Case: 1:18-cv-04473 Document #: 149 Filed: 04/14/22 Page 1 of 32 PageID #:3744
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`
`
`ASHLEY PIERRELOUIS, Individually and
`on Behalf of All Others Similarly Situated,
`
`
`Plaintiff,
`
`
`v.
`
`GOGO INC., MICHAEL J. SMALL,
`OAKLEIGH THORNE, NORMAN
`SMAGLEY, BARRY ROWAN, and JOHN
`WADE,
`
`
`Defendants.
`
`Civil Action No. 18-cv-04473
`
`Honorable Jorge L. Alonzo
`
`
`
`
`
`MEMORANDUM OF LAW IN SUPPORT OF LEAD PLAINTIFF’S UNOPPOSED
`MOTION FOR: (I) PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT;
`(II) CERTIFICATION OF THE SETTLEMENT CLASS; AND
`(III) APPROVAL OF NOTICE OF SETTLEMENT
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`
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`790334.1
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`I.
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`TABLE OF CONTENTS
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` PRELIMINARY STATEMENT ........................................................................................ 1
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`II.
`
` NATURE OF THE ACTION ............................................................................................. 2
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`III. PROCEDURAL HISTORY................................................................................................ 3
`
`A.
`
`B.
`
`C.
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`D.
`
`E.
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`The Initial Complaint And Lead Plaintiff Appointment ......................................... 3
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`Lead Counsel’s Investigation, First And Second Amended Complaints And
`Defendants’ Motions To Dismiss ........................................................................... 3
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`The Operative Complaint And Defendants’ Motion To Dismiss ........................... 5
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`Discovery ................................................................................................................ 6
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`Mediation ................................................................................................................ 6
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`IV. THE SETTLEMENT .......................................................................................................... 6
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`A.
`
`B.
`
`The Settlement Terms ............................................................................................. 6
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`The Plan Of Allocation ........................................................................................... 7
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`V.
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` THE SETTLEMENT WARRANTS PRELIMINARY APPROVAL ................................ 7
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`A.
`
`B.
`
`Lead Plaintiff And Plaintiffs’ Counsel Adequately Represented The Settlement
`Class ........................................................................................................................ 9
`
`The Settlement Is The Result Of Arm’s-Length Negotiations Between Experienced
`Counsel ................................................................................................................. 10
`
`C.
`
`The Relief Provided For The Settlement Class Is Adequate ................................ 11
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`1.
`
`2.
`
`3.
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`The Settlement Amount ............................................................................ 11
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`The Cost, Risk, And Delay Of Trial And Appeal ..................................... 13
`
`Other Factors Established By Rule 23(e)(2)(C) Support Preliminary
`Approval ................................................................................................... 15
`
`All Settlement Class Members Are Treated Equitably ......................................... 17
`
`The Remaining Factors Are Satisfied ................................................................... 18
`
`i
`
`D.
`
`E.
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`1.
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`The Extent Of Discovery Completed And The Stage Of The Proceedings
`At Which Settlement Was Achieved Strongly Supports Preliminary
`Approval ................................................................................................... 18
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`2.
`
`Recommendations Of Experienced Counsel ............................................ 19
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`VI. THE COURT SHOULD CERTIFY THE SETTLEMENT CLASS ................................ 19
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`VII. THE PROPOSED NOTICE SHOULD BE APPROVED ................................................ 23
`
`A.
`
`B.
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`The Method Of Notice Is Adequate ...................................................................... 23
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`The Content Of The Notice Is Adequate .............................................................. 23
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`VIII. PROPOSED SETTLEMENT SCHEDULE ..................................................................... 24
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`IX. CONCLUSION ................................................................................................................. 25
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`Case: 1:18-cv-04473 Document #: 149 Filed: 04/14/22 Page 4 of 32 PageID #:3747
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`
`
`CASES
`
`TABLE OF AUTHORITIES
`
`Amchem Prod., Inc. v. Windsor,
`521 U.S. 591 (1997) .................................................................................................................. 23
`
`
`Amgen, Inc. v. Conn. Ret. Plans & Trust Funds,
`133 S. Ct. 1184 (2013) ........................................................................................................ 21, 22
`
`
`Armstrong v. Board of School Directors of City of Milwaukee,
`616 F.2d 305 (7th Cir. 1980) .................................................................................................. 7, 8
`
`
`Cheng Jiangchen v. Rentech, Inc.,
`2019 WL 5173771 (C.D. Cal. Oct. 10, 2019) ........................................................................... 21
`
`
`Francisco v. Abengoa, S.A.,
`2016 WL 3004664 (S.D.N.Y. May 24, 2016) .......................................................................... 21
`
`
`Gautreaux v. Pierce,
`690 F.2d 616 (7th Cir.1982) ..................................................................................................... 19
`
`
`Glickenhaus & Co. v. Household Int’l, Inc.,
`787 F.3d 408 (7th Cir. 2015) .................................................................................................... 15
`
`
`Great Neck Capital Appreciation Inv. Partnership, L.P. v. PricewaterhouseCoopers, L.L.P.,
`212 F.R.D. 400 (E.D. Wis. 2002) ....................................................................................... 13, 18
`
`
`Hale v. State Farm Mut. Auto. Ins. Co.,
`2018 WL 6606079 (S.D. Ill. Dec. 16, 2018)............................................................................. 16
`
`
`In re AT & T Mobility Wireless Data Servs. Sales Tax Litig.,
`789 F. Supp. 2d 935 (N.D. Ill. 2011) .................................................................................. 18, 19
`
`
`In re Carrier IQ, Inc., Consumer Privacy Litig.,
`2016 WL 4474366 (N.D. Cal. Aug. 25, 2016) ......................................................................... 17
`
`
`In re Enron Corp. Sec. & ERISA Litig.,
`2003 WL 22494413 (S.D. Tex. July 24, 2003) ......................................................................... 24
`
`
`In re Groupon, Inc. Sec. Litig.,
`2016 WL 3896839 (N.D. Ill. July 13, 2016) ............................................................................. 18
`
`
`In re Marsh & McLennan Companies, Inc. Sec. Litig.,
`2009 WL 5178546 (S.D.N.Y. Dec. 23, 2009) .......................................................................... 14
`
`
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`
`
`In re Merck & Co. Sec. Litig.,
`432 F.3d 261 (3d Cir. 2005)...................................................................................................... 22
`
`
`In re Mexico Money Transfer Litig. (W. Union & Valuta),
`164 F. Supp. 2d 1002 (N.D. Ill. 2000) ................................................................................ 14, 24
`
`
`In re NASDAQ Mkt.-Makers Antitrust Litig.,
`187 F.R.D. 465 (S.D.N.Y. 1998) .............................................................................................. 10
`
`
`In re Northfield Labs., Inc. Sec. Litig.,
`2012 WL 366852 (N.D. Ill. Jan. 31, 2012) ......................................................................... 10, 24
`
`
`In re Omnivision Technologies, Inc.,
`559 F. Supp. 2d 1036 (N.D. Cal. 2008) .................................................................................... 13
`
`
`In re Polaroid ERISA Litig.,
`240 F.R.D. 65 (S.D.N.Y. 2006) ................................................................................................ 10
`
`
`In re Wireless Facilities, Inc. Sec. Litig. II,
`253 F.R.D. 607 (S.D. Cal. 2008) .............................................................................................. 14
`
`
`Isby v. Bayh,
`75 F.3d 1191 (7th Cir. 1996) .................................................................................................. 7, 9
`
`
`Keele v. Wexler,
`149 F.3d 589 (7th Cir. 1998) .................................................................................................... 20
`
`
`Knapp v. Art.com, Inc.,
`283 F. Supp. 3d 823 (N.D. Cal. 2017) ...................................................................................... 13
`
`
`Makor Issues & Rights, Ltd. v. Tellabs, Inc.,
`256 F.R.D. 586 (N.D. Ill. 2009) ................................................................................................ 21
`
`
`McCue v. MB Fin., Inc.,
`2015 WL 1020348 (N.D. Ill. Mar. 6, 2015) .............................................................................. 11
`
`
`New York State Teachers’ Ret. Sys. v. Gen. Motors Co.,
`315 F.R.D. 226 (E.D. Mich. 2016) ........................................................................................... 16
`
`
`Roach v. T.L. Cannon Corp.,
`778 F.3d 401 (2d Cir. 2015)...................................................................................................... 22
`
`
`Robbins v. Koger Props., Inc.,
`116 F.3d 1441 (11th Cir. 1997) ................................................................................................ 15
`
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`
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`Roth v. Aon Corp.,
`238 F.R.D. 603 (N.D. Ill. 2006) .................................................................................... 21, 22, 23
`
`
`Schulte v. Fifth Third Bank,
`805 F. Supp. 2d 560 (N.D. Ill. 2011) ........................................................................................ 13
`
`
`Shah v. Zimmer Biomet Holdings, Inc.,
`2020 WL 2570050 (N.D. Ind. May 21, 2020) .......................................................................... 25
`
`
`Swinton v. SquareTrade, Inc.,
`2019 WL 617791 (S.D. Iowa Feb. 14, 2019).............................................................................. 9
`
`
`Synfuel Techs., Inc. v. DHL Express (USA), Inc.,
`463 F.3d 646 (7th Cir. 2006) ...................................................................................................... 9
`
`
`Teachers’ Ret. Sys. of La. v. ACLN Ltd.,
`2004 WL 2997957 (S.D.N.Y. Dec. 27, 2004) .......................................................................... 20
`
`
`Trief v. Dun & Bradstreet Corp.,
`840 F. Supp. 277 (S.D.N.Y. 1993) ........................................................................................... 15
`
`
`Wong v. Accretive Health, Inc.,
`773 F.3d 859 (7th Cir. 2014) ........................................................................................ 14, 18, 19
`
`STATUTES
`
`15 U.S.C. § 78u-4(a)(4) ................................................................................................................ 17
`
`15 U.S.C. § 78u-4(a)(7) ................................................................................................................ 24
`
`15 U.S.C. § 78u-4(b)(3)(B) ............................................................................................................. 6
`
`RULES
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`FED. R. CIV. P. 23 ................................................................................................................... passim
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`Court-appointed Lead Plaintiff Daniel Rogers (“Lead Plaintiff”),1 on behalf of himself and
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`the proposed Settlement Class, respectfully submits this memorandum of law in support of his
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`unopposed motion seeking: (i) preliminary approval of the proposed Settlement set forth in the
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`Stipulation; (ii) certification of the proposed Settlement Class;2 (iii) approval of the form and
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`manner of giving notice of the proposed Settlement to Settlement Class Members; and (iv) the
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`scheduling of a hearing date (“Settlement Hearing”) at which the Court will consider (a) final
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`approval of the Settlement and entry of the proposed Final Judgment Approving Class Action
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`Settlement, (b) the proposed Plan of Allocation of settlement proceeds, and (c) Lead Counsel’s
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`application for an award of attorneys’ fees and reimbursement of Litigation Expenses.
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`I.
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`PRELIMINARY STATEMENT
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`Lead Plaintiff achieved an excellent resolution of this Action. The proposed Settlement
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`will resolve all claims against Defendants3 in exchange for a non-reversionary cash payment of
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`$17,300,000 (the “Settlement Amount”) for the benefit of the Settlement Class. This recovery
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`represents approximately 8% of the total maximum damages potentially available in this Action,
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`which is well above the median recovery in securities class action settlements.
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`By the time the Settlement was reached, Lead Plaintiff and his counsel were well informed
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`about the strengths and weaknesses of the claims and Defendants’ defenses. Indeed, as described
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`1 Unless otherwise defined, all capitalized terms herein have the same meanings as set forth in the
`Stipulation and Agreement of Settlement dated April 12, 2022 (the “Stipulation”), which is
`attached as Exhibit 1 to the Declaration of Casey Sadler (“Sadler Decl.”), filed concurrently
`herewith.
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`2 Subject to certain exclusion the “Settlement Class” is defined as all persons who and entities that
`purchased or otherwise acquired Gogo Common Stock, and/or Gogo Convertible Notes, and/or
`Gogo Senior Secured Notes, and/or Gogo Call Options, and/or wrote Gogo Put Options, during
`the period from February 27, 2017 through May 4, 2018, inclusive, and were damaged thereby.
`See Stipulation, ¶1(aaa).
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`3 Defendants are Gogo Inc. (“Gogo” or the “Company”), Michael J. Small, Norman Smagley,
`Barry Rowan, and John Wade.
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`in detail in the procedural history section below, prior to reaching the Settlement, Lead Counsel:
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`conducted an extensive investigation into Gogo’s allegedly wrongful acts; drafted three
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`comprehensive amended complaints based on this investigation; engaged in substantial briefing
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`opposing multiple rounds of motions to dismiss, including one round of briefing that resulted in
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`the Court denying Defendants’ motion to dismiss in its entirety; drafted and exchanged initial
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`disclosures; negotiated a confidentiality order and ESI protocol; drafted and served requests for
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`production and interrogatories on Defendants; and engaged in extensive mediation efforts with an
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`experienced neutral.
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`The Settlement is, therefore, the result of arms-length negotiations, conducted by informed
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`and experienced counsel, in conjunction with a well-respected mediator. As discussed in greater
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`detail below, Lead Plaintiff and Lead Counsel believe that the proposed Settlement meets the
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`standards for preliminary approval and is in the best interests of the Settlement Class. Accordingly,
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`Lead Plaintiff respectfully requests that the Court grant the Settlement preliminary approval.
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`II.
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`NATURE OF THE ACTION
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`Lead Plaintiff alleges that Defendants violated Section 10(b) of the Securities Exchange
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`Act of 1934 (the “Exchange Act”) and Rule 10b-5 promulgated thereunder as well as under Section
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`20(a) of the Exchange Act against Individual Defendants based on statements Defendants made
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`during the Settlement Class Period.
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`Specifically, Lead Plaintiff alleges that Defendants violated the federal securities laws by
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`making materially false and misleading statements about Gogo’s “2Ku global satellite system” or
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`“2Ku” based on allegations that 2Ku was suffering from a significant product design defect—de-
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`icing fluid used on the exterior of the planes was making Gogo’s 2Ku global satellite system
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`inoperable. Lead Plaintiff also alleges that, as a result of these alleged misrepresentations, the
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`prices of Gogo’s publicly traded securities were artificially inflated.
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`Lead Plaintiff alleges three corrective disclosures: (i) Gogo’s February 22, 2018 conference
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`call where the de-icing issues were first disclosed, but downplayed; (ii) Gogo’s May 4, 2018
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`conference call where the magnitude of the de-icing issues were revealed and a press release issued
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`that same day withdrawing its 2018 guidance; and (iii) Moody’s downgrading of Gogo’s credit
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`ratings on May 8, 2018. In response to the alleged corrective disclosures: (i) on February 22, 2018,
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`Gogo’s stock price dropped $9.13 per share; (ii) over the course of two trading days following the
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`May 4, 2018 conference call, Gogo’s stock price dropped $1.73 per share, or over 18%, to close
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`at $7.86 per share on May 7, 2018; and (iii) on May 8, 2018, Gogo’s stock price dropped $2.80
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`per share, or over 35.6% to close at $5.06 per share.
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`III.
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`PROCEDURAL HISTORY
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`A.
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`The Initial Complaint And Lead Plaintiff Appointment
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`This Action began on June 27, 2018. ECF No. 1. On October 10, 2018, the Court
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`appointed Maria Zingas and Daniel Rogers as lead plaintiffs for the Action; and approved their
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`selection of Glancy Prongay & Murray LLP (“GPM”) and Levi & Korsinsky, LLP (“L&K”) as
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`Lead Counsel and DiTommaso Lubin Austermuehle, P.C. as Liaison Counsel for the class. ECF
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`No. 41.
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`B.
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`Lead Counsel’s Investigation, First And Second Amended Complaints And
`Defendants’ Motions To Dismiss
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`Following Lead Counsel’s appointment, counsel conducted a comprehensive investigation
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`into Gogo’s allegedly wrongful acts, which included, among other things: (1) reviewing and
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`analyzing (a) Gogo’s filings with the U.S. Securities and Exchange Commission (“SEC”),
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`(b) public reports, blog posts, research reports prepared by securities and financial analysts, and
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`news articles concerning the Company, (c) Gogo’s investor call transcripts, and (d) other publicly
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`available material related to Gogo and Individual Defendants; and (2) retaining and working with
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`private investigators who conducted numerous interviews of former Company employees and
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`other sources of relevant information. Lead Counsel also consulted with aviation and loss
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`causation and damages experts.
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`On December 10, 2018, lead plaintiffs Maria Zingas and Daniel Rogers filed and served
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`their Amended Class Action Complaint for Violation of the Federal Securities Laws (the “First
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`Amended Complaint”) asserting claims against all Defendants under Section 10(b) of the
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`Exchange Act and Rule 10b-5 promulgated thereunder, and against Individual Defendants under
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`Section 20(a) of the Exchange Act. Specifically, the First Amended Complaint alleged that
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`Defendants made false and misleading statements and omissions about Gogo’s “2Ku global
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`satellite system” or “2Ku” based on allegations that 2Ku was suffering from a significant product
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`design defect—de-icing fluid used on the exterior of the planes was making 2Ku’s inoperable.
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`ECF No. 55.
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`On February 8, 2019, Defendants moved to dismiss the First Amended Complaint. ECF
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`Nos. 63-65. On April 9, 2019, lead plaintiffs Maria Zingas and Daniel Rogers filed their opposition
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`to the motion to dismiss (ECF No. 66) and, on May 9, 2019, Defendants filed a reply in further
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`support of their motion to dismiss (ECF No. 67). On October 16, 2019, the Court granted
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`Defendants’ motion to dismiss without prejudice. ECF No. 68.
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`On December 20, 2019, lead plaintiffs Maria Zingas and Daniel Rogers filed and served
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`their Second Amended Class Action Complaint for Violation of the Federal Securities Laws (the
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`“Second Amended Complaint”), again asserting claims under the Exchange Act against
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`Defendants based upon allegations similar to those in the First Amended Complaint. ECF No. 73.
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`On February 21, 2020, Defendants filed a motion to dismiss the Second Amended Complaint.
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`ECF No. 80-82. Following several extensions of lead plaintiffs’ time to respond to Defendants’
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`motion to dismiss the Second Amended Complaint because of the Covid-19 public emergency, on
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`July 17, 2020, Lead Plaintiff filed and served a motion for leave to amend the Second Amended
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`Complaint.4 ECF Nos. 97-99. The Court granted Lead Plaintiff’s motion on July 21, 2020. ECF
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`No. 100.
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`C.
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`The Operative Complaint And Defendants’ Motion To Dismiss
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`On July 22, 2020, Lead Plaintiff filed and served his Third Amended Class Action
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`Complaint for Violation of the Federal Securities Laws (the “Complaint”). ECF No. 101. The
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`Complaint, like the First and Second Amended Complaints, asserted claims against all Defendants
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`under Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder, and against
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`Individual Defendants under Section 20(a) of the Exchange Act. The Complaint alleged claims
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`similar to those alleged in the Second Amended Complaint, but also included allegations relating
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`to information obtained from one of Gogo’s largest investors during the class period, as well as
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`information from five former Gogo employees who were alleged to have been directly involved
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`in discovering and attempting to remedy the alleged 2Ku de-icing defect.
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`On September 21, 2020, Defendants filed and served their motion to dismiss the
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`Complaint. ECF Nos. 106-08. On November 20, 2020, Lead Plaintiff filed and served his
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`opposition to Defendants’ motion (ECF No. 111) and, on December 21, 2020, Defendants filed
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`and served their reply (ECF No. 112). On April 26, 2021, the Court denied Defendants’ motion
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`to dismiss in its entirety. ECF No. 115.
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`4 In the filing, Lead Plaintiff also informed the Court that lead plaintiff Maria Zingas was no longer
`able to serve as a lead plaintiff.
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`D.
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`Discovery
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`As a result of the denial of the motion to dismiss, the automatic discovery stay imposed by
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`the Private Securities Litigation Reform Act of 1995 (“PSLRA”) was lifted. See 15 U.S.C. § 78u-
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`4(b)(3)(B). Thereafter, the Parties exchanged initial disclosures, served requests for production of
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`documents and interrogatories, and negotiated an agreed confidentiality order and a protocol to
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`govern the production of electronically stored information and other documents in the Action.
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`E. Mediation
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`While discovery was ongoing, the Parties agreed to mediate. On September 30, 2021, Lead
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`Counsel and Defendants’ Counsel participated in a full-day mediation session before David M.
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`Murphy, Esq. of Phillips ADR. In advance of that session, the Parties exchanged significant
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`relevant documents and detailed mediation statements, which addressed the issues of both liability
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`and damages. The session ended without any agreement being reached.
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`Over the course of the next several days, Mr. Murphy conducted further discussions with
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`the Parties, which culminated in a mediator’s recommendation to resolve the Action for
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`$17,300,000 in cash for the benefit of the Settlement Class. The Parties accepted Mr. Murphy’s
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`recommendation on October 10, 2021.
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`IV.
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`THE SETTLEMENT
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`A.
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`The Settlement Terms
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`The Settlement requires Defendants to cause to be paid $17,300,000 in cash into an
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`interest-bearing Escrow Account for the benefit of the Settlement Class.5 The Net Settlement Fund
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`is defined as the Settlement Amount, plus accrued interest, less: (i) Taxes; (ii) Notice and
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`5 In exchange for the Settlement Amount, Settlement Class Members will release the “Released
`Plaintiff’s Claims.” See Stipulation at ¶¶5 (release) and 1(rr) (defining “Released Plaintiff’s
`Claims”).
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`Administration Costs; (iii) Litigation Expenses awarded by the Court; and (iv) attorneys’ fees
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`awarded by the Court. The Net Settlement Fund will be distributed among Settlement Class
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`Members who submit valid Claim Forms (“Authorized Claimants”) in accordance with the
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`proposed Plan of Allocation. If the Settlement is approved by the Court, the amounts paid are non-
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`reversionary.
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`B.
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`The Plan Of Allocation
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`The proposed Plan of Allocation is comparable to plans of allocation approved in numerous
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`other securities class actions. The Plan of Allocation allocates the Net Settlement Fund among
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`Settlement Class Members who submit valid Claim Forms on a pro rata basis based on the amount
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`of each Claimant’s Recognized Claim. The formula for determining each Claimant’s Recognized
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`Claim is based on an out-of-pocket measure of damages consistent with the alleged violations of
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`the federal securities laws as opposed to losses caused by market, industry, or Company-specific
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`factors unrelated to the allegations. The formula also takes into consideration when each Claimant
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`purchased and/or sold Gogo Securities, and requires that Gogo Securities be held over at least one
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`of the alleged corrective disclosures in order for a Claimant to have a Recognized Claim.
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`V.
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`THE SETTLEMENT WARRANTS PRELIMINARY APPROVAL
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`Rule 23(e) requires court approval for any settlement of a class action, and courts within
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`this Circuit recognize that public policy strongly favors settlements, especially in complex class
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`actions. See, e.g., Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996) (“Federal courts naturally favor
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`the settlement of class action litigation.”). “District court review of a class action settlement
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`proposal is a two-step process.” Armstrong v. Board of School Directors of City of Milwaukee,
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`616 F.2d 305, 314 (7th Cir. 1980), overruled on other grounds by Felzen v. Andreas, 134 F.3d 873
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`(7th Cir. 1998). “The first step is a preliminary, pre-notification hearing to determine whether the
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`proposed settlement is within the range of possible approval.” Id. “If the district court finds a
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`settlement proposal within the range of possible approval, it then proceeds to the second step in
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`the review process, the fairness hearing.” Id. “Class members are notified of the proposed
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`settlement and of the fairness hearing at which they and all interested parties have an opportunity
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`to be heard.” Id.
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`Rule 23(e)(1) provides that preliminary approval should be granted where “the parties
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`show[] that the Court will likely be able to: (i) approve the proposal under Rule 23(e)(2); and
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`(ii) certify the class for purposes of judgment on the proposal.” With respect to Rule 23(e)(2)—
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`which governs final approval—courts now consider the following factors in determining whether
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`a proposed settlement is fair, reasonable, and adequate:
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`(A)
`
`
`have the class representatives and class counsel adequately represented the
`class;
`
`(B) was the proposal negotiated at arm’s-length;
`
`(C)
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`is the relief provided for the class adequate, taking into account:
`
`(i)
`
`the costs, risks, and delay of trial and appeal;
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`the effectiveness of any proposed method of distributing relief to the
`(ii)
`class, including the method of processing class-member claims;
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`the terms of any proposed award of attorneys’ fees, including timing
`(iii)
`of payment; and
`
`(iv)
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`any agreement required to be identified under Rule 23(e)(3); and
`
`(D)
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`does the proposal treat class members equitable relative to each other.
`
`Factors (A) and (B) “identify matters . . . described as procedural concerns, looking to the
`
`conduct of the litigation and of the negotiations leading up to the proposed settlement,” while
`
`factors (C) and (D) “focus on . . . a substantive review of the terms of the proposed settlement”
`
`(i.e., “[t]he relief that the settlement is expect to provide to class members”). Advisory Committee
`
`Notes to 2018 Amendments (324 F.R.D. 904, at 919).
`
`These factors are not, however, exclusive. The four factors set forth in Rule 23(e)(2) are
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`8
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`
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`not intended to “displace” any factor previously adopted by the courts, but “rather to focus the
`
`court and the lawyers on the core concerns of procedure and substance that should guide the
`
`decision whether to approve the proposal.” Id. at 918; see also Swinton v. SquareTrade, Inc., 2019
`
`WL 617791, at *5 (S.D. Iowa Feb. 14, 2019) (“The specific considerations in Rule 23(e)(2)(A)–
`
`(D) were part of the 2018 Amendments. However, they were not intended to displace the various
`
`factors that courts have developed in assessing the fairness of a settlement.”). For this reason, the
`
`traditional factors that are utilized by courts in the Seventh Circuit to evaluate the propriety of a
`
`class action settlement (certain of which overlap with Rule 23(e)(2)) are still relevant:
`
`In order to evaluate the fairness of a settlement, a district court must consider the
`strength of plaintiffs’ case compared to the amount of defendants’ settlement offer,
`an assessment of the likely complexity, length and expense of the litigation, an
`evaluation of the amount of opposition to settlement among affected parties, the
`opinion of competent counsel, and the stage of the proceedings and the amount of
`discovery completed at the time of settlement.
`
`Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006); see also Isby,
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`75 F.3d at 1199.
`
`In sum, although the specific factors by which a settlement is evaluated may have changed
`
`in some respects, what has not changed is that “[t]he central concern in reviewing a proposed class-
`
`action settlement is that it be fair, reasonable, and adequate.” Advisory Committee Notes to 2018
`
`Amendments (324 F.R.D. at 918).
`
`A.
`
`Lead Plaintiff And Plaintiffs’ Counsel Adequately Represented The
`Settlement Class
`
`Rule 23(e)(2)(A) requires the Court to consider whether the “class representatives and class
`
`counsel have adequately represented the class.” Here, there can be no dispute that Lead Plaintiff
`
`and Plaintiff’s Counsel adequately represented the Settlement Class.
`
`First, Lead Plaintiff’s claims are typical of, and coextensive with, the claims of the
`
`Settlement Class, and he has no antagonistic interests. Lead Plaintiff’s interest in obtaining the
`
`790334.1
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`largest possible recovery in this Action is aligned with the interests of other Settlement Class
`
`Members. See In re Northfield Labs., Inc. Sec. Litig., 2012 WL 366852, at *3 (N.D. Ill. Jan. 31,
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`2012) (finding adequacy where lead plaintiffs and class members shared the same interest—
`
`obtaining the maximum amount of recovery); see also In re Polaroid ERISA Litig., 240 F.R.D. 65,
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`77 (S.D.N.Y. 2006) (“Where plaintiffs and class members share the common goal of maximizing
`
`recovery, there is no conflict of interest between the class representatives and other class
`
`members.”). Additionally, Lead Plaintiff significantly contributed to the Action by overseeing the
`
`litigation, communicating regularly with counsel, producing documents to his attorneys, and
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`participating in settlement discussions with Plaintiff’s Counsel.
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`Second, Lead Plaintiff retained counsel that are highly experienced in securities litigation,
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`and who have a long successful track record of representing investors in such cases. See ECF No.
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`23-5 (GPM firm resume); ECF No. 16-2 at 13 (L&K firm resume). As described in detail above,
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`Plaintiff’s Counsel vigorously prosecuted the Settlement Class’s claims, and the Parties were
`
`acutely aware of the strengths and weaknesses of the case prior to settling the Action (see Sec.
`
`III.B., supra) (detailing counsel’s extensive investigation into the Company, substantial briefing
`
`on multiple motions to dismiss, discovery efforts, and hard-fought mediation efforts). See In re
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`NASDAQ Mkt.-Make