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Case 9:18-Cv-81448-AHS Document 90 Entered on FLSD Docket 09/08/2020 Page 1 of 35 Case 9:18-cv-81448-AHS Document 90 Entered on FLSD Docket 09/08/2020 Page 1 of 35 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 9:18-cv-81448-SINGHAL JENNIFER TUNG, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. DYCOM INDUSTRIES, INC., STEVEN E. NIELSEN and ANDREW DEFERRARI, Defendants. DECLARATION OF GUILLAUME BUELL IN SUPPORT OF (1) LEAD PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND PLAN OF ALLOCATION, AND (2) LEAD COUNSEL’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND LITIGATION EXPENSES Case 9:18-cv-81448-AHS Document 90 Entered on FLSD Docket 09/08/2020 Page 2 of 35 I, Guillaume Buell, declare as follows: 1. I am a member of the bars of the Commonwealth of Massachusetts, the State of New York, and the State of Texas, and am admitted pro hac vice in this action (the “Action”). I am Of Counsel with the law firm of Thornton Law Firm LLP (“Thornton”). Thornton, along with Levi & Korsinsky, LLP (“L&K”) are the Court-appointed Lead Counsel for Lead Plaintiff Boston Retirement System (“Lead Plaintiff”) and the proposed Settlement Class in the above-captioned action.1 I have personal knowledge of the matters stated in this Declaration based on my active supervision of and participation in the prosecution and settlement of the Action, and information provided to me by my co-counsel and the attached exhibits. 2. I respectfully submit this Declaration in support of Lead Plaintiff’s motion under Federal Rule of Civil Procedure 23(e) for final approval of the proposed settlement of the Action (the “Settlement”), which the Court preliminarily approved by its Order dated July 9, 2020 (the “Preliminary Approval Order”). Dkt. 86. 3. I also respectfully submit this Declaration in support of: (i) Lead Plaintiff’s motion for approval of the proposed plan for allocating the proceeds of the Net Settlement Fund to eligible Settlement Class Members (the “Plan of Allocation”) and (ii) Lead Counsel’s motion, on behalf of Plaintiff’s Counsel, for an award of attorneys’ fees in the amount of 29% of the Settlement Fund and payment of Litigation Expenses incurred by Plaintiff’s Counsel in the amount of $104,028.19 (the “Fee and Expense Application”). 4. In support of these motions, Lead Plaintiff and Lead Counsel are also submitting the exhibits attached hereto, the Memorandum of Law in Support of Lead Plaintiff’s Motion for 1 Unless otherwise defined in this Declaration, all capitalized terms shall have the meanings defined in the Stipulation and Agreement of Settlement, dated June 25, 2020 (the “Stipulation” or “Settlement Stipulation”), and previously filed with the Court. See Dkt. 85-2. Page 2 of 35 Case 9:18-cv-81448-AHS Document 90 Entered on FLSD Docket 09/08/2020 Page 3 of 35 Final Approval of Class Action Settlement and Plan of Allocation (the “Settlement Memorandum”), and the Memorandum of Law in Support of Lead Counsel’s Motion for Attorneys’ Fees and Litigation Expenses (the “Fee Memorandum”). 5. Attached to this Declaration as exhibits are true and correct copies of the following documents, discussed more fully infra: • Exhibit 1: Laarni T. Bulan and Laura E. Simmons, Securities Class Action Settlements – 2019 Review and Analysis (Cornerstone Research 2020) • Exhibit 2: Declaration of Eric A. Nordskog Regarding: (A) Mailing of the Notice and Proof of Claim; (B) Publication of the Summary Notice; and (C) Report on Requests for Exclusion and Objections • Exhibit 3: Declaration of Timothy J. Smyth on Behalf of Boston Retirement System in Support of Lead Plaintiff’s Motion For Final Approval of Settlement and Motion for Attorneys’ Fees and Expenses • Exhibit 4: Declaration of Guillaume Buell on Behalf of Thornton Law Firm LLP in Support of Application for an Award of Attorneys’ Fees and Expenses • Exhibit 5: Declaration of Shannon Hopkins on Behalf of Levi & Korsinsky LLP in Support of Application for an Award of Attorneys’ Fees and Expenses • Exhibit 6: Declaration of Christine Fox on Behalf of Labaton Sucharow LLP in Support of Application for an Award of Attorneys’ Fees and Expenses • Exhibit 7: Declaration of Cullin O’Brien on Behalf of Cullin O’Brien Law, P.A. in Support of Application for an Award of Attorneys’ Fees and Expenses • Exhibit 8: Summary of Plaintiff’s Counsel’s time and expenses • Exhibit 9: Firm Resumé of Thornton Law Firm LLP • Exhibit 10: Firm Resumé of Levi & Korsinsky LLP • Exhibit 11: Firm Resumé of Labaton Sucharow LLP • Exhibit 12: Firm Resumé of Cullin O’Brien Law, P.A. • Exhibit 13: Cornerstone Research, Securities Class Action Filings 2019 Year In Review (2020) Page 3 of 35 Case 9:18-cv-81448-AHS Document 90 Entered on FLSD Docket 09/08/2020 Page 4 of 35 I. INTRODUCTION 6. The proposed Settlement provides for the resolution of all claims in the Action, and related claims, in exchange for a cash payment of $9.5 million for the benefit of the Settlement Class. As detailed herein, Lead Plaintiff and Lead Counsel believe that the proposed Settlement represents an excellent result and is in the best interests of the Settlement Class. Lead Plaintiff would have faced significant risks in establishing Defendants’ liability and proving damages in the Action, and the proposed $9.5 million Settlement represents a reasonable percentage of the damages that Lead Plaintiff reasonably believed could be established at trial. Thus, as explained further below, the Settlement provides a considerable benefit to the Settlement Class by conferring a substantial, certain, and immediate recovery while avoiding the significant risks and expense of continued litigation, including the risk that the Settlement Class could recover nothing or less than the Settlement Amount after years of additional litigation and delay. 7. This beneficial Settlement was achieved as a result of extensive efforts by Lead Plaintiff and Lead Counsel to diligently investigate, vigorously prosecute, and aggressively negotiate a settlement of this Action against highly skilled opposing counsel. Among other things detailed herein, Lead Counsel: (i) conducted a comprehensive investigation into the claims asserted in the Action, including reviewing publicly available information regarding the Company and interviewing or speaking with former employees of Dycom and its subsidiaries; (ii) researched, drafted, and filed a detailed amended complaint based on that investigation; (iii) successfully defeated a motion to dismiss; (iv) analyzed Defendants’ mediation statement and exhibits; (v) consulted with an expert concerning damages and loss causation; (vi) reviewed due diligence discovery in connection with the Settlement; and (vii) engaged in settlement Page 4 of 35 Case 9:18-cv-81448-AHS Document 90 Entered on FLSD Docket 09/08/2020 Page 5 of 35 negotiations, which included participation in a full-day mediation session and discussions with the Mediator’s staff in advance of the mediation session. 8. Due to the efforts summarized in the foregoing paragraph, and more fully set forth below, Lead Plaintiff and Lead Counsel were well-informed of the strengths and weaknesses of the claims and defenses in the Action at the time they reached the proposed Settlement. The Settlement was achieved only after extended arm’s-length negotiations between the Parties with the assistance of retired United States District Judge Layn Phillips, who is an experienced mediator of securities class actions like this one. Lead Plaintiff and Lead Counsel believe that the Settlement represents a very favorable outcome for the Class and that its approval would be in the best interests of the Class. 9. As discussed in further detail below, the Plan of Allocation was developed with the assistance of Lead Plaintiff’s consulting damages expert, and provides for the distribution of the Net Settlement Fund to Settlement Class Members who submit claim forms that are approved for payment by the Court on a pro rata basis based on losses attributable to the alleged fraud. 10. For its efforts in achieving the Settlement, Lead Counsel request a fee award of 29% of the Settlement Fund (or $2,755,000) plus interest earned at the same rate as the Settlement Fund. The 29% fee requested has been approved by Lead Plaintiff, and, as discussed in the Fee Memorandum, is within the range of percentage awards granted by courts in this Circuit and elsewhere in similar class action settlements. Moreover, the requested fee represents a multiplier of 1.48 of Plaintiff’s Counsel’s lodestar, which is within the range of multipliers typically awarded in class actions with significant contingency risks such as this one, and thus, the lodestar cross- check also supports the reasonableness of the fee. Lead Counsel respectfully submits that the fee Page 5 of 35 Case 9:18-cv-81448-AHS Document 90 Entered on FLSD Docket 09/08/2020 Page 6 of 35 request is fair and reasonable in light of the result achieved in the Action, the efforts of Lead Counsel, and the risks and complexity of the litigation. 11. For all of the reasons set forth herein and in the accompanying memoranda, including the quality of the result obtained and the numerous significant litigation risks discussed below, Lead Plaintiff and Lead Counsel respectfully submit that the Settlement and the Plan of Allocation are fair, reasonable and adequate, and should be approved. In addition, Lead Counsel respectfully submit that their request for attorneys’ fees and litigation expenses—which has been reviewed and approved by Lead Plaintiff—is also fair and reasonable and should be approved. II. HISTORY OF THE ACTION A. Background of the Allegations in the Action.2 12. Defendant Dycom, through its subsidiaries, provides specialty contracting services throughout the United States and Canada, generating over 90% of its revenue from its telecommunications business.
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