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Declaration of Jonathan D. Uslaner in Support of (I) Lead Plaintiff's Motion

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Case 3:18-cv-05704-RSL Document 99 Filed 09/25/20 Page 1 of 35 1 The Honorable Robert S. Lasnik 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 No. 3:18-cv-05704-RSL 11 IN RE IMPINJ, INC. SECURITIES LITIGATION CLASS ACTION 12 DECLARATION OF JONATHAN D. 13 USLANER IN SUPPORT OF (I) LEAD PLAINTIFF’S MOTION FOR FINAL 14 APPROVAL OF SETTLEMENT AND PLAN OF ALLOCATION, AND (II) LEAD 15 COUNSEL’S MOTION FOR ATTORNEYS’ FEES AND LITIGATION EXPENSES 16 NOTE ON MOTION CALENDAR: 17 (Settlement Hearing Date) 18 November 19, 2020 at 1:30 p.m. 19 20 21 22 23 24 25 26 DECLARATION OF JONATHAN D. USLANER BYRNES KELLER CROMWELL LLP IN SUPPORT OF MOTIONS FOR SETTLEMENT 1000 Second Avenue, 38th Floor AND ATTORNEYS’ FEES Seattle, Washington 98104 (3:18-cv-05704-RSL) Telephone: (206) 622-2000 Case 3:18-cv-05704-RSL Document 99 Filed 09/25/20 Page 2 of 35 1 TABLE OF CONTENTS 2 Page 3 EXHIBIT LIST .............................................................................................................................. iii 4 I. HISTORY OF THE ACTION ............................................................................................ 3 5 A. The Commencement of the Action and the Appointment of Lead Plaintiff and Lead Counsel .................................................................................................... 3 6 B. The Investigation and Filing of the Consolidated Complaint ................................. 4 7 C. Defendants’ Motion to Dismiss .............................................................................. 6 8 D. The Parties Conduct Discovery .............................................................................. 7 9 E. Work with Experts .................................................................................................. 9 10 F. Class Certification ................................................................................................. 10 11 G. The Parties’ Mediation Efforts and the Settlement of the Action ......................... 10 12 H. The Court Grants Preliminary Approval of the Settlement .................................. 12 13 II. RISKS OF CONTINUED LITIGATION ......................................................................... 12 14 A. Risks Concerning Liability ................................................................................... 13 15 1. Falsity ........................................................................................................ 13 16 2. Materiality ................................................................................................. 15 17 3. Scienter ..................................................................................................... 15 18 B. Risks Related to Loss Causation and Damages .................................................... 16 19 C. The Settlement Amount Compared to Likely Damages that Could Be 20 Proved at Trial....................................................................................................... 17 21 III. LEAD PLAINTIFF’S COMPLIANCE WITH THE COURT’S PRELIMINARY APPROVAL ORDER REQUIRING ISSUANCE OF NOTICE...................................... 19 22 IV. ALLOCATION OF THE PROCEEDS OF THE SETTLEMENT ................................... 21 23 V. THE FEE AND EXPENSE APPLICATION ................................................................... 24 24 A. The Fee Application .............................................................................................. 24 25 1. Lead Plaintiff Has Authorized and Supports the Fee Application ............ 24 26 DECLARATION OF JONATHAN D. USLANER i BYRNES KELLER CROMWELL LLP IN SUPPORT OF MOTIONS FOR SETTLEMENT 1000 Second Avenue, 38th Floor AND ATTORNEYS’ FEES Seattle, Washington 98104 (3:18-cv-05704-RSL) Telephone: (206) 622-2000 Case 3:18-cv-05704-RSL Document 99 Filed 09/25/20 Page 3 of 35 2. The Time and Labor Devoted to the Action by Plaintiff’s Counsel ......... 24 1 3. The Experience and Standing of Lead Counsel ........................................ 26 2 4. The Risks of the Litigation and the Need to Ensure the Availability 3 of Competent Counsel in High-Risk Contingent Securities Cases ........... 26 4 5. The Reaction of the Settlement Class to the Fee Application .................. 27 5 B. The Litigation Expense Application ..................................................................... 28 6 VI. CONCLUSION ................................................................................................................. 30 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DECLARATION OF JONATHAN D. USLANER ii BYRNES KELLER CROMWELL LLP IN SUPPORT OF MOTIONS FOR SETTLEMENT 1000 Second Avenue, 38th Floor AND ATTORNEYS’ FEES Seattle, Washington 98104 (3:18-cv-05704-RSL) Telephone: (206) 622-2000 Case 3:18-cv-05704-RSL Document 99 Filed 09/25/20 Page 4 of 35 1 EXHIBIT LIST 2 3 Ex. No. Description 4 1 Declaration of Michelle Yoshida in Support of Motion for Final Approval of 5 Class Action Settlement (“Yoshida Decl.”) 6 2 Declaration of Jeffrey R. Yates, Administrator of the Employees’ Retirement System of the City of Baton Rouge and Parish of East Baton Rouge, in Support 7 of: (I) Lead Plaintiff’s Motion for Final Approval of Settlement and Plan of Allocation; and (II) Lead Counsel’s Motion for Attorneys’ Fees and Litigation 8 Expenses (“Yates Decl.”) 9 3 Cornerstone Research, Securities Class Action Settlements: 2019 Review and 10 Analysis (2020) 11 4 Declaration of Eric J. Miller Regarding: (A) Mailing of the Notice and Claim Form; (B) Publication of the Summary Notice; and (C) Report on Requests for 12 Exclusion Received to Date (“Miller Decl.”) 13 5 Summary of Plaintiffs’ Counsel’s Lodestar and Expenses 14 5A Declaration of Jonathan D. Uslaner in Support of Lead Counsel’s Motion For 15 Attorneys’ Fees and Litigation Expenses, Filed on Behalf of Bernstein Litowitz 16 Berger & Grossmann LLP 17 5B Declaration of Bradley S. Keller in Support of Lead Counsel’s Motion For Attorneys’ Fees and Litigation Expenses, Filed on Behalf of Byrnes Keller 18 Cromwell LLP 19 5C Declaration of Guillaume Buell, David W. Hall, and Thomas Laughlin, IV in 20 Support of Lead Counsel’s Motion for Attorneys’ Fees and Litigation Expenses, Filed on Behalf of Counsel for New York Action Plaintiff 21 6 Breakdown of Plaintiffs’ Counsel’s Expenses by Category 22 23 Unpublished Authorities Cited in Fee Memorandum 7 In re QSI Sys., Inc. Sec. Litig., No. SACV 13-01818-CJC-JPR, slip op. (C.D. Cal. 24 Nov. 19, 2018), ECF No. 120 25 8 Hatamian v. Advanced Micro Devices, Inc., No. 4:14-cv-00226-YGR, slip op. (N.D. Cal. Mar. 2, 2018), ECF No. 364 26 DECLARATION OF JONATHAN D. USLANER iii BYRNES KELLER CROMWELL LLP IN SUPPORT OF MOTIONS FOR SETTLEMENT 1000 Second Avenue, 38th Floor AND ATTORNEYS’ FEES Seattle, Washington 98104 (3:18-cv-05704-RSL) Telephone: (206) 622-2000 Case 3:18-cv-05704-RSL Document 99 Filed 09/25/20 Page 5 of 35 1 9 In re Novatel Wireless Sec. Litig., No. 08-CV-01689-AJB(RBB); slip op. (S.D. 2 Cal. June 23, 2014), ECF No. 520 3 10 McGuire v. Dendreon Corp., Case No. C07-800 MJP, slip op. (W.D. Wash. Dec. 20, 2010), ECF No. 235 4 5 11 In re BP Prudhoe Bay Royalty Tr. Sec. Litig., No. C06-1505 MJP, slip op. (W.D. Wash. June 30, 2009), ECF No. 127 6 12 In re CTI Biopharma Corp. Sec. Litig., Case No. 2:16-cv-00216-RSL, slip op. 7 (W.D. Wash. Feb. 1, 2018), ECF No. 118 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DECLARATION OF JONATHAN D. USLANER iv BYRNES KELLER CROMWELL LLP IN SUPPORT OF MOTIONS FOR SETTLEMENT 1000 Second Avenue, 38th Floor AND ATTORNEYS’ FEES Seattle, Washington 98104 (3:18-cv-05704-RSL) Telephone: (206) 622-2000 Case 3:18-cv-05704-RSL Document 99 Filed 09/25/20 Page 6 of 35 1 JONATHAN D. USLANER declares as follows: 2 1. I am a partner of the law firm of Bernstein Litowitz Berger & Grossmann LLP 3 (“BLB&G”). BLB&G was appointed Lead Counsel for Employees’ Retirement System of the 4 City of Baton Rouge and Parish of East Baton Rouge (“Baton Rouge” or “Lead Plaintiff”) in the 5 above-captioned action (the “Action”). I have personal knowledge of the matters set forth herein 6 based on my active participation in all aspects of the prosecution and settlement of the Action.1 7 2. The proposed Settlement before the Court provides for the resolution of all claims 8 in the Action in exchange for a cash payment of $20,000,000.00, plus interest, for the benefit of 9 the Settlement Class. The Settlement Amount has been paid into an escrow account and is earning 10 interest. As detailed herein, the Settlement provides a benefit to the Settlement Class by conferring 11 a substantial, certain, and immediate recovery while avoiding the significant risks of continued 12 litigation, including the risk that the Settlement Class could recover nothing or less than the 13 Settlement Amount after years of additional litigation, appeals, and delay. 14 3. The proposed Settlement is the result of extensive efforts by Lead Plaintiff and 15 Lead Counsel, which included, among other things: (i) conducting an investigation into the alleged 16 fraud, including interviews of dozens of former employees of Impinj and a thorough review of 17 information such as filings with the U.S. Securities and Exchange Commission (“SEC”), analyst 18 reports, conference call transcripts, news articles, and materials received in response to Lead 19 Counsel’s request to the SEC pursuant to the Freedom of Information Act (“FOIA”); (ii) drafting 20 a detailed consolidated complaint based on Lead Counsel’s
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