Kendall v. Odonate Therapeutics, Inc.

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11 UNITED STATES DISTRICT COURT

12 SOUTHERN DISTRICT OF CALIFORNIA

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14 KEVIN KENDALL, individually and on Case No.: 3:20-cv-01828-H-LL

behalf of all others similarly situated,

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AMENDED ORDER:

Plaintiff,

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v. (1) CERTIFYING CLASS FOR

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SETTLEMENT PURPOSES;

ODONATE THERAPEUTICS, INC.,

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KEVIN C. TANG, MICHAEL HEARNE,

(2) PRELIMINARILY APPROVING

19 JOHN G. LEMKEY,

CLASS SETTLEMENT;

20 Defendants.

21 (3) APPOINTING CLASS

REPRESENTATIVE AND CO-

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COUNSEL;

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(4) APPROVING CLASS NOTICE;

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and

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(5) SCHEDULING FINAL

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APPROVAL HEARING

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[Doc. No. 43.]

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1 On December 3, 2022, Plaintiff Kevin Kendall filed an unopposed motion for

2 preliminary approval of class action settlement and directing dissemination of notice to

3 the class. (Doc. No. 43.) On January 3, 2022, Defendants Odonate Therapeutics, Inc.,

4 Kevin C. Tang, Michael Hearne, John G. Lemkey (collectively, “Defendants”) filed a

5 notice of non-opposition to Plaintiff’s motion. (Doc. No. 46.) The Court held a hearing on

6 the matter on January 10, 2022. Corey D. Holzer, Jennifer Banner Sobers, and Matthew

7 L. Tuccillo appeared on behalf of Plaintiff. Stephan Ryan Benson Richards appeared on

8 behalf of Defendants. For the following reasons, the Court grants Plaintiff’s motion and

9 sets a schedule for further proceedings.

10 Background

11 I. Factual and Procedural Background

12 This is a securities class action against Odonate Therapeutics, Inc. (“Odonate”) and

13 three of its officers under Section 10(b) and 20(a) of the Securities Exchange Act of 1934

14 (the “Exchange Act”) and Rule 10b-5. (Doc. No. 24, SAC ¶¶ 225–41.) The case is

15 brought on behalf of all persons and entities who purchased or otherwise acquired the

16 stock of Odonate between December 7, 2017 and March 25, 2021 (the “Class Period”).

17 (Id. ¶ 217.) Odonate is a pharmaceutical company based in San Diego. (Id. ¶ 2.)

18 Odonate’s single, primary drug candidate is tesetaxel, an orally administered

19 chemotherapy agent developed to treat patients with locally advanced or metastatic breast

20 cancer. (Id. ¶¶ 33–35.) Defendants Tang, Hearne, and Lemkey were officers and

21 collectively the majority shareholder of Odonate during the Class Period. (Id. ¶¶ 1, 3, 19–

22 21.) In December 2017, Odonate initiated a Phase 3 study of tesetaxel. (Id. 36, 57-59.)

23 Plaintiff alleges that between December 8, 2017 and February 23, 2021, Odonate filed for

24 an Initial Public Offering (“IPO”) with the Securities and Exchange Commission

25 (“SEC”) and held multiple subsequent public offering of its shares in order to raise funds

26 for Odonate’s continued operations and tesetaxel’s study. (Id. ¶¶ 37–38, 188.) Plaintiff

27 alleges that through its IPO and subsequent offerings, Odonate raised $394.6 million in

28 gross proceeds and $369.78 million in net proceeds. (Id. ¶ 39.)

1 Plaintiff alleges Odonate’s value proposition to investors was tesetaxel. (Id. ¶ 36.)

2 Plaintiff alleges that during the Class Period, significant safety concerns regarding

3 tesetaxal arose during the Phase 3 study, which Plaintiff alleges Defendants were aware

4 of but did not disclose to investors or the public. (Id. ¶¶ 5–7, 40.) Plaintiff also alleges

5 that during the class period, Defendants made false and misleading statements containing

6 misrepresentations and omissions regarding the tesetaxel Phase 3 study, patient outcomes

7 and experiences while using tesetaxel, and the likelihood of tesetaxels’ approval by the

8 FDA. (Id. ¶¶ 56–181.) On March 22, 2021, Odonate issued a press release announcing it

9 was discontinuing tesetaxel’s development following feedback from the U.S. Food and

10 Drug Administration (“FDA”) that the clinical data package for tesetaxel was unlikely to

11 support FDA approval. (Id. ¶ 168.) On March 25, 2021, Odonate filed a Form 8-K with

12 the SEC providing more details about Odonate’s discontinuation of tesetaxels’

13 development and the wind-down of Odonate’s operations. (Id. ¶ 170.) Plaintiff alleges

14 Odonate’s stock price fell dramatically following the press release and Form 8-K filing.

15 (Id. ¶¶ 169, 171.)

16 On September 16, 2020, Plaintiff filed a class action complaint against Defendants.

17 (Doc. No. 1.) On December 14, 2020, the Court granted Plaintiff’s unopposed motion to

18 appoint Plaintiff as Lead Plaintiff and approval of Plaintiff’s selection of counsel. (Doc.

19 No. 11.) On February 16, 2021, Plaintiff filed the first amended class action complaint.

20 (Doc. No. 21.) On April 13, 2021, Plaintiff filed the second amended class action

21 complaint. (Doc. No. 24.) On May 13, 2021, Defendants filed a motion to dismiss

22 Plaintiff’s second amended complaint. (Doc. No. 25.) On August 4, 2021, the Court

23 denied Defendants’ motion to dismiss. (Doc. No. 36.) On September 3, 2021, Defendants

24 filed their answer to Plaintiff’s second amended complaint. (Doc. No. 37.)

25 On September 20, 2021, the parties held a virtual mediation before Michelle

26 Yoshida, Esq. of Phillips ADR Enterprise, but were unable to reach a settlement that day.

27 (Doc. No. 43 at 4.) Over the next three weeks the parties continued negotiations and

28 ultimately came to an agreement to settle the action in principle. (Id.) On October 19,

1 2021, the parties executed a memorandum of understanding regarding the settlement in

2 principle. (Id.) On October 26, 2021, the parties filed a joint motion to enter a stipulation

3 to stay the proceedings pending settlement. (Doc. No. 39.) On November 3, 2021, the

4 Court granted the parties’ joint motion to stay the proceedings. (Doc. No. 39.) The Court

5 also ordered Plaintiff to file a motion for preliminary approval of the class action

6 settlement on or before January 31, 2022. (Id.) On December 3, 2021, Plaintiff filed the

7 present unopposed motion seeking (1) preliminary approval of the proposed class action

8 settlement; (2) preliminary certification of the settlement class, appointment of Lead

9 Plaintiff as representative of the settlement class, and appointment of Co-Lead Counsel as

10 counsel for the settlement class; (3) approval of the form and manner of giving notice to

11 the class; and (4) a final approval hearing and a schedule for various deadlines. (Doc. No.

12 43.)

13 II. Proposed Settlement

14 Under the proposed settlement, Defendants will pay the settlement amount of

15 $12,750,000.00. (Doc. No. 43-2, Tuccillo Decl. Ex. 1 ¶¶ 1.32, 2.0 (“Stipulation”).) The

16 settlement will be distributed to class members pro rata in accordance with a plan of

17 allocation that has been designed by Co-Lead Counsel. (Id. ¶ 6.7; Ex. B1 at 6.) Under the

18 plan of allocation, a Recognized Loss amount for each share purchased within the Class

19 Period will be calculated based when the stock was purchased or acquired and, if

20 applicable, sold. (Id.; Ex. B1 at 14–15.) The Recognized Loss is the basis for how the

21 settlement fund will be proportionately allocated to class members. (Id. at 12.) The

22 Recognized Loss is intended to estimate the alleged artificial inflation of the price of

23 Odonate stock at different times during the Class Period due to alleged

24 misrepresentations by Defendants. (Id. at 12.) No distribution will be made to class

25 members who would receive a distribution of less than $10.00. (Id. at 16.) Any remaining

26 funds in the settlement fund after at least six (6) months after the initial distribution will

27 be used first, to pay any amounts mistakenly omitted from the initial disbursement;

28 second, to pay any additional settlement administration fees, costs, and expenses; and

1 third, to make a second distribution to class members who cashed their checks from the

2 initial distribution. (Id. at 17.) None of the funds will revert back to Defendants. (Id. ¶¶

3 2.5, 6.8.)

4 The class members will receive payment from the settlement fund after taxes and

5 tax expenses, administration costs, a fee and expenses award to Co-Lead Counsel, and a

6 compensatory award to Lead Plaintiff. (Id. § H; Ex. B1 at 2, 9.) The parties agreed to an

7 attorney fee award of up to 33 1/3% of the settlement amount and reimbursement of up to

8 $100,000.00. (Id. § H; Ex. B1 at 2, 9.) The class representatives service award is $5,000.

9 (Id., Ex. B1 at 2, 9.) The parties also agreed to allocate up to $300,000 to pay for the

10 costs and expenses of the claim administrator in disseminating notice and administering

11 claims. (Id. ¶¶ 1.17–18, 2.6–2.7.) Each settlement class member is required to submit to

12 the claim administrator a completed proof of claim form to receive their payment. (Id. ¶

13 6.4(a).) Notice of the terms of the settlement will be sent to class members by first-class

14 mail and posted on the claims administrator’s website. (Doc. No. 43 at 26–27.) A

15 publication notice will also be published once over a national newswire service. (Id. at

16 27.) Class members reserve the right to object to or opt out of the settlement. (Ex. B1 at

17 3.)

18 Discussion

19 I. Class Certification

20 Plaintiff seeks to certify a class pursuant to Federal Rule of Civil Procedure

21 23(b)(3) for purposes of settlement. (Doc. No. 43 at 23.) The settlement class includes all

22 persons who purchased or otherwise acquired stock of Odonate between December 7,

23 2017 and March 25, 2021, both dates inclusive. (Id. at 18; Stipulation ¶¶ 1.32, 1.35.)

24 Excluded from the class are Defendants; members of Defendants’ immediate families and

25 their affiliates; any entity in which any Defendant had a controlling interest during the

26 Class Period; any person who served as an officer or director of Odonate during the Class

27 Period; the judges presiding over the action and the immediate family members of such

28 judges; any persons or entities listed on the Settlement Exclusion List; and the successor,

1 heirs, and assignees of any excluded person. (Id. at 18 n.4; Stipulation ¶ 1.33.)

2 A plaintiff seeking to certify a class under Rule 23(b)(3) must first satisfy the

3 requirements of 23(a). Fed. R. Civ. P. 23(b); see also Wal-Mart Stores, Inc. v. Dukes, 131

4 S. Ct. 2541, 2548 (2011). Once subsection (a) is satisfied, the purported class must then

5 fulfill the requirements of Rule 23(b)(3). Id.

6 A. Rule 23(a) Requirements

7 Rule 23(a) establishes that one or more plaintiffs may sue on behalf of class

8 members if all of the following requirements are met: (1) numerosity; (2) commonality;

9 (3) typicality; and (4) adequacy of representation. Fed. F. Civ. P. 23(a).

10 The numerosity prerequisite is met if “the class is so numerous that joinder of all

11 members is impracticable.” Fed. R. Civ. P. 23(a)(1). “In general, courts find the

12 numerosity requirement satisfied when a class includes at least 40 members.” Rannis v.

13 Recchia, 380 F. App’x 646, 651 (9th Cir. 2010); see also Hilsley v. Ocean Spray

14 Cranberries, Inc., 2018 WL 6300479, *3 (S.D. Cal. Nov. 29, 2018) (quoting Ikonen v.

15 Hartz Mtn. Corp., 122 F.R.D. 258, 262 (S.D. Cal. Sept. 20, 1988) (“As a general

16 rule,…classes of 40 or more are numerous enough.”). “Numerosity ‘is generally assumed

17 to have been met in class action suits involving nationally traded securities.’” In re En

18 Pointe Techs., Inc. Sec. Litig., 2005 WL 8173600, *4 (S.D. Cal. May 31, 2005) (citation

19 omitted); see also In re Juniper Networks, Inc. Sec. Litig., 264 F.R.D. 584, 588 (N.D.

20 Cal. Oct. 16, 2009) (“Some courts have assumed that the numerosity requirement is met

21 in securities fraud suits involving nationally traded stocks.”) Plaintiff represents that

22 Odonate shares traded on NASDAQ and there were over 38 million shares of its common

23 stock outstanding as of May 7, 2021. (Doc. No. 23 at 19.) Plaintiff estimates that the

24 proposed settlement class consists of at least hundreds, if not thousands, of investors,

25 even after the exclusion of insider shares. (Id. at 19.) As such, the numerosity prerequisite

26 is met. See, e.g., In re Biolase, Inc. Sec. Litig., 2015 WL 12697736, *3 (C.D. Cal. June 5,

27 2015) (finding the numerosity requirement met where defendant had more than 31

28 million shares of common stock outstanding).

1 The commonality prerequisite is met if there are “questions of law or fact common

2 to the class.” Fed. R. Civ. P. 23(a)(2). “[T]he key inquiry is not whether the plaintiffs

3 have raised common questions, ‘even in droves,’ but rather whether class treatment will

4 ‘generate common answers apt to drive the resolution of the litigation.’” Abdullah v. U.S.

5 Sec. Assoc., Inc., 731 F.3d 952, 957 (9th Cir. 2013) (quoting Dukes, 131 S. Ct. at 2551).

6 “Because of the common effect that such misrepresentations have on all shareholders,

7 ‘[r]epeated misrepresentations by a company to its stockholders satisfy the commonality

8 requirement of Rule 23(a)(2).’” Brown v. China Integrated Energy, Inc., 2015 WL

9 12720322, *14 (C.D. Cal. Feb. 17, 2015) (quoting In re Juniper Networks, Inc. Sec.

10 Litig., 264 F.R.D at 588). Plaintiff argues common question of fact and law to the class

11 include whether statements made by Defendants to the investing public during the Class

12 Period misrepresented or omitted materials facts about Odonate, whether Defendants’

13 alleged conduct violated federal securities law, whether Defendants acted knowingly or

14 recklessly in issuing any false and misleading public statements, and whether the price of

15 Odonate securities during the settlement class period was artificially inflated by

16 Defendants’ conduct. (Doc. No. 43 at 20.) The commonality prerequisite is met.

17 Typicality requires that “the claims or defense of the representative parties [be]

18 typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). A plaintiff’s

19 claims are “‘typical’ if they are reasonably co-extensive with those of absent class

20 members.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). Typicality

21 requires that a representative plaintiff “possess the same interest and suffer the same

22 injury as the class members.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 156

23 (1982). Here, Plaintiff alleges Lead Plaintiff Kendall purchased Odonate stock during the

24 class period and pursuant to the same alleged fraud as the other settlement class

25 members. (Doc. No. 43 at 21–22.) Plaintiffs also allege Lead Plaintiff Kendall is not

26 subject to any unique defenses from the other settlement class members. (Id. at 22.) As a

27 result, the typicality prerequisite is met.

28 The adequacy of representation prerequisite requires that the class representative

1 be able to “fairly and adequately protect the interests of the class.” Fed. R. Civ. P.

2 23(a)(4). Representation is adequate if the plaintiff and class counsel (1) do not have any

3 conflicts of interest with any other class members and (2) will prosecute the action

4 vigorously on behalf of the class. Hanlon, 150 F.3d at 1020. First, Lead Plaintiff

5 Kendall’s claims are typical and coextensive with those of the settlement class, and there

6 does not appear to be any potential conflict of interest between the Lead Plaintiff and the

7 remaining class members. (Doc. No. 43 at 22.) Second, Co-Lead Counsel are experience

8 in securities class actions and have prosecuted this case for a year and a half. (Doc. No.

9 43 at 22–23.) The adequacy of representation prerequisite is met. As such, each of the

10 prerequisites of Rule 23(a) is satisfied.

11 B. Rule 23(b)(3) Requirements

12 Rule 23(b)(3) requires a court to find that: (1) “the questions of law or fact

13 common to class members predominate over any questions affecting only individual

14 members;” and (2) “that a class action is superior to other available methods for fairly

15 and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). These factors are

16 referred to as the “predominance” and “superiority” tests. Hanlon, 150 F.3d at 1022–23.

17 Rule 23(b)(3)’s requirements are designed “to cover cases ‘in which a class action would

18 achieve economies of time, effort, and expenses, and promote…uniformity of decision as

19 to persons similarly situated, without sacrificing procedural fairness or bringing about

20 other undesirable results.’” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997)

21 (citation omitted). If the parties seek to certify a class for settlement purposes, “a district

22 court need not inquire whether the case, if tried, would present intractable management

23 problems for the proposal is that there be no trial.” Id. at 620 (citation omitted).

24 1. Predominance

25 The predominance inquiry tests whether the proposed class is “sufficiently

26 cohesive to warrant adjudication by representation.” Hanlon, 150 F.3d at 1022 (quoting

27 Amchem, 521 U.S. at 623). This analysis requires more than proof of common issues of

28 law and fact. Id. Rather, the common questions should “present a significant aspect of the

1 case and…be resolved for all members of the class in a single adjudication.” Id.

2 (quotation omitted). “Predominance is a test readily met in certain cases alleging

3 consumer or securities fraud….” Hefler v. Wells Fargo & Co., 2018 WL 4207245, * 4

4 (N.D. Cal. Sept. 4, 2018) (quoting Amchem, 521 U.S. at 625). Plaintiff argues that issues

5 related to Defendants’ liability are common to all class members. (Doc. No. 43 at 24.) As

6 such, common questions of law and fact predominate. See, e.g., Hefler, 2018 WL

7 4207245, *4 (“Whether [d]efendants’ statements were false, material, made with the

8 required scienter, and caused the class members losses are significant aspects of the case

9 and susceptible to common proof.”).

10 2. Superiority

11 The superiority inquiry requires determination of “whether objectives of the

12 particular class action procedure will be achieved in the particular case.” Hanlon, 150

13 F.3d at 1023 (citation omitted.) Notably, the class-action method is considered to be

14 superior if “classwide litigation of common issues will reduce litigation costs and

15 promote greater efficiency.” Valentino v. Carter-Wallce, Inc., 97 F.3d 1227, 1234 (9th

16 Cir. 1996) (citation omitted). Plaintiff argues the settlement class likely consists of

17 hundreds, if not thousands, of investors. (Doc. No. 43 at 19.) Resolving these disputes in

18 a single class action rather than individually would be far more efficient. See Hefler,

19 2018 WL 4207245, *4. As such, a class action is a superior method of adjudicating this

20 matter.

21 The requirements of Rule 23(b)(3) are satisfied. As a result, the Court grants

22 preliminary certification of the proposed class. The Court may review this finding at the

23 final approval hearing.

24 C. Appointment of Class Representative and Class Counsel

25 Lead Plaintiff Kendall meets the commonality, typicality, and adequacy

26 requirements of Rule 23(a). As such, Lead Plaintiff Kendall is appointed as class

27 representative. See In re Bridgepoint Educ. Inc. Secs. Litig., 2015 WL 224631, *8 (S.D.

28 Cal. Jan. 15, 2015).

1 Under Rule 23(g), a court that certifies a class must appoint class counsel. Fed. R.

2 Civ. P. 23(g)(1). A court must consider the following factors when appointing class

3 counsel: “(i) the work counsel has done in identifying or investigating potential clams in

4 the action; (ii) counsel’s experience in handling class actions, other complex litigation,

5 and the types of claims asserted in the action; (iii) counsels’ knowledge of the applicable

6 law; and (iv) the resources that counsel will commit to represent the class.” Fed. R. Civ.

7 P. 23(g)(1)(A). The court may also “consider any other matter pertinent to counsel’s

8 ability to fairly and adequately represent the interest of the class.” Fed. R. Civ. P.

9 23(g)(1)(B). Since taking over as Co-Lead Counsel, (Doc. No. 11.), Pomerantz LLP and

10 Holzer & Holzer, LLC have obtained a good understanding of the issues and have

11 prosecuted this action through a dispositive motion, mediation, and settlement

12 negotiations. (Doc. No. 43 at 3–4.). Pomerantz LLP and Holzer & Holzer, LLC also have

13 significant prior experience in litigating securities fraud cases, including class actions.

14 (Doc. No. 11 at 4.) As a result, Pomerantz LLP and Holzer & Holzer are appointed as

15 class counsel pursuant to Federal Rule of Civil Procedures 23(g).

16 II. The Settlement

17 Rule 23(e) requires the Court to determine whether a proposed settlement is

18 “fundamentally fair, adequate, and reasonable.” Staton v. Boeing Co., 327 F.3d 938, 959

19 (9th Cir. 2003) (quoting Hanlon, 150 F.3d at 1026). To make this determination, the

20 Court must consider a number of factors, including: (1) the strength of plaintiff’s case;

21 (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of

22 maintaining class action status throughout the trial; (4) the amount offered in settlement;

23 (5) the extent of discovery completed, and the stage of proceedings; (6) the experience

24 and views of counsel; (7) the presence of a governmental participant; and (8) the reaction

25 of class members to the proposed settlement. Id.

26 In addition, the settlement may not be the product of collusion among the

27 negotiating parties. In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir.

28 2000)(citing Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1290 (9th Cir. 1992)).

1 “Prior to formal class certification, there is an even greater potential for a breach of

2 fiduciary duty owed the class during settlement. Accordingly, such agreements must

3 withstand an even higher level of scrutiny of collusion or other conflicts of interest than

4 is ordinarily required under Rule 23(e) before securing the court’s approval as fair.” In re

5 Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011) (citation

6 omitted). “Signs of collusion include: (1) a disproportionate distribution of the settlement

7 fund to counsel; (2) negotiation of a ‘clear sailing provision’; and (3) an arrangement for

8 funds not awarded to revert to defendant rather than to be added to the settlement fund.”

9 Hefler v. Wells Fargo & Co., 2018 WL 4207245, *7 (N.D. Cal. Sept. 4, 2018) (quoting In

10 re Bluetooth, 654 F.3d at 947).

11 Given that some of these factors cannot be fully assessed until the Court conducts

12 the final approval hearing, “a full fairness analysis is unnecessary at this stage.” Alberto

13 v. GMRI, Inc., 252 F.R.D. 652, 665 (E.D. Cal. June 24, 2008) (citation omitted). Rather,

14 at the preliminary approval stage, the Court need only review the parties’ proposed

15 settlement to determine whether it is within the permissible “range of possible judicial

16 approval” and thus, whether the notice to the class and the scheduling of a fairness

17 hearing is appropriate. Id. at 666 (citation omitted). Preliminary approval of a settlement

18 and notice to the class is appropriate if “(1) the proposed settlement appears to be the

19 product of serious, informed, and noncollusive negotiations, (2) has no obvious

20 deficiencies, (3) does not improperly grant preferential treatment to class representatives

21 or segments of the class, and (4) falls within the range of possible approval.” In re

22 Tableware Antitrust Litig. 484 F. Supp. 2d 1078, 1079-80 (N.D. Cal. Apr. 12, 2007); see

23 also Beaver v. Tarsadia Hotels, 2017 WL 2268853, *3 (S.D. Cal. May 24, 2007); Loeza

24 v. JPMorgan Chase Bank, NA, 2015 WL 13357592, *7 (S.D. Cal. Aug. 18, 2015).

25 In determining whether a proposed settlement should be approved, the Ninth

26 Circuit has a “strong judicial policy that favors settlements, particularly where complex

27 class action litigation is concerned.” Seattle, 955 F.2d at 1276. Additionally, the Ninth

28 Circuit favors deference to the “private consensual decision [settling] parties,”

1 particularly where the parties are represented by experienced counsel and negotiation has

2 been facilitated by a neutral party. See Rodriguez v. West Publ’g Corp., 563 F.3d 948,

3 965 (9th Cir. 2009).

4 After reviewing the proposed settlement in light of the above factors and the

5 current stage of the litigation, the Court concludes that preliminary approval is

6 appropriate. The proposed settlement appears to be the result of serious, informed, and

7 non-collusive negotiations. Prior to reaching this settlement, the parties engaged in

8 significant investigation and substantive briefing on Defendants’ motion to dismiss. (Doc.

9 No. 43 at 3–4, 15–16.) The parties also participated in a full day of voluntary mediation

10 before Michelle Yoshida, Esq. of Phillips ADR Enterprises and an additional three weeks

11 of negotiations before reaching an agreement to settle in principle. (Id. at 4–5.)

12 The proposed settlement also does not appear to have any obvious deficiencies,

13 does not improperly grant preferential treatment to class representatives or segments of

14 the class, and falls within the range of possible approval. Class Co-Counsel is

15 experienced in securities class actions. (Doc. Nos. 43 at 10; 11 at 5.) Class Co-Counsel

16 represents that while Plaintiff’s claims are meritorious, continuing to litigate the case

17 would pose significant risks for the class and the settlement offers meaningful relief.

18 (Doc. No. 43 at 13–14.) The settlement agreement provides for a settlement fund of

19 $12,750,000.00. (Doc. No. 43 at 5.) Plaintiff represents their expert estimates that, “based

20 on the allegations in the SAC, class-wide damages using different models range[] from

21 $331.7 million to $365.5 million.” (Id. at 12.) According to Plaintiff, the settlement

22 represents between 3.49% and 3.84% of estimated damages. (Id.) This falls within the

23 range of possible approval. See Loeza v. JPMorgan Chase Bank, NA, 2015 WL

24 13357592, *8 (S.D. Cal. Aug. 8, 2015) (citing In re Tableware, 484 F. Supp. 2d at 1080)

25 (“In determining whether a settlement agreement is substantively fair to the class, a court

26 must balance the value of plaintiffs’ expected recovery against the value of the settlement

27 offer.”); In re Zynga Inc. Sec. Litig., 215 WL 6471171, *10 (N.D. Cal. Oct. 27, 2015)

28 (citation omitted) (“A cash settlement amounting to only a fraction of the potential

1 recovery does not per se render the settlement inadequate or unfair.”).

2 The Class Co-Counsel intend to seek an attorneys’ fee award not to exceed 33

3 1/3% of the settlement amount and reimbursement of expenses up to $100,000.00.

4 (Stipulation, Ex. B1 at 2, 9.) The request for attorneys’ fees is within the range of

5 acceptable attorneys’ fees in Ninth Circuit cases. See (E.D. Cal. Mar. 6, 2010) (noting

6 that “[t]he typical range of acceptable attorneys’ fees in the Ninth Circuit is 20% to 33

7 1/3% the total settlement value, with 25% considered the benchmark”). The proposed

8 incentive award of $5,000 for the Lead Plaintiff appears reasonable. (Stipulation, Ex. B1

9 at 9.); see In re Mego, 213 F.3d at 463 (affirming incentive award of $5,000 to two

10 plaintiff representatives of 5,400 potential class members in $1.75 million settlement,

11 where incentive payment constituted only 0.57% of the settlement fund.)

12 For the foregoing reasons, the Court conditionally grants preliminary approval of

13 the proposed settlement. The Court reserves judgment on the reasonableness of the

14 attorneys’ fees for the final approval hearing.

15 III. Approving Class Notice

16 The class notice must be “reasonably calculated, under all the circumstances, to

17 apprise interested parties of the pendency of the action and afford them an opportunity to

18 present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314

19 (1950). In addition, the class notice must satisfy the content requirements of Rule

20 23(c)(2)(B), which provides the notice must clearly and concisely state in plain, easily

21 understood language:

22 (i) [t]he nature of the action; (ii) the definition of the class certified; (iii) the class

claims, issues, or defenses; (iv) that a class member may enter an appearance

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through an attorney if the member so desires; (v) that the court will exclude from

24 the class any member who requests exclusion; (vi) the time and manner for

requesting exclusion; and (vii) the binding effect of a class judgment on members

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under Rule 23(c)(3). Fed. R. Civ. P. 23(c)(2)(B).

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A. Content of Notice

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The content of the notice meets the requirements of Rule 23(c)(3). In clearly

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understandable language, the notice provides the following: a description of the lawsuit; a

1 description of the settlement class; an explanation of the material elements of the

2 settlement; a statement declaring that class members may exclude themselves from or

3 object to the settlement; a description that explains how class members may exclude

4 themselves from or object to the terms of the settlement; and a description of the fairness

5 hearing. (Doc No. 43 at 28; Stipulation, Ex. B1.)

6 B. Method of Notice

7 The proposed method of notice is also reasonable. The parties have selected

8 Strategic Claims Services (“SCS”) to be their settlement claims administrator after a

9 competitive bidding process. (Doc. No. 43 at 26.) Within seven (7) days after the Court

10 enters a preliminary approval order, Odonate will assist SCS is obtaining the record of

11 ownership to identify class members for notice. (Id. at 27.) Within twenty-one (21)

12 business days after the Court enters a preliminary approval order, SCS will send notice to

13 the class members by first-class mail. (Id.) SCS will also publish the publication notice

14 over a national newswire service that will direct settlement class members to the

15 settlement materials posted online. (Id. at 27.) The stipulation and all exhibits will also be

16 posted on SCS’s website. (Id. at 27–28.)

17 Plaintiff has provided the Court with the option of either a full, long-form notice or

18 a shorter notice that contains instructions on how to access the long-form notice,

19 stipulations, and other exhibits electronically on the claims administrator’s website. (Doc.

20 No. 43 at 26–27; Stipulations, Exs. B1, B2.) The Court approves the use of the short-form

21 notice. See, e.g., In re Bofi Holdings, Inc. Secs. Litig., 2021 WL 6051671, *2 (S.D. Cal.

22 Dec. 20, 2021) (approving class action notice plan where a short-form notice is mailed to

23 class members and the long-form notice is posted on a website). SCS will mail, by first-

24 class mail, the short-form notice to settlement class members and post the long-form

25 notice on their website.

26 After reviewing the content and the proposed method of providing notice, the

27 Court determines that the notice is adequate and sufficient to inform the class members of

28 their rights. Accordingly, the Court approves the form and manner of giving notice of the

1 || proposed settlement.

2 ||IV. Scheduling Fairness Hearing

3 The Court schedules the final approval hearing for Monday, June 6, 2022, at

4 ||10:30 a.m. Defendants must provide an updated class list to the setthement administrator

5 January 24, 2022. The settlement administrator must mail class notice and proof of

6 ||claim by February 7, 2022. The settlement administrator must also publish the

7 || publication notice by February 7, 2022. Potential class members must return claims,

8 ||requests for exclusion, and objections by May 2, 2022. Plaintiff must file all papers in

9 || support of settlement, the plan of allocation, and any fee and expense application or

10 ||compensatory award by May 16, 2022. Any reply papers must be filed by May 23, 2022.

11 Conclusion

12 The Court approves Plaintiffs request for provisional certification of the class for

13 || purposes of settlement, request for preliminary approval of the proposed settlement, and

14 || the form and manner of the notice of the proposed settlement to the class members.

15 || Additionally, the Court sets the final approval hearing for Monday, June 6, 2022 at

16 || 10:30 a.m. Plaintiff must file a motion for final approval of the settlement, and any

17 || motions for fee awards and incentive awards on or before May 16, 2022.

18 IT IS SO ORDERED.

19 || DATED: January 18, 2022 -

0 MAALAWY\ Fh hs

fl ILYN if HUFF, side

21 UNITED STATES DISTRICT COURT

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