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In Re Nu Skin Enterprises, Inc. Securities Litigation 14-CV-00033

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In Re Nu Skin Enterprises, Inc. Securities Litigation 14-CV-00033 Case 2:14-cv-00033-JNP-BCW Document 134-1 Filed 05/20/16 Page 1 of 132 Exhibit 1 Case 2:14-cv-00033-JNP-BCW Document 134-1 Filed 05/20/16 Page 2 of 132 EXECUTION COPY Jonathan Gardner (pro hac vice) Christine M. Fox (pro hac vice) Guillaume Buell (pro hac vice) LABATON SUCHAROW LLP 140 Broadway New York, New York 10005 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 [email protected] [email protected] [email protected] Eric K. Jenkins (10783) CHRISTENSEN & JENSEN, P.C. 257 East 200 South, Suite 1100 Salt Lake City, UT 84111 Telephone: (801) 323-5000 Facsimile: (801) 355-3472 Counsel for Lead Plaintiff State-Boston Retirement System and the Proposed Class IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION IN RE NU SKIN ENTERPRISES, INC., Master File No. 2:14-cv-00033-JNP-BCW SECURITIES LITIGATION Hon. Jill Parrish STIPULATION AND AGREEMENT OF This Document Related To: SETTLEMENT ALL ACTIONS Case 2:14-cv-00033-JNP-BCW Document 134-1 Filed 05/20/16 Page 3 of 132 EXECUTION COPY This Stipulation and Agreement of Settlement dated as of May 2, 2016 (the “Stipulation”), is made and entered into by and among State-Boston Retirement System (“State- Boston” or “Lead Plaintiff”), on behalf of itself, named plaintiffs Michael J. DuDash (“DuDash”) and Jason Spring (“Spring”) (collectively, “Plaintiffs”), and the Settlement Class, on the one hand, and Nu Skin Enterprises, Inc. (“Nu Skin” or the “Company”), M. Truman Hunt, and Ritch N. Wood (collectively, the “Individual Defendants” and, with Nu Skin, the “Defendants”), on the other hand. The Stipulation is intended by the parties to fully, finally and forever resolve, discharge and settle the Released Claims (defined in ¶ 1.28), upon and subject to the terms and conditions hereof. WHEREAS: A. All words or terms used herein that are capitalized shall have the meaning ascribed to those words or terms as set forth herein and in Section I.A. hereof entitled “Definitions.” The Action B. Beginning in March of 2014, four class actions were filed in the U.S. District Court for the District of Utah (the “Court”) on behalf of investors in Nu Skin: Freedman v. Nu Skin Enters., Inc., No. 2:14-cv-00033-DB (D. Utah) (filed Jan. 21, 2014); Siesser v. Nu Skin Enters., Inc., No. 2:14-cv-00074-BCW (D. Utah) (filed Feb. 4, 2014); Granzow v. Nu Skin Enters., Inc., No. 2:14-cv-00169-DB (D. Utah) (filed Mar. 7, 2014); and State-Boston Ret. Sys. v. Nu Skin Enters., Inc., M. Truman Hunt, and Ritch N. Wood, No. 2:14-cv-00217-DB (D. Utah filed Mar. 24, 2014). Case 2:14-cv-00033-JNP-BCW Document 134-1 Filed 05/20/16 Page 4 of 132 C. These cases were consolidated on May 1, 2014 when the Court issued an Order appointing State-Boston as Lead Plaintiff and appointing Labaton Sucharow LLP as Lead Counsel to represent the putative class. ECF No. 42. The Court consolidated the cases into the present action as In re Nu Skin Enterprises, Inc. Securities Litigation (the “Action”). Id. D. The operative complaint in the Action is the Consolidated Class Action Complaint filed on June 30, 2014 (the “Complaint,” ECF No. 51). Before filing the Complaint, Lead Plaintiff, through Lead Counsel, conducted a thorough investigation relating to the claims and transactions that are the subject of the Action. This included reviewing and analyzing: (i) documents filed publicly by the Company with the U.S. Securities and Exchange Commission (“SEC”); (ii) publicly available information, including press releases, news articles, laws and regulations in the People’s Republic of China (“PRC” or “Mainland China”); (iii) research reports issued by financial analysts concerning the Company; and (iv) other public statements issued by or concerning the Company and the Defendants. Lead Counsel also interviewed individuals purporting to be former employees, independent distributors and sales promoters of Nu Skin and other persons with knowledge of the matters alleged and consulted with experts. E. The Complaint generally alleges violations of §10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) by the Defendants and violations of §20(a) by the Individual Defendants. F. On August 29, 2014, Defendants filed a motion to dismiss the Complaint (ECF No. 53), which Lead Plaintiff opposed on October 28, 2014. ECF No. 59. On December 1, 2014, Defendants filed reply briefs in further support of their motion to dismiss. ECF No. 65. On February 19, 2015, after hearing oral argument on Defendants’ motion to dismiss, the Court 2 Case 2:14-cv-00033-JNP-BCW Document 134-1 Filed 05/20/16 Page 5 of 132 denied the motion to dismiss from the bench. ECF No. 71. The Court issued an Order denying Defendants’ motion to dismiss on February 26, 2015. ECF No. 72. G. Thereafter, the parties engaged in comprehensive fact discovery. Plaintiffs reviewed and analyzed: (i) approximately 500,000 pages of documents produced by Defendants; and (ii) approximately 26,000 pages of documents produced in response to 15 third-party subpoenas. Lead Plaintiff took seven 30(b)(6) depositions of Nu Skin representatives and deposed Defendants’ expert on class certification issues. Plaintiffs also consulted with experts on damages issues, multi-level marketing (“MLM”), and Direct Selling and MLM in Mainland China. H. Plaintiffs moved for class certification on June 26, 2015. ECF Nos. 90-92, 94-96. Defendants filed their opposition to Plaintiffs’ class certification motion on August 25, 2015 (ECF Nos. 99-101) and Plaintiffs filed their reply brief on class certification on October 26, 2015. ECF Nos. 107-108. Judge Parrish heard oral argument on the motion for class certification on December 9, 2015 (ECF No. 119) and requested supplemental briefing on certain issues (Id.) which the parties filed promptly thereafter. ECF Nos. 123-124. Plaintiffs’ motion for class certification was sub judice when the Settlement was reached. The Settlement I. The parties mediated this case with two highly experienced mediators. In the fall of 2015, the parties engaged Bruce Freedman of JAMS for a full day mediation. Settlement was not reached at that time, however the parties agreed to explore mediation again after further litigation of the case. Thereafter, the parties engaged the Honorable Layn R. Phillips (“Judge Phillips”), a well-respected and highly experienced mediator, to assist the parties in further exploring a potential resolution of the claims in the Action. On February 8, 2016, the parties, 3 Case 2:14-cv-00033-JNP-BCW Document 134-1 Filed 05/20/16 Page 6 of 132 State-Boston representatives, and Nu Skin’s insurance carriers met with Judge Phillips in an attempt to reach a settlement. Settlement was not reached on February 8, 2016. However, following the mediation, Judge Phillips continued his efforts to settle the litigation. Following further arm’s-length and mediated negotiations under Judge Phillips, Defendants and Lead Plaintiff reached an agreement in principle and executed a Settlement Term Sheet. Defendants’ Denial of Wrongdoing and Liability J. Defendants have denied and continue to deny any wrongdoing or that they have committed any act or omission giving rise to any liability or violation of law, including the U.S. securities laws. Defendants have denied and continue to deny each and every one of the claims alleged by Plaintiffs in the Action on behalf of the Settlement Class, including all claims in the Complaint. K. Defendants are entering into this Settlement solely to eliminate the burden, expense, uncertainty, and distraction of further litigation. This Stipulation, whether or not consummated, any proceedings relating to any settlement, or any of the terms of any settlement, whether or not consummated, shall in no event be construed as, or deemed to be evidence of, an admission or concession on the part of the Defendants, or any of them, with respect to any fact or matter alleged in the Action, or any claim of fault or liability or wrongdoing or damage whatsoever, or any infirmity in any claim or defense that has been or could have been asserted. Claims of Lead Plaintiff and Benefits of Settlement L. Lead Plaintiff believes that the claims asserted in the Action have merit and that the evidence developed to date supports the claims asserted. However, Lead Plaintiff and Lead Counsel recognize and acknowledge the expense and length of continued proceedings necessary to prosecute the Action through trial and appeals. Lead Plaintiff and Lead Counsel also have 4 Case 2:14-cv-00033-JNP-BCW Document 134-1 Filed 05/20/16 Page 7 of 132 taken into account the uncertain outcome and the risk of any litigation, especially in complex actions such as the Action, as well as the difficulties and delays inherent in such litigation. Lead Counsel also is mindful of the inherent problems of proof and the possible defenses to the claims alleged in the Action. Based on their evaluation, Lead Plaintiff and Lead Counsel believe that the Settlement set forth in this Stipulation confers substantial monetary benefits upon the Settlement Class and is in the best interests of Plaintiffs and the Settlement Class. I. TERMS OF STIPULATION AND AGREEMENT OF SETTLEMENT NOW THEREFORE, without any concession by Lead Plaintiff that the Action lacks merit, and without any concession by the Defendants of any liability or wrongdoing or lack of merit in their defenses, it is hereby STIPULATED AND AGREED, by and among the parties to this Stipulation (“Parties”), through their respective attorneys, subject to approval by the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, that, in consideration of the benefits flowing to the Parties hereto, all Released Claims and all Released Defendants’ Claims, as against all Released Parties, shall be fully, finally, and forever compromised, settled, released, discharged, and dismissed with prejudice, and without costs, upon and subject to the following terms and conditions: A.
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