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DECLARATION OF ELLEN GUSIKOFF STEWART IN SUPPORT OF MOTION FOR: (1) FINAL APPROVAL OF
CLASS ACTION SETTLEMENT AND APPROVAL OF PLAN OF ALLOCATION; AND (2) AN AWARD OF ATTORNEYS’ FEES AND EXPENSES
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ROBBINS GELLER RUDMAN & DOWD LLP ELLEN GUSIKOFF STEWART (144892) JAMES I. JACONETTE (179565) 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax)
– and – SAMUEL H. RUDMAN 58 South Service Road, Suite 200 Melville, NY 11743 Telephone: 631/367-7100 631/367-1173 (fax)
Class Counsel for Plaintiffs
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOHN R. SWITZER, Individually and on Behalf of All Others Similarly Situated,
Plaintiff,
vs.
W.R. HAMBRECHT & CO., LLC, et al.,
Defendants.
) ) ) ) ) ) ) ) ) ) )
Lead Case No. CGC-18-564904 (Consolidated with No. CGC-18-565324)
CLASS ACTION
DECLARATION OF ELLEN GUSIKOFF STEWART IN SUPPORT OF MOTION FOR: (1) FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND APPROVAL OF PLAN OF ALLOCATION; AND (2) AN AWARD OF ATTORNEYS’ FEES AND EXPENSES
DATE: March 13, 2020 TIME: 10:300 a.m. DEPT: 613 Assigned for all purposes to Judge Teri L. Jackson, Dept. 613 Date Action Filed: 03/09/18
- 2 - DECLARATION OF ELLEN GUSIKOFF STEWART IN SUPPORT OF MOTION FOR: (1) FINAL APPROVAL OF
CLASS ACTION SETTLEMENT AND APPROVAL OF PLAN OF ALLOCATION; AND (2) AN AWARD OF ATTORNEYS’ FEES AND EXPENSES
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I, ELLEN GUSIKOFF STEWART, declare as follows:
1. I am an attorney duly licensed to practice before all of the courts of the State of
California. I am a member of the law firm of Robbins Geller Rudman & Dowd LLP, Class Counsel for
Plaintiffs in the above-entitled action. I have personal knowledge of the matters stated herein and, if
called upon, I could and would competently testify thereto.
2. Attached are true and correct copies of the following exhibits:
Exhibit 1: Declaration of Bjorn I. Steinholt, CFA, dated June 24, 2019;
Exhibit 2: Beaver Cnty. Emps. Ret. Fund, et al. v. Cyan, Inc., et al., No. CGC-14-538355, slip op. (S.F. Super. Ct. Aug. 8, 2019);
Exhibit 3: Brooks v. Capitol Valley Elec. Inc., No. CIV 536903, slip op. (San Mateo Super. Ct. Mar. 7, 2017);
Exhibit 4: Chicago Laborers Pension Fund v. Alibaba Grp. Holding Ltd., et al., No. CIV535692, slip op. (San Mateo Super. Ct. May 17, 2019);
Exhibit 5: In re Ooma, Inc. S’holder Litig., No. CIV536959, slip op. (San Mateo Super. Ct. Oct. 18, 2019); and
Exhibit 6: In re Sunrun, Inc. Shareholder Litig., No. CIV538215, slip op. (San Mateo Super. Ct. Dec. 14, 2018).
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed on December 20, 2019, at San Diego, California.
ELLEN GUSIKOFF STEWART
EXHIBIT 1
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOHN R. SWITZER, Individually and on Behalf of All Others Similarly Situated, Plaintiff, vs. W.R. HAMBRECHT & CO., LLC, et al., Defendants.
) ) ) ) ) ) ) ) ) ) )
Lead Case No. CGC-18-564904 (Consolidated with No. CGC-18-565324)
DECLARATION OF BJORN I. STEINHOLT, CFA
June 24, 2019
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I. INTRODUCTION AND QUALIFICATIONS
1. I am a Managing Director at Caliber Advisors, Inc. (Caliber), a full-service
valuation and economic consulting firm with offices in San Diego, California and Chicago,
Illinois. I have approximately 30 years of experience providing capital markets consulting,
including analyzing and valuing investments. Over the past 15 years, I have been retained on
numerous occasions to provide expert opinions relating to market efficiency, materiality, loss
causation and damages in large and complex securities class actions similar to this litigation. In
China Intelligent Lighting and Electronics, Inc., No. 11-cv-02768 (C.D. Cal.), the court entered
its judgment based on my aggregate damages estimate. In Jaffe v. Household Int’l Inc., et al.,
No. 02-cv-05893 (N.D. Ill.), the court adopted my guidance in calculating pre-judgment interest.
In Novatel Wireless Sec. Litig., No. 08-cv-01689 (S.D. Cal.), the court undertook a rigorous
Daubert analysis of every element of my loss causation and damages methodology and found
that “Steinholt’s testimony on loss causation and damages, based on his event study analysis, is
reasonable and reliable.” In Alan Willis, et al. v. Big Lots, Inc., No. 12-cv-00604 (S.D. Ohio),
the court concluded that “Steinholt has set forth a methodology for later calculating damages on
a class-wide basis. . . . and explained how it is both workable and consistent with Plaintiffs’
theory of liability in this particular case,” and that my damages opinion was “both relevant and
reliable.”
2. Other courts have similarly found my testimony admissible, including in New
England Health, et al. v. Qwest Comm. Int’l Inc., et al., No. 01-cv-01451 (D. Col.), Employer-
Teamsters Joint Council Pension Trust Fund v. America West Holding, et al., No. 99-CV-399
(D. Ariz.), Nursing Home Pension Fund et al. v. Oracle Corporation et al., No. 01-cv-00988
(N.D. Cal.) and Carson, et al v. Neopharm, Inc., et al., No. 02-cv-02976 (N.D. Ill.).
Furthermore, several other courts have cited my testimony in support of their decisions,
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including in Healthsouth Corp. Sec. Litig., No. 03-cv-01501 (N.D. Ala.), Luman v. Anderson, et
al., No. 08-cv-00514 (W.D. Mo.), Abu Dhabi Commercial Bank v. Morgan Stanley & Co., No.
08-CV-7508 (S.D.N.Y.), Smilovits, et al. v. First Solar Inc., et al., No. 12-cv-00555 (D. Ariz.)
and Marcus, et al. v. J.C. Penney Co. Inc., et al., No. 13-cv-00736 (E.D. Tex.).
3. I received a Master of International Business degree from the University of San
Diego and a Bachelor of Science degree in Computer Science and Engineering from California
State University, Long Beach. In addition to my graduate business degree and my engineering
degree, I have earned the professional designation of Chartered Financial Analyst (“CFA”)
awarded by the CFA Institute, and I participate in its continuing education program. The CFA
designation is a qualification for finance and investment professionals focusing on investment
management and securities analysis of common stock, fixed income and other investments. A
summary of my background and qualifications is attached as Exhibit A to this report.
II. OVERVIEW OF ASSIGNMENT
4. I have been retained by Plaintiffs’ counsel to estimate recoverable damages
pursuant to §12 of the Securities Act of 1933 (“1933 Act”) suffered by the purchasers of
Arcimoto, Inc. (“Arcimoto” or the “Company”) common stock in Arcimoto’s September 21,
2017 initial public offering (the “IPO”). My recoverable damages estimate assumes that
Plaintiffs’ factual allegations are true.
III. QUANTIFICATION OF SECTION 12 DAMAGES
5. The 1933 Act provides specific guidance on how to calculate the losses that
plaintiffs may seek to recover pursuant to §12. Specifically, §12(a) of the 1933 Act states:
IN GENERAL.—Subject to [paragraph (2), a person who purchases a security in a transaction exempted by the provisions of section 4(6) may bring an action against an issuer described in paragraph (2)], either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if [such person] no longer owns the security.
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6. Furthermore, §12 of the 1933 Act also provides defendants with an opportunity to
reduce (or eliminate) the losses calculated above by proving that a portion (or all) of the decline
in Arcimoto’s stock price was caused by factors other than the alleged misrepresentations.
Specifically, §12 of the 1933 Act states:
In an action described in subsection (a)(2), if the person who offered or sold such security proves that any portion or all of the amount recoverable under subsection (a)(2) represents other than the depreciation in value of the subject security resulting from such part of the prospectus or oral communication, with respect to which the liability of that person is asserted, not being true or omitting to state a material fact required to be stated therein or necessary to make the statement not misleading, then such portion or amount, as the case may be, shall not be recoverable.
IV. AGGREGATE ARCIMOTO SECTION 12 DAMAGES
7. To quantify aggregate §12 damages, it is necessary to determine the recoverable
loss per share under the statue, and to estimate Class members’ Arcimoto shares’ trading, or
sales, pattern following the IPO.
8. Prior to the IPO, on July 25, 2017, Arcimoto had 12.8 million shares outstanding,
out of which approximately 7.1 million were locked up for six months following the IPO.1
Arcimoto then sold an additional 2,945,657 shares of its common stock in the IPO at $6.50 per
share, totaling $19.15 million.2 By the time this action was filed, on March 9, 2018, Arcimoto
had declined to $3.09 per share. For the purposes of my analysis, I have assumed that
Defendants would not have been able to demonstrate negative causation prior to the first filing of
the complaint on March 9, 2018.
1 Arcimoto Offering Circular, dated October 18, 2017, pages 16, 71.
2 Arcimoto Form 10-K, filed with the Securities and Exchange Commission on March 30, 2018, at page 24. (“During September and October 2017, we issued 2,945,657 shares of common stock in a Regulation A offering at a public offering price of $6.50 per share for net proceeds of approximately $18,087,640 after deducting Underwriter commissions of approximately $1,051,131 and Escrow closing fees of $8,000.”)
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9. As of June 14, 2019, the stock price had declined even further, closing at $2.75
per share. For the purpose of my analysis, I have assumed that the decline after the first
complaint filed in this action, on March 9, 2018, was caused by factors other than the alleged
truth, thereby assuming that the alleged truth was disclosed in the complaint. Consequently, I
have assumed that none of the price decline following March 9, 2018, is recoverable.
10. Based on the above, §12 damages per share for Arcimoto shares purchased in the
IPO and sold prior to March 9, 2018, when the first complaint was filed, is the IPO price ($6.50
per share) less the sales price. For Arcimoto shares sold on or after March 9, 2018, or Arcimoto
shares still retained, §12 damages per share is the IPO price ($6.50 per share) less the greater of
the i) sales price, or ii) $3.09 per share (the closing price when the first complaint was filed). For
Arcimoto shares still owned, I assumed that these shares will be sold in the future at a price equal
to current closing price.
11. To quantify aggregate damages, I developed a two-trader model based on the
assumption that high activity investors made up 20 percent of the shares and 80 percent of the
trading volume, while low activity investors, conversely, made up 80 percent of the shares and
20 percent of the trading volume. Intra-day trading was assumed to account for 60% of the
trading volume. These are commonly used trading model assumptions for stocks listed on
NASDAQ, such as Arcimoto.
12. Based on the above analysis, I estimated aggregate §12 damages in this case of
$7.75 million. Given that my model estimates that many Arcimoto shares are still owned by
Class members, this damages estimate can be reduced if Arcimoto’s stock price increases
substantially following the date of this declaration. This is so because, under the statutory
requirements of §12, damages are limited to the difference between the IPO price and the sales
price (not known for shares not yet sold).
Exhibit A
Bjorn Steinholt, CFA Page 1
Bjorn I. Steinholt, CFA
Caliber Advisors, Inc. 10620 Treena Street, Suite 230, San Diego, CA 92131
Telephone: (858) 549-4900 Facsimile: (858) 549-9317 [email protected]
Employment History Caliber Advisors, Inc. Managing Director (2014 to present) Caliber Advisors is a full-service valuation and economic consulting firm. Mr. Steinholt provides a broad range of capital markets consulting, including financial and economic analyses relating to mergers and acquisitions, initial public offerings, fairness opinions, structured finance, portfolio risk management, market structure, securities analysis and financial valuations, including litigation consulting and expert testimony relating to the economic issues that arise in large complex securities fraud cases.
Financial Markets Analysis, LLC Principal (2000 to 2014) Financial Markets Analysis was a financial valuation and economic consulting firm that primarily focused on providing economic analyses and expert testimony relating to securities analysis and financial economics. Mr. Steinholt provided capital markets consulting, financial valuation services, and various litigation consulting and expert testimony in large complex securities fraud cases. Business Valuation Services, Inc. (subsidiary of CBIZ, Inc.) Principal (1999 -2000) Vice President (1998-1999) Business Valuation Services was a national full-service financial valuation firm. Mr. Steinholt provided valuations of businesses and financial securities, including common stock, warrants, options, preferred stock, debt instruments and partnership interests, as well as intangible assets such as patents, trademarks, software, customer lists, work-force and licensing agreements. Mr. Steinholt also provided litigation support in shareholder disputes.
Bjorn Steinholt, CFA Page 2
Princeton Venture Research, Inc. Senior Vice President (1996-1998) Vice President (1993-1996) Financial Analyst (1990-1993) Princeton Venture Research was a venture capital, investment banking and economic consulting firm. Mr. Steinholt provided various financial and economic analyses for venture capital, investment banking and consulting assignments, including shareholder disputes. Among other things, he helped identify and evaluate prospective emerging technology companies in need of venture capital funding.
University of San Diego Research Assistant, Graduate Fellow (1988-1989) Mr. Steinholt assisted with research regarding the performance of international equity markets following the 1987 stock market crash. He also developed computer programs related to the portfolio theory, including risk minimization and portfolio optimization based on quadratic programming techniques.
Educational Background
• Chartered Financial Analyst
CFA Institute, 1997
• Master of International Business University of San Diego, 1989
• Sivilingeniør - (Norwegian graduate level engineering designation) University of Trondheim, Norway, 1987
• Bachelor of Science in Computer Science, Computer Science and Engineering California State University, Long Beach, 1987
Professional Affiliations
• Member, CFA Institute • Member, Financial Analysts Society of San Diego
Bjorn Steinholt, CFA Page 3
Publications
“Price Impact Analysis ‒ Where The Halliburton Court Erred,” Expert Analysis Section, Law360 (August 25, 2015).
Testimony
In re: New England Health, et al v. Qwest Comm Intl Inc, et al., Case No. 1:01-cv-01451 (United States District Court for the District of Colorado). QwestDex Hearing Testimony relating to Section 11 damages: January 28, 2003. Mr. Steinholt was retained to opine on potential Section 11 damages. In re: King, et al v. CBT Group PLC, et al., Case No. 98-CV-21014 (United States District Court, Northern District of California, San Jose Division). Deposition Testimony: November 5, 2003. Mr. Steinholt was retained to opine on economic issues relating to market efficiency, materiality, loss causation and Section 10(b) damages. In re: Employer-Teamsters Joint Council Pension Trust Fund v. America West Holding, et al., Case No. 99-CV-399 (United States District Court, District of Arizona). Deposition Testimony: October 28, 2004. Mr. Steinholt was retained to opine on economic issues relating to market efficiency, materiality, loss causation and Section 10(b) damages. In re: Howard Yue vs. New Focus, Case No. CV808031 (Superior Court of the State of California, County of Santa Clara). Deposition Testimony: July 28, 2005. Mr. Steinholt was retained to opine on the potential damages and other economic issues relating to the defendants’ acquisition of Globe Y.Technology, Inc. In re: Howard Yue vs. New Focus, Case No. CV808031 (Superior Court of the State of California, County of Santa Clara). Deposition Testimony: August 9, 2005. Mr. Steinholt was retained to opine on the potential damages and other economic issues relating to the defendants’ acquisition of Globe Y.Technology, Inc. In re: AB Liquidating Corp., fka Adaptive Broadband Corporation v. Ernst & Young, LLP (American Arbitration Association). Arbitration, March 23, 2006. Mr. Steinholt was retained to analyze the share turnover in Adaptive Broadband Corporation in connection with the liquidation of the company’s assets. In re: AOL Time Warner, Inc. Securities and “ERISA” Litigation, Consolidated Opt-Out Action, Case No. 1:06-cv-00695 (United States District Court, Southern District of New York). Deposition Testimony: September 28, 2006. Mr. Steinholt was retained to opine on materiality and loss causation in a Section 11 context.
Bjorn Steinholt, CFA Page 4
In re: Ohio Public Employees Retirement System vs. Richard Parsons, et al., Case No. 03-CVH07-7932 (Court of Common Pleas of Franklin County, Ohio). Deposition Testimony: March 22, 2007. Mr. Steinholt was retained to quantify Section 11 damages for various institutional investors. In re: Ryan v. Flowserve Corporation et al., Case No. 3:03-cv-01769 (United States District Court, Northern District of Texas, Dallas Division). Deposition Testimony: June 15, 2007. Mr. Steinholt was retained to opine on economic issues relating to market efficiency, materiality, loss causation and Section 10(b) damages. In re: Nursing Home Pension Fund et al v. Oracle Corporation et al., Case No. 3:01-cv-00988 (United States District Court, Northern District of California). Deposition Testimony: July 2, 2007. Mr. Steinholt was retained to opine on economic issues relating to market efficiency, materiality, loss causation and Section 10(b) damages. In re: Carson, et al v. Neopharm Inc, et al., Case No. 1:02-cv-02976 (United States District Court, Northern District of Illinois, Eastern Division). Deposition Testimony: January 22, 2008. Mr. Steinholt was retained to opine on economic issues relating to market efficiency, materiality, loss causation and Section 10(b) damages. In re: HealthSouth Corporation Securities Litigation, Case No. 2:03-cv-01501-S (United States District Court, Northern District of Alabama, Southern Division). Deposition Testimony: February 1, 2008. Mr. Steinholt was retained to opine on economic issues relating to market efficiency, materiality and loss causation. In re: Robert Kelleher, et al. v. ADVO, Inc., et al., Case No. 3:06-cv-01422 (United States District Court, District of Connecticut). Deposition Testimony: September 16, 2008. Mr. Steinholt was retained to opine on economic issues relating to market efficiency, materiality and loss causation in a class certification context. In re: HealthSouth Corporation Securities Litigation, Case No. 2:03-cv-01501-S (United States District Court, Northern District of Alabama, Southern Division). Deposition Testimony: January 30, 2009. Mr. Steinholt was retained to opine on economic issues relating to market efficiency, materiality and loss causation. In re: Huffy Corporation Securities Litigation, Case No. 3:05-cv-00028 (United States District Court, Southern District of Ohio, Western Division (at Dayton)). Deposition Testimony: November 12, 2009. Mr. Steinholt was retained to opine on economic issues relating to market efficiency, materiality, loss causation and potential damages for lead plaintiff.
Bjorn Steinholt, CFA Page 5
Lori Weinrib v. The PMI Group, Inc. et al., Case No. 3:08-cv-01405, (United States District Court for the Northern District of California). Deposition Testimony: June 14, 2010. Mr. Steinholt was retained to opine on economic issues relating to market efficiency in a class certification context. Kenneth McGuire, et al. v. Dendreon Corporation, et al., Case No. 2:07-cv-00800 (United States District Court, Western District of Washington at Seattle). Deposition Testimony: June 18, 2010. Mr. Steinholt was retained to opine on economic issues relating to market efficiency, materiality, loss causation and Section 10(b) damages. City of Livonia Employees' Retirement System v. The Boeing Company et al., Case No. 1:09-cv-07143, (United States District Court, Northern District of Illinois, Eastern Division). Deposition Testimony: November 5, 2010. Mr. Steinholt was retained to opine on economic issues relating to market efficiency in a class certification context. Maureen Backe, et al. v. Novatel Wireless, Inc., et al., Case No.08-cv-1689 (United States District Court, Southern District of California). Deposition Testimony: February 1, 2011. Mr. Steinholt was retained to opine on economic issues relating to market efficiency, materiality, loss causation and Section 10(b) damages. Paul Luman, et al. v. Paul G. Anderson, et al. (FCStone Group Securities Litigation), Case No. 4:08-cv-00514 (United States District Court, Western District of Missouri, Western Division). Deposition Testimony: January 5, 2012. Mr. Steinholt was retained to opine on economic issues relating to market efficiency in a class certification context. T Grocery & Food Employees Welfare Fund v. Regions Financial Corporation et al., Case No. 2:10-cv-02847 (United States District Court, Northern District of Alabama). Deposition Testimony: May 8, 2012. Mr. Steinholt was retained to opine on economic issues relating to market efficiency in a class certification context. City of Pontiac General Employee's Retirement System v. Lockheed Martin Corporation et al., Case No. 1:11-cv-05026, (United States District Court, Southern District of New York). Deposition Testimony: May 18, 2012. Mr. Steinholt was retained to opine on economic issues relating to market efficiency in a class certification context. United Food and Commercial Workers Union et al v. Chesapeake Energy Corporation et al., Case No. 5:09-cv-01114 (United States District Court, Western District of Oklahoma). Deposition Testimony: August 14, 2012. Mr. Steinholt was retained to opine on loss causation in a Section 11 context.
Bjorn Steinholt, CFA Page 6
City of Pontiac General Employee's Retirement System v. Lockheed Martin Corporation et al., Case No. 1:11-cv-05026, (United States District Court, Southern District of New York). Deposition Testimony: October 4, 2012. Mr. Steinholt was retained to opine on economic issues relating to market efficiency, materiality, loss causation and Section 10(b) damages. Western Pennsylvania Electrical Employees Pension Fund, et al. v. Dennis Alter, et al., (Advanta International Inc. Securities Litigation) Case No. 2:09-cv-04730 (United States District Court, Eastern District of Pennsylvania). Deposition Testimony: May 1, 2013. Mr. Steinholt was retained to opine on economic issues relating to market efficiency in a class certification context. Southern Avenue Partners LP v. The Perot Family Trust et al., (Parkcentral Global Litigation) Case No. 3:09-cv-00765 (United States District Court, Northern District of Texas, Dallas Division). Deposition Testimony: May 6, 2013. Mr. Steinholt was retained to opine on the calculation of potential damages. Maureen Backe, et al. v. Novatel Wireless, Inc., et al., Case No. 08-cv-1689 (United States District Court, Southern District of California). Deposition Testimony: June 25, 2013. Mr. Steinholt was retained to opine on economic issues relating to market efficiency, materiality, loss causation and Section 10(b) damages. Garden City Employees' Retirement System v. Psychiatric Solutions, Inc. et al., Civil Action No. 3:09-cv-00882 (United States District Court, Middle District of Tennessee, Nashville Division). Deposition Testimony: June 6, 2014. Mr. Steinholt was retained to opine on economic issues relating to market efficiency, materiality, loss causation and Section 10(b) damages. City of Pontiac General Employees' Retirement System v. Wal-Mart Stores, Inc. et al., Case No. 12-cv-05162 (United States District Court, Western District of Arkansas (Fayetteville)). Deposition Testimony: November 9, 2015. Mr. Steinholt was retained to opine on economic issues relating to market efficiency and the calculation of class-wide damages in a class certification context. Alan B. Marcus, et al. v. J.C. Penney Company, Inc., et al., Case No. 13-CV-00736 (United States District Court, Eastern District of Texas (Tyler Division)). Deposition Testimony: March 4, 2016. Mr. Steinholt was retained to opine on economic issues relating to market efficiency and the calculation of class-wide damages in a class certification context. Basis Yield Alpha Fund (Master) v. Goldman Sachs Group, Inc., et al., Index No: 652996/2011 (Supreme Court of the State of New York, County of New York). Deposition Testimony: April 1, 2016. Mr. Steinholt was retained to analyze loss causation related to two CDO-squared securities purchased by Basis Yield Alpha Fund (Master) from Goldman Sachs.
Bjorn Steinholt, CFA Page 7
John Sender v. Franklin Resources, Inc., Case No. 11-cv-03828 (United States District Court, Northern District of California). Deposition Testimony: June 17, 2016. Mr. Steinholt was retained to analyze ERISA damages related to plaintiff’s participation in defendant’s Employee Stock Ownership Plan. Alan Willis, et al. v. Big Lots, Inc., et al., Case No. 12-CV-00604 (United States District Court, Southern District of Ohio (Columbus)). Deposition Testimony: July 21, 2016. Mr. Steinholt was retained to opine on economic issues relating to market efficiency and the calculation of class-wide damages in a class certification context. In re: Beaver County Employees Retirement Fund vs. Cyan, Inc., et al., Lead Case No. CGC-14-538355 (Superior Court of the State of California, County of San Francisco). Deposition Testimony: October 14, 2016. Mr. Steinholt was retained to opine on potential damages pursuant to §§11 and 12 of the Securities Act of 1933. In Re Willbros Group, Inc. Securities Litigation, Case No. 14-CV-3084 (United States District Court, Southern District of Texas, Houston Division). Deposition Testimony: April 14, 2017. Mr. Steinholt was retained to opine on economic issues relating to market efficiency and the calculation of class-wide damages in a class certification context. Shankar v. Imperva, Inc. et al., Case No. 14-cv-01680 (United States District Court, Northern District of California (Oakland)). Deposition Testimony: May 5, 2017. Mr. Steinholt was retained to opine on economic issues relating to market efficiency and the calculation of class-wide damages in a class certification context. Glitz et al. v. Sandridge Energy Inc et al., Case No. 12-cv-01341 (United States District Court, Western District of Oklahoma). Deposition Testimony: May 3, 2018. Mr. Steinholt was retained to opine on economic issues relating to market efficiency and the calculation of class-wide damages in a class certification context. Gary Curran, et al. v. Freshpet, Inc., et al.. Case No. 16-cv-02263 (United States District Court, District of New Jersey). Deposition Testimony: July 25, 2018. Mr. Steinholt was retained to opine on economic issues relating to market efficiency and the calculation of class-wide damages in a class certification context. Megan Villella , et al. v. Chemical & Mining Co. of Chile, Inc., et al., Case No. 15-cv-02106 (United States District Court, Southern District of New York). Deposition Testimony: November 9, 2018. Mr. Steinholt was retained to opine on economic issues relating to market efficiency and the calculation of class-wide damages in a class certification context.
EXHIBIT 2
EXHIBIT 3
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FRANK E. MAYO/State Bar #42972 Law Office of Frank E. Mayo 4962 El Camino Real, Ste. 104 Los Altos, CA 94022
‘
(650) 964—8901 RECEIVED
FEB 2 1 201? ,
CLERK ox: THE supemon COURT \ '
SAN MATEO COUNTY
FILED SAN MATEO COUNTY
MAR 0 7 2017
Clerk of h SH F iorCourt
By 1% DEPUTY ‘L
Attorney for Plaintiffs
ClV536903
JUD
Judgment
(“illmummuumnn«mu‘4 V. "i
I
5.4,
IN THE SUPERIOR COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
Case No. CIV 536903
‘(E-ROFOS'E’DV'JUDGMW M ORDER GRANTING FINAL APPROVAL TO CLASS ACTION SETTLMENT
)
JACOB BROOKS, )
)
)
)
)
vs. ) AND AWARDING ATTONEY '
)
)
)
)
)
)
)
Plaintiff,
FEES, LITIGATION COSTS, SEVICE AWARD AND CASE ADMINISTRATORS FEES
'
CAPITOL VALLEY ELECTRIC INC. and DOES 1-50 Inclusive,
Defendants. Assigned to Complex Dept 2 for all purposes
Plaintiff’s Motion for an Order granting Final
Approval to the class action settlement in this matter came on
regularly for hearing this seventh day of March 2017. Frank E
Mayo having appeared as class counsel and Larry Kazanjaian having
appeared as counsel for Defendant Capitol Valley Electric, Inc.
The court finds as follows:
1. In accordance with the terms of the Preliminary Approval
Order, Class Members with the exception of Armando BuenaVentura,
have been given notice of the terms of the Settlement, including ATTBRNETDFEBgDANDAEOETSyGANDNERANTINBVAESERVICESAWAEEDOTOSEEASEMEEPREégNTRTIQE
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its provision for Attorney Fees, Costs of Eitigation and a
Service Award to the Class Representative, and have had the
opportunity to comment on or object to the Settlement's
provisions for Attorney Fess, Litigation Costs and or the Service
Award and case administrators fees.
2 Th: court finds 1_at the‘t ass m: her Arm.two BuihaVenfura,
did got renei ~ nwtic; of r is clays aItion and therefmre e_i;
not boaid by a-y orke or judiwent eniwred by uiis co"'t in this
class aétion pwoceedinu.
3 Yaxaya Yang has filed a late claim which was allowed by the
case administrator. Said claim is allowed.I
4. The claims of all class members receiving notice of this class action by the judgment entered in this action release all claims they have for unpaid overtime prejudgment interest and
statutory or civil penalties arising out of events during the
class period June 12, 2012 through June 12, 2016 are released
5. Jacob Brooks by the by the judgment.in this action release
all claims he has against Capitol Valley Electric from all claims he has, know or unknown as of March 7, 2017.
6. The court finds there were no objectionslmade to the
settlement and no class member has opted out of the settlement.
7. The payment of Attorney Fees in the amount of One Hundred
Ten Thousand Eight Hundred Sixty Eight Dollars for all past and
remaining work in accordance with the terms of the Settlement is
fair and reasonable under the circumstances.
8. The amount of the attorney fee award is Thirty Three percent
(33%) of the common fund after deduction of cost of litigation and less than Plaintiff’s Counsel's lodestar in this case.
9. Plaintiff counsel has incurred litigation costs in excess
£§$8§RE§DinEB§DE§oA86§B§IFGAEBNéfiAfiJFEfiBVfiZLsEflv‘ftfisfiwfififiBOE‘OSEEEsEMEEFRfiEfiiRHGE
10
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13
14
15
16
17
18
19
2O
21
22
23
24
25
26
27
28
of Four Thousand Eight Hundred and Ninety Five Dollars.
10. An incentive award Plaintiff in the sum of Fifteen Thousand
Dollars is fair and reasonable in View of his work performed in
this matter and damages incurred as lead plaintiff in thisV
action.
11 CAC Services LLC has earned fees of Ten Thousand Dollars as
case administrator.
12. The Court approves the Plan of Allocation set forth in the
attachment to this Order.'
IT IS THEREFORE HEREBY ORDERED AS FOLLOWS:
The parties shall perform each and every obligation
required by them in accordance with the terms of the settlement
agreement dated November 7, 2016 and the case administrator shall
distribute the net settlement funds in accord pursuant the Plan
of Allocation attached to this Order
Dated this Zfflday of March 2017
Hon. MaffE’Weiner Judge
AE¥8EQE§DiEEEDEEDAfiééPélfGAEBNékAM€133nsERvEEésfiwfifififioli’oSEfigéMfifiqéREéEfi’fiRv
PLAN OF ALLOCATION
DEFINED TERMS
For the purpose of this plan of allocation, the following definitions apply to this allocation.
Following definitions are added:
1. Participating Class Members means all electricians, electrician helpers and laborers employed .by Capitol Valley Electric at any time between January 12, 2012 and January 12, 2016 who have received notice of the class action in accordance with the Class Certification Orders entered by the Superior Court of California, County of San Mateo in the class action # CIV 536903 Brooks V Capitol Valley Electric Inc. and have submitted a claim claims within the time permitted or have submitted a late claim which has been allowed
2. Settlement means the sum of $337,500 to be paid by Capitol Valley Electric as a lump sum settlement
3. Lead Plaintiff means Jacob Brooks.
4. Class or Case Administrator means CAC Services Group LLC.
5. Net Settlement Fund means the settlement amount less class counsel fees, incentive award to lead plaintiff, CA Service s Group LLC fees'and litigation costs as allowed by the Superior Court of California county of San Mateo action.
6. Distribution means payment of the Net Settlement Fund means payment to Participating Class Members and shall be pursuant to this plan of distribution.
7. Distribution Lists means a list containing the names of each Participating Class member and the calculation of the participating class members pro rata share of the Net Settlement Fund before withholding of state, federal and local taxes.
PLAN OF ALLOCATION
8. Undistributed Funds means distributions to class members by payroll checks not Negotiated by class members within sixty days of mailing
CALCULATIONS
The settlement shall be paid as follows:
A. to lead plaintiff $15,000.00 B. to CAC Services LLC 10,000.00 C. to CLWDA 7 500.00 D to litigation costs 4,895.00 E to Class Counsel 110,868.00 F. to the net settlement fund 189,237.00
The Net Settlement fund shall be distributed to Participating class members as set forth in Attachments A. This allocation results in payment to Participating Class Members of approximately 70% of their unpaid overtime as of the date of distribution , June 15, 2017
All payments made to participating class members shall be allocated 50% to unpaid overtime compensation and 50% to penalties.
Distribution shall be by the Class Administrator subject to the direction and control of The Superior Court of San Mateo County and shall be accomplished within 7 calendar days of receipt of all settlement funds which shall be paid in two installments. The first of which shall be deposited by Capitol Valley Electric on or before March 14, 2017 and the final sum within 90 days of the court granting final approval to the settlement.
Settlement checks shall have applicable Federal State and Local Taxes '
withheld from that portion of the settlement due as wages to each participating class member.
Any portion of the settlement fund not distributed as class counsel fees, litigation expenses or a incentive award to lead plaintiff shall be distributed on a pro rata basis to participating class members.
Any check sent a participating class member which remains uncashed for a period of sixty days from the date it was issued shall be voided and not re issued.
The net settlement funds shall be distributed by the class administrator in accord with schedule A. attached
PLAN OF ALLOCATION
BRANDON A. THORP
FERNANDO M. MEDINA
M. GUTIERRIZ
LIONELA. BARRERA
AXAYA YANG
w VOGEL
R KNOOP
C. MURILLO
M. LOPEZ
DUB
J. ROSADO
PALAMARCHUK
FURlOSl
D. ALVARE
M. FEJERAN
MENDEZ
BUCHER
L JONES
J. LESTER
J. STONE
o. CABRERA-LUCERO
G. PEYSER
H. CARROLL
J. SHERMAN
M. GARCIA
E. FERNANDIZ TELLEz
E. HANSON
w. COLLINS
HUBER.
MCTAGGART
R. BELDEN
VID s. PUCKET .
A.
D. JORDAN
A SHELL
IBARRA HERNANDEZ
ZESATI
A.
s. GOEBEL
HOUSE
TAJ MAYNARD
CERNA
A. KERSEY
A. GRANT $540.00 <62 on Sam nn (2 1116 no
400.00
<Ann mm
43
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(A 7:22 71 C1 ”an o1
VICKER
H. DOUGLAS AREVALO
INGOMAR A RAIGOZA-RUIZ
D. GOMEZ
W. BROOKS
D. LEE
D YOUNG
D. CUMMINGS
STEPHENS
A. KERSEY
w. TASH
A. FRIEDMAN
F. PELLEGRINO
MICHAEL BARBOUR
E. BENSON
A CARRILLO CRUZ
c LUNA
H. DYRDAHL
J. CLARK
M. BRYANT
PETERSON
E ADAMS
D SIMMONS JR.
E. PORTER
K. DEVONT
WRENCE C. JOHNSON
PATRICK
R. MURILLO RAMIREZ
AVILADIAZ
J. PERRY
TI'HEW J. MESSANO '
C. mm D. HAYES
12022455 G VALERIO
12022378 J. TALTON
12021741 LATHOUWERS
12022497 A. VISAIRO
THANIEL W. STUCKY
L MARION
A. KOKHANETS
AMADOR
Z. SANCHEZ
LOPEZ
E MIDDLETON
SUIT
12021132
12021580
12022021
12021160
12021167
12021097
12021125
426
1
PEDRO J. MACIEL
RENE N. TORRES
RENE VALLESTEROS
mCARDOCANAU5
NCARDOG.CARDONA
RICARDO M. GONZALEZ
ROBERTJ MESSANO
ROBERT SMITH
ROBERTMLRKCOBUONO
ARGUEEAV
D.VVARD
K.RAYHELD
KsM ULLER
RAhAIREZ
M.BARBER
BEDOLU¥GARUA
AJflNSON
F.OSTATNIK
SBONNER
ANZA F. BOWMAN
S.BANKS
BAUER
JGAUA
{‘A34DS1 33:1}
. 4.;
Sum
Fees
Costs
LWDA (PAGA Penalties)
~ Fee
Administration Costs
Employer Taxes
Net Settlement Sum . Difference
Minimum Payment
Maximum Payment
Payment
Median Payment
oral Number of Checks Issued
{$34051 83:1}
EXHIBIT 4
EXHIBIT 5
1
2
3
4
5
6
7
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
1 o In re OOMA, INC. SHAREHOLDER LITIGATION .
) Lead Case No. CIV536959 ) )
-------- --- ---) 11 CLASS ACTION
12 This Document Relates To: ) ) ) )
JUDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT 13 ALL ACTIONS.
14 _______ _ ___ _ __ )
Complex Case
15 Assigned for All Purposes to Hon. Gerald J. Buchwald, Dept. 10
16
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18
19
20
21
22
23
24
25
26
27.
28
TIJDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT . t\ii 10 \
1 WHEREAS, the Court is advised that the Parties, 1 through their counsel, have agreed, subject to
2 Court approval following notice to the Class and a hearing, to settle this Action upon the terms and
3 conditions set forth in the Stipulation of Settlement dated May 15, 2019 (the "Stipulation" or
4 "Settlement"); and
5 WHEREAS, on June 24, 2019, the Court entered its Order Preliminarily Approving Settlement
6 and Providing for Notice, which preliminarily approved the Settlement, and approved the form and
7 manner of notice to the Class of the Settlement, and said notice has been made, and the fairness hearing
8 having been held; and
9 NOW, THEREFORE, based upon the Stipulation and all of the filings, records and proceedings
10 herein, and it appearing to the Court upon examination that the Settlement set forth in the Stipulation is
11 fair, reasonable and adequate, and upon a Settlement Fairness Hearing having been held after notice to
12 the Class of the Settlement to determine if the Settlement is fair, reasonable, and adequate and whether
13 the Judgment should be entered in this Action;
14
15
THE COURT HEREBY FINDS AND CONCLUDES THAT:
A. The provisions of the Stipulation, including definitions of the terms used therein, are
16 hereby incorporated by reference as though fully set forth herein.
17 B. This Court has jurisdiction of the subject matter of this Action and over all of the Parties
18 and all Class Members for purposes of the Settlement.
19 C. The form, content, and method of dissemination of notice given to the Class was
20 adequate and reasonable and constituted the best notice practicable under the circumstances, including
21 i:qdividual notice to all Class Members who could be identified through reasonable effort.
22 D. Notice, as given, complied with the requirements of California law, satisfied the
23 requirements of due process, and constituted due and sufficient notice of the matters set forth herein.
24
As used herein, the term "Parties" means Plaintiff and Class Representative Stan Kaye and 25 individual plaintiffs Michael Barnett and Harrison Wise (collectively c'Plaintiffs''), on behalf of
26 themselves and the Class, and Defendants Ooma, Inc. Eric B. Stang Ravi Narula, James Wei, Peter J. Goettner Alison Davis Andrew H. Galligan, Russell Mann, Sean N. Parker, WilliamD. Pearce Credit
27 Suisse Securities (USA) LLC Merrill Lynch, Pierce, Fenner & Smitli'lncorporated, JMP Securities LLC, William Blair & Company L.L.C. and Wunderlich Securities, Inc. (collectively the
28 ccDefendants") by their respective counsel.
JUDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT ~t>\ °\ %
_l
2
E. The Settlement, as set forth in the Stipulation, is fair, reasonable, and adequate.
(i) The Settlement was negotiated at arm's length by Plaintiffs on behalf of the Class
3 and by Defendants, all of whom were represented by highly experienced and skilled counsel. The case
4 settled only after, among other things: (a) a mediation conducted by an experienced mediator who was
5 familiar with this Action; (b) the exchange between the Plaintiffs and Defendants of detailed mediation
6 statements prior to the mediation which highlighted the factual and legal issues in dispute; ( c) follow-up
7 negotiations between the Plaintiffs and Defendants with the assistance of the mediator; (d) Plaintiffs'
8 Counsel's extensive investigation, which included, among other things, a review of Ooma's press
9 releases, U.S. Securities and Exchange Commission filings, analyst reports, media reports, and other
10 publicly disclosed reports and information about the Defendants; ( e) the drafting and submission of
11 detailed complaints; (f) extensive motion practice; (g) the review and analysis of over 14,000 pages of
12 non-public documents produced by Defendants and third parties; and (h) briefing Plaintiffs' motion for
13 class certification. Accordingly, both the Plaintiffs and Defendants were well-positioned to evaluate the
14 settlement value of this Action. The Stipulation has been entered into in good faith and is not collusive.
15 (ii) If the Settlement had not been achieved, both Plaintiffs and Defendants faced the
16 expense, risk, and uncertainty of extended litigation. The Court takes no position on the merits of either
17 Plaintiffs' or Defendants' arguments, but notes these arguments as evidence in support of the
18 reasonableness of the Settlement.
19 F. Plaintiffs and Plaintiffs' Counsel have fairly and adequately represented the interest of
20 the Class Members in connection with the Settlement.
21 G. Plaintiffs, all Class Members, and Defendants are hereby bound by the terms of the
22 Settlement set forth in the Stipulation.
23 IT IS HEREBY ORDERED THAT:
24 1. The Settlement on the terms set forth in the Stipulation is finally approved as fair,
25 reasonable, and adequate. The Settlement shall be consummated in accordance with the terms and
26 provisions of the Stipulation. The Parties are to bear their own costs, except as otherwise provided in
27_ the Stipulation.
28
JUDGMENT AND ORDER GRANTING FINAL ~PROV AL OF CLASS ACTION SETTLEMENT
.1 2 . All Released Parties as defined in the Stipulation are released in accordance with, and as
2 defined in, the Stipulation.
3 3. Upon the Effective Date, Plaintiffs and each Class Member shall be deemed to have, and
4 by operation of this Judgment shall have, fully, finally, and forever released, relinquished, and
5 discharged all Released Claims against the Released Parties, whether or not such Class Member
6 executes and delivers a Proof of Claim and Release.
7 4. Upon the Effective Date, each of the Released Parties shall be deemed to have, and by
8 operation ofthis Judgment shall have, fully, finally, and forever released Plaintiffs, Plaintiffs' Counsel,
9 and each and all of the Class Members from all Released Defendants' Claims.
10 5. All Class Members who have not objected to the Settlement in the manner provided in
11 the Notice of Proposed Settlement of Class Action ("Notice") are deemed to have waived any
12 objections by appeal, collateral attack, or otherwise.
13 6. All Class Members who have failed to properly submit requests for exclusion (requests
14 to opt out) from the Class are bound by the terms and conditions of the Stipulation and this Judgment.
15 7. The 'requests for exclusion by the persons or entities identified in Exhibit A to this
16 Judgment are accepted by the Court.
17 8. All other provisions of the Stipulation are incorporated into this Judgment as if fully
18 rewritten herein.
19 9. Plaintiffs and all Class Members are hereby barred and enjoined from instituting,
20 commencing, maintaining, or prosecuting in any court or tribunal any of the Released Claims against
21 any of the Released Parties.
22 10. Neither the Stipulation nor the Settlement, nor any act performed or document executed
23 pursuant to or in furtherance of the Stipulation or the Settlement:
24 (a) Shall be offered or received against Defendants as evidence of, or evidence in
25 support of, a presumption, concession, or admission with respect to any liability, negligence, fault, or
26 wrongdoing, or in any way referred to for any other reason as against Defendants, in any civil, criminal,
27. or administrative action or proceeding, other than such proceedings as may be necessary to effectuate
28
- 4 -JUDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT 10
· 1 the provisions of the Stipulation; however, Defendants may refer to it to effectuate the liability
2 protection granted them hereunder;
3 (b) Shall be construed as or received in evidence as a:n admission, concession, or
4 presumption against Plaintiffs or any of the Class Members that any of their claims are without merit, or
5 that any defenses asserted by Defendants have any merit, or that damages recoverable in this Action
6 would have exceeded the Settlement Fund; and
7 ( c) Notwithstanding the foregoing, Defendants, Plaintiffs, Class Members and/ or the
8 Released Parties may file the Stipulation and/or this Judgment in any action that may be brought against
9 them in order to support a defense or counterclaim based on principles of res judicata, collateral
10 estoppel, release, good faith settlement, judgment bar or reduction or any other theory of claim
11 preclusion or issue preclusion or similar defense or counterclaim.
12 11. The Court hereby finds and concludes that due and adequate notice was directed to all
13 Persons and entities who are Class Members advising them of the Plan of Allocation and of their right
14 to object thereto, and a full and fair opportunity was accorded to all Persons and entities who are Class
15 Members to be heard with respect to the Plan of Allocation.
16 12. The Court hereby finds and concludes that the formula for the calculation of the claims
17 of Authorized Claimants, which is set forth in the Notice sent to Class Members, provides a fair and
18 reasonable basis upon which to allocate the proceeds of the Net Settlement Fund established by the
19 Stipulation among Class Members, with due consideration having been given to administrative
20 convenience and necessity.
21 13. Nothing in the Settlement restricts the ability of any Party to advocate in favor of or
22 against the applicability of any offset to any claims asserted in any other action based on any amount
23 paid to Authorized Claimants through the Settlement.
24 14. The Court hereby awards Plaintiffs' Counsel attorneys' fees of 30% of the Settlement
25 Fund, or $2,595,000, plus Plaintiffs' Counsel's expenses in the amount of$137,168.72, together with
26 the interest earned thereon for the same time period and at the same rate as that earned on the
27 Settlement Fund until paid. The Court finds that the amount of fees awarded is appropriate and that the
28
JUDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT \0\ I
1 amount of fees awarded is fair and reasonable given the contingent nature of the case and the substantial
2 risks of non-recovery, the time and effort involved, and the result obtained for the Class.
3 15. The awarded attorneys' fees and expenses and interest earned thereon shall immediately
4 be paid to Class Counsel from the Settlement Fund subject to the terms, conditions, and obligations of
5 the Stipulation, which terms, conditions, and obligations are incorporated herein.
6 16. Payment is awarded to Plaintiff in the amount of $10,000. Such payment is appropriate
7 considering his active participation as Plaintiff and Class Representative in this Action, as attested to by
8 his declaration submitted to the Court. Such payment is to be made from the Settlement Fund.
9 17. In the event that the Stipulation is terminated in accordance with its terms: (i) this
10 Judgment shall be rendered null and void and shall be vacated nunc pro tune; and (ii) this Action shall
11 proceed as provided in the Stipulation.
12 18. Without affecting the finality of this Judgment in any way, this Court retains continuing
13 jurisdiction over: (a) implementation of this Settlement and any award or distribution of the Settlement
14 Fund, including interest earned thereon; (b) disposition of the Settlement Fund; ( c) hearing and
15 determining applications for attorneys' fees, interest, and expenses in the Action; and ( d) all Parties
16 hereto for the purpose of construing, enforcing, and administrating the Stipulation.
17
18
19
20
21
22
23
24
25
26
27
28
DATED: OCT 1 8 2019 THE HONORAB E GERALD J. BUCHWALD JUDGE OF THE SUPERIOR COURT
JUDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT ,ol fj/ I
EXHIBIT A
I 1ilt~ ,~h"!b
Exclusion Cover Page
Case Name: Ooma Securities Litigation
Case Code: OOS
00@:@~DW~@ ~ SEP 1 3 20.9
CLAIMS CENTER
Exclusion Deadline: September 13, 2019 (Postmark Date)
Name of Person Filing Exclusion: Maurice L Smith
r ~ To ~~ e~~ ~ -rcte CJ..M~ ,~ ~ Fot..1-0\A.l\.l\ll:::, ~~:
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Exclusion Cover Page
Case Name: Ooma Securities Litigation
Case Code: OOS
CLAIMS CENTER
Exclusion Deadline: September 13, 2019 (Postmark Date)
Name of Person Filing Exclusion: Matthew C Anderson MCK Properties, LLC
Im MCK PROPERTIES, LLC
September 6, 2019
Claims Administrator c/o Gilardi & Co. LLC
3301 Kerner Blvd San Rafael, CA 94901
Dear Claims Administrator
s,bJect: Optin1 Oat
To exclude yowselffrom the Class, you must send a signed letter by mail saying that you want to be excluded from the
Class in the following Action: In re Ooma, Inc. Shareholder Litig., Lead Case No. CIV536959. Be sure to include your
name, address, telephone number, and the date(s), price(s), and number of shares ofOoma common stock that you
purchased or acquired during the Class Period (July I 7, 2015-January I 4, 20 I 6). Your exclusion request must be
po~arlced no later than September I 3, 20 I 9, and sent to the Claims Administrator at:
Ooma Securities Litigation Settlement
Claims Administrator
c/o Gilardi & Co. LLC
EXCLUSIONS
3301 Kerner Blvd.
San Rafael, CA 94901
Matdtew C Alldenoa
Symbol
OOMA
Thank you,
Dates
08/21/15
~:;.;
The Maaagement Team
Enclosed: N\A
OfflCE:
Prices # of Shares
10.00 100
..,_ =
\~
....
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001©\JOW\1@ GE
t SEP 1310\9 ~. a>JMS CENTER
. ' ,..,,
" ..... .. .... COLUMBUS. OH 4132
11 SEP 2019 PH 1 L
Ooma Securities Litigation Settlement Claims Administrator c/o Gilardi & Co. LLC EXCLUSIONS 3301 Kerner Blvd. San Rafael, CA 94901
94901-489625 lmJ1,,.Jll,Jt .. Pl1Hl11J1111l1llf1hmllMlJul111Jllr•JH .
EXHIBIT 6
ENDORSED F8LED SAN MATEO COUNTY
1 ROBBINS GELLER RUDMAN & DOWD LLP
2 JAMES I JACONETTE (179565) ELLEN GUSIKOFF STEWART (144892)
3 RACHEL L. JENSEN (211456) ASHLEY M. PRICE (281797)
4 655 West Broadway, Suite 1900 San Diego, CA 92101
5 Telephone: 619/231-1058 619/231-7423 (fax)
DEC 1 4 2018
C(e& of (he Superior Court Bv TERRl ftSARAtiQULAft
DEPUTY CLERK
6 COTCHETT, PITRE & McCARTHY, LLP
7 MARK C MOLUMPHY (168009) TAMARAH P. PREVOST (313422) San Francisco Airport Office Center 8 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: 650/697-6000 650/697-0577 (fax)
9
10
Co-Lead Class Counsel for Plaintiffs 1 1
SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 T!
13 COUNTY OF SAN MATEO r ;
14 t -) Lead Case No. CIV538215 In re SUNRUN INC. SHAREHOLDER LITIGATION )
"M 15 ) CLASS ACTION )
16 ) Assigned to: Hon. Marie S. Weiner This Document Relates To: ) 17
) JUDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT
ALL ACTIONS. ) 18
19 DEPT: 2 DATE ACTION FILED: 4/13/16 20
21
22 CIV538215 PJR 23 Proposed Judgment Received 1540961
24
25
26 Q !£ 27
28
CO JUDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1510069_1
WHEREAS, the Court is advised that the Parties,1 through their counsel, have agreed, subject to
2 Court approval following notice to the Class and a hearing, to settle this Action upon the terms and
3 conditions set forth in the Stipulation of Settlement dated August 23, 2018 (the "Stipulation" or
4 "Settlement"); and
WHEREAS, on September 14, 2018, the Court entered its Order Preliminarily Approving
6 Settlement and Providing for Notice, which preliminarily approved the Settlement, and approved the
7 form and manner of notice to the Class of the Settlement, and said notice has been made, and the
8 fairness hearing having been held; and
NOW, THEREFORE, based upon the Stipulation and all of the filings, records and proceedings
10 herein, and it appearing to the Court upon examination that the Settlement set forth in the Stipulation is
11 fair, reasonable and adequate, and upon a Settlement Fairness Hearing having been held after notice to
12 the Class of the Settlement to determine if the Settlement is fair, reasonable, and adequate and whether
13 the Final Judgment should be entered in this Action;
1
5
9
THE COURT HEREBY FINDS AND CONCLUDES THAT: 14
A. The provisions of the Stipulation, including definitions of the terms used therein, are
16 hereby incorporated by reference as though fully set forth herein.
B. This Court has jurisdiction of the subject matter of this Action and over all of the Parties
18 and all Class Members.
15
17
The form, content, and method of dissemination of notice given to the Class was
20 adequate and reasonable and constituted the best notice practicable under the circumstances, including
21 individual notice to all Class Members who could be identified through reasonable effort.
Notice, as given, complied with the requirements of California law, satisfied the
23 requirements of due process, and constituted due and sufficient notice of the matters set forth herein.
19
D. 22
24
25 i As used herein, the term "Parties" means Plaintiffs Jeffrey L. Pytel and Jackie L. Nunez and Defendants Sunrun Inc., Lynn Jurich, Bob Komin, Edward Fenster, Jameson McJunkin, Gerald Risk, Steve Vassallo, Richard Wong, Credit Suisse Securities (USA) LLC, Goldman Sachs & Co. LLC (f/k/a Goldman, Sachs & Co.), Morgan Stanley & Co. LLC, Merrill Lynch, Pierce Fenner & Smith Incorporated, RBC Capital Markets, LLC, KeyBanc Capital Markets Inc., SunTrust Robinson Humphrey, Inc., Foundation Capital VI, L.P. and Foundation Capital Management Co. VI, LLC.
26
27
28
JUDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1510069_1
1 The Settlement set forth in the Stipulation in the amount of $32,000,000 is fair.
2 reasonable, and adequate.
3 (i) The Settlement was negotiated at arm's length by Plaintiffs on behalf of the Class
4 and by Defendants, all of whom were represented by highly experienced and skilled counsel. The case
5 settled only after, among other things: (a) a mediation conducted by an experienced mediator who was
6 thoroughly familiar with this Action; (b) the exchange between the Plaintiffs and the Sunrun Defendants
7 of detailed mediation statements prior to the mediation which highlighted the factual and legal issues in
8 dispute; (c) follow-up negotiations between the Plaintiffs and the Sunrun Defendants with the assistance
9 of the mediator; (d) Plaintiffs' Counsel's extensive investigation, which included, among other things, a
10 review of Sunrun's press releases, U.S. Securities and Exchange Commission filings, analyst reports,
11 media reports, and other publicly disclosed reports and information about the Defendants; (e) the
12 drafting and submission of detailed complaints; (0 extensive motion practice; (g) the review and
13 analysis of over one million pages of non-public documents produced by Defendants and third parties;
14 (h) certification of the Class and Subclass; and (i) a number of depositions. Accordingly, both the
15 Plaintiffs and Defendants were well-positioned to evaluate the settlement value of this Action. The
16 Stipulation has been entered into in good faith and is not collusive.
(ii) If the Settlement had not been achieved, both Plaintiffs and Defendants faced the
18 expense, risk, and uncertainty of extended litigation. The Court takes no position on the merits of either
19 Plaintiffs' or Defendants' arguments, but notes these arguments as evidence in support of the
20 reasonableness of the Settlement.
F. Plaintiffs and Plaintiffs' Counsel have fairly and adequately represented the interest of
22 the Class Members and Subclass Members in connection with the Settlement.
G. Plaintiffs, all Class Members, and Defendants are hereby bound by the terms of the
24 Settlement set forth in the Stipulation.
17
21
23
IT IS HEREBY ORDERED THAT: 25
The Settlement on the terms set forth in the Stipulation is finally approved as fair,
27 reasonable, and adequate. The Settlement shall be consummated in accordance with the terms and
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JUDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1510069_1
1 provisions of the Stipulation. The Parties are to bear their own costs, except as otherwise provided in
2 the Stipulation.
3 2. All Released Parties as defined in the Stipulation are released in accordance with, and as
4 defined in, the Stipulation.
3. Upon the Effective Date, Plaintiffs and each Class Member and Subclass Member shall
6 be deemed to have, and by operation of this Final Judgment shall have, fully, finally, and forever
5
7 released, relinquished, and discharged all Settled Claims against the Released Parties, whether or not
8 such Class Member or Subclass Member executes and delivers a Proof of Claim and Release.
4. Upon the Effective Date, each of the Released Parties shall be deemed to have, and by
10 operation of this Final Judgment shall have, fully, finally, and forever released Plaintiffs, Plaintiffs'
11 Counsel, and each and all of the Class Members and Subclass Members from all Settled Defendants'
9
12 Claims.
5. All Class Members and Subclass Members who have not made their objections to the
14 Settlement in the manner provided in the Notice of Proposed Settlement of Class Action ("Notice") are
15 deemed to have waived any objections by appeal, collateral attack, or otherwise.
6. All Class Members and Subclass Members who have failed to properly submit requests
17 for exclusion (requests to opt out) from the Class are bound by the terms and conditions of the
18 Stipulation and this Final Judgment.
13
16
P i f t r R Hoy&ll, tiencL 1. The requests for exclusion by thrnparmnT nrrntirr i ul* A *n tw P.r.^
SraVen Kc/wifcr flOaciacli' ftobtrT 4 Pe+crd'a, Kem'ii £cto 'SYa/i/
siprasTesiKs'Sff, j- «"T- j ' 8 . All other provisions of the Stipulation are incorporated into this Final Judgment as if ^
J 19
20
21 <r>*
22 fully rewritten herein.
9. Plaintiffs and all Class Members and Subclass Members are hereby barred and enjoined
24 from instituting, commencing, maintaining, or prosecuting in any court or tribunal any of the Settled
25 Claims against any of the Released Parties.
10. Neither the Stipulation nor the Settlement, nor any act performed or document executed
27 pursuant to or in furtherance of the Stipulation or the Settlement:
% 23 %
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. /j
JUDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1510069_1
1 (a) shall be offered or received against Defendants as evidence of a presumption,
2 concession, or admission with respect to any liability, negligence, fault, or wrongdoing, or in any way
3 referred to for any other reason as against Defendants, in any other civil, criminal, or administrative
4 action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of
5 the Stipulation; however. Defendants may refer to it to effectuate the liability protection granted them
6 hereunder;
(b) shall be construed as or received in evidence as an admission, concession, or
8 presumption against Plaintiffs or any of the Class Members or Subclass Members that any of their
9 claims are without merit, or that any defenses asserted by Defendants have any merit, or that damages
10 recoverable in this Action, or any subsequent operative complaint filed in this Action would have
11 exceeded the Settlement Fund; and
(c) Notwithstanding the foregoing, Defendants, Plaintiffs, Class Members and/or the
13 Released Parties may file the Stipulation and/or this Final Judgment in any action that may be brought
14 against them in order to support a defense or counterclaim based on principles of res judicata, collateral
15 estoppel, release, good faith settlement, judgment bar or reduction or any other theory of claim
16 preclusion or issue preclusion or similar defense or counterclaim.
11. The Court hereby finds and concludes that the Action was brought, prosecuted and/or
18 defended in good faith, with a reasonable basis.
12. Pursuant to and in full compliance with California law, this Court hereby finds and
20 concludes that due and adequate notice was directed to all Persons and entities who are Class Members
21 and Subclass Members advising them of the Plan of Allocation and of their right to object thereto, and a
22 full and fair opportunity was accorded to all Persons and entities who are Class Members and Subclass
23 Members to be heard with respect to the Plan of Allocation.
13. The Court hereby finds and concludes that the formula for the calculation of the claims
25 of Authorized Claimants, which is set forth in the Notice sent to Class Members and Subclass Members,
26 provides a fair and reasonable basis upon which to allocate the proceeds of the Net Settlement Fund
27 established by the Stipulation among Class Members and Subclass Members, with due consideration
7
12
17
19
24
28 having been given to administrative convenience and necessity.
JUDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1510069_1
1 14. The Court hereby awards Plaintiffs' Counsel attorneys' fees of $ 10,656,000, plus Lead
2 Counsel's expenses in the amount of $473,536.28, together with the interest earned thereon for the same
3 time period and at the same rate as that earned on the Settlement Fund until paid. The Court finds that
4 the amount of fees awarded is appropriate and that the amount of fees awarded is fair and reasonable
5 given the contingent nature of the case and the substantial risks of non-recovery, the time and effort
6 involved, and the result obtained for the Class and Subclass.
15. The awarded attorneys' fees and expenses and interest earned thereon shall immediately
8 be paid to Lead Counsel from the Settlement Fund subject to the terms, conditions, and obligations of
9 the Stipulation, which terms, conditions, and obligations are incorporated herein.
16. Time and expenses are awarded to Plaintiffs Jeffrey L. Pytel and Jackie L. Nunez, in the
11 amounts of $16,000 and $15,000, respectively. Such payment is appropriate considering their active
12 participation as Plaintiffs in this Action, as attested to by the declarations submitted to the Court. Such
13 payment is to be made from the Settlement Fund.
17. In the event that the Stipulation is terminated in accordance with its terms: (i) this Final
15 Judgment shall be rendered null and void and shall be vacated nunc pro tunc; and (ii) this Action shall
16 proceed as provided in the Stipulation.
18. Without affecting the finality of this Final Judgment in any way, this Court retains
18 continuing jurisdiction over: (a) implementation of this Settlement and any award or distribution of the
19 Settlement Fund, including interest earned thereon; (b) disposition of the Settlement Fund; (c) hearing
20 and determining applications for attorneys' fees, interest, and expenses in the Action; and (d) all parties
21 hereto for the purpose of construing, enforcing, and administrating the Stipulation.
7
10
14
17
IT IS SO ORDERED.
DATED: I 22
//v7/£ 23 HONORABLE MARIE S. WEINER JUDGE OF THE SUPERIOR COURT 24
25
26
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JUDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1510069J
SERVICE LIST Switzer v. W.R. Hambrecht & Co., LLC, Lead Case No. CGC-18-564904 (Super. Ct., S.F. Cty.)
(Consolidated with No. CGC-18-565324)
COUNSEL FOR DEFENDANTS ARCIMOTO, INC., MARK FROHNMAYER, TERRY L. BECKER, DOUGLAS
M. CAMPOLI, THOMAS THURSTON, JEFFERSON CURL, W.R. HAMBRECHT & CO., LLC:
Gordon Rees Scully Mansukhani LLP Dion N. Caminos 1275 Battery Street, Suite 2000 Brian P. Masch]er San Francisco, CA 94111
COUNSEL FOR PLAINTIFF JOHN R. SWITZER:
Robbins Geller Rudman & Dowd LLP James l Jaconette 655 West Broadway, Suite 1900 Ellen Gusikoff Stewart San Diego, CA 92101 Samuel H. Rudman 58 South Service Road, Suite 200
Melville, NY 11743 Johnson Fistel, LLP Frank J. Johnson 655 West Broadway, Suite 1400 Phong L. Tran San Diego, CA 92101
COUNSEL FOR PLAINTIFF JAY MENDELSON:
Robbins Arroyo LLP Brian J. Robbins 5040 Shoreham Place Stephen J. Oddo San Diego, CA 92122 Nichole T. Browning
I [email protected] [email protected]
[email protected] [email protected] [email protected]