DOUGLAS P. WOODLOCK, District Judge.
Before me is a motion seeking preliminary review
Boston Scientific develops, manufactures, and distributes medical devices whose products are used in the cardiovascular and endosurgery health care arena. During the Class Period, Boston Scientific administered the Plan in the interest of its participants.
The Plan qualifies as an "employee pension benefit plan" within the meaning of ERISA § 3(2)(A), 29 U.S.C. § 1002(2)(A). Participants in the Plan make voluntary contributions and the Company makes matching contributions. Throughout the Class Period, participants could contribute to the Plan between 1% and 25% of their pre-tax annual compensation and between 1% and 10% of their compensation on an after-tax basis each year. Effective January 1, 2005, the Company provided a matching contribution equal to 200% of the employee's contribution for up to 2% of the employee's earnings, plus 50% of the next 4% of the employee's earnings. During the Class Period, the Plan offered approximately ten separate investment options, including Boston Scientific stock.
Plaintiffs
The alleged misleading disclosures are based on four events.
Second, Plaintiffs allege that Defendants misrepresented the seriousness of the litigation with Medinol Ltd., one of Boston Scientific's suppliers, as to which Defendants agreed to pay a $750 million settlement in 2005.
Third, Plaintiffs contend that Defendants failed to disclose adequately concerns associated with the 2004 recall of TAXUS stent systems when Defendants knew or should have known before the recalls took place that the TAXUS product contained dangerous manufacturing defects, which would lead to massive liabilities adversely affecting the Company stock.
The last subject as to which Defendants allegedly made misrepresentations concerns a series of "warning letters" sent between 2005 and 2006 by the U.S. Food and Drug Administration ("FDA") to Boston Scientific in connection with FDA violations by several of its manufacturing facilities.
In January 2006, Plaintiffs Douglas Fletcher, Michael Lowe, Jeffrey Klunke, and Robert Hochstadt each filed separate class action complaints against Defendants. The four complaints were consolidated before Judge Tauro on April 3, 2006; a consolidated complaint was subsequently filed by Plaintiffs. In re Boston Scientific Corp. ERISA Litig., Civil Action No. 06-cv-10105-JLT (D.Mass.) ("ERISA I").
On October 10, 2006, Defendants filed a motion to dismiss the Consolidated Complaint. Judge Tauro denied Defendants' motion in significant part on August 27, 2007.
On March 12, 2008, Plaintiffs Fletcher, Lowe, Klunke and Hochstadt moved to certify the class under Federal Rule of Civil Procedure 23(a) and (b)(1). Klunke and Hochstadt later withdrew from the litigation. However, on June 30, 2008, Hochstadt filed a motion to intervene and asked to be reappointed as a class representative. On November 3, 2008, Judge Tauro denied the motion for class certification and Hochstadt's motion to intervene; he then dismissed the case because Plaintiffs Fletcher and Lowe lacked Article III standing. In re Boston Scientific Corp. ERISA Litig., 254 F.R.D. 24 (D.Mass. 2008). On December 2, 2008, Plaintiffs Fletcher, Lowe, and Hochstadt filed a notice of appeal. In re Boston Scientific Corp. ERISA Litig. (1st Cir. No. 08-2568). The matter is currently stayed in the First Circuit, pending settlement developments.
On December 24, 2008, Plaintiffs Hochstadt and Hazelrig filed the instant action, Hochstadt et al. v. Boston Scientific Corp. et al., Civil Action 08-cv-12139-DPW (D.Mass.) ("ERISA II"), seeking to sidestep the standing issue and the problem of Hochstadt's failure to reenter the case through intervention, which together ended ERISA I before Judge Tauro. Thereafter, the parties resumed fact discovery where they left off in ERISA I. In doing so, the parties agreed that all documents produced in ERISA I would be deemed produced in ERISA II.
Under the auspices of Settlement Counsel for the First Circuit, counsel for Plaintiffs Fletcher, Lowe, and Hazelrig and the Defendants in September 2009 agreed to settle ERISA I and ERISA II (collectively,
On December 1, 2009, Plaintiffs Fletcher, Lowe, and Hazelrig filed a motion for preliminary review, see Note 1 supra, of the Proposed Settlement Agreement, contending that the agreement was an excellent result for the Settlement Class on whose behalf the ERISA Actions were brought. In their motion, they also sought certification of a mandatory class under Rule 23(b)(1) on the basis that the ERISA Actions involved Defendants' Plan-wide conduct and relief was sought on behalf of the Plan as a whole.
Plaintiff Hochstadt filed an opposition to this motion by Plaintiffs Fletcher, Lowe, and Hazelrig, alleging that Fletcher and Lowe had been found to lack standing to settle the ERISA Actions, that the settlement amount was insufficient and that the non-opt-out provision, the proposed plan of allocation and the class notice were inappropriate.
I held a hearing on January 13, 2010 in connection with my preliminary review of the Proposed Settlement Agreement. During that hearing, I requested the parties to file supplemental briefing on three points: (1) the participation of Plaintiffs Fletcher and Lowe in the class settlement in light of Judge Tauro's decision that they lacked Article III standing, (2) the proposed plan of allocation, which at the time did not separately take into consideration discrete disclosure events that occurred during the Class Period, and (3) the publication of the report of the independent fiduciary Plaintiff Hazelrig and Defendants agreed to retain to review the settlement agreement.
On February 17, 2010, Plaintiff Hazelrig and Defendants submitted the Amended Stipulation and Agreement of Settlement (the "Amended Settlement Agreement") now before me. Pursuant to this amended agreement, Plaintiffs Fletcher and Lowe are now excluded from the Settlement Class, leaving Hazelrig the only settlement class representative.
Before preliminarily determining whether the settlement is fair, I must determine whether to certify the class for settlement purposes. The Amended Settlement Agreement defines the Settlement Class as a non-opt-out class consisting of:
Am. Settlement Agreement, ¶ 1.1.29. I first address the standing issue before turning to the requirements of Federal Rule of Civil Procedure 23.
In a class action lawsuit, as in every law suit, "Article III standing is a `threshold requirement,' and the representative plaintiff must demonstrate personal injury in fact to certify a class." In re Boston Scientific ERISA Litig., 254 F.R.D. at 28. As discussed above, Judge Tauro previously dismissed class certification in ERISA I because the proposed class representatives, Fletcher and Lowe, failed to demonstrate individual injury in fact and therefore lacked Article III standing. Id. at 28-32.
Plaintiff Hochstadt initially relied on Judge Tauro's ruling to show that Plaintiffs Fletcher and Lowe lacked standing to settle the ERISA Actions. Given that Plaintiffs Fletcher and Lowe are now excluded from the Settlement Class, see Notes 2 and 7 supra, the only issue at this point is therefore whether Plaintiff Hazelrig has adequate standing to settle the ERISA Actions as class representative.
Hochstadt did not specifically address Hazelrig's standing in his initial briefing. Rather he merely contended, without adducing any evidence, that "the presently `proposed' representatives are not representative because they did not lose money[,] were not injured." For his part, Hazelrig asserted without evidentiary support, that he has constitutional and statutory standing to maintain and settle the ERISA Actions because he has suffered a compensable loss. At a further hearing in this matter on April 21, 2010, I directed counsel for Hazelrig to make a submission demonstrating that Hazelrig in fact has a compensable loss, which would support his standing to act as class representative. Counsel has submitted a Declaration from Candace L. Preston, CFA, who assisted crafting the Revised Plan of Allocation. Ms. Preston opined that Hazelrig would have a likely recovery of approximately $1,970.00. This is sufficient to establish standing at this stage.
In order to certify a class, "[a] district court must conduct a rigorous analysis of the prerequisites established by Rule 23." Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 38 (1st Cir.2003) (citing Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). In doing so, "the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Waste Mgt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 298 (1st Cir.2000) (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)). "[W]hen confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, for the proposal is that there be no trial." Id. (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). Nevertheless, "[w]hen a settlement class is proposed, it is incumbent on the district court to give heightened scrutiny to the requirements of Rule 23 in order to protect absent class members." In re Lupron Mktg. and Sales Practices Litig., 228 F.R.D. 75, 88 (D.Mass.2005) (citing Amchem, 521 U.S. at 620, 117 S.Ct. 2231). "This cautionary approach notwithstanding, the law favors class action settlements." Id. (citing City P'ship Co. v. Atl. Acquisition Ltd. P'ship, 100 F.3d 1041, 1043 (1st Cir.1996)).
To obtain class certification, the plaintiff must establish the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy of representation and demonstrate that the action may be maintained under Rule 23(b)(1), (2), or (3). See Smilow, 323 F.3d at 38 (citing Amchem, 521 U.S. at 614, 117 S.Ct. 2231). Here, Hazelrig seeks to obtain class certification pursuant to Rule 23(b)(1).
In light of the First Circuit's instruction in Smilow that the court to which a settlement is tendered conduct a "rigorous analysis of the prerequisites established by Rule 23," I address each of Rule 23 requirements, although only the typicality and the adequacy requirements appear to be in dispute.
In order to satisfy Rule 23(a)(1)'s numerosity requirement, Plaintiff must demonstrate that "the class [would be] so numerous that joinder of all members is impracticable." FED.R.CIV.P. 23(a)(1). This requirement is easily met here because the Settlement Class consists of approximately 12,000 Boston Scientific employees who held Boston Scientific stock in their Plan accounts during the Class Period.
Rule (23)(a)(2)'s commonality requirement is satisfied when "there are questions of law or fact common to the class." FED. R. CIV. P. 23(a)(2). "While at least one common issue of fact or law at the core of the action must shape the class, Rule 23(a) does not require that every class member share every factual and legal predicate of the action." In re Lupron, 228 F.R.D. at 88. "The threshold of commonality is not a difficult one to meet." In re Relafen Antitrust Litig., 231 F.R.D. 52, 69 (D.Mass.2005).
In this case, there are a number of common issues of fact and law that the Settlement Class members bear upon in
The typicality requirement set forth in Rule 23(a)(3) requires that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." FED.R.CIV.P. 23(a)(3). "The representative plaintiff satisfies the typicality requirement when its injuries arise from the same events or course of conduct as do the injuries of the class and when plaintiff's claims and those of the class are based on the same legal theory." In re Credit Suisse-AOL Sec. Litig., 253 F.R.D. 17, 23 (D.Mass.2008). The typicality inquiry "is designed to align the interests of the class and the class representatives so that the latter will work to benefit the entire class through the pursuit of their own goals." In re Prudential Ins. Co. of Am. Sales Practice Litig., 148 F.3d 283, 311 (3d Cir.1998). "Rule 23(a)(3), however, does not require that the representative plaintiff's claims be identical to those of absent class members." In re Credit Suisse, 253 F.R.D. at 23.
Here, Plaintiff Hazelrig was a Boston Scientific employee and his claim arises from the fact he held Boston Scientific stock in its Plan account during the Class Period. Contrary to Hochstadt's allegations, Hazelrig's claim is therefore based on the same basic legal theory as the claims of all other class members. This fact is sufficient to support a finding of typicality because I need not determine that Plaintiff Hazelrig's claims and the claims of the Settlement Class are precisely aligned as to all issues in order to find that Hazelrig has satisfied his burden with respect to the typicality requirement. See In re Tyco Int'l, Ltd. Multidistrict Litig., No. MD-02-1335-PB, 2006 WL 2349338, at *6 (D.N.H. Aug. 15, 2006). Under these circumstances, for purposes of settlement only, I conclude that the claims asserted by Plaintiff Hazelrig are sufficiently typical of the claims of the Settlement Class as a whole to satisfy Rule 23(a)(3).
The final requirement articulated in Rule 23(a)(4) requires that the proposed class representatives "fairly and adequately protect the interests of the class." FED. R.CIV.P. 23(a)(4). This entails a two-prong showing: "The moving party must show first that the interests of the representative party will not conflict with the interests of any of the class members, and second, that counsel chosen by the representative party is qualified, experienced and able to vigorously conduct the proposed litigation." Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985).
The first prong of the test seeks to ensure that the interests of the class representatives are aligned with the interests of absent class members. For essentially the same reasons that Plaintiff Hazelrig's claims are "typical" of the claims of the Settlement Class, I find that, for purposes of the settlement,
In sum, all of the Rule 23(a) requirements are met.
Plaintiff Hazelrig seeks class certification under Rule 23(b)(1)(B).
FED.R.CIV.P. 23(b)(1)(B). Because Rule 23(b)(1) does not provide opt-out protections,
Generally, an action "charging `a breach of trust by an indenture trustee or other fiduciary similarly affecting the members of a large class' of beneficiaries, requiring an accounting or similar procedure `to restore the subject of the trust'" is a classic example of the type of case appropriate for certification under Rule 23(b)(1)(B). Ortiz, 527 U.S. at 833-34, 119 S.Ct. 2295 (quoting FED.R.CIV.P. 23 advisory committee's notes). Not surprisingly, therefore, "[i]n light of the derivative nature of ERISA § 502(a)(2) claims, breach of fiduciary duty claims brought under § 502(a)(2) are paradigmatic examples of claims appropriate for certification as a Rule 23(b)(1) class, as numerous courts have held." In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 604 (3rd Cir. 2009); Evans v. Akers, No. 04-11380-WGY, slip op. at 4 (D.Mass. Oct. 7, 2009) (finding class certification appropriate under Rule 23(b)(1)(B) because "[g]iven the Plan-representative nature of Named Plaintiffs' breach of fiduciary duty claims, there is a risk that failure to certify the Settlement Class would leave future plaintiffs without relief"); Stanford v. Foamex L.P., 263 F.R.D. 156, 174 (E.D.Pa.2009) ("because of the unique and representative nature of an ERISA § 502(a)(2) suit, numerous courts have held class certification proper pursuant to Rule 23(b)(1)(B)"); In re Nortel Networks Corp. ERISA Litig., No. 03-MD-01537, 2009 WL 3294827, at *15 (M.D.Tenn.2009) (finding class certification appropriate under Rule 23(b)(1)(B) because "[i]f individual adjudications would be dispositive of the interests of other Plan Participants, it would be better for those Plan Participants to be members of a class"); Jones v. NovaStar Fin., Inc., 257 F.R.D. 181, 193 (W.D.Mo.2009) (certifying a class under Rule 23(b)(1)(B) because "[g]iven that [named plaintiff]'s claim seeks `Plan-wide relief, there is a risk that failure to certify the class would leave future plaintiffs without relief'"); In re Merck & Co., Inc. Sec., Derivative & ERISA Litig., MDL No. 1658, 2009 WL 331426, at *10 (D.N.J. Feb. 10, 2009) (finding class certification appropriate under Rule 23(b)(1)(B) because "[i]f the prudence claims proceeded individually, and one court removed a Plan fiduciary, this would be, as a practical matter, dispositive of the interests of the other Plan members in that particular regard"); In re Tyco, Int'l, Ltd. Multidistrict Litig., 2006 WL 2349338, at *7 ("the majority of courts have concluded that certification under 23(b)(1)(B) is proper" for ERISA fiduciary class actions).
Given that the present case involves an ERISA § 502(a)(2) claim brought on behalf
Plaintiff Hochstadt argues that sub-classes should be created to reflect the greater needs of those of are "retired and approaching retirement."
Under Rule 23(c)(5), "[w]hen appropriate, a class may be divided into subclasses that are each treated as a class under this rule." FED.R.CIV.P. 23(c)(5). "Subclasses must be created when differences in the positions of class members require separate representatives and separate counsel." MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.23 (2004). Subclassing may also provide "structural guaranties that a proposed settlement is fair." Natchitoches Parish Hosp. Serv. Dist. v. Tyco Int'l, Ltd., 247 F.R.D. 253, 269 (D.Mass.2008) (citing 1 HERBERT B. NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS § 3.31 (4th ed. 2002) ("When the class members are united in interest on the liability issues but have potential conflicts regarding the nature of the relief or the division of a monetary award, the court may avoid the potential conflict by creating subclasses")).
I reject Hochstadt's contention that sub-classes should be created in this case because the needs-based sub-classes he proposes would not treat all class members in an equitable manner and would make the distribution of the Settlement Amount unduly complicated. Hochstadt cites no case law, and my research has not identified any, in which a court has certified sub-classes based on the personal needs of the class members rather than on their losses, which are at the core of their claims. Hochstadt does not, in any event, offer a way to create sub-classes to reflect the greater needs of those of are "retired and approaching retirement." Under these circumstances, I overrule Hochstadt's objection based upon a failure to create sub-classes in the present case. Moreover, to the degree that the differentiation of claims that subclassing allows is appropriate, I find the Revised Plan of Allocation serves that purpose adequately.
Pursuant to Rule 23(e), "[t]he claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval." FED.R.CIV.P. 23(e). When approving a settlement:
While "policy encourages settlements, the burden remains on the proponents to show that the settlement is reasonable." Nat'l Ass'n of Chain Drug Stores v. New England Carpenters Health Benefits Fund, 582 F.3d 30, 44 (1st Cir. 2009) (internal citations omitted). "Rule 23's reasonableness standard has been given substance by case law offering laundry lists of factors, most of them intuitively obvious and dependent largely on variables that are hard to quantify." Id. Nonetheless, there is generally a presumption in favor of the settlement "[i]f the parties negotiated at arm's length and conducted sufficient discovery." In re Pharm. Indus. Average Wholesale Price Litig., 588 F.3d 24, 32-33 (1st Cir.2009) (citing (City P'ship, 100 F.3d at 1043)). More specifically, a presumption of fairness attaches to the court's preliminary fairness determination when "(1) the negotiations occurred at arm's length; (2) there was sufficient discovery; (3) the proponents of the settlement are experienced in similar litigation; and (4) only a small fraction of the class objected." In re Lupron Mktg. and Sales Practices Litig., 345 F.Supp.2d 135, 137 (D.Mass.2004) (quoting In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785 (3d Cir. 1995)).
Plaintiff Hochstadt argues that the settlement agreement was the result of collusion and did not occur at arms' length. The record shows otherwise.
Even though the parties did not reach an agreement at that stage, settlement discussions began on February 10, 2009 during the pre-argument settlement conference at the Court of Appeals. The parties resumed settlement discussions on or about August 14, 2009. During the month that followed, they exchanged multiple settlement proposals and involved Paul W. Sandman, Boston Scientific's general counsel, in the settlement negotiations. On or about the evening of September 11, 2009, the parties reached an agreed compromise to settle the ERISA Actions. Thereafter, the parties' counsel spent two months detailing the settlement terms.
Under these circumstances, I find that the time spent and the efforts made by parties on both sides during the settlement negotiations are persuasive indicators that the Amended Settlement Agreement was not the result of collusion but rather the result of negotiations conducted at arms' length. Accordingly, I conclude that this requirement is satisfied.
Plaintiff Hochstadt alleges that the proponents of the settlement cannot justify the Settlement Amount because the discovery has not been completed. In doing so, Hochstadt misconceives the applicable standard, which does not require that discovery be completed, but rather that sufficient discovery be conducted to make an intelligent judgment about settlement.
Applying this standard, I find that sufficient discovery was undertaken. Fact discovery began in 2006 with ERISA I. When the parties engaged in fact discovery for ERISA II, they resumed fact discovery
The experience of co-lead counsel in this case is apparent from their prosecution of the ERISA Actions over the last four years. They have worked from the inception of their pre-filing factual investigation, filed the successive complaints and conducted discovery. In addition, they have significant class action experience in ERISA and related investor disputes and in class action litigation generally. Plaintiff Hochstadt recognizes that, in his words, "[t]here is no doubt that proposing counsel teams have extensive experience in the field." Accordingly, I am satisfied that the proponents of the settlement are experienced in similar litigation.
Because the notice to the Settlement Class has not yet been issued, this factor can only be assessed preliminarily based on the objection of Plaintiff Hochstadt. To date, Hochstadt is the only known objector to the Amended Settlement Agreement. However, when the notice will be issued, other putative class members will be given a full opportunity to develop and lodge any objection. In doing so, putative class members will be able to rely on the independent fiduciary's report, which will be made publicly available at least thirty days before the expiration of the deadline for objecting to the Amended Settlement Agreement.
Whether a significant number of the class members will ultimately object to the Amended Settlement Agreement when it is proposed for final approval will be further discussed at that time. At this point, there is but one objector, a party who has variously sought, then abandoned and then sought again representative status.
Under these circumstances and for purposes of this preliminary review, I find the Amended Settlement Agreement to be fair, adequate and reasonable as a general proposition. I turn now to specific objections.
Hochstadt first objects to the Settlement Amount, as defined in paragraph 1.1.37 of the Amended Settlement Agreement, which he considers to be "inadequate." I find, however, that the amount of $8.2 million offered by Defendants is reasonable in light of the risks of continuing litigation. As noted by Plaintiff Hazelrig, ERISA I has been dismissed and the outcome of the appeal from that dismissal remains unknown. Both ERISA I, if reinstated, and ERISA II could face significant legal and factual hurdles in obtaining any recovery greater than the Settlement
Moreover, as it bears noting, see Note 5 supra, that I have today granted summary judgment for Defendants in the parallel securities litigation on the TAXUS recall claim and that Plaintiffs in that litigation had earlier abandoned the FDA warning and other claims. In short, the amount of $8.2 million, which represents approximately 27% of the more conservatively estimated $30 million loss, is plainly reasonable in a disputable matter such as this.
In sum, the risks of continuing litigation and the best possible recovery make it uncertain, if not unlikely, that Defendants would ever be required to pay more, through further litigation than they are willing to pay now. Accordingly, I find the Settlement Amount to be reasonable.
Hochstadt also objects to the proposed distribution of the Settlement Amount.
As with the settlement itself, "the plan of allocation must be fair, reasonable, and adequate." In re Tyco Int'l, Ltd. Multidistrict Litig., 535 F.Supp.2d 249, 262 (D.N.H.2007). For the reasons discussed in Section II.C. supra with respect
Furthermore, I find the Revised Plan of Allocation to be reasonable because its provides for payments of settlement proceeds to class members based upon discrete disclosure events that occurred during the Class Period. Under this Revised Plan of Allocation, Plan participants who held and purchased Boston Scientific stock in the Plan prior to the various disclosures of the TAXUS stent problems and FDA issues but did not sell until after such disclosures were made, have "Recognizable Claims," whereas those who sold before the disclosures were made are not entitled to receive any settlement proceeds. In addition, damages are limited to the actual market loss a Plan participant actually incurred; therefore if the Plan participant had a market gain, he will not be deemed not to have suffered any damages.
Under these circumstances and for purposes of this preliminary review, I find the Revised Plan of Allocation to be fair, reasonable, and adequate. In addition, I note that, as part of its review of the Amended Settlement Agreement, the independent fiduciary will specifically review the allocation formula for reasonableness and the results of that review will be available before the final fairness hearing is conducted.
Finally, Hochstadt argues that the proposed class notice is inappropriate because it does not clearly and concisely recite the distribution of the Amended Settlement Amount or any method for calibrating the apportionment of the proceeds in light of the age of the class members.
While it is not mandatory, "the court may direct appropriate notice to the class" certified under Rule 23(b)(1). FED. R.CIV.P. 23(c)(2)(A). Contrary to Hochstadt's allegations, I find the Revised Class Notice, as defined in Exhibit B.1 of the Amended Settlement Agreement, to be appropriate because it clearly provides background information on the ERISA Actions, accurately recites the legal rights and options of the Settlement Class and fully explains the Revised Plan of Allocation of the Settlement Amount in the light of the discrete disclosure events that occurred during the Class Period.
For the reasons set forth more fully above, I GRANT class certification of the Settlement Class, as defined in paragraph 1.1.29 of the Amended Settlement Agreement, and AUTHORIZE the publication of the Revised Class Notice, as defined in Exhibit B.1 of the Amended Settlement Agreement. A Final Fairness Hearing will be held before me in Courtroom 1 of the John Joseph Moakley Courthouse in Boston at 2:30 p.m., August 5, 2010.
The existence of similar detailed intraclass conflicts has not been raised or argued by Plaintiff Hochstadt. Rather Hochstadt merely asserts "the presently `proposed' representatives are not [adequate] representative because they did not lose money[,] were not injured." See Note 8 supra and accompanying text. At this stage of the proceeding, I am satisfied that the Revised Plan of Allocation adequately addresses any problems of intraclass conflict.
Id. § II.D. The entire Revised Plan of Allocation is attached as Exhibit A to this Memorandum and Order.
