Cooper v. Thoratec Corporation et al

Filing 123

ORDER REGARDING CLASS ACTION SETTLEMENT DOCUMENTS Re 122 . Signed by Judge Claudia Wilken on 3/7/2019. (ndrS, COURT STAFF) (Filed on 3/7/2019)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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BRADLEY COOPER and TODD LABAK,
Individually and On Behalf of
All Others Similarly Situated,

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Plaintiffs,

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Case No. 14-cv-00360-CW
ORDER REGARDING CLASS ACTION
SETTLEMENT DOCUMENTS

v.
(Dkt. No. 122)

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United States District Court
Northern District of California

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THORATEC CORPORATION, GERHARD
F. BURBACH, TAYLOR C. HARRIS,
and DAVID V. SMITH,

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Defendants.

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The Court heard Plaintiffs’ motion for preliminary approval

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of their class action settlement on March 5, 2018.

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proposed notice of settlement states that the Court appointed

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Plaintiff Todd Labak as class representative and makes no mention

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of Lead Plaintiff Bradley Cooper.

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represented at the hearing that Labak is the sole class

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representative.

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Plaintiff on April 21, 2014, pursuant to the Private Securities

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Litigation Reform Act, 15 U.S.C. § 78u-4(a)(3)(B), and Federal

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Rule of Civil Procedure 23.

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subsequently filed a motion for class certification in which they

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sought appointment of Labak as a class representative pursuant to

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Federal Rule of Civil Procedure 23.

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as “Lead Plaintiff” and does not seek to withdraw Cooper as Lead

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Plaintiff.

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Plaintiffs have otherwise sought to withdraw Cooper as Lead

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Plaintiff, and the Court’s order granting Plaintiffs’ motion for

Plaintiffs’

Plaintiffs’ counsel

However, the Court appointed Cooper as Lead

See Docket Nos. 21, 11.

Docket No. 98 at ii.

Plaintiffs

The motion refers to Cooper

It does not appear that

class certification states that “Labak and Cooper are adequate

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class representatives.”

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Plaintiffs to file a supplemental brief that explains their

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representation that Cooper is not a class representative and that

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Labak is the sole class representative no later than two days

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from the date of this order.

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remains a class representative, Plaintiffs should explain whether

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they will seek to withdraw Cooper as a class representative and

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United States District Court
Northern District of California

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confirming that they do not plan to request that the Court

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Docket No. 119 at 6.

The Court ORDERS

If Plaintiffs determine that Cooper

approve an incentive award for Cooper.
As stated at the hearing, should this Court preliminarily

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approve the class action settlement, Plaintiffs must provide with

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their final approval documents information on the settlement

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administrator selection process, how many settlement

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administrators submitted proposals, what methods of notice and

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claims payment were proposed, and the lead class counsel’s firm’s

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history of engagements with the settlement administrator over the

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last two years.

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Settlements (updated Nov. 1, 2018 and Dec. 5, 2018) (Procedural

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Guidance).

See Procedural Guidance for Class Action

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The Court ORDERS Defendants to file an affidavit or

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declaration stating whether they provided notices to the

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appropriate state and federal officials in compliance with the

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Class Action Fairness Act, 28 U.S.C. § 1715, no later than two

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days from the date of this order.

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provided such notices, Defendants must state when they intend to

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provide these notices.

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If Defendants have not yet

The Court ORDERS that the parties file their “side
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agreement” described in the “Opt-out Termination Right,

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Confidentiality” Section of the stipulation under seal no later

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than two days from the date of this order.

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Settlement at 27, Docket No. 122-1.

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See Stip. of

The Court ORDERS that the parties make the changes described

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below to the settlement documents and file revised copies of the

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enumerated documents no later than two days from the date of this

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order.

United States District Court
Northern District of California

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The Court addresses each document requiring changes

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separately below.

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in each settlement document to reflect this order’s caption.

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parties should also replace each placeholder date in each

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document that includes such a date with the relevant date

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determined at the hearing.

However, the parties should revise the caption
The

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A.

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The parties should revise this sentence, “Additional sums

Stipulation

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for this purpose may be paid prior to the Effective Date from the

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Escrow Account upon agreement of the Parties or order of the

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Court,” to state, “Additional sums for this purpose may be paid

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prior to the Effective Date from the Escrow Account upon order of

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the Court.”

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Stip. of Settlement at 18.

The parties should state that any amount less than $20 is

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presumptively too costly to distribute to any class member, but

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that Plaintiffs will seek Court approval before distributing any

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remaining settlement funds to the cy pres recipient in any event.

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B.

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Plaintiffs should omit the requirement that any objection

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Full-length Notice

“be delivered” to class and defense counsel.
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Notice at 9, Docket

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No. 122-2.

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Procedural Guidance.

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that objections and supporting materials must clearly identify

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the case name and number, and that the Court can only approve or

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deny a settlement and cannot change the terms of the settlement.

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See id.

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Objections should be filed with the Court only.

See

Plaintiffs should include in the notice

Plaintiffs should include instructions on how to access the
case docket via PACER and inform class members to check the

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United States District Court
Northern District of California

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settlement website or PACER to confirm that the final approval

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hearing date has not changed.

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settlement administrator will immediately post any changes to the

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final approval hearing date to the settlement website.

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Plaintiffs should state that the class members will not be

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informed of a change in the final approval hearing date and that

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they must affirmatively seek this information by checking the

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settlement website or PACER.

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Plaintiffs should state that the

Plaintiffs should state when they will upload the various

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settlement documents to the settlement website and activate it.

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Plaintiffs should revise this clause, “(c) the materiality

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[sic] any allegedly false and misleading statements,” to state,

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“(c) the materiality of any allegedly false and misleading

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statements.”

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Notice at 2.

Plaintiffs should revise this sentence, “These negotiations

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resulted in the agreement to settle all claims of the Class

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against the Defendants, i.e., the Stipulation, entered into on

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January [], 2019 (‘Effective Date’),” to state, “These

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negotiations resulted in the agreement to settle all claims of

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the Class against the Defendants, i.e., the Stipulation, entered
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into on February 1, 2019.”

Notice at 4.

Plaintiffs should define “Effective Date” in accordance with

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the stipulation’s definition in or following this sentence, “In

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return for the payment of the Settlement Fund . . . upon the

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Effective Date.”

Id.

Plaintiffs should revise this sentence, “The date of [sic]

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covering a ‘short sale’ is deemed to be the date of purchase of

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Thoratec common stock . . .” to state, “The date of purchase

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United States District Court
Northern District of California

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covering a ‘short sale’ is deemed to be the date of purchase of

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Thoratec common stock . . . .”

Notice at 7.

Plaintiffs should omit this clause, “(1) whether a Class

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should be certified for purposes of the Settlement and whether

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Class Representative and Class Counsel have adequately

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represented the Class . . . .”

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renumber the remaining clauses in the revised sentence in

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numerical order starting with “(1).”

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Notice at 8.

Plaintiffs should

See id.

If Cooper is a class representative, Plaintiffs should

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revise this sentence, “Todd Labak was appointed by the Court to

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represent the Class as Class Representative,” to state, “Bradley

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Cooper and Todd Labak were appointed by the Court to represent

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the Class as Class Representatives.”

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Notice at 3.

If Cooper is not a class representative or is a class

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representative but Plaintiffs do not intend to seek Court

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approval of an incentive award for Cooper, Plaintiffs should

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revise this sentence, “In addition, a Compensatory Award for the

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time and expenses incurred by Lead Plaintiffs will be sought, not

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to exceed $10,000 each,” to state, “In addition, a Compensatory

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Award for the time and expenses incurred by Lead Plaintiff Todd
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Labak will be sought, not to exceed $10,000.”

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Plaintiffs should revise these sentences, “In addition, Class

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Counsel intend to apply to the Court on behalf of the Court-

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appointed Class Representatives Plaintiffs [sic] for

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reimbursement from the Settlement Fund of their reasonable time,

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costs and expenses directly relating to their representation of

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the Class.

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Class Representative,” to state, “In addition, Class Counsel

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United States District Court
Northern District of California

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intend to apply to the Court on behalf of the Court-appointed

Notice at 2.

Class Counsel will seek no more than $10,000 for each

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Class Representative Plaintiff Todd Labak for reimbursement from

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the Settlement Fund of his reasonable time, costs and expenses

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directly relating to his representation of the Class.

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Counsel will seek no more than $10,000 as reimbursement for

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Labak.”

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“and/or the application for the reimbursement of the reasonable

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costs and expenses of the Class Representatives . . .” to state,

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“and/or the application for the reimbursement of the reasonable

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costs and expenses of Class Representative Todd Labak.”

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at 9.

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Notice at 8.

Class

Plaintiffs should revise this clause,

Notice

If Cooper is a class representative and Plaintiffs intend to

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seek Court approval of an incentive award for Cooper, Plaintiffs

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should revise this clause, “whether the Class Representative’s

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application for reimbursement of costs and expenses should be

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granted,” to state, “whether the Class Representatives’

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application for reimbursement of costs and expenses should be

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granted.”

Notice at 8.

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C.

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Plaintiffs should revise this sentence, “YOU ARE HEREBY

Summary Notice

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NOTIFIED . . . 1301 Clay Street, Oakland, CA, . . .” to state,

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“YOU ARE HEREBY NOTIFIED . . . 1301 Clay Street, Oakland, CA

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94612, . . . .”

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Summary Notice at 1, Docket No. 122-4.

Plaintiffs should revise this sentence, “If you purchased or
acquired Thoratec Corporation common stock between May 11, 2011

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and November 4, 2014, your rights may be affected by the

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Settlement of this Action,” to state, “If you purchased or

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acquired Thoratec Corporation common stock between May 11, 2011

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United States District Court
Northern District of California

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and August 6, 2014, your rights may be affected by the Settlement

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of this Action.”

Id.

Plaintiffs should revise this clause, “email:

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www.thorateclitigation.com” to include either an email address or

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other instructions on how to electronically communicate with the

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settlement administrator.

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Id.

Plaintiffs should include that the full-length notice, proof

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of claim and release form

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available through PACER and the settlement administrator’s

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website.

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and other settlement documents are

Id.

If Cooper is not a class representative or is a class

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representative but Plaintiffs do not intend to seek Court

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approval of an incentive award for Cooper, Plaintiffs should

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revise this clause, “whether the Class Representative’s

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application for reimbursement of costs and expenses should be

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granted . . .” to state, “whether Class Representative Todd

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Labak’s application for reimbursement of costs and expenses

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should be granted . . . .”

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Id.

If Cooper is a class representative and Plaintiffs intend to
seek Court approval of an incentive award for Cooper, Plaintiffs
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should revise this clause, “whether the Class Representative’s

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application for reimbursement of costs and expenses should be

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granted . . .” to state, “whether the Class Representatives’

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applications for reimbursement of costs and expenses should be

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granted . . . .”

Id.

D.

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Plaintiffs should include in Section “A. General

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Instructions & Information” the settlement administrator’s

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Northern District of California

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telephone number and email address or explain how one can

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otherwise electronically communicate with the settlement

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administrator.

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122-5.

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Proof of Claim and Release Form

Proof of Claim and Release Form at 1, Docket No.

Plaintiffs should revise this sentence, “You are urged to

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read carefully the accompanying Notice of Proposed Settlement of

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Class Action, Motion for Attorneys’ Fees and Expenses, and Final

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Approval Hearing (the ‘Notice’),” to state, “You are urged to

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read carefully the accompanying Notice of Proposed Settlement of

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Class Action (the ‘Notice’).”

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Id.

Plaintiffs should revise these clauses, “you may email the

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Settlement Administrator’s electronic filing department at

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www.Thoratectherapeuticslitigation.com . . .” and “you should

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contact the electronic filing department at

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www.Thorateclitigation.com . . .” by omitting the references to

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these websites and including instead email addresses or

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instructions on how one can otherwise electronically communicate

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with the filing department.

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Id. at 2.

Plaintiffs should revise this sentence, “The date of [sic]
covering a ‘short sale’ . . .” to state, “The date of purchase
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covering a ‘short sale’ . . . .”

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Id. at 2.

Plaintiffs should revise this phrase, “Northern District of

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Illinois,” to state, “Northern District of California.”

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5.

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Id. at

Plaintiffs should include the settlement administrator’s
telephone number and email address or instructions on how one can

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otherwise electronically communicate with the settlement

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administrator following the sentence, “If you have any questions

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United States District Court
Northern District of California

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or concerns regarding your claim, please contact the Settlement

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Administrator.”

Id. at 7.

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E.

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Plaintiffs should revise the date in the first sentence from

Proposed Order Preliminarily Approving Settlement

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“January 30, 2019” to “February 1, 2019.”

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Docket No. 122-3.

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Proposed Order at 1,

Plaintiffs should revise this clause, “and served upon Class

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Counsel no later than fourteen (14) days prior to the date

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scheduled herein for the Final Approval Hearing,” to state, “no

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later than fourteen (14) days prior to the date scheduled herein

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for the Final Approval Hearing.”

Id. at 5.

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Plaintiffs should omit this sentence, “Copies of the

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objections and supporting documents for Class Counsel shall be

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served upon Leigh Handelman Smollar, Esq. . . . .”

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Id.

Plaintiffs should state that any amount less than $20 is

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presumptively too costly to distribute to any class member, but

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//

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that Plaintiffs will seek Court approval before distributing any

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remaining settlement funds to the cy pres recipient in any event.

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IT IS SO ORDERED.

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Dated:

March 7, 2019
CLAUDIA WILKEN
United States District Judge

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United States District Court
Northern District of California

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