Micholle v. Ophthotech Corporation et al
| Frank Micholle |
| Ophthotech Corporation, David R. Guyer, Michael G. Atieh, Glenn P. Sblendorio and Samir Patel |
| 1:2017cv00210 |
| January 11, 2017 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of State |
| Vernon S. Broderick |
| Securities/Commodities/Exchanges |
| 15 U.S.C. ยง 78 |
| None |
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Filing
156
ORDER AWARDING ATTORNEYS' FEES AND EXPENSES AND AN AWARD TO LEAD PLAINTIFF PURSUANT TO 15 U.S.C. §78u-4(a)(4): IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that: 1. This Order incorporates by reference the definitions in the Stipulation o f Settlement dated September 8, 2021 (the "Stipulation"), and all capitalized terms used, but not defined herein, shall have the same meanings as set forth in the Stipulation. 2. This Court has jurisdiction over the subject matter of this a pplication and all matters relating thereto, including all Members of the Class who have not timely and validly requested exclusion. 3. Notice of Lead Counsel's Fee Motion was given to all Class Members who could be located with reasonable effor t. The form and method of notifying the Class of the Fee Motion met the requirements of Rule 23 of the Federal Rules of Civil Procedure and the Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act of 1995 (15 U. S.C. §78u-4(a)(7)), due process, and any other applicable law, constituted the best notice practicable under the circumstances, and constituted due and sufficient notice to all persons and entities entitled thereto. 4. The Court hereby awards Le ad Counsel attorneys' fees of 30% of the Settlement Amount, plus expenses in the amount of $265,231.29, together with the interest earned on both amounts for the same time period and at the same rate as that earned on the Settlement Fu nd until paid. The Court finds that the amount of fees awarded is fair, reasonable, and appropriate under the "percentage-of-recovery" method. 5. The awarded attorneys' fees and expenses and interest earned thereon, shall be paid to Le ad Counsel immediately upon execution of the Final Judgment and this Order and subject to the terms, conditions, and obligations of the Stipulation, and in particular, 6.2 thereof, which terms, conditions, and obligations are incorporated herein. 6. In making this award of fees and expenses to Lead Counsel, the Court has considered and found that: (a) the Settlement has created a fund of $29,000,000 in cash that is already on deposit, and numerous Class Members who submit, or have submitted , valid Proof of Claim and Release forms will benefit from the Settlement created by Lead Counsel; (b) at least 55,817 copies of the Notice were disseminated to potential Class Members indicating that Lead Counsel would move for attorneys' fees in an amount not to exceed 30% of the Settlement Amount and for expenses in an amount not to exceed $500,000, plus interest on both amounts, and no objections to the fees or expenses were filed by Class Members; (c) Lead Counsel pursued the Litigation and achieved the Settlement with skill, perseverance, and diligent advocacy; (d) Lead Counsel expended substantial time and effort pursuing the Litigation on behalf of the Class; (e) Lead Counsel pursued the Litigation entirely on a conti ngent basis; (f) the Litigation involves complex factual and legal issues and, in the absence of settlement, would involve lengthy proceedings whose resolution would be uncertain; (g) had Lead Counsel not achieved the Settlement, there would remain a significant risk that the Class may have recovered less or nothing from the Defendants; (h) Lead Counsel represented that it has devoted over 9,800 hours to the Litigation, with a lodestar value of $6,209,956.00, to achieve the Settlement; (i) public policy concerns favor the award of reasonable attorneys' fees and expenses in securities class action litigation; and (j) the attorneys' fees and expenses awarded are fair and reasonable. 7. Pursuant to 15 U.S.C. §78u-4(a)(4), t he Court awards $5,022.80 to Lead Plaintiff Sheet Metal Workers' Pension Plan of Southern California, Arizona and Nevada for the time it spent directly related to its representation of the Class. 8. Any appeal or any challenge affecting thi s Court's approval regarding the Fee Motion shall in no way disturb or affect the finality of the Judgment entered with respect to the Settlement. 9. In the event that the Settlement is terminated or does not become Final or the Effective Date d oes not occur in accordance with the terms of the Stipulation, this Order shall be rendered null and void to the extent provided in the Stipulation and shall be vacated in accordance with the Stipulation. SO ORDERED. (Signed by Judge Vernon S. Broderick on 9/16/2022) (kv) Transmission to Finance Unit (Cashiers) for processing. (Main Document 156 replaced on 9/16/2022) (kv).
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Filing
137
ORDER GRANTING PRELIMINARY APPROVAL PURSUANT TO FED. R. CIV. P. 23(E)(1) AND PERMITTING NOTICE TO THE CLASS: IT IS HEREBY ORDERED: 1. The Court hereby preliminarily approves the Settlement set forth in the Stipulation, subject to further considerat ion at the Settlement Hearing described below. 2. Pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure, and for purposed of this Settlement only, the Litigation is hereby certified as a class action on behalf of all Persons who purchased or acquired Ophthotech common stock during the period between March 2, 2015 through December 12, 2016, inclusive. Excluded from the Class are: (i) Defendants; (ii) members of the immediate family of each Defendant; (iii) any Person who was an officer or director of Ophthotech during the Class Period; (iv) any entity in which any Defendant has or had a controlling interest; (v) any corporate parent and/or affiliate of Ophthotech; and (vi) the legal representatives, heirs, successors-in- interest, or assigns of any such excluded Person. Also excluded from the Class is any Person who would otherwise be a Member of the Class but who validly and timely requests exclusion in accordance with the requirements set by the Court. 3. The Court finds, for the purpose of the Settlement only, that the prerequisites for a class action under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure have been satisfied in that: (a) the number of Class Members is so numerous that joinder of all members is impracticable; (b) there are questions of law and fact common to the Class; (c) the claims of Lead Plaintiff are typical of the claims of the Class it seeks to represent; (d) Lead Plaintiff and Lead Counsel have and will fairly and ad equately represent the interests of the Class; (e) the questions of law and fact common to Members of the Class predominate over any questions affecting only - 3 - individual Class Members; and (f) a class action is superior to other methods for the fair and efficient adjudication of the Litigation. A hearing shall be held before this Court on September 8, 2022, at 2 p.m. (the "Settlement Hearing"), at the United States District Court for the Southern District of New York, Thurgood Ma rshall United States Courthouse, 40 Foley Square, New York, NY 10007, to: as further set forth herein. Not later than April 7, 2022 (the "Notice Date") (a date twenty-one (21) calendar days after entry by the Court of this Order), the Claim s Administrator shall cause a copy of the Notice and Proof of Claim and Release, substantially in the forms annexed hereto as Exhibits 1 and 2, to be mailed by First-Class Mail to all Class Members who can be identified with reasonable effort and to be posted on the case-designated website, www.OPHSecuritiesSettlement.com. For all Notices returned as undeliverable, the Claims Administrator shall use its best efforts to locate updated addresses. Not later than April 14, 2022 (a date seven (7) cal endar days after the Notice Date), the Claims Administrator shall cause the Summary Notice to be published once in The Wall Street Journal, and once over a national newswire service. Any Member of the Class who or which does not request exclusion fro m the Class may appear at the Settlement Hearing and object if he, she, or it has any reason why the proposed Settlement of the Litigation should not be approved as fair, reasonable and adequate, why a judgment should not be entered thereon, why the Plan of Allocation should not be approved, or why attorneys fees, together with costs, charges and expenses should not be awarded to Lead Counsel or to Lead Plaintiff; provided that any such Class Member files objections and copies of any papers and briefs with the Clerk of the United States District Court for the Southern District of New York and mails copies thereof by first-class mail to Robbins Geller Rudman & Dowd LLP, Ellen Gusikoff Stewart, 655 West Broadway, Suite 1900, San Diego, CA 921 01; Wilmer Cutler Pickering Hale and Dorr LLP, Michael G. Bongiorno, 7 World Trade Center, 250 Greenwich Street, New York, NY 10007; and to Morgan, Lewis & Bockius LLP, Jordan Hershman, One Federal Street, Boston MA 02110, no later than August 1, 202 2. All papers in support of the Settlement, Plan of Allocation, and any application by Lead Counsel for an award of attorneys' fees, costs, charges and expenses shall be filed and served no later than August 4, 2022 (a date that is thirty-five ( 35) calendar days prior to the Settlement Hearing), and any reply papers shall be filed and served no later than September 1, 2022, 2022 (a date that is seven (7) calendar days prior to the Settlement Hearing). (as further set forth herein). IT IS SO ORDERED. (Signed by Judge Vernon S. Broderick on 3/17/2022) (kv)
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Filing
135
OPINION AND ORDER re: (101 in 1:17-cv-00210-VSB-GWG) MOTION to Certify Class Notice of Lead Plaintiff's Motion For Class Certification. filed by Sheet Metal Workers' Pension Plan of Southern California, Arizona and Nevada, (127 in 1:17-cv-00210-VSB-GWG) MOTION for Settlement for Preliminary Approval of Class Action Settlement, Certification of the Class, and Approval of Notice to the Class. filed by Sheet Metal Workers' Pension Plan of Southern Califo rnia, Arizona and Nevada. For the foregoing reasons, Plaintiffs' unopposed motion, (Doc. 129), is GRANTED. The parties submitted a proposed order setting forth the settlement procedure and schedule, (Doc. 129 Ex. A); however, because this motio n has been pending for a while, the schedule in the proposed order has become out of date. Accordingly, the parties shall file an updated proposed order on or before March 25, 2022. Further, the previous unopposed motion for class certification, (Doc . 101), is hereby DENIED without prejudice to be refiled should I later deny final approval to the settlement. The Clerk of Court is respectfully directed to close the open motions on the docket. SO ORDERED. (Signed by Judge Vernon S. Broderick on 3/14/2022) Filed In Associated Cases: 1:17-cv-00210-VSB-GWG, 1:17-cv-01758-VSB (kv)
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Filing
117
ORDER terminating 114 Letter Motion for Discovery. 1. The above-referenced action has been referred to the undersigned for general pre-trial purposes. See 28 U.S.C. § 636(b)(1)(A). All pre-trial applications, including those relating to scheduling and discovery, shall be made to the undersigned (except motions to dismiss or for judgment on the pleadings, for injunctive relief, for summary judgment, or for class certification). All applications must comply with this Court's Individual Practices, which are available through the Clerk's Office or at: https://nysd.uscourts.gov/hon-gabriel-w-gorenstein 2. All discovery (as well as requests for admissions) must be initiated in time to be concluded by the deadline for all discovery. 3. Discovery motions -- that is, any application pursuant to Rules 26 through 37 or 45 -- not only must comply with para. 2.A. of the Court's Individual Practices but also must be made promptly after the cause for such a moti on arises. In addition, absent extraordinary circumstances no such application will be considered if made later than 30 days prior to the close of discovery. Untimely applications will be denied. 4. Any application for an extension of the time lim itations with respect to any deadlines in this matter must be made as soon as the cause for the extension becomes known to the party making the application and must be made in accordance with para. 1.E of the Court's Individual Practices. The application must state the position of all other parties on the proposed extension and must show good cause therefor not foreseeable as of the date of this Order. "Good cause" as used in this paragraph does not include circumstances wit hin the control of counsel or the party. Any application not in compliance with this paragraph will be denied. Failure to comply with the terms of this Order may also result in sanctions. 5. With respect to the discovery dispute in Docket # 114 re lating to the claims of privilege, the Court's pre-motion conference requirement is waived. That being said, the Court reminds plaintiff that before making any motion, it has the responsibility to seek all relevant facts from defendants that u nderlie their claim to privilege (for example, the reason the document was generated, who it was shared with, and the reasons it was shared with those persons). The defendants obviously must cooperate with these efforts. In the event no agreement is reached as to any documents or category of documents, plaintiff's motion to compel shall be filed at its earliest convenience following the conclusion of the discussions. Briefing shall be in accordance with paragraph 2.B of the Court 9;s Individual Practices. The defendants are reminded that ultimately they have the burden of sustaining the privilege and that any factual statements in their brief must be supported by affidavits from individuals with personal knowledge. Thus, a brief supporting a claim of privilege is normally accompanied by one or more affidavits that detail the circumstances of the purportedly privileged communications, including the roles of all relevant individuals. Before briefing occurs, the parties are strongly encouraged to work together to group documents into categories so that the claim of privilege may be more easily assessed. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 3/19/2021) (rj)
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Filing
99
STIPULATED PROTECTIVE ORDER RESTRICTING DISCLOSURE OF CONFIDENTIAL INFORMATION...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Vernon S. Broderick on 3/11/2020) (mro)
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Filing
89
OPINION & ORDER re: 69 MOTION to Dismiss the Consolidated Amended Complaint, filed by Ophthotech Corporation, Samir Patel, David R. Guyer, 75 MOTION to Strike PLAINTIFF'S NOTICE OF MOTION TO STRIKE EXHIBITS SUBMITT ED WITH DEFENDANTS MOTION TO DISMISS filed by Sheet Metal Workers' Pension Plan of Southern California, Arizona and Nevada.For the foregoing reasons, Plaintiff's motion to strike is GRANTED IN PART and DENIED IN PART, and Defendants' motion to dismiss the CAC is DENIED. The Clerk of Court is respectfully directed to terminate the motions pending at Docket Entries 69 and 75. (Signed by Judge Vernon S. Broderick on 9/18/2019) (mro)
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Filing
56
OPINION AND ORDER. The motions for consolidation are GRANTED based on the similarity of the Ophthotech Actions. Because I find that Pension Plan is the presumptive lead plaintiff and no other movants have rebutted that presumption, the Pension Plan&# 039;s motion for appointment as lead plaintiff and for approval of lead counsel is GRANTED. The Pension Plan has a substantial financial interest and meets the typicality and adequacy requirements of Rule 23. The remaining motions from Jenkins, the K irk Group, the Bristol Group, Oppenheim, Magiera, Ferber, and the Wang Group for appointment as lead plaintiff are DENIED. The Clerk of Court is respectfully requested to terminate the pending motions. (Docs. 9, 12, 15, 18, 21, 28, 30, 35.) Pension P lan is directed to file an amended consolidated complaint no later than thirty (30) days after the date of issuance of this Opinion & Order. Defendants are directed to answer or otherwise respond to the amended consolidated complaint no later than th irty (30) days after Pension Plan serves the amended consolidated complaint. SO ORDERED. re: (30 in 1:17-cv-00210-VSB) MOTION to Consolidate Cases 1:17-cv-00210; 1:17-cv-01758 . MOTION to Appoint Sheet Metal Workers' Pension Plan of Southern California, Arizona and Nevada to serve as lead plaintiff(s) . MOTION to Appoint Counsel filed by Sheet Metal Workers' Pension Plan of Southern California, Arizona and Nevada, (35 in 1:17-cv-00210-VSB) AMENDED MOTIO N to Appoint Brian Ferber to serve as lead plaintiff(s) filed by Brian Ferber, (21 in 1:17-cv-00210-VSB) MOTION to Appoint Frank Magiera to serve as lead plaintiff(s) . MOTION to Appoint Counsel Approval of Lead Counsel filed by Frank Magiera, (15 in 1:17-cv-00210-VSB) MOTION to Appoint City of Bristol Pension Fund, Brandon Suedekum, Ashok Dalal, Sergio Albonico, and Mayur Shah (OPHT Investor Group) to serve as lead plaintiff(s) filed by Brandon Suedek um, Sergio Albonico, Mayur Shah, Ashok Dalal, City of Bristol Pension Fund, (18 in 1:17-cv-00210-VSB) MOTION to Consolidate Cases 1:17-cv-00210-VSB; 1:17-cv-01758-VSB . MOTION to Appoint Oppenheim Asset Management Services S.a r. l. to serve as lead plaintiff(s) . MOTION to Appoint Counsel filed by Oppenheim Asset Management Services S.a r.l., (28 in 1:17-cv-00210-VSB) MOTION to Appoint XING WANG AND GENGHONG ZHAO to serve as lead plaintiff(s) NOTICE OF MOTION AND MOTION OF XING WANG AND GENGHONG ZHAO FOR CONSOLIDATION, APPOINTMENT AS LEAD PLAINTIFFS, AND APPROVAL OF COUNSEL filed by Xing Wang, Genghong Zhao, (9 in 1:17-cv-00210-VSB) MOTION to Appoint David Jenkins to serve as lead pla intiff(s) , Consolidate, and Approve Selection of Lead and Liaison Counsel filed by David Jenkins, (12 in 1:17-cv-00210-VSB) MOTION to Appoint Counsel. MOTION to Appoint Colin Kirk, Dora Jordan, and Sonia Carrero-Pomeroy to serve as lead plaintiff(s). MOTION to Consolidate Cases 1:17-cv-00210-VSB and 1:17-cv-01758-VSB filed by Dora Jordan, Colin Kirk, Sonia Carrero-Pomeroy. (Signed by Judge Vernon S. Broderick on 3/13/2018) Filed In Associated Cases: 1:17-cv-00210-VSB, 1:17-cv-01758-VSB. (rjm)
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