SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO

Transcription

1 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO NATIONAL METALS, INC., on behalf of itself and all Case No. GIC others similarly situated, Plaintiff, vs. SUMITOMO CORPORATION; GLOBAL MINERALS AND METALS CORP.; MERRILL LYNCH & CO., INC.; MERRILL LYNCH PIERCE FENNER & SMITH (BROKERS & DEALERS, LTD.; MERRILL LYNCH INTERNATIONAL, INC.; CREDIT LYONNAIS ROUSE, LTD.; RUDOLF WOLFF & CO., LTD.; J.P. MORGAN & CO., INC.; MORGAN GUARANTY TRUST COMPANY OF NEW YORK; UNION BANK OF SWITZERLAND AG; CHASE MANHATTAN BANK fka CHASE MANHATTAN BANK, N.A.; and DOES 1-100; Defendants. TO: NOTICE OF PENDENCY OF CLASS ACTION, OF PROPOSED SETTLEMENT OF CLASS ACTION, OF SETTLEMENT HEARING, AND OF RIGHT TO APPEAR ALL PERSONS WHO, BETWEEN JANUARY 1, 1993 AND JULY 1, 1996 INCLUSIVE (THE CLASS PERIOD, PURCHASED ANY SCRAP OR RECYCLED COPPER PRODUCTS (AS DEFINED BELOW FOR USE IN ANY TRADE OR BUSINESS OR FOR RESALE (AND NOT FOR PERSONAL USE, AND WHO AT THE TIME OF SUCH PURCHASE (1 RESIDED IN ANY OF THE INCLUDED STATES (AS DEFINED BELOW; (2 PURCHASED ANY SCRAP OR RECYCLED COPPER PRODUCT FROM A PERSON WHO WAS A RESIDENT OF ANY INCLUDED STATE OR (3 PURCHASED ANY SCRAP OR RECYCLED COPPER PRODUCT FOR DELIVERY IN ANY INCLUDED STATE. PLEASE READ THIS NOTICE CAREFULLY. IF YOU ARE A MEMBER OF THE CLASS DESCRIBED HEREIN, YOUR RIGHTS MAY BE AFFECTED BY LEGAL PROCEEDINGS IN THIS LITIGATION AND YOU MAY BE ENTITLED TO SHARE IN THE PROCEEDS OF THE SETTLEMENT FUNDS PURSUANT TO THE PROPOSED SETTLEMENT DESCRIBED BELOW. The purpose of this Notice is to inform you of a proposed settlement in this Class Action and the hearing to be held by the Superior Court for the State of California, County of San Diego (the Court to consider the fairness, reasonableness, and adequacy of the proposed Settlements with the Settling Defendant. The Settling Defendant is Sumitomo Corporation ( Settling Defendant or Sumitomo. The proposed settlement, the terms of which are only summarized in this Notice, are embodied in a Stipulation and Agreement of Settlement, Compromise and Release dated October 1, 2001 (the Stipulation, which has been filed with the Court. A hearing (the Settlement Hearing to consider whether the proposed Settlements should be approved will be held on January 31, 2002 at 10:00 a.m in Courtroom 4 of the Superior Court for the State of California, County of San Diego, 220 West Broadway, San Diego, CA SUMMARY OF THE SETTLEMENTS A. Statement of Plaintiffs Recovery: The settlement will result in the creation of a Settlement Fund of Ten Million, Seven Hundred Fifty Thousand Dollars ($10,750,000 in cash paid by Sumitomo. B. Reasons for the Settlement: Plaintiff s Counsel are proposing the settlement because they believe that it is fair, reasonable, and adequate to the members of the Class. Plaintiff s Counsel have reached this conclusion after investigating and considering, among other things, the substantial benefits provided by the settlement to the members of the Class, the strengths and weaknesses of Plaintiff s claims against the Settling Defendant and the uncertainties inherent in this complex litigation. C. Attorneys Fees and Costs Sought: Plaintiff s Counsel, in consideration for their time and risk in prosecuting the Action on a contingent fee basis and for the benefits achieved for the Class, intend to apply to the Court for an award of attorneys fees and reimbursement for their expenses (including experts fees, for the costs of notice and claims administration, and for an incentive award for the named class representative plaintiff, as described more fully below. See Section IX, below. A. Summary of the Action I. THE LITIGATION On or after August 20, 1999, this action was filed in the Court as a proposed class action on behalf of certain persons who were

2 purchasers of scrap or recycled copper products (herein, the Action. This antitrust class action seeks redress for defendants alleged course of conduct in colluding to fix, stabilize and maintain artificially inflated prices of copper during the Class Period. Plaintiff alleges that Sumitomo, through its employee Yasuo Hamanaka, and other defendants colluded and conspired to form a cartel for the purpose of manipulating copper prices on the London Metal Exchange Ltd. (the LME and worldwide. The alleged cartel is alleged to have attempted to drive up copper prices by (i purchasing and hoarding large supplies of physical copper and entering into paper transactions among themselves designed to give the appearance of trading activity and price support for the spot copper market; and (ii loaning money, extending credit and providing trading facilities, accounts and trading capacity for the above-referenced transactions. Plaintiff alleges the above-referenced transactions were in the nature of fictitious trades, pre-arranged trades, cross-trades, and accommodation trades in copper futures and copper physicals. B. Identification of Lawyers Representing the Class Counsel for the Class ( Plaintiff s Counsel are: James C. Krause Burton H. Finkelstein Lawrence A. Sucharow KRAUSE & KALFAYAN FINKELSTEIN, THOMPSON GOODKIND LABATOON 1010 Second Avenue, Suite 1750 & LOUGHRAN RUDOFF & SUCHAROW LLP San Diego, CA th Street, NW 100 Park Avenue Washington, DC New York, NY C. Reasons for Settlements 1. Plaintiff Plaintiff s Counsel has made a thorough investigation of the facts and a study of legal principles applicable to Plaintiff s claims including: analysis of more than 1.5 million documents produced by Defendants and third-parties; review of the Findings and Order of the Commodity Futures Trading Commission ( CFTC in In re Sumitomo Corporation, CFTC Docket No (May 11, 1998 (the CFTC Order ; sworn interviews of various employees of the Settling Defendant; consultation with experts; and research of the law applicable to the claims asserted by Plaintiff and the defenses potentially available to the Settling Defendant. Plaintiff s Counsel have conducted extensive discussions and arm s-length negotiations with representatives of the Settling Defendant to achieve the best possible relief consistent with the interests of the Class. Plaintiff and Plaintiff s Counsel have agreed to settle the Action according to the terms of the Stipulation after considering: (i the substantial benefits that the Class Members will received from the Settlement; (ii the attendant risks of litigation, particularly in a complex action such as this, as well as the difficulties and delays associated with such litigation; (iii the inherent uncertainty of the likelihood of success in the Action; and (iv the fact that the settlement results in a relatively prompt distribution to the Class compared to a trial for a resolution and possible appeals. 2. The Settling Defendant The Settling Defendant vigorously denies any wrongdoing or liability with respect to all claims, events and transactions complained of in the Action, but considers it desirable that the Action be settled and dismissed based on: (i the attendant risks of litigation, particularly in a complex action such as this, as well as the difficulties and delays inherent in such litigation; and (ii the fact that the settlement will halt the expense, inconvenience and burden of litigation. II. CERTIFICATION OF THE CLASS FOR SETTLEMENT PURPOSES ONLY The Court has certified conditionally, for the purposes of settlement only, the following class: All Persons who, between January 1, 1993 and July 1, 1996 inclusive (the Class Period, purchased any Scrap or Recycled Copper Products (as defined below for the use in any trade or business or for resale (and not for personal use, and who at the time of such purchases (1 resided in any of the Included States (as defined below; (2 purchased any Scrap or Recycled Copper Product from a Person who a resident of any Included State; or (3 purchased any Scrap or Recycled Copper Product for delivery in any Included State (the Class. The term Included States means California, Alabama, Arizona, the District of Columbia, Florida, Kansas, Louisiana, Maine, Michigan, Minnesota, Mississippi, New Mexico, New York, North Carolina, North Dakota, Rhode Island, South Dakota, Tennessee, West Virginia and Wisconsin. Scrap or Recycled Copper Product means any of the following: (i any scrap containing copper, waste containing copper, or excess material containing copper generated during the smelting, refining, fabrication or manufacture of (A a Copper Product, (B brass or products containing brass ( Brass, (C bronze or products containing bronze ( Bronze, or (D any alloy with a copper content of 50% or more by weight or products containing such an alloy (an Alloy ; (ii any Copper Products, Brass, Bronze or Alloy acquired after it has been in the possession of an end-user or consumer or that is otherwise considered post-consumer material; (iii air conditioners, transformers, electrical generators, electrical motors, or motor vehicle radiators containing copper or Alloys acquired after they have been in the possession of an enduser or consumer or that are otherwise considered post-consumer material; and (iv any other product consisting of a copper content of 50% or more by weight acquired after it has been in the possession of an end-user or consumer or that is otherwise considered post-consumer material. 2

3 In the event the settlement with Sumitomo is not approved or such settlement is terminated or fails to become effective in accordance with the Stipulation, the certification of the Class will automatically be revoked. III. SETTLEMENTS TERMS Sumitomo will establish a cash settlement fund of $10.75 million. IV. PROOFS OF CLAIM Plaintiff s Counsel has retained Gilardi & Co. to act as Claims Administrator for the purpose of administering the Settlement Fund and determining the amount and validity of the claims of Class Members. The expenses of the Claims Administrator shall be paid from the Settlement Fund. For the purpose of determining the extent to which a Class Member shall be entitled to receive payment from the Settlement Fund, a Proof of Claim and Release shall be executed and timely filed by each Class Member. Distributions to Authorized Claimants will be made on the basis of Recognized Loss. An Authorized Claimant s individual Recognized Loss is calculated by multiplying the dollar value of that Authorized Claimant s total purchases of Scrap or Recycled Copper Products, made while residing in or purchased from residents of the Included States, or purchased for delivery in any Included State, during the Class Period, by 0.03 (3%. An Authorized Claimant s distributable share, as determined by the Claims Administrator, will be a pro rata share of the Net Settlement Fund based on the Claimant s Recognized Loss as a percentage of the sum of all Authorized Claimants Recognized Losses. Due to the costs of claims administration and the Volume of Scrap or Recycled Copper Products sold during the Class Period, no distribution will be made to any Claimant where that Claimant s distributable share would be less than fifty dollars ($50. It is presently anticipated that Recognized Losses of less than ten thousand dollars ($10,000 are not likely to result in distribution that is material in light of anticipated expenses to a Claimant in completing and returning the Proof of Claim and Release form. No distribution from the Settlement Fund pursuant to the Court s order approving the settlement will be made until such order is final and no longer subject to appeal. When such order becomes final, and the claim verification process is concluded, all money in the Net Settlement Fund will be distributed pro rata to Authorized Claimants and no money will be returned to the Settling Defendant. V. MAKING A CLAIM If you are a Class Member as described above and you wish to received a distribution from the Net Settlement fund you must complete and sign the enclosed Proof of Claim and Release form and send it by First Class or overnight mail postmarked on or before April 30, 2002, to the claims Administrator, addressed as follows: SCRAP OR RECYCLED COPPER LITIGATION CLAIMS c/o Gilardi & Co. LLC P.O. Box 1110 Corte Madera, CA VI. RELEASE OF ALL CLAIMS BY CLASS MEMBERS Upon the Effective Date, Plaintiff and each Class Member, except those who timely and validly excluded themselves from the Settlement Class (as provided in Section VII, below, 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 and shall forever be enjoined from prosecuting the Released Claims. Released Claims means all claims, demands, actions, suits, damages, rights, liabilities, and causes of action, known or unknown, suspected or unsuspected, accrued or unaccrued, fixed or contingent, direct or derivative, individual, class or otherwise, whether or not concealed or hidden, in law or equity, under any body of law, including under the law of any State or the United States or any other nation, whether by statute, regulation or common law, of every nature and description whatsoever, including actual, compensatory, punitive, exemplary, or treble damages, costs, expenses, penalties and attorneys fees, that the Plaintiff and the Settlement Class, or any member thereof, individually or as a class (whether or not they make a claim upon or participate in the Settlement Fund, ever had, now have, or hereafter can, shall or may have, against the Released Persons or any of them, arising from or relating to the purchase of Scrap or Recycled Copper Products during the Class Period, and which arise from or relate to any of the claimed acts, omissions, misrepresentations, facts, events, matters, transactions, subject matters or occurrences referred to or complained of in the Action or in the CFTC Order, including, but not limited to, any such claims that were or could have been asserted in the Action or in any state or federal court or other judicial or arbitral forum or which arise under or relate to any federal or state antitrust, anti-monopoly, commodity manipulation, or racketeering law. Released Persons means the Settling Defendant, and each and all subsidiaries and affiliates of the Settling Defendant (including, but not limited to, Sumitomo Corporation of America, Sumitomo Corporation Futures, Inc., Sumitomo Corporation Europe Plc, Sumitomo Corporation (UK PLC, and Sumitomo Corporation (Hong Kong Ltd., and each and all of its or their respective past or present directors, officers, employees, partners, principals, agents, underwriters, insurers, co-insurers, shareholders, attorneys, accountants, advisors, analysts, personal representatives, predecessors, successors, parents, subsidiaries, divisions, assigns, spouses, heirs, and any members of their immediate families; any person, firm, trust, corporation, officer, director, or other individual or entity in which the Settling Defendant or any subsidiary or affiliate thereof has a controlling interest or which is related to or affiliated with the Settling Defendant or any subsidiary or affiliate of the Settling Defendant; or any trust of which the Settling Defendant or any subsidiary or affiliate thereof is the settlor or which is 3

4 for the benefit of the Settling Defendant, or subsidiary or affiliate thereof or member(s of his family; but shall not include the Non-Settling Defendants, Yasuo Hamanaka, Saburo Shimizu and the shareholders, directors, employees, subsidiaries or affiliates of Global Minerals and Metals Corporation. Upon the Effective Date, each Settlement Class Member, whether or not such Settlement Class Member delivers a Proof of Claim or asserts any claim to any portion of the Settlement Fund, unless the class member requests exclusion pursuant to Section VII (below: (1 shall be deemed to have, and by operation of the Judgment shall have, fully, finally, and forever released, relinquished, and discharged all Released Persons from all Released Claims; (2 covenants not to assert or prosecute any of the Released Claims against any of the Released Persons in any action or proceeding; and (3 shall forever be enjoined from asserting or prosecuting any of the Released Claims against any of the Released Persons in the Action or in any other action or proceeding. In accepting the settlement, each Settlement Class Member knowingly, voluntarily, and expressly waives and relinquishes any and all rights that he or she may have under Section 1542 of the California Civil Code, or any similar provisions of law or any jurisdiction or any similar or analogous principle of common law. California Civil Code Section 1542 provides. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known to him must have materially affected his settlement with the debtor. VII. REQUESTING EXCLUSION FROM THE CLASS Only Settlement Class Members who do not request exclusion are entitled to participate in the proposed settlement and the Net Settlement Fund in the event that the settlement is approved by the Court. Settlement Class Members will not be individually responsible for Plaintiff s Counsel s fees or expenses. Plaintiff s Counsel s fees and expenses, to the extent allowed by the Court, will be paid solely out of the recovery achieved on behalf of the Class. If you do not wish to be a member of the Class and participate in its benefits, you must submit a written request to be excluded, postmarked no later than December 3, 2001, including: (a your name, address and telephone number; (b stat(s of residence during the Class Period; (c state(s in which Scrap or Recycled Copper Products were purchased during the Class Period; (d type and dollar amount of Scrap or Recycled Copper Products purchased during the Class Period; (e the date(s when such Scrap or Recycled Copper Products were purchased during the Class Period; (f number of pounds of Scrap or Recycled Copper Products purchased during the Class Period; (g number of Establishments operated in the Included States during the Class Period; (h Standard Industrial Classification ( SIC code(s; and (i statement that you request to be excluded from the Class. The request for exclusion must be mailed to: SCRAP OR RECYCLED COPPER LITIGATION EXCLUSIONS c/o Gilardi & Co. LLC P.O. Box 1110 Corte Madera, CA If you provide a valid and timely exclusion request, you will not be bound by the orders and judgments of the Court entered in the Action, whether favorable or unfavorable to the Class. VIII. THE SETTLEMENT HEARING A hearing (the Settlement Hearing shall be held before the Court on January 31, 2002 at 10:00 a.m, in Courtroom 4, of the Superior Court for the State of California, San Diego, County, to determine (a whether the proposed settlement of the Action on the terms and conditions provided for in the Stipulation is fair, reasonable, and adequate and should be approved by the Court and whether a judgment should be entered dismissing the Action as to the Settling Defendant with prejudice on the terms and conditions set forth in such Stipulation; and (b whether and in what amounts fees and reimbursements of expenses should be awarded to Plaintiff s Counsel. The Settlement Hearing may be continued or adjourned from time to time by the Court without further notice to the Class. IX. PLAINTIFF S COUNSEL S FEE REQUEST At the Settlement Hearing, Plaintiff s Counsel will apply to the Court for: (i an award of attorneys fees; (ii reimbursement of actual expenses and costs incurred, and for the costs of notice and claims administration, including the fees of any experts or consultants incurred in connection with prosecuting the Action; and (iii an incentive award of $10,000 for the named plaintiff. Plaintiff s Counsel, in compensation for their time and risk in prosecuting the Action on a contingent fee basis, intend to apply to the Court for an award of attorneys fees in an amount not to exceed one-third of the Settlement Fund, plus interest, as well as reimbursement for their expenses incurred in the prosecution of the Action and for the costs of notice and claims administration. X. OBJECTIONS 4

5 Any Class Member who has not requested exclusion may appear at the Settlement Hearing and show cause as to any reason why the proposed settlement contained in the Stipulation should not be approved as fair, reasonable, and adequate; and/or why attorneys fees and expense reimbursement should not be awarded to Plaintiff s Counsel in the amounts requested. Any Class Member wishing to do so must, at least fourteen (14 days prior to the Settlement Hearing, notify each of the following persons in writing of his or her intention to appear or object: James C. Krause, Esq. and Marc Marmaro, Esq. KRAUSE & KALFAYAN JEFFER, MANGELS, BUTLER & MARMARO, LLP 1010 Second Avenue, Suite Avenue of the Stars, 10 th Floor San Diego, CA Los Angeles, CA on behalf of Plaintiff on behalf of Defendant Sumitomo Corporation Such notice must set forth each objection and the basis therefor, shall include copies of any papers in support of the objections raised therein, and proof that such person is a member of the Class. Any Class Member who does not make an objection in the time and manner provided shall be deemed to have waived such objection, shall be bound by the terms of the Stipulation, and shall forever be foreclosed from making any objection to the fairness or adequacy of the proposed settlement as incorporated in the Stipulation or to the award of attorneys fees and expense reimbursement to Plaintiff s Counsel, unless otherwise ordered by the Court. XI. FURTHER INFORMATION This Notice provides only a brief summary of the Action and the proposed settlement. For a more detailed statement of the matters involved in the Action you may refer to the pleadings, the Stipulation, and the orders entered by the Court. Additional information concerning the Stipulation may be found at the following Internet site: and by reviewing the other papers filed in the Action. These papers may be inspected at the Office of the Clerk of the Superior Court of the State of California, San Diego Division. Any inquiries concerning this Notice or the Proof of Claim and Release form should be made to Plaintiff s Counsel identified above. INQUIRIES SHOULD NOT BE DIRECTED TO THE COURT Dated: October 1, 2001 Clerk of the Superior Court of the State of California, San Diego Division 5