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Bushansky v. Carlucci

United States District Court, D. Massachusetts

April 10, 2018

STEPHEN BUSHANSKY, Derivatively on Behalf of American Renal Associates Holdings, Inc., Plaintiff,
v.
JOSEPH A. CARLUCCI, SYED T. KAMAL, MICHAEL E. BOXER, THOMAS W. ERICKSON, JARED S. HENDRICKS, JOHN M. JURELLER, STEVEN M. SILVER, PATRICK T. RYAN, SUSANNE V. CLARK, and ROBERT H. FISH, Defendants, and AMERICAN RENAL ASSOCIATES HOLDINGS, INC., a Delaware Corporation, Nominal Defendant.

          ORDER PRELIMINARILY APPROVING STOCKHOLDER DERIVATIVE SETTLEMENT AND PROVIDING FOR NOTICE OF SETTLEMENT

          ALLISON D. BURROUGHS, UNITED STATES DISTRICT JUDGE.

         WHEREAS, an action is pending before this Court entitled Bushansky v. Carlucci, et al., Case No. 17 Civ. 12091 (ADB) (the “Action”);

         WHEREAS, Plaintiff Stephen Bushansky (“Plaintiff”) has made application, pursuant to Federal Rule of Civil Procedure 23.1, for an order (i) preliminarily approving the settlement of this Action, in accordance with a Stipulation of Settlement dated as of March 29, 2018 (“Stipulation”), which, together with the exhibits annexed thereto, sets forth the terms and conditions for the proposed settlement and dismissal of the Action with prejudice; (ii) approving the dissemination of the Notice, and (iii) setting a date at least forty-five (45) calendar days from the date of this Preliminary Approval Order for the hearing at which the Court will determine whether to approve the terms of the settlement as fair, reasonable, and adequate, including the Attorneys' Fee and Expense Amount separately negotiated by the parties ("Settlement Hearing"):

         WHEREAS, the Court is familiar with and has reviewed the record in the Action and has reviewed the Stipulation, including the exhibits attached to the Stipulation, and found good cause for entering the following Preliminary Approval Order: and

         NOW, THEREFORE, IT IS HEREBY ORDERED:

         1. The Court preliminarily approves the Stipulation and the terms set forth therein. subject to further consideration at the Settlement Hearing described below. In particular, the Court reserves its determination on the amount of attorneys' fees, which may be disproportionate given the other terms of the settlement.

         2. This Preliminary Approval Order hereby incorporates by reference the definitions in the Stipulation, and all capitalized terms used herein, unless otherwise defined, shall have the same meanings as set forth in the Stipulation.

         3. The Court approves, as to form and content, the Notice of Proposed Settlement of Derivative Action, Settlement Hearing and Right to Appear ("Long Fomi Notice") and the Summary Notice of Proposed Settlement of Shareholder Derivative Action ("Summary Notice" and, together, "Notice"), annexed hereto as Exhibits A-l and A-2, respectively, and finds that the distribution of the Notice substantially in the manner and form set forth in this Order and pursuant to ¶ IV(C)(2) of the Stipulation meets the requirements of Federal Rule of Civil Procedure 23.1, the United States Constitution (including the Due Process clause), and any other applicable law; is the best notice practicable under the circumstances, and shall constitute due and sufficient notice to all Persons entitled thereto.

         4. No later than fourteen (14) business days after the entry of the Preliminary Approval Order. ARAH shall: (i) cause to be issued a press release announcing the settlement, including instructions to Current ARAH Shareholders on how to access the Notice and this Stipulation, and referring the Current ARAH Shareholders to ARAH's Investor Relations webpage, located at http://ir.americanienal.coni/, for more information; and (ii) cause the Summary Notice to be published once in Investor's Business Daily. All costs inclined in posting and publishing the Notice pursuant to this paragraph in the fomi and manner ordered by the Court shall be paid by ARAH.

         5. At least ten (10) calendar days prior to the Settlement Hearing, counsel for ARAH shall serve on Plaintiffs Counsel and file with the Court an appropriate affidavit or declaration with respect to posting and publishing the Notice in accordance with ¶ 4 above.

         6. The Settlement Healing shall be held before this Court at 3:00 p.m. on May 31, 2018 in Courtroom 17 at the United States District Court for the District of Massachusetts, John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Suite 2300, Boston, Massachusetts 02210, to determine: (i) whether the proposed settlement of the Action on the temis and conditions provided for in the Stipulation is fair, reasonable, adequate, and hi the best interest of ARAH and its stockholders and should be approved by the Court: (ii) whether an Older and Final Judgment, as provided hi Exhibit B to the Stipulation, should be entered: and (iii) whether to approve the Attorneys' Fees and Expenses Amount to be paid to Plaintiffs Counsel as provided in the Stipulation. The Court may adjourn the Settlement Hearing without further notice to the Current ARAH Shareholders.

         7. Any Current ARAH Shareholder as of March 29, 2018 may appear and show cause why the proposed settlement of the Action as set forth in the Stipulation should or should not be approved as fair, reasonable, and adequate, why a judgment should or should not be entered thereon, or why attorneys' fees and expenses should or should not be awarded to Plaintiffs Counsel; provided, however, that no Current ARAH Shareholder or any other Person shall be heard or entitled to contest such matters unless that Person has delivered by hand or sent by Fust-Class Mail written objections and copies of any papers and briefs such that they are received (and not simply postmarked) by the counsel listed below at least ten (10) calendar days before the Settlement Hearing. Moreover, said objections, papers, and briefs must be filed with the Clerk of the United States District Court for the District of Massachusetts, John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Suite 2300, Boston, Massachusetts 02210, at least ten (10) calendar days before the Settlement Hearing. Any such objection must: (a) clearly indicate the objector's name, mailing address, telephone number, and e-mail address; (b) specify the reason(s), if any, for the objection, including any legal support for such objection; and (c) provide written documentation (whether from the objector's bank, broker or otherwise) of current ARAH stock ownership. In order to be considered, an objection also must be signed by the Current ARAH Shareholder making the objection. Any Current ARAH Shareholder who does not make his, her, or its objection in the manner provided shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to the fairness, reasonableness, or adequacy of the proposed settlement as set forth in the Stipulation and the Final Judgment Order, or to the award of attorneys' fees and expenses to Plaintiff's Counsel, unless otherwise ordered by the Court. By objecting to the proposed settlement as set forth in the Stipulation, the Final Judgment Order, and/or the award of attorneys' fees and expenses, or otherwise requesting to be heard at the Settlement Hearing, an objector shall be deemed to have submitted to the jurisdiction of the Court with respect to the Person's objection or request to be heard and the subject matter of the settlement, including, but not limited to, enforcement of the terms of the settlement (including the release of the Released Claims provided for in the Stipulation and Final Judgment Order).

Plaintiff's Counsel
WeissLaw LLP, David C. Katz, 1500 Broadway, 16th Floor, New ...

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