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     JUne 5, 2015                  03-15-00248-CV



                                    Cause No. D-1-GN-11-003205
                                           (Consolidated)


      RAYMOND BOYTIM, et al., Individually and §                 IN THE DISTRICT COURT OF
      on Behalf of All Others Similarly Situated, §
                                                  §
                                   Plaintiffs,    §                TRAVIS COUNTY, TEXAS
                                                  §
            vs.                                   §
                                                                   26lst JUDICIAL DISTRICT
      BRIGHAM EXPLORATION COMPANY, et ~
      al.,                            §
                               §
                                 Defendants.
                               §
      ________________________ §




           PLAINTIFFS' RESPONSE TO DEFENDANTS STATOIL ASA AND FARGO
         ACQUISITION, INC.'S SUPPLEMENTAL BRIEF IN SUPPORT OF OPPOSITION
             TO CLASS CERTIFICATION AND OBJECTIONS TO PLAINTIFFS'
               PROPOSED AMENDED PLAN FOR TRIAL OF CLASS CLAIMS




      1014174_1
            Plaintiffs respectfully submit this response to defendants Statoil ASA and Fargo Acquisition,

Inc.'s (collectively "Statoil") Supplemental Brief in Support of Opposition to Class Certification and

Objections to Plaintiffs' Proposed Amended Plan for Trial of Class Claims ("Supp. Brief'). 1

            In its supplemental brief, Statoil makes two arguments for why a class of Brigham

shareholders should not be re-certified. First, unlike defendants' joint opposition, which simply

opposes the idea of class certification in these types of cases, Statoil actually addresses plaintiffs'

proposed trial plan. Focusing on plaintiffs' aiding and abetting a breach of fiduciary duty claim,

Statoil contends that the trial plan is deficient in that it does not: (i) address each element of

plaintiffs' aiding and abetting claim; and (ii) provide analysis of potential facts that might support

that claim. Supp. Brief at 3-5.

            These criticisms are easily disposed of, as plaintiffs are more than willing to incorporate

Statoil' s input into the proposed trial plan. Accordingly, plaintiffs have amended their trial plan to

incorporate Statoil' s suggestions. See Second [Proposed] Amended Trial Plan for Trial of Class

Claims ("Second Amended Trial Plan") attached hereto as Ex. A, §§I.B and III.B.l.

            Notably, these amendments only serve to further highlight the appropriateness of class

certification, which is why Statoillevies a procedural attack on the content of the trial plan, rather


     On March 2, 2015, two briefs were filed in response to plaintiffs' proposed amended trial plan:
(i) all defendants filed a Joint Opposition to Class Certification and Plaintiffs' Proposed Amended
Plan for Trial of Class Claims; and (ii) defendant Statoil separately filed a Supplemental Brief in
Support of Opposition to Class Certification and Objections to Plaintiffs' Proposed Amended Plan
for Trial of Class Claims. Although both briefs were filed on the same day, due to an error in thee-
mail service of process for the supplemental brief, plaintiffs' counsel responsible for handling the
briefing on class certification did not become aware that the supplemental brief had been filed until
two weeks later, on March 17,2015. The e-mail address of the attorney primarily responsible for
handling the briefing was misspelled in the service e-mail. To their credit, counsel for Statoil
brought the error to plaintiffs' counsel's attention on March 17, 2015, after plaintiffs had filed their
response to the joint opposition. Plaintiffs have filed a response to Statoil's supplemental brief as
quickly as possible to ensure that Statoil and the Court have sufficient time to review and consider it
in advance of the March 31, 2015 hearing on plaintiffs' amended trial plan.

                                                    - 1-
1014!74_1
than arguing that the aiding and abetting claim raises individual issues. As explained in the trial plan,

plaintiffs' aiding and abetting claim is predicated on plaintiffs' breach of fiduciary duty claim. See

Second Amended Trial Plan, §III. B.!. These claims share three of the same elements (the existence of a

fiduciary relationship between the directors and shareholders, a breach of that duty, and damages) and

thus, will rei yon much of the same proof? As with their breach of fiduciary duty claim, plaintiffs will

establish the aiding and abetting claim through contemporaneously created internal Brigham and Statoil

documents, testimony from Brigham's directors and officers and certain of its executives, testimony

from Statoil's executives, e-mails and other correspondence between Brigham and Statoil, and

documents and testimony from the fmancial advisors retained by Brigham and Statoil. All of this

evidence is common to the class, and Statoil does not suggest otherwise. It is clear that plaintiffs' aiding

and abetting claim can be tried through class-wide proof. See In re Rural Metro Corp. S' holders Litig.,

88 A.3d 54 (Del. Ch. 2014) (finding, after class-wide trial, that the directors of Rural Metro Corp. had

breached their fiduciary duties to a class of shareholders in connection with a sale of the company and

that the Board's financial advisor had aided and abetted that violation).

            As to Statoil' s second argument- that plaintiffs are not adequate class representatives for the

aiding and abetting claim, it has already been considered and rejected by this Court. Supp. Brief at 6-

9. Just as it does here, Statoil argued during the initial class certification proceedings that plaintiffs are

inadequate class representatives because they do not have not sufficient knowledge about the litigation.

Compare Defendants' Combined Opposition to Motion for Class Certification, filed October 18,2012,


2
     To the extent Statoil suggests that plaintiffs must establish the merits of their aiding and abetting
claim before obtaining class certification, it is wrong. "'Deciding the merits of the suit in order to
determine ... its maintainability as a class action is not appropriate."' Exxon Mobil Corp. v. Gill,
299 S.W.3d 124, 126 (Tex. 2009); DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 315 (Tex.
2008) ("We have followed the United States Supreme Court's directive in Eisen, holding that
' [d]eciding the merits of the suit in order to determine the scope of the class or its maintainability as
a class action is not appropriate."').
                                                    - 2-
1014174_1
at 13-15 ("plaintiffs are inadequate class representatives because they not sufficiently familiar with the

litigation") with Supp. Brief at 6-9 (same). That argument extended to the sufficiency of plaintiffs'

knowledge as to the aiding and abetting claim against Statoil. Combined Opposition to Motion for

Class Certification at 14 (arguing that Ms. Goodman, Mr. Duncan, Mr. Whalen, and Mr. Boytirn were

not familiar with Statoil or the claims against it). The Court rejected these arguments, finding in its

class certification order that "[p]laintiffs will fairly and adequately protect the interests of the Class."

February 27, 2013 Order Granting Class Certification at 2.

            Before making this finding, the Court considered extensive evidentiary submissions from the

parties. Along with full briefing on the issue, the Court held a full-day evidentiary hearing at which

it heard live testimony from four of the named plaintiffs. Defendants cross-examined these plaintiffs

at length during that hearing. In addition, following the hearing, the parties submitted: (i) a compact

disc, compiled by defendants, containing videotaped excerpts from the depositions of the proposed

class representatives which defendants believed supported their position that the named plaintiffs

were inadequate; and (ii) complete copies of the deposition transcripts of the named plaintiffs. In the

interest of brevity, plaintiffs will not repeat their discussion of the extensive evidence supporting the

Court's finding and rebutting Statoil' s arguments, but respectfully refer the Court to plaintiffs' class

certification briefs and exhibits, and incorporate them by reference.

            This Court was no doubt in an excellent position to evaluate the sufficiency of each of the

plaintiffs as class representatives. Indeed, nothing in the Court of Appeal's decision indicates that it

had any problem with the Court's adequacy findings- factual findings which are committed to the

discretion of the Court. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 691 (Tex. 2002) ("[a] trial

court has discretion to rule on class certification issues, and some of its determinations -like those

based on its assessment of the credibility of witnesses, for example -must be given the benefit of the


                                                   -3-
1014174_1
doubt"); Farmers Ins. Exch. v. Leonard, 125 S.W.3d 55, 68 (Tex. App.-Austin 2003, pet. denied)

("the trial court is in the best position to weigh the credibility of Leonard and Sawyer as well as to

determine the ability and integrity of class counsel to represent the entire class"). There is no reason

for the Court to revisit its previous findings, especially since Statoil presents the Court with nothing

new in the law or in the factual record to support its argument.

            Defendants have now had many opportunities over the past two years to demonstrate to this

Court why class certification is not warranted. At every turn, they have failed. The reason for that is

simple: cases such as this one are routinely certified and successfully tried as class actions in every

jurisdiction where class actions exist, including in Texas. Plaintiffs have proposed a trial plan which

has been proven workable by real-world experience. That plan explains how this case will be tried

in a timely, manageable way, and it should be adopted by the Court.

DATED: March 19, 2015                            Respectfully submitted,

                                                 ROBBINS GELLER RUDMAN
                                                  &DOWDLLP
                                                 RANDALL J. BARON
                                                 DAVID T. WISSBROECKER
                                                 STEVEN M. JODLOWSKI




                                                ~ON
                                                655 West Broadway, Suite 1900
                                                San Diego, CA 92101
                                                Telephone: 619/231-1058
                                                619/231-7423 (fax)

                                                ROBBINS GELLER RUDMAN
                                                  &DOWDLLP
                                                SAMUEL H. RUDMAN
                                                MARK S. REICH
                                                MICHAEL G. CAPECI
                                                58 South Service Road, Suite 200
                                                Melville, NY 11747
                                                Telephone: 631/367-7100
                                                631/367-1173 (fax)

                                                  -4-
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            Class Counsel for Plaintiffs

            BOULETTE & GOLDEN LLP
            MICHAEL D. MARIN
            Texas Bar #0079117 4
            2801 Via Fortuna Drive, Suite 530
            Austin, TX 78746
            Telephone: 512/732-8900
            512/732-8905 (fax)

            Liaison Counsel

            KENDALL LAW GROUP, LLP
            JOE KENDALL
            DANIEL HILL
            JAMIE J. McKEY
            3232 McKinney Avenue, Suite 700
            Dallas, TX 75204
            Telephone: 214/744-3000
            214/744-3015 (fax)

            THE BRISCOE LAW FIRM, PLLC
            WILLIE C. BRISCOE
            8150 N. Central Expressway, Suite 1575
            Dallas, TX 75206
            Telephone: 214/239-4568
            281/254-7789 (fax)

            ARMBURST & BROWN, PLLC
            MICHAEL BURNETT
            100 Congress A venue, Suite 1300
            Austin, TX 78702
            Telephone: 512/435-2300
            512/435-2360 (fax)

            ROBBINS ARROYO LLP
            BRIAN J. ROBBINS
            STEPHEN J. ODDO
            EDWARD B. GERARD
            JUSTIN D. RIEGER
            600 B Street, Suite 1900
            San Diego, CA 92101
            Telephone: 619/525-3990
            619/525-3991 (fax)

            DUNNAM DUNNAM HARMON WEST
              LINDLEY &RYANLLP
            HAMILTON P. LINDLEY
            4125 W. Waco Drive
            Waco, TX 76710
            Telephone: 254/753-6437
            254/753-7434 (fax)
             - 5-
1014174_1
            BRODSKY & SMITH, LLC
            EVAN J. SMITH
            MARC ACKERMAN
            Two Bala Plaza, Suite 510
            Bala Cynwyd, PA 19004
            Telephone: 610/667-6200
            610/667-9029 (fax)

            LEVI & KORSINSKY, LLP
            SHANE T. ROWLEY
            30 Broad Street, 24th Floor
            New York, NY 10004
            Telephone: 212/363-7500
            866/367-6510 (fax)

            KOHN, SWIFT & GRAF, P.C.
            DENIS F. SHEILS
            One South Broad Street, Suite 2100
            Philadelphia, PA 19107-3389
            Telephone: 215/238-1700
            215/238-1968 (fax)

            THE WEISER LAW FIRM, P.C.
            PATRICIA C. WEISER
            JAMES M. FICARO
            22 Cassatt A venue
            Berwyn, PA 19312
            Telephone: 610/225-2677
            610/225-2678 (fax)

            RYAN & MANISKAS, LLP
            KATHARINE M. RYAN
            RICHARD A. MANISKAS
            995 Old Eagle School Road, Suite 311
            Wayne, PA 19087
            Telephone: 484/588-5516
            484/450-2582 (fax)

            SAXENA WHITE P.A.
            JONATHAN M. STEIN
            5200 Town Center Circle, Suite 601
            Boca Raton, FL 33486
            Telephone: 561/394-3399
            5611394-3382 (fax)

            Additional Counsel for Plaintiffs




             - 6-
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                                     CERTIFICATE OF SERVICE

            Pursuant to the attached Declaration of Service by E-Mail, I hereby certify that a true and

correct copy of the foregoing instrument has been served in accordance to the Texas Rules of Civil

Procedure, to those listed on the attached service list, on this 19th day of March 2015.


                                                                 /s/ Michael D. Marin
                                                                MICHAEL D. MARIN




                                                  - 7-
1014174_1
                               DECLARATION OF SERVICE BY E-MAIL

        I, June P.lto, nota party to the within action, hereby declare that on March 19, 2015, I served
the attached PLAINTIFFS' RESPONSE TO DEFENDANTS STATOIL ASA AND FARGO
ACQUISITION, INC.'S SUPPLEMENTAL BRIEF IN SUPPORT OF OPPOSITION TO CLASS
CERTIFICATION AND OBJECTIONS TO PLAINTIFFS' PROPOSED AMENDED PLAN FOR
TRIAL OF CLASS CLAIMS on the parties in the within action by e-mail addressed as follows:

Counsel forDefendant(s)> .· . .                .   .
                                                       ·   ....
                                                                  ·.....   ·.   ·   ....       .......... ··. .              ... ..         ...        ..
                                                                                                                                                                ..
                                                                                                                                                                 . ..   .




Timothy R. McCormick               Thompson & Knight LLP                                                   timothy.mccormick@tklaw.com
Michael W. Stockham                                                                                        michael.stockham @tklaw .com
Timothy E. Hudson                                                                                          tim.hudson @tklaw .com
Debora B. Alsup                                                                                            debora.alsup @tklaw.com
Danley Cornyn                                                                                              danley.cornyn @tklaw .com
Michael C. Holmes                  Vinson & Elkins L.L.P.                                                  ntholmes @velaw .com
Jennifer B. Poppe                                                                                          jpoppe @velaw .com
Thomas S. Leatherbury                                                                                      tleatherbury@velaw.com
Fields Alexander                   Beck Redden LLP                                                         falexander@beckredden.com
Parth S. Gejji                                                                                             pgejji @beckredden.com
Christopher R. Cowan                                                                                       ccowan @beckredden.com
Coll.nselfor Plaintiff(s) · < . ··· .. ... .. ·. ....• ... ·. .······ .· ..
                                           ·
                                                                                                  ·· . .
                                                                                                  ..              .···.·   ...•....     ·.····    ·   ..    ••... >··       ·.· .. ·


Michael Burnett                           Armburst & Brown. PLLC                                           mburnett@ abaustin.com
Kelly N. Reddell                          Baron & Budd, P.C.                                               kreddell @baronbudd.com
Michael D. Marin                          Boulette & Golden LLP                                            mmarin @boulettegolden.com
Evan J. Smith                             Brodsky & Smith, LLC                                             esmith@ brodsky-smith.com
Marc L. Ackerman                                                                                           mackerman@ brodsky-smith.com
Hamilton Lindley                          Dunnam & Dunnam                                                  hlindley@ dunnamlaw.com
Shane T. Rowley                           Levi & Korsinsky LLP                                             srowley@zlk.com
Joe Kendall                               Kendall Law Group, LLP                                           jkendall @kendalllawgroup.com
Daniel Hill                                                                                                dhill@ kendalllawgroup.com
Jamie J. McKey                                                                                             imckey@kendalllawgrouo.com
Denis F. Sheils                           Kohn. Swift & Graf, P.C.                                         dsheils@ kohnswift.com
Brian J. Robbins                          Robbins Arroyo LLP                                               brobbins@robbinsarroyo.com
Stephen J. Oddo                                                                                            soddo @robbinsarroyo.com
Edward B. Gerard                                                                                           egerard@robbinsarroyo.com
Katharine M. Ryan                     .
                                          Ryan & Maniskas, LLP                                             kryan @rmclasslaw .com
Richard A. Maniskas                                                                                        rmaniskas @rmclasslaw .com
Jonathan M. Stein                         Saxena White P.A.                                                istein @saxenawhite.com
Willie C. Briscoe                         The Briscoe Law Firm                                             wbriscoe@thebriscoelawfmn.com
Patricia C. Weiser                        The Weiser Law Firm, P.C.                                        pw@weiserlawfirm.com
James M. Ficaro                                                                                            imf@weiserlawfirm.com


March 19, 2015, at San Diego, California.                     d~                           J
      I declare under penalty of perjury that the foregoing is true and correct. Executed on


                                                                                c::= hi Jli
                                                                                                   JUNEP. ITO
                                                                                                                  .                   t(J
1014174_1
