Dhingra v. Crocs, Inc. et al
Filing
205
ORDER PRELIMINARILY APPROVING SETTLEMENT AND PROVIDING FOR NOTICE. The Court preliminarily approves the Stipulation and the Settlement set forth therein, subject to further consideration at the Settlement Hearing. A hearing is set for 2/13/2014 at 09:00 AM before Judge Philip A. Brimmer. By Judge Philip A. Brimmer on 8/28/13. (Attachments: # 1 Exhibit A-1, # 2 Exhibit A-2, # 3 Exhibit A-3) (mnfsl, )
EXHIBIT A-1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 07-cv-02351-PAB-KLM (Consolidated With: Civil Action No. 07-cv02412-MSK, 07-cv-02454-EWN, 07-cv-02465-WYD, and 07-cv-02469-DME)
In re Crocs, Inc., Securities Litigation
NOTICE OF PENDENCY AND
PROPOSED PARTIAL SETTLEMENT OF CLASS ACTION
IF YOU PURCHASED OR ACQUIRED CROCS, INC. PUBLICLY TRADED
SECURITIES BETWEEN APRIL 2, 2007 AND APRIL 14, 2008, INCLUSIVE, YOU
COULD RECEIVE A PAYMENT FROM A CLASS ACTION SETTLEMENT AND YOUR
RIGHTS MAY BE AFFECTED.
A federal court authorized this Notice. This is not a solicitation from a lawyer.
You should read this Notice carefully
Securities and Time Period: Publicly traded securities of Crocs, Inc. (“Crocs”)
purchased or acquired between April 2, 2007 and April 14, 2008, inclusive (“Settlement
Class Period”).
Settlement Fund: $10,000,000 in cash.
Your recovery will depend on the
number and type of Crocs securities you purchased or acquired between April 2, 2007
and April 14, 2008, inclusive, and the timing of your purchases, acquisitions, and any
sales. Depending on the number and type of eligible securities that participate in the
Settlement and when those securities were purchased and sold, the estimated average
recovery per share of common stock will be approximately $0.13 before deduction of
Court-approved fees and expenses.
Settlement Class: The Court has preliminarily certified a Settlement Class of all
Persons who purchased or otherwise acquired publicly traded Crocs securities between
April 2, 2007 and April 14, 2008, inclusive. Excluded from the Settlement Class are
Defendants, their officers and directors during the Settlement Class Period, the
members of their immediate families, and their respective representatives, heirs,
successors, and assigns, as well as any entity in which Defendants have or had a
controlling interest. Also excluded from the Settlement Class are those Persons who
otherwise satisfy the above requirements for membership in the Settlement Class, but
who timely and validly request exclusion from the Settlement Class pursuant to this
Notice.
Reasons for Settlement: Avoids the costs and risks associated with continued
litigation, including the danger of no recovery for Settlement Class Members, and
provides a benefit to the Settlement Class now.
If the Case Had Not Settled: The Settlement must be compared to the risk of
no recovery in light of the fact that the Action was dismissed with prejudice by the Court
and any recovery was dependent on the success of the appeal of that dismissal and a
reversal and remand to the trial court. Moreover, even if Plaintiffs were successful on
appeal, they would still have faced hotly contested pretrial motions, a trial, and likely
appeals. A trial is a risky proposition and the Plaintiffs might not have prevailed. The
claims in this case involve numerous complex legal and factual issues that would
require extensive and costly expert testimony. Among the many key issues about which
the two sides do not agree are: (1) whether any of the Settling Defendants violated the
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securities laws or otherwise engaged in any wrongdoing; (2) whether the facts that the
Plaintiffs allege the Settling Defendants did not disclose were material; (3) whether the
statements by the Settling Defendants were false, misleading, or otherwise actionable
under the federal securities laws; (4) whether the facts alleged by Plaintiffs influenced
the trading prices of Crocs securities during the relevant period; (5) the method for
determining whether Crocs securities were artificially inflated during the relevant period;
(6) the amount (if any) of such inflation; and (7) the amount of damages (if any) that
could be recovered at trial.
Attorneys’ Fees and Expenses:
Plaintiffs’ Counsel have not received any
payment for their work investigating the facts, conducting this litigation, or negotiating
the Settlement on behalf of the Plaintiffs and the Settlement Class. Plaintiffs’ Counsel
will ask the Court for attorneys’ fees of 33 1/3% of the Settlement Fund, plus
reimbursement of out-of-pocket litigation expenses up to $250,000.00 and interest on
those amounts, as well as hourly attorneys’ fees incurred solely in connection with
administering the Settlement, to be paid from the Settlement Fund.
If the above
amounts are requested and approved by the Court, the average cost per share of
common stock will be approximately $0.047, making the estimated recovery per share
after fees and expenses $0.083.
Deadlines:
Submit Claim:
____________, 2012
Request Exclusion: _____________, 2012
File Objection:
_____________, 2012
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Court Hearing On Fairness of Settlement: ___________, 2012
More Information: www.gcginc.com/cases/CrocsSecuritiesLitigation or
Claims Administrator:
Plaintiffs’ Counsel:
Crocs Securities Litigation
Claims Administrator
c/o GCG
PO Box 9889
Dublin, OH 43017-5789
(888) 331-9141
David A.P. Brower
BROWER PIVEN
A Professional Corporation
488 Madison Avenue, 8th Floor
New York, NY 10022
Your legal rights are affected whether you act or do not act. Read this
Notice carefully.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS CLASS ACTION SETTLEMENT:
SUBMIT A CLAIM FORM
The only way to receive a payment.
EXCLUDE YOURSELF
Receive no payment. This is the only option
that allows you to participate in another lawsuit
against the Settling Defendants (or other
Released Parties) relating to the claims being
released in this case.
OBJECT
You may write to the Court if you do not like this
Settlement.
GO TO A HEARING
You may ask to speak in Court about the
fairness of the Settlement.
DO NOTHING
Receive no payment.
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These rights and options — and the deadlines to exercise them — are
explained in this Notice.
The Court in charge of this case must decide whether to approve the
Settlement. Payments will be made if the Court approves the Settlement and, if there
are any appeals, after appeals are resolved. Please be patient.
BASIC INFORMATION
1.
Why Did I Get This Notice Package?
You or someone in your family may have purchased or acquired the publicly
traded securities of Crocs between April 2, 2007 and April 14, 2008, inclusive.
The Court ordered that this Notice be sent to you because you have a right to
know about a proposed settlement of a class action lawsuit, and about all of your
options, before the Court decides whether to approve the Settlement.
If the Court
approves it, and after any objections or appeals are resolved, the Claims Administrator
appointed by the Court will make the payments that the Settlement allows.
This package explains the lawsuit, the Settlement, your legal rights, what benefits
are available, who is eligible for them, and how to get them.
The Court in charge of the case is the United States District Court for the District
of Colorado, and the case is known as In re Crocs, Inc. Securities Litigation, Case No.
07-cv-02351-PAB-KLM.
The persons who sued are called the Plaintiffs, and the
companies and the individuals they sued — Crocs, Inc., Ronald R. Snyder, Peter S.
Case, Russell Hammer, John P. McCarvel, Scott Crutchfield, Michael E. Marks,
Raymond D. Croghan, Michael E. Margolis, Richard L. Sharp, Thomas J. Smach, and
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Deloitte & Touche LLP — are called the Defendants. All of the Defendants except
Deloitte & Touche LLP have agreed to settle the claims made in this case and are
called the Settling Defendants. Deloitte & Touche LLP has not agreed to settle the
claims against it and the case will continue to proceed against Deloitte & Touche LLP.
2.
What Is This Lawsuit About?
This case was brought as a class action alleging that between April 2, 2007 and
April 14, 2008, inclusive, the Settling Defendants made certain materially false and
misleading statements about Crocs’ financial results, internal controls, and inventory
accounting.
Settling Defendants have denied and continue to deny that they did
anything wrong.
3.
Why Is This a Class Action?
In a class action, one or more people called class representatives sue on behalf
of people who have similar claims. Here, all these people are called a Settlement Class
or Settlement Class Members. One court resolves the issues for all Settlement Class
Members, except for those who timely and validly exclude themselves from the
Settlement Class. Judge Philip A. Brimmer is in charge of this class action.
4.
Why Is There a Settlement?
The Court did not decide in favor of the Plaintiffs or the Settling Defendants.
Instead, both sides agreed to a settlement.
That way, they avoid the cost and
uncertainty of continued litigation, including a possible trial, and eligible Settlement
Class Members who make valid claims will receive compensation. The Plaintiffs and
their attorneys think the Settlement is best for all Settlement Class Members.
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WHO IS IN THE SETTLEMENT
To see if you will get money from this Settlement, you first have to determine if
you are a Settlement Class Member.
5.
How Do I Know if I Am Part of the Settlement?
The Settlement Class includes all persons who purchased or otherwise
acquired publicly traded securities of Crocs between April 2, 2007 and April 14,
2008, inclusive, except those persons and entities that are excluded, as described
below.
6.
What Are the Exceptions to Being Included?
You are not a Settlement Class Member if you are:
a Defendant;
a director or officer of Crocs or Deloitte & Touche LLP during the
Settlement Class Period;
a member of the immediate family of any excluded party;
an entity in which any excluded person has or had a controlling interest; or
a legal representative, heir, successor, or assign of any excluded party.
If you sold Crocs securities between April 2, 2007 and April 14, 2008, inclusive,
that alone does not make you a Settlement Class Member. You are a Settlement Class
Member only if you purchased or acquired Crocs securities between April 2, 2007 and
April 14, 2008. You are also not a Settlement Class Member if you timely and validly
exclude yourself from the Settlement Class pursuant to this Notice.
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7.
I’m Still Not Sure if I Am Included in the Class Action.
If you are still not sure whether you are included, you can ask for free help. You
can call (888) 331-9141 for more information or you can fill out and return the claim form
described in question 10, to see if you qualify.
THE SETTLEMENT BENEFITS — WHAT YOU GET
8.
What Does the Settlement Provide?
Settling Defendants have agreed to settle this case for $10,000,000 in cash. The
balance of the Settlement Fund, after payment of Court-approved attorneys’ fees and
expenses and the costs of claims administration, including the costs of printing and
mailing this Notice and the cost of publishing newspaper notice (the “Net Settlement
Fund”), will be divided among all eligible Settlement Class Members who send in valid
claim forms.
9.
How Much Will My Payment Be?
Your share of the Net Settlement Fund will depend on the number of valid claim
forms that Settlement Class Members send in and the number and type of Crocs
securities you purchased during the relevant period and when you bought and sold
them. A claim will be calculated, subject to Court approval, under the following Plan of
Allocation.
The Net Settlement Fund shall be distributed pursuant to the calculation of
“Recognized Loss” as set forth in the Plan of Allocation described below.
Only
Settlement Class Members who submit a valid, timely, and complete Proof of Claim and
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Release (“Authorized Claimants”), and who have a Recognized Loss under the Plan of
Allocation will receive a distribution from the Net Settlement Fund.
To the extent there are sufficient funds in the Net Settlement Fund, each
Authorized Claimant will receive an amount equal to the Authorized Claimant’s entire
Recognized Loss. However, it is estimated by Plaintiffs’ Counsel that the amount of the
Net Settlement Fund will not be sufficient to permit payment of the total Recognized
Loss of each Authorized Claimant. Accordingly, each Authorized Claimant shall be paid
the percentage that each Authorized Claimant’s claim bears to the total of the claims of
all Authorized Claimants. Payment in this manner shall be deemed conclusive against
all Authorized Claimants. No Person shall have any claim against Plaintiffs, Plaintiffs’
Counsel, any claims administrator, the Escrow Agents, or any agent designated by
Plaintiffs’ Counsel, any claims administrator, the Escrow Agent or any agent designated
by Settling Defendants, Defendants’ counsel, or their respective counsel, based on the
investment or distributions made substantially in accordance with the Stipulation and the
Settlement contained herein, the Plan of Allocation, or further orders of the Court. The
Settling Defendants and the other Released Parties shall have no responsibility for, or
liability whatsoever with respect to, the Settlement Fund, the Escrow Agent, the Escrow
Agent’s actions, any transaction executed or approved by the Escrow Agent, or the
Escrow Agent’s administration of the Settlement Fund. All Settlement Class Members
who have failed to file a complete, valid and timely Proof of Claim in this Settlement
shall be barred from participating in distributions from the Net Settlement Fund (unless
otherwise ordered by the Court), but otherwise shall be bound by all of the terms of the
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Settlement and Stipulation, including the terms of the Class Judgment entered and the
releases given.
I.
For shares of Crocs common stock purchased or acquired between April
2, 2007 and October 31, 2007, inclusive, and held at the close of business on July 13,
2008, recognized loss per share is the lesser of:
A.
$34.69; or
B.
The price paid less $10.11.
II.
For shares of Crocs common stock purchased or acquired between April
2, 2007 and October 31, 2007, inclusive, and sold between April 15, 2008 and July 13,
2008, inclusive, recognized loss per share is the lesser of:
A.
$34.69;
B.
The price paid less $10.11;
C.
The price paid less the price received; or
D.
The price paid less the price in Table A on the date of sale.
III.
For shares of Crocs common stock purchased between April 2, 2007 and
October 31, 2007, inclusive, and sold between January 30, 2008 and April 14, 2008,
inclusive, recognized loss per share is the lesser of:
A.
$27.01; or
B.
The price paid less $47.74.
IV.
For shares of Crocs common stock purchased or acquired between April
2, 2007 and October 31, 2007, inclusive, and sold between November 1, 2007 and
January 29, 2008, inclusive, recognized loss per share is the lesser of:
A.
$27.01;
B.
The price paid less $47.74; or
C.
The price paid less the price received.
V.
For shares of Crocs common stock purchased or acquired between April
2, 2007 and October 31, 2007, inclusive, and sold on or before October 31, 2007, the
recognized loss is $0.
VI.
For shares of Crocs, Inc. common stock purchased or acquired between
November 1, 2007 and April 14, 2008 and held on July 13, 2008, recognized loss per
share is the lesser of:
A.
$7.68; or
B.
The price paid less $10.11.
VII. For shares of Crocs common stock purchased or acquired between
November 1, 2007 and April 14, 2008 and sold between April 15, 2008 and July 12,
2008, recognized loss per share is the lesser of:
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A.
B.
C.
D.
$7.68;
The price paid less $10.11;
The price paid less the price received; or
The price paid less the price in Table A on the date of sale.
VIII. For shares of Crocs common stock purchased or acquired between
November 1, 2007 and April 14, 2008, and sold on or before April 14, 2008, the
recognized loss is $0.
IX.
For call contracts purchased between April 2, 2007 and October 31 2007,
inclusive, and held on April 15, 2008, inclusive, recognized loss per share covered by
the contracts is the lesser of:
A.
$8.67; or
B.
Twenty-five percent (25%) of the price paid for the contract less
twenty-five (25%) percent of the price received on sale of the contract.
If the option contract expired worthless while still owned by the Authorized Claimant, the
sale price will be deemed to be zero.
X.
For call contracts purchased between April 2, 2007 and October 31 2007,
inclusive, and sold between November 1, 2007 and April 15, 2008, inclusive, recognized
loss per
share covered by the contracts is the lesser of:
A.
$6.75; or
B.
Twenty-five percent (25%) of the price paid for the contract less
twenty-five (25%) percent of the price received on sale of the contract.
If the option contract expired worthless while still owned by the Authorized Claimant, the
sale price will be deemed to be zero.
XI.
For call contracts purchased between November 1, 2007 and April 14,
2007, inclusive, and held on April 15, 2008, recognized loss per share covered by the
contracts is the lesser of:
A.
$1.92;
B.
Twenty-five percent (25%) of the price paid for the contract less
twenty-five percent (25%) of the price received on sale of the contract.
If the option contract expired worthless while still owned by the Authorized Claimant, the
sale price will be deemed to be zero.
Shares of Crocs common stock acquired during the Settlement Class Period through
the exercise of a call option shall be treated as a purchase on the date of exercise for
the exercise price plus the cost of the call option, and any Recognized Claim arising
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from such transaction shall be computed as provided for other purchases of Crocs
common stock as set forth herein.
No Recognized Claim shall be calculated based upon the sale or writing of any call
option that was subsequently repurchased.
XII. For put contracts sold between April 2, 2007 and October 31 2007,
inclusive, and held on April 15, 2008, inclusive, recognized loss per share covered by
the contracts is the lesser of:
A.
$17.34; or
B.
Fifty percent (50%) of the price paid for the contract less fifty (50%)
percent of the price received on sale of the contract.
If the option contact expired worthless while still owned by the Authorized Claimant, the
sale price will be deemed to be zero.
XIII. For put contracts sold between April 2, 2007 and October 31 2007,
inclusive, and purchased between November 1, 2007 and April 15, 2008, inclusive,
recognized loss per share covered by the contracts is the lesser of:
A.
$13.50; or
B.
Fifty percent (50%) of the price paid for the contract less fifty (50%)
percent of the price received on sale of the contract.
If the option contact expired worthless while still owned by the Authorized Claimant, the
sale price will be deemed to be zero.
XIV. For put contracts sold between November 1, 2007 and April 14, 2007,
inclusive, and held on April 15, 2008, recognized loss per share covered by the
contracts is the lesser of:
A.
$3.84; or
B.
Fifty percent (50%) of the price paid for the contract less fifty (50%)
percent of the price received on sale of the contract.
In calculating Recognized Loss, the following principles shall be followed:
If the option contact expired worthless while still owned by the Authorized
Claimant, the purchase price will be deemed to be zero.
For Crocs put options that were sold or written during the Settlement
Class Period, that were “put” to the Authorized Claimant (i.e. exercised) at any time, the
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Authorized Claimant’s Recognized Claim shall be calculated as a purchase of Crocs’
common stock as shown herein, and as if the sale of the put option were instead a
purchase of Crocs’ common stock on the date of the sale or writing of the put option,
and the “purchase price paid” shall be the strike price of the put option less the
proceeds received from the sale of the put option.
No Recognized Claim shall be calculated based upon the sale of any put
option that was previously purchased.
The total recovery payable to Authorized Claimants from transactions in
call or put options shall not exceed ten percent (10%) of the Distribution Amount.
Each Authorized Claimant shall be paid the percentage that each
Authorized Claimant’s claim bears to the total of the claims of all Authorized Claimants.
The date of purchase, acquisition, or sale is the “contract” or “trade” date as
distinguished from the “settlement” date.
For Settlement Class Members who held Crocs securities at the beginning
of the Settlement Class Period or made multiple purchases or sales during the
Settlement Class Period, the first-in, first-out (“FIFO”) method will be applied to such
holdings, purchases, and sales for purposes of calculating a claim. Under the FIFO
method, sales of securities during the Settlement Class Period will be matched, in
chronological order, first against securities held at the beginning of the Settlement Class
Period. The remaining sales of securities during the Settlement Class Period will then
be matched, in chronological order, against securities purchased during the Settlement
Class Period.
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A Settlement Class Member will be eligible to receive a distribution from
the Net Settlement Fund only if a Settlement Class Member has a net Recognized
Claim, after all profits from transactions in Crocs securities during the Settlement Class
Period are subtracted from all losses. In addition, no distribution will be made unless
the amount of the check is at least $10.00.
The Recognized Claim formula (which is set forth herein) is not intended to be an
estimate of the amount that a Settlement Class Member might have been able to
recover after a trial; nor is it an estimate of the amount that will be paid to Authorized
Claimants pursuant to the Settlement. Rather, the Recognized Claim formula is the
basis upon which the Net Settlement Fund will be proportionately allocated to the
Authorized Claimants based upon several factors, including when a Settlement Class
Member purchased Crocs securities during the Class Period, when or if a Settlement
Class Member sold those Crocs securities, and Plaintiffs’ Counsel’s estimation, based
on consultation with Plaintiffs’ experts, of the relative strengths and weaknesses of the
Settlement Class claims and the impact of the alleged misconduct by the Settling
Defendants on the price of Crocs’ securities at various times during the Settlement
Class Period.
The payment you get will reflect your pro rata share of the Net Settlement Fund
which will depend on the number of claims submitted under the Settlement.
The
number of claimants who send in claims varies widely from case to case and, therefore,
it is not possible to accurately estimate what each claimant will receive on a per-share
basis
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The Plan of Allocation is a matter separate and apart from the proposed
settlement, and any decision by the Court concerning the Plan of Allocation shall not
affect the validity or finality of the proposed Settlement. The Plan of Allocation may be
modified in connection with, among other things, a ruling by the Court, an objection filed
by a Settlement Class Member, without further notice to the Settlement Class.
HOW YOU GET A PAYMENT — SUBMITTING A CLAIM FORM
10.
How Will I Get a Payment?
To qualify for payment, you must be an eligible Settlement Class Member and
you must send in a timely and valid claim form. A claim form is enclosed with this
Notice. Read the instructions carefully, fill out the form, include all the documents the
form asks for, sign it, and mail it in the enclosed envelope postmarked no later than
_______, 2012.
11.
When Will I Get My Payment?
The Court will hold a hearing on __________, 2012, to decide whether to
approve the Settlement.
If Judge Brimmer approves the Settlement, there may be
appeals. It is always uncertain whether these appeals can be resolved, and resolving
them can take time, perhaps several years. Everyone who sends in a claim form will be
informed of the determination with respect to their claim. Please be patient.
12.
What Am I Giving Up to Get a Payment or Stay in the Settlement
Class?
Unless you timely and validly exclude yourself, you are staying in the Settlement
Class, and that means that you cannot sue, continue to sue, or be part of any other
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lawsuit against the Settling Defendants (or other Released Parties) about the Released
Claims in this case. It also means that all of the Court’s orders will apply to you and
legally bind you and you will release your claims in this case against the Settling
Defendants and the other Released Parties. The terms of the release are included in
the claim form that is enclosed.
EXCLUDING YOURSELF FROM THE SETTLEMENT
If you do not want a payment from this Settlement, but you want to keep the right
to sue or continue to sue any of the Settling Defendants (or other Released Parties) on
your own about the Released Claims in this case, then you must take steps to get out of
the Settlement Class. This is called excluding yourself or is sometimes referred to as
opting out of the Settlement Class.
13.
How Do I Get Out of the Settlement Class?
To exclude yourself from the Settlement Class, you must send a letter by mail
stating that you want to be excluded from In re Crocs, Inc. Securities Litigation, Case
07-cv-02351-PAB-KLM.
You must include your name, address, telephone number,
signature, the number and type of Crocs securities you purchased or acquired between
April 2, 2007 and April 14, 2008, the number and type of securities sold during this time
period, if any, and the dates of such purchases and sales.
exclusion request postmarked no later than ________, 2012 to:
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You must mail your
Crocs Securities Litigation
Claims Administrator
0c/o GCG
PO Box 9889
Dublin, OH 43017-5789
(888) 331-9141
You cannot exclude yourself on the phone or by e-mail.
If you ask to be
excluded, you are not eligible to get any settlement payment, and you cannot object to
the Settlement. You will not be legally bound by anything that happens in this lawsuit.
14.
If I Do Not Exclude Myself, Can I Sue the Settling Defendants for the
Same Thing Later?
No.
Unless you exclude yourself, you give up any right to sue the Settling
Defendants (and other Released Parties) for the Released Claims in this Settlement. If
you have a pending lawsuit against any of the Settling Defendants (or other Released
Parties), speak to your lawyer in that case immediately. Remember, the deadline to
request exclusion from the Settlement Class is ___________, 2012.
15.
If I Exclude Myself, Can I Get Money from This Settlement?
No. If you exclude yourself, do not send in a claim form. But, if you exclude
yourself, you may be able to sue, continue to sue, or be part of a different lawsuit
involving the Released Claims against any of the Settling Defendants (or other
Released Parties).
THE LAWYERS REPRESENTING YOU
16.
Do I Have a Lawyer in This Case?
The Court asked the law firms of Brower Piven, a Professional Corporation, and
Zuckerman Spaeder LLP to represent you and other Settlement Class Members.
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These lawyers, who have been appointed by the Court to represent the
Settlement Class, are also referred to as Plaintiffs’ Counsel. You will not be directly
charged for these lawyers. If you want to be represented by your own lawyer, you may
hire one at your own expense.
17.
How Will the Lawyers Be Paid?
Plaintiffs’ Counsel will ask the Court for attorneys’ fees of 33 1/3% of the
Settlement Fund and for reimbursement of their out-of-pocket litigation expenses, which
were advanced in connection with the Action. Such sums as may be approved by the
Court will be paid from the Settlement Fund.
Settlement Class Members are not
personally liable for any such fees or expenses.
The attorneys’ fees and expenses requested will be the only payment to
Plaintiffs’ Counsel for their efforts in achieving this Settlement and for their risk in
undertaking this representation on a wholly contingent basis.
To date, Plaintiffs’
Counsel have not been paid for their services for conducting this litigation on behalf of
the Plaintiffs and the Settlement Class nor for their out-of-pocket expenses. The fee
requested will compensate Plaintiffs’ Counsel for their work in achieving the Settlement
Fund and is within the range of fees awarded to class counsel under similar
circumstances in other cases of this type. The Court will decide what is a reasonable
fee award and may award less than the amount requested by Plaintiffs’ Counsel.
Plaintiffs’ Counsel will also request reimbursement of expenses for administration
of the Settlement including the costs associated with notice and the fees and expenses
of the claims administrator, as well as hourly attorneys’ fees incurred solely in
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connection with administering the Settlement. Those amounts will be requested before
distribution of the Net Settlement Fund to Settlement Class Members. Again, such
sums as may be approved by the Court will be paid from the Settlement Fund.
OBJECTING TO THE SETTLEMENT, PLAN OF ALLOCATION AND REQUEST FOR
ATTORNEYS’ FEES AND REIMBURSEMENT OF EXPENSES
You can tell the Court that you do not agree with the Settlement or some part of
it.
18.
How Do I Tell the Court that I Do Not Like the Class Action
Settlement, the Plan of Allocation or the Request for Attorneys’ Fees and/or
reimbursement of expenses?
If you are a Settlement Class Member, you can object to the proposed
Settlement, the proposed Plan of Allocation and/or Plaintiffs’ Counsel’s request for an
award of attorneys’ fees and/or reimbursement of expenses. To object, you must send
a letter saying that you object to the Settlement in In re Crocs, Inc. Securities Litigation,
Case No. 07-cv-02351-PAB-KLM. Be sure to include your name, address, telephone
number, signature, whether you intend to appear to be heard at the Settlement Hearing,
the number and type of Crocs securities acquired or purchased and sold between April
2, 2007 and April 14, 2008, inclusive, the dates of such purchases, acquisitions, and
any sales, the exchange upon which the securities were purchased, acquired or sold,
and the price(s) paid and received, and all reasons you object to the Settlement, Plan of
Allocation and/or Plaintiffs’ Counsel’s request for an award of attorneys’ fees and/or
reimbursement of expenses. If you intend to appear at the Settlement Hearing, you
must also indicate the identities of any witnesses that you intend to call to testify, and
any exhibits that you intend to introduce into evidence at the Settlement Hearing. Any
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objection you wish to make as to the Settlement, Plan of Allocation and/or Plaintiffs’
Counsel’s request for an award of attorneys’ fees and/or reimbursement of expenses
must be mailed or delivered such that it is received by each of the following no later
than ________, 2012:
Court:
Clerk of the Court
UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Alfred A. Arraj United States Courthouse
Room A-105
901 19th Street
Denver, Colorado 80294-3589
Plaintiffs’ Counsel:
David Brower
BROWER PIVEN
A Professional Corporation
488 Madison Avenue, 8th Floor
New York, NY 10022
Counsel for Settling Defendants:
Paul T. Friedman
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, CA 94105
19.
What’s the Difference Between Objecting and Excluding?
Objecting is simply telling the Court that you do not like something about the
Settlement. You can object only if you stay in the Settlement Class. Excluding yourself
is telling the Court that you do not want to be part of the Settlement Class. If you
exclude yourself, you have no basis to object because the case no longer affects you.
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THE COURT’S FAIRNESS HEARING
The Court will hold a hearing to decide whether to approve the Settlement. You
may attend and you may ask to speak, but you do not have to.
20.
When and Where Will the Court Decide Whether to Approve the
Settlement?
The Court will hold a fairness hearing at _____ a.m./p.m., on _______, 2012; at
the United States Courthouse, 901 19th Street, Courtroom A701, Denver, Colorado. At
this hearing the Court will consider whether the Settlement is fair, reasonable, and
adequate. If there are objections, the Court will consider them. Judge Brimmer will
listen to people who have asked to speak at the hearing. The Court will also consider
how much to pay to Plaintiffs’ Counsel. The Court may decide these issues at the
hearing or take them under consideration. We do not know how long these decisions
will take.
21.
Do I have to Come to the Hearing?
No. Plaintiffs’ Counsel will answer any questions Judge Brimmer may have. But,
you are welcome to come at your own expense. If you send an objection, you do not
have to come to Court to talk about it. As long as you mailed your written objection on
time, the Court will consider it. You may also pay your own lawyer to attend, but it is not
necessary.
22.
May I Speak at the Hearing?
You may ask the Court for permission to speak at the fairness hearing. To do so,
you must send a letter saying that it is your intention to appear in In re Crocs, Inc.
21
Securities Litigation, Case No. 07-cv-02351-PAB-KLM. Be sure to include your name,
address, telephone number, signature, the number and type of Crocs securities
acquired or purchased and sold between April 2, 2007 and April 14, 2008, inclusive, the
dates of such purchases, acquisitions, and any sales, the exchange upon which the
securities were purchased, acquired or sold, and the price(s) paid and received, the
reasons you object to the Settlement, and the identities of any witnesses that you intend
to call to testify, and any exhibits that you intend to introduce into evidence at the
Settlement Hearing. Your notice of intention to appear must be received no later than
__________, 2012, by the Clerk of the Court, Plaintiffs’ Counsel, and Settling
Defendants’ counsel, at the three addresses listed in question 18. You cannot speak at
the hearing if you exclude yourself from the Settlement Class.
IF YOU DO NOTHING
23.
What Happens if I Do Nothing at All?
If you do nothing, you will get no money from this Settlement. But, unless you
exclude yourself, you will not be able to start a lawsuit, continue with a lawsuit, or be
part of any other lawsuit against the Settling Defendants (or other Released Parties)
about the Released Claims in this case. If the proposed Settlement is approved and
becomes Final and no longer appealable, any Settlement Class Member who does not
exclude himself, herself or itself from the Settlement Class will be bound by the Class
Judgment entered in the Action and the releases and bar orders provided therein.
“Released Claims” means all claims (including without limitation Unknown
Claims, as defined below) demands, rights, liabilities, suits, debts, obligations, and
22
causes of action of every nature and description whatsoever, whether known or
unknown, contingent or absolute, mature or unmature, discoverable or undiscoverable,
liquidated or unliquidated, accrued or unaccrued, concealed or hidden, regardless of
legal theory, including, without limitation, claims for negligence, gross negligence,
recklessness, intentional wrongdoing, fraud, breach of fiduciary duty, breach of the duty
of care and/or loyalty or violations of the common law, administrative rule or regulation,
tort, contract, equity, or otherwise or of any state or federal statutes, rules or regulations
or international law, or the law of any foreign jurisdiction, that were asserted, or could
have been asserted, or might have been asserted, in the Action or in any other litigation,
action, or forum by Plaintiffs or the Settlement Class Members, or any of them, against
the Released Parties, or any of them, which arise out of or relate in any way, directly or
indirectly, in whole or in part, to (a) the purchase or acquisition of Crocs securities
during the Settlement Class Period; (b) any allegations or statements in the Complaint;
or (c) the Settling Defendants’ defense or settlement of the Action.
It is hereby
expressly agreed by and is the intent of the Settling Parties that Plaintiffs’ and/or any
Settlement Class Member’s claims against Deloitte are not being released by the
Stipulation or any Exhibits hereto and are not Released Claims.
“Released Parties” means collectively, each and all of the Settling Defendants,
each and all of the Settling Defendants’ respective past, present, or future parents,
subsidiaries, affiliates, successors, predecessors, assigns, any entity in which any
Settling Defendant has or had a controlling interest (directly or indirectly), members of
an Individual Defendant’s immediate family, any entity in which any member of any
23
Individual Defendant’s immediate family has or had a controlling interest (directly or
indirectly), and any trust of which any Individual Defendant is the settler or which is for
the benefit of any Individual Defendant and/or member(s) of his family, and each and all
of their respective past, present, or future accountants, administrators, advisors,
affiliates, agents, analysts, assignees, assigns, associates, attorneys, co-insurers,
commercial bank lenders, consultants, controlling shareholders, directors, divisions,
domestic partners, employees, employers, executors, financial advisors, general or
limited partners, general or limited partnerships, heirs, insurers, investment advisors,
investment bankers, investment banks, joint ventures and joint venturers, managers,
marital communities, members, officers, parents, personal or legal representatives,
predecessors, principals, reinsurers, representatives, shareholders, current and former
spouses, subsidiaries, successors, and underwriters.
“Released Parties” expressly
does not include Deloitte.
“Unknown Claims” means any and all Released Claims which Plaintiffs or any
other Settlement Class Member, does not know or suspect to exist in his, her or its favor
at the time of the release of the Released Parties, which, if known by him, her or it,
might have affected his, her or its settlement with, and release of, the Released Parties,
or might have affected his, her or its decision not to object to this Settlement. Unknown
Claims include those claims in which some or all of the facts composing the claim may
be suspected, or even undisclosed or hidden. With respect to any and all Released
Claims, upon the Effective Date, Plaintiffs shall expressly waive and relinquish, and
each Settlement Class Member, shall be deemed to have, and by operation of the Class
24
Judgment shall have, waived and relinquished, to the fullest extent permitted by law, the
provisions, rights and benefits of California Civil Code §1542, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR.
Upon the Effective Date, Plaintiffs shall expressly waive and relinquish, and each
Settlement Class Member, shall be deemed to have, and by operation of the Class
Judgment shall have, waived and relinquished, to the fullest extent permitted by law,
any and all provisions, rights and benefits conferred by the law of the United States, any
law of any state or territory of the United States, or principle of common law, or of
international law or foreign law, which is similar, comparable or equivalent in effect to
California Civil Code §1542. It is understood that Plaintiffs and each Settlement Class
Member may hereafter discover facts in addition to or different from those which he, she
or it now knows or believes to be true with respect to the subject matter of the Released
Claims (including the Unknown Claims), but Plaintiffs and each Settlement Class
Member, upon the Effective Date, shall be deemed to have, and by operation of the
Class Judgment shall have, fully, finally, and forever discharged, settled, and released
any and all Released Claims, known or unknown, suspected or unsuspected, contingent
or non-contingent, accrued or unaccrued, whether or not concealed or hidden, which
now exist, or heretofore have existed, upon any theory of law or equity now existing or
coming into existence in the future, including, but not limited to, conduct which is
negligent, grossly negligent, reckless, intentional, with or without malice, or a breach of
25
any duty, law or rule, without regard to the subsequent discovery or existence of such
different or additional facts. Plaintiffs acknowledge, and the other Settlement Class
Members shall be deemed by operation of the Class Judgment to have acknowledged,
that the foregoing waivers were separately bargained for and are key elements of the
Settlement of which this release is a part.
Upon the Effective Date, Plaintiffs and each of the Settlement Class Members for
themselves and for each of their respective past, present, and future accountants,
administrators, advisors, affiliates, agents, analysts, assignees, assigns, associates,
attorneys, auditors, co-insurers, commercial bank lenders, consultants, controlling
shareholders, directors, divisions, domestic partners, employees, employers, executors,
financial advisors, general or limited partners, general or limited partnerships, heirs,
insurers, investment advisors, investment bankers, investment banks, joint ventures and
joint venturers, managers, marital communities, members, officers, parents, personal or
legal
representatives,
predecessors,
principals,
reinsurers,
representatives,
shareholders, spouses, subsidiaries, successors, and underwriters, and any other
Person claiming (now or in the future) through or on behalf of any of them (whether or
not such Settlement Class Member ever seeks or obtains by any means, including
without limitation, by submitting a Proof of Claim, any distribution from the Settlement
Fund) shall be deemed to have, and by operation of the Class Judgment entered in the
Action shall have, fully, finally, and forever released, relinquished, and discharged all
Released Claims (including Unknown Claims) against each and all of the Released
Parties, and shall have covenanted not to sue any of the Released Parties with respect
26
to all such Released Claims, except to enforce the releases and other terms and
conditions contained in the Stipulation or the Class Judgment entered pursuant thereto.
It is expressly agreed to by the Settling Parties that nothing in the Stipulation releases,
shall release, or is intended to release Deloitte of or from any claim by Plaintiffs and/or
any Settlement Class Member whatsoever and/or of or from any liability therefor,
including of or from Released Claims and/or any liability therefor.
Upon the Effective Date, Plaintiffs and each of the Settlement Class Members for
themselves and for each of their respective past, present, and future accountants,
administrators, advisors, affiliates, agents, analysts, assignees, assigns, associates,
attorneys, auditors, co-insurers, commercial bank lenders, consultants, controlling
shareholders, directors, divisions, domestic partners, employees, employers, executors,
financial advisors, general or limited partners, general or limited partnerships, heirs,
insurers, investment advisors, investment bankers, investment banks, joint ventures and
joint venturers, managers, marital communities, members, officers, parents, personal or
legal
representatives,
predecessors,
principals,
reinsurers,
representatives,
shareholders, spouses, subsidiaries, successors, and underwriters of each of them, and
any other Person claiming (now or in the future) through or on behalf of any of them,
directly or indirectly, individually, representatively, or in any other capacity (whether or
not such Settlement Class Member executes and delivers a Proof of Claim) shall be
forever permanently barred, enjoined, and restrained from commencing, instituting,
asserting, maintaining, enforcing, prosecuting, or continuing to prosecute, either directly
or in any other capacity, any Released Claim (including any Unknown Claim) against
27
any of the Released Parties, in the Action or in any other action or any proceeding, in
any state, federal, or foreign court of law or equity, arbitration tribunal, administrative
forum, or other forum of any kind, or in the court of any foreign jurisdiction.
It is
expressly agreed to by the Settling Parties that nothing in the Stipulation bars, shall bar
or is intended to bar any claim by Plaintiffs and/or any Settlement Class Member
against Deloitte.
Upon the Effective Date, each of the Settling Defendants shall be deemed to
have, and by operation of the Class Judgment entered in the Action, shall have, fully,
finally, and forever released, relinquished, and discharged each and all of the
Settlement Class Members and Plaintiffs, including their respective successors,
assigns,
heirs,
domestic
partners,
spouses,
marital
communities,
executors,
administrators, attorneys and legal representatives, from all claims, including Unknown
Claims, arising out of, relating to, or in connection with the institution, prosecution,
assertion, settlement or resolution of the Action, except to enforce the releases and
other terms and conditions contained in the Stipulation or any Court order (including but
not limited to the Class Judgment) entered pursuant thereto.
The Class Judgment in the Action will contain a Bar Order as required by section
21D(f)(7) of the Securities Exchange Act of 1934, 15 U.S.C. §78u-4(f)(7) and shall be as
broad as permitted by state or federal law, and shall permanently and forever bar all
Persons from filing, instituting, prosecuting, or maintaining, directly or indirectly, in any
capacity, any claims under state, federal, or common law for contribution or indemnity
against any Settling Defendant, whether based in tort, contract, or any other theory,
28
arising from, based upon, or related to the Released Claims, the Action, or the subject
matters of the Action.
GETTING MORE INFORMATION
24.
Are There More Details About the Settlement?
This Notice summarizes the proposed Settlement.
More details are in the
Stipulation and Agreement of Partial Class Settlement dated May 14, 2012. You can
get a copy of the Stipulation by writing to David A.P. Brower, Brower Piven, A
Professional Corporation, 488 Madison Avenue, 8th Floor, New York, NY 10022 or from
the Clerk’s office at the United States District Court for the District of Colorado, Alfred A.
Arraj United States Courthouse, Room A-105, 901 19th Street, Denver, Colorado
80294-3589 during regular business hours.
25.
How Do I Get More Information?
You can call (212) 501-9000 or write to Brower Piven, A Professional
Corporation, 488 Madison Avenue, 8th Floor, New York, NY 10022 or visit the following
website: www.gcginc.com/cases/CrocsSecuritiesLitigation.
DO NOT TELEPHONE THE COURT REGARDING THIS NOTICE
SPECIAL NOTICE TO BANKS, BROKERS, AND OTHER NOMINEES
If you hold shares of any Crocs securities purchased or acquired between April 2,
2007 and April 14, 2008, inclusive, as nominee for a beneficial owner, then, within ten
(10) days after you receive this Notice, you must either: (l) send a copy of this Notice by
first class mail to all such Persons; or (2) provide a list of the names and addresses of
such Persons to the Claims Administrator:
29
Crocs Securities Litigation
Claims Administrator
c/o GCG
PO Box 9889
Dublin, OH 43017-5789
(888) 331-9141
If you choose to mail the Notice and Proof of Claim yourself, you may obtain from
the Claims Administrator (without cost to you) as many additional copies of these
documents as you will need to complete the mailing.
Regardless of whether you choose to complete the mailing yourself or elect to
have the mailing performed for you, you may obtain reimbursement for or advancement
of reasonable administrative costs actually incurred or expected to be incurred in
connection with forwarding the Notice and which would not have been incurred but for
the obligation to forward the Notice, upon submission of appropriate documentation to
the Claims Administrator.
DATED: ___________, 2012
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
30
Table A
4/15/2008
4/16/2008
4/17/2008
4/18/2008
4/21/2008
4/22/2008
4/23/2008
4/24/2008
4/25/2008
4/28/2008
4/29/2008
4/30/2008
5/1/2008
5/2/2008
5/5/2008
5/6/2008
5/7/2008
5/8/2008
5/9/2008
5/12/2008
5/13/2008
5/14/2008
5/15/2008
5/16/2008
5/19/2008
5/20/2008
5/21/2008
5/22/2008
5/23/2008
5/27/2008
5/28/2008
10.11
9.92
10.02
10.07
10.13
10.09
10.03
10.08
10.12
10.17
10.21
10.21
10.22
10.25
10.24
10.22
10.21
10.28
10.32
10.37
10.42
10.45
10.47
10.49
10.51
10.53
10.53
10.56
10.58
10.59
10.6
31
5/29/2008
5/30/2008
6/2/2008
6/3/2008
6/4/2008
6/5/2008
6/6/2008
6/9/2008
6/10/2008
6/11/2008
6/12/2008
6/13/2008
6/16/2008
6/17/2008
6/18/2008
6/19/2008
6/20/2008
6/23/2008
6/24/2008
6/25/2008
6/26/2008
6/27/2008
6/30/2008
7/1/2008
7/2/2008
7/3/2008
7/7/2008
7/8/2008
7/9/2008
7/10/2008
7/11/2008
10.6
10.59
10.57
10.55
10.54
10.52
10.51
10.47
10.43
10.4
10.37
10.35
10.33
10.31
10.29
10.27
10.24
10.21
10.18
10.15
10.12
10.08
10.04
10
9.95
9.9
9.85
9.82
9.79
9.76
9.73
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