Salhuana v. Diamond Foods, Inc. et al

Filing 338

MODIFIED ORDER FOR DISTRIBUTION OF CLASS SETTLEMENT FUND. (whalc2, COURT STAFF) (Filed on 10/16/2014).

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John F. Harnes (admitted pro hac vice)
Gregory E. Keller (admitted pro hac vice)
CHITWOOD HARLEY HARNES LLP
1350 Broadway, Suite 908
New York, New York 10018
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
1230 Peachtree Street, NE
Suite 2300
Atlanta, Georgia 30309
Tel: [phone]
Fax: [phone]

Richard M. Heimann
(State Bar No. 63607)
Joy A. Kruse
(State Bar No. 142799)
LIEFF CABRASER HEIMANN &
BERNSTEIN LLP
275 Battery Street, 29th Floor
San Francisco, California 94111- 3339
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Counsel for Plaintiff Mississippi Public
Employees’ Retirement System

Counsel for Plaintiff Mississippi Public
Employees’ Retirement System

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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IN RE DIAMOND FOODS, INC.,
SECURITIES LITIGATION

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This Document Relates to:
All Actions

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PROPOSED ORDER FOR DISTRIBUTION, No. 11-CV-05386-WHA

Case No.: 11-cv-05386-WHA
MODIFIED
[PROPOSED] ORDER FOR DISTRIBUTION
OF CLASS SETTLEMENT FUND
Date:
Time:
Courtroom:
Judge:

November 20, 2014
8:00 a.m.
8, 19th Floor
The Honorable William H. Alsup

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16th
October
AND NOW, this ____ day of _______________, 2014, upon consideration of
Lead Plaintiff’s Unopposed Motion for Permission to Distribute Net Settlement Fund and
the Memorandum and Points of Authorities in Support thereof in the above-captioned
action (the “Distribution Motion”) and the Declaration of Justin R. Hughes, Vice
President of Class Actions for Kurtzman Carson Consultants, LLC (“KCC” or the
“Claims Administrator”) dated October 2, 2014 (the “Hughes Declaration”), and upon the
Amended Stipulation of Settlement dated as of August 20, 2013 [Doc. No. 284] (the
“Settlement Stipulation”), and upon the Order Granting Final Approval of Proposed Class
Settlement and Granting in Part Attorney’s Fees and Reimbursement of Expenses dated
January 10, 2014 [Doc. No. 305] (the “Final Approval Order”) and the Judgment dated
January 21, 2014 [Doc. No. 316] (the “Judgment”) approving the Settlement Stipulation,
and upon all prior proceedings heretofore had herein and after due deliberation, it is
hereby ORDERED as follows:
1.

The administrative determinations of the Claims Administrator accepting

the claims as indicated on the computer printouts submitted with and described in
the Hughes Declaration and Exhibits E and F thereto, including claims submitted
after February 28, 2014 up through September 16, 2014, are approved and said
claims are hereby accepted.
2.

The administrative determinations of the Claims Administrator rejecting

the claims as indicated on the computer printout submitted with and described in
the Hughes Declaration and Exhibit D thereto are approved, and said claims are
hereby rejected.
3.

The Claims Administrator is authorized to process the electronic claim

submitted on September 26, 2014, to determine the validity of such claim and any
Recognized Loss associated with the claim, and, if approved by the Claims
Administrator, to include such claim in the total Recognized Losses and make an
appropriate pro-rata distribution to the claimant. As a result of the late filing of the

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PROPOSED ORDER FOR DISTRIBUTION, No. 11-CV-05386-WHA

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claim, which would render the claim otherwise invalid, the claimant is not entitled
to review of the Claims Administrator’s determination with respect to validity and
Recognized Loss.
4.

The Claims Administrator is directed to distribute the balance of the

Settlement Fund in accordance with the Settlement Stipulation after deducting the
payments previously allowed and set forth herein (the “Net Settlement Fund”) to
the Authorized Claimants listed on Exhibits E and F to the Hughes Declaration by
calculating each Authorized Claimant’s pro-rata allocation of the Net Cash
Settlement Fund and Settlement Shares in the Net Settlement Fund determined by
that Claimant’s Recognized Loss as compared to the total Recognized Losses of
all Authorized Claimants.
5.

The Court authorizes distribution to Class Counsel of the stock component

of the previously-awarded attorney’s fees, reduced, if appropriate, to reflect the
pro-rata sale of Settlement Shares to pay tax liabilities, with such distribution to
occur at the same time the Settlement Shares are distributed to the Class. To the
extent that more Settlement Shares are sold by the Escrow Agent prior to
distribution than is necessary to satisfy estimated tax liabilities of the Settlement
Fund, Class Counsel is entitled to receive its pro-rata share of the proceeds of the
sale of Settlement Shares in excess of the amount necessary to fund tax liabilities.
In the event that the Settlement Shares are sold or substituted for cash before
distribution pursuant to a transaction under Paragraph 4.3 or 4.4 of the Settlement
Stipulation, Class Counsel is entitled to receive the proceeds of the sale or
substitution of the stock component of the attorneys’ fee award at the time of the
initial distribution of the Net Settlement Fund to Authorized Claimants.
6.

The Court authorizes payment from the Net Settlement Fund of up to an

additional $50,000 for Notice and Administration Costs that are in excess of the
$300,000 amount in the Class Notice and Administration Fund that was previously

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PROPOSED ORDER FOR DISTRIBUTION, No. 11-CV-05386-WHA

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approved by the Court.
7.

The Court directs that the cash distributions to the Authorized Claimants

shall bear the notation “CASH PROMPTLY, VOID AND SUBJECT TO REDISTRIBUTION IF NOT CASHED BY 60 DAYS AFTER ORIGINAL CHECK
ISSUE DATE.” The Court authorizes the Claims Administrator to take
appropriate action to locate and/or contact any eligible claimant who has not
cashed his, her or its distribution within said time.
8.

The Court authorizes any Settlement Shares remaining in the Net

Settlement Fund after the initial distribution to be sold, with the proceeds to be
deposited into the Net Cash Settlement Fund, together with any balance remaining
therein (whether by reason of tax refunds, un-cashed checks, or otherwise).
9.

The Court also orders, pursuant to the Plan of Allocation previously

approved by the Court, that after reasonable and diligent efforts have been made to
have Class Members who are entitled to participate in the distribution of the Net
Settlement Fund cash their initial distribution check, and if Class Counsel
determine a re-distribution to be feasible and practicable, Class Counsel may direct
any balance remaining in the Net Settlement Fund four (4) months from the date of
the initial distribution of such funds to be distributed to Class Members who have
cashed their initial distribution checks (if they received one) and who would
receive at least $10.00 from such re-distribution and to any Authorized Claimant
whose deficiency was cured or whose Recognized Loss was modified pursuant to
supplemental information submitted to the Claims Administrator subsequent to
the September 16, 2014 cut-off date, after payment of any unpaid costs or fees
incurred in administering the Net Settlement Fund for such re-distribution. If any
funds remain in the Net Settlement Fund after such re-distribution, or if Class
Counsel determine that a re-distribution is not feasible and/or practicable, then the
remaining balance shall be contributed to the Boston College Innocence Project at

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PROPOSED ORDER FOR DISTRIBUTION, No. 11-CV-05386-WHA

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Boston College School of Law, a non-sectarian, not-for-profit, § 501(c)(3)
organization.
10.

The Court also finds that the administration of the Settlement and the

proposed distribution of the Net Settlement Fund comply with the terms of the
Settlement Stipulation and the Plan of Allocation approved by this Court and that
all persons involved in the review, verification, calculation, tabulation, or any
other aspect of the processing of the claims submitted herein, or otherwise
involved in the administration or taxation of the Settlement Fund or the Net
Settlement Fund are released and discharged from all claims arising out of such
involvement, and all Class Members, whether or not they are to receive payment
from the Net Settlement Fund, are barred from making any further claim against
the Net Settlement Fund or the released persons beyond the amount allocated to
them pursuant to this Order.
11.

The Court authorizes the Claims Administrator to discard paper or hard

copies of the Proof of Claim forms and supporting documents one year after
distribution of the Net Settlement Fund to the Authorized Claimants and electronic
or magnetic media data three years after distribution of the Net Settlement Fund to
the Authorized Claimants.
12.

The Court shall retain jurisdiction over any further application or matter

that may arise in connection with this action, including, without limitation,
certification by Class Counsel that the Settlement Fund has been completely
distributed following a re-distribution of unclaimed funds, if one occurs, and a cy
pres donation of the remainder, as provided in Paragraph 9 of this Order.
13.

The Court orders that no claim submitted after September 30, 2014 may be

accepted or considered for any reason whatsoever.

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DATED:

October 16
_________________, 2014.

______________________________
The Honorable William H. Alsup
United States District Judge

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PROPOSED ORDER FOR DISTRIBUTION, No. 11-CV-05386-WHA

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