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Mohanty v. Avid Technology, Inc.

United States District Court, D. Massachusetts

January 12, 2018

PRAKASH MOHANTY, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
v.
AVID TECHNOLOGY, INC., LOUIS HERNANDEZ, JR, and ILAN SIDI, Defendants.

          ORDER PRELIMINARILY APPROVING CLASS CERTIFICATION, APPOINTMENT OF COUNSEL AND SETTLEMENT, AND PROVIDING FOR NOTICE

          INDIRA TALWANI UNITED STATES DISTRICT JUDGE.

         WHEREAS, an action is pending before this Court styled Mohanty v. Avid Technology, Inc. et al., No. 1:16-cv-12336-IT (the “Action”);

         WHEREAS, the Court previously appointed Plaintiff David Wayne Hammond as Lead Plaintiff and approved Lead Plaintiff's Selection of Johnson & Weaver, LLP, as Lead Counsel[1]and Hutchings Barsamian Mandelcorn, LLP, as Liaison Counsel;

         WHEREAS, the Lead Plaintiff has moved, pursuant to Federal Rule of Civil Procedure 23(e), for an order preliminarily approving the Settlement of this Action, in accordance with a Stipulation and Agreement of Settlement dated November 30, 2017 (the “Stipulation”) between Lead Plaintiff on behalf of a class described further below, and the Defendants, which, together with the Exhibits annexed thereto, sets forth the terms and conditions for a proposed Settlement of the Action and for dismissal of the Action against the Defendants, with prejudice, upon the terms and conditions set forth therein, and the release of claims against the Defendants and certain related persons; and

         WHEREAS the Court has reviewed and considered Lead Plaintiff's Motion for Preliminary Approval, the Stipulation and the Exhibits annexed thereto, and the record in the above-captioned matter; and having heard argument of counsel at the January 3, 2018, hearing on the motion, NOW, THEREFORE, IT IS HEREBY ORDERED:

1. The Court hereby preliminarily approves the Settlement of this Action as set forth in the Stipulation, subject to further consideration at the Final Approval Hearing described below.
2. A hearing (the “Final Approval Hearing”) shall be held before this Court on Monday, April 30, 2018, at 2:45 p.m., at the United States District Court for the District of Massachusetts, John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Boston, MA 02210, to determine whether the proposed Settlement of the Action on the terms and conditions provided for in the Stipulation is fair, reasonable, and adequate to the Class such that the Class should be finally certified for purposes of settlement and the Settlement should be approved by the Court; to determine whether a Judgment and Order of Dismissal with Prejudice should be entered, and if so, whether it should be in substantially the form set forth as Exhibit B to the Stipulation; to determine whether the proposed Plan of Allocation should be approved; to determine any amount of fees, costs, and expenses that should be awarded to Lead Counsel; to determine the amount of costs and expenses to be awarded to Lead Plaintiff (including for lost wages); to hear objections to the Stipulation or to the Plan of Allocation or any award of fees, expenses, and costs to Lead Counsel and Lead Plaintiff; and to consider such matters as the Court may deem appropriate. The Court may adjourn or continue the Final Approval Hearing or alter its time or date without further notice to Class Members but will not set it earlier than the time and date set forth in this paragraph.
3. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court preliminarily certifies, for purposes of settlement, a Class defined as all Persons and entities who purchased or otherwise acquired the common stock of Avid Technology, Inc. (“Avid” or the “Company”) between August 4, 2016 and November 9, 2016, inclusive (the “Class Period”). Excluded from the Class are:
(a) Persons or entities who submit valid and timely requests for exclusion from the Class. Such requests for exclusion from the Class shall become effective when and if the Court finally certifies the Class; and
(b) Defendants, members of the immediate family of any such Defendant, any Person, firm, trust, corporation, officer, director or other individual or entity in which any Defendant has or had a controlling interest during the Class Period; the officers and directors of Avid during the Class Period; and legal representatives, agents, executors, heirs, successors, or assigns of any such excluded Person. The Defendants or any entity in which any of the Defendants has or had a controlling interest (for purposes of this paragraph, together a “Defendant-Controlled Entity”) are excluded from the Class only to the extent that such Defendant-Controlled Entity itself purchased a proprietary (i.e. for its own account) interest in the Company's common stock. To the extent that a Defendant-Controlled Entity purchased Avid stock in a fiduciary capacity or otherwise on behalf of any third-party client, account, fund, trust, or employee-benefit plan that otherwise falls within the Class, neither such Defendant-Controlled Entity nor the third-party client, account, fund, trust, or employee-benefit plan shall be excluded from the Class with respect to such Avid stock.
4. Pursuant to Rule 23(g) of the Federal Rules of Civil Procedure, the Court preliminarily appoints, for purposes of settlement only, Lead Counsel and Liaison Counsel who have appeared in this matter, namely, Frank J. Johnson, Michael I. Fistel, Jr., and Theodore M. Hess-Mahan, as Class Counsel. Prior to any final approval of settlement, any Class Member may enter an appearance in the Action, at his, her, or its own expense, individually or through counsel of their own choice who is admitted, or admitted pro hac vice, to the bar of the District of Massachusetts, for the purpose of participating in proceedings relating to this Court's consideration of the proposed Settlement. Class Members who do not enter an appearance will be represented by Class Counsel.
5. For purposes of settlement only, the Court finds that the prerequisites for a class action under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure have been satisfied in that: (a) the members of the Class are so numerous that joinder of all Class Members in the class action is impracticable; (b) there are questions of law and fact common to the Class that predominate over any individual question; (c) the claims of Lead Plaintiff are typical of the claims of the Class; (d) Lead Plaintiff and his counsel have fairly and adequately represented and protected the interests of Class Members; and (e) a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
6. The Court approves as to form and content, the Notice of Pendency and Proposed Settlement of Class Action (“Notice”), Proof of Claim and Release form, and the Summary Notice, substantially in the forms annexed hereto as Exhibits A, B, and C respectively, and finds that the mailing and distribution of the Notice and publishing of the Summary Notice, substantially in the manner and form set forth in ¶7 of this Order, and the methods set forth herein for notifying the Class of the Stipulation and the Settlement and its terms and conditions, the Fee and Expense Application, and the Plan of Allocation, meet the requirements of Federal Rule of Civil Procedure 23, Section 21D(a)(7) of the Securities Exchange Act of 1934, 15 U.S.C. §78u-4(a)(7), as amended by the Private Securities Litigation Reform Act of 1995, and due process, and is the best notice practicable under the circumstances and shall constitute due and sufficient notice to all Persons entitled thereto.
7. The Court appoints the firm Garden City Group, LLC (“Claims Administrator”) to supervise and administer the notice procedure as well as the processing of ...

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