United States District Court, E.D. California
SPECIAL SITUATIONS FUND III QP, LP, SPECIAL SITUATIONS CAYMAN FUND, L.P, and DAVID M. FINEMAN, Individually and On Behalf of All Others Similarly Situated, Plaintiffs,
v.
MARRONE BIO INNOVATIONS, INC., PAMELA G. MARRONE, JAMES B. BOYD, DONALD J. GLIDEWELL, HECTOR ABSI, ELIN MILLER, RANJEET BHATIA, PAMELA CONTAG, TFM FOGARTY, LAWRENCE HOUGH, JOSEPH HUDSON, LES LYMAN, RICHARD ROMINGER, SHAUGN STANLEY, SEAN SCHICKEDANZ, and ERNST & YOUNG LLP, Defendants.
Lead
Counsel Lowenstein Sandler LLP Attn: Steven M. Hecht, Esq.
Counsel for the Settling Defendants Morrison & Foerster LLP
Attn: Judson E. Lobdell, Esq., Jordan Eth, Esq., and Anne K.
Davis, Esq., Brownstein Hyatt Farber Schreck LLP Attn: John
V. McDermott, Esq.
ORDER PRELIMINARILY APPROVING PROPOSED SETTLEMENT AND
PROVIDING FOR NOTICE
MORRISON C. ENGLAND JR. UNITED STATES DISTRICT JUDGE
WHEREAS,
a securities class action is pending in this Court entitled
Special Situations Fund III QP, L.P. v. Marrone Bio
Innovations, Inc., et al, Master No. 14-cv-2571 (the
"Action");
WHEREAS,
(a) Lead Plaintiffs Special Situations Fund III QP, L.P. and
Special Situations Cayman Fund, L.P., ("Lead
Plaintiffs" or "The Funds"), and additional
named Plaintiff David M. Fineman ("Fineman" and,
together with Lead Plaintiffs, "Plaintiffs"), on
behalf of themselves and the other members of the Settlement
Class, and (b) Defendants Marrone Bio Innovations, Inc.
("MBI"), Pamela G. Marrone, James B. Boyd, Donald
J. Glidewell, Hector Absi, Elin Miller, Tim Fogarty, Richard
Rominger, Shaugn Stanley, Ranjeet Bhatia, Lawrence Hough,
Joseph Hudson, Sean Schickedanz, Pamela Contag, and Les Lyman
(collectively, the "Individual Defendants, " with
MBI, the "Settling Defendants, " and together with
Plaintiffs, the "Settling Parties"), have
determined to settle claims asserted in the Action with
prejudice on the terms and conditions set forth in the
Stipulation and Agreement of Settlement dated June 16, 2016
(the "Stipulation), subject to the approval of the Court
(the "Settlement");
WHEREAS,
Plaintiffs have made an application, pursuant to Rule 23 of
the Federal Rules of Civil Procedure, for an order
preliminarily approving the Settlement in accordance with the
Stipulation, certifying the Settlement Class for purposes of
the Settlement only, and allowing notice to Settlement Class
Members as more fully described herein;
WHEREAS,
the Court has read and considered: (a) Plaintiffs' motion
for preliminary approval of the Settlement, and the papers
filed and arguments made in connection therewith; and (b) the
Stipulation and the exhibits attached thereto; and
WHEREAS,
unless otherwise defined herein, all capitalized words
contained herein shall have the same meanings as they have in
the Stipulation;
NOW
THEREFORE, IT IS HEREBY ORDERED:
1.
Class Certification for Settlement
Purposes - Pursuant to Rule 23(a) and (b)(3) of
the Federal Rules of Civil Procedure, the Court certifies,
solely for purposes of effectuating the proposed Settlement,
a Settlement Class consisting of all persons and entities who
or which (i) purchased or otherwise acquired MBI securities
directly in or traceable to the Company's August 1, 2013
initial public offering pursuant to MBFs Form S-l
Registration Statement, dated July 1, 2013, and its
Prospectus, dated August 1, 2013, and were damaged thereby;
(ii) purchased or otherwise acquired MBI securities directly
in or traceable to the Company's secondary offering
pursuant to MBFs Form S-l Registration Statement, dated May
16, 2014, and its Prospectus dated June 5, 2014, and were
damaged thereby; and (iii) purchased or otherwise acquired
MBI securities on the open market between August 1, 2013 and
November 10, 2015, inclusive, and were damaged thereby.
Excluded from the Settlement Class are the Settling
Defendants; Immediate Family of each of the Individual
Defendants; the Officers and/or directors of MBI during the
Settlement Class Period; any firm, trust, corporation, or
other entity in which any MBI Defendant has or had a
controlling interest; and any persons or entities that
exclude themselves by submitting a request for exclusion that
is accepted by the Court as valid.
2.
Class Findings - Solely for
purposes of the proposed Settlement of this Action, the Court
finds that each element required for certification of the
Settlement Class pursuant to Rule 23 of the Federal Rules of
Civil Procedure has been met: (a) the members of the
Settlement Class are so numerous that their joinder in the
Action would be impracticable; (b) there are questions of law
and fact common to the Settlement Class which predominate
over any individual questions; (c) the claims of Plaintiffs
in the Action are typical of the claims of the Settlement
Class; (d) Plaintiffs and Lead Counsel have fairly and
adequately represented and protected the interests of the
Settlement Class and will continue to do so; and (e) a class
action is superior to other available methods for the fair
and efficient adjudication of the Action.
3. Fhe
Court hereby finds and concludes that pursuant to Rule 23 of
the Federal Rules of Civil Procedure, and for the purposes of
the Settlement only, Lead Plaintiffs are adequate class
representatives and certifies Lead Plaintiffs as the Class
Representatives for the Settlement Class. Fhe Court also
appoints Lead Counsel as Class Counsel for the Settlement
Class, pursuant to Rule 23(g) of the Federal Rules of Civil
Procedure.
4.
Preliminary Approval of the Settlement -
The Court hereby preliminarily approves the Settlement, as
embodied in the Stipulation, as being fair, reasonable and
adequate to the Settlement Class, subject to further
consideration at the Settlement Hearing to be conducted as
described below.
5.
Settlement Hearing - The Court will
hold a settlement hearing (the "Settlement
Hearing") on September 22, 2016 at 2:00 p.m. in
Courtroom 7 of the Robert T. Matsui United States Court
House, 501 I Street, Sacramento, CA 95814, for the following
purposes: (a) to determine whether the proposed Settlement on
the terms and conditions provided for in the Stipulation is
fair, reasonable and adequate to the Settlement Class, and
should be approved by the Court; (b) to determine whether a
Judgment substantially in the form attached as Exhibit B to
the Stipulation should be entered dismissing the Action with
prejudice against Defendants; (c) to determine whether the
proposed Plan of Allocation for the proceeds of the
Settlement is fair and reasonable and should be approved; (d)
to determine whether the motion by Lead Counsel for an award
of attorneys' fees and reimbursement of Litigation
Expenses should be approved; and (e) to ...