Westchester Putnam Counties Heavy & Highway Laborers Local 60 Benefit Funds v. Brixmor Property Group Inc. et al.
Case No.: 1:16-cv-02400 (AT)(SN)
You or someone in your family may have purchased or otherwise acquired Brixmor securities, including but not limited to common stock, 3.850% Senior Notes due 2025, and 3.875% Senior Notes due 2022. As a potential Class Member, you have a right to know about your options before the Court rules on the proposed Settlement of this case. Additionally, you have the right to understand how a class action lawsuit may generally affect your legal rights.
If you did not receive a Notice, you may review a copy here.Back To Top
This Action alleges that Defendants Brixmor, Michael Carroll, Michael Pappagallo, and Steven Splain (collectively, the “Defendants”) violated the federal securities laws by deliberately falsifying one of the Company’s most important publicly reported financial metrics. Defendants have expressly denied, and continue to deny all allegations of wrongdoing or liability against them in the Action.Back To Top
Lead Plaintiffs’ principal reason for entering into the Settlement is the substantial immediate cash benefit for the Settlement Class without the risk or the delays inherent in further litigation. Moreover, the substantial cash benefit provided under the Settlement was considered against the significant risk that a smaller recovery—or indeed no recovery at all—might be achieved after further contested motions, a trial of the Action, and the likely appeals that would follow a trial. This process could be expected to last several years. Defendants, who deny all allegations of wrongdoing or liability whatsoever, are entering into the Settlement solely to eliminate the uncertainty, burden, and expense of further protracted litigation. Jed Melnick, Esq. of JAMS provided the following statement regarding the Settlement:
I was selected by the Parties to serve as the mediator in this Action, and oversaw the negotiations that resulted in the Settlement. I believe that the Settlement, in the amount of $28,000,000.00 in cash—which was reached after extensive and rigorous arm’s-length negotiations—represents a fair and sound resolution to a complex and uncertain litigation against Defendants. I therefore recommend the Settlement as reasonable, arm’s length, and consistent with the risks and potential rewards of the claims asserted against the Defendants.Back To Top
If there were no Settlement and Lead Plaintiffs failed to establish any essential legal or factual element of their claims against Defendants, neither Lead Plaintiffs nor the other members of the Settlement Class would recover anything from Defendants. Also, if Defendants were successful in proving any of their defenses at summary judgment, at trial, or on appeal, the Settlement Class could recover substantially less than the amount provided in the Settlement or nothing at all.Back To Top
As a Settlement Class Member, you are represented by Lead Plaintiffs and Lead Counsel unless you enter an appearance through counsel of your own choice at your own expense. You are not required to retain your own counsel, but if you choose to do so, such counsel must file a notice of appearance on your behalf and must serve copies of his or her appearance on the attorneys listed in FAQ 12 below.
If you are a Settlement Class Member and do not wish to remain a Settlement Class Member, you may exclude yourself from the Settlement Class by following the instructions in FAQ 10 below.
If you are a Settlement Class Member and you wish to object to the Settlement, the Plan of Allocation, or Lead Counsel’s application for attorneys’ fees and reimbursement of Litigation Expenses, and if you do not exclude yourself from the Settlement Class, you may present your objections by following the instructions in FAQ 12 below.
Please note that receipt of the Notice does not necessarily mean that you are a Class Member or that you are eligible to receive proceeds from the Settlement. If you wish to participate in the Settlement, you must submit the Proof of Claim Form postmarked no later than December 12, 2017.Back To Top
The Court will hold a hearing on December 6, 2017 at 11:00 a.m. to decide whether to approve the Settlement. If the Settlement is approved, the Claims Administrator will complete the administration process and determine how much each Authorized Claimant is entitled to receive. Lead Counsel will then seek permission from the Court to distribute the Settlement Amount on a pro rata basis to Authorized Claimants. This may take several months.
The $28,000,000.00 Settlement Amount and the interest earned thereon while it is held in escrow before distribution is referred to as the “Settlement Fund.” If you are entitled to a payment, your share of the Settlement Fund will depend on the number of members of the Settlement Class who submit valid Proofs of Claim (the “Authorized Claimants”). Payments will be calculated on a pro rata basis, meaning that the Settlement Fund (less all administrative costs, including the costs of notice, attorneys’ fees, and expenses) will be divided among the Authorized Claimants and distributed accordingly after the deadline for submission of Proof of Claim and Release forms has passed.
Your share of the Net Settlement Fund will depend on the number of shares (represented by valid and acceptable Proof of Claim Forms) that members of the Settlement Class submit to the Claims Administrator, relative to the Net Settlement Fund, how many shares you purchased or acquired and when you purchased or acquired them, whether you held or sold those shares, the date on which you sold those shares, and the price at which you sold them, among other factors. At this time, it is not possible to determine how much individual Class Members may receive from the Settlement.
A payment to any Authorized Claimant that would amount to less than $10.00 in total will not be included in the calculation of the Net Settlement Fund, and no payment to those members of the Settlement Class will be made.
For each Authorized Claimant, a Recognized Loss will be calculated. The calculation of a Recognized Loss, as defined in the Plan of Allocation in the Notice, is not intended to be an estimate of, nor does it indicate, the amount that a Class Member might have been able to recover after a trial. Furthermore, the calculation of a Recognized Loss pursuant to the Plan of Allocation an estimate of the amount that will be paid to Authorized Claimants pursuant to the Settlement, which depends on the total amount of all Recognized Losses of all Authorized Claimants. The Recognized Loss formula provides the basis for proportionately allocating the Net Settlement Fund to Authorized Claimants. That computation is only a method to weigh Class Members’ Claims against one another. Each Authorized Claimant will receive a pro rata share of the Net Settlement Fund based on his, her, or its Recognized Loss.Back To Top
If you are a Settlement Class Member and do not exclude yourself from the Settlement Class, you will be bound by any orders issued by the Court. If the Settlement is approved, the Court will enter a judgment (the “Judgment”). The Judgment will dismiss with prejudice the claims against Defendants and will provide that, upon the Effective Date of the Settlement, Lead Plaintiffs and each of the other Settlement Class Members, on behalf of themselves, their respective heirs, executors, administrators, predecessors, successors, and assigns in their capacities as such, shall be deemed to have, and by operation of the Stipulation, law, and the Judgment, shall have, fully, finally, and forever compromised, settled, released, resolved, relinquished, waived, and discharged each and every of the Released Plaintiffs’ Claims (as defined below) against the Defendants and the other Defendants’ Releasees (as defined below) and shall forever be barred and enjoined from prosecuting any and all the Released Plaintiffs’ Claims against any of the Defendants’ Releasees.
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her, must have materially affected his or her Settlement with the debtor.
Lead Plaintiffs and Defendants acknowledge, and each of the other Settlement Class Members and each of the other Plaintiffs’ Releasees and Defendants’ Releasees shall be deemed by operation of law to have acknowledged, that the foregoing waiver was separately bargained for as a key element of the Settlement.
The Judgment will also provide that, upon the Effective Date of the Settlement, Defendants, on behalf of themselves, their respective heirs, executors, administrators, predecessors, successors, and assigns in their capacities as such shall be deemed to have, and by operation of the Stipulation, law, and the Judgment shall have fully, finally, and forever compromised, settled, released, resolved, relinquished, waived, and discharged each and every Released Defendants’ Claims (as defined below) against any of the Plaintiffs’ Releasees (as defined below) and shall forever be barred and enjoined from prosecuting any or all the Released Defendants’ Claims against any of the Plaintiffs’ Releasees.
The Judgment shall, among other things, provide for the dismissal with prejudice of the Action against the Defendants without costs to any Party or the D&O Insurers except for the payments expressly provided for in the Stipulation.Back To Top
Plaintiffs’ Counsel have not received any payment for their services in pursuing claims against the Defendants on behalf of the Settlement Class nor have Plaintiffs’ Counsel been reimbursed for their out-of-pocket expenses. Before final approval of the Settlement, Lead Counsel will apply to the Court for an award of attorneys’ fees for all Plaintiffs’ Counsel in an amount not to exceed one-third (1/3) of the Settlement Fund. At the same time, Lead Counsel also intends to apply for reimbursement of Litigation Expenses in an amount not to exceed $200,000.00, which may include an application for reimbursement of the reasonable costs and expenses incurred by Lead Plaintiffs directly related to their representation of the Settlement Class. The Court will determine the amount of any award of attorneys’ fees or reimbursement of Litigation Expenses. Such sums as may be approved by the Court will be paid from the Settlement Fund. Settlement Class Members are not personally liable for any such fees or expenses.Back To Top
To be potentially eligible for a payment from the proceeds of the Settlement, you must be a member of the Settlement Class and timely complete and return the Claim Form with adequate supporting documentation postmarked no later than December 12, 2017. A Claim Form is included with the Notice, and you may also obtain one here, or you may request that a Claim Form be mailed to you by calling the Claims Administrator toll-free at (888) 721-6282. Please retain all records of your ownership of and transactions in Brixmor securities, as they may be needed to document your Claim. If you request exclusion from the Settlement Class or do not submit a timely and valid Claim Form, you will not be eligible to share in the Net Settlement Fund.Back To Top
Each Settlement Class Member will be bound by all determinations and judgments in this lawsuit, whether favorable or unfavorable, unless such person or entity mails or delivers a written request for exclusion from the Settlement Class, addressed to Brixmor Securities Litigation, EXCLUSIONS, P.O. Box 6389, Portland, OR 97228-6389. The exclusion request must be received no later than November 15, 2017. You will not be able to exclude yourself from the Settlement Class after that date.
Each request for exclusion must
A request for exclusion shall not be effective unless it provides all the information called for above and is received within the time stated above or is otherwise accepted by the Court.
Please keep a copy of everything you send by mail, in case it is lost during shipping.
If a person or entity requests to be excluded from the Settlement Class, that person or entity will not receive any benefit provided for in the Settlement.
You cannot submit a request for exclusion via email, telephone or this website.Back To Top
The Settlement Hearing will be held on December 6, 2017 at 11:00 a.m. before the Honorable Analisa Torres at the United States District Court for the Southern District of New York, Daniel Patrick Moynihan United States Courthouse, Courtroom 15D, 500 Pearl Street, New York, NY 10007. The Court reserves the right to approve the Settlement, the Plan of Allocation, Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses, and/or any other matter related to the Settlement at or after the Settlement Hearing without further notice to the members of the Settlement Class.Back To Top
Any Settlement Class Member who or which does not request exclusion may object to the Settlement, the proposed Plan of Allocation, or Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses. Objections must be in writing. You must file any written objection together with copies of all other papers and briefs supporting the objection with the Clerk’s Office at the United States District Court for the Southern District of New York at the address set forth below on or before November 15, 2017. You must also serve the papers on the Lead Counsel representatives and on the Defendants’ Counsel representative at the addresses set forth below so the papers are received on or before November 15, 2017.
|Clerk’s Office||Lead Counsel Representatives||Defendants’ Counsel Representatives|
U.S. District Court
Southern District of New York
Daniel Patrick Moynihan
United States Courthouse
500 Pearl Street
New York, NY 10007
Saxena White P.A.
Lester R. Hooker, Esq.
150 East Palmetto Park Road
Boca Raton, FL 33432
Paul, WeissRifkind, Wharton & Garrison LLP
Richard A. Rosen, Esq.
1285 Avenue of the Americas
New York, NY 10019
Robert A. Horowitz, Esq.
200 Park Avenue
New York, NY 10166
Wilmer Cutler Pickering Hale and Dorr LLP
Peter J. Kolovos
60 State Street
Boston, MA 02109
Cohen & Gresser LLP
Mark S. Cohen
800 Third Avenue
New York, NY 10022
Any objection must
You may not object to the Settlement, the Plan of Allocation, or Lead Counsel’s motion for attorneys’ fees and reimbursement of Litigation Expenses if you exclude yourself from the Settlement Class or if you are not a member of the Settlement Class.
You may file a written objection without having to appear at the Settlement Hearing. You may not, however, appear at the Settlement Hearing to present your objection unless you first file and serve a written objection in accordance with the procedures described above unless the Court orders otherwise.
If you wish to be heard orally at the hearing in opposition to the approval of the Settlement, the Plan of Allocation, or Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses and if you timely file and serve a written objection as described above, you must also file a notice of appearance with the Clerk’s Office and serve it on Lead Counsel and Defendants’ Counsel at the addresses set forth above so that it is received on or before November 15, 2017. Persons who intend to object and desire to present evidence at the Settlement Hearing must include in their written objection or notice of appearance the identity of any witnesses they may call to testify and exhibits they intend to introduce into evidence at the hearing. Such persons may be heard orally at the discretion of the Court.
You are not required to hire an attorney to represent you in making written objections or in appearing at the Settlement Hearing. However, if you decide to hire an attorney, it will be at your own expense, and that attorney must file a notice of appearance with the Court and serve it on Lead Counsel and Defendants’ Counsel at the addresses set forth above so the notice is received on or before November 15, 2017.
The Settlement Hearing may be adjourned by the Court without further written notice to the Settlement Class. If you intend to attend the Settlement Hearing, you should confirm the date and time with Lead Counsel.
Unless the Court orders otherwise, any Settlement Class Member who does not object in the manner described above will be deemed to have waived any objection and shall be forever foreclosed from making any objection to the proposed Settlement, the proposed Plan of Allocation, or Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses. Settlement Class Members do not need to appear at the Settlement Hearing or take any other action to indicate their approval.Back To Top
If you purchased or otherwise acquired Brixmor securities during the Settlement Class Period for the beneficial interest of persons or organizations other than yourself, you must either (a) within seven (7) calendar days of receipt of this Notice, request from the Claims Administrator sufficient copies of the Notice and Claim Form (the “Notice Packet”) to forward to all such beneficial owners and, within seven (7) calendar days of receipt of those Notice Packets, forward them to all such beneficial owners; or (b) within seven (7) calendar days of receipt of the Notice, provide a list of the names and addresses of all such beneficial owners to Brixmor Securities Litigation, P.O. Box 6389, Portland, OR 97228-6389. If you choose the second option, the Claims Administrator will send a copy of the Notice and the Claim Form to the beneficial owners. Upon full compliance with these directions, such nominees may seek reimbursement of their reasonable expenses actually incurred by providing the Claims Administrator with proper documentation supporting the expenses for which reimbursement is sought. Copies of the Notice and the Claim Form may also be obtained here, or by calling the Claims Administrator toll-free at (888) 721-6282.Back To Top
The Notice contains only a summary of the terms of the proposed Settlement. For more detailed information about the matters involved in this Action, you are referred to the papers on file in the Action, including the Stipulation, which may be inspected during regular office hours at the Office of the Clerk, United States District Court for the Southern District of New York, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, NY 10007. Additionally, copies of the Stipulation and any related orders entered by the Court will be posted on this website on the Important Documents page.
All inquiries concerning the Notice and the Claim Form should be directed to the following:
Brixmor Securities Litigation
P.O. Box 6389
Portland, OR 97228-6389
Saxena White P.A.
Lester R. Hooker, Esq.
150 East Palmetto Park Road
Boca Raton, FL 33432
DO NOT CALL OR WRITE THE COURT OR THE OFFICE OF THE CLERK OF COURT REGARDING THIS SETTLEMENT.Back To Top