Opinion
17-CV-01105 (LDH) (ST)
12-15-2022
REPORT AND RECOMMENDATION
Hon. Steven L. Tiscione United States Magistrate Judge
This is the consolidation of two actions seeking relief under the Securities Exchange Act of 1934 (the “Exchange Act”) on behalf of all purchasers of Grana y Montero S.A.A. (“Grana” or the “Company”) American Depository Shares (“ADSs”) from July 24, 2013 through February 24, 2017. See 2d Consolidated Am. Compl., ECF No. 86; see also Order, No. 17-cv-1105 (E.D.N.Y. Mar. 5, 2018), DE 16,17.
The parties filed a Stipulation and Agreement of Settlement on July 2, 2020 (“Stipulation”), and subsequently filed the First, Second, and Third Amendments. DE 112, 124, 129, 131. On September 14, 2021, the District Court adopted the Report and Recommendation of this Court, approved the Stipulation along with the First Amendment, and directed the Clerk of Court to enter Judgement (“Judgement”) and close the case. See In re Grana Y Montero S.A.A. Sec. Litig., No. 17-CV-01105 (LDH)(ST), 2021 WL 4173684 (E.D.N.Y. Aug. 13, 2021), report and recommendation adopted sub nom. No. 17-CV-1105 (LDH)(ST), 2021 WL 4173170 (E.D.N.Y. Sept. 14, 2021); see Entry of J., 17-cv-1105 (E.D.N.Y. Sept. 16, 2021), DE 125-127.
On February 7, 2022, upon parties' joint request, the District Court granted their Motion to Vacate the Judgment, approved the Second Amendment, and held the case in abeyance pending receipt of the final settlement payment. DE 128-130; Order dated Feb. 7, 2022.
On April 8, 2022, the parties filed a joint letter stating that Defendants have made full settlement payment. DE 131.
Now before this Court is a joint letter motion by the parties to reinstate the Judgment. DE 132.
The Honorable LaShann DeArcy Hall referred the Motion to Reinstate to the undersigned to issue a Report and Recommendation. See Order dated Apr. 12, 2022.
For the reasons stated below, the undersigned respectfully recommends that the Motion to Reinstate be GRANTED.
I. BACKGROUND
The Court presumes familiarity with the factual background and procedural posture of this case. For the purposes of this Report and Recommendation, the Court focuses on the Motion to Reinstate.
The parties filed the Stipulation on July 2, 2020, as amended by the First Amendment dated June 30, 2021, and Second Amendment dated October 1, 2021.
The Stipulation along with the First Amendment was reviewed and approved following a fairness hearing by this Court in its Report and Recommendation dated August 13, 2021. DE 125. On September 14, 2021, the District Court adopted the Report and Recommendation of this Court, approved the parties' Stipulation, and directed the Clerk of Court to enter the Judgement and close the case. See In re Grana Y Montero S.A.A. Sec. Litig., No. 17-CV-01105 (LDH)(ST), 2021 WL 4173684 (E.D.N.Y. Aug. 13, 2021), report and recommendation adopted sub nom. No. 17-CV-1105 (LDH)(ST), 2021 WL 4173170 (E.D.N.Y. Sept. 14, 2021); see Entry of J., 17-cv-1105 (E.D.N.Y. Sept. 16, 2021), ECF No. 127.
The Judgment was vacated by the District Court on February 7, 2022, upon parties' joint request. See Order dated Feb. 7, 2022. The District Court further approved the Second Amendment and held the case in abeyance pending receipt of the final settlement payment. Id.
On April 8, 2022, the parties filed a joint letter stating that Defendants have made full settlement payment. DE 131. The parties now request that the Court reinstate the Judgment. Further, by way of Third Amendment dated April 8, 2022, the parties also intend to modify Paragraph 2.2 of the Stipulation and nothing else. The modified paragraph 2.2 of Section IV of the Stipulation reads as follows:
A. “Aenza S.A.A. (“Aenza”), formerly known as Grana y Montero S.A.A., previously deposited on or about July 14, 2021 $550,000 into the Escrow Account. Aenza further previously deposited on or about October 5, 2021 $6,361,368.49 into the Escrow Account, constituting an additional $5,500,000 of the Settlement Amount together with all accrued interest through such date. The remaining $8,600,000 of the Settlement Amount will be deposited by Aenza into the Escrow Account by April 8, 2022, plus all accrued interest through such date, calculated at $402,902.11. Upon confirmation of receipt of payment into the Escrow Account on April 8, 2022, Defendants shall file with the Court a letter in the form agreed among the parties requesting reinstatement of the Judgment previously issued on September 16, 2021 (ECF No. 127) but temporarily vacated on February 7, 2022, at the request of all parties pending the final settlement payment.”
As noted above, Defendants have made full settlement payment. As such, all other paragraphs and provisions in the Stipulation, which were previously reviewed, continue to have their full force and effect.
Thus, this Court respectfully recommends that the Judgment dated September 16, 2021, which was vacated on February 7, 2022, be reinstated.
II. CONCLUSION
The Court respectfully recommends that the Judgment dated September 16, 2021, granting Plaintiffs' Motion for Final Approval of the Class Action Settlement and Approval of the Plan of Allocation and an Award of Attorneys' Fees, Costs, and Incentive Award to Plaintiff Goldberg be REINSTATED.
III. OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Marcella v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42, 46 (2d Cir. 2002); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); see also Thomas v. Arn, 474 U.S. 140 (1985). Responses to any objections shall be due fourteen (14) days from service of the objection. See Fed.R.Civ.P. 72(b)(2).
SO ORDERED.