throbber
Case: 1:16-cv-10632 Document #: 173 Filed: 07/14/21 Page 1 of 38 PageID #:3451
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`Case No.: 16-CV-10632
`
`
`
`
`PUBLIC EMPLOYEES’ RETIREMENT
`SYSTEM OF MISSISSIPPI, Individually and
`On Behalf of All Others Similarly Situated,
`
` Plaintiff,
`
` v.
`
`TREEHOUSE FOODS, INC., SAM K.
`REED, DENNIS F. RIORDAN and
`CHRISTOPHER D. SLIVA,
`
` Defendants.
`
`
`STIPULATION OF SETTLEMENT
`
`This Stipulation of Settlement, dated as of July 13, 2021 (the “Stipulation”), is made and
`
`
`
`
`
`
`
`entered into by and among: (i) Lead Plaintiff, The Public Employees’ Retirement System of
`
`Mississippi ( “Lead Plaintiff”) (on behalf of itself and each of the Class Members),1 by and
`
`through its counsel of record in the Litigation; and (ii) TreeHouse Foods, Inc. (“TreeHouse” or
`
`the “Company”), Sam K. Reed, Dennis F. Riordan, and Christopher D. Sliva (together,
`
`“Defendants”). Lead Plaintiff, the Class, and Defendants are collectively referred to herein as
`
`the “Parties” or the “Settling Parties.” This Stipulation is intended to fully, finally, and forever
`
`resolve, discharge, and settle the Released Claims, subject to the approval of the Court and the
`
`terms and conditions set forth in this Stipulation.
`
`                                                            
`1 All undefined terms with initial caps are defined below in Section IV(1).
`
`
`
`1
`
`

`

`Case: 1:16-cv-10632 Document #: 173 Filed: 07/14/21 Page 2 of 38 PageID #:3452
`
`I.
`
`THE LITIGATION 
`This Litigation is pending in the United States District Court for the Northern District
`
`of Illinois (the “Court”). The initial complaint in this action was filed on November 1 6 , 2016.
`
`Dkt No. 1. On January 25, 2017, the Court appointed Lead Plaintiff and Lead Counsel. Dkt.
`
`No. 42. On March 24, 2017, Lead Plaintiff filed an Amended Consolidated Complaint. Dkt.
`
`No. 45.
`
`Lead Plaintiff brought this securities fraud class action on behalf of all persons and
`
`entities who purchased TreeHouse common stock on the open market between January 20,
`
`2016, and November 2, 2016, inclusive, and who were damaged thereby. Plaintiff alleges
`
`that Defendants violated Sections 10(b) and 20(a) of the Exchange Act, 15 U.S.C. §§78j(b)
`
`and 78t(a), and Securities and Exchange Commission (“SEC”) Rule 10b-5 promulgated
`
`thereunder, 17 C.F.R. §240.10b-5 (“Rule 10b-5”).
`
`Defendant TreeHouse manufactures private label or “store brand” food products for
`
`grocery stores, warehouse chains, and other retailers. TreeHouse’s strategy for market
`
`growth turned in part on acquiring and integrating other private label food companies, and
`
`TreeHouse had purchased twelve companies between 2006 and 2015. In 2014, TreeHouse
`
`purchased Flagstone Foods for more than $850 million in its then-largest acquisition to date.
`
`Lead Plaintiff alleges that Defendants misrepresented to investors and analysts that
`
`Flagstone was being smoothly integrated into TreeHouse.
`
`In 2015, TreeHouse purchased the “Private Brands” business from ConAgra Foods,
`
`Inc. for more than $2.7 billion. TreeHouse’s acquisitions of Flagstone and Private Brands
`
`nearly tripled its size. Lead Plaintiff alleges that TreeHouse continued to misrepresent to the
`
`market that its recent large acquisitions were successful.
`
`
`
`2
`
`

`

`Case: 1:16-cv-10632 Document #: 173 Filed: 07/14/21 Page 3 of 38 PageID #:3453
`
`Lead Plaintiff contends that TreeHouse’s stock traded at an inflated level because of
`
`Defendants’ alleged wrongful acts and omissions. On November 3, 2016, TreeHouse
`
`disclosed that third quarter earnings would be below expectations, and Company shares fell
`
`roughly 20%. It is alleged that the Company’s November 3, 2016 public statements
`
`constituted corrective disclosures about TreeHouse’s integration of Flagstone and Private
`
`Brands, resulting in Lead Plaintiff and the other Class Members suffering loss and damages.
`
`Defendants have denied and continue to deny all of Plaintiffs’ allegations.
`
`Defendants have denied and continue to deny any wrongdoing whatsoever or that they have
`
`committed any act or omission giving rise to any liability or violation of law, including the
`
`U.S. securities laws. Defendants have denied and continue to deny each and every one of
`
`the claims that was alleged or could have been alleged in the Litigation, including all claims
`
`in the Complaint, as well as any allegations that Lead Plaintiff or any member of the Class
`
`has suffered damages or was otherwise harmed by the conduct alleged in the Litigation.
`
`Defendants believe that the claims asserted against them in the Litigation are without merit.
`
`On May 26, 2017, Defendants filed a motion to dismiss. Dkt. No. 58. In a
`
`Memorandum Opinion and Order entered on February 12, 2018, the Court denied
`
`Defendants’ motion to dismiss. Dkt. No. 75.
`
`The Parties served initial disclosures on May 25, 2018. Starting on June 1, 2018, the
`
`Parties began serving document requests and interrogatories. After serving objections and
`
`responses to the various discovery requests, the Parties began producing documents after
`
`meeting and conferring multiple times and agreeing upon search terms. Defendants
`
`eventually produced more than 50,000 documents, comprising over 200,000 pages.
`
`
`
`3
`
`

`

`Case: 1:16-cv-10632 Document #: 173 Filed: 07/14/21 Page 4 of 38 PageID #:3454
`
`Lead Plaintiff also served 14 third party subpoenas. Lead Plaintiff’s counsel had
`
`multiple meet and confer conferences with each of these subpoenaed third parties to define
`
`and narrow the scope of their respective productions of documents. Approximately 4,000
`
`documents were produced by these third parties.
`
`During the course of discovery, Defendants deposed two representatives of Lead
`
`Plaintiff: Special Assistant Attorney General George Neville and Lorrie Tingle. Defendants
`
`also deposed Lead Plaintiff’s class certification expert, Chad W. Coffman of Global
`
`Economics Group. Lead Plaintiff deposed Defendants’ class certification expert, Dr. Paul
`
`Zurek of Cornerstone.
`
`On July 13, 2018, Lead Plaintiff moved to certify a class consisting of all persons and
`
`entities who purchased TreeHouse common stock on the open market between January 20,
`
`2016, and November 2, 2016, inclusive, and who were damaged thereby. Dkt. No. 93. After
`
`Lead Plaintiff filed its opening class certification brief, and Defendants filed their opposition
`
`to the class certification motion on October 8, 2018 (Dkt. No. 106), the Parties agreed to
`
`attempt to resolve the Litigation through mediation and stayed the Litigation. Dkt. No. 108.
`
`On March 19, 2019, the Parties participated in a full-day mediation before Michelle Yoshida
`
`of Phillips ADR, which proved unsuccessful.
`
`After the mediation, the Parties completed class certification discovery and briefing.
`
`On February 26, 2020, the Court issued an order granting the class certification motion and
`
`certifying Lead Plaintiff as class representative. Dkt. No. 152. On March 11, 2020,
`
`Defendants filed a Rule 23(f) interlocutory appeal petition with the Seventh Circuit Court of
`
`Appeals with respect to the class certification order. On May 4, 2020, after full briefing
`
`requested by the Seventh Circuit, the petition was denied.
`
`
`
`4
`
`

`

`Case: 1:16-cv-10632 Document #: 173 Filed: 07/14/21 Page 5 of 38 PageID #:3455
`
`On March 10, 2020, the Court again stayed proceedings to allow the Parties to
`
`recommence mediation proceedings before a different mediator. See Dkt. 153. The Parties
`
`engaged the services of Gregory P. Lindstrom of Phillips ADR, a nationally recognized
`
`mediator (the “Mediator”). Because of the restrictions on travel and in-person gatherings
`
`imposed by COVID-19, the Parties conducted the mediation process entirely remotely. The
`
`Parties engaged with the Mediator on Zoom and telephonic meetings, exchanged mediation
`
`statements and reply mediation statements, and provided additional memoranda and other
`
`documents as requested by the Mediator. On February 4, 2021, after an extended mediation
`
`process that spanned nearly 11 months, the Parties mutually agreed in principle to accept the
`
`Mediator’s written proposal to settle the Litigation, subject to various conditions, definitive
`
`documentation and Court approval. The agreement included, among other things, the Settling
`
`Parties’ agreement to settle and release all claims that were or could have been asserted in the
`
`Litigation in return for a cash payment of $27,000,000, for the benefit of the Class, subject to various
`
`conditions including the negotiation of the terms of a Stipulation of Settlement and approval by the
`
`Court. This Stipulation (together with the Exhibits hereto) reflects the final and binding agreement
`
`among the Settling Parties.
`
`II.
`
`DEFENDANTS’ DENIALS OF WRONGDOING, LIABILITY & THE MERITS
`OF PLAINTIFF’S CLAIMS
`
`Throughout this Litigation, Defendants have denied, and continue to deny, any and all
`
`allegations of fault, liability, wrongdoing, or damages whatsoever. Defendants expressly have
`
`denied, and continue to deny, that they have committed any act or omission giving rise to any
`
`liability under Sections 10(b) or 20(a) of the Securities Exchange Act of 1934 or Rule 10b-5 or
`
`otherwise.
`
`
`
`5
`
`

`

`Case: 1:16-cv-10632 Document #: 173 Filed: 07/14/21 Page 6 of 38 PageID #:3456
`
`As set forth below, neither the Settlement nor any of the terms of this Stipulation shall be
`
`deemed or construed to be evidence of or constitute an admission, concession, or finding of any
`
`fault, liability, wrongdoing, or damage whatsoever, which, to the contrary, are expressly denied, or
`
`any infirmity in the defenses that Defendants have, or could have, asserted. Defendants believe
`
`Plaintiff’s claims are without merit and that none of the evidence developed to date, or that would
`
`be developed if the case was litigated, supports or would support Plaintiff’s claims.
`
`Nonetheless, Defendants have concluded that further conduct of the Litigation would be
`
`protracted and expensive, and that it is desirable that the Litigation be fully and finally settled in
`
`the manner and upon the terms and conditions set forth in this Stipulation. Defendants also have
`
`taken into account the uncertainty and risks inherent in any litigation, especially in complex cases
`
`like the Litigation. Defendants have, therefore, determined that it is desirable and beneficial that
`
`the Litigation be settled in the manner and upon the terms and conditions set forth in this
`
`Stipulation.
`
`III.
`
` LEAD PLAINTIFF’S CLAIMS AND THE BENEFITS OF SETTLEMENT
`
`Lead Plaintiff believes that the claims asserted in the Litigation have merit and that the
`
`evidence developed to date supports its claims. However, Lead Plaintiff and its counsel
`
`recognize and acknowledge the expense and length of continued proceedings necessary to
`
`prosecute the Litigation against Defendants through trial and through appeals. Lead Plaintiff
`
`and its counsel also have taken into account the uncertain outcome and the risk of any litigation,
`
`especially in complex actions such as this Litigation, as well as the difficulties and delays inherent
`
`in such litigation. Lead Plaintiff and its counsel also are mindful of the inherent problems of
`
`proof under and possible defenses to the securities law violations asserted in the Litigation.
`
`Lead Plaintiff believes that the Settlement set forth in this Stipulation confers substantial benefits
`
`
`
`6
`
`

`

`Case: 1:16-cv-10632 Document #: 173 Filed: 07/14/21 Page 7 of 38 PageID #:3457
`
`upon the Class. Based on their evaluation, Lead Plaintiff and its counsel have determined that
`
`the Settlement set forth in this Stipulation is in the best interests of Lead Plaintiff and the Class.
`
`IV.
`
`TERMS OF THE STIPULATION AND AGREEMENT OF SETTLEMENT
`
`NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among
`
`Lead Plaintiff, the Class, and Defendants, by and through their counsel or attorneys of record,
`
`that, subject to the approval of the Court pursuant to Rule 23(e) of the Federal Rules of Civil
`
`Procedure, the Litigation and
`
`the Released Claims shall be finally, fully and forever
`
`compromised, settled, and released, and the Litigation shall be dismissed with prejudice, as to all
`
`Settling Parties, upon and subject to the terms and conditions of this Stipulation, as follows:
`
`1.
`
`Definitions
`
`As used in this Stipulation the following terms have the meanings specified below:
`
`1.1
`
`“Authorized Claimant” means any Class Member whose claim for recovery has
`
`been allowed pursuant to the terms of this Stipulation.
`
`1.2
`
`1.3
`
`“Claims Administrator” means the firm of A.B. Data, Ltd..
`
`“Class” means all Persons who purchased TreeHouse common stock on the open
`
`market during the Class Period and who were damaged thereby. Excluded from the Class are:
`
`Defendants (TreeHouse, Sam K. Reed, Dennis F. Riordan, and Christopher B.
`
`Sliva), the officers and directors of TreeHouse, members of their Immediate Families and their
`
`legal representatives, heirs, successors or assigns, and any entity in which Defendants have or
`
`had a controlling interest. Also excluded from the Class is any Person who satisfies the criteria for
`
`being a member of the Class but validly and timely requests exclusion in accordance with the
`
`requirements set by the Court.
`
`
`
`7
`
`

`

`Case: 1:16-cv-10632 Document #: 173 Filed: 07/14/21 Page 8 of 38 PageID #:3458
`
`1.4
`
`“Class Member” means a Person who falls within the definition of the Class as set
`
`forth in ¶1.3 above.
`
`1.5
`
`“Class Period” means the period from January 20, 2016 to November 2, 2016,
`
`inclusive.
`
`1.6
`
`“Defendants” means TreeHouse, Sam K. Reed, Dennis F. Riordan, and Christopher
`
`D. Sliva.
`
`1.7
`
`“Effective Date,” or the date upon which this Settlement becomes “effective,”
`
`means the first date by which all of the events and conditions specified in ¶ 8 . 1 of the Stipulation
`
`have been met and have occurred or have been waived.
`
`1.8
`
`1.9
`
`“Escrow Agent” means Huntington National Bank or its agents.
`
`“Final” means when the last of the following with respect to the Judgment
`
`approving this Stipulation, substantially in the form of Exhibit B attached hereto, shall occur:
`
`(i) the expiration of the time to file a motion to alter or amend the Judgment under Federal Rule of
`
`Civil Procedure 59(e) without any such motion having been filed; (ii) the expiration of the time
`
`for the filing or noticing of any appeal from the Judgment without any appeal having been taken;
`
`and (iii) if a motion to alter or amend is filed or if an appeal is taken, immediately after the final
`
`determination of that motion or appeal such that no further judicial review or appeal is permitted,
`
`whether by reason of affirmance by a court of last resort, lapse of time, voluntary dismissal of the
`
`appeal or otherwise in such a manner as to permit the consummation of the Settlement,
`
`substantially in accordance with the terms and conditions of this Stipulation. For purposes of this
`
`paragraph, an “appeal” shall include any request for leave to appeal, petition for a writ of
`
`certiorari or other writ that may be filed in connection with approval or disapproval of this
`
`Settlement. Any appeal or proceeding seeking subsequent judicial review pertaining solely to an
`
`
`
`8
`
`

`

`Case: 1:16-cv-10632 Document #: 173 Filed: 07/14/21 Page 9 of 38 PageID #:3459
`
`order issued with respect to (i) attorneys’ fees, costs, or expenses, (ii) the Plan of Allocation (as
`
`submitted or subsequently modified), or (iii) the procedures for determining Authorized
`
`Claimants’ recognized claims, shall not in any way delay, affect, or preclude the time set forth
`
`above for the Judgment to become Final, or otherwise preclude the Judgment from becoming
`
`Final.
`
`1.10
`
`“Immediate Family” means any spouse, parent, step-parent, grandparent, child,
`
`step-child, grandchild, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-
`
`in-law, or sister-in-law. As used in this paragraph, “spouse” shall mean a husband, a wife, or
`
`a partner in a state-recognized domestic relationship or civil union.
`
`1.11
`
`“Judgment” means the Order and Final Judgment to be rendered by the Court,
`
`substantially in the form attached hereto as Exhibit B.
`
`1.12
`
`“Lead Counsel” means the law firm of Wolf Popper LLP.
`
`1.13
`
`“Lead Plaintiff” means the Public Employees’ Retirement System of Mississippi,
`
`also referred to herein variously as “Plaintiff.”
`
`1.14
`
`“Litigation” means the action captioned Public Employees’ Retirement System of
`
`Mississippi v. TreeHouse Foods, Inc., Case No. 16-CV-10632.
`
`1.15
`
`“Net Settlement Fund” means the Settlement Fund less: (i) any Court-awarded
`
`attorneys’ fees, expenses, and interest thereon; (ii) Notice and Administration Expenses; (iii)
`
`Taxes and Tax Expenses; and (iv) other Court-approved deductions.
`
`1.16
`
`“Person” means an individual, corporation, limited liability corporation,
`
`professional corporation, partnership, limited partnership, limited liability partnership, limited
`
`liability company, association, joint stock company, estate, legal representative, trust,
`
`unincorporated association, government or any political subdivision or agency thereof, and
`
`
`
`9
`
`

`

`Case: 1:16-cv-10632 Document #: 173 Filed: 07/14/21 Page 10 of 38 PageID #:3460
`
`other entity, business, legal or otherwise, and all of their respective spouses, heirs, beneficiaries,
`
`executors, administrators, predecessors, successors, representatives, or assignees.
`
`1.17
`
`“Plan of Allocation” means a plan or formula of allocation of the Net Settlement
`
`Fund whereby the Net Settlement Fund shall be distributed to Authorized Claimants. Any Plan
`
`of Allocation is not part of this Stipulation and neither Defendants nor their Related Parties shall
`
`have any responsibility or liability with respect thereto.
`
`1.18
`
`“Proof of Claim and Release” means the Proof of Claim and Release form for
`
`submitting a claim, which, subject to approval of the Court, shall be substantially in the form
`
`attached hereto as Exhibit C-2, which a Class Member must complete and submit should that Class
`
`Member seek to share in a distribution of the Net Settlement Fund.
`
`1.19
`
`“Related Parties” means each Defendant’s respective former, present or future
`
`parent companies, controlling shareholders, subsidiaries, divisions and affiliates and the
`
`respective present and former employees, members, managers, partners, principals, officers,
`
`directors, controlling shareholders, agents, attorneys, advisors, accountants, auditors, and insurers
`
`and reinsurers of each of them; and the predecessors, successors, estates, Immediate Family
`
`members, spouses, heirs, executors, trusts, trustees, administrators, agents, legal or personal
`
`representatives, assigns, and assignees of each of them.
`
`1.20
`
`“Released Claims” means any and all claims, causes of action, demands, rights,
`
`potential actions, liabilities, duties, damages, losses, diminutions in value, obligations, agreements,
`
`suits, fees, attorneys’ fees, expert or consulting fees, debts, expenses, fines, costs, penalties and
`
`sanctions of every nature and description whatsoever, including both known claims and Unknown
`
`Claims, whether arising under federal, state, common, statutory, administrative, or foreign law, or
`
`any other law, rule or regulation, at law or in equity, whether class or individual (but not
`
`
`
`10
`
`

`

`Case: 1:16-cv-10632 Document #: 173 Filed: 07/14/21 Page 11 of 38 PageID #:3461
`
`derivative) in nature, that Plaintiff or any other Class Member asserted in the Litigation or could
`
`have asserted, or could in the future assert, whether known or unknown, contingent or absolute,
`
`liquidated or not liquidated, accrued or unaccrued, suspected or unsuspected, disclosed or
`
`undisclosed, foreseen or unforeseen, in any forum that arise out of or are based upon or related in
`
`any way to (a) the purchase of TreeHouse common stock during the Class Period, and (b) the
`
`subject matter, allegations, transactions, acts, facts, matters, occurrences, representations,
`
`statements, or omissions involved, set forth, or referred to in the Litigation. “Released Claims”
`
`includes “Unknown Claims” as defined in ¶ 1.29 hereof.
`
`1.21
`
`“Released Defendants’ Claims” means any and all claims and causes of action of
`
`every nature and description whatsoever, including both known claims and Unknown Claims,
`
`whether arising under federal, state, local, common, statutory, administrative, or foreign law, or
`
`any other law, rule or regulation, at law or in equity, that arise out of or relate in any way to the
`
`institution, prosecution, or settlement of the claims in the Litigation, except for claims relating to
`
`the enforcement of the Settlement.
`
`1.22
`
`1.23
`
`“Released Persons” means each and all of the Defendants and their Related Parties.
`
`“Settlement” means the resolution of the Litigation in accordance with the terms
`
`and provisions of this Stipulation.
`
`1.24
`
`“Settlement Amount” means Twenty-Seven Million Dollars ($27,000,000) in cash
`
`to be paid by check or wire transfer to the Escrow Agent pursuant to ¶2.1 of this Stipulation.
`
`1.25
`
`“Settlement Fund” means the Settlement Amount plus all interest and accretions
`
`thereto.
`
`1.26
`
`“Settlement Hearing” means the hearing set by the Court under Rule 23(e)(2) of
`
`the Federal Rules of Civil Procedure to consider final approval of the Settlement.
`
`
`
`11
`
`

`

`Case: 1:16-cv-10632 Document #: 173 Filed: 07/14/21 Page 12 of 38 PageID #:3462
`
`1.27
`
`1.28
`
`“Settling Parties” means, collectively, Defendants, Plaintiff, and the Class.
`
`“Tax” or “Taxes” mean any and all taxes, fees, levies, duties, tariffs, imposts, and
`
`other charges of any kind (together with any and all interest, penalties, additions to tax and
`
`additional amounts imposed with respect thereto) imposed by any governmental authority,
`
`including, but not limited to, any local, state, and federal taxes.
`
`1.29
`
`“Unknown Claims” means (a) any and all Released Claims which Plaintiff, Lead
`
`Counsel, or any Class Member does not know or suspect to exist in their favor at the time of the
`
`release of the Released Persons, which, if known by him, her, or it, might have affected their
`
`settlement with and release of the Released Persons, or might have affected their decision(s) with
`
`respect to the Settlement, including, but not limited to, whether or not to object to this Settlement
`
`or seek exclusion from the Class; and (b) any and all Released Defendants’ Claims that the
`
`Released Persons do not know or suspect to exist in their favor at the time of the release of the
`
`Plaintiff, Lead Counsel, or any Class Members, which, if known by him, her, or it, might have
`
`affected their settlement and release of Plaintiff, Lead Counsel, or Class Members. With respect
`
`to any and all Released Claims and Released Defendants’ Claims, the Settling Parties stipulate
`
`and agree that, upon the Effective Date, the Settling Parties shall expressly waive and each of the
`
`Settling Parties shall be deemed to have, and by operation of the Judgment shall have, expressly
`
`waived the provisions, rights, and benefits of California Civil Code §1542, which provides:
`
`A general release does not extend to claims that the creditor or releasing party does
`not know or suspect to exist in his or her favor at the time of executing the release
`and that, if known by him or her, would have materially affected his or her settlement
`with the debtor or released party.
`
`
`The Settling Parties shall expressly waive and, more specifically, each of the Class Members shall
`
`be deemed to have, and by operation of the Judgment shall have, expressly waived any and all
`
`provisions, rights, and benefits conferred by any law of any state or territory of the United States,
`
`
`
`12
`
`

`

`Case: 1:16-cv-10632 Document #: 173 Filed: 07/14/21 Page 13 of 38 PageID #:3463
`
`or principle of common law, which is similar, comparable, or equivalent to California Civil
`
`Code §1542. The Settling Parties acknowledge that they may hereafter discover facts in addition
`
`to, or different from, those that they or their counsel now knows or believes to be true with
`
`respect to the subject matter of the Released Claims or Released Defendants’ Claims, but the
`
`Settling Parties expressly settle and release, and, specifically, each Class Member, upon the
`
`Effective Date, shall be deemed to have, and by operation of the Judgment shall have, fully,
`
`finally, and forever settled and released any and all Released Claims and Released Defendants’
`
`Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, whether or
`
`not concealed or hidden, which now exist, or heretofore have existed, upon any theory of law or
`
`equity now existing or coming into existence in the future, including, but not limited to, conduct
`
`which is negligent, intentional, with or without malice, or a breach of any duty, law or rule,
`
`without regard to the subsequent discovery or existence of such different or additional facts. The
`
`Settling Parties acknowledge, and the Class Members shall be deemed by operation of the
`
`Judgment to have acknowledged, that the foregoing waiver was separately bargained for and is
`
`a key element of the Settlement of which this release is a part.
`
`2.
`
`The Settlement
`
`a.
`
`The Settlement Amount
`
`2.1
`
`In consideration of the terms of this Stipulation, TreeHouse shall cause the
`
`
`
`Settlement Amount to be paid into the Escrow Agent by check or wire transfer in accordance
`
`with instructions to be provided by the Escrow Agent, on or before the later of: (i) twenty-one
`
`(21) calendar days after the entry of the Preliminary Approval Order, as defined in ¶3.1
`
`herein, or (ii) t e n ( 1 0 ) b u s i n e s s d a y s a f t e r the provision to Defendants of all information
`
`necessary to effectuate a transfer of funds, including, but not limited to, the bank name and ABA
`
`
`
`13
`
`

`

`Case: 1:16-cv-10632 Document #: 173 Filed: 07/14/21 Page 14 of 38 PageID #:3464
`
`routing number, account name and number, and a signed W-9 reflecting the taxpayer
`
`identification number for the Settlement Fund. The Escrow Agent shall deposit the Settlement
`
`Amount plus any accrued interest in a segregated escrow account (the “Escrow Account”)
`
`maintained by the Escrow Agent invested as set forth in ¶2.4, below.
`
`2.2
`
`If the entire Settlement Amount is not timely paid to the Escrow Agent, Lead
`
`Counsel in its discretion may exercise all rights under this Stipulation or terminate the
`
`Settlement but only if: (i) Lead Counsel has notified Defendants’ counsel in writing of Lead
`
`Counsel’s intention to terminate the Settlement, and the entire Settlement Amount is not
`
`transferred to the Escrow Account within five (5) business days after Lead Counsel has provided
`
`such written notice.
`
`2.3
`
`Other than the obligation to pay or cause to be paid the Settlement Amount into the
`
`Escrow Account set forth in ¶2.1 herein, Defendants shall have no obligation to make any other
`
`payment, into the Settlement Fund or otherwise, pursuant to this Stipulation, and shall have no
`
`responsibility, obligation, or liability with respect to the Escrow Account or the monies maintained
`
`in the Escrow Account or the administration of the Settlement, including, without limitation, any
`
`responsibility or liability related to any fees, Taxes, investment decisions, maintenance,
`
`supervision or distribution of any portion of the Settlement Amount.
`
`
`
`b.
`
`The Escrow Agent
`
`2.4
`
`The Escrow Agent shall invest the Settlement Amount deposited pursuant to ¶2.1
`
`hereof in United States Agency or Treasury Securities or other instruments backed by the Full
`
`Faith & Credit of the United States Government or an Agency thereof, or fully insured by the
`
`United States Government or an Agency thereof and shall reinvest the proceeds of these
`
`instruments as they mature in similar instruments at their then-current market rates. All risks
`
`related to the investment of the Settlement Fund in accordance with the investment guidelines set
`
`
`
`14
`
`

`

`Case: 1:16-cv-10632 Document #: 173 Filed: 07/14/21 Page 15 of 38 PageID #:3465
`
`forth in this paragraph shall be borne by the Settlement Fund, and the Released Persons shall have
`
`no responsibility for, interest in, or liability whatsoever with respect to investment decisions or the
`
`actions of the Escrow Agent, or any transactions executed by the Escrow Agent, except their
`
`reversionary interest in the Settlement Fund to the extent the Effective Date does not occur pursuant
`
`to ¶2.11, below.
`
`2.5
`
`The Escrow Agent shall not disburse the Settlement Fund except as provided in this
`
`Stipulation, by an order of the Court, or with the prior written agreement of Defendants’ counsel.
`
`2.6
`
`Subject to further order(s) and/or directions as may be made by the Court, or as
`
`provided in this Stipulation, the Escrow Agent is authorized to execute such transactions as are
`
`consistent with the terms of this Stipulation. The Released Persons shall have no responsibility
`
`for, interest in, or liability whatsoever with respect to the actions of the Escrow Agent, or any
`
`transaction executed by the Escrow Agent, except their reversionary interest in the Settlement
`
`Funds to the extent the Effective Date does not occur pursuant to ¶2.11, below.
`
`2.7
`
`All funds held by the Escrow Agent shall be deemed and considered to be in
`
`custodia legis of the Court, and shall remain subject to the jurisdiction of the Court, until such time
`
`as such funds shall be distributed pursuant to this Stipulation and/or further order(s) of the Court.
`
`2.8
`
`After the Court issues the Preliminary Approval Order, and notwithstanding the
`
`fact that the Effective Date of the Settlement has not yet occurred, Lead Counsel may pay
`
`from the Settlement Fund, without further approval and/or order of the Court, reasonable costs
`
`and expenses actually incurred in connection with providing notice of the Settlement to the
`
`Class by mail, publication, and other means, locating Class Members, administering the
`
`Settlement, and paying escrow fees and costs, if any, and, after the Effective Date, assisting with
`
`the submission of claims, processing Proof of Claim and Release forms (“Notice and
`
`
`
`15
`
`

`

`Case: 1:16-cv-10632 Document #: 173 Filed: 07/14/21 Page 16 of 38 PageID #:3466
`
`Administration Expenses”). The Released Persons shall have no responsibility for or liability
`
`whatsoever with respect to the Notice and Administration Expenses, nor shall they have any
`
`responsibility or liability whatsoever for any claims with respect thereto.
`
`
`
`2.9
`
`c.
`
`(a)
`
`Taxes
`
`The Settling Parties and the Escrow Agent agree to treat the Settlement
`
`Fund as being at all times a “qualified settlement fund” within the meaning of Treas. Reg.
`
`§1.4688-1. The Settling Parties and the Escrow Agent further agree that the Settlement Fund
`
`shall be established pursuant to the Court’s subject matter jurisdiction within the meaning of
`
`Treas. Reg. §1.4688-1(c)(1). In addition, the Escrow Agent shall timely make such elections as
`
`necessary or advisable to carry out the provisions of this ¶2.8, including the “relation-back
`
`election” (as defined in Treas. Reg. §1.4688-1) back to the earliest permitted date. Such
`
`elections shall be made in compliance with the procedures and requirements contained in such
`
`regulations. It shall be the responsibility of the Escrow Agent to timely and properly prepare
`
`and deliver the necessary documentation for signature by all necessary parties, and thereafter to
`
`cause the appropriate filing to occur.
`
`(b)
`
`For the purpose of §1.468B of the Internal Revenue Code of 1986, as
`
`amended, and the regulations promulgated thereunder, the “administrator” (as defined in Treas.
`
`Reg. §1.468B-2(k)(3)) shall be the Escrow Agent. The Escrow Agent shall timely and properly
`
`file all informational and other federal, state, or local tax returns necessary or advisable with
`
`respect to the earnings on the Settlement Fund (including, without limitation, the returns described
`
`in Treas. Reg. §1.468B-2(k)). Such returns (as well as the elections described in ¶ 2 . 9 (a) hereof)
`
`shall be consistent with this ¶ 2 . 9 and in all events shall reflect that all Taxes (including any
`
`estimated Taxes, int

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket