No. 03-15-000248-CV

___________________________________________

In the Third Court of Appeals

at Austin, Texas

___________________________________________

BRIGHAM EXPLORATION COMPANY, ET AL, 

 Defendants/Appellants,

v.

RAYMOND BOYTIM, ET AL, 

 Plaintiffs/Appellees.

___________________________________________

On Appeal from the 201st Judicial District Court of Travis County, Texas

Honorable Lora Livingston, Presiding Judge 

Cause No. D-1-GN-11-003205

__________________________________________________________________

APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS 

_________________________________________________________________

THOMPSON & KNIGHT LLP

Debora B. Alsup

Texas Bar No. 02006200

debora.alsup@tklaw.com

Benjamin Hallmark

Texas Bar No. 24069865

benjamin.hallmark@tklaw.com

98 San Jacinto Blvd., Suite 1900

Austin, Texas 78701-4238

(512) 469-6100

(512) 482-5028 (Alsup Fax)

(512) 482-5091 (Hallmark Fax)

THOMPSON & KNIGHT LLP

Timothy R. McCormick

Texas Bar No. 13463500

timothy.mccormick@tklaw.com

Michael W. Stockham

Texas Bar No. 24038074

michael.stockham@tklaw.com

1722 Routh Street, Suite 1500

Dallas, Texas 75201

(214) 969-1700

(214) 969-1751 (Fax)

ATTORNEYS FOR APPELLANTS THE BRIGHAM DEFENDANTS

Oral Argument Requested

ACCEPTED

03-15-00248-CV

7127861

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/28/2015 4:48:15 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 9/28/2015 4:48:15 PM JEFFREY D. KYLE Clerk
i

IDENTITY OF PARTIES AND COUNSEL

Appellants Counsel for Appellants

Brigham Exploration Company, 

Ben M. Brigham, David T. 

Brigham, Harold D. Carter, 

Stephen C. Hurley, Stephen P. 

Reynolds, Hobart A. Smith, and 

Scott W. Tinker

Debora B. Alsup

Ben Hallmark

THOMPSON & KNIGHT LLP

98 San Jacinto Blvd., Suite 1900

Austin, Texas 78701-4238

(512) 469-6100

(512) 482-5028 (Alsup Fax)

(512) 482-5091 (Hallmark Fax)

debora.alsup@tklaw.com

benjamin.hallmark@tklaw.com

Timothy R. McCormick

Michael W. Stockham

THOMPSON & KNIGHT LLP

1722 Routh Street, Suite 1500

Dallas, Texas 75201

(214) 969-1700

(214) 969-1751 (Facsimile)

timothy.mccormick@tklaw.com

michael.stockham@tklaw.com

Statoil ASA and Fargo 

Acquisition, Inc.

Russell S. Post

Fields Alexander

Parth Gejji

BECK REDDEN LLP

1221 McKinney St., Suite 4500 

Houston, Texas 77010

(713) 951-3700

(713) 951-3720 fax

rpost@beckredden.com

falexander@beckredden.com

pgejji@beckredden.com
ii

Chris R. Cowan

BECK REDDEN LLP

515 Congress Avenue, Suite 1750

Austin, Texas 78701

(512) 708-1000, ext 6402

(512) 708-1002 fax

ccowan@beckredden.com

Appellees Counsel for Appellees

Raymond Boytim

Hugh Duncan

Randall J. Baron

David T. Wissbrocker

Steven M. Jodlowski

Robbins Geller Rudman & Dowd LLP

655 West Broadway, Suite 1900

San Diego, CA 92101-3301

(619) 231-1058

(619) 231-7423 fax

Samuel H. Rudman

Mark S. Reich

Michael G. Capeci

Robbins Geller Rudman & Dowd LLP

58 South Service Road, Suite 200

Melville, NY 11747

(631) 367-7100

(631) 367-1173 fax

srudman@rgrdlaw.com

mreich@rgrdlaw.com

mcapeci@rgrdlaw.com

Michael D. Marin

Boulette Golden & Marin LLP

2801 Via Fortuna, Suite 530

Austin, Texas 78746

(512) 732-8924

(512) 732-8905 fax

mmarin@boulettegolden.com
iii

Walter Schwimmer Evan J. Smith

Marc L. Ackerman

Brodsky & Smith, LLC

Two Bala Plaza, Suite 602

Bala Cynwyd, Pennsylvania 19004

(610) 667-6200

(610) 667-9029 fax

esmith@brodsky-smith.com 

mackerman@brodsky-smith.com

Michael Ohler

Ryan Ohler

Walter Ohler, Jr.

Hamilton Lindley

Dunnam & Dunnam L.L.P.

4125 W. Waco Drive 76710

P.O. Box 8418

Waco, Texas 76714

(254) 753-6437

(254) 753-7434 fax

hlindley@dunnamlaw.com

The Edward J. Goodman Life 

Income Trust 

and

The Edward J. Goodman 

Generation Skipping Trust

Shane T. Rowley

Levi & Korsinsky LLP

Shane T. Rowley

30 Broad St., 24th Floor

New York, NY 10004

(212) 363-7500 x127

(866) 367-6510 fax

srowley@zlk.com

Denis F. Sheils

Kohn, Swift & Graf, P.C.

One South Broad Street, Suite 2100

Philadelphia, PA 19107-3389

(215) 238-1700

(215) 238-1968 fax

dsheils@kohnswift.com
iv

Hugh Duncan Joe Kendall 

Daniel Hill 

Jamie J. McKey

Kohn, Swift & Graf, P.C.

One South Broad Street, Suite 2100

Philadelphia, PA 19107-3389

(215) 238-1700

(215) 238-1968 fax

dsheils@kohnswift.com

Robert Fioravanti Katharine M. Ryan

Richard A. Maniskas

Ryan & Maniskas, LLP

995 Old Eagle School Road, Suite 311

Wayne, PA 19087

(484) 588-5516

(484) 450-2582 fax

kryan@rmclasslaw.com 

rmaniskas@rmclasslaw.com

Kelly N. Reddell

The Reddell Firm PLLC

100 Highland Park Village, Suite 200

Dallas, Texas 75205 

(214) 295-3031

kelly@reddell-law.com

Raymond Boytim Willie C. Briscoe

The Briscoe Law Firm, PLLC

The Preston Commons

8150 N. Central Expwy., Suite 1575

Dallas, Texas 75206

(214) 239-4568

(281) 254-7789 fax

wbriscoe@thebriscoelawfirm.com
v

Howard Weissberg

Jeffrey Whalen

Patricia C. Weiser

James M. Ficaro

The Weiser Law Firm, P.C.

22 Cassatt Avenue

Berwyn, PA 19312

(610) 225-2677

(610) 408-8062 fax

pw@weiserlawfirm.com 

jmf@weiserlawfirm.com
vi

REQUEST FOR ORAL ARGUMENT

Under Texas Rule of Appellate Procedure 39.1, Appellants, the Brigham 

Defendants, respectfully request oral argument. Oral argument will assist this 

Court in determining the legal issues in this complex appeal.
vii

TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL .............................................................i

REQUEST FOR ORAL ARGUMENT ....................................................................vi

TABLE OF AUTHORITIES .....................................................................................x

STATEMENT OF CASE .......................................................................................xvi

ISSUES PRESENTED......................................................................................... xviii

STATEMENT OF FACTS ........................................................................................1

A. Brigham’s volatile stock price history was tied to the 

price of oil. ..................................................................................1

B. Brigham’s Board agrees to sell Brigham after a yearlong 

process.........................................................................................2

C. Plaintiffs file suit within hours of the transaction 

announcement. ............................................................................3

D. Plaintiffs unsuccessfully attempt to enjoin the 

transaction. ..................................................................................3

E. Following the merger announcement, Brigham’s stock is 

subject to heavy trading volume. ................................................4

F. Brigham’s shareholders overwhelmingly support the 

transaction. ..................................................................................6

G. The trial court erroneously entered a class certification 

order. ...........................................................................................7

H. This Court decertifies the class in Brigham I. ............................8

I. The trial court recertified the class on remand. ..........................9

STANDARD OF REVIEW.....................................................................................11
viii

SUMMARY OF THE ARGUMENT ......................................................................12

ARGUMENT AND AUTHORITIES......................................................................15

I. The Trial Court Failed to Rigorously Analyze the Certification 

Requirements under Rule 42 on Remand............................................15

A. The Order and Revised Trial Plan exemplify a “certify 

now, worry later” approach.......................................................17

B. The class definition is both unworkable and invalid. ...............18

II. The Trial Plan Remains Legally Deficient..........................................21

A. A detailed trial plan is required to demonstrate that the 

trial court performed a rigorous analysis under Rule 42. .........22

B. The Revised Trial Plan does not rigorously analyze how 

damages will be proven. ...........................................................23

C. The Revised Trial Plan does not rigorously analyze the 

effect of the Defendants’ affirmative defenses.........................25

D. The Revised Trial Plan fails to account for Defendants’ 

right to request jury findings on proportionate 

responsibility.............................................................................38

E. There is no cause of action in Delaware for breach of the 

duty of candor. ..........................................................................39

F. The Revised Trial Plan misstates the elements of 

Plaintiffs breach of fiduciary duty claims.................................40

G. The Revised Trial Plan fails to address the impact of the 

Plaintiffs’ conflicting damages theories on typicality and 

predominance............................................................................41

III. This Case Cannot Satisfy the Requirements for Class 

Certification under Rule 42.................................................................42

A. Named Plaintiffs do not satisfy the typicality requirement 

because they did not tender their shares. ..................................42
ix

B. Plaintiffs failed to establish that common issues 

predominate over individual issues...........................................44

C. The numerosity requirement was not met.................................45

D. Plaintiffs failed to establish that they are adequate 

representatives of the absent class members. ...........................46

CONCLUSION AND PRAYER .............................................................................47

CERTIFICATE OF COMPLIANCE.......................................................................49

CERTIFICATE OF SERVICE ................................................................................49

APPENDIX
x

TABLE OF AUTHORITIES

Cases

1993 GF P’ship v. Simmons & Co. Int’l,

2010 WL 4514277 (Tex. App.—Houston [14th Dist.] 

Nov. 9, 2010, no pet.) (mem. op.)........................................................................19

All American Life & Casualty Insurance Co. v. Vandeventer,

2006 WL 742452 

(Tex. App.—Fort Worth Mar. 23, 2006, no pet.) (mem. op.) .............................23

Allen v. Hines Ranches of Tex., Inc.,

2003 WL 22908134 

(Tex. App.—Austin Dec. 11, 2003, no pet.) (mem. op.).....................................19

Andra v. Blount,

772 A.2d 183 (Del. Ch. 2000).............................................................................43

Basic Inc. v. Levinson,

485 U.S. 224 (1988)............................................................................................19

Bershad v. Curtiss-Wright Corp.,

535 A.2d 840 (Del. 1987) ................................................................ 20, 25, 30, 43

Best Buy Co. v. Barrera,

248 S.W.3d 160 (Tex. 2007)...............................................................................37

Bluelinx Corp. v. Texas Constr. Sys., Inc.,

363 S.W.3d 623 (Tex. App.—Houston [14th Dist.] 2011, no pet.)....................32

BMG Direct Marketing, Inc. v. Peake,

178 S.W.3d 763 (Tex. 2005)............................................................ 23, 30, 32, 37

Bowden v. Phillips Petroleum Co.,

247 S.W.3d 690 (Tex. 2008).................................................................. 11, 12, 37

Brigham Exploration Co. v. Boytim,

2014 WL 4058965 (Tex. App.—Austin,

Aug. 15, 2014, no pet.) (mem. op.).............................................................. passim

C&J Energy Servs., Inc. v. City of Miami Gen. Emps.,

107 A.3d 1049 (Del. 2014) .................................................................................22
xi

Cameron Appraisal Dist. v. Rourk,

194 S.W.3d 501 (Tex. 2006) (mem. op.)............................................................37

Canyon Lake Island Prop. Owners Ass’n. v. Sterling/Suggs Ltd. P’ship.,

2015 WL 3543125 (Tex. App.—Austin, Jun. 5, 2015, no pet. h.)............... 23, 45

Citizens Ins. Co. of Am. v. Daccach,

217 S.W.3d 430 (Tex. 2007)...............................................................................37

Compaq Computer Corp. v. Lapray,

135 S.W.3d 657 (Tex. 2004)...............................................................................37

DaimlerChrysler Corp. v. Inman,

252 S.W.3d 299 (Tex. 2008)...............................................................................37

Enron Oil & Gas Co. v. Joffrion,

116 S.W.3d 215 (Tex. App.—Tyler 2003, no pet.)............................................23

E.V. Slack, Inc. v. Shell Oil Co., 

969 S.W.2d 565 (Tex. App.—Austin 1998, no pet.)...........................................16

Exxon Mobil Corp. v. Gill,

299 S.W.3d 124 (Tex. 2009)...............................................................................37

Farmers Group, Inc. v. Lubin,

222 S.W.3d 417 (Tex. 2007)...............................................................................37

Ford Motor Co. v. Ocanas,

138 S.W.3d 447 (Tex. App.—Corpus Christi 2004, no pet.).............................23

Ford Motor Co. v. Sheldon,

22 S.W.3d 444 (Tex. 2000).................................................................................31

Ford v. Culbertson,

308 S.W.2d 855 (Tex. 1958)........................................................................ 28, 29

Gen. Motors Corp. v. Garza,

179 S.W.3d 76 (Tex. App.—San Antonio 2005, no pet.)...................................23

General Motors Corp. v. Bloyed,

916 S.W.2d 949 (Tex. 1996)...............................................................................15
xii

Glencrest Res., LLC v. Ellis,

2012 WL 3500324 

(Tex. App.— Fort Worth Aug. 16, 2012, no pet.) (mem. op.) ..................... 11, 12

Government Employees Insurance Co. v. Patterson,

2007 WL 4225504 

(Tex. App.—Corpus Christi Nov. 29, 2007, no pet.) (mem. op.)........................23

Griffin v. GK Intelligent Sys., Inc.,

196 F.R.D. at 298 (S.D. Tex. 2000)....................................................................42

Heckmann v. Williamson Cnty.,

369 S.W.3d 137 (Tex. June 8, 2012) ..................................................................37

Henry Schein, Inc. v. Stromboe,

102 S.W.3d 675 (Tex. 2002)...................................................... 11, 15, 23, 26, 37

Hotels.com, L.P. v. Canales,

195 S.W.3d 147 (Tex. App.—San Antonio 2006, no pet.).......................... 23, 42

In re BJ’s Wholesale Club, Inc. S’holders Litig.,

2013 WL 396202 (Del. Ch. Jan. 31, 2013)..........................................................41

In re Celera Corp. S’holder Litig.,

59 A.3d 418 (Del. 2012) .....................................................................................43

In re Cornerstone Therapeutics, Inc.,

115 A.3d 1173 (Del. 2015) .................................................................................40

In Re Prodigy Commc’ns Corp. Shareholders Litig.,

2002 WL 1767543 (Del. Ch. Jul. 26, 2002) .......................................................20

In Re Triarc Cos. Class & Derivative Litig.,

791 A.2d 872 (Del. Ch. 2001).............................................................................20

Intratex Gas Co. v. Beeson,

22 S.W.3d 398 (Tex. 2000).................................................................................19

Issen v. GSC Enters., Inc.,

508 F. Supp. 1278 (N.D. Ill. 1981).....................................................................44

Janus Capital Grp., Inc. v. First Derivative Traders,

131 S. Ct. 2296 (2011)........................................................................................39
xiii

Landon v. Jean-Paul Budinger, Inc.,

724 S.W.2d 931 (Tex. App.—Austin 1987, no writ)..........................................11

Louisiana-Pacific Corp. v. Andrade,

19 S.W.3d 245 (Tex. 1999).................................................................................29

Lubin v. Farmers Grp, Inc.,

2009 WL 3682602 

(Tex. App.—Austin Nov. 6, 2009, no pet.) (mem. op.).......................................36

Ludlow v. BP,

---F.3d---, 2015 WL 5235010 (5th Cir. Sept. 8, 2015)................................. 31, 32

Lyondell Chem. Co. v. Ryan,

970 A.2d 235 (Del. 2009) ...................................................................... 22, 40, 41

Malone v. Brincat,

722 A.2d 5 (Del. 1998) .......................................................................................39

Malpiede v. Townson,

780 A.2d 1075 (Del. 2001) .................................................................................39

McKinney Indep. Sch. Dist. v. Carlisle Grace, Ltd.,

222 S.W.3d 878 (Tex. App.— Dallas 2007, pet. denied)...................................32

Monsanto Co. v. Davis,

97 S.W.3d 642 (Tex. App.—Waco 2002, pet. denied).......................................42

N. Am. Mort. Co. v. O’Hara,

153 S.W.3d 43 (Tex. 2004).......................................................................... 23, 37

N.J. Carpenters Pension Fund v. infoGROUP, Inc.,

2013 WL 610143 (Del. Ch. Feb. 13, 2013)........................................................27

Nat’l W. Life Ins. Co. v. Rowe,

164 S.W.3d 389 (Tex. 2005)........................................................................ 23, 37

Nevins v. Bryan,

885 A.2d 233 (Del. Ch. 2005).............................................................................29

Norberg v. Security Storage Co. of Wash.,

2000 WL 1375868 (Del. Ch. Sept. 19, 2000).............................................. 20, 30
xiv

Pate v. Elloway,

2003 WL 22682422 

(Tex. App.—Houston [1st Dist.] Nov. 13, 2003, pet. denied) (mem. op.)..........36

Pfeffer v. Redstone,

965 A.2d 676 (Del. 2009) ...................................................................................39

Phillips Petroleum Co. v. Yarbrough,

405 S.W.3d 70 (Tex. 2013).......................................................................... 23, 37

Realty Growth Investors v. Council of Unit Owners,

453 A.2d 450 (Del. 1982) ...................................................................................27

Riemer v. State,

392 S.W.3d 635 (Tex. 2013)...............................................................................37

Riemer Ex Rel. Themselves v. State,

452 S.W.3d 491 (Tex. App.—Amarillo 2014, pet. filed)...................................37

Salsitz v. Peltz,

210 F.R.D. 95 (S.D.N.Y. 2002) ..........................................................................44

Shapiro v. Pabst Brewing Co.,

1985 WL 11578 (Del. Ch. July 30, 1985)............................................................44

Snyder Commc’ns v. Magaña,

142 S.W.3d 295 (Tex. 2004)...............................................................................37

Solomon v. Armstrong,

747 A.2d 1098 (Del. Ch. 1999)...........................................................................27

Southwestern Ref. Co. v. Bernal,

22 S.W.3d 425 (Tex. 2000)......................................................................... passim

Spivak v. Petro-Lewis Corp.,

120 F.R.D. 693 (D. Colo. 1987) .........................................................................44

State Farm Mutual Auto. Ins. Co. v. Lopez,

156 S.W.3d 550 (Tex. 2004)....................................................................... passim

Steinhardt v. Howard–Anderson,

2012 WL 29340 (Del. Ch. Jan. 6, 2012).............................................................20
xv

Stonebridge Life Ins. Co. v. Pitts,

236 S.W.3d 201 (Tex. 2007)...............................................................................37

Sw. Bell Tel. Co. v. Mktg. On Hold Inc.,

308 S.W.3d 909 (Tex. 2010)...............................................................................37

Tex. S. Rentals, Inc. v. Gomez,

267 S.W.3d 228 (Tex. App.—Corpus Christi 2008, no pet.).............................23

Tex. Workers’ Comp. Ins. Facility v. Personnel Servs., Inc.,

895 S.W.2d 889 (Tex. App.–Austin, 1995, no writ)...........................................29

Texas Parks & Wildlife Dept. v. Dearing,

240 S.W.3d 330 (Tex. App.—Austin 2007, pet. denied) ...................... 21, 23, 26

Tracker Marine, L.P. v. Ogle,

108 S.W.3d 349 (Tex. App.—Houston [14th Dist.] 2003, no pet.)....................23

Union Pac. Res. Group, Inc. v. Hankins,

111 S.W.3d 69 (Tex. 2003).......................................................................... 23, 37

Vila v. BVWebTies LLC,

2010 WL 3866098 (Del. Ch. Oct. 1, 2010) ........................................................27

Rules and Regulations

TEX. CIV. PRAC. REM. CODE ANN. §§33.002, 33.003 ..............................................38

TEX. R. CIV. P. 42(a) ............................................................................. 16, 42, 44, 45

TEX. R. CIV. P. 42(b)................................................................................... 16, 22, 45

TEX. R. CIV. P. 42(c) ........................................................................................ passim

TEX. R. CIV. P. 277...................................................................................................38

Additional Authorities

Restatement (Second) of Torts §§ 525, 526 (1977).................................................39

8 DEL. CODE § 262.....................................................................................................4
xvi

STATEMENT OF CASE

Nature of Case: This is the second appeal from an order certifying a class action 

filed by former shareholders of Brigham Exploration Company 

(“Brigham”). CR4. This Court reversed the first class 

certification order. Brigham Exploration Co. v. Boytim, 2014 

WL 4058965 (Tex. App.—Austin, Aug. 15, 2014, no pet.) 

(mem. op.) (“Brigham I”). On remand, the trial court 

recertified. CR3167.

The dispute concerns Statoil ASA’s (“Statoil”) 2011 acquisition 

of Brigham via an all-cash tender offer. CR1941-42. Plaintiffs 

allege that the tender offer price of $36.50 was too low and that 

Brigham and Brigham’s individual officers and directors (the 

“Brigham Defendants”) breached their fiduciary duties by 

agreeing to the deal. CR5-8. Plaintiffs attempted to enjoin the 

transaction, but were unsuccessful. CR305-307. 

The trial court entered an order granting class certification on 

February 27, 2013. CR1191-95. On appeal, this Court 

reversed, finding that the “trial court’s order and the adopted 

trial plan fail to meaningfully address appellants’ pleaded 

defenses[,]” and that “the trial court abused its discretion by 

certifying a class without an order complying with the express 

requirements of Rule 42 and without formulating a trial plan 

confirming that it has rigorously analyzed the requirements of 

Rule 42.” Brigham I, 2014 WL 4058965 at *4. 

On remand, the trial court adopted Plaintiffs’ revised trial plan 

and recertified the class on April 9, 2015. CR3163-67. 

Defendants now appeal the trial court’s interlocutory order 

certifying the class on remand.

Trial Court: Order denying temporary injunction signed on November 22, 

2011 by the Honorable John K. Dietz, 250th Judicial District 

Court, Travis County.

Initial class certification order signed on February 27, 2013 by 

the Honorable Lora Livingston, 261st Judicial District Court, 

Travis County. 
xvii

Second class certification order signed on April 9, 2015 by the 

Honorable Lora Livingston, 261st Judicial District Court, 

Travis County. 

Course of 

Proceedings in 

Trial Court:

The trial court signed its Order Granting Class Certification on 

remand on April 9, 2015. App. A.
xviii

ISSUES PRESENTED 

1. Did the trial court abuse its discretion in certifying the class without 

conducting the mandatory rigorous analysis of all certification requirements 

under Rule 42?

2. Did the trial court abuse its discretion by adopting a legally deficient revised 

trial plan that prevents this Court from meaningfully evaluating whether 

certification of the class conforms with all Rule 42 prerequisites?

3. Did the trial court abuse its discretion in concluding that individualized 

issues do not predominate under Rule 42(b)(3), even though Defendants’ 

affirmative defenses will require individualized proof and damages cannot 

be proven on a class wide basis?

4. Did the trial court abuse its discretion in concluding that the Named 

Plaintiffs’ claims are typical under Rule 42(a)(3), even though they did not 

tender their shares, yet 92% of the Brigham shareholders tendered?
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 1

STATEMENT OF FACTS

In Brigham I, the first appeal of this class action proceeding, this Court 

instructed the trial court to conduct the required rigorous analysis under Rule 42 

before ruling on class certification. That did not happen on remand. This second 

appeal challenges the Order certifying a class of former shareholders of Brigham 

Exploration Company who complain that the purchase price of $36.50 per share 

paid by Statoil to acquire Brigham in an all-cash tender offer was too low. 

A. Brigham’s volatile stock price history was tied to the price of oil.

Ben M. “Bud” Brigham started Brigham in 1990 with $25,000—the entirety 

of his family’s personal savings. CR1274, 1286-87. Nine years later, the company 

went public, issuing stock at $8 per share.1

 CR143-46, 1277, 1333. From the time 

it went public in 1997, to the sale to Statoil in December 2011, Brigham’s stock 

had a tumultuous price history in a volatile market tied to the price of oil. 

CR1333-35, 3SCR547. 

Brigham’s stock prices continued to be volatile in the period leading up to 

the sale to Statoil. In the 52 weeks prior to the 2011 sale, Brigham’s stock 

fluctuated between $21 and $37. CR1321. The high lasted for less than a week in 

the spring of 2011, when oil prices spiked to over $110 a barrel. CR182, 1281, 

 1

 Bud Brigham did not retain a majority interest in Brigham after it went public. At the time of 

the disputed transaction, he owned less than two percent of the company’s common stock. 

CR2308. 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 2

1321. Brigham’s stock closed at $30 per share the day before the merger 

announcement on October 17, 2011; oil was at $86 per barrel at that point. CR185, 

197; 3RR15-16, 18. In November 2011, during the tender offer at issue in this 

case, oil prices were between $95 and $100 a barrel. CR1278-79. As this Court is 

well aware, oil prices since have plummeted to dramatically low levels. At the 

time the trial court recertified this class action, oil prices were $50 per barrel, and 

they have dropped further to about $45 per barrel today. CR216, 3RR18.2

 The last 

time oil prices were this low, Brigham’s stock traded at $2 per share. CR1281-82; 

3RR18. 

B. Brigham’s Board agrees to sell Brigham after a yearlong process.

In 2010, Brigham’s Board of Directors undertook a lengthy process to 

explore a potential sale of the company. 3SCR547. With the help of its financial 

advisor, Jefferies & Company, Inc., Brigham contacted ten potential buyers to 

assess their interest. Id. The Board held numerous meetings to facilitate the sales 

process. After ongoing discussions with several potential buyers, Statoil emerged 

as the only company with the necessary resources and interest to purchase Brigham 

at a premium. CR1922; CR1925-26. Brigham and Statoil negotiated the 

transaction and engaged in due diligence for many months. 3SCR547-553. 

 2 See also BLOOMBERG BUSINESS, http://www.bloomberg.com/quote/CL1:COM (last visited 

Sept. 28, 2015).
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 3

Following these lengthy efforts, the Board voted unanimously to approve the 

tender offer of $36.50 per share on October 16, 2011. 3SCR1926. 

C. Plaintiffs file suit within hours of the transaction announcement.

The sale of Brigham to Statoil was announced to shareholders the next day, 

October 17, 2011. Within minutes, law-firm press releases hit the internet trolling 

for plaintiffs to serve as proposed class representatives. CR1928-1930. The first 

plaintiff, Raymond Boytim, filed suit within hours of the merger announcement. 

CR221. He accused all Brigham Board members of “omitting to disclose material 

financial information” in SEC filings that were not even filed yet and would not be 

filed with the SEC for another eleven days. CR234; CR1471. Ten suits were filed 

in Texas and in Delaware before Brigham and Statoil even filed their disclosure 

documents with the SEC. 3SCR571-73.

D. Plaintiffs unsuccessfully attempt to enjoin the transaction.

Plaintiffs sought to enjoin the transaction based on Brigham’s alleged failure 

to disclose an internal marketing piece created by Jefferies, which suggested that a 

properly capitalized acquiring company could operate up to 30 drilling rigs with 

Brigham’s assets. Judge Dietz denied the requested injunction, finding that the 

document was “a marketing tool versus an assessment by the board of directors of 

the value of the company.” CR1378-1381. As he explained, “[T]he record reflects 

that this was not an assessment by management as to what the present value of 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 4

Brigham Oil was, but was rather an attempt to entice Statoil or other buyers that if 

they had sufficient capital, they could really make a lot of money out of 

Brigham....” CR1380. Once the injunction was denied on November 22, 2011, 

the tender offer went forward and the merger transaction closed on December 8, 

2011.

E. Following the merger announcement, Brigham’s stock is subject 

to heavy trading volume.

The transaction was structured as a tender offer, under which shareholders 

were given the option of tendering their shares to Statoil for $36.50 per share. 

CR1912, 2260. If more than 90% of the shares were tendered, Statoil could affect 

a “short-form” merger under Delaware law without the necessity of a shareholder 

vote. CR1912, 2260. Shareholders thus had an individualized choice: (1) whether 

to tender their shares prior to the consummation of the merger for $36.50, (2) 

whether to sell on the open market, or (3) whether to hold until the cash-out 

merger. CR1280, 1912, 2260. Plus, under Delaware law, dissenting shareholders 

who were not satisfied with the tender offer price of $36.50 had an additional 

option. They could seek a judicial appraisal of the fair value of Brigham’s shares. 

CR2245; 8 DEL. CODE § 262. No shareholder requested an appraisal.

This case is unusual in that Brigham’s stock had a highly active trading 

volume following the October 17, 2011 announcement of the transaction with 

Statoil. Brigham had about 117 million shares outstanding at that time. CR2267, 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 5

3164. Plaintiffs’ class is defined as the shareholders who held shares on October 

17, 2011, (CR3167) but the trading volume shows that on that day, 62 million 

shares were sold; i.e. over half of Brigham’s outstanding shares changed hands. 

4RR DX1. From October 17 to October 28, 2011, when Brigham’s Schedule 14D9 was filed, 133 million shares were sold. Id. As discussed below, the 

shareholders holding these 133 million shares can have no complaint about 

allegedly inadequate disclosures in the 14D-9, because it was not even filed with 

the SEC until eleven days after the class definition cut-off. CR1471. And from 

October 17, 2011 to the close of the tender offer on December 8, 2011, 255 million 

shares were traded. 4RR DX1. The trading volume and stock prices in the 

aftermath of the announcement is shown in the following chart (4RR DX1): 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 6

F. Brigham’s shareholders overwhelmingly support the transaction.

Once the merger was announced on October 17, 2011, Brigham’s 

shareholders overwhelmingly supported the deal. By December 8, 2011, 

shareholders had voluntarily tendered 92.2% of the outstanding shares. CR1941-
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 7

43. This allowed Statoil to effect a short-form merger, converting each remaining 

Brigham share into a right to receive $36.50. This provided shareholders with a 

33% premium over the average market price of Brigham shares during the 30 

days before the deal was announced. CR1320-21; 3SCR553. 

Unlike the majority of shareholders they seek to represent, the seven Named 

Plaintiffs did not voluntarily tender their shares to Statoil, but instead sold their 

shares on the open market before the merger; and a few held a small amount of 

their shares through the tender offer period and were automatically cashed out.3

G. The trial court erroneously entered a class certification order.

Plaintiffs’ class action petition alleges that the Brigham Board of Directors 

breached its fiduciary duties by (a) using an unfair method in selling Brigham, (b) 

agreeing to an unfair price, and (c) failing to disclose material information related 

to the merger. Plaintiffs also alleged that Brigham and Statoil aided and abetted 

these breaches. CR5-8. Delaware law controls the substance of these claims 

because Brigham was incorporated in Delaware.

After a hearing, Judge Livingston issued an order on February 27, 2013 

certifying a class defined “as all holders of common stock of Brigham Exploration 

Company as of October 17, 2011,” excluding “defendants and any person, firm, 

 3

 See CR2080-81, 2086-88; Boytim Dep. at 85-87 (CR2054); Duncan Dep. at 36 (CR1987); 

Fioravanti Dep. at 139 (CR1980); Schwimmer Dep. at 40-41 (CR2000-01); Whalen Dep. at 34-

35 (CR2020).
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 8

trust, corporation or other entity related to or affiliated with any defendant.” 

CR60. Named Plaintiffs were appointed as class representatives, and Robbins 

Geller Rudman & Dowd LLP was appointed as class counsel. Id. The trial court 

adopted the Plaintiffs’ Proposed Trial Plan.

H. This Court decertifies the class in Brigham I.

On appeal to this Court from the first certification order, Defendants raised 

six points of error, including that the order failed to satisfy the requirements of 

Rule 42 and that the trial plan was legally deficient in a number of ways. Brigham 

Exploration Co. v. Boytim, 2014 WL 4058965 at *2 (Tex. App.—Austin, Aug. 15, 

2014, no pet.) (mem. op.) (“Brigham I”). This Court agreed that the trial plan was 

deficient because it failed to “meaningfully address appellants’ pleaded defenses.” 

Id. at *4. The Court concluded that “the trial court abused its discretion by 

certifying a class without an order complying with the express requirements of 

Rule 42 and “without formulating a trial plan confirming that it has rigorously 

analyzed the requirements of Rule 42.’” Id. (quoting State Farm Mutual Auto. 

Ins. Co. v. Lopez, 156 S.W.3d 550, 557 (Tex. 2004)). Because the trial plan issue 

was dispositive, this Court did not address the other challenges to the certification 

order and trial plan, but instead reversed and remanded for further proceedings. Id. 

at *4 & n.2.
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 9

I. The trial court recertified the class on remand.

On remand, Plaintiffs submitted their Second Amended Proposed Plan for 

Trial of Class Claims on March 19, 2015 (the “Revised Trial Plan”). App. B.4

 The 

Revised Trial Plan has several additional pages that add the elements of 

Defendants’ affirmative defenses, including a voluntariness element. App. B at 

p.19. But then it reaches the perfunctory conclusion that all of the defenses “are 

subject to common proof and will not present manageability problems.” App. B at 

p.17. It proposes essentially the same plan as in Brigham I. (Compare App. B to 

App. C at CR946-54). It has no analysis of the manageability problems created by 

individualized issues that must be resolved by a fact-finder, and suggests that 

proportionate responsibility issues “can be resolved through the use of an 

appropriate jury form.” App. B at p.19. Plaintiffs also submitted a proposed class 

certification order, but advised the trial court that it was “fundamentally the same 

order the Court signed last time it certified the class with a new date for the trial.” 

3RR5-6.

The Brigham Defendants and Statoil filed a Joint Opposition. CR119. They 

argued that the Revised Trial Plan, like the prior version, failed to adequately 

analyze the affirmative defenses and would be unworkable because the defenses 

 4

 Although requested, the Revised Trial Plan was not initially included in the Clerk’s Record. 

Rather than e-filing it, it was hand-delivered to this Court on June 5, 2015 without Bates 

numbers. It is attached as App. B.
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 10

create individualized issues that would overwhelm any common issues. 3RR17-

18, 21; CR131. Indeed, Plaintiffs earlier acknowledged that the affirmative 

defense of acquiescence would apply to any proposed class member who 

voluntarily tendered shares, and such shareholders “would not be able to 

participate in any recovery,” but Plaintiffs ignored that problem in the Revised 

Trial Plan.5

 Defendants also pointed to the exceedingly high trading volume of 

Brigham stock after October 17, 2011, which made it virtually impossible to prove 

which shareholders remained after so many shares were sold. Defendants also 

demonstrated that Plaintiffs’ class definition of shareholders on October 17 was 

unworkable. 3RR19-20; 4RR DX1. Additionally, Defendants argued that 

members of the purported class would necessarily need to show that they had

suffered damages, yet given the historic volatility of Brigham’s stock prices as 

related to the price of oil, $36.50 was an excellent price. 3RR18. And given the 

plummeting price of oil since the time of the sale to Statoil, Brigham’s Board got 

an excellent price for Brigham’s stockholders. Id. Most shareholders made a 

tremendous amount of money, locking in significant profits with an erratic stock in 

a volatile market. CR1284-85. In fact, one of the Named Plaintiffs sold his stock 

on the open market for higher than the tender offer price, and had a total gain of 

 5

 See Brigham I, No. 03-13-00191-CV, Plaintiffs-Appellees’ Brief at 65, 71-72, available at 

http://www.search.txcourts.gov/Case.aspx?cn=03-13-00191-CV&coa=coa03.
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 11

over $141,000—which he testified was “a very good return” on his investment. 

CR1980.

Plaintiffs offered no additional evidence to demonstrate that the 

requirements of Rule 42 were met. 4RR1-3. Judge Livingston recertified the class 

on April 9, 2015, adopting Plaintiffs’ Revised Trial Plan and signing their 

proposed order (the “Order”) without revision. CR 3163, 3166. This second 

interlocutory appeal followed. 

STANDARD OF REVIEW

Courts review class certification orders under an abuse-of-discretion 

standard. Bowden v. Phillips Petroleum Co., 247 S.W.3d 690, 696 (Tex. 2008). A 

court abuses its discretion if it acts arbitrarily, unreasonably, or without reference 

to guiding principles. Id. Thus, an abuse of discretion follows if a trial court acts 

contrary to law, violates any applicable legal rule, or errs in a manner “affecting 

the fairness of the proceeding as a whole.” Landon v. Jean-Paul Budinger, Inc., 

724 S.W.2d 931, 936 (Tex. App.—Austin 1987, no writ). The trial court’s 

discretion is especially limited in the class-certification context, and a reviewing 

court will defer to the trial court only on some determinations, such as witness 

credibility. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 691 (Tex. 2002). 

Reviewing courts “do not . . . indulge every presumption in the trial court’s favor, 

as compliance with class action requirements must be demonstrated rather than 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 12

presumed.” Bowden, 247 S.W.3d at 696 (emphasis added); see also Glencrest 

Res., LLC v. Ellis, 2012 WL 3500324, at *4 (Tex. App.—Fort Worth Aug. 16, 

2012, no pet.) (mem. op.) (noting that the abuse-of-discretion standard is 

“modified” in the class-certification context because the trial court’s discretion is 

more limited).

SUMMARY OF THE ARGUMENT

The trial court abused its discretion in re-certifying a class of Brigham 

shareholders who complain that $36.50 per share was an unfair price for the sale of 

Brigham to Statoil. Despite this Court’s clear instruction in Brigham I, the trial 

court did not perform a rigorous analysis of Rule 42’s certification requirements on 

remand. See 2014 WL 4058965 at *4. Instead, the court proceeded as if 

certification was a foregone conclusion, accepting Plaintiffs’ mostly cosmetic

changes to the trial plan, and summarily granting recertification. Plaintiffs’ 

Revised Trial Plan again fails to “meaningfully address” Defendants’ affirmative 

defenses, the very error that led to reversal in Brigham I. Likewise, the trial court 

did not address problems with the class definition or with Plaintiffs’ proposal for 

class-wide damages proof. 

Had the trial court engaged in the required analysis, it would have 

recognized that the class remains hopelessly unworkable. The class is defined as 

all Brigham shareholders as of October 17, 2011, the day that the proposed merger 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 13

between Brigham and Statoil was announced. Plaintiffs allege that the Brigham 

Defendants violated their fiduciary duties and misled shareholders into approving 

an inadequate price for Brigham’s stock. But the SEC filings that allegedly 

contain the misrepresentations were not even filed until eleven days later, on 

October 28, 2011. Thus, the class of October 17 shareholders could not have been 

misled by a filing that had not been made, much less damaged by a merger that had 

not yet occurred. 

In truth, the great majority of Brigham shareholders in Plaintiffs’ proposed 

class willingly sold their shares on the open market prior to the merger. The 

underlying facts are unusual in that there was incredibly high trading volume as 

soon as the merger was announced, which continued until the close of the tender 

offer on December 8, 2011. Over half of Brigham’s 117 million outstanding 

shares traded hands on the day of the merger announcement, which means that by 

day end over half of the proposed class of “shareholders as of October 17” were no 

longer shareholders. By November 30, 2011, the close of the initial tender period, 

250 million shares—over twice the outstanding Brigham shares—had been sold. 

This raises the question of how many of the original shareholders on October 17 

that are supposed to be part of the putative class, were still shareholders at the time 

of the final tender. This question has not been answered.
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 14

Any trial must necessarily address the reasons why each shareholder sold, or 

decided to wait and tender their shares to Statoil for $36.50. A shareholder who 

sold for more than $36.50 will not have any harm or damages, and those who 

chose to sell for less than the tender offer price will need to explain why. Such 

evidence is vital to the Defendants’ ability to present critical affirmative defenses 

and would result in an inevitable multitude of mini trials that would swamp the 

proposed class proceeding. The Revised Trial Plan simply ignores these 

fundamental problems. 

Further, although over 90% of the then-existing Brigham shareholders 

voluntarily tendered their shares for the approved merger price of $36.50, none of 

the proposed class representatives tendered. The named Plaintiffs are thus atypical 

of the vast majority of shareholders they purport to represent, rendering them unfit 

to serve as class representatives. 

For these reasons and others set forth below, the Order certifying the class 

and incorporating the Revised Trial Plan should be reversed, and judgment should 

be rendered that under the facts of the underlying case, class certification is 

unavailable.
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 15

ARGUMENT AND AUTHORITIES

The trial court certified a class of all shareholders of Brigham stock as of the 

date the merger with Statoil was announced on October 17, 2011. But each 

shareholder had an independent reason for deciding to sell on the open market, 

accepting the tender offer price of $36.50, or holding their shares until they were 

cashed out. Individual issues will thus predominate any trial, and class-wide proof 

of the fact and amount of damages will be impossible. Because “class actions are 

extraordinary proceedings with extraordinary potential for abuse,” class 

certification is not a decision to be taken lightly. General Motors Corp. v. Bloyed, 

916 S.W.2d 949, 953 (Tex. 1996); see also Schein, 102 S.W.3d at 691. Yet the 

trial court took the decision to grant recertification lightly here. Insurmountable 

problems with Plaintiffs’ class definition, damages model, and individualized proof 

were never addressed. This case cannot be certified as a class action, and the 

Order should be reversed. 

I. The Trial Court Failed to Rigorously Analyze the Certification 

Requirements under Rule 42 on Remand.

Under Texas Rule of Civil Procedure 42(a), a party seeking class 

certification must first satisfy four threshold requirements:

(1) the class is so numerous that joinder of all members is 

impracticable;

(2) there are questions of law, or fact common to the class;
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 16

(3) the claims or defenses of the representative parties are typical of 

the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the 

interests of the class.

TEX. R. CIV. P. 42(a). App. E.

Once these four prerequisites are met, the party seeking certification must 

also plead and prove that that the action falls under one of the categories listed in 

Rule 42(b). E.V. Slack, Inc. v. Shell Oil Co., 969 S.W.2d 565, 567 (Tex. App.—

Austin 1998, no pet.). In this case, the trial court certified under Rule 42(b)(3), 

which required Plaintiffs to demonstrate that “the questions of law or fact common 

to the members of the class predominate over any questions affecting only 

individual members, and a class action is superior to other available methods for 

the fair and efficient adjudication of the controversy.” TEX. R. CIV. P. 42(b)(3). 

Plaintiffs also had to define an appropriate class under TEX. R. CIV. P. 42(c)(1)(B) 

They failed to meet any of these Rule 42 mandates. 

Before certifying a class, the trial court must conduct a “rigorous analysis” 

of all the Rule 42 certification requirements. Southwestern Ref. Co. v. Bernal, 22 

S.W.3d 425, 435 (Tex. 2000). By requiring a trial plan at the time of class 

certification, the Texas Supreme Court prohibits trial courts from deferring any 

part of the mandatory rigorous analysis until later in the trial proceedings, and has 

explicitly rejected a “certify now and worry later” approach. Id. at 434-35. 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 17

A. The Order and Revised Trial Plan exemplify a “certify now, 

worry later” approach.

In Brigham I, this Court found that the “the trial court’s order and the 

adopted trial plan fail to meaningfully address appellants’ pleaded defenses,” and 

did not reach the other deficiencies asserted by Defendants. Brigham I, 2014 WL 

4058965 at *3–*4 & n.1. This Court thus concluded that “the trial court abused its 

discretion by certifying a class without an order complying with the express 

requirements of Rule 42 and without formulating a trial plan confirming that it has 

rigorously analyzed the requirements of Rule 42.” Id. at *4 (quotations omitted). 

Consequently, the Court decertified the class and remanded the case. Id.

On remand, it was incumbent on the trial court to perform a rigorous 

analysis of the Rule 42 prerequisites. It failed to do so. In fact, the trial court’s 

initial proposal was to suggest that a revised trial plan could be approved—and the 

class recertified—without a hearing. 2RR5-7. While the court eventually held a 

hearing, it was superficial. Plaintiffs offered no additional evidence to support 

certification and framed the issue as merely adding more detail to the trial plan. 

They explained the Brigham I ruling as: “The Court of Appeals came down to 

give us a more detailed trial plan. It wasn’t to come and review the entire 

argument on class certification.” 3RR7. 

But the trial court never conducted a rigorous analysis in connection with the 

first class certification order, and it didn’t do so with the second order either. The 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 18

problems with the Order and Revised Trial Plan run deeper than a simple failure to 

include sufficient “detail” in the trial plan.

B. The class definition is both unworkable and invalid. 

At the outset, this Court should examine the class definition, which is both 

unworkable and invalid. Plaintiffs have changed their proposed class definition on 

multiple occasions throughout this litigation.6

 Their most recent definition of “all 

holders of Brigham common stock as of October 17, 2011” is not a valid class 

definition either, as required by TEX. R. CIV. P. 42(c)(1)(B). CR3167. This class 

definition fails for at least four reasons:

First, Brigham’s extensive trading history shows that 62 million shares 

were sold the day that the merger was announced. This means that by the close 

of business on October 17, the shareholders who previously held over half of 

Brigham’s 117 million outstanding shares had disappeared. See “Decision Making 

by Brigham Shareholders” at page 6 supra (4RR DX1). Such purported class 

members were no longer shareholders on October 17, yet they are included in the 

class definition. There has been no attempt by Plaintiffs to identify who the selling 

shareholders are and who was still a holder at day end on October 17, 2011. 

 6

 Plaintiffs have defined the class three different ways. CR327 (“all other stockholders of the 

Company who have been harmed by defendants’ actions as described herein (the ‘Class’)”); 

CR375 (“All holders of Brigham common stock as of December 8, 2011, who held their shares 

through consummation of the acquisition of Brigham by Statoil ASA (“Statoil”) at the price of 

$36.50 per share.”); and CR683 (“All holders of Brigham common stock as of October 17, 

2011.”)
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 19

Second, the class makes a failure to disclose claim, asserting that Brigham’s 

disclosures about the Statoil transaction in SEC filings made on October 28 (a 

14D-9 and Schedule TO) were inadequate. App. B at p.4; CR45. But a class of 

Brigham shareholders as of October 17, cannot have a disclosure claim for 

disclosures not made until October 28. This chronological defect is fatal because it 

is impossible to be damaged on October 17 by a disclosure that has not yet been 

made.7

 

Third, the proposed class includes shareholders who voluntarily sold shares 

after October 17, 2011. A properly defined class “insures that those actually 

harmed by the defendant’s wrongful conduct will receive the relief ultimately 

awarded.” Intratex Gas Co. v. Beeson, 22 S.W.3d 398, 403 (Tex. 2000). The 

Brigham stock trading records show that from the time of the announcement on 

October 17, to the close of the tender offer on December 8, 2011, 255 million 

shares were traded. Because Brigham had only 117 million shares issued and 

available to trade in the open market, these sales reflect more than double the 

amount of the issued shares. CR2267, 3164. In light of the extensive trading 

 7

 See Basic Inc. v. Levinson, 485 U.S. 224, 248 (1988) (plaintiff must have suffered injury after 

the representations were made and before the truth was revealed); Allen v. Hines Ranches of 

Tex., Inc., 2003 WL 22908134, at *4 (Tex. App.—Austin Dec. 11, 2003, no pet.) (holding that 

fraud does not exist if the misrepresentation occurred after the transaction); see also 1993 GF 

P’ship v. Simmons & Co. Int’l, 2010 WL 4514277, at *7-8 (Tex. App.—Houston [14th Dist.] 

Nov. 9, 2010, no pet.) (holding that misrepresentations that occurred after the transaction could 

not form the substance of the claims).
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 20

volume, Plaintiffs have not shown how many shareholders of those who held the 

original 117 million shares on October 17 still held their shares on November 30 in 

order to claim harm. Any Plaintiff who sold their shares cannot claim damages 

under Delaware law. See In Re Triarc Cos. Class & Derivative Litig., 791 A.2d 

872, 875 (Del. Ch. 2001) (“Selling stockholders who are members of the class 

have not suffered any damages.”); In Re Prodigy Commc’ns Corp. Shareholders 

Litig. 2002 WL 1767543 (Del. Ch. Jul. 26, 2002) (“[m]erely objecting to the fact 

that the merger happened is not a valid objection.”) 

Fourth, the proposed class definition includes shareholders who accepted 

the benefit of the merger transaction. This is likewise not permitted under 

Delaware law. See e.g., Bershad v. Curtiss-Wright Corp., 535 A.2d 840 (Del. 

1987); Steinhardt v. Howard–Anderson, 2012 WL 29340 at *11 (Del. Ch. Jan. 6, 

2012); Norberg v. Security Storage Co. of Wash., 2000 WL 1375868, at *5, 7 (Del. 

Ch. Sept. 19, 2000). A full 92% of the shareholders voluntarily tendered their 

shares and accepted the $36.50 price per share. 

The trial court never explained how it planned to make Plaintiffs’ 

unworkable class definition workable when trying this case.8

 8 The Brigham Defendants also respectfully incorporate the arguments set forth in Statoil’s 

appellant’s brief that the class definition improperly includes shareholders who lack standing 

because they apply equally to all defendants. 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 21

II. The Trial Plan Remains Legally Deficient.

The substantive allegations against the Brigham Defendants are that they 

allegedly used an unfair method in selling Brigham for an unfair price, and did not 

disclose material information related to the merger in the 14D-9. CR5-8. These 

complaints are to be analyzed under Delaware substantive law. However, the class 

action requirements under Rule 42, including the mandate for a stringent trial plan, 

are specific to Texas. 

The trial plan is not a mere formality; it plays an integral role in appellate 

review, “allow[ing] a reviewing court to meaningfully evaluate whether 

certification of the class conforms with all Rule 42 prerequisites.” State Farm, 156 

S.W.3d at 555; see also Texas Parks & Wildlife Dept. v. Dearing, 240 S.W.3d 330, 

346 (Tex.App.—Austin 2007, pet. denied). This “meaningful evaluat[ion]” is 

crucial because a reviewing court will not simply assume that class certification 

was appropriate. See Bernal, 22 S.W.3d at 435 (“[A]ctual, not presumed, 

conformance with [Rule 42] remains....indispensable.”) 

A workable trial plan must include the proper legal framework to 

demonstrate that the proposed plan meets the requirements of Texas law. The 

Revised Trial Plan does not cite the correct Delaware legal precedents that govern 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 22

some of the core issues, including issues of liability and the affirmative defenses.

9

 

It also fails to analyze issues of fact affecting individual class members or describe 

how such individual issues will be tried and then submitted to the jury for a 

verdict.

As shown below, the state of mind of each class member will be a 

controlling fact issue for the jury to resolve on an individual basis. Because the 

Revised Trial Plan and Order do not describe how this case can be tried with the 

host of identified individual issues, they fail to meet the requirements of Rules 

42(b)(3), 42(b)(3)(D), and 42(c)(1)(D)(iii)-(iv), (vi)-(viii) and reversal should be 

ordered. 

A. A detailed trial plan is required to demonstrate that the trial 

court performed a rigorous analysis under Rule 42.

As this Court noted in Brigham I, “[A] trial plan is required in every 

certification order to allow reviewing courts to assure that all requirements for 

certification under Rule 42 have been satisfied.” Brigham I, 2014 WL 4058965 at 

*3. A proper trial plan ensures that the court has fulfilled its obligation to perform 

a “rigorous analysis” of all certification prerequisites under Rule 42. State Farm, 

156 S.W.3d at 555-56. The trial court must understand the claims, defenses, 

 9

 See, e.g., C&J Energy Servs., Inc. v. City of Miami Gen. Emps., 107 A.3d 1049 (Del. 2014) 

(discussing duties owed by directors during a change of control transaction); Lyondell Chem. Co. 

v. Ryan, 970 A.2d 235 (Del. 2009) (discussing duties owed by directors and the proper 

application of an exculpatory provision).
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 23

relevant facts, and applicable substantive law to make a meaningful determination 

of the certification issues. Id. “[I]t is improper to certify a class without knowing 

how the claims can and will likely be tried.” Id. at 555. Indeed, as this Court did 

in Brigham I, Texas appellate courts regularly reverse trial courts for adopting 

deficient trial plans in orders granting class certification.10 In fact, this Court 

recently reversed a certification order because the trial court failed to rigorously 

analyze whether Rule 42’s requirements were satisfied. Canyon Lake Island Prop. 

Owners Ass’n. v. Sterling/Suggs Ltd. P’ship., 2015 WL 3543125 (Tex. App.—

Austin Jun. 5, 2015, no pet. h.).

B. The Revised Trial Plan does not rigorously analyze how damages 

will be proven.

The gravamen of Plaintiffs’ complaint is that Brigham was sold for 

“inadequate consideration.” App. B at p.15. Their Revised Trial Plan indicates 

that they plan to prove their measure of damages through “expert testimony 

 10 See, e.g., Phillips Petroleum Co. v. Yarbrough, 405 S.W.3d 70, 75, 81-82 (Tex. 2013); BMG 

Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 777 (Tex. 2005); Nat’l W. Life Ins. Co. v. Rowe, 

164 S.W.3d 389, 393 (Tex. 2005); N. Am. Mortg. Co. v. O’Hara, 153 S.W.3d 43, 45 (Tex. 2004) 

(per curiam); State Farm, 156 S.W.3d at 557; Union Pac. Res. Grp, Inc. v. Hankins, 111 S.W.3d 

69, 75 (Tex. 2003); Henry Schein, 102 S.W.3d at 689-90; Tex. S. Rentals, Inc. v. Gomez, 267 

S.W.3d 228, 247 (Tex. App.—Corpus Christi 2008, no pet.); Government Employees Insurance 

Co. v. Patterson, 2007 WL 4225504, at *9-10 (Tex. App.—Corpus Christi Nov. 29, 2007, no 

pet.); Hotels.com, L.P. v. Canales, 195 S.W.3d 147, 156 (Tex.App.—San Antonio 2006, no pet.); 

All American Life & Casualty Insurance Co. v. Vandeventer, 2006 WL 742452 at *1 (Tex. 

App.—Fort Worth Mar. 23, 2006, no pet.); Gen. Motors Corp. v. Garza, 179 S.W.3d 76, 84 

(Tex. App.—San Antonio 2005, no pet.); Dearing, 240 S.W.3d at 361; Ford Motor Co. v. 

Ocanas, 138 S.W.3d 447, 454 (Tex. App.—Corpus Christi 2004, no pet.); Enron Oil & Gas Co. 

v. Joffrion, 116 S.W.3d 215, 224 (Tex. App.—Tyler 2003, no pet.); Tracker Marine, L.P. v. 

Ogle, 108 S.W.3d 349, 363 (Tex. App.—Houston [14th Dist.] 2003, no pet.). 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 24

establishing the difference between the true value of the Company and the amount 

actually received by the shareholders.” Id. According to the trial plan, this theory 

of damages can be proven on a class-wide basis because “[t]he amount actually 

received is the $36.50 that all shareholders received when they either tendered their 

shares to Statoil or were cashed-out.” Id. 

This proposed class-wide damages proof simply won’t work under unique 

facts of this case. Following the merger announcement, millions of shares were 

sold by shareholders who elected to sell on the open market. To identify all the 

different sales prices and the dates of those sales in order to compute damages 

would be an overwhelming task, given the extensive trading activity. Some of the 

shares were sold for less than $36.50, and at least some of these shareholders were 

able to sell their shares for more than $36.50 per share. 4RR DX1. Obviously, the 

latter shareholders were not harmed and cannot be included in the class. Yet the 

Revised Trial Plan, like its predecessor, ignores these realities. 

The Brigham/Statoil merger was structured as a tender offer in which 

shareholders were not required to tender their shares. They had several options: (i) 

tendering to Statoil for $36.50, (ii) selling their shares on the open market, (iii) 

demanding an appraisal of the Brigham stock value (which would require keeping 

the shares through the merger date), or (iv) waiting to see if the merger would go 

forward and then being cashed out if it did. As shown, the merger announcement 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 25

touched off frenetic trading activity in which millions upon millions of Brigham 

shares changed hands, with over 133 million traded before Defendants provided 

the SEC 14D-9 disclosures regarding the transaction, and over 255 million total 

shares trading up to the close of the tender offer on December 8. Ultimately, over 

92% of Brigham shares were voluntarily tendered. CR1941. Given these 

undisputed facts, the Revised Trial Plan’s conclusion that the claims of all 

shareholders who held stock on October 17, 2011 may be addressed with only 

common proof is woefully inadequate. 

C. The Revised Trial Plan does not rigorously analyze the effect of 

the Defendants’ affirmative defenses.

A class action is a procedural device intended to advance judicial economy. 

Bernal, 22 S.W.3d at 437. Defendants have asserted the affirmative defenses of 

acquiescence, acquiescence in price, ratification, estoppel, and waiver. CR74-75. 

Under Texas procedural law, Defendants have a right to pursue these defenses, and 

to inquire into the reasons that so many shareholders decided to sell their shares on 

the open market, rather than tender them to Statoil. To the extent that shareholders 

voluntarily accepted the benefits of the merger, or otherwise acquiesced in the 

price, they may not be entitled to the relief sought by the Named Plaintiffs. See 

e.g. Bershad, at 848. However, the Revised Trial Plan makes no effort to 

categorize the shareholders based on their actions after the merger announcement. 

Nor does it explain how the differing circumstances of the various Plaintiffs could 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 26

be efficiently managed in a class action. Consequently, the Revised Trial Plan still 

fails to meaningfully address Defendants’ affirmative defenses. 

1. Defendants have a substantive right to pursue their 

affirmative defenses.

Before a court can certify a class, it must rigorously analyze how “any issues 

affecting only individual members, raised by the claims or defenses asserted in the 

pleadings, will be tried in a manageable, time efficient manner.” TEX. R. CIV. P.

42(c)(1)(D)(viii) (emphasis added); see Bernal, 22 S.W.3d at 436. Indeed, each 

party must “have the opportunity to adequately and vigorously present any material 

claims and defenses.” Id. at 437; Schein, 102 S.W.3d at 693. It is legal error for 

the class certification vehicle to diminish a defendant’s rights at trial, including its 

right to offer evidence supporting its affirmative defenses. See Bernal, 22 S.W.3d 

at 437 (holding that the class-action device cannot alter the parties’ burden of proof 

or the substantive prerequisites to a claim or defense). 

While the Revised Trial Plan notes the elements of the acquiescence, 

ratification, estoppel, and waiver defenses, it glosses over the critical question of 

how these defenses bear on the class-certification analysis under Rule 42. App. B 

at pp.18-20. See Dearing, 240 S.W.3d at 346 (“[D]ispositive issues going to the 

viability of the class claims should be resolved by the trial court before

certification is considered.”) In particular, the Revised Trial Plan fails to consider 

and analyze the individualized nature of these defenses. 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 27

Each of the acquiescence, acquiescence in price, ratification, estoppel, and 

waiver defenses has a distinct intent, knowledge, and voluntariness component, i.e. 

a state-of-mind element. For example, acquiescence requires that a plaintiff have 

(1) full knowledge of his rights and material facts; (2) a meaningful choice in 

determining how to act; and (3) voluntarily acted in a way demonstrating 

unambiguous approval of the challenged transaction. N.J. Carpenters Pension 

Fund v. infoGROUP, Inc., 2013 WL 610143, at *7 (Del. Ch. Feb. 13, 2013). 

Ratification requires proof that a plaintiff approved a challenged board 

action after being fully informed of the facts. See e.g., Solomon v. Armstrong, 747 

A.2d 1098, 1113 n.40 (Del. Ch. 1999). Waiver requires proof that the plaintiff (1) 

had an existing legal right, (2) which it knew of at the time of the alleged waiver, 

and (3) that it intended to relinquish that right. Realty Growth Investors v. Council 

of Unit Owners, 453 A.2d 450, 456 (Del. 1982). “[E]stoppel is the effect of the 

voluntary conduct of a party whereby he is absolutely precluded ... from asserting 

rights which might perhaps have otherwise existed, ... as against another person, 

who has in good faith relied upon such conduct, and has been led thereby to 

change his position for the worse....” Vila v. BVWebTies LLC, 2010 WL 3866098 

*10 n.73 (Del. Ch. Oct. 1, 2010).

At trial, to adequately and vigorously present the defenses, Defendants must 

offer proof of intent, knowledge, or waiver of knowledge. See e.g., Ford v. 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 28

Culbertson, 308 S.W.2d 855, 865 (Tex. 1958); Tex. Workers’ Comp. Ins. Facility 

v. Personnel Servs., Inc., 895 S.W.2d 889, 894 (Tex. App.–Austin, 1995, no writ); 

Nevins v. Bryan, 885 A.2d 233, 249 (Del. Ch. 2005). Further, state-of-mind is 

unique to each putative class member and subject to credibility determinations. 

See Bernal, 22 S.W.3d at 437. And knowledge and intent are subjective 

considerations. See Louisiana–Pacific Corp. v. Andrade, 19 S.W.3d 245, 248 

(Tex. 1999) (state of mind element, actual knowledge, is subjective). 

None of these defenses can be addressed by class wide proof because they 

involve individual choices made by the shareholders. In an open, freely-traded 

market for securities, investors bought and sold Brigham shares for myriad 

reasons, some unique to, and known only by, each individual investor. Some 

investors may have needed liquidity or simply intended to sell their stock when it 

reached a certain price or by a certain date. Other investors may have simply been 

happy with the price available regardless of any allegations that the share price was 

insufficient. As shown above, thousands of investors over a fifty-three day period 

traded 255 million shares of Brigham in the open market for reasons of their own. 

The evidence as to why any one investor traded is unique to each investor, 

and the record will require evidence from the individual investors. In fact, one of 

the Named Plaintiffs testified that he sold on the open market and did not tender 

because “I wanted to pursue other investment opportunities.” CR1980. 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 29

Defendants are entitled to have a jury determine if a particular investor’s answer is 

credible and whether the Defendants’ affirmative defenses apply to that specific 

individual investor. Simply put, the heavy trading of Brigham stock after the 

parties announced the merger agreement demonstrates that there are unique issues 

of fact that can only be answered one-by-one by the jury. 

2. Individual voluntary buy/sell decisions by putative class 

members make certifying a class impossible and would 

swamp any trial.

Because Defendants’ defenses require an individualized inquiry into the 

voluntariness of each class member’s decision to tender or otherwise sell their 

shares—assessments that include the shareholders’ state of mind—these 

individualized inquiries preclude class certification under the predominance 

requirement of Rule 42(b)(3). Although the Revised Trial Plan recognizes the 

voluntariness element of each of these defenses, it fails to explain how each 

shareholder’s state of mind could be tried on a class-wide basis. App. B at pp.11-

21. Waiver, waiver of knowledge, ratification, estoppel, acquiescence in price, and 

acquiescence would require countless mini-trials to determine, based on the facts 

and circumstances surrounding each class member’s state of mind, whether the 

class member’s tender or sale of shares was voluntary.

Delaware courts have applied the doctrines of waiver and acquiescence in 

circumstances indistinguishable from this case, decertifying or dismissing such 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 30

lawsuits before considering whether a class should be certified because the putative 

class representatives had voluntarily relinquished known rights. See Norberg v. 

Security Storage Co. of Wash., 2000 WL 1375868, at *6 (Del. Ch. Sept. 19, 2000)

(finding the plaintiff’s claims were barred by waiver and acquiescence as a result 

of accepting the merger consideration after filing a suit that detailed why the 

majority breached their fiduciary duties); Bershad v. Curtiss-Wright Corp., 535 

A.2d 840, 840-41 (Del. 1987). 

The Texas Supreme Court reached a similar conclusion in BMG Direct 

Marketing, Inc. v. Peake, 178 S.W.3d 763 (Tex. 2005). In that case, the trial court 

certified a class of music club members who had paid unlawful late fees. Id. at 

765. Citing Bernal’s rejection of the “certify now and worry later” approach, the 

Texas Supreme Court reversed. Specifically, the Supreme Court was concerned 

that the trial court failed to analyze the effect of the voluntary payment of the fees 

by class members on the requirements for class certification. Id. at 776-77. Given 

that the voluntary-payment rule might cause individual issues to predominate, and 

given that “[i]t is improper to certify a class without knowing how the claims can 

and will likely be tried,” the trial court’s certification order was inadequate and 

required reversal. Id. at 777-79. In this case, the voluntary nature of each 

individual shareholder’s sale or tender is also a core issue that precludes 

certification.
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 31

A recent Fifth Circuit decision confirms that individualized considerations 

underlying an investor’s decision to buy or sell a stock can preclude class 

certification.11 In Ludlow v. BP, the trial court declined to certify a class of 

shareholders who purchased stock in BP prior to the Deepwater Horizon explosion. 

---F.3d---, 2015 WL 5235010 (5th Cir. Sept. 8, 2015). The proposed damages 

theory for the class was that the pre-spill stock price was inflated as a result of 

BP’s failure to properly disclose the risk of a spill. Id. at *9. BP’s misstatements, 

the theory went, led to investors “being defrauded into taking a greater risk than 

disclosed.” Id. When the spill occurred, the risk materialized and investors were 

damaged by the decline in the stock price.12

The Fifth Circuit affirmed the trial court’s holding that this “materialization 

of the risk” theory was not capable of class-wide determination. Id. at *10. 

Critically, the theory was based “on a determination that each plaintiff would not 

have bought BP stock at all were it not for the alleged misrepresentations—a 

determination not derivable as a common question, but rather one requiring 

individualized inquiry.” Id. Given that different investors have differing 

tolerances for risk, some investors might have elected to purchase BP stock even if 

 11 “[F]ederal decisions and authorities interpreting current federal class action requirements are 

persuasive in Texas actions.” Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 452 (Tex. 2000).

12 The Ludlow court affirmed the trial court’s certification of a class of post-spill investors. 

Certification of this class was not challenged on the grounds that individualized issues would 

predominate. See id. at *5-8.
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 32

the risk had been properly disclosed. Id. The proposed damages model could not 

be applied uniformly across the class “because it lumps together those who would 

have bought the stock at the heightened risk with those who would not have.” Id. 

at *11. 

The same is true here. The law and logic of Bernal, BMG, and Ludlow 

demonstrate that class certification is improper. A blanket finding as to intent or 

knowledge would be a complete legal fiction, not a factual determination that 

could support a jury verdict or a judgment. Indeed, the issues of intent and 

voluntariness will, by necessity, focus at the level of each individual trade. 

Defendants have the right to ask each individual shareholder what state-of-mind 

each had at the time of the sale or sales of their shares and submit controlling 

issues to a jury. Bluelinx Corp. v. Texas Constr. Sys., Inc., 363 S.W.3d 623, 627 

(Tex. App.—Houston [14th Dist.] 2011, no pet.); McKinney Indep. Sch. Dist. v. 

Carlisle Grace, Ltd., 222 S.W.3d 878, 888 (Tex. App.—Dallas 2007, pet. denied). 

Conducting a trial on the intent and knowledge for tens of thousands, if not 

hundreds of thousands, of trades by Brigham shareholders, is the type of Herculean 

task that would swamp a single jury. Indeed, the focus of the trial for weeks, if not 

months or years, would be on presenting evidence and cross-examination related to 

individual questions raised by the Defendants’ properly-asserted affirmative 

defenses.
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 33

3. Bernal illustrates that class certification cannot ignore 

individual issues raised in a defendants’ defense.

The Texas Supreme Court’s decision in Bernal emphasizes the following 

points: (1) class certification cannot restrict the substantive rights of the defendant, 

and (2) the defendant’s choice of how to defend must also be evaluated as a key 

component the class certification analysis. In Bernal, 904 plaintiffs claimed 

injuries from a single explosion of a refinery tank owned by Southwestern. The 

trial court certified the class and ordered a three-phase trial. 22 S.W.3d at 429. 

Phase One would resolve liability and causation as to the named plaintiffs. Id. 

Phase Two would resolve punitive damages, if there had been a finding of gross 

negligence under Phase One. Id. During Phase Three, the jury would “determine 

whether the individual class members can show sufficient, specific injuries or 

damages and whether they were proximately caused by .... the tank explosion.” 

Id. The Court of Appeals affirmed, holding that the class met all class action 

prerequisites. Id. The Court of Appeals also held that, even though individual 

issues might predominate in determining causation and damages, “the class was 

maintainable because the modified trial plan called for the individual issues to be 

litigated separately from the common issues.” Id. 

The Supreme Court reversed. The Court focused on the right of 

Southwestern to adequately and vigorously present its defenses. Id. at 437-39. It 

reasoned that “Southwestern is entitled to a fair opportunity to individual 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 34

determinations of causation and damages for each of the 904 plaintiffs.” Id. at 437. 

The Court then concluded that if “Southwest chooses to challenge the credibility of 

and its responsibility for each personal injury claim individually, then what may 

nominally be a class action initially would degenerate in practice into multiple 

lawsuits separately tried.” Id. 

4. The Revised Trial Plan includes disclosure claims that 

Plaintiffs earlier explicitly dropped.

The Revised Trial Plan’s only attempt to analyze how the individualized 

issues presented by Defendants’ affirmative defenses would be managed is to 

assert that “[a]s a practical matter, these defenses merge with the merits of 

Plaintiffs’ non-disclosure claims.” App. B at p.19. But there is nothing for these 

defenses to “merge” into because Plaintiffs do not have valid non-disclosure 

claims. Their class definition precludes such a claim, as discussed above, plus, 

they dropped non-disclosure claims in prior filings: “Plaintiffs are not seeking 

specific monetary recovery for the class on the basis of a non-disclosure claim.” 

CR 1007; see also CR1819-23. The trial court even questioned Plaintiffs about 

this claim, and they confirmed it was “irrelevant.”:

THE COURT: Your argument, if I understand it correctly, is that on 

October 17th, they get the bad news, that’s when they have 

information that’s going to give them heartburn, and whatever they 

were told 11 days later is irrelevant.

PLAINTIFFS’ COUNSEL: That’s correct. 

CR1823. Nonetheless, the Revised Trial Plan still includes a non-disclosure claim: 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 35

Here, plaintiffs contend that the Individual Defendants disseminated a 

Schedule 14D-9 and a tender offer statement on Schedule TO, filed 

with the Securities and Exchange Commission on October 28, 2011, 

which was false and misleading and failed to disclose all material 

information to Brigham shareholders in connection with the tender 

offer from Statoil. 

App. B at p.4.

More broadly, the Revised Trial Plan’s conclusory assumption that the 

disclosure documents cover the field of Defendants’ affirmative defenses is 

erroneous. As noted, the essence of Plaintiffs’ claims is not that the disclosures 

were inadequate, it is that Defendants’ failed to obtain adequate consideration for 

Brigham. Concomitantly, the focus of Defendants affirmative defenses of waiver, 

acquiescence, acquiescence in prize, ratification, and estoppel is that shareholders 

agreed to the price they obtained by choosing to sell on the open market or through 

the Statoil tender offer. The question of whether shareholders voluntarily decided 

to sell and at what price is not the same as the question of whether the disclosures 

were adequate. Thus, the Revised Trial Plan’s statement that, if Plaintiffs “do not 

establish that shareholders were misled, plaintiffs’ non-disclosure claims fail and 

defendants are entitled to judgment on that claim, without the need for a separate 

finding on the defenses” is simply untrue. 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 36

5. Plaintiffs cannot explain how common issues will 

predominate given the individualized inquiries necessitated 

by the affirmative defenses.

Plaintiffs’ oft-repeated response to Defendants’ complaints is that “these 

types of cases are routinely certified.” 3RR9. Plaintiffs point to their counsel’s 

experience in Pate v. Elloway, 2003 WL 22682422, (Tex. App.—Houston [1st 

Dist.] Nov. 13, 2003, pet. denied) (mem. op.). However, neither the trial plan nor 

individualized issues were argued as error in Pate, those points were uncontested. 

“[T]he trial court found that the requirements of numerosity, commonality, 

typicality, predomination of common questions of fact or law, superiority of a class

action over other available methods of adjudicating the controversy, and 

development of a trial plan were uncontested and were satisfied.” Id. at *2. 

Plaintiffs have also pointed to a number of Delaware cases that were 

certified as class actions. E.g., 1SCR89. The vast majority, however, were 

settlement class actions, so the threshold issue of whether to certify the class was 

agreed upon. As this Court has noted, settlement classes are not held to the same 

standard of proof as litigated classes. See Lubin v. Farmers Grp, Inc., 2009 WL 

3682602 at *21 (Tex. App.—Austin Nov. 6, 2009, no pet.). Significantly, Texas 

procedural law applies to this case, not Delaware law. Texas rejects a ‘certify now, 

worry later’ approach, which is acceptable in Delaware. Notably, given the 

stringent Texas requirements that must be met to certify a class, not a single Texas 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 37

Supreme Court opinion has affirmed a challenged class certification order in the 

last decade.13

 13 See Phillips Petroleum Co. v. Yarbrough, 405 S.W.3d 70, 72 (Tex. 2013) (trial court abused 

discretion in failing to undertake a rigorous analysis of res judicata’s impact on Rule 42 

requirements); Heckmann v. Williamson Cnty., 369 S.W.3d 137 (Tex. 2012) (considering class 

certification tangentially although ruling based on jurisdiction); Sw. Bell Tel. Co. v. Mktg. On 

Hold Inc., 308 S.W.3d 909, 926–27 (Tex. 2010) (proposed class representative was not adequate 

because its interests conflicted with those of the absent class members); Exxon Mobil Corp. v. 

Gill, 299 S.W.3d 124, 129 (Tex. 2009) (vacating certification order and holding that 

determination was based on trial court’s significant misunderstanding of the substantive law); 

Bowden v. Phillips Petroleum Co., 247 S.W.3d 690, 702 (Tex. 2008) (class of royalty owners 

failed to meet the predominance requirement and individual issues would predominate over 

common issues); DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 306 (Tex. 2008) (namedplaintiffs lacked standing to bring the class action because the possibility of a concrete injury to 

the named-plaintiffs was extremely remote); Best Buy Co. v. Barrera, 248 S.W.3d 160, 163 

(Tex. 2007) (class certification was improper because individual issues predominated since 

defendant was entitled to inquire whether individual class members were aware of a restocking 

fee and voluntarily agreed to it as they made purchases); Stonebridge Life Ins. Co. v. Pitts, 236 

S.W.3d 201, 203 (Tex. 2007) (denying certification because individualized inquiries would 

predominate over common issues); Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 460 

(Tex. 2007) (decertifying the class and remanding to the trial court for further proceedings); 

Cameron Appraisal Dist. v. Rourk, 194 S.W.3d 501, 502 (Tex. 2006) (holding taxpayers could 

not bring class action without first exhausting administrative remedies); BMG Direct Mktg., Inc. 

v. Peake, 178 S.W.3d 763, 777 (Tex. 2005) (rejecting certification due to the “certify now and 

worry later” approach resulting from the trial court’s failure to analyze the voluntary-payment 

rule’s effect on the predominance requirement); Nat’l W. Life Ins. Co. v. Rowe, 164 S.W.3d 389, 

392 (Tex. 2005) (trial court failed to perform the necessary rigorous analysis to determine 

whether the class action requirements were met); see also N. Am. Mort. Co. v. O’Hara, 153 

S.W.3d 43, 45 (Tex. 2004) (reversing class certification due to error from ordering class certified 

before trial plan was prepared); State Farm Mut. Auto. Ins. Co. v. Lopez, 156 S.W.3d 550, 557 

(Tex. 2004) (reversing certification for failure to reflect the rigorous analysis necessary for 

typicality and adequate representation requirements); Snyder Commc’ns v. Magaña, 142 S.W.3d 

295, 301 (Tex. 2004) (reversing certification due to highly individualized issues predominating); 

Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 681 (Tex. 2004) (reversing certification 

and holding that predominance requirement was not satisfied); Union Pac. Res. Group, Inc. v. 

Hankins, 111 S.W.3d 69, 75 (Tex. 2003) (reversing certification and holding that commonality 

requirement was not satisfied); Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675 (Tex. 2003) 

(reversing class certification because individual issues predominated and class action was not 

superior). 

In a few cases, the Supreme Court has remanded for further proceedings to determine if 

certification is appropriate. See Riemer v. State, 392 S.W.3d 635, 642 (Tex. 2013) (error on 

adequacy issue; remanded to determine whether other Rule 42 requirements were satisfied. On 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 38

D. The Revised Trial Plan fails to account for Defendants’ right to 

request jury findings on proportionate responsibility.

In Texas, a trial court must submit a question apportioning responsibility for 

harm between the parties. TEX. CIV. PRAC. REM. CODE ANN. §§33.002(a)(1); 

33.003(a)l; Tex. R. Civ. P. 277. As shown above, millions of Brigham shares 

changed hands for reasons known only to individual traders. Shareholders who 

chose to sell in the open market (or unspecified others who advised them to sell) 

are potentially responsible for all or part of any alleged harm. A jury must decide 

that proportion. To submit thousands of proportionate responsibility questions 

would swamp the jury and make the trial unmanageable. 

The Revised Trial Plan fails to rigorously analyze this issue as well. Instead, 

it suggests only that proportionate responsibility “can be resolved through use of 

an appropriate jury form.” App. B at 20. This says nothing. It does not explain 

how the use of a “jury form” could adequately address proportionate responsibility 

on a class-wide basis given that each individual shareholder engaged in a unique 

course of conduct, based on individualized considerations, with respect to their 

Brigham shares. 

 

remand, certification was denied. 452 S.W.3d 491, 502 (Tex. App.—Amarillo 2014, pet. filed)). 

See also Farmers Group, Inc. v. Lubin, 222 S.W.3d 417 (Tex. 2007) (in class action brought by 

attorney general under the Insurance Code, the class certification requirements should be applied 

to the claims asserted, not to the Attorney General himself, and remanding for further 

proceedings).
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 39

E. There is no cause of action in Delaware for breach of the duty of 

candor.

The Order also includes a claim against the Brigham Defendants for breach 

of the duty of candor for “failing to disclose all material information to Brigham 

shareholders.” CR3164-65. This claim allegedly stems from the Brigham 

Defendants “disseminat[ing]” the Transaction Disclosure Documents filed with the 

SEC on October 28, 2011. App. B at p.4. 14 

But Delaware law does not permit Plaintiffs to allege a separate claim for a 

breach of the duty of candor. Rather, candor is a facet of the duty of care and the 

duty of loyalty. See Pfeffer v. Redstone, 965 A.2d 676, 684 (Del. 2009) (“[T]he 

duty of disclosure is not an independent duty, but derives from the duties of care 

and loyalty.”); see also Malpiede v. Townson, 780 A.2d 1075, 1086 (Del. 2001); 

Malone v. Brincat, 722 A.2d 5, 11 (Del. 1998). The certification order thus 

includes a nonexistent legal claim and further demonstrates the lack of rigor in the 

trial court’s Rule 42 analysis. State Farm, 156 S.W.3d at 555-56 (trial court must 

understand the claims and applicable substantive law). 

 14 The Revised Trial plan also states that Plaintiffs have a claim against the Brigham Defendants 

on the basis of alleged nondisclosures from the Schedule TO. App. B at pp.3-4. The Schedule 

TO was authored by Statoil and was a communication by Statoil and Fargo Acquisition, Inc. to 

Brigham Shareholders. CR1937. It included no recommendations from the Brigham Defendants 

on behalf of Brigham. Id. Only the “maker” of an allegedly misleading disclosure can be held 

liable for that disclosure. Cf. Janus Capital Grp., Inc. v. First Derivative Traders, 131 S. Ct. 

2296, 2301-03 (2011); see also Restatement (Second) of Torts §§ 525, 526 (1977) (imposing 

liability on one who “makes” a misrepresentation). 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 40

F. The Revised Trial Plan misstates the elements of Plaintiffs breach 

of fiduciary duty claims.

The Revised Trial Plan also misstates and omits elements of Plaintiffs’ 

breach of fiduciary duty claims. See TEX. R. CIV. P. 42(c)(1)(D)(i) (order must 

contain “the elements of each claim or defense asserted in the pleadings”); see also

CR1236; CR127-28 (lodging this objection with the trial court). 

First, it improperly includes a claim by Plaintiffs for breach of the duty of 

care. This claim fails as a matter of law because the exculpatory provision in 

Brigham’s Certificate of Incorporation (authorized by chapter 8, section 102(b)(7) 

of the Delaware Code) bars Plaintiffs’ claims for monetary liability for breach of 

the duty of care. See Ryan, 970 A.2d at 239; see also In re Cornerstone 

Therapeutics, Inc., 115 A.3d 1173, 1179 (Del. 2015) (holding that “plaintiffs must 

plead a non-exculpated claim for breach of fiduciary duty against an independent 

director protected by an exculpatory charter provision, or that director will be 

entitled to be dismissed from the suit”). Thus, the trial plan incorrectly states 

which claims will be available to Plaintiffs under Delaware law.

Second, the trial plan omits a crucial element of Plaintiffs’ claim for breach 

of the duty of loyalty. To establish this breach under Delaware law, Plaintiffs must 

show that the Brigham Board members acted in bad faith. Ryan, 970 A.2d at 243. 

And to show bad faith, Plaintiffs must prove that the Board members intentionally 

used a sales process they knew was not designed to obtain the highest price 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 41

reasonably available. Id.; see also In re BJ’s Wholesale Club, Inc. S’holders Litig.,

No. 6623-VCN, 2013 WL 396202, at *7 (Del. Ch. Jan. 31, 2013). The trial plan 

omits this bad-faith requirement.15

G. The Revised Trial Plan fails to address the impact of the 

Plaintiffs’ conflicting damages theories on typicality and 

predominance.

The trial plan also fails to recognize that Plaintiffs have offered conflicting 

damages theories. See TEX. R. CIV. P. 42(c)(1)(D)(iii). Plaintiffs have 

inconsistently argued that (a) damages are based on what each class member 

“actually received either in the open market or via tender;” and (b) damages can be 

calculated “without the need to resort to information collected from individual 

Class members” CR 1002; App. B at p.8. Yet proof of what each class member 

received is an individualized inquiry. As noted, this case is unique because 

millions of shares changed hands in the aftermath of the merger announcement—

some shareholders chose to accept less than $36.50 when they sold in the open 

market, and many received more than $36.50 per share. 4RR DX1. The Revised 

Trial Plan simply has no answer for how damages will be determined on a class 

wide basis given these undisputed facts, destroying the predominance element. 

 15 The Order also makes improper factual findings about Defendants’ alleged conduct. It says 

Plaintiffs have “demonstrated that each member of the [Proposed] Class is the victim of a 

common course of conduct engaged in by defendants.” CR3166. This finding lacks any support 

in the record whatsoever. See CR1235; CR127-28 (lodging this objection).
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 42

Also, because the Named Plaintiffs are not in the same position as most of the 

putative class, the typicality element is lacking, as discussed below. 

III. This Case Cannot Satisfy the Requirements for Class Certification 

under Rule 42.

There is no implicit right to proceed as a class action, and the Plaintiffs bear 

the burden of establishing that all of the requirements set forth in Rule 42 are 

satisfied. See Hotels.com, L.P. v. Canales, 195 S.W.3d 147, 153 (Tex. App.—San 

Antonio 2006, no pet.). Plaintiffs failed to meet this burden. The proposed class is 

not certifiable under the numerosity, typicality, commonality, or predominance 

requirements.

A. Named Plaintiffs do not satisfy the typicality requirement because 

they did not tender their shares.

The trial court abused its discretion in finding that Named Plaintiffs satisfy 

the typicality requirement. See TEX. R. CIV. P. 42(a)(3). Where a class 

representative is immune to a defense that may defeat the claims of absent class 

members, that representative is not typical of the class. See Monsanto Co. v. 

Davis, 97 S.W.3d 642, 645-46 (Tex. App.—Waco 2002, pet. denied) (holding that 

trial court abused its discretion in certifying class where representatives “are not 

subject to the same defenses as those of the unnamed plaintiffs”); accord Griffin v. 

GK Intelligent Sys., Inc., 196 F.R.D. 298, 301 (S.D. Tex. 2000) (finding that class 

representative was not typical where establishing liability “is a more difficult task” 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 43

for absent class members because the named plaintiff, unlike most of the class, 

could rely on a legal presumption). 

The Named Plaintiffs are not typical because, unlike the vast majority of the 

class, they sold their shares on the open market and did not tender their shares to 

Statoil. Over 92% of the outstanding shares were tendered to Statoil. CR1941. In 

contrast, none of Named Plaintiffs tendered all of their shares; rather, they either 

sold their shares on the open market, or held them through the tender offer period 

and were automatically cashed out. CR2086-88. Thus, they are not subject to 

some of Defendants’ affirmative defenses. Under the acquiescence doctrine, for 

example, a shareholder is barred from seeking any recovery if he tenders his shares 

with all material information concerning the tender offer. In re Celera Corp. 

S’holder Litig., 59 A.3d 418, 431 (Del. 2012); Bershad, 535 A.2d at 848 (Del. 

1987). 

Numerous courts have held that the disparity between tendering and nontendering shareholders prevents plaintiffs from satisfying the typicality 

requirement. See, e.g., Andra v. Blount, 772 A.2d 183, 196 (Del. Ch. 2000) (noting 

that “it might be necessary to limit [a non-tendering stockholder] to representing 

the non-tendering stockholders who are situated similarly to her....[T]endering 

stockholders may well be subject to the defense that they are estopped from 

challenging the fairness of a transaction whose benefits they willingly accepted.”); 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 44

Shapiro v. Pabst Brewing Co., No. 7339, 1985 WL 11578, at *5 (Del. Ch. July 30, 

1985) (“[Plaintiff’s] claim is atypical of the purported class of non-tendering 

[stockholders] and, thus, plaintiff is precluded from acting on their behalf.”).16

B. Plaintiffs failed to establish that common issues predominate over 

individual issues.

Rule 42(b)(3)’s predominance requirement is one of the most stringent 

prerequisites to class certification. Bernal, 22 S.W.3d at 433. The test for 

predominance is not whether common issues outnumber uncommon issues, but 

“whether common or individual issues will be the object of most of the efforts of 

the litigants and the court.” Id. at 434. If resolving individual issues is likely to be 

an overwhelming task, then common issues do not predominate. Id. A class 

cannot be certified if it is not determinable from the outset that individual issues 

can be considered in a manageable, time-efficient, and fair manner. Id. Relatedly, 

the commonality requirement of Rule 42(a)(2) cannot be met either if individual 

issues predominate. 

As shown, 92% of the shares were tendered here. At trial, each tendering 

shareholder will need to be examined individually about their knowledge at the 

time of the tender to determine whether Defendants’ affirmative defenses apply to 

that shareholder. Further, evaluating whether each shareholder suffered actual 

 16 Accord Salsitz v. Peltz, 210 F.R.D. 95, 98 (S.D.N.Y. 2002); Spivak v. Petro-Lewis Corp., 120 

F.R.D. 693, 698 (D. Colo. 1987); Issen v. GSC Enters., Inc., 508 F. Supp. 1278, 1296 (N.D. Ill. 

1981).
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 45

damages as a result of the merger will be an overwhelming task, as discussed 

above. These and the other individualized issues previously addressed preclude 

class certification. See Bernal, 22 S.W.3d at 433; see also TEX. R. CIV. P. 42(b)(3). 

The Order is thus wrong in its statement that “questions of law and fact common to 

the Class predominate over any questions affecting only individual members.” 

CR3166. 

C. The numerosity requirement was not met. 

Plaintiffs also had the burden to proving that the proposed class is so 

numerous that joinder of all members is impracticable. TEX. R. CIV. P. 42(a)(1). 

There has been no showing that the shareholders who held shares on the date the 

transaction was announced (October 17, 2011), still held shares on the date the 

tender offer closed (December 8, 2011). Thus, while Plaintiffs have proposed a 

class of “all holders of Brigham common stock as of October 17, 2011,” they have 

made no attempt to identify the shareholders that actually suffered alleged damages 

from an inadequate sales price of $36.50 per share when they were forced to cash 

out their shares. Having failed to do so, Plaintiffs have not and cannot make the 

required numerosity showing. See Canyon Lake, 2015 WL 3543125 at *6 (finding 

that the plaintiffs had not met their numerosity burden where they made only 

unsupported conclusions that it would be impracticable to join all class members).
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 46

D. Plaintiffs failed to establish that they are adequate representatives 

of the absent class members.

Finally, the trial court also abused its discretion in finding that the Named 

Plaintiffs adequately represent the interests of absent Plaintiffs. The trial court did 

not specifically address this issue on remand and thus did not modify its prior 

findings from the initial certification order that Named Plaintiffs are adequate. 

Compare CR58-59 with CR3165-66. 

However, Named Plaintiffs are inadequate because they have failed to take 

an active role in monitoring the litigation and lack sufficient knowledge of the 

case. For example, one of the Named Plaintiffs testified that she believed that the 

lawsuit “is about trying to lower the stock, the price of the stock.” Goodman Dep. 

at 32-33, 75 (3SCR237-38, 248) (emphasis added)). Another Named Plaintiff 

testified that he did not know who one of the Brigham Defendants is. Whalen Dep. 

at 145-146 (3SCR433). Plaintiffs’ information came primarily from “Script 

Memos” prepared by Plaintiffs’ Counsel which contained only allegations, but not 

facts. As a consequence of Named Plaintiffs’ lack of knowledge regarding the 

case, they are unable to make prudent decisions on behalf of absent Plaintiffs and 

cannot exercise adequate oversight over their counsel. Rather than repeating them 

here, Defendants incorporate by reference their arguments from Brigham I that 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 47

Named Plaintiffs are inadequate.17 They also respectfully incorporate the 

arguments presented in the Appellants’ Brief of Statoil because they apply equally 

to the Brigham Defendants. The trial court committed reversible error in finding 

Named Plaintiffs adequate.

CONCLUSION AND PRAYER

For all the foregoing reasons, the Court should reverse, decertify the class, 

and render judgment that the class does not, and cannot meet the requirements of 

Rule 42. Alternatively, the Brigham Defendants pray that this Court reverse the 

trial court’s Order granting class certification, decertify the class, vacate the 

Revised Trial Plan, and remand for further proceedings. They also request all 

other relief to which they may be entitled.

 17 Defendants incorporate the arguments, authorities, and citations to the record regarding 

adequacy in their Appellants’ Brief in Brigham I. See No. 03-13-00191-CV, Brief of Appellants, 

available at http://www.search.txcourts.gov/Case.aspx?cn=03-13-00191-CV&coa=coa03
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 48

Respectfully submitted,

By: /s/ Debora B. Alsup

Debora B. Alsup

State Bar No. 02006200

debora.alsup@tklaw.com

Ben Hallmark

Texas Bar No. 24069865

benjamin.hallmark@tklaw.com

THOMPSON & KNIGHT LLP

98 San Jacinto Blvd., Suite 1900

Austin, Texas 78701

(512) 469-6100

(512) 482-5028 (Alsup Fax)

(512) 482-5091 (Hallmark Fax)

Timothy R. McCormick

State Bar No. 13463500

timothy.mccormick@tklaw.com

Michael W. Stockham

State Bar No. 24038074

michael.stockham@tklaw.com

THOMPSON & KNIGHT LLP

1722 Routh Street, Suite 1500

Dallas, Texas 75201

(214) 969-1700

(214) 969-1751 (Facsimile)

ATTORNEYS FOR APPELLANTS

THE BRIGHAM DEFENDANTS
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 49

CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of TEX. R. APP. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the 

word-count limitations of TEX. R. APP. P. 9.4(i), if applicable, because it contains 

11,371 words, excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1). 

/s/ Debora B. Alsup

Debora B. Alsup

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document will 

be electronically filed using a certified Electronic Filing Service Provider, which 

will send electronic notification of such filing to the following counsel of record on 

this the 28th day of September, 2015, or alternatively, a copy will be sent via eservice, facsimile or e-mail, to the following parties.

/s/ Debora B. Alsup

Debora B. Alsup 
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 50

Counsel for Defendants

Russell S. Post

Fields Alexander

Parth Gejji

Beck Redden LLP

1221 McKinney St., Suite 4500 

Houston, Texas 77010

(713) 951-3700

(713) 951-6220 (Alexander)

(713) 951-3720 fax

rpost@beckredden.com

falexander@beckredden.com

pgejji@beckredden.com

Chris R. Cowan

Beck Redden LLP

515 Congress Avenue, Suite 1750

Austin, Texas 78701

(512) 708-1000, ext 6402

(512) 708-1002 fax

ccowan@beckredden.com

Class Counsel for Plaintiffs

Robbins Geller Rudman & Dowd LLP

Randall J. Baron

David T. Wissbroecker

Steven M. Jodlowski

655 West Broadway, Suite 1900

San Diego, CA 92101-3301

(619) 231-1058

(619) 231-7423 fax

randyb@rgrdlaw.com

dwissbroecker@rgdlaw.com

sjodlowski@rgdlaw.com

Robbins Geller Rudman & Dowd LLP

Samuel H. Rudman

Mark S. Reich

Michael G. Capeci

58 South Service Road, Suite 200

Melville, NY 11747

(631) 367-7100

(631) 367-1173 fax

srudman@rgrdlaw.com

mreich@rgrdlaw.com

mcapei@rgrdlaw.com

Liaison Counsel for Plaintiffs

Boulette Golden & Marin LLP

Michael Marin

2801 Via Fortuna, Suite 530

Austin, Texas 78746

(512) 732-8924

(512) 732-8905 fax

mmarin@boulettegolden.com
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 51

Additional Counsel for Plaintiffs

Kendall Law Group, LLP

Joe Kendall

Daniel Hill

Jamie J. McKey

3232 McKinney Avenue, Suite 700

Dallas, Texas 75204

(214) 744-3000

(214) 744-3015 fax

jkendall@kendalllawgroup.com

dhill@kendalllawgroup.com

jmckey@kendalllawgroup.com

The Briscoe Law Firm, PLLC

Willie C. Briscoe

The Preston Commons

8150 N. Central Expressway, Suite 1575

Dallas, Texas 75206

(214) 239-4568

(281) 254-7789 fax

wbriscoe@thebriscoelawfirm.com

Dunnam & Dunnam L.L.P.

Hamilton P. Lindley

4125 W. Waco Drive (76710)

P.O. Box 8418

Waco, Texas 76714

(254) 753-6437

(254) 753-7434 fax

hlindley@ dunnamlaw.com

Brodsky & Smith LLC

Evan J. Smith

Marc L. Ackerman

Two Bala Plaza, Suite 602

Bala Cynwyd, Pennsylvania 19004

(610) 667-6200

(610) 667-9029 fax

esmith@brodsky-smith.com

mackerman@brodsky-smith.com

Levi & Korsinsky, LLP

Shane T. Rowley

30 Broad St., 24th Floor

New York, NY 10004

(212) 363-7500 x127

(866) 367-6510 fax

srowley@zlk.com

Kohn, Swift & Graf, P.C.

Denis F. Sheils

One South Broad Street, Suite 2100

Philadelphia, PA 19107-3389

(215) 238-1700

(215) 238-1968 fax

dsheils@kohnswift.com

The Weiser Law Firm, P.C.

Patricia C. Weiser

James M. Ficaro

22 Cassatt Avenue

Berwyn, PA 19312

(610) 225-2677

(610) 408-8062 fax

pw@weiserlawfirm.com

jmf@weiserlawfirm.com

Ryan & Maniskas, LLP

Katharine M. Ryan

Richard A. Maniskas

995 Old Eagle School Road, Suite 311

Wayne, PA 19087

(484) 588-5516

(484) 450-2582 fax

kryan@rmclasslaw.com

rmaniskas@rmclasslaw.com
APPELLANTS’ BRIEF OF THE BRIGHAM DEFENDANTS – PAGE 52

Kelly N. Reddell

The Reddell Firm PLLC

100 Highland Park Village, Suite 200

Dallas, Texas 75205 

(214) 295-3031

kelly@reddell-law.com

010283 000032 15948485.8
APPENDIX COVER PAGE

No. 03-15-000248-CV

___________________________________________

In the Third Court of Appeals

at Austin, Texas

___________________________________________

BRIGHAM EXPLORATION COMPANY, ET AL,

Defendants/Appellants,

v.

RAYMOND BOYTIM, ET AL,

Plaintiffs/Appellees.

___________________________________________

On Appeal from the 201st Judicial District Court of Travis County, Texas

Honorable Lora Livingston, Presiding Judge

Cause No. D-1-GN-11-003205

__________________________________________________________________

APPENDIX 

_________________________________________________________________

A Order Granting Class Certification, April 9, 2015 CR 3163-67

B Plaintiffs’ Proposed Second Amended Plan for Trial of 

Class Claims, March 19, 2015

Hand-filed 

06/05/15 by 

district clerk 

without Bates 

numbering

C Plaintiffs’ Proposed Amended Preliminary Plan for Trial 

of Class Claims, September 12, 2012

CR 946-57

D Order Denying Temporary Injunction, November 22, 2011 CR 305-07

E Texas Rule of Civil Procedure 42
Appendix A 
3163

DC BK151 03 PG1 00 

Cause No. D-1-GN-11-003205 

(Consolidated) 

RAYMOND BOYTIM, et al., Individually and§ 

on Behalf of All Others Similarly Situated, § 

Plaintiffs, 

vs. 

§ 

§ 

§ 

§ 

BRIGHAM EXPLORATION COMPANY, ~ et al., § 

Defendants. § 

§ ____________________________ § 

Filed in The District Court 

of Travis County, Texas 

AfR · 9 2015 

At Lj· (JO f M. 

Velva L. Price, District Clerk 

IN THE DISTRICT COURT OF 

TRAVIS COUNTY, TEXAS 

201st JUDICIAL DISTRICT 

ORDER GRANTING CLASS CERTIFICATION 

Case # D-1-G N-11-003205 

lllllllllllllllllllllllllllllllllllllllllllllllllllllll 

003974777 
3164

DC BK151 03 PG1 01 

The Court, having considered the papers filed in support of, and in opposition to, plaintiffs' 

Motion for Class Certification, as well as oral argument thereon, finds as follows, pursuant to 

Rule 42 ofthe Texas Rules of Civil Procedure: 

I. The members of the Class, as defined below, are so numerous that joinder of all 

members is impracticable. Plaintiffs have demonstrated that Brigham had more than 117,318,932 

shares of stock outstanding prior to the acquisition of Brigham Exploration Company ("Brigham" or 

the "Company") by Statoil ASA ("Statoil") (the "Acquisition"). 

2. Plaintiffs bring claims against the former members of Brigham's Board ofDirectors 

for breach of their fiduciary duties, and a claim against the Company and Statoil for aiding and 

abetting the Board's breach of fiduciary duties. These claims raise questions of law and fact 

common to the Class including, inter alia, the following: 

(a) whether the former members ofthe Brigham's Board breached their fiduciary 

duties of undivided loyalty, independence or due care with respect to plaintiffs and the other 

members ofthe Class in connection with the Acquisition; 

(b) whether the former members of Brigham's Board engaged in a plan and 

scheme to benefit themselves and/or Statoil at the expense of the members of the Class; 

(c) whether the former members of Brigham's Board breached their fiduciary 

duty to secure and obtain the best price reasonable under the circumstances for the benefit of 

plaintiffs and the other members of the Class in connection with the Acquisition; 

(d) whether Brigham and/or Statoil aided and abetted the breach of fiduciary 

duties by the Individual Defendants; 

(e) whether defendants breached any of their other fiduciary duties to plaintiffs 

and the other members of the Class in connection with the Acquisition, including the duties of 

- 1 -
3165

DC BK151 03 PG1 02 

candor, good faith, diligence, honesty and fair dealing by failing to disclose all material information 

to Brigham shareholders; 

(f) whether defendants erected preclusive barriers to discourage other offers for 

the Company and its assets; and 

(g) whether plaintiffs and the other members of the Class were damaged as a 

result of defendants' misconduct. 

3. The claims of Raymond Boytim, Hugh Duncan, Robert Fioravanti, Walter 

Schwimmer, The Edward J. Goodman Life Income Trust and The Edward J. Goodman Generation 

Skipping Trust, Jeffrey Whalen and Howard Weissberg (collectively "plaintiffs") are typical of the 

claims of the Class. Plaintiffs have demonstrated that their claims, as well as those possessed by the 

Class, arise out of the same course of conduct or events and are based on the same legal theories. 

4. Plaintiffs will fairly and adequately protect the interests of the Class. Plaintiffs 

established, through deposition testimony, sworn affidavits, and/or live testimony provided at the 

class certification hearing, that they: (i) have taken an active role in the prosecution of the action, 

including communicating regularly with their attorneys, reviewing the documents and deposition 

testimony of defendants, responding to discovery requested by defendants, independently 

investigating Brigham and Statoil and the acquisition; (ii) are knowledgeable about the factual and 

legal issues involved in the case; (iii) understand the procedural history of the case; (iv) have no 

interests antagonistic to the class; (v) understand their duties to the class and seek to maximize any 

recovery for the class; (vi) strongly believe in the legitimacy of their grievance; and (vii) are 

prepared to appear at trial. 

5. Plaintiffs' selected class counsel will adequately represent plaintiffs and the Class and 

prosecute their claims. Robbins Geller Rudman & Dowd LLP is experienced in the area of securities 

- 2-
3166

DC BK151 03 PG1 03 

litigation and has vigorously prosecuted this case to date. Boulette Golden & Marin L.L.P. is 

likewise experienced in complex commercial litigation. 

6. The questions of law and fact common to the Class predominate over any questions 

affecting only individual members of the Class. Plaintiffs have demonstrated that each member of 

the Class is the victim of a common course of conduct engaged in by defendants. 

7. A class action is superior to other available methods for the fair and efficient 

adjudication ofthe controversy in this action. 

(a) Plaintiffs have established that, given the relatively small amount of dollars 

which may be at issue for many class members, the class action mechanism is the only means by 

which a claim challenging defendants' actions will ever be adjudicated, that pursuing individual 

actions would be prohibitively expensive for the vast majority ofthe Class, especially in light of the 

potentially small dollar amount oftheir individual claims, and that Class members' interests are far 

better served by the class action device than pursuing individual actions; and 

(b) Plaintiffs have submitted trial plan which offers a rigorous analysis and a 

specific explanation of how the class claims are to proceed to trial. After evaluating the plan, the 

Court finds that a trial in this action will be manageable in that it involves the application of the laws 

of a single state (Delaware), there are no individual issues to be resolved by the fact-finder, and that 

the sole individual issue (the amount of shares held by each class member on October 17, 2011) can 

be resolved through a post-judgment proceeding. The Court hereby adopts and incorporates 

Plaintiffs' Proposed Second Amended Plan for Trial of Class Claims, filed March 19, 2015. 

8. Plaintiffs' Amended Notice of Pendency of Class Action, attached as Exhibit 10 to 

Plaintiffs' Amended Motion for Class Certification, satisfies Rule 42(c)(2)(B) of the Texas Rules of 

Civil Procedure. It concisely and clearly states in plain, easily understood language: (i) the nature of 

- 3 -
3167

DC BK151 03 PG1 04 

the action; (ii) the definition of the Class certified; (iii) the Class claims, issues and defenses; 

(iv) that a member of the Class may enter an appearance through counsel if the member so desires; 

(v) that the judgment, whether favorable or not, will include and bind all members who do not 

request exclusion by the specified date; (vi) that the court will exclude any members of the Class if 

they request exclusion; and (vii) when and how a member may be exclude themselves from the 

Class. 

Good cause appearing, IT IS HEREBY ORDERED that: 

1. Plaintiffs' Motion for Class Certification is GRANTED. 

2. The Class is defined as all holders of common stock of Brigham Exploration 

Company as of October 17, 2011. Excluded from the Class are defendants and any person, firm, 

trust, corporation or other entity related to or affiliated with any defendant. 

3. Plaintiffs are appointed as representatives ofthe Class. 

4. Robbins Geller Rudman & Dowd LLP is appointed as Class Counsel, and Boulette 

Golden & Marin L.L.P. is appointed as Liaison Counsel. 

5. The Court approves Plaintiffs' Amended Notice ofPendency of Class Action. Within 

30 days, the parties shall meet and confer regarding a proposed plan for dissemination of the notice. 

ORDER 

IT IS SO ORDERED. 

DATED: 

THEHO 

- 4 -
Appendix B 
Cause No. D-1-GN-11-003205 

(Consolidated) 

RAYMOND BOYTIM, et al., Individually and§ 

on Behalf of All Others Similarly Situated, § 

Plaintiffs, 

vs. 

§ 

§ 

§ 

§ 

BRIGHAM EXPLORATION COMPANY, et ~ al., § 

Defendants. § 

§ __________________________ § 

IN THE DISTRICT COURT OF 

TRAVIS COUNTY, TEXAS 

261st JUDICIAL DISTRICT 

PLAINTIFFS' PROPOSED SECOND AMENDED PLAN 

FOR TRIAL OF CLASS CLAIMS 

1014363_1 
TABLE OF CONTENTS 

Page 

I. PLAINTIFFS' CLAIMS ...................................................................................................... 2 

A. Plaintiffs' Claim for Breach of Fiduciary Duty Against the Individual 

Defendants ............................................................................................................... 3 

B. Aiding and Abetting Breach of Fiduciary Duty Against Brigham and 

Statoi1 ...................................................................................................................... .4 

II. DEFENDANTS' PLEADED DEFENSES .......................................................................... 5 

A. Defense Nos. I and 9 ............................................................................................... 6 

B. Defense No. 2 ........................................................................................................... 6 

C. Defense Nos. 3, 5-6 .................................................................................................. 7 

D. Defense No. 4 ........................................................................................................... 8 

E. Defense No. 7 ........................................................................................................... 9 

F. Defense No. 8 ........................................................................................................... 9 

G. Defense Nos. 10 and II ......................................................................................... 10 

H. Defense No. 12 .................................................................................... , .................. 11 

I. Defense No. 13 ....................................................................................................... 12 

III. CLASS ISSUES ................................................................................................................. 12 

A. Procedural History ................................................................................................. 12 

B. Common Questions of Law and Fact Predominate ............................................... 13 

I. Plaintiffs Will Prove Breach of Fiduciary Duty Through Common 

Evidence ..................................................................................................... 14 

2. Plaintiffs Will Prove with Common Evidence Causation and 

Amount of Damages .................................................................................. 16 

3. Defendants' Defenses Are Susceptible to Common Proof.. ...................... 17 

- 1 -

1014363_1 
Pursuant to Tex. R. Civ. P. 42(d), this Court hereby adopts the following trial plan in connection 

with its order granting certification of plaintiffs' claims against defendants. This plan provides a 

detailed assessment of how a single trial can be conducted against Brigham Exploration Company 

("Brigham" or the "Company"), the members of its Board of Directors (the "Individual Defendants" or 

the "Board"), and Statoil ASA ("Statoil") on behalf of a proposed class of all holders of Brigham 

common stock as of October 17, 2011. Based upon the voluminous written submissions of the parties 

in connection with plaintiffs' motion for class certification, as well as hearings held on October 22, 

2012, February 22,2013, December 17,2014, and March 31,2015, it is evident totheCourtthattrial of 

this action on a class-wide basis will present no unduly challenging manageability issues. 

This plan addresses the class certification issues, the claims arising from defendants' actions, 

the manner in which defendants' common course of conduct will be proven at trial, and other issues 

relating to the management and superiority of a class-wide trial. As discussed below, this action 

stems from the sale of Brigham to Statoil for $36.50 per share of Brigham stock. That sale was 

completed on December 8, 2011, one-and-a-half months after Brigham and Statoil announced to 

shareholders that the companies had entered into a definitive merger agreement. Plaintiffs allege 

that Brigham's directors breached their fiduciary duties to shareholders in agreeing to and facilitating 

the sale. Plaintiffs also bring a claim against Brigham and Statoil for aiding and abetting the breach 

of fiduciary duty. In response to plaintiffs' claims, defendants have pleaded several defenses, which 

are addressed below. 

The Court envisions a single trial with the following procedural steps: 

1. Plaintiffs will present their case-in-chief, submitting common evidence of defendants' 

wrongdoing, class-wide injury, and total damages; 

2. The Individual Defendants will present the defenses they wish to advance; 

- 1 -

1014363_1 
3. Brigham and Statoil will present the defenses they wish to advance; 

4. Plaintiffs will present their rebuttal case; and 

5. The case will be submitted to the jury, which will enter a verdict based on a proposed 

jury charge. 

Counsel for plaintiffs are deeply experienced in takeover litigation, especially in takeover 

cases after the acquisition closes, and have prepared similar cases for trial. Counsel for plaintiffs 

have also tried numerous takeover cases on a class-wide basis, including at least one action in Texas. 

See Ellowayv. Pate, 238 S.W.3d 882 (Tex. App.-Houston [l4thDist.]2007, no pet.). Plaintiffs will 

present their case through the testimony of their experts; the testimony and documents of the 

Individual Defendants, Brigham and Statoil; the testimony and documents of defendants' financial 

advisors; and, potentially, the documents and testimony of Shell, ENI, Chevron and Total, four 

potential buyers. 

If a verdict for the plaintiffs results, judgment in a total, single monetary sum will be entered 

in favor of the Class. A post-judgment proceeding will follow, in which the Court will approve the 

procedure for distributing checks (or direct deposits) to each individual Class member based on 

plaintiffs' expert's damage calculations. Plaintiffs will ask the Court to approve the final allocation 

of damages. If a verdict is returned in favor of defendants, judgment dismissing the action with 

prejudice would be entered. 

I. PLAINTIFFS' CLAIMS 

This action involves claims against Brigham's Board for breach of its fiduciary duties, and a 

claim against the Company and Statoil for aiding and abetting the Board's breach of fiduciary duties. 

- 2-

1014363_1 
A. Plaintiffs' Claim for Breach of Fiduciary Duty Against the Individual 

Defendants 

The primary claim in this case is a claim for breach of fiduciary duty against the members of 

Brigham's Board at the time of the acquisition. That claim is governed by Delaware law because 

Brigham was a Delaware corporation. Article 8.02 of the Texas Business Corporation Act provides 

that the internal affairs (including the actions of its Board Members) of a foreign corporation doing 

business in Texas are controlled by the substantive law of the state of incorporation. 

Directors owe fiduciary duties of care and loyalty to the corporation and its shareholders. 

Mills Acquisition Co. v. MacMillan, Inc., 559 A.2d 1261, 1280 (Del. 1989); accord Revlon, Inc. v. 

MacAndrews &Forbes Holdings, Inc., 506 A.2d 173, 179 (Del.l986). In the contextofachangeof 

control, such as this, courts review directors' conduct under the enhanced scrutiny standard and must 

employ "less tolerance for slack by the directors" and be cognizant of the fact that "[a]lthough the 

directors have a choice of means, they do not comply with their [fiduciary] duties unless they 

undertake reasonable steps to get the best deal." In re Netsmart Techs., Inc. S'holders Litig., 924 

A.2d 171, 192 (Del. Ch. 2007); see also Omnicare, Inc. v. NCS Healthcare, Inc., 818 A.2d 914,928 

(Del. 2003); Revlon, 506 A.2d 173. The enhanced scrutiny test requires: 

(a) a judicial determination regarding the adequacy of the decisionmaking process 

employed by the directors, including the information on which the directors based 

their decision; and (b) a judicial examination of the reasonableness of the directors' 

action in light of the circumstances then existing. 

Paramount Commc'ns v. QVC Network, 637 A.2d 34,45 (Del. 1994); Omnicare, 818 A.2d at 931. 

Under the enhanced scrutiny test, "[t]he directors have the burden of proving that they were 

adequately informed and acted reasonably." Paramount, 637 A.2d at 45. 

In addition, as part of their fiduciary duties to Brigham's shareholders, the Board must fully and 

fairly disclose all material information within the Board's control. See Netsmart, 924 A.2d at 202; In re 

Pure Resources, Inc., S'holders Litig., 808 A.2d 421,448 (Del. Ch. 2002) ("When a document ventures 

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into certain subjects, it must do so in a manner that is materially complete and unbiased by the omission 

of material facts."). Here, plaintiffs contend that the Individual Defendants disseminated a Schedule 

14D-9 ("Schedule 14D-9") and a tender offer statement on Schedule TO ("Schedule TO"), filed with 

the Securities and Exchange Commission on October 28, 2011, which was false and misleading and 

failed to disclose all material information to Brigham shareholders in connection with the tender offer 

from Statoil. The determination of whether the Board breached that duty in this instance turns on the 

materiality of the alleged non-disclosures and omissions. Under relevant case law, courts determine 

materiality by assessing whether there is a substantial likelihood that a reasonable shareholder would 

consider the fact important in deciding how to vote. See Arnold v. Soc'y for Sav. Bancorp, 650 A.2d 

1270, 1277 (Del. 1994); TSC Indus. v. Northway, Inc., 426 U.S. 438, 449 (1976). 

B. Aiding and Abetting Breach of Fiduciary Duty Against Brigham and 

Statoil 

Plaintiffs also have a claim against Brigham and Statoil, for aiding and abetting of the 

breaches of fiduciary duties by the Individual Defendants, as members of the Board of Brigham. 

Rand v. Western Airlines, No. 8632, 1989 Del. Ch. LEXIS 118, at *14 (Del. Ch. Sept. 11, 1989) 

("[I]f there were objective evidence that the transaction benefits the fiduciaries at the stockholders' 

expense, knowing participation by a third party might be inferable."). To prevail on their claim for 

aiding and abetting a breach of fiduciary duty, plaintiffs must prove: (1) the existence of a fiduciary 

relationship; (2) a breach of the fiduciary's duty; (3) knowing participation in that breach by Statoil; 

and (4) damages proximately caused by the breach. Malpiede v. Townson, 780 A.2d 1075, 1097 

(Del. 2001); In re Rural Metro Corp. S'holders Litig., 88 A. 3d 54, 80 (Del. 2014). As to the third 

element- knowing participation, plaintiffs must show that the buyout group "'sought to induce the 

breach of a fiduciary duty"' or" 'make factual allegations from which knowing participation may be 

inferred."' In re Bj's Wholesale Club, Inc., C.A. No. 6623-VCN, 2013 Del. Ch. LEXIS 28, at *54-

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*55 (Del. Ch. Jan. 31, 2013). Knowing participation may be inferred where a buyout group: 

(1) "directly 'sought to induce [a] breach of fiduciary duty"' by the board; (2) attempted to '"create 

or exploit conflicts of interest in the board'"; (3) '"used know ledge of the breach to gain a bargaining 

advantage in negotiations"' with the board; or (4) knew the "'terms of the transaction [were] so 

egregious or the magnitude of the side deals ... so excessive as to be inherently wrongful."' Id. 

II. DEFENDANTS' PLEADED DEFENSES 

On January 13, 2015, defendants filed a Third Amended Answer to plaintiffs' petition. In it, 

defendants plead the following defenses: 

1. Plaintiffs' petition fails to state a claim for which relief can be granted; 

2. The negotiation and process leading up to the signing of the merger agreement and 

tender offer, as well as the decision to recommend the tender offer by the Individual Defendants, are 

protected by the business judgment rule; 

3. Defendants did not know, and in the exercise of reasonable care could not have 

known, of any untruths or omissions in the Schedule 14D-9 or the Schedule TO; 

4. The alleged misrepresentations and omissions were not material and did not 

proximately cause any damages to plaintiffs; 

5. Defendants acted in good faith and without any intent to deceive; 

6. Defendants' alleged misstatements or omissions were made in good faith, with 

genuine belief; 

7. Pursuant to 8 Del C. §14l{e), defendants are not liable because they relied in good 

faith upon the records of the corporation; 

8. Plaintiffs' claims are barred because of payment or accord and satisfaction; 

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9. Plaintiffs' generalized allegations of purported misrepresentations, deceit, or failure to 

disclose are barred because of a failure to plead those claims with requisite specificity; 

10. Plaintiffs' claims for damages are barred as a matter of law; 

ll. Plaintiffs' claims are barred under the 8 Del. C. § l02(b )(7) exculpation clause in 

Brigham's Certificate of Incorporation; 

12. Plaintiffs' claims are barred by the doctrines of waiver, acquiescence, acquiescence in 

price, ratification, and estoppel; and 

13. The recovery by plaintiffs, if any, should be precluded or reduced by virtue of the 

doctrine of proportionate responsibility. 

A. Defense Nos. 1 and 9 

Defendants' first and ninth defenses are directed at the sufficiency of plaintiffs' pleadings, 

which is a legal matter for the Court. Texas follows a "fair notice" standard for pleading, in which 

courts assess the sufficiency of pleadings by determining whether an opposing party can ascertain 

from the pleading the nature, basic issues, and the type of evidence that might be relevant to the 

controversy. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 230 (Tex. 2004); 

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896-97 (Tex. 2000); Boyles v. Kerr, 855 

S.W.2d 593, 601 (Tex. 1993); see also Tex. R. Civ. P. 47(a). The test of fair notice is whether an 

opposing attorney of reasonable competence, with the pleadings before him or her, could ascertain 

the nature and basic issues of the controversy and the testimony that is probably relevant. Hand v. 

Dean Witter Reynolds Inc., 889 S.W.2d 483, 489 (Tex. App.-Houston [14th Dist.] 1994, writ 

denied). 

B. Defense No. 2 

In their second defense, defendants contend that the business judgment rule bars plaintiffs' 

claims. 

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The business judgment rule is an evidentiary presumption. Cede & Co. v. Technicolor, 634 

A.2d 345, 360 (Del. 1993). Where shareholders challenge transactions approved by the board of a 

corporation, the business judgment rule operates as "a presumption that in making a business decision 

the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the 

action taken was in the best interests of the company." Aronson v. Lewis, 473 A.2d 805, 812 (Del. 

1984). A shareholder plaintiff may rebut the presumption by showing that a defendant breached any 

one of the triads of their fiduciary duty- good faith, loyalty or due care. Citron v. Fairchild Camera & 

Instrument Corp., 569 A.2d 53, 64 (Del. 1989). If the plaintiff makes this evidentiary showing, the 

presumption is rebutted and the burden shifts to the defendant directors, the proponents of the 

challenged transaction, to prove to the trier of fact the "entire fairness" of the transaction to the 

shareholder plaintiff. Nixon v. Blackwell, 626 A.2d 1366, 1376 (Del. 1993). 

C. Defense Nos. 3, 5-6 

Defendants have raised three defenses alleging that they acted in good faith and without any 

intent to deceive Brigham's shareholders. 

The duty to act in good faith is technically a subset of the duty of loyalty. "Encompassed 

within the duty of loyalty is a good faith aspect as well. 'To act in good faith, a director must act at all 

times with an honesty of purpose and in the best interest and welfare of the corporation."' Shocking 

Techs., Inc. v. Kosowsky, No. 7164-VCN, 2012Del. Ch. LEXIS 224, at *29 (Del. Ch. Sept. 28, 2012) 

(citation omitted). Stated alternatively, a director who acts "reckless and indifferent as to the rights of 

the stockholders" may breach the duty of good faith. Perrine v. Pennroad Corp., 47 A.2d 479, 489 

(Del. Ch. 1946) (citing Karasik v. Pacific Eastern Corp., 180 A. 604 (Del. Ch. 1935)). 

With respect to the defense that defendants did not know, or could not have known, of any 

untruths or omissions in the Schedule 14D-9 or Schedule TO, directors of a Delaware corporation 

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i 

i 
are under a fiduciary duty to disclose all material information within the Board's control when they 

seek shareholder action. Stroud v. Grace, 606 A.2d 75, 84 (Del. 1992); Arnold, 650 A.2d at 1277. 

"The disclosure obligation . . . is said to be one that requires the disclosure of all material 

information within the knowledge ofthe corporation (and thus available to the directors)." Behrens 

v. United Investors Mgmt. Co., No. 12876, 1993 Del. Ch. LEXIS 217, at *42 (Del. Ch. Oct. 1, 1993). 

D. Defense No. 4 

In their fourth defense, defendants assert that the alleged misrepresentations and omissions 

are not material and did not proximately cause damages or injuries to plaintiffs. 

The Delaware Supreme Court has stated that the essential inquiry in analyzing a disclosure 

claim is whether the alleged omission or misrepresentation is material. Arnold, 650 A.2d at 1277. 

The objective definition of materiality employed by Delaware courts is adopted from the United 

States Supreme Court's decision in TSC, 426 U.S. 438, which states, in pertinent part: 

An omitted fact is material if there is a substantial likelihood that a reasonable 

shareholder would consider it important in deciding how to vote . . . . It does not 

require proof of a substantial likelihood that disclosure of the omitted fact would 

have caused the reasonable investor to change his vote. What the standard does 

contemplate is a showing of a substantial likelihood that, under all the circumstances, 

the omitted fact would have assumed actual significance in the deliberations of the 

reasonable shareholder. Put another way, there must be a substantial likelihood that 

the disclosure of the omitted fact would have been viewed by the reasonable investor 

as having significantly altered the "total mix" of information made available. 

!d. at449. 

Under Delaware law, once materiality has been shown, causation is satisfied. In In re Rural 

Metro Corp. Stockholders Litig., 88 A.3d 54 (Del. Ch. 2014), the Court of Chancery held that, 

"[ w ]hen seeking post-closing damages for breach of the duty of disclosure, however, the plaintiff 

must prove quantifiable damages that are 'logically and reasonably related to the harm or injury for 

which compensation is being awarded.'" !d. at 104 (citing In re J.P. Morgan Chase & Co. S 'holder 

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Litig., 906 A.2d 766, 773 (Del. 2006)). There, the court explained, "a [fmancial advisor's] actions 

resulted in stockholders voting on the merger based on a proxy statement that contained materially 

false disclosures and omissions about [financial advisor's] valuation analyses and conflicts. 

Stockholders were denied the information necessary to make an informed decision whether to seek 

appraisal. Causation is satisfied." Rural Metro, 88 A. 3d at 107. In a later opinion, the court entered 

judgment and awarded damages to the stockholder class at an identical $4.17 per share for the 

plaintiff and each eligible class member. In re Rural/Metro Corp. Stockholders Litig., 102 A. 3d 205 

(Del. Ch. 2014). The showing of causation involved no individual issues of proof. 

E. Defense No. 7 

Defendants also invoke §14l(e) of Delaware's corporation law, 8 Del. C. §14l(e), as a 

defense. Section 141 (e) provides that directors are protected from a breach of the duty of care when 

the directors reasonably believe the information upon which they rely has been presented by an 

expert selected with reasonable care and is within that person's professional or expert competence. 

8 Del. C. §14l(e); see also Brehm v. Eisner, 746 A.2d 244, 262 (Del. 2000). 

Section 14l(e) does not reach claims for breaches of loyalty and good faith. See, e.g., 

Selectica, Inc. v. Versata Enters., No. 4241-VCN, 2010 Del. Ch. LEXIS 39, at *62 (Del. Ch. 

Feb. 26, 2010) (recognizing that board's reliance on expert's advice may, in certain circumstances, 

defeat a "due care claim"), aff'd, 5 A.3d 586 (Del. 2010). 

F. Defense No.8 

In their eighth defense, defendants contend that plaintiffs' claims are barred because of 

payment or accord and satisfaction. Three elements are necessary to prove an accord and 

satisfaction: (1) that a bona fide dispute existed as to the amount owed that was based on mutual 

good faith; (2) that the debtor tendered an amount to the creditor with the intent that payment would 

be in total satisfaction of the debt; and (3) that the creditor agreed to accept the payment in full 

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satisfaction of the debt. CitiSteel USA, Inc. v. Connell Ltd. P'shp, Luria Bros. Div., 758 A.2d 928, 

931 (Del. 2000) (citingAciernov. Worthy Bros. Pipeline Corp., 693 A.2d 1066, 1068 (Del. 1997)). 

The burden to prove these elements is on the party alleging that the accord and satisfaction took 

place. !d. at 1068-69. 

G. Defense Nos. 10 and 11 

Defendants also contend that plaintiffs' claims for monetary damages are barred as a matter 

of law and under the 8 Del. C. §102(b)(7) exculpation clause in Brigham's Certificate of 

Incorporation. Although § 1 02(b )(7) provision does not operate to defeat the validity of a plaintiff's 

claim on the merits, it permits a corporation to adopt a clause eliminating or limiting the personal 

liability of a director to the corporation or its stockholders for monetary damages for breach of 

fiduciary duty as a director, except in certain circumstances. Emerald Partners v. Berlin, 787 A.2d 

85, 92 (Del. 2001). 

Section 102(b)(7) applies only to directors; it does not authorize exculpation of officers. 

Chen v. Howard-Anderson, 87 A.3d 648, 686 (Del. Ch. 2014); McPadden v. Sidhu, 964 A.2d 1262, 

1275-76 (Del. Ch. 2008). Nor does §102(b)(7) shield a corporation from monetary damages 

stemming from the actions of its directors or officers. 8 Del. C. §102(b)(7). 

A § 1 02(b )(7) exculpation clause also cannot eliminate or limit the liability of a director for 

any breach of the duty of loyalty or good faith, including a claim for non-disclosure. 8 Del. C. 

§102(b)(7); accord Levy v. Stern, No. 211, 1996 Del. LEXIS 468, at *6 n.4 (Del. Dec. 20, 1996) 

(§ 1 02(b )(7) "is inapplicable ... where the alleged breach entails bad faith, intentional misconduct, or 

a breach of the duty ofloyalty"); Wayne Cnty. Emps. 'Ret. Sys. v. Corti, No. 3534-CC, 2009 Del. Ch. 

LEXIS 126, at *25-*28 (Del. Ch. July 24, 2009), aff'd, 996 A.2d 795 (Del. 2010). 

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"Because [§ 1 02(b )(7)] is an affirmative defense, the defendants would normally shoulder the 

burden of establishing each of its elements, and the inapplicability of each of its four exceptions." 

Rothenberg v. Santa Fe Pacific Corp., No. 11749, 1992 Del. Ch. LEXIS 106, at *12-*13 (Del. Ch. 

May 18, 1992); In re Orchard Enters., Inc., 88 A.3d 1, 48 (Del. Ch. 2014). 

H. Defense No. 12 

Defendants' twelfth defense raises four related doctrines of equity- waiver, acquiescence, 

ratification and estoppel- all of which defendants bear the burden of proving under Delaware law. 

'"Waiver is the voluntary and intentional relinquishment of a known right. . . . It implies 

knowledge of all material facts and intent to waive.' Moreover, 'the facts relied upon must be 

unequivocal in nature.'" Am. Family Mortg. Corp. v. Acierno, No. 290, 1994 Del. LEXIS 105, at 

*13 (Del. Mar. 28, 1994) (quoting Realty Growth Investors v. Council of Unit Owners, 453 A.2d 

450, 456 (Del. 1982)) (internal citations omitted). To be subject to the defense of acquiescence, 

defendants must prove every plaintiff: (i) had full knowledge of their rights and all material facts; 

(ii) possessed a meaningful choice in determining how to act; and (iii) acted voluntarily in a manner 

showing unequivocal approval of the challenged conduct. N.J. Carpenters Pension Fund v. 

infoGROUP, Inc., No. 5334-VCN, 2013 Del. Ch. LEXIS 43, at *25 (Del. Ch. Feb. 13, 2013). To 

obtain the benefits of ratification, the defendants must prove, by a preponderance of the evidence, 

that the plaintiffs consented to the switch after all material facts were disclosed. O'Malley v. Boris, 

No. 15735-NC, 2002 Del. Ch. LEXIS 33, at *22 n.28 (Del. Ch. Mar. 18, 2002). "[T]he ratification 

doctrine does not apply to transactions where shareholder approval is statutorily required." Gantler 

v. Stephens, 965 A.2d 695, 714 (Del. 2009). '"Estoppel is the effect of the voluntary conduct of a 

party whereby he is absolutely precluded ... from asserting rights which might perhaps have 

otherwise existed, ... as against another person, who has in good faith relied upon such conduct, and 

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has been led thereby to change his position for the worse."' Kahn v. Household Acquisition Corp., 

591 A.2d 166, 176 (Del. 1991). 

I. Defense No. 13 

Defendants' last defense is based on the doctrine of proportionate responsibility. Under 

Chapter 33 of the Texas Civil Practice and Remedies Code, if a liability finding has been made by 

the jury, the jury may be asked to detennine if other parties contributed to the harm for which 

damages are sought. Tex. Civ. Prac. & Rem. Code Ann. §33.003(a) (2006). If so, the jury may 

detennine the percentage of responsibility of each party and reduce or eliminate any damages owed 

to a plaintiff. !d. 

III. CLASS ISSUES 

A. Procedural History 

This action was initiated on October 17, 2011, when Raymond Boytim filed a petition 

stemming from the announcement by Brigham and Statoil that the companies had entered into a 

merger agreement. Several additional Brigham shareholders filed similar actions. The actions were 

thereafter consolidated. On November 10, 2011, plaintiffs moved for an order preventing defendants 

from closing the tender offer and taking down any tendered shares until defendants cured the 

breaches of fiduciary duty set forth in plaintiffs' petition. That motion was denied, and Statoil 

closed the transaction on December 8, 2011. 

After the sale was consummated, plaintiffs filed a second amended consolidated petition, 

which added a claim for damages. Plaintiffs also added factual allegations based on their review of 

the documents and deposition testimony provided by defendants prior to the close of the transaction. 

In early March 2012, plaintiffs filed a third amended class action petition for breach of fiduciary 

duty. The petition added several additional named plaintiffs, but was otherwise identical to the 

second amended petition filed in January. Discovery is ongoing. 

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On September 17, 2012, plaintiffs moved for class certification of their claim that defendants 

had breached their duties to Brigham's shareholders. Both parties have submitted voluminous 

filings, and the Court has held numerous hearings, in connection with that motion. On October 22, 

2012, the trial court held a hearing during which counsel for the parties providing opening 

statements in support of their respective positions and four class representatives provided live 

testimony. The Court held a second hearing on February 22, 2013. At that hearing, the Court 

addressed defendants' objections to the class certification order and proposed trial plan. Five days 

later, the Court issued an order certifying a class of former Brigham shareholders. An interlocutory 

appeal followed. 

On December 17, 2014, following disposition of defendants' interlocutory appeal, the Court 

held a hearing to address the development of a revised trial plan which complies with Tex. R. 

Civ. P. 42. Specifically, the Court explored the various defenses pleaded by defendants and the 

defenses they expected to pursue at trial, and the Court analyzed the sources of proof defendants will 

offer in support of these defenses. These issues were further explored through subsequent briefing 

by the parties and a follow-up hearing held on March 31, 2015. 

B. Common Questions of Law and Fact Predominate 

Under Rule 42(b)(3) of the Texas Rules of Civil Procedure, the moving party must show that 

the class should be maintained because common questions of fact or law predominate over any 

questions affecting only individual members. Sw. Ref Co. v. Bernal, 22 S.W.3d 425, 435 (Tex. 

2000) (if the moving party seeks to certify a predominance-of-common-questions action, the 

commonality determination under Rule 42(a) is subsumed under the predominance determination). 

The test for predominance is whether common or individual issues will be the object of most of the 

efforts of the litigants and the Court. !d. at 434; Snyder Commc'ns, L.P. v. Magana, 142 S.W.3d 

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295, 300 (Tex. 2004) ("In evaluating whether common issues predominate, courts must identify the 

controlling substantive issues of the case and assess which issues will predominate to determine 

whether those issues are in fact common to the class. Courts must therefore determine 'whether 

common or individual issues will be the object of most of the efforts of the litigants and the court."') 

(citing Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 693 (Tex. 2002)). 

For all of their claims, plaintiffs will rely on common proof derived directly from Brigham's 

directors, officers and executives, and from plaintiffs' expert(s), to prove their claims. Below is an 

evidentiary outline demonstrating how this case will be tried as a class action without manageability 

problems. 

1. Plaintiffs Will Prove Breach of Fiduciary Duty Through 

Common Evidence 

The elements of breach of fiduciary duty are common to each member of the stockholder 

class. Plaintiffs intend to prove at trial that defendants breached their fiduciary duties to 

shareholders when they agreed to the sale of Brigham. 

To prove their claims, plaintiffs will offer evidence of the defendants' activities found in the 

contemporaneously created internal Brigham and Statoil documents; testimony from Brigham's 

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

and testimony from Jefferies, the financial advisor retained by the Brigham Board; and documents 

and testimony from Shell, ENI, Chevron and Total, four other potential buyers of Brigham. 

Plaintiffs believe that this evidence will show that defendants were acting in their own interests, 

rather than in the interests of stockholders. 

Plaintiffs also allege that the Board disregarded hundreds of millions of dollars in shareholder 

value represented in the stand-alone plan of the Company, when it agreed to and recommended the 

tender offer and approved the acquisition. Common evidence of this breach will include various 

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minutes from the Board meetings, internal analyses conducted by Company management and 

presented to the Board, as well as presentations provided by Jefferies to the Board. It will also 

include expert testimony concerning the intrinsic value of the Company at the time it was sold. 

Because a breach of fiduciary duty claim and an aiding and abetting claim share many of the 

same elements, much of the evidence supporting plaintiffs' breach of fiduciary duty claim will also be 

used to support the aiding and abetting claim. In addition to the evidence outlined above, the Court 

understands that plaintiffs intend to introduce at trial evidence that, in the days leading up to the 

merger, Statoil was informed that Ben Brigham did not have Board authorization to agree to a deal at 

$36.50, yet Statoil nevertheless encouraged Ben Brigham to obtain full Board approval of the deal. 

The Court also understands that plaintiffs will introduce evidence that Statoil negotiated 

extensively with the Company and enjoyed access to the Company's confidential information during 

the negotiation process and Statoil requested, and obtained, an exclusivity agreement from Brigham 

to prevent competing bidders from topping or competing with its bid. According to plaintiffs, this 

concession prevented Brigham from pursuing discussions with other potential bidders who were 

interested in making a bid for the Company during this time. Moreover, as the Court understands, 

plaintiffs intend to introduce evidence that Statoil sought to induce the Board's breaches of fiduciary 

duty by ensuring that certain Board members and company insiders received various benefits that the 

Company's unaffiliated public shareholders did not receive. For example, when the deal closed, 

company insiders received over $60 million dollars forunvested stock options. Statoil also provided 

golden parachutes to the rest of the management team, including post-merger employment contracts. 

While this evidence is only illustrative of the type of evidence plaintiffs' intend to use to support 

their aiding and abetting claim, it is common to the class and shows that the claim can be tried on a 

class-wide basis. See In re Rural Metro Corp., 88 A. 3d at 80. 

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With respect to plaintiffs' claim that the Board breached its duty of candor, plaintiffs intend to 

prove this claim through the Company's Schedule 14D-9 and Schedule TO, various internal documents 

and testimony from Brigham's directors, officers and executives reflecting the true facts, and the 

likelihood that those facts would be important to the shareholders' decision to tender their shares to 

Statoil. In short, the focus of plaintiffs' claims is on defendants' actions leading up to the sale. 

2. Plaintiffs Will Prove with Common Evidence Causation and 

Amount of Damages 

Plaintiffs intend to demonstrate causation through, inter alia, documents and testimony from 

Brigham, its Board and Statoil, showing that the injury to Class members in the form of inadequate 

consideration was foreseeable and an intended consequence of the actions of defendants in 

structuring and agreeing to a sale of the Company. Oliver v. Boston Univ., No. 16570-NC, 2002 

Del. Ch. LEXIS 21, at *24-*25 (Del. Ch. Feb. 28, 2002) (in merger cases, all shareholders suffer "a 

common harm that is related to the allegedly wrongful merger and the inadequate disclosures 

associated with it"). 

With the assistance of their expert(s), plaintiffs will use common proof to demonstrate injury 

to Class members and calculate total damages for the Class without the need to resort to information 

collected from individual Class members. That common proof will be expert testimony establishing 

the difference between the true value of the Company and the amount actually received by the 

shareholders. The amount actually received is the $36.50 that all shareholders received when they 

either tendered their shares to Statoil or were cashed-out. If plaintiffs establish liability and 

damages, class members will claim their pro rata portion of the judgment by submitting a claim 

form showing the number of shares of Brigham stock they held at the time the merger was 

announced. See Joseph v. Shell Oil Co., No. 7450, 1985 Del. Ch. LEXIS 458, at *14 (Del. Ch. 

Feb. 8, 1985) ("In short, if a finding of damages occurs, the damages will be mathematically 

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allocated on a per share basis to all the stockholders in similar circumstances. There is a total 

absence of individual issues and therefore there would be no reason for the Court to make a separate 

finding of damages as to each share or each shareholder."); Rural/Metro, 102 A.3d at 224-25. 

3. Defendants' Defenses Are Susceptible to Common Proof 

Once plaintiffs have concluded their case-in-chief, the burden will shift to defendants to 

present evidence in support of their defenses. Based upon the parties' submissions in connection 

with plaintiffs' motion, the Court believes that the defenses pleaded by defendants are subject to 

common proof and will not present manageability problems. The Court assumes for purposes of this 

trial plan that all of the defenses pleaded by defendants apply to plaintiffs' claims and will be 

presented at trial. 

As an initial matter, several of defendants' pleaded defenses (Nos. l and 9) are legal matters 

for the Court, not factual matters for the jury, and can be resolved through pre-trial motion practice. 

Moreover, because these defenses will resolve the claims of the entire class, if they have merit, they 

do not present individualized issues which would preclude a class-wide trial on the merits of 

plaintiffs' claims. With respect to defense No. 2 - regarding the business judgment rule - the 

appropriate burden(s) shouldered by each of the parties at trial will be reflected in the jury 

instructions. Because the burdens will govern the claims of the entire class, they will not present 

individualized issues. 

Defendants have raised three defenses (Nos. 3, 5 and 6) in which they assert that they acted 

in good faith and without intent to deceive, and that they did not know of the untruths or omissions 

at issue. These defenses will depend on many of the same sources of common proof used to support 

plaintiffs' claims, including the testimony of the Individual Defendants, the testimony of current and 

former executives, officers and managers at Brigham and Statoil, correspondence to and from the 

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defendants during the sales process, and the Schedule 14D-9 and Schedule TO disseminated to 

Brigham's shareholders. In similar vein, defendants' 8 Del C. §141(e) defense will center on the 

Individual Defendants' testimony and beliefs regarding the opinions of the Board's financial 

advisors, and internal corporate documents about the competence, selection and performance of 

those advisors during the sales process. 

With respect to defendants' fourth pleaded defense, materiality does not present an issue that 

requires proof from individual Class members. As noted above, materiality is judged according to 

an objective standard, Arnold, 650 A.2d 1277, and TSC, 426 U.S. 438, and, as such, can be proved 

through evidence common to the Class. Malone v. Brincat, 722 A.2d 5, 12 (Del. 1998) (directors 

who fail to disclose all material information breach their duty of candor to each and every one of the 

Company's shareholders); see also Weatherly v. Deloitte & Touche, 905 S.W.2d 642, 653 (Tex. 

App.-Houston [14th Dist.] 1995, writ dism' d w .o.j .) (concluding that where shareholders' injuries 

arise from defendants' uniform scheme of misrepresentations, typicality is satisfied). Also, as noted 

above, causation and damages do not raise individual issues of proof under Delaware law for postmerger disclosure claims for damages. See infra §ll.D (citing Rural Metro, 88 A.3d 54, and 

Rural/Metro, 102 A.3d 205). A failure of proof on these questions will not result in individual 

inquiries; instead, it will simply end plaintiffs' disclosure claims. 

In support of the defenses based upon §102(b)(7) (Nos. 10 and 11), the Individual 

Defendants intend to offer, inter alia, proof of their positions on the Board and their actions leading 

up to the acquisition; that they retained sophisticated financial and legal advisors during the process; 

that they performed due diligence prior to agreeing to and recommending the tender offer and 

consummating the transaction, including due diligence about the value of the Company; and that 

they held numerous Board meetings to discuss and explore the various options available to the 

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Company going forward. This proof will come in the form of testimony from the Individual 

Defendants and internal corporate documents created during the process. Evaluating this evidence, 

the jury will decide whether the Individual Defendants' actions (a) were that of a director as opposed 

to an officer and (b) constituted a breach of care as opposed to breach of loyalty - thereby 

immunizing a particular defendant (or defendants) from monetary damages. 8 Del. C. §102(b)(7); 

Emerald Partners, 787 A.2d at 92. 

Defendants also assert defenses based on the equitable doctrines of accord and satisfaction, 

waiver, acquiescence, ratification and estoppel. The certified Class is comprised of"[ a ]11 holders of 

Brigham common stock as of October 17, 2011." The Class includes both shareholders who 

tendered their Brigham shares to Statoil and shareholders who did not. Based upon defendants' 

submissions, the Court understands that defendants intend to attempt to prove at trial that the former 

group is subject to these defenses because they tendered their shares voluntarily and with full 

knowledge of their rights and the material facts surrounding the acquisition. Defendants intend to do 

so through evidence showing that Brigham entered into a merger agreement with Statoil, that Statoil 

commenced a tender offer pursuant to that agreement, and that a percentage of Brigham's 

shareholders tendered their shares to Statoil and were paid a single price- $36.50-for each of their 

shares. They will also offer the Schedule 14D-9 and Schedule TO. 

As a practical matter, these defenses merge with the merits of plaintiffs' non-disclosure 

claims. Both claims tum on whether the Schedule 14D-9 and Schedule TO disclosed all material 

facts to Brigham's shareholders. 1 If plaintiffs establish that defendants did not disclose all material 

facts, plaintiffs will prevail on their non-disclosure claims and will negate one of the elements of the 

Plaintiffs have stipulated that, if defendants can prove that all material information relating to the 

merger was disclosed in the Schedule 14D-9 or Schedule TO, or otherwise publicly made available, 

defendants need not prove that each Class member was individually aware of these facts. 

- 19-

1014363_1 
defenses- i.e., that Brigham's shareholders had full knowledge of all material facts surrounding the 

acquisition when they tendered their shares to Statoil. The doctrines of ratification, waiver, 

acquiescence and estoppel only apply if the shareholder was fully informed. infoGROUP, 2013 Del. 

Ch. LEXIS 43, at *25;Am. Family, 1994 Del. LEXIS 105, at *13; O'Malley, 2002 Del. Ch. LEXIS 

33, at *22 n.28. 

If plaintiffs do not establish that shareholders were misled, plaintiffs' non-disclosure claims 

fail and defendants are entitled to judgment on that claim, without the need for a separate finding on 

the defenses. Either way, these defenses will be disposed of as the parties litigate the merits of 

plaintiffs' claims. 

Any issues concerning defendants' remaining defense - that another party may be 

responsible· for all or a portion of any harm to the Class - can be resolved through the use of an 

appropriate jury form. The jury will not be required to decide the issue of proportionate 

responsibility unless and until, there is first an appropriate finding of liability. No issue of 

proportionate responsibility arises unless there is first a determination of some responsibility for 

damages by at least one defendant. If there is a finding of liability, the jury can be asked in a verdict 

form to determine how much of the responsibility for the harm, in percentage terms, to place on 

defendants and any culpable non-parties. 

DATED: March 19, 2015 

1014363_1 

Respectfully submitted, 

ROBBINS GELLER RUDMAN 

&DOWDLLP 

RANDALLJ. BARON 

DAVID T. WISSBROECKER 

STEVEN M. JODLOWSKI 

- 20-
1014363_1 

655 West Broadway, Suite 1900 

San Diego, CA 92101 

Telephone: 619/231-1058 

619/231-7423 (fax) 

ROBBINS GELLER RUDMAN 

&DOWDLLP 

SAMUEL H. RUDMAN 

MARKS. REICH 

MICHAEL G. CAPECI 

58 South Service Road, Suite 200 

Melville, NY 11747 

Telephone: 631/367-7100 

631/367-1173 (fax) 

Class Counsel for Plaintiffs 

BOULETTE & GOLDEN LLP 

MICHAEL D. MARIN 

Texas Bar#00791174 

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) - 21 -
1014363_1 

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 & RYAN LLP 

HAMILTON P. LINDLEY 

4125 W. Waco Drive 

Waco, TX 76710 

Telephone: 254/753-6437 

254/753-7434 (fax) 

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) 

-22-
1014363_1 

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 

561/394-3382 (fax) 

Additional Counsel for Plaintiffs 

-23-
Appendix C 
946

Cause No. D-1-GN-11-003205 

(Consolidated) 

RAYMOND BOYTIM, et al., Individually and § 

on Behalf of All Others Similarly Situated, § 

Plaintiffs, 

vs. 

§ 

§ 

§ 

§ 

BRIGHAM EXPLORATION COMPANY, et ~ al., § 

Defendants. § 

§ 

____________________________ § 

IN THE DISTRICT COURT OF 

TRAVIS COUNTY, TEXAS 

201st JUDICIAL DISTRICT 

PLAINTIFFS' PROPOSED AMENDED PRELIMINARY PLAN FOR 

TRIAL OF CLASS CLAIMS 

759959 1 

728 728 
947

Plaintiffs submit this trial plan in support of their motion for class certification. This plan 

provides a detailed outline to aid the Court in assessing how a single trial can be conducted against 

Brigham Exploration Company ("Brigham" or the "Company"), the members of its Board of 

Directors (the "Individual Defendants" or the "Board"), and Statoil ASA ("Statoil") on behalf of a 

proposed class of all holders of Brigham common stock as of October 17, 2011. Discovery has not 

been completed, so this plan is, by necessity, incomplete. Plaintiffs reserve the right to suggest 

changes to this plan in advance of trial in light of the completion of discovery, reports from experts, 

changes in the law, and orders arising from any summary judgment motions. It is evident, however, 

from discovery conducted to date that trial of this action on a class-wide basis will present no unduly 

challenging manageability issues. 

This plan will address the class certification issues, the claims arising from defendants' 

actions, the manner in which defendants' common course of conduct will be proven at trial, and 

other issues relating to the management and superiority of a class-wide trial. As discussed below, 

this action stems from the sale of Brigham to Statoil for $36.50 per share ofBrigham stock. That 

sale was completed on December 8, 2011, one-and-a-half months after Brigham and Statoil 

announced to shareholders that the companies had entered into a definitive merger agreement. 

Plaintiffs allege that Brigham's directors breached their fiduciary duties to shareholders in agreeing 

to and facilitating the sale. Plaintiffs also bring a claim against Brigham and Statoil for aiding and 

abetting the breach of fiduciary duty. 

At this time, plaintiffs envision a single trial with the following procedural steps: 

1. Plaintiffs will present their case-in-chief, submitting common evidence of defendants' 

wrongdoing, class-wide injury, and total damages; 

2. The Individual Defendants will present the defenses they wish to advance; 

- 1 -

759959 1 

729 729 
948

3. Brigham and Statoil will present the defenses they wish to advance; 

4. Plaintiffs will present their rebuttal case; and 

5. The case will be submitted to the jury, which will enter a verdict based on a proposed 

jury charge. 

Counsel for plaintiffs are deeply experienced in takeover litigation, especially in takeover 

cases after the acquisition closes, and have prepared similar cases for trial. Counsel for plaintiffs 

have also tried numerous takeover cases, including at least one action in Texas. Plaintiffs will 

present their case through the testimony of their experts; the testimony and documents of the 

Individual Defendants, Brigham and Statoil; the testimony and documents of defendants' financial 

advisors; and, potentially, the documents and testimony of Shell, ENI, Chevron and Total, four 

potential buyers. 

If a verdict for the plaintiffs results, judgment in a total, single monetary sum will be entered 

in favor of the Class. A post-judgment proceeding will follow, in which the Court will approve the 

procedure for distributing checks (or direct deposits) to each individual Class member based on 

plaintiffs' expert's damage calculations. Plaintiffs will ask the Court to approve the final allocation 

of damages. If a verdict is returned in favor of defendants, judgment dismissing the action with 

prejudice would be entered. 

I. PLAINTIFFS' CLAIMS 

This action involves claims against Brigham's Board for breach of its fiduciary duties, and a 

claim against the Company and Statoil for aiding and abetting the Board's breach of fiduciary duties. 

A. Breach of Fiduciary Duty of Due Care, Loyalty and Good Faith 

Against the Individual Defendants 

The primary claim in this case is a claim for breach of fiduciary duty against the members of 

Brigham's Board at the time of the acquisition. That claim is governed by Delaware law because 

- 2-

759959 1 

730 730 
949

Brigham is a Delaware corporation. Article 8.02 of the Texas Business Corporation Act provides 

that the internal affairs (including the actions of its Board Members) of a foreign corporation doing 

business in Texas are controlled by the substantive law of the state of incorporation. 

Directors owe fiduciary duties of care and loyalty to the corporation and its shareholders. 

Mills Acquisition Co. v. MacMillan, Inc., 559 A.2d 1261, 1280 (Del. 1989); accord Rev/on, Inc. v. 

MacAndrews &Forbes Holdings, Inc., 506 A.2d 173, 179 (Del. 1986). In the context of a change of 

control, such as this, courts review directors' conduct under the enhanced scrutiny standard and must 

employ "less tolerance for slack by the directors" and be cognizant of the fact that "[a ]lthough the 

directors have a choice of means, they do not comply with their [fiduciary] duties unless they 

undertake reasonable steps to get the best deal." In re NetSmart Techs., Inc. S'holders Litig., 924 

A.2d 171, 192 (Del. Ch. 2007); see also Omnicare, Inc. v. NCS Healthcare, Inc., 818 A.2d 914,928 

(Del. 2003); Rev/on, 506 A.2d 173. The enhanced scrutiny test requires: 

(a) a judicial determination regarding the adequacy ofthe decisionmaking process 

employed by the directors, including the information on which the directors based 

their decision; and (b) a judicial examination of the reasonableness of the directors' 

action in light of the circumstances then existing. 

Paramount Commc 'ns v. QVC Network, 637 A.2d 34,45 (Del. 1994); Omnicare, 818 A.2d at 931. 

Under the enhanced scrutiny test, "[t]he directors have the burden of proving that they were 

adequately informed and acted reasonably." Paramount, 637 A.2d at 45. 

B. Breach of Fiduciary Duty of Candor Against the Individual 

Defendants 

Plaintiffs' second claim against the Individual Defendants stems from defendants' 

dissemination of a Schedule 14D-9 and a tender offer statement on Schedule TO, filed with the 

Securities and Exchange Commission on October 28, 2011. Plaintiffs allege that those documents 

were false and misleading, and that defendants failed to disclose all material information to Brigham 

- 3-

759959 1 

731 731 
950

shareholders, which prevented shareholders from having sufficient information to decide whether to 

tender their shares to Statoil. 

As part of their fiduciary duty to Brigham's shareholders, the Board must fully and fairly 

disclose all material information within the Board's control. See Netsmart, 924 A.2d at 202; In re 

Pure Resources, Inc., S'holders Litig., 808 A.2d 421, 448 (Del. Ch. 2002) ("When a document 

ventures into certain subjects, it must do so in a manner that is materially complete and unbiased by 

the omission of material facts."). The determination of whether the Board breached that duty in this 

instance turns on the materiality of the alleged non-disclosures and omissions. Under relevant case 

law, courts determine materiality by assessing whether there is a substantial likelihood that a 

reasonable shareholder would consider the fact important in deciding how to vote. See TSC Indus. v. 

Northway, Inc., 426 U.S. 438, 449 (1976). 

C. Aiding and Abetting Breach of Fiduciary Duty Against Brigham and 

Staton 

Plaintiffs also have a claim against Brigham and Statoil, for aiding and abetting of the 

breaches of fiduciary duties by the Individual Defendants, as members of the Board of Brigham. 

Randv. Western Airlines, No. 8632, 1989 Del. Ch. LEXIS 118, at *14 (Del. Ch. Sept. 11, 1989) 

("[I]fthere were objective evidence that the transaction benefits the fiduciaries at the stockholders' 

expense, knowing participation by a third party might be inferable."). "A third party may be liable 

for aiding and abetting a breach of a corporate fiduciary's duty to the stockholders if the third party 

'knowingly participates' in the breach." Malpiede v. Townson, 780 A.2d 1075, 1096 (Del. 2001). 

II. CLASS ISSUES 

A. Procedural History 

This action was initiated on October 17, 2011, when Raymond Boytim filed a complaint 

stemming from the announcement by Brigham and Statoil that the companies had entered into a 

- 4-

759959 1 

732 732 
951

merger agreement. Several additional Brigham shareholders filed similar actions. The actions were 

thereafter consolidated. On November 10, 2011, plaintiffs moved for an order preventing defendants 

from closing the tender offer and taking down any tendered shares until defendants cured the 

breaches of fiduciary duty set forth in plaintiffs' complaint. That motion was denied, and Statoil 

closed the transaction on December 8, 2011. 

After the sale was consummated, plaintiffs filed a second amended consolidated petition, 

which added a claim for damages. Plaintiffs also added factual allegations based on their review of 

the documents and deposition testimony provided by defendants prior to the close of the transaction. 

In early March 2012, plaintiffs filed a third amended class action petition for breach of fiduciary 

duty. The petition added several additional named plaintiffs, but was otherwise identical to the 

second amended petition filed in January. Defendants have not filed an answer or otherwise 

responded to the third amended class action petition. 

On March 8, 2012, the parties submitted, and the Court approved, a stipulation concerning a 

pre-trial schedule. Under the schedule, all fact discovery must be completed by October 1, 20 12; all 

expert discovery must be completed by February 1, 2013; any motions for summary judgment must 

be filed by February 22, 2013; and all pre-trial briefs and motions in limine are due by June 14, 

2013. The parties must confer with each other and the Court, on or before June 23, 2013, to 

determine a trial date. Additionally, the stipulation established rules for the production of documents 

and discovery relating to experts. Discovery is ongoing. 

B. Common Questions of Law and Fact Predominate 

Under Rule 42(b )(3), the moving party must show that the class should be maintained 

because common questions of fact or law predominate over any questions affecting only individual 

members. Sw. Ref Co. v. Bernal, 22 S.W.3d 425, 435 (Tex. 2000) (if the moving party seeks to 

- 5-

759959 1 

733 733 
952

certify a predominance-of-common-questions action, the commonality determination under Rule 

42(a) is subsumed under the predominance determination). The test for predominance is whether 

common or individual issues will be the object of most of the efforts of the litigants and the Court. 

Id. at 434; Snyder Commc 'ns, L.P. v. Magana, 142 S.W.3d 295, 300 (Tex. 2004) ("In evaluating 

whether common issues predominate, courts must identify the controlling substantive issues of the 

case and assess which issues will predominate to determine whether those issues are in fact common 

to the class. Courts must therefore determine 'whether common or individual issues will be the 

object of most of the efforts of the litigants and the court."') (citing Schein v. Stromboe, 102 S.W.3d 

675, 693 (Tex. 2002)). 

For all of their claims, plaintiffs will rely on common proof derived directly from Brigham's 

directors, officers and executives, and from plaintiffs' expert( s ), to prove their claims. Below is an 

evidentiary outline demonstrating how this case will be tried as a class action without manageability 

problems. 

1. Plaintiffs Will Prove Breach of Fiduciary Duty Through 

Common Evidence 

The elements ofbreach of fiduciary duty are common to each member ofthe stockholder 

class. Plaintiffs will show that defendants breached their fiduciary duties to shareholders when they 

agreed to the sale of Brigham. 

This evidence will show that defendants allowed the sales process to be driven and finished 

by a conflicted management team led by Ben M. Brigham and a conflicted banker, Jefferies & 

Company, Inc. ("Jefferies"). The Board allowed itself to be steered into a transaction with Statoil by 

a management team who was intent on achieving a liquidity event for their tens of millions of dollars 

in otherwise illiquid holdings in the Company. Plaintiffs also allege that defendants erected barriers 

to discourage other offers for the Company and its assets. 

- 6 -

759959 1 

734 734 
953

This misconduct will be proved with uniform evidence of the defendants' activities found in 

the contemporaneously created internal Brigham and Statoil documents; testimony from Brigham's 

directors and officers, and certain of its executives; testimony from Statoil's ChiefExecutive Officer, 

Helge Lund, and John Knight, its Executive Vice President of Global Strategy and Business 

Development; documents and testimony from Jefferies, the financial advisor retained by the 

Brigham Board; and documents and testimony from Shell, ENI, Chevron and Total, four other 

potential buyers of Brigham. 

The same common evidence will also show that defendants were acting in their own 

interests, rather than in the interests of stockholders, when they granted themselves what were 

essentially spring-loaded options by amending their existing equity incentive package to provide for 

acceleration and immediate vesting of their outstanding options and restricted shares so that they 

could cash out in a merger with Statoil. Defendants also provided rich golden parachutes to the rest 

of the management team to assure everyone at the Company was incentivized to push for a deal with 

Statoil. 

Plaintiffs also intend to show that the Board consciously disregarded hundreds of millions, if 

not billions, of dollars in shareholder value represented in the stand-alone plan of the Company. 

Common evidence of this breach will include various minutes from the Board meetings, internal 

analyses conducted by Company management and presented to the Board, as well as presentations 

provided by Jefferies to the Board. It will also include expert testimony concerning the intrinsic 

value of the Company at the time it was sold. 

With respect to plaintiffs' claim that the Board breached its duty of candor, plaintiffs intend 

to prove this claim through the Company's Schedule 14D-9 and a tender offer statement on Schedule 

TO, various internal documents and testimony from Brigham's directors, officers and executives 

- 7 -

759959 1 

735 735 
954

reflecting the true facts, and the likelihood that those facts would be important to the shareholders' 

decision to tender their shares to Statoil. In short, the focus of the case is on defendants' actions 

leading up to the sale. 

2. Plaintiffs Will Prove With Common Evidence Causation and 

Amount of Damages 

Plaintiffs will demonstrate causation through, inter alia, documents and testimony from 

Brigham, its Board and Statoil, showing that the injury to Class members in the form of inadequate 

consideration was foreseeable and an intended consequence of the actions of defendants in 

structuring and agreeing to a sale of the Company. 

With the assistance of their expert, plaintiffs will use common proof to demonstrate injury to 

Class members and calculate total damages for the Class without the need to resort to information 

collected from individual Class members. The damages calculation will be based on, among other 

things, the actual fair value of Brigham, including the value of the Company's recent oil discoveries 

in the Williston Basin. Plaintiffs may show damages, either by demonstrating what Total or Chevron 

(or some other would-be purchaser) would have been willing to pay had it been provided true 

information about the value of Brigham and been treated fairly in the sales process, or by 

demonstrating that the Company was worth more than what was paid. Each shareholder would 

receive their pro rata share of the damages if plaintiffs are successful. 

DATED: September 12, 2012 

759959 1 

Respectfully submitted, 

ROBBINS GELLER RUDMAN 

&DOWDLLP 

RANDALL J. BARON 

DAVID T. WISSBROECKER 

STEVEN M. JODLOWSKI 

4.............__ __ -----~~.;t DAVID~T. WISSBROECKER 

- 8 -

736 736 
955

759959 1 

655 West Broadway, Suite 1900 

San Diego, CA 92101 

Telephone: 619/231-1058 

619/231-7423 (fax) 

ROBBINS GELLER RUDMAN 

&DOWDLLP 

SAMUEL H. RUDMAN 

MARKS. REICH 

MICHAEL G. CAPECI 

58 South Service Road, Suite 200 

Melville, NY 11747 

Telephone: 631/367-7100 

631/367-1173 (fax) 

Interim Class Counsel for Plaintiffs 

BOULETTE & GOLDEN LLP 

MICHAEL D. MARIN 

Texas Bar #00791174 

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 

8117 Preston Road, Suite 300 

Dallas, TX 75225 

Telephone: 214/706-9314 

214/706-9315 (fax) 

- 9 -

737 737 
956

ARMBURST & BROWN, PLLC 

MICHAEL BURNETT 

100 Congress A venue, Suite 1300 

Austin, TX 78702 

Telephone: 512/435-2300 

512/435-2360 (fax) 

ROBBINS UMEDA 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) 

WOLF HALDENSTEIN ADLER 

FREEMAN & HERZ, LLP 

GREGORY N. NESPOLE 

270 Madison Avenue 

New York, NY 10016 

Telephone: 212/545-4600 

212/545-4653 (fax) 

GOLDFARB LLP 

HAMILTON LINDLEY 

2501 North Harwood Street, Suite 1801 

Dallas, TX 75201 

Telephone: 214/583-2233 

214/583-2234 (fax) 

BRODSKY & SMITH, LLC 

EVAN J. SMITH 

MARC ACKERMAN 

Two Bala Plaza, Suite 602 

Bala Cynwyd, P A 19004 

Telephone: 610/667-6200 

610/667-9029 (fax) 

F ARUQI & F ARUQI, LLP 

SHANE T. ROWLEY 

369 Lexington A venue, 1Oth Floor 

NewYork,NY 10017-6531 

Telephone: 212/983-9330 

212/983-9331 (fax) - 10-

759959 1 

738 738 
957

759959 1 

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 

2424 N. Federal Highway, Suite 257 

Boca Raton, FL 33431 

Telephone: 561/394-3399 

561/394-3382 (fax) 

Additional Counsel for Plaintiffs 

- 11 -

739 739 
Appendix D 
305

NotiCi s:ont: Final ir.terlocuto, y None 

Disp " Parties: / 

Dlsp code: CVD I CLS ;7'--

Redact pgs: 

DC BK11327 PG689 

Judge )[KD Clerk rn v m 

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iliiiiiiiiiiii \\1 -o ====o 

CAUSE NO. D-1-GN-11-003205 

RAYMOND BOYTIM, Individually and on § 

Behalf of All Others Similarly Situated, § 

Plaintiff, 

vs. 

Brigham EXPLORATION COMPANY, BEN 

M. Brigham, DAVID T. Brigham, HAROLD 

D. CARTER, STEPHEN C. HURLEY, 

STEPHEN P. REYNOLDS, HOBART A. 

SMITH, SCOTT W. TINKER, STATOIL 

ASA, and FARGO ACQUISITION, INC., 

Defendants. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

TRAVIS COUNTY, TEXAS_-

201st JUDICIAL DISTRICT 

ORDER DENYING TEMPORARY INJUNCTION 

1. On this 22nd day of November, 2011 came on to be heard Motion for Temporary 

Injunction ("Motion") filed by Plaintiff Raymond Boytim. 

2. The Court having found that all prerequisites of law have been satisfied and that 

this Court has jurisdiction over the parties and the subject matter of this cause, and having 

considered the pleadings on file, the arguments of counsel, and the evidence offered, finds as 

follows. 

3. Plaintiff asks the Court to enjoin the close of the tender offer by Statoil until 

Brigham Exploration discloses a net asset value analysis ("NAV") created by Jefferies in June 

20 II (the "June 2011 NA V"). Plaintiff argues that Brigham Exploration's directors breached 

their fiduciary duty to the Brigham shareholders because they did not disclose the June 2011 

NAY in the Schedule 140-9, filed with the Securities and Exchange Commission and delivered 

to the Brigham shareholders. 

US 709961vl 

88 88 
306

DC BK11327 PG690 

4. The June 2011 NA V was created by Brigham Exploration's financial advisor, 

Jefferies, as marketing material to show potential buyers with more capital what could 

potentially be done with Brigham Exploration's assets. Brigham's CEO, Ben Brigham, testified 

that the June 2011 NAY is not a reliable indicator of Brigham Exploration's current value 

because Brigham Exploration lacks the capital to execute the model that is the basis for the June 

~..ti> 2011 NAY. The Brigham board of directors did not •It t the June 2011 NAY when it 

recommended that the Brigham Exploration shareholders accept the tender offer., Ralph Eads, a tA"-... 

.-/0 'Ill IUL~ b 

representative of Jefferies, also testified that the June 2011 NAY is unreliabkl. Jefferies did not 

rely on the June 20 11 NAY when it issued its fairness opinion in connection with the proposed 

tender offer. 

5. A temporary injunction may only be entered ifthe moving party demonstrates: (1) 

a probable right to the relief sought; (2) a probable, imminent, and irreparable injury in the 

absence of an injunction; and (3) that the balance of the equities favors the issuance of an 

injunction. See Butnaru v. Ford Motor Co., 84 S.W. 198, 204 (Tex. 2002). 

6. In order to demonstrate that he has a probable right to the relief sought, Plaintiff is 

required to show that the June 2011 NAY is likely to be material under Delaware Law. See 

Solomon v. Armstrong, 747 A.2d 1098, 1128 (Del. Ch. 1999), aff'd, 746 A.2d 277 (Del. 2000). 

In order to be considered material, the June 2011 must be reliable. Van de Walle v. Unimation, 

Inc., Civ. A. No. 7046, 1991 WL 29303, at *17 (Del. Ch. Mar. 7, 1991). "[Y]aluations intended 

solely as sales pitches" need not be disclosed because they are not "responsible estimates of a 

company's value." In re Pennaco, 787 A.2d 691, 713 (Del. Ch. 2001). 

7. Plaintiff has not satisfied its burden to demonstrate that he has a reasonable 

probability of success on the merits. Because the June 2011 NAY constitute marketing 

US 709961vl - 2 -

89 89 
307

DC BK11327 PG691 

materials, Plaintiff is unlikely to demonstrate that the June 2011 NA V is either material or 

reliable, and that it therefore should have been disclosed. 

8. Plaintiff has further failed to show that there will be irreparable injury if an 

injunction is not issued, and that the harm he will suffer absent an injunction is greater than the 

harm Defendants will suffer with an injunction. 

9. IT IS THEREFORE ORDERED that Plaintiff's Motion for Temporary Injunction 

is DENIED. 

SIGNED this the ~A day of :?/dl/~ ~/.2011 at_:_ o'clock a.m./p.m. 

US 709961vl - 3-

90 90 
Appendix E 
Rule 42. Class Actions, TX R RCP Rule 42

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(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as

representative parties on behalf of all only if (1) the class is so numerous that joinder of all members

is impracticable, (2) there are questions of law, or fact common to the class, (3) the claims or

defenses of the representative parties are typical of the claims or defenses of the class, and (4) the

representative parties will fairly and adequately protect the interests of the class.

(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites

of subdivision (a) are satisfied, and in addition:

(1) the prosecution of separate actions by or against individual members of the class would create

a risk of

(A) inconsistent or varying adjudications with respect to individual members of the class which

would establish incompatible standards of conduct for the party opposing the class, or

(B) adjudications with respect to individual members of the class which would as a practical matter

be dispositive of the interests of the other members not parties to the adjudications or substantially

impair or impede their ability to protect their interests; or

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the

class, thereby making appropriate final injunctive relief or corresponding declaratory relief with

respect to the class as a whole; or
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(3) the questions of law or fact common to the members of the class predominate over any

questions affecting only individual members, and a class action is superior to other available

methods for the fair and efficient adjudication of the controversy. The matters pertinent to these

issues include:

(A) the interest of members of the class in individually controlling the prosecution or defense of

separate actions;

(B) the extent and nature of any litigation concerning the controversy already commenced by or

against members of the class;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular

forum; and

(D) the difficulties likely to be encountered in the management of a class action.

(c) Determining by Order Whether to Certify a Class Action; Notice and Membership in

Class.

(1)(A) When a person sues or is sued as a representative of a class, the court must--at an early

practicable time--determine by order whether to certify the action as a class action.

(B) An order certifying a class action must define the class and the class claims, issues, or defenses,

and must appoint class counsel under Rule 42 (g).

(C) An order under Rule 42(c)(1) may be altered or amended before final judgment. The court

may order the naming of additional parties in order to insure the adequacy of representation.

(D) An order granting or denying certification under Rule 42(b)(3) must state:

(i) the elements of each claim or defense asserted in the pleadings;
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(ii) any issues of law or fact common to the class members;

(iii) any issues of law or fact affecting only individual class members;

(iv) the issues that will be the object of most of the efforts of the litigants and the court;

(v) other available methods of adjudication that exist for the controversy;

(vi) why the issues common to the members of the class do or do not predominate over individual

issues;

(vii) why a class action is or is not superior to other available methods for the fair and efficient

adjudication of the controversy; and

(viii) if a class is certified, how the class claims and any issues affecting only individual members,

raised by the claims or defenses asserted in the pleadings, will be tried in a manageable, time

efficient manner.

(2)(A) For any class certified under Rule 42(b)(1) or (2), the court may direct appropriate notice

to the class.

(B) For any class certified under Rule 42(b)(3), the court must direct to class members the best

notice practicable under the circumstances, including individual notice to all members who can

be identified through reasonable effort. The notice must concisely and clearly state in plain, easily

understood language:

(i) the nature of the action;

(ii) the definition of the class certified;

(iii) the class claims, issues, or defenses;
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(iv) that a class member may enter an appearance through counsel if the member so desires;

(v) that the court will exclude from the class any member who requests exclusion, stating when

and how members may elect to be excluded; and

(vi) the binding effect of a class judgment on class members under Rule 42 (c)(3).

(3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2),

whether or not favorable to the class, shall include and describe those whom the court finds to be

members of the class. The judgment in an action maintained as a class action under subdivision

(b)(3), whether or not favorable to the class, shall include and specify or describe those to whom

the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and

whom the court finds to be members of the class.

(d) Actions Conducted Partially as Class Actions; Multiple Classes and Subclasses. When

appropriate (1) an action may be brought or maintained as a class action with respect to particular

issues, or (2) a class may be divided into subclasses and each subclass treated as a class, and the

provisions of this rule shall then be construed and applied accordingly.

(e) Settlement, Dismissal or Compromise.

(1)(A) The court must approve any settlement, dismissal, or compromise of the claims, issues, or

defenses of a certified class.

(B) Notice of the material terms of the proposed settlement, dismissal or compromise, together

with an explanation of when and how the members may elect to be excluded from the class, shall

be given to all members in such manner as the court directs.

(C) The court may approve a settlement, dismissal, or compromise that would bind class members

only after a hearing and on finding that the settlement, dismissal, or compromise is fair, reasonable,

and adequate.
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(2) The parties seeking approval of a settlement, dismissal, or compromise under Rule 42(e)(1)

must file a statement identifying any agreement made in connection with the proposed settlement,

dismissal, or compromise.

(3) In an action previously certified as a class action under Rule 42(b)(3), the court may not approve

a settlement unless it affords a new opportunity to request exclusion to individual class members

who had an earlier opportunity to request exclusion but did not do so.

(4)(A) Any class member may object to a proposed settlement, dismissal, or compromise that

requires court approval under Rule 42(e)(1)(A).

(B) An objection made under Rule 42(e)(4)(A) may be withdrawn only with the court's approval.

(f) Discovery. Unnamed members of a class action are not to be considered as parties for purposes

of discovery.

(g) Class Counsel.

(1) Appointing Class Counsel.

(A) Unless a statute provides otherwise, a court that certifies a class must appoint class counsel.

(B) An attorney appointed to serve as class counsel must fairly and adequately represent the

interests of the class.

(C) In appointing class counsel, the court

(i) must consider:

the work counsel has done in identifying or investigating potential claims in the action;
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counsel's experience in handling class actions, other complex litigation, and claims of the type

asserted in the action;

counsel's knowledge of the applicable law; and

the resources counsel will commit to representing the class;

(ii) may consider any other matter pertinent to counsel's ability to fairly and adequately represent

the interests of the class;

(iii) may direct potential class counsel to provide information on any subject pertinent to the

appointment and to propose terms for attorney fees and nontaxable costs; and

(iv) may make further orders in connection with the appointment.

(2) Appointment Procedure.

(A) The court may designate interim counsel to act on behalf of the putative class before

determining whether to certify the action as a class action.

(B) When there is one applicant for appointment as class counsel, the court may appoint that

applicant only if the applicant is adequate under Rule 42(g)(1)(B) and (C). If more than one

adequate applicant seeks appointment as class counsel, the court must appoint the applicant or

applicants best able to represent the interests of the class.

(C) The order appointing class counsel may include provisions about the award of attorney fees

or nontaxable costs under Rule 42(h) and (i).

(h) Procedure for determining Attorney Fees Award. In an action certified as a class action, the

court may award attorney fees in accordance with subdivision (i) and nontaxable costs authorized

by law or by agreement of the parties as follows:
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(1) Motion for Award of Attorney Fees. A claim for an award of attorney fees and nontaxable costs

must be made by motion, subject to the provisions of this subdivision, at a time set by the court.

Notice of the motion must be served on all parties and, for motions by class counsel, directed to

class members in a reasonable manner.

(2) Objections to Motion. A class member, or a party from whom payment is sought, may object

to the motion.

(3) Hearing and Findings. The court must hold a hearing in open court and must find the facts

and state its conclusions of law on the motion. The court must state its findings and conclusions

in writing or orally on the record.

(i) Attorney's fees award.

(1) In awarding attorney fees, the court must first determine a lodestar figure by multiplying the

number of hours reasonably worked times a reasonable hourly rate. The attorney fees award must

be in the range of 25% to 400% of the lodestar figure. In making these determinations, the court

must consider the factors specified in Rule 1.04(b), TEX. DISCIPLINARY R. PROF. CONDUCT.

(2) If any portion of the benefits recovered for the class are in the form of coupons or other noncash

common benefits, the attorney fees awarded in the action must be in cash and noncash amounts

in the same proportion as the recovery for the class.

(j) Effective date. Rule 42(i) applies only in actions filed after September 1, 2003.

Credits

Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of Sept. 20, 1941, eff. Dec. 31, 1941; May

9, 1977, eff. Sept. 1, 1977; Dec. 5, 1983, eff. April 1, 1984; Oct. 9, 2003, eff. Jan. 1, 2004.

Vernon's Ann. Texas Rules Civ. Proc., Rule 42, TX R RCP Rule 42

Current with amendments received through 6/1/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.