairness Hearing, ECF No. 62, at 16–17.)
“This allocation plan appears to be rational and fair, as it treats class members equitably
while taking into account variations in the magnitude of their injuries.” , 2021
WL 508339, at *6. Likewise, it appears that the claims processing method imposes a
minimal burden on claimants and will adequately filter out unjustified claims to

settlement funds. The Court therefore finds that the proposed methods of processing
claims and distributing relief are rational and fair.
c. Proposed Award of Attorneys’ Fees
The third factor in the evaluation of whether the settlement provides adequate
relief is an assessment of “the terms of any proposed award of attorneys’ fees, including
timing of payment.” Fed. R. Civ. P. 23(e)(2)(C)(iii). “Courts may award attorneys’ fees in

common fund cases under either the ‘lodestar’ method or the ‘percentage of the fund’
method.” , 396 F.3d 96, 121 (2d Cir. 2005)
(quoting , 209 F.3d at 50).
Here, Plaintiffs’ counsel intends to “seek an award of attorneys’ fees of no more
than one third of the Settlement Amount, and reimbursement of litigation expenses in
an amount not to exceed $500,000.” (Supp. Mem., ECF No. 57, at 20.) “Courts in this
Circuit routinely find that requests for attorney’s fees totaling one-third of the
settlement fund are well within the range of reasonableness” — particularly “in cases
with funds of less than $10 million.” , 2021 WL 508339, at *6 (quotation marks
omitted). Assuming that Lead Counsel’s request for litigation expenses is documented

and substantiated, the Court finds that the requested award for attorneys’ fees will
likely be found to be reasonable.8
d. Other Agreements
The fourth factor requires courts to consider “any agreement required to be
identified under Rule 23(e)(3),” i.e., “any agreement made in connection with the
proposal.” Fed. R. Civ. P. 23(e)(2)(C)(iv), (e)(3). Rule 23(e)(3) is aimed at revealing

“undertakings that, although seemingly separate, may have influenced the terms of the
settlement by trading away possible advantages for the class in return for advantages
for others,” namely, the representative plaintiffs or their attorneys. Fed. R. Civ. P. 23
advisory committee’s note to 2003 amendment; David F. Herr, Annotated
Manual for Complex Litigation § 21.631 (4th ed. 2022) (“Requiring the parties to file the
complete agreement might elicit comments from class members and facilitate judicial

review.”).
Here, Plaintiffs have entered a “supplemental agreement” with Defendants.
(Supp. Mem., ECF No. 57, at 21; Suppl. Agreement, ECF No. 63.) Having

8 The Court notes that Lead Counsel’s requested award is, of course, subject to
modification at final settlement approval. , 2021 WL 508339, at *7. Lead Counsel
should be prepared to submit contemporaneous time records to facilitate a cross-check against
the lodestar. , 2022 WL 198491, at *14–17;
, 767 F.3d 144, 148–49 (2d Cir. 2014) (discussing the “strict rule” that
any request for attorneys’ fees must be “accompanied by contemporaneous time records”
(quotation marks omitted)).
reviewed the parties’ filing, the Court finds that Plaintiffs have accurately described the
terms of the supplemental agreement in their motion for preliminary settlement
approval. Specifically, the supplemental agreement provides that: “if Settlement Class

Members opt out of the Settlement such that the number of Northern Dynasty securities
represented by such opt-outs exceeds a certain amount, [Northern Dynasty] shall have
the option to terminate the Settlement.” (Supp. Mem., ECF No. 57, at 21.) The precise
terms of the supplemental agreement are to be kept “confidential to avoid creating
incentives for a small group of class members to opt out solely to leverage the threshold
to exact an individual settlement.” ( ) The Court notes that such agreements are

“standard in securities class action settlements.” , No. 15-
MD-2631 (CM) (SDA), 2019 WL 5257534, at *15 (S.D.N.Y. Oct. 16, 2019). “Given the
specific function of this separate agreement, it does not appear to bear upon the overall
fairness of the settlement agreement itself.” , 2022 WL
198491, at *13. The Court therefore finds that the supplemental agreement is unlikely to
preclude final settlement approval.

2.
The proposed settlement must “treat[] class members equitably relative to each
other.” Fed. R. Civ. P. 23(e)(2)(D). In making this assessment, “the court may weigh
‘whether the apportionment of relief among class members takes appropriate account of
differences among their claims, and whether the scope of the release may affect class
members in different ways that bear on the apportionment of relief.’” , 2021
WL 508339, at *7 (quoting Fed. R. Civ. P. 23 advisory committee’s note to 2018
amendment). As explained above, under the Proposed Plan of Allocation, the
settlement funds are to be distributed on a basis. “In this way, the agreement

appropriately and fairly accounts for . . . point[s] of differentiation among class
members’ claims.”
The Court further notes that the proposed settlement agreement contemplates an
incentive award to Plaintiffs, paid out of the settlement fund. ( Revised Settlement,
ECF No. 64-1, ¶ 8.2(c).) Although the exact amount for the potential incentive award is
not specified in the agreement, the Long Notice provides that “Lead Counsel may apply

for awards to Plaintiffs in connection with their representation of the Settlement Class
in an amount not to exceed $25,000, combined.” (Revised Long Notice, ECF No. 64-5, at
2; at 15 (“Lead Counsel will file a motion asking the Court . . . to make an
award . . . to Plaintiffs collectively not to exceed $25,000 (up to $20,000 for Lead Plaintiff
Lawrence Kelemen and $5,000 for Named Plaintiff Charles Hymowitz).”).) “Incentive
awards are not uncommon in class action cases and are within the discretion of the

court.” , No. 11-CV-1368 (NGG) (VVP), 2014
WL 1330957, at *3 (E.D.N.Y. Mar. 31, 2014) (quotation marks omitted). At this juncture,
given the size of the settlement fund, the Court finds it unlikely that a requested award
of up to $25,000 total (split between two Plaintiffs, according to their level of
contribution) will preclude final settlement approval, assuming that Plaintiffs
demonstrate “special circumstances” for such an award.9 . (quotation marks omitted).
3. 10

“This [ ] factor requires the Court to consider whether the parties have
adequate information about their claims.” , 874 F.
Supp. 2d 179, 198 (S.D.N.Y. 2012). “To approve a proposed settlement,” however, “the
Court need not find that the parties have engaged in extensive discovery.”
, 80 F. Supp. 2d 164, 176 (S.D.N.Y. 2000). The
Court need only ensure that the parties have sufficiently investigated the facts such that

the settlement is fair and reasonable.
As the parties acknowledge, “[they] had not begun formal discovery.” (Supp.
Mem., ECF No. 57, at 17; Fairness Hearing, ECF No. 62, at 7:9–25, 11:20–25.)
Notwithstanding that, Plaintiffs assert that they “conducted a thorough investigation
supporting a detailed Consolidated Amended Complaint” and “thoroughly

9 Special circumstances include “the personal risk (if any) incurred by the plaintiff-
applicant in becoming and continuing as a litigant, the time and effort expended by that
plaintiff in assisting in the prosecution of the litigation or in bringing to bear added value (e.g.,
factual expertise),” as well as “any other burdens sustained by that plaintiff in lending himself
or herself to the prosecution of the claim, and of course, the ultimate recovery.”
, No. 11-CV-1368 (NGG) (VVP), 2014 WL 1330957, at *3 (E.D.N.Y.
Mar. 31, 2014) (quotation marks omitted); (“[C]lass actions in . . . securities or antitrust
litigation generally do not carry the same risk to named plaintiffs.”). The reasonableness and
amount of the incentive award may also depend on the average amount ultimately paid to
similarly situated individual claimants out of the settlement fund. at *4 (reducing
proposed incentive award based, in part, on estimated compensation to be paid to other class
members). Plaintiffs “are encouraged to be mindful of [these] concerns when” making any
future request for an incentive award. .

10 The second factor, “the class’s reaction to the settlement,” cannot be assessed
at this time. , 2021 WL 508339, at *3; at *4 n.2 (declining to assess this factor at
the preliminary approval stage).
investigat[ed] the case and exchang[ed] mediation statements with Defendants.” (Supp.
Mem., ECF No. 57, at 17.) The Court again notes that discovery was stayed under the
PSLRA. . Under these circumstances, and given that the well-developed

allegations of the pleadings substantiate Plaintiffs’ representations as to the
investigative efforts that have been undertaken in this matter, the Court finds that
Plaintiffs were adequately informed about their claims prior to reaching a proposed
settlement.
4.
“Under the analysis, the [C]ourt also considers Defendants’ ability to

withstand a greater judgment than that provided for in the proposed settlement.”
, 2021 WL 508339, at *7. Plaintiffs claim that to their knowledge, Defendants
currently have somewhere between $7 to $9 million cash on hand, which estimate was
derived from publicly filed sources, i.e., relevant SEC filings and quarterly statements to
investors. ( Fairness Hearing, ECF No. 62, at 7:19–8:11, 9:17–25.) Plaintiffs also
represent that, to their knowledge, costs attributable to Defendants’ various litigation

proceedings may eventually exhaust their insurance, leading Plaintiffs to believe that
they should “take what [they] can now as opposed to continue to waste and erode
further policy proceeds.” ( at 10:14–25.)
The Court notes that a defendant’s “ability to withstand a greater judgment,
standing alone, does not suggest that the settlement is unfair.” , 874 F.
Supp. 2d at 201 (quotation marks omitted). Accordingly, although the proposed $6.375
million settlement may be less than Defendants’ theoretical capacity to pay, based on
Plaintiffs’ representations regarding the financial outlook of Northern Dynasty going
forward, the Court finds that this factor is not likely to preclude settlement approval.
5.

The Court next considers “the range of reasonableness of the settlement fund in
light of [both] the best possible recovery” and “the attendant risks of litigation.”
, 731 F.3d 241, 247 (2d Cir. 2013); , 330 F.R.D. at 47–
48 (noting that these “two factors . . . are often combined for the purposes of
analysis”). To calculate the best possible recovery, courts “assume complete victory on
both liability and damages as to all class members on every claim asserted against each

defendant in the [a]ction.” , 330 F.R.D. at 48 (quotation marks omitted).
The risks of litigation include “the uncertainties of law and fact in any particular case
and the concomitant risks and costs necessarily inherent in taking any litigation to
completion.” , 396 F.3d at 119 (quotation marks omitted).
Here, Plaintiffs aver that the settlement amount “represents a recovery of
approximately 2.3%” of the total maximum potential damages. (Supp. Mem., ECF No.

57, at 19.) That said, “[t]he fact that a proposed settlement may only amount to a
fraction of the potential recovery does not . . . mean that the proposed settlement is
grossly inadequate and should be disapproved.” , 495 F.2d at 455. “[T]here is
no reason, at least in theory, why a satisfactory settlement could not amount to a
hundredth or even a thousandth part of a single percent of the potential recovery.”
at 455 n.2. This is because the “best possible recovery” may not be “a realistic” one.
, No. 88-CV-3024 (CPS), 1990 WL 73423, at *13 (E.D.N.Y.
May 22, 1990). Accordingly, it remains important to evaluate the settlement amount “in
light of the strengths and weaknesses of plaintiffs’ case.”
, No. 20-CV-982 (ENV) (CLP), 2023 WL 2184496, at *16 (E.D.N.Y.

Feb. 16, 2023) (quotation marks omitted). Given the risks of litigation described above,
the heightened legal standards under the PSLRA, the complexity of the case, and the
financial risks Defendants presently face, the Court finds that the parties’ settlement
amount falls within a reasonable range.11
* * * * *
On balance, the Court concludes that both the procedural and substantive factors

set forth in Rule 23 and suggest that the parties’ proposed settlement is fair and
reasonable.
II. Likelihood of Class Certification
A. Legal Principles
“In order to conclude that giving notice to the putative class is justified, the court
must also determine that it will likely be able to certify the class for purposes of

judgment on the proposal” under Rule 23(a) and (b). , 2021 WL 508339, at *8.
It is the burden of the party seeking class certification to “affirmatively demonstrate”

11 The Court further notes that the approximately 2.3% settlement amount proposed in
this case is somewhat higher than the median settlement for cases with similar estimated losses,
but not dramatically so. NERA Economic Consulting,
, at 18,
https://www.nera.com/content/dam/nera/publications/2023/PUB_2022_Full_Year_Trends.
pdf (last visited Aug. 23, 2023) (estimating a 1.8% median ratio of settlement to investor losses
in cases settled in 2022); Cornerstone Research,
, at 4, https://www.cornerstone.com/wp-
content/uploads/2023/03/Securities-Class-Action-Settlements-2022-Review-and-Analysis.pdf
(last visited Aug. 23, 2023).
compliance with these rules. , 689 F.3d 229, 237 (2d
Cir. 2012) (quotation marks omitted).
Rule 23(a) sets forth the familiar “four prerequisites for class certification”:

(1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.
, 2021 WL 508339, at *8; Fed. R. Civ. P. 23(a). “In addition to the explicit
requirements of Rule 23(a), the class must satisfy the implied requirement of
ascertainability.” , 330 F.R.D. at 50 (citing , 862 F.3d
250, 266 (2d Cir. 2017)).
Rule 23(b) “lays out three alternative ‘types’ of class actions that may be

maintained.” , 2021 WL 508339, at *9. Relevant here, Plaintiffs seek
certification under Rule 23(b)(3), which “requires both that (1) ‘questions of law or fact
common to class members predominate over any questions affecting only individual
members,’ and that (2) ‘a class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.’” , 330 F.R.D. at 54 (quoting
Fed. R. Civ. P. 23(b)(3)). ( Supp. Mem., ECF No. 57, at 10–12.)

B. Rule 23(a) Requirements
1.
“The numerosity requirement mandates that the class be ‘so numerous that
joinder of all members is impracticable.’” , 269 F.R.D. 298,
304 (S.D.N.Y. 2010) (quoting Fed. R. Civ. P. 23(a)(1)). The “inquiry is not strictly
mathematical but must take into account the context of the particular case.”
, 772 F.3d 111, 120 (2d Cir. 2014);
(listing factors to consider). As a general rule, when a class consists of forty or more
members, numerosity is presumed. , 47 F.3d
473, 483 (2d Cir. 1995).

Here, Plaintiffs assert that, “[a]lthough the exact size of the Settlement Class is
not yet known . . . there are likely hundreds, if not thousands of potential Settlement
Class Members as Northern Dynasty’s common stock was actively traded on the New
York Stock Exchange with millions of shares traded during the relevant period.” (Supp.
Mem., ECF No. 57, at 6.) The Court notes that, “[i]n securities fraud class actions
relating to publicly owned and nationally listed corporations, the numerosity

requirement may be satisfied by a showing that a large number of shares were
outstanding and traded during the relevant period.” , 269 F.R.D. at 304
(quotation marks omitted). Due to the large number of impacted shares and possible
class members, numerosity can be presumed in this case. at 309;
, No. 17-CV-10001 (VSB), 2022 WL 950953, at *4 (S.D.N.Y. Mar. 29,
2022) (“[A]n estimate of thousands of class members is sufficient to satisfy the

numerosity requirement.” (quotation marks omitted)).
2.
“Commonality requires a showing that common issues of fact or law affect all
class members.” , 269 F.R.D. at 304 (citing Fed. R. Civ. P. 23(a)(2)). It “requires
the plaintiff to demonstrate that the class members ‘have suffered the same injury,’” not
“merely that they have all suffered a violation of the same provision of law.” , 564
U.S. at 349–50 (quoting , 457 U.S. 147, 157 (1982)). “In other
words, the relevant inquiry is whether a classwide proceeding is capable of
‘generat[ing] common apt to drive the resolution of the litigation.’”
, 602 F. App’x 3, 6 (2d Cir. 2015) (alteration in original) (quoting

, 564 U.S. at 350).
“‘Common questions of law and fact are present where the alleged fraud
involves material misrepresentations and omissions in documents circulated to the
investing public, press releases and statements provided to the investment community
and the media, and investor conference calls.’”
, 312 F.R.D. 332, 341 (S.D.N.Y. 2015) (quoting

, 281F.R.D. 150, 156 (S.D.N.Y. 2012)). Given the nature of the allegations in this case,
which center on material misrepresentations and omissions in public filings, the Court
concludes that the pleadings establish that the class members have suffered the same
injury. As a result, commonality is present.
3.
“[T]he typicality requirement[] is satisfied by a showing that ‘each class

member’s claim arises from the same course of events and each class member makes
similar legal arguments to prove the defendant’s liability.’”
, 328 F.R.D. 71, 80 (S.D.N.Y. 2018) (quoting
, 574 F.3d 29, 35 (2d Cir. 2009)). It “is usually met” where “the same unlawful
conduct was directed at or affected both the named plaintiff and the class sought to be
represented.” , 987 F.2d 931, 936–37 (2d Cir. 1993). “In securities
actions, in particular, typicality is ‘not demanding.’” , 328 F.R.D. at
80 (quoting , 283 F.R.D. 199, 208
(S.D.N.Y. 2012)). The Court therefore finds that Plaintiffs have met the typicality

requirement in this case.
4.
To satisfy the adequacy requirement, “[p]laintiffs must meet two standards —
that ‘class counsel . . . be qualified, experienced[,] and generally able to conduct the
litigation,’ and that ‘the class members . . . not have interests that are antagonistic to one
another.’” , 2022 WL 950953, at *4 (quoting

, 960 F.2d 285, 291 (2d Cir. 1992)). Based on the Court’s determinations
regarding the parallel requirements under Rule 23(e)(2), the Court finds that the
proposed class is adequately represented by Plaintiffs and Lead Counsel, and that the
adequacy requirement will likely be found at the time of final settlement approval and
judgment.
5.

“[A] class is ascertainable if it is defined using objective criteria that establish a
membership with definite boundaries.” , 862 F.3d at 257. The
Second Circuit has observed that defining a class based on “securities purchases
identified by subject matter, timing, and location” is both a “clearly objective” means of
doing so and “sufficiently definite.” at 269. Accordingly, given the defined class
period, and the allegations and claims at issue in this case, the proposed class appears to
be sufficiently ascertainable.
C. Rule 23(b)(3) Requirements
“Rule 23(b)(3) imposes two additional burdens on plaintiffs attempting to
proceed by class action, namely, predominance and superiority.”

, 780 F.3d 70, 81 (2d Cir. 2015); Fed. R. Civ. P. 23(b)(3) (requiring “that
the questions of law or fact common to class members predominate over any questions
affecting only individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy”). These inquiries are
ordinarily guided by four factors:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3). However, in the settlement context, “‘[s]ome inquiries essential
to litigation [of] class certification,’ including the issue of ‘manageability — how the
case will or can be tried, and whether there are questions of fact or law that are capable
of common proof,’” are no longer relevant. , 2021 WL 508339, at *10 (quoting
, 689 F.3d at 239). The other factors, however, “demand undiluted,
even heightened, attention.” , 689 F.3d at 239 (quotation marks
omitted).
1.
“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation.”

, 521 U.S. 591, 623 (1997). Again, because the prospect of settlement obviates
the manageability concerns ordinarily assessed as part of this inquiry, the focus is
instead whether “‘the legal or factual questions that qualify each class member’s case
. . . achieved through generalized proof, and if these particular issues are more
substantialthan the issues subject only to individualized proof.’” , 330
F.R.D. at 55 (quoting , 778 F.3d 401, 405 (2d Cir. 2015));

, 2021 WL 508339, at *10.
Because this action concerns claims of securities fraud, the predominance test is
“readily met.” , 689 F.3d at 240 (quotation marks omitted). Class
members’ claims, i.e., that Northern Dynasty made misrepresentations and omissions
regarding the company to the public that harmed shareholders, involve similar, if not
identical, questions of law and fact. To the extent there are unique issues as to each class

member, for instance, the amount of stock held by each class member, the common
questions are “more substantial.” , 330 F.R.D. at 55 (quotation marks
omitted). Accordingly, the Court finds that common questions of law and fact
predominate over individual questions, and the proposed class is “sufficiently cohesive
to warrant adjudication by representation.” , 521 U.S. at 623.
2.
“Rule 23(b)(3)’s superiority requirement may be satisfied when ‘the costs of
bringing individual actions outweigh the expected recovery,’ and when consolidation

‘will achieve significant economies of time, effort and expense, and promote uniformity
of decision.’” , 2021 WL 508339, at *10 (quoting
, 729 F.3d 108, 130 (2d Cir. 2013)). “The superiority requirement is designed
to avoid repetitious litigation and possibility of inconsistent adjudications.”
, 330 F.R.D. at 57 (quotation marks omitted).
Here, given that Plaintiffs assert that “there are likely hundreds, if not thousands

of potential Settlement Class Members,” the prospect of individual actions would
certainly prove less efficient than a class-wide proceeding. (Supp. Mem., ECF No. 57, at
6.) The Court therefore finds it likely that the superiority requirement will be met.
* * * * *
For the above reasons, the Court finds that Plaintiffs have demonstrated a good
likelihood of class certification. Having concluded that Plaintiffs have also

demonstrated a likelihood of final settlement approval, the Court grants preliminary
settlement approval and finds that notice to “all class members who would be bound by
the proposal” is justified. Fed. R. Civ. P. 23(e)(1)(B).
III. Notice
Under Rule 23, notice may be issued by either “United States mail, electronic
means, or other appropriate means.” Fed. R. Civ. 23(c)(2)(B). Additionally:
The notice must clearly and concisely state in plain, easily understood
language:
(i) the nature of the action;

(ii) the definition of the class certified;

(iii) the class claims, issues, or defenses;

(iv) that a class member may enter an appearance through an attorney
if the member so desires;

(v) that the court will exclude from the class any member who requests
exclusion;

(vi) the time and manner for requesting exclusion; and

(vii) the binding effect of a class judgment on members under Rule
23(c)(3).

Ultimately, “[t]he standard for the adequacy of a settlement notice in a class
action under either the Due Process Clause or the Federal Rules is measured by
reasonableness.” , 396 F.3d at 113–14. Courts in this Circuit have found that
a settlement notice is sufficient “when it describe[s] the terms of the settlement
generally, inform[s] the class about the allocation of attorneys’ fees, and provide[s]
specific information regarding the date, time, and place of the final approval hearing.”
, 330 F.R.D. at 58–59 (quotation marks omitted); (collecting cases).
Plaintiffs have submitted several notices for the Court’s review, including a long
form notice, a summary notice, and a postcard notice. ( Revised Long Notice, ECF
No. 64-5; Revised Summary Notice, ECF No. 64-7; Revised Postcard Notice, ECF No. 64-
9.) The long form notice sets forth a more extensive description of the action and claims
process, while the summary and postcard notices contain abbreviated versions of the
same information. Having carefully reviewed the parties’ filings, the Court finds that
the proposed notices contain the information required by Rule 23, set forth “in plain,
easily understood language.” Fed. R. Civ. P. 23(c)(2)(B).

Plaintiffs have also submitted the following proposed schedule of events:
Event Deadline for Compliance
Emailing Summary Notice and/or No later than 21 calendar days after the
mailing Postcard Notice; Creating entry of the Preliminary Approval Order.
website with Stipulation, Long (¶ 11, 16)
Notice, and Claim Form.
Publication of the Summary Notice. No later than 21 calendar days after entry of
Preliminary Approval Order. (¶ 17)
Date for Plaintiffs to file papers in No later than 28 calendar days before the
support of the Settlement, the Plan of Settlement Hearing. (¶ 27)
Allocation, and for application of
attorneys’ fees and expenses.
Submission deadline for requests for No later than 21 calendar days before the
exclusion. Settlement Hearing. (¶ 21)
Submission deadline for objections. No later than 21 calendar days before the
Settlement Hearing. (¶ 25)
Submission deadline for Claim No later than 7 calendar days after the
Forms. Settlement Hearing. (¶ 19)
Date for Plaintiffs to file reply papers No later than 7 calendar days before the
in support of the Settlement, the Plan Settlement Hearing. (¶ 28)
of Allocation, and for application of
attorneys’ fees and expenses.
Date for Settlement Hearing. At the Court’s earliest convenience at least
100 calendar days after the entry of the
Preliminary Approval Order.

(Supp. Mem., ECF No. 57, at 25.) The proposed Preliminary Approval Order also
mandates that Lead Counsel provide Class Members notice of the Settlement by either:
“(a) emailing the Summary Notice to Settlement Class Members for whom the Claims
Administrator is able to obtain email addresses, or (b) mailing the Postcard Notice, if an
email address cannot be obtained, by first class mail to Settlement Class Members who
can be identified with reasonable effort.” ( at 23–24 (footnote omitted).) “After entry
of the proposed [Revised] Preliminary Approval Order, the Stipulation and its exhibits,
the Preliminary Approval Order, and the Long Notice and Claim Form will be posted

on the Claims Administrator’s website. Additionally, Summary Notice will be
published electronically once on and in print once in
.” ( at 24.)
The Court finds that Plaintiffs’ proposed schedule and manner of notice comply
with Rule 23 and adequately afford due process. Notice should be ordered as proposed
by the parties, including distribution of the long form notice and summary and

postcard notices.
IV. Appointment of Class Counsel
“When a district court certifies a class, it must appoint class counsel.”
, 330 F.R.D. at 58. Under Rule 23(g)(1)(A), the Court “must consider: (i) the work
counsel has done in identifying or investigating potential claims in the action;
(ii) counsel’s experience in handling class actions, other complex litigation, and the

types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law;
and (iv) the resources that counsel will commit to representing the class.” Fed. R. Civ. P.
23(g)(1)(A). The Court may also “consider any other matter pertinent to counsel’s ability
to fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B).
“The adequacy of counsel requirement is [ordinarily] satisfied where the class attorneys
are experienced in the field or have demonstrated professional competence in other
ways, such as by the quality of the briefs and the arguments during the early stages of
the case.” Mendez v. MCSS Rest. Corp., No. 16-CV-2746 (NGG) (RLM), 2019 WL
2504613, at *13 (E.D.N.Y. June 17, 2019) (quotation marks omitted).
As discussed above, the filings in this case show that Lead Counsel has engaged
in significant investigation of the underlying claims, that they are experienced in class
action securities litigation and are knowledgeable in the applicable area of law, and that
they have the resources necessary to represent the class. The Court therefore appoints
Lead Counsel as class counsel for the purposes of settlement.
CONCLUSION
For the foregoing reasons, the Court (1) grants Plaintiffs’ motion for preliminary
settlement approval (ECF No. 56); (2) enters the proposed order preliminarily
approving the class action settlement (see Revised Proposed Order, ECF No. 64-3);
(3) directs the parties to issue notice as proposed (see Revised Long Notice, ECF No. 64-
5; Revised Summary Notice, ECF No. 64-7; Revised Postcard Notice, ECF No. 64-9;
Claim Form, ECF No. 58-3); (4) appoints Pomerantz LLP as class counsel for purposes
of settlement; and (5) schedules a final settlement hearing for December 7, 2023 at 10:30
a.m. in Courtroom 324 North.
SO ORDERED.
Dated: Brooklyn, New York
August 24, 2023
eye A Wankel
TARYN A? MERKL
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310253. Public record. Not legal advice.