Pension Trust Fund For Operating Engineers v. DeVry Education Group, Inc. et al

Northern District of Illinois, ilnd-1:2016-cv-05198

REPLY by Plaintiff Utah Retirement Systems to motion for settlement 150, motion for attorney fees 152

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Case: 1:16-cv-05198 Document #: 156 Filed: 11/27/19 Page 1 of 10 PageID #:3100 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION PENSION TRUST FUND FOR OPERATING ENGINEERS, Individually and on Behalf of All Case No. 1:16-CV-05198 Others Similarly Situated, Hon. Mary M. Rowland Plaintiff, v. DEVRY EDUCATION GROUP, INC., DANIEL HAMBURGER, RICHARD M. GUNST, PATRICK J. UNZICKER, AND TIMOTHY J. WIGGINS, 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 PAYMENT OF LITIGATION EXPENSES Case: 1:16-cv-05198 Document #: 156 Filed: 11/27/19 Page 2 of 10 PageID #:3100 TABLE OF CONTENTS Page PRELIMINARY STATEMENT ................................................................................................... 1 ARGUMENT ................................................................................................................................. 2 I. THE REACTION OF THE SETTLEMENT CLASS STRONGLY SUPPORTS APPROVAL OF THE SETTLEMENT AND PLAN OF ALLOCATION ......................................................................................................... 2 II. THE REACTION OF THE SETTLEMENT CLASS STRONGLY SUPPORTS APPROVAL OF THE REQUESTED ATTORNEYS' FEES AND EXPENSES ..................................................................................................... 4 CONCLUSION .............................................................................................................................. 4 i Case: 1:16-cv-05198 Document #: 156 Filed: 11/27/19 Page 3 of 10 PageID #:3100 Court-appointed Lead Plaintiff Utah Retirement Systems ("Lead Plaintiff"), on behalf of itself and all other members of the proposed Settlement Class, and Lead Counsel respectfully submit this memorandum of law in further support of (i) Lead Plaintiff's Motion for Final Approval of Class Action Settlement and Plan of Allocation (ECF No. 150) and (ii) Lead Counsel's Motion for an Award of Attorneys' Fees and Payment of Litigation Expenses (ECF No. 152) (the "Motions").1 PRELIMINARY STATEMENT Now that the November 15, 2019 deadline for objections and requests for exclusion from the Settlement Class has passed, Lead Plaintiff and Lead Counsel respectfully submit that the reaction of the Settlement Class to the Settlement, Plan of Allocation, and Lead Counsel's motion for attorneys' fees and litigation expenses has been overwhelmingly positive. A total of 67,813 notice packets have been mailed to potential Settlement Class Members or their nominees through November 25, 2019. See Supplemental Declaration of Lance Cavallo, dated November 25, 2019, at ¶2, filed herewith ("Supp. Mailing Decl."). There have been no objections to any aspect of the Settlement, the proposed Plan of Allocation for the proceeds of the Settlement, or Lead Counsel's Fee and Expense Application. In addition, no requests for exclusion from the Settlement Class have been received. No institutional investor, pension fund, or attorney general objected to any aspect of the Settlement or requested exclusion. As a result, Lead Plaintiff and Lead Counsel respectfully submit that the reaction of the Settlement Class strongly supports approval of the Settlement, the Plan of Allocation, and the requested attorneys' fees and expenses. 1 All capitalized terms not otherwise defined herein have the same meaning as those in the Stipulation of Settlement, dated as of August 29, 2019 (the "Settlement Agreement") (ECF No. 146-1). Case: 1:16-cv-05198 Document #: 156 Filed: 11/27/19 Page 4 of 10 PageID #:3100 ARGUMENT I. THE REACTION OF THE SETTLEMENT CLASS STRONGLY SUPPORTS APPROVAL OF THE SETTLEMENT AND PLAN OF ALLOCATION Pursuant to the Court's Preliminary Approval Order, the Claims Administrator has mailed 67,813 copies of the notice packet to all potential Settlement Class Members identified to date. See Supp. Mailing Decl. at ¶2. The Notice informed Settlement Class Members of the terms of the proposed Settlement and Plan of Allocation, and that Lead Counsel would apply for an award of attorneys' fees in an amount not to exceed 27% of the Settlement Fund and payment of litigation expenses in an amount not to exceed $225,000. The Notice also apprised Settlement Class Members of their right to object to the proposed Settlement, the Plan of Allocation, and/or the request for attorneys' fees and payment of litigation expenses, and the November 15, 2019 deadline for filing such objections. Copies of the Notice, Claim Form, Settlement Agreement, Preliminary Approval Order, and Complaint were posted on www.DeVrySecuritiesSettlement.com. See ECF No. 154-3 at ¶10. Further, on September 27, 2019, the Claims Administrator published the Summary Notice in The Wall Street Journal and released it over the internet via PR Newswire (id. at ¶8), informing readers of the proposed Settlement, how to obtain copies of the notice packet, and the deadlines for the submission of Claim Forms, objections, and exclusion requests. On November 1, 2019, pursuant to the schedule approved by the Court in the Preliminary Approval Order, Lead Plaintiff and Lead Counsel filed their opening papers in support of the Motions. Those papers—which are available on the public docket (see ECF Nos. 150 through 154), the case website, and Lead Counsel's firm website—described Lead Plaintiff's and Lead Counsel's views of the Settlement, work performed in this litigation, and the fee and expense award requested. 2 Case: 1:16-cv-05198 Document #: 156 Filed: 11/27/19 Page 5 of 10 PageID #:3100 Following this extensive notice program, no Settlement Class Member objected to any aspect of the Settlement. "[A] positive response to the Settlement by the Class is strong evidence that the settlement is fair, reasonable, and adequate and should be approved." Goldsmith v. Tech. Sols. Co., No. 92-CV-4374, 1995 WL 17009594, at *5 (N.D. Ill. Oct. 10, 1995). In evaluating the fairness of a proposed settlement, the Seventh Circuit requires courts to consider "the amount of opposition to settlement among affected parties." Synfuel Techs. Inc. v. DHL Express, Inc., 463 F.3d 646, 653 (7th Cir. 2006)2; see also Hale v. State Farm Mut. Automobile Ins. Co., No. 12-0660-DRH, 2018 WL 6606079, at *6 (S.D. Ill. Dec. 16, 2018) ("the response from the class can provide insight into the fairness of both the settlement and, as discussed below, the requested attorney's fees and costs"). Indeed, courts are inclined to approve a class action settlement where, as here, there are few or no objections. See Arango v. Landry's, Inc., No. 12-CV-9354, 2015 WL 5673878, at *2 (N.D. Ill. Aug. 27, 2015) ("No objections to the Settlement were made by the Class Members, and this fact likewise supports approval."); Retsky Family Ltd. P'ship v. Price Waterhouse LLP, No. 97-CV-7694, 2001 WL 1568856, at *3 (N.D. Ill. Dec. 10, 2001) ("The absence of objection to a proposed class settlement is evidence that the settlement is fair, reasonable and adequate."). Similarly, the lack of requests for exclusion reflects the Settlement Class's endorsement of the Settlement and offers clear support for the Court's final approval. See, e.g. In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 789 F. Supp. 2d 935, 965 (N.D. Ill. 2011) (finding that an opt-out rate of less than 0.01% of class members was "remarkably low" and supported the settlement); In re: Sears, Roebuck & Co. Front-loading Washer Prods. Liab. Litig., No. 06 C 7023, 2016 WL 772785, at *11 (N.D. Ill. Feb. 29, 2016) ("The small number of 2 Unless otherwise noted, all internal citations and quotations are omitted. 3 Case: 1:16-cv-05198 Document #: 156 Filed: 11/27/19 Page 6 of 10 PageID #:3100 class members who objected or opted out further [supports] the fairness and reasonableness of the settlement."). Finally, the fact that there are no objections to the Plan of Allocation supports its approval. See, e.g., Retsky, 2001 WL 1568856, at *3 (approving plan of allocation after finding it met the standards of fairness and reasonableness, including lack of opposition). II. THE REACTION OF THE SETTLEMENT CLASS STRONGLY SUPPORTS APPROVAL OF THE REQUESTED ATTORNEYS' FEES AND EXPENSES Not one Settlement Member has objected to Lead Counsel's motion for an award of attorneys' fees, payment of litigation expenses, or the PSLRA reimbursement request of the Lead Plaintiff. The fact that there have been no objections is strong evidence that the requested fees and expenses are fair and reasonable. See, e.g., id. (stating that the requested fees are reasonable where no member of the plaintiff class objected to the request for attorney's fees). CONCLUSION For the reasons set forth above and in Lead Plaintiff's and Lead Counsel's November 1, 2019 submissions, Lead Plaintiff and Lead Counsel respectfully request that the Court enter the (i) proposed Final Judgment and Order Approving Settlement; (ii) proposed Order Approving Plan of Allocation; and (iii) proposed Order Awarding Attorney's Fees and Expenses. Dated: November 27, 2019 By: /s/ Carol C. Villegas LABATON SUCHAROW LLP Carol C. Villegas (pro hac vice) Theodore J. Hawkins (pro hac vice) 140 Broadway New York, NY 10005 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 cvillegas@labaton.com 4 Case: 1:16-cv-05198 Document #: 156 Filed: 11/27/19 Page 7 of 10 PageID #:3100 thawkins@labaton.com Mark S. Willis (pro hac vice) 1050 Connecticut Avenue, NW, Suite 500 Washington, D.C. 20036 Telephone: (202) 772-1880 mwillis@labaton.com Lead Counsel for Lead Plaintiff Utah Retirement Systems and the Proposed Settlement Class WEXLER WALLACE LLP Kenneth A. Wexler Mark R. Miller 55 West Monroe, Suite 3300 Chicago, IL 60603 Telephone: (312) 346-2222 kaw@wexlerwallace.com mrm@wexlerwallace.com Liaison Counsel for Lead Plaintiff Utah Retirement Systems 5 Case: 1:16-cv-05198 Document #: 156 Filed: 11/27/19 Page 8 of 10 PageID #:3100 CERTIFICATE OF SERVICE I hereby certify that on November 27, 2019, I caused the foregoing document to be electronically filed, using the Court's CM/ECF system, which will cause the document to be sent electronically to the registered participants as identified on the attached Electronic Mail Notice List. /s/ Carol C. Villegas Carol C. Villegas Case: 1:16-cv-05198 Document #: 156 Filed: 11/27/19 Page 9 of 10 PageID #:3100 Mailing Information for a Case 1:16-cv-05198 Pension Trust Fund for Operating Engineers v. DeVry Education Group, Inc. et al. Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case.  Theodore J. Hawkins thawkins@labaton.com,lpina@labaton.com,5957819420@filings.docketbird.com, electroniccasefiling@labaton.com  William Robert Andrichik wandrichik@steptoe.com,acampos@steptoe.com  Anthony J. Anscombe aanscombe@steptoe.com,snolan@steptoe.com,ikelsch@steptoe.com, mbuckley@steptoe.com,dalt@steptoe.com  Sean M. Berkowitz sean.berkowitz@lw.com,chicago-litigation-services- 9637@ecf.pacerpro.com,chefiling@lw.com,sean-berkowitz-6005@ecf.pacerpro.com  Michael R. Dockterman mdockterman@steptoe.com,meckstein@steptoe.com,jcooper@steptoe.com  Jonathan Gardner jgardner@labaton.com,lpina@labaton.com,4027988420@filings.docketbird.com, fmalonzo@labaton.com,acarpio@labaton.com,electroniccasefiling@labaton.com, agreenbaum@labaton.com  Terance A. Gonsalves Terance.Gonsalves@alston.com,joanne.halvorson@alston.com,dradziwon@steptoe.com, sdocket@steptoe.com,ptierney@steptoe.com  Lester R. Hooker lhooker@saxenawhite.com,e-file@saxenawhite.com,cwallace@saxenawhite.com  Philip S. Khinda pkhinda@steptoe.com  Mark Richard Miller mrm@wexlerwallace.com  Patricia B. Palacios ppalacios@steptoe.com  Norman Rifkind Norman@rifslaw.com  Jeffrey Warren Sanford jsanford@steptoe.com,dlukes@steptoe.com  Eric Robert Swibel eric.swibel@lw.com,chicago-litigation-services- 9637@ecf.pacerpro.com,chefiling@lw.com,eric-swibel-5392@ecf.pacerpro.com  Carol C. Villegas cvillegas@labaton.com,lpina@labaton.com,5739893420@filings.docketbird.com, electroniccasefiling@labaton.com Case: 1:16-cv-05198 Document #: 156 Filed: 11/27/19 Page 10 of 10 PageID #:3100  Kenneth A. Wexler kaw@wexlerwallace.com,ecf@wexlerwallace.com  Mark S. Willis MWillis@labaton.com,kgutierrez@labaton.com,electroniccasefiling@labaton.com  Nicole M. Zeiss nzeiss@labaton.com,5854006420@filings.docketbird.com,lpina@labaton.com, electroniccasefiling@labaton.com,cboria@labaton.com Manual Notice List The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). (No manual recipients)