St. Paul Teachers' Retirement Fund Association v. HeartWare International, Inc. et al

Filing 100

ORDER APPROVING DISTRIBUTION PLAN: NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. This Order incorporates by reference the definitions in the Stipulation and Agreement of Settlement dated November 13, 2018 (ECF No. 69-1) (the Stipulation), and the S immons Declaration, and all terms used in this Order shall have the same meanings as defined in the Stipulation or in the Simmons Declaration. 2. This Court has jurisdiction over the subject matter of the Action and over all parties to the Action, including all Class Members. 3. Lead Plaintiff's plan for distribution of the Net Settlement Fund to Authorized Claimants is APPROVED. (As further set forth in this ORDER.) (Signed by Judge Ronnie Abrams on 2/18/2021) (nb)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

IN RE HEARTWARE INTERNATIONAL, INC. No. 1:16-cv-00520-RA
SECURITIES LITIGATION

[PROPOSED] ORDER APPROVING DISTRIBUTION PLAN
Lead Plaintiff moved this Court for an order approving a distribution plan for the Net
Settlement Fund in the above-captioned class action (the “Action”). Having reviewed and considered
all the materials and arguments submitted in support of the motion, including the Memorandum in
Support of Lead Plaintiff’s Renewed Motion for Approval of Distribution Plan and the Declaration
of Richard Simmons in Support of Lead Plaintiff’s Renewed Motion for Approval of Distribution
Plan (the “Simmons Declaration”),
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1.

This Order incorporates by reference the definitions in the Stipulation and Agreement

of Settlement dated November 13, 2018 (ECF No. 69-1) (the “Stipulation”), and the Simmons
Declaration, and all terms used in this Order shall have the same meanings as defined in the
Stipulation or in the Simmons Declaration.
2.

This Court has jurisdiction over the subject matter of the Action and over all parties to

the Action, including all Class Members.
3.

Lead Plaintiff’s plan for distribution of the Net Settlement Fund to Authorized

Claimants is APPROVED. Accordingly:
(a)

The administrative recommendations of the Court-approved Claims

Administrator, Analytics Consulting, LLC (“Analytics”), to accept the Timely Eligible

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Claims stated in Exhibit C to the Simmons Declaration and the Late But Otherwise Eligible
Claims stated in Exhibit D to the Simmons Declaration, are adopted;
(b)

The Claims Administrator’s administrative recommendations to reject

ineligible Claims, as stated in Exhibit E to the Simmons Declaration, including the Disputed
Claims discussed in paragraphs 31 to 41 of the Simmons Declaration, as stated in Exhibit B,
are adopted;
(c)

Analytics is directed to conduct an initial distribution of the Net Settlement

Fund, after deducting all payments previously allowed and the payments approved by this
Order, and after deducting the payment of any taxes or estimated taxes, the costs of preparing
appropriate tax returns, and any escrow fees, while maintaining a 5% reserve from the Net
Settlement Fund to address any tax liability and claims administration-related contingencies
that may arise, as stated in paragraph 50(a) of the Simmons Declaration (the “Initial
Distribution”). Specifically, as stated in paragraph 50(a) of the Simmons Declaration: (1)
Analytics will calculate award amounts for all Authorized Claimants as if the entire Net
Settlement Fund were to be distributed now. In accordance with the Court-approved Plan of
Allocation, Analytics will calculate each Authorized Claimant’s pro rata share of the Net
Settlement Fund as stated in subparagraph 50(a)(1); (2) Analytics will, in accordance with
the terms of the Court-approved Plan of Allocation, calculate the total amount each
Authorized Claimant would recover in accordance with the calculations stated in
subparagraph 50(a)(1) and then it will eliminate from the distribution any Authorized
Claimant whose total pro rata share of the Net Settlement Fund is less than $10.00 as stated
in subparagraph 50(a)(2). These Claimants will not receive any payment from the Net
Settlement Fund and will be so notified by Analytics; (3) After eliminating Claimants who

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would have received less than $10.00, Analytics will calculate the pro rata share of the Net
Settlement Fund for Authorized Claimants who would have received $10.00 or more (the
“Distribution Amount”) as stated under subparagraph 50(c)(3); (4) Authorized Claimants
whose Distribution Amount calculates to less than $100.00 as stated under subparagraph
50(c)(4) will be paid their full Distribution Amount in the Initial Distribution (“Claims Paid
in Full”). These Authorized Claimants will get no additional funds in subsequent
distributions; (5) 95% of the remaining balance of the Net Settlement Fund will be
distributed pro rata to Authorized Claimants whose Distribution Amount calculates to
$100.00 or more under subparagraph 50(c)(3). The remaining 5% of the Net Settlement Fund
will be held in reserve (the “Reserve”) to address any tax liability and claims administrationrelated contingencies that may arise. To the extent the Reserve is not depleted, the remainder
will be distributed in the “Second Distribution” described in subparagraph (f) below.
(d)

In order to encourage Authorized Claimants to cash their checks promptly, all

distribution checks will bear the following notation: “CASH PROMPTLY. VOID AND
SUBJECT TO REDISTRIBUTION IF NOT CASHED BY [DATE 90 DAYS AFTER
ISSUE DATE].” Lead Counsel and Analytics are authorized to take appropriate action to
locate and contact Authorized Claimants who have not cashed their check within said time as
detailed in paragraph 50(b) footnote 8 of the Simmons Declaration;
(e)

Authorized Claimants who do not cash their Initial Distribution checks within

the time allotted or on the conditions stated in paragraph 50(b) footnote 8 of the Simmons
Declaration will irrevocably forfeit all recovery from the Settlement, and the funds allocated
to all such stale-dated checks will be available to be distributed to other Authorized
Claimants in the second distribution. Similarly, Authorized Claimants who do not cash their

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check from a second or subsequent distribution, should such distributions occur, within the
time allotted or on the conditions stated in paragraph 50(b) footnote 8 of the Simmons
Declaration will irrevocably forfeit any further recovery from the Net Settlement Fund;
(f)

After Analytics has made reasonable and diligent efforts to have Authorized

Claimants cash their Initial Distribution checks, as provided in paragraph 50(b) footnote 8 of
the Simmons Declaration, but not earlier than seven (7) months after the Initial Distribution,
Analytics will conduct a second distribution (the “Second Distribution”). After deducting
Analytics’ fees and expenses incurred in administering the Settlement for which it has not
yet been paid, including Analytics’ estimated costs of the Second Distribution, any taxes or
estimated taxes, the costs of preparing tax returns, and any escrow fees, Analytics will
distribute any amount remaining in the Net Settlement Fund, including from the Reserve and
the funds for all void stale-dated checks, to all Authorized Claimants in the Initial
Distribution who cashed their Initial Distribution check and are entitled to receive at least
$10.00 from the Second Distribution based on their pro rata share of the remaining funds.
Additional distributions, after deduction of costs and expenses as described above and
subject to the same conditions, may occur thereafter in six-month intervals until Lead
Counsel, in consultation with Analytics, determines that further distribution is not costeffective;
(g)

When Lead Counsel, in consultation with Analytics, determines that further

distribution of the funds remaining in the Net Settlement Fund is not cost-effective, if
sufficient funds remain to warrant the processing of Claims received after March 9, 2020,
those Claims will be processed. Any such Claims that are otherwise valid, as well as any
earlier-received Claims for which an adjustment was received after March 9, 2020, and

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resulted in an increased Recognized Claim amount, will be paid in accordance with
subparagraph (h) below. If any funds remain in the Net Settlement Fund after payment of
these late or late-adjusted Claims, the remaining balance of the Net Settlement Fund (after
payment of any unpaid fees or expenses incurred in administering the Net Settlement Fund,
taxes or estimated taxes, the costs of preparing tax returns, and any escrow fees) will be
contributed to non-sectarian, not-for-profit 501(c)(3) organization(s), to be recommended by
Lead Counsel and approved by the Court;
(h)

No new Claims submitted after March 9, 2020, may be accepted, and no

further adjustments to Claims received on or before March 9, 2020, that would result in an
increased Recognized Claim amount, may be made for any reason after March 9, 2020,
subject to the following exception. If Claims are received or modified after March 9, 2020,
that would have been eligible for payment or additional payment under the Plan of
Allocation if timely received, then, at the time that Lead Counsel, in consultation with
Analytics, determines a distribution is not cost-effective as provided in subparagraph (g)
above, and after payment of any unpaid fees, taxes, or expenses, these Claimants, at the
discretion of Lead Counsel, may be paid their distribution amounts or additional distribution
amounts on a pro rata basis that would bring them into parity (to the extent possible) with
other Authorized Claimants who have cashed all their prior distribution checks;
(i)

All persons involved in the review, verification, calculation, tabulation, or any

other aspect of the processing of the Claims submitted, or who are otherwise involved in the
administration or taxation of the Settlement Fund or the Net Settlement Fund, are hereby
released and discharged from any and all claims arising out of that involvement. All Class
Members and other Claimants, whether or not they receive payment from the Net Settlement

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Fund, are hereby barred from making any further claims against the Net Settlement Fund,
Lead Plaintiff, Lead Counsel, the Claims Administrator, the Escrow Agent or any other agent
retained by Lead Plaintiff or Lead Counsel in connection with the administration or taxation
of the Settlement Fund or the Net Settlement Fund, or any other person released under the
Settlement beyond the amounts allocated to Authorized Claimants;
(j)

All of Analytics’ fees and expenses incurred in the administration of the

Settlement and estimated to be incurred in connection with the Initial Distribution of the Net
Settlement Fund as stated in the invoices attached as Exhibit F to the Simmons Declaration
are approved, and Lead Counsel is directed to pay the outstanding balance of $112,269.32
out of the Settlement Fund to Analytics; and
(k)

Unless otherwise ordered by the Court, Analytics may destroy the paper

copies of the Claims and all supporting documentation one year after the Second
Distribution, and Analytics may destroy electronic copies of the same one year after all funds
have been distributed.
4.

This Court retains jurisdiction to consider any further applications concerning the

administration of the Settlement, and any other and further relief that this Court deems appropriate.
SO ORDERED this

18

day of

February

2020.

_______________________________________
The Honorable Ronnie Abrams
United States District Judge

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