Opinion
2:18-CV-00479-APG-DJA
10-20-2023
JOHN V. FERRIS and JOANN M. FERRIS, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. WYNN RESORTS LIMITED, STEPHEN A. WYNN, CRAIG SCOTT BILLINGS, STEPHEN COOTEY, MATTHEW O. MADDOX, JOHN J. HAGENBUCH, ROBERT J. MILLER, PATRICIA MULROY, CLARK T. RANDT JR., ALVIN V. SHOEMAKER, KIMMARIE SINATRA, DANIEL B. WAYSON, JAY L. JOHNSON, RAY R. IRANI, and J. EDWARD VIRTUE, Defendants.
MUEHLBAUER LAW OFFICE, LTD. Andrew R. Muehlbauer (Nevada Bar #10161) POMERANTZ LLP Jeremy A. Lieberman (pro hac vice) Murielle J. Steven Walsh (pro hac vice) Attorneys for Lead Plaintiffs John V. and JoAnn M. Ferris Additional Counsel on Signature Block
MUEHLBAUER LAW OFFICE, LTD.
Andrew R. Muehlbauer (Nevada Bar #10161)
POMERANTZ LLP
Jeremy A. Lieberman (pro hac vice)
Murielle J. Steven Walsh (pro hac vice)
Attorneys for Lead Plaintiffs John V. and JoAnn M. Ferris Additional Counsel on Signature Block
ORDER ESTABLISHING PROGRAM AND SCHEDULE FOR CLASS NOTICE
WHEREAS, by Order dated March 1, 2023 (Dkt. No. 283), the Court certified the following Class in the above-captioned action:
All individuals and entities that purchased or otherwise acquired Wynn Resorts securities between March 28, 2016 and February 12, 2018, inclusive (the “Class Period”), and who were damaged thereby. Excluded from the Class are Defendants, 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.
WHEREAS, Class Representatives John V. Ferris, JoAnn M. Ferris, and Jeffrey Larsen (the “Class Representatives”) have made a motion pursuant to Federal Rule of Civil Procedure 23 for an order establishing a program and schedule for notice to the class of this pending class action; and
WHEREAS, the Court having read and considered the Class Representatives' motion and the exhibits annexed thereto;
NOW, THEREFORE, IT IS HEREBY ORDERED:
The Court establishes the following program and schedule for notice to the Class of this pending class action:
1. The Court approves the proposed form and content of the Notice of Pendency of Class Action (the “Notice”) and the Summary Notice of Pendency of Class Action (the “Summary Notice”) (collectively, the “Notices”), attached hereto as Exhibits A and B, respectively;
2. The Court finds that the Notices and the proposed method and schedule, as set forth below, meet the requirements of Federal Rule of Civil Procedure 23 and due process, are the best notice practicable under the circumstances, and shall constitute due and sufficient notice to all persons and entities entitled thereto;
3. Class Counsel is hereby authorized to retain JND Legal Administration (the “Notice Administrator”) to supervise and administer the notice procedure set forth below;
4. Within twenty (20) calendar days of entry of this Order, Defendant Wynn Resorts Limited (“Wynn Resorts”) shall produce to Class Counsel a list of persons or entities (including names, addresses, and if available, email addresses) who purchased or acquired Wynn Resorts securities between March 28, 2016 and February 12, 2018, inclusive (the “List of Class Members”).
5. Class Counsel shall thereafter provide notice to the Class in the following manner:
(a) Class Counsel shall provide the Notice Administrator with the List of Class Members upon receipt of the list from Wynn Resorts.
(b) Within twenty (20) calendar days of receipt of the List of Class Members, the Notice Administrator shall cause a copy of the Notice, substantially in the form attached as Exhibit B, to be mailed by first-class mail to the individuals and entities identified in the List of Class Members;
(c) Contemporaneously with the mailing of the Notice, the Notice Administrator shall cause a copy of the Notice, substantially in the form attached as Exhibit A, and the Summary Notice to be posted on a website to be developed for the litigation (www.WynnSecuritiesLitigation.com), from which copies can be downloaded; and
(d) Within ten (10) calendar days of mailing the Notice, the Notice Administrator shall cause the Summary Notice to be published on a national business newswire in the United States.
6. Brokers and other nominees who purchased or otherwise acquired Wynn Resorts securities between March 28, 2016 and February 12, 2018, inclusive, for the beneficial ownership of another person or entity shall either (a) within seven (7) days of receipt of the Notice or Notice, request from the Notice Administrator sufficient copies of the Notice to forward to all beneficial owners, which the brokers and other nominees shall forward to all beneficial owners within seven (7) days of receipt; or (b) within seven (7) days of receipt of the Notice or Notice, provide a list of the names and addresses of all beneficial owners to the Notice Administrator, who shall promptly send the Notice directly to all beneficial owners. Brokers and other nominees who elect to send the Notice to their beneficial owners shall send a statement to the Notice Administrator confirming that the mailing was made and shall retain their mailing records for use in connection with any further notices that may be provided in this Action. Upon full compliance with this Order, such brokers and other nominees may seek reimbursement of their reasonable expenses actually incurred in complying with this Order by providing the Notice Administrator with proper documentation supporting the expenses for which reimbursement is sought, not to exceed $0.10 per name and mailing address provided to the Notice Administrator, or if mailed by the broker or other nominee, not to exceed $0.15 plus postage at the current pre-sort rate used by the Notice Administrator per mailed Notice. Any disputes with respect to the reasonableness or documentation of expenses incurred shall be subject to review by the Court.
7. Class members shall be bound by all determinations and judgments in this Action, whether favorable or unfavorable, unless such persons or entities request exclusion from the Class in a timely and proper manner, as hereinafter provided. A Class member wishing to make such a request for exclusion shall mail the request, in written form, by first-class mail, postmarked no later than ninety (90) days after publication of the Summary Notice (the “Exclusion Deadline”), to the Notice Administrator at the address designated in the Notice. Such request for exclusion shall clearly state that the Class member “requests to be excluded from the Class in Ferris, et al. v. Wynn Resorts Limited, et al., No. 18-cv-00479 (D. Nev.),” and must state (i) the name, address, and telephone number of the person or entity requesting exclusion, and (ii) the number of Wynn Resorts shares purchased, acquired, or sold during the Class Period, as well as the date(s) and price(s) of each such purchase, acquisition, or sale. Any such request for exclusion must be signed by the person or entity requesting exclusion or an authorized representative accompanied by proof of authorization. The request for exclusion shall not be effective unless it provides the required information and is made within the time stated above, or the exclusion is otherwise accepted by the Court.
8. Class Counsel shall file with the Court proof of mailing and proof of publication of the Notice and Summary Notice within twenty (20) days of publication of the Summary Notice Class Counsel shall also file an affidavit identifying all persons and entities who have requested exclusion from the Class within thirty (30) days of the Exclusion Deadline.
9. This Order may be modified by the Court upon motion of any party for good cause shown.
IT IS SO ORDERED.
HONORABLE BRENDA N. WEKSLER, UNITED STATES MAGISTRATE JUDGE.
EXHIBIT A
NOTICE OF PENDENCY OF CLASS ACTION
TO: All individuals and entities that purchased or otherwise acquired Wynn Resorts securities between March 28, 2016 and February 12, 2018, inclusive (the “Class Period”), and who were damaged thereby.
Excluded from the Class are Defendants, 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.
A federal court has authorized this notice. This is not a solicitation from a lawyer.
PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS MAY BE AFFECTED BY PROCEEDINGS IN THIS ACTION.
This Notice is being sent pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the District of Nevada (the “Court”), entered March 1, 2023, certifying the above-captioned Action as a class action. The purpose of this Notice is to inform you of: (a) the pendency of the above-captioned class action in the United States District Court for the District of Nevada (the “Action”); (b) the certification of the Class defined above, of which you may be a member (“Class Member”); and (c) your right to be excluded from the Class. This Action has not been settled and continues to be litigated. Accordingly, no claim form need be filed at this time.
YOU ARE HEREBY NOTIFIED of the pendency of this Action as a class action. This Notice is directed to you because you may be a member of a Class whose rights might be affected by this Action. If you are uncertain whether you are a member of the Class, contact Class Counsel listed below or consult your own attorney.
A class action is a type of lawsuit in which one or several individuals or entities prosecute claims on behalf of all members of a group of similarly situated persons and entities to obtain monetary or other relief for the benefit of the entire group, known as a class. Class actions are used to decide legal and factual issues that are common to all members of a class.
This notice merely informs you that the Action is pending and that you may be a member of the Class. However, this Action has not been fully adjudicated on the merits yet, and the parties have not yet agreed to any settlement. Thus, there currently is no judgment in favor of the Class and the provision of this notice does not suggest whether there will be a judgment in favor of the Class or any monetary recovery.
OVERVIEW AND STATUS OF THIS ACTION
This Action is a securities class action lawsuit alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as well as Securities and Exchange Commission Rule 10b-5. This lawsuit alleges that Defendants knew about or recklessly disregarded allegations of sexual misconduct against Defendant Stephen Wynn and concealed them. In concealing the allegations of sexual misconduct, Defendants made material misrepresentations or omitted material facts. Defendants are Wynn Resorts Limited (“Wynn Resorts”), Stephen Wynn, Kimmarie Sinatra, Matthew Maddox, and Stephen Cootey.
This Action was commenced on February 20, 2018. On December 4, 2018, the Court issued an Order appointing John V. Ferris and JoAnn M. Ferris as Lead Plaintiffs, appointing Pomerantz LLP as lead counsel, and appointing Muehlbauer Law Office, Ltd. as liaison counsel.
On July 1, 2020, Lead Plaintiffs filed a Second Amended Class Action Complaint (the “SAC”). On August 14, 2020, Defendants moved to dismiss the SAC. On July 28, 2021, the Court issued an Order granting in part and denying in part Defendants' motion to dismiss.
On July 18, 2022, Lead Plaintiffs filed a motion for class certification. On March 1, 2023, the Court certified the Class defined above, appointed Lead Plaintiffs John V. Ferris and JoAnn M. Ferris and Plaintiff Jeffrey Larsen as Class Representatives (the “Class Representatives”), appointed Pomerantz LLP as Class Counsel, and appointed Muehlbauer Law Office, Ltd. as local/liaison counsel.
The certification of the Class means that the ultimate outcome of the Action will apply in like manner to each person or entity that continues to be a member of the Class through the resolution of the litigation.
Defendants deny all claims and wrongdoing asserted in the Action and any liability arising out of the conduct alleged in the SAC.
Discovery in this Action is ongoing and fact discovery is set to be complete by May 31, 2024.
The parties will have the opportunity to file motions for summary judgment to seek Court resolution of the case and/or specific claims within the case. Opening briefs in support of summary judgment are due January 15, 2025.
INSTRUCTIONS TO CLASS MEMBERS
YOUR RIGHTS AS A CLASS MEMBER: If you purchased or otherwise acquired Wynn Resorts securities between March 28, 2016 and February 12, 2018, inclusive, you are a member of the Class. If you choose to remain a Class Member, you do not need to do anything at this time. Please note, if you choose to opt out of the class, your individual claims will be time barred by the applicable five-year statute of repose under 28 U.S.C. § 1658(b). You will automatically be included in the Class unless you request exclusion in accordance with the procedure set forth below. Your decision is important for the following reasons:
If you choose to remain in the Class, you will be bound by all orders and judgments in this Action, whether favorable or unfavorable. If the Class prevails on the common issues, or if a settlement is reached, you may be able to recover an award. If Defendants prevail, you may not pursue a lawsuit on your own behalf with regard to any of the issues decided in this Action. Your interests are being represented by the Class Representatives and Class Counsel. You will not be personally responsible for attorneys' fees or costs unless you hire your own individual attorney. Class Counsel has agreed to represent the Class on a contingent fee basis, which means that it will be awarded fees and costs only if it succeeds in obtaining a recovery from one or more of the Defendants. Any attorney's fees and costs will be awarded by this Court from the settlement or judgment, if any, obtained on behalf of the Class. You may remain a member of the Class and elect to be represented by counsel of your own choosing. If you retain your own separate counsel, you will be responsible for that counsel's fees and expenses, and such counsel must enter an appearance on your behalf by filing a Notice of Appearance with the Court and mailing it to Class Counsel at the address set forth below on or before [90 days after Summary Notice is published].
If you seek to share in any Class recovery, you will be required to prove your membership in the Class with evidence of your purchases, acquisitions, and sales of Wynn Resorts securities during the Class Period.
If you choose to be excluded from the Class, you will not be bound by any judgment in this Action, nor will you be eligible to share in any recovery that might be obtained in this Action. If you choose to be excluded, or in other words, “opt-out” of the Action, you may individually pursue any legal rights that you may have against any of the Defendants. Please note that if you exclude yourself from the Class and decide to pursue your own action individually, you will not be able to pursue certain claims if the applicable statute of limitations and/or statute of repose under 28 U.S.C. § 1658(b) has lapsed.
HOW TO BE EXCLUDED FROM THE CLASS: If you fall within the Class definition and are not otherwise excluded, you will automatically be considered a member of such Class unless you request exclusion in writing. Any member of a Class may request not to be bound by these proceedings. To exclude yourself from the Class, you must send a signed letter by mail stating that you “request to be excluded” from the Class in “Ferris, et al. v. Wynn Resorts Limited, et al., No. 18-cv-00479 (D. Nev.).” Your letter must include: (1) your name, address, and telephone number, (2) the transactional details of the Wynn Resorts securities you purchased, acquired, or sold during the Class Period, including purchase/sale dates, and the amount of shares purchased or sold, and (3) the signature of the person or entity requesting exclusion or an authorized representative. Your request for exclusion will not be effective unless it contains all this information. You must then mail your exclusion request, postmarked no later than [ninety days after publication of the Summary Notice] to:
Ferris, et al. v. Wynn Resorts, Limited et al.
c/o JND Legal Administration PO Box 91471
Seattle, WA 98111
You cannot exclude yourself from the Class by telephone or email. If your request for exclusion is timely mailed and follows the above requirements, you will not be bound by any judgment in this Action. However, if you validly request exclusion, then you will not be eligible to share in any recovery in this Action. Do not request exclusion if you wish to participate in this Action as a Class Member.
CLASS COUNSEL: Class Counsel are Pomerantz LLP (attn: Jeremy A. Lieberman and Murielle J. Steven Walsh), 600 Third Avenue, 20th Floor, New York, New York 10016, (212) 661-1100.
PLEASE KEEP YOUR ADDRESS CURRENT: To assist the Court and the parties in maintaining an accurate list of Class Members, please update your name and contact information. To update this information online, visit [insert website] or mail this information to JND Legal Adminstrator, the “Notice Administrator,” at the address listed above (Ferris, et al. v. Wynn Resorts, Limited et al., c/o JND Legal Administration, PO Box 91471, Seattle, WA 98111). If this Notice was forwarded to you by the postal service, or it was otherwise sent to you at an address that is no longer current, you should immediately contact the Notice Administrator and provide them with your current address. If the Notice Administrator does not have your current address, you may not receive notice of important developments in this Action or information about any settlements obtained for the benefit of the Class.
WHERE YOU CAN FIND ADDITIONAL INFORMATION: This Notice provides only a summary of the lawsuit and the claims asserted. For more detailed information, visit the website www.WynnSecuritiesLitigation.com, or you may contact Class Counsel or call the Notice Administrator at 888-256-6153. PLEASE DO NOT CALL OR WRITE THE COURT OR THE OFFICE OF THE CLERK FOR INFORMATION OR ADVICE.
SPECIAL NOTICE TO BANKS, BROKERS, AND OTHER NOMINEES: If you purchased or otherwise acquired Wynn Resorts securities during the Class Period for the beneficial interest of any person or entity other than yourself, you must, WITHIN SEVEN (7) DAYS OF YOUR RECEIPT OF THIS NOTICE, either (a) request from the Notice Administrator sufficient copies of the Notice to forward to all beneficial owners, which you shall forward to all beneficial owners within seven (7) days of receipt, or (b) provide a list of the names and addresses of all beneficial owners to the Notice Administrator, who shall promptly send the Notice directly to all beneficial owners.
If you select option (a) above, you must send a statement to the Notice Administrator confirming that the mailing was made, and you must retain your mailing records for use in connection with any further notices that may be provided in this Action. If you select option (b), the Notice Administrator will send a copy of the Notice to the beneficial owners.
You are entitled to reimbursement for your reasonable expenses actually incurred in complying with the foregoing, including reimbursement of reasonable postage expenses and the reasonable cost of obtaining the names and addresses of beneficial owners, not to exceed $0.15 plus actual postage at the current pre-sort rate used by the Notice Administrator per notice you mailed, $0.05 per notice you emailed, or $0.10 per name and address you provided to the Notice Administrator, and subject to further order of the Court with respect to any dispute concerning such reimbursement. Those reasonable expenses and costs will be paid upon request and submission of appropriate supporting documentation. All requests for reimbursement should be sent to the Notice Administrator.
EXHIBIT B
SUMMARY NOTICE OF PENDENCY OF CLASS ACTION
TO: All individuals and entities that purchased or otherwise acquired Wynn Resorts securities between March 28, 2016 and February 12, 2018, inclusive (the “Class Period”), and who were damaged thereby.
Excluded from the Class are Defendants, 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.
PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS MAY BE AFFECTED BY PROCEEDINGS IN THIS ACTION.
This Notice is being sent pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the District of Nevada (the “Court”). This Action has not been settled and continues to be litigated. No claim form need be filed at this time.
This Notice is not an expression of any opinion by the Court with respect to the merits of the claims or the defenses asserted in the Action. This Notice is merely to advise you of the pendency of this Action and of your rights therein.
If you are a member of the Class, your rights are affected by this Action, and you may have the right to participate in any recovery. You also have the right to exclude yourself from the Class by 90 days after publication of the Summary Notice in accordance with the directions set forth in the Notice, which is available at www.WynnSecuritiesLitigation.com or by writing the Notice Administrator at: Ferris, et al. v. Wynn Resorts, Limited et al., c/o JND Legal Administration, PO Box 91471, Seattle, WA 98111. Inquiries other than requests for notice may be made to Class Counsel:
Jeremy A. Lieberman
Murielle J. Steven Walsh
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, New York 10016
(212) 661-1100
PLEASE DO NOT CALL OR WRITE THE COURT OR OFFICE OF THE CLERK FOR INFORMATION OR ADVICE.