McGuire v. Dendreon Corporation et al, No. 2:2007cv00800 - Document 218 (W.D. Wash. 2010)
Court Description: ORDER granting 213 Motion for Preliminary Approval of Settlement: Settlement Hearing set for 12/17/2010 at 01:30 PM in Courtroom 14206 before Judge Marsha J. Pechman; signed by Judge Marsha J. Pechman.(SC)
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McGuire v. Dendreon Corporation et al Doc. 218 The Hon. Marsha J. Pechman 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 10 11 12 KENNETH MCGUIRE and DAVID WILCZYNSKI, on Behalf of Themselves and All Others Similarly Situated, Case No. C07-800 MJP CLASS ACTION 13 Plaintiffs, 14 15 16 17 vs. DENDREON CORPORATION, et al., ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AND PROVIDING FOR NOTICE Defendants. 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PRELIM. APPROVAL OF SETTLEMENT AND PROVIDING FOR NOTICE No. 2:07-cv-0800-MJP Page 1 of 9 Dockets.Justia.com 1 This class action comes before the Court on the Plaintiffs’ Unopposed Motion for 2 Preliminary Approval of Class Action Settlement and Approval of Notice (“Motion”) and on 3 the Stipulation of Settlement dated October 25, 2010 (the “Stipulation”) entered into by the 4 Class Representatives and Defendants (collectively, the “Settling Parties”). The Court has 5 6 7 reviewed the Motion and the Stipulation and attached exhibits, and finds that the Motion is due to be granted. The Settling Parties have applied, pursuant to Federal Rule of Civil Procedure 23(e), 8 for an order preliminarily approving the settlement of the Action in accordance with the 9 10 11 12 13 14 15 Stipulation which, together with its exhibits, sets forth the terms and conditions for a proposed settlement of and for dismissal of the Action with prejudice upon the terms and conditions of the Stipulation. The Court has read and considered the Stipulation and its exhibits and finds that the application for preliminary approval is well taken. All defined terms used in this Order shall have the same meanings as set forth in the Stipulation. 16 NOW, THEREFORE, the Court hereby ORDERS: 17 1. The Court does hereby preliminarily approve the Stipulation and the 18 Settlement, subject to further consideration at the Settlement Hearing described below. 19 Therefore, it GRANTS the motion for preliminary approval of the proposed class settlement. 20 21 2. A hearing (the “Settlement Hearing”) shall be held before this Court on December 17, 2010 at 1:30 p.m. to determine: whether the proposed settlement of the 22 Action on the terms and conditions provided for in the Stipulation is fair, reasonable, and 23 adequate to the Class and Subclass and should be approved by the Court; whether a 24 25 26 27 Judgment as provided in ¶ 1.13 of the Stipulation should be entered and whether any applications for attorneys’ fees or expenses should be approved. The Court may adjourn the Settlement Hearing without further notice to Members of the Class. 28 ORDER GRANTING PRELIM. APPROVAL OF SETTLEMENT AND PROVIDING FOR NOTICE No. 2:07-cv-0800-MJP Page 2 of 9 1 3. The Court approves, as to form and content, the Notice of Proposed 2 Settlement of Class Action (the “Notice”), the Summary Notice for publication, and the 3 Proof of Claim Form and Release annexed as Exhibits A-1 to A-3 hereto, and finds that the 4 mailing and distribution of the Notice and publishing of the Summary Notice substantially in 5 6 7 the manner and form set forth in ¶ 4 of this Order meet the requirements of Federal Rule of Civil Procedure 23, the Securities Exchange Act of 1934, 15 U.S.C. §78u-4(a)(7), as amended, including by the Private Securities Litigation Reform Act of 1995, and due 8 process, and is the best notice practicable under the circumstances and shall constitute due 9 10 11 12 13 14 and sufficient notice to all Persons entitled to notice. 4. The firm of Gilardi & Company, LLC (“Claims Administrator”), is hereby appointed to supervise and administer the notice procedure as well as the processing of claims as more fully set forth below: (a) Dendreon shall cooperate, to the extent necessary, in making its 15 transfer records and shareholder information available to the Claims Administrator for the 16 purpose of identifying and giving notice to the Class; 17 (b) Class Counsel shall make reasonable efforts to identify all persons 18 and entities who are potential Members of the Class and, not later than November 10, 2010 19 (the “Notice Date”), the Claims Administrator shall cause a copy of the Notice substantially 20 21 in the form annexed as Exhibit A-1 to be mailed by first class mail to all potential Class Members who can be identified with reasonable effort; 22 (c) Not later than November 15, 2010, the Claims Administrator shall 23 cause the Summary Notice in the form annexed as Exhibit A-2 to be published once in 24 25 26 Investor’s Business Daily and once over the PR Newswire; and (d) At least three calendar days prior to the Settlement Hearing, Class 27 Counsel shall cause to be served on counsel for Defendants and filed with the Court proof, 28 by affidavit or declaration, of such mailing and publishing. ORDER GRANTING PRELIM. APPROVAL OF SETTLEMENT AND PROVIDING FOR NOTICE No. 2:07-cv-0800-MJP Page 3 of 9 1 5. Nominees who purchased the common stock or options of Dendreon for the 2 beneficial ownership of Class Members during the Class Period shall send the Notice to all 3 beneficial owners of such Dendreon securities within seven days after receipt thereof, or 4 send a list of the names and addresses of such beneficial owners to the Claims Administrator 5 6 7 within seven days of receipt thereof, in which event the Claims Administrator shall promptly mail the Notice to such beneficial owners. The Claims Administrator shall, if requested, reimburse banks, brokerage houses or other nominees solely for their reasonable out-of- 8 pocket expenses incurred in providing notice to beneficial owners who are potential Class 9 10 11 12 13 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. 6. All Members of the Class, except those who are found by the Court to have 14 previously timely and validly requested exclusion from the Class, shall be bound by all 15 determinations in the Action concerning the Settlement, whether favorable or unfavorable. 16 7. Pending final determination of whether the Stipulation should be approved, 17 Class Counsel, Class Representatives, and Class Members are barred and enjoined from 18 commencing or prosecuting any action asserting any Released Claims against any Released 19 Persons. 20 21 8. Class Members who did not previously timely and validly request exclusion from the Class may complete and submit Proof of Claim and Release forms in accordance 22 with the instructions contained therein and in the Notice. Unless the Court orders otherwise, 23 all Proof of Claim and Release forms, if required, must be postmarked no later than one 24 25 26 hundred-twenty (120) days from the Notice Date. Any Class Member who does not submit a Proof of Claim and Release form within the time provided for shall be barred from sharing 27 in the distribution of the proceeds of the Net Settlement Fund, unless otherwise ordered by 28 the Court. Notwithstanding the foregoing, Class Counsel shall have discretion to accept ORDER GRANTING PRELIM. APPROVAL OF SETTLEMENT AND PROVIDING FOR NOTICE No. 2:07-cv-0800-MJP Page 4 of 9 1 late-submitted claims for processing by the Claims Administrator so long as the distribution 2 of the Net Settlement Fund is not materially delayed thereby. 3 4 5 6 7 9. Any Class Member may enter an appearance in the Action, at their own expense, individually or through counsel of their own choice, in which case such counsel must file with the Clerk of the Court and deliver to Class Counsel and counsel for Defendants a notice of such appearance. If they do not enter an appearance, they will be represented by Class Counsel. 8 10. All papers in support of the settlement shall be filed and served no later than 9 10 11 12 13 14 twenty-one calendar days prior to the Settlement Hearing. All papers in support of the request for attorneys’ fees and expenses shall be filed and served no later than the Notice Date. Any reply papers in further support of the above-noted motions shall be served and filed no later than seven calendar days prior to the Settlement Hearing. 11. All Persons found by this Court to have previously validly and timely 15 excluded themselves from the Class shall have no rights under the Stipulation, shall not 16 share in the distribution of the Net Settlement Fund, and shall not be bound by the 17 Stipulation or the Judgment entered as to Defendants in the Action. 18 19 20 21 12. Any Class Member may appear and show cause, if he, she, or it has any, why the proposed settlement with Defendants should not be approved as fair, reasonable, and adequate, or why a judgment should not be entered thereon; provided, however, that no Person shall be heard or entitled to contest such matters, unless that Person has delivered by 22 hand or sent by first class mail written objections and copies of any papers and briefs such 23 that they are received on or before December 10, 2010, by each of the following: 24 25 26 27 Clerk of the Court Western District of Washington U.S. Courthouse, Lobby Level 700 Stewart Street Seattle, Washington 98101 28 ORDER GRANTING PRELIM. APPROVAL OF SETTLEMENT AND PROVIDING FOR NOTICE No. 2:07-cv-0800-MJP Page 5 of 9 Susman Godfrey L.L.P. Marc M. Seltzer 1901 Avenue of the Stars, Suite 950 Los Angeles, California 90067 Wilson Sonsini Goodrich & Rosati Barry M. Kaplan 701 Fifth Avenue, Suite 5100 Seattle, Washington 98104 Counsel for Plaintiffs and Class Counsel Counsel for Dendreon Corporation 7 McNaul Ebel Nawrot & Helgren PLLC Robert M. Sulkin 600 University Street, Suite 2700 Seattle, Washington 98101 Yarmuth Wilsdon Calfo PLLC Richard C. Yarmuth 818 Stewart Street, Suite 1400 Seattle, Washington 98101 8 Counsel for Mitchell Gold Counsel for David Urdal 1 2 3 4 5 6 9 Any Person who does not make his, her, or its objection in the manner provided in the 10 Notice shall be deemed to have waived such objection and shall forever be foreclosed from 11 making any objection to the fairness or adequacy of the proposed settlement as set forth in 12 the Stipulation, unless otherwise ordered by the Court. 13 14 15 13. 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 funds shall be distributed pursuant to the Stipulation and/or further 16 order(s) of the Court. 17 14. Neither Defendants nor their Related Parties nor counsel for Defendants shall 18 19 20 21 22 have any responsibility for the Plan of Allocation or any application for attorneys’ fees or expenses submitted by Class Counsel or the Class Representatives, and such matters will be considered separately from the fairness, reasonableness, and adequacy of the Settlement. 15. All reasonable expenses incurred in identifying and notifying class members, 23 as well as administering the Settlement Fund, shall be paid as set forth in the Stipulation. In 24 the event the Settlement is not approved by the Court, or otherwise fails to become effective, 25 neither the Class Representatives nor Class Counsel shall have any obligation to repay any 26 amounts incurred or properly disbursed pursuant to ¶¶ 2.3, 2.4, 2.6, or 2.7 of the Stipulation. 27 28 ORDER GRANTING PRELIM. APPROVAL OF SETTLEMENT AND PROVIDING FOR NOTICE No. 2:07-cv-0800-MJP Page 6 of 9 1 16. Neither the Stipulation, nor any of its terms or provisions, nor any of the 2 negotiations or proceedings connected with it, shall be construed as an admission or 3 concession by Defendants of the truth of any of the allegations in the Action, or of any 4 liability, fault, or wrongdoing of any kind. 5 6 7 17. The Court reserves the right to adjourn the date of the Settlement Hearing without further notice to Class Members, and retains jurisdiction to consider all further applications arising out of or connected with the proposed settlement. The Court may 8 approve the Settlement, with such modifications as may be agreed to by the Settling Parties, 9 10 11 12 if appropriate, without further notice to the Class. IT IS SO ORDERED. Dated: November 3, 2010 13 14 A 15 16 Marsha J. Pechman United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PRELIM. APPROVAL OF SETTLEMENT AND PROVIDING FOR NOTICE No. 2:07-cv-0800-MJP Page 7 of 9 1 Presented By: 2 Marc M. Seltzer (admitted pro hac vice) E-mail: mseltzer@susmangodfrey.com Ryan C. Kirkpatrick (admitted pro hac vice) E-mail: rkirkpatrick@susmangodfrey.com SUSMAN GODFREY L.L.P. 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067-6029 Tel: (310) 789-3100 Fax: (310) 789-3150 3 4 5 6 7 13 Drew D. Hansen (WSBA #30467) E-mail: dhansen@susmangodfrey.com Daniel J. Shih (WSBA #37999) E-mail: dshih@susmangodfrey.com Jordan Connors (WSBA #41649) E-Mail: jconnors@susmangodfrey.com SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, WA 98101-3000 Tel: (206) 516-3880 Fax: (206) 516-3883 14 Lead Counsel for Plaintiffs 8 9 10 11 12 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Barry M. Kaplan, WSBA #8661 Email: bkaplan@wsgr.com Douglas W. Greene, WSBA #22844 Email: dgreene@wsgr.com Claire L. Davis, WSBA #39812 Email: cldavis@wsgr.com WILSON SONSINI GOODRICH & ROSATI Professional Corporation 701 Fifth Avenue, Suite 5100 Seattle, WA 98104-7036 Telephone: (206) 883-2500 Facsimile: (206) 883-2699 Bahram Seyedin-Noor (admitted pro hac vice) Email: bnoor@wsgr.com Daniel W. Turbow (admitted pro hac vice) Email: dturbow@wsgr.com L. David Nefouse (admitted pro hac vice) Email: dnefouse@wsgr.com WILSON SONSINI GOODRICH & ROSATI ORDER GRANTING PRELIM. APPROVAL OF SETTLEMENT AND PROVIDING FOR NOTICE No. 2:07-cv-0800-MJP Page 8 of 9 1 2 3 4 Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 Facsimile: (650) 493-6811 Attorneys for Defendants Dendreon Corporation 5 6 7 8 9 10 11 12 Robert M. Sulkin, WSBA No. 15425 Email: rsulkin@mcnaul.com Malaika M. Eaton, WSBA No. 32837 Email: meaton@mcnaul.com MCNAUL EBEL NAWROT HELGREN PLLC 600 University Street, Suite 2700 Seattle, WA 98101 Telephone: (206) 467-1816 Facsimile: (206) 624-5128 Attorneys for Defendant Mitchell Gold 13 14 15 16 17 18 19 20 Richard C. Yarmuth, WSBA No. 4990 Email: yarmuth@yarmuth.com Matthew A. Carvalho, WSBA No. 31201 Email: mcarvalho@yarmuth.com YARMUTH WILSDON CALFO PLLC 818 Stewart Street, Suite 1400 Seattle, WA 98101 Telephone: (206) 516-3800 Facsimile: (206) 516-3888 Attorneys for Defendant David Urdal 21 22 23 24 25 26 27 28 ORDER GRANTING PRELIM. APPROVAL OF SETTLEMENT AND PROVIDING FOR NOTICE No. 2:07-cv-0800-MJP Page 9 of 9
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