Opinion
3:15-cv-02324-GPC-KSC
12-20-2021
IN RE Bof I HOLDING, INC. SECURITIES LITIGATION.
ORDER: (1) GRANTING PLAINTIFFS' MOTION FOR ISSUANCE OF CLASS NOTICE; and (2) VACATING MOTION HEARING [ECF No. 289]
Hon. Gonzalo P. Curiel United States District Judge 1
BACKGROUND
Before the Court is Plaintiffs' Motion for Issuance of Class Notice. ECF No. 289-1. Attached to Plaintiffs' Motion were three exhibits: the proposed Short-Form Notice, Long-Term Notice and Summary Notice. ECF Nos. 289-3, 289-4, 289-5. Defendants filed a “limited opposition” in which they proposed edits to the Short-Form Notice, Long-Form Notice, and Summary Notice submitted by Plaintiffs. ECF No. 307. Plaintiff filed a reply, “respectfully request[ing] that the Court grant the Class Notice Motion, with alterations to the language of the notice documents as set forth in the attachments to Defendants' response.” ECF No. 314 at 2. As set forth in this Order, the Court GRANTS Plaintiffs' Motion for Issuance of Class Notice, with the alterations in the language to be included in the Notices as proposed by Defendants and accepted by Plaintiff. Further, the Court finds this matter suitable for disposition without a hearing pursuant to Civil Local Rule 7.1(d)(1) and hereby VACATES the hearing.
DISCUSSION
In class actions certified under Federal Rule of Civil Procedure 23(b)(3), “the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Fed.R.Civ.P. 23(c)(2)(B); see Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974). “The notice must clearly and concisely state in plain, easily understood language: (i) the 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 through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment under Rule 23(c)(3).” Fed R. Civ. P. 23(c)(2)(B). 2
On August 24, 2021, the Court entered an order granting Plaintiffs' Motion for Class Certification. ECF No. 247. Pursuant to Federal Rule of Civil Procedure 23(b)(3), this Court certified the following class in this action (the “Class”):
All persons and entities that, between September 4, 2013 and October 13, 2015, inclusive, purchased or otherwise acquired shares of the publicly traded common stock of Bof I, as well as purchasers of Bof I call options and sellers of Bof I put options, and were damaged thereby.Excluded from the Class are Defendants herein, the officers and directors of the Company, at all relevant times, members of their immediate families and their legal representatives, heirs, successors or assigns, and any entity in which Defendants have or had a controlling interest.
Having reviewed Plaintiffs' proposed Notices (ECF Nos. 289-3, 289-4, 289-5), Defendants' proposed “minor suggested edits” as outlined in their “limited opposition” (ECF Nos. 307-2, 307-3, 307-4) and the Declaration of Luiggy Segura outlining the details of the notice administration process filed with Plaintiffs' motion (ECF No. 289-6), the Court finds that the proposed Short-Form, Long-Form, and Summary Notices fulfill the requirements of Rule 23 and GRANTS Plaintiffs' motion, to include the Notices as amended by Defendants.
The Court hereby establishes the following program and schedule for notice to the Class of this pending class action:
1. The Court approves the Short-Form Notice of Pendency of Class Action submitted by Plaintiffs, as amended by Defendants (ECF No. 307-2, Defs.' Opp., Ex. A);
2. The Court approves the Long-Form Notice of Pendency of Class Action submitted by Plaintiffs, as amended by Defendants (ECF No. 307-3, Defs.' Opp., Ex. B);
3. The Court approves the Summary Notice submitted by Plaintiffs, as amended by Defendants (ECF No. 307-4, Defs.' Opp., Ex. C); 3
4. Lieff Cabraser Heimann & Bernstein, LLP (“Class Counsel”) may employ JND Legal Administrator as notice administrator (the “Notice Administrator”) to assist in the providing of class notice;
5. Within ten (10) calendar days after entry of this Order, Bof I shall instruct its securities transfer agent to produce to the Notice Administrator an electronic list, preferably in a Microsoft Excel data table, of all persons who purchased, acquired, and/or sold Bof I Holding, Inc. common stock, call options, and/or put options during the Class Period (the “Transfer Agent List”), with Plaintiff to bear reasonable costs;
6. Class Counsel shall cause to be mailed, by first class mail, the Short Form Notice of Pendency of Class Action, substantially in the form annexed hereto as Exhibit A, to each class member identified on the transfer agent records and all class members who can be identified through reasonable effort within twenty-one (21) calendar days of its receipt of the Transfer Agent List (the “Notice Date”);
7. Class Counsel shall cause copies of the Long Form Notice of Pendency of Class Action, substantially in the form annexed hereto as Exhibit B, to be posted on a website, www.Bof ISecuritiesLitigation.com, no later than the Notice Date;
8. Class Counsel shall cause the Summary Notice, substantially in the form annexed hereto as Exhibit C, to be disseminated via Investor's Business Weekly and PR Newswire within ten (10) calendar day after the Notice Date;
9. Class Counsel shall populate the Short Form Notice of Pendency of Class Action, Long Form Notice of Pendency of Class Action, and Summary Order with the appropriate dates based on the Court's entry of this Order.
10. No later than 21 calendar days after the Notice Administrator receives the Transfer Agent List, the Notice Administrator shall solicit information 4 from brokers and other nominees who purchased or otherwise acquired shares of the publicly traded common stock of Bof I, purchased Bof I call options, or sold of Bof I put options during the Class Period as nominee for a beneficial owner. Such nominees, within 10 calendar days of receiving the Short Form Notice, must either: (i) request from the Notice Administrator sufficient copies of the Short Form Notice to forward to all such beneficial owners an mail those Short Form Notices within ten (10) calendar days after receiving them, and also provide the Administrator with email addresses for all such beneficial owners; (ii) within ten (10) calendar days of receipt of the Short Form Notice, send the Short Form Notice to beneficial owners via electronic communication; or (iii) within ten (10) calendar days of receipt of the Short Form Notice, provide a list of the names, addresses, and email addresses of all such beneficial owners to the Notice Administrator at Bof ISecurities@JNDLA.com. If such nominees choose the first or second option, they must send a statement to the Notice Administrator confirming that the mailings and/or electronic communications were made and they must retain your mailing and/or electronic communication records for use in connection with any further notice that may be provided in the Action. If such nominees choose the third option, the Notice Administrator will send a copy of the Postcard Notice to the beneficial owners. If email addresses are not available, such nominees must notify the Notice Administrator of that fact. Upon full compliance with these directions, such nominees may seek reimbursement of reasonable expenses actually incurred (but not to exceed $0.50 per mailing, excluding postage) by providing the Notice Administrator with proper documentation supporting the expenses for which reimbursement is sought.
11. Should any members of the Class wish to exclude themselves, they must postmark such requests for exclusions no later than sixty (60) calendar days after the Notice Date; 5
12. The requests for exclusion must include the Class member's name, address, telephone number, and signature, as well as the total number of Bof I shares and/or options purchased, acquired, and/or sold, and the date the Bof I shares and/or options were purchased, acquired, and/or sold;
13. Class Counsel will direct the Notice Administrator to notify Defendants' counsel of record, in writing, of the requests for exclusion it receives, including the name and address of the person or entity, and the number of shares and/or options purchased and/or sold. The Notice Administrator will transmit this information to Defendants' counsel no later than thirty (30) calendar days after the deadline for exclusion; and
14. The costs of the notice process shall be borne by Plaintiffs and/or Class Counsel, and not by Defendants.
IT IS SO ORDERED. 6