Investors et al. v. SunEdison, Inc. et al., Kingdon Associates et al. v. TerraForm Global, Inc. et al., Canyon Capital Advisors LLC et al. v. TerraForm Global, Inc. et al., and VMT II LLC v. TerraForm Global, Inc. et al.(collectively, but excluding In re TerraForm Global, Inc. Securities Litigation, the “Private Placement Securities Litigation”). The plaintiffs in those matters filed responses on February 20, 2017.
On March 31, 2017, the partial stay expired. On April 13, 2017, the Court held a status conference and entered a briefing schedule for the Company’s anticipated motion to dismiss the Consolidated Second Amended Class Action Complaint in In re TerraForm Global, Inc. Securities Litigation. The Company filed its motion to dismiss on June 9, 2017, and Plaintiffs filed their opposition on July 21, 2017. The Company filed a reply brief on August 18, 2017. Further proceedings in the remaining multidistrict litigation matters described above have been stayed pending resolution of the initial motion to dismiss.
On October 31, 2017, the Company and lead plaintiffs in In re TerraForm Global, Inc. Securities Litigation participated in a private mediation session and reached agreement in principle to settle the case on a class-wide basis for $57.0 million, to be funded through a combination of proceeds from existing insurance and litigation settlement proceeds available to the Company. On November 1, 2017, the settling parties informed the Court of the mediated resolution. The Company and the lead plaintiffs are currently working to prepare settlement documentation. The settlement is subject to Court approval.
On March 22, 2017, the Multidistrict Litigation Panel issued conditional transfer orders in Domenech v. TerraForm Global, Inc. et al. and Perez v. TerraForm Global, Inc. et al., and these matters were transferred to the multidistrict litigation on April 13, 2017 and May 31, 2017, respectively. These matters are further described below.
Aldridge v. Blackmore et al.
On April 12, 2016, a verified stockholder derivative complaint on behalf of the Company was filed against four directors of the Company in the Court of Chancery of the State of Delaware. The lawsuit alleges that the directors breached their fiduciary duties by authorizing the Company’s $231.0 million payment to SunEdison for the 425 MW India Projects. The complaint seeks unspecified compensatory damages and such other relief that the Court may deem just and equitable. The Company filed its answer to the complaint on June 30, 2016. On July 6, 2016, the Company served its responses to the plaintiff’s discovery requests. On December 28, 2016, the parties agreed to stay the litigation and participate in a mediation process conducted in connection with the SunEdison Bankruptcy, which also includes the securities litigation cases pending before the Multidistrict Litigation Panel. The mediation commenced on February 10, 2017. On March 31, 2017, the agreed upon stay expired. On April 17, 2017, the Court entered a scheduling order. On July 21, 2017, the parties executed a Stipulation of Settlement, which, subject to Court approval, will settle the litigation for a total aggregate settlement amount of $20.0 million and will be paid out of proceeds from the Company’s directors’ and officers’ liability insurance policies. On July 25, 2017, the Court authorized distribution of notice of the settlement to current stockholders of the Company and stayed all non-settlement-related proceedings. The Court held a final settlement hearing on October 10, 2017 and approved the proposed settlement of $20.0 million as fair, reasonable and adequate. The Court also approved the plaintiff’s attorneys’ fees of $4.0 million, which is deducted from the settlement amount, resulting in a net settlement amount of $16.0 million to be paid to the Company.
Francisco Perez Gundin Claim
On May 18, 2016, the Company’s former director, Francisco Perez Gundin, filed a complaint against the Company, TerraForm Power, Inc., and certain individuals, with the United States Department of Labor. The complaint alleges that the defendants engaged in a retaliatory termination of Mr. Gundin’s employment after he allegedly voiced concerns to SunEdison’s board of directors about public representations made by SunEdison officers regarding SunEdison’s liquidity position, and after he allegedly voiced his opposition to transactions that he alleges were self-interested and which he alleges SunEdison forced on the Company. He alleges that the Company participated in SunEdison’s retaliatory termination by constructively terminating his position as a member of the board of directors of the Company in connection with SunEdison’s constructive termination of his employment. He seeks lost wages, bonuses, benefits, and other money that he alleges that he would have received if he had not been subjected to the allegedly retaliatory termination.
The matter will now be adjudicated in an administrative proceeding before the Occupational Safety and Health Administration of the United States Department of Labor (“OSHA”). On October 17, 2016, the Company filed its Position Statement, which seeks dismissal of the matter in full, in response to the complaint. On March 6, 2017, Mr. Gundin filed a response to the Company’s Position Statement and an additional Statement of Facts in support of the claim. The Company has not yet been asked by OSHA to provide a response to Mr. Gundin’s submission.