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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
No. 04-cv-9866 (LTS)(HBP) IN RE PFIZER INC. SECURITIES LITIGATION ECF CASE
DECLARATION OF CHARLES T. CALIENDO IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND PLAN OF ALLOCATION, AND MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF EXPENSES
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TABLE OF CONTENTS
I. INTRODUCTION ...... 1
A. Background ...... 3
B. Twelve Years Of Hard-Fought Litigation...... 4
C. The Litigation Risks ...... 7
D. The Settlement Is An Excellent Result Which Is Fully-Supported By A PSLRA-Appointed Institutional Investor ...... 10
E. The Fee and Expense Reimbursement Requests ...... 11
F. Conclusion ...... 13
II. FACTUAL AND PROCEDURAL BACKGROUND OF THE LITIGATION ...... 13
A. The Appointment of Lead Plaintiff and Lead Counsel ...... 13
B. The Filing of the Consolidated Class Action Complaint and Dismissal And Reconsideration Motions ...... 13
C. The Daubert Hearing On Medical Issues ...... 15
D. Class Certification ...... 16
E. Court Ordered Mediation ...... 17
F. The Discovery Process ...... 18
1. Written Discovery And Document Analysis ...... 18
2. Creation of Extensive Study Chronologies ...... 19
3. Taking Depositions ...... 21
a. Pfizer and Third-Party Fact Witnesses ...... 21
b. Experts ...... 21
4. Defendants’ Discovery of Plaintiffs ...... 22
G. Successful Motion For Leave To File An Amended Complaint And Denial of A Second Motion For Reconsideration ...... 23
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H. Plaintiffs Largely Defeat Defendants’ First Motion For Summary Judgment ...... 24
I. Trial Preparation ...... 26
1. Trial Exhibits and Refinement of the Extensive Drug Study Chronologies ...... 26
2. Deposition Designations ...... 27
3. Mock Trial and Creation Of Jury-Friendly Demonstratives ...... 28
4. Daubert Motions And Other Motions In Limine ...... 28
5. Motion for Judgment on the Pleadings ...... 29
6. Jury Instructions, Verdict Form, Voir Dire and the Pre-Trial Order ...... 30
J. The Exclusion of Plaintiffs’ Loss Causation and Damages Expert ...... 31
K. The Appeal ...... 32
L. Continued Trial Preparation ...... 33
III. SETTLEMENT NEGOTIATIONS ...... 35
IV. TERMS OF THE SETTLEMeNT ...... 36
V. THE NOTICE PROGRAM ...... 38
VI. THE PLAN OF ALLOCATION ...... 42
VII. DAMAGES ...... 44
VIII. THE GRINNELL FACTORS SUPPORT APPROVAL OF THE SETTLEMENT ...... 47
A. The Complexity, Likely Duration And Expense of the Litigation...... 48
1. Complexity ...... 48
2. Likely Duration ...... 54
3. Expense ...... 57
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B. The Reaction of the Class to the Settlement ...... 58
C. The Stage of the Proceedings And The Amount of Discovery Completed ...... 59
D. The Risks of Establishing Liability...... 60
1. Loss Causation ...... 60
2. Pfizer’s Assertion That Certain Concealed Studies Were Actually Revealed to the Market During the Class Period ...... 63
3. Potential Exclusion of Key Evidence on Motions In Limine ...... 63
4. Admission of Potentially Exculpatory Evidence If Plaintiffs’ Key Motions In Limine Were Denied ...... 64
5. The Difficulty of Proving Scienter ...... 65
a. Dr. McKinnell’s “Interesting Problem With Bextra” Email ...... 65
b. The FDA’s Public Statements ...... 66
E. The Risks of Establishing Damages ...... 67
F. The Risks Of Maintaining a Class Action Through Trial ...... 67
G. The Ability of Defendants to Withstand a Greater Judgment ...... 68
H. The Range of Reasonableness of the Settlement Fund In Light Of the Best Possible Recovery And In Light of All the Attendant Risks of Litigation ...... 68
IX. THE FEE PETITION ...... 69
A. The Time and Labor Expended By Counsel ...... 71
B. The Magnitude and Complexities of the Litigation ...... 79
C. The Risk of the Litigation ...... 80
D. The Quality of the Representation ...... 81
E. The Fee Requested In Relation to the Settlement ...... 84
F. Public Policy Considerations ...... 85
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X. THE REQUEST FOR EXPENSE REIMBURSEMENT ...... 86
XI. PLAINTIFFS’ REQUEST FOR EXPENSE REIMBURSEMENT PURSUANT TO 15 U.S.C. § 78u-4(a)(4) ...... 88
XII. CONCLUSION ...... 90
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TABLE OF EXHIBITS
EX. DESCRIPTION
A Article: Laarni T. Bulan, Ellen M. Ryan & Laura E. Simmons, Securities Class Action Settlements: 2015 Review and Analysis (Cornerstone Research 2016) B Article: Svetlana Starykh and Stefan Boettrich, Recent Trends in Securities Class Action Litigation: 2015 Full-Year Review (National Economics Research Associates Jan. 2016) C Declaration of Michael A. Keable In Support of Plan of Allocation (Plaintiffs’ Damages Consultant) D Affidavit of Angela Ferrante of Garden City Group, LLC (Settlement Administrator) E Declaration of Roy A. Mongrue, Jr. of Teachers’ Retirement System of Louisiana (Lead Plaintiff and Class Representative) F Declaration of Christine Fleckles (Class Representative) G Declaration of Julie Perusse (Class Representative) H Declaration of Alden B. Chace (Class Representative) I Declaration of Mary S. Thomas of Grant & Eisenhofer P.A. (Lead Counsel) J Declaration of David Kessler of Kessler Topaz Meltzer & Check, LLP (Additional Plaintiffs’ Counsel) K Declaration of Christopher A. Seeger of Seeger Weiss, LLP (Additional Plaintiffs’ Counsel) L Declaration of Gregory M. Utter of Keating Muething & Klekamp PLL (Additional Plaintiffs’ Counsel) M Declaration of Joshua Dubin, Esq. of Joshua E. Dubin, Esq., P.A. (Additional Plaintiffs’ Counsel) N Declaration of Gregory P. Joseph of Joseph Hage Aronson LLC (Additional Plaintiffs’ Counsel) O Declaration of Jonathan S. Massey of Massey & Gail LLP (Additional Plaintiffs’ Counsel)
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CHARLES T. CALIENDO declares under penalty of perjury, pursuant to 28 U.S.C. §
1746, that the following is true and correct:
1. I have been a member of the bar of this Court for 20 years and am a
Director at Grant & Eisenhofer P.A. (“G&E”),1 Lead Counsel for the Court-certified Class. I submit this declaration in support of: (i) final approval of the proposed settlement of this litigation consisting of $486,000,000 in cash plus interest accruing on the Settlement Fund (the
“Settlement”); (ii) approval of the Plan of Allocation of the net proceeds of the Settlement, after deduction of all taxes, approved costs, fees and expenses; (iii) an award of attorneys’ fees of 28% of the Settlement Fund to Plaintiffs’ Counsel (the “Fee Request”); (iv) reimbursement of
$20,004,879.33 in litigation expenses that were incurred by Plaintiffs’ Counsel to prosecute this action (“Expense Reimbursement Request”); and (v) an award, pursuant to 15 U.S.C. § 78u-
4(a)(4), to the Class Representatives in an aggregate amount of $21,515 to compensate them for their reasonable costs and expenses directly relating to their representation of the Class (“Class
Representative Expense Request”).
2. I have actively participated in the prosecution of this Action and have personal knowledge of all material matters related to it and the facts set forth in this declaration.
I. INTRODUCTION
3. The $486,000,000 cash settlement, which is being paid by or on behalf of defendants Pfizer Inc. (“Pfizer”), Henry A. McKinnell, Ph.D. (Pfizer’s former Chief Executive
Officer), Karen L. Katen (Pfizer’s former President of Global Pharmaceuticals), Joseph M.
1 Where an initial capitalized term is not otherwise defined herein, it shall have the meaning stated in the Stipulation and Agreement of Settlement (see ECF No. 700, Ex. 1) (the “Settlement Agreement”). “Plaintiffs” or “Class Representatives” refers to the Court-appointed lead plaintiff Teachers’ Retirement System of Louisiana (“Lead Plaintiff” or “TRSL”) and additional Court- appointed class representatives Christine Fleckles, Julie Perusse and Alden B. Chace.
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Feczko, MD (Pfizer’s former Chief Medical Officer) and Gail Cawkwell, MD, Ph.D. (a former
Pfizer medical officer) (collectively, “Defendants”),2 represents a significant recovery for the
Class and, to the best of my knowledge, one of the largest securities fraud class action recoveries against a pharmaceutical company in history.
4. Plaintiffs’ damages consultant, Michael A. Keable, Executive Vice
President of Compass Lexecon, estimates that maximum aggregate damages in this Action— assuming Plaintiffs were to prevail on every single liability issue after a trial on the merits—are
$5.37 billion based on an estimated 3.67 billion damaged shares purchased during the Class
Period. See Declaration of Michael A. Keable In Support of Plan of Allocation dated October
27, 2016 (“Second Keable Decl.”) submitted herewith as Exhibit C, ¶8; see also Declaration of
Michael A. Keable dated September 13, 2016 submitted in connection with preliminary approval
of the Settlement (“First Keable Decl.”), ECF No. 702-1, ¶2. The proposed Settlement’s
recovery of $486 million represents approximately 9% of these maximum aggregate damages.
Notably, for years 2006-2015, median securities class action settlements as a percentage of
estimated losses were only 0.8% to 1% for cases, like this one, with estimated losses of over $5
billion.3 As discussed further below (see infra § VII, however, the $486,000,000 Settlement also
2 As used herein, the term “Individual Defendants” refers collectively to Dr. McKinnell, Ms. Katen, Dr. Feczko, Dr. Cawkwell and Dr. John L. LaMattina (former President of Pfizer Global Research and Development), who was dismissed with prejudice from the case on May 13, 2014, ECF No. 657, and was no longer a defendant at the time of the Settlement. 3 See Laarni T. Bulan, Ellen M. Ryan & Laura E. Simmons, Securities Class Action Settlements: 2015 Review and Analysis, at 9 (Cornerstone Research 2016) (hereafter, “Laarni Article”), attached hereto as Exhibit A; see also Svetlana Starykh and Stefan Boettrich, Recent Trends in Securities Class Action Litigation: 2015 Full-Year Review (National Economics Research Associates Jan. 2016) (hereafter, “Starykh Article”), at 33, attached hereto as Exhibit B (finding that median securities settlements between 1996 and 2015 recovered 1% where losses were between $5 billion and $10 billion).
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represents a significantly higher percentage of likely recoverable damages because of the
enormous litigation risks that threatened to severely limit recoverable damages if the case were
to proceed to trial. Consequently, it is respectfully submitted that the Settlement proposed
here—reached after the Action was dismissed in its entirety at summary judgment and
resurrected on appeal—is an excellent result for the Class and merits final approval.
A. BACKGROUND
5. As the Court is aware, the drugs at issue in this litigation—Celebrex and
Bextra—are so-called “Cox-2” arthritis drugs that Plaintiffs alleged were associated with serious
cardiovascular (“CV”) risks, evidence of which Defendants began to hide at least as early as
1999 in order to keep Pfizer’s stock price artificially inflated. ECF No. 361, ¶¶1-5. Pfizer
initially “co-promoted” the drugs in partnership with G.D. Searle & Co. (“Searle”) and later with
Searle’s successor-in-interest, Pharmacia Corporation (“Pharmacia”), which merged with a
Pfizer subsidiary in 2003. Id., ¶¶3, 28. The Co-Promotion partnership was known as the “Cox-2
Alliance.” Id., ¶236. Pfizer steadfastly denied, often in joint statements with Searle/Pharmacia,
that there was any evidence of increased CV risks with the drugs. Id., ¶¶348-473. Plaintiffs
alleged that: (i) these statements were materially false or misleading because Pfizer was hiding
evidence of increased CV risk in numerous drug studies Pfizer and its Co-Promotion partner had
conducted prior to and during the Class Period (October 31, 2000 through October 19, 2005); (ii)
the true heart risks with Bextra started to be revealed by Pfizer in October 2004 only because
third parties threatened to expose a drug study showing increased CV risk for Bextra that Pfizer
was hiding from the public; and (iii) Pfizer’s stock price dropped substantially when the study
was revealed (and thereafter), and Bextra was ultimately removed from the market. See, e.g., id.
¶¶5, 255-296, 348-473.
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6. After Bextra’s true CV risks were revealed, however, Pfizer continued to deny that it had seen any evidence of increased CV risk for Celebrex. ECF No. 361, ¶288.
Plaintiffs alleged, inter alia, that these continued denials were also designed to, and did, keep
Pfizer’s stock price artificially inflated. See id. In December 2004, Pfizer was forced to admit that Celebrex also was associated with increased CV risk and its stock price plummeted once again. Id., ¶291. As with the Bextra-related price declines, Pfizer’s stock price did not plummet because Pfizer voluntarily disclosed the evidence of increased CV risk with Celebrex it had, for years, been hiding. See id. Rather, Pfizer was forced to admit the increased CV risk with
Celebrex because a third-party stopped a drug study it was conducting due to increased CV risk for study patients taking Celebrex, and was going to reveal it publically. Id. Only then did
Pfizer tell investors that Celebrex was associated with increased CV risk. Id. Then, in early
2005, Pfizer quietly began to acknowledge that it had been in possession of drug studies showing
“signals” of increased CV risk for Celebrex all along. See, e.g., id. ¶¶304-321.
B. TWELVE YEARS OF HARD-FOUGHT LITIGATION
7. Plaintiffs’ losses caused by Defendants’ alleged conduct described above occurred twelve years ago. Since then, Plaintiffs have been battling with Defendants and their team of as many as eleven highly-respected law firms (see infra § I.E) to recover losses Class
Members suffered as a result of the alleged fraud. In a litigation involving esoteric medical issues not usually seen in a securities fraud case, Plaintiffs prepared an incredibly complex case for trial to put the Class in a good position to prove Defendants’ alleged violations of Section
10(b) of the Securities Exchange Act of 1934 (“Exchange Act”), and Rule 10b-5 promulgated thereunder, and Sections 20(a) and 20A of the Exchange Act. Ultimately, Plaintiffs were able to achieve the Settlement only after recovering from a blow that is emblematic of the extreme risks
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in litigating securities class actions—the exclusion of Plaintiffs’ loss causation and damages expert on a Daubert4 motion that resulted in dismissal of the Action on the eve of trial.
8. Prior to the exclusion of Plaintiffs’ loss causation and damages expert,
Plaintiffs’ Counsel had, inter alia:
(a) conducted an extensive investigation into the Class’s claims, including review of voluminous publicly available information regarding Pfizer, Searle and Pharmacia;
(b) conducted a deep dive into medical and CV literature and academic literature on bio-statistical and epidemiological analyses involving drugs;
(c) drafted a consolidated class action complaint;
(d) successfully opposed Defendants’ motion to dismiss and a motion for reconsideration of the dismissal;
(e) prepared for and largely won a Daubert challenge of Plaintiffs’ medical and statistical experts, which was undertaken at Defendants’ request in an unusually early stage of the case and involved (i) the review of millions of pages of documents produced in a products liability case involving Celebrex and Bextra filed before this Action, (ii) the preparation of numerous expert reports, (iii) depositions of all such experts, (iv) briefing of various Daubert motions, and finally, (v) the presentation and cross examination of nine experts in a five-day evidentiary hearing;
(f) engaged in extensive discovery efforts, including taking and/or defending more than 100 fact and expert witness depositions, review and analysis of at least 37 opening, rebuttal and/or supplemental expert reports, review of millions of pages of documents in the 64,620,456-page production database in this Action, and preparation of numerous, highly-detailed chronologies of the many clinical drug studies at issue in this litigation;
(g) successfully moved for class certification;
(h) prepared a highly-detailed, 218-page amended class action complaint incorporating the fruits of Plaintiffs’ extensive discovery efforts, and defeated Defendants’ efforts to deny the Class the right to file such an amended complaint (as well as a second motion for reconsideration of the dismissal of the original consolidated complaint);
4 Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579 (1993).
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(i) largely defeated Defendants’ subsequent motion for summary judgment by marshaling a substantial amount of evidence indicating Defendants were aware of but hid the CV risks of the drugs, including a 255-page, 836- paragraph counter-statement of material facts as to which there were genuine issues requiring a trial supported by more than 630 exhibits containing evidence substantiating Plaintiffs’ claims; and
(j) prepared for trial, including (i) conducting a mock trial, (ii) filing thirteen Daubert and other motions in limine and opposing eleven such motions by Defendants, (iii) distilling complex medical studies and other information into jury-friendly demonstratives, (iv) updating study chronologies to distill the massive amount of drug study information into useable quick reference guides for cross-examination purposes, (v) reviewing hundreds of hours of videotaped depositions and sifting through and designating the key parts of such depositions to be played at trial, (vi) analyzing the 1,687 exhibits Defendants designated for use at trial, and designating 1,567 proposed trial exhibits that would potentially be used to prove Plaintiffs’ case at trial, and (vii) preparing an opening statement, jury instructions, verdict forms, voir dire, and the pre-trial order.
9. Plaintiffs also successfully briefed and argued an appeal of the Court’s exclusion of Plaintiffs’ loss causation and damages expert on the eve of trial and the Court’s earlier dismissal—based on the Supreme Court’s decision in Janus Capital Group, Inc. v. First
Derivative Traders, 564 U.S. 135 (2011)—of certain statements made by Pfizer’s Co-Promotion partner, Pharmacia.
10. Plaintiffs’ efforts in preparing the case for trial, and then resurrecting it on appeal, demonstrated that Plaintiffs were ready to take the case to trial. The Settlement is the product of protracted settlement negotiations, including formal mediation overseen by an experienced mediator and years of follow-up telephonic and in-person discussions. The Parties ultimately reached the Settlement while Defendants’ petition for rehearing and rehearing en banc of the Second Circuit’s decision reinstating Plaintiffs’ loss causation and damages expert was pending and as Plaintiffs were again preparing for trial on the assumption that the petition could be denied. 6
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11. While Plaintiffs and Plaintiffs’ Counsel believe that the claims against
Defendants are meritorious and supported by extensive evidence gathered to date, they also recognize that, in the absence of a settlement, they face significant risk that a smaller recovery—
or, indeed, no recovery—might be achieved after a trial of the Action and the lengthy appeals
that would surely ensue if a jury returned a verdict in Plaintiffs’ favor.
C. THE LITIGATION RISKS
12. The risks faced by Plaintiffs in this Action were enormous, as evidenced
by, first and foremost, the eve-of-trial exclusion of Plaintiffs’ loss causation and damages expert.
While Plaintiffs were able to resurrect the case on appeal, the Second Circuit might still have
decided to affirm the Court’s exclusion of Plaintiffs’ loss causation and damages expert in
connection with Defendants’ petition for rehearing and rehearing en banc.
13. Putting aside appellate risks that may have prevented the case from ever
getting to a trial, the risks if the case actually went to trial were huge. As discussed more fully
below (see infra § VIII.D.1), this included substantial risks in proving loss causation in that the
jury might find particular corrective disclosures were not in fact corrective (i.e., that concealed risk did not materialize). As just one example, Plaintiffs alleged that Pfizer’s December 17, 2004 announcement about a third-party-conducted study showing increased CV risk for Celebrex
(referenced briefly above) was a materialization of risk that Pfizer had concealed in earlier
Pfizer-conducted studies. Defendants and their loss causation and damages expert argued strenuously that (i) the December 17 announcement was not corrective of any concealed information because it was based on entirely new information (i.e., the results of the third-party- conducted study) that Pfizer had received only the night before, and (ii) the type of increased CV risk seen in this study (i.e., increased “thromboembolic” risk) was not the same type of CV risk
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seen in the earlier studies Pfizer had allegedly concealed. See infra § VIII.D.1. While the Court held there was enough evidence submitted at summary judgment for the question of whether this disclosure was corrective to go to the jury, there was a risk that a jury might find the disclosure was not corrective in a battle of the experts. The risk with this particular corrective disclosure was extreme because its elimination could have the effect of eliminating nearly all of the $5.37 billion in aggregate maximum damages that could possibly be recovered. As explained in ¶10 of the Second Keable Decl. (Exhibit C hereto), elimination of this corrective disclosure by a jury would result in collective maximum aggregate damages being reduced to $28 million, from the estimated maximum of $5.37 billion. In other words, one single adverse factual determination by the jury would eliminate more than 99% of the best-case scenario of $5.37 billion in estimated aggregate damages. See infra § VIII.D.1. When the Settlement is viewed in light of the possibility of this risk coming to fruition and presuming that Plaintiffs are successful in overcoming all other arguments, the $486,000,000 cash recovery in the Settlement amounts to a recovery of more than 17 times the remaining aggregate recoverable damages. See infra § VII.
14. There were also substantial risks for Plaintiffs in establishing other required elements of their case, most notably scienter. For example, the Cox-2 Alliance partnership was incredibly complex with layers upon layers of managerial committees between the Pfizer and Pharmacia employees who were directly analyzing the CV results in a particular study and Pfizer’s top executives. Indeed, there were at least 34 such committees during the length of the relevant time period. See infra §§ VIII.A.1, IX.B. While Plaintiffs’ Counsel believe they had substantial evidence of Pfizer’s knowledge of CV risk in particular studies generally, information about a given study’s risks did not uniformly flow up the committee structure. Given the complexity of the committee structure, proving that some of the Individual
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Defendants had such knowledge would be a challenge. Thus, although Plaintiffs’ Counsel believe there was other direct and circumstantial evidence that the Individual Defendants were aware of statistically significant and/or other evidence of increased CV risk for Celebrex and
Bextra, there was a risk that a jury might find Defendants did not have the requisite level of knowledge to establish scienter as to key evidence. See infra § VIII.D.5.b / IX.B (discussing this and other risks).
15. There were also other substantial risks that the Court may have excluded key evidence based on Defendants’ motions in limine. For example, the Court may have excluded a criminal guilty plea related to Bextra that would otherwise provide valuable evidence at trial of the falsity of Defendants’ statements and scienter. See infra § VIII.D.4. On the other hand, the Court may have allowed Defendants to introduce evidence that their own top executives either took Celebrex or gave it to their family members, thereby potentially mitigating their knowledge of increased CV risk in the eyes of the now, hypothetical juror. See infra §
VIII.D.4. There were also many other risks relating to scienter in addition to those touched on above as well as challenges related to proving by a preponderance of evidence that particular studies were in fact fully concealed by Defendants. See infra § VIII.D.2.
16. Finally, even if Plaintiffs won a verdict after trial, the post-trial appeals that would likely ensue presented risks that the Class might ultimately receive no recovery or, at a minimum, that it may have to wait a decade or longer after a verdict to receive any recovery that remained after Defendants’ exhaustion of all their appellate and other post-trial rights, with no guarantee of any award of pre-judgment interest (let alone an adequate one) to compensate them for the extreme delay. See infra §§ VIII.5.b, IX.B.
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D. THE SETTLEMENT IS AN EXCELLENT RESULT WHICH IS FULLY-SUPPORTED BY A PSLRA-APPOINTED INSTITUTIONAL INVESTOR
17. Given these and other substantial litigation risks discussed below (see
infra § VIII), Plaintiffs’ Counsel respectfully submit that the Settlement represents an excellent
result for, and is in the best interests of, the Class. The Settlement confers a substantial,
immediate and guaranteed recovery for the Class and avoids the risk of protracted litigation in
the future that renders any recovery by the Class uncertain.
18. Consistent with the intent of Congress in passing the Private Securities
Litigation Reform Act of 1995 (“PSLRA”), Lead Plaintiff is a sophisticated institutional
investor. Lead Plaintiff was actively involved throughout the litigation, and was aware of,
participated in and approved the settlement negotiations, and fully endorses the Settlement. The
other Class Representatives were also involved in settlement negotiations and fully endorse the
Settlement.5
19. It is also respectfully submitted that the Court should approve the proposed Plan of Allocation (the “Plan” or “POA”) of the net proceeds of the Settlement, after deduction of all taxes, approved costs, fees and expenses. The Plan, which is set forth in the
Notice of Proposed Settlement of Securities Class Action, Application for Attorneys’ Fees and
Expenses, and Settlement Fairness Hearing (the “Notice”) that has been mailed to more than 4.1 million potential Class Members and Nominees,6 is based on Plaintiffs’ loss causation and
5 Attached hereto as Exhibits E through H, respectively, are the supporting declarations of Roy A. Mongrue, Jr. (the “Mongrue Decl.”), the representative of Lead Plaintiff Teachers’ Retirement System of Louisiana (“TRSL”), Class Representative Christine Fleckles, Class Representative Julie Perusse and Class Representative Alden B. Chace. Collectively, these declarations are sometimes referred to herein as the “Class Representative Declarations.” 6 See Affidavit of Angela Ferrante of Garden City Group, LLC (“GCG” or the “Settlement Administrator”) (the “GCG Affidavit” or “GCG Aff.”), attached hereto as Exhibit D, ¶12.
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damages expert’s post-appeal determinations of the amount of artificial inflation present in Pfizer
common stock during the Class Period and the dissipation of that inflation as the corrective
disclosures took place. Plaintiffs’ loss causation and damages expert and Plaintiffs’ damages
consultant were not provided with and did not take into consideration any particular trading
activity of the Lead Plaintiff or the Class Representatives in developing the Plan.
20. The relevant law supporting approval of the Settlement and the Plan is set
forth in Plaintiffs’ accompanying Memorandum of Law in Support of Final Approval of Class
Action Settlement and Plan of Allocation (the “Settlement Brief”).
E. THE FEE AND EXPENSE REIMBURSEMENT REQUESTS
21. I also submit this declaration in support of the application by Lead
Counsel for an award of attorneys’ fees in the amount of 28% of the Settlement Amount and
reimbursement of 12-years-worth of litigation expenses in the amount of $20,004,879.33
(previously defined as the “Expense Reimbursement Request”), plus interest on both amounts from the date the Settlement was funded through the date of payment at the same rate the
Settlement Fund earns.
22. As further described herein (see infra § VIII.H) and in the accompanying
Memorandum of Law in Support of Motion for an Award of Attorneys’ Fees and
Reimbursement of Expenses (the “Fee Brief”), Plaintiffs’ Counsel’s efforts have produced an excellent result for the Class, especially in light of the extreme litigation risks and factual, legal, medical and procedural complexities they faced.
23. Plaintiffs’ Counsel prosecuted this factually dense and incredibly complex case for twelve years on a wholly contingent basis. Plaintiffs’ Counsel expended vast resources and incurred a huge amount of expenses—approximately 290,705 attorney and professional
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support staff hours reflecting a lodestar of $120,437,653 and $20,004,879.33 in expenses—with
no guarantee that such expenses would be recovered or their legal fees would be paid. As discussed in brief above and in further detail below (a complete description of the work performed by Plaintiffs’ Counsel is provided below), the quality of the representation in this case was excellent and Plaintiffs’ Counsel’s efforts against an array of no less than eleven of the nation’s finest defense firms were extraordinary. The Class Representatives also recommend that the Fee Request and Expense Reimbursement Request be awarded in their entirety. See
Class Representative Declarations, Exhibits E through H.
24. The reasonableness of the Fee Request is further confirmed by a comparison to other fee awards in large settlements as discussed in the Fee Brief under both the percentage of the fund method and a lodestar cross-check. When compared to fee awards in the comparable settlements discussed in the Fee Brief, the Fee Request remains fully supportable under any method of review.7
25. Lead Counsel also requests that the Court grant reimbursement of costs
and expenses incurred by Class Representatives directly related to their representation of the
Class pursuant to 15 U.S.C. § 78u-4(a)(4), in the aggregate amount of $21,515 (previously
defined as the “Class Representative Expense Request”).
7 As of November 4, 2016, a total of 4,106,573 copies of the Notice were disseminated to Class Members and their nominees, and the Publication Notice was published in The New York Times and The Wall Street Journal, and transmitted over PR Newswire. See GCG Affidavit, ¶¶7-13 (Exhibit D hereto). Although the deadline for objecting has not yet passed and, thus, the reaction of the Class to the Settlement is not yet fully known, Plaintiffs’ Counsel note that out of more than 4.1 million Notices mailed, as of November 10, 2016, only 10 objections in connection with the Settlement have been received by Lead Counsel. In the interests of judicial economy, Plaintiffs’ reply submission following the objection deadline will respond to these and any other objections that are received prior to the deadline so all objections can be addressed at once.
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F. CONCLUSION
26. For the reasons discussed above and further below, and in the Settlement
Brief and Fee Brief, I respectfully submit that the Settlement is outstanding and merits final approval, that the proposed POA is equitable and just, and that the Fee Request, Expense
Reimbursement Request and Class Representative Expense Request should be awarded in full.
II. FACTUAL AND PROCEDURAL BACKGROUND OF THE LITIGATION
A. THE APPOINTMENT OF LEAD PLAINTIFF AND LEAD COUNSEL
27. Beginning in December 2004, the first of a series of class action complaints was filed in this Court against Pfizer and certain of its officers and directors, asserting violations of the federal securities law in connection with Pfizer’s statements regarding the CV risks of Celebrex and Bextra. ECF No. 1.
28. By Opinion & Order dated October 21, 2005, the Court consolidated the related actions, appointed TRSL as Lead Plaintiff pursuant to the PSLRA and designated G&E as Lead Counsel for the then-putative class. ECF No. 43.
B. THE FILING OF THE CONSOLIDATED CLASS ACTION COMPLAINT AND DISMISSAL AND RECONSIDERATION MOTIONS
29. On February 16, 2006, Lead Plaintiff and additional named plaintiff
Christine Fleckles (among others)8 filed the Consolidated Class Action Complaint (the
“Complaint”), asserting claims under Section 10(b) of the Exchange Act, and Rule 10b-5 promulgated thereunder, and Sections 20(a) and 20A of the Exchange Act against Pfizer and the
Individual Defendants. ECF No. 51.
30. In May 2006, Pfizer and the Individual Defendants moved to dismiss the
8 Class Representatives Perusse and Chace were not named plaintiffs at this time but became named plaintiffs at a later date.
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Complaint and discovery was automatically stayed. ECF Nos. 56-62. Thereafter, in June 2006,
Plaintiffs moved to strike certain exhibits attached to and portions of the memoranda in support
of Defendants’ motion to dismiss. ECF Nos. 68-69. While these motions were pending, the
Action was reassigned to the Honorable Laura Taylor Swain on February 22, 2008. ECF No. 81.
31. On July 1, 2008, the Court denied, in large part, Defendants’ motion to
dismiss, holding that Plaintiffs’ allegations that Defendants misrepresented and concealed the
CV risk associated with Celebrex and Bextra, and engaged in insider trading while in possession of such undisclosed information, sufficiently stated claims under Sections 10(b), 20(a) and 20A of the Exchange Act (the “July 1 Order”). ECF No. 90.9 Defendants moved to reconsider
certain portions of the July 1 Order, ECF Nos. 93-94, which motion the Court denied on
September 4, 2008. ECF No. 98.
32. From the inception of the case in December of 2004 through the issuance
of the aforementioned reconsideration motion, Plaintiffs’ Counsel had expended more than 6,068
hours prosecuting the Action, reflecting a lodestar of $3,086,836. See infra § IX.A (describing
“Category 1” time).
33. Pfizer and the Individual Defendants filed their answer and affirmative defenses to the Complaint in September 2008. ECF No. 102. In their answer, Pfizer and the
Individual Defendants denied that any of them made material misstatements relating to
Celebrex’s or Bextra’s CV safety or omitted alleged material facts about the drugs. See id. They also denied that any of them acted recklessly or with the intent to defraud Pfizer’s shareholders.
See id. Pfizer and the Individual Defendants further denied that they caused Plaintiffs’ economic
9 By the same Order, the Court dismissed Plaintiffs’ claims for common law fraud, violations of state securities laws, and Section 18 of the Exchange Act.
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losses. See id. Thereafter, discovery was scheduled to commence in full.
C. THE DAUBERT HEARING ON MEDICAL ISSUES
34. At Defendants’ request, the Court directed the Parties to conduct discovery (before allowing Plaintiffs to engage in merits or class discovery) to determine whether reliable scientific evidence existed to show that Celebrex or Bextra was associated with increased CV risk. To this end, Defendants produced millions of pages of documents previously produced in the action In re Bextra & Celebrex Marketing Sales Practices and Prod. Liab. Litig.,
No. 05-cv-1699 (N.D. Cal.), and, after Plaintiffs and Defendants retained experts in a variety of scientific disciplines, both sides exchanged multiple expert reports and conducted depositions related to their experts’ qualifications under Daubert.
35. In addition, both sides filed motions to preclude the other side from offering the opinion testimony of the opposing side’s experts. ECF Nos. 139-146. Following these submissions, the Court held a 5-day Daubert proceeding in October 2009 (and ordered the
Parties to make supplemental, post-hearing submissions for each and every expert, which they did). Minute Entries for 10/19/09 through 10/22/09, and 10/29/09; ECF Nos. 171-189. On
March 22, 2010, the Court found that the Daubert standard was satisfied with respect to all experts whose preclusion was sought, and denied both side’s motions. ECF Nos. 191, 193.
36. Following the issuance of the Court’s ruling on September 4, 2008, denying reconsideration of its prior Rule 12(b)(6) dismissal order through the March 22, 2010
Daubert Opinion, Plaintiffs’ Counsel had expended an additional approximately 112,954 hours prosecuting the Action, reflecting a lodestar of $38,913,910. See infra § IX.A (describing
“Category 2” time).
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D. CLASS CERTIFICATION
37. On March 16, 2011, Lead Plaintiff filed its motion for Class Certification,
which Defendants opposed in November 2011. ECF Nos. 234-238, 245-248, 303. In support of
the motion for Class Certification, Lead Plaintiff submitted, among other things, the Declaration
of its loss causation and damages expert, Professor Daniel Fischel, which opined with respect to,
inter alia, the seven events that Plaintiffs had alleged were corrective disclosures. See id.
38. In connection with Class Certification, hotly-contested motion practice
ensued as Defendants propounded extensive discovery requests. Following briefing by the
Parties on various motions to compel and motions for protective orders, the Hon. Henry B.
Pitman, Chief Magistrate Judge for the Southern District of New York, issued multiple rulings which governed the class discovery process. E.g., ECF No. 273. Ultimately, Lead Plaintiff and
the other proposed Class Representatives produced substantial documents and prepared and sat
for depositions, as further described below in § II.F. Defendants filed their opposition brief
under seal on December 14, 2011 (see ECF No. 311 (public redacted version)), which included
the Declaration of Paul A. Gompers, a Harvard University professor, in opposition to Professor
Fischel’s Declaration. ECF No. 303. Plaintiffs filed a reply brief under seal on January 23,
2012. See ECF No. 329 (unredacted public version).
39. On March 29, 2012, the Court certified the Class, appointed Lead
Plaintiff, Christine Fleckles, Julie Perusse and Alden Chace as Class Representatives and appointed G&E as Class Counsel. ECF No. 357. On April 6, 2012, the Court clarified its class certification order (with respect to certain individuals excluded from the Class). ECF No. 362.
In both orders, the Court directed the Parties to discuss a resolution of the Action, ECF Nos. 357,
362, which they did, as discussed below (see infra §§ II.E, III).
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40. In July 2012, in connection with its certification of the Class, the Court approved the form and manner of notifying the Class of the pendency of the Action as a class action and of the right of Class Members to request exclusion from the Class and the procedures for doing so. ECF No. 390. Beginning on July 26, 2012, Class Representatives caused the
Notice of Pendency of Class Action (the “Class Notice”) to be mailed to over 3.7 million potential members of the Class, and caused a summary of the Class Notice to be published in The
Wall Street Journal and The New York Times and transmitted over PR Newswire on July 30,
2012. ECF No. 393, ¶¶8-10; ECF No. 413, ¶4.
41. In October 2012, Class Representatives reported to the Court on the number of Class Members who opted out of the Class. ECF Nos. 412-414. Subsequently, a group of institutional investors who had validly opted out of the Class in connection with the
Class Notice requested permission to rejoin the Class once the Second Circuit had issued its opinion in Police & Fire Retirement System of the City of Detroit v. IndyMac MBS, Inc., 721
F.3d 95 (2d Cir. 2013), setting forth a bright line rule that the statute of repose is not tolled by the existence of a class action, thereby rendering any potential claims that these investors may have asserted in individual actions untimely. Plaintiffs acquiesced to the former opt outs’ requests, and the Court approved their reinstatement into the Class. ECF No. 513.10
E. COURT ORDERED MEDIATION
42. In accordance with the Court’s directives in its class certification orders, the Parties engaged David M. Brodsky of Brodsky ADR LLC, a neutral with extensive experience in mediation of complex litigation, to oversee a formal mediation. Prior to this
10 A list of persons and entities who validly requested exclusion in response to the Class Notice, and who did not opt back into the Class, is attached as Ex. C to the Settlement Agreement. ECF No. 700-1 (Ex. C).
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mediation, the Parties exchanged detailed mediation statements setting forth their respective positions on liability and damages.
43. On June 19, 2012, while the Parties were still engaged in the discovery process, the Parties participated in a full-day, in-person mediation in New York City. The
Parties, however, were too far apart in their respective positions to reach a resolution of the
Action at the mediation. The Parties also met for two days in September of 2012 with Mr.
Brodsky and made presentations primarily involving damages, but once again, the Parties were too far apart to make any significant progress. As discussed more fully below in the section on the Settlement (see infra § III), following the conclusion of the mediation, the Parties continued their settlement discussions informally through telephonic and in-person meetings off and on over the course of the next four years.
F. THE DISCOVERY PROCESS
44. Plaintiffs aggressively pursued merits discovery, serving multiple sets of document requests, reviewing millions of pages of documents, and preparing for, taking or defending over 100 fact and expert witness depositions, including depositions of current and former employees of Pfizer, Pharmacia and Searle.11 On numerous occasions, disputes arose as to appropriate search terms for document requests, the breadth of discovery being sought, motions for protective orders, spoliation issues and other matters that were, to the extent that they could not be resolved by the Parties, briefed and argued before Judge Pitman. The most significant aspects of discovery are summarized below.
1. Written Discovery And Document Analysis
45. Plaintiffs served eight separate document requests, four sets of
11 These figures include written discovery and depositions that were part of the Daubert phase.
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interrogatories and one set of requests for admission on Defendants. Plaintiffs also served several subpoenas duces tecum and/or ad testificandum on third parties, including outside consultants to Pfizer and/or Searle/Pharmacia.
46. A team of Plaintiffs’ Counsel’s attorneys made a trip to Pfizer’s document storage warehouse in Kalamazoo, Michigan in early June 2011 to review and analyze documents that Defendants indicated may be responsive to Plaintiffs’ discovery demands. Ultimately, in addition to the millions of pages of documents produced in connection with the product liability action, Defendants produced almost 60 million pages of documents in response to Plaintiffs’ written discovery demands. Teams of attorneys were assigned to review and analyze the documents and distill a massive volume of information to marshal evidence for trial and for opposition to Defendants’ inevitable motion for summary judgment.
47. Since Pfizer and the Individual Defendants’ knowledge of adverse CV results in Celebrex and Bextra studies was a critical part of the case, a main focus of Plaintiffs’ document review process was identifying emails, slide presentations and other documents reflecting such knowledge and organizing them chronologically.
2. Creation of Extensive Study Chronologies
48. To divide labor and avoid duplication of effort, individual attorneys at
Lead Counsel were initially designated to become “study experts” with respect to the numerous clinical studies at issue in the case. For example, a more senior attorney was designated to become an expert with respect to the Alzheimer’s 001 study or the CABG-1 study and learn all the material information there was to know about the particular study to which he or she had been assigned. This entailed, inter alia, (i) extensive review and analysis of the lengthy clinical
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study reports at issue,12 (ii) consultation with Plaintiffs’ experts for explication of medical or bio-
statistical issues where necessary, (iii) working with more junior attorneys who were reviewing and analyzing massive volumes of documents in the production databases in order to isolate key documents and emails related to the studies, and (iv) preparing memos on each of the most significant studies to share with and educate the litigation team.
49. Likewise, teams were established at other firms working under Lead
Counsel’s direction to become experts in other areas of the case, including Bextra-related information, FDA rules and regulations and labeling requirements. Similar to the structure established by Lead Counsel, senior attorneys at these firms would take the lead for each topic and work with more junior attorneys who were reviewing the massive document productions in order to locate key evidence and preparing memos for the broader team, both internal to the firms working on those topics and to report to Lead Counsel, and ultimately, to assist in preparing for depositions of key witnesses.
50. After in-depth analysis of the studies was completed, extensive study chronologies, timelines on other factually-dense topics (such as the partnership between Pfizer and Searle/Pharmacia) and a master chronology of overall events relevant to the case were developed for use in connection with depositions and opposition to Defendants’ inevitable motion for summary judgment. The highly-detailed chronologies were periodically updated and
refined throughout the discovery process and in preparation for trial. Their creation required that
virtually every email string containing discussion about a given study that Plaintiffs intended to
use at depositions and/or trial be run to ground in an effort to ensure that all relevant commentary
12 As examples of the massive length involved, the “Alzheimer’s 001” original and supplemental report with associated tables and exhibits was more than 5,000 pages and the “SUCCESS” report with associated tables and exhibits was more than 60,000 pages.
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on a particular study by Pfizer and/or Searle/Pharmacia employees was identified. Ultimately, more than twenty such chronologies were created to distill the enormous volume of emails and other documents into a coherent story, and related summary analyses were created to distill the information even further into useable formats for depositions and cross-examination at trial.13
3. Taking Depositions
a. Pfizer and Third-Party Fact Witnesses
51. In all, Plaintiffs’ Counsel took or defended the videotaped depositions of
74 fact witnesses in advance of trial at which hundreds of deposition exhibits were marked. The depositions of several witnesses required two full days of deposition testimony.
52. Many Pfizer and/or Searle/Pharmacia witnesses who were deposed in this case were also deposed in the prior products liability case involving Celebrex and/or Bextra
(some of those depositions lasting multiple days). Consequently, preparing for such witnesses’ deposition in this case entailed the deposing attorney’s review and analysis of the lengthy, often multiple-day deposition transcripts and underlying exhibits from those cases. To expedite this process and divide labor efficiently, summaries of the depositions and deposition exhibits from the product liability case were prepared by Plaintiffs’ Counsel (see infra § IX.A) pursuant to a specific assignment by Lead Counsel. Ultimately, summaries were prepared for more than 50 fact and expert witnesses who testified in the products liability case.
b. Experts
53. As a case with, inter alia, extensive medical and bio-statistical issues, both
13 Examples include chronologies for the “Alzheimer’s 001” trial (the relevant events span an 8- year time frame from 1998 to 2006), the “CABG-1” and “CABG-2” trials (the relevant events span a 6-year time frame from 1999 to 2005), the “SUCCESS” trial (the relevant events span a 6-year time frame from 1999 to 2005), and the “CLASS” trial (the relevant events span a 7-year time frame from 1998 to 2005).
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Plaintiffs and Defendants engaged numerous expert witnesses.
54. Plaintiffs retained nine experts for the Daubert hearing and/or trial
including three experts in biostatistics, two experts in cardiology and one expert in each of the
fields of rheumatology, clinical drug trials, pharmaceutical development and regulatory issues,
and securities litigation loss causation and damages.
55. Plaintiffs’ Counsel defended depositions of all its experts, both in
connection with the earlier-described Daubert hearing and subsequently in connection with merits discovery.
56. Defendants retained eight experts for pre-trial and trial purposes including one expert in each of the fields of cardiothoracic surgery, pharmacology, rheumatology, the
FDA’s regulatory review process, biostatistics, and securities litigation damages and two experts in cardiology.
57. Plaintiffs’ Counsel took depositions of all Defendants’ experts, both in connection with the earlier-described Daubert hearing and/or subsequently in connection with merits discovery.
58. In all, Plaintiffs’ Counsel took or defended 32 videotaped depositions of expert witnesses in this case,14 and reviewed and analyzed at least 37 opening, rebuttal and/or
supplemental expert reports produced in this case.
4. Defendants’ Discovery of Plaintiffs
59. Defendants served interrogatories on each of the Class Representatives and requests for admission on Lead Plaintiff. Defendants also deposed each of the Class
14 For the Daubert hearing and otherwise, some experts, including Professor Fischel, were deposed two or even three times.
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Representatives, including two separate depositions of Lead Plaintiff (one of which was a two- day deposition), and Defendants deposed two third-party investment advisors to Lead Plaintiff.
60. Thus, in addition to taking and/or defending numerous depositions,
Plaintiffs’ Counsel defended a total of five depositions of the Plaintiffs, and participated in the depositions of two of Lead Plaintiffs’ third-party investment advisors and one deposition of a
TRSL representative related to Lead Plaintiff’s email systems.
61. In all, there were 108 depositions of fact and expert witness depositions in this case.15
G. SUCCESSFUL MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT AND DENIAL OF A SECOND MOTION FOR RECONSIDERATION
62. In November 2011—more than five years after the Complaint was filed—
Pfizer and the Individual Defendants again filed a motion for reconsideration of its July 1, 2008
Order. ECF No. 304.
63. While the motion for reconsideration was pending, Lead Plaintiff, in
March 2012, filed a motion for leave to amend the Complaint to conform the pleadings to the extensive evidence that had been gathered during the discovery process, attaching a 218-page,
585-paragraph amended complaint (the “Amended Complaint”) to the motion for leave as an exhibit. ECF Nos. 343-346.
64. On March 22, 2012, the Court denied Defendants’ motion for
15 While many depositions were held in New York, New York, many others were taken throughout the country, including in Berkley, Los Angeles, San Diego and San Francisco, California; Groton and Westport, Connecticut; Mount Dora and Tampa, Florida; Atlanta, Georgia; Chicago and Deerfield, Illinois; Indianapolis, Indiana; Baton Rouge, Louisiana; Bethesda, Maryland; Boston and Worcester, Massachusetts; St. Louis and Kansas City, Missouri; Flemington, Florham Park, and Morristown, New Jersey; Chapel Hill and Winston Salem, North Carolina; Philadelphia and Radnor, Pennsylvania; Dallas, Texas; Seattle, Washington; and Washington, D.C. One deposition was taken in London, England.
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reconsideration and granted Plaintiffs’ motion to amend the Complaint. ECF Nos. 355-356.
Thereafter, on March 27, 2012, the Amended Complaint was filed. ECF No. 361. In May 2012,
Pfizer and the Individual Defendants answered the Amended Complaint, denied all allegations of wrongdoing and raised thirty-five defenses. ECF No. 369.
65. Following the issuance of the Court’s March 22, 2010 Daubert Opinion, through the conclusion of fact and expert discovery, and until July 2, 2012, when defendants moved for summary judgment, Plaintiffs’ Counsel had expended an additional approximately
132,662 hours prosecuting the Action, reflecting a lodestar of approximately $57,570,674. See infra § IX.A (describing “Category 3” time).
H. PLAINTIFFS LARGELY DEFEAT DEFENDANTS’ FIRST MOTION FOR SUMMARY JUDGMENT
66. Following the Parties’ mediation and completion of all discovery,
Defendants moved for summary judgment on July 2, 2012. ECF Nos. 382-387. In their motion,
Defendants submitted a 24-page, 100-paragraph statement of undisputed facts pursuant to Local
Rule 56.1 in support of their motion for summary judgment, and a related brief asserting, inter alia, that (i) they made no material misstatements or omissions, (ii) the evidence did not show that they acted with intent to defraud, (iii) pursuant to the Supreme Court’s Janus decision, they were not liable for statements made by Pharmacia, Pfizer’s Co-Promotion partner, and (iv) the
Class Representatives’ alleged losses in Pfizer common stock were not caused by any supposed fraud associated with Celebrex and Bextra. ECF Nos. 381, 382.
67. Plaintiffs vigorously opposed the motion for summary judgment by, inter alia, marshaling the evidence Plaintiffs’ Counsel had developed during discovery to prove
Defendants concealed the CV risks of Celebrex and Bextra and investors suffered losses as a result. Plaintiffs submitted, inter alia, a 255-page, 836-paragraph counter-statement of material 24
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facts as to which there were genuine issues requiring a trial, as well as more than 630 exhibits
containing evidence supporting their claims. ECF Nos. 420, 421. Plaintiffs’ submission also included an “event study” prepared by Professor Fischel, their loss causation and damages
expert, identifying seven corrective disclosures as evidence of loss causation. See id.
Defendants deposed Professor Fischel once again and submitted an opposition report by
Professor Gompers in connection with their reply brief on summary judgment, which was filed on September 18 and 19, 2012. See ECF Nos. 404-406.
68. On March 28, 2013, the Court granted in part and denied in part
Defendants’ motion for summary judgment. After analyzing Plaintiffs’ submission, the Court found that “the record is replete with evidence that Defendants recognized that Celebrex and
Bextra had associated [CV] risks, that such risks would be considered material by investors, and
that Defendants nonetheless misrepresented and actively concealed these risks.” ECF No. 455 at
14. However, the Court also found, inter alia, that (i) two of the seven “corrective disclosure”
events which Plaintiffs had alleged were evidence of loss causation, were in fact not corrective of
the alleged fraud, and (ii) certain statements made by Pharmacia were not actionable under Janus
because there were no triable issues concerning whether Pfizer had “ultimate authority” related
to such statements made by its Co-Promoter or its employees. See ECF No. 455.
69. Following the filing of Defendants’ motion for summary judgment on July
2, 2012 through the issuance of the Court’s summary judgment opinion on March 28, 2013,
Plaintiffs’ Counsel had expended an additional approximately 14,271 hours prosecuting the
Action, reflecting a lodestar of approximately $7,045,383. See infra § IX.A (describing
“Category 4” time).
70. In response to the Court’s summary judgment opinion, on or about May
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10, 2013, Lead Plaintiff’s loss causation and damages expert, Professor Fischel, submitted an updated report which removed the two corrective disclosures eliminated by the Court from his analysis and adjusted his damage calculations. Professor Fischel did not adjust for the ruling regarding dismissal of certain Pharmacia statements because it did not impact his analysis.
(Additional details regarding Professor Fischel’s adjustments to his artificial inflation calculations are discussed infra § VII.) Defendants conducted an additional deposition with respect to Professor Fischel’s updated report on June 28, 2013.
I. TRIAL PREPARATION
71. After the Court’s summary judgment ruling, Plaintiffs continued their preparation for trial.
1. Trial Exhibits and Refinement of the Extensive Drug Study Chronologies
72. A critical part of the trial preparation process was identifying the exhibits
Plaintiffs would use at trial.
73. Substantial time was spent analyzing the documents and cutting the number of exhibits down to a manageable number for trial purposes while still having all the evidence necessary to prove Plaintiffs’ claims and rebut Defendants’ defenses.
74. Ultimately, in connection with preparation of the Pre-Trial Order,
Plaintiffs identified 1,567 potential trial exhibits. See ECF No. 656. Considerable time was spent working with Plaintiffs’ Counsel’s jury consultant and organizing the exhibits so that—as just two examples—Plaintiffs’ best trial exhibits were pre-marked, consecutively, as Plaintiff trial exhibits 1 through 100, and documents containing the Cox-2 Alliance’s false or misleading statements were pre-marked, consecutively, as Plaintiff trial exhibits 101 through 204. In addition, considerable time was spent evaluating the merit of Defendants’ objections to the
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admissibility of these 1,567 exhibits and considering appropriate responses in an effort to better ensure their eventual admission into evidence.
75. Defendants identified 1,687 potential trial exhibits that they intended to use at trial. See id. In preparing Plaintiffs’ case, Plaintiffs’ Counsel spent considerable time reviewing and analyzing Defendants’ proposed trial exhibits for content, particularly those that had not been used at depositions in the case. In addition, considerable time was spent evaluating and preparing objections to the admissibility of Defendants’ exhibits for the Pre-Trial Order.
76. Another critical trial preparation task was updating and continually refining the study chronologies to add additional relevant events as they were discovered during the continuing review of the enormous document production, and to reflect the relevant information contained in the documents Defendants designated as trial exhibits.
2. Deposition Designations
77. Another vital trial preparation task was reviewing and analyzing the more than 70 fact depositions to determine what testimony was necessary for trial, particularly for the witnesses who would likely be unavailable. This entailed, inter alia, reviewing and analyzing hundreds of hours of videotaped testimony to evaluate credibility issues and isolate key deposition testimony.
78. In addition, considerable time was spent designating such testimony for the Pre-Trial Order by page and line of the transcripts. Ultimately, Plaintiffs designated potential testimony from 46 deponents whose deposition testimony may be played at trial. See id. Further substantial time was spent preparing objections to the testimony of the 21 deponents Defendants designated as witnesses whose deposition testimony may be played at trial. See id.
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3. Mock Trial and Creation Of Jury-Friendly Demonstratives
79. Plaintiffs’ Counsel and their jury consultant conducted a two-day mock
trial on February 12 and 13, 2014.
80. As part of their preparation for the mock trial process, Plaintiffs’ Counsel and their jury consultant spent substantial time modifying the existing timelines and chronologies that had already been prepared into timelines that would be used for the mock trial and developing demonstrative exhibits for the mock trial that could also be tailored for use at the actual trial.
81. Each mock juror completed pre- and post-mock trial questionnaires conveying their attitudes and reactions to particular evidence, witnesses and lines of argument.
In addition, Plaintiffs’ Counsel were able to observe the reactions of mock jurors to particular evidence and testimony during mock jury deliberation sessions. Plaintiffs’ Counsel’s jury consultant also prepared an extensive written analysis of the mock trial proceedings. The analysis was examined closely by Plaintiffs’ Counsel and discussed in numerous strategy sessions that were held after the mock trial.
82. The mock trial process provided Plaintiffs’ Counsel with invaluable insight into the strengths and weaknesses of their case and how the strengths could be enhanced and the weaknesses dealt with and ameliorated.
4. Daubert Motions And Other Motions In Limine
83. Defendants filed 13 motions in limine to exclude evidence and/or expert testimony.16 ECF Nos. 514-523, 526, 533, 570. Aside from the Daubert motion to exclude
Plaintiffs’ loss causation and damages expert, among the more significant motions in limine
16 This does not include Defendants’ motions related to the earlier Daubert hearing.
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Defendants filed was one to exclude a guilty plea by an indirect subsidiary of Pfizer in which it
was admitted that false and misleading statements regarding Bextra’s CV safety were made, with
intent to defraud and mislead, in connection with admitted off-label promotional activities of
Bextra for unapproved uses (discussed below, see infra § VIII.D.4). Plaintiffs’ Counsel divided
up responsibility for responding to, and spent substantial time opposing, the vast majority of the
motions.
84. Based on, inter alia, the arguments Defendants made in connection with
their summary judgment motion and the review and analysis of Defendants’ proposed trial
exhibits, Plaintiffs’ Counsel also spent substantial time evaluating what motions in limine were
necessary and/or advisable. Plaintiffs’ Counsel divided up responsibility for preparing the
motions in limine, prepared 16 such motions and, after a meet and confer process with
Defendants’ Counsel during which Defendants consented to three of the motions, ultimately filed
13 motions in limine with the Court.17 Among the more significant motions in limine Plaintiffs
filed was one to exclude an April 6, 2005 memo prepared by two FDA representatives that
Defendants intended to use in an attempt to negate scienter (discussed below, see infra §
VIII.D.4).
5. Motion for Judgment on the Pleadings
85. In April 2014, as the Parties were preparing for trial, certain of the
Individual Defendants moved for judgment on the pleadings seeking dismissal of Plaintiffs’
17 This does not include Plaintiffs’ motions related to the earlier Daubert hearing.
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claims under Section 20A of the Exchange Act. ECF Nos. 650-651.18 By Order issued on May
21, 2014, the Court denied the motion for judgment on the pleadings. ECF No. 659.
6. Jury Instructions, Verdict Form, Voir Dire and the Pre-Trial Order
86. After substantial negotiation, the Parties also jointly submitted a Pre-Trial
Statement to the Court on May 12, 2014 attaching, inter alia, Plaintiffs’ witness list (identifying
40 trial witnesses it would call at trial and another 45 witnesses that it may call), Defendants’ witness list (identifying 38 trial witnesses), Plaintiffs’ exhibit list (containing 1,567 potential trial exhibits), Defendants’ exhibit list (containing 1,687 potential trial exhibits), Plaintiffs’ deposition designations (identifying 46 witnesses whose deposition testimony may be played at trial),
Defendants’ deposition designations (identifying 21 witnesses whose deposition testimony may be played at trial), Plaintiffs’ proposed verdict form (identifying 45 allegedly false or misleading
Class Period statements to be considered by the jury) and Defendants’ proposed verdict form.
ECF No. 656.
87. On May 12, 2014, after having negotiated a proposed juror questionnaire containing 60 questions designed to make the jury selection process more efficient, the Parties submitted a joint motion seeking to have the Court use the questionnaire as part of the jury selection process. See ECF Nos. 654-655.
88. After a lengthy meet and confer and negotiation process, on May 16,
2014, the Parties jointly submitted proposed jury instructions to the Court. ECF No. 658.
Plaintiffs’ Counsel and Defendants’ Counsel had reached agreement on 14 instructions, near agreement on 4 instructions, but differed substantially as to the appropriate jury instructions on
18 On May 13, 2014, Individual Defendant John L. LaMattina was dismissed with prejudice pursuant to the Parties’ stipulation of voluntary dismissal approved by the Court. ECF No. 657.
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many substantive elements of the federal securities claims at issue. Id. The Parties therefore
submitted their respective proposed jury instructions on these points (Plaintiffs submitted 13
such proposed instructions and Defendants submitted 21 such proposed instructions) with
justifications for their own, and objections to the other side’s, instructions. Id.
89. In the Joint Pre-Trial Statement, Plaintiffs estimated it would take eight
weeks to present their case and Defendants estimated four weeks for their case. ECF No. 656.
J. THE EXCLUSION OF PLAINTIFFS’ LOSS CAUSATION AND DAMAGES EXPERT
90. On May 21, 2014, the Court granted Defendants’ Daubert motion to exclude Plaintiffs’ loss causation and damages expert on the grounds that, inter alia, proportional adjustments Professor Fischel made to the inflation calculations in his original report to account for the two corrective disclosures the Court eliminated at summary judgment were not reliable, and he did not account for the impact of the Pharmacia statements the Court had excluded at summary judgment based on Janus, which rendered his opinions unhelpful to the jury.19 See
ECF No. 660.
91. On June 6, 2014, Plaintiffs moved for leave to allow Professor Fischel to
file an amended supplemental expert report.20 ECF Nos. 665-666, 668. In light of the Court’s
Daubert ruling as to the testimony of Professor Fischel, Defendants filed a renewed motion for summary judgment. ECF Nos. 667, 669-670.
19 In the same order, the Court granted Plaintiffs’ Daubert motion to exclude Defendants’ loss causation and damages expert on the sole ground that, in the absence of the testimony of Plaintiffs’ expert, the testimony of Defendants’ expert is irrelevant. ECF No. 660. Also on May 21, 2014, the Court granted one of Plaintiffs’ other motions in limine and denied another without prejudice to renewal at trial. See ECF Nos. 661, 662. 20 At a conference on May 23, 2014, the Court set a schedule for Plaintiffs’ motion for leave to file the supplemental expert report, scheduled a final pre-trial conference for July 18, 2014 and scheduled trial to commence on September 9, 2014. See 5/23/14 Minute Entry.
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92. On July 8, 2014, the Court denied Plaintiffs’ motion for leave to
supplement Professor Fischel’s expert report and granted summary judgment to Defendants, on
the basis that, without a loss causation and damages expert, Plaintiffs would be unable to prove
their claims at trial. ECF No. 679. The Court also terminated the remaining motions in limine
that it had not yet decided. See id.
93. Following the issuance of the Court’s summary judgment opinion on
March 28, 2013 through the Court’s granting of summary judgment on July 8, 2014, Plaintiffs’
Counsel had expended an additional approximately 20,175 hours prosecuting the Action, reflecting a lodestar of approximately $10,547,260. See infra § IX.A (describing “Category 5” time).
94. On July 9, 2014, the Court entered judgment in favor of Defendants and dismissed the Action in its entirety. ECF No. 683.
K. THE APPEAL
95. On August 7, 2014, Plaintiffs filed a notice of appeal. ECF No. 688.
Plaintiffs noticed their appeal of the Court’s (i) granting of summary judgment to Defendants based on the exclusion of Professor Fischel’s testimony, and (ii) finding in its first summary judgment decision that certain statements made by Pharmacia were not actionable because
Plaintiffs failed to proffer sufficient evidence of Pfizer’s “ultimate authority” over those statements under Janus. ECF No. 688. Thereafter, Plaintiffs’ appeal was fully briefed by the
Parties, and was argued before the Second Circuit on May 26, 2015.
96. On April 12, 2016, the Second Circuit issued a decision vacating the
Court’s grant of summary judgment and remanding the case for further proceedings. ECF No.
694. The Second Circuit concluded that the Court’s “rationales for excluding the testimony [of
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Professor Fischel] were inadequate to justify excluding it in its entirety” and the Court “erred in
its earlier summary judgment ruling that no reasonable jury could find Pfizer liable for certain
statements made by” Pharmacia. ECF No. 694 at 2. (Further details about Professor Fischel’s
adjustments to his artificial inflation calculations and the Second Circuit’s rationale are discussed
infra in § VII.)
97. Following the Court’s granting of summary judgment on July 8, 2014
through the Second Circuit’s April 12, 2016 decision, Plaintiffs’ Counsel had expended an
additional approximately 2,953 hours prosecuting the Action, reflecting a lodestar of $2,229,485.
See infra § IX.A (describing “Category 6” time).
98. On May 10, 2016, following an extension request granted by Plaintiffs,
Defendants filed a petition for rehearing and rehearing en banc (the “Rehearing Petition”) in the
Second Circuit. Second Circuit ECF No. 226. That petition remained pending at the time of the
Settlement.
L. CONTINUED TRIAL PREPARATION
99. After the Second Circuit’s decision reinstating Professor Fischel and the
dismissed Pharmacia statements pursuant to Janus, Plaintiffs’ Counsel immediately began
preparing for trial on the assumption that the Second Circuit might deny the Rehearing Petition, a
mandate would issue and the case would return to this Court for trial.
100. This entailed, inter alia, (i) revising Plaintiffs’ proposed verdict form to include the reinstated Pharmacia statements, (ii) reviewing, analyzing and adding numerous new trial exhibits tending to show Pfizer’s “ultimate authority” over Pharmacia’s statements in light of the Second Circuit’s Janus ruling, (iii) reviewing and analyzing numerous videotaped depositions of fact witnesses to add deposition testimony tending to show Pfizer’s “ultimate
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authority” over Pharmacia’s statements and partnership with Pharmacia, (iv) revising the jury instructions to reflect the Second Circuit’s Janus ruling, (v) assessing the effect of the Second
Circuit’s ruling on previously-filed motions in limine and evaluating how the motions, which had been terminated given the exclusion of Plaintiffs’ expert (see ECF No. 679),21 should be re-filed,
(vi) revising the numerous study chronologies to further refine and distill the vast amount of
study information for cross-examination purposes and updating them to reflect newly added
exhibits and other information related to the Second Circuit’s Janus ruling, (vii) working with
Plaintiffs’ loss causation and damages expert in light of his reinstatement after the Second
Circuit’s ruling, and (viii) strategizing about potentially conducting another mock trial.
101. In addition, the Second Circuit’s Janus ruling would allow (and indeed
require) more of a focus on Pfizer’s ultimate authority over Pharmacia’s statements than
Plaintiffs had been planning to present in their previous trial preparation. Consequently,
Plaintiffs’ Counsel spent substantial time drafting, and were prepared to ask the Court’s
permission to file, a new motion for a ruling in limine that 21 public statements by Pharmacia are
admissible against Pfizer because, inter alia, under the applicable Federal Rules of Evidence, (a)
the statements are contained in self-authenticating news articles (or their authenticity was not
otherwise in question), (b) the statements are non-hearsay admissions (i) made by Pfizer’s agent,
21 Twenty-one motions in limine that had been filed by the Parties were terminated without decision prior to the appeal. See ECF No. 679. Three had been decided by the Court prior to the appeal: (1) the Daubert motion to exclude Plaintiffs’ loss causation and damages expert; (2) Plaintiffs’ motion in limine no. 9, seeking preclusion of evidence or argument relating to affirmative defenses that were not pleaded in Defendants’ answer, was granted to the extent that Defendants’ answer is not to be construed to assert any affirmative defense not specifically pleaded therein (see ECF No. 661); and (3) Plaintiffs’ motion in limine no. 8, seeking the exclusion of “reference to claims that have been dismissed, or claims or legal theories that Plaintiffs have abandoned, changed, and/or modified, was denied without prejudice to reassertion in connection with particular arguments at trial” (see ECF No. 662).
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(ii) made by someone (Pharmacia) whom Pfizer authorized to make statements on the subject of
CV risks with the drugs, or (iii) that Pfizer manifested that it adopted or believed to be true, and
(c) whether an agency relationship existed and its scope, whether statements were authorized and whether a party manifested a belief in a statement’s truth are preliminary matters to be determined by the trial court.
102. In the midst of these continuing trial preparation tasks, the Settlement was reached, as discussed more fully below.
III. SETTLEMENT NEGOTIATIONS
103. As explained earlier, in accordance with the Court’s orders in March and
April 2012 certifying the Class and directing that the Parties engage in settlement negotiations, the Parties engaged veteran securities litigator and mediator David Brodsky to oversee a formal mediation of the Action. Prior to this mediation, the Parties exchanged detailed mediation statements setting forth their respective positions on liability and damages.
104. On June 19, 2012, while still engaged in the discovery process, the Parties participated in a full-day, in-person mediation in New York City. The mediation was attended by a representative of Lead Plaintiff and representatives of Pfizer. The Parties, however, were too far apart in their respective positions to reach a resolution of the Action at the mediation.
The Parties also met for two days in September of 2012 with Mr. Brodsky, but once again, were too far apart to make any significant progress. Following the conclusion of the mediation, the
Parties continued their settlement discussions informally through telephonic and in-person meetings off and on over the course of the next four years.
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105. After the Second Circuit’s reversal of the Court’s dismissal of the Action
and reinstatement of the dismissed Pharmacia statements pursuant to Janus, the Parties again resumed settlement discussions.
106. Ultimately, with Defendants’ Rehearing Petition pending, the Parties reached an agreement-in-principle to resolve the Action on July 18, 2016, and thereafter, filed a joint motion for limited remand of the case, without prejudice, pending approval of the Parties’ proposed Settlement and to hold the pending Rehearing Petition in abeyance. On July 27, 2016, the Second Circuit issued an order for a limited remand of the case to this Court for consideration of the proposed Settlement, holding Defendants’ Rehearing Petition in abeyance pending final approval of the Settlement. ECF No. 697.
107. The Parties spent several additional weeks negotiating and documenting their agreement to resolve the Action and, on August 26, 2016, entered into the Settlement
Agreement setting forth the specific terms and conditions of the Settlement. ECF No. 700-1.
108. Following the execution of the Settlement Agreement on August 26, 2016,
Plaintiffs began working with the proposed Settlement Administrator and Escrow Agent in preparation for preliminary approval, a process which culminated in the Court’s entry on
September 16, 2016 of the Preliminary Approval Order. ECF No. 703.
109. Following the issuance of the Second Circuit’s ruling on April 12, 2016 through the Court’s entry of the Preliminary Approval Order on September 16, 2016, Plaintiffs’
Counsel had expended an additional approximately 1,618 hours prosecuting the Action, reflecting a lodestar of $1,044,103. See infra § IX.A (describing “Category 7” time).
IV. TERMS OF THE SETTLEMENT
110. The Settlement of $486,000,000 (plus interest) is in full and complete
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settlement of the claims that have or could have been brought against the Defendants.
$3,000,000 of the Settlement Amount was, in accordance with the Preliminary Approval Order,
deposited into the Escrow Account on September 30, 2016, and the remainder of the Settlement
Amount will be deposited by Pfizer 30 calendar days prior to the Final Approval Hearing (i.e.,
on or before November 21, 2016).
111. The Settlement Fund will first be used to pay taxes, Notice and
Administrative Expenses and the Attorneys’ Fees and Expenses Award. After payment of those
amounts, the balance of the Settlement Amount—the Net Cash Settlement Amount—will be distributed on a pro rata basis to Class Members who are Authorized Claimants in accordance with the POA (described below).22
22 The proposed Settlement will resolve claims of the Class certified by the Court pursuant to its Opinion and Order filed March 29, 2012, as amended April 6, 2012, and consisting of: All persons or entities who purchased and/or otherwise acquired Pfizer common stock between and including October 31, 2000 and October 19, 2005 (the “Class Period”), with the exception of: (a) any persons or entities who both purchased and sold all of their shares of Pfizer common stock between and including October 31, 2000 and October 6, 2004; (b) Pfizer and the Individual Defendants; (c) members of the immediate family of each of the Individual Defendants; (d) subsidiaries or affiliates of Pfizer or any of the Individual Defendants; (e) any person or entity who is, or was during the Class Period, a partner, officer, director, employee or controlling person of Pfizer or any of the Individual Defendants; (f) any entity in which any of the Individual Defendants has a controlling interest; (g) the legal representatives, heirs, successors or assigns of any of the foregoing excluded persons or entities; and (h) the insurance carriers or their affiliates who insure the Defendants (the “Main Class”). A subclass was also certified by the Court and consists of all members of the Main Class who purchased Pfizer common stock contemporaneously with the sale of Pfizer common stock by Individual Defendants Henry A. McKinnell, Karen L. Katen and John L. LaMattina on any of the following dates: October 26, 2000, November 6, 2000, October 19, 2001, October 23, 2001, October 29, 2001, February 21, 2002, February 25, 2002, February 27, 2003, November 18, 2003, February 24, 2005, May 6, 2005, May 10, 2005 or August 16, 2005 (the “20A Subclass” and, together with the Main Class, the “Class”).
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112. Upon the Court’s final approval of the Settlement, Plaintiffs and the other
Class Members will release, and shall be enjoined from prosecuting, all claims that were or could
have been asserted in the Action.
V. THE NOTICE PROGRAM
113. In July 2012, in connection with its certification of the Class and prior to
the Settlement, the Court approved the form and manner of notifying the Class of the pendency
of the Action as a class action and of the right of Class Members to request exclusion from the
Class and the procedures for doing so. ECF No. 390. Beginning on July 26, 2012, the Class
Notice was mailed to over 3.7 million potential members of the Class, and a summary of the
Class Notice was published in The Wall Street Journal and The New York Times and transmitted over PR Newswire on July 30, 2012. ECF No. 393, ¶¶8-10; ECF No. 413, ¶4.
114. In October 2012, Class Representatives reported to the Court on the number of Class Members who opted out of the Class. ECF Nos. 412-414. Subsequently, a group of institutional investors who had validly opted out of the Class in connection with the
Class Notice requested permission to rejoin the Class once the Second Circuit had issued its opinion in IndyMac. The Class Representatives acquiesced to the former opt outs’ requests, and the Court approved their reinstatement into the Class. ECF No. 513. A list of the persons and entities who validly requested exclusion in connection with the Class Notice, and who did not opt back into the Class, is attached as Exhibit C to the Settlement Agreement. ECF No. 700-1
(Ex. C). Out of the millions of Pfizer investors who were mailed the Class Notice, only 209 investors validly opted out of the Class. See id.
115. On September 16, 2016, the Court issued its Preliminary Approval Order preliminarily approving the Settlement and directing notice of the proposed Settlement to the
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Class; the Court agreed that a second opt out period was not required and one was not afforded by the Court. ECF No. 703.
116. After the Settlement was reached, a wide-ranging program was instituted to provide notice of the Settlement to the Class, to allow Class Members to submit claims in order to be potentially eligible to receive a distribution from the Settlement and to provide Class
Members with an opportunity to object to any aspect of the Settlement, the Plan and/or the Fee and Expense Reimbursement Requests. As required by the Preliminary Approval Order,
Plaintiffs, working with and through the Settlement Administrator, notified potential Class
Members of the Settlement by mailing the Notice and Claim Form to potential Class Members and their nominees, and publishing notice of the Settlement in accordance with the Preliminary
Approval Order. See GCG Affidavit ¶¶2-13.
117. The Preliminary Approval Order required that the Notice and Claim Form be mailed to all persons and entities who were previously mailed copies of the Class Notice
(utilizing updated addresses where required) and other potential Class Members who otherwise could be identified through reasonable effort. Among other things, the Settlement Administrator did the following to reasonably identify additional potential Class Members: (1) reviewed the original mailing to Class Members that was done in 2012; (2) eliminated duplicative records from the original mailing list; (3) ran the remaining address records through the United States
Postal Service National Change of Address database to ensure that the Settlement database reflected the most current addresses; (4) notified the security settlement system of the Depository
Trust Company (“DTC”) of the issuance of the Notice, and requested that DTC post the Notice on its electronic legal notice system, which may be accessed by institutions or other nominees that participate in DTC’s security settlement system; (5) caused a copy of the Claim Packet to be
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mailed to the nominees in the Settlement Administrator’s database; and (6) followed up with the
top 70 nominees in its database that typically respond to class action notices but who did not
respond in connection with the Class Notice or this Notice, to remind them to provide the names and addresses of their clients who may be Class Members. See GCG Affidavit ¶¶3-10. This
process and other actions taken by the Settlement Administrator led to identification of more
than 500,000 additional names and addresses of potential Class Members, and Claim Packets
were mailed to these additional potential Class Members and Nominees. See GCG Affidavit
¶11.
118. The Preliminary Approval Order further required that the Publication
Notice be published once in The Wall Street Journal and The New York Times, and that it be
transmitted over PR Newswire within ten days of mailing of the Notice and Claim Form, and
that the Notice, Claim Form and Publication Notice be posted on the website developed for the
Settlement. In sum, the Preliminary Approval Order set deadlines for, inter alia, the following
matters related to the Final Approval Hearing:
Event Deadline Mailing of Notice and Claim Form October 1, 2016 Publishing of Publication Notice in The Wall Street Journal October 11, 2016 and The New York Times, and transmitting Publication Notice over PR Newswire Filing all papers in support of the Settlement, Plan and November 11, 2016 attorneys’ fees and expenses Filing Objections in connection with the Settlement November 26, 201623 Filing Class Member Appearances, individually or through November 26, 201624
23 November 26, 2016 is a Saturday and, therefore, under FED. R. CIV. P. 6(a)(1)(C), such objections are due on Monday, November 28, 2016. See, e.g., Johnson v. Fordham University, No. 11-cv-04670, 2016 WL 450424, at *2 (S.D.N.Y. Feb. 4, 2016) (“Where the last day of the period is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”).
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counsel Filing reply papers in support of the Settlement, Plan and December 6, 2016 attorneys’ fees and expenses Filing proof of mailing of Notice and Claim Form and December 14, 2016 publication of the Publication Notice Final Approval Hearing December 21, 2016 at 10 a.m.
119. In total, as of November 4, 2016, 4,106,573 copies of the Notice and
Claim Form were disseminated to potential Class Members and their Nominees. See GCG
Affidavit ¶12. In addition, on October 6, 2016, the Publication Notice was published in The
New York Times and The Wall Street Journal, and transmitted over PR Newswire. See GCG
Affidavit ¶13. Information regarding the Settlement, including copies of the Notice, Claim Form
and Publication Notice, as well as the Settlement Agreement and operative complaint, was
posted on the website established by the Settlement Administrator,
www.pfizersecuritieslitigationsettlement.com.25 See GCG Affidavit ¶15. This method of
providing notice, which the Court previously approved, provides appropriate and sufficient
notice because it provides notice “in a reasonable manner to all class members who would be
bound by the” proposed judgment. FED. R. CIV. P. 23(e)(1); see Settlement Brief §II.
120. The Notice explains to Class Members the essential terms of the
Settlement, sets out a procedure for objecting to the Settlement, Plan and/or Fee and Expense
Reimbursement Requests, and provides the specific date, time and place of the Final Approval
Hearing. The Notice further contains the proposed Plan of Allocation and information regarding
24 November 26, 2016 is a Saturday and, therefore, under FED. R. CIV. P. 6(a)(1)(C), such appearances are due on Monday, November 28, 2016. 25 The Settlement Administrator also maintains a toll-free telephone hotline and interactive voice response system to accommodate inquiries from potential Class Members and to respond to frequently asked questions. The hotline is accessible 24 hours a day, seven days a week. See GCG Affidavit ¶14.
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Plaintiffs’ Counsel’s Fee and Expense Reimbursement Requests. As explained in the
accompanying Settlement Brief, the Notice fairly informs Class Members of their rights with
respect to the Settlement and thus is the best notice practicable under the circumstances and
complies with the Preliminary Approval Order, Rule 23 of the Federal Rules of Civil Procedure, and due process. See Settlement Brief §II. In response to the over 4.1 million Notices mailed, as of November 10, 2016, there have been only 10 objections received in connection with the
Settlement.
VI. THE PLAN OF ALLOCATION
121. The standard for approval of a plan of allocation is the same as the standard for approving a settlement: it must be fair, reasonable and adequate and a plan needs to only have a reasonable, rational basis, particularly if recommended by experienced and
competent counsel such as Plaintiffs’ Counsel in this Action. See Settlement Brief §I.D.
122. The Settlement Amount (plus any interest accrued thereon), after
reduction for taxes and tax expenses (as provided for in the Settlement Agreement), Notice and
Administrative Expenses and Court-approved attorneys’ fees and expenses, will be allocated to eligible members of the Class based on a plan of allocation. The POA being proposed by
Plaintiffs, as set forth in the Notice, was developed by Plaintiffs’ loss causation and damages expert and Plaintiffs’ damages consultant in consultation with Lead Counsel and other Plaintiffs’
Counsel and provides a fair and reasonable method to allocate the proceeds of the Settlement
among Class Members who submit valid Claim Forms.
123. Under the POA, a “Recognized Loss or Gain Amount” will be calculated
for the purchases and/or acquisitions of Pfizer common stock listed in each Claim Form and for
which adequate documentation is provided. This calculation will be based on several factors,
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including when the shares of Pfizer common stock were purchased/acquired and sold, the
purchase/acquisition and sale prices, and the estimated artificial inflation in the price of Pfizer
common stock at the time of purchase/acquisition and at the time of sale, as determined by
Plaintiffs’ damages consultant. Additionally, the POA takes into account the Court’s ruling on
Defendants’ first summary judgment motion in which the Court found that the full extent of the truth was in the public domain as of the end of the day on December 19, 2004 and there was no loss-causing risk information disclosure after that time. See ECF No. 455 at 19-22.26
124. The Settlement will be allocated to Authorized Claimants on a pro rata
basis based on the relative size of their Recognized Claim (i.e., the sum of an Authorized
Claimant’s Recognized Loss Amounts and Recognized Gain Amounts) in comparison to the total
Recognized Claims of all Authorized Claimants.
125. Similar plans of allocation repeatedly have been approved by this Court.
See Settlement Brief §I.D.
126. The Notice sets forth the proposed POA and notifies Class Members of
their right to object to it. The POA was prepared only after extensive consultation with
26 While the Plan compensates all Class Members who file valid Claim Forms with Recognized Losses based upon their transactions, the Plan does not “separately” compensate Class Members who traded contemporaneously with the Individual Defendants under Section 20A of the Exchange Act. A large portion of the damages associated with such 20A Claims accrued from trades of the Individual Defendants that occurred after December 16, 2004, which are no longer compensable under the rulings of the Court referred to above. The remaining damages for trades that occurred during the Class Period, but prior to December 16, 2004, amount to a relatively insignificant amount of damages, when compared to the overall Section 10(b) damages. Apportioning the $486 million Settlement Amount between Section 10(b) damages and Section 20A damages leaves the Section 20A portion at well below $100,000 in total. See ECF 702-2 at p. 10. Consequently, the costs of separately administering and apportioning out such funds among all of the potential Class Members who may have traded contemporaneously is not justified under the circumstances, as it would add little to nothing to each individual Class Member’s recovery who so qualifies under Section 20A. See id.
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Plaintiffs’ loss causation and damages expert and Plaintiffs’ damages consultant, does not take
into account the specific trading patterns of Lead Plaintiff or the other Class Representatives, and
is fair, reasonable and adequate to the Class as a whole.
VII. DAMAGES
127. To calculate damages, Plaintiffs retained Professor Daniel Fischel, a
renowned expert who has served as Dean of the University of Chicago Law School, Director of its Law and Economics Program, Professor at both the Chicago and Northwestern Business
Schools, and consultant to the SEC and the Federal Trade Commission.
128. Professor Fischel used a standard “event study” methodology to calculate artificial inflation of Pfizer’s stock price during the Class Period. Originally, he identified seven
“corrective disclosures” that revealed CV risks associated with Celebrex and Bextra and led to
statistically significant declines in Pfizer’s stock price. He also developed an offsetting financial
calculation that measured inflation that came into Pfizer’s stock price during the Class Period
(i.e., a conservative offsetting calculation that had the effect of reducing the artificial inflation in
the stock price and, thus, reducing overall recoverable damages). Professor Fischel’s analysis
included calculations of the amount of artificial inflation in Pfizer’s stock attributable to the
alleged fraud on each day of the Class Period.
129. After the Court’s ruling on Defendants’ first summary judgment motion,
which eliminated two of the corrective disclosures (as discussed earlier), Professor Fischel
revised his analysis to remove from his calculations the artificial inflation associated with the
two “dismissed” corrective disclosures. Thus, Professor Fischel’s revised analysis used the five
remaining corrective disclosure events to calculate the artificial inflation that came out of the
stock and found that the elimination of the two corrective disclosures reduced overall inflation in
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the stock by 9.7%. In his revised analysis, Professor Fischel took the additional step of
calculating a proportionate decrease (the “Proportional Reduction”) in the offsetting calculation
that measured inflation coming into the stock during the Class Period. Professor Fischel did not
believe it was necessary to make any changes to his calculations based on the dismissal of the
Pharmacia statements and, therefore, he made no adjustments related to that ruling.
130. In vacating the Court’s decision excluding Professor Fischel from
testifying, the Second Circuit noted that the Court did not abuse its discretion in concluding that
the Proportional Reduction was unreliable, ECF No. 694 at 54-58, but held that rather than
excluding Professor Fischel’s testimony in its entirety, the Court “should have simply prevented
him from making the Proportional Reduction.” Id. at 62.
131. Based on Professor Fischel’s proposed Amended Supplemental Report,27 which eliminated the two corrective disclosures and the Proportional Reduction, and as further analyzed post-appeal by Plaintiffs’ damages consultant, Michael A. Keable, the artificial inflation existing in Pfizer’s stock price during the Class Period for purposes of the Settlement is as reflected in the table below:
27 This report was included with Plaintiffs’ June 6, 2014 motion for leave to file an amended supplemental expert report, ECF Nos. 665-666, 668.
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Date Artificial Inflation October 30, 2000 – April 15, 2003 $0.96 April 16, 2003 – August 25, 2004 $1.9228 August 26, 2004 – September 29, 2004 $2.23 September 30, 2004 – October 6, 2004 $3.28 October 7, 2004 – October 14, 2004 $2.76 October 15, 2004 – November 9, 2004 $1.96 November 10, 2004 – December 16, 2004 $1.44
132. Plaintiffs’ damages consultant utilized the foregoing estimate of artificial inflation to compute an estimate of the maximum aggregate damages that could be recovered by
Class Members after a trial at $5.37 billion. See Second Keable Decl. ¶8; First Keable Decl.,
702-1, ¶2. This estimate assumed that Plaintiffs would prevail on all elements of liability, including overcoming every loss causation and damages argument that Defendants would raise at trial (discussed below). See ECF Nos. 702-1, 702-2.
133. To compute maximum aggregate damages, Plaintiffs’ damages consultant applied the estimated artificial inflation in Pfizer’s stock to the commonly utilized “80/20 multi- trader” trading model to estimate the number of shares bought and held through at least one corrective disclosure. Id. Plaintiffs’ damages consultant estimates that maximum aggregate damages under this model are $5.37 billion based on an estimated 3.67 billion damaged shares purchased during the Class Period, which equates to average per-share damages of $1.46.
Dividing the amount of the Settlement ($486 million) by 3.67 billion damaged shares yields an average per-share settlement value of approximately $0.13 cents. Id.29
28 Professor Fischel’s analysis stated that the artificial inflation for this period was $1.93 based on arithmetical rounding resulting from the merger of Pharmacia with a Pfizer subsidiary, but for purposes of the POA, Plaintiffs’ damages consultant determined that $1.92 was the appropriate figure. 29 It is important to note that the average recovery per share would differ for every Class Member as each Class Member’s recovery depends on when they transacted in Pfizer common stock and,
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134. The proposed recovery of $486 million in the Settlement represents
approximately 9% of these maximum aggregate damages, which is about nine times greater than
similar securities class action settlements where alleged losses are greater than $5 billion. See
Laarni Article (attached hereto as Exhibit A) (for years 2006-2015, median securities class action
settlements as a percentage of estimated damages were only 0.8% to 1% for cases, like this one,
with estimated losses of over $5 billion); Starykh Article (attached hereto as Exhibit B) (median
securities settlements between 1996 and 2015 recovered 1% where losses were between $5
billion and $10 billion). As discussed briefly above (see supra § I.C), and further below (see
infra § VIII.G), the $486,000,000 Settlement also represents a significantly higher percentage of
likely recoverable damages because of the enormous litigation risks that threatened to severely
limit recoverable damages if the case were to proceed to trial.
135. Consequently, it is respectfully submitted that the Settlement proposed
here—particularly after the Action was dismissed in its entirety at summary judgment prior to its
resurrection on appeal—is an excellent result for the Class and merits final approval.
VIII. THE GRINNELL FACTORS SUPPORT APPROVAL OF THE SETTLEMENT
136. As explained in the Settlement Brief, courts in the Second Circuit examine
the following factors in assessing the adequacy of a class action settlement:
(1) the complexity, expense and likely duration of the litigation, (2) the reaction of the class to the settlement, (3) the stage of the proceedings and the amount of discovery completed, (4) the risks of establishing liability, (5) the risks of establishing damages, (6) the risks of maintaining the class action through the trial, (7) the ability of the defendants to withstand a greater judgment, (8) the range of reasonableness of the settlement fund in light of the best possible recovery, [and] (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.
if challenged in a trial setting, possibly whether they could actually show reliance on the integrity of the market price when purchasing/acquiring Pfizer stock. See ECF No. 702 at 3.
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Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974) (internal citations omitted); see
Settlement Brief §I.C. As explained below, the Settlement satisfies the Grinnell criteria.
A. THE COMPLEXITY, LIKELY DURATION AND EXPENSE OF THE LITIGATION
1. Complexity
137. The complexity of this case cannot be overstated. Aside from complicated issues of medical science (such as esoteric nuances between CV risk generally and
“thromboembolic” CV risk) and difficult-to-grasp concepts of bio-statistics, discussed further below, the case involved not one Cox-2 drug, but three—Celebrex, Bextra and parecoxib (a/k/a
Dynastat, the injectable form of Bextra). Each drug had separate (yet sometimes intertwined) clinical and/or epidemiological studies and/or associated meta-analyses that were integral to understanding their CV risks. There were at least twenty Celebrex, Bextra and/or parecoxib clinical studies, epidemiological studies, pooled-analyses and meta-analyses that were central to
Plaintiffs’ task of showing increased CV risks for Celebrex and Bextra. Digesting and understanding the results of each study and the associated bio-statistical analyses was a complicated, time-consuming and laborious endeavor. And, at trial, Defendants would bring more studies and meta-analyses that they claimed did not show increased CV risk into the fray as part of their defense. These studies also needed to be digested and understood.
138. In addition, the time span of the events in question was at least seven years. While the Class Period was itself lengthy (approximately five years), the events in question began as early as 1997 and 1998 when Pfizer and Searle first began their partnership to jointly develop and market the products. The facts related to the Pfizer/Searle (later
Pfizer/Pharmacia) partnership and the sharing of information about the CV risks of the drugs that occurred during this time frame are essential to understanding the case. Thus, even pre-Class
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Period events were critical to understanding Plaintiffs’ case about the alleged fraud that occurred
during the Class Period and added significantly to the complexity of the case.
139. Furthermore, the partnership structure between Pfizer and
Searle/Pharmacia not only added complexity in terms of time but it also more than doubled the
number of people who were involved and whose identities and roles would need to be explained
to and understood by jurors. For example, each Pfizer employee who headed a joint committee
related to Celebrex and/or Bextra had a “counterpart” or committee “co-head” at Pharmacia or,
before that, Searle. Decisions to publish or, more pertinently, not to publish, a clinical study that showed increased CV risk were made jointly by both companies. See, e.g., ECF No. 420 ¶¶7-24.
Thus, it would be necessary to review with the jury the composition and managerial structure of the joint committee that made such decisions. With respect to other studies, the composition and managerial structure of different joint committees (staffed with different personnel from the respective companies) would have to be explained to the jury, and so on.
140. The sheer number of committees (over the life of the partnership, there were at least 34 joint committees devoted to jointly running the Cox-2 Alliance), changes to the committee structure over time, periodic renaming of committees and reshuffling of committee functions and responsibilities, and the reorganization of committee membership made understanding how decisions regarding the drugs were made, and who made them, dizzyingly complex. There were many Pfizer employees and equally as many (if not more)
Searle/Pharmacia employees whose identities and roles within their respective organizations— and, in addition, their roles within the Pfizer and Searle/Pharmacia partnership—were critical to
Plaintiffs’ case and to the jury’s understanding of the alleged scheme to defraud.
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141. Jurors would need to gain familiarity with most if not all of these committees and with the Pfizer and Pharmacia personnel who were on such committees before even proceeding to hearing evidence about the CV risks in particular studies. This is primarily because the committee structure was often key to the manner in which information flowed up the chain of command in the Pfizer/Pharmacia partnership structure. The committee structure was designed like the layers of a wedding cake with numerous committees of lower level managers reporting to fewer committees filled with mid-level managers which in turn reported to the top level committee of the combined partnership—the so-called “Executive Management
Committee,” which was comprised of Pfizer’s top level executives (including Dr. McKinnell and
Ms. Katen) and Pharmacia’s top executives. See ECF No. 420, ¶¶7-24.
142. In addition to the complexity of the partnership committee structure, the volume of information shared between the companies during the more than five years the partnership lasted was immense and added significantly to the challenges in the case. For example, the task of wading through the morass of email traffic between and among Pfizer and
Searle/Pharmacia discussing the CV results of particular studies and then distilling that knowledge down to a chronology of simple events to illustrate to the jury who knew what about the CV results of a particular study, and when they knew it, required a truly Herculean effort and the investment of substantial attorney and paralegal time. Thus, the lengthy time period in question added to the complexity of the case based merely on the volume of information that needed to be digested.
143. Further complexity was added because Defendants also sought to lengthen the period of time in question to well after December 2004 (the month in which, as determined by the Court in its first summary judgment decision, the last corrective disclosure occurred).
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Defendants’ trial exhibit list included at least 248 exhibits that were dated after December 2004,
and included potential exhibits from 2009 to 2014 relating to such things as Celebrex label
changes, Physician’s Desk Reference excerpts relating to Celebrex, and Celebrex clinical studies
conducted well after the Class Period. At trial, Plaintiffs’ Counsel would object that such belated
evidence is irrelevant to Pfizer’s mental state and the relevant events that took place from 1997
to December 2004. If Defendants were successful in introducing such evidence, however,
numerous additional studies and other evidence would become part of the case and add to its
complexity; indeed, the time frame of relevant events would then extend from 1997 to 2014, a
period of seventeen years.
144. In addition to contending with a lengthy time period during which relevant
facts occurred, jurors would also need to grasp complicated medical hypotheses and fine
distinctions between types of CV risk. This is primarily because just as Celebrex was first being
introduced to the market in early 1999, a professor at the University of Pennsylvania (Dr. Garrett
Fitzgerald) and others released a study that hypothesized increased CV risk for Cox-2 inhibitors.
This became known as the “Fitzgerald Hypothesis.” See ECF No. 420, ¶¶87-104. Differences
between types of CV risk would be extremely important during a trial because Defendants
insisted throughout the litigation that: (a) both the Fitzgerald Hypothesis and the public’s
concern about increased CV risk with Cox-2 inhibitors involved only a particular type of CV
risk—so-called “thromboembolic” risk, which can loosely be described as heart problems created by clotting in the blood vessels (examples being a heart attack or stroke)—and (b) when
Pfizer (and/or Searle/Pharmacia) made statements that they had seen no evidence of increased
CV risk for Celebrex (and later Bextra) in particular studies, they were referring to only CV
“thromboembolic” risk, but not to other types of CV risks such as angina pectoris, arrhythmias,
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palpitations, tachycardia, atrial fibrillation, cardiac failure, hypertension or edema. See, e.g.,
ECF No. 382 at 1-2, 5-10, 19.
145. Although Plaintiffs’ Counsel firmly believe that these distinctions were
irrelevant to the alleged falsity of many of Pfizer’s statements (see, e.g., ECF No. 418 at 4-7), in
order to understand why Defendants’ supposed defense was not valid, jurors would need to gain
a basic (and, with respect to certain studies, an in-depth) understanding of the Fitzgerald
Hypothesis and the distinctions between types of CV risks. While Plaintiffs’ Counsel had no
intention of belaboring an explanation of the Fitzgerald Hypothesis in front of the jury, the
hypothesis was a basic factual “building block” in the case that was constantly referred to in the
evidence and testimony, even if the relevant evidence was dated much later in 2002, 2003 or
2004. Thus, a basic understanding of the hypothesis would be necessary to understanding references to it made by witnesses (both factual and expert) throughout the trial, and the
hypothesis’s intricacies is just one illustration of the medical complexities in the case.30
146. Jurors would also need to understand complicated methods of bio-
statistical analysis. In particular, the concepts of statistical significance in a clinical study,
“meta-analysis,” study “end points,” “p-values,” “two-sided p-values,” and “confidence
intervals,” among other statistical concepts, would need to be explained to and understood by
jurors, not to mention mastered (as they were after great effort) by Plaintiffs’ Counsel so that fact
and expert witnesses could be effectively cross-examined in this case. Plaintiffs’ Counsel’s need
to master the intricacies of bio-statistics greatly added to the complexity and importance of
explaining the intricacies to jurors in a straightforward, easy-to-understand manner.
30 The article describing the Fitzgerald Hypothesis entitled “Systemic biosynthesis of prostacyclin by cyclooxygenase (COX)-2: The human pharmacology of selective inhibitor of Cox-2,” and evidencing its complexity, is attached as Exhibit 15 to ECF No. 383.
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147. Another factor adding to the complexity of this case was that, indirectly,
there was also a fourth Cox-2 drug involved—Vioxx. A Cox-2 inhibitor developed and owned
by Merck, Inc., Vioxx competed with Celebrex and Bextra from Vioxx’s introduction to the
market in mid-1999, shortly after Celebrex was first introduced. Because they were all Cox-2
inhibitors, Vioxx was in the same “class” of drugs as Celebrex (and Bextra and parecoxib).
Thus, in order for a jury to understand the statements Pfizer made relating to the relative risks of
Celebrex and Bextra versus Vioxx, certain information would need to be conveyed. Specifically,
jurors would need to understand and have explained to them in detail, inter alia, the basics behind the Vioxx drug, the reasons it was found to have heightened CV risks, the Vioxx studies that showed increased CV risk (primarily the so-called “VIGOR” study), and what Pfizer knew about Vioxx’s risks (both from information in the public domain and from internal Pfizer discussions about Vioxx’s risks). See, e.g., ECF No. 420, ¶¶54-60; ¶¶699-826. Thus, the need to keep track of facts related to not only the three Cox-2 drugs directly at issue in the case, but also a competitor’s Cox-2 drug and the drug studies showing it had increased CV risk added to the complexity of the case.
148. In addition, Pfizer’s statements also included statements that certain studies showed that Celebrex or Bextra had less (or no increased) CV risk versus traditional, non-Cox-2 arthritis drugs such as naproxen, diclofenac or ibuprofen. See ECF No. 420, ¶¶699-
826. These traditional arthritis drugs were used by consumers before introduction of Cox-2s in
1999 and are referred to as NSAIDs. As with Vioxx, in order to understand how Pfizer’s statements were allegedly false or misleading, it would be necessary to explain to the jury, and for the jury to keep track of, even more drugs and associated drug studies, drug labels and other information related to them. This too added to the complexities of the case.
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149. Another factor adding to the complexity of the case was the need to
understand and succinctly explain to the jury the FDA drug-approval and drug labeling processes. In addition, the drugs were marketed in numerous countries other than the United
States. Thus, there were numerous regulatory authorities aside from the FDA whose assessments and opinions of the CV risks of the drugs as seen in clinical and pre-clinical (i.e., animal) studies were relevant to Defendants’ knowledge of those risks. See, e.g., ECF No. 420, ¶¶199-206. The nuances of the particular foreign regulator’s drug review and approval process and ongoing, post-approval drug safety review processes would have to be explained to jurors.
150. Given (i) the extended time frame over which the events in question occurred, (ii) the number of drugs and drug studies involved, (iii) the maze of the Pfizer and
Searle/Pharmacia partnership committees structure, (iv) the sheer number of Pfizer and
Searle/Pharmacia personnel involved, (v) the need to understand nuanced differences in types of
CV risk and esoteric medical hypotheses, (vi) the need to understand complex bio-statistical concepts, and (vii) the need to have a basic understanding of the different regulatory schemes between the FDA and non-U.S. regulators, keeping track of the basic facts in this matter would be a complex task and a challenge for any juror, as it was for Plaintiffs’ Counsel.
151. Finally, all of the foregoing complexities do not even include challenges that were presented by Plaintiffs’ Counsel having to understand, and having to develop a method to explain to jurors in an easy-to-understand manner, the “event study” methodology employed by Professor Fischel, which is discussed at length elsewhere herein.
2. Likely Duration
152. The likely duration of this case also supports the fairness and reasonableness of the Settlement. This case has already lasted 12 years since it was first filed.
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But that is really only the tip of the iceberg. Assuming for illustration purposes that instead of
reaching a settlement, the Second Circuit denied Defendants’ Rehearing Petition in late August,
2016 (i.e., shortly after the Settlement was reached) and remanded the case to this Court for trial,
given the varying schedules of the more than ten (Plaintiff and Defendant) law firms that would
be involved in a trial and this Court’s own schedule, at best, a trial likely would have
commenced in early 2017.31 The Parties estimated in the Joint Pre-Trial Statement that a trial
would take at least three months. Thus, the absolute earliest a verdict in this case was likely
would have been mid-2017.
153. A verdict in favor of Plaintiffs would have resulted in Defendants’
initiation of a lengthy appeal process that would in all probability take years to resolve. Indeed,
the appeal involving discrete issues related to the exclusion of Plaintiffs’ loss causation and
damages expert and whether Pfizer could be held liable for Pharmacia’s statements under Janus
itself took more than 21 months from the time the notice of appeal was filed until a decision was
rendered by the Second Circuit (and even then the matter was not resolved because Defendants
filed the Rehearing Petition). Any post-verdict appeal would involve many more issues and
likely take at least as long, if not longer, for the Second Circuit to resolve.
154. In the event of an unfavorable decision by the Second Circuit on such a
post-verdict appeal, Defendants would likely file a petition for certiorari in the U.S. Supreme
Court challenging the “price maintenance theory” on which Plaintiffs’ damages analysis was
premised. As the Court is aware, the price maintenance theory has been described as the
proposition that when a company makes statements pre-class period and repeats them during the
31 This hypothetical time frame also presupposes that Defendants would not have attempted to seek Supreme Court review following the denial of their petition by the Second Circuit.
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class period, “it is reasonable to conclude that each misstatement played a role in causing the
inflation in the stock price (whether by adding to the inflation or helping to maintain it).” In re
Vivendi Universal, S.A. Sec. Litig., 765 F. Supp. 2d 512, 562 (S.D.N.Y. 2011); see also
FindWhat Inv’r Grp. v. FindWhat.com, 658 F.3d 1282, 1316 (11th Cir. 2011) (“There is no
reason to draw any legal distinction between fraudulent statements that wrongfully prolong the
presence of inflation in a stock price and fraudulent statements that initially introduce that
inflation.”) (emphases added). In their opposition brief submitted in the Second Circuit on the
summary judgment appeal, Defendants argued, inter alia, that the price maintenance theory is
not the law because neither the Supreme Court nor the Second Circuit (at that time) had
addressed it,32 and it is inconsistent with the Supreme Court’s ruling that experts must
disaggregate the full “tangle of factors affecting price” under Dura Pharm., Inc. v. Broudo, 544
U.S. 336, 343 (2005). See Second Circuit ECF No. 148 at 41. Defendants also raised this
argument in the Rehearing Petition. Second Circuit ECF No. 226 at 14. If a petition for
certiorari was granted, further litigation before the U.S. Supreme Court would add significant
delay and, if Defendants were successful, could result in a reversal, the need for a new trial and
possibly no recovery at all for the Class. In any event, years would be added to the duration of
the case regardless of whether there was a successful outcome for the Class.
155. In addition, even putting aside post-trial appellate issues, there is no
question that Defendants would, as other Defendants in securities fraud class actions have done
(see In re Vivendi Universal, S.A. Securities Litigation), initiate a second step to the trial process,
32 After the Settlement, the Second Circuit generally endorsed the price maintenance theory. See In re Vivendi Universal, S.A. Securities Litigation, Nos. 15-180-cv(L), 15-208-cv(XAP), slip op. at 76 (2d Cir. Sept. 27, 2016) (“[W]e agree…that securities-fraud defendants cannot avoid liability for an alleged misstatement merely because the misstatement is not associated with an uptick in inflation.”).
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post-verdict, by attempting to rebut the presumption of reliance based on the fraud-on-the-market
doctrine as to individual reliance by certain categories of Class Members. In Vivendi, Judge
Scheindlin set established standards and procedures by which Defendants in that case could seek
to meet the burden of rebutting the presumption of individual reliance as to certain categories of
class member claimants. The process in that case lasted more than six years from the date of the
verdict,33 and it would be likely to last at least that long in this case.
156. In sum, it is likely that if the Settlement had not been reached, this case
would have lasted at least another decade beyond the 12 years it has already lasted before any
recovery would be paid to Class Members. That would amount to a total likely delay of more than 22 years from the filing of the first complaint in this Action before any recovery would be
paid to Class Members.34 The length of the probable delay in receiving any recovery weighs
heavily in favor of the reasonableness of the Settlement.
3. Expense
157. Given the complexity of this case and the need for multiple experts,
including experts in cardiology, rheumatology, biostatistics, clinical drug trials, epidemiology,
pharmaceutical development and regulatory issues, and securities litigation damages, mammoth
33 See In re Vivendi Universal, S.A. Secs. Litig., No. 02 Civ. 5571 (SAS), Final Judgment, ECF No. 1301 (S.D.N.Y. July 14, 2016) (final judgment explains that jury verdict was returned on January 29, 2010, the Court set procedures for challenging individual reliance on July 5, 2012, the Court granted summary judgment motions related to Defendant’s rebuttal of the presumption of reliance in April 2015 and August 2015, and a final judgment was entered on July 14, 2016). 34 While an award of pre-judgment interest to compensate the Class for the delay would be a possibility, see In re Vivendi Universal, S.A. Secs. Litig., 284 F.R.D. 144, 161-64 (S.D.N.Y. 2012) (awarding pre-judgment interest to a class in a securities fraud case), such an award is entirely within the discretion of the Court, see id., and there is a risk that no pre-judgment interest would be awarded or that the amount awarded would not be sufficient to compensate the Class for the extreme delay in awaiting a recovery.
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litigation expenses have been incurred. To date, over the 12-year duration of this litigation,
without any guarantee of recovery, Plaintiffs’ Counsel have incurred $20,004,879.33 in expenses
to prosecute the Action.
158. The expenses have run the gamut of costs that are necessary to prosecute a
massive securities class action case, including more than $1.6 million on document duplicating
costs, more than $5.8 million in expert witness expenses, more than $2.9 million in expenses
related to providing Class Notice to Class Members and over $4.8 million in consulting fees in
connection with Plaintiffs’ jury consulting firm that has been actively assisting Plaintiffs’
Counsel for over 7 years.
159. Absent the Settlement, millions of dollars more would have to be
advanced by Plaintiffs’ Counsel in order to try the case, fight the numerous appeals that would
surely be filed if the trial were to result in a Plaintiffs’ verdict and see the case through to a final
judgment on behalf of the Class. For example, if, as discussed above, it would take another
decade from a jury verdict to a final judgment on behalf of the Class (as it did for class members
in another securities class action in this Court), the cost of simply hosting the documents
Defendants produced in this litigation on a server for use at trial and in connection with appeals
would cost an estimated $15,000 per month. Over the course of a decade, these document
hosting expenses by themselves would amount to over $1.8 million.
B. THE REACTION OF THE CLASS TO THE SETTLEMENT
160. Per the Preliminary Approval Order, the Settlement Administrator began mailing copies of the Notice and Claim Form to Class Members and nominees on September 30,
2016. See GCG Affidavit ¶¶7-11. As of November 4, 2016, over 4.1 million copies of the
Notice and Claim Form have been sent, the Publication Notice was published in The Wall Street
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Journal and The New York Times and transmitted over PR Newswire, and these documents, and
others related to the Settlement, were posted on the website developed for the Settlement. See
GCG Affidavit ¶¶12-13, 15.
161. While the deadline set by the Court for Class Members to object has not
yet passed, as of November 10, 2016, Lead Counsel has received only 10 objections to the
Settlement, Plan of Allocation, Fee Request and/or Expense Reimbursement Requests.35
C. THE STAGE OF THE PROCEEDINGS AND THE AMOUNT OF DISCOVERY COMPLETED
162. Having prosecuted this case: (i) through discovery, including the
review/analysis of tens of millions of pages of documents, the completion of more than 100 fact
and expert depositions, and the marshaling of an enormous amount of evidence for purposes of
Plaintiffs’ largely-successful opposition to Defendants’ summary judgment motion on the merits;
(ii) to the brink of trial, including identification of 1,567 potential Plaintiffs’ trial exhibits,
intensive analysis of Defendants’ 1,687 proposed trial exhibits and receipt of the benefits of the
reactions of a mock jury; and (iii) to a successful conclusion on appeal after the eve-of-trial
exclusion of Plaintiffs’ loss causation and damages expert, Plaintiffs and Plaintiffs’ Counsel are
acutely aware of the strengths and weaknesses of Plaintiffs’ claims and Defendants’ defenses.
163. The late stage of the proceedings and the enormous amount of discovery
that has been completed, thus, substantiates that Plaintiffs and Plaintiffs’ Counsel have an
excellent understanding of each side’s case as to both liability and damages.
35 Lead Counsel will address these objections along with any others that are hereafter received in Plaintiffs’ reply submission to be filed with the Court on or before December 6, 2016.
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D. THE RISKS OF ESTABLISHING LIABILITY
164. The risks of establishing liability in this case are substantial. The most
immediate risk Plaintiffs faced was that absent the Settlement, the Second Circuit might have granted Defendants’ Rehearing Petition and possibly have reversed the Second Circuit panel’s decision reinstating Plaintiffs’ loss causation and damages expert. While the likelihood of this was small given that such petitions are infrequently granted in this Circuit, the possibility that the
Second Circuit sitting en banc might have agreed with this Court’s exclusion of Plaintiffs’ loss causation and damages expert existed nonetheless. If that were to happen, Plaintiffs would obviously be unable to prove their case as loss causation and damages are required elements of a
Section 10(b) violation36 and, therefore, the Action would subsequently be dismissed on
summary judgment, as had been the situation prior to Plaintiffs’ resurrection of the case on
appeal.
165. Plaintiffs faced much more significant risks in proving loss causation and
scienter at trial, as well as other substantial risks relating, inter alia, to Pfizer’s defense that the
“truth was on the market” (i.e., allegedly concealed study information was adequately disclosed)
and possible exclusion of key evidence on motions in limine.
1. Loss Causation
166. Defendants continuously raised loss causation issues throughout this
litigation. As briefly touched upon earlier, in their summary judgment motion on the merits,
Defendants were successful in eliminating two corrective disclosures Plaintiffs had alleged in
their Amended Complaint (a November 4, 2004 article in Canada’s National Post and two news
36 See 15 U.S.C. § 78u-4(b)(4) (“In any private action arising under this chapter, the plaintiff shall have the burden of proving that the act or omission of the defendant alleged to violate this chapter caused the loss for which the plaintiff seeks to recover damages.”).
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articles appearing on October 20, 2005). The Court found that the disclosures in these articles did not qualify as “materialization of a concealed risk” because they did not reveal any “true risk of Celebrex and Bextra’s [CV] side effects.” ECF No. 455 at 22. The Court rejected
Defendants’ arguments that the other disclosures Plaintiffs alleged were not corrective, finding that resolution of such issues were factual questions for the jury. Id. at 19-22.
167. A trial of this Action promised to bring these issues front and center before the jury. While Plaintiffs’ Counsel believe that Plaintiffs have persuasive arguments as to loss causation, there nevertheless existed a risk that a jury could agree with Defendants that particular disclosures were not corrective of the CV risks Pfizer allegedly concealed. Adverse factual determinations on narrow loss causation issues could eliminate large amounts of recoverable damages.
168. For example, as discussed (in brief) earlier, the corrective disclosure associated with the largest stock price decline, and therefore causing the largest percentage of class damages, was Pfizer’s December 17, 2004 announcement that “it received new information last night about the [CV] safety of…Celebrex…based on an analysis of two long-term cancer trials” and that “[b]ased on these statistically significant findings, the sponsor of the trial, the
[National Cancer Institute], has suspended the dosing of Celebrex in the study….” See ECF No.
455 at 20. The study in question was known as the “APC” trial.37 See id. at 7. Securities analysts reacted to this announcement and the halt of the APC study by exclaiming such things as: “CV Risk for Celebrex a shocker.” ECF No. 420, at 427 ¶819. Plaintiffs maintained that concealed risk materialized with this announcement and resulted in at least a 12% drop in
37 “APC” stands for the Adenoma Prevention with Celebrex study, which was run to examine, inter alia, whether Celebrex was efficacious in stemming the development of cancer.
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Pfizer’s stock price.
169. Defendants and their loss causation expert maintained that the December
17, 2004 APC announcement was not corrective of any concealed information because it was
based on entirely new information (i.e., the news that the APC study would need to be halted due
to increased CV risk with Celebrex) that Pfizer had received only the night before. See, e.g.,
ECF No. 382 at 10, 19, 29. Pfizer would argue strenuously that it did not know, and could not
have known, about the increased CV risk for Celebrex in the study until the night before
December 17, 2004 and that Pfizer disclosed it promptly upon receiving the news. Pfizer would also argue that the type of increased CV risk seen in the APC study (i.e., increased
“thromboembolic” risk) was not the same type of CV risk seen in the studies that Pfizer allegedly concealed during the Class Period. To bolster that argument, Pfizer would cite to a December
17, 2004 FDA press release stating that the FDA did not see the same “sort of” risk in prior
Celebrex studies that was seen in the APC study. Thus, Pfizer had a basis to argue to the jury
that the risk that materialized from disclosure of the APC study was not the same as the
information Pfizer had allegedly been concealing and, therefore, the APC announcement did not
correct any alleged prior misrepresentations Pfizer had made about the CV risk of the drug.
170. While Plaintiffs had substantial evidence to counter these arguments, the
possibility that these arguments could be successful in front of a jury was one of the more
important considerations in assessing the risks of trial. The APC corrective disclosure was, by
far, the most important corrective disclosure in the case from the standpoint of the magnitude of
damages associated with it. If the jury were to find the December 17, 2004 disclosure relating to
the APC study was not corrective, the elimination of this corrective disclosure from Plaintiffs’
damages model would have the effect of eliminating at least 99% of the aggregate maximum
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estimated potential damages of $5.37 billion. This would leave the Class with a liability verdict,
but a Pyrrhic victory because recoverable damages would be reduced to only $28 million. See
Second Keable Decl. ¶10.
171. Defendants and their loss causation expert also challenged each of the
remaining corrective disclosures and a substantial risk remained that a jury would make a factual
determination or side with Defendants’ expert in connection with these corrective disclosures. In
sum, the risk of adverse jury determinations on relatively narrow factual issues involving
whether particular disclosures were corrective increased the risk that large amounts of damages
could be eliminated from Plaintiffs’ case at trial.
2. Pfizer’s Assertion That Certain Concealed Studies Were Actually Revealed to the Market During the Class Period
172. Another risk Plaintiffs faced was whether a jury would credit Defendants’
argument that some of the study information that Plaintiffs alleged was concealed was, in fact,
revealed to the market. This is sometimes referred to as a “truth on the market” defense. In
some instances, the validity of this argument turned exclusively on issues of credibility and, in
evaluating whether to enter into the Settlement, Plaintiffs’ Counsel considered that there is
always inherent litigation risk when an issue goes to a jury based solely on credibility.
3. Potential Exclusion of Key Evidence on Motions In Limine
173. Another litigation risk Plaintiffs faced was uncertainty over whether key pieces of evidence that would bolster Plaintiffs’ case would be excluded from the trial by the
Court on a motion in limine or later on a ruling at trial.
174. Although these motions were fully briefed, they were not yet ruled upon given the exclusion of Plaintiffs’ loss causation and damages expert on the eve of trial. While
Plaintiffs’ Counsel believe that Plaintiffs had valid arguments that Defendants’ various motions
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in limine should be denied, there was a risk that Plaintiffs would not be able to use valuable and persuasive evidence that was the subject of Defendants’ motions.
4. Admission of Potentially Exculpatory Evidence If Plaintiffs’ Key Motions In Limine Were Denied
175. Conversely, there was also a risk that allegedly exculpatory evidence would be admitted if Plaintiffs’ motions in limine to keep out such evidence were denied.
176. One such instance involves a memorandum written by FDA employees in
2005. After hearings were held in early 2005 concerning whether Celebrex and Bextra should be
withdrawn from the market (as Vioxx was), the FDA released an April 6, 2005 memorandum
summarizing the conclusions of these employees (the “April 2005 FDA Memo”). During pre-
trial proceedings, Defendants sought to use, inter alia, the following statement in the April 2005
FDA Memo about the Alzheimer’s 001 study to negate their scienter in allegedly concealing the
study prior to and during the Class Period: “[T]here was a small one-year trial comparing
celecoxib 200 mg twice daily to placebo in patients with Alzheimer’s disease that did not
demonstrate a significantly increased risk of serious adverse CV events, but did show a trend
toward more CV events in the celecoxib treatment arm.” Id.
177. In responding to Plaintiffs’ motion in limine to exclude the April 2005
FDA Memo from the trial, Defendants argued strenuously that “[t]he fact that the FDA [in the
April 2005 FDA Memo] reached the same conclusion as Pfizer…confirms the reasonableness of
Defendants’ views. This alone precludes a finding of scienter.” ECF No. 405 at 2. Although the
motion in limine was fully briefed, it was not yet ruled upon given the exclusion of Plaintiffs’
loss causation and damages expert on the eve of trial. While Plaintiffs’ Counsel believe that
there were valid arguments that Plaintiffs’ motion in limine seeking to exclude the April 2005
FDA Memo should be granted to prevent Defendants’ attempt to confuse the jury, there was a 64
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risk that the memo would be admitted and Defendants would be able to use it in an after-the-fact attempt to negate scienter by making the potentially powerful argument that the FDA agreed with Pfizer’s interpretation of the data and retroactively endorsed the statements Pfizer made from 1999 through December 2004.
178. Similarly, a risk existed that Plaintiffs’ motion to exclude testimony that the Individual Defendants and senior Pfizer executives took Celebrex themselves or gave it to their family members would be denied. While Plaintiffs believe that they had ample grounds for keeping such testimony out of the trial, Plaintiffs’ Counsel recognize the surface appeal of such an argument that could mitigate the Individual Defendants’ knowledge of the increased CV risk associated with Celebrex.
5. The Difficulty of Proving Scienter
179. In addition to the April 2005 FDA Memo, Defendants would point to other evidence in an effort to negate scienter. This evidence would also create substantial challenges in proving scienter before the jury.
a. Dr. McKinnell’s “Interesting Problem With Bextra” Email
180. As the Court is aware, a key piece of scienter evidence was the following email written by Dr. McKinnell to many senior Pfizer officers (including Drs. Feczko and
LaMattina) immediately after the withdrawal of Vioxx on September 30, 2004 and at a time when the “CABG-2” study—which showed a statistically significant increased CV risk that was known to Pfizer since January 2004—was not public:
We need to move immediately to avoid collateral damage and to exploit what could be a major opportunity. I see the priorities as the following: 1. Avoid this becoming a class effect. We need a press release out the door before 9 am making it clear that our clinical studies in tens of thousands of patients show no signal of CV complications. To the contrary we have seen strong signals of beneficial
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effects in cancer, etc. How to handle Bextra is an interesting problem. I suggest we focus on Celebrex….
ECF No. 420 at 146, ¶531; ECF No. 455 at 6.
181. Pfizer deponents who were recipients of this email testified, in substance,
that they understood Dr. McKinnell to be referring to “skin issues,”38 not CV issues, when he
referred to the “interesting problem with Bextra,” and Dr. McKinnell also testified that he was
referring to skin issues. See, e.g., ECF 405 at Appendix C. While Plaintiffs’ Counsel believe
that Plaintiffs have the better argument on the credibility of this explanation, there nevertheless
existed the possibility that a jury might believe Pfizer’s explanation that Dr. McKinnell was
referring to skin issues resulting in a substantial weakening of a central piece of scienter
evidence.
b. The FDA’s Public Statements
182. Defendants would also seek to rely heavily on public statements made by
the FDA after Vioxx’s withdrawal that the FDA had not seen a CV safety signal with Celebrex.
See ECF No. 404-14 (senior FDA official stated in October 28, 2004 article: “As far as
Celebrex, we have not seen any signal, either in the controlled clinical trial data or the population
based data that would make us think that it has excess cardiovascular toxicity over other drugs in
the class. That doesn’t mean that we’re certain. That means that’s what we know so far.”).
183. While Plaintiffs’ Counsel believe documentary evidence establishes that
key information was misrepresented to, or not timely shared with, the FDA and other regulators
(see, e.g., ECF No. 420 at ¶¶617-629, 660-663; ECF No. 548 at 2-6; ECF No. 617 at 1-5), there
38 The reference to skin issues was to Stevens Johnson Syndrome, which is a form of rare but serious skin reactions that had been seen due to use of Bextra. See ECF No. 405 at 17. A warning had been placed on Bextra’s label regarding these issues in 2002. See ECF No. 419 at 64-66.
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was nevertheless a risk that jurors would credit Defendants’ position that if the FDA stated
publically that there was no CV safety signal with Celebrex, it agreed with Pfizer’s interpretation
of the clinical data and, thus, a jury should not conclude Defendants acted with scienter.
184. Other examples exist where unfairly prejudicial or misleading evidence
was the subject of Plaintiffs’ in limine motions, which were still pending at the time the
Settlement was reached. If such motions were not granted, the risk of establishing liability in
this case would be heightened.
E. THE RISKS OF ESTABLISHING DAMAGES
185. Even if Plaintiffs succeeded in overcoming the liability issues discussed
above at trial, and numerous others, they still faced significant risks in proving damages.
186. Presenting the complexities of Professor Fischel’s testimony to a jury
would be challenging and entailed risks since Defendants’ expert, Professor Gompers,
challenged Professor Fischel’s damage calculations. As discussed in the Fee Brief, there are
ample litigation risks when an issue goes to a jury based on a battle of experts. See Fee Brief §
I.3.C (citing In re Bear Stearns Cos., Inc. Secs., Deriv. and ERISA Litig., 909 F. Supp. 2d 259,
267 (S.D.N.Y. 2012) (“When the success of a party’s case turns on winning a so-called ‘battle of
experts,’ victory is by no means assured.”); and In re Cendant Corp. Litig., 264 F.3d 201, 239
(3d Cir. 2001) (“[E]stablishing damages at trial would lead to a ‘battle of experts,’ with each side presenting its figures to the jury and with no guarantee whom the jury would believe.”)).
F. THE RISKS OF MAINTAINING A CLASS ACTION THROUGH TRIAL
187. The Class was certified early on in the case and there was little risk that a
Class could not be maintained through a verdict. However, in the “second step” of the litigation
(discussed above) in which Defendants would attempt to rebut the presumption of reliance based
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on the fraud-on-the-market doctrine and challenge individual Class Members’ reliance on particular misrepresentations, there was real risk to the claims of certain Class Members.
188. If individual reliance challenges were successful, Defendants would
effectively be “chipping away” at the size of the Class and reducing (or eliminating) the damages
that particular Class Members would be eligible to recover.39 This risk is eliminated by the
guaranteed recovery provided by the Settlement as Defendants do not have an opportunity to
raise individualized issues of reliance as part of the Claims process.
G. THE ABILITY OF DEFENDANTS TO WITHSTAND A GREATER JUDGMENT
189. Pfizer is one of the larger companies in the world judged by market capitalization and revenues. While the Settlement is substantial and more than nine times the median class action settlement percentage (see supra § I), and a significantly higher percentage of the likely recoverable damages (see supra § VII), Plaintiffs recognize that Pfizer had the ability to pay more than $486 million. The Second Circuit has held, however, that this factor is not dispositive and need not affect the conclusion that the settlement is within the range of reasonableness. See, e.g., D’Amato v. Deutsche Bank, 236 F.3d 78, 86 (2d Cir. 2001);
Settlement Brief §I.C.5.
H. THE RANGE OF REASONABLENESS OF THE SETTLEMENT FUND IN LIGHT OF THE BEST POSSIBLE RECOVERY AND IN LIGHT OF ALL THE ATTENDANT RISKS OF LITIGATION
190. As discussed at length earlier, the proposed recovery of $486 million
represents approximately 9% of maximum aggregate damages, which is 9 times the amount of
39 Such a tactic was successfully utilized by defendants in Vivendi to lengthen the proceedings and to ultimately reduce the jury award in a substantial fashion. See In re Vivendi Universal, S.A. Secs. Litig., No. 02 Civ. 5571 (SAS), Final Judgment, ECF No. 1301 (S.D.N.Y. July 14, 2016).
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recent similar settlements. See supra § I. Consequently, it is respectfully submitted that the
Settlement proposed here—reached after the Action was dismissed in its entirety at summary
judgment and resurrected on appeal—is an excellent result for the Class and merits final
approval.
191. In addition, the Settlement represents one of the largest reported securities
class action recoveries against a pharmaceutical company. As demonstrated by the foregoing,
the litigation involved significant risk. See supra § I. Jury questions could be decided either
way, and there would be many other challenges if the case were tried.
192. Plaintiffs’ Counsel respectfully submit that although the evidence
(documentary and testimonial) supported the allegations against Defendants, significant risks
existed with respect to Plaintiffs’ ability to prove liability, especially with respect to loss
causation and scienter, as discussed at length earlier herein. See supra § VIII.D.1 (explaining the
risks in proving scienter and the extreme risk that a single adverse factual determination with
respect to a key corrective disclosure could reduce maximum recoverable damages from $5.37
billion to $28 million).
193. In view of all the foregoing circumstances, and in light of all the risks, the
Settlement represents an excellent recovery for the Class.
IX. THE FEE PETITION
194. The Fee Request in the amount of 28% of the Settlement Fund is merited
given the excellent result obtained for the Class.40 Similar percentage awards and significantly
40 The Notice states that Lead Counsel, on behalf of Plaintiffs’ Counsel, will ask the Court for an award of attorneys’ fees not to exceed 30% of the Settlement Fund. See Ex A. to the GCG Affidavit at 2. The actual fee percentage being sought (28%) is below the maximum amount set forth in the Notice.
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larger multipliers have been awarded in some of the largest securities class action settlements
since the enactment of the PSLRA. As set forth below, and in the Class Representatives’
Declarations, the Fee Request is also fully supported by the Class Representatives, which include
a large institutional investor with a significant financial stake in the outcome of the litigation and
the model fiduciary for the Class that Congress envisioned in enacting the PSLRA, see Exhibit E
¶¶14-17 (Mongrue Decl.), as well as individual investors with smaller, but from an individual
Class Members’ perspective, no less significant stake in this case, see Exhibit F ¶¶12-16
(Fleckles Decl.); Exhibit G ¶¶12-16 (Perusse Decl.); and Exhibit H, ¶¶12-16 (Chace Decl.).
195. As set forth in the Fee Brief, courts in the Second Circuit “may award attorneys’ fees in common fund cases under either the ‘lodestar’ method or the ‘percentage of the fund’ method.” McDaniel v. Cnty. Of Schenectady, 595 F. 3d 411, 417 (2d Cir. 2010) (quoting
Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 121 (2d Cir. 2005)). Courts in the
Second Circuit also consider the “Goldberger” factors in assessing the reasonableness of a request for attorneys’ fees in a common fund case, which are:
(1) the time and labor expended by counsel; (2) the magnitude and complexities of the litigation; (3) the risk of the litigation; (4) the quality of representation; (5) the requested fee in relation to the settlement; and (6) public policy considerations.
Goldberger v. Integrated Res., Inc., 209 F.3d 43, 50 (quotation marks and citation omitted).
196. Here, as discussed below and more fully in the Fee Brief, Plaintiffs’
Counsel have presented an analysis of their Fee Request under both the percentage of the fund method and the lodestar cross-check, as well as the Goldberger factors, all of which — it is respectfully submitted — confirm that the Fee Request is reasonable.
197. An analysis of each of the Goldberger factors supports Plaintiffs’
Counsel’s Fee Request. 70
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A. THE TIME AND LABOR EXPENDED BY COUNSEL
198. The work Plaintiffs’ Counsel undertook in prosecuting this complex
securities fraud class action for the past twelve years and arriving at the Settlement has been
time-consuming, challenging and labor-intensive.
199. During the past twelve years, Plaintiffs’ Counsel dedicated an enormous
amount of labor, time, money and resources toward prosecuting and resolving this case
successfully. As explained earlier, prior to the exclusion of Plaintiffs’ loss causation and
damages expert, Plaintiffs’ Counsel had, inter alia: (i) conducted an extensive investigation into
the Class’s claims, including review of voluminous publicly available information regarding
Pfizer; (ii) conducted an intensive review of medical and CV literature and academic literature
on bio-statistical and epidemiological analyses involving drugs; (iii) drafted a consolidated class
action complaint; (iv) successfully opposed Defendants’ motion to dismiss and a motion for
reconsideration of the dismissal; (v) prepared for and largely won a Daubert challenge of
Plaintiffs’ medical and statistical experts, which involved the review of millions of pages of documents, the preparation of numerous expert reports, depositions of all such experts, briefing of various Daubert motions, and finally, the presentation and cross examination of numerous experts in a five-day evidentiary hearing; (vi) engaged in extensive discovery efforts, including taking or defending more than 100 fact and expert witness depositions and the review of tens of millions of pages documents and preparation of detailed chronologies of the numerous clinical drug studies at issue in this litigation; (vii) successfully moved for class certification; (viii) prepared an extensive amended class action complaint incorporating the fruits of Plaintiffs’ extensive discovery efforts and defeated Defendants’ efforts to deny the Class the right to file such an amended complaint (as well as a second motion for reconsideration of the dismissal of
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the original consolidated complaint); (ix) largely defeated Defendants’ subsequent motion for
summary judgment based on a culling out and marshaling of a substantial amount of evidence
indicating Defendants were aware of but hid the CV risks of the drugs; and (x) prepared for trial,
including conducting a mock trial, filing thirteen Daubert motions and other motions in limine
and opposing eleven such motions by Defendants, distilling complex medical studies and other
information into jury-friendly demonstratives, updating the study chronologies to encapsulate the
massive amount of drug study information into useable quick reference guides for cross-
examination purposes, reviewing hundreds of hours from videotaped depositions and sifting
through and designating the key parts of such depositions to be played at trial, and preparing an
opening statement, jury instructions, verdict forms, voir dire and the pre-trial order.
200. The foregoing efforts were themselves incredibly time- and resource- consuming but do not even include Plaintiffs’ Counsel’s efforts in resurrecting the case on
appeal, and then continuing to prepare for trial. Plaintiffs’ Counsel spent an additional approximately two years briefing and arguing the appeal and not only successfully fought for the reinstatement of Plaintiffs’ loss causation and damages expert, but improved their case for trial by successfully reinstating certain dismissed Pharmacia statements.
201. The successful reinstatement of the dismissed Pharmacia statements pursuant to Janus also necessitated further trial preparation efforts by Plaintiffs’ Counsel. Thus, among other things, Plaintiffs’ Counsel: (i) revised the verdict form to include the now- reinstated Pharmacia statements; (ii) reviewed, analyzed and added numerous new trial exhibits to their trial exhibit list tending to show Pfizer’s “ultimate authority” over Pharmacia’s statements in light of the Second Circuit’s Janus ruling; (iii) reviewed and analyzed numerous videotaped depositions of fact witnesses to add deposition testimony tending to show Pfizer’s
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“ultimate authority” over Pharmacia’s statements and partnership with Pharmacia in light of the
Second Circuit’s Janus ruling; (iv) revised the jury instructions to reflect the Second Circuit’s
Janus ruling; (v) assessed the effect of the Second Circuit’s ruling on previously-filed motions in limine and evaluated how the motions, which had been terminated given the exclusion of
Plaintiffs’ loss causation and damages expert (see ECF No. 679), should be re-filed; and (vi) revised numerous study chronologies to further refine and distill the vast amount of study information for cross-examination purposes and update them to reflect newly-added exhibits and other information related to the Second Circuit’s Janus ruling.
202. Attached hereto as Exhibits I through O are the respective declarations submitted on behalf of each Plaintiffs’ Counsel firm, which set forth the hours and the hourly rates for each attorney, paralegal and support staff member that worked on the case.
203. The overall total lodestar for all Plaintiffs’ Counsel41 in this Action is set
forth in the chart below:
FIRM HOURS TOTAL LODESTAR G&E 192,772.57 $73,907,401.50 KTMC 82,480.11 $36,072,973.60 SW 5,504.30 $3,929,061.50 Dubin Law 4,268.90 $3,820,665.50 KM&K 4,171.60 $1,501,168.40 JHA 1,248.60 $1,050,364.00 M&G 259.30 $156,019.00 GRAND TOTAL 290,705.38 $120,437,653.50
204. To compensate for the lengthy delay Plaintiffs’ Counsel have experienced
in receiving any compensation for their efforts in this case (twelve years), it is appropriate to use
41 In addition to Lead Counsel G&E, the other Plaintiffs’ Counsel firms in this Action are: Kessler Topaz Meltzer & Check, LLP (“KTMC”), Seeger Weiss LLP (“SW”), Keating Muething & Klekamp, PLL (“KM&K”), Joshua E. Dubin, Esq., P.A. (“Dubin Law”), Joseph Hage Aaronson LLC (“JHA”), and Massey & Gail LLP (“M&G”).
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Plaintiffs’ Counsel’s current billing rates in calculating the lodestar, as they have done. See, e.g.,
Missouri v. Jenkins, 491 U.S. 274, 283-84 (1989) (“an appropriate adjustment for delay in
payment” by applying “current” rate is appropriate); Gierlinger v. Gleason, 160 F.3d 858, 882
(2d Cir. 1998) (rates “should be ‘current rather than historic’”); LeBlanc-Sternberg v. Fletcher,
143 F.3d 748, 764 (2d Cir. 1998) (current rates “should be applied in order to compensate for the delay in payment”). In determining whether the rates are reasonable, the Court should take into account the attorney’s legal reputation, experience, and status (e.g., partner, counsel, associate).
In this case, Plaintiffs’ Counsel are among the preeminent firms in the field of securities class action litigation, the trial team of lawyers working on the case are all highly experienced and respected securities lawyers and the team of appellate lawyers are also highly regarded and among the top in the appellate field. See Exhibits I to O hereto (attaching declarations with biographies of Lead Counsel’s firm and each of the other Plaintiffs’ Counsel firms). In short, the experience and reputations of Plaintiffs’ Counsel support the hourly rates charged.
205. In order to provide for a more thorough understanding of the massive amount of work performed by Plaintiffs’ Counsel in this matter and the true risk that was undertaken, each Plaintiffs’ Counsel firm has presented their time broken down into the following specific time periods:
Category Start Time End Time Brief Description Category 1 12/1/2004 9/4/2008 Case inception through denial of Defendants’ motion for reconsideration of the Court’s decision on Defendants’ motion to dismiss Category 2 9/5/2008 3/22/2010 Denial of reconsideration of motion to dismiss through Daubert hearing ruling Category 3 3/23/2010 7/2/2012 Daubert hearing ruling through filing of Defendants’ first summary judgment motion Category 4 7/3/2012 3/28/2013 Defendants’ first summary judgment motion through Plaintiffs’ opposition and the Court’s ruling largely denying the motion Category 5 3/29/2013 7/8/2014 Summary judgment opinion through trial preparation 74
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and the Court’s Daubert ruling excluding Professor Fischel and grant of Defendants’ second summary judgment motion dismissing case on eve of trial Category 6 7/9/2014 4/12/2016 Case dismissal through Plaintiffs’ appeal and the Second Circuit’s opinion reinstating Professor Fischel and certain dismissed Pharmacia statements Category 7 04/13/2016 9/16/2016 Second Circuit opinion through Plaintiffs’ continued trial preparation and Court’s granting of preliminary settlement approval
206. Category 1. This category commences with the inception of the case and continues through and including September 4, 2008, the date on which the Court denied
Defendants’ motion to reconsider its motion to dismiss opinion. Included within this time frame is work performed in connection with the initial investigations, the lead plaintiff stage, preparation of the consolidated amended complaint and its related investigation, and briefing on
Defendants’ Motion to Dismiss, Plaintiffs’ Motion to Strike and Defendants’ Motion for
Reconsideration. Collectively, Plaintiffs’ Counsel spent approximately 6,068 hours on this phase of the case, with an accompanying lodestar of $3,086,836.
207. Category 2. This category commences the day following the Court’s
September 4, 2008 denial of Defendants’ Motion for Reconsideration and continues through and including its March 22, 2010 Daubert ruling. The overwhelming majority of the approximately
112,954 hours spent during this phase of the case resulting in a lodestar of approximately
$38,913,910, were incurred in connection with the Daubert hearings involving numerous experts in complex, scientific areas such as bio-statistics and cardiology.
208. Category 3. This category commences the day following the Court’s
Daubert opinion and continues through the conclusion of fact and expert discovery, culminating with Defendants’ filing of their initial motion for summary judgment on July 2, 2012. During this time frame, Plaintiffs’ Counsel reviewed and analyzed tens of millions of pages of
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documents for use in connection with nearly 100 fact and expert depositions.42 In addition, during this time the Parties engaged in extensive motion practice in connection with Lead
Plaintiff’s Class Certification motion, and litigated numerous discovery disputes that were resolved either by the Parties or with the assistance of Judge Pitman. During this same period of time, Plaintiffs prepared the 218-page Amended Complaint and successfully defeated
Defendants’ opposition to Plaintiffs’ motion for leave to amend, as well as a brand new reconsideration motion. Plaintiffs’ Counsel expended an additional approximately 132,662 hours on this phase of the case, representing a lodestar of approximately $57,570,674.
209. Category 4. This category commences the day following the filing of
Defendants’ motion for summary judgment on July 2, 2012 and continues through the Court’s issuance of its first summary judgment opinion in this matter on March 28, 2013. During this time frame, Plaintiffs’ Counsel engaged in a massive effort to oppose the motion which included the research and preparation of a comprehensive counter-statement of facts, which identified 630 separate exhibits and included an event study prepared by Professor Fischel. Additional depositions and responses ensued, culminating in the Court’s first summary judgment opinion largely denying the motion. During this phase, Plaintiffs’ Counsel invested an additional approximately 14,271 hours, reflecting a lodestar of approximately $7,045,383.
210. Category 5. This category commences the day following the Court’s ruling largely denying Defendants’ summary judgment motion and dismissal of the case on July
8, 2014. Extensive trial preparation followed the Court’s summary judgment opinion, including the revision of Professor Fischel’s report, identification of over 1,500 trial exhibits by each side,
42 While there were 108 total fact and expert witness depositions, a number of depositions were taken in connection with the earlier Daubert hearing and not during this time frame.
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designations of potential trial testimony from more than 70 fact depositions, a mock trial by
Plaintiffs’ Counsel with the assistance of their jury consultant, the preparation of a highly-
detailed timeline for use at the mock trial (and actual trial), numerous Daubert and in limine
motions, opposition to Defendants’ motion for judgment on the pleadings, and preparation,
exchange and submission of jury instructions, verdict forms, voir dire and the final pre-trial
order. In addition, the Parties also engaged in extensive motion practice related to Defendants’ renewed efforts to exclude Professor Fischel from testifying in the Action. Between the Court’s issuance of the initial summary judgment opinion on March 28, 2013 and the dismissal of the case on July 8, 2014, Plaintiffs’ Counsel incurred approximately 20,175 hours prosecuting the case, reflecting an additional lodestar for this category of approximately $10,547,260. At this juncture, Plaintiffs’ Counsel had invested approximately 286,133 hours to the Action since its inception and approximately $117,164,065 in lodestar.
211. Category 6. This category commences on the day following the Court’s granting of its second summary judgment opinion and continues until the issuance of the Second
Circuit’s decision on April 12, 2016 reinstating Professor Fischel and reinstating certain
Pharmacia statements under Janus. During this phase, Plaintiffs’ Counsel revived the case and
expended an additional approximately 2,953 hours, representing new lodestar of approximately
$2,229,485.
212. Category 7. The final category commences the following day when trial
preparation commenced once again and continues through the Court’s granting of preliminary
approval to the Settlement on September 16, 2016. During this final phase, Plaintiffs’ Counsel
invested an additional approximately 1,618 hours to the Action, reflecting approximately
$1,044,103 in lodestar.
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213. Set forth in the table below is a summary of the total lodestar for the
Action broken down by each of the seven categories:
Category Brief Description Total Hours Total Lodestar Category 1 Case inception through denial of 6,068.52 $3,086,836.00 Defendants’ motion for reconsideration of the Court’s decision on Defendants’ motion to dismiss Category 2 Denial of reconsideration of motion to 112,954.65 $38,913,910.55 dismiss through Daubert hearing ruling Category 3 Daubert hearing ruling through filing of 132,662.58 $57,570,674.60 Defendants’ first summary judgment motion Category 4 Defendants’ first summary judgment 14,271.75 $7,045,383.75 motion through Plaintiffs’ opposition and the Court’s ruling largely denying the motion Category 5 Summary judgment opinion through trial 20,175.80 $10,547,260.25 preparation and the Court’s Daubert ruling excluding Professor Fischel and grant of Defendants’ second summary judgment motion dismissing case on eve of trial Category 6 Case dismissal through Plaintiffs’ appeal 2,953.30 $2,229,485.25 and the Second Circuit’s opinion reinstating Professor Fischel and certain dismissed Pharmacia statements Category 7 Second Circuit opinion through Plaintiffs’ 1,618.78 $1,044,103.10 continued trial preparation and Court’s granting of preliminary settlement approval
214. As set forth in the declarations submitted on behalf of each firm and summarized herein, Plaintiffs’ Counsel devoted a total of 290,705.38 hours to prosecuting this
Action for a total lodestar of $120,437,653.50.43 As discussed more fully above and further
43 It should be noted that the lodestar figures do not include any time which Plaintiffs’ Counsel have expended since the Court’s granting of preliminary approval to the Settlement on September 16, 2016, or any time they will spend in obtaining final approval of the Settlement, in
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below, this case was enormously risky and complex and, as evidenced by the excellent result
obtained, the representation of the Class on an entirely contingency basis over a period of twelve
years was outstanding. It is respectfully submitted that a multiplier of approximately 1.13 under
the lodestar/multiplier method is eminently fair and reasonable and fully supports the Fee
Request.
B. THE MAGNITUDE AND COMPLEXITIES OF THE LITIGATION
215. As stated earlier, the magnitude and complexities in this litigation
presented substantial challenges. Plaintiffs’ Counsel’s consultation with numerous experts in
preparation for trial was necessarily extensive given the complex nature of the CV, medical,
regulatory and bio-statistical issues underlying the claims in this case. See supra § IX.A. In
addition, the expert issues related to loss causation and damages were particularly complex and
presented cutting edge issues of securities law and corporate finance that Defendants pursued, and Plaintiffs’ Counsel contested, vigorously through appeal. See supra § II.J. By themselves, these issues were enough to elevate this case into the sphere of what would reasonably be considered complex litigation. But the complexities surrounding such issues were only the beginning.
216. Numerous other factors added to the enormous complexity of the case including, inter alia: (i) the fact that the intricacies of not just one, but three Cox-2 drugs (and numerous other arthritis drugs) were involved; (ii) the alleged fraud involved three companies,
Pfizer and its Co-Promotion partner, Pharmacia, and its predecessor, Searle; (iii) a complex web of 34 partnership committees needed to be investigated and understood, and a plan needed to be
connection with the application for an award of attorneys’ fees and expenses or in assisting in the administration of the Settlement.
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(and was) developed to concisely explain to a jury how decisions relating to the drugs were made
to convincingly prove, among other things, scienter; (iv) the sheer number of clinical,
epidemiologic and other studies and analyses involved; (v) the lengthy, 7-year time span over
which relevant events occurred and the fact that Defendants may have been successful in introducing evidence that extended the relevant time frame to as many as seventeen years; and
(vi) the regulatory schemes of multiple countries, in addition to the United States, were involved.
See supra § VIII.A.1.
217. Plaintiffs’ Counsel created a compelling record addressing these and other complicated issues and otherwise prepared a factual and legal record that took Defendants to the brink of trial. In a complex appeal involving myriad issues of procedural rules regarding experts and expert reports, corporate finance and the federal securities laws, Plaintiffs’ Counsel then convinced a panel of Second Circuit judges that the case should be returned to this Court for trial. See supra § II.K. The magnitude and complexity of the Action at both the trial and appellate court levels support the reasonableness of the Fee Request.
C. THE RISK OF THE LITIGATION
218. Plaintiffs’ Counsel undertook to prosecute this Action entirely on a
contingency basis and took a huge risk that the litigation would yield no recovery and leave not
only the Class, but Plaintiffs’ Counsel, uncompensated. In fact, that very risk of zero recovery
had materialized until the case was (through Plaintiffs’ Counsel’s efforts) resurrected on appeal.
219. As stated in the Fee Brief §I.C.3, courts in this Circuit and across the
country have consistently recognized that the risk of receiving no (or little) recovery is a
substantial factor in considering an award of attorneys’ fees.
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220. Unlike counsel for Defendants, who (Plaintiffs’ Counsel believe) are paid
substantial hourly rates and reimbursed for their out-of-pocket expenses on a monthly or periodic
basis, Plaintiffs’ Counsel have not been compensated for any of their time (collectively over
290,000 hours) or reimbursed for any of the expenses (approximately $20 million) incurred over
the twelve years that have passed since this litigation was first commenced.
221. In addition, Plaintiffs’ Counsel are asking to be compensated for their time
only because they have been successful in obtaining a $486,000,000 cash benefit for the Class in
this Action. Had they been unsuccessful, which appeared to be the case as of the Court’s
granting of Defendants’ second summary judgment motion, Plaintiffs’ Counsel would not have
received any compensation at all. The enormous contingency risk in this case heavily weighs in
favor of the Fee Request. As discussed elsewhere herein (and further in the Settlement Brief),
Plaintiffs’ Counsel faced substantial legal and factual hurdles in establishing Defendants’
liability under the Exchange Act, and in proving damages. The challenges were heightened by
the complexity of the case and the zealous advocacy of Defendants’ array of highly competent
defense counsel.
222. Therefore, Plaintiffs’ Counsel respectfully submit that considering the
enormous contingency risks Plaintiffs’ Counsel took in taking this case, the Court should find
that this factor weighs in favor of the reasonableness of the Fee Request.
D. THE QUALITY OF THE REPRESENTATION
223. Plaintiffs’ Counsel’s efforts in bringing this case to a successful conclusion—a Settlement that exceeds the aforementioned median recovery in similar cases by 9 times—is perhaps the best indication of the ability and effectiveness of the attorneys involved.
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224. The experience of the law firms that represent Plaintiffs in the Action are
set forth in the accompanying declarations of Plaintiffs’ Counsel. See Exhibits I through O.
Each of the Plaintiffs’ Counsels’ firms practice extensively in the highly complex field of federal securities litigation and/or appellate litigation and each brought the necessary experience and skill to understand the sophisticated factual and legal issues in this case and litigate them to a successful conclusion in the face of vehement opposition by Defendants.
225. Courts also frequently view the quality of opposing counsel as an
important consideration in assessing the quality of the legal services rendered by plaintiffs’ class counsel. Here, Defendants were represented by no less than 11 law firms, each of which has a
national reputation as leading defense counsel in class action securities litigation, trial advocacy
in complex cases and/or appellate litigation. Defendant Pfizer was represented by 6 law firms as
follows (in alphabetical order):
Pfizer’s Counsel Cadwalader, Wickersham & Taft LLP DLA Piper LLP (US) Gibson, Dunn & Crutcher LLP Paul, Weiss, Rifkind, Wharton & Garrison LLP Simpson Thacher & Bartlett LLP Wilkinson Walsh & Eskovitz PLLC
226. After the first summary judgment motion was denied, the Individual
Defendants were each separately represented by the following firms (listed by Defendant):44
Defendant Law Firm Dr. Henry A. McKinnell Skadden, Arps, Slate, Meagher & Flom LLP Ms. Karen L. Katen Baker Botts LLP Dr. Joseph M. Feczko Allen & Overy LLP
44 The firms representing the Individual Defendants did not enter appearances in the case until after the first summary judgment motion was denied, but it is Plaintiffs’ Counsel’s understanding that these firms acted as “shadow counsel” for the Individual Defendants prior to such decision.
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Dr. John L. LaMattina45 O’Melveny & Myers LLP Dr. Gail Cawkwell Baker & Hostetler LLP
227. Senior litigation partners headed teams of attorneys at these firms in
vigorously litigating the defense of the Action. The caliber of the legal work performed by these
defense attorneys was of the highest quality and sophistication.
228. In the face of this formidable team of defense attorneys, Plaintiffs’
Counsel were able to effectively and efficiently marshal the enormous amount of evidence in this case and distill it down so that a compelling presentation could be made to a jury at trial, resurrect the case on appeal after an entirely unexpected, eleventh-hour exclusion of their loss causation and damages expert on the eve of trial, and then negotiate a settlement the size of which clearly reflects Defendants’ awareness of Plaintiffs’ Counsel’s ability and readiness to
proceed to trial if a fair settlement could not be achieved. This further confirms the high quality
of Plaintiffs’ Counsel’s work.
229. Plaintiffs’ Counsel also rendered skilled legal services to achieve the
Settlement in as cost-effective a manner as was practicable under the circumstances,
notwithstanding Defendants’ legal tactics. Defendants’ strategy to press the Court to hold a
Daubert hearing on medical issues at the outset of the case rather than after merits discovery was not only unsuccessful but also wasteful. That strategy created an unnecessary duplication of work (through no fault of Plaintiffs) in that, inter alia, some of the issues that were litigated in the early Daubert hearing were necessarily re-litigated after subsequent merits discovery during which some of the operative facts changed or theories were viewed differently in light of massive amounts of additional facts.
45 As stated earlier, Defendant LaMattina was not a defendant at the time of the Settlement.
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230. Despite the unnecessary duplication created by Defendants’ insistence on
an early Daubert phase of the case, Plaintiffs’ Counsel prosecuted the case effectively and
efficiently. Plaintiffs’ Counsel used the partial discovery it gleaned from the Daubert hearing to
develop a plan for merits discovery going forward. Lead Counsel held weekly or periodic
strategy calls in an effort to ensure that work was performed without duplication. In addition, to
the extent practicable under the circumstances, work was divided so that particular attorneys or
teams of attorneys had responsibilities for marshaling facts related to particular issues. As one
example (discussed to a certain extent earlier, see supra § II.F.2), Lead Counsel divided
responsibilities for discovering and mastering the facts related to particular clinical studies
showing increased CV risk for Celebrex and/or Bextra to individual attorneys who would then
inform the larger group of the relevant facts related to that study and Defendants’ knowledge of
such facts.
231. Prosecuting the case in an efficient and effective manner was not an easy
task given the highly dense factual complexity and the lengthy time period over which relevant
events occurred, as discussed earlier herein, as well as the fact that there were as many as 11 of
the nation’s top defense firms arrayed in opposition but only a few Plaintiffs’ Counsel firms that
were primarily responsible for preparing the case for trial. Therefore, it is respectfully submitted
that the skill, resolve, trial preparation and established reputations of Plaintiffs’ Counsel in the
field of securities litigation and trial and appellate work were substantial factors in creating the excellent recovery under all the circumstances in this case.
E. THE FEE REQUESTED IN RELATION TO THE SETTLEMENT
232. Plaintiffs’ Counsel are aware that there is no set formula for determining
what percentage of a common fund should be awarded as attorneys’ fees and that the Court has
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wide discretion in the manner in which fee requests are evaluated and ultimately awarded.
Plaintiffs’ Counsel believe that their Fee Request is supportable under either the percentage of
the fund method, the lodestar/multiplier method or even utilizing the lodestar as a cross-check on
the percentage of the fund method.
233. Plaintiffs’ Counsel have cited several cases in the accompanying Fee
Brief, in which percentage-based awards greater or equal to 28% of the recovery were awarded
by courts in this Circuit and elsewhere. See Fee Brief §I.B.1.
F. PUBLIC POLICY CONSIDERATIONS
234. Important public policy considerations also support the Fee Request.
Without class actions like this one, small individual claimants such as many of the Pfizer stock purchasers in this case would lack the resources to litigate a case of this magnitude. In addition, private securities lawsuits like this case are essential to enforce one of the federal securities laws’ important purposes of protecting investors and the integrity of the financial markets. Moreover,
Lead Plaintiff, an institutional investor with substantial losses, has doggedly led the charge in vindicating the rights of investors in this case, just as Congress intended, and approving the
Settlement will encourage similarly situated institutional investors to do so in the future.
235. Courts have consistently recognized that the public interest is served by having experienced counsel enforce the securities laws as private attorneys general, particularly when they are presenting institutional investors who are significant players in the securities markets. Indeed, the Supreme Court has characterized securities class actions as an
“indispensable” part of the securities law enforcement framework. Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 32 & n.4 (2007).
236. Private attorneys such as Plaintiffs’ Counsel here should be encouraged to
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take the risks required to represent those who would not otherwise be protected from securities fraud. That is exactly what happened in connection with this Action. Accordingly, an award of the requested fee would be fully consistent with important public policy considerations and encourage firms to advance funding for contingent litigation to protect the integrity of the securities markets in the future.
X. THE REQUEST FOR EXPENSE REIMBURSEMENT
237. Plaintiffs’ Counsel took this case on a contingency basis and have been responsible for all costs in the Action since inception. The un-reimbursed expenses incurred by
Plaintiffs’ Counsel to date total $20,004,879.33.
238. As set forth in their respective declarations, each Plaintiffs’ Counsel firm has prepared a chart reflecting their expenses.46
239. The overwhelming majority of the expenses were incurred for experts and consultants, jury consultants, document reproduction, document storage and retrieval costs, class notice, travel to depositions and accommodations, on-line research, court reporting services, a mediator and expenses incurred in managing the more than 64 million pages of documents produced in this Action and loading them onto a database and related use of software to review the documents. These expenditures were each critical to Plaintiffs’ success in achieving the proposed Settlement and, for the Court’s convenience are also summarized below:
46 As reflected in the declarations of the individual firms, some of the firms seeking reimbursement have made contributions to a litigation fund which was maintained by Lead Counsel, which, in turn, was utilized to pay common expenses of the Action. As a result, line items appearing on each of the respective individual firm declarations indicating “Contributions to Litigation Fund” match in total the deposits made into the overall litigation fund.
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EXPENSES: TOTALS Experts and (Non-Jury) Consultants $5,834,158.01 Mock Trial, Jury Selection, Visual Presentation & Jury Consulting $4,862,534.02
Class Notice of Pendency $2,940,570.59 eDiscovery & Data Hosting $2,971,539.45 Reproduction Costs (Internal and External) $1,625,301.19 Travel $563,982.81 Legal and Factual Research $554,294.39 Court Reporters and Transcripts $428,740.02 Postage & Express Mail $36,518.41 Telephone, Faxes and Conference Services $35,666.73 Mediation $35,000.00 Court/Filing Fees $16,743.42 Outside Counsel Expense Reimbursement $15,693.40 Working Meals and Meeting Expenses $54,535.30 Deposition Expense Reimbursement and Deposition Meeting/Hosting Costs $12,044.71 Miscellaneous, Publications and Supplies $8,177.28 Process Server and Notary Fees $6,319.20 Tax Preparation Services $2,679.48 Bank Service Charges $360.00 Witness Fees $236.00 Interest on Litigation Fund ($215.09) TOTALS: $20,004,879.33
240. The Notice stated that Plaintiffs’ Counsel intended to apply for reimbursement of their litigation expenses up to a maximum amount of $25 million, plus interest
(at the same rate as earned by the Settlement Fund). The actual expense figure of
$20,004,879.33 for which reimbursement is being sought is below the maximum amount of expenses set forth in the Notice.
241. It is well-settled that attorneys who have created a common fund for the benefit of a class are entitled to be reimbursed for their out-of-pocket expenses incurred in 87
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creating the fund so long as the submitted expenses were all reasonable, necessary, and directly related to the prosecution of the action. See Fee Brief at §II.
242. The Expense Reimbursement Request is, as Class Representatives’ approval of it demonstrates, reasonable in all respects. The Court therefore should approve the
Expense Reimbursement Request.
XI. PLAINTIFFS’ REQUEST FOR EXPENSE REIMBURSEMENT PURSUANT TO 15 U.S.C. § 78u-4(a)(4)
243. Plaintiffs’ Counsel also seek approval for $21,515 in costs and expenses incurred by the Class Representatives directly relating to their representation of the Class in this matter.
244. The PSLRA specifically states that an “award of reasonable costs and expenses (including lost wages) directly relating to the representation of the class” may be made to “any representative party serving on behalf of a class.” 15 U.S.C. § 78u-4(a)(4). As stated in the Fee Brief, numerous courts have awarded costs to representative plaintiffs to compensate them for their effort and time spent on behalf of a class. See Fee Brief §III. Here, the Class
Representatives devoted substantial time and energy over the course of this litigation producing an excellent result for the Class.
245. As set forth in the Mongrue Decl. (Exhibit E hereto), Lead Plaintiff TRSL played an active role in prosecuting this case from the outset, including extensive communication with Lead Counsel regarding developments in the case, strategy and the appeal, sitting for two separate depositions in Louisiana (one of which was a two-day deposition), attending the mediation in New York and otherwise coordinating and consulting with Lead Counsel regarding the Settlement. Pursuant to the PSLRA, Lead Plaintiff TRSL requests $4,015 based on the time
TRSL employees spent participating in and supervising this case on behalf of the Class. See 88
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Mongrue Decl. ¶¶18-23.
246. As set forth in the Fleckles Declaration (Exhibit F hereto), Class
Representative Fleckles actively participated in the prosecution of this case, including extensive communication with Plaintiffs’ Counsel regarding developments in the case, strategy and the appeal, responding to document requests and interrogatories, sitting for a deposition in
Washington D.C., and otherwise coordinating and consulting with Plaintiffs’ Counsel regarding the Settlement. Pursuant to the PSLRA, Class Representative Fleckles requests $7,500 based on the time she spent participating in and supervising this case on behalf of the Class. See Fleckles
Decl. ¶¶17-18.
247. As set forth in the Perusse Declaration (Exhibit G hereto), Class
Representative Perusse actively participated in the prosecution of this case, including extensive communication with Plaintiffs’ Counsel regarding developments in the case, strategy and the appeal, responding to document requests and interrogatories, sitting for a deposition in
Washington D.C., and otherwise coordinating and consulting with Plaintiffs’ Counsel regarding the Settlement. Pursuant to the PSLRA, Class Representative Perusse requests $5,000 based on the time she spent participating in and supervising this case on behalf of the Class. See Perusse
Decl. ¶18.
248. As set forth in the Chace Declaration (Exhibit H hereto), Class
Representative Chace actively participated in the prosecution of this case, including extensive communication with Plaintiffs’ Counsel regarding developments in the case, strategy and the appeal, responding to document requests and interrogatories, sitting for a deposition in Seattle,
Washington, and otherwise coordinating and consulting with Plaintiffs’ Counsel regarding the
Settlement. Pursuant to the PSLRA, Class Representative Chace requests $5,000 based on the
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time he spent participating in and supervising this case on behalf of the Class. See Chace Decl.
¶¶17-19.
249. In total, therefore, Class Representatives seek approval for an aggregate
$21,515 in costs and expenses relating to their representation of the Class in this matter. This
amount is less than the maximum $100,000 in costs and expenses that the Notice stated Plaintiffs
would be seeking from the Settlement Fund.
XII. CONCLUSION
250. Given the excellent recovery achieved in this complex case in the face of
hefty litigation risks that threatened to—even if Plaintiffs were otherwise successful in proving
liability at trial—substantially curtail (if not eliminate) recoverable damages, it is respectfully
submitted that the Settlement of $486,000,000, plus interest, should be approved as fair,
reasonable and adequate, and further that the Plan of Allocation has a reasonable and rational
basis and fairly allocates the recovery among Class Members and should be approved.
251. Lead Counsel also respectfully submits that in view of the substantial
recovery achieved, quality of the legal work performed, the contingent nature of the fee, the
complexity of the case, the standing of Lead Counsel and other Plaintiffs’ Counsel among their
peers, and the quality of the defense by Defendants’ eleven law firms that collectively presented
a vigorous defense of the corporate and Individual Defendants’ legal and equitable rights, the
Fee Request in the amount of 28% of the Settlement Fund, should be awarded to Plaintiffs’
Counsel, together with reimbursement of litigation expenses in the amount of $20,004,879.33,
with interest on both the fee award and the expense award, from the date the Settlement was
funded through the date of payment at the same net rate as earned by the Settlement Fund, in
accordance with the terms of the Settlement Agreement and with the award of attorneys’ fees to
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be allocated among Plaintiffs’ Counsel in a fashion which, in the opinion of Lead Counsel, fairly compensates Plaintiffs’ Counsel for their respective contributions in the prosecution of the
Action.
252. Finally, Lead Counsel also respectfully submits that a total of $21,515 in
costs and expenses should be awarded to the Class Representatives relating to their
representation of the Class in this matter.
Done at New York, New York this 11th day of November, 2016.
s/ Charles T. Caliendo Charles T. Caliendo
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Exhibit B Case 1:04-cv-09866-LTS-HBP Document 713-2 Filed 11/11/16 Page 2 of 45
25 January 2016
Recent Trends in Securities Class Action Litigation: 2015 Full-Year Review Record Number of Cases Being Filed Faster than Ever with the Shortest Alleged Class Periods
By Svetlana Starykh and Stefan Boettrich Case 1:04-cv-09866-LTS-HBP Document 713-2 Filed 11/11/16 Page 3 of 45
“I am pleased to share NERA’s Recent Trends in Securities Class Action Litigation: 2015 Full-Year Review with you. This edition builds on our work over numerous years by many of the members of NERA’s Securities and Finance Practice. In this edition, we look at trends in filings and settlements and present some new findings on when cases are filed and on how the length of class periods has changed. We also provide more information on our model for predicting settlements based on updated statistical analyses of hundreds of securities class actions. While space does not permit us to show all of the analyses that the authors have undertaken in preparation for this edition, we hope that you will contact us if you want to learn more. On behalf of NERA’s Securities and Finance Practice, I thank you for taking the time to review our work and hope that you find it informative.”
Dr. David Tabak, Senior Vice President Case 1:04-cv-09866-LTS-HBP Document 713-2 Filed 11/11/16 Page 4 of 45
Recent Trends in Securities Class Action Litigation: 2015 Full-Year Review Record Number of Cases Being Filed Faster than Ever with the Shortest Alleged Class Periods
By Svetlana Starykh and Stefan Boettrich1
25 January 2016
Introduction and Summary2
2015 saw federal securities class action filings reach levels not seen since 2008, with 234 complaints filed. Growth was dominated by 182 filings alleging violations of Rule 10b-5, Section 11, or Section 12, which capped three years of double-digit growth in the category. Filings were particularly concentrated in the technology sector, which accounted for more than a fifth of all filings, and in the Ninth Circuit, which easily dominated the Second Circuit and accounted for nearly a third of all filings.
Generally, alleged class periods were the shortest on record, with the median falling to merely 310 days. Despite these shorter class periods, filed cases were not necessarily smaller. In fact, using NERA’s proxy for aggregate case size, total potential case size increased by more than 25% in 2015, from $145 billion in 2014 to $183 billion in 2015, due to the filing of three very large cases.
Cases were also filed more quickly in 2015 than in prior years. In 2015 the median time between the end of the alleged class period and filing date shortened to a record 11 days, down almost 40% since 2014.
Although 108 cases settled in 2015, more than in any year since 2011, when 128 settled, cases continue to resolve at rates that are low by historical standards. Median settlement values were little changed from last year, staying at approximately $7 million, but 14 settlements for more than $100 million drove one measure of 2015 average settlement values to $52 million, close to the all-time high of $54 million set in 2013. The number of voluntary dismissals for cases filed and dismissed within the same calendar year more than tripled from four in 2014 to 13 in 2015.
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Trends in Filings
Number of Cases Filed In 2015, 234 securities class actions were filed in federal courts, more than in any year since 2008, at the height of the financial crisis. See Figure 1. The number of filings in 2015 is 8% higher than in 2014, and about 6% higher than the average rate of the preceding five years. The 2015 rate is well above the post-Private Securities Litigation Reform Act (PSLRA) average of approximately 216 cases per year.
Figure 1. Federal Filings January 1996–December 2015
550 IPO Laddering Cases 508 500 Cases, Excluding IPO Laddering
450
400
350 310
300 277
250 2010–2014 Average: 220
200 Number of Federal Filings Number of Federal
150 274 274 252 247 241 234 237 228 227 234 100 205 211 220 216 201 198 187 195 131 132 50
0 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Filing Year
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As of October 2015, 5,305 companies were listed on the major US securities exchanges. See Figure 2. The 234 federal securities class action suits filed in 2015 represent approximately 4.4% of publicly traded companies.
Over the two decades since the PSLRA went into effect, the number of companies listed on the major US exchanges has fallen by approximately 40%, from 8,783 to 5,305.3 Despite this large drop in listed companies, the average number of filings of securities class actions over the preceding five years, of about 220 per year, is higher than the average number of filings over the first five years after the PSLRA went into effect, of about 216 per year.
Given that more securities class actions have been filed against fewer listed companies, the average rate of securities litigation has increased. Over the first five years after the PSLRA went into effect, the average rate of litigation (the number of filings as a percent of listed companies) was approximately 2.6%, in contrast with the most recent five-year average rate of about 4.4%. On a yearly basis, the rate peaked in 2008 at nearly 4.6%. The modest decline to 4.4% in 2015 can be traced to a drop in filings and listings.
Figure 2. Federal Filings and Number of Companies Listed in US January 1996–December 2015
550 10,000 Cases, Excluding IPO Laddering
500 Listings 9,000
8,884 450 8,783 8,448 8,000 8,200 7,994 400 7,000 7,288 350 6,757 6,000 6,154 6,097 300 6,029 6,005 5,941 5,401 5,000 5,248 5,305 250 5,179 5,095 4,988 4,916 5,008 4,000 200
Number of Federal Filings Number of Federal 3,000 150 274 274 Number of Companies Listed in US 252 247 241 234 237 228 227 234 2,000 100 205 211 220 216 201 198 187 195 131 132 50 1,000
0 0 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Filing Year Note: Number of companies listed in US is from Meridian Securities Markets; 1996–2014 values are year-end; 2015 is as of October.
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Filings by Issuers’ Country of Domicile In 2011, a record 23.9% of cases were filed against foreign issuers, considerably higher than the 16.4% of foreign issuers listed. See Figure 3. The increase was mostly due to a surge in filings against companies domiciled or with principal executive offices in China. 2011 was the only recent period in which foreign-domiciled companies were disproportionally targeted by securities class actions; in other years, the proportion of foreign class actions was less than the proportion of foreign listings.
The percent of filings against foreign issuers declined from 2011 to 2012 but has remained elevated above prior levels. In 2015, compared to 2014, the percent of filings against foreign issuers grew by nearly a percentage point more than the percent of foreign listings on US stock exchanges.
Figure 3. Foreign-Domiciled Companies: Share of Filings and Share of All Companies Listed in US January 2008–December 2015
30% % of US Filings Against Foreign-Domiciled Companies
% of US Listings Represented by Foreign-Domiciled Companies
25% 23.9%
20%
16.7% 17.0% 15% 16.4% 16.6% 16.5% 15.7% 15.9% 15.0% 14.8% Percentage 14.0% 14.0% 13.6% 12.1% 12.3% 10% 10.7%
5%
0% 2008 2009 2010 2011 2012 2013 2014 2015
Filing Year
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Filings by Type Preceding the uptick in federal filings this year, the number of annual filings had been remarkably stable given the amount of variation in the types of cases filed. While the number of filings alleging violations of Rule 10b-5, Section 11, and/or Section 12—often regarded as “standard” securities class actions—fell in 2010 and 2012 to near all-time lows, filings of merger objection cases and other cases made up the difference. See Figure 4. Since then, the number of standard case filings has risen in each of the past three years. In 2015, standard case filings increased by 21 to 182, the annual largest jump since the 2008 financial crisis and a 41% increase over the 2010 low. Despite recent growth, the number of standard cases filed in 2015 remains lower than any year between 2000 and 2004.
Although federal merger objection cases were not a new case type, such cases came into focus in 2010, with 70 cases filed, or about 31% of all securities class actions that year.4 Since then, the number of merger objections filed at the federal level has generally fallen: only 43 filings were submitted in 2015, accounting for about 18% of all filings. This is in spite of a record volume of announced US mergers and acquisitions in 2015, which exceeded $2 trillion for the first time ever.5
Rounding out the total in 2015 are a variety of other cases, primarily alleging breach of fiduciary duty for a variety of reasons.
Figure 4. Federal Filings by Type January 2000–December 2015
300 Merger Objection Cases
Other Cases 274 Cases Alleging Violation of Any of: Rule 10b-5, 12 252 Section 11, or Section 12 (Excluding IPO Laddering) 250 247 237 234 25 14 234 228 227 11 220 19 15 216 211 205 43 198 200 195 187 61 39 15 9 22 70 53 9 7 10 54
34 16 19 18 150 18 132 29 262 6
Number of Filings 9 226 227 215 218 100 183 179 176 182 161 149 147 149 139 129 117 50
0 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Filing Year Note: Before 2005, merger objections (if any) were not disaggregated. This Õgure omits IPO laddering cases.
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Section 11 Filings In 2015 there were 28 filings alleging violations of Section 11, a one-third increase over 2014 and more than double the number over the past two years, as shown in Figure 5. These Section 11 filings were concentrated in two circuits. In the Ninth Circuit, filings grew from two to 10 over the last year and spanned many economic sectors. The Second Circuit also accepted 10 filings, roughly equal to 11 last year. The increase in filings alleging violations of Section 11 follows what, according to the Financial Times, was a “bumper IPO year” in 2014.6 According to Mergerstat data, 289 IPOs were conducted in 2014, more than in any year since 2000.7
Figure 5. Section 11 Filings January 2006–December 2015
60
51 50
40 39 36
30 28
23 23 21 20 19 16 Number of Section 11 Filings
12 10
0 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Filing Year
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Aggregate Investor Losses In addition to the number of cases filed, we also consider the total potential size of these cases using a metric we label “investor losses.”
NERA’s investor losses variable is a proxy for the aggregate amount that investors lost from buying the defendant’s stock rather than investing in the broader market during the alleged class period. Note that the investor losses variable is not a measure of damages, because any stock that underperforms the S&P 500 would have “investor losses” over the period of underperformance; rather, it is a rough proxy for the relative size of investors’ potential claims. Historically, “investor losses” have been a powerful predictor of settlement size. Investor losses can explain more than half of the variance in the settlement values in our database.
We do not compute investor losses for all cases included in this publication. For instance, class actions in which only bonds and not common stock are alleged to have been damaged are not included. The largest excluded groups are the IPO laddering cases and the merger objection cases. Previous NERA reports on securities class actions did not include investor losses for cases with only Section 11 allegations, but such cases are included here. The calculation for these cases is somewhat different than for cases with 10b-5 claims.
For each year since 2005, we calculate investor losses at the time of filing for each case for which they can be computed. Yearly losses are grouped by magnitude and aggregated, as shown in Figure 6.
In 2015, aggregate investor losses on all filed cases totaled $183 billion, a decrease of more than 25% from four years ago, but a marked increase of more than 25% over 2014 and 15% over 2013. 2013 and 2014 had the lowest aggregate investor losses over the past decade, primarily due to a dearth of large cases being filed. Historically, a few cases with very large investor losses (over $10 billion, and shown in dark green) have made up the largest component of total investor losses each year. In fact, for most years before 2012, cases with such high investor losses accounted for most of the total losses for the year. However, the pattern changed in 2013 and 2014, when cases in the lower investor loss categories made up the bulk of the total investor losses for the year.
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In 2015, however, the pattern changed, and three cases with investor losses of over $10 billion were filed, the two largest being against Canadian issuers. A filing against Valeant Pharmaceuticals International accounted for 17% of the investor losses (and half of losses in the high investor loss category). Large filings against Silver Wheaton Corp. and Clovis Oncology, Inc. accounted for 9% and 7% of aggregate investor losses, respectively.
Figure 6. Aggregate Investor Losses ($Billion)—Shareholder Class Actions with Alleged Violations of Rule 10b-5 or Section 11 January 2005–December 2015
450 Investor Losses ($Billion)
$403 $10 or Greater 400 $5–$9.9 $1–$4.9 350 Less than $1 $327
300 $239 $248 250 $226 $218 $217 $200 $203 $197 200 $183
$159 $125 $166 $145 150 $120 $100 $124 $60 $39 $67 $129 $19 Aggregate Investor Losses ($Billion) Investor Losses Aggregate $26 100 $27 $46 $56 $14 $7 $38 $42 $73 $71 $31 50 $44 $14 $67 $68 $54 $40 $42 $41 $39 $31 $38 $28 $27 $26 $28 0 $20 $20 $15 $20 $19 $25 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Filing Year
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Filings by Circuit Filings continued to be concentrated in the Second and Ninth Circuits, where more cases were filed than all other circuits combined. See Figure 7.
Filings in the Ninth Circuit, which includes California, grew more than 58% to 76 filings, up from 48 last year. Of these, 65 alleged violations of Rule 10b-5, Section 11, and/or Section 12, an increase of 66% from 2014. More than 30% of the growth came from filings of cases alleging violations of Section 11, having increased from two in 2014 to 10 in 2015, a five-year high.
Filings in the Second Circuit have been relatively steady over the past five years. Although filings matched a five-year low of 59 in 2015, the maximum over this period is only about 7% higher at 63. Notably, fewer securities class actions were filed in the Second Circuit than in the Ninth Circuit for the first time in five years.
Recent steady growth in filings in the Third and Fifth Circuits continued in 2015. Third Circuit filings reached 26, up from 18 in 2011. Growth in filings alleging a violation of Rule 10b-5, Section 11, and/or Section 12 (“standard cases”) dominated, increasing to 20 in 2015 from six in 2011. In the Fifth Circuit, 21 securities class actions were filed, of which about 60% were standard cases and about 40% were federal merger objection cases. The Fifth Circuit accepted a disproportionate number of merger objection cases in 2015: while only about 9% of securities class actions were filed in that circuit, more than 20% of merger objection cases were filed in the Fifth Circuit.
Figure 7. Federal Filings by Circuit and Year January 2011–December 2015
80 2011 2012 2013 2014 2015
70
60
50
40 76 48 59 58 63 36 30 60 60 Number of Federal Filings Number of Federal 59 62
20
26 24 10 21 21 21 19 18 13 9 14 19 12 9 11 10 12 11 9 8 9 8 10 15 12 9 14 11 12 6 10 5 9 7 11 12 7 6 8 11 3 10 5 8 3 5 11 0 11 1 DC 1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 11th
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Filings by Sector More than one out of every five securities class action cases filed in 2015 was against a firm in the Electronic Technology and Technology Services sector. See Figure 8. Filings in the sector eclipsed those in any other, and reached a five-year high in percentage terms. Filings in the sector totaled 52 in 2015, more than a 90% increase from 27 in 2014. Of these, filings alleging violations of Rule 10b-5 grew by nearly 61%, from 23 to 37.
There was a considerable drop in the percent of filings with claims against firms in the Finance sector, which fell to 12% in 2015, down from nearly 20% in 2011. In 2015, there were 27 filings with claims against Finance sector firms, down from 42 in 2014.
Figure 8. Percentage of Filings by Sector and Year January 2011–December 2015
20% 7% 2011 Electronic 18% Consumer and 8% Technology and 19% Distribution 7% 2012 13% 9% Technology Services Services 22% 6% 2013
15% 4% 2014 Health Technology 21% Transportation 4% 19% 2% and Services 24% and Utilities 2% 2015 19% 5%
20% 7% 15% Energy and Non- 11% Finance 16% 9% 19% Energy Minerals 7% 12% 5%
5% 6% Commercial and 3% Producer and Other 5% 8% 5% Industrial Services 10% Manufacturing 5% 9% 5%
6% 4% Consumer Durables 7% 1% 6% Process Industries 2.3% and Non-Durables 4% 2% 7% 4%
4% 1.8% 7% 0% Retail Trade 6% Communications 1.4% 4% 0.9% 6% 1%
Note: This analysis is based on the FactSet Research Systems, Inc. economic sector classiÕcation. Some of the FactSet economic sectors are combined for presentation.
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Allegations In 2015, about 22% of filings contained accounting allegations, down from about 29% last year and from 37% in 2011. See Figure 9. The decline in accounting allegations is correlated with the short- and long-term reduction in cases with accounting co-defendants. The percent of filings alleging misleading earnings guidance continued to decrease to about 16% of filings in 2015. Most complaints include a wide variety of allegations, not all of which are depicted here. Due to multiple types of allegations in complaints, the same case may be included in both the accounting and missed-guidance allegation categories.
Figure 9. Allegations Related to Accounting and Earnings Guidance January 2011–December 2015
40% 2011 2012 2013 2014 2015 37%
35%
30% 29%
25% 25% 23% 22% 22%
20% 18% 18%
16% 16% Percent of Filings Percent 15%
10%
5%
0% Accounting Earnings Guidance
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Defendants in the Financial Sector In addition to being targeted as primary defendants, companies in the Financial sector are often also targeted as co-defendants.
In 2015, 19% of securities class actions filed had a defendant in the Financial sector (whether a primary defendant or co-defendant). See Figure 10. This is down sharply from 29% last year, and is mainly due to about an eight percentage point reduction in filings where the primary defendant is in the Financial sector, as also illustrated in Figure 8. This represents a continuation of the longer term decline in the percentage of filings with primary Financial sector defendants since the financial crisis when, in 2008, about 50% of securities class actions primarily targeted financial institutions.
The overall reduction also stemmed from a two percentage point drop in filings where financial institutions were only co-defendants (such as an underwriter co-defendant). Over the past decade, financial institutions were generally co-defendants in between 3% and 9% of filings where the primary defendant is not a financial institution. In 2015, this percentage was about 7%.
Figure 10. Federal Cases in which Financial Institutions Are Named Defendants January 2005–December 2015
100% Financial Institution Is a Co-Defendant Only
Financial Institutions Are a Primary Defendant and a Co-Defendant 90% Financial Institution Is a Primary Defendant Only
80%
70%
60% 55%
50% 50% 6% 44% 3% 12% 40% 10% 13% 33% Percentage of Federal Filings of Federal Percentage 30% 30% 4% 29% 25% 10% 6% 22% 9% 22% 22% 9% 20% 6% 19% 7% 38% 4% 7% 6% 3% 3% 33% 7% 4% 3% 24% 24% 10% 2% 16% 16% 15% 17% 11% 12% 10% 0% 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Filing Year
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Accounting Co-Defendants Only three securities class actions had an accounting firm as a co-defendant in 2015, one of which was a Big Four accounting firm.
The trend toward a decline in the percent of securities class actions with accounting firm co-defendants continued in 2015. This trend is likely the result of two factors: (1) fewer cases have been filed that include accounting allegations, and (2) changes in the legal environment relating to accounting co-defendants.
First, since 2011, the percent of filings with accounting claims dropped from about 37% to about 22%, while the percent of cases with an accounting co-defendant dropped from 3% to a little more than 1%. See Figure 11.8
The drop in the relative percent of filings with an accounting co-defendant, however, exceeded the decline of filings with accounting allegations, potentially due to changes in the legal environment, the second factor noted above. The legal environment was impacted by two Supreme Court rulings over the period. The Supreme Court’s Janus decision in 2011 restricted the ability of plaintiffs to sue parties not directly responsible for misstatements.9 This decision, along with the Court’s Stoneridge decision in 2008, which limited scheme liability, may have made accounting firms less appealing targets for securities class action litigation.10
Figure 11. Percentage of Federal Filings in which an Accounting Firm Is a Co-Defendant January 2005–December 2015
12%
10% 15 January 2008 Stoneridge decision
8%
6% 14 June 2011 Janus decision 10.6%
4% 8.0% Percentage of Federal Filings of Federal Percentage 7.2% 6.9% 6.8%
2% 3.1% 2.2% 2.3% 1.4% 0.9% 1.3% 0% 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Filing Year Note: Coded on the basis of the first (available) complaint.
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Alleged Insider Sales The percentage of 10b-5 class actions that also alleged insider sales continued to decrease in 2015, dropping from 49% in 2005 to 11% in 2015. See Figure 12.
Figure 12. Percentage of Rule 10b-5 Filings Alleging Insider Sales By Filing Year, January 2005–December 2015
50% 49% 48%
45%
45% 40%
35%
30% 29%
26% 25% 24%
20% 21% 19% Percentage of 10b-5 Filings Percentage 17% 15%
11% 13% 10%
5%
0% 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Filing Year
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Time to File The term “time to file” denotes the time between the end of the alleged class period and the filing date of the first complaint. Figure 13 illustrates how the median and average time to file (in days) has changed over the past five years, as well as the percent of cases in which the first complaint is filed within one year after the end of the purported class period.
All three indicators show that over the past few years, cases are generally being filed closer to the end of the alleged class periods. The 2015 median and average times to file were shorter than any other year in the past decade. In 2015, the percent of cases filed within a year of the purported class period exceeded 94%, higher than any other year in the past decade. It took only 11 days or less to file a complaint in 50% of cases in 2015. This shows a lower frequency of cases with long periods of time between when an alleged fraud was revealed and the filing of a related claim.
Figure 13. Time to File from End of Alleged Class Period to File Date for Rule 10b-5 Cases January 2011–December 2015
240 2011 2012 2013 2014 2015 100%
210
94% 180 92%
151 90% 150 90% 136
120 118 85% 84% Number of Days 90
75 Filed of Cases Percent 68 80%
60
41
30 26 17 18 11
0 70% Median Time to File (Days) Average Time to File (Days) Percentage of Cases Filed within 1 Year
Note: This analysis excludes cases where alleged class period could not be unambiguously determined.
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Class Period Length For the second year in a row, the median class period length of filed securities class actions has fallen. See Figure 14. 2015 had the shortest median class period of any year in the past decade.
One reason class periods have been shorter may be that alleged malfeasance is being detected sooner.11 One potential reason for such a trend towards earlier detection over the last couple years could be recent regulation changes, and higher issuer market capitalizations. In recent years, the SEC has enacted new regulations to combat securities fraud, including a mandate that all financial statements be filed in a machine-readable format. These filing guidelines were designed to increase transparency and facilitate more rapid detection of accounting anomalies.12 For example, analysts can now use “data-scraping” programs to download financial data from numerous firms in a similar industry. This permits them to compare the financial figures of one company to those of its peers, enabling interested parties to more easily investigate whether an apparently unusual financial result is a reflection of something company-specific or is part of a broader industry trend. In August of 2011, the SEC also adopted rules to reward individuals who expose violations of securities laws, thus motivating whistleblowers.13
Figure 14. Median Class Period Length—Excluding Merger Objection Cases, Cases Without Class Data, and Class Periods Longer than Five Years January 2005–December 2015
1.50
1.43 1.40
1.30
1.20
1.12 1.10 1.12
1.00
Years 1.03 1.02 1.02 1.00 0.98 0.90 0.94 0.91 0.85 0.80
0.70
0.60
0.50 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Filing Year
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We also note that class period length tends to be negatively correlated with the market capitalization of the defendant firm. See Figure 15. While the data do not provide specific evidence on this, firm size may be a proxy for a firm’s ability to catch or address potential errors more quickly, as larger firms likely have more comprehensive control systems. Between 2012 and 2015, the yearly median market capitalization of primary defendant firms was $658 million on average, up about 45% from $454 million between 2008 and 2011.
Figure 15. Class Period Length vs. Issuer Market Capitalization—Excluding Merger Objection Cases, Cases Without Class Data, and Class Periods Longer Longer than Five Years January 2011–December 2015
1.4
1.34 1.3
1.2 1.16
1.1
1.00 1.00 1 1.00
0.90 0.9 0.84 0.84 0.81 0.8 Class Period Length (Years) Class Period
0.7 0.71
0.6
0.5 Less than $50– $100– $200– $400– $700– $1,200– $1,700– $3,500– $10,000 $50 $99 $199 $399 $699 $1,199 $1,699 $3,499 $9,999 or Greater
Market Capitalization ($Millions)
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Analysis of Motions
NERA’s statistical analysis has found robust relationships between settlement amounts and the litigation stage at which settlements occur. We track three types of motions: motion to dismiss, motion for class certification, and motion for summary judgment. For this analysis, we track securities class actions in which holders of common stock are part of the class and a violation of Rule 10b-5 or Section 11 is alleged.
To correctly interpret the Figures, it is important to understand that we record the status of any motion as of the resolution of the case. For example, a motion to dismiss which had been granted but was later denied on appeal is recorded as denied, if the case settles without the motion being filed again.
Outcomes of motions to dismiss and motions for class certification are discussed below.
Motions for summary judgment were filed by defendants in 7.3%, and by plaintiffs in only 1.6%, of the securities class actions filed and resolved over the 2000–2015 period, among those we track. Outcomes of the motions for summary judgment are available from NERA, but not shown in this report.
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Motion to Dismiss A motion to dismiss was filed in 96% of the securities class actions tracked. However, the court reached a decision in only 79% of the motions filed. In the remaining 21% of cases in which a motion to dismiss was filed, either the case resolved before a decision was reached, plaintiffs voluntarily dismissed the action, or the motion to dismiss itself was withdrawn by defendants. See Figure 16.
Out of the motions to dismiss for which a court decision was reached, the following three outcomes classify all of the decisions: granted with or without prejudice (54%), granted in part and denied in part (20%), and denied (27%).
Figure 16. Filing and Resolutions of Motions to Dismiss January 2015–December 2015
Out of All Cases Filed and Resolved Out of Cases with MTD Filed Out of Cases with MTD Decided
Not Filed, 4% Action, 3% MTD Withdrawn by Defendants, 9% No Court Decision Prior to Case Resolution, 9%
Granted without Prejudice, 16%
Granted, 38% Court Decision Prior to Case Filed, 96% Resolution, 79%
Partially Granted / Partially Denied, 20%
Denied, 27%
Note: Includes cases in which holders of common stock are part of the class and a 10b-5 or Section 11 violation is alleged.
Motion for Class CertiÕcation Most cases were settled or dismissed before a motion for class certification was filed: 74% of cases fell into this category. Of the remaining 26%, the court reached a decision in only in 55% of the cases where a motion for class certification was filed. So, overall, only 14% of the securities class actions filed (or 55% of the 26%) reached a decision on the motion for class certification. See Figure 17.
Our data show that 83% of the motions for class certification that were decided were granted in full or partially.
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Figure 17. Filing and Resolutions of Motions for Class Certification January 2015–December 2015
Out of All Cases Filed and Resolved Out of Cases with MCC Filed Out of Cases with MCC Decided
Not Filed, 74%
MCC Withdrawn by Plaintiffs, 2%
No Court Decision Prior to Case Resolution, 43% Partially Granted / Filed, 26% Partially Denied, 8% Court Decision Prior Granted, 75% Denied, 12% to Case Resolution, 55% Denied without Prejudice, 6%
Approximately 65% of the decisions on motions for class certification that were reached were reached within three years of the original filing date of the complaint. See Figure 18. The median time is about 2.4 years.
Figure 18. Time from First Complaint Filing to Class CertiÕcation Decision Cases Filed and Resolved January 2000–December 2015
Less than More than 1 year, 5 years, 18, 7% 24, 9% 4-5 years, 19, 8%
1-2 years, 70, 3-4 years, 46, 27% 18%
2-3 years, 79, 31%
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Trends in Case Resolutions
Number of Cases Settled or Dismissed A total of 108 securities class actions settled in 2015, which is near the post-PSLRA lows seen over the past four years. See Figure 19. Despite having the highest number of settlements since 2011, there were 15% fewer settlements in 2015 than in 2011. Dismissals of securities cases have also been relatively low since 2011, but have increased over the last year. Ninety-six securities class actions were dismissed in 2015.
As we discuss below, the slowdown in the number of resolutions is primarily due to a lengthening of the time to case resolution, as opposed to a decline in the number of filings.
Figure 19. Number of Resolved Cases: Dismissed or Settled January 1996–December 2015
275 Dismissed 253 Settled 249 250 243 237 231 227 225 215 215 206 202 201 204 199 197 197 200 192 93 121 93 121 181 173 175 167 101 113 43 86 159 92 75 89 84 74 150 40 96 96 99 82 47 67 125
Number of Federal Cases Number of Federal 100
75 149 144 150 133 131 132 126 129 123 123 128 112 113 115 118 50 105 108 100 98 99
25
0 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Resolution Year Note: Analysis excludes IPO laddering cases. Dismissals may include dismissals without prejudice and dismissals under appeal.
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Case Status by Year Figure 20 shows the rate of cases settled or dismissed, and the percent pending by filing year. These rates are calculated as the fraction of cases by current status out of all cases filed in a given year.
The rate of case dismissal has increased from around 35% for cases filed in 2000 through 2002 to around 42%-47% for cases filed in 2005 through 2007, and then to 51%-54% for cases filed in 2009 through 2011, when most of the credit crisis-related filings occurred. Nearly 90% of cases filed before 2012 have been resolved, providing evidence of longer-term trends about dismissal and settlement rates.
For more recent filings, we can look at the percent of cases that quickly resolve. We observe 9% of cases filed in 2015 were dismissed by the end of the year, in contrast to only 3% of cases filed and dismissed within calendar year 2014.14 Of these, the number of voluntary dismissals more than tripled from four in 2014 to 13 in 2015.
While dismissal rates have been on a rising trend since 2000 at least up to 2011, two opposing factors make us cautious about drawing conclusions or forecasting how more recent cases may be resolved: the large fraction of cases awaiting resolution among those filed in recent years, and the possibility that recent dismissals will be successfully appealed or re-filed.
Figure 20. Status of Cases as Percentage of Federal Filings by Filing Year January 2000–December 2015 Settled Cases Pending Dismissed
4%
15%
28% 36% 37% 42% 46% 49% 53% 52% 56% 55% 61% 64% 68% 48% 11% 73% 11% 31% 7% 91% 6% 5% 4%
54% 52% 51% 47% 46% 48% 42% 43% 42% 41% 36% 36% 37% 32% 23%
9%
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Filing Year Note: Analysis excludes IPO laddering, merger objection cases, and verdicts. Dismissals may include dismissals without prejudice and dismissals under appeal.
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Number of Cases Pending The number of securities class actions pending in the federal system decreased from 724 in 2005 to 536 in 2011. Since then, the number of pending cases has increased, reaching 622 in 2015, an increase of about 16% from the trough. See Figure 21.
Since cases are either pending or resolved, a decline in the number of filings or a lengthening of the time to case resolution also potentially contribute to changes in the number of cases pending. If the number of new filings is constant, the change in the number of pending cases can be indicative of whether times to case resolution are generally shortening or lengthening.
Given the relatively constant case filing rate until recently, the increase in pending cases since 2012 suggests that a slow-down of the resolution process over the period is the likely driver of the increase in pending claims.
Figure 21. Number of Pending Federal Cases January 2005–December 2015
800
700
600
500
400
724
640 300 614 622 Number of Pending Cases Number of Pending 576 590 590 565 556 536 544
200
100
0 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015
Note: The figure exlcludes, in each year, cases that had been filed more than eight years earlier. The figure also excludes IPO laddering cases.
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Time to Resolution The term “time to resolution” denotes the time between filing of the first complaint and resolution (whether settlement or dismissal). Figure 22 illustrates the time to resolution for all securities class actions filed between 2001 and 2011, and shows that almost 40% of cases are resolved within two years of initial filing, and about 60% are resolved within three years.15
After grouping cases by filing year, Figure 23 shows the time it takes for 50% of cases filed each year to resolve, i.e., the median time to resolution. Except for increases in the median time to resolution following the 2000 dot-com bubble and the 2008 financial crisis, there has been a long- term downward trend in the median time to resolution. Over the first five years after the PSLRA went into effect, median time to resolution varied between 2.3 and 2.8 years. Over the 2008– 2013 period, median time to resolution varied between 2.1 and 2.5 years. Much of this decline is due to shorter times to case settlement, as opposed to a shortening of the time it takes for cases to be dismissed.
Figure 22. Time from First Complaint Filing to Resolution Cases Filed January 2001–December 2011
Less than 1 year 13%
More than 4 years 25%
1-2 years 25%
3-4 years 15%
2-3 years 22%
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Figure 23. Median Years from Filing of Complaint to Resolution of the Case Cases Filed January 1996–December 2013 and Resolved January 1996–December 2015
3.3
3.1 3.1
2.9 2.8
2.8 2.7 2.7
2.6 2.6 2.5 2.5 2.5 2.5
2.4 2.4 2.4 2.3 2.4 2.3 2.3 2.3 2.2 2.1 2.1
Median Years from Filing to Resolution Date Filing from Median Years 1.9
1.7
1.5 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 Filing Year
Trends in Settlements
We present several metrics regarding settlements in order to highlight attributes of cases that settled in 2015 and compare them with past years. We discuss two ways of measuring average settlement amounts and calculate the median settlement amount. Each calculation excludes IPO laddering cases, merger objection cases, and cases that settle with no cash payment to the class, as settlements of these less-usual cases may obscure trends in more typical cases.
The average settlement for 2015 reached $52 million, an increase of more than 46% over 2014. Excluding cases that settled for more than $1 billion dollars, the average settlement for 2015 was near the 2013 record high. The median 2015 settlement amount, which is more robust to extreme values, was $7.3 million and little changed from 2014.
The settlement of a number of large cases in 2015 affected the average settlement statistics. To illustrate how many cases settled over various ranges in 2015 versus past years, we provide a distribution of settlements over the past five years. To supplement this, we tabulate the 10 largest settlements of the year.
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Average and Median Settlements Average settlement amounts rebounded in 2015 and exceeded $52 million, an increase of 46% over 2014. See Figure 24. Excluding settlements that exceed $1 billion to remove extreme outliers, this approaches the record high of $54 million reached in 2013.
Figure 24. Average Settlement Value ($Million)—Excluding Settlements over $1 Billion and Excluding IPO Laddering, Merger Objections, and Settlements for $0 to the Class January 1996–December 2015
60 Nominal $
Inflation Adjustment $54 $52 + $ Adjusted for Inflation 50 $46 $44
40 $38 $36 $34 $35 $33 $33 $31 $32 $30 30
($Millions) $25 $53 $52
$21 $21 $19 $42 20 $40 $36 $16 $36 $14 $32 $31 $13 $30 $27 $26 $24 $24 10 $20
$15 $15 $13 $11 $8 $10
0 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Settlement Year
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Figure 25 includes settlement amounts above $1 billion. In 2013, one settlement exceeding $1 billion was approved and pushed the overall average settlement amount to nearly $83 million. Over the past two years, on the other hand, no case settled for above $1 billion, so the average yearly settlement amounts for 2014 and 2015 are the same in both Figures.
Figure 25. Average Settlement Value ($Million)—Excluding IPO Laddering, Merger Objections, and Settlements for $0 to the Class January 1996–December 2015
120 $117 Nominal $
Inflation Adjustment
+ $ Adjusted for Inflation 100 $94
$87 $85
80
$60 $60 60 $53 $52
($Millions) $108 $45 $46
40 $83 $80 $36 $33 $31 $32 $72
$25 $52 $52 $21 $52 $19 $21 20 $43 $41 $42 $14 $36 $13 $31 $24 $24 $20 $13 $15 $15 $8 $10 0 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Settlement Year
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The high 2015 average settlement amount was driven by multiple large settlements (each considerable, but less than the $1 billion threshold). On the other hand, cases have not become more expensive to settle across the board, as shown by analyzing median settlements. The median settlement amount, or the amount that is larger than half of the settlement values over the year, is much closer to that of 2014 and other years over the past decade. In 2015, the median settlement amount was $7.3 million, roughly equal to the 2014 median settlement. See Figure 26.
This year’s average and median settlements reflect two different facets of settlement activity: a few large settlements drove the average up, while many small settlements kept the median stable.
Figure 26. Median Settlement Value ($Million)—Excluding IPO Laddering, Merger Objections, and Settlements for $0 to the Class January 1996–December 2015
14 Nominal $
Inflation Adjustment $12.7 $12.0 12 + $ Adjusted for Inflation
$10.3 $10.0 10 $9.5 $9.4 $9.3 $8.8 $8.9
8 $7.7 $7.8 $7.1 $7.3 $7.0 $6.7 $6.8 $6.6 $6.8
($Millions) $6.0 6 $5.6 $12.3 $11.0
$9.0 $8.5 $8.8 4 $8.0 $8.2 $8.0 $7.4 $7.3 $6.5 $6.7 $6.0 $5.3 $5.3 $5.0 $4.9 2 $4.5 $4.5 $3.7
0 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Settlement Year
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Distribution of Settlement Amounts The fraction of cases settled for less than $10 million or more than $100 million was larger in 2015 than in any year over the past five: 58% of the settlements were for amounts less than $10 million while 13% were for amounts greater than $100 million.16 See Figure 27. The fraction of cases that settled for amounts in each of the intermediate ranges was at or near the lowest levels over the past five years.
Figure 27. Distribution of Settlement Values—Excluding Merger Objections and Settlements for $0 to the Class January 2011–December 2015
60% 2011 2012 2013 2014 2015
50%
40%
30% 58% 57% 52% 47% 56% 20% Percentage of Settled Cases Percentage
13% 16% 10% 20% 23% 16% 14% 7% 9% 11% 13% 11% 9% 6% 13% 9% 9% 6% 10% 6% 7% 0% Less than $10 $10–$19.9 $20–$49.9 $50–$99.9 $100 or Greater
Size of Settlement Value ($Million)
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The 10 Largest Settlements of Securities Class Actions of 2015 The 10 largest settlements of securities class actions in 2015 are shown in Table 1. Six out of the 10 largest settlements involved financial sector defendants and stemmed from litigation related to the financial crisis. These cases accounted for more than $2.9 billion out of about $5 billion in aggregate settlements (or about 60%) over the period. The largest, American International Group, Inc. (2008) (S.D.N.Y.), settled for $970.5 million, making up nearly one-fifth of total settled litigation during the year. The largest settlements of 2015 are dwarfed by past settlements. Enron Corp. settled for more than $7.2 billion in aggregate, while Bank of America Corp. settled for more than $2.4 billion in 2013 and was the largest financial sector settlement ever, per Table 2.
Table 1. Top 10 Securities Class Action Settlements of 2015 (As of December 31, 2015)
Financial Accounting Plaintiffs’ Attorneys’ Total Institutions Firms Fees and Expenses Settlement Value Value Value Value CC Ranking Case Name ($MM) ($MM) ($MM) ($MM) Related
1 American International Group, Inc. (2008) $970.5 $0.0 $10.5 $122.5 1 2 Bear Stearns Mortgage Pass-Through Certificates $500.0 n/a No co-defendant $88.0 1 3 Pfizer, Inc. (2010) $400.0 No co-defendant No co-defendant $102.3 0 4 J.P. Morgan Acceptance Corp. I $388.0 No co-defendant No co-defendant $101.9 1 (Mortgage Pass-Through Certificates) (2009) 5 IndyMac Mortgage Pass-Through Certificates $346.0 $340.0 No co-defendant $45.0 1 1 6 RALI Mortgage $335.0 $235.0 No co-defendant $75.0 1 (Asset-Backed Pass-Through Certificates) 7 The Bank of New York Mellon Corporation $180.0 $0 No co-defendant $48.0 0 8 Federal National Mortgage Association $170.0 $0 $0 $37.0 1 (Fannie Mae) (2008) 9 Duke Energy Corporation (2012) (W.D. N.C.) $146.3 No co-defendant No co-defendant $35.9 0 10 Sprint Nextel Corporation (2009) $131.0 No co-defendant No co-defendant $32.8 0
Total $3,566.8 $575.0 $10.5 $688.2 0
1 Does not include litigation expenses.
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Table 2. Top 10 Securities Class Action Settlements (As of December 31, 2015)
Financial Accounting Plaintiffs’ Attorneys’ Total Institutions Firms Fees and Expenses Settlement Settlement Ranking Case Name Years Value Value Value Value ($MM) ($MM) ($MM) ($MM)
1 ENRON Corp. 2003-2010 $7,242 $6,903 $73 $798 2 WorldCom, Inc. 2004-2005 $6,196 $6,004 $103 $530 3 Cendant Corp. 2000 $3,692 $342 $467 $324 4 Tyco International, Ltd. 2007 $3,200 No co-defendant $225 $493 5 In re AOL Time Warner Inc. 2006 $2,650 No co-defendant $100 $151 6 Bank of America Corp. 2013 $2,425 No co-defendant No co-defendant $177 7 Nortel Networks (I) 2006 $1,143 No co-defendant $0 $94 8 Royal Ahold, NV 2006 $1,100 $0 $0 $170 9 Nortel Networks (II) 2006 $1,074 No co-defendant $0 $89 10 McKesson HBOC, Inc. 2006-2008 $1,043 $10 $73 $88 Total $29,764 $13,259 $1,040 $2,913
Aggregate Settlements We use the term “aggregate settlements” to denote the total amount of money to be paid as settlement by (non-dismissed) defendants based on the court-approved settlements during a year.
Aggregate settlements were about $5 billion in 2015, an increase from the $2.9 billion approved in 2014 but well short of the $6.6 billion in 2013, when multiple cases settled for more than $1 billion. Especially notable in 2015 was the aggregate settlement amount attributable to cases that settled for less than $1 billion, which approached the high seen in 2009.
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Figure 28 reinforces the point noted above that much of the large fluctuation in aggregate settlements, especially since 2005, is driven by cases that settle for more than $1 billion. In contrast, settlements under $10 million, despite often accounting for the majority of settlements in a given year, account for a very small fraction of aggregate settlements.
Figure 28. Aggregate Settlement Value ($Billion) by Settlement Size January 1996–December 2015
$12 Aggregate Settlement by the $11.6 Following Settlement Sizes
$11 $1BB or Greater
$500MM–$999MM $10.0 $10 $100MM–$499MM
$9 $10MM–$99MM $8.7
Less than $10MM $8 $7.5 $7.2
$7 $6.2 $6.6
$6 $3.2 $6.0 $5.0 $5.1 $2.4 $5.0 $5 $4.5 $0.9 $1.5 $4 $0.6 $1.1 $3.3
Aggregate Settlement Value ($Billion) Settlement Value Aggregate $1.4 $3.1 $2.9 $3 $3.7 $1.8 $2.6 $0.8 $2.3 $2.7 $0.5 $1.7 $1.8 $1.0 $2.1 $0.7 $0.6 $2.3 $1.8 $1.3 $2 $1.4 $1.3 $1.4 $1.4 $1.4 $1.3 $0.9 $0.7 $1.2 $1.2 $1.0 $1.1 $1.2 $0.7 $0.2 $1.0 $1 $0.2 $1.8 $1.6 $0.3 $0.7 $1.4 $1.0 $1.0 $1.0 $1.2 $1.2 $0.4 $0.7 $0.9 $0.9 $0.8 $0.8 $1.1 $0.9 $1.0 $1.0 $0.4 $0.7 $0 $0.4 $0.3 $0.2 $0.2 $0.3 $0.3 $0.2 $0.3 $0.3 $0.3 $0.3 $0.3 $0.3 $0.2 $0.2 $0.1 $0.2 $0.2 $0.2 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Settlement Year
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Investor Losses vs. Settlements As noted above, our investor loss measure is a proxy for the aggregate amount that investors lost from buying the defendant’s stock rather than investing in the broader market during the alleged class period.
In general, settlement size grows as investor losses grow, but the relation is not linear. Settlement size grows less than proportionately with investor losses, based on analysis of data from 1996 to 2015. Small cases typically settle for a higher fraction of investor losses (i.e., more cents on the dollar) than larger cases. For example, the median ratio of settlement to investor losses was 18.9% for cases with investor losses of less than $20 million, while it was 0.6% for cases with investor losses over $10 billion. See Figure 29.
Our findings about the ratio of settlement amount to investor losses should not be interpreted as the share of damages recovered in settlement, but rather as the recovery compared to a rough measure of the “size” of the case.
Figure 29. Median of Settlement Value as a Percentage of Investor Losses—Excludes Settlements for $0 to the Class By Level of Investor Losses; January 1996–December 2015
20%
18.9%
15%
10%
8.6%
5% 4.5%
Settlement Value as a Percentage of Investor Losses as a Percentage Settlement Value 3.4% 2.6% 1.8% 1.3% 1.2% 1.0% 0.6%
0% Less than $20– $50– $100– $200– $400– $600– $1,000– $5,000– $10,000 $20 $49 $99 $199 $399 $599 $999 $4,999 $9,999 or Greater Investor Losses ($Million)
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Median Investor Losses over Time Median investor losses for settled cases have been on an upward trend since passage of the PSLRA. As described above, the median ratio of settlement size to investor losses generally decreases as investor losses increase. Over time, the increase in median investor losses has coincided with a decreasing trend in the median ratio of settlement to investor losses. Of course, there are year-to- year fluctuations.
As shown in Figure 30, the median ratio of settlements to investor losses was 1.9% in 2014. For the latter half of the year, after the Halliburton II decision, the median ratio was only 1.4%, suggesting that cases settled for less.17 This trend appears to have continued in 2015. The overall ratio was 1.6% in 2015, the second lowest percent in a decade, and coincided with a substantial decrease in median investor losses.
Figure 30. Median Investor Losses and Median Ratio of Settlement to Investor Losses By Settlement Year; January 1996–December 2015
700 8% $667
$631
7.0% 7% 600 $584 $583
6% 5.7% 500 $493
$449 4.9% 5% 4.7% $402 400 $389 4.2% $356 $343 $339 $328 $328 4% 3.5% 300 3.0% 3.1% 2.7% 3% $215 2.3% 2.4% 2.4% Median Investor Losses ($Million) Median Investor Losses 200 2.5% 1.9% $158 1.8% 2% $151 2.2% 2.2% 1.6%
1.8% (%) Median Ratio of Settlement to Investor Losses $119 $113 $94 100 1.3% $64 1%
0 0% 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Settlement Year
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Explaining Settlement Amounts The historical relationship between case attributes and other case- and industry-specific factors can be used to measure the factors that are correlated with settlement amounts. NERA has examined settlements in over 1,000 securities class actions and identified key drivers of settlement amounts, many of which have been summarized in this report.
Generally, we find that the following factors have historically been significantly correlated with settlements:
Investor losses (a proxy for the size of the case); The market capitalization of the issuer; Types of securities alleged to have been affected by the fraud; Variables that serve as a proxy for the “merit” of plaintiffs’ allegations (such as whether the company has already been sanctioned by a governmental or regulatory agency or paid a fine in connection with the allegations); Admitted accounting irregularities or restated financial statements; The existence of a parallel derivative litigation; and An institution or public pension fund as lead plaintiff.
Together, these characteristics and others explain most of the variation in settlement amounts, as illustrated in Figure 31. Note that the two largest settlements are excluded from this figure.
Figure 31. Predicted vs. Actual Settlements
$10 billion Actual Settlement in Log Values Settlement in Log Actual
$0 billion $0 billion $10 billion Predicted Settlement in Log Values
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Plaintiffs’ Attorneys’ Fees and Expenses Usually, plaintiffs’ attorneys’ remuneration is determined as a fraction of any settlement amount in the forms of fees, plus expenses. Figure 32 depicts plaintiffs’ attorneys’ fees and expenses as a proportion of settlement values over ranges of settlement amounts. The data shown in this Figure exclude settlements for merger objection cases and cases with no cash payment to the class.
Two patterns are evident in Figure 32: (1) typically, fees grow with settlement size but less than proportionally (i.e., the fee percentage shrinks as the settlement size grows), and (2) fee percentages have been decreasing over time, except for fees awarded on very large settlements.
First, to illustrate that the fee percentage typically shrinks as settlement size grows, we grouped settlements by settlement value and report the median fee percentage for each group. While fees are stable at around 30% for settlements below $10 million, they clearly decline with settlement size.
Second, to illustrate that fee percentages have been decreasing over time (except for very large settlements), we report our findings both for the period 1996-2010 and for the period 2011-2015. The comparison shows that fee percentages have decreased or remained constant for settlements under $500 million. For settlements above $500 million, fee rates have increased.
Figure 32. Median of Plaintiffs’ Attorneys’ Fees and Expenses, by Size of Settlement—Excludes Merger Objections, and Settlements for $0 to the Class
1996–2010 Settlement Value 2011–2015 Percentage of Settlement Value ($Million) Percentage of Settlement Value
>=1,000 Median Fees 8.0% 0.4% 7.6% 9.6% 1.1% 10.7% Median Expenses
17.1% 0.7% 16.5% >=500 and <1,000 17.0% 0.6% 17.6%
23.9% 1.4% 22.5% >=100 and <500 20.0% 1.6% 21.6%
29.8% 1.8% 28.0% >=25 and <100 25.0% 2.1% 27.1%
32.8% 2.8% 30.0% >=10 and <25 27.5% 2.6% 30.1%
33.7% 3.7% 30.0% >=5 and <10 30.0% 3.0% 33.0%
38.7% 5.4% 33.3% <5 30.0% 4.3% 34.3%
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Aggregate Plaintiffs’ Attorneys’ Fees and Expenses Aggregate plaintiffs’ attorneys’ fees and expenses are the sum of all fees and expenses received by plaintiffs’ attorneys for all securities class actions that receive judicial approval in a given year.
In 2015, aggregate plaintiffs’ attorneys’ fees and expenses were $1.095 billion, an increase of nearly 63% over 2014 and mirroring the increase in settlement amounts discussed earlier. See Figure 33. Settlements in 2015 generated the highest aggregate plaintiffs’ fees and expenses for any year on record in which there were no settlements above $1 billion. This stemmed in part from the highest fees on record from cases settling for between $100 million and $500 million.
Note that this Figure differs from the other Figures in this section, because it includes in the aggregate those fees and expenses that plaintiffs’ attorneys received for settlements in which no cash payment was made to the class.
Figure 33. Aggregate Plaintiffs’ Attorneys’ Fees and Expenses by Settlement Size January 1996–December 2015
$1,800 Aggregate Plaintiffs’ Attorneys’ Fees and Expenses $1,713 by the Following Settlement Sizes ($Million)
$1,000 or Greater $1,600 $1,576 $500–$999.9
$100–$499.9 $1,400 $600 $10–$99.9 $1,276 Less than $10 $1,200 $738 $1,169 $1,095 $1,068 $1,083 $369 $177 $153 $65 $1,000 $962 $210 $882 $89 $439 $91 $351 $800 $155 $418 $380 $708 $317 $703 $665 $217 $671 $672
$600 $112 $143 $526 $277 $157 $280 $505 $432 $271 $487 $174 Aggregate Fees and Expenses ($Million) Fees Aggregate $261 $141 $294 $303 $202 $379 $168 $100 $156 $400 $354 $63 $326 $38 $327 $40 $482 $482 $72 $111 $340 $361 $314 $310 $243 $283 $200 $270 $226 $276 $281 $254 $261 $287 $124 $219 $257 $134 $298
$131 $96 $84 $83 $95 $111 $85 $116 $104 $108 $92 $97 $101 $85 $105 $77 $93 $97 $0 $72 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Settlement Year
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Trials
Very few securities class actions reach the trial stage and even fewer reach a verdict. Table 3 summarizes the outcome for all federal securities class actions that went to trial among more than 4,300 that were filed since the PSLRA. Only 21 have gone to trial and only 15 have reached a verdict or a judgment.
No trials were held in 2015.
Table 3. Post-PSLRA Securities Class Actions that Went to Trial (As of December 31, 2015)
Appeal and Post-Trial Proceedings
Federal File Trial Start Date of Last Case Name Circuit Year Year Verdict Decision Outcome
Verdict or Judgment Reached In re Health Management, Inc. Securities Litigation 2 1996 1999 Verdict in favor of defendants 2000 Settled during appeal Koppel, et al v. 4987 Corporation, et al 2 1996 2000 Verdict in favor of defendants 2002 Judgment of the District Court in favor of defendants was affirmed on appeal In re JDS Uniphase Corporation Securities Litigation 9 2002 2007 Verdict in favor of defendants
Joseph J Milkowski v. Thane Intl Inc, et al 9 2003 2005 Verdict in favor of defendants 2010 Judgment of the District Court in favor of defendants was affirmed on appeal In re American Mutual Funds Fee Litigation 9 2004 2009 Judgment in favor of 2011 Judgment of the District Court in favor defendants of defendants was affirmed on appeal
Claghorn, et al v. EDSACO, Ltd., et al 9 1998 2002 Verdict in favor of plaintiffs 2002 Settled after verdict In re Real Estate Associates Limited 9 1998 2002 Verdict in favor of plaintiffs 2003 Settled during appeal Partnership Litigation In re Homestore.com, Inc. Securities Litigation 9 2001 2011 Verdict in favor of plaintiffs In re Apollo Group, Inc. Securities Litigation 9 2004 2007 Verdict in favor of plaintiffs 2012 Judgment of the District Court in favor of defendants was overturned and jury verdict reinstated on appeal; case settled thereafter In re BankAtlantic Bancorp, Inc. Securities Litigation 11 2007 2010 Verdict in favor of plaintiffs 2012 Judgment of the District Court in favor of defendants was affirmed on appeal
In re Longtop Financial Technologies Securities Litigation 2 2011 2014 Verdict in favor of plaintiffs
In re Clarent Corporation Securities Litigation 9 2001 2005 Mixed verdict In re Vivendi Universal, S.A. Securities Litigation 2 2002 2009 Mixed verdict Jaffe v. Household Intl Inc, et al 7 2002 2009 Mixed verdict
In re Equisure, Inc. Sec, et al v., et al 8 19971998 Default judgment
Settled with at Least Some Defendants before Verdict Goldberg, et al v. First Union National, et al 11 2000 2003 Settled before verdict In re AT&T Corporation Securities Litigation 3 2000 2004 Settled before verdict In re Safety Kleen, et al v. Bondholders Litigati, et al 4 2000 2005 Partially settled before verdict, default judgment White v. Heartland High-Yield, et al 7 2000 2005 Settled before verdict In re Globalstar Securities Litigation 2 2001 2005 Settled before verdict In re WorldCom, Inc. Securities Litigation 2 2002 2005 Settled before verdict
Note: Data are from case dockets and news.
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Notes
1 This edition of NERA’s research on recent trends in 13 “SEC’s New Whistleblower Program Take Effect securities class action litigation expands on previous Today,” US Securities and Exchange Commission, work by our colleagues Lucy P. Allen, the late Frederick 21 August 2011. C. Dunbar, Dr. Vinita M. Juneja, Dr. Denise Neumann 14 NERA Working Paper, “Recent Trends in Securities Class Martin, Dr. Jordan Milev, Robert Patton, Dr. Stephanie Action Litigation: 2014 Full-Year Review; Settlement Plancich, Dr. David Tabak, and others. The authors also amounts plummet in 2014, but post-Halliburton thank Dr. Plancich and Dr. Tabak for helpful comments II filings rebound,” by Svetlana Starykh et al, 20 on this edition. In addition, we thank Shadman Torofder January 2015, at http://www.nera.com/publications/ and other researchers in NERA’s Securities and Finance archive/2015/recent-trends-in-securities-class-action- Practice for their valuable assistance. These individuals litigation--2014-full-y.html. receive credit for improving this paper; all errors and 15 omissions are ours. Each of these analyses excludes IPO laddering cases and merger objection cases because the former usually take 2 Data for this report are collected from multiple sources, much longer to resolve and the latter usually much less including Institutional Shareholder Services Inc., time to resolve. complaints, case dockets, Dow Jones Factiva, Bloomberg 16 Finance L.P., FactSet Research Systems, Inc., SEC filings, These settlements exclude those in merger objection and the public press. cases and in cases that settled with no cash payment to the class. 3 A recent study has attributed the decline in listings 17 between 1997 through 2012 to a low rate of new firm NERA Working Paper “Recent Trends in Securities Class listings and a high rate of delisting, the latter of which is Action Litigation: 2014 Full-Year Review; Settlement explained by an unusually high rate of public company amounts plummet in 2014, but post-Halliburton acquisitions. “NBER Working Paper “The U.S. listing gap,” II filings rebound,” by Svetlana Starykh et al, 20 by Craig Doidge, G. Andrew Karolyi, and René M. Stulz, January 2015, at http://www.nera.com/publications/ NBER Working Paper No. 21181, May 2015. archive/2015/recent-trends-in-securities-class-action- litigation--2014-full-y.html. 4 Note that here we only consider merger objection cases as federal cases alleging violation of securities laws or cases that merely allege breach of fiduciary duty. Merger objection cases filed in state court, which can potentially be numerous, are not counted.
5 “2015 Becomes the Biggest M&A Year Ever,” The Wall Street Journal, December 3, 2015.
6 Andrew Bolger, “Warning signs appear after bumper IPO year,” Financial Times, 26 December 2014.
7 Number of IPOs on US exchanges, excluding ADRs, from Mergerstat through FactSet Research Systems, Inc.
8 For the purposes of this Figure, we considered only co-defendants listed in the first identified complaint. Based on past experience, accounting co-defendants were sometimes added to or excluded from later complaints.
9 Janus Capital Group, Inc., et al. v. First Derivative Traders — (Docket No. 09-525).
10 Stoneridge Investment Partners v. Scientific-Atlanta, Inc. — (Docket No. 06-43).
11 An alternative possibility is that once detected, full disclosure is made earlier, turning what would have been a “partial disclosure” into a complete disclosure.
12 “The SEC’s Renewed Focus on Accounting Fraud, Insights and Implications for Auditors and Public Companies,” The CPA Journal, February 2014.
www.nera.com 39 Case 1:04-cv-09866-LTS-HBP Document 713-2 Filed 11/11/16 Page 43 of 45
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Exhibit C Case 1:04-cv-09866-LTS-HBP Document 713-3 Filed 11/11/16 Page 2 of 11
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
No. 04-cv-9866 (LTS)(HBP) IN RE PFIZER INC. SECURITIES LITIGATION ECF CASE
DECLARATION OF MICHAEL A. KEABLE IN SUPPORT OF PLAN OF ALLOCATION
I, Michael A. Keable, declare as follows:
I. QUALIFICATIONS
1. I am an Executive Vice President of Compass Lexecon, an economics consulting firm specializing in the application of economics to a variety of legal and regulatory matters. Among the staff and professional affiliates of Compass Lexecon are several prominent academics and a group of full time economists, accountants, computer programmers, and research assistants.
2. I have been employed by Compass Lexecon for over twenty-five years and have specialized in the areas of securities markets, damages, corporate finance, and financial statement analysis, primarily in the context of securities litigation. I have worked on hundreds of matters involving market efficiency, materiality, loss causation, and damages. My responsibilities have included designing, performing, and supervising economic studies of various issues. I have served as a consulting and/or testifying expert on economic issues to, among others, the United States Department of Justice, the United States Internal Revenue
Service, and the United States Securities and Exchange Commission.
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3. I am a member of the American Economic Association and the American
Finance Association. I received a B.A. in History from The University of Chicago and an
M.B.A with concentrations in Finance and Business Policy from The University of Chicago
Graduate School of Business. My curriculum vitae, which lists my prior testimony and publications, is attached as Exhibit A.
II. INTRODUCTION AND SUMMARY OF CONCLUSION
4. At the request of Counsel for Plaintiffs, I assisted in developing the proposed plan for allocating the Settlement Fund in the above captioned case, net of Court- approved attorneys’ fees and expenses (the “Net Cash Settlement Amount”) described in
Appendix A to the Notice Of Proposed Settlement of Securities Class Action, Application for
Attorneys’ Fees and Expenses, and Settlement Fairness Hearing (the “Plan of Allocation”). The
Plan of Allocation describes the method of calculating each claimant’s “Recognized Claim” and pro-rata share of the Net Cash Settlement Amount. I have been asked by Counsel to provide the bases for the Plan of Allocation and opine on the reasonableness and fairness of the Plan of
Allocation in this Declaration.
5. In my opinion, the Plan of Allocation provides a fair and reasonable method for calculating Recognized Claims and distributing the Net Cash Settlement Amount among claimants who suffered economic losses as a result of the alleged fraud, as opposed to losses caused by market- or industry-wide factors, or Company-specific factors not related to the alleged fraud.
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III. THE PLAN OF ALLOCATION
6. The Plan of Allocation is based on the daily estimates of alleged artificial inflation (the “Inflation Estimate(s)”) presented in Exhibit 38 of the Amended Supplemental
Report of Daniel R. Fischel dated June 6, 2014 (ECF No. 668-1) (“Amd. Supp. Fischel Report”), the basis for which is detailed in the Report of Daniel R. Fischel dated January 13, 2012 (ECF
No. 524-75) (“Fischel Report”), the June 28, 2013 deposition of Daniel R. Fischel (ECF No.
524-77), and the Amd. Supp. Fischel Report. As explained therein, these estimates are derived from analyses that remove the effects of factors unrelated to the alleged fraud, such as market and industry effects. The Inflation Estimates are summarized in Plan of Allocation Table 1.
These estimates are to be applied to the claimants’ transactions in Pfizer common stock to calculate their Recognized Loss/Recognized Gain Amounts, and ultimately their Recognized
Claims, as described in the Plan of Allocation.
7. At Plaintiffs’ Counsel’s request and under my supervision, Compass
Lexecon estimated the Class’s maximum aggregate damages and the average recovery per affected share by applying the Inflation Estimates described in the Plan of Allocation to a commonly–employed trading model often referred to as the “80/20” multi-trader model. This model assumes that some Class members traded more frequently than others and accounted for
80% of the trading volume, while those who traded less frequently accounted for 20% of the volume.
8. Maximum aggregate damages under this model are $5.37 billion based on an estimated 3.67 billion damaged shares, which equates to average per-share damages of $1.46.
Dividing the amount of the Settlement ($486 million) by the estimated 3.67 billion affected shares yields an estimated $0.13 average recovery per affected share of Pfizer common stock.
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8. Certain Pfizer shares purchased or otherwise acquired during the Class
Period were not damaged and were excluded from the calculations described above.
Specifically, the following Pfizer purchases/acquisitions were not damaged: 1) shares sold prior to the first corrective disclosure on October 6, 2004; 2) shares sold when the Inflation Estimate amount at the time of sale was equal to the Inflation Estimate amount at the time of purchase/acquisition (e.g., shares that were both purchased and sold between alleged corrective disclosures when the inflation was the same); 3) shares sold when the Inflation Estimate amount was greater than the Inflation Estimate amount at the time of purchase/acquisition (e.g., any
Pfizer shares that were sold between September 30, 2004 and October 6, 2004 when the Inflation
Estimate was at its highest point); and 4) shares purchased after December 16, 2004, when the
Inflation Estimate was negative or $0 (see Amd. Supp. Fischel Report Exhibit 38).
9. One final category of purchases/acquisitions that were not included in the above calculations is Pfizer shares acquired in exchange for Pharmacia shares in connection with the April 16, 2003 merger. Unlike cash or any other consideration used to acquire Pfizer stock, the exchanged Pharmacia shares were artificially inflated by at least as much as, if not more than, the acquired Pfizer shares because Pharmacia received more revenue from Celebrex and Bextra before the merger than Pfizer did (see Fischel Report ¶ 31 n.16). As a result, former Pharmacia shareholders who exchanged such shares did not suffer any harm from their acquisition of Pfizer stock.
10. Plaintiffs’ Counsel also requested that I estimate aggregate damages using the same model and assumptions described above but further assuming that the jury found the
December 17, 2004 alleged corrective disclosure was not corrective of any alleged fraudulent information. I understand that the Second Circuit’s ruling requires that under this circumstance, the December 17, 2004 price decline caused by this disclosure should be removed from the
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EXHIBIT A Case 1:04-cv-09866-LTS-HBP Document 713-3 Filed 11/11/16 Page 8 of 11
MICHAEL A. KEABLE September 13, 2016
Business Address: Compass Lexecon 332 S. Michigan Avenue Suite 1300 Chicago, IL 60604 (312) 322-0207 [email protected]
Home Address: 1217 W. Henderson Street Chicago, IL 60657
EDUCATION
M.B.A., UNIVERSITY OF CHICAGO, Chicago, Illinois: Concentrations in Finance and Business Policy, 1996
B.A., UNIVERSITY OF CHICAGO, Chicago, Illinois: History, 1988
PROFESSIONAL EXPERIENCE
Compass Lexecon (formerly Lexecon), Chicago, Illinois:
Executive Vice President: 2013 - Present Senior Vice President: 2007 - 2013 Vice President: 2000 - 2006 Economist: 1991 - 1999 Research Associate: 1989 - 1991
FIELDS OF SPECIALIZATION
Damages Securities Markets Corporate Finance Financial Statement Analysis
PROFESSIONAL AFFILIATIONS
Member: American Finance Association, American Economic Association Case 1:04-cv-09866-LTS-HBP Document 713-3 Filed 11/11/16 Page 9 of 11
ARTICLES
The Use of Trading Models to Estimate Aggregate Damages in Securities Fraud Litigation: An Update (with Daniel R. Fischel and David J. Ross) in Briefly… Perspectives on Legislation, Regulation, and Litigation, National Legal Center for the Public Interest, Vol. 10, No. 3 (March 2006).
TESTIMONY
Declaration of Michael A. Keable in Re: Pfizer Inc. Securities Litigation; File No. 04-cv-9866 (LTS)(HBP); United States District Court, Southern District of New York, (September 13, 2016).
Affidavit of Michael A. Keable in Re: Peter Kaynes and BP, PLC, Ontario Superior Court of Justice, Court File No. CV-12-00467836-00CP, (March 8, 2013).
Deposition of Michael A. Keable In Re: Northfield Laboratories, Inc. Securities Litigation; No. 06-C-1493; United States District Court, Northern District of Illinois, Eastern Division, (April 22, 2011).
Declaration of Michael A. Keable in Re: Northfield Laboratories, Inc. Securities Litigation; File No. 06-C-1493; United States District Court, Northern District of Illinois, Eastern Division, (February 4, 2011).
Deposition of Michael A. Keable In Re: BankAtlantic Bancorp, Inc. Securities Litigation; Case No. 07-61542-CIV-UNGARO/SIMONTON; United States District Court, Southern District of Florida, (May 24, 2010).
Report of Michael A. Keable In Re: BankAtlantic Bancorp, Inc. Securities Litigation; Case No. 07-61542-CIV-UNGARO/SIMONTON; United States District Court, Southern District of Florida, (April 28, 2010).
Declaration of Michael A. Keable in Re: UTStarcom, Inc. Securities Litigation; Master File No. C- 04-4908-JW (PVT); United States District Court, Northern District of California, San Jose Division, (April 2, 2010).
Deposition of Michael A. Keable In Re: Appaloosa Investments L.P. et al. v. J.P. Morgan Securities, Inc., et al; Case No. 05-44481; Superior Court of New Jersey, Law Division, Morris County, (February 19, 2010).
Report of Michael A. Keable In Re: Appaloosa Investments L.P. et al. v. J.P. Morgan Securities, Inc., et al; Case No. 05-44481; Superior Court of New Jersey, Law Division, Morris County, (November 11, 2009).
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Declaration of Michael A. Keable in Support of Defendants’ Motion for Summary Judgment Re: Thomas P. Jasin v. Tyco International Ltd, Tyco International (US) Inc., et al.; Case No. 04-CV-2188; United States District Court for the Middle District of Pennsylvania, (October 30, 2009).
Reply Affidavit of Michael A. Keable in Support of Defendants' Motion for Summary Judgment Re: Eugenia J. Fiala, et al. v. Metropolitan Life Insurance Company, et al.; Index No. 601181/00, Supreme Court of the State of New York, County of New York: I.A.S. Part 49, (September 24, 2008).
Deposition of Michael A. Keable in Re: Brian Asher v. Baxter International Inc. et al., Case No. 02 CV 5608, United States District Court for the Northern District of Illinois, Eastern Division, (May 14, 2008).
Report of Michael A. Keable in Re: Brian Asher v. Baxter International Inc. et al., Case No. 02 CV 5608, United States District Court for the Northern District of Illinois, Eastern Division, (April 25, 2008).
Report of Michael A. Keable in Re: Thomas P. Jasin v. Tyco International Ltd, et al., Civil Action Law No. 2004-CV-3241, Court of Common Pleas, Dauphin County, Pennsylvania, (February 25, 2008).
Deposition of Michael A. Keable in Re: MetLife Demutualization Litigation, No. CV 00 2258 (TCP), United States District Court, Eastern District of New York, (February 19, 2008).
Rebuttal Report of Michael A. Keable in Re: MetLife Demutualization Litigation, No. CV 00 2258 (TCP), United States District Court, Eastern District of New York, (October 31, 2007).
Initial Report of Michael A. Keable in Re: MetLife Demutualization Litigation, No. CV 00 2258 (TCP), United States District Court, Eastern District of New York, (August 22, 2007).
Deposition of Michael A. Keable in Re: Cendant Corporation Securities Litigation, Docket No. 98-CV-1664 (WHW), District Court for the District of New Jersey, (October 8, 2007).
Report of Michael A. Keable in Re: Cendant Corporation Securities Litigation, Cross-Claim of Cendant Corporation against Ernst & Young LLP, United States District Court for the District of New Jersey, Master File No. CV-98-1164 (WHW), (July 16, 2007).
Deposition of Michael A. Keable in Re: Eugenia J. Fiala, et al. v. Metropolitan Life Insurance Company, et al., No. 00/601181 and No. 00/108887, Supreme Court of the State of New York, County of New York, (July 21, 2006).
Supplemental Report of Michael A. Keable and Cathy M. Niden in Re: Joseph Vecchio, Joseph Vecchio Unitrust, Michael Vecchio and William Kaiser v. Waste Management, Inc., f/k/a
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USA Waste Services, Inc., Rodney R. Proto, and Earl E. DeFrates, District Court of Harris County, Texas, 270th Judicial District, No. 2003-22897, (January 24, 2005).
Report of Michael A. Keable and Cathy M. Niden in Re: Joseph Vecchio, Joseph Vecchio Unitrust, Michael Vecchio and William Kaiser v. Waste Management, Inc., f/k/a USA Waste Services, Inc., Rodney R. Proto, and Earl E. DeFrates, District Court of Harris County, Texas, 270th Judicial District, No. 2003-22897, (January 14, 2005).
Report of Michael A. Keable in Re: HCM High Yield Opportunity Fund et al. v. Skandinaviska Enskilda Banken AB, et al., United States District Court, Southern District of Florida, Miami Division, No. 99-1350-Civ-Jordan, (December 29, 2002).
Report of Michael A. Keable in Re: Nahid Nazarian Behfarin, et al. v. Imaging Technologies Corp., et al., United States District Court, Southern District of California, No. 99-CV- 2163K (LSP), (April 11, 2002).
Affidavit of Michael A. Keable in Re: Waste Management, Inc. Shareholders Derivative Litigation, Court of Chancery of the State of Delaware, New Castle County, C.A. No. 17313NC, (September 13, 2001).
Declaration of Michael A. Keable in Re: Stuart Green v. Phillips-Van Heusen Corporation, Court of Chancery of the State of Delaware, New Castle County, Civil Action No. 14436, (February 19, 2001).
Report of Michael A. Keable in Re: Gary K. Bielfeldt and Carlotta J. Bielfeldt, et al. v. Commissioner of Internal Revenue, United States Tax Court, Docket No. 5936-96, (May 7, 1999).
SPEECHES
“The First Daubert Decision on the Use of Trading Models in Securities Class Actions” presented at the Practising Law Institute’s “Securities Litigation 2000” conference, San Francisco, October 31, 2000.
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Exhibit E Case 1:04-cv-09866-LTS-HBP Document 713-5 Filed 11/11/16 Page 2 of 8 Case 1:04-cv-09866-LTS-HBP Document 713-5 Filed 11/11/16 Page 3 of 8 Case 1:04-cv-09866-LTS-HBP Document 713-5 Filed 11/11/16 Page 4 of 8 Case 1:04-cv-09866-LTS-HBP Document 713-5 Filed 11/11/16 Page 5 of 8 Case 1:04-cv-09866-LTS-HBP Document 713-5 Filed 11/11/16 Page 6 of 8 Case 1:04-cv-09866-LTS-HBP Document 713-5 Filed 11/11/16 Page 7 of 8 Case 1:04-cv-09866-LTS-HBP Document 713-5 Filed 11/11/16 Page 8 of 8 Case 1:04-cv-09866-LTS-HBP Document 713-6 Filed 11/11/16 Page 1 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-6 Filed 11/11/16 Page 2 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-6 Filed 11/11/16 Page 3 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-6 Filed 11/11/16 Page 4 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-6 Filed 11/11/16 Page 5 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-6 Filed 11/11/16 Page 6 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-6 Filed 11/11/16 Page 7 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-6 Filed 11/11/16 Page 8 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-6 Filed 11/11/16 Page 9 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-6 Filed 11/11/16 Page 10 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-7 Filed 11/11/16 Page 1 of 9
Exhibit G Case 1:04-cv-09866-LTS-HBP Document 713-7 Filed 11/11/16 Page 2 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-7 Filed 11/11/16 Page 3 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-7 Filed 11/11/16 Page 4 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-7 Filed 11/11/16 Page 5 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-7 Filed 11/11/16 Page 6 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-7 Filed 11/11/16 Page 7 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-7 Filed 11/11/16 Page 8 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-7 Filed 11/11/16 Page 9 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-8 Filed 11/11/16 Page 1 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-8 Filed 11/11/16 Page 2 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-8 Filed 11/11/16 Page 3 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-8 Filed 11/11/16 Page 4 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-8 Filed 11/11/16 Page 5 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-8 Filed 11/11/16 Page 6 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-8 Filed 11/11/16 Page 7 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-8 Filed 11/11/16 Page 8 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-8 Filed 11/11/16 Page 9 of 9 Case 1:04-cv-09866-LTS-HBP Document 713-9 Filed 11/11/16 Page 1 of 64
Exhibit I Case 1:04-cv-09866-LTS-HBP Document 713-9 Filed 11/11/16 Page 2 of 64 Case 1:04-cv-09866-LTS-HBP Document 713-9 Filed 11/11/16 Page 3 of 64 Case 1:04-cv-09866-LTS-HBP Document 713-9 Filed 11/11/16 Page 4 of 64 Case 1:04-cv-09866-LTS-HBP Document 713-9 Filed 11/11/16 Page 5 of 64 Case 1:04-cv-09866-LTS-HBP Document 713-9 Filed 11/11/16 Page 6 of 64 Case 1:04-cv-09866-LTS-HBP Document 713-9 Filed 11/11/16 Page 7 of 64 Case 1:04-cv-09866-LTS-HBP Document 713-9 Filed 11/11/16 Page 8 of 64 Case 1:04-cv-09866-LTS-HBP Document 713-9 Filed 11/11/16 Page 9 of 64 Case 1:04-cv-09866-LTS-HBP Document 713-9 Filed 11/11/16 Page 10 of 64 Case 1:04-cv-09866-LTS-HBP Document 713-9 Filed 11/11/16 Page 11 of 64 Case 1:04-cv-09866-LTS-HBP Document 713-9 Filed 11/11/16 Page 12 of 64 Case 1:04-cv-09866-LTS-HBP Document 713-9 Filed 11/11/16 Page 13 of 64
GRANT & EISENHOFER P.A. FIRM BIOGRAPHY
Grant & Eisenhofer P.A. (“G&E”) concentrates on federal securities and corporate governance litigation and other complex class litigation. With over 65 attorneys, G&E primarily represents domestic and foreign institutional investors, both public and private, who have been damaged by corporate fraud, greed and mismanagement. The Firm was named to The National Law Journal’s “Plaintiffs’ Hot List” for the last ten years and is listed as one of America’s Leading Business Law Firms by Chambers & Partners, who reported that G&E “commanded respect for its representation of institutional investors in shareholder and derivative actions, and in federal securities fraud litigation.” Based in Delaware, New York, and Chicago, G&E routinely represents clients in federal and state courts throughout the country. G&E’s clients include the California Public Employees’ Retirement System, New York State Common Retirement Fund, Ohio Public Employees’ Retirement System, State of Wisconsin Investment Board, Teachers’ Retirement System of Louisiana, PIMCO, Trust Company of the West, The Capital Guardian Group and many other public and private domestic and foreign institutions.
G&E was founded in 1997 by Jay W. Eisenhofer and Stuart M. Grant, former litigators in the Wilmington office of the nationally prominent firm of Skadden, Arps, Slate, Meagher & Flom LLP. Over the years, the Firm’s directors have gained national reputations in securities and corporate litigation. In fact, G&E was the first law firm in the country to argue the provisions of the Private Securities Litigation Reform Act (“PSLRA”) allowing an institutional investor to be appointed as lead plaintiff in a securities class action. The Firm has gone on to build a national and international reputation as a leader in securities litigation. In both class action and “opt-out” cases, G&E has attracted widespread recognition for protecting investors’ rights and recovering their damages. The Firm has recovered over $28 billion for its clients in the last ten years, and RiskMetrics Group has twice recognized G&E for winning the highest average investor recovery in securities class actions.
G&E has served as lead counsel in many of the largest securities class action recoveries in U.S. history, including:
$3.2 billion settlement from Tyco International Ltd. and related defendants $922 million from UnitedHealth Group $486 million settlement from Pfizer (preliminarily approved) $450 million Pan-European settlement from Royal Dutch Shell $448 million settlement in Global Crossing Ltd. securities litigation $422 million total class recovery for investors in the stock and bonds of Refco $400 million recovery from Marsh & McLennan $325 million from Delphi Corp. $303 million settlement from General Motors $300 million settlement from DaimlerChrysler Corporation $300 million recovery from Oxford Health Plans $276 million judgment & settlement for Safety-Kleen bond investors Case 1:04-cv-09866-LTS-HBP Document 713-9 Filed 11/11/16 Page 14 of 64
G&E has also achieved landmark results in corporate governance litigation, including:
In re UnitedHealth Group Inc. Shareholder Derivative Litigation: G&E represented the Ohio Public Employees Retirement System, State Teachers Retirement System of Ohio, and Connecticut Retirement Plans and Trust Funds as lead plaintiffs in a derivative and class action suit in which G&E successfully challenged $1.2 billion in back-dated options granted to William McGuire, then-CEO of health care provider UnitedHealth Group (“UHG”). This was among the first – and most egregious – examples of options backdating. As previously stated, G&E’s case against UHG produced a settlement of $922 million, the largest settlement in the history of derivative litigation in any jurisdiction.
In re Digex, Inc. Shareholders Litigation – G&E initiated litigation alleging that the directors and majority stockholder of Digex, Inc. breached fiduciary duties to the company and its public shareholders by permitting the majority shareholder to usurp a corporate opportunity that belonged to Digex. G&E’s efforts in this litigation resulted in an unprecedented settlement of $420 million, the largest settlement in the history of the Delaware Chancery Court.
Caremark / CVS Merger - G&E represented two institutional shareholders in this derivative litigation challenging the conduct of the board of directors of Caremark Rx Inc. in connection with the negotiation and execution of a merger agreement with CVS, Inc., as well as the board’s decision to reject a competing proposal from a different suitor. Through the litigation, Caremark’s board was forced to renegotiate the terms of the merger agreement with CVS. The settlement ensured statutory rights of Caremark shareholders, providing an additional $3.19 billion in cash consideration.
Teachers’ Retirement System of Louisiana v. Greenberg, et al. and American International Group, Inc.: In what was, at the time, the largest settlement of shareholder derivative litigation in the history of the Delaware Chancery Court, G&E reached a $115 million settlement in a lawsuit against former executives of AIG for breach of fiduciary duty. The case challenged hundreds of millions of dollars in commissions paid by AIG to C.V. Starr & Co., a privately held affiliate controlled by former AIG Chairman Maurice “Hank” Greenberg and other AIG directors. The suit alleged that AIG could have done the work for which it paid Starr, and that the commissions were simply a mechanism for Greenberg and other Starr directors to line their pockets.
AFSCME v. AIG – This historic federal appeals court ruling in favor of G&E’s client established the right, under the then-existing proxy rules, for shareholders to place the names of director candidates nominated by shareholders on corporate proxy materials – reversing over 20 years of adverse rulings from the SEC’s Division of Corporate Finance and
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achieving what had long been considered the “holy grail” for investor activists. Although the SEC took nearly immediate action to reverse the decision, the ruling renewed and intensified the dialogue regarding proxy access before the SEC, ultimately resulting in a new rule currently being considered by the SEC that, if implemented, will make proxy access mandatory for every publicly traded corporation.
Unisuper Ltd. v. News Corp., et al. – G&E forced News Corp. to rescind the extension of its poison pill on the grounds that it was obtained without proper shareholder approval.
Teachers’ Retirement System of Louisiana v. HealthSouth – G&E negotiated a settlement which ousted holdover board members loyal to indicted CEO Richard Scrushy and created mechanisms whereby shareholders would nominate their replacements.
Carmody v. Toll Brothers – This action initiated by G&E resulted in the seminal ruling that “dead-hand” poison pills are illegal.
In re Refco Inc. Securities Litigation – G&E represented Pacific Investment Management Company LLC (“PIMCO”) as co-lead plaintiff in a securities class action alleging that certain officers and directors of Refco Inc., as well as other defendants including the company’s auditor, its private equity sponsor, and the underwriters of Refco’s securities, violated the federal securities laws in connection with investors’ purchases of Refco stock and bonds. Recoveries for the class exceeded $400 million, including $140 million from the company’s private equity sponsor, over $50 million from the underwriters, and $25 million from the auditor.
In addition, the Firm’s lawyers are often called upon to testify on behalf of institutional investors before the SEC and various judicial commissions, and they frequently write and speak on securities and corporate governance issues. G&E managing director Jay Eisenhofer and director Michael Barry are co-authors of the Shareholder Activism Handbook, and in 2008, Jay Eisenhofer was named one of the 100 most influential people in the field of corporate governance.
G&E is proud of its success in fighting for institutional investors in courts and other forums across the country and throughout the world.
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G&E’s Attorneys
Jay W. Eisenhofer
Jay Eisenhofer, co-founder and managing director of Grant & Eisenhofer P.A., has been counsel in more multi-hundred million dollar cases than any other securities litigator, including the $3.2 billion settlement in the Tyco case, the $922 million UnitedHealth Group settlement, the $450 million settlement in the Global Crossing case, the historic $450 million pan-European settlement in the Shell case, as well as a $400 million settlement with Marsh & McLennan, a $303 million settlement with General Motors and a $300 million settlement with DaimlerChrysler. Mr. Eisenhofer was also the lead attorney in the seminal cases of American Federation of State, County & Municipal Employees, Employees Pension Plan v. American International Group, Inc., where the U.S. Court of Appeals required shareholder proxy access reversing years of SEC no-action letters, and Carmody v. Toll Brothers, wherein the Delaware Court of Chancery first ruled that so-called “dead-hand” poison pills violated Delaware law.
Mr. Eisenhofer has served as litigation counsel to many public and private institutional investors, including, among others, Amalgamated Bank, APG Asset Management, California Public Employees Retirement System, California State Teachers Retirement System, Colorado Public Employees Retirement Association, the Florida State Board of Administration, John Hancock, Louisiana State Employees Retirement System, New York City Retirement Funds, Inc., and Service Employees International Union.
Mr. Eisenhofer is consistently ranked as a leading securities and corporate governance litigator and he has been named by Lawdragon to its annual list of the top 500 lawyers in America each year since 2006. He is also recognized by Benchmark Litigation as one of the Top 100 Trial Lawyers. The National Law Journal has selected Grant & Eisenhofer as one of the top plaintiffs’ law firms in the country for the last eleven years in the annual “Plaintiffs’ Hot List,” earning the firm a place in The National Law Journal’s “Plaintiffs’ Hot List Hall Of Fame” in 2008, as well as to its 2014 inaugural list of “Elite Trial Lawyers: The 50 Leading Plaintiffs Firms in America.” The firm has twice been selected as a “Most Feared Plaintiffs Firm” by Law360 and “one of the most high-profile shareholder and whistleblower advocates in the country, securing record-high cash settlements.” U.S. News & World Report has also repeatedly named Grant & Eisenhofer to its list of “Best Law Firms” in the fields of Securities Litigation, Commercial Litigation, and Corporate Law. Mr. Eisenhofer is rated AV by Martindale-Hubbell.
Mr. Eisenhofer has written and lectured widely on securities fraud and insurance coverage litigation, business and employment torts, directors' and officers' liability coverage, and the Delaware law of shareholder rights and directorial responsibilities. Among the publications he has authored: “The Shareholders Activism Handbook” Aspen Publishers; “Proxy Access Takes Center Stage – The Second Circuit’s Decision in AFSCME Employees Pension Plan v. American International Group, Inc.” Bloomberg Law Reports, Vol. 1, No. 5; “Investor Litigation in the U.S. - The System is Working” Securities Reform Act Litigation Reporter, Vol. 22, #5; “In re Walt Disney Co. Deriv. Litig. and the Duty of Good Faith Under Delaware Corporate Law” Bank & Corporate Governance Law Reporter, Vol. 37, #1; “Institutional Investors As Trend-Setters In Post-PSLRA Securities Litigation” Practising Law Institute, July, 2006; “In re Cox Communications, Inc.: A Suggested Step in the Wrong Direction,” Bank and Corporate Governance Law Reporter, Vol. 35, #1; “Does Corporate Governance Matter to Investment
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Returns?” Corporate Accountability Report, Vol. 3, No. 37; “Loss Causation in Light of Dura: Who is Getting it Wrong?” Securities Reform Act Litigation Reporter, Vol. 20, #1; “Giving Substance to the Right to Vote: An Initiative to Amend Delaware Law to Require a Majority Vote in Director Elections,” Corporate Governance Advisor, Vol. 13, #1; “An Invaluable Tool in Corporate Reform: Pension Fund Leadership Improves Securities Litigation Process,” Pensions & Investments, Nov. 29, 2004; and “Securities Fraud, Stock Price Valuation, and Loss Causation: Toward a Corporate Finance-Based Theory of Loss Causation,” Business Lawyer, Aug. 2004. Mr. Eisenhofer has also authored a number of articles on illiquid and rouge hedge funds, including “Time for Hedge Funds to Become Accountable to Fiduciary Investors,” Pensions & Investments, April 30, 2012; and “Hedge Funds of the Living Dead,” New York Times Dealbook, June 4, 2012.
Mr. Eisenhofer serves as a member of the NYU Law School Advisory Board for the Center on Civil Justice, and as co-chair for the Securities Litigation Committee of the American Association for Justice. Mr. Eisenhofer currently serves as a member of the New York City Mayor’s Advisory Board for the Mayor’s Fund to Advance New York City, and also serves as an ex-officio Trustee on the Board of Trustees of the American Museum of Natural History. He is a graduate of the University of Pittsburgh, and a 1986 magna cum laude graduate of Villanova University School of Law, Order of the Coif. He was a law clerk to the Honorable Vincent A. Cirillo, President Judge of the Pennsylvania Superior Court and thereafter joined the Wilmington office of Skadden Arps Slate Meagher & Flom. Mr. Eisenhofer was a partner in the Wilmington office of Blank Rome Comisky & McCauley until forming Grant & Eisenhofer P.A. in 1997.
Stuart M. Grant
Stuart M. Grant, co-founder and managing director of Grant & Eisenhofer P.A., is internationally recognized for his extensive knowledge in the areas of Delaware corporate law, fiduciary responsibility, securities and investments, private equity and fixed income, appraisal remedies, valuation, proxy contests and other matters related to protecting and promoting the rights of institutional investors. He serves as litigation counsel to many of the largest public and private institutional investors in the world.
Mr. Grant was the first attorney to argue the provisions of the PSLRA allowing an institutional investor to be appointed as sole lead plaintiff and has served as lead counsel in eight of the ten largest settlements in the history of Delaware Chancery Court.
Among his many accolades, Mr. Grant is consistently ranked in Band 1 of Chambers USA as a leading litigator for his work in Delaware Chancery and securities, regulatory and corporate governance litigation. For the past several years, he has been named to Best Lawyers, ranked as a leading lawyer by Legal 500, and selected for inclusion in Super Lawyers. Mr. Grant, who has also been recognized as one of the Top 500 Leading Lawyers in America by Lawdragon, is rated AV by Martindale-Hubbell, and is recognized by Benchmark Litigation as one of the Top 100 Trial Lawyers. Additionally, The National Law Journal selected Grant & Eisenhofer to its inaugural list of “Elite Trial Lawyers: The 50 Leading Plaintiffs Firms in America” in 2014, and again in 2015.
Mr. Grant has first-chaired more nine-figure securities class action and Delaware Chancery Court case resolutions than perhaps any other litigator, including:
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In re Dole Food Co. Stockholder Litigation and In re Dole Food Co. Appraisal Litigation, stockholder class and appraisal litigation victory following a nine-day trial;
In re Freeport-McMoRan Copper & Gold, Inc. Derivative Litigation, where in a historic first for derivative litigation, the entire cash component of the settlement was distributed to Freeport shareholders in the form of a special dividend;
City of Roseville Employees' Retirement System v. Lawrence Ellison, et al. ("Oracle Corp."), a stockholder derivative suit alleging breach of fiduciary duty;
In re El Paso Corporation Shareholder Litigation, a settlement resolving allegations that El Paso’s Board of Directors negotiated a merger that was “tainted with disloyalty;”
In re Refco Inc. Securities Litigation, class action settlement over violations of federal securities laws;
In re Parmalat Securities Litigation, securities class action in what the SEC described as “one of the largest and most brazen financial frauds in history;”
Teachers’ Retirement System of Louisiana v. Greenberg, et al. and American International Group, Inc., one of the largest derivative shareholder litigation settlements in the history of Delaware Chancery Court;
In re Safety-Kleen Securities Corporation Bondholders Litigation, a seven week securities class action jury trial resulting in judgments holding the company's CEO and CFO jointly and severally liable;
In re Digex Stockholders Litigation, the largest settlement in Delaware Chancery Court history, which led to the establishment of lead plaintiff provisions in Delaware.
Mr. Grant has also resolved several class and/or derivative actions, which rank among the largest in the Delaware Chancery Court:
In re Jefferies Group, Inc. Shareholders Litigation, a fiduciary duty action representing one of the top ten settlements of a post-closing action challenging the fairness of a merger in the history of the Delaware Chancery Court;
In re Del Monte Foods Company Shareholders Litigation, shareholder litigation resulting in an unprecedented and immediate change in lending policy practices among major investment banks regarding the way the banks approach financing transactions in which they represent the seller;
In re American International Group, Inc. Consolidated Derivative Litigation, a settlement resolving claims that AIG’s CEO Hank Greenberg and other officers of the insurer were involved in a well-documented bid-rigging scheme used to inflate the company’s income; and,
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In re ACS Shareholder Litigation, a settlement resolving allegations that ACS’s Board of Directors breached their fiduciary duties in connection with the negotiated buyout of ACS by Xerox Corp.
Mr. Grant serves as Vice-Chairperson of the Delaware Judicial Nominating Commission, as a member of the Board of Trustees for the University of Delaware, and on the Advisory Board for the Weinberg Center for Corporate Governance at the University of Delaware. Mr. Grant was an Adjunct Professor of Law at the Widener University School of Law from 1994-2009, where he taught securities litigation, and is a past trustee of the Delaware Art Museum.
Mr. Grant has authored a number of articles which have been cited with approval by the U.S. Supreme Court, U.S. Court of Appeals for the 2nd and 5th Circuits and numerous U.S. District Courts. His articles include, among others, “The Devil is in the Details: Application of the PSLRA's Proportionate Liability Provisions is so Fraught With Uncertainty That They May be Void for Vagueness”; “Class Certification and Section 18 of the Exchange Act”; “Unisuper v. News Corporation: Affirmation that Shareholders, Not Directors, Are the Ultimate Holders of Corporate Power”; "Executive Compensation: Bridging the Gap Between What Companies Are Required to Disclose and What Stockholders Really Need to Know”; and a number of annual PLI updates under the heading of “Appointment of Lead Plaintiff Under the Private Securities Litigation Reform Act.”
Mr. Grant was graduated in 1982 cum laude from Brandeis University with a B.A. in economics and received his J.D. from New York University School of Law in 1986. He served as Law Clerk to the Honorable Naomi Reice Buchwald in the U.S. District Court for the Southern District of New York. Mr. Grant was an associate at Skadden, Arps, Slate, Meagher & Flom (1987-94), and a partner in the Wilmington office of Blank Rome Comisky & McCauley from 1994 until forming Grant & Eisenhofer P.A. in 1997.
Jeff A. Almeida
Jeff Almeida is a director at Grant & Eisenhofer practicing in the areas of corporate, securities and consumer litigation.
Mr. Almeida has a wide breadth of complex commercial litigation experience, with over 18 years of litigation experience. He has primarily represented domestic and foreign institutional investors in prominent securities fraud class actions and opt-out cases, including In re JPMorgan Chase & Co. Securities Litigation (London Whale) (S.D.N.Y.); In re Medtronic Securities Litigation (D. Minn.); In re Refco Inc. Securities Litigation (S.D.N.Y.); In re Merck & Co., Inc. Vytorin/Zetia Securities Litigation (D.N.J.); In re Bank of America/Merrill Lynch Securities Litigation (S.D.N.Y.); In re Pfizer Inc. Securities Litigation (S.D.N.Y.); In re Global Cash Access Holdings Securities Litigation (D. Nev.); and In re Career Education Corp. Securities Litigation (S.D. Ill.).
Mr. Almeida has also been actively engaged in derivative, class, and appraisal litigation in the Delaware Court of Chancery, including the matters In re Tyson Foods, Inc. Consolidated Shareholder Litigation, which resulted in historic rulings clarifying the fiduciary duties of corporate directors in connection with the administration of stock option plans; Louisiana Municipal Police Employees’ Retirement System v. Crawford (Caremark), a well-publicized
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derivative action challenging the terms of the Caremark and CVS merger that resulted in a $3.2 billion settlement; and In re Genentech Inc. Shareholder Litigation, where he successfully represented Genentech minority stockholders against Roche’s heavy-handed attempt to squeeze out the minority to seize control of Genentech.
In consumer litigation, Mr. Almeida currently serves as counsel for plaintiffs in two separate consumer class actions against Ford Motor Company, one of which involves Ford’s defective infotainment system and the second of which involves unintended acceleration. In other commercial fraud litigation, he has also successfully represented hedge fund clients in claims involving short-squeeze market manipulation and the marketing and sale of abusive tax shelters.
Prior to joining Grant & Eisenhofer in August 2004, Mr. Almeida was affiliated for seven years as an attorney with a major Philadelphia defense firm, where he practiced in the areas of complex commercial litigation, with a focus on consumer class actions, commercial contract disputes, and insurance coverage and bad faith defense.
Mr. Almeida is a 1994 graduate of Trinity College in Hartford, Connecticut, where he captained the varsity basketball team and achieved election to Phi Beta Kappa, and a 1997 graduate of William and Mary Law School in Williamsburg, Virginia. Mr. Almeida is admitted to practice in Delaware, Pennsylvania, and New Jersey, along with several federal district courts.
Michael J. Barry
Michael Barry is a director at Grant & Eisenhofer focusing on corporate governance and securities litigation. For over thirteen years, he has represented institutional investors in litigation relating to securities fraud, corporate fiduciary responsibilities, shareholder proposals under SEC Rule 14a-8, and corporate governance generally. As a foremost practitioner in these areas, Mr. Barry has been significantly involved in groundbreaking class action recoveries, corporate governance reforms and shareholders rights litigation.
He has been instrumental in landmark corporate governance cases, including AFSCME v. AIG, which recognized shareholders’ right to introduce proxy access proposals; Bebchuk v. CA, Inc., which allowed shareholders to introduce proposals restricting a board’s ability to enact poison pills; and CA, Inc. v. AFSCME, a historic decision of the Delaware Supreme Court regarding the authority of shareholders to adopt corporate bylaws. His casework includes the Genentech Shareholder Litigation, resulting in an increase of $3 billion in value for shareholders arising from a corporate merger; a $922 million settlement in the UnitedHealth Group derivative litigation, resolving one of the most egregious examples of options backdating; an $89.4 million recovery for stockholders of Del Monte Foods Co. in a case that exposed significant conflicts of interest in staple financing in corporate mergers; and a $153.75 million recovery in a derivative action on behalf of Freeport-McMoRan Corporation shareholders, which included, for the first time in derivative litigation, a provision that the entire cash portion of the recovery—$147.5 million—be distributed to shareholders in the form of a special dividend.
Mr. Barry has spoken widely on corporate governance and related matters. In addition to having served as a guest lecturer at Harvard Law School, he speaks at numerous conferences each year. Mr. Barry has authored several published writings, including the Shareholder Activism Handbook, a comprehensive guide for shareholders regarding their legal rights as owners of
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corporations, which he co-authored. In 2015, Mr. Barry was selected to the Markets Advisory Council for the Council of Institutional Investors.
Prior to joining Grant & Eisenhofer, Mr. Barry practiced at a large Philadelphia-based firm, where he defended the Supreme Court of Pennsylvania, the Pennsylvania Senate and Pennsylvania state court judges in a variety of trial and appellate matters. He is a 1990 graduate of Carnegie Mellon University and graduated summa cum laude in 1993 from the University of Pittsburgh School of Law, where he was an Executive Editor of the University of Pittsburgh Law Review and a member of the Order of the Coif.
Daniel L. Berger
Daniel Berger is a director at Grant & Eisenhofer. Prior to joining the firm, Mr. Berger was a partner at two major plaintiffs’ class action firms in New York, including Bernstein Litowitz Berger & Grossmann (BLBG), where he had litigated complex securities and discrimination class actions for twenty two years.
Mr. Berger’s experience includes trying three 10b-5 securities class actions to jury verdicts, which are among very few such cases ever tried. He also served as principal lead counsel in many of the largest securities litigation cases in history, achieving successful recoveries for classes of investors in cases including In re JPMorgan Chase & Co. Securities Litigation ($150 million); In re Merck Vytorin/Zetia Securities Litigation ($215 million); In re Cendant Corp. Securities Litigation ($3.3 billion); In re Lucent Technologies, Inc. Securities Litigation ($675 million); In re Bristol-Myers Squibb Securities Litigation ($300 million); In re Daimler Chrysler A.G. Securities Litigation ($300 million); In re Conseco, Inc. Securities Litigation ($120 million); In re Symbol Technologies Securities Litigation ($139 million); and In re OM Group Securities Litigation ($92 million).
Mr. Berger has successfully argued several appeals that made new law favorable to investors, including In re Suprema Specialties, Inc. Securities Litigation, 438 F.3d 256 (3d Cir. 2005); McCall v. Scott, 250 F.3d 997 (6th Cir. 2001) and Fine v. American Solar King Corp., 919 F.2d 290 (5th Cir. 1990.) In addition, Mr. Berger was lead class counsel in many important discrimination class actions, in particular Roberts v. Texaco, Inc., where he represented African- American employees of Texaco and achieved the then largest settlement ($175 million) of a race discrimination class action.
Mr. Berger is a member of the faculty of Columbia University School of Law, where he is a Lecturer in Law. He also serves on the Board of visitors of the Law School. Previously, Mr. Berger was a member of the Board of Managers of Haverford College from 2000-2003. He serves as the Co-Chair of the Board of GO Project, a not-for profit organization that provides academic support for New York City public school students, and is a Member of the Board of Grace Church School in New York. He also serves on the Board of in Motion, Inc., a non-profit organization providing legal services to victims of domestic violence, and the Board of Madison Square Park Conservancy, a public-private partnership that operates and preserves one of New York City’s great parks.
Mr. Berger is a 1976 graduate from Haverford College, and graduated in 1979 from Columbia University School of Law.
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Cynthia A. Calder
Cynthia Calder is a director at Grant & Eisenhofer. She concentrates her practice in the areas of corporate governance and securities litigation. She has represented shareholders in such seminal cases in the Delaware Court of Chancery as UniSuper Ltd. v. News Corp., vindicating the shareholders’ right to vote; Carmody v. Toll Brothers, finding the dead-hand poison pill defensive measure was illegal under Delaware law, Jackson National Life Insurance Co. v. Kennedy, breaking new ground in the interpretation of fiduciary duties owed to preferred shareholders; Haft v. Dart Group Corp., resolving a contest for control of a significant public corporation; and Paramount Communications Inc. v. QVC Network, obtaining an injunction preventing the closing of a merger to force the board of directors to appropriately consider a competing bid for the corporation. More recently, Ms. Calder prosecuted a derivative suit on behalf of American International Group, Inc. shareholders against the company’s former CEO, Maurice Greenberg, and other former AIG executives. The action was concluded for a settlement of $115 million – one of the largest such settlements in the history of the Delaware Court of Chancery. Ms. Calder was also the Court-appointed representative on the shareholder counsel’s committee in the UnitedHealth Group derivative litigation, which was settled for more than $900 million – the largest known derivative settlement in any court system. Ms. Calder also prosecuted a shareholder class action, In re ACS Shareholder Litigation, which resulted in one of the largest class recoveries in the history of the Court of Chancery.
Ms. Calder has co-authored numerous articles on corporate governance and securities litigation, including “Options Backdating from the Shareholders’ Perspective” Wall Street Lawyer, Vol. 11, No. 3; “Securities Litigation Against Third Parties: Pre-Central Bank Aiders and Abettors Become Targeted Primary Defendants” Securities Reform Act Litigation Reporter, Vol. 16, No. 2; and “Pleading Scienter After Enron: Has the World Really Changed?” Securities Regulation & Law, Vol. 35, No. 45.
Ms. Calder graduated cum laude from the University of Delaware in 1987 and graduated from the Villanova University School of Law in 1991. Upon graduating from law school, Ms. Calder served as a Judicial Law Clerk in the Delaware Court of Chancery to the Honorable Maurice A. Hartnett, III. Prior to joining Grant & Eisenhofer, Ms. Calder was an associate at Blank, Rome, Comisky & McCauley.
Charles T. Caliendo
Charles Caliendo is a director at Grant & Eisenhofer. He represents institutional investors in class action securities, opt-out and shareholder derivative litigation. Prior to joining Grant & Eisenhofer, he served as an Assistant Attorney General in the Investment Protection Bureau of the New York State Attorney General’s Office where he prosecuted cases and led investigations related to mutual fund market timing and late trading. Mr. Caliendo practiced at a Manhattan- based law firm in the areas of class action securities, mergers and acquisitions, corporate governance and other commercial litigation.
Mr. Caliendo has written and spoken on issues relating to regulatory enforcement, corporate internal investigations and securities and shareholder litigation. In November 2004 and June 2006, Mr. Caliendo was a speaker at financial services industry seminars sponsored by The Association of the Bar of the City of New York for which he authored articles entitled “The
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Investment Protection Bureau: An Overview of Financial Markets Regulation and Enforcement in New York” and “Thompson Memo Under A Microscope.” In June 2005, Mr. Caliendo spoke before a delegation of Chinese mutual fund CEOs participating in the Penn-China Mutual Fund CEO Leadership Program, University of Pennsylvania Graduate School of Education. Mr. Caliendo co-authored “Who Says The Business Judgment Rule Does Not Apply To Directors Of New York Banks?” 118 Banking Law Journal 493 (June 2001) and “Board of Directors’ ‘Revlon Duties’ Come Into Focus,” New York Law Journal, vol. 222, no. 86, col. 1 (Nov. 1, 1999).
Mr. Caliendo received his B.S. from Cornell University and J.D. from St. John’s University School of Law where he was an editor of the St. John’s Law Review and a Saint Thomas More Scholar.
Nathan A. Cook
Nathan Cook is a director at Grant & Eisenhofer and focuses his practice on trial and appellate litigation relating to Delaware corporation and alternative entity law. Mr. Cook has litigated a variety of Delaware law matters, including numerous matters relating to the fiduciary duties of directors, officers and controlling stockholders, appraisal rights, and stockholder inspections of corporate books and records, as well as disputes relating to corporate contests for control, the post-merger treatment of options and merger earn-outs.
Mr. Cook has litigated multiple complex matters before the Delaware Court of Chancery and the Delaware Supreme Court including: In re Dole Food Co. Stockholder Litigation and In re Dole Food Co. Appraisal Litigation, stockholder class and appraisal litigation resulting in a damages award of $148 million, plus interest, following a nine-day trial; In re News Corporation Shareholder Derivative Litigation, a stockholder lawsuit resulting in a $139 million settlement; In re Clear Channel Outdoor Holdings, Inc. Derivative Litigation, resulting in a settlement which returned $200 million to Clear Channel Outdoor Holdings’ stockholders; In re Delphi Financial Group Shareholder Litigation, a stockholder class action resulting in a $49 million settlement; Indiana Electrical Workers Pension Trust Fund IBEW v. Wal-Mart Stores, Inc., a stockholder books and records lawsuit that obtained one of the largest productions of internal documents pursuant to 8 Del. C. §220 in Delaware Chancery Court history and led to a landmark Delaware Supreme Court ruling recognizing the “Garner doctrine” as Delaware law; and Oklahoma Firefighters Pension & Retirement System v. Citigroup Inc., a successful lawsuit to inspect internal books and records relating to $400 million in alleged fraudulent lending, as well as alleged regulatory non-compliance, involving a Mexican subsidiary bank.
Mr. Cook’s current work includes: In re Appraisal of PetSmart, Inc., stockholder appraisal litigation relating to the 2015 buyout of PetSmart, Inc., which represents the largest appraisal case in Delaware Chancery Court history; and Refco Group, Ltd. v. Cantor Fitzgerald, LP, et al., alternative-entity derivative litigation before the U.S. District Court for the Southern District of New York concerning alleged breaches of fiduciary duty.
Prior to joining Grant & Eisenhofer, Mr. Cook served as lead trial counsel for a stockholder seeking to replace incumbent directors in a hostile takeover, successfully representing the stockholder in stock-list litigation, litigation to compel a stockholders meeting, defeat of the incumbent directors’ request for temporary restraining order concerning compliance with advance notice bylaws, and a highly-contested stockholders meeting. Mr. Cook’s prior
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experience also includes Lillis, et al. v. AT&T and AT&T Wireless, a successful action to recover the value of out-of-the-money stock options, which were cancelled in the AT&T-Cingular Wireless merger, on behalf of former directors and executive officers of MediaOne.
Mr. Cook also has significant experience providing corporate advisory services on a variety of matters relating to Delaware law—e.g., advising directors (including special committees) and officers in connection with mergers and other strategic transactions; charters, bylaws, and stockholder rights plans; and dividends and distributions.
Mr. Cook spoke on the “M&A and Advising the Board” panel at the 2015 Delaware Law Issues Update conference hosted by the Weinberg Center and the Society of Corporate Secretaries & Governance Professionals. Mr. Cook also spoke on a panel discussing litigation to enforce stockholders’ rights to inspect corporate books and records at the Practising Law Institute’s seminar “Delaware Law Developments 2015: What All Business Lawyers Need to Know.” Mr. Cook also authored Delaware Supreme Court Okays One-Way Fee-Shifting Bylaws, AAJ (Summer 2014), and co-authored The Delaware Supreme Court Weighs in on Fiduciary Duties to Creditors, Insights (June 2007), and Frequently Asked Questions, Answers and More Questions about the Business Strategy Immunity, PLI (2011).
In 2015, Mr. Cook was selected to The National Trial Lawyers: Top 40 Under 40. Mr. Cook is a member of the Richard S. Rodney Inn of Court, the American Bar Association (Business Law Section), the Delaware State Bar Association, and the New York State Bar Association.
Mr. Cook received his B.A., with distinction, from the University of Virginia in 2002, where he majored in economics and history and was a Jefferson Scholar and an Echols Scholar. He received his J.D. from the University of Virginia in 2005, where he served on the Editorial Board for the Virginia Environmental Law Journal. Following graduation from law school, Mr. Cook served as a law clerk to the Honorable John W. Noble of the Delaware Court of Chancery.
Robert G. Eisler
Robert Eisler is a director at Grant & Eisenhofer and leads the firm’s antitrust practice. Mr. Eisler has been involved in many significant antitrust class action cases in recent years. He is experienced in numerous industries, including pharmaceuticals, paper products, construction materials, industrial chemicals, processed foods, municipal securities, and consumer goods.
Mr. Eisler is currently serving as co-lead counsel in several cases, including Gordon et al. v. Amadeus et al., In re London Silver Fixing, Ltd. Antitrust Litigation and In re Keurig Green Mountain Single-Serve Coffee Antitrust Litigation. He has served as lead or co-lead counsel in many other significant antitrust cases, including In re Buspirone Antitrust Litigation (which led to a $90 million settlement in which presiding Judge Koeltl stated that the plaintiffs’ attorneys had done “a stupendous job”), In re Ciprofloxacin Hydrochloride Antitrust Litigation, In re Flat Glass Antitrust Litigation, and In re Municipal Derivatives Antitrust Litigation.
Mr. Eisler has played major roles in a number of other significant antitrust cases, including In re Polyurethane Foam Antitrust Litigation, In re Blue Cross/Blue Shield Antitrust Litigation, and In re Linerboard Antitrust Litigation. He also has significant experience litigating antitrust matters
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in the U.K., including cases concerning cartels in a number of industries, such as air cargo services, air passenger services, automotive glass, and pharmaceuticals, among others.
In addition to his antitrust work, Mr. Eisler has extensive experience in securities, derivative, complex commercial and class action litigation at the trial and appellate levels. He has been involved in numerous securities and derivative litigation matters on behalf of public pension funds, municipalities, mutual fund companies and individual investors in state and federal courts.
Mr. Eisler graduated from LaSalle University in 1986, and in 1989, from Villanova University School of Law.
Elizabeth (Beth) Graham
Elizabeth (“Beth”) Graham is a director at Grant & Eisenhofer, leading the firm’s complex pharmaceutical and medical device litigation practice. Since 1989, she has dedicated her practice to complex mass tort and class action litigation.
Ms. Graham’s expertise spans the practice areas of mass tort, consumer fraud, product liability, environmental, and business torts. She has served as Lead Class Counsel in multi-million dollar cases, has acted as a member of various Plaintiffs’ Executive Committees in complex actions, and has prior experience as national defense coordination counsel in product liability litigation.
Currently, Ms. Graham serves as Co-Lead on the Plaintiffs’ Executive Committee in In re Zofran (Ondansetron) Products Liability Litigation (MDL No. 2657) and serves on the Plaintiffs’ Steering Committee in In re Power Morcellator Products Liability Litigation (MDL No. 2652). Ms. Graham is Co-Chair of the Law & Briefing Committee for In re Xarelto Products Liability Litigation (MDL No. 2592) and is a member of the Xarelto Bellwether Selection Committee. She is actively representing thousands of injured victims in cases against major pharmaceutical companies and medical device manufacturers, including women adversely affected by permanent contraceptive device Essure. Additionally, Ms. Graham is Co-Chair of the American Association for Justice Zofran Litigation Group, and is a member of the Publications Committee for the AAJ.
Notably, Ms. Graham has served as lead counsel in high profile class actions such as Borman Automotive v. American Honda Motor Corp. (MDL No. 1069), which resulted in a $435 million settlement; and litigation against Chrysler based on its Minivan Doorlatch failures and ABS brake defects. Ms. Graham served on the Plaintiffs’ Steering Committee and represented dozens of victims in the In re Sulzer Hip Prosthesis and Knee Prosthesis Liability Litigation (MDL No. 1410). She has also represented over one hundred families injured by environmental contaminants, including radon, arsenic and rocket fuel, resulting in confidential settlements in excess of $25 million. Ms. Graham also has vast experience as a consultant to other mass tort firms that seek her advice in structuring their cases.
Ms. Graham is an accomplished speaker, having co-chaired the December 2014 HarrisMartin MDL Conference covering updates to the Xarelto and power morcellator litigations, presenting at several Mass Torts Made Perfect conferences on the progress of the Zofran (Ondansetron) litigation, and speaking at the American Association for Justice “Plaintiffs-Only Hot Topics and Trends in Litigation,” discussing Zofran (Ondansetron). Ms. Graham co-authored “Overcoming the Clear Evidence Defense,” published in the July 2016 issue of Trial magazine.
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Prior to her representation of injured individuals, Ms. Graham worked for large product liability defense firms as national defense counsel in cases such as In re Silicone Breast Implant Litigation. Prior to joining G&E, Ms. Graham was a partner at prominent San Francisco area law firms.
Olav Haazen
Olav Haazen, PhD, is a director at Grant & Eisenhofer. His areas of practice include cross-border securities fraud and antitrust litigation. Mr. Haazen has significant experience representing foreign and domestic plaintiffs in a variety of antitrust and fraud actions. Most recently, he successfully represented a class of Fortis investors for whom he helped negotiate a record-high $1.3 billion settlement of all investment fraud claims in the Netherlands and Belgium. Other representations, past and present, include: x nearly 300 institutional investors from around the world seeking recovery from Volkswagen in German court in connection with its well-publicized manipulation of emissions controls; x a large group of Laiki and Bank of Cyprus bondholders and depositors with ICSID arbitration claims against Cyprus, whose interests were wiped as part of the 2013 Cyprus bank bail-out; x foreign Madoff investors on fraud and negligence claims against feeder fund defendants and their auditors, custodians, and administrators; x a French qui tam plaintiff in litigation arising out of the sale of Executive Life Insurance Company; and x a large regional bakery in its successful monopolization suit against a competitor. Mr. Haazen has also represented two classes of professional fashion models in price-fixing and consumer fraud actions, which resulted in a virtually unprecedented 100% recovery of all claimants’ losses, as well as substantial injunctive relief, which Justice Ramos of the New York Supreme Court lauded as a model for legislative reform.
Prior to joining G&E, Mr. Haazen was counsel at a prominent national law firm, where he successfully represented major corporate clients and individuals in several high-profile RICO, securities, and government investigation matters and commercial disputes, including a well- known playwright against a civil forfeiture claim arising out of Kenneth Starr's “Ponzi” scheme; a utilities company in a significant contract dispute with Enron; and one of the largest franchisors in professional sports in a $1.2 billion monopolization suit. He has also represented several government entities and officials, including a Westchester County municipality in a $600 million lawsuit by Donald Trump’s Seven Springs LLC, as well as the City and Mayor of Amsterdam, and a foreign country’s former Secretary of State.
From 2010-2011, Mr. Haazen served on the American Bar Association’s seven-member Standing Committee for Amicus Curiae briefs and the Third-Party Litigation Funding Study Group. From 1996-2001, he served as a Country Reporter for the Netherlands for the European Restatement of Torts, and recently as a Netherlands Reporter to the 17th International Congress of Comparative Law. Mr. Haazen teaches comparative civil procedure and cross-border litigation at Leiden University in the Netherlands, and previously taught at Harvard, Stanford, and Oxford.
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He has written several books and over 40 articles and case notes. He is admitted as solicitor in England and Wales, and as arbitrator at the Netherlands Arbitration Institute and at the Center for Dispute Resolution (CEDIRES) in Belgium.
Adam J. Levitt
Adam Levitt is a director at Grant & Eisenhofer P.A., where he leads the Firm’s Consumer Protection and Products Liability Litigation Group. He specializes in complex commercial litigation, class action, and mass tort litigation in the areas of consumer protection, automotive, antitrust, securities, technology, and agricultural law. Mr. Levitt served as co-lead counsel in two of the largest biotechnology class actions in recent years, recovering more than $1.2 billion in damages for the plaintiffs: In re Genetically Modified Rice Litigation, in which Mr. Levitt has obtained settlements exceeding $1.1 billion on behalf of long-grain rice producers and others who suffered losses resulting from contamination of the U.S. rice supply with unapproved, genetically modified seeds; and In re StarLink Corn Products Liability Litigation, where he recovered $110 million on behalf of farmers who sustained market losses on their corn crops arising from contamination of the U.S. corn supply with genetically-modified StarLink corn.
With one of the country’s leading consumer litigation practices, Mr. Levitt has successfully led numerous class and complex litigation cases in both state and federal courts, on the trial and appellate court levels. He is currently lead or co-lead counsel in several notable nationwide litigations (MDL and otherwise), including Johnson, et al. v. Ford Motor Co. (Ford Sudden Acceleration), (S.D. W.Va.); In re Navistar Maxxforce Engines, Sales Practices and Products Liability Litigation, (N.D. Ill.); In re MyFord Touch Consumer Litigation, (N.D. Cal.); In re Porsche Cars North America Inc. Plastic Coolant Tubes Products Liability Litigation, (S.D. Ohio); In re Dial Complete Marketing and Sales Litigation, (D. N.H.); In re Wesson Oil Marketing and Sales Practices Litigation, (C.D. Cal.); and Philips v. Ford Motor Co. (Ford EPAS), (N.D. Cal.). He is also a Plaintiffs’ Steering Committee member in In re Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litigation (N.D. Cal.); an Executive Committee member in In re General Motors LLC Ignition Switch Litigation, (S.D.N.Y.); and Plaintiffs’ Executive Committee Chair in In re Stryker Rejuvenate and ABG II Hip Implant Litigation, (D. Minn.).
Mr. Levitt is an appointed member of the Advisory Council of the Duke Law Center for Judicial Studies; an elected member of the American Law Institute; and an elected member of the Economic Club of Chicago. Mr. Levitt is also President of the Class Action Trial Lawyers – a division of The National Trial Lawyers – of which he is an Executive Committee Member; sits on the Board of Advisors for the Chicago chapter of the American Constitution Society for Law and Policy and is an Advisory Board Member of the Institute for Consumer Antitrust Studies.
Mr. Levitt is “AV” rated by Martindale Hubbell. He has been recognized as an Illinois “Super Lawyer” for the past several years, acknowledged by Lawdragon as one of the 500 leading lawyers in the United States, and has been named “Litigator of the Week” by The American Lawyer magazine. Mr. Levitt has also been recognized as one of Avenue magazine’s “Legal Elite” and is part of the Angeion Group’s “Angeion Leading Litigators” video series.
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Mr. Levitt is a Leaders’ Forum member of the American Association for Justice, where he was selected to co-chair the Volkswagen Emissions and the GM Ignition Switch Litigation Groups, is a peer reviewer of articles submitted to AAJ’s Trial magazine, and is a member of AAJ’s Publications and Legal Affairs Committees.
Mr. Levitt has authored numerous articles on class action litigation and consumer protection; some of his more recent publications include: Law Review Articles
x “The Gift That Keeps on Giving: Price Overhang Damages in Commodity Crop Cases,” 51 Val. U. L. Rev. --- (2016) (co-authored with Russell L. Lamb); x “Agricultural “Market Touching”: Modernizing Trespass to Chattels in Crop Contamination Cases,” 38 U. Haw. L. Rev. 409 (2016) (co-authored with Nicole Negowetti); x “CAFA and Federalized Ambiguity: The Case for Discretion in the Unpredictable Class Action,” 120 Yale Law Journal Online 231 (2011);
Other Publications
x “The Volkswagen Emissions Scandal: What’s Next?,” TRIAL, Vol. 52, No. 2 (2016); x “Avoiding the Substantiation Trap in Health Benefit Product Claims,” AAJ Class Action Litigation Newsletter, Winter 2016; x “Volkswagen Scandal is Perfect Fit for a Damages Class Action,” Portfolio Media (Law360), September 2015; x “The Ascertainability Fallacy and Its Consequences,” AAJ Class Action Litigation Newsletter, Spring 2015; x “Fees Obliterate Managed Futures Fund Profits,” Financial Advisor, Jan. 21, 2014; x “Supreme Court to Revisit the Fraud on the Market Presumption of Reliance in Securities Fraud Cases,” AAJ Class Action Litigation Newsletter, Winter 2014; x “Calculating Damages in Securities Class Actions,” TRIAL, Vol. 49, No. 6. (2013); x “The Role and Function of Corporate Representatives at Trial,” The Trial Lawyer, Vol. II, No. IV (2013); x “Multidistrict Litigation Practice: The Function and Shifting Focus of the JPML in Class Action and Other ‘Bet the Company’ Litigation,” chapter from Straight from the Top: Case Studies in the World of Litigation (2012); x “Sticky Situations in Mass Tort Settlements,” TRIAL, Vol. 48, No. 11 (2012); x Taming the Metadata Beast,” New York Law Journal, May 16, 2008; x “The Big Business Wish List: Proposed Illinois Supreme Court Rule 225 and the Demolition of Consumer Rights,” The Class Act, 2005; x “Foreign Investors Serving as Lead Plaintiffs in U.S.-Based Securities Cases,” Association of Trial Lawyers of America, 2005; x “Proposed Rule 225: A Death Warrant for Class Actions in Illinois,” 93 Illinois Bar Journal 202 (2005);
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x “An Illinois Lawyer’s Guide to Service of Process in Mexico,” 82 Illinois Bar Journal 434 (1994).
In addition to his writings, Mr. Levitt is a frequent speaker on topics of consumer protection, automotive litigation, multidistrict litigation, biotechnology, corporate governance, securities litigation, and Internet privacy. Mr. Levitt has also testified before the Illinois Supreme Court Rules Committee on class action practice and related issues. In addition to chairing an annual class action litigation conference in Chicago, some of Mr. Levitt’s more recent speaking engagements include:
x “Criteria for Approving Class Action Settlements,” The Duke Law Center for Judicial Studies – Class Action Settlement Conference, 2016; x “Current Trends in Product Liability Class Action Litigation,” Perrin Class Action Litigation Conference – Chicago 2016 (Conference Co-Chair); x “What’s on the Horizon: Emerging Class Action Trends,” Class Action Litigation in America – A National Symposium, 2016; x “Proving Class-Wide Damages After Comcast in Consumer Products Class Actions,” AAJ 2016 Summer Conference; x “Poison in the Well: GMO Crop Contamination Litigation,” Valparaiso Law Review Symposium, 2015; x “Rage Against the Machine: Breaking Down the Best-Schooled Corporate Executives at Deposition and Trial,” Trial Lawyers Summit, 2015; x “Criteria for Approving Class Action Settlements,” The Duke Law Center for Judicial Studies – Class Action Settlement Conference, 2015; x “Volkswagen Emissions Fraud Litigation Update,” American Association for Justice, Plaintiff-Only Hot Topics and Trends in Litigation Seminar, 2015; x “Consumer Litigation Roundtable: Judicial Perspectives on the Management of Class Action Cases,” Perrin Class Action Litigation Conference – Chicago 2015 (Conference Co-Chair); x “Challenges to Ascertainability, “Fail-Safe” Classes, Standing, and Class Member Injury,” Chicago Bar Association Class Action Conference: Challenges to Class Membership, 2015; x “Scope of Vehicles, Numerosity, and Commonality in the VW Emissions Scandal,” AAJ Volkswagen Emissions Litigation Webinar, 2015; x “Litigation Background and Update: In re Syngenta AG MIR 162 Corn Litigation,” Syngenta GMO Corn Webinar, 2015; x “Commentator – Writing Better Jury Instructions: Antitrust as an Example,” 15th Annual Loyola Antitrust Colloquium, 2015; x “Lessons Learned: Trial, Discovery, and the Business of Practicing Law,” Trial Lawyers Summit, 2014; x “Lessons on Motions to Dismiss From Other Car Defect Cases,” HarrisMartin’s MDL Conference: General Motors Ignition Switch Recall Litigation, 2014; x “The Process that Works – Class Action Mediation LIVE!” 18th Annual American Bar Association National Institute on Class Actions, 2014;
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x “Making Your Parents Proud: Crafting a Meaningful Settlement,” AAJ-NACA Consumer Warranty Class Action Litigation Seminar, 2014; x “Litigating the Class Action: In re General Motors Ignition Switch Litigation,” AAJ Education’s Plaintiff-Only Hot Topics and Trends in Litigation Seminar: GM Auto Recall, 2014; x “Corporate Governance, Arbitration By-Laws, and Foreign Securities Litigation,” IPPFA Midwest Pension Conference, 2014; x “Fighting the Class Action Battle: What Every Lawyer Needs to Know About Filing the Class Certification Motion,” Trial Lawyers Summit, 2013; x “Consumer Class Actions in a Post-Concepcion World,” The Shifting Landscape of Class Litigation, The Chicago Bar Association, 2013; x “Recent Developments in the Supreme Court, Seventh Circuit and Northern District of Illinois,” Litigating Class Actions, 2013 (Conference Co-Chair); x “Current Trends in Consumer Litigation,” Grant & Eisenhofer Consumer Litigation Breakfast Briefing, 2013; x “Supreme Court Review,” ISS Global Shareholder Activism Conference, 2013; x “Using Litigation to Enforce and Protect Food Labeling and Crop Standards,” Animals as Food: The Legal Treatment of Animals in Contemporary Agribusiness and Factory Farming, DePaul University School of Law Symposium, 2013; x “Access to Justice after Iqbal and Twombly,” American Constitution Society Georgia Lawyer Chapter, 2013; x “Disaster Averted, Mass Tort Resolved - Settling Mass Tort Disaster Cases,” American Bar Association, Section of Litigation Annual Conference, 2013; x “Recent Developments in Class Action Settlement Jurisprudence,” American Association for Justice, 2013 Annual Convention; x “The JPML’s 1404/1407 Shift and the End of Reflexive Transfer,” Aggregate Litigation After Class Actions Conference of Law Seminars International, 2013 (Conference Co- Chair); x “Deposing the Corporate Machine: How to Win Against the Best-Schooled Corporate Executive,” Trial Skills Retreat: Empowering Witnesses Conference by 360 Advocacy Institute, 2013; x “Manifestation of Defect That Causes Actual Injury in Economic Defect Related Class Actions,” 2013 National Consumer Class Action Litigation & Management Conference; x “Trial Lawyers and Class Actions: Protecting Consumers and Elevating Your Practice,” Trial Lawyers Summit, 2012; x “Lead Plaintiff ‘Pickoffs’, Offers of Judgment, Moving to Dismiss Class Allegations, and Other Early Attacks on the Class Process,” Litigating Class Actions Conference of Law Seminars International, 2012; x “MERS Litigation: Justice for Illinois Counties,” Illinois Association of County Clerks & Recorders Annual Conference, 2012; x “Class Actions in Medical Device and Pharmaceutical Litigation,” HarrisMartin TVM/Actos Litigation Conference, 2012;
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x “The Evolution of the Class Action Notice,” Class Actions – Plaintiff & Defense Perspectives, 2012; x “Removal, Remand, and Claims Asserted – Strategic Considerations in MERS Litigation,” American Association for Justice, Mortgage Electronic Registration System (MERS) Teleseminar, 2012; x “Thinking About Trial from Day One,” American Association for Justice, 2012 Annual Convention; x “Litigation at Sunrise – The Basics of the MERS System,” American Association for Justice, 2012 Annual Convention; x “Class Action Litigation and Victim Services,” 38th NOVA Conference, 2012; x “Modifying Your Approach for Multi-State Class Actions,” LSI Litigating Class Actions Conference, 2011; x “Multi-State Litigation in the Post-CAFA World,” Litigating Class Actions (Chicago), 2011; x “Imprelis Herbicide Litigation Spotlight,” HB Litigation Conferences, 2011; x “Ethical Implications of Class Action and Mass Tort Settlements,” American Association for Justice, Summer Conference, 2011; x “Current Developments in Consumer Protection Litigation,” 11th Annual Class Action/Mass Tort Symposium, 2011; x “Privacy Litigation: The Evolution in Theories and Outcomes,” International Association of Privacy Professionals “Privacy Academy,” 2009; x “Securities Litigation Update,” 2008 Class Action Institute; x “Legal Strategies to Fight Negative Effects of Genetic Engineering,” Public Interest Environmental Law Conference, 2007; x “Corporate Governance Developments,” Financial Management Association Annual Conference, 2005. Mr. Levitt graduated from Columbia College, Columbia University (A.B., magna cum laude, 1990) and received his J.D. from Northwestern University School of Law in 1993.
Megan D. McIntyre
Megan McIntyre is a director at Grant & Eisenhofer, practicing in the areas of corporate, securities and complex commercial litigation. Among other work, she has represented institutional investors, both public and private, in corporate cases in the Delaware Court of Chancery as well as in securities class actions in federal courts throughout the country that have resulted in significant recoveries. She was a member of the trial team in In re Safety-Kleen Corp. Bondholders Litigation, which ended in settlements and judgments totaling approximately $280 million after seven weeks of trial, and she played a lead role in In re Refco Inc. Securities Litigation, which culminated in recoveries exceeding $400 million. Ms. McIntyre was also a member of the litigation teams that represented the plaintiffs in two cases whose settlements rank among the largest in the history of the Delaware Court of Chancery: In re El Paso Corp. Shareholder Litigation, which settled for $110 million, and In re American International Group, Inc. Consolidated Derivative Litigation, which settled for $90 million.
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In addition to her work on behalf of investor plaintiffs in class and derivative litigation, Ms. McIntyre has represented institutional investors who have opted out of federal securities class actions to pursue separate actions, resulting in recoveries that exceeded what they would have received as class members. Ms. McIntyre has also successfully represented clients in obtaining access to corporate proxy statements for the purpose of presenting proposed shareholder resolutions, and has brought and defended actions seeking to enforce shareholders’ rights to inspect corporate books and records pursuant to the statutory authority of Section 220 of the Delaware General Corporation Law.
Ms. McIntyre has appeared as a guest on CNBC's “On the Money,” and on September 13, 2012 she was featured as “Litigator of the Week” in The AmLaw Litigation Daily for her work in the In re El Paso Corp. Shareholder Litigation.
Ms. McIntyre graduated from The Pennsylvania State University in 1991 and graduated magna cum laude in 1994 from The Dickinson School of Law. In 2013, she was selected as one of the Lawdragon 500 Leading Lawyers of America.
Gordon Z. Novod Gordon Novod is a director at Grant & Eisenhofer, focusing his practice on corporate restructuring and creditors’ rights. He has fifteen years of experience representing ad hoc and official committees, distressed investors, lenders, litigation trustees, indenture trustees, trade creditors, and other parties in some of the most complex landmark restructurings.
Mr. Novod’s industry experience spans the automotive, chemical, construction, energy, entertainment, gaming, manufacturing, media, mining, and retail sectors. He has negotiated, drafted, and litigated all aspects of Chapter 11 plans of reorganization, valuation, and plan confirmation proceedings, contested debtor-in-possession financing and cash collateral use, the pursuit of fraudulent conveyance actions, and other matters involving bankruptcy-related and distressed litigation. He also has extensive experience reviewing, advising clients on, and litigating issues related to corporate debt securities in default and distressed situations, including exchange transactions and the Trust Indenture Act.
Mr. Novod prides himself on providing high quality advocacy to clients, keeping their business objectives in mind, thereby enabling him to build lasting relationships. He is also able to grasp complex legal and business issues in order to craft and implement innovative, yet practical solutions to maximize value for clients.
On numerous occasions, Mr. Novod has been acknowledged for his work as a restructuring attorney. In 2011, Law360 called him one of the “Rising Stars” in restructuring and “one of the five bankruptcy attorneys under 40 to watch.” He was also named a finalist in the M&A Advisor’s “40 under 40.” The following year, he was recognized as a “Winner of the 2012 40 Under 40 East M&A Advisor Recognition Awards” and New York Super Lawyers – Bankruptcy, “Rising Stars.” In 2013, 2014, 2015 and 2016, he was selected to New York Metro Super Lawyers in Bankruptcy. In addition, he serves on the New York City Bar Association’s Committee on Bankruptcy and Corporate Reorganization.
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Prior to joining G&E, Mr. Novod was a partner in the bankruptcy & corporate restructuring group at Brown Rudnick in New York. He also formerly practiced in the corporate restructuring and bankruptcy group at Kramer Levin Naftalis & Frankel LLP.
Mr. Novod’s prominent engagements include: • Caesars Entertainment Operating Company, Inc. (unsecured noteholder and proposed class representative) • CoBank, ACB (ad hoc noteholder committee) • Chesapeake Energy Corp. (unsecured noteholders and proposed class representatives) • Cliffs Natural Resources (unsecured noteholders and proposed class representatives) • Vanguard Natural Resources (unsecured noteholders and proposed class representatives) • The Refco Litigation Trust • ShengdaTech, Inc. (ad hoc noteholder committee) • Tribune Company (indenture trustee) • Central European Distribution Corporation (ad hoc committee of convertible noteholders) • Lyondell Chemical Company (creditors’ committee) • Herbst Gaming, Inc. (creditors’ committee) • Lehman Brothers (ad hoc consortium of claimholders of Lehman Brothers Special Financing, Inc.) • Green Valley Ranch Gaming, LLC (ad hoc committee of second lien lenders) • Palm Harbor Homes, Inc. (indenture trustee) • Equisearch Services, Inc. (trade creditor) • General Motors Corporation (n/k/a Motors Liquidation Company) (creditors’ committee) • Charter Communications, Inc. (ad hoc first lien lenders) • Midway Games, Inc. (secured lender) • Bethlehem Steel Corp. (creditors’ committee) • WCI Steel, Inc. (ad hoc noteholders’ committee and indenture trustee) • Delphi Corp. (trade creditor and member of the creditors’ committee) • Grace Industries, Inc. (creditors’ committee) • Wave Wireless Corp. (secured lender) • Diomed, Inc. (licensor and chairman of the creditors’ committee) • TransCare Corp. (creditors’ committee) • Buffets Holdings, Inc. (ad hoc noteholders’ committee) • ASARCO LLC (majority noteholders) • Bridgeport Holdings, Inc. (Micro Warehouse, Inc.) (debtors) • WestPoint Stevens, Inc. (second lien agent) Mr. Novod has lectured on indenture analysis and fraudulent conveyance litigation.
James J. Sabella
James Sabella is a director at Grant & Eisenhofer. He has over thirty-five years of experience in complex civil litigation, including representing plaintiffs and defendants in class and derivative actions involving trial and appellate work in state and federal courts. He has substantial experience in securities litigation and litigation involving claims against accounting firms and
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underwriters. He has also handled antitrust litigation, whistleblower claims and cases involving claims under the False Claims Act, and cases involving the fiduciary obligations of trustees under state law.
Mr. Sabella has represented the lead plaintiffs in numerous major cases that have resulted in large recoveries, including the General Motors securities litigation, where the settlement was in excess of $300 million, and the Refco securities litigation, where the recovery was in excess of $400 million. He also represented the lead plaintiffs in the Parmalat securities litigation, which resulted in landmark opinions establishing that the international firms that coordinate the audit services that audit firms conduct in various countries can be held liable for the conduct of such local audit firms.
Prior to joining Grant & Eisenhofer, Mr. Sabella practiced for twenty-eight years at several large Manhattan law firms, most recently as a partner in Sidley, Austin, Brown & Wood LLP, where his practice focused largely on accountants’ liability defense, including the defense of actions alleging securities law violations and professional malpractice as well as grand jury investigations and investigations by the American Institute of Certified Public Accountants.
Mr. Sabella is a 1976 graduate of Columbia Law School, where he was a member of the Board of Directors of the Columbia Law Review. He received a B.A. summa cum laude from Columbia College in 1972 and a B.S. in 1973 from the Columbia School of Engineering, where he was valedictorian.
Mary S. Thomas
Mary Thomas is a director at Grant & Eisenhofer. She spent twelve years practicing business litigation with two of Los Angeles’ leading law firms before joining Grant & Eisenhofer in 2006. Her experience prior to Grant & Eisenhofer includes trade secret and intellectual property matters, contract actions, employment defense, consumer class action defense, insurance disputes and environmental matters.
At Grant & Eisenhofer, Ms. Thomas represents institutional investors in class action securities and shareholder litigation and individual relators in false claims act cases. Ms. Thomas represented the lead plaintiffs in the Marsh & McLennan securities litigation, which resulted in a $400 million settlement. In Delaware Chancery Court, Ms. Thomas successfully represented investors in the ACS shareholders litigation. Ms. Thomas currently represents the relator in a Delaware False Claims and Reporting Act case concerning unclaimed gift card balances.
Ms. Thomas served as a volunteer arbitrator for the L.A. County Bar Association and as a volunteer mediator for the L.A. Superior Court and now serves as a volunteer guardian ad litem through Delaware’s Office of the Child Advocate. She co-authored "California Wage and Hour Laws" (published by the National Legal Center for the Public Interest, January 2005) and was one of several authors of the 10th and 11th editions of the California Environmental Law Handbook.
Ms. Thomas graduated magna cum laude from Harvard Law School in 1994 and magna cum laude from the University of Delaware in 1991.
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Lisa B. Weinstein
Lisa Weinstein is a director at Grant & Eisenhofer and leads the firm’s birth injury litigation division. Her practice primarily focuses on representing women and children in birth injury and birth trauma litigation.
Prior to joining G&E, Ms. Weinstein founded The Weinstein Law Group, where she represented children who were victims of medical malpractice and birth injuries. In her practice as a plaintiffs’ trial lawyer, Lisa has successfully litigated personal injury, medical malpractice and birth injury matters resulting in multi-million dollar settlements and verdicts. Representative examples include an $8 million settlement in a case against Wayne County after her client’s child suffered brain damage due to lack of oxygen during the labor and delivery process and a $20 million verdict in a brain damaged baby case.
Ms. Weinstein was a speaker at the 2015 New Jersey Association for Justice seminar covering “When Medical Malpractice and Mass Tort Overlap,” and at the 2016 North American Brain Injury Society’s annual conference, speaking about “Representing Children with Acquired TBI.”
Ms. Weinstein has been selected as a Rising Star by Super Lawyers and has been honored by The National Trial Lawyers in the “Top 40 Under 40” for the past five years. She is a member of the Million Dollar Advocates Forum as well as the Multi-Million Dollar Advocates Forum, recognized for her work in obtaining several notable settlements and verdicts. Ms. Weinstein is an active member of the Birth Trauma Litigation Group, the Women Trial Lawyers Caucus and the Women’s Bar Association of Illinois. She is also an Arbitrator for the Circuit Court of Cook County and is a Board Member of the Illinois Trial Lawyers Association.
Ms. Weinstein earned an undergraduate degree from the University of Michigan and graduated cum laude from DePaul University College of Law.
John C. Kairis
John Kairis is of counsel at Grant & Eisenhofer, where he represents institutional investors in class action litigation, individual “opt-out” securities litigation, and derivative and corporate governance litigation in the Delaware Chancery Court and other courts throughout the country. He has been a leader of G&E teams that have achieved some of the largest recoveries in securities class action history, and played major roles in the Tyco, Parmalat, Marsh & McLennan, Hollinger International and Dollar General securities class actions, and opt-out actions in AOL Time Warner and Telxon Corporation.
Among his Delaware Chancery Court litigation experience is a landmark case against HealthSouth, involving a books and records trial under Section 220 of the Delaware General Corporations Law, to obtain certain documents that the corporation refused to produce, which led to a settlement implementing corporate governance improvements, such as HealthSouth’s agreement to replace its conflicted directors with independent directors approved by a committee which included the institutional investor plaintiff; and a settlement of litigation against Oracle Corporation, Larry Ellison and the other members of Oracle’s board, whereby plaintiffs alleged that Ellison’s control over Oracle and Pillar Data Systems led to an unfair process resulting in Oracle’s agreement to pay a grossly excessive and unfair price for Pillar in the form of a novel
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“earn out.” The settlement provided a monetary benefit of approximately $440 million resulting from a required reduction in the purchase price for Pillar.
Mr. Kairis has also been instrumental in prosecuting consumer class actions involving unfair competition and false marketing claims against both Johnson & Johnson and Bausch & Lomb, and represented the lead plaintiffs and the class in a securities fraud suit against Merck & Co. and certain of its officers and directors relating to the defendants’ alleged suppression of test results of Merck’s cholesterol medication Vytorin.
He currently represents plaintiffs in several consumer class actions, including a pending case against Avon relating to its allegedly false advertising and misrepresentations relating to various cosmetics, and a case against Nicor Gas Company relating to that company’s allegedly deceptive marketing and sale of a gas-pipe repair warranty service. Mr. Kairis also represents the lead plaintiffs in various breach of fiduciary duty cases pending in the Delaware Chancery Court.
Mr. Kairis has authored articles including “Shareholder Proposals For Reimbursement Of Expenses Incurred In Proxy Contests: Recent Guidance From The Delaware Supreme Court,” PLI, What All Business Lawyers Must Know About Delaware Law Developments 2009 (New York, NY May 21, 2009) (co-authored with Stuart Grant); “Challenging Misrepresentations in Mergers: You May Have More Time Than You Think,” Andrews Litigation Reporter, Vol. 12, Issue 3, June 14, 2006; “Disgorgement Of Compensation Paid To Directors During The Time They Were Grossly Negligent: An Available But Seldom Used Remedy,” Delaware Law Review, Vol. 13, #1, 2011; and was the principle writer of an amicus brief to the United States Supreme Court on behalf of various public pension funds in the Merck case involving the standard for finding that a plaintiff is on “inquiry notice” of potential claims such that the limitations period for pleading securities fraud has commenced.
Mr. Kairis has served on the boards of several nonprofit organizations, including the West-End Neighborhood House, Inc., the Cornerstone West Development Corporation, and the board of the Westover Hills Civic Association. He has also served on the Delaware Corporation Law Committee, where he evaluated proposals to amend the Delaware General Corporation Law.
Mr. Kairis is a 1984 graduate of the University of Notre Dame and a 1987 graduate of the Ohio State University Moritz College of Law, where he was Articles Editor of the Ohio State Law Journal and recipient of the American Jurisprudence and John E. Fallon Memorial Awards for scholastic excellence. He is a member of the Delaware and American Bar Associations and the Delaware Trial Lawyers Association.
Richard S. Schiffrin
Richard S. Schiffrin is of counsel at Grant & Eisenhofer. He has represented institutional investors and consumers in securities and consumer class actions worldwide. In 2008, Mr. Schiffrin retired as a founding partner of Schiffrin Barroway Topaz & Kessler, LLP.
Mr. Schiffrin has been recognized for his expertise in many prominent cases, including In re Tyco International Ltd. Securities Litigation, the most complex securities class action in history, which resulted in a record $3.2 billion settlement. The $2.975 billion payment by Tyco represents the single largest securities class action recovery from a single corporate defendant in
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history, while the $225 million settlement with PricewaterhouseCoopers (PwC) represents the largest payment PwC has ever paid to resolve a securities class action and is the second-largest auditor settlement in securities class action history; In re AremisSoft Corp. Securities Litigation, a complex case involving litigation in four countries, resulting in a $250 million settlement providing shareholders with a majority of the equity in the reorganized company after embezzlement by former officers; In re Tenet Healthcare Corp., resulting in a $216.5 million settlement and which led to several important corporate governance improvements; Henry v. Sears, et al., one of the largest consumer class actions in history which resulted in a $156 million settlement distributed without the filing of a single proof of claim form by any class member; Wanstrath v. Doctor R. Crants, et al., a derivative action filed against the officers and directors of Prison Realty Trust, Inc., challenging the transfer of assets to a private entity owned by company insiders, resulting in corporate governance reform in addition to the issuance of over 46 million shares to class members; Jordan v. State Farm Insurance Company, resulting in a $225 million settlement and other monetary benefits for current and former State Farm policy-holders; and In re Sotheby’s Holdings, Inc. Derivative Litigation, resulting in a multi-million dollar settlement and significant governance changes.
Mr. Schiffrin is an internationally renowned speaker and lectures frequently on corporate governance and securities litigation. His lectures include: the MultiPensions Conference in Amsterdam, Netherlands; the Public Funds Symposium in Washington, D.C.; the European Pension Symposium in Florence, Italy; and the Pennsylvania Public Employees Retirement Summit (PAPERS) in Harrisburg, Pennsylvania. Mr. Schiffrin has also taught legal writing and appellate advocacy at John Marshall Law School and served as a faculty member at legal seminars, including the Annual Institute on Securities Regulation, NERA: Finance, Law & Economics - Securities Litigation Seminar, the Tulane Corporate Law Institute, and the CityBar Center for CLE (NYC): Ethical Issues in the Practice of Securities Law.
Mr. Schiffrin is a graduate of DePaul Law School and attended graduate school at the University of Chicago. After protecting the civil rights of clients for seven years as an Assistant Public Defender with the Office of the Public Defender of Cook County, where he tried hundreds of cases, Mr. Schiffrin founded Schiffrin & Craig, Ltd., representing consumers and individual investors in actions brought against public companies. He is licensed to practice law in Pennsylvania and Illinois and has been admitted to practice before numerous United States District Courts.
Thomas V. Ayala
Thomas Ayala is senior counsel at Grant & Eisenhofer, focusing on complex pharmaceutical and medical device litigation. Mr. Ayala has handled all phases of mass tort and personal injury litigation from commencement through trial and appeals. He has also assembled and worked with numerous interdisciplinary teams of medical and scientific expert witnesses to support clients’ legal claims, and he has served as first-chair cross-examiner of adversarial experts and other witnesses in product liability litigation.
Mr. Ayala is actively representing injured victims in cases against major pharmaceutical companies, medical device manufacturers, and manufacturers in other industries. Mr. Ayala serves on the Law and Briefing Committee for the Plaintiff’s Steering Committee in In re Xarelto Products Liability Litigation, MDL No. 2592, serves as Co-Chair of the Science and
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Expert Committee and as a member of the Law and Briefing Committee for the Plaintiff’s Steering Committee in In re Zofran (ondansetron) Products Liability Litigation, MDL No. 2657 (where G&E is co-lead), and power morcellators (where G&E is a member of the Plaintiffs’ Steering Committee in In re Power Morcellator Products Liability Litigation, MDL No. 2652). Mr. Ayala is also representing individuals adversely affected by defective metal-on-metal hips, Actos, and Risperdal.
Prior to his representation of injured individuals and victims of consumer fraud, Mr. Ayala worked for an international firm serving as national counsel in numerous mass tort proceedings, including pharmaceutical, medical device, environmental exposure, and other complex personal injury proceedings, including multidistrict litigation proceedings.
Immediately following law school, Mr. Ayala was a law clerk to Judge Eduardo C. Robreno of the U.S. District Court for the Eastern District of Pennsylvania, where he assisted the judge in presiding over seven jury trials and was actively involved in the administration of matters arising under federal and state law.
Mr. Ayala was selected as a Product Liability “Rising Star” in Law360’s 2016 list of Top Attorneys Under 40 and co-authored “Overcoming the Clear Evidence Defense,” published in the July 2016 issue of Trial magazine.
Mr. Ayala earned his J.D., summa cum laude, from Villanova University School of Law in 2004, where he served as editor-in-chief of the Villanova Law Review and was named to the Order of the Coif. At Villanova, Mr. Ayala served as an intern to the late Judge Charles R. Weiner.
Deborah A. Elman
Deborah Elman is senior counsel at Grant & Eisenhofer, where she represents clients in complex civil litigation in federal and state court, with a particular focus on securities and shareholder litigation.
Currently, Ms. Elman is a member of the litigation team representing institutional investors in In re Petrobras Securities Litigation. Ms. Elman’s other current matters include Fernandez et al. v. UBS AG et al.
Ms. Elman has litigated numerous cases related to the financial crisis, including more than fifteen actions arising out of wrongdoing involving the issuance of residential mortgage-backed securities (“RMBS”) and other complex financial products, resulting in several substantial settlements. Additionally, Ms. Elman was a member of the litigation teams that successfully represented the lead plaintiff in a case dubbed “The Enron of India,” In re Satyam Computer Services Ltd. Securities Litigation, which settled for $150.5 million, and In re Kinder Morgan Energy Partners, L.P. Derivative Litigation, which settled for $27.5 million. She recently represented institutional investors in In re Merck and Co., Inc. Securities, Derivative & ERISA Litigation, resulting in substantial investor recoveries.
Prior to joining Grant & Eisenhofer, Ms. Elman represented clients before the SEC and participated in numerous appearances before federal and state courts as an associate at a leading New York law firm.
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Ms. Elman served as a law clerk for the Honorable William L. Standish, United States District Judge, in the United States District Court for the Western District of Pennsylvania, participating in all aspects of federal trial court practice.
Ms. Elman graduated cum laude in 2001 from the University of Pittsburgh School of Law, where she was Lead Executive Editor of the Journal of Law and Commerce. She received a Masters of Public Health degree in 1997 from Columbia University, where she also graduated cum laude with a Bachelor of Arts degree in 1995.
Kimberly A. Evans
Kimberly Evans is senior counsel at Grant & Eisenhofer, focusing her practice on appraisal rights, corporate governance and complex securities litigation on behalf of institutional investor clients.
Ms. Evans is a leading member of the Firm’s appraisal rights practice and has litigated a number of complex matters before the Delaware Court of Chancery, including In re Dole Food Co. Stockholder Litigation and In re Dole Food Co. Appraisal Litigation, a stockholder class and appraisal litigation resulting in a damages award of $148 million, plus interest, following a nine- day trial. The Dole litigation represents one of the largest recoveries in a non-derivative action in the history of the Delaware Chancery Court.
Ms. Evans also successfully litigated the In re Appraisal of DFC Global Corp. action where she served as second chair on the trial team representing petitioners asserting the deal price of $9.50 did not reflect fair value. Following a three-day trial, Chancellor Bouchard awarded petitioners with a fair value determination of $10.30 per share, plus statutory interest.
Ms. Evans is also currently litigating In re Appraisal of PetSmart, Inc. on behalf of petitioners that collectively held nearly $1 billion of PetSmart shares on the merger date. The PetSmart action is scheduled for a four-day trial before Vice Chancellor Slights in October 2016 and represents one of the largest appraisal actions ever brought before the Delaware Court of Chancery.
Ms. Evans also has played a significant role in a number of securities fraud class actions that have achieved substantial recoveries for classes of investors and on behalf of individual and institutional investors who have opted out of class actions to pursue individual suits.
Prior to joining Grant & Eisenhofer, Ms. Evans worked as an associate at a well-known Philadelphia-area law firm, where she gained extensive experience in the practice areas of securities, antitrust, and consumer protection class action litigation. She also previously worked as a paralegal in the Juvenile Division of the Philadelphia District Attorney’s Office.
Christine M. Mackintosh
Christine Mackintosh is senior counsel at Grant & Eisenhofer, practicing in the areas of corporate and securities litigation. She has represented institutional investors, both public and
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private, in corporate cases in the Delaware Court of Chancery and in securities fraud class actions in federal courts throughout the country.
Ms. Mackintosh’s practice primarily focuses on litigation in the Delaware Court of Chancery, where she has played significant roles in several landmark actions challenging mergers and acquisitions (including In re Del Monte Foods Company Shareholder Litigation, which resulted in an $89.4 million recovery for the class, and In re El Paso Corporation Shareholder Litigation, which resulted in a $110 million recovery for the class) and in several successful shareholder derivative actions (including In re American International Group, Inc. Consolidated Derivative Litigation, which resulted in a $90 million recovery, one of the largest recoveries in a shareholder derivative action in the history of the Delaware Court of Chancery). In addition, Ms. Mackintosh frequently represents institutional investors in appraisal actions and was a member of the trial team in In re Appraisal of Dell, Inc., securing a highly publicized ruling that the fair value of Dell was 28% more than the merger price.
In addition to her Chancery Court practice, Ms. Mackintosh has played a significant role in a number of securities fraud class actions that have achieved substantial recoveries for classes of investors, including In re JP Morgan Chase & Co. Securities Litigation ($150 million recovery), In re Refco Securities Litigation ($400 million recovery), and In re Merck & Co., Inc. Vytorin/Zetia Securities Litigation ($215 million recovery), and on behalf of individual and institutional investors who have opted out of class actions to pursue individual suits, including representation of investors who opted out of In re Bank of America Corporation Securities, Derivative & ERISA Litigation. Outside of the United States, Ms. Mackintosh was a member of the team that secured the historic $450 million pan-European settlement in the Royal Dutch Shell case and is currently representing institutional investors in litigation against The Royal Bank of Scotland in the United Kingdom and against Volkswagen AG in Germany.
Prior to joining Grant & Eisenhofer, Ms. Mackintosh practiced in the Philadelphia office of an international law firm, where she practiced in the areas of commercial, securities, and insurance recovery litigation.
A magna cum laude graduate of St. Joseph’s University, Ms. Mackintosh earned her law degree at the University of Pennsylvania Law School. She is the co-author of two articles published by the Practising Law Institute’s Corporate Law & Practice Course Handbook Series. “Ethical Issues and Their Impact on Securities Litigation,” published in September-October, 2003, was co-authored with Marc J. Sonnenfeld, Viveca D. Parker and Marisel Acosta. “Lessons From Sarbanes-Oxley: The Importance of Independence In Internal Corporate Investigations,” published in July, 2003, was co-authored with Alfred J. Lechner, Jr.
John E. Tangren
John Tangren is a senior counsel at Grant & Eisenhofer, where his primary area of practice is consumer class action litigation. Prior to joining G&E, Mr. Tangren was a class action litigation associate in the Chicago office of a national law firm, and practiced complex commercial litigation as an associate in the Chicago office of a large global firm.
Mr. Tangren has spoken on issues relating to class action litigation and electronic discovery. Mr. Tangren's recent speaking engagements include "The Use of Absent Class Member Discovery on
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Issues of Class Certification," at the 2013 National Consumer Class Action Litigation & Management Conference; "ESI for Beginners," at the 2013 Seventh Circuit Conference of the National Employment Lawyers Association; and "Lessons on Motions to Dismiss from Other Car Defect Cases," at the HarrisMartin MDL Conference: General Motors Ignition Switch Recall Litigation.
Mr. Tangren graduated from the University of Chicago (A.B., philosophy and music, 2000) and the University of Chicago Law School with honors (J.D., 2003) where he was Executive Editor of the University of Chicago Legal Forum. He was selected to The National Trial Lawyers Top 40 Under 40 in 2012 and by Super Lawyers as an Illinois "Rising Star" for 2011, 2013-2016. Mr. Tangren was also named an “Emerging Lawyer” by the Law Bulletin Publishing Company in 2015.
Diane T. Zilka
Diane Zilka is senior counsel at Grant & Eisenhofer. For over a decade, Ms. Zilka has been in the forefront of the Firm's successful prosecution of securities fraud and corporate governance cases. As a member of numerous trial teams, Ms. Zilka has played a key role in achieving significant recoveries for funds managed by U.S. and international institutional investors and public pension plans. Representative cases include: In re Safety-Kleen Bondholders Litigation (more than $276 million in judgments and settlements); In re Merck & Co., Inc. Vytorin/Zetia Securities Litigation (recovered $215 million for investors—among the largest for a securities fraud case without a government finding of corporate wrongdoing); In re News Corp. Shareholder Derivative Litigation ($139 million recovered for the company—one of the largest cash recoveries in the history of derivative shareholder litigation—and which resulted in significant corporate governance reforms); In re Dole Food Co., Inc. Stockholder Litigation ($148 million recovered for shareholders over senior executives’ deceit in management buyout); In re Parmalat Securities Litigation—the European "Enron" ($110 million recovery); TRSL v. AIG ($115 million recovered for the company); In re Appraisal of Metromedia International Group, Inc., ($188 million judgment in only the second appraisal action of preferred shares in the history of Delaware Chancery Court). In the corporate governance arena, Ms. Zilka's cases have addressed such cutting-edge issues as the propriety of "proxy puts" and of "Don't Ask, Don't Waive" standstill provisions, the use of derivative securities in "poison pills," and the conflicted role of Wall Street banks as financial advisors to target corporations which, in In re Del Monte Foods Co. Shareholders Litigation, resulted in a preliminary injunction of a $5.3 billion leveraged buyout and an $89.4 settlement for the shareholders. Ms. Zilka has successfully defended clients before the SEC in "no-action" proxy proposal challenges, and has successfully prosecuted "books and records" actions.
Ms. Zilka co-authored "The Role of Foreign Investors in Federal Securities Class Actions," 1442 PLI/CORP. 91 (2004) and "The Current Role Of Foreign Investors In Federal Securities Class Actions," 1620 PLI/Corp 11 (2007), cited in Morrison v. National Australia Bank, 561 U.S. 247 (2010). Ms. Zilka has lectured on federal class action litigation practice as well as on Delaware corporate law.
Ms. Zilka has concentrated her career in securities, corporate and complex commercial litigation. Before joining G&E, she was a partner in a prominent New York City law firm. Ms. Zilka has served as General Chair of the annual Combined Campaign For Justice which provides critical
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funding for Delaware's three legal services agencies. She is a member of the Carpenter-Walsh Delaware Pro Bono Inn of Court. Current and past board memberships include Delaware Volunteer Legal Services, The Print Center of Philadelphia, and Panetiere Partners, three non- profit organizations.
Ms. Zilka graduated from the State University of New York at Binghamton in 1982, and received her J.D. from Fordham University School of Law in 1985.
Paige J. Alderson
Paige Alderson is an associate at Grant & Eisenhofer where she focuses her practice on complex pharmaceutical and medical device litigation. Prior to joining Grant & Eisenhofer, Ms. Alderson was an associate at a regional litigation firm where she practiced toxic tort and products liability litigation. Before entering private practice, Ms. Alderson served as a judicial law clerk to The Honorable William C. Carpenter, Jr. of the Complex Commercial Litigation Division in the Superior Court of Delaware.
Ms. Alderson earned her J.D. from Villanova University Charles Widger School of Law in 2014 and her B.S. from the University of Delaware in 2009. During her time at Villanova, Ms. Alderson participated in the Health Law Clinic assisting clients with Social Security, Medicare/Medicaid, and insurance matters.
Edward J. Aucoin
Edward Aucoin is an associate at Grant & Eisenhofer, where his primary area of practice is representing families and children in birth injury and birth trauma litigation. Prior to joining G&E, Mr. Aucoin worked at several medical negligence defense firms in the Chicago area, focusing on medical malpractice and professional liability as well as commercial litigation. He also was a senior trial attorney at a national insurance company.
Mr. Aucoin has successfully litigated hundreds of cases and has served as first and second chair trial attorney. He has handled every aspect of medical negligence cases, from pleadings and discovery to experts and trial.
Mr. Aucoin received his J.D. from Loyola University New Orleans School of Law and his B.A. in Broadcast Journalism and Political Science from Loyola University of New Orleans.
Seth D. Blumenthal
Seth Blumenthal is an associate at Grant & Eisenhofer and focuses his practice on corporate litigation. Prior to joining Grant & Eisenhofer, Mr. Blumenthal was an Assistant District Attorney for the Manhattan District Attorney’s Office prosecuting major financial crimes, and an associate at an international law firm practicing securities, antitrust, and general commercial defense litigation.
Mr. Blumenthal earned his J.D. from Fordham University School of Law in 2007 where he received the Archibald R. Murray Public Service Award and the Legal Writing Award. He
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earned his B.A., cum laude, from Tufts University in 2003 with a double-major in Economics and Psychology.
Joseph L. Christensen
Joseph Christensen is an associate at Grant & Eisenhofer and focuses his practice on litigation relating to Delaware corporation and alternative entity law. Mr. Christensen previously worked as an associate at leading law firms in Delaware and New York.
Mr. Christensen has represented a variety of clients in public and private investment and M&A transactions and corporate litigation. He has published numerous articles addressing transactional, litigation and theoretical issues of Delaware law.
Mr. Christensen earned his B.A. from The University of Iowa, where he was a Presidential Scholar, and his J.D. from The University of Iowa College of Law, where he served on the Iowa Law Review.
Jeremy S. Cole
Jeremy Cole is an associate at Grant & Eisenhofer, focusing on corporate securities and complex litigation. Mr. Cole graduated from the University of Pennsylvania in 2012, cum laude, with a B.A. in philosophy. In 2015, Mr. Cole graduated cum laude from William & Mary Law School. While at William & Mary, Mr. Cole served as the Managing Editor of the William & Mary Business Law Review and as a student advocate for William & Mary’s Lewis B. Puller, Jr. Veterans Benefits Clinic.
Irene R. Lax
Irene Lax is an associate at Grant & Eisenhofer, focusing her practice on securities litigation, corporate governance, and appraisal rights.
Upon graduating from law school, Ms. Lax served as law clerk for the Honorable Carolyn Berger, Supreme Court of the State of Delaware, from 2012-2013. Prior to joining Grant & Eisenhofer, Ms. Lax worked as an associate at a well-known Philadelphia-area law firm, where she assisted clients in civil litigation brought under federal and state securities laws, as well as federal antitrust laws. Ms. Lax also gained extensive experience representing companies in various aspects of complex commercial and civil litigation before state and federal courts in matters involving breach of contract, breach of fiduciary duty, and business disputes.
Ms. Lax earned her J.D. from Temple University Beasley School of Law in 2012 where she was an Editor of the Temple Law Review and President of the Phillip C. Jessup International Law Moot Court team. Ms. Lax received a joint honors B.A. in political science and international development studies from McGill University in Montreal, Quebec in 2009.
Ms. Lax has co-authored several publications relating to Delaware law and securities litigation and represents individuals pro bono seeking Social Security Disability Income (SSDI) benefits. Ms. Lax is also a Young Friends Board member of the National Museum of American Jewish History.
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Michael T. Manuel
Michael Manuel is an associate at Grant & Eisenhofer, focusing on securities and corporate governance litigation. Mr. Manuel has experience in a variety of complex commercial cases, including matters involving contract disputes, securities, commercial litigation, corporate governance, mass torts and products liability cases.
Mr. Manuel graduated cum laude from Harvard Law School in 2002 and received a Bachelor’s degree in mathematics from Duke University in 1999.
Kyle J. McGee
Kyle McGee is an associate at Grant & Eisenhofer focusing on complex securities and commercial litigation on behalf of institutional investors, consumers, small businesses, and advocacy organizations.
Mr. McGee was heavily involved in In re Merck & Co., Inc. Vytorin/Zetia Securities Litigation (D.N.J.), a major securities fraud action against pharmaceutical industry titan Merck & Co., Inc. The case was prosecuted jointly with a related action, In re Schering-Plough Corp. ENHANCE Securities Litigation (D.N.J.), resulting in a $688 million total recovery. This represents the largest securities class action recovery against a pharmaceutical company to date, and ranks among the top securities settlements with any issuer.
Mr. McGee also successfully represented shareholders in several other federal securities actions, including the JPMorgan “London Whale” class action, In re JPMorgan Chase & Co. Securities Litigation (S.D.N.Y.), which resulted in recovery of $150 million; In re New Oriental Education & Technology Group Securities Litigation (S.D.N.Y.); In re Miller Energy Resources, Inc. Securities Litigation (E.D. Tenn.); British Coal Staff Superannuation Scheme, et al. v. American International Group, Inc. (S.D.N.Y.); and Stichting Pensioenfonds ABP, et al. v. Merck & Co., Inc. (D.N.J.), each of which resulted in substantial investor recoveries.
Mr. McGee is a member of teams prosecuting consumer protection claims against Ford Motor Company, in relation to the safety and reliability of its MyFord Touch in-car units, and Volkswagen AG in litigation relating to its “clean diesel” products. Mr. McGee is also litigating fraud claims on behalf of small businesses against national merchant service providers, antitrust claims against global travel service providers, and various privacy claims against major financial institutions.
Mr. McGee earned a postgraduate research degree from the University of Edinburgh in Scotland and a J.D. from Villanova University in 2009, both with honors. Mr. McGee studied the history and philosophy of law at Edinburgh and was honored as a Dean’s Merit scholar at Villanova Law. In 2005, he graduated from the University of Scranton with a B.A. in philosophy as well as media technologies.
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Samantha R. Mertz
Samantha Mertz is an associate at Grant & Eisenhofer, where her primary area of practice is complex pharmaceutical and medical device litigation. Prior to joining Grant & Eisenhofer, Ms. Mertz worked at a Philadelphia law firm as a pharmaceutical mass tort litigation attorney, and was selected for inclusion in the Pennsylvania Super Lawyers “Rising Star” list for 2014 and 2015.
Ms. Mertz earned her J.D. from Temple University Beasley School of Law in 2010. Upon graduation, Ms. Mertz served as a mass tort law clerk for the Complex Litigation Center under the Honorable Judge Arnold New and the Honorable Judge Sandra Mazer Moss for the First Judicial District of Pennsylvania from 2010-2013.
Ms. Mertz serves on the Louis D. Brandeis Law Society Executive Committee and chairs the Society’s Mentorship and Networking Program. She is a member of the Temple American Inn of Court and the Philadelphia Bar Association.
Caitlin M. Moyna
Caitlin Moyna is an associate at Grant & Eisenhofer where she represents investors in securities fraud class actions, shareholder derivative actions, appraisals, merger litigation and international arbitration.
Ms. Moyna has helped achieve significant shareholder recoveries while at G&E in cases against Career Education Corp. and Miller Energy Resources, Inc., and others prior to her time at G&E, including Litwin v. The Blackstone Group L.P., which resulted in an $85 million recovery. She has also represented institutional investors who opted out of securities fraud class actions against Merck and Citigroup. Additionally, Ms. Moyna represents a group of over 600 Greek investors challenging the bail-in of Cypriot banks in an international arbitration before the International Centre for Settlement of Investment Disputes.
Ms. Moyna represented a class of stockholders challenging the American Greetings Corp. buyout, which contributed to a $23.4 million increase in merger consideration. She currently represents investors challenging consideration of the PetSmart buyout and the AOL-Verizon merger in appraisal actions.
Prior to joining G&E, Ms. Moyna was associated with two leading New York law firms, where she represented corporations in securities fraud class actions and government investigations, as well as a boutique litigation firm specializing in investor representation.
With Managing Director Jay W. Eisenhofer, Ms. Moyna is the co-author of two multi-series articles that explore the rights of investors in alternative entities: “What is the State of Delaware Law as It Relates to the Scope of Fiduciary Duties Owed to Investors in So-Called Alternative Entities?”, Bloomberg BNA, Corporate Accountability Report (Dec. 5, 12, and 19, 2014); and “What Is the Current State of Delaware Law on the Scope of Fiduciary Duties Owed by Hedge Fund Managers to Their Funds and Investors?”, The Hedge Fund Law Report, Vol. 6, Nos. 26 and 27 (Sept. 19 and 26, 2013).
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Ms. Moyna is a cum laude graduate of Northwestern University School of Law, where she was elected to the Order of the Coif and was a member of the Journal of Criminal Law and Criminology. Ms. Moyna received her A.B. from Dartmouth College.
Rebecca A. Musarra
Rebecca Musarra is an associate at Grant & Eisenhofer where she focuses her practice on corporate governance and complex securities litigation. Ms. Musarra also represents institutional investors in appraisal actions before the Delaware Chancery Court, including the recent matter of In re Appraisal of Dell Inc. In addition, she is involved in nationwide class action litigation, prosecuting consumer and ERISA cases as well as a variety of corporate tort cases and bondholder litigation, such as Danner v. Caesars Entertainment Corporation. Ms. Musarra is also engaged in the pro bono representation of juvenile immigrants.
Prior to joining G&E, Ms. Musarra worked as an appellate law clerk to the Chief Justice of the Supreme Court of the Virgin Islands in St. Thomas, Virgin Islands.
During law school, Ms. Musarra was a member of the American University Law Review and served for two years in an impact litigation clinic. She was awarded a full-tuition scholarship, was elected to the Order of the Coif, and graduated summa cum laude.
Ms. Musarra received her J.D. degree from American University Washington College of Law in 2009 and obtained a B.A. in international relations from the College of William and Mary in 2003. Between college and law school, Ms. Musarra served as a Peace Corps Volunteer in Chad, Central Africa.
Jonathan D. Park
Jonathan Park is an associate at Grant & Eisenhofer, where he focuses on securities litigation. Mr. Park graduated in 2013 from Fordham University School of Law, where he served as the Jessup International Law Competition Editor for the Fordham Moot Court Board and as a Crowley Scholar in International Human Rights.
Prior to joining the firm, he interned with a refugee law project in Cairo, Egypt. Mr. Park received a B.A. in 2006 from Vassar College, where he majored in Africana Studies.
Jon T. Pearson
Jon Pearson is an associate at Grant & Eisenhofer, focusing on securities and complex litigation. Mr. Pearson has over ten-years of litigation experience, having managed all aspects of litigation, including trial and pre-trial practice involving brief preparation, discovery, presentation of live testimony (both fact and expert), and oral argument. Before joining G&E, Mr. Pearson worked for over 6 years as a senior litigation and regulatory associate for a large Philadelphia-area law firm. Mr. Pearson was selected to the 2015 Pennsylvania Super Lawyers Rising Stars List; 2010, 2012, 2015, and 2016 Mountain States Super Lawyers Rising Stars List; and 2011 Nevada Business as one of “Southern Nevada’s Top 100 Attorneys.”
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Mr. Pearson earned his J.D. from California Western School of Law in 2006, where he was an editor for the California Western Law Review and for the California Western International Law Journal. He received his B.A. in Music Performance from Temple University in 2001.
Stephanie E. Smiertka
Stephanie Smiertka is an associate at Grant & Eisenhofer where she focuses on complex pharmaceutical and medical device litigation. Prior to joining Grant & Eisenhofer, Ms. Smiertka was an associate at a national litigation firm where she practiced civil defense litigation. Before entering private practice, Ms. Smiertka served as a judicial law clerk to five judges of the Delaware Court of Common Pleas for New Castle County, where she assisted in drafting judicial opinions for both civil and criminal matters.
Ms. Smiertka earned her J.D. from The George Washington Law School in 2012. During her time at GW, she participated in the Domestic Violence Clinic, and she continues to volunteer on behalf of domestic violence survivors in Delaware. Shortly after graduation, Ms. Smiertka wrote an article titled “The Federal Fortress Surrounding Police Liability For Failure To Enforce Protection Orders,” published by The Buffalo Journal of Gender, Law & Social Policy.
Ms. Smiertka is admitted to practice in Delaware and Florida. She is an active member of the Richard S. Rodney Inn of Court and the Delaware State Bar Association’s Women and the Law section.
Kelly L. Tucker
Kelly Tucker is an associate at Grant & Eisenhofer, where she focuses her practice on securities litigation, corporate governance, and appraisal rights. Prior to joining G&E, Ms. Tucker worked at a Philadelphia area law firm practicing antitrust, consumer protection, and products liability litigation.
Ms. Tucker received her J.D. from Fordham University School of Law in 2010, where she was the Executive Notes and Articles Editor of the Fordham Journal of Corporate and Financial Law and a member of the Executive Board of Fordham Law Moot Court. She received her B.A. in international politics from American University in 2003.
Vivek Upadhya
Vivek Upadhya is an associate at Grant & Eisenhofer, focusing on securities fraud, appraisal, and false claims act cases.
Mr. Upadhya received his J.D. from Emory University School of Law, where he served as a managing editor for the Emory Law Journal. He received his B.A. in law and political science from the University of Utrecht in the Netherlands, and was born and raised in India.
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Viola Vetter
Viola Vetter is an associate at Grant & Eisenhofer where she focuses her practice on corporate litigation. Prior to joining Grant & Eisenhofer, Ms. Vetter was an associate at an international law firm, resident in Philadelphia, representing corporate clients in complex commercial, consumer and qui tam matters in state and federal courts. She is experienced in all aspects of litigation, from inception through complex discovery, trial, and post-trial appeal.
Ms. Vetter earned her J.D. from Temple University Beasley School of Law in 2007, where she was a member of the Temple Political & Civil Rights Law Review. She received her B.S. in International Business and Political Philosophy, magna cum laude, from Elizabethtown College in 2004.
Ms. Vetter was selected to the 2015-2016 Pennsylvania Super Lawyers Rising Stars list for Business Litigation. She is fluent in English and German.
Carrie L. Vine
Carrie Vine is an associate at Grant & Eisenhofer, where her primary area of practice is representing families and children in birth injury and birth trauma litigation.
Prior to joining G&E, Ms. Vine worked at a well-known medical negligence firm. She has successfully litigated dozens of cases from inception through conclusion, including both settlement and trial. Her genetic training and scientific background provide insight into the medical nuances that arise in medical malpractice cases.
Ms. Vine has been identified as an Emerging Lawyer by Leading Lawyers, a designation granted to the top two percent of lawyers in the early stage of their career. She is a member of the Illinois State Bar Association and the Wisconsin State Bar, and volunteers her legal services to help low income individuals adopt children.
Ms. Vine received her J.D. from Northern Illinois University College of Law, where she was also the Notes & Comments Editor for the Northern Illinois Law Review. She earned her Ph.D. from Pennsylvania State University where she studied human genetics and human variation. She earned her B.S. from the University of Notre Dame studying biological sciences.
James G. Welch
James Welch is an associate at Grant & Eisenhofer, focusing his practice on antitrust litigation.
Prior to joining Grant & Eisenhofer, Mr. Welch worked as a litigation associate at a large Philadelphia-area law firm, where he gained substantial experience in commercial litigation in state and federal court representing companies and governmental organizations involving contracts, consumer protection laws, and products liability in class actions and multidistrict litigation.
Mr. Welch earned his J.D. from the University of Pennsylvania Law School in 2011 where he was a Senior Editor of the Journal of Business Law. He received his B.A., summa cum laude, in
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International Studies from the University of Alabama in 2006, where he was also elected to Phi Beta Kappa.
Mr. Welch is a co-author of “Disclosure of Seed Sets: Required to Cooperate or Protected as Attorney Work Product?” The Legal Intelligencer, February 18, 2014. He is a member of the Philadelphia Bar Association and the National LGBT Bar Association, and represents individuals pro bono for the Support Center for Child Advocates in Philadelphia.
Jing-Li Yu
Jing-Li Yu is an associate at Grant & Eisenhofer where he focuses his practice on securities and corporate litigation. Prior to joining Grant & Eisenhofer, Mr. Yu was a senior associate practicing securities litigation and enforcement at the New York office of an international law firm.
Mr. Yu is a Board member of the 80-20 National Asian American Initiative, headed by S.B. Woo, former Lieutenant Governor of Delaware (1985-89). He speaks Shanghai-Regional Chinese and Mandarin Chinese.
Mr. Yu earned his J.D. (2010) and M.A. (2005) from the University of Chicago. He received his B.A., cum laude, from the University of Pennsylvania in 2001 in Economics, where he was a University Scholar and a National Merit Scholar.
G&E also employs the following staff attorneys: E. Teresa Ahonkhai Joshua E. Alpert Stephen J. Astringer Revital B. Braun Leanne P. Brown-Pasquarello James P.A. Cavanaugh Alice Cho Lee Kerry A. Dustin Cheron D. Everett R. Alexander Gartman Lisa K. Grumbine Laina M. Herbert Morris Ingemason Ann Kashishian Lawrence P. Kempner Edward M. Lilly Maria J. Morinigo Michael A. Morris Kevin M. Nadolny Joseph P. Nearey Raymond F. Schuenemann Kimberly B. Schwarz Tracy L. Sepehriazar
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Shannon T. Somma Charles C. Sweedler
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Selected Institutional Client Representations
G&E has represented or is currently representing a number of institutional investors in major securities fraud actions, shareholder derivative suits, other breach-of-fiduciary-duty cases and related ancillary proceedings around the country. Some of the Firm’s cases include:
(A) In Securities Fraud Litigation:
(1) CellStar
In one of the earliest cases filed after the enactment of PSLRA, the State of Wisconsin Investment Board (“SWIB”) was designated lead plaintiff and G&E was appointed lead counsel in Gluck v. CellStar Corp., 976 F.Supp. 542 (N.D.Tex. 1997). The cited opinion is widely considered the landmark on standards applicable to the lead plaintiff/lead counsel practice under PSLRA. (See, especially, In re Cendant Corp. Litig., 2001 WL 980469, at *40, *43 (3d Cir. Aug. 28, 2001), citing the CellStar case.) After the CellStar defendants’ motion to dismiss failed and a round of discovery was completed, the parties negotiated a $14.6 million settlement, coupled with undertakings on CellStar’s part for significant corporate governance changes as well. With SWIB’s active lead in the case, the class recovery, gross before fees and expenses, was approximated to be 56% of the class’ actual loss claims, about 4 times the historical 14% average gross recovery in securities fraud litigation. Because of the competitive process that SWIB had undertaken in the selection of counsel, resulting in a contingent fee percentage significantly less than the average 31% seen historically, the net recovery to the class after all claims were submitted came to almost 50% of actual losses, or almost 5 times the average net recovery.
(2) Pfizer
G&E is currently class counsel in a certified federal securities class action against Pfizer and certain of its former officers and directors. Plaintiffs are alleging that Pfizer affirmatively misrepresented the cardiovascular safety of its multi-billion- dollar arthritis drugs, Celebrex and Bextra, and actively concealed adverse safety information concerning the products in order to win market share from Merck’s competing Cox-2 drug, Vioxx. In 2004 and 2005, when the truth about the cardiovascular risks of Celebrex and Bextra was finally revealed, Pfizer shareholders collectively lost billions of dollars. Plaintiffs are also alleging that certain former officers and directors of Pfizer illegally sold shares of Pfizer stock during the class period while in possession of material, non-public information concerning the drugs.
The case has been extensively litigated for nearly 10 years, with millions of pages of documents produced and more than 50 depositions taken. A class of investors has been certified by the Court. Further, prior to the beginning of merits discovery, the parties engaged in a Daubert proceeding in which Pfizer argued that there was no scientific basis for a claim that Celebrex and Bextra were
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associated with adverse cardiovascular effects. Both sides submitted extensive expert reports and, after a 5 day trial, the Court completely rejected Pfizer’s challenges to Plaintiffs’ expert testimony. Defendants’ motion for summary judgment was denied in most respects, although the Court held that Pfizer could not be held liable for a few statements made by its co-promoters concerning the drugs. In 2014, however, the Court granted Defendants’ motion to exclude the testimony of Plaintiffs’ expert concerning damages and causation, Professor Daniel Fischel, and thereafter granted summary judgment for Defendants because without Fischel’s testimony, Plaintiffs could not prove damages or loss causation. Plaintiffs appealed to the United States Court of Appeals for the Second Circuit, and on April 12, 2016, the Court of Appeals reversed. The Court of Appeals held that the District Court abused its discretion in excluding Fischel’s testimony and further held that the District Court’s erred in granting summary judgment to Defendants concerning the statements made by Pfizer’s co-promoter. Defendants moved in the Court of Appeals for rehearing en banc. While that motion was pending, the parties agreed on a settlement of the litigation providing for a cash payment by Pfizer of $486 million. The parties then jointly moved, and the Court of Appeals agreed, to hold the rehearing petition in abeyance pending the District Court’s consideration of the proposed settlement. The District Court held a conference on September 13, 2016 to consider whether to grant preliminary approval to the settlement and authorize the transmission of notice of the settlement to class members. The settlement was preliminarily approved on September 16, 2016. In re Pfizer Inc. Securities Litigation, SD-NY, No. 04-9866.
(3) DaimlerChrysler
Florida State Board of Administration was appointed lead plaintiff and G&E co- lead counsel in the PSLRA class action on behalf of shareholders of the former Chrysler Corporation who exchanged their shares for stock in DaimlerChrysler in Chrysler’s 1998 business combination with Daimler-Benz AG which was represented at the time as a “merger of equals.” Shortly before trial, the defendants agree to a $300 million cash settlement, among the largest securities class action settlements since the enactment of the PSLRA. In re DaimlerChrysler Securities Litigation, D. Del., C.A. No. 00-0993.
(4) Oxford Health Plans
Public Employees’ Retirement Association of Colorado (“ColPERA”) engaged G&E to represent it to seek the lead plaintiff designation in the numerous securities fraud actions that were consolidated into In re Oxford Health Plans, Inc., Securities Litig., S.D.N.Y., MDL Docket No. 1222 (CLB). The court ordered the appointment of ColPERA as a co-lead plaintiff and G&E as a co-lead counsel. G&E and its co-leads filed the Consolidated Amended Complaint. Memorandum opinions and orders were entered denying defendants’ motions to dismiss (see 51 F.Supp. 2d 290 (May 28, 1999) (denying KPMG motion) and 187 F.R.D. 133 (June 8, 1999) (denying motion of Oxford and individual director
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defendants)). The case settled for $300 million, another settlement negotiated by G&E that is among the largest settlements since the enactment of the PSLRA.
(5) Dollar General
The U.S. District Court for the Middle District of Tennessee ordered the appointment of Florida State Board of Administration and the Teachers’ Retirement System of Louisiana as lead plaintiffs and G&E as co-lead counsel in a PSLRA and Rule 10b-5 case against the defendant company, its accountants, and individual insiders who allegedly issued false and misleading statements over an alleged 3-year Class Period and failed to disclose adverse facts about the company’s financial results. Settlements were approved involving a cash payment of $162 million from the company and the individual defendants, an additional $10.5 million from Deloitte & Touche, LLP (Dollar General’s accountants), and beneficial governance reforms for Dollar General. In re Dollar General Securities Litigation, M.D. Tenn., No. 3:01-0388, orders dated July 19, 2001 and September 29, 2003.
(6) Just For Feet
G&E represented the State of Wisconsin Investment Board (“SWIB”) in a federal securities class action against certain officers and directors of Just For Feet, Inc., and against Just For Feet’s auditors, in the Northern District of Alabama. That action arose out of the defendants’ manipulation of the company’s accounting practices to materially misstate the company’s financial results. Having been appointed co-lead plaintiff, SWIB, with G&E as its counsel, took primary responsibility for the case. (SWIB v. Ruttenberg, et al., N.D. Ala., CV 99-BU- 3097-S and 99-BU-3129-S, 102 F. Supp. 2d 1280 (N.D. Ala. 2000)). SWIB obtained a policy limits settlement with the individual defendants’ D&O carrier and an additional $7.4 million from Just For Feet’s auditor, for a recovery totaling approximately $32 million.
(7) Waste Management
G&E filed a non-class federal securities action against Waste Management, Inc., its former and current directors, and the company’s accountants in the Northern District of Florida, on behalf of Lens Investment Management, LLC and Ram Trust Services, Inc. The complaint alleged that Waste Management had, over a five-year period, issued financial statements and other public statements that were materially false and misleading due to the defendants’ fraudulent and improper accounting manipulations. G&E also filed non-class actions in Illinois state court, asserting similar claims on behalf of the Florida State Board of Administration (“FSBA”) and the Teachers’ Retirement System of Louisiana. After G&E successfully defeated the defendants’ motions to dismiss FSBA’s complaint in state court, FSBA’s cause of action was transferred to the Northern District of Florida. At the point where there were competing motions for summary judgment pending, G&E successfully negotiated a settlement pursuant to which each plaintiff received several times what it would have received in the class action.
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Florida State Board of Administration, Ram Trust Services, Inc. and Lens Investment Management, LLC v. Waste Management, Inc., et al., N.D.Fla., No. 4:99CV66-WS, amended complaint filed June 21, 1999; and Teachers’ Retirement System of Louisiana v. Waste Management, Inc., et al., Circuit Ct., Cook Co. [Ill.], No. 98 L 06034, complaint filed May 18, 1999.
(8) Total Renal Care
In June 1999, the Louisiana State Employees’ Retirement System and Teachers’ Retirement System of Louisiana were appointed as Lead Plaintiffs in a federal securities class action against Total Renal Care (“TRC”) and certain of its officers and directors, in the U.S. District Court for the Central District of California. G&E served as Plaintiffs’ Lead Counsel. Plaintiffs filed their Corrected Consolidated Amended Complaint against the defendants, alleging, inter alia, that the defendants manipulated TRC’s financial statements so as to materially overstate TRC’s revenues, income and assets and to artificially inflate TRC’s stock price. G&E negotiated a settlement requiring TRC’s payment of $25 million into a settlement fund for the class and the company’s adoption of certain internal corporate governance policies and procedures designed to promote the future accountability of TRC’s management to its stockholders. At the time of the settlement, this amount represented 33% of the value of the Company’s shares. In re Total Renal Care Securities Litigation, C.D. Cal., Master File No. CV-99- 01745 CBM.
(9) Safety-Kleen
G&E was sole lead counsel for the plaintiffs in a federal securities class action and a series of related individual actions against former officers, directors, auditors and underwriters of Safety-Kleen Corporation, who are alleged to have made false and misleading statements in connection with the sale and issuance of Safety-Kleen bonds. In re Safety-Kleen Corp. Bondholders Litig., D.S.C., No. 3:00-CV-1145-17, consolidated complaint filed January 23, 2001. In March of 2005, after a jury had been selected for trial, the auditor defendant settled with the class and individual claimants for $48 million. The trial then proceeded against the director and officer defendants. After seven weeks of trial, the director defendants settled for $36 million, and the court entered judgment as a matter of law in favor of the class and against the company’s CEO and CFO, awarding damages of $192 million.
(10) Styling Technology Corporation
G&E represented funds managed by Conseco Capital Management, Inc., Credit Suisse Asset Management, Pilgrim American Funds and Oppenheimer Funds, Inc. in a securities action brought in May 2001, asserting both federal (1933 Act) and state claims brought in the Superior Court of California. The suit alleged that certain former officers, as well as the independent auditors, of Styling Technology Corporation made false and misleading statements in connection with the sale and issuance of Styling Technology bonds. Styling Technology filed for bankruptcy
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protection under Chapter 11 in August 1999. In October 2000, discovery of accounting irregularities and improperly recognized revenue forced the Company to restate its financial statements for the years 1997 and 1998. Plaintiffs, owning $66.5 million of the total $100 million in bonds sold in the offering, settled the case for a recovery representing approximately 46% of the losses suffered by the client funds that they manage. Franklin High Income Trust, et al. v. Richard R. Ross, et al., Cal. Super., San Mateo Co. [Calif.], Case No: 415057, complaint filed November 28, 2000.
(11) Tyco
G&E served as co-lead counsel representing co-lead plaintiffs Teachers’ Retirement System of Louisiana and Louisiana State Employees’ Retirement System in a securities class action against Tyco International Ltd. and PricewaterhouseCoopers LLP. The complaint alleged that the defendants, including Tyco International, Dennis Kozlowski, and other former executives and directors of Tyco and PricewaterhouseCoopers, made false and misleading public statements and omitted material information about Tyco’s finances in violation of Sections 10(b), 14, 20A and 20(a) of the Securities Exchange Act of 1934. Tyco agreed to fund $2.975 billion in cash to settle these claims, representing the single largest payment from any corporate defendant in the history of securities class action litigation. PricewaterhouseCoopers also agreed to pay $225 million to settle these claims, resulting in a total settlement fund in excess of $3.2 billion.
(12) Global Crossing
Ohio Public Employees’ Retirement System and the Ohio Teachers’ Retirement System were appointed lead plaintiff and G&E was appointed sole lead counsel in a securities class action against Global Crossing, Ltd. and Asia Global Crossing, Ltd. In re Global Crossing, Ltd. Securities & “ERISA” Litig., MDL Docket No. 1472. In November 2004, the Court approved a partial settlement with the Company’s former officers and directors, and former outside counsel, valued at approximately $245 million. In July 2005, the Court approved a $75 million settlement with the Citigroup-related defendants (Salomon Smith Barney and Jack Grubman). In October 2005, the Court approved a settlement with Arthur Andersen LLP and all Andersen-related defendants for $25 million. In October 2006, the Court approved a $99 million settlement with various financial institutions. In total, G&E recovered $448 million for investors in Global Crossing.
(13) Telxon Corporation
G&E filed a federal securities and common law action against Telxon Corporation, its former officers and directors and its accountants in the Northern District of Ohio on behalf of Wyser-Pratte Management Co., Inc., an investment management firm. Following mediation, G&E negotiated a settlement of all claims. Wyser-Pratte Management Co., Inc. v. Telxon Corp., et al., N.D. Ohio, Case No. 5:02CV1105.
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(14) Hayes Lemmerz
G&E served as lead counsel to plaintiffs and class members who purchased or acquired over $1 billion in bonds issued by Hayes Lemmerz International, Inc. G&E negotiated a settlement worth $51 million. Pacholder High Yield Fund, Inc. et al. v. Ranko Cucoz et al., E.D. Mich., C.A. No. 02-71778.
(15) Asia Pulp and Paper
On behalf of bondholders of various subsidiaries of Indonesian paper-making giant Asia Pulp and Paper (“APP”), G&E filed an action alleging that the bondholders were defrauded by APP’s financial statements which were inflated by nearly $1 billion in fictitious sales. Defendants’ motions to dismiss were denied. Franklin High Income Trust, et al. v. APP Global Ltd., et al., N.Y. Sup. Ct., Trial Div., Index No. 02-602567. The matter was resolved through a confidential settlement.
(16) Alstom
Louisiana State Employees’ Retirement System was appointed as co-lead plaintiff and G&E was appointed co-lead counsel in a class action against Alstom SA, a French corporation engaged in power generation, transmission and distribution in France. The suit alleges that Alstom and other defendants made false and misleading statements concerning the growth and financial performance of its transportation subsidiary. G&E achieved a settlement in the amount of $6.95 million. In re Alstom SA Sec. Litig., S.D.N.Y. 03-cv-6595.
(17) Parmalat
G&E was co-lead counsel in this securities class action arising out of a multi- billion dollar fraud at Parmalat, which the SEC described as “one of the largest and most brazen corporate financial frauds in history.” Settlements exceeding $110 million were reached. In re Parmalat Sec. Litig., S.D.N.Y. 04-MDL-1653.
(18) Marsh & McLennan
G&E was co-lead counsel for the class of former Marsh & McLennan shareholders in this federal securities class action alleging that the company, its officers, directors, auditors, and underwriters participated in a fraudulent scheme involving, among other things, bid-rigging and secret agreements to steer business to certain insurance companies in exchange for “kick-back” commissions. After five years of litigation, G&E achieved a $400 million settlement on behalf of the class. In re Marsh & McLennan Companies, Inc. Sec. Litig., S.D.N.Y. 04-cv- 8144.
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(19) Hollinger International
G&E was co-lead counsel in this securities class action arising out of a company scandal at Hollinger International, Inc. which involves payment of millions of dollars to certain executives, including the company’s former CEO, Lord Conrad Black, relating to sales of company assets. G&E negotiated a settlement with Hollinger in the amount of $37.5 million. In re Hollinger International Inc. Securities Litigation, N.D. Ill. 04-C-0834.
(20) General Motors
G&E served as co-lead counsel in a securities class action against GM, arising from alleged false statements in GM’s financial reports. After about two and a half years of litigation, a settlement was reached with GM for $277 million, with GM’s auditor, Deloitte & Touche contributing an additional $26 million. The combined $303 million settlement ranked among the largest shareholder recoveries of 2008. In re General Motors Corp. Sec. Litig., E.D. Mich., MDL No. 1749.
(21) Delphi
Delphi is an automotive company that was spun off of General Motors. The company failed as a stand-alone entity, but concealed its failure from investors. G&E’s client, one of the largest pension funds in the world, served as a lead plaintiff, and G&E served as co-lead counsel in this securities class action, which produced settlements totaling $325 million from Delphi, its auditor and its director and officers liability insurer. In re Delphi Corporation Securities Derivative & ERISA Litigation, E.D. Mich., MDL No. 1725.
(22) Refco
A mere two months after going public, Refco admitted that its financials were unreliable because the company had concealed that hundreds of millions of dollars of uncollectible receivables were owed to the company by an off-balance sheet entity owned by the company’s CEO. G&E served as a co-lead counsel and G&E’s client, PIMCO, was a co-lead plaintiff. The case resulted in recoveries totaling $422 million for investors in Refco’s stock and bonds (including $140 million from the company’s private equity sponsor, over $50 million from the underwriters, and $25 million from the auditor). In re Refco, Inc. Securities Litigation, S.D.N.Y., No. 05 Civ. 8626.
(23) Sprint
G&E represented lead plaintiff institutional investor Carlson Capital, L.P. in this class action suit against Sprint Corporation and its former CEO and directors for breach of fiduciary duty in the consolidation of two separate tracking stocks. In December 2007, a $57.5 million settlement was approved. In re Sprint Corporation Shareholder Litigation, D. Kan., No. 04 CV 01714.
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(B) In Derivative and Other Corporate Litigation:
(1) Digex
This case resulted in a settlement of over $400 million, the largest reported settlement in the history of Delaware corporate litigation. G&E represented the lead plaintiff, TCW Technology Limited Partnership, in alleging that Digex, Inc.’s directors and majority stockholder (Intermedia, Inc.) breached their fiduciary duties in connection with WorldCom’s proposed $6 billion acquisition of Intermedia. Among other issues, WorldCom was charged with attempting to usurp a corporate opportunity that belonged to Digex and improperly waiving on Digex’s behalf the protections of Delaware’s business combination statute. Following G&E’s argument on a motion to preliminarily enjoin the merger, the Court issued an opinion declining to enjoin the transaction but acknowledging plaintiffs’ likelihood of success on the merits. In re Digex, Inc. Shareholders Litigation, C.A. No. 18336, 2000 WL 1847679 (Del. Ch. Dec. 13, 2000). The case settled soon thereafter.
(2) UnitedHealth Group
G&E represented the Ohio Public Employees Retirement System, State Teachers Retirement System of Ohio, and Connecticut Retirement Plans and Trust Funds as lead plaintiffs in a derivative and class action suit in which G&E successfully challenged $1.2 billion in back-dated options granted to William McGuire, then- CEO of health care provider UnitedHealth Group. This was among the first – and most egregious – examples of options backdating. G&E’s case produced a settlement of $922 million, the largest settlement in the history of derivative litigation in any jurisdiction. In re UnitedHealth Group Inc. Shareholder Derivative Litig., C.A. No. 06-cv-1216 (D. Minn.)
(3) AIG
In what was, at the time, the largest settlement of derivative shareholder litigation in the history of the Delaware Chancery Court, G&E reached a $115 million settlement in a suit against former executives of AIG for breach of fiduciary duty. The case challenged hundreds of millions of dollars in commissions paid by AIG to C.V. Starr & Co., a privately held affiliate controlled by former AIG Chairman Maurice “Hank” Greenberg and other AIG directors. The suit alleged that AIG could have done the work for which it paid Starr, and that the commissions were simply a mechanism for Greenberg and other Starr directors to line their pockets. Teachers’ Retirement System of Louisiana v. Greenberg, et al., C. A. No. 20106-VCS (Del. Ch.).
(4) Genentech
When Swiss healthcare company Roche offered to buy out biotech leader Genentech Inc. for $43.7 billion, or $89 per share, G&E filed a derivative claim
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on behalf of institutional investors opposed to the buyout. With the pressure of the pending litigation, G&E was able to reach a settlement that provided for Roche to pay $95 per share, representing an increase of approximately $3 billion for minority shareholders. In re Genentech, Inc. Shareholders Litig., C.A. No. 3911-VCS (Del. Ch.).
(5) Willamette
In January 2002, at the request of Wyser-Pratte Management Co., Inc. and others, G&E filed a shareholder derivative action in Oregon state court claiming that the board of Willamette Industries, Inc. breached its fiduciary duties by attempting to cause Willamette to acquire the asbestos-ridden building products division of Georgia-Pacific Company as part of a scorched-earth effort to defeat a hostile takeover of Willamette by its chief competitor, Weyerhaeuser Company. G&E obtained an expedited hearing on its motion for a preliminary injunction and obtained an agreement from Willamette at the hearing not to consummate any deal with Georgia-Pacific without providing prior notice to G&E. Almost immediately thereafter, and after years of fighting against Weyerhaeuser’s take- over attempts, the Willamette board relented and agreed to sell the company to Weyerhaeuser. Wyser-Pratte Management Co., Inc. & Franklin Mutual Advisors v. Swindells, et al., No. 0201-0085 (Ore. Cir. Ct.).
(6) Medco Research
In January 2000, G&E filed a shareholder derivative action on behalf of State of Wisconsin Investment Board against the directors of Medco Research, Inc. in Delaware Chancery Court. The suit alleged breach of fiduciary duty in connection with the directors’ approval of a proposed merger between Medco and King Pharmaceuticals, Inc. G&E was successful in obtaining a preliminary injunction requiring Medco to make supplemental and corrective disclosures. Because of G&E’s efforts, the consideration to Medco’s stockholders increased by $4.08 per share, or $48,061,755 on a class-wide basis. State of Wisconsin Investment Board v. Bartlett, et al., C.A. No. 17727, 2000 WL 193115 (Del. Ch. Feb. 9, 2000).
(7) Occidental Petroleum
G&E represented Teachers’ Retirement System of Louisiana and served as co- counsel in a shareholders’ derivative suit against the directors of Occidental Petroleum Corporation, challenging as corporate waste the company’s excessive compensation arrangements with its top executives. Filed in California state court, the case settled when the company agreed to adopt California Public Employees’ Retirement System’s model principles of corporate governance and undertook to reconstitute its key
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committees so as to meet the tests of independence under those principles. Teachers’ Retirement System of Louisiana v. Irani et al., No. BC1850009 (Cal. Super.).
(8) Staples, Inc.
On behalf of Teachers’ Retirement System of Louisiana, G&E challenged Staples, Inc.’s proposed “recapitalization” plan to unwind a tracking stock, Staples.com, which it created in 1998. G&E obtained a preliminary injunction against the deal and the deal terms were ultimately altered resulting in a $15-$20 million gain for shareholders. Additional disclosures were also required so that shareholders voted on the challenged transaction based on a new proxy statement with substantial additional disclosures. In re Staples, Inc. Shareholders Litigation, C.A. No. 18784, 2001 WL 640377 (Del. Ch. June 5, 2001).
(9) SFX/Clear Channel Merger
G&E filed a class action on behalf of stockholders of SFX, challenging the merger between SFX and Clear Channel. While the SFX charter required that in any acquisition of SFX all classes of common stockholders be treated equally, the merger, as planned, provided for approximately $68 million more in consideration to the two Class B stockholders (who happened to be the senior executives of SFX) than to the public stockholders. The merger was structured so that stockholders who voted for the merger also had to vote to amend the Charter to remove the non-discrimination provisions as a condition to the merger. G&E negotiated a settlement whereby $34.5 million more was paid to the public stockholders upon closing of the merger. This was more than half the damages alleged in the Complaint. Franklin Advisers, Inc., et al. v. Sillerman, et al., C.A. No. 17878 (Del. Ch.).
(10) Lone Star Steakhouse & Saloon
G&E filed a derivative lawsuit on behalf of California Public Employees’ Retirement System (“CALPERS”) against Lone Star’s former CEO, Jamie Coulter, and six other Lone Star directors. The suit alleged that the defendants violated their fiduciary duties in connection with their approval of the company’s acquisition of CEI, one of Lone Star’s service providers, from Coulter, as well as their approvals of certain employment and compensation arrangements and option repricing programs. Before filing the suit, G&E had assisted in CALPERS in filing a demand for books and records pursuant to Section 220 of the Delaware General Corporation Law. The company’s response to that demand revealed the absence of any documentation that the board ever scrutinized transactions between Lone Star and CEI, that the board negotiated the purchase price for CEI, or that the board analyzed or discussed the repricing programs. In August 2005, the Court approved a settlement negotiated by G&E whereby Lone Star agreed to a repricing of options granted to certain of its officers and directors, payments from certain of the officers and directors related to option grants, and a $3 million payment from Lone Star’s director and officer insurance policy. Lone Star further
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acknowledged that the lawsuit was one of the significant factors considered in its adoption of certain corporate governance reforms. California Public Employees’ Retirement System v. Coulter, et al., C.A. No. 19191 (Del. Ch.).
(11) Siebel
The issue of excessive executive compensation has been of significant concern for investors, yet their concerns have remained largely unaddressed due to the wide discretion afforded corporate boards in establishing management’s compensation. G&E effected a sea change in the compensation policies of Siebel Systems, a leading Silicon Valley-based software developer long considered to be an egregious example of executive compensation run amok, and caused Thomas Siebel, the company’s founder and CEO, to cancel 26 million options with a potential value of $54 million. Since the company’s founding in 1996, Siebel Systems had paid Mr. Siebel nearly $1 billion in compensation, largely in the form of lavish stock options that violated the shareholder-approved stock option plan. In addition, the company had paid its directors millions of dollars for their service on the board, also in the form of stock options, at levels exponentially higher than that paid to directors on the boards of similar companies. G&E, on behalf of Teachers’ Retirement System of Louisiana, commenced a derivative action challenging the company’s compensation practices in September of 2002 even though a prior, similar lawsuit had been dismissed. Following a hard-fought and acrimonious litigation, G&E successfully negotiated a settlement that, in addition to the options cancellation, included numerous corporate governance reforms. The company agreed to, inter alia, restructure its compensation committee, disclose more information regarding its compensation policies and decisions, cause its outside auditor to audit its option plans as part of the company’s annual audit, and limit the compensation that can be paid to directors. The Siebel Systems settlement generated considerable favorable press in the industry, as investors and compensation experts anticipated that the reforms adopted by Siebel Systems could affect how other companies deal with compensation issues. Teachers’ Retirement System of Louisiana v. Thomas M. Siebel, et al., C. A. No. 425796 (Cal. Super.).
(12) HealthSouth Corporation
G&E filed a derivative and class action lawsuit on behalf of Teachers’ Retirement System of Louisiana against HealthSouth Corporation, its auditors, certain individual defendants, and certain third parties seeking, inter alia, an order forcing the HealthSouth board of directors to hold an annual shareholder meeting for the purpose of electing directors, as no such meeting had been held for over thirteen months. Following a trial, G&E negotiated a settlement of part of its claims, pursuant to which five of the defendant directors who were alleged to have engaged in improper self-dealing with the company agreed to resign and be replaced by directors selected by a committee comprised in part by institutional investors of HealthSouth. Teachers’ Retirement System of Louisiana v. Scrushy, Del. Ch., C.A. No. 20529 (March 2, 2004).
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(13) NYSE/Archipelago
G&E served as co-lead counsel in a class action in New York state court, brought on behalf of a class of seat holders of the New York Stock Exchange (“NYSE”) challenging the proposed merger between the NYSE and Archipelago Holdings, LLC. The complaint alleged that the terms of the proposed merger were unfair to the NYSE seat holders, and that by approving the proposed merger, the NYSE board of directors had violated their fiduciary duties of care, loyalty and candor, because the transaction was the result of a process that was tainted by conflicts of interest and the directors failed adequately to inform themselves of the relevant facts. The court denied the defendants’ motion to dismiss, and after expedited discovery, including over 30 depositions in a five week period, a preliminary injunction evidentiary hearing was held, in which plaintiffs sought to postpone the vote on the merger until a new, current fairness opinion was obtained from an independent financial advisor. On the second day of the hearing, the defendants agreed to the relief being sought, namely that they would obtain a new, current fairness opinion from an independent financial advisor. In re New York Stock Exchange/Archipelago Merger Litig., No. 601646/05 (Sup. Ct. N.Y. Co.)
(14) Caremark / CVS
G&E represented institutional shareholders in this derivative litigation challenging the conduct of the board of directors of Caremark Rx Inc. in connection with the negotiation and execution of a merger agreement with CVS, Inc., as well as that board’s decision to reject a competing proposal from a different suitor. Ultimately, through the litigation, G&E was able to force Caremark’s board not only to provide substantial additional disclosures to the public shareholders, but also to renegotiate the terms of the merger agreement with CVS to provide Caremark shareholders with an additional $3.19 billion in cash consideration and to ensure Caremark’s shareholders had statutory appraisal rights in the deal. Louisiana Municipal Police Employees’ Retirement System, et al. v. Crawford, et al., C.A. No. 2635-N (Del. Ch.).
(15) AIG
G&E achieved a settlement of derivative claims against former American International Group, Inc. (“AIG”) CEO Hank Greenberg and other officers of the insurer in connection with a well-documented bid-rigging scheme used to inflate the company’s income. The scheme ņ which included an array of wrongful activities, such as sham insurance transactions intended to deceive shareholders and illegal contingent commissions which amounted to kickbacks to obtain business ņ caused billions of dollars' worth of damage to AIG, and ultimately led to the restatement of years of financial statements. In approving a settlement that returned $90 million to AIG, the Court said the settlement was “an incentive for real litigation” with “a lot of high-quality lawyering.” In re American International Group, Inc., Consolidated Derivative Litigation. Delaware Chancery Court, 769-VCS
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(16) Del Monte Foods
G&E served as lead counsel in shareholder litigation in which the Firm obtained an $89.4 million settlement against Del Monte Foods Co. and Barclays Capital. On February 14, 2011, the Delaware Chancery Court issued a ground-breaking order enjoining not only the shareholder vote on the merger, but the merger agreement’s termination fee and other mechanisms designed to deter competing bids. As a result of plaintiff’s efforts, the Board was forced to conduct a further shopping process for the company. Moreover, the opinion issued in connection with the injunction has resulted in a complete change on Wall Street regarding investment banker conflicts of interests and company retention of investment bankers in such circumstances. In re Del Monte Shareholder Litigation, C.A. No. 6027-VCL (Del. Ch).
(C) In Securities Class Action Opt-Out Litigation
(1) AOL Time Warner, Inc.
G&E filed an opt-out action against AOL Time Warner, its officers and directors, auditors, investment bankers and business partners. The case challenged certain transactions entered by the company to improperly boost AOL Time Warner’s financials. G&E was able to recover for its clients more than 6 times the amount that they would have received in the class case.
(2) BankAmerica Corp.
G&E filed an individual action seeking to recover damages caused by the defendants’ failure to disclose material information in connection with the September 30, 1998 merger of NationsBank Corporation and BankAmerica Corporation. G&E was preparing the case for trial when it achieved a settlement whereby the firm’s client received more than 5 times what it would have received in the related class action. Those proceeds were also received approximately one year earlier than the proceeds from the class action settlement.
(3) Bristol-Myers Squibb
G&E filed an opt-out action against Bristol-Myers Squibb, certain of its officers and directors, its auditor, and Imclone, Inc., alleging that Bristol-Myers had falsified billions of dollars of revenue as part of a scheme of earnings management. While the federal class action was dismissed and eventually settled for only 3 cents on the dollar, G&E’s action resulted in a total settlement representing approximately 10 times what the firm’s clients likely would have received from the class action.
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(4) Qwest Communications
G&E filed an individual action against Qwest, its accountant (Arthur Andersen LLP), Solomon Smith Barney, and current and former officers and directors of those companies. The case alleged that Qwest used “swap deals” to book fake revenue and defraud investors. G&E was able to recover for its clients more than 10 times what they would have recovered had they remained members of the class.
(5) WorldCom
G&E filed an opt-out action against former senior officers and directors of WorldCom, including former CEO Bernard Ebbers, and Arthur Andersen LLP (WorldCom’s former auditor), among others. The case stemmed from the widely-publicized WorldCom securities fraud scandal that involved false and misleading statements made by the defendants concerning WorldCom’s financials, prospects and business operations. G&E recovered for its clients more than 6 times what they would have received from the class action.
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Exhibit J
Part 1 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 2 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 3 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 4 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 5 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 6 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 7 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 8 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 9 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 10 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 11 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 12 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 13 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 14 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 15 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 16 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 17 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 18 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 19 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 20 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 21 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 22 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 23 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 24 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 25 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 26 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 27 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 28 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-10 Filed 11/11/16 Page 29 of 29 Case 1:04-cv-09866-LTS-HBP Document 713-11 Filed 11/11/16 Page 1 of 16
Exhibit J
Part 2 Case 1:04-cv-09866-LTS-HBP Document 713-11 Filed 11/11/16 Page 2 of 16 Case 1:04-cv-09866-LTS-HBP Document 713-11 Filed 11/11/16 Page 3 of 16 Case 1:04-cv-09866-LTS-HBP Document 713-11 Filed 11/11/16 Page 4 of 16 Case 1:04-cv-09866-LTS-HBP Document 713-11 Filed 11/11/16 Page 5 of 16 Case 1:04-cv-09866-LTS-HBP Document 713-11 Filed 11/11/16 Page 6 of 16 Case 1:04-cv-09866-LTS-HBP Document 713-11 Filed 11/11/16 Page 7 of 16 Case 1:04-cv-09866-LTS-HBP Document 713-11 Filed 11/11/16 Page 8 of 16 Case 1:04-cv-09866-LTS-HBP Document 713-11 Filed 11/11/16 Page 9 of 16 Case 1:04-cv-09866-LTS-HBP Document 713-11 Filed 11/11/16 Page 10 of 16 Case 1:04-cv-09866-LTS-HBP Document 713-11 Filed 11/11/16 Page 11 of 16 Case 1:04-cv-09866-LTS-HBP Document 713-11 Filed 11/11/16 Page 12 of 16 Case 1:04-cv-09866-LTS-HBP Document 713-11 Filed 11/11/16 Page 13 of 16 Case 1:04-cv-09866-LTS-HBP Document 713-11 Filed 11/11/16 Page 14 of 16 Case 1:04-cv-09866-LTS-HBP Document 713-11 Filed 11/11/16 Page 15 of 16 Case 1:04-cv-09866-LTS-HBP Document 713-11 Filed 11/11/16 Page 16 of 16 Case 1:04-cv-09866-LTS-HBP Document 713-12 Filed 11/11/16 Page 1 of 15
Exhibit J
Part 3 Case 1:04-cv-09866-LTS-HBP Document 713-12 Filed 11/11/16 Page 2 of 15 Case 1:04-cv-09866-LTS-HBP Document 713-12 Filed 11/11/16 Page 3 of 15 Case 1:04-cv-09866-LTS-HBP Document 713-12 Filed 11/11/16 Page 4 of 15 Case 1:04-cv-09866-LTS-HBP Document 713-12 Filed 11/11/16 Page 5 of 15 Case 1:04-cv-09866-LTS-HBP Document 713-12 Filed 11/11/16 Page 6 of 15 Case 1:04-cv-09866-LTS-HBP Document 713-12 Filed 11/11/16 Page 7 of 15 Case 1:04-cv-09866-LTS-HBP Document 713-12 Filed 11/11/16 Page 8 of 15 Case 1:04-cv-09866-LTS-HBP Document 713-12 Filed 11/11/16 Page 9 of 15 Case 1:04-cv-09866-LTS-HBP Document 713-12 Filed 11/11/16 Page 10 of 15 Case 1:04-cv-09866-LTS-HBP Document 713-12 Filed 11/11/16 Page 11 of 15 Case 1:04-cv-09866-LTS-HBP Document 713-12 Filed 11/11/16 Page 12 of 15 Case 1:04-cv-09866-LTS-HBP Document 713-12 Filed 11/11/16 Page 13 of 15 Case 1:04-cv-09866-LTS-HBP Document 713-12 Filed 11/11/16 Page 14 of 15 Case 1:04-cv-09866-LTS-HBP Document 713-12 Filed 11/11/16 Page 15 of 15 Case 1:04-cv-09866-LTS-HBP Document 713-13 Filed 11/11/16 Page 1 of 45
Exhibit K Case 1:04-cv-09866-LTS-HBP Document 713-13 Filed 11/11/16 Page 2 of 45
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
No. 04-cv-9866 (LTS)(HBP) IN RE PFIZER INC. SECURITIES LITIGATION ECF CASE
DECLARATION OF CHRISTOPHER A. SEEGER IN SUPPORT OF LEAD COUNSEL’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND EXPENSES FILED ON BEHALF OF SEEGER WEISS LLP
I, Christopher A. Seeger, declare as follows:
1. I am a Partner in the law firm of Seeger Weiss LLP (“Seeger Weiss”). I submit this declaration in support of Lead Counsel’s application for an award of attorneys’ fees in connection with services rendered in the above-captioned action (“Action”) from inception through September 16, 2016 (the “Time Period”), as well as for payment of expenses incurred in connection therewith. I have personal knowledge of the matters set forth in this declaration and, if called upon, I could and would testify competently thereto.
2. Seeger Weiss served as science counsel in this case, working at the request and under the authority of Lead Counsel. Among other things, Seeger Weiss identified consulting and testifying expert witnesses, and developed prospective expert analyses and/or potential expert testimony. The experts developed by Seeger Weiss specialized in cardiology/cardiovascular disease, clinical trials, statistics and biostatistics, FDA/regulatory topics, and drug safety. The Firm’s role in connection with Defendants’ early science challenge in the case included presenting these experts at deposition and taking the depositions of particular Defendant’s science experts, and likewise presenting and cross examining various
Class and defense expert witnesses at the ensuing Daubert hearing. Thereafter, the Firm
Case 1:04-cv-09866-LTS-HBP Document 713-13 Filed 11/11/16 Page 3 of 45
remained engaged in the broader general liability discovery in the case and, among other things, took a number of liability depositions of current or former Pfizer witnesses. The Firm further participated in initial settlement communications and mediation efforts. More generally, as the case was prepared for trial, the Firm engaged in the strategy and tactical development of the case for trial, including the preparation and presentation of science- and liability-related expert proofs at trial.
3. The schedule attached hereto as Exhibit 1 is a detailed summary indicating the amount of time spent by the attorneys and professional support staff of my firm who were involved in, and billed ten or more hours to, this Action, and the lodestar calculation for those individuals based on my firm’s current billing rates. For personnel who are no longer employed by my firm, the lodestar calculation is based on the billing rates for such personnel in his or her final year of employment by my firm. The schedule was prepared from contemporaneous daily time records regularly prepared and maintained by my firm. Time expended in preparing this application for attorney’s fees and expenses has been excluded.
4. The hourly rates for the attorneys and professional support staff of my firm included in Exhibit 1 are the same as the regular rates charged for their services in other contingent matters and have been accepted by other federal courts in other class action cases prosecuted by Seeger Weiss.
5. The total number of hours expended on this Action by my firm during the Time
Period is 5,504.30 hours. The total lodestar for my firm for those hours is $3,929,061.50, consisting of $3,523,796.50 for attorneys’ time and $405,265.00 for professional support staff time.
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6. At the request of Lead Counsel and in order to provide the Court with additional detail regarding my firm’s lodestar, Exhibit 2 hereto provides a breakdown of the hours incurred by my firm, and resulting lodestar, for each of the following time categories: (1) work performed between the inception of the case and the Court’s decision rendered on September 4, 2008 regarding Defendants’ Motion for Reconsideration of the Court’s decision on Defendants’
Motion to Dismiss; (2) work performed between September 5, 2008 and the Court’s decision on
March 22, 2010 regarding Defendants’ Daubert motions to exclude expert testimony (related to
Statistical Significance); (3) work performed between March 23, 2010 and Defendants’ initial motion for Summary Judgment filed on July 2, 2012; (4) work performed between July 3, 2012 and the Court’s issuance of its initial Summary Judgment ruling on March 28, 2013; (5) work performed between March 29, 2013 and the Court’s issuance of its second Summary Judgment ruling on July 8, 2014; (6) work performed between July 9, 2014 and the issuance of the Second
Circuit’s appellate opinion on April 12, 2016; and (7) work performed between April 13, 2016 and the Court’s granting of Preliminary Approval to the Settlement on September 16, 2016.
7. My firm’s lodestar figures are based upon the firm’s current billing rates, which rates do not include charges for expense items. Expense items are billed separately and such charges are not duplicated in my firm’s billing rates.
8. As detailed in Exhibit 3 hereto, my firm is seeking payment for a total of
$169,744.02 in expenses incurred in connection with the prosecution of the Action. These expenses are reflected on the books and records of my firm. These books and records are prepared from expense vouchers, check records and other source materials and are an accurate record of the expenses incurred.
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EXHIBIT 1
In re Pfizer Inc. Securities Litigation No. 04-cv-9866 (LTS)(HBP)
SEEGER WEISS LLP
LODESTAR REPORT
Inception through September 16, 2016
NAME HOURS HOURLY AMOUNT RATE PARTNERS Christopher A. Seeger 743.30 985 732,150.50 David R. Buchanan 2,085.3 975 2,033,167.50 Jeffrey S. Grand 612.55 895 548,232.25 Moshe Horn 131.0 850 111,350.00 Stephen A. Weiss 44.4 975 43,290.00
COUNSEL
ASSOCIATES Asa R. Danes 71.75 775 55,606.25
OF COUNSEL
STAFF ATTORNEYS
CONTRACT ATTORNEYS
INVESTIGATION DEPARTMENT
PARALEGALS Amanda B. Karlitz 11.50 235 2,702.50
Case 1:04-cv-09866-LTS-HBP Document 713-13 Filed 11/11/16 Page 7 of 45
Melanie J. Foreman 494.25 165 81,551.25 Somaiya Kibria 1,310.25 245 321,011.25
PROFESSIONAL STAFF
TOTALS: 5,504.30 $ 3,929,061.50
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EXHIBIT 2
In re Pfizer Inc. Securities Litigation No. 04-cv-9866 (LTS)(HBP)
SEEGER WEISS LLP
SUMMARY OF HOURS WORKED BY CATEGORY
Category of Work Date Total Total Range Hours Lodestar Work performed between the 31.00 30,210.00 inception of the case and the Court’s decision rendered on September 4, 2008 regarding Inception- 1 Defendants’ Motion for 9/4/2008 Reconsideration of the Court’s decision on Defendants’ Motion to Dismiss Work performed between 2,419.15 1,931,975.75 September 5, 2008 and the Court’s decision on March 22, 2010 9/5/2008- 2 regarding Defendants’ Daubert 3/22/2010 motions to exclude expert testimony (related to Statistical Significance) Work performed between March 2,616.30 1,652,812.00 23, 2010 and Defendants’ initial 3/23/2010- 3 motion for Summary Judgment 7/2/2012 filed on July 2, 2012 Work performed between July 3, 205.65 105,536.25 2012 and the Court’s issuance of its 7/3/2012- 4 initial Summary Judgment ruling 3/28/2013 on March 28, 2013 Work performed between March 216.70 193,405.00 29, 2013 and the Court’s issuance 3/29/2013- 5 of its second Summary Judgment 7/8/2014 ruling on July 8, 2014 Work performed between July 9, 8.10 7,907.50 2014 and the issuance of the 7/9/2014- 6 Second Circuit’s appellate opinion 4/12/2016 on April 12, 2016 Work performed between April 13, 7.40 7,215.00 2016 and the Court’s granting of 4/13/2016- 7 Preliminary Approval to the 9/16/2016 Settlement on September 16, 2016 TOTALS: 5,504.30 $ 3,929,061.50
Case 1:04-cv-09866-LTS-HBP Document 713-13 Filed 11/11/16 Page 9 of 45
EXHIBIT 3
In re Pfizer Inc. Securities Litigation No. 04-cv-9866 (LTS)(HBP)
SEEGER WEISS LLP
EXPENSE REPORT
CATEGORY AMOUNT Court Fees 48.00 PSLRA Notice Costs On-Line Legal Research* 2,134.01 On-Line Factual Research* 20,000.00 Telephones/Faxes 563.92 Postage & Express Mail 4,519.85 Internal Reproduction Costs 13,035.90 External Reproduction Costs 17,143.86 Out of Town Travel 80,370.77 Working Meals 9,706.77 Court Reporters and Transcripts Deposition/Meeting Hosting Costs 1,797.44 Experts 20,423.50 Contributions to Litigation Fund**
TOTAL EXPENSES: $ 169,744.02
* The charges reflected for on-line research are for out-of-pocket payments to the vendors for research done in connection with this litigation. Online research is billed to each case based on actual time usage at a set charge by the vendor. There are no administrative charges included in these figures.
** The expenses paid from the Litigation Fund held by Lead Counsel are detailed in the Declaration In Support of Lead Counsel’s Motion for an Award of Attorneys’ Fees and Expenses filed on behalf of Grant & Eisenhofer P.A.
Case 1:04-cv-09866-LTS-HBP Document 713-13 Filed 11/11/16 Page 10 of 45
EXHIBIT 4
In re Pfizer Inc. Securities Litigation No. 04-cv-9866 (LTS)(HBP)
SEEGER WEISS LLP
FIRM BIOGRAPHY
Case 1:04-cv-09866-LTS-HBP Document 713-13 Filed 11/11/16 Page 11 of 45
, % % 33" " " 11, " -1-1 "" # % -,,,0 # % ,3-,. %-5-,. (.-.)140',3,, (53/)2/5'5-,, (.-1)120'./,, (.-.)140',355$ (53/)2/5'5/5/$ (.-1)41-'4,.5$ ###&! #!!& Firm Biography
SEEGER WEISS LLP is one of the nation’s leading plaintiffs’ law firms. The Firm currently numbers approximately 20 attorneys operating out of offices in New York City; Newark, NJ; and Philadelphia, PA. It focuses on mass tort and class action litigation, with particular emphasis in the areas of products liability, pharmaceutical injury, consumer protection, environmental and toxic tort, securities fraud, antitrust, insurance, ERISA, employment, and qui tam litigation. The Firm is made up of experienced litigators, including former state and federal prosecutors. Seeger Weiss’s reputation for leadership and innovation has resulted in its appointment to numerous plaintiffs’ steering and executive committees in a variety of multidistrict litigations throughout the United States, and it regularly serves as court-appointed Liaison Counsel in New York and New Jersey federal and state courts.
The Firm’s manifold accomplishments—including favorable jury verdicts for $47.5 million in Humeston v. Merck & Co. (N.J. Super. Ct. Atlantic County); over $10.5 million in Kendall v. Hoffman-La Roche, Inc. (N.J. Super. Ct. Atlantic County); $11.05 million in Owens, et al v. ContiGroup Companies, et al (Mo. Cir. Ct., Jackson County); and $25.16 million in McCarrell v. Hoffman-La Roche, Inc. (N.J. Super. Ct. Atlantic County)—earned it the distinction of being one of only 8 law firms named by the National Law Journal to its exclusive “Plaintiffs’ Hot List,” among numerous awards and recognitions bestowed upon the firm. Building off its successes in the courtroom, the Firm has been at the helm of some of the most notable settlements in recent decades, In re National Football League Players’ Concussion Injury Litigation, for which Seeger Weiss founder Christopher Seeger was appointed as co-lead counsel to NFL players and served as lead negotiator of the settlement, and In re Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation, for which Mr. Seeger served on the Settlement Committee and was one of the lead negotiators:
• The settlement in In re National Football League Players’ Concussion Injury Litigation estimated to be worth $1 billion which includes a Baseline Assessment Program to evaluate the current cognitive state of retired NFL players and provide
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immediate treatment and therapies to qualified players, as well as monetary payments of up to $5 million to certain qualifying diagnoses over the 65 year term of the settlement.
• The $14.7 billion settlement in In re Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation which combines a massive buyback program, paying pre-scandal buyback pricing to eligible owners, as well as billions of dollars to environmental remediation efforts and green vehicle technology.
Mass Torts and Pharmaceutical Litigation
During the past 15 years, Seeger Weiss has emerged as one of the premier mass torts firms in the United States, particularly in the area of pharmaceutical torts. The Firm’s expertise in this area has been recognized by courts throughout the U.S. which have appointed the Firm to numerous plaintiffs’ steering committees in a variety of multidistrict litigations, including, among others:
Vioxx. Seeger Weiss has served at the helm of the nationwide Vioxx litigation since its inception, playing highly prominent roles in both the federal and New Jersey state court litigations against Merck & Co, the manufacturers of the prescription arthritis drug now thought to lead to an increased risk of heart attack and stroke. On April 8, 2005, the Honorable Eldon E. Fallon, who presides over the Vioxx multidistrict litigation in New Orleans, Louisiana, appointed firm partner, Christopher A. Seeger, as Co-Lead of the Plaintiffs' Steering Committee. Additionally, partner David R. Buchanan was appointed Co-Liaison counsel in the New Jersey state Vioxx litigation before the Honorable Carol E. Higbee, J.S.C. In a 2005 class certification ruling involving claims brought on behalf of all third-party payors, including health-maintenance organizations, managed-care organizations, employers and unions, challenging Merck’s advertising practices and pricing policies, Judge Higbee recognized Seeger Weiss’s prominence in Vioxx-litigation in noting that “there is probably no other law firm as knowledgeable about Vioxx.”
In 2007, Mr. Seeger served as Lead Co-Counsel in Humeston v. Merck & Co. in New Jersey Superior Court, Atlantic County. There, he and other Seeger Weiss partners David R. Buchanan, Moshe Horn and Laurence Nassif obtained a $47.5 million jury verdict for the plaintiff for injuries caused by Vioxx—as cited in the “Top 20 Personal Injury Awards of the Year (2007)” published by the New Jersey Law Journal.
Only months after achieving that verdict, Mr. Seeger, along with co-counsel on the Vioxx Negotiating Committee, concluded a $4.85 billion global settlement with Merck, covering more than 45,000 personal injury claims for heart attack, sudden cardiac death, and ischemic stroke. It
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represents the largest “global” settlement of personal injury claims stemming from a pharmaceutical product in U.S. history.
Zyprexa. In 2004, Seeger Weiss partner Christopher Seeger was appointed by the Honorable Jack B. Weinstein of the U.S. District Court for the Eastern District of New York to serve as Liaison Counsel in the multidistrict litigation against Ely Lilly & Co. relating to the anti- psychotic drug Zyprexa. On June 7, 2005, Eli Lilly and Mr. Seeger, on behalf of the Plaintiffs’ Steering Committee, announced a $700 million settlement of over 8,000 Zyprexa claims alleging that Zyprexa caused diabetes and diabetes-related injuries. Mr. Seeger was one of the chief architects and leading negotiators of this landmark settlement. He also took a leading role in negotiating a second-round settlement of $500 million between plaintiffs and Eli Lilly.
Accutane. In 2005, Seeger Weiss partners Christopher Seeger and Dave Buchanan were jointly named to serve on the Plaintiffs’ Steering Committee in connection with consolidated litigation against New Jersey based Hoffman-LaRoche, Inc., involving the company’s acne medication, Accutane. The mass tort litigation, which came before the Honorable Carole E. Higbee in Atlantic County, involved the consolidation of claims throughout the state of New Jersey alleging severe side effects resulting from the use of Accutane, including birth defects; suicidal impulses among young adults; and inflammatory bowel disease (“IBD”), including Chrohn’s disease and ulcerative colitis, a debilitating and life-altering disease with no known cure.
To date, Mr. Buchanan—who, with Seeger Weiss partner Christopher Seeger, served as liaison counsel for the New Jersey coordinated proceedings in the Accutane litigation—has served as co-trial counsel in the three cases tried in New Jersey that involved Accutane-related injuries, all of which resulted in verdicts for the Plaintiff. One, McCarrell v. Hoffman-La Roche, Inc., in New Jersey Superior Court, Atlantic County, resulted in a $25.16 million verdict for the Plaintiff, an Alabama resident who suffered IBD from using Accutane. Seeger Weiss partner Michael Rosenberg also served on the trial team in that case. Another, Kendall v. Hoffman-La Roche, Inc., in the same court, resulted in a verdict for the plaintiff, a Utah woman who suffered the same ailment from using Accutane, of nearly $10.6 million. The third, a consolidated trial for Mace v. Hoffmann LaRoche Inc., Speisman v. Hoffmann LaRoche Inc., and Sager v. Hoffmann LaRoche Inc., garnered a $12.9 million award from the New Jersey jury in November 2008.
Rezulin. Seeger Weiss plays a major role in products liability actions against Pfizer and Warner Lambert involving Rezulin, a prescription drug used to treat Type II diabetes. The Firm is a court-appointed member of the Executive Committee in the federal suits coordinated by the Judicial Panel on Multidistrict Litigation (“JPML”) before Judge Lewis A. Kaplan in the U.S. District Court for the Southern District of New York. The Firm is also a member of the New Jersey Rezulin Steering Committee in In re: Rezulin Litigation, currently pending before the
3 Case 1:04-cv-09866-LTS-HBP Document 713-13 Filed 11/11/16 Page 14 of 45
Superior Court of New Jersey, Middlesex County. The Firm also successfully represented numerous individuals who commenced personal injury damage actions in various courts throughout the country, all of which claims have been resolved through confidential settlement.
Notably, in March 2003, following a six-week jury trial, the Firm achieved a $2 million verdict against Pfizer on behalf of Concepcion Morgado, a Brooklyn resident who sustained liver injury and was hospitalized for 10 days following her Rezulin use. The case was the first and only Rezulin matter to be tried in New York and represented a watershed result in the nationwide Rezulin litigation.
Vytorin and Zetia. Seeger Weiss has taken the lead in Zetia and Vytorin litigation, negotiating a $41.5 million settlement with Merck & Co., Inc and Schering-Plough Corporation, which resolved nationwide fraud claims that arose from the sale and marketing of the companies’ co-ventured prescription drugs. Plaintiffs contend that Merck conspired with Schering-Plough in 2003 to combine Zocor—an enormously popular statin cholesterol drug, with Zetia—another widely used non-statin cholesterol drug, under the new name Vytorin. The two companies began marketing Vytorin as more effective in reducing cholesterol than Zetia and Zocor alone, as well as being effective in blocking arterial plaque that can cause heart attack and stroke. The lawsuits allege that the companies have known since 2006 that Vytorin was no more effective than the generic version of Zocor in blocking plaque, despite being effective in lowering LDL, or “bad” cholesterol. In failing to disclose these facts, Merck and Schering-Plough were allegedly able to cause consumers and third-party purchasers to pay significantly higher prices than the cost of equally effective alternatives available on the market.
Founding partners Christopher A. Seeger and Stephen A. Weiss served as Co-Liaison Counsel for the Plaintiffs’ Executive Committee for In Re Vytorin/Zetia Marketing, Sales Practices and Products Liability Litigation, the coordinated group of 140 actions against the two pharmaceutical companies, located in Newark before the Honorable Dennis M. Cavanaugh of the United States District Court of New Jersey. Seeger acted as the principal negotiator for the Plaintiffs’ Executive Committee, aided by Weiss and Seeger Weiss partner Diogenes P. Kekatos.
Gadolinium. In 2006, the FDA issued a Public Health Advisory concerning a link between Gadolinium-based contrast agents (“GBCAs”) used during MRI and related imaging procedures, and a debilitating and potentially fatal skin disorder known as Nephrogenic Systemic Fibrosis or Nephrogenic Fibrosing Dermopathy (“NSF/NFD”). By late 2006, the FDA noted that it had received reports of 90 patients that developed NSF/NFD within 2 days to 18 months after exposure to such contrast agents.
The Firm led the litigation against multiple defendant manufacturers of GBCAs used in these imaging procedures on behalf of injured patients. In February 2008, the Judicial Panel on
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Multidistrict Litigation ordered all federal actions involving personal injuries stemming from Gadolinium-based contrast dyes centralized in the U.S. District Court for the Northern District of Ohio, before the Honorable Dan Aaron Polster. Judge Polster appointed Seeger Weiss partner Christopher Seeger to serve on the Plaintiffs’ Steering Committee and Executive Committee for the MDL; partner Dave Buchanan serves as court-appointed Federal-State Liaison Counsel for the litigation. Also in 2008, Seeger Weiss partners Christopher Seeger and Dave Buchanan were appointed Liaison Counsel in connection with the consolidated mass tort litigation against manufacturers of GBCAs in New Jersey, before the Honorable Jamie D. Happas of the Superior Court of New Jersey, Middlesex County. Following extensive discovery, partner Christopher Seeger led negotiations that led to the initial case resolutions, and subsequently formed the settlement framework for resolution of the broader litigation.
Fosamax. In August 2006, the JPML ordered all federal litigation involving Merck & Co.’s prescription medication Fosamax—used in the treatment of osteoporosis but found to have caused a number of adverse effects, in particular, osteonecrosis (death of bone tissue)— centralized in the U.S. District Court for Southern District of New York (Manhattan), before the Honorable John F. Keenan. Seeger Weiss partner Christopher A. Seeger has been appointed Plaintiffs’ Liaison Counsel, and also served on the Executive Committee of the Plaintiffs’ Steering Committee in the multidistrict litigation. This litigation is ongoing.
Mirena. In April 2013, the JPML ordered all federal litigation involving Bayer’s intrauterine (“IUD”) device marketed under the brand name Mirena—an IUD containing a hormone, levonorgestrel, designed to be implanted in the uterus for as long as five years— —centralized in the U.S. District Court for Southern District of New York (in White Plains, New York), before the Honorable Cathy Seibel. Meanwhile, many hundreds of lawsuits in the New Jersey state courts have been centralized before the Honorable Brian R. Martinotti in Bergen County. The Plaintiffs allege that Bayer failed to warn about the longer-term risks of migration of the Mirena device and perforation of the user’s uterus, having warned about the risk of migration and perforation only at the time of device’s insertion. Other complications that Bayer failed to warn about include migration and embedment of the device in the uterus. Seeger Weiss partners Diogenes P. Kekatos and David R. Buchanan have been appointed as Plaintiffs’ Liaison Counsel in the federal multidistrict and New Jersey state multicounty Mirena litigation, respectively. This litigation is ongoing.
Yaz, Yasmin, and Ocella. In November 2009, Seeger Weiss partner Christopher A. Seeger was named to the Plaintiff’s Steering Committee in the Yasmin and YAZ (Drospirenone) Marketing, Sales Practices and Products Liability Litigation (MDL No. 2100) by Judge David R. Herndon, United States District Court, Southern District of Illinois. Thousands of lawsuits were filed against Bayer Healthcare, the pharmaceutical giant that produces Yaz and Yasmin, asserting severe health complications resulting from taking these birth control pills. The
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litigation was centralized in the Southern District of Illinois in October 2009 by order of the United States Judicial Panel on Multidistrict Litigation. These cases were ultimately resolved in settlements totaling more than $2 billion.
Actos. In November 2012, founding partner Christopher A. Seeger was appointed to the Multidistrict Litigation (MDL) Actos Product Liability Plaintiffs’ Steering Committee. In June 2011, a European study found that among a group of 155,000 patients, one fifth of those who developed bladder cancer had been taking the drug Actos. However, the health warnings that accompanied the prescription failed to alert users of this risk. There were more than 9,000 lawsuits against defendant Takeda Pharmaceuticals in the United States District Court, Western District of Louisiana. In 2015, a settlement of these claims was announced, totaling in excess of $2 billion.
Other Pharmaceutical and Medical Device Prosecutions
Depuy Orthopaedics, Inc ASR Hip Implant Products. Seeger Weiss partner Christopher A. Seeger was named to the Plaintiffs’ Executive Committee in the In Re: Depuy Orthopaedics, Inc ASR Hip Implant Products (MDL No. 2197) by Judge David A. Katz, United States District Court, Northern District of Ohio in January 2011. More than a hundred lawsuits have been filed against Johnson & Johnson, the pharmaceutical giant that is also the parent company of Depuy Orthopaedics, Inc. In August 2010, Johnson & Johnson and its medical device subsidiary, DePuy Orthopaedics, recalled two acetyabular cups hip replacement systems because of their high rate of failures, after a study from the National Joint Registry of England and Wales showed that 1 out of every 8 patients (12%-13%) who had the devices had to undergo revision surgery within five years of receiving it. By the time of the recall, more than 93,000 patients worldwide were fitted with an ASR hip implant. Roughly a third of those were patients in the United States. This litigation was centralized in the North District of Ohio in December 2010 by order of the United States Judicial Panel on Multidistrict Litigation.
PPA. Seeger Weiss remains actively involved in litigation against numerous manufacturers of pharmaceutical products containing PPA (phenylpropanolamine), until 2000 an ingredient in virtually every over-the-counter cold medication and many appetite suppressant products. The Firm serves on the Plaintiffs’ Steering Committee in the federal suits consolidated by the JPML in the U.S. District Court for the Western District of Washington, and as the court- appointed Liaison Counsel in the New York PPA actions coordinated before Judge Helen Freedman. In 2003, the Firm was one of the lead negotiators of a nationwide settlement agreement with the manufacturers of Dexatrim, a leading over-the-counter appetite suppressant that until 2000 contained PPA. The settlement covers the claims of all individuals who suffered stroke-related injuries resulting from the ingestion of PPA-containing Dexatrim.
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Propulsid. Seeger Weiss held national leadership positions in pharmaceutical products liability litigation against Johnson & Johnson and Janssen Pharmaceutical, Inc., the manufacturers of Propulsid—a prescription drug used to treat nocturnal heartburn. Seeger Weiss LLP was a member of the court-appointed Plaintiffs’ Steering Committees in both the federal litigation, which have been consolidated by the JPML in the Eastern District of Louisiana, and in the statewide consolidated actions in Middlesex County, New Jersey. The Firm served as counsel to numerous individuals who have commenced personal injury damage actions in various courts throughout the country. These cases were resolved in two separate settlements in 2004 and 2005, totaling $105 million.
Guidant and Medtronic Heart Device Litigations. Seeger Weiss served as a court- appointed member of the Plaintiffs’ Steering Committee in multidistrict litigation in the U.S. District Court for the District of Minnesota against Medtronic and Guidant involving defective heart defibrillators and pacemakers. The heart devices at issue are surgically implanted in persons who have a type of heart disease that creates the risk of a life-threatening heart arrhythmia (abnormal rhythm). Both Medtronic and Guidant had disclosed defects in certain of their defibrillators that caused the devices to fail without warning. The Firm filed one of the first actions in the U.S. against Guidant on behalf of patients.
Other Pharmaceutical Products. In addition to aforementioned pharmaceutical, the Firm serves or has served as counsel in numerous lawsuits in state and federal courts throughout the country brought by individuals who have suffered personal injury or death resulting from the use of various pharmaceutical or medical device products, including Baycol, Celebrex, Elidel, Ephedra, Fen-Phen, Kugel Mesh hernia patches, Lamisil, Neurontin, OxyContin, Ortho Evra birth control patches, Protopic, Serevent, Serzone, and Sporanox.
Securities Litigation
Seeger Weiss has emerged as a leading innovator in the realm of securities litigation, with special emphasis on IPO litigation, auction rate securities, securities fraud class action, and, recently, the Bernard Madoff Ponzi scheme. The Firm brought action against some of the largest financial entities in the world, including Goldman Sachs, Morgan Stanley, Credit Suisse, JPMorgan Chase, Bank of America and Merrill Lynch. Significant recent matters include:
In re Pfizer Inc. Securities Litigation (Bextra & Celebrex). This litigation involved claims that Pfizer Inc., withheld information regarding the safety of its prescription pain medications, Bextra and Celebrex. Seeger Weiss, with its vast experience in pharmaceutical litigation, played a significant role in the discovery and preparation for a five-day evidentiary hearing, involving more than eleven experts, as well as the briefing of dispositive motions. A
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preliminary settlement was approved by the United States District Court, Southern District of New York, in August 2016, for $486 million.
Vytorin Litigation. Seeger Weiss served as co-liaison counsel for plaintiffs before the United States District Court of New Jersey (Judge Dennis M. Cavanaugh) in this action against Merck & Co., Inc. and its subsidiary Schering-Plough Corp., involving claims that defendants concealed test results relating to the efficacy of their anti-cholesterol drug Vytorin. In October 2013, the Court approved a $688 million settlement of this action.
In re Initial Public Offering Securities Litigation is one of the largest and most significant coordinated securities fraud prosecutions in United States history. In this coordinated action, Seeger Weiss serves on the Plaintiffs’ Steering Committee and as Co-Chair of the Plaintiffs' Legal Committee. The litigation consists of 310 class actions involving IPOs marketed between 1998 and 2000. The defendants include 310 individual companies and 55 investment bank underwriters, which includes Wall Street’s largest and most well-known investment houses, including Goldman Sachs, Morgan Stanley, and Credit Suisse. The class actions allege that the IPOs were manipulated by the issuers and investment banks to artificially inflate the market price of the securities of those companies by inducing customers to engage in aftermarket “tie-in” agreements in exchange for IPO allocations. The cases further allege that the investment banks extracted significant undisclosed compensation from their customers in exchange for giving them the IPO allocations. The actions are coordinated before Judge Shira A. Scheindlin in the U.S. District Court for the Southern District of New York (Manhattan).
In connection with these actions, the Firm was instrumental in defeating a recusal motion brought by certain of the underwriter-defendants in 2001, and was the principal author of the electronic data preservation protocol that was entered by Judge Scheindlin in the litigation. The Firm was extensively involved in all phases of the litigation, for which as settlement of $586 million was announced in 2009.
The Firm also represents or has represented shareholders in a variety of securities litigations, including those against ATEC Group (E.D.N.Y.); Axonyx (S.D.N.Y.); Bell South (N.D. Ga.); Bradley Pharmaceutical (D.N.J.); Broadcom Corp. (C.D. Ca.); Buca, Inc. (D. Minn.); Cryo-Cell International, Inc. (M.D. Fl.); eConnect, Inc. (C.D. Ca.); FirstEnergy Corp. (N.D. Ohio); Friedman, Billings, Ramsey Group (S.D.N.Y.); Gander Mountain (D. Minn.); Genta (D.N.J.); officers and directors of Global Crossing (C.D. Ca.); Grand Court Lifestyles, Inc. (D.N.J.); Impath (S.D.N.Y.); IT Group Securities (W.D. Pa.); Mattel, Inc. (C.D. Ca); Matrixx Initiatives (D. Ariz.); MBNA (D. Del.); MIIX Group (D.N.J.); Molson Coors Brewing Company (D. Del.); Mutual Benefits Corp. (S.D. Fla.); New Era of Networks, Inc. (M.D.N.C.); Nuance Communications (N.D. Ca.); NVE Corporation (D. Minn.); Omnivision Technologies, Inc. (N.D. Ca.); Par Pharmaceuticals (D.N.J.); Pixelplus, Co. (S.D.N.Y.); Procter & Gamble
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Co. (S.D. Ohio); Priceline.com (D. Conn.); Purchase Pro (S.D.N.Y.); Quintiles Transnational (D. Colo.); Read Rite Corporation (N.D. Ca.); Sagent Technology (N.D. Ca.); Sina Corporation (S.D.N.Y.); The Singing Machine, Inc. (S.D. Fl.); Terayon, Inc. (C.D. Ca.); and Tesoro Petroleum Corp. (E.D. Tex); Viisage Technology, Inc. (D. Mass.), among others.
Madoff Investment Securities Litigation. Seeger Weiss LLP helped lead litigation against Bernard L. Madoff Investment Securities, the engine of Madoff’s $50 billion Ponzi scheme, and has been retained to represent more than $500 million in claims from defrauded shareholders around the world. Madoff’s brand of deception, though similar to a pyramid scheme, proved far more insidious because it relied Madoff’s good standing and the fundamental trust the trading community placed in his abilities. Investors were lead to believe that their investments would be handled competently by Madoff and that their returns would be produced through sound investments. Thousands of investors and institutions have been defrauded by Madoff and his firm.
Consumer Litigation
Seeger Weiss LLP has achieved notable recoveries and currently holds leadership roles in many major consumer class action litigations throughout the country. Among the consumer class action litigations in which Seeger Weiss LLP plays or has played a major role are, in alphabetical order: In re Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation: In the largest consumer automotive industry class action settlement in history, Volkswagen (“VW”) has agreed to create a funding pool of over $10 billion, an amount which is sufficient to allow for buybacks of 100% of the VW and Audi 2.0-liter diesel vehicles in the United States which are equipped with “defeat device” software. This software was designed to allow vehicles to meet emissions standards when undergoing emissions testing, but to bypass emissions controls at all other times and pollute the environment by emitting nitrous oxides at levels up to 40 times higher than when the vehicles are being tested. In addition to the direct monetary benefits to consumers, VW also has agreed to pay $2.7 billion for environmental remediation and to make a $2 billion investment in “green” vehicle technology. The settlements were reached with VW through the efforts of lawyers on behalf of the consumer class, working in conjunction with government lawyers, including those from the Environmental Protection Agency and the Federal Trade Commission. The judge overseeing the Multidistrict litigation centralized in the Northern District of California, the Honorable Charles R. Breyer, pushed the lawyers involved to work diligently and quickly in order to reach the settlements expeditiously (or face a quick trial) in order to meet the ultimate goal of removing the polluting cars from the roads as soon as possible.
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Christopher Seeger was appointed by Judge Breyer to serve on the Plaintiffs’ Steering Committee (“PSC”). He worked closely with court-appointed Lead Counsel, Elizabeth Cabraser, spending countless hours poring over settlement documents and in meetings with VW’s lawyers and the government’s lawyers in order to reach a fair settlement. Indeed, at the Status Conference held on May 24, 2016, Judge Breyer even commented that he had been advised by the Settlement Master that all of the lawyers had “devoted substantial efforts, weekends, nights, and days, and perhaps at sacrifice to your family” in order to reach the proposed settlement. In order to keep the pressure on VW of facing a quick and very public trial, should a settlement not be reached, the counsel on the PSC and the government’s lawyers worked long hours at conducting discovery in order to prepare the case for trial. David Buchanan was one of the counsel on the PSC leading this effort. In addition, TerriAnne Benedetto, Scott George and others spent significant hours on the case, both on the settlement and litigation tracks. At the Preliminary Approval Hearing on July 26, 2016 Judge Breyer determined that the proposed Settlement was preliminarily fair, reasonable and adequate such that it was appropriate to commence the Class Notice process. Following the Fairness Hearing to be held on October 18, 2016, Judge Breyer will decide whether to finally approve the proposed settlements.
In re Armstrong World Industries, Inc.: $7 million settlement achieved in the United States Bankruptcy Court for the District of Delaware after transfer. The Firm represented the State of Connecticut, one of numerous property damage claimants which sought injunctive relief and monetary damages resulting from the presence of Armstrong-manufactured asbestos- containing resilient floor tile and sheet vinyl in residences and buildings throughout the United States.
In re Bridgestone/Firestone, Inc. ATX, ATX II and Wilderness Tires Products Liability Litigation: Seeger Weiss represented Firestone tire owners and purchasers of Ford Explorers equipped with certain models of Firestone tires. Plaintiffs sought damages flowing from design defects that resulted in severe, life-threatening accidents. Specifically, the consumer class sought a tire recall, recovery for the cost of tire replacement, and recovery for the diminution in the value of Ford Explorer vehicles resulting from the subject design defects. Following the filing of a number of federal class actions, the litigations were transferred for pre- trial proceedings to the Federal court in Indianapolis. In those coordinated actions, which the JPML had centralized before the Honorable Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana (Indianapolis), Seeger Weiss served as a member of the Plaintiffs’ Law Committee. Following extensive discovery and motion practice, Plaintiffs achieved a favorable nationwide settlement of their class claims.
Ecker v. Ford: In 2008, the Superior Court of California granted final approval to the class action settlement in this litigation. The settlement provides full cash reimbursement for qualifying parts and labor for all California owners and lessees of Ford Focus vehicles who
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experienced premature front brake wear, including reimbursement for brake pads and rotors. The court had earlier appointed the Firm to act as co-lead counsel in the litigation. Seeger Weiss partner Christopher Seeger and associate Scott Alan George were primarily responsible for the litigation.
IBM Deskstar 75GXP Litigation: The Firm represents statewide classes of purchasers of an IBM manufactured hard disk drive, known as the Deskstar 75GXP, in 9 different state and federal courts throughout the country. The actions include claims for violations of consumer protection statutes and breach of warranty resulting from IBM’s commercial practices in the marketing and sale of hard disk drives that it knew were inherently unreliable and that it knew would fail at epidemically high rates. In August 2003, Judge Ronald Sabraw issued a tentative ruling certifying a California statewide class of purchasers of the 75GXP in Michael Granito v. IBM, pending in California Superior Court in Alameda County. In addition to California, cases are also pending in New Jersey, New York, Florida, Illinois, Connecticut, Ohio, Michigan, and Pennsylvania. The Firm serves as co-lead counsel in these cases.
In re Industrial Life Insurance Litigation: The Firm represents purchasers of industrial life insurance policies who were charged race-based and discriminatory rates. The Firm serves on the Plaintiffs’ Steering Committee in connection with the several cases that have been sent to the Eastern District of Louisiana by the JPML.
Lester v. Percudani: Pending in the U.S. District Court for the Middle District of Pennsylvania. The Firm represents over 170 first-time homeowners who purchased homes at inflated valuations based upon fraudulent appraisals and in violation of federal mortgage lending guidelines. The action includes federal civil RICO and state consumer fraud claims against a group of RICO co-conspirators. In 2008, the district court denied motions for partial summary judgment that had been filed by two of the Defendants (Chase Home Finance LLC and one of its officers), and later denied their motion for reconsideration of that ruling. Following those rulings, the parties entered court-approved mediation, which recently resulted in a settlement that will provide millions of dollars’ worth of relief to the aggrieved homeowners, including substantial mortgage rate reductions.
In re MCI Non-Subscriber Telephone Rates Litigation: $88 million class settlement completed in the United States District Court for the Southern District of Illinois following a transfer to that district by the JPML. Final approval of the class settlement was entered in March 2001 resolving claims brought by class members to recover overcharges arising from MCI’s improper imposition of non-subscriber rates and surcharges on certain of its customers. Seeger Weiss LLP was a member of the Plaintiffs’ Steering Committee and served as Chair of the Discovery Committee.
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Sims v. Allstate and Dorries v. State Farm: Pending in Illinois state court. The Firm serves as co-counsel in these separate class actions, representing automobile policyholders seeking to recover payment for the diminution in value of their vehicles following accidents in which certain types of body damage was sustained. These cases were certified as class actions in December 2000.
Sternberg v. Apple Computer, Inc. and Gordon v. Apple Computer, Inc.: Nationwide settlement completed in California state court. Plaintiffs recovered class-wide damages resulting from Apple’s deceptive advertisements for its iMac and G4 brand computers—specifically the functionality of the DVD playback feature. Seeger Weiss LLP served as co-lead counsel for the classes.
Tennille v. The Western Union Company. Seeger Weiss served as co-Class Counsel in consolidated nationwide class action suits filed in the U.S. District Court for the District of Colorado, alleging that Western Union, in violation of consumer fraud laws, wrongly failed to inform customers who purchased money transfers if a money transfer failed to go through to the intend recipient and that it sat on the funds for years, earning income and administrative fees off them. In many cases, the funds eventually escheated to state governments. Following years of extensive discovery and motion practice, including Western Union’s unsuccessful bid to compel arbitration of the claims, in November 2012, the parties reached a settlement, brokered by the Tenth Circuit’s chief mediator after Western Union’s appeal of the district court’s denial of its motion to compel arbitration. Under the settlement, Western Union agreed to the establishment of a cash fund (valued at over $135 million at the time of final approval of the settlement) for the return to class members of funds not already escheated to states; the payment of interest to those class members whose wire transfer funds had already escheated to a state government; the formation of a process for assisting class members in securing the return of their funds if they have already escheated; the creation of a 7-1/2 year notice plan, whereby Western Union is required to inform customers within 60 days if their wire transfers are unsuccessful; and the undertaking of robust efforts to update customers’ stale contact information. The settlement received final approval from U.S. District Judge John L. Kane in June 2013.
Truth-in-Lending Act Litigation: The Firm served as co-counsel in several dozen proposed nationwide class actions that were filed in 2007 and 2008 in the various federal courts in California against banks and other mortgage lenders, asserting claims under the federal Truth- in-Lending Act (“TILA”), and California consumer fraud statutes and common law. These actions sought recovery of damages as well as equitable relief, including rescission, in connection with highly-deceptive so-called Option Adjustable Rate Mortgage (“ARM”) loans. The loan documents given to Option ARM borrowers failed to adequately disclose to borrowers that the initial “teaser” interest rate of 1%-3% would last only 30 days and that, after that time, the minimum payment specified in the payment schedule would be insufficient to cover even
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monthly interest charges, let alone loan principal. As a result, borrowers who secured these deceptive loans lost equity in their homes and were no longer able to secure the refinancing necessary to get out from under these loans. In several of the lawsuits, the courts sustained the Plaintiffs’ claims against the defendant lenders’ dispositive motions, and several cases resulted in the certification of classes. A number of the suits culminated in settlements providing cash and/or other relief to borrowers. Seeger Weiss partners Christopher A. Seeger, Jonathan Shub, and Diogenes P. Kekatos all played a substantial role in these hard-fought litigations.
In re Vonage Marketing and Sales Practice Litigation: Nationwide settlement proposed in the U.S. District Court for the District of New Jersey. The lawsuit involves Vonage’s promotional “one month free” and “money back guarantee” offers and application of certain charges (disconnection, cancellation and termination fees, and subscription fees despite requests for cancellation), which allegedly violated certain laws. Vonage agreed to pay $4.75 million to fund the settlement, which offers eligible class members reimbursements for certain payments made by Vonage subscribers.
Workers’ Compensation Litigation: The Firm served as co-counsel in proposed class actions brought in thirteen different states against most of the country’s largest workers’ compensation insurance carriers. The actions sought to recover damages on behalf of numerous corporate entities resulting from the inappropriate imposition of “residual market loads.” In 2006, these cases settled for an aggregate amount of $25 million.
In re Zynga Privacy Litigation: Pending in the U.S. District Court for the Northern District of California. The suit accuses Zynga, a Facebook partner and game developer, of deliberately sharing personal data of Facebook users. Zynga breached their own privacy policy, as well as industry standards, which that it "does not provide any Personally Identifiable Information to third-party advertising companies." Partner Jonathan Shub was named Interim Co-Lead Class Counsel in December 2010 by Judge James Ware, United States District Court, Northern District of California.
General Complex Class Action Litigation
Seeger Weiss has long excelled at general complex class action litigation, having achieved major victories in the past and working on several important class action cases in the present, against large agricultural and pharmaceutical corporations.
Bayer CropScience Rice Contamination MDL. The Firm served as a member of the court-appointed Plaintiffs’ Executive Committee in this MDL brought on behalf of national rice- growers who sought to recover damages against Bayer CropScience and numerous parents and affiliates to the value of their rice crops resulting from contamination by LLRICE 601 and
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LLRICE 604, varieties of long-grain rice that have been genetically modified to produce rice crops resistant to glufosinate—the active ingredient in Liberty® Herbicide, another Bayer product. This “glufosinate-tolerant” trait allows growers to spray Liberty® herbicide over the entire crop, killing all weeds without risking any damage to the rice crop. Following revelations in August 2006 and again in March 2007 that U.S. rice crops had been found to be contaminated with these varieties (which, at the time, had not been approved for commercial use), the world’s leading importers of American rice, including the European Union, Japan, and South Korea, quickly announced embargoes of U.S. rice, triggering sharp declines in the market price of U.S. rice. The JPML centralized these actions, and others similar, before the Honorable Catherine D. Perry of the U.S. District Court for the Eastern District of Missouri (St. Louis). Following the district court’s denial of class certification, the cases proceeded to completion of discovery and trial. Following multiple bellwether trials before Judge Perry, both resulting in significant victories for the Plaintiffs, the parties entered into a global settlement totaling $750 million.
In re “StarLink” Corn Products Litigation. Similar to the rice contamination litigation against the Bayer companies, this litigation was centralized by the JPML in the U.S. District Court for the Northern District of Illinois, Eastern Division (Chicago). The U.S. Environmental Protection Agency had licensed “StarLink” brand corn—which had been genetically-modified to create its own insecticidal protein, making it resistant to various corn pests—only for the growing of corn used for animal feed and industrial purposes (such as the growing of corn for manufacturing ethanol), was found to have entered the U.S. food chain. The news swiftly led to Japan and other major overseas buyers of U.S. corn placing embargoes on American corn, and the resulting collapse of the export market for U.S. corn and a sharp decline in the market price of U.S. corn. The Firm was one of four court-appointed co-lead counsel for a class of corn farmers in various corn-belt states against Aventis CropScience USA—the developer of StarLink corn seed (which was later purchased by Bayer AG and became Bayer CropScience, the developer of the genetically-modified rice seeds that are the sources of the rice contamination litigation in which the Firm is currently involved)—and Garst Seed Company, the principal licensee and distributor of the corn seed. In the actions, the corn growers sought damages representing the loss in value of their corn crops due to the improper marketing, handling, and distribution of StarLink corn. In April 2003, following much discovery and the denial of the Defendants’ motion to dismiss the Plaintiffs’ claims, U.S. District Judge James B. Moran gave final approval to a $110 million nationwide settlement of the class claims.
In re Syngenta AG MIR162 Corn Litigation. Similar to the StarLink and LLRICE contamination litigation, the JPML centralized this litigation in the U.S. District Court for the District of Kansas in late 2014. In 2010-11, Syngenta aggressively commercialized genetically- modified corn seeds that, while approved by U.S. government agencies for sale, had not received approval by China, a leading and then ever-growing export market for U.S. corn (expected by the U.S. government to become the largest importer of U.S. corn by 2020). Syngenta aggressively
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commercialized its seed brands containing the MIR162 trait all the while knowing that Chinese approval would not come before this strain entered the U.S. corn supply. In November 2013, the Chinese government announced an embargo of U.S. corn after detecting Syngenta’s strain in U.S. corn shipments. Meanwhile, commodities markets had already begun to feel the impact of the contamination of the U.S. supply. Many thousands of farmers filed suits in federal and state court. Most of the federal actions have been centralized before the Honorable John L. Lungstrum. The MDL Court appointed Seeger Weiss partner Stephen Weiss to the Plaintiffs’ Executive Committee. In September 2010, Judge Lungstrum sustained most of the counts in the Producer Plaintiffs’ Master Complaint in an opinion published at 131 F. Supp. 3d 1177. Extensive discovery had been ongoing in this litigation, in which the Syngenta defendants are represented by Kirkland & Ellis. Recently, the briefing of Plaintiffs’ motion for class certification was completed and a hearing on the motion concluded on September 14, 2016. Seeger Weiss has had extensive involvement in the conduct of discovery, including the defense of class representative and bellwether plaintiff depositions, and a key role in the briefing of the class certification motion.
OxyContin Third-Party Payor Litigation. Seeger Weiss has been appointed co-lead counsel in a proposed class action pending in the U.S. District Court for the Southern District of New York (Manhattan) before the Honorable John G. Koeltl. The litigation against the drug’s maker, Purdue Pharma LLP, involves the marketing and promotion of OxyContin. In 2007, Purdue pled guilty to federal violations of misbranding of OxyContin, for which it was fined over $600 million in criminal and civil penalties. The Firm represents insurance providers and other “third-party payors,” including self-funded health plans, which have purchased, reimbursed, or otherwise paid for OxyContin for their plan members or participants. The Plaintiffs assert violations of federal RICO and state consumer fraud statutes. Specifically, they allege that, as a result of Defendants’ fraudulent over-promotion and off-label promotion of OxyContin, members of the class paid a much higher price, for many more prescriptions, than they would have absent Defendants’ fraudulent over-promotion. After discovery, spirited negotiations, and briefing and argument on Purdue’s motion to dismiss the complaint, Seeger Weiss secured a $20 million settlement, which received preliminary approval from the district court in December 2008. A final approval (fairness) hearing is scheduled for May 15, 2009.
Environmental and Toxic Tort Litigation
Seeger Weiss has brought several environmental and toxic tort cases on behalf of homeowners, small landowners and farmers who have suffered from environmental damage and degradation.
Factory Hog and Poultry Farm Environmental Litigation. The Firm is involved in the prosecution of various environmental and common law claims against several of the nation’s
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largest industrial hog and poultry farm operators. These cases, pending in various jurisdictions throughout the country, were brought on behalf of riparian property owners and other residents in the vicinity of factory hog and poultry farms who have suffered from atmospheric degradation caused by the illegal discharge of harmful toxins and other pollutants contained in the enormous quantities of hog and poultry feces and other wastes produced by the industrial farmer defendants. The Firm serves as co-lead counsel in several of these actions. For example, the Firm serves as court-appointed co-lead counsel in an action pending in the state District Court of Mayes County, Oklahoma pertaining to environmental damages to the Grand Lake O’Cherokees caused by the disposal of massive quantities of chicken litter by the operations of various major poultry integrators and their contract growers. In that action, the Firm achieved the certification of two classes of owners of property around the 44,000-acre lake after a three-day hearing by the District Court, and that ruling was only narrowly overturned by the Oklahoma appellate courts during nearly two and one-half years of appeals. The Firm continues to pursue these claims.
Hog Odor Nuisance Litigation. In September 2006, following a three-week trial in which Firm partner, Stephen A. Weiss, served as co-lead trial counsel, a state court jury sitting in Jackson County, Missouri returned a $4.5 million combined verdict against industrial hog producers Premium Standard Farms, Inc. and ContiGroup Companies, Inc. in favor of six neighbors of the Defendants’ vast farm operations in northern Missouri. In March 2010, a group of fifteen neighbors brought Premium Standard Farms before the state court again, alleging that the overpowering hog odors had not abated since the original trial. A Jackson County jury awarded the plaintiffs an $11.05 million verdict. This verdict is the largest monetary award against a hog farm in an odor nuisance case. Following these verdicts, Mr. Weiss served as lead negotiator of a global settlement that resolved approximately 300 related claims against these Defendants on a confidential basis.
Lead Poisoning Litigation. The Firm represented families and property owners living within Tar Creek, one of the nation’s most notorious hazardous waste sites, situated within the former Picher Mining Field in Northeast Oklahoma. The site has ranked consistently near the top of EPA’s National Priorities List for over a decade. Seeger Weiss is pursuing two types of cases on behalf of the residents: claims on behalf of seven minor children who have irreversible brain damage as a result of exposure to the lead left behind by the mining companies; and a prospective class of residents whose properties have been devalued and who have been exposed to this toxic mining waste.
Chinese-Manufactured Drywall. Seeger Weiss is currently pursuing action against Chinese manufacturers of contaminated drywall, which is reported to contain high levels of hydrogen sulfides, compounds that when exposed to prolonged heat or humidity, release sulfur gasses resulting in terrible odors, metal corrosion, and physical injuries. Christopher A. Seeger was named to the Plaintiff’s Steering Committee in the Chinese-Manufactured Drywall Products
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Liability Litigation (MDL No. 2047) by Judge Eldon E. Fallon, United States District Court, Eastern District of Louisiana. This litigation, which includes thousands of claimants asserting property damage and personal injury claims, was centralized in the Eastern District of Louisiana in June 2009 by order of the United States Judicial Panel on Multidistrict Litigation.
Mr. Seeger tried the first defective Chinese-manufactured drywall case in the country, resulting in a $2.6 million verdict for seven Virginia families. Mr. Seeger also tried the second bellwether case, which determined whether manufacturers were responsible for damages the drywall’s toxic fumes cause to plumbing, electronics, and appliances, securing a $164,049 judgment for the Hernandez family.
In October 2011, Mr. Seeger was a part of a negotiating team that obtained a breakthrough settlement to remediate homes affected by Chinese drywall. The agreement was reached with several key defendants including Knauf Plasterboard Tianjin (KPT), builders, drywall suppliers and their insurers, and other Knauf entities, and totaled over $800 million in recoveries. Since that time, several other settlements have been announced involving other defendant manufacturers and distributors, totaling an additional $141 million.
Fair Labor Standards Act Litigation
Seeger Weiss LLP is engaged in a wide variety of Fair Labor Standards Act (“FLSA”) litigation matters representing aggrieved employees in courts throughout the country. The following are examples of such FLSA actions in which the Firm is involved:
Seeger Weiss served as lead counsel in an action—titled Schaefer-LaRose v. Eli Lilly & Co., which was filed in November 2006 and transferred to the U.S. District Court for the Southern District of Indiana—charging that Eli Lilly & Co. had a common practice of refusing to pay overtime compensation to its pharmaceutical representatives—including Sales Representatives, Senior Sales Representatives, Executive Sales Representatives, Senior Executive Sales Representatives, and those with similar job descriptions and duties—in violation of the federal FLSA. The plaintiffs, Lilly employees who promoted or detailed pharmaceutical products to medical professionals, alleged that Lilly unlawfully characterized its employees as exempt in order to deprive them of overtime pay. In February 2008, the court approved Plaintiffs’ motion to conditionally certify the case as a collective action—the FLSA equivalent of a class action. The class consisted of approximately 400 current and former pharmaceutical representatives employed by Lilly across America.
Seeger Weiss was also co-counsel in a similar federal collective action lawsuit charging that Pfizer Inc. had adopted a common practice of refusing to pay overtime compensation to its pharmaceutical representatives—including Professional Healthcare Representatives, Therapeutic
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Specialty Representatives, Institutional Healthcare Representatives, Specialty Healthcare Representatives, Specialty Representative, and Sales Representatives—in violation of the FLSA. That action, Coultrip v. Pfizer Inc., was filed in October 2006 in the U.S. District Court for Southern District of New York. In August 2008, that court granted Plaintiffs’ motion to certify the case as a FLSA collective action.
The FLSA litigations against the various drug-makers were extremely hard fought and led to a split among the circuit courts of appeals, with the Seventh Circuit affirming the district court’s grant of summary judgment in favor of Eli Lilly and the Ninth Circuit similarly holding in favor of defendant SmithKline Beecham, while the Second Circuit held in favor of the plaintiffs in a cognate action brought against Novartis. The claims wound their way up to the U.S. Supreme Court, where a sharply-divided Court affirmed the Ninth Circuit in a 5-4 decision in June 2012. Seeger Weiss partner Stephen A. Weiss and Counsel James A. O’Brien III (who argued the plaintiffs’ appeal in the Seventh Circuit) spearheaded the litigation for Seeger Weiss.
Pension and ERISA Litigation
Seeger Weiss has represented thousands of clients whose employers recklessly tampered with their retirement benefits.
In re. Bakery and Confectionary Union and Industry Int’l Pension Fund. Seeger Weiss represented 10 former union employees of the Entemann’s Bakery in Bay Shore, New York and the closed Keebler plant in Denver, Colorado, in a class action lawsuit in the Southern District of New York against the Bakery and Confectionery Union and Industry International Pension Fund that was consolidated with a similar action brought by co-counsel. Many of these and other union workers had accepted “buy-out” offers from their employers as part of company downsizing, based on the understanding and expectation that they would qualify for a full pension under an alternative formula known as Plan G, or more commonly the “Golden 80” option. But in July 2010, Pension Plan participants not already eligible for their full pension under the Golden 80 formula lost the right to qualify for a Golden 80 pension if they were no longer in unionized employment. As a result, the only early retirement pension for which they could qualify was one that was as much as much as 60% lower. In a June 2012 opinion (published at 865 F. Supp. 2d 469), the district court agreed with plaintiffs that the Pension Plan had violated the ERISA by unilaterally reducing workers’ vested and accrued pension benefits in that the Golden 80 pension they had been promised was a benefit that could not be reduced merely because they had not already reached the required number of 80 total credits of age plus years of service before July 1, 2010. The U.S. Court of the Appeals for the Second Circuit affirmed the district court in a May 2014 decision (published at 751 F.3d 71). The victory achieved by Seeger Weiss and its co-counsel benefitted some 540 participants in the Pension
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Plan, who saw their full pension rights restored. The case was successfully prosecuted by Seeger Weiss partner Diogenes P. Kekatos
In re Delta Air Lines Inc. Seeger Weiss served as Lead Counsel in a nationwide ERISA multidistrict litigation centralized by the JPML in the federal court in Atlanta, Georgia before the Honorable Julie E. Carnes. The Firm represented active and retired Delta Air Lines pilots challenging various company pension plan amendments and practices that had caused them to forfeit accrued and vested pension benefits. Plaintiffs challenged, among other things, the methodology employed by Delta in calculating and paying lump sums of pension benefits to pilots, the company’s retroactive freeze of a benefit formula previously pegged to increases in investment performance, and automatic reductions of pension benefits of married retirees hired before 1972. In September 2005, the federal court in Atlanta granted final approval to a class action settlement providing for payment of $16 million in cash to certain retired Delta pilots hired before 1972 or their spouses or beneficiaries and 1 million stock purchase warrants to lump sum pension benefits recipients. The settlement represented a significant recovery in light of Delta Air Lines’ rapidly-deteriorating financial plight, with the court’s final approval coming only days before Delta filed for bankruptcy protection. Seeger Weiss continued to represent Plaintiffs and class members through a number of twists and turns in the bankruptcy proceedings and beyond, and vigorously fought for and, in 2008, secured the complete and final distribution of all settlement proceeds to the class members.
In re BellSouth Corp. ERISA Litigation. Seeger Weiss represented tens of thousands of aggrieved BellSouth management employees in a class action suit against the company and the administrators of the employees’ 401K plan, in connection with “Enron-like” breaches of fiduciary duty. These claims stemmed from Defendants’ failures to advise employees of investment diversification options and their having created a falsely optimistic outlook in Defendant BellSouth’s stock as a prudent investment for the plan. Defendants encouraged employees to invest their earnings in company stock at a time when the company was noting positive operating results, artificially-optimistic revenue growth, and other financial indicators that were found to be materially false, including revelations of accounting irregularities and losses from the company’s risky venture into the highly-speculative Latin American wireless phone market. In 2006, after considerable motion practice and discovery in the litigation, the federal court in Atlanta, Georgia, which oversaw the litigation, granted final approval to a class action settlement that provides for, among other things, BellSouth to make matching 401K plan contributions to employees for a three-year period in cash rather than company stock; for employees during that period to have the same investment options for the company’s matching contributions as they have for their own contributions; the availability of certain additional investment choices; and during that period a guaranteed minimum percentage for one of the components in the formula used to determine the company’s matching contributions.
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Insurance Litigation
For over a decade, the Firm has played a pivotal role in many notable insurance market practices class actions brought against members of the life insurance industry. These nationwide suits resulted from alleged misrepresentations made in connection with the sale of certain life insurance products, including “vanishing premium” policies which, due to market-sensitive dividend projections, required customers to pay premiums on a more prolonged basis than originally expected. The Firm has also reviewed annuity claims in the Claims Review Process.
The firm serves on the Plaintiffs’ Executive Committee in the multidistrict Aetna UCR Litigation (MDL No. 2010), pending before Judge Katherine Hayden in the United District Court for the District of New Jersey. That litigation raises ERISA and other claims against Aetna, Ingenix, and UnitedHealth Group pertaining to reimbursement rates for out-of-network heath care services. The insurers were reported to have knowingly created and used flawed data – a rigged database created by Ingenix, which was once the largest provider of healthcare billing information in the country and is now a subsidiary of UnitedHealth Group – to produce reimbursements often far below genuinely usual, customary, and reasonable rates.
In 1995, the firm was appointed as the national Policyowner Representative in Wilson v. New York Life Insurance Company sales practices litigation, the first settlement of a nationwide class action relating to the vanishing premium insurance product. Wilson involved claims brought by a class of approximately 3.2 million New York Life policyowners who suffered damages as the result of allegedly improper sales practices by the company and its agents, including the alleged failure to properly disclose the market-sensitivity of the company’s premium payment projections. As Policyowner Representative, the firm served as the principal advocate on behalf of members of the class who elected to pursue individual claim relief before independent appeal boards.
Following its appointment in the New York Life litigation, the firm served as the Attorney Representative in the In re Prudential Life Insurance Sales Practices Litigation. In that role, the firm, and others serving under its auspices, represented individual class members in connection with over 53,000 separate claim arbitrations.
In addition to the New York Life and Prudential matters, the firm has served as the Policyowner Representative, Attorney Representative, or Claim Evaluator in the following insurance and annuity sales practices class actions: Ace Seat Cover Company v. The Pacific Life Insurance Co.; Benacquisto v. American Express Financial Corporation; Duhaime v. John Hancock Mutual Life Ins. Co.; Garst v. The Franklin Life Insurance Co.; In re General American Life Insurance Co. Sales Practices Litigation, In re Great Southern Life Insurance Co. Sales Practices Litigation; Grove, et al. v. Principal Mutual Life Insurance Co.; Joseph F. Kreidler, et
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al. v. Western-Southern Life Assurance Co.; Lee v. US Life Corp.; In re Lutheran Brotherhood Variable Products Co. Sales Practices Litigation; Manners and Philip A. Levin v. American General Life Insurance Co.; In re Manufacturers Life Insurance Co. Premium Litigation; In re Metropolitan Life Insurance Co. Sales Practices Litig.; Moody v. American General Life and Accident Insurance Co.; In re New England Mutual Life Insurance Company Sales Practices Litigation; Roy v. Independent Order of Foresters; Murray v. Indianapolis Life Insurance Co.; Snell v. Allianz Life Insurance Company of North America; In re Sun Life Assurance Company of Canada Insurance Litigation; Varacallo, et al. v. Massachusetts Mutual Life Insurance Co.; and Wemer v. The Ohio National Life Insurance Co.
Personal Injury Litigation
The Firm maintains a highly-selective docket of matters involving serious personal injury or wrongful death. Unlike many personal injury practices in which attorneys may handle hundreds of slip-and-fall matters at a time, the Firm’s philosophy is to allow its attorneys to concentrate on a smaller number of “high-end” catastrophic injury cases, thereby permitting the highest quality of attention and service available in the field.
In re National Football League Players’ Concussion Injury Litig. Most recently, Christopher Seeger served as co-lead counsel to NFL players and lead negotiator in the NFL concussion litigation (In re National Football League Players’ Concussion Injury Litigation), multidistrict litigation involving thousands of lawsuits brought by former NFL players that the JPML ordered centralized in the Eastern District of Pennsylvania), in which the players alleged that the League had suppressed information concerning the linkage between repeated head trauma and serious neurological ailments. The litigation has gained significant media attention.
In July 2014, Judge Anita B. Brody granted preliminary approval of a proposed nationwide class action settlement of thousands of lawsuits filed by former professional football players, alleging that the National Football League failed to take the necessary precautions to protect its players from long-term brain injuries from concussive and sub-concussive impacts.
Judge Brody appointed Seeger Weiss founding partner Christopher A. Seeger as Co-Lead counsel for the Plaintiffs, and several other Seeger Weiss partners and other attorneys, including David R. Buchanan and TerriAnne Benedetto, have been actively involved in the litigation. The settlement was achieved after many months of spirited negotiations led by Mr. Seeger, including before a court-appointed mediator.
The settlement will provide an uncapped Monetary Award Fund for 65 years which will pay all valid claims for certain neuro-cognitive impairments, with individual awards of up to $5 million; $75 million to fund a Baseline Assessment Program Fund that will offer eligible retired
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NFL players a baseline neuropsychological and neurological examination to determine the existence and extent of any cognitive deficits, and in the event retired players are found to suffer from moderate cognitive impairments certain supplemental benefits in the form of specified medical treatment and/or evaluation, including, as needed, counseling and pharmaceutical coverage; and a $10 million Education Fund to fund safety and injury-prevention programs for football players.
The U.S. Court of Appeals rebuffed the effort of a small group of objectors to challenge the preliminary approval determination in an opinion published at 775 F.3d 570. After extensive proceedings, culminating in a final approval hearing in November 2014, Judge Brody approved the settlement in an exhaustive opinion issued in April 2015 (published at 307 F.R.D. 351), agreeing with Seeger Weiss and its co-counsel that the objections to the settlement lodged by a small percentage of class members lacked merit. In April 2016, a U.S. Court of Appeals for the Third Circuit panel unanimously affirmed Judge Brody’s final approval determination in an opinion published at 821 F.3d 410.
Wildcats Bus Crash Litigation. In June 2009, Seeger Weiss was lauded for its staunch representation of 11 victims and their families in the Wildcats Bus Accident Case, after the defendants’ agreed during trial to accept 100% of the responsibility for the tragic crash. The horrific accident, which resulted in four fatalities and countless other serious injuries, occurred when a Coach Canada bus carrying an “under 21” Canadian female hockey team named the Wildcats veered off of Interstate 390 near Rochester, New York and struck a parked tractor- trailer on the shoulder of the roadway. Led by Christopher Seeger, Moshe Horn and Marc Albert, the Seeger Weiss team took more than 20 depositions, reviewed thousands of pages of documents and retained multiple experts in preparation for the trial in the Supreme Court, Livingston County. Seeger Weiss represented a total of eleven victims of the accident and their families. In March 2010, a jury awarded $2.25 million to three of the victims and their families, who were represented by partners Moshe Horn and Marc Albert. Following this verdict, the Firm successfully negotiated a global settlement of $36 million on behalf of all of the Wildcats bus accident victims.
Other Personal Injury Matters. Partner Christopher A. Seeger represented a six-year- old boy and his family in a medical malpractice action against a hospital for failing to timely diagnose meningitis, which resulted in severe brain damage to the boy. The case settled for $3.25 million in the Supreme Court of Kings County.
Partners Christopher A. Seeger and Stephen A. Weiss represented the wife and two minor children of a 41-year-old successful technologist who was tragically killed when a boat upon which he was a passenger collided with the Greenport Breakwater, a 1,000 foot long structure
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constructed of large boulders in Greenport, Long Island. The victim was thrown from the boat upon impact and ultimately drowned. This case was settled for $2.9 million.
Seeger Weiss secured a $1.4 million verdict for client Debbie D'Amore in her case against Met Life and American Building Maintenance for serious injuries which she suffered as a result of a fall on July 13, 2004 at the Met Life Building in New York City. Ms. D'Amore was vigorously represented by Christopher Seeger and Marc Albert of Seeger Weiss LLP over the course of the week-long trial held before the Honorable Judge Michael Stallman of the Supreme Court, New York County. The jury deliberated over a two day period and returned with a $1.4 million verdict, $1 million of which was awarded for Ms. D'Amore's past pain and suffering, with $400,000 awarded for future pain and suffering. The jury found defendants Met Life and its cleaning contractor, American Building Maintenance responsible for the fall and the serious injuries which Ms. D'Amore sustained as a result. Ms. D'Amore suffered a tri-malleolar ankle fracture in the fall which required multiple surgeries, including ultimately, an ankle fusion.
Antitrust Litigation
Seeger Weiss LLP has been involved in nationally-prominent antitrust litigation, where it has recently expanded its presence.
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Compact Disc Litigation. Seeger Weiss was involved in this consumer antitrust litigation, which sought damages against the wholesale sellers of pre-recorded music sold in the form of compact discs. The Plaintiffs alleged that the Defendants had conspired to artificially inflate the retail prices of compact discs in violation of the Sherman Act. The litigation was settled favorably in the United States District Court for the District of Maine, where the litigation had been centralized for coordinated pretrial proceedings by the JPML.
McDonough v. Toys “R” Us, Inc. Seeger Weiss represents a proposed class of consumers and smaller retailers of baby and juvenile products against Babies “R” Us (an affiliate of the Toys “R” Us chain) and several manufacturers of baby products, including strollers, bedding, car seats, and other items, in consolidated actions pending in the U.S. District Court for the Eastern District of Pennsylvania (Philadelphia) before the Honorable Anita B. Brody. The Plaintiffs allege that Babies “R” Us conspired with the manufacturers of baby products in a scheme whereby the manufacturers required other retailers to sell their products at prices above those being charged by Babies “R” Us. As a result, Babies “R” Us was able to monopolize the retail market, resulting in consumers being forced to pay more for baby products. The district court denied the Defendants’ motion to dismiss the consolidated complaints. Briefing of Plaintiffs’ motion for class certification has been completed, and a decision from the court is expected shortly.
Monsanto Genetically-Modified Soybean and Corn Seed Litigation. The Firm serves as Co-Lead Counsel in Schoenbaum v. E.I. DuPont de Nemours and Company, thirteen consolidated proposed class actions against Monsanto Company, E.I. DuPont de Nemours and Company, and Pioneer Hi-Bred International Inc. currently pending before the Honorable E. Richard Webber in the U.S. District Court for the Eastern District of Missouri (St. Louis). These lawsuits, brought on behalf of farmers who purchased genetically-modified Roundup Ready soybean and YieldGard corn seeds, allege violations of federal and state antitrust, state unfair trade practices statutes, and common law claims for unjust enrichment. The claims stem from the defendants’ conspiracy to fix the price of these seeds through the imposition of “technology fees,” ostensibly for the purpose of allowing Monsanto to recoup its research and development costs of those seed products but which, in reality, capitalized on and exploited Monsanto’s development of those seeds in order to monopolize -the market for those seeds and thereby charge and collect premium prices. After extensive briefing, both pre- and post-argument, and an all-day hearing on the Defendants’ motion to dismiss the Plaintiffs’ Master Consolidated Amended Action Complaint, the district court sustained most of Plaintiffs’ claims. Following spirited motion practice, which included discovery disputes and the Plaintiffs’ motion for leave to file an amended complaint in order to, among other things, assert additional claims against Monsanto for misuse of patent, Plaintiffs reached individual settlements with all of the
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defendants. The settlements will provide a significant recovery to each of the more than two dozen named Plaintiffs.
In re Packed Ice Antitrust Litigation. The Firm represents direct purchasers of packaged ice in a proposed class action brought against the five American and Canadian manufacturers and distributors who possess the dominant share of the $2.5 billion per year packaged ice industry in North America. The Firm has been appointed Co-Chair of the Class Certification Committee in that litigation. Plaintiffs allege that Defendants have violated the antitrust laws by conspiring to fix prices and allocate market share for packaged ice. The U.S. Justice Department’s Antitrust Division commenced an investigation into the packaged ice industry sometime prior to March 2008 and grand jury subpoenas were issued to the Defendants. The cases from around the country have been centralized in the U.S. District Court for the Eastern District of Michigan, and a hearing will be held in March 2009 respecting the selection of Lead Counsel.
In re Rail Freight Fuel Surcharge Antitrust Litigation. The Firm represents shipping customers in a proposed class action brought against the country’s four major railroads for antitrust violations. The Defendants in this multidistrict litigation, pending in the U.S. District Court for the District of Columbia, are alleged to have conspired to fix the prices of “rail fuel surcharges” above competitive levels, causing the Plaintiffs to pay exorbitant rates for unregulated rail freight transportation services—rates that were unrelated to fuel costs. The district court denied the Defendants’ motions to dismiss the direct purchasers’ claims and the indirect purchasers’ federal antitrust claims. The district court held a two-day hearing on Plaintiffs’ motion for class certification in October 2010 and, in June 2012, issued an exhaustive 145-page decision, granting the motion. In August 2013, the D.C. Circuit remanded the case for further proceedings, principally in light of the Supreme Court’s then-recent decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). Further proceedings have been conducted on remand, including additional expert witness discovery and voluminous briefing. The district court will soon hold a multi-day hearing on the class certification motion. Seeger Weiss serves as Co-Chair of the Law and Briefing Committee.
Other Commercial Litigation
In addition to its diverse complex litigation practice, Seeger Weiss LLP is engaged in a wide variety of commercial litigation matters representing individuals and businesses in state and federal courts throughout the country. The following are examples of such commercial actions in which the Firm is involved:
Automobile Dealership Warranty Litigation: The Firm represents dozens of franchised automobile dealerships located throughout New York State in separate actions against the “Big Three” automobile manufacturers — Ford, General Motors, and DaimlerChrysler. These actions are pending in federal court in New York and are based on the manufacturers’ failure to comply
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with the New York State Vehicle & Traffic Law § 465. These actions assert claims that in violation of New York State statute and the franchise agreement that governs the relationship between the dealerships and the factories, the manufacturers have failed to adequately reimburse the dealerships for parts used in performing repairs pursuant to the manufacturers’ warranties. In addition to the three federal court actions, the Firm also represents close to a dozen franchised Chrysler dealerships in arbitrations pending before the American Arbitration Associations asserting the same claims.
Arzoomanian v. British Telecommunications PLC. The Firm represented a small businessman who had brokered a multi-million dollar global telecommunications deal between two multi-national corporations, British Telecommunications PLC (“BT”) and Unilever PLC, and then was cut out of the deal by the companies and refused his fee. In 2004, the Firm successfully overcame BT’s motion to dismiss the action on forum non conveniens grounds (in which BT argued that the action should not have been brought in the United States). After extensive discovery—both in the United States and overseas—and further motion practice, the case was settled in 2007. This is one of a number of cases that the Firm has handled on behalf of small businesses which have been wronged by behemoth corporations.
In re ETS Praxis Principles of Learning and Teaching: Grades 7-12 Litigation is a consolidated national class action on behalf of more than 4,100 prospective teachers as to whom ETS negligently and wrongfully reported failing scores on the Praxis Principles of Learning and Teaching test for grades 7 through 12 (the “PPLT” test) during the period from January 2003 through April 2004. The PPLT is a test that is required in many states in order for teachers to obtain their teaching certification. In December 2004, the various class actions filed around the country were transferred to the Honorable Sarah Vance of the United States District Court for the Eastern District of Louisiana (New Orleans). Judge Vance appointed Seeger Weiss LLP to the position of State Court Litigation Liaison Counsel. This case was settled in 2006 for $11.1 million.
HMO Litigation. The Firm was counsel to individual doctor-members of the Connecticut State Medical Society (“CSMS”) and the Medical Society of the State of New York (“MSSNY”) in connection with various putative statewide class actions filed in Connecticut and New York state courts, respectively against several national health management organizations (HMOs). The class members sought damages resulting from the defendants’ improper, unfair and deceptive practices designed to deny, impede or delay lawful reimbursement to CSMS and MSSNY physicians which rendered necessary healthcare services to members of the HMO managed care plans. The case was successfully resolved.
VOIP, Inc. v. Google, Inc. The Firm represents VOIP, Inc. in a trade secrets and breach of contract action filed in New York State Supreme Court in February 2011. The suit claims that
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Google developed its "Click to Call" feature, which allows users to make Internet phone calls by just clicking on a link, using misappropriated VoIP trade secrets.
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Selected Attorney Biographies
Partners
Christopher A. Seeger Position: Founding Member Co-Managing Partner. Admitted: New Jersey, 1990; New York, 1991; U.S. District Court for the Southern District of New York and U.S. District Court for the District of New Jersey, 1991; U.S. District Court for the Eastern District of New York, 2000; U.S. District Court for the District of Colorado, 2011. Education: Hunter College of the City University of New York (B.A., summa cum laude, 1987); Benjamin N. Cardozo School of Law (J.D., magna cum laude, 1990). Honors: Managing Editor, Cardozo Law Review. Author: “The Fixed Price Preemptive Right in the Community Land Trust Lease,” 11 Cardozo Law Review 471, 1990; “Developing Assisted Living Facilities,” New York Real Estate Law Reporter, Volume XII, Number 10, August 1998. Lecturer: “The Use of ADR in Class Actions and Mass Torts,” New York University School of Continuing and Professional Studies, October 13, 2000. Director: American Friends of Rabin Medical Center, Inc.; Benjamin N. Cardozo School of Law, Yeshiva University, 1999-2000. Co-Chair: Cardozo Law School Alumni Annual Fund, 1998-2000. Awards: Best Lawyers in America, 2006, 2012; New York Super Lawyer, 2006-2013; New Jersey SuperLawyers, 2006-2014; Law Dragon 500, 2007-2013; Best Lawyers, Mass Tort Litigation; Hunter College Hall of Fame, 2007; Cardozo Alumnus of the Year, 2009. Member: The Association of the Bar of the City of New York; New Jersey State Bar Association; Board of Advisors, New York Real Estate Law Reporter; Annual Fund Committee, 1999-present; American Bar Association; American Association for Justice, Trail Lawyers for Public Justice; Fellow, American Bar Foundation. Practice Areas: Consumer Fraud, Products Liability, Antitrust; Insurance, Class Actions, Mass Torts.
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Stephen A. Weiss Position: Founding Member and Co-Managing Partner. Admitted: New York, 1991; U.S. District Courts for the Southern and Eastern Districts of New York, 1991. Education: Brandeis University (B.A., 1986); Benjamin N. Cardozo School of Law (J.D., 1990). Honors: Business Editor, Cardozo Law Review, 1989-1990. Author: “Environmental Liability Disclosure Under the Federal Securities Law,” Law Education Institute, Inc., 1998; “Liability Issues and Recent Case Law Developments Under CERCLA, New Environmental Issues of Liabilities of Government Agencies & Government Contractors,” Federal Publications, Inc., Chapter 4, 1995; “New York Proposes Legislation to Restrict Shareholder Derivative Suits,” Insights, Vol. 8, No. 3, p. 24, 1994; “Suretyship as Adequate Protection Under Section 361 of the Bankruptcy Code,” Cardozo Law Review, Vol. 12, p. 285, 1990. Director or Officer: Benjamin N. Cardozo School of Law, Yeshiva University, 2000-present; New York State Trial Lawyers Association, 2012-present; New York State Academy of Trial Lawyers, Vice President,1st Department, 2012-2013. Co-Chair: Cardozo Law School Alumni Annual Fund, 1998-2000. Awards: International Humanitarian Achievement Award, Shaare Zedek Medical Center, 2002; Trial Lawyer of the Year, Finalist, Public Justice Foundation, 2010. Member: American Association for Justice; American Bar Association; Badge of Honor Memorial Foundation, General Counsel, 2008-present. Practice Areas: Complex Litigation, including Antitrust, Consumer, Employment, Environmental, Insurance, Products Liability, Pharmaceutical, Qui Tam and Securities Litigation.
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David R. Buchanan Position: Member. Admitted: New Jersey, 1993; New York, 1994; U.S. District Court for the District of New Jersey, 1993; U.S. District Court for the Southern District of New York, 1994; U.S. District Court for the Eastern District of New York, 1999. Education: University of Delaware (B.S., 1990); Benjamin N. Cardozo Law School (J.D., magna cum laude, 1993) Honors: Samuel Belkin Scholar, 1993; Member, 1991-93, and Administrative Editor, 1992-93, Cardozo Law Review. Awards: Best Lawyers in America, 2007- ; New York Super Lawyer, 2007- ; New Jersey Super Lawyer, 2007 - ; Legal 500; Law Dragon 3000; International Society of Barristers, Fellow Member: American Bar Association; American Association for Justice; NYSTLA, Board of Governors; International Society of Barristers; Summit Council. Practice Areas: Complex and Mass Tort Litigation, including Antitrust, Consumer, Environmental, Insurance, Intellectual Property, Pharmaceutical, Products Liability, and Securities Litigation.
Diogenes P. Kekatos Position: Member. Admitted: New York, 1984; U.S. District Courts for the Southern and Eastern Districts of New York, 1984; U.S. Courts of Appeals for the Second, Third, Seventh, Eighth, Ninth, and Tenth Circuits, 1985, 2008-14; U.S. Supreme Court, 1987. Education: Columbia College, Columbia University (B.A., Dean’s List all 8 semesters, 1980); Brooklyn Law School (J.D., 1983). Honors: Named to New York Super Lawyers, 2013-16; recipient of letters of commendation from the U.S. Court of Appeals Staff Counsels and from Attorney General Janet Reno for outstanding performance and high level of professionalism in appellate mediation, 1999. Experience: Special Assistant U.S. Attorney, 1986-88, and Assistant U.S. Attorney, 1988-2000; Office of the United States Attorney for the Southern District of New York, and Chief, Financial Litigation Unit, 1988-90; and Immigration Unit, 1990-2000. Has argued some 130 appeals and motions in the U.S. Court of Appeals for the Second Circuit, including a successful en banc rehearing, with scores of cases resulting in published opinions; and has handled hundreds of appellate mediations. Awards: Executive Office for U.S. Attorneys Director’s Award for Superior Performance as an Assistant U.S. Attorney, 1996; Award from U.S. Attorney Mary Jo White for Exceptional Achievement, 1995; and numerous other award nominations. Practice Areas: Class Action and Complex Litigation, Federal Civil Litigation, Federal Appellate Litigation.
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Moshe Horn Position: Member. Admitted: New York and New Jersey, 1994; U.S. District Courts for the Southern and Eastern Districts of New York. Education: George Washington University (B.A., 1989); Benjamin N. Cardozo School of Law (J.D., 1993). Honors: Member of Championship team in a national Securities Law Moot Court competition at Fordham University, 1993; Winner tri-state trial competition, runner up Best Advocate, 1993. Experience: Assistant District Attorney, New York County, 1993-2002 (where he held numerous supervisory positions and tried 50 jury cases); Senior Associate, Kaye Scholer LLP, 2002- 2004. Member of the Firm’s trial team that achieved a $47.5 million verdict for Vioxx- related cardiovascular injury in Humeston v. Merck & Co. in 2007 in the New Jersey Superior Court, Atlantic County. Member of the Firm’s trial team that achieved a $1.4 million verdict for Currently an Adjunct Professor of Law at Benjamin N. Cardozo School of Law, teaching “Introduction to Trial Advocacy.” Has previously taught “Advanced Trial Advocacy” and “Mass Torts,” and served as advisor and coach to the law school’s Mock Trial Team. Member: American Bar Association, American Association for Justice, New York State Trial Lawyers Association. Practice Areas: Pharmaceutical and Medical Device Litigation, Personal Injury Litigation, Complex Litigation, Asbestos Litigation, Criminal Defense.
Michael L. Rosenberg Position: Member. Admitted: New Jersey, 1989; U.S. District Court, District of New Jersey, 1989; New York, 1990. Education: Rutgers-Camden School of Law (J.D., 1989), University of Delaware (B.A. 1986). Experience: Has been with the Firm since its 1999 inception. Has negotiated individual settlements on behalf of hundreds of clients injured by pharmaceutical products, including over-the-counter medicines containing PPA and the anti-cholesterol drug Baycol. Played an integral role in the settlement of personal injury claims against the manufacturers of Dexatrim, a PPA-containing weight loss product, on behalf of 500 stroke victims who claimed that their strokes were caused by Dexatrim. The settlement is valued at approximately $200 million. Serves as a member of the Delaco Trust Advisory Committee tasked with overseeing the administration of the settlement. Was a member of the trial team that won a $2.6 million verdict for the Plaintiff in McCarrell v. Hoffman-La Roche, Inc, in New Jersey Superior Court, Atlantic County. Member: American Bar Association and American Association for Justice.
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Practice Areas: Complex and Mass Tort Litigation, including Pharmaceutical, Products Liability and Insurance Litigation.
Terrianne Benedetto Position: Member. Admitted: Pennsylvania, 1990; New Jersey, 1991; U.S. District Courts for the District of New Jersey, 1991; Eastern District of Pennsylvania, 1991; Western District of Wisconsin, 1993; New York Supreme Court, Appellate Division, Third Department, 2009; and New York Superior Court, 2009. Education: Franklin & Marshall College (B.A., 1986); Villanova University (J.D., 1990). Honors: Member of the Villanova Law Review; Law Clerk to the Honorable Jacob Kalish of the Commonwealth Court of Pennsylvania, and the Honorable William W. Vogel of the Montgomery County Court of Common Pleas. Author: “Database Technology: A Valuable Tool for Defeating Class Action Certification,” published in Pennsylvania Law Weekly, Vol. XX, No. 47, November 24, 1997, and Mealey’s Litigation Report: Lead, Vol. 7, No. 14, April 24, 1998. Experience: At the beginning of her career as a class action litigator, was co-counsel for defendants in Reilly v. Gould Inc., 965 F. Supp. 588 (M.D. Pa. 1997); Dombrowski v. Gould Electronics Inc., 954 F. Supp. 1006 (M.D. Pa. 1996); and Ascher v. Pennsylvania Insurance Guaranty Association, 722 A.2d 1078 (Pa. Super. 1998). Thereafter, joined nationally recognized plaintiffs’ firms where she represented individuals, small businesses and the Office of the Attorney General for the Commonwealth of Pennsylvania in numerous antitrust and consumer fraud class actions, many resulting multimillion dollar settlements, including In re Lupron Marketing and Sales Practices Litigation, MDL No. 1430 (D. Mass.); In re Pharmaceutical Industry Average Wholesale Price Litigation, MDL No. 1456 (D. Mass.); In re Graphite Electrodes Antitrust Litigation, No. 2:97-CV-4182 (E.D. Pa.); In re Magnetic Audiotape Antitrust Litigation, No. 99 Civ. 1580 (S.D.N.Y); In re Vitamins Antitrust Litigation, MDL No. 1285 (D.D.C.); In re Maltol Antitrust Litigation, No. 99 Civ. 5931 (S.D.N.Y.); In re Compact Disc Antitrust Litigation, MDL No. 1216 (C.D. Cal.); In re Flat Glass Antitrust Litigation, MDL No. 1200 (W.D. Pa.); and In re Carpet Antitrust Litigation, MDL No. 1075 (N.D. Ga.). Member: Pennsylvania Trial Lawyers Association, Philadelphia Bar Association. Practice Areas: Complex Commercial and Class Action Litigation, including Consumer Protection, Antitrust, Products Liability, and Securities Litigation.
Jeffrey S. Grand Position: Member Admitted: New York, 2003; U.S. District Court for the Southern District of New York and U.S. District Court for the Eastern District of New York, 2003.
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Education: School of Visual Arts (B.A., 1990); Benjamin N. Cardozo School of Law (J.D., Order of the Coif, 2002). Honors: Samuel Belkin Scholar; Felix Frankfurter Award; Executive Editor, Cardozo Law Review. Author: “The Blooding of America: Privacy and the DNA Dragnet,” 23 Cardozo Law Review 2277, 2001. Awards: New York Super Lawyer, 2014-2016; New York Rising Starts, 2012-2013. Member: American Bar Association; American Association for Justice. Practice Areas: Products Liability; Pharmaceutical and Medical Device Mass Tort Litigation.
Counsel
James A. O’Brien III Position: Counsel. Admitted: New York, 2000; Massachusetts, 1988; U.S. District Court, District of Massachusetts, 1991. Education: University of Massachusetts at Amherst (B.A., 1984); New England School of Law (J.D., 1988). Experience: Attorney Advisor, U.S. Department of Labor, 1988-89; Assistant District Counsel, U.S. Immigration and Naturalization Service, 1990; Special Assistant United States Attorney, 1990-2001, Southern District of New York. Practice Areas: Class Action and Complex Litigation, Federal Civil Litigation, Federal Appellate Litigation.
Scott Alan George Position: Counsel. Admitted: Pennsylvania and New Jersey, 1998; U.S. District Courts for the Eastern District of Pennsylvania and the District of New Jersey, 1998; U.S. Court of Appeals for the Third Circuit, 1998. Education: Goddard College (B.A., 1989); Temple University School of Law (J.D., cum laude, 1998). Honors: Member of the Moot Court Honor Society. Practice Areas: Class Action Litigation.
Christopher Van de Kieft Position: Counsel. Admitted: New York, 2003; U.S. District Courts for the Southern and Eastern Districts of New York, 2005.
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Education: Johns Hopkins University (B.A., 1990), Benjamin N. Cardozo School of Law (J.D., 2002). Honors: Editor-in-Chief, Cardozo Law Review; recipient of Cardozo Law School’s prestigious Samuel Belkin Award, awarded each year to one graduating student for “exceptional contribution to the growth and development of the Law School.” Experience: Prior to attending law school, served in the U.S. Army from 1990-98, attaining rank of Captain. Prior to joining the Firm was an associate at Fried Frank Harris Shriver & Jacobson. Practice Areas: Pharmaceutical and Medical Device Mass Tort Litigation; Class Action Litigation.
Associates
Parvin K. Aminolroaya Position: Associate. Admitted: New Jersey, 2008; New York, 2009; U.S. District Court, District of New Jersey, 2008. Education: Fordham University (B.A., 2004, with honors); Benjamin N. Cardozo School of Law (J.D., 2008). Honors: Jacob Burns Medal awarded for outstanding contribution to Moot Court; Benjamin N. Cardozo Writing Award; Editorial Board, Moot Court Honor Society; First Place Oralist Team and First Place Brief, Regional Competition of the New York City Bar Association, National Moot Court Competition, 2007; First Place Brief and Second Place Oralist Team, Fordham Irving Kaufman Securities Moot Court Competition, 2007. Member: Executive Committee, Benjamin N. Cardozo School of Law Alumni Association. Practice Areas: Securities Fraud, Investment Fraud, Complex Commercial Litigation.
Asa R. Danes Position: Associate. Admitted: New York State, 2004; United States District Courts for the Eastern and Southern Districts of New York, 2006 and Western District of Tennessee, 2009. Education: Oberlin College (B.A., 1994); Brooklyn Law School (J.D., cum laude, 2001). Honors: Notes and Comments Editor, Brooklyn Journal of International Law. Experience: Associate at Paul, Hastings, Janofsky & Walker LLP; Law Clerk to the Honorable James T. Trimble, Jr. in the United States District Court for the Western District of Louisiana. Practice Areas: Complex personal injury matters; mass tort, consumer fraud and securities class actions; shareholder derivative and corporate governance disputes and other commercial litigation.
David R. Tawil
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Position: Associate. Admitted: New Jersey, 2014. Education: New York University (B.A. History, 2007); Tulane University (J.D., 2012). Honors: Senior Notes and Comments Editor, Tulane Journal of International and Comparative Law; Associate Justice, Tulane University Law School’s Moot Court Board. Author: Kiobel v. Royal Dutch Petroleum Co.: The Second Circuit Rejects Corporate Liability Under the Alien Tort Statute (19 Tul. J. Int’l & Comp. L. 709) and Implications of PLIVA, Inc. v. Mensing: The Reemergence of Federal Preemption (unpublished). Experience: Law clerk to the Honorable Jessica R. Mayer, J.S.C., one of New Jersey’s three Multicounty Litigation judges; certified trained mediator by the New Jersey Courts. Member: John C. Lifland American Inn of Court. Practice Areas: Drug and Medical Devices.
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Class Action Litigation
. PRACTICE CONTACTS As a principal focus of our litigation practice, KMK’s Class Action / Multi-District James E. Burke Litigation (MDL) Practice has established the reputation for being aggressive and TEL: (513) 579-6429 nimble in defending complex litigation. We partner with our clients in these “bet the Joseph M. Callow, Jr. company” cases, and provide extensive experience, proven case management TEL: (513) 579-6419 strategies, and exceptional service at Midwest hourly rates and through alternative Rachael A. Rowe fee arrangements. TEL: (513) 579-6486
Gregory M. Utter KMK has an established reputation and a proven track record of success in TEL: (513) 579-6540 defending securities, ERISA, antitrust, wage and hour / employment discrimination,
RELATED PRACTICES environmental / nuisance / tort, and other types of class action / MDL cases. Clients Antitrust frequently hire us to defend them in class action cases pending in federal and state Commercial & Securities courts around the country (see the listing of current class action cases and Litigation representative matters below). We work with local and liaison counsel, but we E-Discovery & Litigation centrally manage the litigation to provide consistent and trusted case handling. Support Group (ED/LSG) Environmental Claims We work with our clients to aggressively, creatively, and effectively defend class ERISA Litigation Defense action litigation with agreed-upon strategies, efficient case management and Team staffing, sophisticated litigation software and e-discovery capabilities, and litigation Financial Services Litigation budgets or project budgeting. We work to win cases with limited disruption and Litigation distraction to our clients' business operations. We monitor class action Mass Tort Bankruptcy developments around the country, report on some of those developments in the Mass Tort Settlement Trusts KMK Complex Litigation Blog, help create new law on occasion, and maintain a database of research and information so we do not reinvent the wheel with every new case.
We control our internal firm costs by maintaining a single-city office and investing instead in people and technology. Clients do not pay for the overhead of multiple offices, the costs of coordinating attorneys working in multiple offices, or disparate rates within a defense team. Our one office philosophy allows us to provide the same or better quality service as big-city, multi-office firms — at Midwest billing rates. At KMK, we handle class action and MDL cases at significantly less litigation expense.
When you need to partner with a law firm on your next “bet the company” case and want to avoid the stereotypical and expensive “Big Law” approach to defending these cases, consider a proven alternative — KMK’s Class Action / MDL Practice.
REPRESENTATIVE CASES
Securities
Local 295 / Local 851 IBT Employer Group Pension Trust and Welfare Funds and District No. 9, et al. v. Fifth Third Bancorp, et al., Cons. Case No. 1:08-CV-421 (S.D. Ohio) (defending securities “stock drop” class action litigation) (James E. Burke,
One East Fourth Street, Suite 1400, Cincinnati, OH 45202 TEL: 513.579.6400 FAX: 513.579.6457 www.kmklaw.com
EXHIBIT 4 Case 1:04-cv-09866-LTS-HBP Document 713-14 Filed 11/11/16 Page 11 of 20
Class Action Litigation (Continued)
Joseph M. Callow, Jr.).
In re Atricure, Inc. Securities Litigation, Case No. 1:08-CV-00867 (S.D. Ohio) (defending securities class action litigation) (James E. Burke)
Slone v. Fifth Third Bancorp, et al., Case No. 1:03-CV-211 (S.D. Ohio) (defended securities class action litigation) (Joseph M. Callow, Jr.).
Thiemann v. OHSL Financial Corp., et al.¸ Case No. 1:00-CV-793 (S.D. Ohio) (defended securities class action litigation) (James E. Burke, Rachael A. Rowe).
ERISA
Fish, et al. v. Greatbanc Trust Co., et al., Case No. 1:09-CV-1668 (N.D. Ill.) (defending clients against ERISA breach of fiduciary duty / prohibited transaction claims; ESOP litigation) (Michael L. Scheier).
Dudenhoeffer v. Fifth Third Bancorp, Case No. 12-751 (U.S. Sup. Ct., decided June 25, 2014). KMK represents Fifth Third Bancorp in this ERISA litigation regarding claims for breach of fiduciary duty arising out of defendants’ continued holding of, and investment in, Fifth Third stock in the Fifth Third Bancorp Master Profit Sharing Plan (the “Plan”). The 2008 complaint alleged that the fiduciaries of the Plan “knew or should have known” that the Company’s public disclosures of loan losses and capital levels were false and misleading and the Fifth Third stock held by the Plan’s ESOP fund was therefore materially overvalued. The District Court dismissed the complaint on November 24, 2010. On September 5, 2012, the United States Court of Appeals for the Sixth Circuit reversed the District Court and held that the complaint stated viable claims against the Plan. On December 13, 2013, the United States Supreme Court granted Fifth Third’s Petition for Writ of Certiorari, oral argument was held on April 2, 2014, and on June 25, 2014 the Supreme Court unanimously vacated the Sixth Circuit decision and remanded the case for further proceedings. KMK was Counsel of Record for Fifth Third in all proceedings, including before the Supreme Court (James E. Burke), and drafted the Petition for Certiorari and participated in the briefing and oral argument before the Supreme Court.
Shirk v. Fifth Third Bancorp, et al. (“Shirk I”), Case No. 05-CV-00049 (S.D. Ohio) (defended client against class action claims for alleged breaches of fiduciary duty in “stock drop” litigation; summary judgment granted for Defendants on all claims) (Joseph M. Callow, Jr.).
Shirk v. Fifth Third Bancorp, et al. (“Shirk II”), Case No. 05-CV-00049 (S.D. Ohio) (defended client against class action claims for alleged breaches of fiduciary duty in “excessive fees” claims; summary judgment granted for Defendants on all claims) (Joseph M. Callow, Jr.).
Hutchison v. Fifth Third Bancorp, et al., 2005 WL 2493287 (S.D. Ohio), aff'd., 469 F.3d 583 (6th Cir. 2006), cert. denied, 551 U.S. (June 25, 2007) (successfully defended breach of fiduciary duty claims invoking ERISA preemption) (Joseph M. Callow, Jr.).
Antitrust
In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, Case No. 05-MD-1720 (E.D.N.Y.) (defending client on claims related to credit card interchange fees) (Richard L. Creighton Jr., Drew M. Hicks).
One East Fourth Street, Suite 1400, Cincinnati, OH 45202 TEL: 513.579.6400 FAX: 513.579.6457 www.kmklaw.com Case 1:04-cv-09866-LTS-HBP Document 713-14 Filed 11/11/16 Page 12 of 20
Class Action Litigation (Continued)
In re: Processed Egg Products Antitrust Litigation, Case No. 2:08-MD-02002 (E.D. Pa.) (defending client on claims related to alleged conspiracy to fix the price of shelled eggs and egg products) (Joseph M. Callow, Jr., Brian M. Babb).
Anthony Williams v. Duke Energy Int’l, Inc., Case No. 1:08-CV-46 (S.D. Ohio) (defended client on antitrust class claims; court granted Defendants’ motion to dismiss) (James E. Burke).
Exhaust Unlimited v. Cintas Corp., et al., Case No. 02-614 (S.D. Ill.) (defended client on claims of price fixing related to environmental charges; defeated class certification) ( regory M. Utter, Joseph M. Callow, Jr.).
Employment / Wage and Hour Litigation (and collective actions)
Serrano / EEOC v. Cintas Corp, Case No. 04-CV-40132 (E.D. Mich.) (defending client on claims related to gender discrimination in hiring involving over 300 facilities across the U.S.) ( regory M. Utter, Rachael A Rowe).
Veliz v. Cintas Corp., Case No. C-03-1180 (N.D. Cal.) (and related arbitration proceeding) (defending client on claims of misclassification / FSLA wage and hour violations) ( regory M. Utter, Rachael A Rowe).
Flores v. Cintas Corp., Case No. BC400422 (Cal Superior Ct. Los Angeles Cty.) (defending client on various claims under various California Labor Code Sections related to payroll check re uirements and under the California Business and Professions Code 17200) ( regory M. Utter, Rachael A. Rowe, Benjamin . Stewart).
Chin v. Republic Indemnity Co. of America, Case No. C 05437973 (Cal. Superior Ct. San Francisco Cty.) (defended client on claims of misclassification / wage and hour violations) (Joseph M. Callow, Jr.).
Nuisance / Trespass / Environmental Tort / Tort Defense
Green v. Griffin Ind. Inc., et al., Case No. 2004-CV-79741 (Fulton Cty. Supr. Ct. eorgia) (defending client in nuisance / negligence class action filed by residents near one of its facilities) (Joseph M. Callow, Jr.).
Martin, et al. v. Behr Dayton Thermal Products LLC, et al., Case No. 3:08-cv-00326) (S.D. Ohio); Spears, et al. v. Chrysler LLC, et al., Case No. 3:08-cv-00331) (S.D. Ohio); First Property Group LTD, et al. v. Behr Dayton Thermal Products, et al., Case No. 3:08-cv-00329 (S.D. Ohio) (defending nuisance claims; matter stayed) (Daniel E. I enson, Brian M. Babb).
Freeman v. Cincinnati Gas & Electric Co., Case No. 1:05-CV-179 (S.D. Ohio) (defended clients in Clean Air Act / nuisance / trespass mass-tort class action) (Louis F. illigan)
Wilson v. Interplastic Manufacturing Co., et al., Case No. 97-CI-851 (Kenton Circuit Court, 1st Div., Ky) (defended client in nuisance / negligence mass-tort class action) (Louis F. illigan)
Business / Banking
Schulte v. Fifth Third Bank, Case No. 1:09-CV-0655 (N.D. Illinois) (defending client on class claims regarding overdraft fees) (Drew M. Hicks).
Segal v. Fifth Third Bank, N.A., et al., Case No. 07-CV-348 (S.D. Ohio), Case No. 08-03576 (6th Cir.) (defended client on class claims of breach of fiduciary duty; claims dismissed based on application of SLUSA preemption) (Joseph M. Callow, Jr., Rachael A. Rowe, Brian P. Muething).
One East Fourth Street, Suite 1400, Cincinnati, OH 45202 TEL: 513.579.6400 FAX: 513.579.6457 www.kmklaw.com Case 1:04-cv-09866-LTS-HBP Document 713-14 Filed 11/11/16 Page 13 of 20
Class Action Litigation (Continued)
Charlton v. Fifth Third Bancorp, Case No. 1:08-CV-703 (S.D. Ohio) (defended client on class claims regarding overdraft fees) (Joseph M. Callow, Jr., Drew M. Hicks).
Manville Personal Injury Settlement Trust v. Cintas Corp., Case No. A0906822 (Hamilton Cty. Ohio) (defended shareholder derivative litigation alleging wrongdoing by entire Board of Directors) ( regory M. Utter).
UNITE HERE v. Cintas Corp., Case No. 06-CV-7061 (S.D.N.Y.) (defended shareholder litigation seeking injunction and declaratory judgment related to SEC violations) ( regory M. Utter, Rachael A. Rowe).
Other
In re: Bill of Lading Transmission and Processing System Patent Litigation, MDL No. 1:09-md-2050 (S.D. Ohio) (defending patent claims in consolidated proceedings) (James E. Burke).
State of Ohio v. DEY, Inc., et al., Case No. A0402047 (Hamilton Cty. Ohio) (defended parens patriae class action claims involving prescription drug prices to Ohio Medicare and Medicaid) (James E. Burke).
Stuart v. Dominion Homes Financial Services, Inc., et al., Case No. 2:06-CV-137 (S.D. Ohio) (defended client on class claims under Ohio and federal consumer credit protection laws arising from the alleged failure to procure FHA insurance on residential subdivision) (James E. Burke).
Chesher v. Neyer, et al., Case No. 1:01-CV-566 (S.D Ohio) (defended client on class claims of alleged civil conspiracy, intentional infliction of emotional distress, and violation of Section 1983 of the Civil Rights Act) (Louis F. illigan).
Research Solvents & Chemicals, Inc., v. Cintas Corp., Case No 01-CV-273 (Jefferson Cty. Circ. Ct. Ala.) (defended national class action associated with environmental fee charges) ( regory M. Utter, Joseph M. Callow, Jr., Rachael A Rowe).
REPRESENTATIVE CLIENTS Cintas Corporation Fifth Third Bank Ohio Fresh Eggs
One East Fourth Street, Suite 1400, Cincinnati, OH 45202 TEL: 513.579.6400 FAX: 513.579.6457 www.kmklaw.com Case 1:04-cv-09866-LTS-HBP Document 713-14 Filed 11/11/16 Page 14 of 20
Joseph M. Callow, Jr. PARTNER
Keating Muething & Klekamp PLL One East Fourth Street Suite 1400 Cincinnati, OH 45202 TEL: (513) 579-6419 FAX: (513) 579-6457 jcallow kmklaw.com
. The most difficult task as Joe Callow helps clients manage and reduce litigation risk and litigation costs. in-house counsel is When litigation arises, he handles and coordinates cases on a national, regional, locating and retaining an and local basis. attorney that combines subject matter knowledge, Joe primarily works on class action and complex commercial litigation. He has aggressiveness, experience in securities, ERISA, antitrust and general corporate and business responsiveness, cost litigation as well as in copyright infringement and intellectual property litigation; and effectiveness, and one who can communicate product liability/tort litigation. He also represents clients in FINRA and AAA effectively with various securities arbitrations. levels of management. Joe and his complex Joe has extensive experience in False Claims Act ( ui tam) litigation and has litigation team possess all represented parties in cases around the country, including California, Texas, of those qualities and Florida, and New Jersey. more when faced with retaining a firm and Joe helped establish the KMK E-Discovery Litigation Support roup. He helps litigation team to best clients develop information governance policies and creates proactive, defensible, serve your organization. -- and cost-effective end-to-end E-Discovery solutions for litigation and regulatory Chris Griffin, Director of investigations. Legal Affairs, Griffin Industries, Inc. Joe also helped establish KMK s Cybersecurity Privacy Team, an interdisciplinary group of attorneys focused on helping clients manage risk; develop and implement PRACTICE AREAS data protection and cybersecurity response plans; coordinate cybersecurity Antitrust response actions; and defend litigation if needed. ERISA Litigation Defense Team Joe fre uently authors legal alerts and blog posts and presents CLE seminars on Class Action Litigation various litigation topics. He welcomes the opportunity to conduct seminars for Commercial Securities clients and other organi ations on litigation avoidance strategies and litigation Litigation related topics. Intellectual Property Litigation REPRESENTATIVE LITIGATION MATTERS False Claims Act ui Tam In re Processed Egg Products Antitrust Litig., Case No. 2:08-md-02002 (MDL Litigation No. 2002) (E.D. Pa.) (currently defending client in antitrust class action litigation) Financial Services Litigation Osborn, et al. v. Griffin, et al., Case Nos. 2011-89 and 2013-32. (E.D. Ky.) Product Liability (currently defending clients in RICO/state law claim litigation) Mass Tort
One East Fourth Street, Suite 1400, Cincinnati, OH 45202 TEL: 513.579.6400 FAX: 513.579.6457 www.kmklaw.com Case 1:04-cv-09866-LTS-HBP Document 713-14 Filed 11/11/16 Page 15 of 20
Joseph M. Callow, Jr. (Continued)
Cybersecurity Privacy Local 295 et al. v. Fifth Third Bancorp, et al., and Dudenhoeffer, et al v. Fifth Team Third Bancorp, et al., Cons. Case No. 1:08-cv-421 (S.D. Ohio) (defending client E-Discovery Litigation Support roup (ED/LS ) in consolidated securities and ERISA “stock drop” class action litigation); see 2010 U.S. Dist. Lexis 131967 (Nov. 24, 2010) (granting Defendants motion to BAR & COURT dismiss ERISA claims); 731 F. Supp. 2d 689 (Aug. 10, 2010) (granting in part ADMISSIONS and denying in part Defendants motion to dismiss in securities case) Ohio Brooks v. Cincom Systems, Inc., Case No. 1:12-cv-115 (S.D. Ohio June 10, U.S. District Court, Southern District of Ohio 2013) (defended client against claims; summary judgment granted for defendant) U.S. District Court, Northern LaWarre v. Fifth Third Bank and Fifth Third Securities, Inc., Case No. A0909076 District of Ohio (Hamilton County) (obtained summary judgment on all claim assets related to U.S. Court of Appeals, Sixth investment losses); 2012 Ohio 4016 (Ohio App.) (affirmed grant of summary Circuit judgment to Defendants) EDUCATION Green, et al. v. Griffin Industries, Inc., et al., Civ. Action No. 03CVS5048382F J.D., University of Cincinnati (State of eorgia, Fulton Cty., Sup. Ct.) (defended client in tort class action College of Law, 1993, Order litigation) of the Coif, Law Review, Member 1991-1992 and Cincom Systems, Inc. v. Novelis Corp., 581 F.3d 431 (6th Cir. Sept. 25, 2009) Lead Article Editor, (affirmed district court decision finding Novelis Corp. infringed Cincom’s 1992-1993, Student Bar Association President, copyrighted materials) 1992-1993 Shirk et al. v. Fifth Third Bancorp et al., 2009 U.S. Dist. Lexis 90775 (S.D. Ohio B.A., Miami University, 1990, Sept. 30, 2009) (summary judgment granted on ERISA excessive fees class cum laude, college forensics, student government, peer action litigation); 71 Fed. R. Serv. 3d (Callaghan) 1199, 44 Employee Benefits advisor, Sigma Tau amma Cas. (BNA) 2936 ( Jan. 29, 2009) (summary judgment granted on ERISA stock Fraternity drop class action litigation) Segal v. Fifth Third Bank N.A., 581 F.3d 305 (6th Cir. 2009) (affirmed dismissal of class action complaint affirmed based on SLUSA preemption)
REPRESENTATIVE APPELLATE MATTERS MJS & Associates v. Master, et al., Case No. 12-15-00219-cv (Tex. App. Sept. 7, 2016) (oral argument and on papers) Hathorn, et al. v. Dana Motor Co., LLC, 2016-Ohio-5110 (Hamilton Cty. App. July 27, 2016) (oral argument and on papers) Dudenhoeffer v. Fifth Third Bancorp, 692 F.3d 410 (6th Cir. Sept. 5, 2012) (oral argument and on papers) LaWarre v. Fifth Third Securities, Inc., 2012-Ohio-4016 (Hamilton Cty. App. Sept. 5, 2012) (oral argument and on papers) Nat'l Union Fire Ins. Co. v. Wuerth, 349 F. App x 983 (6th Cir. 2009) (oral argument and on papers) Nat'l Union Fire Ins. Co. v. Wuerth, 122 Ohio St. 3d 594 (2009) (oral argument and on papers)
One East Fourth Street, Suite 1400, Cincinnati, OH 45202 TEL: 513.579.6400 FAX: 513.579.6457 www.kmklaw.com Case 1:04-cv-09866-LTS-HBP Document 713-14 Filed 11/11/16 Page 16 of 20
Joseph M. Callow, Jr. (Continued)
AWARDS & RECOGNITIONS Named the “Cincinnati Best Lawyers' Antitrust Litigation Lawyer of the Year, 2012, 2017 Listed in Chambers USA: America's Leading Business Lawyers, 2016 Listed in The Best Lawyers in America, 2011-2017 Named to Ohio Super Lawyers, 2010-2016 AV Preeminent Peer Review Rated, Martindale-Hubbell Cincinnati Academy of Leadership for Lawyers (CALL), Class XI
SPEAKING ENGAGEMENTS KMK Law Second Annual Cybersecurity Privacy Seminar, Hilton Cincinnati Netherland Pla a, June 8, 2016 10 Recent Litigation Decisions Every Attorney Should Know, KMK Legal Update, December 10, 2015 DTI/KMK Breakfast Briefing: Information overnance and E-Discovery in Office 365, November 16, 2015 Warren v. Dimon, Congress v. the People, and Other Policy Tradeoffs and Tensions in Cybersecurity Protection, 8th Annual CyberSecurity Symposium, October 9, 2015 Cybersecurity Privacy Seminar, April 27, 2015 Film Screening/Panel Discussion, The Decade of Discovery, Northern Kentucky University Chase College of Law / Law Informatics Institute, February 26, 2015 Fifth Third v. Dudenhoeffer: The Impact of the Decision on the Future of Stock Drop Cases and Litigation Regarding Plan Investments, Panel Member, American Conference Institute s 8th ERISA Litigation Summit, October 27-28, 2014, April 2014
PUBLICATIONS CyberSecurity News: Spokeo, alaria and Braitberg, September 13, 2016 Cybersecurity 101 10 Simple Practice Pointers For Every Lawyer and Client, The CBA Report, June 18, 2015
MENTIONED & QUOTED Egg Buyers Don t Prove Liability In Antitrust Suit, Judge Told, Law360.com, April 5, 2016
PROFESSIONAL AND COMMUNITY INVOLVEMENT Federal Bar Association Ohio State Bar Association Cincinnati Bar Association Seven Hills Middle School, Athletic Booster
One East Fourth Street, Suite 1400, Cincinnati, OH 45202 TEL: 513.579.6400 FAX: 513.579.6457 www.kmklaw.com Case 1:04-cv-09866-LTS-HBP Document 713-14 Filed 11/11/16 Page 17 of 20
Paul V. Muething MANA IN PARTNER
Keating Muething & Klekamp PLL One East Fourth Street Suite 1400 Cincinnati, OH 45202 TEL: (513) 579-6517 FAX: (513) 579-6457 pmuething kmklaw.com
. PRACTICE AREAS Paul Muething s practice is concentrated in the areas of business planning, Start-Ups and rowth corporate law and real estate development. He represents both public and private Companies companies. Paul has served as the Managing Partner of the firm since 1995 and is Mergers Ac uisitions a member of the KMK Board of Directors. Real Estate Financing Construction Development AWARDS & RECOGNITIONS AV Preeminent Peer Review Rated, Martindale-Hubbell BAR & COURT ADMISSIONS Listed in The Best Lawyers in America, 2007-2017 Ohio Named to Ohio Super Lawyers, 2004-2016 U.S. District Court, Southern District of Ohio PROFESSIONAL AND COMMUNITY INVOLVEMENT EDUCATION American Bar Association J.D., University of Cincinnati Cincinnati Bar Association College of Law, 1977; Order of the Coif, Law Review Ohio State Bar Association B.A., Xavier University, 1974; Chatfield College, Board of Trustees magna cum laude The Ursuline Foundation, Chairman of the Board Xavier University, former member of the Board of Trustees Catholic Inner-City Schools Education Fund (CISE) 2010 Campaign Chairman Southern Ohio Leukemia Lymphoma Society, former member of the Board of Trustees Ursuline Academy of Cincinnati, former Chairman of the Board and former member of the Board of Directors
One East Fourth Street, Suite 1400, Cincinnati, OH 45202 TEL: 513.579.6400 FAX: 513.579.6457 www.kmklaw.com Case 1:04-cv-09866-LTS-HBP Document 713-14 Filed 11/11/16 Page 18 of 20
regory M. Utter PARTNER
Keating Muething & Klekamp PLL One East Fourth Street Suite 1400 Cincinnati, OH 45202 TEL: (513) 579-6540 FAX: (513) 579-6457 gmutter kmklaw.com
. PRACTICE AREAS For more than 30 years, reg has worked with clients daily, helping them address Class Action Litigation legal issues, resolve disputes and representing them in litigation. reg s practice is Mass Tort concentrated in the areas of class action, multi-district litigation, complex Commercial Securities commercial litigation and personal injury. He has significant trial experience in state Litigation and federal courts throughout the United States. reg has successfully False Claims Act ui Tam represented plaintiffs and defendants in numerous commercial and class action Litigation matters involving employment, shareholder derivative, tort, antitrust and contract Personal Injury / Wrongful disputes. Death In October 2012, reg was inducted into the American College of Trial Lawyers, BAR & COURT ADMISSIONS membership in which is extended by invitation only to experienced trial lawyers Ohio who have demonstrated exceptional skill as advocates and who are recogni ed as U.S. District Court, Southern the very best of the courtroom bar. District of Ohio reg has been recogni ed by Best Lawyers in America as the 2017 Lawyer of the U.S. Court of Appeals, Second Circuit Year in Litigation Labor and Employment Law in Cincinnati, Ohio. U.S. Court of Appeals, Ninth Circuit REPRESENTATIVE MATTERS U.S. Court of Appeals, Sixth Currently represents Cintas Corporation in a variety of class action and complex Circuit litigation matters U.S. Supreme Court National trial counsel for publicly traded large fleet trucking company Representation of National Logistics Trucking Company in defense of FLSA EDUCATION J.D., University of Cincinnati national class action overtime claim by employees College of Law, 1981 Representation of National Engineering Firm in defense of FLSA national class B.B.A., University of action overtime claim by employees Cincinnati, 1978; magna cum laude Representation of large public company in national class action alleging gender discrimination in hiring practices Representation of large public company in prosecution of RICO and related claims again various unions Representation of egg producers in antitrust national class action litigation Representation of Relator in False Claims Act litigation resulting in 65 million settlement
One East Fourth Street, Suite 1400, Cincinnati, OH 45202 TEL: 513.579.6400 FAX: 513.579.6457 www.kmklaw.com Case 1:04-cv-09866-LTS-HBP Document 713-14 Filed 11/11/16 Page 19 of 20
regory M. Utter (Continued)
Representation of large public company in obtaining dismissal of False Claims Act litigation initiated against public company Representation of regional franchisor in defense of FLSA national class action overtime claim by employees Representation of regional nursing home conglomerate in defense of FLSA national class action overtime claim by employees Representation of telecommunications broker against large telecommunications carrier resulting in multi-million dollar award Representation of class of descendents of landowners against U.S. overnment for claims arising out of confiscation of lands for development of the Manhattan Project during World War II which resulted in a 10 million settlement through act of Congress Representation of large publicly held corporation in national class action litigation and settlement related to alleged environmental charge overages Representation of plaintiffs in national class action against telecommunications provider Representation of numerous plaintiffs in defective medical device claims against manufacturers of medical devices Representation of plaintiffs in national class action alleging defective medical devices which resulted in a multi-million dollar settlement Representation of large privately held entity in claim for insurance coverage related to contaminated real estate which resulted in a multi-million dollar receipt Representation of individual sellers of privately held business in breach of contract claim resulting in payment to sellers of several million dollars Representation of individual owner of multiple franchises in breach of contract claim resulting in a multi-million dollar sale of franchises Representation of several individual plaintiffs in personal injury and wrongful death matters resulting in individual multi-million dollar judgments and settlements
AWARDS & RECOGNITIONS American College of Trial Lawyers, Fellow Litigation Counsel of America, Fellow American Board of Trial Advocates, Associate AV Preeminent Peer Review Rated, Martindale-Hubbell Listed in The Best Lawyers in America, 2007-2017 Named by Best Lawyers in America as the 2017 Lawyer of the Year for Litigation Labor and Employment Law in Cincinnati Named to Ohio Super Lawyers since 2004
PROFESSIONAL AND COMMUNITY INVOLVEMENT Cincinnati Bar Association Ohio State Bar Association
One East Fourth Street, Suite 1400, Cincinnati, OH 45202 TEL: 513.579.6400 FAX: 513.579.6457 www.kmklaw.com Case 1:04-cv-09866-LTS-HBP Document 713-14 Filed 11/11/16 Page 20 of 20
regory M. Utter (Continued)
National Institute of Trial Advocacy, Instructor Spectrum Networks, Inc., Board of Directors Ursuline Academy of Cincinnati, Board of Trustees, Building and rounds Committee; former president of the Dad s Club Southwestern Ohio Council on Child Abuse, former President and Board of Directors
One East Fourth Street, Suite 1400, Cincinnati, OH 45202 TEL: 513.579.6400 FAX: 513.579.6457 www.kmklaw.com Case 1:04-cv-09866-LTS-HBP Document 713-15 Filed 11/11/16 Page 1 of 8
Exhibit M Case 1:04-cv-09866-LTS-HBP Document 713-15 Filed 11/11/16 Page 2 of 8 Case 1:04-cv-09866-LTS-HBP Document 713-15 Filed 11/11/16 Page 3 of 8 Case 1:04-cv-09866-LTS-HBP Document 713-15 Filed 11/11/16 Page 4 of 8 Case 1:04-cv-09866-LTS-HBP Document 713-15 Filed 11/11/16 Page 5 of 8 Case 1:04-cv-09866-LTS-HBP Document 713-15 Filed 11/11/16 Page 6 of 8 Case 1:04-cv-09866-LTS-HBP Document 713-15 Filed 11/11/16 Page 7 of 8
EXHIBIT 3
In Re Pfizer Securities Litigation No. 04-cv-9866 (LTS)(HPB)
JOSHUA E. DUBIN, ESQ., P.A.
FIRM BIOGRAPHY
Joshua E. Dubin, Esq., P.A. is a firm that specializes in high-stakes complex commercial litigation, high-profile criminal defense cases, and entertainment law. The firm’s practice areas include securities fraud, breach of contract, civil rights, breach of fiduciary duty, business disputes, legal malpractice, white-collar crimes and violent felonies. The following are some of the our representative matters:
y Represented Cablevision in a multi-billion dollar breach of contract trial against EchoStar (parent company for the Dish Network). The case settled successfully for our client prior to closing arguments;
y Currently represents AMC Networks in a breach of contract lawsuit involving one of their most highly rated televisions shows;
y Represented two men at their civil rights trial against Nassau County. The men were exonerated by the Innocence Project after serving eighteen years each in prison for a rape and murder they did not commit. The jury awarded $36 million, which, at the time, was the largest jury verdict in U.S. history in a wrongful incarceration case;
y Represented portfolio manager for a large hedge fund in his criminal trial for securities fraud;
y Currently represents woman freed from Arizona’s death row after 23 years in her civil rights lawsuit against Maricopa County;
y Represented several world champion professional boxers in various high-stakes business litigations, including former Heavyweight Champion of the World Lennox Lewis and Super Middle Weight Champion of the World Andre Ward various.
BIOGRAPHY OF LAWYER INVOLVED IN REPRESENTATION
Mr. Dubin is regarded as one of the preeminent trial strategists in the country and is regularly called upon by some of the most successful attorneys and law firms in the country to co-counsel on high-stakes litigation, including Winston & Strawn, Quinn Case 1:04-cv-09866-LTS-HBP Document 713-15 Filed 11/11/16 Page 8 of 8
Emanuel, O’Melveny & Myers, Gibson Dunn & Crutcher, Roy Black, Barry Scheck,
Jay Eisenhofer, Jerry Shargel, Jerry Lefcourt, and Peter Neufeld. He recently co- authored a book entitled The Law of Juries for Thomson Reuters, who referred to him as a “master strategist” and “secret weapon.” His co-author, former United States Federal
Judge Nancy Gertner, praised him by saying “he completely masters the details of the case, and brings to bear not only legal analysis, but also the teachings of social psychology, his multiple areas of expertise.” ABC’s 20/20 regarded Mr. Dubin as the
“leading legal consultant on major criminal and civil cases” who is “often sought by top- tier defense attorneys and plaintiffs’ attorneys for his advice on jury selection, trial strategy and presenting the facts.”
Mr. Dubin is also a sought after lecturer, having taught litigation and trial strategy at Brooklyn Law School, Cardozo Law School, for the NACDL, the American Trial
Lawyers Association, the New York State Bar Association, the American Society of Trial
Consultants, Inns of Court, and John Jay College. Mr. Dubin has also served as a faculty member for the Eye Witness Identification Litigation Reform Network, chaired by Barry
Scheck. Case 1:04-cv-09866-LTS-HBP Document 713-16 Filed 11/11/16 Page 1 of 10
Exhibit N Case 1:04-cv-09866-LTS-HBP Document 713-16 Filed 11/11/16 Page 2 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-16 Filed 11/11/16 Page 3 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-16 Filed 11/11/16 Page 4 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-16 Filed 11/11/16 Page 5 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-16 Filed 11/11/16 Page 6 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-16 Filed 11/11/16 Page 7 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-16 Filed 11/11/16 Page 8 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-16 Filed 11/11/16 Page 9 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-16 Filed 11/11/16 Page 10 of 10 Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 1 of 20
Exhibit O Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 2 of 20
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
No. 04-cv-9866 (LTS)(HBP) IN RE PFIZER INC. SECURITIES LITIGATION ECF CASE
DECLARATION OF JONATHAN S. MASSEY IN SUPPORT OF LEAD COUNSEL’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND EXPENSES FILED ON BEHALF OF MASSEY & GAIL LLP
I, Jonathan S. Massey, declare as follows:
1. I am a partner in the law firm of Massey & Gail LLP (“M&G”). I submit this declaration in support of Lead Counsel’s application for an award of attorneys’ fees in connection with services rendered in the above-captioned action (“Action”) from inception through September 16, 2016 (the “Time Period”). I have personal knowledge of the matters set forth in this declaration and, if called upon, I could and would testify competently thereto.
2. M&G served as appellate counsel in this case, working at the request and under authority of Lead Counsel. M&G provided appellate advice and coordinated with Lead Counsel and other Plaintiffs’ Counsel in successfully prosecuting the appeal in the United States Court of
Appeals for the Second Circuit after the District Court dismissed the case in its entirety based on the exclusion of Plaintiffs’ loss causation and damages expert on the eve of trial pursuant to a
Daubert motion. Among other things, M&G analyzed the record in the District Court related to the exclusion of Plaintiffs’ loss causation and damages expert and the District Court’s earlier dismissal—based on the Supreme Court’s decision in Janus Capital Group, Inc. v. First
Derivative Traders, 564 U.S. 135 (2011)—of certain statements made by Pfizer Inc.’s co- promotion partner, Pharmacia Corporation, performed legal research, participated in conference Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 3 of 20
calls with Plaintiffs’ loss causation and damages expert, worked on the briefs that were submitted to the Second Circuit in support of the appeal, analyzed Defendants’ opposition brief and appendix, and participated in strategy sessions for oral argument in the Second Circuit.
3. The schedule attached hereto as Exhibit 1 is a detailed summary indicating the amount of time spent by the attorneys of my firm who were involved in the appeal in this Action, and the lodestar calculation for those individuals based on my firm’s current billing rates. The schedule was prepared from contemporaneous daily time records regularly prepared and maintained by my firm. Time expended in preparing this application for attorneys’ fees and expenses has been excluded.
4. The hourly rates for the attorneys of my firm included in Exhibit 1 are the same as or lower than the regular rates charged for their services in other contingent and hourly matters.
5. The total number of hours expended on this Action by my firm during the Time
Period is 259.30 hours. The total lodestar for my firm for those hours is $156,019.00.
6. At the request of Lead Counsel, in order to provide the Court with additional detail regarding my firm’s lodestar, Exhibit 2 hereto provides a breakdown of the hours incurred by my firm, and resulting lodestar, for each of the following time categories: (1) work performed between the inception of the case and the Court’s decision rendered on September 4, 2008 regarding Defendants’ Motion for Reconsideration of the Court’s decision on Defendants’
Motion to Dismiss; (2) work performed between September 5, 2008 and the Court’s decision on
March 22, 2010 regarding Defendants’ Daubert motions to exclude expert testimony (related to
Statistical Significance); (3) work performed between March 23, 2010 and Defendants’ initial motion for Summary Judgment filed on July 2, 2012; (4) work performed between July 3, 2012 and the Court’s issuance of its initial Summary Judgment ruling on March 28, 2013; (5) work
- 2 - Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 4 of 20
performed between March 29, 2013 and the Court’s issuance of its second Summary Judgment ruling on July 8, 2014; (6) work performed between July 9, 2014 and the issuance of the Second
Circuit’s appellate opinion on April 12, 2016; and (7) work performed between April 13, 2016 and the Court’s granting of Preliminary Approval to the Settlement on September 16, 2016.
7. With respect to the standing of my firm, attached hereto as Exhibit 3 is a brief biography of M&G and the attorneys in M&G who were involved in this Action.
I declare under penalty of perjury that the foregoing is true and correct. Executed on
November 2, 2016, in Washington, D.C.
______Jonathan S. Massey
- 3 - Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 5 of 20
EXHIBIT 1
In re Pfizer Inc. Securities Litigation No. 04-cv-9866 (LTS)(HBP)
MASSEY & GAIL LLP
LODESTAR REPORT
Inception through September 16, 2016
NAME HOURS HOURLY AMOUNT RATE PARTNERS: 194.5 $130,747.00
Jonathan S. Massey 145.1 $690.00 $100,119.00 Marc A. Goldman 49.4 $620.00 $30,628.00
ASSOCIATES: 64.8 $25,272.00
Jeremy G. Mallory 52.8 $390.00 $20,592.00 Matt J. Reedy 12.0 $390.00 $4,680.00
TOTALS: 259.30 $156,019.00 Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 6 of 20
EXHIBIT 2
In re Pfizer Inc. Securities Litigation No. 04-cv-9866 (LTS)(HBP)
MASSEY & GAIL LLP
SUMMARY OF HOURS WORKED BY CATEGORY
Category of Work Date Total Total Lodestar Range Hours Work performed between the inception of the case and the Court’s decision rendered on September 4, 2008 regarding Inception- 1 Defendants’ Motion for 9/4/2008 Reconsideration of the Court’s decision on Defendants’ Motion to Dismiss Work performed between September 5, 2008 and the Court’s decision on March 22, 2010 9/5/2008- 2 regarding Defendants’ Daubert 3/22/2010 motions to exclude expert testimony (related to Statistical Significance) Work performed between March 23, 2010 and Defendants’ initial 3/23/2010- 3 motion for Summary Judgment 7/2/2012 filed on July 2, 2012 Work performed between July 3, 2012 and the Court’s issuance of its 7/3/2012- 4 initial Summary Judgment ruling 3/28/2013 on March 28, 2013 Work performed between March 29, 2013 and the Court’s issuance 3/29/2013- 5 of its second Summary Judgment 7/8/2014 ruling on July 8, 2014 Work performed between July 9, 2014 and the issuance of the 7/9/2014- 259.30 $156,019.00 6 Second Circuit’s appellate opinion 4/12/2016 on April 12, 2016 Work performed between April 13, 2016 and the Court’s granting of 4/13/2016- 7 Preliminary Approval to the 9/16/2016 Settlement on September 16, 2016 TOTALS: 259.30 $156,019.00 Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 7 of 20
EXHIBIT 3
In re Pfizer Inc. Securities Litigation No. 04-cv-9866 (LTS)(HBP)
MASSEY & GAIL LLP
FIRM BIOGRAPHY
Since its formation in 2008, Massey & Gail LLP has dedicated itself to providing clients with the highest quality legal services—from strategic advice to trial and appellate advocacy.
The firm offers clients exceptional judgment, expertise, and results by bringing together two founding partners with a combined nearly six decades of experience. The founders have carefully assembled a varied, seasoned, and talented team of litigators and counselors. The firm’s experience spans Supreme Court and appellate advocacy, civil and criminal trial work, and executive level in-house advice and counsel.
Our lawyers have exceptional experience. We have served as legal officers and general counsel in government agencies. We have worked in-house. We have prosecuted crimes for the
U.S. Attorney’s office in Chicago. We have taught at Harvard Law School, the Georgetown
University Law Center, the University of Chicago Law School, and the University of Iowa Law
School. We have clerked for the U.S. Supreme Court, the U.S. Courts of Appeals for the Third,
Fifth, Seventh, and D.C. Circuits, and the U.S. District Court for the Northern District of Illinois.
We excelled in the legal academy, having graduated from premier law schools, with two members serving as Editors-in-Chief of their respective law reviews. And we have succeeded in our prior careers at partnership positions at major law firms and litigation boutiques.
Our streamlined approach provides higher quality legal services. The firm’s judicious staffing ensures that our partners are thoroughly and completely engaged in each matter. Because Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 8 of 20
our knowledge is not filtered through layers of younger and less experienced attorneys, we can provide our clients with more complete and informed advice, and develop their cases with better strategic sense.
We recognize that legal matters are business issues, and we remain keenly aware that
Pyrrhic legal victories do not further our clients’ interests. Our responsibility is to identify endgame solutions from the outset and to secure them expeditiously.
We treat every case as a distinct and individual matter. We do not turn on the “auto-pilot” button upon retention, nor do we force each matter into the same cookie-cutter mold. Our experience teaches us that there are nuanced differences in the legal and factual questions presented by every case, that creative solutions can yield significant results, and that it is frequently feasible to identify short-cuts that will bring our clients’ disputes to resolution more easily and with respect for the bottom line. Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 9 of 20
Jonathan S. Massey
Jonathan S. Massey has represented many leading business corporations, former Vice President Al Gore (in Bush v. Gore), Members of Congress, U.S. states, foreign countries, and eleemosynary institutions such as Harvard, Yale, and Princeton universities. His nearly three decades of practice have involved a broad variety of complex legal questions in trial and appellate courts, including antitrust, bankruptcy, telecommunications, securities, financial services, tax, environmental, and civil procedure questions, as well as federal and state constitutional issues. Mr. Massey has argued over 40 cases in federal and state courts, including three in the U.S. Supreme Court. He has filed briefs in dozens of other matters, including more than 80 in the U.S. Supreme Court alone. He has worked with many legal luminaries including Laurence Tribe of Harvard Law School, as well as Charles Fried, Kenneth Starr, Richard Epstein, Arthur Miller, Erwin Chemerinsky, David Shapiro, Stephen Saltzburg, and Stephen Burbank. Mr. Massey has an active regulatory practice and has represented clients before the Federal Communications Commission, Federal Trade Commission, Environmental Protection Agency, Food & Drug Administration, and other federal agencies. He also counsels clients in a wide range of non-litigation contexts and assists them in successfully resolving disputes outside the courthouse. Education x Harvard Law School, J.D., magna cum laude, 1988 x Harvard College, A.B., magna cum laude, 1985 Clerkships x Judge Abner J. Mikva, United States Court of Appeals for the D.C. Circuit, 1988-89 x Supreme Court Justice William J. Brennan, Jr., 1989 Term Government Service x Deputy Special Counsel to Independent Counsel Lawrence Walsh (1993-1994) Teaching x Lecturer, Harvard Law School, 2014-present x Instructor in appellate advocacy, D.C. Bar course for new admittees, 2015-present x Adjunct Professor of Law, Georgetown University Law Center, 1996-2000
Awards and Honors x Global Competition Review 2015 award for Litigation of the Year - Non-Cartel Prosecution, for O’Bannon v. NCAA x “Super Lawyers” designation 2014-present x National Debate Champion, 1985 x Phi Beta Kappa, Harvard College x Editor, Harvard Law Review Representative Matters Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 10 of 20
x Bush v. Gore, 531 U.S. 98 (2000); Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000) (represented Vice President Al Gore in the 2000 Florida election litigation). x Mississippi ex rel Hood v. AU Optronics Corp., 134 S. Ct. 736 (2014) (successfully briefed and argued Class Action Fairness Act case on behalf of the Attorney General of Mississippi). x Dole Food Co. v. Patrickson, 538 U.S. 468 (2003) (successfully briefed and argued Foreign Sovereign Immunities Act case). x Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001) (briefed and argued case presenting question of proper standard of appellate review in punitive damages cases). x West Virginia v. EPA, No. 15A773 (U.S. Feb. 9, 2016) (successfully briefed first-ever Supreme Court stay of agency regulation prior to judicial review in lower courts). x State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996); Honda Motor Co. v. Oberg, 512 U.S. 415 (1994); TXO Production Co. v. Alliance Resources Corp., 509 U.S. 443 (1993) (briefed leading Supreme Court punitive damages cases). x Gratz v. Bollinger, 539 U.S. 244 (2003) (filed amici brief on behalf of Harvard, Yale, Princeton, and other universities regarding affirmative action). x Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997); Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) (briefed leading Supreme Court cases on class action settlements). x Semtek Intern. Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001) (briefed leading Supreme Court case on preclusion principles in diversity cases). x Baker v. General Motors Corp., 522 U.S. 222 (1998) (briefed Supreme Court case on Full Faith and Credit Clause). x Daubert v. Merrell Dow Pharmaceuticals, Inc., 516 U.S. 869 (1996) (briefed leading Supreme Court scientific evidence case). x Chavez v. Dole Food Company, Inc., No. 13-4144, 2016 WL 4578641 (3d Cir. Sept. 2, 2016) (en banc) (successfully briefed and argued en banc appeal unanimously reversing panel decision and persuaded original authoring judge to switch vote as well). x Schramm v. JP Morgan Chase Bank, N.A., 2016 WL 3693438 (9th Cir. July 12, 2016) (successfully briefed and won without oral argument appeal presenting question whether mortgage lending disclosures complied with the federal Truth in Lending Act). x In re Payment Card Interchange Fee and Merchant Discount Antitrust Litig., 827 F.3d 223 (2d Cir. 2016) (briefed challenged to settlement of antitrust litigation against Visa and Mastercard for allegedly conspiring to fix “interchange” fees used to process credit card transactions). x In re Pfizer, Inc. Securities Litig., 819 F.3d 642 (2d Cir. 2016) (successfully briefed appeal of securities fraud case reversing district court’s outcome-determinative exclusion of damages expert under Fed. R. Evid. 702 and Daubert). x Lompe v. Sunridge Partners, 818 F.3d 1041 (10th Cir. 2016) (briefed challenge to personal injury award including punitive damages). Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 11 of 20
x O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir 2015), cert. denied, 2016 WL 5640199 (Oct. 3, 2016) (successfully briefed landmark appeal holding NCAA liable under federal antitrust law). x In re Murray Coal Co., 788 F.3d 330 (D.C. Cir. 2015) (briefed challenge to EPA Clean Power Plan). x Madstad Engineering, Inc. v. U.S. Patent and Trademark Office, 756 F.3d 1366 (Fed. Cir. 2014), cert. denied, 135 S. Ct. 1398 (2015) (briefed and argued constitutional challenge to the First-Inventor-To-File provisions of the America Invents Act of 2011). x Keen v. JPMorgan Chase Bank, N.A., 2015 WL 6089987 (N.D. Cal. Oct. 16, 2015) (successfully briefed and argued Truth-in-Lending-Act challenge to mortgage lending disclosures). x Town of Barnstable v. O’Connor, 786 F.3d 130 (1st Cir. 2015) (successfully briefed appeal to district court holding that Eleventh Amendment immunity applied to suit alleging Massachusetts officials unconstitutionally forced utility to buy electricity from off-shore wind farm). x Dow Chemical Corp. v. Blanco, 67 A.3d 392 (Del. 2013) (successfully briefed and argued case on cross-jurisdictional class action tolling of statutes of limitation). x Connecticut Bar Ass’n v. U.S., 620 F.3d 81 (2d Cir. 2010) (briefed and argued First Amendment challenge to provisions of Bankruptcy Reform Act of 2005 restricting attorney speech). x Intercollegiate Broadcast System, Inc. v. Copyright Royalty Bd., 571 F.3d 69 (D.C. Cir. 2009), 574 F.3d 748 (D.C. Cir. 2009) (briefed challenge to copyright royalty rates on behalf of commercial webcasting services). x Newby v. Enron Corp., 542 F.3d 463 (5th Cir. 2008); In re Enron Corp. Securities, 535 F.3d 325 (5th Cir. 2008); Fleming & Associates v. Newby & Tittle, 529 F.3d 631 (5th Cir. 2008) (briefed and argued series of appeals involving the ability of Enron shareholders to file state-law securities fraud claims in state court). x Collier v. Aksys, Inc., 179 Fed. Appx. 770 (2d Cir. 2006) (successfully briefed and argued appeal for hedge fund defendant in a civil securities fraud action). x Smart v. Wyeth, 123 Fed. Appx. 465 (3d Cir. 2005), cert. denied, 546 U.S. 818 (2005) (briefed and argued appeal presenting question whether federal court that approved a class action settlement is permitted to regulate ongoing state trial court proceedings by requiring stipulation to a reverse bifurcation procedure). x In re Diet Drugs Prods. Liab. Litig., 385 F.3d 386 (3d Cir. 2004); In re Diet Drugs Prods. Liab. Litig., 90 Fed. Appx. 643 (3d Cir. 2005); In re Diet Drugs Prods. Liab. Litig, 431 F.3d 141 (3d Cir. 2005); In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372 (3d Cir. 2005); In re Briscoe, 448 F.3d 201 (3d Cir. 2006); In re Wilson, 451 F.3d 161 (3d Cir. 2006) (briefed and argued series of appeals involving challenges to the Diet Drugs Products Liability settlement). x Bank One, N.A. v. Shumake, 281 F.3d 507 (5th Cir. 2002) (briefed and argued appeal presenting the question whether the prudential “tribal exhaustion” doctrine displaces the statutory command of the Federal Arbitration Act). Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 12 of 20
x Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003) (represented U.S. citizens formerly held hostage in the U.S. Embassy in Tehran from 1979-1981 in a suit for damages against Iran). x First National Bank of Chicago v. Ackerley Communications, Inc., 28 Fed. Appx. 61 (2d Cir. 2002) (briefed and argued appeal presenting the question of the enforceability of an option under an interest-rate-swap agreement). x Pritchard v. Coram Healthcare Corp., No. B215010 (Cal. App. 2d Dist.) (briefed and argued appeal on behalf of health care provider in a multi-million-dollar medical malpractice case). x Patrickson v. Dole Food Co., 251 F.3d 795 (9th Cir. 2001) (per Kozinski, J.) (successfully briefed and argued Foreign Sovereign Immunities Act appeal).
Community Involvement x National Association of Urban Debate Leagues, Board Member Admissions x Maryland x District of Columbia x New York x United States Supreme Court x United States District Court for the District of Columbia x United States District Court for the Southern District of Texas x United States Court of Appeals for the First Circuit x United States Court of Appeals for the Second Circuit x United States Court of Appeals for the Third Circuit x United States Court of Appeals for the Fourth Circuit x United States Court of Appeals for the Fifth Circuit x United States Court of Appeals for the Sixth Circuit x United States Court of Appeals for the Seventh Circuit x United States Court of Appeals for the Ninth Circuit x United States Court of Appeals for the Tenth Circuit x United States Court of Appeals for the Eleventh Circuit x United States Court of Appeals for the Federal Circuit x United States Court of Appeals for the D.C. Circuit
Publications x “The Two That Got Away: First American Financial Corp. v. Edwards and Kiobel v. Royal Dutch Petroleum Co.,” 6 Charleston L Rev. 63 (2012); x AEP’s Tipping Point: Implied Preemption of Climate-Change Common Law Claims,” Washington Legal Foundation Working Paper No. 179 (Feb. 1, 2012) (with Tristan Duncan); Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 13 of 20
x “Wrong Ideas About Wrongful Death Statutes,” 33 Trial 24 (Jan. 1997); x “Preemption of Medical Device Tort Claims: Recent Developments,” 31 Trial 26 (Nov. 1995); x “The Florida Tobacco Liability Law: Fairy Tale Objections to a Reasonable Solution to Florida’s Medicaid Crisis,” 46 Fla. L. Rev. 591 (1995). Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 14 of 20
Marc A. Goldman
Marc A. Goldman has two decades of litigation experience. From 1994 through February 2015, he worked at Jenner & Block, where he became an equity partner in 2002.
He has handled a wide array of complex commercial matters (both individual disputes and class actions) including securities, contract, patent, and constitutional disputes, among others. He also has represented many clients in regulatory rulemakings and in related litigation, including agency enforcement actions, challenges to rulemakings, and litigation between commercial actors substantially impacted by regulatory regimes (telecommunications, securities, and energy in particular). For example, he served as national counsel to a major telecommunications carrier in more than a dozen high stakes cases concerning regulatory arbitrage schemes—cases that were litigated before the FCC, district courts, and courts of appeal and that all resulted in dismissals or favorable settlements. He also has filed more than fifteen briefs before the United States Supreme Court.
In addition, Mr. Goldman has devoted significant time to pro bono work including class actions on behalf of public housing residents that resulted in significant consent decrees, a habeas action on behalf of the second Guantanamo detainee charged with war crimes that helped facilitate a favorable plea agreement, and a successful challenge to a voter purge in Florida on behalf of a coalition of non-profits and individual voters.
In the spring of 1999, he served as a visiting professor of constitutional law at the University of Iowa Law School.
Education x Harvard Law School, J.D., magna cum laude, 1993. Supervising Editor of the Harvard Law Review. x Harvard College, A.B., magna cum laude 1988. Ranked in top 5 in nation in college debate. x Harvard Graduate School 1988-90. Completed coursework and examples for a Ph.D. in Government.
Clerkship x The Honorable Edward Becker, Chief Judge of the U.S. Court of Appeals for the Third Circuit.
Community Activity x Founding Board Member of Washington Urban Debate League. x Active pro bono practice.
Publications x Making Sense of Prometheus, INTELLECTUAL PROPERTY, ABA Section of Litigation, (September 12, 2012). x The USTA Decisions and the Rise and Fall of Telephone Competition, 22 COMMUNICATIONS LAWYER (Summer 2004). Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 15 of 20
x Case Comment, Grounds for Modification of Consent Decrees: Rufo v. Inmates of Suffolk County Jail, 106 HARVARD LAW REVIEW (1992). x Panel, Washington College of Law, Supreme Court Series: Lexmark International, Inc. v. Static Control Components, Inc ; available at http://www.pijip-impact.org/lexmark (December 12, 2013).
Representative Cases Telecommunications x Served as lead counsel for Sprint in Beehive Telephone Co., Inc v. Sprint Communications Company, L.P. (D. Utah, 2:10cv00052), leading to dismissal of complaint based on principles of issue preclusion. x Served as lead counsel for Sprint in Beehive Telephone Co., Inc. v. Sprint Communications Company, L.P. (D. Utah, 2:08-cv-00380), leading to dismissal of Beehive’s claims under Section 207 of Communications Act and continuation of case as to Sprint’s counterclaims. x Served as lead counsel for Sprint in Sprint Communications Company, L..P.. v. Northern Valley Communications, LLC (FCC, , EB-11-MD-003), leading to invalidation of Northern Valley’s tariff as inconsistent with multiple statutory and regulatory provisions. x Served as lead counsel to Sprint in a plethora of other cases involving regulatory arbitrage, leading to favorable settlements. x Served as lead counsel to major telecommunications carrier in three class actions concerning overbilling, resulting in dismissal of one and successful resolution of the other two prior to class certification. x Served as counsel to major telecommunications carrier on appeals related to telecommunications issues, including Supreme Court cases on the meaning of the Communications Act of 1996, the interaction between the antitrust laws and the Communications Act, and the interaction of abstention doctrines and the Communications Act. x Represented clients in numerous FCC proceedings including proceedings to implement the Telecommunications Act of 1996, such as an FCC arbitration on pricing models, and proceedings to obtain approval of mergers. Finance and Securities x Advised major financial institution on Dodd Frank financial regulations. x Advised major financial institution on issues related to relationships of banks and financial aggregators. x Represented GM in a later-settled SEC investigation involving pension, derivatives and commodities accounting and disclosure issues. x Represented bankrupt Fortune 500 company in successful effort to obtain recourse from banks that sold auction rate securities that later became nearly valueless. Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 16 of 20
x Helped defend largest FINRA arbitration award in history arising from the failure of the auction rate securities market. Other regulatory x Represented North Carolina Public Utilities Commission in investigation of potential misrepresentations in merger of energy companies. x Represented a subsidiary of Delta Airlines in D.C. Circuit challenge to EPA’s 2013 rule on renewable fuel standards and in crafting strategy at EPA to waive or revise policy going forward. Contract x Represented JP Morgan Chase in successful appeal of judgment for breach of brokerage contract. Intellectual Property x Drafted amicus brief for American Intellectual Property Law Association in Lexmark International, Inc. v. Static Control Components, Inc., regarding standing for false advertising under the Lanham Act. Brief was described as “powerful” in a Bloomberg Law Scotusblog article and many of its arguments were accepted in the Supreme Court’s decision. Mr. Goldman participated in a panel in the case with video at http://www.pijip.org/lexmark. x Drafted amicus brief for Pharmaceutical Research and Manufacturers of America in the Bilski v. Kappos Supreme Court case on the scope of patentable subject matter x Helped successfully defend a major patent verdict at the Federal Circuit and to obtain a remand for award of additional damages x Drafted multiple Federal Circuit briefs on claim construction, validity, inequitable conduct and attorneys’ fees x Drafted summary judgment motion that helped facilitate successful settlement of patent litigation between MCI and AT&T Pro Bono x Represented two Florida voters and a coalition of nonprofits to a 2012 voter purge in Florida, resulting in: (1) an 11th Circuit decision declaring the purge illegal because such systematic purges could not occur within 90 days of a federal election, and (2) settlement of other claims resulting in restoration of voters to the rolls prior to the 2012 election. x Defended one of the first two Guantanamo detainees charged with war crimes. Case resulted in plea bargain, six month sentence and release. x Represented class of plaintiffs in suit alleging discrimination in Miami public housing and Section 8 program, resulting in consent decree altering intake procedures and other aspects of housing system for 10 years. Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 17 of 20
x Successfully argued Fourth Circuit appeal precluding modification of consent decree in Baltimore case involving desegregation of public housing. x Prepared Supreme Court amicus brief for coalition of social scientists in Town of Greece v. Galloway. arguing that prayer before town council meetings is coercive in a manner different than that before federal or state legislative sessions. x Represented coalition of law professors in filing of Supreme Court amicus brief in Pena- Rodriguez v. Colorado, arguing that post-trial challenge to jury’s verdict should be permitted based on evidence of racial bias in jury deliberations. Admissions x Washington, D.C. x United States Courts of Appeals for the D.C., Third, Fourth, Tenth, and Eleventh Circuits x United States District Courts for the District of Columbia and Utah Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 18 of 20
Jeremy G. Mallory
Jeremy G. Mallory graduated from Swarthmore College in 1995 with High Honors. In 2004 he earned a Ph.D. in ethics from the University of Chicago Divinity School, and a J.D. from The University of Chicago Law School in 2007, with Honors and Order of the Coif. At the Law School, he was Editor-in-Chief of the Law Review. Jeremy clerked for the Honorable Diane P. Wood of the Seventh Circuit Court of Appeals.
After clerking, he worked for four years at Sidley Austin and Kirkland & Ellis, focusing on securities litigation, bank regulation, environmental litigation, patents, and appellate matters. Jeremy has also taught Constitutional Law at The University of Chicago Law School, and has published articles on legislative chaplaincies and political speech. His scholarship has been cited by academics, appellate briefs, the Seventh Circuit, and the Supreme Court. In college, he was the national and North American parliamentary debate champion. Jeremy is a member of the Illinois and Massachusetts bars and is admitted to practice at the Seventh Circuit.
Education x University of Chicago Law School, J.D., with Honors, Order of the Coif, 2007 x University of Chicago Divinity School, Ph. D., Ethics, 2004 x Swarthmore College, B.A., High Honors, 1995
Clerkship x The Honorable Diane P. Wood, Seventh Circuit Court of Appeals
Admissions x Illinois x Massachusetts x United States Court of Appeals for the Seventh Circuit
Awards, Honors, and Publications x University of Chicago Law Review, Editor-in-Chief x Edmund Spencer Scholar, James Nelson Raymond Scholar, Ruth Wyatt Rosenson Scholar, Stonewall Scholar, and Bradley Student Fellow x University of Chicago Law School, Lecturer-in-Law, 2012-2013 x “Well, But That System Has Failed Entirely”: Using Theological and Philosophical Methods to Resolve Jurisprudential Confusion over Legislative Prayer, 33 Whittier L. Rev. 377 (2012) x Still Other People’s Money: Reconciling Citizens United with Abood and Beck, 47 Cal. W. L. Rev. 1 (2010) x Comment, “An Officer of the House Which Chooses Him and Nothing More”: How Should Marsh v. Chambers Apply to Rotating Chaplains?, 73 U. Chi. L. Rev. 1421 (2006), cited in Town of Greece, New York V Galloway, 572 U.S. ___, 134 S. Ct. 1811, 1821 (2014) x Dissertation, “If There be a God Who Hears Prayer: An Ethical Account of the United States Senate Chaplain” Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 19 of 20
Matthew J. Reedy
Matt J. Reedy earned his B.A. in 2006 from Northwestern University, where he was a member of the Northwestern Debate Society. After two years as a consultant for Accenture, he enrolled in law school at the University of Notre Dame where he was on the Dean's List, earned the Dean's Award in Constitutional Law and graduated magna cum laude. While at Notre Dame, he was the Federal Courts, Practice & Procedure Editor for the Notre Dame Law Review, served as President of the Sports, Communication & Entertainment Law Forum, participated in Bengal Bouts and was Head Coach of the undergraduate Parliamentary Debate Team.
As Massey & Gail’s first full-time attorney, Matt has litigated a wide range of matters. He has taken two cases to verdict in jury trials and successfully litigated three matters in arbitration. He has experience in every phase of litigation, from discovery through judgment collection and appeal.
Education x University of Notre Dame Law School, J.D., magna cum laude, 2011 x Northwestern University, B.A., 2006 Representative Matters x Secured a $6,490,000 jury verdict after a month-long trial in favor of a telecommunications company in a case involving breach of contract and other state-law claims. Straitshot Communications, Inc. v. Telekenex, Inc., 2012 WL 727271, W.D. Wash., March 06, 2012 (NO. C10-268Z). x Successfully defended a board member of a home healthcare and hospice company and trustee of a related trust in a jury trial involving breach of contract and fiduciary duty claims. DeCesare v. DeCesare, et al., CL-2013-11180 (Va. Cir.). x Secured an $8MM+ arbitration award in favor a private equity firm in its breach of contract claim with regard to the sale of a home healthcare company. HealthEdge Investment Fund, L.P., et al. v. Paul Gremillion, et al., 2015-CV-259163 (Ga. Sup. Ct.). x Secured a nearly $5MM arbitration award in favor of a dental and veterinary imaging company in an accounting dispute with its purchaser regarding the calculation of a contingent purchase price earnout. Awards and Honors x Dean’s List, University of Notre Dame Law School x Dean’s Award in Constitutional Law, University of Notre Dame Law School x Federal Courts, Practice & Procedure Editor, University of Notre Dame Law Review Publications x "Witnessing the Witness: The Case for Exclusion of Eyewitness Expert Testimony," 86 NOTRE DAME L. REV. 905 (2011) Admissions x Illinois x United States District Court for the Northern District of Illinois Case 1:04-cv-09866-LTS-HBP Document 713-17 Filed 11/11/16 Page 20 of 20
x United States Court of Appeals for the Seventh Circuit