Case 4:19-cv-02033-YGR Document 435 Filed 06/03/24 Page 1 of 11
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE APPLE INC. SECURITIES LITIGATION
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`CASE NO. 4:19-CV-02033-YGR
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`ORDER GRANTING PRELIMINARY
`APPROVAL OF SETTLEMENT AND SETTING
`DEADLINES FOR NOTICE, OBJECTION,
`EXCLUSION, AND FINAL FAIRNESS
`HEARING
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`Dkt. No. 421
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`On May 7, the Court held a hearing on the motion of plaintiffs’ unopposed motion for
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`preliminary approval of proposed settlement for preliminary approval of the parties’ proposed
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`settlement; approval of the Class Notice Packet; appointing the proposed Settlement
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`Administrator; and setting a date for the hearing on final approval of the settlement. (Dkt. No.
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`421.) Shawn Williams appeared for plaintiff; and Dan Kramer appeared for defendants.
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`Having considered the motion briefing, the arguments of counsel, the relevant law, the
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`terms of the settlement agreement and the class notice, plaintiffs’ supplemental brief, as well as
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`the record in this case, and based on the reasons and terms set forth herein, the Court GRANTS the
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`parties’ motion for preliminary approval of class action settlement.
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`I.
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`BACKGROUND
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`Plaintiffs filed the putative class action complaint on April 16, 2019 against defendants
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`Apple Inc., Timothy Cook, and Luca Maestri alleging defendants made materially false and
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`misleading statements and omissions about demand for the newly released iPhone and Apple’s
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`business in China. (Dkt. No. 1.) On June 19, 2020, the Court issued an order appointing Norfolk
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`County Council as Administering Authority of the Norfolk Pension Fund as lead plaintiff (“Lead
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`Plaintiff”) and Robbins Geller Rudman & Dowd LLP as lead counsel (“Lead Counsel”). (Dkt. No.
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`113.) On June 23, 2020, plaintiffs filed the operative complaint, a revised consolidated class action
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`complaint, alleging claims for violations of §§10(b) and 20(a) of the Securities Exchange Act of
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`1934. (Dkt. No. 114.)
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`Case 4:19-cv-02033-YGR Document 435 Filed 06/03/24 Page 2 of 11
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`On February 4, 2022, the Court issued an order certifying a class of purchasers of acquirers
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`of Apple common stock and denying without prejudice the motion with respect to a proposed class
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`of options investors. (Dkt. No. 224.) On March 28, 2023, the Court issued an order modifying
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`class, granting plaintiff’s motion to certify call option buyers and put option sellers as part of the
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`class. (Dkt. No. 352.)
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`After more motion practice, the parties eventually reached a settlement by accepting a
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`mediator’s proposal to resolve all claims in the operative complaint, with the assistance of an
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`experienced mediator, Hon. Layn R. Phillips (Ret.) of Phillips ADR (“Judge Phillips”). (Dkt. No.
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`421 at 3.)
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`B.
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`Terms of the Settlement Agreement
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`Under the terms of the Settlement Agreement, defendants will pay $490 million into a
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`common settlement fund, without admitting liability. (Id at 16.) This amount includes attorneys’
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`fees and costs, the cost of class notice and settlement administration, and the class representative’s
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`service award. (Id. at 7.)
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`1.
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`Attorneys’ Fees and Costs
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`Under the Settlement Agreement, plaintiff's counsel agreed to seek up to 25% of the
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`Settlement Amount ($122,500,000) in attorneys’ fees and no more than $3 million in litigation costs,
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`plus interest on its fees and expenses generated during the time in which the amounts are held in
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`escrow during the settlement process. (Id. at 16; Dkt. No. 433 at 6.) The common settlement fund
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`also includes a provision for $3.6 million in settlement administration costs; and up to $73,000 to be
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`paid to Lead Plaintiff, former lead plaintiff the Employees’ Retirement System of the State of Rhode
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`Island, and City of Roseville Employees’ Retirement System as an incentive award in exchange for a
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`general release of all claims against defendants. (Dkt. No. 421 at 16.)
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`2.
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`Class Relief
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`After deductions from the common fund for fees, costs, and service incentive awards, the
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`remaining amount will remain to be distributed among the participating class members. Class
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`members will be paid according to the following plan: Lead Counsel, along with plaintiffs’ damages
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`expert, calculated the potential amount of estimated alleged artificial inflation (or deflation, in the
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`Case 4:19-cv-02033-YGR Document 435 Filed 06/03/24 Page 3 of 11
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`case of Apple put options) in Apple publicly traded securities proximately caused by defendants’
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`alleged false and misleading statements and material omissions. Based on the formula in the plan, a
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`“Recognized Loss Amount” will be calculated for each transaction in Apple publicly traded
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`securities. (Id. at 17-18.) The net settlement fund will be distributed to authorized claimants on a
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`pro rata basis based on the type of security transacted and the relative size of their claims. (Id. at
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`18.) The amount of the payment will depend on, among other factors, how many class members file
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`valid claims and the aggregate value of the claims represented by valid and acceptable proofs of
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`claim. (Id.) Once notice and administration expenses, taxes, tax expenses, and Court-approved
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`attorneys’ fees and expenses have been paid from the settlement fund, the remaining amount will be
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`distributed pursuant to the Court-approved plan of allocation to claimants who are entitled to a
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`distribution of at least $10.00. (Id. at 7, 18.) The Settlement Agreement provides that no amount
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`will revert to defendants.
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`3.
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`Reallocation and Cy Pres/Remainder
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`If there is any balance remaining in the settlement fund after at least six months from the
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`initial date of distribution, Lead Counsel will reallocate the balance among claimants who negotiated
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`the checks sent to them in the initial distribution and who would receive at least $10.00. These
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`reallocations shall be repeated until the balance remaining in the settlement fund is de minimis and
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`such remaining balance shall then be donated to the Investor Protection Trust.1
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`II.
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`PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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`A.
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`Legal Standard
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`A court may approve a proposed class action settlement of a certified class only “after a
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`hearing and on finding that it is fair, reasonable, and adequate,” and that it meets the requirements
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`for class certification. Fed. R. Civ. P. 23(e)(2). In reviewing the proposed settlement, a court need
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`not address whether the settlement is ideal or the best outcome, but only whether the settlement is
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`fair, free of collusion, and consistent with plaintiff’s fiduciary obligations to the class. See Hanlon v.
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`Chrysler Corp., 150 F.3d at 1027. The Hanlon court identified the following factors relevant to
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`1 The Investor Protection Trust serves as an independent source of noncommercial investor
`education. See www.investorprotection.org.
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`assessing a settlement proposal: (1) the strength of the plaintiff’s case; (2) the risk, expense,
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`complexity, and likely duration of further litigation; (3) the risk of maintaining class action status
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`throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and
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`the stage of the proceeding; (6) the experience and views of counsel; (7) the presence of a
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`government participant; and (8) the reaction of class members to the proposed settlement. Id. at
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`1026 (citation omitted); see also Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir.
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`2004).
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`Settlements that occur before formal class certification also “require a higher standard of
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`fairness.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000). In reviewing such
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`settlements, in addition to considering the above factors, a court also must ensure that “the
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`settlement is not the product of collusion among the negotiating parties.” In re Bluetooth Headset
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`Prods. Liab. Litig., 654 F.3d 935, 946-47 (9th Cir. 2011).
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`B.
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`Class Definition and Basis for Conditional Certification
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`On May 5, 2021, plaintiff moved to certify a class, which the Court certified by Order issued
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`February 4, 2022. (Dkt. No. 224.) Following certification of the Class, the parties agreed to
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`mediation before Hon. Layn R. Phillips (Ret.) of Phillips ADR (“Judge Phillips”), which ultimately
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`led to the instant settlement. The Settlement Agreement, attached hereto as Exhibit A, defines the
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`class as:
`all Persons that purchased or otherwise acquired the publicly traded securities of Apple Inc.,
`including purchasers of Apple Inc. call options and sellers of Apple Inc. put options, during
`the period from November 2, 2018, through January 2, 2019, inclusive, and who suffered
`damages by Defendants’ alleged violations of §§10(b) and 20(a) of the Exchange Act.
`Excluded from the Class are: (i) Apple and the Individual Defendants; (ii) members of the
`families of each Individual Defendant; (iii) officers and directors of Apple; and (iv) the legal
`representatives, heirs, successors, or assigns of any such excluded party. Also excluded from
`the Class is any Person who timely and validly seeks exclusion from the Class.
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`(“the Class”). (Dkt. No. 421-2 at 5.) The Court previously approved a class definition materially
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`identical to the definition provided above.2
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`2 The Court approved the following class: “All persons and entities who purchased or
`otherwise acquired the publicly traded securities of Apple Inc., including purchasers of Apple Inc.
`call options and sellers of Apple Inc. put options, during the period from November 2, 2018
`through January 2, 2019, inclusive, 2 and who suffered damages by defendants’ alleged violations
`of Sections 10(b) and 20(a) of the Exchange Act. Excluded from the class are (i) Apple and the
`individual defendants; (ii) members of the families of each individual defendant; (iii) officers and
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`C.
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`Settlement Agreement Appears Fair and Reasonable
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`The settlement agreement, a copy of which is attached hereto as Exhibit A (“Settlement
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`Agreement”), is granted preliminary approval pursuant to Rule 23(e)(2). Based upon the
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`information before the Court, the Settlement Agreement falls within the range of possible approval
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`as fair, adequate and reasonable, and there is a sufficient basis for notifying the Class and for
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`setting a Fairness and Final Approval Hearing.
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`As to the Hanlon factors, the Court finds that they indicate the settlement here is fair and
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`reasonable. Further litigation, absent settlement would likely be lengthy and would present
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`several difficulties to resolve. A “[s]ettlement [a]greement’s elimination of risk, delay, and further
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`expenses weighs in favor of approval.” Salazar v. Midwest Servicing Grp., Inc., 2018 WL
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`3031503, at *6 (C.D. Cal. June 4, 2018). “Courts experienced with securities fraud litigation
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`‘routinely recognize that securities class actions present hurdles to proving liability that are
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`difficult for plaintiffs to clear.’” Redwen v. Sino Clean Energy, Inc., 2013 WL 12129279, at *5
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`(C.D. Cal. Mar. 13, 2013). Risks of proving falsity, materiality, scienter, and recoverable damages
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`present significant obstacles to plaintiff’s success at trial. See, e.g., In re Celera Corp. Sec. Litig.,
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`2015 WL 1482303, at *5 (N.D. Cal. Mar. 31, 2015) (“As with any securities litigation case, it
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`would be difficult for Lead Plaintiff to prove loss causation and damages at trial. . . . Lead Plaintiff
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`would risk recovering nothing without a settlement.”); Luna v. Marvell Tech. Grp., 2018 WL
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`1900150, at *3 (N.D. Cal. Apr. 20, 2018) (noting the risks of proving scienter, loss causation, and
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`damages at trial).
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`Here, defendants advanced several arguments presenting issues for plaintiffs. First,
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`defendants dispute that defendant Cook’s alleged false statement conveyed information about the
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`current state of Apple’s business in China, as opposed to historical information, and that the
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`information negated an inference of scienter. See In re Immune Response Sec. Litig., 497 F. Supp.
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`2d 1166, 1172 (S.D. Cal. 2007) (“[T]he issue[] of scienter . . . [is] complex and difficult to
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`establish at trial.”) Further, defendants and their experts argued that the price declines in Apple
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`directors of Apple; and (iv) the legal representatives, heirs, successors or assigns of any such
`excluded party.” (Dkt. No. 252 at 4.)
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`stock were not caused by revelations concerning previously undisclosed conditions in China, but
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`by the fact that Apple missed its Q1'19 revenue guidance. See In re Zynga Inc. Sec. Litig., 2015
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`WL 6471171, at *9 (N.D. Cal. Oct. 27, 2015) (“[I]n ‘any securities litigation case, it [is] difficult
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`for [plaintiff] to prove loss causation and damages at trial.’”). Further, defendants’ expert
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`witnesses testimony posed a potentially significant obstacle to plaintiff’s potential for success at
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`trial. See, e.g., Weeks v. Kellogg Co., 2013 WL 6531177, at *13 (C.D. Cal. Nov. 23, 2013) (“The
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`fact that this issue, which is at the heart of plaintiffs’ case, would have been the subject of
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`competing expert testimony suggests that plaintiffs’ ability to prove liability was somewhat
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`unclear; this favors a finding that the settlement is fair.”).
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`Proceeding to trial would have been costly; recovery was not guaranteed; and there was the
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`possibility of protracted appeals. The settlement occurred only after four years extensive litigation
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`including the certification of a class, modification of a class, a motion for summary judgment,
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`extensive discovery, and the retention of expert witnesses by both sides. Here, “the case is
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`complex and likely to be expensive and lengthy to try,” and therefore “favors the settlement.”
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`Rodriguez v. W. Publ'g Corp., 563 F.3d 948, 966 (9th Cir. 2009).
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`Counsel for both parties are highly experienced. The record does not indicate collusion or
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`self-dealing. See In re Bluetooth, 654 F.3d at 946-47.
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`The Settlement Agreement appears to have been the product of arm’s length and informed
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`negotiations. The relief provided for the Class appears to be adequate, taking into account:
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`(i) the costs, risks, and delay of trial and appeal;
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`(ii) the effectiveness of any proposed method of distributing relief to the class, including the
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`method of processing class-member claims;
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`(iii) the terms of any proposed award of attorney's fees, including timing of payment; and
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`(iv) any agreements required to be identified under Rule 23(e)(3), of which there are none at
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`issue here.
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`Moreover, the Settlement Agreement appears to treat Class members equitably relative to
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`each other.
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`At the hearing on plaintiffs’ motion for preliminary approval, the Court expressed several
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`concerns, which were largely addressed by plaintiffs’ supplemental submission in support of
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`motion for preliminary approval. (Dkt. No. 433.) Plaintiffs’ supplemental submission is sufficient
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`to justify preliminary approval. The Court will evaluate the Settlement Agreement fully at the
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`hearing for final approval.
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`III. PLAN OF NOTICE, ALLOCATION, AND ADMINISTRATION
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`A.
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`Notice Plan
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`A court must “direct notice [of a proposed class settlement] in a reasonable manner to all
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`class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). “The class must be
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`notified of a proposed settlement in a manner that does not systematically leave any group without
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`notice.” Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 624 (9th Cir. 1982). Adequate
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`notice requires: (i) the best notice practicable; (ii) reasonably calculated, under the circumstances, to
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`apprise the Class members of the proposed settlement and of their right to object or to exclude
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`themselves as provided in the settlement agreement; (iii) reasonable and constitute due, adequate,
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`and sufficient notice to all persons entitled to receive notice; and (iv) meet all applicable
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`requirements of due process and any other applicable requirements under federal law. Phillips
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`Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). Due process requires “notice reasonably
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`calculated, under all the circumstances, to apprise interested parties of the pendency of the action
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`and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr.
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`Co., 339 U.S. 306, 314 (1950).
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`The parties’ proposed notice plan appears to be constitutionally sound in that plaintiffs
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`have made a sufficient showing that it is: (i) the best notice practicable; (ii) reasonably calculated,
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`under the circumstances, to apprise the Class members of the proposed settlement and of their
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`right to object or to exclude themselves as provided in the settlement agreement; (iii) reasonable
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`and constitute due, adequate, and sufficient notice to all persons entitled to receive notice; and (iv)
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`meet all applicable requirements of due process and any other applicable requirements under
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`federal law. The notice plan includes direct mail notice to all those who can be identified with
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`reasonable efforts, supplemented by publication of the Summary Notice in The Wall Street Journal
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`and over a national newswire service. In connection therewith, the Court approves the Proof of
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`Claim form, attached hereto as Exhibit D.
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`The Court approves form of the full-length Notice of Proposed Class Action Settlement
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`attached as Exhibit B to this Order. The Court also approves the form of the Summary Notice
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`attached hereto as Exhibit C. Taken together these notices are sufficient to inform class members
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`of the terms of the Settlement Agreement, their rights under the Settlement Agreement, their rights
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`to object to or comment on the Settlement Agreement, their right to receive a payment or opt out
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`of the Settlement Agreement, the process for doing so, and the date and location of the Fairness
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`and Final Approval hearing. The forms of plan of notice are therefore APPROVED.
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`B.
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`Plan of Allocation
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`The Court preliminarily approves the proposed plan of allocation set forth in the Motion
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`and the class notices.
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`The plan of allocation includes a Proof of Claim form that requests the information
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`necessary to calculate a claimant’s claim amount pursuant to the agreed-to plan of allocation. (See
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`Dkt. No. 421-2 at 12.) When developing the plan, Lead Counsel, along with Lead Plaintiff’s
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`damages expert, calculated the potential amount of estimated alleged artificial inflation (or
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`deflation, in the case of Apple put options) in Apple publicly traded securities proximately caused
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`by defendants’ alleged false and misleading statements and material omissions. (Dkt. No. 421 at
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`19.) Based on the formula in the plan, a “Recognized Loss Amount” will be calculated for each
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`transaction in Apple publicly traded securities. (Id.) The Net Settlement Fund will be distributed
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`to Authorized Claimants on a pro rata basis based on the type of security transacted and the
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`relative size of their Recognized Claims. (Id.)
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`C.
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`Settlement Administrator
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`Gilardi & Co. LLC (“Gilardi”) is appointed to act as the Settlement Administrator,
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`pursuant to the terms set forth in the Settlement Agreement.
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`The Settlement Administrator shall distribute the Class Notice according to the notice plan
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`described in the Settlement Agreement and substantially in the form approved herein, no later than
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`June 26, 2024 (“Notice Date”). Proof of distribution of the Class Notice shall be filed by the
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`parties in conjunction with the motion for final approval.
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`Defendants shall provide, or cause to be provided, to the Settlement Administrator, at no
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`cost to Lead Plaintiff, the Settlement Fund, Lead Counsel or the Settlement Administrator, within
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`seven (7) calendar days after the Court enters this Order, documentation or data in the possession
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`of Apple or its present or former stock transfer agents sufficient to identify to the extent available
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`the record holders of Apple common stock during the Class Period and their last known addresses,
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`email addresses (if available), or other similar information.
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`D.
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`Exclusion/Opt-Out
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`Any Class Member shall have the right to be excluded from the Class by mailing a request
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`for exclusion to the Settlement Administrator no later than August 18, 2024. Requests for
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`exclusion must be signed and in writing and set forth (a) the name, address, and telephone number
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`of the person who wishes to be excluded (b) the number and type of Apple publicly traded
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`securities that the Person requesting exclusion purchased, otherwise acquired, and/or sold during
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`the Class Period, as well as the number of shares, dates, and prices for each such purchase, other
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`acquisition, and sale; and (c) that the Person wishes to be excluded from the Class in In re Apple
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`Inc. Securities Litigation, No. 4:19-cv-02033-YGR. No later than September 3, 2024, Class
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`Counsel shall file with the Court a list of all persons or entities who have timely requested
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`exclusion from the Class as provided in the Settlement Agreement.
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`Any Class Member who does not request exclusion from the settlement class as provided
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`above shall be bound by the terms and provisions of the Settlement Agreement upon its final
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`approval, including but not limited to the releases, waivers, and covenants described in the
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`Settlement Agreement, whether or not such person or entity objected to the Settlement Agreement
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`and whether or not such person or entity makes a claim upon the settlement funds.
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`E. Objections
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`Any Class Member who has not submitted a timely request for exclusion from the
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`Settlement Agreement shall have the right to object to (1) the Settlement Agreement, (2) the plan
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`of allocation; and/or Class Counsel’s motion for attorneys’ fees and Class Representative Awards
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`Case 4:19-cv-02033-YGR Document 435 Filed 06/03/24 Page 10 of 11
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`by mailing to the Settlement Administrator a written objection and stating whether they intend to
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`appear at the Fairness Hearing, as set forth in the Class Notice, no later than August 18, 2024.
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`Failure to submit a timely written objection will preclude consideration of the Class Member’s
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`later objection at the time of the Fairness Hearing.
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`F. Attorneys’ Fees and Class Representative Awards
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`Plaintiffs and their counsel shall file their motion for attorneys’ fees and for Class
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`Representative awards no later than July 14, 2024. Each settlement class member shall have the
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`right to object to the motion for attorneys’ fees and Class Representative awards by filing a written
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`objection with the Court no later than August 18, 2024, as stated in paragraph 8 above.
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`Plaintiffs shall file a reply brief responding to any timely objection no later than September
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`3, 2024.
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`G.
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`Fairness and Final Approval Hearing
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`All briefs, memoranda and papers in support of final approval of the settlement shall be
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`filed no later than July 14, 2024.
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`The Court will conduct a Fairness and Final Approval Hearing on Tuesday, September 17,
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`at 2:00 p.m., to determine whether the Settlement Agreement should be granted final approval as
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`fair, reasonable, and adequate as to the Class. The Court will hear all evidence and argument
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`necessary to evaluate the Settlement Agreement and will consider Class Counsel’s motion for
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`attorneys’ fees and for Class Representative awards.
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`Class members may appear, by counsel or on their own behalf, to be heard in support of or
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`opposition to the Settlement Agreement and Class Counsel’s Motion for attorneys’ fees and Class
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`Representative awards by filing a Notice of Intention to Appear no later than August 18, 2024.
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`The Court reserves the right to continue the date of the final approval hearing without
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`further notice to Class members.
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`The Court retains jurisdiction to consider all further applications arising out of or in
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`connection with the Settlement.
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`H.
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`Post-Distribution Accounting
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`Case 4:19-cv-02033-YGR Document 435 Filed 06/03/24 Page 11 of 11
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`If final approval is granted, the parties will be required to file a Post-Distribution
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`Accounting in accordance with this District’s Procedural Guidance for Class Action Settlements
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`and at a date set by the Court at the time of the final approval hearing. Counsel should prepare
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`accordingly.
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`Event
`Class data to be provided to Settlement Administrator
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`Summary of Key Dates
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`Class Notice to be sent by
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`Date
`Within seven (7)
`calendar days after
`the entry of this
`order.
`June 26, 2024
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`Class Counsel to file their motion for fees and costs and
`Class Representative awards
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`July 14, 2024
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`Motion for Final Approval to be filed by
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`July 14, 2024
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`Deadline to submit objection or request for exclusion
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`August 18, 2024
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`Class counsel and settlement administrator to submit
`supplemental statements regarding status of notice
`program, objections, opt-outs
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`September 3, 2024
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`Fairness and Final Approval Hearing
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`September 17, 2024
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`NOTE: Subject to
`change without
`further notice to the
`Class.
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`IT IS SO ORDERED.
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`This terminates Docket No. 421.
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`Dated:
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`June 3, 2024
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`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT COURT JUDGE
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