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Barker v. Selway Corporation

United States District Court, D. Montana, Missoula Division

January 4, 2019

MATT BARKER, TERRIL BERNHARDT, DWAYNE BINKLEY, MARK BOESCH, MIKE CONRAD, RANDALL DOANE, KEN DURIE, DAMIAN EDWARDS, MIKE ELLEN, DANIEL ENDECOTT, RYAN EWER, CHUCK FYFE, MIKE GATES, JASON GORDON, RICK HAJEK, DAVIS B. HARRIS, THOMAS HARTZELL, RANDY HILL, TRAVIS HILL, GRAHAM HYDE, TYLER JARVIS, GERALD JELLETICH, PAUL KENNY, ROBERT MATTIJETZ, JEFF MCCHRISTIAN, CHRIS MCPHERSON, LESTER MEINZEN, ERIN MESSEX, MARK MILLER, BRUCE MILLER, ISAAC MILSTEAD, DAVID NORDMAN, RANDY PHILLIPS, DENNIS K. RAMEY, GREGORY RAUER, MILES RAUER, MICHAEL RYKER, ALLEN SCHMIDT, BRETT SHARBONO, ROB SIMS, WILLIAM "BERT" SMEAD, MARVIN SNEDIGAR, JONI SOLANDER, JASON SPEK, ROGER STEVENS, KI STODDARD, RICHARD WAYNE SUMMERS, STEVE TENOLD, KENNETH TICHENOR, ZACH TITECA, DAN WALDO, DON WHITEHAIR AND PATRICK WURSTER Petitioners,
v.
SELWAY CORPORATION and the SELWAY CORPORATION EMPLOYEE STOCK OWNERSHIP PLAN, Respondents.

          ORDER APPROVING SETTLEMENT AND BARRING FURTHER CLAIMS

          Dana L. Christensen, Chief Judge

         Petitioners and Respondents previously reached a mediated settlement agreement resolving all claims at issue in this litigation, subject to the terms and conditions contained in the agreement attached hereto as Exhibit 1 and incorporated herein by reference, including the Bar Order set forth below, which is acknowledged by the parties to constitute a necessary condition of settlement.

         By Order dated November 26, 2018, the Court previously granted preliminary approval to the settlement, approved the proposed notice and bar order, and set the matter for final hearing. The Court incorporates herein by reference the findings set forth in the November 26, 2018 Order. Notice has now been accomplished as contemplated therein. Having considered the matter and for good cause appearing, IT IS HEREBY ORDERED THAT:

         Adequate Notice Was Given to Plan Participants or Beneficiaries

          Notice of Settlement was mailed at Plaintiffs' expense to the last known addresses of all participants in or beneficiaries of the Selway Corporation's Employee Stock Ownership Plan ("Selway ESOP"). Recipients were given 30 days advance notice of the hearing. The Court has determined and hereby reconfirms that such notice was adequate, fair and timely and no further notice is required.

         Approval of Definitive Settlement Agreement

          The Definitive Settlement Agreement attached as Exhibit 1 hereto and incorporated herein by reference is approved and authorized on the terms described therein and the parties are directed to comply, including by payment of $5, 500, 000 by the involved insurers (less defense fees and costs) to the Beck, Amsden & Stalpes, PLLC Trust Account. All defined terms in the Definitive Settlement Agreement are likewise incorporated by reference and used in this Order.

         Bar Order

         The settlement is contingent upon judicial approval with a final bar to further litigation by Claimants and any non-settling parties against Releasees arising out of matters within the scope of the Release. Pursuant thereto, the Court hereby permanently bars, restrains and enjoins the below-described Barred Entities from filing, commencing, instituting, initiating, maintaining or otherwise prosecuting, either directly or indirectly, any claim, counterclaim, cross-claim, third-party claim or other action against the below-described Releasees arising out of or related to any of the below-described Barred Claims. As a component of settlement, the Petitioners shall also execute a release of claims as required by the Settlement Term Sheet. The effective date of the Release will be the date of entry of this Bar Order. This Bar Order and the related Order approving the settlement shall be read broadly in order to encompass any and all matters relating to the Barred Claims, including all actual and potential claims arising prior to that date and any actual or potential claims relating to Releasees' involvement in any asset or stock sale of Selway Corporation (the Sale Transaction). A. Barred Entities:

         1) Petitioners in this case; 2) The Selway Corporation Employee Stock Ownership Plan and Trust, and/or to the extent so designated, the Selway Corporation Employee Stock Ownership Trust and/or the Selway Corporation Employee Stock Ownership Plan (whether itself in a representative capacity by its participants, its trustees or fiduciaries) ("Selway ESOP"); 3) Any past or present participant or beneficiary of the Selway ESOP; 4) Selway Corporation (whether by the corporation directly, or by shareholders derivatively); and 5) Any person or entity (a) seeking contribution or indemnity from, or an allocation of comparative fault to, Releasees in relation to the Barred Claims, or (b) seeking to pursue claims where damages are calculated based on, or where the alleged injury is, the person's or entity's liability to any of the Barred Entities identified in subparts A(1) - A(5) above, related to any of the below-described Barred Claims.

         B. Releasees:

         1) Selway Corporation;

         2) Max Downing;

         3) Past and present Selway ESOP trustees and fiduciaries and their attorneys, accountants, ...


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