Case 1:11-cv-01034-SS Document 274 Filed 09/08/17 Page 1 of 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS KB Partners I, L.P., Individually and On Behalf of All Others Similarly Situated, v. P l a i n t i f f s, PAIN THERAPEUTICS, INC., REMI BARBIER, NADAV FRIEDMANN, and PETER S. RODDY, Defendants. Case No. 1-11-CV-01034 (SS CLASS PLAINTIFF S UNOPPOSED MOTION FOR FINAL DISTRIBUTION OF THE NET SETTLEMENT FUND Jeremy A. Lieberman (pro hac vice Tamar A. Weinrib (pro hac vice 600 Third Avenue, 20th Floor New York, New York 10016 Telephone: 212-661-1100 Facsimile: 212-661-8665 POMERANTZ LLP Patrick V. Dahlstrom (pro hac vice 10 South LaSalle Street, Suite 3505 Chicago, IL 60603 Telephone: 312-377-1181 Facsimile: 312-377-1184 Class Counsel
Case 1:11-cv-01034-SS Document 274 Filed 09/08/17 Page 2 of 8 Class Representative KB Partners I, L.P. ( Class Plaintiff hereby moves for the entry of an order authorizing distribution of the Net Settlement Fund, 1 substantially in the form submitted herewith. Based on the Claims Administrator s analysis of the Proofs of Claim submitted in this Action, 650 Claimants have submitted valid and properly-documented claims ( Authorized Claimants. 2 Class Plaintiff now seeks to distribute the Net Settlement Fund to the Authorized Claimants on a pro rata basis. Class Plaintiff also respectfully requests that the Claims Administrator be paid the balance of its fees and expenses in the amount of $50,774.61 from the Settlement Fund and that the Court approve the donation of any unclaimed funds, after distributions, to a nonprofit organization selected by the Court. No further fees or expenses are sought by Class Counsel. For the reasons set forth in detail below, this proposed distribution is appropriate and should be approved. BACKGROUND By Order Granting Final Approval of The Class Action Settlement and Plan of Allocation dated December 16, 2016 ( Final Approval, the Court approved the proposed $7.5 million settlement as fair, reasonable, and adequate, and directed the parties to consummate the Settlement Stipulation in accordance with its terms and provisions. 1 All terms with initial capitalization not otherwise defined herein shall have the meanings ascribed to them in the Stipulated Settlement Agreement, dated August 30, 2016 (the Stipulation (ECF No. 257 ( Settlement Stipulation and September 1, 2016 Order of Preliminary Approval (ECF No. 263. 2 See Distribution Declaration of Justin R. Hughes Regarding (A Mailing of the Notice and Proof of Claim Form; (B Administration of Received Proofs of Claim; and (C Proposed Distribution of Settlement ( Hughes Decl., submitted herewith, 35. An additional 702 claims were rejected. Id. 1
Case 1:11-cv-01034-SS Document 274 Filed 09/08/17 Page 3 of 8 Under the terms of the Preliminary Approval Order and as set forth in the Notice, Class Members wishing to participate in the Settlement were required to submit Proofs of Claim by mail, postmarked no later than January 16, 2017. As a result of a very effective notice program, the Claims Administrator received 1,352 Proofs of Claim through July 31, 2017. See Hughes Decl. 7. The Claims Administrator received and reviewed all submitted claims and, to the extent that a claim was deficient in any regard, notified the Claimant of the deficiency and advised the Claimant as to the possible ways to cure the deficiency. Id. 20-27. As of July 31, 2017, the Claims Administrator has received a total of 650 valid claims, as detailed below: Number of Claims Recognized Loss Timely Payable Claims 544 $51,086,760.89 Untimely Payable Claims 106 $5,143,466.99 All Payable Claims 650 $56,230,227.88 Id. 37. Thus, the $7.5 million recovery represents 13.3% of the total Recognized Losses for claims filed on the Settlement Fund. With respect to the 106 untimely payable claims, Class Counsel believes that no delay has resulted from the acceptance of late claims and that it would be unfair to prevent an otherwise valid claim from participating in the Net Settlement Fund solely because it was submitted after the cut-off date, but while the claims were still being processed. Accordingly, Class Counsel respectfully requests that the Court authorize the distribution of the Net Settlement Fund to all valid claims. See In re Authentidate Holding Corp. Secs. Litig., No. 05 Civ. 5323 (LTS, 2013 U.S. Dist. LEXIS 11815, at *3 (S.D.N.Y. Jan. 25, 2013 (courts overseeing settlement distribution have inherent power to accept late claims (citation omitted. 2
Case 1:11-cv-01034-SS Document 274 Filed 09/08/17 Page 4 of 8 However, there must be a final cut-off date after which no more claims may be accepted in order that there may be a proportional distribution of the Net Settlement Fund. Acceptance of any claim received after the claims administration process was substantially completed would necessarily require a delay in the distribution. Accordingly, it is also respectfully requested that this Court enter an order directing that no claim received after July 31, 2017 be accepted for any reason whatsoever. The Claims Administrator has also recommended rejecting 702 claims because they were improperly documented or otherwise ineligible. Hughes Decl. 35. It is respectfully requested that the Court approve the Claims Administrator s recommendations accepting and rejecting claims as set forth above. FEES AND EXPENSES OF THE CLAIMS ADMINISTRATOR Class Plaintiff requests an order approving payment of the Claims Administrator s fees and expenses. In accordance with its agreement with Class Counsel to act as the Claims Administrator herein, the Claims Administrator was responsible for mailing Class Notice, maintaining a website and Claimant call hotline, processing claims, preparing tax returns for the Settlement Fund, and distributing the Net Settlement Fund to accepted Claimants. To that end, the Claims Administrator previously incurred, and was reimbursed out of the Settlement Fund, $65,820.16. The Claims Administrator s outstanding fees and expenses for its work on behalf of the Class thereafter total $50,774.61. Id. 38. Class Plaintiff respectfully requests that the Court direct and authorize the payment from the Settlement Fund of $50,774.61. 3
Case 1:11-cv-01034-SS Document 274 Filed 09/08/17 Page 5 of 8 DISTRIBUTION OF NET CLASS SETTLEMENT FUND As of July 31, 2017, the Settlement Fund contains $4,220,130.57. This sum includes dividend income received and reflects the payment of prior-awarded attorney s fees and expenses, professional liability, and $65,820.16 previously awarded to the Claims Administrator. Class Plaintiff respectfully requests that the Court enter an order directing and authorizing distribution of the balance of the Settlement Fund, after deduction of fees and expenses requested herein and any taxes owing (i.e. the Net Settlement Fund, to the Class Members whose claims have been accepted as set forth on Exhibit B to the Hughes Declaration, in proportion to their Recognized Claims as shown therein. In order to allow the full and final distribution of the Net Settlement Fund, it is necessary to bar any further claims against the Net Settlement Fund and to provide that all persons involved in the review, verification, calculation, tabulation, or any other aspect of the processing of the claims submitted herein, or otherwise involved in the administration or taxation be released and discharged from any and all claims arising out of such involvement beyond the amount allocated to them. Accordingly, it is respectfully requested that the Court bar any further claims against the Net Settlement Fund filed after July 31, 2017 and release and discharge from any and all claims beyond the amount allocated to them arising out of the claims administration, all persons involved in the review, verification, calculation, tabulation, or any other aspect of the processing of the claims submitted herein, or otherwise involved in the administration of the Net Settlement Fund. If there is any unclaimed, residual amount in the Settlement Fund, it will be redistributed pro rata to all Claimants who have cashed their checks from the first distribution. 4
Case 1:11-cv-01034-SS Document 274 Filed 09/08/17 Page 6 of 8 CONCLUSION Class Plaintiff respectfully requests that this Court enter an order, substantially in the form attached hereto: (i approving the administrative determinations of the claims administrator, Kurtzman Carson Consultants LLC ( KCC, as to the acceptance and rejection of submitted claims; (ii ordering that no claim received after July 31, 2017 may be accepted for any reason whatsoever; (iii authorizing a final payment of $50,774.61 out of the remaining Settlement Fund to KCC for its remaining fees and expenses incurred in connection with services performed in giving Class Notice, preparing tax returns for the Net Settlement Fund, processing Proofs of Claim, and administering and distributing the Settlement Fund, and which includes the estimated future cost of mailing checks and storage; (iv authorizing distribution of the Net Settlement Fund (the Settlement Fund less, if approved, the additional payment to KCC requested herein; (v authorizing the distribution, no earlier than six (6 months from the date of the order approving initial distribution, of any unclaimed, residual balance in the Net Settlement Fund to all Claimants who have cashed their checks; (vi ordering that all persons involved in the review, verification, calculation, tabulation, or any other aspect of the processing of the claims submitted herein, or otherwise involved in the administration or taxation of the Settlement Fund or the Net Settlement Fund are released and discharged from any and all claims arising out of such involvement, and all Class Members, whether or not they are to receive payment from the Net Settlement Fund, are barred from 5
Case 1:11-cv-01034-SS Document 274 Filed 09/08/17 Page 7 of 8 making any further claim against the Net Settlement Fund or the released persons beyond the amount allocated to them pursuant to this Court s order; and (vii granting such other and further relief as this Court deems appropriate. DATED: September 8, 2017 Respectfully submitted, POMERANTZ LLP /s/ Tamar A. Weinrib Marc I. Gross (pro hac vice Jeremy A. Lieberman (pro hac vice Tamar A. Weinrib (pro hac vice 600 Third Avenue, 20th Floor New York, New York 10016 Telephone: 212-661-1100 Facsimile: 212-661-8665 POMERANTZ LLP Patrick V. Dahlstrom (pro hac vice 10 South LaSalle Street, Suite 3505 Chicago, IL 60603 Telephone: 312-377-1181 Facsimile: 312-377-1184 AHMAD, ZAVITSANOS, ANAIPAKOS, ALAVI & MENSING PC Sammy Ford IV Federal Bar Number: 950682 Texas Bar Number: 24061331 1221 McKinney, Suite 2500 Houston, Texas 77010 Telephone: 713-655-1101 Facsimile: 713-655-0062 Counsel for Plaintiff 6
Case 1:11-cv-01034-SS Document 274 Filed 09/08/17 Page 8 of 8 CERTIFICATE OF SERVICE I hereby declare on September 8, 2017 that the foregoing document was filed with the Court s CM/ECF system, which sent notification of such filing to all counsel of record. /s/ Tamar A. Weinrib 7