The original Complaint alleges that defendants, over an extended time frame and in
numerous separate steps, breached the terms of the Kinam Preferred Stock,
breached the fiduciary duties owed by control persons and major shareholders to
other shareholders, violated the "best price rule" promulgated under Section
13(e) of the Securities Exchange Act of 1934 (the "Exchange Act"), violated
anti-fraud provisions of rules promulgated under Sections 10(b), 13(e) and
14(c) of the Exchange Act, violated the anti-racketeering law set forth in
Section 207 of the Nevada Revised Statutes, committed common law fraud, and
violated New York Stock Exchange Rule 311.03. Since the 1998 merger pursuant
to which Kinross acquired control of Kinam, as alleged in the complaint,
Kinross has consistently and repeatedly acted to impair the value of Kinam
Preferred Stock in order to facilitate a subsequent purchase at an unfair
price, culminating in the coercive and illegal Tender Offer of February-March
As summarized by the Notice of Class Action Certification, Proposed Class Action Settlement, Motion for Attorneys’ Fees and Nontaxable Costs, and Hearing Thereon dated November 15, 2008, beginning on April 26, 2002, two actions were filed in the United States District Court for the District of Nevada, Brown v. Kinross Gold U.S.A., Inc., et al., U.S.D.C. Nev., CV-S-02-0605-KJD-(RJJ), and Tsurekidis v. Kinross, Gold, U.S.A., Inc., et al., U.S.D.C. Nev., CV-S-02-0726-LDG-(LRL) which were consolidated under case number CV-S-02-0605-PMP-(RJJ) for all purposes by an order filed on or about August 7, 2002. In that same Order, the Court appointed Brown, Glenbrook, Kaufman, CN&L, and Drake, as Lead Plaintiffs and approved their choice of the law firms of Berger & Montague, P.C. and Reginald H. Howe as Plaintiffs’ Co-Lead Counsel, and Kummer Kaempfer Bonner Renshaw & Ferrario as Plaintiffs’ Liaison Counsel in the Action.
The Lead Plaintiffs’ April 26, 2002, Complaint instituted this Action as a proposed class action on behalf of all persons who tendered shares of the Preferred (the “Preferred”) to Kinross or Kinross USA pursuant to the Tender Offer, and all persons who continued to hold shares of the Preferred, and asserted claims against Defendants for breach of contract (Count I), breach of fiduciary duty (Count II), violation of Section 13(e) of the Exchange Act (15 U.S.C. § 78m(e)) (Count III), violations of Sections 10(b) and 13(e) of the Securities Exchange Act and Rule 10b-5(b) and 13e-4(j) (Count IV), and violations of NRS § 90.570 (Count V).
On October 28, 2002, Defendants filed a Motion for Judgment on the Pleadings seeking to dismiss Count IV of the Complaint and to stay all discovery in the Action. On January 15, 2003, the District Court granted Defendants’ motion to stay discovery pending the resolution of Defendants’ Motion for Judgment on the Pleadings. On September 30, 2003, the Court granted Defendants’ Motion for Judgment on the Pleadings, dismissed Count IV of the Complaint, and granted Lead Plaintiffs leave to file an amended complaint.
On November 21, 2003, Lead Plaintiffs, individually and on behalf of all other persons and entities similarly situated, filed and served a Consolidated Amended Class Action Complaint (“Amended Complaint”) against the Defendants. The Amended Complaint asserted claims variously against Defendants for alleged breach of contract (Count I), breach of fiduciary duty (Count II), violation of Section 13(e) of the Exchange Act (15 U.S.C. § 78m(e)) (Count III), violations of NRS § 90.570 (Count IV), violations of Sections 10(b) and 13(e) of the Securities Exchange Act and Rule 10b-5(b) and 13e-4(j) (Count V), violations of Sections 10(b) and 13(e) of the Securities Exchange Act and Rule 10b-5(a) and (c) and 13e-4(j) (1)(i) and (iii) (Count VI), violations of section 20(a) of the Securities Exchange Act (Count VII). On March 5, 2004, Defen-dants filed a Motion for Judgment on the Pleadings seeking to dismiss Counts V, VI and VII of the Amended Complaint. On November 3, 2004, the Court granted Defendants’ Motion for Judgment on the Pleadings and dismissed Counts V, VI and VII, with prejudice.
On January 6, 2005, Plaintiffs filed a Motion for Summary Judgment on Counts III and IV of the Amended Com-plaint. On February 28, 2005, Defendants filed a Cross-Motion for Summary Judgment to dismiss Counts III and IV of the Amended Complaint. On May 27, 2005, the Court granted Defendants’ Cross-Motion for Summary Judgment and dismissed Counts III and IV of the Amended Complaint.
On February 28, 2005, Lead Plaintiffs filed a Motion for Class Certification. On June 14, 2005, the Court granted the Motion for Class Certification and certified a class and three subclasses consisting of all persons and entities who: (1) tendered shares of the Preferred pursuant to the Tender Offer (“Tenderor Subclass”); (2) continue to hold shares Preferred (“Holder Subclass”); or (3) did not tender shares of the Preferred pursuant to the Tender Offer, but have since sold such shares directly to Kinross, Kinam, or Kinross USA (“Late-Tenderor Subclass”). Excluded from the class are Kinross, Kinam and Kinross USA, their officers and directors, affiliates, legal representatives, heirs, predecessors, successors and assigns, and any entity in which any Defendant has a controlling interest or of which any Defendant is a parent or subsidiary.
Following the effective termination of the stay of discovery on November 3, 2004, for the three years following, the Parties vigorously litigated this case engaging in extensive fact discovery in the United States and Canada and expert discovery.
On August 16, 2006, Lead Plaintiffs and the Defendants held a formal mediation to discuss the possibility of settling the Action. The Parties concluded the mediation without reaching an agreement to settle the Action and continued to vigorously litigate.
On September 7, 2007, Defendants filed separate motions for summary judgment on Counts I and II of the Amended Complaint. On January 23, 2008, the Court denied Defendants’ Motion for Summary Judgment on Count I, and denied in part and granted in part Defendants’ motion on Count II and dismissed the Individual Defendants Robert M. Buchan from the Action. On February 21, 2008, Defendants filed a Motion for Clarification or Limited Reconsideration of certain aspects of the Court’s January 23, 2008 Order denying summary judgment. On May 2, 2008, the Court denied Defendants’ Motion for Clarification or Limited Reconsideration.
On June 20, 2008, the Parties filed an extensive proposed Pre-Trial Order which set forth at length, among other things, the Parties’ statements of contested and uncontested statements of facts for trial, their statements of contested and uncontested issues of law, identified nearly two thousand potential trial exhibits with the Parties’ proposed stipula-tions and objections to those documents, and the Parties’ designations of proposed trial testimony from more than 10,000 pages of deposition testimony with the Parties’ proposed stipulations, objections, counter-designations and objections to counter-designations. At that time, the Parties continued to prepare in earnest for the trial of this Action. On June 23, 2008, the Court held a pre-trial conference and ordered all pre-trial motions and motions in limine to be filed by September 17, 2008.
On June 23, 2008, the Court held a pre-trial conference during which counsel for the Defendants proposed that the Parties again pursue mediation. In order to accommodate the proposed mediation, the Court granted the Parties’ pro-posed stipulation to briefly extend the deadline for filing pre-trial motions and motions in limine until October 3, 2008.
On July 8, 2008, the Court entered the Parties’ proposed Joint Pre-Trial Order and scheduled trial to commence on February 24, 2009. At that time, the Parties accelerated their preparation of pre-trial motions, motions in limine, and other preparations for trial. On July 8, 2008, the Court issued an order referring the Action for a settlement conference before the Court’s magistrate judge.
On September 17, 2008, the Parties held a formal mediation to again explore the possibility of settling the Action. The mediation was held before a highly skilled and nationally recognized mediator. In anticipation of the mediation, the Parties prepared, submitted and exchanged extensive mediation submissions. On September 17, 2008, the formal media-tion concluded without the Parties reaching a settlement. However, intensive negotiations facilitated by the mediator continued. Ultimately, on September 19, 2008, the Lead Plaintiffs and Defendants reached an agreement in principle to settle the Action for $29,250,000. On October 16, 2008, the Parties executed a Memorandum of Understanding with an effective date of September 19, 2008.
According to the docket, on January 29, 2009, the Settlement Fairness Hearing was held before Judge Philip M. Pro. At the hearing, Judge Pro approved the settlement and dismissed the action and all claims against all defendants with prejudice. Judge Pro also awarded Plaintiffs’ Counsel attorneys’ fees in the amount of $8,500,000, constituting twenty-three and three quarter percent (23.75%) of the gross $35,778,371 financial benefit of the Action to the Settlement Class which is twenty-nine percent (29%) of the Settlement Fund, together with interest earned thereon for the same period and at the same rate as that earned on the Settlement Fund until paid, plus reimbursement of litigation expenses incurred in the amount of $892,773.23 for reasonable costs and expenses incurred in the representation of the Class.