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ON the RECORD With ON THE RECORD with SPRING 2020 CONTENTS 05 A Note to Institutional Investors from Sam Rudman 06 Corporate Governance Roundup 14 Executive Pay Roundup 20 The SEC and the DOL Launch Regulatory Actions to Features Suppress Shareholder Voting and Independent Proxy Advice 05 22 ESG and Sustainable Investing 35 Trustee Spotlight: Gracie Flores 41 Business Roundtable Statement 06 Corporate Governance Roundup 08 Valeant Investors Achieve $1.2 Billion 10 $1.025 Billion Recovery for ARCP Recovery Investors 16 Robbins Geller Defeats Motion to Dismiss in Wells Fargo Securities Case 17 Investors Prevail on Johnson & Johnson’s Motion to Dismiss Fraud Class Action Litigation News 17 Stamps.com Investors Overcome Motion to Dismiss in Securities Class Action 16 18 Robbins Geller Beats Back Motion to Dismiss in CBS Securities Action 19 Plaintiffs Obtain Class Certification in Tableau Software Securities Case 19 Investors Defeat Motion to Dismiss in Toshiba Securities Case 08 Valeant Investors Achieve $1.2 Billion Recovery with Record Settlement Against a Pharmaceutical Manufacturer and Ninth Largest Securities Class Action Settlement News Settlement Ever 10 $1.025 Billion Recovery for ARCP Investors 08 12 First Solar Investors Obtain $350 Million Recovery on Eve of Trial 13 Record-Setting $5.5 Billion Settlement Approved in Visa/Mastercard Interchange Antitrust Case 22 ESG and Sustainable Investing 32 Benchmark Litigation Lauds Robbins 36 Litigators of the Week: Robbins Geller Geller as “One of the Country’s Best- Duo Seals $1B Settlement Known Plaintiff Shops” 32 Benchmark Litigation Lauds Robbins Geller as “One of the Country’s Litigation News Best-Known Plaintiff Shops” Awards and 34 The AmLaw Litigation Daily Names Robbins Geller “The Real Winner” Behind the Walmart Bribery Scandal Settlement Recognition 36 Litigators of the Week: Robbins Geller Duo Seals $1B Settlement 40 12 Robbins Geller Attorneys Named Leading Lawyers in America 32 SPRING 2020 Sam Rudman, Managing Partner of Robbins Geller's New York Offices A NOTE TO INSTITUTIONAL INVESTORS COVID-19 has rapidly spread throughout communities across our country and around the world, presenting all of us with unforeseen health and logistical challenges. While prioritizing the health and well-being of our employees, clients, and the broader community, Robbins Geller remains vigilant in protecting your portfolio during these unprecedented times – our attorneys and staff remain available to you 24/7/365 as we continue our work remotely. The coronavirus crisis presents the biggest threat to the global economy since at least 2008. Our retirement plans, schools, businesses, and communities have been profoundly affected by recent events. As this newsletter goes to press, we are in the midst of a rapidly changing legal landscape. For example, while 2019 yielded a modest level of PSLRA recoveries, 2020 has already proven to be more productive for our clients. The Firm has achieved significant settlements for investors in the first three months of 2020, including in cases against Valeant Pharmaceuticals, Inc. (now Bausch Health Companies) – $1.2 billion recovery (subject to final approval), American Realty Capital Properties, Inc. (now VEREIT, Inc.) – $1.025 billion recovery, and First Solar, Inc. – $350 million recovery (subject to final approval). Notably, the settlement in the First Solar case was reached the night before jury selection. We remain diligent in our effort to combat corporate misconduct, help stabilize our financial markets, and protect your retirement savings plans. Please take care of yourselves and your loved ones. Warm regards, Sam Rudman On the Record | Spring 2020 5 6 rgrdlaw.com Corporate Governance Roundup Shareholder votes at the Apple and avoiding the more difficult annual meeting: topics, like counseling an underperforming director or not An Apple Inc. shareholder proposal re-nominating someone. Only critical of the company’s app 15% counseled underperforming removals in China received a 40.6% directors or refused to re- vote in favor. A “proxy access” nominate them. proposal got just over 30%. A first-time proposal to tie executive • 43% of directors say it is difficult compensation to environmental to voice a dissenting view on at sustainability metrics got more than least one topic. 12%. • More than half (56%) of Big Funds Fail to Support directors say investors are giving Disclosure of Political too much time and focus to Contributions ESG–nearly twice the percentage saying the same in 2018. This year’s PWC survey of corporate directors has some striking findings:1 • Despite the benefits, director support for board diversity is • 49% of the directors surveyed falling. Only 38% of directors believe at least one of their fellow say that gender diversity is board members should not be very important to their boards, serving. down from 46% in 2018–and the lowest level since 2014. • More boards are doing self- Similar to ESG, directors seem assessments but many boards are to be tired of the issue–63% of focusing on some of the easier directors say investors devote too things to change, such as adding much attention to board gender more expertise to the board diversity, up from 35% last year. or changing up committees, 1. https://www.pwc.com/us/en/services/governance-insights-center/library/annual-corporate-directors-survey.html Continued on page 30 On the Record | Spring 2020 7 SETTLEMENT NEWS 8 rgrdlaw.com Valeant Investors Achieve $1.2 Billion Recovery with Record Settlement Against a Pharmaceutical Manufacturer and Ninth Largest Securities Class Action Settlement Ever fter more than four years of boost sales of Valeant products. When case for more than four years. The hard-fought litigation, lead the truth was revealed, Valeant was the team prevailed on several additional plaintiff Teachers Insurance subject of intense media and regulatory motions seeking to appeal the denial of Aand Annuity Association of scrutiny, several of its executives were the dismissals and relating to discovery America (“TIAA”) and Robbins subpoenaed to testify before Congress, matters, amended the complaint Geller secured a $1.21 billion and a former employee and owner of a twice to add additional claims, and settlement in a securities class action distributor were convicted of engaging analyzed more than 11 million pages against Valeant Pharmaceuticals, Int’l, in an illegal kickback scheme and of documents obtained from the Inc. (now Bausch Health Companies). sentenced to prison. In prosecuting defendants and 150 third parties. The settlement has received the claims, Robbins Geller successfully The settlement was reached after preliminary approval and is subject defeated seven motions to dismiss the settlement negotiations and two in- to final approval, currently scheduled action, including those by the directors person mediations that spanned more for May 27, 2020. The settlement is and also by a board member and his than a year. the ninth largest securities class action hedge fund who sought to escape settlement ever and the largest to be insider trading claims. After nearly 400 James E. Barz, Robbins Geller’s reached against a pharmaceutical pages of briefing on the initial motions lead counsel on the case, commented manufacturer. Institutional investors to dismiss and a lengthy hearing, the that: “There is no question in my City of Tucson, together with and on court substantially denied the motions mind that our string of victories in behalf of the Tucson Supplemental on April 28, 2017. The settlement the litigation and our ability to show Retirement System, and IBEW amount is particularly notable given defendants that we could simplify Local Union 481 Defined that Valeant’s stock price, which very complex issues of accounting and Contribution Plan and Trust serve traded as high as $262 per share during pharmaceutical distribution practices as additional named plaintiffs in the the class period, subsequently declined while also explaining how 22 corrective action. to as low as $8.50 per share. Robbins disclosures fit under a single umbrella, Geller negotiated a settlement that is contributed to the defendants’ decision The case was first filed on October larger than Valeant’s last reported to settle prior to exhausting the many 22, 2015. On June 24, 2016, Robbins cash balance, required payments remaining legal challenges they had Geller filed a 280-page complaint to be structured over time and with available through trial and appeal.” against more than 25 defendants. interest, and resulted in the Company The complaint alleged that Valeant’s In addition to Robbins and Barz, the announcing that it would issue Robbins Geller litigation team included securities were artificially inflated from additional debt to fund the settlement. January 4, 2013 through March 15, attorneys Robert J. Robbins, 2016 (the “class period”) due to the “The fact that, after 5 years of hard- Kathleen B. Douglas, Brian E. concealment of, among other things, fought litigation, we secured the largest Cochran, Robert Henssler, Jr., Valeant’s unsustainable and deceptive settlement ever obtained against a Frank A. Richter, and forensic price gouging practices wherein pharmaceutical manufacturer and accountant Brad Sader. one of the top 10 securities class Valeant acquired pre-existing drugs, In re Valeant Pharms. Int’l, Inc. Sec. actions ever, demonstrates our resolve some of them life-saving medicines, and Litig., No. 3:15-cv-07658-MAS-LHG to vindicate the rights of defrauded then dramatically raised prices to boost (D.N.J.) short-term profitability. The complaint investors,” said Robbins Geller partner also alleged that Valeant secretly Darren J. Robbins. controlled a distribution network that engaged in questionable practices to The Firm devoted dozens of attorneys, forensic accountants, and staff to the On the Record | Spring 2020 9 $1.025 Billion Recovery for ARCP Investors n January 21, 2020, after five and Annuity Association of REITs, managed by a partnership that years of contentious litigation, America (“TIAA”). ARCP founder and CEO Schorsch and on the eve of trial, controlled and in which CFO Block ORobbins Geller obtained final approval The case was first filed on October was a partner.
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