Case 9:14-cv-81323-DMM Document 161 Entered on FLSD Docket 01/30/2017 Page 1 of 9 THE CITY OF LOS ANGELES, ACTING THROUGH ITS FIRE AND POLICE PENSION SYSTEM, ACTING BY ORDER OF AND THROUGH ITS BOARD OF FIRE AND POLICE PENSION COMMISSIONERS, Individually and on Behalf of All Others Similarly Situated, vs. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE No. 9:14-cv-81323-DMM Plaintiff, BANKRATE, INC., EDWARD J. DIMARIA, KENNETH S. ESTEROW, GOLDMAN SACHS & CO., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, RBC CAPITAL MARKETS, LLC, and STEPHENS, INC., Defendants. REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF (I) LEAD PLAINTIFF S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND PLAN OF ALLOCATION AND (II) LEAD COUNSEL S MOTION FOR AN AWARD OF ATTORNEYS FEES AND EXPENSES
Case 9:14-cv-81323-DMM Document 161 Entered on FLSD Docket 01/30/2017 Page 2 of 9 TABLE OF CONTENTS Page I. PRELIMINARY STATEMENT... 1 II. ARGUMENT... 2 A. The Settlement Class s Reaction Strongly Supports Approval of the Settlement and the Plan of Allocation... 2 B. The Settlement Class s Reaction Also Strongly Supports Approval of Lead Counsel s Fee and Expense Requests... 3 III. CONCLUSION... 4 i
Case 9:14-cv-81323-DMM Document 161 Entered on FLSD Docket 01/30/2017 Page 3 of 9 TABLE OF AUTHORITIES Page(s) Cases Bennett v. Behring Corp., 737 F.2d 982 (11th Cir. 1984)...2 Camp v. City of Pelham, No. 2:10-cv-01270-MHH, 2014 U.S. Dist. LEXIS 60496 (N.D. Ala. May 1, 2014)...3 In re Chicken Antitrust Litig. Am. Poultry, 669 F.2d 228 (5th Cir. 1982)...3 In re EVCI Career Colls. Holding Corp. Sec. Litig., No. 05 Civ. 10240 (CM), 2007 U.S. Dist. LEXIS 57918 (S.D.N.Y. July 27, 2007)...3 In re Healthsouth Corp. Secs. Litig., No. CV-03-BE-1500-S, 2008 U.S. Dist. LEXIS 123365 (N.D. Ala. Feb. 12, 2008)...3 Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298 (S.D. Fla. 2005)...2, 3 Morgan v. Public Storage, Case No.: 14-cv-21559-Ungaro/Otazo-Reyes, 2016 U.S. Dist. LEXIS 54937 (S.D. Fla. Mar. 9, 2016)...3 Pinto v. Princess Cruise Lines, 513 F. Supp. 2d 1334 (S.D. Fla. 2007)...3 Thorpe v. Walter Inv. Mgmt. Corp., Case No. 1:14-cv-20880-UU, 2016 U.S. Dist. LEXIS 144133 (S.D. Fla. Oct. 14, 2016)...2 ii
Case 9:14-cv-81323-DMM Document 161 Entered on FLSD Docket 01/30/2017 Page 4 of 9 Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Court-appointed Lead Plaintiff, the City of Los Angeles, Acting through its Fire and Police Pension System, Acting by order of and through its Board of Fire and Police Pension Commissioners ( Lead Plaintiff ), on behalf of itself and the Settlement Class 1 in the Action, respectfully submits this reply memorandum of law in further support of (1) Lead Plaintiff s Motion for Final Approval of Class Action Settlement and Plan of Allocation (DE 158) and (2) Lead Counsel s Motion for an Award of Attorneys Fees and Expenses (DE 159). I. PRELIMINARY STATEMENT In accordance with the Court s Order Granting Lead Plaintiff s Unopposed Motion for Preliminary Approval of Proposed Class Action Settlement dated August 24, 2016 (DE 156) 2, the Court-authorized Claims Administrator for the Settlement, JND Legal Administration ( JND ), has disseminated over 37,180 copies of the Notice to potential Settlement Class Members and nominees. 3 The Notice informed recipients of, among other things, the essential terms of the Settlement, the Plan of Allocation, and Lead Counsel s intention to apply to the Court for an award of attorneys fees in an amount not to exceed 10% of the Settlement Fund and reimbursement of expenses paid or incurred in connection with the institution, prosecution and resolution of the claims against Defendants, in an amount not to exceed $250,000. In addition, the Notice along with the papers in support of final approval of the Settlement, the Plan of Allocation, and Lead Counsel s fee and expense requests was made available on the website established for the Settlement, www.bankratesettlement.com, and the Summary Notice was published in Investor s Business Daily and transmitted over PR Newswire. 4 The January 17, 1 All capitalized terms that are not defined herein have the meanings set forth in the Stipulation and Agreement of Settlement, dated July 18, 2016 (DE 154) (the Stipulation ) and the Declaration of Andrew L. Zivitz and Johnston de F. Whitman, Jr. in Support of: (I) Lead Plaintiff s Motion for Final Approval of Class Action Settlement and Plan of Allocation; and (II) Lead Counsel s Motion for an Award of Attorneys Fees and Expenses (DE 160). 2 This Order was amended on August 25, 2016 (DE 157) to revise the date of the Settlement Fairness Hearing. 3 See Supplemental Affidavit of Jennifer M. Keough Regarding (A) Mailing of the Notice and Proof of Claim Form; (B) Report on Requests for Exclusion Received; and (C) Report on Proof of Claim Forms Received to Date, dated January 27, 2017 (the Supp. JND Aff. ) at 3, attached hereto as Exhibit A. 4 See Affidavit of Jennifer M. Keough Regarding (A) Mailing of the Notice and Proof of Claim Form; (B) Publication of the Summary Notice; (C) Establishment of the Telephone Hotline; (D) 1
Case 9:14-cv-81323-DMM Document 161 Entered on FLSD Docket 01/30/2017 Page 5 of 9 2017 deadline to file an objection to any aspect of the Settlement or to submit a request for exclusion from the Settlement Class has passed. Lead Plaintiff and Lead Counsel are pleased to advise the Court that they have not received a single objection to the Settlement, the Plan of Allocation, or the requested attorneys fees and expenses. In addition, no requests for exclusion from the Settlement Class have been received. Supp. JND Aff. at 5. Further, the Court-appointed Lead Plaintiff, which has prosecuted, monitored, and overseen this complex litigation, supports both the Settlement and Lead Counsel s application for attorneys fees and expenses. The absence of any objection to the Settlement, the Plan of Allocation, or the fee and expense requests, as well as the lack of any request for exclusion from the Settlement Class, support the Court s approval of both pending motions. II. ARGUMENT A. The Settlement Class s Reaction Strongly Supports Approval of the Settlement and the Plan of Allocation Lead Plaintiff and Lead Counsel respectfully submit that their opening papers in support of the motion for final approval of the Settlement and Plan of Allocation amply demonstrate that the motion should be granted. Now that the time for submitting objections has passed, the Settlement Class s reaction also clearly supports approval. As discussed in Lead Plaintiff s opening papers (DEs 158 & 160), the Eleventh Circuit has established the substance and amount of opposition to the settlement as a factor for courts to consider in determining whether a proposed class action settlement is fair, reasonable and adequate. See Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984); see also Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298, 1324 (S.D. Fla. 2005) ( In determining whether a proposed settlement is fair, reasonable and adequate, the reaction of the class is an important factor. ). To that end, it is well settled that the complete absence or even a small number of objections to a proposed class action settlement is strong evidence that the settlement is fair and reasonable. See Thorpe v. Walter Inv. Mgmt. Corp., Case No. 1:14-cv-20880-UU, 2016 U.S. Dist. LEXIS 144133, at *10-11 (S.D. Fla. Oct. 14, 2016) ( The overwhelmingly positive reaction of class members to a proposed settlement is a significant factor, and the absence of objections is Establishment of the Settlement Website; and (E) Report on Requests for Exclusion Received to Date, dated December 29, 2016 (DE 160-1) (the JND Aff. ), at 12. 2
Case 9:14-cv-81323-DMM Document 161 Entered on FLSD Docket 01/30/2017 Page 6 of 9 excellent evidence of the settlement s fairness and adequacy. ) (citation omitted); Camp v. City of Pelham, No. 2:10-cv-01270-MHH, 2014 U.S. Dist. LEXIS 60496, at *11 (N.D. Ala. May 1, 2014) ( The lack of objections points to the reasonableness of [the] proposed settlement and supports its approval. ) (citation omitted); Lipuma, 406 F. Supp. 2d at 1324 (finding that even a low percentage of objections points to the reasonableness of a proposed settlement and supports its approval ). Following the thorough notice campaign undertaken in accordance with the Court s Preliminary Approval Order, the fact that there is not a single objection strongly supports approval of the Settlement. In addition, there have been no objections to the Plan of Allocation. As discussed in Lead Plaintiff s opening papers, just like the Settlement as a whole, a proposed plan of allocation must be fair, reasonable and adequate. See In re Chicken Antitrust Litig. Am. Poultry, 669 F.2d 228, 238 (5th Cir. 1982). Here, Lead Counsel submits that the Plan of Allocation which was prepared after careful consideration and with the assistance of Lead Plaintiff s damages consultant is fair and reasonable. See DE 158, pp. 22-23. The Settlement Class s reaction provides additional strong support for approving the Plan of Allocation. 5 B. The Settlement Class s Reaction Also Strongly Supports Approval of Lead Counsel s Fee and Expense Requests Finally, no Settlement Class Member has objected to Lead Counsel s motion for an award of attorneys fees and reimbursement of expenses. The lack of any objection is strong evidence that the requested amount of fees and expenses is reasonable. See Morgan v. Public Storage, Case No.: 14-cv-21559-Ungaro/Otazo-Reyes, 2016 U.S. Dist. LEXIS 54937, at *44-45 (S.D. Fla. Mar. 9, 2016) (finding receipt of only one timely objection to the requested attorneys fees to weigh in favor of the requested fee award), Pinto v. Princess Cruise Lines, 513 F. Supp. 2d 1334, 1343 (S.D. Fla. 2007) ( Here, none of the over 18,000 Class members has objected to Class Counsel s fee request. That this sizeable class did not give rise to a single objection on the fees request further justifies the full award. ). 5 See In re Healthsouth Corp. Secs. Litig., Consolidated Case No. CV-03-BE-1500-S, 2008 U.S. Dist. LEXIS 123365, at *7-8 (N.D. Ala. Feb. 12, 2008) (finding only one objection to the plan of allocation to be a reflection of the fairness of the Plan of Allocation to the Class Members as a whole ); In re EVCI Career Colls. Holding Corp. Sec. Litig., No. 05 Civ. 10240 (CM), 2007 U.S. Dist. LEXIS 57918, at *34 (S.D.N.Y. July 27, 2007) (courts should consider the reaction of a class to a plan of allocation and, where no objections are received, the Plan of Allocation should be approved ). 3
Case 9:14-cv-81323-DMM Document 161 Entered on FLSD Docket 01/30/2017 Page 7 of 9 III. CONCLUSION For the reasons discussed in this reply memorandum and detailed in Lead Plaintiff s and Lead Counsel s opening papers, Lead Plaintiff and Lead Counsel respectfully request that the Court approve (i) the Settlement; (ii) the Plan of Allocation; and (iii) Lead Counsel s request for attorneys fees and expenses. Proposed orders are attached hereto as Exhibit B, C and D. Dated: January 30, 2017 Respectfully submitted, /s/ Lester Hooker Lester Hooker Florida Bar No. 32242 lhooker@saxenawhite.com Joseph E. White Florida Bar No. 0621064 jwhite@saxenawhite.com SAXENA WHITE P.A. Boca Center, 5200 Town Center Circle, Suite 601 Boca Raton, FL 33486 Ph: (561) 394-3399 Liaison Counsel for the Settlement Class Johnston de F. Whitman, Jr. (admitted pro hac vice) jwhitman@ktmc.com Andrew L. Zivitz (admitted pro hac vice) azivitz@ktmc.com Kimberly A. Justice (admitted pro hac vice) kjustice@ktmc.com KESSLER TOPAZ MELTZER & CHECK LLP 280 King of Prussia Road Radnor, PA 19087 Ph: (610) 667-7706 -and- Jennifer L. Joost (admitted pro hac vice) jjoost@ktmc.com 1 Sansome Street, Suite 1850 San Francisco, CA 94109 Ph: (415) 400-3000 Counsel for Lead Plaintiff The City of Los Angeles, Acting Through its Fire and Police Pension 4
Case 9:14-cv-81323-DMM Document 161 Entered on FLSD Docket 01/30/2017 Page 8 of 9 System, Acting by Order of and Through its Board of Fire and Police Pension Commissioners, and Lead Counsel for the Settlement Class 5
Case 9:14-cv-81323-DMM Document 161 Entered on FLSD Docket 01/30/2017 Page 9 of 9 CERTIFICATE OF SERVICE I hereby certify that on January 30, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system. Notice of this filing will be sent to counsel of record by operation of the Court s electronic filing system. I certify under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on January 30, 2017. /s/lester R. Hooker Lester R. Hooker 6
Case 9:14-cv-81323-DMM Document 161-1 Entered on FLSD Docket 01/30/2017 Page 1 of 4 EXHIBIT A
Case 9:14-cv-81323-DMM Document 161-1 Entered on FLSD Docket 01/30/2017 Page 2 of 4
Case 9:14-cv-81323-DMM Document 161-1 Entered on FLSD Docket 01/30/2017 Page 3 of 4
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Case 9:14-cv-81323-DMM Document 161-2 Entered on FLSD Docket 01/30/2017 Page 1 of 11 EXHIBIT B
Case 9:14-cv-81323-DMM Document 161-2 Entered on FLSD Docket 01/30/2017 Page 2 of 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 9:14-cv-81323-DMM THE CITY OF LOS ANGELES, ACTING THROUGH ITS FIRE AND POLICE PENSION SYSTEM, ACTING BY ORDER OF AND THROUGH ITS BOARD OF FIRE AND POLICE PENSION COMMISSIONERS, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. BANKRATE, INC., EDWARD J. DIMARIA, KENNETH S. ESTEROW, GOLDMAN, SACHS & CO., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, RBC CAPITAL MARKETS, LLC, AND STEPHENS, INC., Defendants. JUDGMENT APPROVING CLASS ACTION SETTLEMENT WHEREAS, a securities class action is pending in this Court entitled The City of Los Angeles, et al. v. Bankrate, Inc., et al., Case No. 9:14-cv-81323-DMM (the Action ); WHEREAS, (a) the City of Los Angeles, Acting through its Fire and Police Pension System, Acting by order of and through its Board of Fire and Police Pension Commissioners ( Lead Plaintiff ), on behalf of itself and the Settlement Class (defined below), and (b) defendants Bankrate, Inc. ( Bankrate ), Edward J. DiMaria, Kenneth S. Esterow, Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, RBC Capital Markets, LLC, and Stephens, Inc. (collectively, Defendants ) have determined to settle and dismiss the Action with prejudice on the terms and conditions set forth in the Stipulation and Agreement of Settlement dated July 18, 2016 (the Stipulation ), that provides for a complete dismissal with prejudice of the Action against Defendants on the terms and conditions set forth in the Stipulation, subject to the approval of this Court (the Settlement ); 1 #5074413 v10
Case 9:14-cv-81323-DMM Document 161-2 Entered on FLSD Docket 01/30/2017 Page 3 of 11 WHEREAS, unless otherwise defined in this Judgment, the capitalized terms herein shall have the same meaning as they have in the Stipulation; WHEREAS, by Order dated August 25, 2016 (the Preliminary Approval Order ), this Court: (a) preliminarily approved the Settlement; (b) preliminarily certified the Settlement Class for settlement purposes only; (c) ordered that notice of the proposed Settlement be provided to potential Settlement Class Members; (d) provided Settlement Class Members with the opportunity either to exclude themselves from the Settlement Class or to object to the proposed Settlement; and (e) scheduled a hearing regarding final approval of the Settlement; WHEREAS, due and adequate notice has been given to the Settlement Class; WHEREAS, the Court conducted a hearing on February 6, 2017 (the Settlement Hearing ) to consider, among other things, (a) whether the terms and conditions of the Settlement are fair, reasonable, and adequate to the Settlement Class, and should therefore be approved; and (b) whether a judgment should be entered dismissing the Action with prejudice as against the Defendants; and WHEREAS, the Court having reviewed and considered the Stipulation, all papers filed and proceedings held herein in connection with the Settlement, all oral and written comments received regarding the Settlement, and the record in the Action, and good cause appearing therefor; IT IS HEREBY ORDERED, ADJUDGED AND DECREED: 1. Jurisdiction: The Court has jurisdiction over the subject matter of the Action, and all matters relating to the Settlement, as well as personal jurisdiction over all of the Parties and each of the Settlement Class Members. 2. Incorporation of Settlement Documents: This Judgment incorporates and makes a part hereof: (a) the Stipulation filed with the Court on July 18, 2016; and (b) the Notice and the Summary Notice, substantially similar forms of which were filed with the Court on July 18, 2016. 2 #5074413 v10
Case 9:14-cv-81323-DMM Document 161-2 Entered on FLSD Docket 01/30/2017 Page 4 of 11 3. Certification of the Settlement Class for Purposes of Settlement: Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court finally certifies, solely for purposes of effectuating the Settlement, this Action as a class action on behalf of a Settlement Class defined as all persons and entities who or which purchased or otherwise acquired the common stock of Bankrate during the period from October 27, 2011 through October 9, 2014, inclusive (the Settlement Class Period ), including in the March 2014 Secondary Offering of Bankrate common stock. Excluded from the Settlement Class are Defendants and Former Defendants; members of the Immediate Family of any Defendant or Former Defendant; any firm, trust, corporation, or other entity in which any Defendant or Former Defendant has or had a controlling interest, and any legal representatives, heirs, successors-in-interest, or assigns of any such excluded person. Notwithstanding the foregoing exclusions, Investment Vehicles shall not be excluded from the Settlement Class. 4. Lead Plaintiff is hereby appointed, for purposes of effectuating the Settlement only, as Class Representative for purposes of Federal Rule of Civil Procedure 23. Kessler Topaz Meltzer & Check, LLP, which was appointed by the Court to serve as Lead Counsel, is hereby appointed, for settlement purposes only, as Class Counsel pursuant to Rules 23(c)(1)(B) and (g) of the Federal Rules of Civil Procedure. 5. Notice: The Court finds that the dissemination of the Notice and the publication of the Summary Notice: (a) were implemented in accordance with the Preliminary Approval Order; (b) constituted the best notice practicable under the circumstances; (c) constituted notice that was reasonably calculated, under the circumstances, to apprise Settlement Class Members of (i) the pendency of the Action; (ii) their right to exclude themselves from the Settlement Class; (iii) the effect of the proposed Settlement (including the releases to be provided thereunder); (iv) Lead Counsel s motion for an award of attorneys fees and reimbursement of Litigation Expenses; (v) 3 #5074413 v10
Case 9:14-cv-81323-DMM Document 161-2 Entered on FLSD Docket 01/30/2017 Page 5 of 11 their right to object to any aspect of the Settlement, the Plan of Allocation, and/or Lead Counsel s motion for attorneys fees and reimbursement of Litigation Expenses; and (vi) their right to appear at the Settlement Hearing; (d) constituted due, adequate, and sufficient notice to all persons and entities entitled to receive notice of the proposed Settlement; and (e) satisfied the requirements of Federal Rule of Civil Procedure 23, the United States Constitution (including the Due Process Clause), the Private Securities Litigation Reform Act of 1995, 15 U.S.C. 78u-4(a)(7), 15 U.S.C. 77z-1(a)(7), and all other applicable law and rules. 6. Final Settlement Approval and Dismissal of Claims: Pursuant to, and in accordance with, Rule 23 of the Federal Rules of Civil Procedure, this Court hereby fully and finally approves the Settlement set forth in the Stipulation in all respects (including, without limitation: the amount of the Settlement; the releases provided for therein; and the dismissal with prejudice of the claims asserted against Defendants in the Action), and finds that the Settlement is, in all respects, fair, reasonable and adequate to the Settlement Class. The Parties are directed to implement, perform and consummate the Settlement in accordance with the terms and provisions contained in the Stipulation. 7. The Action is hereby dismissed with prejudice. The Parties shall bear their own costs and expenses, except as otherwise expressly provided in the Stipulation. 8. Binding Effect: The terms of the Stipulation and of this Judgment shall be forever binding on Defendants, Lead Plaintiff, and all Settlement Class Members (regardless of whether or not any individual Settlement Class Member submits a Claim Form or seeks or obtains a distribution from the Net Settlement Fund), as well as their respective heirs, executors, trustees, administrators, predecessors, successors, and assigns, in their capacities as such. The persons and entities listed on Exhibit 1 hereto are excluded from the Settlement Class pursuant to request and are not bound by the terms of the Stipulation or this Judgment. 4 #5074413 v10
Case 9:14-cv-81323-DMM Document 161-2 Entered on FLSD Docket 01/30/2017 Page 6 of 11 9. Releases: The releases set forth in paragraphs 5 and 6 of the Stipulation, together with the definitions contained in paragraph 1 of the Stipulation relating thereto, are expressly incorporated herein in all respects. The releases are effective as of the Effective Date. Accordingly, this Court orders that: (a) Upon the Effective Date of the Settlement, without further action by anyone, Lead Plaintiff and each of the Settlement Class Members (whether or not such Person submits a Claim Form), on behalf of themselves and each of their respective heirs, executors, trustees, administrators, predecessors, successors, assigns, parents, subsidiaries, affiliates, officers, directors, agents, fiduciaries, beneficiaries or legal representatives, in their capacities as such, and any other person or entity who or that was, is, or would be legally entitled to bring Claims Released By Plaintiffs on behalf of a Settlement Class Member, in that capacity, shall be deemed to have, and by operation of law and of the judgment shall have, fully, finally, and forever compromised, settled, released, resolved, relinquished, waived, discharged, and dismissed each and every Claim Released By Plaintiffs (including, without limitation, any Unknown Claims) against the Defendants and the other Defendant Related Parties, and shall forever be enjoined from prosecuting any or all of the Claims Released By Plaintiffs against any of the Defendant Related Parties. This release shall not apply to any claims of any Person who or which submits a request for exclusion from the Settlement Class that is accepted by the Court. (b) Upon the Effective Date of the Settlement, without further action by anyone, Defendants, on behalf of themselves and each of their respective heirs, executors, trustees, administrators, predecessors, successors, assigns, parents, subsidiaries, affiliates, officers, directors, agents, fiduciaries, beneficiaries or legal representatives, in their capacities as such, and any other person or entity who or that was, is, or would be legally entitled to bring Claims Released By Defendants on behalf of any Defendant, in that capacity, shall be deemed to have, and by operation 5 #5074413 v10
Case 9:14-cv-81323-DMM Document 161-2 Entered on FLSD Docket 01/30/2017 Page 7 of 11 of law and of the judgment shall have, fully, finally, and forever compromised, settled, released, resolved, relinquished, waived, and discharged each and every Claim Released by Defendants (including, without limitation, any Unknown Claims) against Lead Plaintiff and the other Plaintiff Related Parties, and shall forever be enjoined from prosecuting any or all of the Claims Released By Defendants against Lead Plaintiff or any of the Plaintiff Related Parties. This release (i) shall not apply to any Person who or which submits a request for exclusion from the Settlement Class that is accepted by the Court, and (ii) does not release any claims of any nature of any Defendant against Defendants insurers. 10. Notwithstanding paragraphs 9(a) (b) above, nothing in this Judgment shall bar any action by any of the Parties to enforce or effectuate the terms of the Stipulation or this Judgment. 11. Upon the Effective Date of the Settlement, Lead Plaintiff and each and every Settlement Class Member shall be permanently barred and enjoined from directly or indirectly, or through a third party, instituting, reinstituting, initiating, commencing, maintaining, continuing, filing, encouraging, soliciting, collaborating in, or otherwise prosecuting, against Defendants or any of the other Defendant Related Parties any of the Claims Released By Plaintiffs, whether in this Court, in any other forum, or otherwise, provided, however, that this Judgment shall not preclude any action to enforce the terms of the Stipulation or any action or claims, including but not limited to the Claims Released By Plaintiffs, that Defendants may have against any Defendant Related Parties, including but not limited to its insurers. 12. Bar Order and Judgment Reduction: Pursuant to the provisions of the Private Securities Litigation Reform Act of 1995, Pub.L. No. 104-67, 109 Stat. 737, 15 U.S.C. 78u-4(f)(7) (the PSLRA ), the Court hereby bars all future claims for contribution and indemnification (or any other claim where the injury to the non-settling person or entity is the non-settling person s or entity s liability to the Settlement Class) arising out of the Action (a) by any Person against any 6 #5074413 v10
Case 9:14-cv-81323-DMM Document 161-2 Entered on FLSD Docket 01/30/2017 Page 8 of 11 settling covered person (as defined in the PSLRA), and (b) by the settling covered person (as defined in the PSLRA) against any Person, other than a Person whose liability to the Settlement Class has been extinguished by the settlement of the settling covered person, provided, however, that this bar shall not preclude any action to enforce the terms of the Stipulation or any action or claims, including but not limited to the Claims Released By Plaintiffs, that Defendants may have against any Defendant Related Parties, including but not limited to their insurers, and provided, further, that this bar shall not include, and nothing in this Judgment shall release or alter, the contractual rights, if any, (i) between or among the Underwriter Defendants under their applicable Agreement Among Underwriters relating to any offering of securities by Bankrate, (ii) between the Underwriter Defendants, on the one hand, and Bankrate, on the other hand, under any applicable Underwriting Agreements with respect to any right of indemnification or contribution in connection with the payment of the Settlement Amount or incurrence of defense costs, or (iii) between any other Defendant or Former Defendant, on the one hand, and Bankrate, on the other hand, under any applicable agreements with respect to any right of indemnification or contribution in connection with the payment of the Settlement Amount or incurrence of defense costs. 13. Any final verdict or judgment that may be obtained by or on behalf of the Settlement Class or a Settlement Class Member against any person or entity subject to the Bar Order in paragraph 12 above shall be reduced by the greater of: (a) an amount that corresponds to the percentage of responsibility of the Defendant for common damages; or (b) the amount paid by or on behalf of the Defendant to the Settlement Class or Settlement Class Member for common damages. 14. Rule 11 Findings: The Court finds and concludes that the Parties and their respective counsel have complied in all respects with the requirements of Rule 11 of the Federal Rules of Civil Procedure in connection with the institution, prosecution, defense, and settlement of the Action. 7 #5074413 v10
Case 9:14-cv-81323-DMM Document 161-2 Entered on FLSD Docket 01/30/2017 Page 9 of 11 15. No Admissions: Neither this Judgment, the Memorandum of Understanding, the Stipulation (whether or not the Settlement is consummated), including the exhibits thereto, the Plan of Allocation contained therein (or any other plan of allocation that may be approved by the Court), and/or the Supplemental Agreement, nor the negotiations leading to the execution of the Memorandum of Understanding, the Stipulation, and/or the Supplemental Agreement, nor any proceedings taken pursuant to or in connection with the Memorandum of Understanding, the Stipulation, the Supplemental Agreement, and/or approval of the Settlement (including any arguments proffered in connection therewith): (a) shall be offered against any of the Defendant Related Parties as evidence of, or construed as, or deemed to be evidence of any presumption, concession, or admission by any of the Defendant Related Parties with respect to the truth of any fact alleged by Lead Plaintiff or the validity of any claim that was or could have been asserted or the deficiency of any defense that has been or could have been asserted in this Action or in any other litigation, or of any fault, misrepresentation, or omission with respect to any statement or written document approved or made by any of the Defendant Related Parties, or of any liability, negligence, fault, or other wrongdoing of any kind of any of the Defendant Related Parties or in any way referred to for any other reason as against any of the Defendant Related Parties, in any civil, criminal, or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of the Stipulation; (b) shall be offered against any of the Plaintiff Related Parties, as evidence of, or construed as, or deemed to be evidence of any presumption, concession, or admission by any of the Plaintiff Related Parties that any of their claims are without merit, that any of the Defendant Related Parties had meritorious defenses, or that damages recoverable under the Complaints would not have exceeded the Settlement Amount or with respect to any liability, negligence, fault, or wrongdoing of 8 #5074413 v10
Case 9:14-cv-81323-DMM Document 161-2 Entered on FLSD Docket 01/30/2017 Page 10 of 11 any kind, or in any way referred to for any other reason as against any of the Plaintiff Related Parties, in any civil, criminal, or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of the Stipulation; or (c) shall be construed against any of the Defendant Related Parties or the Plaintiff Related Parties as an admission, concession, or presumption that the consideration to be given hereunder represents the amount which could be or would have been recovered after trial; provided, however, that if this Stipulation is approved by the Court, the Parties, the Defendant Related Parties, the Plaintiff Related Parties and their respective counsel may refer to it to effectuate the protections from liability granted hereunder or otherwise to enforce the terms of the Settlement; and provided further that nothing herein shall limit the materials or evidence that may be offered or referred to by Defendant Related Parties in disputes, actions, or proceedings arising between Defendant Related Parties. 16. Retention of Jurisdiction: Without affecting the finality of this Judgment in any way, this Court retains continuing and exclusive jurisdiction over: (a) the Parties for purposes of the administration, interpretation, implementation and enforcement of the Settlement; (b) the disposition of the Settlement Fund; (c) any motion for an award of attorneys fees and/or Litigation Expenses by Lead Counsel in the Action that will be paid from the Settlement Fund; (d) any motion to approve the Plan of Allocation; (e) any motion to approve the Class Distribution Order; and (f) the Settlement Class Members for all matters relating to the Action. 17. Separate orders shall be entered regarding approval of a plan of allocation and the motion of Lead Counsel for an award of attorneys fees and reimbursement of Litigation Expenses. Such orders shall in no way affect or delay the finality of this Judgment and shall not affect or delay the Effective Date of the Settlement. 9 #5074413 v10
Case 9:14-cv-81323-DMM Document 161-2 Entered on FLSD Docket 01/30/2017 Page 11 of 11 18. Modification of the Agreement of Settlement: Without further approval from the Court, Lead Plaintiff and Defendants are hereby authorized to agree to and adopt such amendments or modifications of the Stipulation or any exhibits attached thereto to effectuate the Settlement that: (a) are not materially inconsistent with this Judgment; and (b) do not materially limit the rights of Settlement Class Members in connection with the Settlement. Without further order of the Court, Lead Plaintiff and Defendants may agree to reasonable extensions of time to carry out any provisions of the Settlement. In accordance with paragraph 45 of the Stipulation, any such modifications must be reflected in a writing signed on behalf of both Lead Plaintiff and Defendants (or their successors-in-interest). 19. Termination of Settlement: If the Settlement is terminated as provided in the Stipulation or the Effective Date of the Settlement otherwise fails to occur, this Judgment shall be vacated, rendered null and void, and be of no further force and effect, except as otherwise provided by the Stipulation, and this Judgment shall be without prejudice to the rights of Lead Plaintiff, Settlement Class Members and Defendants, and the Parties shall revert to their respective positions in the Action on the day prior to the first date on which a Party executed the Stipulation. 20. Entry of Final Judgment: There is no just reason to delay the entry of this Judgment as a final judgment in this Action. Accordingly, the Clerk of the Court is expressly directed to immediately enter this final Judgment in this Action. SO ORDERED this day of, 2017. The Honorable Donald M. Middlebrooks United States District Judge 10 #5074413 v10
Case 9:14-cv-81323-DMM Document 161-3 Entered on FLSD Docket 01/30/2017 Page 1 of 3 EXHIBIT C
Case 9:14-cv-81323-DMM Document 161-3 Entered on FLSD Docket 01/30/2017 Page 2 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 9:14-cv-81323-DMM THE CITY OF LOS ANGELES, ACTING THROUGH ITS FIRE AND POLICE PENSION SYSTEM, ACTING BY ORDER OF AND THROUGH ITS BOARD OF FIRE AND POLICE PENSION COMMISSIONERS, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. BANKRATE, INC., EDWARD J. DIMARIA, KENNETH S. ESTEROW, GOLDMAN, SACHS & CO., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, RBC CAPITAL MARKETS, LLC, AND STEPHENS, INC., Defendants. [PROPOSED] ORDER APPROVING PLAN OF ALLOCATION This matter is before the Court on Lead Plaintiff s Motion for Final Approval of Class Action Settlement and Plan of Allocation, filed on December 30, 2016 (DE 158). All capitalized terms used herein have the meanings set forth in the Stipulation and Agreement of Settlement, dated July 18, 2016, and filed the same day (DE 154). The Court having considered all papers filed and proceedings had herein and otherwise being fully informed of the matters hereto and good cause appearing therefore; IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that: 1. This Court has jurisdiction to enter this Order. This Court has jurisdiction over the subject matter of the Action and all matters relating thereto, and over all Parties to the Action, including all members of the Settlement Class. 2. Pursuant to and in compliance with Rule 23 of the Federal Rules of Civil Procedure, this Court hereby finds and concludes that due and adequate notice was directed to all Persons and entities who are Settlement Class Members, including individual notice to those Settlement Class
Case 9:14-cv-81323-DMM Document 161-3 Entered on FLSD Docket 01/30/2017 Page 3 of 3 Members who could be identified through reasonable effort, advising them of the Plan of Allocation and of their right to object thereto, and a full and fair opportunity was accorded to Persons and entities who are Settlement Class Members to be heard with respect to the Plan of Allocation, and no objections to the Plan of Allocation have been filed. 3. The Court hereby finds and concludes that the Plan of Allocation for the calculation of the claims of Authorized Claimants which is set forth in the Notice of Pendency of Class Action, Certification of Settlement Class, Proposed Settlement, and Settlement Fairness Hearing (the Notice ), filed on July 18, 2016 (DE 154-2), approved by the Court on August 26, 2016 (DE 157), and disseminated to Settlement Class Members, provides a fair and reasonable basis upon which to allocate the net settlement proceeds established by the Settlement among Settlement Class Members, with due consideration having been given to administrative convenience and necessity. 4. The Court hereby finds and concludes that the Plan of Allocation set forth in the Notice is, in all respects, fair and reasonable and the Court hereby approves the Plan of Allocation. 5. Any appeal or any challenge affecting this Court s approval of the Plan of Allocation shall in no way disturb or affect the finality of the Judgment entered with respect to the Settlement. 6. Jurisdiction is hereby retained over the Parties and Settlement Class Members for all matters relating to this Action, including the administration, interpretation, effectuation or enforcement of the Stipulation and this Order. 7. The Court directs immediate entry of this Order by the Clerk of the Court. SO ORDERED this day of, 2017. The Honorable Donald M. Middlebrooks United States District Judge 2
Case 9:14-cv-81323-DMM Document 161-4 Entered on FLSD Docket 01/30/2017 Page 1 of 4 EXHIBIT D
Case 9:14-cv-81323-DMM Document 161-4 Entered on FLSD Docket 01/30/2017 Page 2 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 9:14-cv-81323-DMM THE CITY OF LOS ANGELES, ACTING THROUGH ITS FIRE AND POLICE PENSION SYSTEM, ACTING BY ORDER OF AND THROUGH ITS BOARD OF FIRE AND POLICE PENSION COMMISSIONERS, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. BANKRATE, INC., EDWARD J. DIMARIA, KENNETH S. ESTEROW, GOLDMAN, SACHS & CO., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, RBC CAPITAL MARKETS, LLC, AND STEPHENS, INC., Defendants. [PROPOSED] ORDER AWARDING ATTORNEYS FEES AND EXPENSES This matter is before the Court on Lead Counsel s Motion for an Award of Attorneys Fees and Expenses, filed on December 30, 2016 (DE 159). All capitalized terms used herein have the meanings set forth in the Stipulation and Agreement of Settlement, dated July 18, 2016 (the Stipulation ), and filed the same day (DE 154). The Court having considered all papers filed and proceedings had herein, having found the Settlement of the Action to be fair, reasonable and adequate, and otherwise being fully informed in the premises and good cause appearing therefore; IT IS HEREBY ORDERS, ADJUDGED, AND DECREED that: 1. This Court has jurisdiction to enter this Order. This Court has jurisdiction over the subject matter of this Action and all matters relating thereto, and over all Parties to the Action, including all members of the Settlement Class. 2. Pursuant to and in compliance with Rule 23 of the Federal Rules of Civil Procedure, this Court hereby finds and concludes that due and adequate notice was directed to all Persons and entities who are Settlement Class Members, including individual notice to those Settlement Class
Case 9:14-cv-81323-DMM Document 161-4 Entered on FLSD Docket 01/30/2017 Page 3 of 4 Members who could be identified through reasonable effort, advising them of Lead Counsel s application for attorneys fees and expenses and of their right to object thereto, and a full and fair opportunity was accorded to Persons and entities who are Settlement Class Members to be heard with respect to Lead Counsel s application for attorneys fees and expenses. The form and method of notifying the Settlement Class of Lead Counsel s application for attorneys fees and expenses met the requirements of Federal Rule of Civil Procedure 23, the United States Constitution (including the Due Process Clause), the Private Securities Litigation Reform Act of 1995, 15 U.S.C. 78u- 4(a)(7), and all other applicable law and rules, constituted the best notice practicable under the circumstances, and constituted due and sufficient notice to all Persons and entities entitled thereto. 3. Lead Counsel is hereby awarded attorneys fees in the amount of % of the Settlement Fund (which amount includes accrued interest), as well as reimbursment of expenses in the amount of $, which sums the Court finds to be fair and reasonable. The attorneys fees and expenses awarded will be paid to Lead Counsel from the Settlement Fund in accordance with the terms of the Stipulation. 4. In making this award of attorneys fees and expenses to be paid from the Settlement Fund, the Court has considered and found that: (a) The Settlement has created a fund of $20,000,000 in cash that has been funded into an escrow account pursuant to the terms of the Stipulation, and numerous Settlement Class Members who submit valid Proof of Claim Forms will benefit from the Settlement, created by the efforts of Lead Counsel; (b) The Notice was disseminated to over 37,180 putative Settlement Class Members or their nominees stating that Lead Counsel would seek attorneys fees not to exceed 10% of the Settlement Fund, and reimbursement of expenses paid or incurred in connection with the 2
Case 9:14-cv-81323-DMM Document 161-4 Entered on FLSD Docket 01/30/2017 Page 4 of 4 institution, prosecution and resolution of the claims against Defendants, in an amount not to exceed $250,000, and there have been no objections to these requests; (c) The Court is advised that Plaintiffs Counsel have expended more than 4,803 hours in connection with the prosecution and resolution of the Action, with a lodestar value of $2,506,611.75 to achieve the Settlement; (d) The Action involves complex factual and legal issues and, in the absence of a settlement, continuing with the claims against Defendants would involve lengthy proceedings whose resolution would be uncertain; (e) Lead Counsel has prosecuted the claims against Defendants for two years and achieved the Settlement with sufficiently skillful and diligent advocacy; (f) (g) The Action was litigated on a purely contingent basis; and The amount of attorneys fees and expenses awarded from the Settlement Fund are fair and reasonable and consistent with awards in similar cases. 5. Any appeal or any challenge affecting this Court s approval of the attorneys fee and expense application shall in no way disturb or affect the finality of the Judgment entered with respect to the Settlement. 6. Jurisdiction is hereby retained over the Parties and the Settlement Class Members for all matters relating to this Action, including the administration, interpretation, effectuation or enforcement of the Stipulation and this Order. 7. The Court directs immediate entry of this Order by the Clerk of the Court. SO ORDERED this day of, 2017. The Honorable Donald M. Middlebrooks United States District Judge 3