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Hawaii Structural Ironworkers Pension Trust Fund v. AMC Entertainment Holdings, Inc.

United States District Court, S.D. New York

January 10, 2020

HAWAII STRUCTURAL IRONWORKERS PENSION TRUST FUND, et al, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
v.
AMC ENTERTAINMENT HOLDINGS, INC., ADAM M. ARON, CRAIG R. RAMSEY, CHRIS A. COX, LIN ZHANG, JACK Q. GAO, MAOJUN ZENG, ANTHONY J. SAICH, LLOYD HILL, GARY F. LOCKE, HOWARD W. KOCH, JR., KATHLEEN M. PAWLUS, CITIGROUP GLOBAL MARKETS INC., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, BARCLAYS CAPITAL INC. and CREDIT SUISSE SECURITIES USA LLC, Defendants.

         CLASS ACTION

          SHEPHERD, FINKELMAN, MILLER &SHAH, LLP James E. Miller Laurie Rubinow James C. Shah Jayne A. Goldstein Eric L. Young Bruce D. Parke Alec J. Berin SHEPHERD, FINKELMAN, MILLER &SHAH, LLP Kolin C. Tang SHEPHERD, FINKELMAN, MILLER &SHAH, LLP Attorneys for Lead Plaintiff, The International Union of Operating Engineers Pension Fund of Eastern Pennsylvania and Delaware and Lead Counsel for the Class

          WEIL, GOTSHAL & MANGES LLP John A. Neuwirth Joshua S. Amsel StefaniaD. Venezia Matthew S. Connors Counsel for Defendants, AMC Entertainment Holdings, Inc., Adam M. Aron, CraigR. Ramsey, Chris A. Cox, Lincoln Zhang, Jack Q. Gao, Mao Jun Zeng, Anthony J. Saich, Lloyd Hill, Gary F. Locke, Howard W. Koch, Jr., and Kathleen M. Pawlus

          SHEARMAN & STERLING LLP Adam S. Hakki Agnes Dunogue Counsel for Defendants, Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc., and Credit Suisse Securities (USA) LLC

          Samuel H. Rudman David A. Rosenfeld Christopher T. Gilroy ROBBINS GELLER RUDMAN & DOWD LLP Additional Counsel for Plaintiffs

          STIPULATION AND PROTECTIVE ORDER

          HONORABLE ALISON J. NATHAN JUDGE.

         It is hereby stipulated and agreed, by and among Plaintiffs the International Union of Operating Engineers Pension Fund of Eastern Pennsylvania and Delaware (the "Operating Engineers' Fund" or "Lead Plaintiff) and Hawaii Iron Workers Pension Trust Fund ("Hawaii Iron Workers' Fund," and together with Lead Plaintiff, "Plaintiffs"); Defendants AMC Entertainment Holdings, Inc., Adam M. Aron, Craig R. Ramsey, Chris A. Cox, Lincoln Zhang, Jack Q. Gao, Mao Jun Zeng, Anthony J. Saich, Lloyd Hill, Gary F. Locke, Howard W. Koch, Jr., and Kathleen M. Pawlus (collectively, the "AMC Defendants"); and Defendants Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc., and Credit Suisse Securities (USA) LLC (collectively, the "Underwriter Defendants," and together with Plaintiffs and the AMC Defendants, the "Parties," and each individually, a "Party"), subject to the approval of the Court, that this Stipulation and [Proposed] Protective Order (the "Protective Order" or "Order") shall govern the use of Discovery Material (defined below) in the above-captioned action (the "Action").

         WHEREAS, disclosure and discovery activity in the Action may involve production of information that is not publicly known, including non-public personal information, trade secrets, or other confidential research, development, or commercial information, which is entitled to confidential treatment under the Federal Rules of Civil Procedure (including Rule 26) or other applicable law, regulation, or agreement;

         NOW THEREFORE, pursuant to Federal Rules of Civil Procedure 26 and 29, the Parties stipulate and agree to the following Protective Order.

         DEFINITIONS

         1. "Confidential Discovery Material" means any Discovery Material designated as "Confidential" pursuant to Paragraph 9 of this Protective Order.

         2. "Designating Person" means a Party or non-party that designates discovery materials as "Confidential," "Data Protection Confidential," or "Highly Confidential," as provided herein.

         3. "Discovery Material" means any information contained in documents, testimony taken at depositions or hearings and transcripts thereof, deposition exhibits, interrogatory responses, responses to requests for admissions, and any other information or material produced, given, or exchanged in this Action, regardless of the medium or manner generated, stored, or maintained.

         4. "Data Protection Discovery Material" means any Discovery Material designated as "Data Protection Confidential" pursuant to Paragraph 10 of this Protective Order.

         5. "Highly Confidential Discovery Material" means any Discovery Material designated as "Highly Confidential" pursuant to Paragraph 11 of this Protective Order.

         6. "Producing Person" means a Party or non-party that produces Discovery Material in this Action.

         7. "Receiving Person" means a Party that receives Discovery Material.

         SCOPE OF PROTECTIVE ORDER

         8. All Discovery Material (including, but not limited to, Confidential Discovery Material, Data Protection Discovery Material, and Highly Confidential Discovery Material) shall be used solely for purposes of the prosecution or defense of this Action and may not be used for any other purpose whatsoever, including, but not limited to, any business or commercial purpose, for dissemination to the media or the public, or in connection with any other proceeding, whether judicial, governmental, administrative, or arbitral or contemplated, pending, or final. The Parties, the attorneys of record for the Parties, and all other persons receiving Discovery Material governed by this Protective Order shall maintain such Discovery Material in a secure manner so as to avoid disclosure of its contents and take reasonable steps to ensure that Discovery Material is (i) used only for the purposes specified herein and (ii) disclosed only to authorized persons, as provided herein.

         CONFIDENTIALITY

         A. Designation and Maintenance of Discovery Material.

         9. Any Producing Person shall have the right to identify and designate all or any part of Discovery Material as "Confidential" if that Producing Person believes that such Discovery Material contains or reflects information not publicly known, including non-public personal information, financial data, financial analysis, proprietary data, trade secrets, marketing or advertising data or plans, strategic or long range plans or projections, internal cost data or analysis, performance data, product research or development, customer or vendor data, contracts or agreements with third parties, or technological data, which is entitled to confidential treatment under the Federal Rules of Civil Procedure (including Rule 26(c)(1)(G)) or other applicable law, regulation, or agreement.

         10. Any Producing Person shall have the right to identify and designate all or any part of Discovery Material as "Data Protection Confidential" if that Producing Person believes that such Discovery Material contains or reflects information that is subject to U.S. or foreign privacy, data protection, or secrecy laws or regulations, including, but not limited to, the Gramm-Leach-Bliley Act, 15 U.S.C. §§ 6801 et seq. (financial information), and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O J. (L281/31) (or any replacement thereof) (European Union personal information).

         11. Any Producing Person shall have the right to identify and designate all or any part of Discovery Material as "Highly Confidential" if that Producing Person believes that such Discovery Material contains or reflects highly sensitive nonpublic commercial, proprietary, financial, business, or personal information. The following non-exhaustive list sets forth examples of information that may be considered "Highly Confidential": information related to negotiations with potential customers, investors, partners, or acquirers, disclosure of which would be harmful to present or prospective business plans; confidential material regarding acquisition offers or expressions of interest, proposed transactions, or other business combinations, disclosure of which would be harmful to present or prospective business plans, negotiations, or relationships; trade secrets or other proprietary technical or commercial information; or any nonpublic information that, if disclosed, could damage an existing or potential business relationship.

         12. The designation of physical or electronic documents or data (apart from depositions or other pretrial testimony) as Confidential Discovery Material, Data Protection Discovery Material, or Highly Confidential Discovery Material shall be made by placing or affixing on the Discovery Material, in a manner that will not interfere with its legibility, the words "Confidential," "Data Protection Confidential," or "Highly Confidential," as appropriate. In cases where placing or affixing the word "Confidential," "Data Protection Confidential," or "Highly Confidential" on a piece of Discovery Material is impractical or impossible, the Producing Person shall insert a slip sheet reflecting the confidentiality designation appropriate under this Protective Order.

         13. Except for Discovery Material produced for inspection at a Producing Person's facilities, and except for instances in which a Producing Person inadvertently fails to designate Discovery Material as described in Section C, infra, the designation of physical or electronic documents or data (apart from depositions or other pretrial testimony) as "Confidential," "Data Protection Confidential," or "Highly Confidential," as appropriate, shall be made prior to, or contemporaneously with, the production or disclosure of that Discovery Material. In the event that Discovery Material is produced for inspection at a Producing Person's facilities, such Discovery Material may be produced for inspection before being marked "Confidential," "Data Protection Confidential," or "Highly Confidential." Once Discovery Material has been identified by the Receiving Person for copying, any Discovery Material which the Producing Person wants to designate as "Confidential," "Data Protection Confidential," or "Highly Confidential" will be designated after copying but before delivery to the Receiving Person who inspected the Discovery Material. There will be no waiver of confidentiality by the inspection of Discovery Material before it is copied and marked "Confidential," "Data Protection Confidential," or "Highly Confidential" pursuant to this procedure.

         14. All information derived from Confidential Discovery Material, Data Protection Discovery Material, or Highly Confidential Discovery Material, including, but not limited to, extracts, summaries, compilations, and descriptions of such material, and notes, electronic images, or databases containing Confidential Discovery Material, Data Protection Discovery Material, or Highly Confidential Discovery Material ("Derivative Information") shall be treated as "Confidential," "Data Protection Confidential," or "Highly Confidential," as applicable, in accordance with the provisions of this ...


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