Case 8:19-cv-02326-DOC-ADS Document 122 Filed 11/29/22 Page 1 of 15 Page ID #:2026 1 SAXENA WHITE P.A. David R. Kaplan (SBN 230144) 2 dkaplan@saxenawhite.com 3 505 Lomas Santa Fe Drive, Suite 180 Solana Beach, CA 92075 4 Telephone: (858) 997-0860 5 Attorneys for Lead Plaintiffs the Atlanta 6 Funds and Co-Lead Counsel for the Proposed Settlement Class 7 8 BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 9 Jonathan D. Uslaner (SBN 256898) 10 jonathanu@blbglaw.com 2121 Avenue of the Stars, Suite 2575 11 Los Angeles, CA 90067 Telephone: (310) 819-3470 12 13 Attorneys for Lead Plaintiff Baton Rouge and Co-Lead Counsel for the 14 Proposed Settlement Class 15 [Additional counsel appear on signature 16 page] 17 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 18 SOUTHERN DIVISION 19 IN RE MERIT MEDICAL SYSTEMS, Case No. 8:19-cv-02326-DOC-ADS INC. SECURITIES LITIGATION 20 LEAD PLAINTIFFS’ 21 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 22 UNOPPOSED MOTION FOR 23 APPROVAL OF DISTRIBUTION PLAN 24 25 Judge: Hon. David O. Carter Courtroom: 10A 26 Date: January 9, 2023 27 Time: 8:30 a.m. 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPROVAL OF DISTRIBUTION PLAN CASE NO. 8:19-cv-2236-DOC-ADS Case 8:19-cv-02326-DOC-ADS Document 122 Filed 11/29/22 Page 2 of 15 Page ID #:2027 1 TABLE OF CONTENTS 2 Page(s) 3 I. BACKGROUND ............................................................................................... 2 4 II. CLAIMS ADMINISTRATION ........................................................................ 3 5 A. No Disputed Claims ................................................................................4 6 B. Late Claims and Final Cut-Off Date .......................................................4 7 III. FEES AND EXPENSES OF CLAIMS ADMINISTRATOR ...........................5 8 IV. DISTRIBUTION PLAN FOR THE NET SETTLEMENT FUND ..................6 9 A. Initial Distribution of the Net Settlement Fund ......................................6 10 B. Additional Distribution(s) of the Net Settlement Fund...........................7 11 V. RELEASE OF CLAIMS ................................................................................... 9 12 VII. CONCLUSION................................................................................................11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPROVAL OF DISTRIBUTION PLAN CASE NO. 8:19-cv-2236-DOC-ADS Case 8:19-cv-02326-DOC-ADS Document 122 Filed 11/29/22 Page 3 of 15 Page ID #:2028 1 TABLE OF AUTHORITIES 2 CASES PAGE(S) 3 Hefler v. Wells Fargo & Co., 4 Case No. 16-cv-05479, 2018 WL 6619983 (N.D. Cal. Dec. 18, 5 2018), aff’d sub nom. Hefler v. Pekoc, 802 F. App’x 285 (9th Cir. 2020) ..................................................................................................................... 9 6 In re Capstone Turbine Corp. Sec. Litig., 7 CV 15-8914, 2020 WL 7889062 (C.D. Cal. Aug. 26, 2020) ......................... 9, 10 8 In re Illumina, Inc. Sec. Litig., 9 Case No. 3:16-cv-3044, 2021 WL 1017295 (S.D. Cal. Mar. 17, 10 2021) ..................................................................................................................... 9 11 In re Toyota Motor Corp. Sec. Litig., 12 2014 CV 10-992, WL 12586787 (C.D. Cal. Aug. 4, 2014) ............................... 10 13 In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prods. Liab. Litig., 14 MDL No. 2672, 2018 WL 6198311, at *5 (N.D. Cal. Nov. 28, 15 2018) ..................................................................................................................... 9 16 17 18 19 20 21 22 23 24 25 26 27 28 ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPROVAL OF DISTRIBUTION PLAN CASE NO. 8:19-cv-2236-DOC-ADS Case 8:19-cv-02326-DOC-ADS Document 122 Filed 11/29/22 Page 4 of 15 Page ID #:2029 1 Court-appointed Lead Plaintiffs, City of Atlanta Police Pension Fund and City 2 of Atlanta Firefighters’ Pension Fund (collectively, the “Atlanta Funds”) and the 3 Employees’ Retirement System of the City of Baton Rouge and Parish of East Baton 4 Rouge (“Baton Rouge” and, together with the Atlanta Funds, the “Lead Plaintiffs”), 5 respectfully move for entry of the proposed Order Approving Distribution Plan 6 (“Class Distribution Order”) for the proceeds of the Settlement in the above- 7 captioned securities class action (“Action”). The Distribution Plan is included in the 8 accompanying Declaration of Eric J. Miller (“Miller Declaration” or “Miller Decl.”), 9 submitted on behalf of the Court-approved Claims Administrator, A.B. Data, Ltd.’s 10 Class Action Administration Company (“A.B. Data”).1 11 The Class Distribution Order will, upon being entered by the Court, permit 12 A.B. Data to make an Initial Distribution of the Settlement proceeds to eligible 13 Claimants. Among other things, the Class Distribution Order will: (i) approve A.B. 14 Data’s administrative determinations accepting and rejecting Claims submitted in 15 connection with the Settlement; (ii) direct the Initial Distribution of the Net 16 Settlement Fund to Claimants whose Claims are accepted by A.B. Data as valid and 17 approved by the Court (“Authorized Claimants”), while maintaining a Reserve for 18 any tax liability and claims administration-related contingencies that may arise; and 19 (iii) approve A.B. Data’s fees and expenses incurred and estimated to be incurred in 20 the administration of the Settlement and the Initial Distribution. 21 There are no disputed Claims by any Settlement Class Member requiring 22 Court review. Further, under the Stipulation, Defendants have no role in or 23 responsibility for the administration of the Settlement Fund or processing of Claims, 24 including determinations as to the validity of Claims or the distribution of the Net 25 1 26 Unless otherwise indicated in this memorandum, all terms with initial capitalization shall have the meanings ascribed to them in the Miller Declaration or the Stipulation 27 and Agreement of Settlement dated December 21, 2021 (ECF No. 105-1) 28 (“Stipulation”). The Settlement is contained in the Stipulation. 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPROVAL OF DISTRIBUTION PLAN CASE NO. 8:19-cv-2236-DOC-ADS Case 8:19-cv-02326-DOC-ADS Document 122 Filed 11/29/22 Page 5 of 15 Page ID #:2030 1 Settlement Fund. See Stipulation ¶¶ 18, 22, 24; see also Notice of (I) Pendency of 2 Class Action and Proposed Settlement; (II) Settlement Hearing; and (III) Motion for 3 Attorneys’ Fees and Litigation Expenses (“Notice”) ¶ 44 and Notice App. A ¶ 1. 4 Nevertheless, we provided Defendants’ Counsel a copy of these motion papers and 5 they informed us that Defendants do not oppose this motion. As such, the motion is 6 ripe for determination and Lead Counsel respectfully submit that a hearing on this 7 motion is not required. 8 I. BACKGROUND 9 As the Court is aware, this Action was settled for $18.25 million in cash. On 10 April 15, 2022, the Court entered the Order Approving Plan of Allocation of Net 11 Settlement Fund (ECF No. 117) and entered the Judgment Approving Class Action 12 Settlement (ECF No. 119) on April 18, 2022. The Effective Date of the Settlement 13 has now occurred. See Stipulation ¶ 32. Accordingly, the Net Settlement Fund may 14 be distributed to Authorized Claimants. In accordance with paragraph 27 of the 15 Stipulation, Lead Plaintiffs respectfully request that the Court enter the Class 16 Distribution Order approving the Distribution Plan. 17 In accordance with the Court’s Order Preliminarily Approving Settlement and 18 Providing for Notice of the Settlement (ECF No. 106) (“Preliminary Approval 19 Order”), A.B. Data mailed the Notice and the Proof of Claim and Release Form 20 (“Claim Form” and, collectively with the Notice, the “Notice Packet”) to potential 21 Settlement Class Members, brokers, and other nominees. Miller Decl. ¶ 2. A.B. Data 22 has disseminated 26,636 Notice Packets to potential Settlement Class Members, 23 brokers, and nominees. Id. ¶ 4. The Notice informed Settlement Class Members that 24 if they wished to be eligible to participate in the distribution of the Net Settlement 25 Fund, they were required to submit a properly executed Claim Form postmarked no 26 later than May 25, 2022. Id. ¶ 7. 27 28 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPROVAL OF DISTRIBUTION PLAN CASE NO. 8:19-cv-2236-DOC-ADS Case 8:19-cv-02326-DOC-ADS Document 122 Filed 11/29/22 Page 6 of 15 Page ID #:2031 1 II. CLAIMS ADMINISTRATION 2 As set forth in the Miller Declaration, through November 28, 2022, A.B. Data 3 received and processed 12,440 Claims. Miller Decl. ¶ 7. All Claims received through 4 November 28, 2022, have been fully processed in accordance with the Stipulation 5 and the Court-approved Plan of Allocation included in the Notice (see id.), and A.B. 6 Data has worked with Claimants to help them perfect their Claims. See id. ¶¶ 19-28. 7 Many of the Claims were initially deficient or ineligible for one or more reasons, 8 including being incomplete, not signed, not properly documented, or otherwise 9 deficient, which required substantial follow-up work by A.B. Data. Id. ¶¶ 19, 22. 10 If A.B. Data determined a Claim to be defective or ineligible, A.B. Data sent 11 a letter (if the Claimant or filer filed a paper Claim) or an email (if the Claimant or 12 filer filed an electronic Claim) to the Claimant or filer, as applicable, describing the 13 defect(s) or condition(s) of ineligibility in the Claim and the steps necessary to cure 14 any curable defect(s) in the Claim (“Deficiency Notices”). Id. ¶¶ 20, 22. The 15 Deficiency Notices advised the Claimant or filer that the appropriate information or 16 documentary evidence to complete the Claim had to be sent within twenty (20) days 17 from the date of the Deficiency Notice or A.B. Data would recommend the Claim 18 for rejection to the extent the deficiency or condition of ineligibility was not cured. 19 Id. ¶¶ 20, 23. Examples of the Deficiency Notices are attached as Exhibits A, B, and 20 C to the Miller Declaration. 21 Of the 12,440 Claims that are the subject of this motion, A.B. Data has 22 determined that 6,992 Claims are acceptable in whole or in part, and that 5,748 23 Claims should be rejected because they are ineligible for payment from the Net 24 Settlement Fund. Miller Decl. ¶¶ 34-37. Lead Plaintiffs respectfully request that the 25 Court approve A.B. Data’s administrative determinations accepting and rejecting 26 Claims as set forth in the Miller Declaration. 27 28 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPROVAL OF DISTRIBUTION PLAN CASE NO. 8:19-cv-2236-DOC-ADS Case 8:19-cv-02326-DOC-ADS Document 122 Filed 11/29/22 Page 7 of 15 Page ID #:2032 1 A. No Disputed Claims 2 A.B. Data carefully reviewed Claimants’ and filers’ responses to the 3 Deficiency Notices and worked with them to resolve deficiencies where possible. 4 Id. ¶¶ 21, 26. Consistent with paragraph 25(e) of the Stipulation, the Deficiency 5 Notices specifically advised the Claimant or filer of the right, within twenty (20) 6 days after the mailing or emailing of the Deficiency Notice, to contest the rejection 7 of the Claim and request Court review of A.B. Data’s administrative determination 8 of the Claim. Id. ¶¶ 20, 23, and Exhibits A and B. 9 With respect to the fully processed Claims, A.B. Data received no requests for 10 Court review of its administrative determinations. Id. ¶ 28. Accordingly, there are 11 no outstanding requests for Court review by any Claimants. Id. 12 B. Late Claims and Final Cut-Off Date 13 The 12,440 Claims received through November 28, 2022, include 66 Claims 14 that were postmarked or received after May 25, 2022, the Court-approved Claim 15 submission deadline. Id. ¶¶ 29, 35. Those late Claims have been fully processed, and 16 35 of them are, but for their late submission, otherwise eligible to participate in the 17 Settlement. Id. Although these 35 Claims were late, they were received while the 18 processing of timely Claims was ongoing. Id. Due to the amount of time needed to 19 process the timely Claims received, the processing of these late Claims did not delay 20 the completion of the claims administration process or the distribution of the Net 21 Settlement Fund. Id. ¶ 29. The Court has discretion to accept Claims received after 22 the Claim submission deadline. See Preliminary Approval Order ¶ 11; Notice ¶ 46. 23 Lead Plaintiffs respectfully submit that, when the equities are balanced, it would be 24 unfair to prevent an otherwise eligible Claim from participating in the distribution 25 of the Net Settlement Fund solely because it was received after the Court-approved 26 Claim submission deadline if it were submitted while timely Claims were still being 27 processed. 28 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPROVAL OF DISTRIBUTION PLAN CASE NO. 8:19-cv-2236-DOC-ADS Case 8:19-cv-02326-DOC-ADS Document 122 Filed 11/29/22 Page 8 of 15 Page ID #:2033 1 To facilitate the efficient distribution of the Net Settlement Fund, however, 2 there must be a final cut-off date after which no other Claims may be accepted. 3 Accordingly, Lead Plaintiffs respectfully request that the Court order that any new 4 Claims and any adjustments to previously filed Claims that would result in an 5 increased Recognized Claim amount received after November 28, 2022, be barred, 6 subject to the provisions of paragraph 39(f) of the Miller Declaration. Paragraph 7 39(f) of the Miller Declaration applies to any Claims received or modified after 8 November 28, 2022, that would have been eligible for payment or additional 9 payment pursuant to the Court-approved Plan of Allocation if timely received. At 10 the time when Lead Counsel, in consultation with A.B. Data, determine that an 11 additional distribution is not cost-effective as provided in paragraph 39(e) of the 12 Miller Declaration, the post-November 28, 2022 Claimants, after payment of fees 13 and expenses as provided in paragraph 39(f) of the Miller Declaration and at the 14 discretion of Lead Counsel and to the extent possible, may be paid their distribution 15 amounts or additional distribution amounts on a pro rata basis that would bring them 16 into parity with other Authorized Claimants who have cashed all their prior 17 distribution checks. 18 III. FEES AND EXPENSES OF CLAIMS ADMINISTRATOR 19 The Court-approved Claims Administrator for the Settlement, A.B. Data, was 20 responsible for, among other things, disseminating notice of the Settlement to the 21 Settlement Class, creating and maintaining a website and toll-free telephone 22 helpline, processing Claims, and allocating and distributing the Net Settlement Fund 23 to Authorized Claimants. Miller Decl. ¶ 2. A.B. Data’s fees and expenses for its 24 work performed through October 31, 2022, are $159,141.95, and its estimated fees 25 and expenses for work to be performed in connection with the Initial Distribution 26 are $17,905.88, which together total $177,047.83. Id. ¶ 38. Should the estimate of 27 fees and expenses to conduct the Initial Distribution of the Net Settlement Fund 28 exceed the actual cost, the excess will be returned to the Net Settlement Fund and 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPROVAL OF DISTRIBUTION PLAN CASE NO. 8:19-cv-2236-DOC-ADS Case 8:19-cv-02326-DOC-ADS Document 122 Filed 11/29/22 Page 9 of 15 Page ID #:2034 1 will be available for subsequent distribution to Authorized Claimants. Id. To date, 2 A.B. Data has received payment in the amount of $154,269.42 for its fees and 3 expenses. Id. Accordingly, there is an outstanding balance of $22,778.41 payable to 4 A.B. Data, which amount includes the estimated fees and expenses to be incurred by 5 A.B. Data in connection with the Initial Distribution. Id. Lead Counsel reviewed 6 A.B. Data’s invoices and respectfully request on behalf of Lead Plaintiffs that the 7 Court approve all of A.B. Data’s fees and expenses. 8 IV. DISTRIBUTION PLAN FOR THE NET SETTLEMENT FUND 9 A. Initial Distribution of the Net Settlement Fund 10 Under the proposed Distribution Plan, A.B. Data will distribute 95% of the 11 Net Settlement Fund after deducting (i) all payments previously allowed, (ii) 12 payments approved by the Court on this motion, and (iii) any estimated taxes, the 13 costs of preparing appropriate tax returns, and any escrow fees (i.e., the Initial 14 Distribution). See Miller Decl. ¶ 39(a). In the Initial Distribution, A.B. Data will 15 calculate award amounts for all Authorized Claimants as if the entire Net Settlement 16 Fund were to be distributed now. Id. ¶ 39(a)(1). A.B. Data will first determine each 17 Authorized Claimant’s pro rata share of the total Net Settlement Fund based on the 18 Claimant’s Recognized Claim in comparison to the total Recognized Claims of all 19 Authorized Claimants. Id. A.B. Data will eliminate from the Initial Distribution any 20 Authorized Claimant whose pro rata share calculates to less than $10.00, as these 21 Claimants will not receive any payment from the Net Settlement Fund and will be 22 so notified by A.B. Data. Id. ¶ 39(a)(2). A.B. Data will then recalculate the pro rata 23 share of the Net Settlement Fund for Authorized Claimants who would have received 24 $10.00 or more based on the amount of the Authorized Claimant’s Recognized 25 Claim in comparison to the total Recognized Claims of all Authorized Claimants 26 who would have received $10.00 or more. Id. ¶ 39(a)(3). This pro rata share is the 27 Authorized Claimant’s Distribution Amount. Id. Authorized Claimants whose 28 Distribution Amount calculates to less than $200.00 will be paid their full 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPROVAL OF DISTRIBUTION PLAN CASE NO. 8:19-cv-2236-DOC-ADS Case 8:19-cv-02326-DOC-ADS Document 122 Filed 11/29/22 Page 10 of 15 Page ID #:2035 1 Distribution Amount in the Initial Distribution (“Claims Paid in Full”). Id. 2 ¶ 39(a)(4). These Authorized Claimants will receive no additional funds in 3 subsequent distributions. Id. After deducting the payments to the Claims Paid in Full, 4 95% of the remaining balance of the Net Settlement Fund will be distributed pro 5 rata to Authorized Claimants whose Distribution Amount calculates to $200.00 or 6 more. Id. ¶ 39(a)(5). The remaining 5% of the Net Settlement Fund will be held in 7 reserve (the “Reserve”) to address any tax liability and claims administration-related 8 contingencies that may arise. Id. To the extent the Reserve is not depleted, the 9 remainder will be distributed in the Second Distribution. Id. 10 To encourage Authorized Claimants to cash their checks promptly, Lead 11 Plaintiffs propose that all distribution checks bear the notation, “CASH 12 PROMPTLY. VOID AND SUBJECT TO REDISTRIBUTION IF NOT CASHED 13 BY [DATE 90 DAYS AFTER ISSUE DATE].” Id. ¶ 39(b). Authorized Claimants 14 who do not cash their checks within the time allotted or on the conditions set forth 15 in paragraph 39(b) of the Miller Declaration will irrevocably forfeit all recovery 16 from the Settlement, and the funds allocated to these stale-dated checks will be 17 available to be redistributed to other Authorized Claimants in a subsequent 18 distribution, as described below. Id. ¶ 39(c). 19 B. Additional Distribution(s) of the Net Settlement Fund 20 After A.B. Data has made reasonable and diligent efforts to have Authorized 21 Claimants cash their Initial Distribution checks, but not earlier than seven (7) months 22 after the Initial Distribution, A.B. Data will, after consulting with Lead Counsel, 23 conduct the Second Distribution of the Net Settlement Fund. Id. ¶ 39(d). In the 24 Second Distribution, any amount remaining in the Net Settlement Fund, after 25 deducting any unpaid fees and expenses incurred, will be distributed to all 26 Authorized Claimants (other than Claims Paid in Full) who cashed their Initial 27 Distribution checks and would receive at least $10.00 from the Second Distribution 28 based on their pro rata share of the remaining funds. Id. If any funds remain in the 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPROVAL OF DISTRIBUTION PLAN CASE NO. 8:19-cv-2236-DOC-ADS Case 8:19-cv-02326-DOC-ADS Document 122 Filed 11/29/22 Page 11 of 15 Page ID #:2036 1 Net Settlement Fund after the Second Distribution, and if cost-effective, subsequent 2 distributions will take place at six-month intervals. Id. When Lead Counsel, in 3 consultation with A.B. Data, determine that a further distribution is not cost- 4 effective, if sufficient funds remain to warrant the processing of Claims received 5 after November 28, 2022, A.B. Data will process those Claims. Id. ¶ 39(e). Any of 6 these Claims that are otherwise valid, as well as any earlier received Claims for 7 which an upward adjustment was received after November 28, 2022, may be paid in 8 accordance with paragraph 39(f) of the Miller Declaration. Id. If any funds remain 9 in the Net Settlement Fund after payment of these Claims and any unpaid fees or 10 expenses, Lead Counsel propose that such remaining funds (if there are any) be 11 contributed to the Investor Protection Trust (“IPT”). Lead Counsel propose that IPT 12 be designated as the “non-sectarian, not-for-profit 501(c)(3) organization to be 13 recommended by Lead Counsel” referenced in the Court-approved Plan of 14 Allocation. See Notice App. A ¶ 20. 15 IPT is a non-sectarian, nonprofit organization exempt from taxation under 16 Section 501(c)(3) of the Internal Revenue Code. See About the Investor Protection 17 Trust, Investor Protection Trust, https://iptrust.wpengine.com/about/ (last visited 18 Nov. 11, 2022), and Investor Protection Trust, Charity Navigator, 19 www.charitynavigator.org/ein/396570280 (last visited Nov. 11, 2022). Founded in 20 1993, IPT’s primary mission is “to provide the independent, objective investor 21 education that Americans need to make informed investment decisions.” About the 22 Investor Protection Trust, Investor Protection Trust, 23 https://iptrust.wpengine.com/about/ (last visited Nov. 11, 2022). IPT’s recently 24 funded projects include radio-based and video ad-based investor protection 25 awareness campaigns, the creation and distribution of a digital investor education 26 awareness campaign, and a program to educate professional groups, military 27 organizations, law enforcement, and religious groups on resources for investor 28 protection. See Grants, Investor Protection Trust, 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPROVAL OF DISTRIBUTION PLAN CASE NO. 8:19-cv-2236-DOC-ADS Case 8:19-cv-02326-DOC-ADS Document 122 Filed 11/29/22 Page 12 of 15 Page ID #:2037 1 https://investorprotection.org/grants/ (last visited Nov. 11, 2022). Federal courts 2 have approved IPT as a cy pres recipient of residual balances of net settlement funds 3 in other settlements. See, e.g., In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., 4 & Prod. Liab. Litig., No. MDL 2672, 2018 WL 6198311, at *5 (N.D. Cal. Nov. 28, 5 2018) (“The proposed cy pres recipient, the Investor Protection Trust, is a nonprofit 6 organization focused on investor education. A savvy, educated investor is hopefully 7 more likely to identify signs of securities fraud, which furthers the Exchange Act's 8 purpose of maintaining ‘fair and honest markets.’” (citation omitted)); Hefler v. 9 Wells Fargo & Co., No. 16-cv-05479, 2018 WL 6619983, at *11 (N.D. Cal. Dec. 10 18, 2018) (“[T]he Court concludes that the Investor Protection Trust’s mission of 11 educating investors makes it an appropriate cy pres beneficiary.”), aff’d sub nom. 12 Hefler v. Pekoc, 802 F. App’x 285 (9th Cir. 2020); In re Capstone Turbine Corp. 13 Sec. Litig., No. 15-cv-8914, 2020 WL 7889062, at *2 (C.D. Cal. Aug. 26, 2020) 14 (approving IPT as cy pres recipient); In re Illumina, Inc. Sec. Litig., No. 3:16-cv- 15 3044, 2021 WL 1017295, at *9 (S.D. Cal. Mar. 17, 2021) (same). 16 V. RELEASE OF CLAIMS 17 In order to allow the full and final distribution of the Net Settlement Fund, it 18 is necessary to (i) bar any further claims against the Net Settlement Fund beyond the 19 amounts allocated to Authorized Claimants; and (ii) provide that all persons 20 involved in any aspect of Claims processing, or who are involved in the 21 administration or taxation of the Settlement Fund or the Net Settlement Fund, be 22 released and discharged from all claims arising out of that involvement. See 23 Stipulation ¶ 29. Accordingly, Lead Plaintiffs respectfully request that the Court 24 release and discharge all persons involved in the review, verification, calculation, 25 tabulation, or any other aspect of the processing of the Claims submitted in 26 connection with the Settlement, or who are otherwise involved in the administration 27 or taxation of the Settlement Fund or the Net Settlement Fund from all claims arising 28 out of that involvement, and bar all Settlement Class Members and other Claimants, 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPROVAL OF DISTRIBUTION PLAN CASE NO. 8:19-cv-2236-DOC-ADS Case 8:19-cv-02326-DOC-ADS Document 122 Filed 11/29/22 Page 13 of 15 Page ID #:2038 1 whether or not they receive payment from the Net Settlement Fund, from making 2 any further claims against the Net Settlement Fund, Lead Plaintiffs, Lead Counsel, 3 the Claims Administrator, the Escrow Agent or any other agent retained by Lead 4 Plaintiffs or Lead Counsel in connection with the administration or taxation of the 5 Settlement Fund or the Net Settlement Fund, or any other person released under the 6 Settlement beyond the amounts allocated to Authorized Claimants. 7 Courts have repeatedly approved similar releases in connection with the 8 distribution of settlement proceeds. See, e.g., Capstone Turbine, 2020 WL 7889062, 9 at *2 (“All persons involved in the review, verification, calculation, tabulation, or 10 any other aspect of the processing of the Claims submitted herein, or otherwise 11 involved in the administration or taxation of the Settlement Fund or the Net 12 Settlement Fund, are released and discharged from any and all claims arising out of 13 such involvement, and all Settlement Class Members, whether or not they are to 14 receive payment from the Net Settlement Fund, are barred from making any further 15 claim against the Net Settlement Fund or the released persons beyond the amount 16 allocated to them pursuant to this Order.”); In re Toyota Motor Corp. Sec. Litig., No. 17 14:10-cv-922, 2014 WL 12586787, at *2 (C.D. Cal. Aug. 4, 2014) (approving 18 substantially similar language in order authorizing distribution of settlement 19 proceeds). 20 21 22 23 24 25 26 27 28 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPROVAL OF DISTRIBUTION PLAN CASE NO. 8:19-cv-2236-DOC-ADS Case 8:19-cv-02326-DOC-ADS Document 122 Filed 11/29/22 Page 14 of 15 Page ID #:2039 1 VII. CONCLUSION 2 For the foregoing reasons, Lead Plaintiffs respectfully request that the Court 3 grant their Unopposed Motion for Approval of Distribution Plan and enter the 4 [Proposed] Order Approving Distribution Plan. 5 Dated: November 29, 2022 Respectfully submitted, 6 7 SAXENA WHITE P.A. 8 /s/ David R. Kaplan 9 David R. Kaplan (SBN 230144) dkaplan@saxenawhite.com 10 Hani Y. Farah (SBN 307622) 11 hfarah@saxenawhite.com 505 Lomas Santa Fe Drive, Suite 180 12 Solana Beach, CA 92075 13 Telephone: (858) 997-0860 Facsimile: (858) 369-0096 14 15 -and- 16 Steven B. Singer (pro hac vice) ssinger@saxenawhite.com 17 10 Bank Street, 8th Floor 18 White Plains, NY 10606 Tel: (914) 437-8551 19 Fax: (888) 631-3611 20 Attorneys for Lead Plaintiffs the Atlanta 21 Funds and Co-Lead Counsel for the Proposed 22 Settlement Class 23 24 25 26 27 28 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPROVAL OF DISTRIBUTION PLAN CASE NO. 8:19-cv-2236-DOC-ADS Case 8:19-cv-02326-DOC-ADS Document 122 Filed 11/29/22 Page 15 of 15 Page ID #:2040 1 BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 2 3 /s/ Jonathan D. Uslaner Jonathan D. Uslaner (Bar No. 256898) 4 jonathanu@blbglaw.com 5 Lauren M. Cruz (Bar No. 299964) lauren.cruz@blbglaw.com 6 2121 Avenue of the Stars, Suite 2575 7 Los Angeles, CA 90067 8 Telephone: (310) 819-3470 9 -and- 10 John J. Rizio-Hamilton (pro hac vice) 11 johnr@blbglaw.com 1251 Avenue of the Americas 12 New York, New York 10020 13 Telephone: (212) 554-1400 Facsimile: (212) 554-1444 14 15 Attorneys for Lead Plaintiff Baton Rouge and Co-Lead Counsel for the Proposed Settlement 16 Class 17 18 19 20 21 22 23 24 25 26 27 28 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPROVAL OF DISTRIBUTION PLAN CASE NO. 8:19-cv-2236-DOC-ADS