Medoff v. CVS Caremark Corporation et al

Filing 127

ORDER CERTIFYING A CLASS, PRELIMINARILY APPROVING SETTLEMENT, AND PROVIDING FOR NOTICE re: 120 MOTION for Settlement Notice of Co-Lead Plaintiffs Assented to Motion for Preliminary Approval of Settlement. So Ordered by Chief Judge Joseph N. Laplante, District of NH on 11/9/2015. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
Richard Medoff
v.

Civil No. 09-cv-544-JNL

CVS Caremark Corp., et al.
ORDER CERTIFYING A CLASS, PRELIMINARILY
APPROVING SETTLEMENT, AND PROVIDING FOR NOTICE
WHEREAS, an action is pending before this Court entitled
Richard Medoff v. CVS Caremark Corporation, et al., No.
1:09-cv-00554-JNL-PAS (D.R.I.) (the “Litigation”);
WHEREAS, the parties having made application, pursuant to
Federal Rule of Civil Procedure 23(e), for an order preliminarily
approving the Settlement of this Litigation, in accordance with a
Stipulation of Settlement dated as of August 24, 20151 (the
“Stipulation”), which, together with the Exhibits annexed
thereto, sets forth the terms and conditions for a proposed
Settlement of the Litigation and for dismissal of the Litigation
with prejudice upon the terms and conditions set forth therein;
and the Court having read and considered the Stipulation and the
Exhibits annexed thereto; and
WHEREAS, unless otherwise defined, all terms used herein
have the same meanings as set forth in the Stipulation.

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Document no. 122.

NOW, THEREFORE, IT IS HEREBY ORDERED:
1.

The Court has reviewed the Stipulation and does hereby

preliminarily approve the Settlement set forth therein, subject
to further consideration at the Settlement Hearing described
below.
2.

A hearing (the “Settlement Hearing”) shall be held

before this Court on Tuesday, January 19, 2016, at 10:00 A.M., at
the United States District Court for the District of New
Hampshire, 55 Pleasant Street, Courtroom 2, Concord, New
Hampshire 03301-3941, to determine: (a) whether the proposed
Settlement of the Litigation on the terms and conditions provided
for in the Stipulation is fair, reasonable, and adequate to the
Class and should be approved by the Court; (b) whether the court
should enter a final judgment and order of dismissal with
prejudice; (c) whether the proposed plan of distribution of
settlement proceeds (“Plan of Allocation”) is fair, reasonable,
and adequate and should be approved; (d) the amount of fees and
expenses that should be awarded to Lead Counsel; and (e) the
amount of expenses to be awarded to Co-Lead Plaintiffs.
3.

The Court hereby certifies, for settlement purposes

only, pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules
of Civil Procedure, a Class defined as follows:

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All persons and entities who purchased, or otherwise
acquired, CVS Caremark common stock between October 30,
2008 and November 4, 2009, inclusive, and were damaged
thereby. Excluded from the Class are Defendants; the
other officers and directors of CVS Caremark; members
of the immediate families of any excluded person; the
legal representatives, heirs, successors, or assigns of
any excluded person or entity; and any entity
controlled by, or in which Defendants have or had a
controlling interest. Also excluded from the Class is
any Class Member that validly and timely requests
exclusion from the Class.
4.

Pursuant to Rule 23 of the Federal Rules of Civil

Procedure, and for the purposes of settlement only, Co-Lead
Plaintiffs are appointed as representatives of the Class, and
Lead Counsel Robbins Geller Rudman & Dowd LLP and Labaton
Sucharow LLP are appointed as class counsel for the Class.
5.

With respect to the Class, the Court finds, solely for

purposes of effectuating the Settlement, that the prerequisites
for a class action under Rules 23(a) and 23(b)(3) have been
satisfied as: (a) the Members of the Class are so numerous that
joinder of all Class Members in the class action is
impracticable; (b) there are questions of law and fact common to
the Class which predominate over any individual questions; (c)
the claims of Co-Lead Plaintiffs are typical of the claims of the
Class; (d) Co-Lead Plaintiffs and their counsel have fairly and
adequately represented and protected the interests of all Class
Members; and (e) a class action is superior to other available

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methods for the fair and efficient adjudication of the
controversy, considering: (i) the interests of Members of the
Class in individually controlling the prosecution of the separate
actions; (ii) the extent and nature of any litigation concerning
the controversy already commenced by Members of the Class; (iii)
the desirability or undesirability of continuing the Litigation
of these claims in this particular forum; and (iv) the
difficulties likely to be encountered in the management of the
Litigation.
6.

The Court has reviewed and approves, as to form and

content, the Notice of Proposed Settlement of Class Action (the
“Notice”), the Proof of Claim and Release form (the “Proof of
Claim”), and Summary Notice attached to the Stipulation as
Exhibits A-1, A-2, and A-3, respectively, and finds that the
mailing and distribution of the Notice and publishing of the
Summary Notice, substantially in the manner and form set forth in
¶¶7-8 of this Order, meet the requirements of Federal Rule of
Civil Procedure 23 and due process, and are the best notice
practicable under the circumstances and shall constitute due and
sufficient notice to all Persons entitled thereto.
7.

The firm of A.B. Data (“Claims Administrator”) is

hereby appointed to supervise and administer the notice procedure

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as well as the processing of claims as more fully set forth
below:
(a)

Defendants shall provide, or cause to be provided, to
Lead Counsel or the Claims Administrator, at no cost to
Co-Lead Plaintiffs, within five (5) business days after
the Court signs this Order, transfer records in
electronic searchable form, such as Excel, containing
the names and addresses of Persons who purchased or
otherwise acquired CVS Caremark common stock during the
Class Period;

(b)

Not later than November 24, 2015 (the “Notice Date”),
the Claims Administrator shall commence mailing the
Notice and Proof of Claim, substantially in the forms
annexed hereto, by First-Class Mail to all Class
Members who can be identified with reasonable effort
and to be posted on its website at
www.CVSsecuritiesSettlement.com;

(c)

Not later than fourteen (14) calendar days after the
Notice Date, the Claims Administrator shall cause the
Summary Notice to be published once in the national
edition of Investor’s Business Daily and once over a
national newswire service; and

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(d)

At least seven (7) calendar days prior to the
Settlement Hearing, Lead Counsel shall serve on
Defendants’ counsel and file with the Court proof, by
affidavit or declaration, of such mailing and
publishing.

8.

Nominees who purchased or acquired CVS Caremark common

stock for the beneficial ownership of Class Members during the
Class Period shall send the Notice and the Proof of Claim to all
such beneficial owners of CVS Caremark common stock within ten
(10) calendar days after receipt thereof, or send a list of the
names and addresses of such beneficial owners to the Claims
Administrator within ten (10) calendar days of receipt thereof,
in which event the Claims Administrator shall promptly mail the
Notice and Proof of Claim to such beneficial owners. Lead Counsel
shall, if requested, reimburse banks, brokerage houses or other
nominees solely for their reasonable out-of-pocket expenses
incurred in providing notice to beneficial owners who are Class
Members out of the Settlement Fund, which expenses would not have
been incurred except for the sending of such notice, subject to
further order of this Court with respect to any dispute
concerning such compensation.

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9.

All Members of the Class shall be bound by all

determinations and judgments in the Litigation concerning the
Settlement, whether favorable or unfavorable to the Class.
10.

Class Members who wish to participate in the Settlement

shall complete and submit Proofs of Claim in accordance with the
instructions contained therein. Unless the Court orders
otherwise, all Proofs of Claim must be postmarked or submitted
electronically no later than one hundred-twenty (120) days from
the Notice Date.

Any Class Member who does not timely submit a

Proof of Claim within the time provided for, shall be barred from
sharing in the distribution of the proceeds of the Settlement
Fund, unless otherwise ordered by the Court. Notwithstanding the
foregoing, Lead Counsel may, in their discretion, accept
late-submitted claims for processing by the Claims Administrator
so long as distribution of the Net Settlement Fund to Authorized
Claimants is not materially delayed thereby.
11.

Any Member of the Class may enter an appearance in the

Litigation, at their own expense, individually or through counsel
of their own choice. If they do not enter an appearance, they
will be represented by Lead Counsel.
12.

Any Person falling within the definition of the Class

may, upon request, be excluded or “opt out” from the Class. Any
such Person must submit to the Claims Administrator a signed
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request for exclusion (“Request for Exclusion”) such that it is
postmarked no later than January 6, 2016. A Request for Exclusion
must state: (i) the name, address, and telephone number of the
Person requesting exclusion; (ii) a list identifying the amount
and date of each purchase, acquisition, and sale of CVS Caremark
common stock and the price paid and/or received for any
transaction involving CVS Caremark common stock between October
30, 2008 and November 4, 2009, inclusive; and (iii) that the
Person wishes to be excluded from the Class. All Persons who
submit valid and timely Requests for Exclusion in the manner set
forth in this paragraph and the Notice shall have no rights under
the Settlement, shall not share in the distribution of the Net
Settlement Fund, and shall not be bound by the Settlement or any
final judgment.
13.

Any Member of the Class may appear and show cause why

the proposed Settlement of the Litigation should or should not be
approved as fair, reasonable, and adequate, why a judgment should
or should not be entered thereon, why the Plan of Allocation
should or should not be approved, why attorneys’ fees and
expenses should or should not be awarded to Lead Counsel, or why
the expenses of Co-Lead Plaintiffs should or should not be
awarded; provided, however, that no Class Member or any other
Person shall be heard or entitled to contest such matters, unless
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that Person has: (1) delivered by hand or sent by First-Class
Mail written objections and copies of any papers and briefs such
that they are received, not simply postmarked, on or before
January 6, 2016, by Robbins Geller Rudman & Dowd LLP, Robert M.
Rothman, 58 South Service Road, Suite 200, Melville, NY 11747;
Labaton Sucharow LLP, Jonathan Gardner, 140 Broadway, 34th Floor,
New York, NY 10005; and Williams & Connolly LLP, Steven M.
Farina, 725 Twelfth Street, N.W., Washington, D.C. 20005; and (2)
filed said objections, papers, and briefs with the Clerk of the
United States District Court for the District of Rhode Island,
Federal Building and Courthouse, One Exchange Terrace,
Providence, Rhode Island 02903, on or before January 6, 2016. Any
Member of the Class who does not make his, her, or its objection
in the manner provided herein and in the Notice shall be deemed
to have waived such objection and shall forever be foreclosed
from making any objection to the fairness or adequacy of the
proposed Settlement as set forth in the Stipulation, to the Plan
of Allocation, or to the award of attorneys’ fees and expenses to
Lead Counsel or expenses of Co-Lead Plaintiffs, unless otherwise
ordered by the Court.
14.

All funds held by the Escrow Agent shall be deemed and

considered to be in custodia legis of the Court, and shall remain
subject to the jurisdiction of the Court, until such time as such
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funds shall be distributed pursuant to the Stipulation and/or
further order(s) of the Court.
15.

All opening briefs and supporting documents in support

of the Settlement, the Plan of Allocation, and any application by
Lead Counsel for attorneys’ fees and expenses or by Co-Lead
Plaintiffs for their expenses shall be filed and served by
December 15, 2015. Replies to any objections shall be filed and
served by January 12, 2016.
16.

Neither the Defendants and their Related Parties nor

Defendants’ counsel shall have any responsibility for the Plan of
Allocation or any application for attorneys’ fees or expenses
submitted by Lead Counsel or Co-Lead Plaintiffs, and such matters
will be considered separately from the fairness, reasonableness,
and adequacy of the Settlement.
17.

At or after the Settlement Hearing, the Court shall

determine whether the Plan of Allocation proposed by Lead
Counsel, and any application for attorneys’ fees or payment of
expenses shall be approved.
18.

All reasonable expenses incurred in identifying and

notifying Class Members, as well as administering the Settlement
Fund, shall be paid as set forth in the Stipulation. In the event
the Settlement is not approved by the Court, or otherwise fails
to become effective, neither Co-Lead Plaintiffs nor any of their
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counsel shall have any obligation to repay any amounts incurred
and properly disbursed pursuant to ¶¶2.6 or 2.7 of the
Stipulation.
19.

Neither the Stipulation, nor any of its terms or

provisions, nor any of the negotiations or proceedings connected
with it, shall be construed as an admission or concession by the
Defendants of the truth of any of the allegations in the
Litigation, or of any liability, fault, or wrongdoing of any
kind.
20.

The Court may continue or adjourn the Settlement

Hearing without further notice to the Members of the Class, and
retains jurisdiction to consider all further applications arising
out of or connected with the proposed Settlement. The Court may
approve the Settlement, with such modifications as may be agreed
to by the Settling Parties, if appropriate, without further
notice to the Class.
21.

If the Stipulation and the Settlement set forth therein

is not approved or consummated for any reason whatsoever, the
Stipulation and Settlement and all proceedings had in connection
therewith shall be without prejudice to the rights of the
Settling Parties status quo ante.
22.

Pending final determination of whether the proposed

Settlement should be approved, neither Co-Lead Plaintiffs nor any
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Class Member, directly or indirectly, representatively, or in any
other capacity, shall commence or prosecute against any of the
Defendants, any action or proceeding in any court or tribunal
asserting any of the Released Claims.
SO ORDERED.

____________________________
Joseph N. Laplante
United States District Judge
Dated: November 9, 2015
cc:

Barry J. Kusinitz, Esq.
David A. Rosenfeld, Esq.
Deborah R. Gross, Esq.
Robert M. Rothman, Esq.
William R. Grimm, Esq.
David K. Baumgarten, Esq.
Katherine M. Turner, Esq.
Leslie C. Mahaffey, Esq.
Margaret E. Keeley, Esq.
Matthew H. Blumenstein, Esq.
Mitchell R. Edwards, Esq.
Steven M. Farina, Esq.
Bailie L. Heikkinen, Esq.
Christine M. Fox, Esq.
Christopher M. Barrett, Esq.
Erin W. Boardman, Esq.
Guillaume Buell, Esq.
Jonah H. Goldstein, Esq.
Jonathan Gardner, Esq.
Robert J. Robbins, Esq.
Serena P. Hallowell, Esq.

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