Case 2:05-cv DRH-AKT Document 202 Filed 12/21/17 Page 1 of 12 PageID #: 8234 ) ) ) ) ) ) ) ) ) )

Transcription

1 Case 2:05-cv DRH-AKT Document 202 Filed 12/21/17 Page 1 of 12 PageID #: 8234 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK IN RE SYMBOL TECHNOLOGIES, INC. SECURITIES LITIGATION Case No.: 05-cv-3923 (DRH-AKT (PROPOSED ORDER ESTABLISHING PROGRAM AND SCHEDULE FOR CLASS NOTICE By Orders dated June 25, 2015, August 3, 2015, and June 20, 2016, this Court certified the following Class in this action: All purchasers of Symbol Technologies, Inc. (Symbol common stock during the period from March 12, 2004 through and including August 1, 2005 (the Class Period who were damaged thereby, excluding Defendants, officers and directors of Symbol and 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. The Court hereby establishes the following program and schedule for notice to the Class of this pending class action: 1. The Court approves the Postcard Notice of Pendency of Class Action, Long-Form Notice of Pendency of Class Action and Summary Notice, attached hereto as Exhibits A, B and C, respectively; 2. Class Counsel shall cause to be mailed, by first class mail, the Postcard Notice of Pendency of Class Action, substantially in the forms annexed hereto as Exhibit A, to all class members who can be identified through reasonable effort; 3. Class Counsel shall cause copies of the Long Form Notice of Pendency of Class

2 Case 2:05-cv DRH-AKT Document 202 Filed 12/21/17 Page 2 of 12 PageID #: 8235 Action, substantially in the form annexed hereto as Exhibit B, to be posted on a website, 4. Class Counsel may employ KCC Class Action Services as Notice Administrator, to assist in the providing of class notice; 5. Class Counsel shall cause the published Summary Notice to be disseminated via Business Wire on the tenth business day after the mailing of the Postcard Notice of Pendency of Class Action; 6. The costs of notice shall be borne by Lead Plaintiff and Class Counsel and not by Defendants; and 7. Class Counsel will direct the Notice Administrator, KCC Class Action Services, 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, the number of shares purchased and, if sold, the date those purchased shares were sold. The Notice Administrator will transmit this information to Defendants counsel by overnight delivery via Federal Express or any other nationally-recognized overnight courier to be sent no later than thirty (30 days after the deadline for exclusion. Dated:, 2017 SO ORDERED. Honorable Denis R. Hurley United States District Judge 2

3 Case 2:05-cv DRH-AKT Document 202 Filed 12/21/17 Page 3 of 12 PageID #: 8236 Exhibit A Important Legal Notice authorized by the United States District Court for the Eastern District of New York about a Securities Class Action. If you purchased or otherwise acquired common stock of Symbol Technologies, Inc. ( Symbol during the period March 12, 2004 through August 1, 2005, inclusive, you may be affected by a class action lawsuit that is currently pending. THIS NOTICE MAY AFFECT YOUR LEGAL RIGHTS. PLEASE READ IT CAREFULLY. Court-Ordered Legal Notice SYMBOL TECH. SECURITIES LITIGATION C/O KCC Class Action Services P.O. Box Louisville, KY [NAME] [ADDRESS] [CITY] [STATE] [ZIP] [COUNTRY]

4 Case 2:05-cv DRH-AKT Document 202 Filed 12/21/17 Page 4 of 12 PageID #: 8237 Exhibit A In re Symbol Technologies, Inc., Securities Litigation, No. 05-cv-3923-DRH-AKT (E.D.N.Y. THIS CARD ONLY PROVIDES LIMITED INFORMATION ABOUT THE ACTION. VISIT FOR MORE INFORMATION An entity that purchased common stock of Symbol Technologies, Inc. ( Symbol or the Company has sued Symbol along with certain of its former management and directors ( Defendants for violation of federal securities laws, alleging that, between March 12, 2004 and August 1, 2005 (the Class Period, Defendants made misleading statements about the Company s internal controls and published revenue guidance that lacked any reasonable basis. This Notice is issued pursuant to Rule 23 of the Federal Rules of Civil Procedure and Orders of the United States District Court for the Eastern District of New York (the Court, entered June 25, 2015, August 3, 2015, and June 20, 2016, certifying the above action as a Class Action. Who s Included? If you purchased or otherwise acquired shares of Symbol common stock during the Class Period you may be a member of the Class. If you purchased or otherwise acquired Symbol common stock during the Class Period for the beneficial interest of a Class member, you are required to forward this notice to the beneficial owners of Symbol common stock or provide their contact information to the Notice Administrator, KCC Class Action Services, P.O. Box , Louisville, KY or Nominees@SymbolTechnologiesSecuritiesLitigation.com. Who Represents Me? The Court has appointed attorneys at Pomerantz LLP as Class Counsel to represent the Class on a contingent fee basis. You may hire your own lawyer to represent you at your own expense. Iron Workers Local #580 Pension Fund ( Plaintiff is a Class member, and the Court has appointed it to serve as the Class Representative. What Are My Rights & Options? You have a choice of whether to stay in the Class or exclude yourself from it by [45 days after the Postcard Notice is mailed]. If you do nothing, you are choosing to stay in the Class, and are allowing the Court-appointed Class Counsel and Class Representative to continue to represent you and the Class and move forward with the lawsuit on your behalf. If the case settles or the Court enters a judgment in favor of the Plaintiff, you will get the benefit of that settlement or judgment. If you do nothing, you will remain in the lawsuit and cannot bring your own case against the Defendants for the legal claims included in this lawsuit. If you choose to exclude yourself, you will not be entitled to recover monetary benefits from Plaintiff s efforts, but you will be entitled to pursue any individual remedy which you may have at your own expense. To ask to be excluded, send a letter to the return address postmarked by [45 days after the Postcard Notice is mailed] stating you want to be excluded from In re Symbol Technologies, Inc, Securities Litigation, Case No. 05-cv Include your name, address, telephone number, and signature, as well as the total number of Symbol shares purchased and the date the Symbol shares were purchased. Want More Information? Go to or call Do not contact the Court, Defendants or their counsel in this Action with questions.

5 Case 2:05-cv DRH-AKT Document 202 Filed 12/21/17 Page 5 of 12 PageID #: 8238 Exhibit B UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK IN RE SYMBOL TECHNOLOGIES, INC. SECURITIES LITIGATION Case No.: 05-cv-3923 (DRH-AKT NOTICE OF PENDENCY OF CLASS ACTION PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS MAY BE AFFECTED BY PROCEEDINGS IN THIS ACTION. TO: ALL PURCHASERS OF SYMBOL TECHNOLOGIES, INC. COMMON STOCK DURING THE PERIOD FROM MARCH 12, 2004 THROUGH AND INCLUDING AUGUST 1, Excluded from the Class are the defendants, officers and directors of Symbol Technologies, Inc. and members of their immediate families and their legal representative, heirs, successors or assigns, and any entity in which Defendants have or had controlling interest. PLEASE NOTE: THIS CASE HAS NOT BEEN SETTLED. THIS NOTICE IS INTENDED ONLY TO INFORM YOU THAT A CLASS ACTION IS CURRENTLY IN PROGRESS. THERE IS NO CLAIM FORM TO BE MAILED. This Notice is issued pursuant to Rule 23 of the Federal Rules of Civil Procedure and Orders of the United States District Court for the Eastern District of New York (the Court, entered June 25, 2015, August 3, 2015, and June 20, 2016, certifying the above action as a Class Action. The purpose of this Notice is to inform you of: (a the pendency of the captioned class action before the Honorable Denis R. Hurley, in the United States District Court for the Eastern District of New York (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. If you purchased shares of Symbol Technologies, Inc. common stock during the period of March 12, 2004 through August 1, 2005, both dates inclusive, you may be a member of the Class. As a Class Member, you will be bound by the result of any trial of the Action, any judgment entered by the Court, and any determination made by the Court, unless you timely mail a request for exclusion, as described below, postmarked no later than [45 days after the Postcard Notice is

6 Case 2:05-cv DRH-AKT Document 202 Filed 12/21/17 Page 6 of 12 PageID #: 8239 Exhibit B mailed]. Summary of the Action DESCRIPTION OF THE ACTION The Class Representative in this action is Ironworkers Local #580 Pension Fund, which the Court has appointed to represent the Class. The Defendants in this action are Symbol Technologies Inc. ( Symbol or the Company and certain of Symbol s former officers and directors: William R. Nuti, Mark T. Greenquist, Salvatore Iannuzzi, Todd Abbott, and James M. Conboy, (the Individual Defendants and collectively with Symbol, the Defendants. The Second Consolidated Amended Class Action Complaint ( Complaint alleges that, during the Class Period, Defendants made misleading statements about the Company s internal controls and published revenue guidance that lacked any reasonable basis. The Complaint alleges that on November 8, 2004, the Company issued a press release stating that it would delay the filing of its quarterly report with the Securities and Exchange Commission ( SEC for the third quarter of The Company announced that two discrete errors had been discovered that resulted in an overstatement of revenues by approximately $13 million. The Complaint alleges that as a result of this news, Symbol s stock price declined from $15.20 to $ According to the Complaint, on May 3, 2005, after the market closed, Symbol announced its financial results for the first quarter of 2005, reporting revenues of $457.5 million, $7.5 million less than the Company s previously announced guidance, and reduced its financial guidance for the rest of the year. The Complaint further alleges that Symbol s stock price thereafter declined from $12.98 to $10.97 on May 4, The Complaint alleges that on June 28, 2005, with only three days left in the second quarter, Symbol issued a press release slashing its second quarter revenue guidance from $ million to $440 million. As a result, the Complaint alleges, Symbol s stock fell from $10.47 to $9.72 on June 29, On July 14, 2005, two weeks after the second quarter had ended, Symbol further reduced second quarter 2005 revenue guidance from $440 million to $ million, and also announced the resignation of Chief Financial Officer Mark Greenquist. The Complaint alleges that as a result of this news, Symbol shares declined from $12.46 to $11.11 on July 15, The Complaint alleges that on August 1, 2005, Symbol announced that Chief Executive Officer William Nuti had resigned. According to the Complaint, in response to this news, Symbol s stock price declined from $11.64 to $9.85. The Defendants have denied all claims and wrongdoing asserted in the Complaint and any liability arising out of the conduct alleged therein. Defendants believe the facts do not 2

7 Case 2:05-cv DRH-AKT Document 202 Filed 12/21/17 Page 7 of 12 PageID #: 8240 Exhibit B support Lead Plaintiff s allegations and that Lead Plaintiff will not be able to establish Defendants are liable under the securities laws or responsible for any damages. No trial has yet been scheduled in this Action and no findings of fault or liability have been made as to any of the parties. Prosecution of the Action This action was commenced on August 16, On April 26, 2006, the Court appointed Ironworkers Local #580 Pension Fund as Lead Plaintiff. Lead Plaintiff filed the Consolidated Amended Class Action Complaint ( Amended Complaint on August 30, In response, Defendants moved to dismiss Lead Plaintiff s claims. On December 5, 2013, this Court denied Defendants motion. See In re Symbol Techs., Inc. Sec. Litig., 2013 U.S. Dist. LEXIS (E.D.N.Y. Dec. 5, On January 31, 2014, Defendants filed their Answer to the Amended Complaint, denying all claims and wrongdoing asserted, as well as any liability arising out of the conduct alleged in the Amended Complaint. The Defendants also asserted certain affirmative defenses to the claims made in the Amended Complaint, including that any injury suffered by Class Members was not caused by the Defendants conduct. By order dated June 25, 2015, the Court certified the Class, appointed Ironworkers Local #580 Pension Fund as the Class Representative and Pomerantz LLP as Class Counsel. See In re Symbol Techs., Inc. Sec. Litig., 2015 U.S. Dist. LEXIS (E.D.N.Y. Jun. 25, Certification of the Class means that the action was legally recognized as a Class Action pursuant to Rule 23 of the Federal Rules of Civil Procedure. By orders dated August 3, 2015 and June 20, 2016, the Court modified the class definition. The class definition is as follows: All purchasers of Symbol Technologies, Inc. ( Symbol common stock during the period from March 12, 2004 through and including August 1, 2005 (the Class Period who were damaged thereby, excluding Defendants, officers and directors of Symbol and members of their immediate families and their legal representative, heirs, successors or assigns, and any entity in which Defendants have or had controlling interest. Discovery has not yet been completed. The Court has not yet set a deadline for filing summary judgment motions. Nor has the Court scheduled a trial date. This Notice is being sent to notify you that you may be a member of the Class whose rights could be affected by this Action. It is not an expression of any opinion by the Court concerning the merits of the Action. There is no assurance that a judgment in favor of the Class will be granted. This Notice is intended to advise you of the pendency of the Action and of your rights with respect to the Action, including the right either to remain a Class Member or to exclude yourself from the Class. INSTRUCTIONS TO CLASS MEMBERS If you fit the description of a Class Member, you have a choice whether or not to remain a member of the Class on whose behalf this Action is being maintained. 3

8 Case 2:05-cv DRH-AKT Document 202 Filed 12/21/17 Page 8 of 12 PageID #: 8241 Exhibit B If you wish to remain a Class Member, you are not required to do anything at this time. If you do nothing, you will remain a Class Member and will be bound by the result of any judgment, before or after trial, whether favorable or unfavorable. If you choose to remain in the Class, you will not be able to pursue a lawsuit on your own with regard to any of the issues that were or could have been decided in this Action. If you remain in the Class, you are not personally responsible for any expenses or attorneys fees. If there is a recovery, you may be entitled to share in the proceeds, less costs, expenses, plaintiff reimbursement award and attorneys fees as the Court may allow out of any recovery. There is no settlement or judgment in the case at this time. In the event of recovery, you will only be able to share in a recovery in this case if you are a member of the Class and if you did not sell your Symbol stock prior to November 8, The Class is represented by: Marc I. Gross, Esq. Michael J. Wernke, Esq. Pomerantz LLP 600 Third Avenue 20th Floor New York, New York Telephone: If you desire to be excluded from the Class, you must state so in writing. Your request for exclusion must state: your desire to be excluded from the Class, the name and address of the person or entity requesting exclusion, that such person or entity requests exclusion from the Class in this Action, the number of Symbol shares purchased and the date the Symbol shares were purchased, and must be signed by that person or entity requesting exclusion from the Class. Requests for exclusion must be transmitted by first class mail or overnight delivery service to the following address: Notice Administrator Symbol Technologies Securities Litigation c/o KCC Class Action Services P.O. Box Louisville, KY To be effective, your Request for exclusion must be postmarked no later than [45 days after the Postcard Notice is mailed]. If you wish to participate in this Action, do not request exclusion. If you exclude yourself from the Class, you will not be bound by any judgment or decision by the Court in this Action, but you will also not be entitled to share in the benefits of any judgment favorable to the Class or from any Court-approved settlement that may be entered into on behalf of the Class. If you request exclusion, you would be entitled to pursue any individual remedy which you may have, but only at your own expense. Your Right to Appear 4

9 Case 2:05-cv DRH-AKT Document 202 Filed 12/21/17 Page 9 of 12 PageID #: 8242 Exhibit B If you do not request exclusion from the Class in the manner set forth above, you may, if you so desire, enter an appearance through an attorney of your own choice. If you wish, you may also consult with your own counsel concerning your rights in this action. If you do not timely request exclusion from the Class in writing postmarked by [45 days after the Postcard Notice is mailed], you will be considered a Class Member, and you will be bound by any judgment in this Action and will not be able to pursue any individual remedy which you may have. NOTICE TO BANKS, BROKERS AND OTHER NOMINEES The Court has ordered that if you held any Symbol common stock purchased during the Class Period as nominee for a beneficial owner, then, within ten (10 days after you receive this Notice, you must either: (1 provide a list of the names and addresses of such beneficial owners to the Claims Administrator, preferably in an MS Excel data table setting forth: (a title/registration, (b street address, (c city/state/zip; on electronic mailing labels in MS Word file (label size Avery #5162, or printed out on physical mailing labels; or (2 send copies of this Notice and Proof of Claim by first class mail to all such beneficial owners, providing written confirmation to the Claims Administrator of having done so. If you choose to mail the Notice yourself, you may obtain (without cost to you as many additional copies of these documents as you will need to complete the mailing by either downloading a copy from the Claims Administrator s website, or by contacting the Claims Administrator at: Symbol Technologies Securities Litigation c/o KCC Class Action Services P.O. Box Louisville, KY nominees@symboltechnologiessecuritieslitigation.com Whether you choose to complete the mailing yourself or elect to have the mailing performed for you, you may obtain reimbursement for reasonable administrative costs of complying with this provision, upon submission of appropriate documentation to the Claims Administrator. EXAMINATION OF PAPERS AND INQUIRIES For further information about the Actions, you may contact Class Counsel at the addresses listed above or consult the pleadings and other papers filed in the Actions at the Office of the Clerk of the United States District Court for the Eastern District of New York, 100 Federal Plaza, Central Islip, NY 11722, during normal business hours of each business day. If you have an account with PACER, you may consult the pleadings and other papers via Electronic Case Filing at the website of the Eastern District of New York, If you have any questions concerning this case or your membership in the Class please contact: 5

10 Case 2:05-cv DRH-AKT Document 202 Filed 12/21/17 Page 10 of 12 PageID #: 8243 Exhibit B Notice Administrator Symbol Technologies Securities Litigation c/o KCC Class Action Services P.O. Box Louisville, KY info@symboltechnologiessecuritieslitigation.com Telephone: INQUIRIES SHOULD NOT BE DIRECTED TO THE COURT, THE CLERK S OFFICE, THE DEFENDANTS, OR DEFENDANTS COUNSEL. Dated:, 2017 By Order of the Court United States District Court Eastern District of New York 6

11 Case 2:05-cv DRH-AKT Document 202 Filed 12/21/17 Page 11 of 12 PageID #: 8244 Exhibit C UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK IN RE SYMBOL TECHNOLOGIES, INC. SECURITIES LITIGATION Case No.: 05-cv-3923 (DRH-AKT SUMMARY NOTICE OF PENDENCY OF CLASS ACTION TO: ALL PURCHASERS OF SYMBOL TECHNOLOGIES, INC. COMMON STOCK DURING THE PERIOD FROM MARCH 12, 2004 THROUGH AND INCLUDING AUGUST 1, 2005 (THE CLASS PERIOD. Excluded from the Class are the defendants, officers and directors of Symbol Technologies, Inc. and members of their immediate families and their legal representative, 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. Notice is hereby given pursuant to Rule 23 of the Federal Rules of Civil Procedure and Orders of the United States District Court for the Eastern District of New York (the Court, entered June 25, 2015, August 3, 2015, and June 20, 2016, certifying the above action as a Class Action. This Action has not been settled and continues to be litigated. Accordingly, no claim form need be filed at this time. 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 in accordance with the directions set forth in a more detailed Notice of Pendency of Class Action, which was mailed separately to persons and entities identified from the records of defendant Symbol Technologies, Inc. as members of the Class. That Notice of Pendency of Class Action describes the Class Action and your rights with respect thereto.

12 Case 2:05-cv DRH-AKT Document 202 Filed 12/21/17 Page 12 of 12 PageID #: 8245 Exhibit C If you have not received a more detailed Notice by mail, please contact in writing: Notice Administrator Symbol Technologies, Inc. Securities Litigation c/o KCC Class Action Services P.O. Box Louisville, KY info@symboltechnologiessecuritieslitigation.com Telephone: Inquiries, other than requests for the Notice, may be made to Class Counsel: Michael J. Wernke POMERANTZ LLP 600 Third Avenue, 20th Floor New York, New York Telephone: Facsimile: INQUIRIES SHOULD NOT BE DIRECTED TO THE COURT, THE CLERK S OFFICE, THE DEFENDANTS, OR DEFENDANTS COUNSEL Dated:, 2017 By Order of the Court United States District Court Eastern District of New York