james s. christian (sbn 023614) christian anderson plc and memo re...iii motion for final approval...

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND PLAN OF ALLOCATION AND

AN AWARD OF ATTORNEYS’ FEES AND EXPENSES

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James S. Christian (SBN 023614) CHRISTIAN ANDERSON PLC 5050 North 40th Street, Suite 320 Phoenix, Arizona 85018 Telephone: (602) 478-6828 [email protected] James W. Johnson (admitted pro hac vice) Michael H. Rogers (admitted pro hac vice) James T. Christie (admitted pro hac vice) LABATON SUCHAROW LLP 140 Broadway New York, New York 10005 Telephone: (212) 907-0700 [email protected] [email protected] [email protected] Counsel for Plaintiff Public Employees’ Retirement System of Mississippi

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF MISSISSIPPI, individually and on behalf of all others similarly situated, Plaintiffs v. SPROUTS FARMERS MARKET, INC., et al., Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: CV2016-050480 Lead Plaintiff’s Motion for Final Approval of Class Action Settlement and Plan of Allocation and an Award of Attorneys’ Fees and Expenses and Memorandum of Points and Authorities in Support Thereof (Complex case) (Assigned to the Hon. Roger Brodman)

____________________________________ )

i MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND PLAN OF ALLOCATION AND


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TABLE OF CONTENTS MOTION ............................................................................................................................. 1

MEMORANDUM OF POINTS AND AUTHORITIES .................................................... 1

ARGUMENT ...................................................................................................................... 3

I. THE SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE AND SHOULD BE APPROVED ..................................................................................... 3

A. The Standards for Final Approval of a Class Action ....................................... 3

B. Application of the Relevant Factors Supports Final Approval of the Settlement ......................................................................................................... 5

1. The Settlement Is the Result of Thorough and Arm’s-Length Efforts by an Adequate Lead Plaintiff and Experienced Counsel ........ 5

2. The Strength of Lead Plaintiff’s Case and the Risks Associated with Continued Litigation ..................................................................... 7

3. The Fairness of the Settlement in Light of the Best Possible Recovery and all the Risks of Litigation Support Approval of the Settlement ...................................................................................... 11

4. Complexity, Expense, and Duration of Continued Litigation ............ 12

5. Amount of Opposition to the Settlement ............................................ 13

6. Stage of the Proceedings ..................................................................... 13

II. THE COURT SHOULD GRANT FINAL CERTIFICATION OF THE SETTLEMENT CLASS ......................................................................................... 14

III. THE PLAN OF ALLOCATION FOR DISTRIBUTING RELIEF TO THE SETTLEMENT CLASS IS FAIR, ADEQUATE, AND REASONABLE AND SHOULD BE APPROVED .......................................................................... 15

IV. THE FEE AND EXPENSE APPLICATION SHOULD BE APPROVED ........... 17

A. Counsel Are Entitled to an Award of Attorneys’ Fees from the Common Fund ................................................................................................ 17

B. Reasonable Percentage of the Fund Recovered Is the Appropriate Method for Awarding Attorneys’ Fees in Common Fund Cases .................. 18

C. The Requested Fee of 17% of the Settlement Fund Would Be Reasonable in this Case.................................................................................. 19

1. Time and Labor Expended on the Action ........................................... 20

2. Experience, Reputation, Ability of Counsel, and the Skill They Displayed in the Litigation ................................................................. 23

3. Awards Made in Similar Cases ........................................................... 24

ii MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND PLAN OF ALLOCATION AND


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4. The Result Achieved ........................................................................... 25

5. The Risks of the Litigation ................................................................. 25

6. The Reaction of the Settlement Class ................................................. 27

V. PLAINTIFFS’ COUNSEL’S EXPENSES ARE REASONABLE AND WERE NECESSARY TO ACHIEVE THE BENEFIT OBTAINED.................... 28

VI. LEAD PLAINTIFF’S REQUEST FOR A SERVICE AWARD ........................... 30

CONCLUSION ................................................................................................................. 30

iii MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND PLAN OF ALLOCATION AND


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TABLE OF AUTHORITIES

Page(s)

Cases

In re Amgen Inc. Sec. Litig., Case No. CV 07-2536 PSG, 2016 WL 10571773 (C.D. Cal. Oct 25, 2016) .............................................................................................. 22

Anixter v. Home-Stake Prod. Co., 77 F.3d 1215 (10th Cir. 1996) ..................................................................................... 26

In re Apollo Grp. Inc. Sec. Litig., No. 04-2147, 2012 WL 1378677 (D. Ariz. Apr. 20, 2012) ........................................... 5

Baptist Found. of Arizona v. Arthur Andersen LLP, No. CV 1999-019093, 2002 WL 34721554 (Ariz. Super. Ct. Maricopa Cty. Nov. 8, 2002).......................................... 18, 19, 24, 25

Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299 (1985) ..................................................................................................... 26

In re Biolase, Inc. Sec. Litig., Case No. SACV 13-1300-JLS, 2015 WL 12720318 (C.D. Cal. Oct. 13, 2015) ............................................................................................................................ 22

Blackmoss Inv. Inc. v. ACA Capital Holdings, Inc., No. 07-cv-10528, 2010 WL 148617 (S.D.N.Y. Jan. 14, 2010) ..................................... 8

Blum v. Stenson, 465 U.S. 886 (1984) ..................................................................................................... 18

Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) ..................................................................................................... 17

Burke v. Ariz. State Ret. Sys., 206 Ariz. 269, 77 P.3d 444 (Ct. App. 2003) ...................................................... 4, 17, 18

Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 141 P.3d 824 (Ct. App. 2006) ....................................................... passim

Churchill Vill. L.L.C. v. Gen. Elec., 361 F.3d 566 (9th Cir. 2004) ......................................................................................... 5

City of Phoenix v. Fields, 219 Ariz. 563, 201 P.3d 529 (Ariz. 2009) ..................................................................... 4

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Class Plaintiffs v. Jaffe Schlesinger, P.A., 19 F.3d 1306 (9th Cir. 1994) ................................................................................. 17, 18 Dansby v. Buck,

92 Ariz. 1, 373 P.2d 1 (1962) ........................................................................................ 3

Destefano v. Zynga Inc., No. 12-04007-JSC, 2016 WL 537946 (N.D. Cal. Feb. 11, 2016) ............................... 12

Eisen v. Porsche Cars N. Am., Inc., No. 2:11-cv-09405-CAS-FFMx, 2014 WL 439006 (C.D. Cal. Jan. 30, 2014) ............................................................................................. 14

In re Equity Funding Corp. Sec. Litig., 438 F. Supp. 1303 (C.D. Cal. 1977) ............................................................................ 23

ESI Ergonomic Sols., LLC v. United Artists Theatre Circuit, Inc., 203 Ariz. 94, 50 P.3d 844 (Ct. App. 2002) .................................................................... 4

Fulton Homes Corp. v. BBP Concrete, 214 Ariz. 566, 155 P.3d 1090 (Ct. App. 2007) ............................................................ 21

Glickenhaus & Co. v. Household Int’l, Inc., 787 F.3d 408 (7th Cir. 2015) ....................................................................................... 26

Harris v. Marhoefer, 24 F.3d 16 (9th Cir. 1994) ........................................................................................... 28

Hensley v. Eckerhart, 461 U.S. 424 (1983) ..................................................................................................... 25

In re Heritage Bond Litig., No. 02-ML-1475-DT (RCX), 2005 WL 1594389 (C.D. Cal. June 10, 2005) ............................................................................................ 23

Hicks v. Morgan Stanley & Co., No. 01 Civ. 10071 (RJH), 2005 U.S. Dist. LEXIS 24890 (S.D.N.Y. Oct. 24, 2005) ...................................................................................................................... 30

In re Immune Response Sec. Litig, 497 F. Supp. 2d 1166 (S.D. Cal. 2007) ........................................................................ 29

Int’l Bhd. of Elec. Workers Local 697 Pension Fund v. Int’l Game Tech., Inc., No. 3:09-cv-00419-MMD-WGC, 2012 WL 5199742 (D. Nev. Oct. 19, 2012)................................................................................................ 11

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J&R Mktg., SEP v. Gen. Motors Corp., 549 F.3d 384 (6th Cir. 2008) ......................................................................................... 8

Kerr v. Killian, 197 Ariz. 213, 3 P.3d 1133 (Ct. App. 2000) ................................................................ 17

In re Linkedin User Privacy Litig., 309 F.R.D. 573 (N.D. Cal. 2015) ................................................................................. 12

McPhail v. First Command Fin. Planning, Inc., No. 05cv179-IEG- JMA, 2009 WL 839841 (S.D. Cal. Mar. 30, 2009) ...................... 11

In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454 (9th Cir. 2000) ............................................................................... 4, 7, 13

Missouri v. Jenkins, 491 U.S. 274 (1989) ..................................................................................................... 22

Myers v. Wood, 174 Ariz. 434, 850 P.2d 672 (Ct. App. 1992) ................................................................ 3

Nguyen v. Radient Pharms. Corp., No. SACV 11-00406 DOC (MLGx), 2014 WL 1802293 (C.D. Cal. May 6, 2014) ........................................................................................................................ 10

Officers for Justice v. Civil Serv. Comm’r, 688 F.2d 615 (9th Cir. 1982) ......................................................................................... 4

In re Omnivision Techs, Inc., 559 F. Supp. 2d 1036 (N.D. Cal. 2008) ....................................................................... 11

In re Oracle Corp. Sec. Litig., No. C 01-00988 SI, 2009 WL 1709050 (N.D. Cal. June 19, 2009), aff’d, 627 F.3d 376 (9th Cir. 2010) ....................................................................................... 26

In re Pac. Enters. Sec. Litig., 47 F.3d 373 (9th Cir. 1995) ......................................................................................... 27

Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268 (9th Cir. 1989) ....................................................................................... 18

In re Portal Software, Inc. Sec. Litig., No. C-03-5138 VRW, 2007 WL 4171201 (N.D. Cal. Nov. 26, 2007) ........................ 22

Robbins v. Koger Props., Inc., 116 F.3d 1441 (11th Cir. 1997) ................................................................................... 26

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Rutti v. Lojack Corp. Inc., No. SACV 06-350 DOC JCX, 2012 WL 3151077 (C.D. Cal. July 31, 2012) ............................................................................................................................ 22

Sabet v. Olde Discount Corp., No. CV 96-17622, 2001 WL 1246860 (Ariz. Super. Ct. Maricopa Cty. Oct. 10, 2001) .................................................... passim

Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301 (9th Cir. 1990) ..................................................................................... 18

Steer v. Eggleston, 202 Ariz. 523, 47 P.3d 1161 (Ct. App. 2002) .............................................................. 17

Steiner v. Am. Broad. Co., 248 F. App’x. 780 (9th Cir. 2007) ............................................................................... 22

Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370 (9th Cir. 1993) ............................................................................... 5, 12, 18

Vincent v. Reser, No. 11-3572, 2013 WL 621865 (N.D. Cal. Feb. 19, 2013) ......................................... 28

Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002) .............................................................................. passim

Ward v. Succession of Freeman, 854 F.2d 780 (5th Cir. 1998) ....................................................................................... 26

In re Wash. Pub. Power Supply Sys. Sec. Litig. (WPPSS) 19 F.3d 1291 (9th Cir. 1994), aff’d in part, Class Plaintiffs v. Jaffe Schlesinger, P.A., 19 F.3d 1306 (9th Cir. 1994) .................................................... 17, 18

Docketed Cases

In re Amerco Sec. Litig., No. Civ-04-2182, slip op. (D. Ariz. Nov. 2, 2006) ...................................................... 24

In re Amkor Tech. Inc. Sec. Litig., No. CV 07-00278, slip op. (D. Ariz. Nov. 18, 2009) .................................................. 24

Larson v. Insys Therapeutics Inc., et al., No. 14-cv-01043-PHX-GMS, slip op. (D. Ariz. Dec. 7, 2015) ............................. 24, 30

Shapiro v. Matrixx Initiatives, Inc., et al., No. CV-09-1479-PHX-ROS, slip op. (D. Ariz. Sept. 6, 2013) ............................. 24, 30

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Statutes

15 U.S.C. §77k(e) ........................................................................................................ 15, 16

Rules

Ariz. R. Civ. P. 23(a) ......................................................................................................... 14

Ariz. R. Civ. P. 23(b)(3) .................................................................................................... 14

Ariz. R. Civ. P. 23(e) ....................................................................................................... 4, 5

Fed. R. Civ. P. 23 .......................................................................................................... 4, 14

Fed. R. Civ. P. 23(e)(2)(A)-(D) ........................................................................................... 5

Fed. R. Civ. P. 23(e)(2)(C)(i) ............................................................................................ 12

Fed. R. Civ. P. 23(e)(2)(C)(ii) ........................................................................................... 15

Fed. R. Civ. P. 23(e)(3) ....................................................................................................... 5

Other Authorities

17 C.F.R. §229.303 .......................................................................................................... 7, 8

Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards 7 J. Empirical Legal Stud. 811, 835 (2010) ................................... 25

Charles Silver, Class Actions In The Gulf South Symposium, Due Process and the Lodestar Method: You Can’t Get There From Here, 74 Tul. L. Rev. 1809, 1819-20 (2000) .......................................................................................... 19

Internal Revenue Code Section 40l(a) ................................................................................. 6

1 MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND PLAN OF ALLOCATION AND


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MOTION

Court-appointed Lead Plaintiff the Public Employees’ Retirement System of

Mississippi (“PERS” or “Lead Plaintiff”), on behalf of itself and the proposed Settlement

Class, respectfully submits this motion for: (i) final approval of the proposed Settlement

of the above-captioned action (the “Action”); (ii) approval of the proposed plan of

allocation for distributing the proceeds of the Settlement to eligible claimants (the “Plan

of Allocation”); (ii) approval of final certification of the Settlement Class; and (iv)

approval of the Fee and Expense Application.1

This Motion is based on the following Memorandum of Points and Authorities and

the Declaration of James W. Johnson (the “Johnson Declaration”), submitted herewith.2

Proposed orders will be submitted with Lead Plaintiff’s reply submission on May 24,

2019, after the May 10, 2019 deadline for requesting exclusion from the Settlement Class

or objecting has passed.

MEMORANDUM OF POINTS AND AUTHORITIES

As set forth in the Stipulation, Lead Plaintiff has agreed to settle all claims

asserted, or that could have been asserted, against Defendants in the Action,3 and related

claims, in exchange for the payment of $9,500,000 (the “Settlement Amount”), for the

1 Unless otherwise noted, capitalized terms have the meanings ascribed to them in

the Stipulation and Agreement of Settlement, dated December 27, 2018 (the “Stipulation”), filed with the Court on December 28, 2018.

2 The Declaration of James W. Johnson is an integral part of this submission and, for the sake of brevity in this memorandum, the Court is respectfully referred to it for a detailed description of, inter alia: the history of the Action; the nature of the claims asserted; the negotiations leading to the Settlement; and the risks and uncertainties of continued litigation; among other things. Citations to “¶” in this memorandum refer to paragraphs in the Johnson Declaration.

3 “Defendants” are Sprouts Farmers Market, Inc. (“Sprouts” or “the Company”), J. Douglas Sanders, Amin N. Maredia, Donna Berlinski, Andrew S. Jhawar, Shon Boney, Joseph Fortunato, Lawrence P. Molloy, and Steven H. Townshend (the “Individual Defendants” and with Sprouts, the “Sprouts Defendants”), AP Sprouts Holdings, LLC, and AP Sprouts Holdings (Overseas), L.P. (together “AP”), Barclays Capital Inc. and Morgan Stanley & Co. LLC (the “Underwriter Defendants,” and with AP and the Sprouts Defendants, collectively, the “Defendants”).



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benefit of the Settlement Class. The terms of the Settlement are detailed in the

Stipulation, which was executed by the Parties on December 27, 2018.

As described below and in the accompanying Johnson Declaration, the decision to

settle was well-informed by more than two years of contentious and hard-fought litigation

that involved a comprehensive investigation before filing the Complaint; briefing on

Defendants’ removal challenge that included litigation in the U.S. District Court for the

District of Arizona (the “District Court”) and the U.S. Court of Appeals for the Ninth

Circuit (the “Ninth Circuit”); successfully opposing Defendants’ motion to stay the case

in light of the U.S. Supreme Court’s anticipated decision in Cyan, Inc. v. Beaver County

Employees’ Retirement Fund, No. 15-1439; briefing on Defendants’ motion to dismiss

the Complaint; extensive fact discovery (involving the analysis of approximately 62,000

pages of discovery documents produced by Defendants and a third party); and moving for

class certification.

The $9.5 million recovery represents approximately 13.6% of the $69.8 million in

maximum damages estimated by Lead Plaintiff’s consulting damages expert, assuming

the Settlement Class was able to establish Defendants’ liability through trial and appeals,

and crediting Defendants’ negative causation arguments. See ¶¶6, 55. If Defendants’

arguments prevailed, the Settlement Class would have recovered substantially less than

the Settlement Amount, or nothing at all. Lead Counsel, who has extensive experience

and expertise in prosecuting securities class actions, believes that the Settlement

represents a very favorable resolution of this complex litigation in light of the specific

risks of continued litigation, particularly the challenges regarding materiality, traceability,

negative causation, and damages. Lead Plaintiff, who was actively involved in the

Action, diligently represented the Settlement Class and has approved the Settlement. See

Declaration of George Neville on behalf of PERS, Ex. 1.4 Accordingly, Lead Plaintiff

4 All exhibits referenced herein are annexed to the Johnson Declaration. For clarity,

citations to exhibits that themselves have attached exhibits, will be referenced herein as “Ex.__-__.” The first numerical reference is to the designation of the entire exhibit

( . . . continued)



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respectfully requests that the Court grant final approval of the Settlement. In addition,

the Plan of Allocation, which was developed with the assistance of Lead Plaintiff’s

consulting damages expert, is a fair and reasonable method for distributing the Net

Settlement Fund and should also be approved by the Court.

Lead Plaintiff also seeks approval of the Fee and Expense Application. As

detailed below, Plaintiffs’ Counsel have not received any compensation for their

successful pursuit of this case, which required more than two years of vigorous advocacy.

Lead Counsel respectfully requests that Plaintiffs’ Counsel be awarded an attorneys’ fee

of 17% of the Settlement Fund (i.e., $1,615,000), which will include accrued interest, that

Plaintiffs’ Counsel be paid out of the Settlement Fund for litigation expenses in the

amount of $98,598.40, and that Lead Plaintiff’s request for a service award in the amount

of $25,050, in connection with the time spent on the Action, be approved. This 17% fee

request is below the benchmark followed by many courts in Arizona for contingent fees

and, as discussed below, would provide a negative multiplier of Plaintiffs’ Counsel’s

lodestar. Additionally, the requested fee is based on a pre-settlement agreement with

PERS and has been approved by PERS. See ¶74; Ex. 1 at ¶¶7, 11.

ARGUMENT

I. THE SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE AND SHOULD BE APPROVED

A. The Standards for Final Approval of a Class Action

Arizona has a strong public policy in favor of private negotiated settlement of

disputes. Dansby v. Buck, 92 Ariz. 1, 11, 373 P.2d 1, 8 (1962) (“It has always been the

policy of the law to favor compromise and settlement; and it is especially important to

sustain that principle in this age of voluminous litigation.”); Myers v. Wood, 174 Ariz.

434, 435, 850 P.2d 672, 673 (Ct. App. 1992) (“[S]ound legal policy ought to favor

(continued . . . ) attached to the Johnson Declaration and the second alphabetical reference is to the exhibit designation within the exhibit itself.



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compromise and settlement over litigation.”). This is particularly true in class action

suits. See, e.g., Officers for Justice v. Civil Serv. Comm’r, 688 F.2d 615, 625 (9th Cir.

1982) (“voluntary conciliation and settlement are the preferred means of dispute

resolution”).5

A matter brought as a class action may not be settled, compromised, or dismissed

without court approval. See Ariz. R. Civ. P. 23(e). With respect to the standards for final

approval of a class action settlement, Arizona courts have adopted the procedures and

standards developed in the federal courts and have found them authoritative. See ESI

Ergonomic Sols., LLC v. United Artists Theatre Circuit, Inc., 203 Ariz. 94, 98, 50 P.3d

844, 848 (Ct. App. 2002) (“Because Rule 23 is identical to Rule 23 of the Federal Rules

of Civil Procedure, we view federal cases construing the federal rule as authoritative.”)

(citation omitted). Accordingly, Lead Plaintiff respectfully submits that federal court

interpretations of Federal Rule Civil Procedure 23 are instructive in this matter.

The standard for determining whether to grant final approval to a class action

settlement is whether the proposed settlement is “fair, adequate, and reasonable and is not

the product of collusion.” Sabet v. Olde Discount Corp., No. CV 96-17622, 2001 WL

1246860, at *3 (Ariz. Super. Ct. Maricopa Cty. Oct. 10, 2001); see also In re Mego Fin.

Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000). In making this determination, the

Court should consider and balance a number of factors, including: (i) the likelihood that

plaintiff would prevail at trial; (ii) the range of possible recovery if plaintiff prevailed at

trial; (iii) the fairness of the settlement compared to the range of possible recovery,

discounted for the risks associated with the litigation; (iv) the complexity, expense, and

5 Arizona state courts have looked to federal courts in the context of complex

representative litigation. See, e.g., City of Phoenix v. Fields, 219 Ariz. 563, 572-73, 201 P.3d 529, 533-34 (Ariz. 2009) (citing to Moore’s Federal Practice in Class Actions); Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 353, 141 P.3d 824, 832 (Ct. App. 2006) (noting the precedence of federal courts when assessing attorneys’ fees in a class action); Burke v. Ariz. State Ret. Sys., 206 Ariz. 269, 272, 77 P.3d 444, 447 (Ct. App. 2003) (citing to Ninth Circuit and other federal case law in the context of class actions).



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duration of the litigation; (v) the substance and amount of opposition to the settlement;

and (vi) the stage of proceedings at which the settlement was achieved. See also

Churchill Vill. L.L.C. v. Gen. Elec., 361 F.3d 566, 575-76 (9th Cir. 2004). Not all factors

will apply to every class action settlement and, under certain circumstances, one factor

alone may prove determinative in finding sufficient grounds for court approval. See

Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1376 (9th Cir. 1993).

Federal Rule of Civil Procedure 23(e) was also recently amended to, among other

things, specify that in considering approval of a settlement, courts should assess whether:

(i) the class representatives and class counsel have adequately represented the class; (ii)

the settlement was negotiated at arm’s-length; (iii) the relief is adequate given “the costs,

risks, and delay of trial and appeal,” “the effectiveness of distributing the relief to the

class”, “the terms of any proposed award of attorney’s fees”, and “any agreements

required to be identified under Rule 23(e)(3); and (iv) the settlement treats class members

equitably relative to each other. See amendments to Rule 23(e)(2)(A)-(D).6 Many of

these considerations are already among the factors that courts within Arizona weigh and

each are readily satisfied here, as discussed below.

B. Application of the Relevant Factors Supports Final Approval of the Settlement

1. The Settlement Is the Result of Thorough and Arm’s-Length Efforts by an Adequate Lead Plaintiff and Experienced Counsel

There is an initial presumption that a proposed settlement is fair and reasonable

when it is the product of “arms-length negotiations.” In re Apollo Grp. Inc. Sec. Litig.,

No. 04-2147, 2012 WL 1378677, at *2 (D. Ariz. Apr. 20, 2012) (noting that “there is no

evidence that there has been anything other than a genuine arms-length negotiation in this

6 Pursuant to Rule 23(e)(3), the only agreements made by the Parties in connection

with the Settlement are the September 5, 2018 term sheet, the Stipulation, and the confidential Supplemental Agreement, dated as of December 27, 2018, concerning the circumstances under which Defendants may terminate the Settlement based on the number of requests for exclusion from the class that are submitted in connection with the settlement notice. See Stipulation ¶ 39(a).



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case following mediation where the parties reached an agreement on the terms of the

settlement”). The Parties here have vigorously investigated and litigated the Action since

its inception and the Settlement was achieved only after a thorough arm’s-length

mediation process under the supervision of an experienced Mediator with considerable

knowledge and expertise in the field of securities law. ¶¶43-44; see generally Ex. 2.

During the mediation process, the Parties submitted confidential mediation statements

and participated in mediated settlement negotiations before the Mediator. ¶43; Ex. 2 at

¶¶8-10. While the July 20, 2018 mediation session ended without an agreement being

reached, in the weeks that followed, the Parties continued to negotiate and ultimately

agreed in principle to settle the case. ¶44; Ex. 2 at ¶11. The arm’s-length nature of the

settlement negotiations, and the involvement of an experienced mediator, support the

conclusion that the Settlement was achieved at arms’-length.

Lead Plaintiff PERS is a governmental defined-benefit pension plan qualified

under Section 40l(a) of the Internal Revenue Code for the benefit of current and retired

employees of the State of Mississippi. See Ex. 1 at ¶3. PERS is responsible for the

retirement income of employees of the state, including current and retired employees of

the state, public school districts, municipalities, counties, community colleges, state

universities and other public entities, such as libraries and water districts. Id. As set

forth in the previously filed motion for Preliminary Approval of the Settlement and the

motion seeking class certification, PERS, like all other members of the Settlement Class,

allegedly purchased shares of Sprouts pursuant to the Offering. Thus, the claims of the

Settlement Class would prevail or fail in unison, and the common objective of

maximizing recovery from Defendants aligns the interests of Lead Plaintiff and all

members of the Settlement Class. PERS has been a strong advocate for the class

throughout the course of the litigation and it, among other things: regularly consulted

with Lead Counsel about the prosecution of the case; participated in discovery;



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participated in telephonic court hearings; and attended the mediation session. See

generally Neville Declaration, Ex. 1.

Additionally, throughout this process, Lead Plaintiff had the advice and counsel of

Labaton Sucharow, a firm with extensive experience in class action litigation. See Ex. 4-

C. The Court should accord significant weight to the opinion of experienced and

informed counsel who support the settlement. See Sabet, 2001 WL 1246860, at *4

(approving settlement and “giving credence to the opinion of counsel” with “considerable

experience in the prosecution of complex class actions”).

2. The Strength of Lead Plaintiff’s Case and the Risks Associated with Continued Litigation

To determine whether the proposed Settlement is fair, reasonable, and adequate,

the Court must balance the risks of continued litigation against the benefits afforded to

class members and the certainty of a recovery. See Mego, 213 F.3d at 458. Although

Lead Plaintiff believes that the case against Defendants is strong, that confidence must be

tempered by the fact that the Settlement is certain and that every case involves significant

risk of no recovery, particularly in a complex case such as the one at bar. Here, there was

no Company admission, or parallel governmental proceeding, which would have aided

Lead Plaintiff in proving key elements of the case. There is no question that to prevail

here, Lead Plaintiff would have confronted a number of legal and factual challenges,

while trying to prove difficult securities claims.

(a) Risks Concerning Liability

The principal claims in the Action arise from Sections 11 and 15 of the Securities

Act. To prevail, Lead Plaintiff would need to prove the existence of undisclosed known

trends and uncertainties at the time of the Company’s secondary public offering of

common stock that occurred on or about March 5, 2015 (the “Offering”), in

contravention of Item 303 of Regulation S-K, 17 C.F.R. §229.303 (“Item 303”).

Defendants have vigorously contested these claims and would have continued to argue

and present evidence that, among other things, Lead Plaintiff could not establish that the



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“trend” alleged in the Complaint had materialized at the time of the Offering such that it

should have been disclosed pursuant to Item 303. Even if Lead Plaintiff did establish that

the trend existed at the time of the Offering, Defendants would likely argue that it did not

require disclosure under Item 303. Defendants would have argued, and sought to prove,

that there were no persistent conditions of price deflation at the time of the Offering, and

therefore no violation of Item 303. ¶¶48-49.

Defendants would also likely argue that Lead Plaintiff could not establish

Defendants’ actual knowledge of the purported trend, arguing that even if the 18-day

produce-price deflation were sufficient to constitute a trend, Lead Plaintiff would not be

able to put forth evidence demonstrating that Defendants had actual knowledge of the

alleged deflationary trend. ¶50; see also J&R Mktg., SEP v. Gen. Motors Corp., 549 F.3d

384, 391-92 (6th Cir. 2008) (Item 303 requires actual knowledge); Blackmoss Inv. Inc. v.

ACA Capital Holdings, Inc., No. 07-cv-10528, 2010 WL 148617, at *9 (S.D.N.Y. Jan.

14, 2010) (Item 303 disclosure obligation requires “facts establishing that the defendant

had actual knowledge of the purported trend”). Furthermore, Defendants would likely

put forth evidence that Defendants expected the deflation to be temporary and expected

inflation to continue in several produce categories. ¶50.

Defendants would also likely seek to establish that they did not reasonably expect

that the price deflation would have a material impact on the Company’s net sales,

revenues, or income, as required under Item 303. Defendants would assert that Lead

Plaintiff would not be able to support a claim that 18 days of deflation was understood at

the time as being anything other than the ordinary cycle of inflation and deflation, which

was disclosed throughout the Offering materials. ¶51.

Defendants would also continue to argue that Lead Plaintiff would not be able to

prove that shares traded during the Class Period were traceable to the Offering, pursuant

to Section 11. Defendants would argue that, under Section 11, a purchaser may recover

only for damages related to shares bought pursuant to the challenged registration



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statement and not to shares purchased in an aftermarket pursuant to any earlier offerings,

and that here, many institutional investors who were allocated shares in the Offering

already owned Sprouts stock. Furthermore, Defendants would argue that most of the

investors who were allocated shares in the Offering continued to buy shares in the

aftermarket, further complicating any attempt to trace the shares. While Lead Plaintiff

believes that traceability would be established, particularly given the allocation plans

produced by the Underwriter Defendants that list the entities that were allocated shares in

the Offering, there is no certainty as to how the Court, at summary judgment, or a jury

would come out on this issue. ¶57.

(b) Risks Concerning Negative Causation and Damages

Even assuming that Lead Plaintiff successfully established the elements of liability

at trial (and the verdict was upheld on appeal), Lead Plaintiff still faced substantial

obstacles to overcoming Defendants’ “negative-causation” defense and proving damages.

As set forth in the Johnson Declaration, in raising a negative causation defense,

Defendants would likely argue that the alleged materially misleading statements in the

Offering materials did not cause a substantial portion of the damages Lead Plaintiff’s

claimed, because most of the decline in the stock price after the Offering was not caused

by the alleged omissions. Lead Plaintiff alleges that Sprouts revealed the existence of the

deflationary trend in the price of the produce, and the negative impact it had on the

Company’s finances, on May 7, 2015 and August 6, 2015. Following these two

announcements, the Complaint alleges that the Company’s stock price dropped 9.8% and

11.62%, respectively. With respect to the May 7, 2015 stock drop, Defendants would

argue that Lead Plaintiff cannot recover for the decline that took place between the

Offering and May 7, 2015 because Lead Plaintiff would not be able to point to any

corrective disclosure prior to the market close on May 7, 2015. Defendants would also

argue that Lead Plaintiff cannot recover the full amount of the decline that occurred

following the May 7, 2015 corrective disclosure because the drop in price was only partly



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due to the produce price deflation; indeed, there were other reasons for the lower than

projected sales growth, as evidenced by industry-wide stock declines in comparable

grocery stores’ securities. Finally, Defendants would argue that Lead Plaintiff cannot

recover anything for declines after May 7, 2015 because the negative news regarding the

deflationary price trend was fully revealed on May 7, 2015. The August 6, 2015 alleged

corrective disclosure, where Sprouts disclosed lower than expected sales for Q2 and

lowered its full-year sales guidance, therefore, is inactionable. ¶¶53-54.

Lead Plaintiff’s consulting damages expert analyzed Defendants’ anticipated

negative causation arguments and estimated that that if such arguments were successful,

statutory aggregate damages would be approximately $69.8 million ($42 million in

connection with the May 7, 2015 disclosure and $27.8 million in connection with the

August 6, 2015 disclosure). This calculation assumes liability were established with

respect to the claims and that both disclosures were actionable. Of course, if only the

May 7 disclosure survived challenge, total damages would decrease substantially, to

approximately $42 million. ¶55.

As the case proceeded, the Parties’ respective damages experts would strongly

disagree with each other’s assumptions and their respective methodologies. Accordingly,

the risk that the jury would credit Defendants’ damages position over that of Lead

Plaintiff had considerable consequences in terms of the amount of recovery for the class,

even assuming liability was proven. See, e.g., Nguyen v. Radient Pharms. Corp., No.

SACV 11-00406 DOC (MLGx), 2014 WL 1802293, at *2 (C.D. Cal. May 6, 2014)

(approving settlement in securities case where “[p]roving and calculating damages

required a complex analysis, requiring the jury to parse divergent positions of expert

witnesses in a complex area of the law” and “[t]he outcome of that analysis is inherently

difficult to predict and risky”) (citation omitted).



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3. The Fairness of the Settlement in Light of the Best Possible Recovery and all the Risks of Litigation Support Approval of the Settlement

As described above, Lead Plaintiff’s consulting damages expert analyzed

Defendants’ anticipated negative causation arguments and estimated that that if those

arguments were successful, and assuming liability were established, statutory aggregate

damages would be approximately $69.8 million ($42 million in connection with the May

7, 2015 disclosure and $27.8 million in connection with the August 6, 2015 disclosure).

The Settlement, therefore, recovers approximately 13.6% of these damages and

approximately 23% if only the May 7, 2015 disclosure were found to be actionable. ¶¶6,

55. This recovery falls well above the range of reasonableness that courts regularly

approve in similar circumstances. See, e.g., McPhail v. First Command Fin. Planning,

Inc., No. 05cv179-IEG- JMA, 2009 WL 839841, at *5 (S.D. Cal. Mar. 30, 2009) (finding

a $12 million settlement recovering 7% of estimated damages was fair and adequate); In

re Omnivision Techs, Inc., 559 F. Supp. 2d 1036, 1042 (N.D. Cal. 2008) ($13.75 million

settlement yielding 6% of potential damages after deducting fees and costs was “higher

than the median percentage of investor losses recovered in recent shareholder class action

settlements”) (citation omitted); Int’l Bhd. of Elec. Workers Local 697 Pension Fund v.

Int’l Game Tech., Inc., No. 3:09-cv-00419-MMD-WGC, 2012 WL 5199742, at *3

(D. Nev. Oct. 19, 2012) (approving $12.5 million settlement recovering about 3.5% of

the maximum damages that plaintiffs believe could be recovered at trial and noting that

the amount is within the median recovery in securities class actions settled in the last few

years). The Settlement also presents a favorable recovery considering that, over the past

ten years, median securities settlement values have ranged from $6 million to $13

million. See Stefan Boettrich & Svetlana Starykh, Recent Trends in Securities Class

Action Litigation: 2018 Full-Year Review (NERA Jan. 29, 2019) at 30, Ex. 9.



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4. Complexity, Expense, and Duration of Continued Litigation

Final approval is also supported by the complexity, expense, and likely duration of

continued litigation. See Sabet, 2001 WL 1246860, at *3 (approving settlement and

noting that “[i]f this case were to proceed without settlement, the resulting litigation

would be complex, lengthy, and expensive”); see also Torrisi, 8 F.3d at 1376 (“the cost,

complexity and time of fully litigating the case all suggest that this settlement was fair”).

“Generally, unless the settlement is clearly inadequate, its acceptance and approval are

preferable to lengthy and expensive litigation with uncertain results.” In re Linkedin

User Privacy Litig., 309 F.R.D. 573, 587 (N.D. Cal. 2015) (citation omitted). See also

amendment to Rule 23(e)(2)(C)(i) (codifying the measure of adequacy by, among other

things, “the costs, risks, and delay of trial and appeal”).

Here, at every turn, the litigation raised difficult legal and factual issues that

required creativity and sophisticated analysis. The complexity, expense, and duration of

continued litigation through further briefing on class certification, summary judgment,

preparing and trying the case before a jury, subsequent post-trial motion practice, and a

likely appeal of the Court’s rulings on class certification, summary judgment, post-trial

motions, and a jury verdict would be significant. Barring a settlement, there is no

question that this case would be litigated for years, taking a considerable amount of court

time and costing millions of additional dollars, with the possibility that the end result

would be no better for the class, and might be worse. See Destefano v. Zynga Inc., No.

12-04007-JSC, 2016 WL 537946, at *10 (N.D. Cal. Feb. 11, 2016) (“continuing litigation

would not only be costly – representing expenses that would take away from any ultimate

classwide recovery – but would also delay resolution and recovery for Settlement Class

Members”).

The Settlement, therefore, provides sizeable and tangible relief to the Settlement

Class now, without subjecting Settlement Class Members to the risks, duration, and

expense of continuing litigation.



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5. Amount of Opposition to the Settlement

Pursuant to the Preliminary Approval Order, the Court-appointed Claims

Administrator, A.B. Data, Ltd. (“A.B. Data”), began mailing copies of the Notice and

Claim Form to potential Settlement Class Members and nominees on February 25, 2019.

See Ex. 3 at ¶¶2-6. As of April 22, 2019, A.B. Data has mailed a total of 71,145 copies

of the Notice Packet (consisting of the Notice and Claim Form) to potential Settlement

Class Members and their nominees. Id. at ¶9. In addition, a Summary Notice was

published in Investor’s Business Daily and transmitted over the internet using PR

Newswire on March 11, 2019. Id. at ¶10. The Notice set out the essential terms of the

Settlement and informed potential Settlement Class Members of, among other things,

their right to opt out of the Settlement Class or object to any aspect of the Settlement, as

well as the procedure for submitting Claim Forms. While the May 10, 2019 deadline set

by the Court for Settlement Class Members to exclude themselves or object has not yet

passed, to date, there have been no objections to the Settlement or the Plan of Allocation

and no requests for exclusion from the Settlement Class. As provided in the Preliminary

Approval Order, Lead Plaintiff will file reply papers on May 24, 2019, addressing all

requests for exclusion and any objections that may be received.

6. Stage of the Proceedings

The stage of the proceedings and the amount of discovery completed are also

factors courts consider in determining the fairness, reasonableness, and adequacy of a

settlement. See Sabet, 2001 WL 1246860, at *2; Mego, 213 F.3d at 459.

At the time the Parties agreed to settle, Lead Plaintiff and Lead Counsel had a

thorough and realistic understanding of the strengths and weaknesses of the claims and

defenses asserted. The Action has been hotly contested from its inception, more than two

years ago. As a result, Lead Plaintiff’s and Lead Counsel’s knowledge of the strengths

and weaknesses of the claims alleged and the stage of the proceedings support the

Settlement. This knowledge is based on, among other things, Lead Counsel’s thorough



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investigation before filing the Complaint; the briefing on Defendants’ removal challenge

that included litigation in the District Court and the Ninth Circuit; the briefing and order

on Defendants’ stay motion and comprehensive motion to dismiss the Complaint;

extensive and diligent fact discovery, including analyzing approximately 62,000 pages of

discovery documents produced by Defendants and a third party; and thorough settlement

discussions that included a mediation session and the exchange of mediation statements.

See generally Johnson Declaration at §§III-V.

In sum, Lead Plaintiff had a full understanding of the likelihood of success and the

potential recovery at trial at the time the Settlement was entered into. See Sabet, 2001

WL 1246860, at *2 (approving settlement where the “facts demonstrate that the Plaintiff

and Class Counsel were sufficiently informed to negotiate, executed, and recommend

approval of the Settlement”); Eisen v. Porsche Cars N. Am., Inc., No. 2:11-cv-09405-

CAS-FFMx, 2014 WL 439006, at *4 (C.D. Cal. Jan. 30, 2014) (approving settlement

when record established that “all counsel had ample information and opportunity to

assess the strengths and weaknesses of their claims and defenses”).

II. THE COURT SHOULD GRANT FINAL CERTIFICATION OF THE SETTLEMENT CLASS

The Court previously granted preliminary class certification for settlement

purposes. See Preliminary Approval Order at 2-4. Nothing has occurred since then to

cast doubt on whether the applicable prerequisites of Rule 23 of the Arizona Rules of

Civil Procedure are met. For all the reasons stated in Lead Plaintiff’s Motion for

Preliminary Approval of Proposed Class Action Settlement and Memorandum of Points

and Authorities in Support Thereof Law and in the Court’s Preliminary Approval Order,

Lead Plaintiff requests that the Court reaffirm its determinations and finally certify the

Settlement Class for purposes of carrying out the Settlement pursuant to Rules 23(a) and

(b)(3) of the Arizona Rules of Civil Procedure, appoint PERS as Class Representative,

and appoint Labaton Sucharow LLP as Class Counsel and James Christian, PLC as

Liaison Counsel.



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III. THE PLAN OF ALLOCATION FOR DISTRIBUTING RELIEF TO THE SETTLEMENT CLASS IS FAIR, ADEQUATE, AND REASONABLE AND SHOULD BE APPROVED

At the final Settlement Hearing, the Court will be asked to approve the proposed

Plan of Allocation for distributing the proceeds of the Settlement to eligible claimants.

See also Rule 23(e)(2)(C)(ii) (court should consider whether the relief is adequate, taking

into account the “effectiveness of any proposed method of distributing relief to the class,

including the method of processing class-member claims”).

The proposed Plan of Allocation, which is reported in full in the Notice, was

drafted with the assistance of Lead Plaintiff’s consulting damages expert. It is designed

to equitably distribute the Settlement proceeds among the members of the Settlement

Class who were allegedly injured by Defendants’ alleged misrepresentations and who

submit valid Claim Forms that are approved for payment. The plan is consistent with the

statutory measure of damages under Section 11.

As detailed in the Johnson Declaration, the Claims Administrator will calculate

claimants’ “Recognized Losses” using the transactional information provided by

claimants in their claim forms, which can be mailed to the Claims Administrator,

submitted online using the settlement website, or, for large investors, with hundreds of

transactions, via e-mail to the Claims Administrator’s electronic filing team. Because

most securities are held in “street name” by the brokers that buy them on behalf of

clients, the Claims Administrator, Lead Counsel, and Defendants do not have Settlement

Class Members’ transactional data and a claims process is required. Because the

Settlement does not recover 100% of alleged damages, the Claims Administrator will

determine each eligible claimant’s pro rata share of the Net Settlement Fund based upon

each claimant’s total Recognized Losses. ¶68.

In general, the Recognized Loss Amounts calculated under the Plan are based on

the statutory formula for damages under Section 11(e) of the Securities Act, 15 U.S.C.

§77k(e). Using the Plan of Allocation, the Claims Administrator will calculate a



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Recognized Loss Amount for each purchase of Sprouts common stock pursuant or

traceable to the Offering that is listed in the Claim Form and for which adequate

documentation is provided. Purchases will be considered pursuant or traceable to the

Offering if either (i) the shares were purchased during the Relevant Period of March 4,

2015 through March 10, 2015, inclusive, at a price of $35.30 per share; or (ii) the

claimant provides adequate documentation tracing the purchase of shares to the March

2015 Offering.7 ¶69.

Once the Claims Administrator has processed all submitted claims, notified

claimants of deficiencies or ineligibility, processed responses, and made claim

determinations, distributions will be made to eligible claimants in the form of checks and

wire transfers. After an initial distribution of the Net Settlement Fund, if there is any

balance remaining in the Net Settlement Fund (whether by reason of tax refunds,

uncashed checks or otherwise) after at least six (6) months from the date of initial

distribution, Lead Counsel will, if feasible and economical, re-distribute the balance

among eligible claimants who have cashed their checks. These re-distributions will be

repeated until the balance in the Net Settlement Fund is no longer feasible to distribute.

See Stipulation ¶24. Any balance that still remains in the Net Settlement Fund after re-

distribution(s), which is not feasible or economical to reallocate, after payment of any

outstanding Notice and Administration Expenses or Taxes, shall be contributed to a non-

sectarian, not-for-profit charitable organization(s) serving the public interest designated

by Lead Plaintiff and approved by the Court. Id.

* * *

For all the foregoing reasons, it is respectfully requested that the Court finally

approve the proposed Settlement, certify the Settlement Class, and approve the proposed

Plan of Allocation.

7 March 4, 2015 is the date of the Form S-1 Registration Statement for the Offering

and March 5, 2015 is the date of the Offering’s Prospectus Supplement.



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IV. THE FEE AND EXPENSE APPLICATION SHOULD BE APPROVED

A. Counsel Are Entitled to an Award of Attorneys’ Fees in the Amount of 17% from the Common Fund

It is well settled that attorneys who represent a class and achieve a benefit for class

members are entitled to a reasonable fee as compensation for their services. The

Supreme Court has recognized that “a lawyer who recovers a common fund for the

benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee

from the fund as a whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) (citation

omitted); see also Kerr v. Killian, 197 Ariz. 213, 217–18, 3 P.3d 1133, 1137–38 (Ct.

App. 2000) (recognizing the common fund doctrine). “The common fund doctrine allows

a plaintiff to recover attorneys’ fees from a common fund that the plaintiff has created for

the benefit of a discernable group.” Steer v. Eggleston, 202 Ariz. 523, 526, 47 P.3d 1161,

1164 (Ct. App. 2002) (citation omitted).

“The purpose of the doctrine is to compensate counsel for producing such benefits

and to preclude the unjust enrichment of those who receive the benefits.” Kerr, 197 Ariz.

at 218, 3 P.3d at 1138; see also In re Wash. Pub. Power Supply Sys. Sec. Litig., (WPPSS)

19 F.3d 1291, 1300 (9th Cir. 1994), aff’d in part, Class Plaintiffs v. Jaffe Schlesinger,

P.A., 19 F.3d 1306 (9th Cir. 1994) (“[T]hose who benefit from the creation of the fund

should share the wealth with the lawyers whose skill and effort helped create it”). “The

common fund doctrine is based on an equitable principle of allocating attorney fees

among the benefited group, not shifting them to the opposing party.” Burke v. Ariz. State

Ret. Sys., 206 Ariz. 269, 273, 77 P.3d 444, 448 (Ct. App. 2003). Indeed, “the common

fund doctrine typically applies when: (1) the suit confers a substantial benefit; (2) the

benefit goes to members of an ascertainable class; and (3) ‘the court’s award would

spread the costs proportionately among the beneficiaries....’” Charles I. Friedman, P.C.

v. Microsoft Corp., 213 Ariz. 344, 351, 141 P.3d 824, 831(Ct. App. 2006) (citing Arizona

Attorneys’ Fees Manual, § 6.3.2.).



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B. Reasonable Percentage of the Fund Recovered Is the Appropriate Method for Awarding Attorneys’ Fees in Common Fund Cases

“Under this [common fund] doctrine, a fee award may be calculated as a

percentage of the fund created or by using the hourly lodestar method.” Burke, 206 Ariz.

at 272, 77 P.3d at 447; WPPSS, 19 F.3d at 1296 (same). However, in Blum v. Stenson,

465 U.S. 886 (1984), the Supreme Court recognized that under the common fund doctrine

a reasonable fee may be based “on a percentage of the fund bestowed on the class. . . .”

Id. at 900 n.16.

Courts have consistently recognized that where a common fund has been created

for the benefit of a class as a result of counsel’s efforts, the award of counsel’s fees on a

percentage-of-the fund basis is the preferred approach. See, e.g., Baptist Found. of

Arizona v. Arthur Andersen LLP, No. CV 1999-019093, 2002 WL 34721554 (Ariz.

Super. Ct. Maricopa Cty. Nov. 8, 2002) (‘“[t]he percentage-of-recovery method is

generally favored in cases involving a common fund, and is designed to allow courts to

award fees from the fund ‘in a manner that rewards counsel for success and penalizes it

for failure’”) (quoting In re Prudential Ins. Co. Am. Sales Practices Litig., 148 F.3d 283,

333 (3d Cir. 1998)).

The Ninth Circuit has expressly and repeatedly approved the use of the percentage

method in common fund cases. See, e.g., Paul, Johnson, Alston & Hunt v. Graulty, 886

F.2d 268 (9th Cir. 1989); Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d

1301 (9th Cir. 1990); Torrisi, 8 F.3d at 1370; and Vizcaino v. Microsoft Corp., 290 F.3d

1043 (9th Cir. 2002).

The rationale for compensating counsel in common fund cases on a percentage

basis is sound. Principally, it more closely aligns the lawyers’ interest in being paid a fair

fee with the interest of the class in achieving the maximum possible recovery in the

shortest amount of time. Indeed, one of the nation’s leading scholars in the field of class

actions and attorneys’ fees, Professor Charles Silver of the University of Texas School of

Law, has concluded that the percentage method of awarding fees is the only method of



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fee awards that is consistent with class members’ due process rights. Professor Silver

notes:

The consensus that the contingent percentage approach creates a closer harmony of interests between class counsel and absent plaintiffs than the lodestar method is strikingly broad. It includes leading academics, researchers at the RAND Institute for Civil Justice, and many judges, including those who contributed to the Manual for Complex Litigation, the Report of the Federal Courts Study Committee, and the report of the Third Circuit Task Force. Indeed, it is difficult to find anyone who contends otherwise. No one writing in the field today is defending the lodestar on the ground that it minimizes conflicts between class counsel and absent claimants. In view of this, it is as clear as it possibly can be that judges should not apply the lodestar method in common fund class actions. The Due Process Clause requires them to minimize conflicts between absent claimants and their representatives. The contingent percentage approach accomplishes this.

Charles Silver, Class Actions In The Gulf South Symposium, Due Process and the

Lodestar Method: You Can’t Get There From Here, 74 Tul. L. Rev. 1809, 1819-20

(2000) (emphasis added and footnotes omitted).

However, regardless of the method applied, an attorneys’ fee award must be

reasonable under the circumstances before the reviewing court and courts often utilize a

“lodestar cross-check” to evaluate a percentage fee request. Vizcaino, 290 F.3d at 1047

(affirming use of percentage method and applying the lodestar method as a cross-check).

C. The Requested Fee of 17% of the Settlement Fund Would Be Reasonable in this Case

In determining the reasonableness of a fee request, Arizona courts typically

consider the following basic factors: (1) the time and labor of counsel required; (2) skill

needed to perform the services and experience, reputation and ability of the lawyers

performing the services; (3) fees awarded in similar cases; (4) the amount involved and

the results obtained; and (5) the degree of risk. See Charles I. Friedman, P.C., 213 Ariz.

at 353, 141 P.3d at 833; Baptist Found. of Arizona, 2002 WL 34721554 (noting factors

the court should consider in assessing counsel’s fee request, including quality and skill of

attorneys, risk of non-recovery, contingent risk of the litigation, and the results achieved);



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cf. Vizcaino, 290 F.3d at 1048-50 (considering factors in assessing fee request in a

common fund case and noting that these factors should not be used as a rigid checklist or

weighed individually, but, rather, should be evaluated in light of the totality of the

circumstances). As set forth below, an analysis of the relevant factors militate in favor of

approving the requested 17% fee.

1. Time and Labor Expended on the Action

The time and effort expended by Plaintiffs’ Counsel in prosecuting the Action and

achieving the Settlement support the requested fee. As set forth in greater detail in the

Johnson Declaration, Plaintiffs’ Counsel, among other things: (i) conducted a thorough

investigation concerning the alleged misrepresentations and omissions made by

Defendants in connection with the Company’s Offering, including gathering and

analyzing information about price indices, vegetable prices, price inflation and deflation,

and shipping and freight information related to fresh produce; (ii) prepared and filed a

detailed amended class action Complaint; (iii) overcame a removal challenge that

included litigation in the District Court and the Ninth Circuit; (iv) successfully opposed

Defendants’ motion to stay the case; (v) researched and drafted an opposition to

Defendants’ comprehensive motion to dismiss the Complaint, after which the Court

entered an Order that granted in part, and denied in part, Defendants’ motion; (vi) moved

for class certification; (vii) engaged in extensive and diligent fact discovery, including

analyzing approximately 62,000 pages of discovery documents produced by Defendants

and a third party; (viii) consulted with experts on damages and causation issues; and (ix)

engaged in settlement discussions under the guidance of an experienced Mediator. See

generally Johnson Declaration at §§III-V.

In light of the above efforts, Plaintiffs’ Counsel expended more than 3,233 hours

prosecuting this Action with a lodestar value of $1,876,113.00. See Ex. 7 (Summary

Table). At all times, Lead Counsel took care to staff the matter efficiently and to avoid

duplication of effort. It is respectfully submitted that the effort expended in this litigation



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was proportional to the issues involved. The bulk of Plaintiffs’ Counsel’s efforts was

concentrated in the hands of six attorneys, whose work comprised 75% of the time in the

case; moreover almost 50% of the time was spent by just two attorneys. See Exs. 4-A, 5-

A, and 6-A; see also Fulton Homes Corp. v. BBP Concrete, 214 Ariz. 566, 570, 155 P.3d

1090, 1094 (Ct. App. 2007).8 Plaintiffs’ Counsel’s efforts for the benefit of the

Settlement Class will continue, if the Court approves the Settlement. Counsel will

continue to work through the settlement administration process, assist Settlement Class

Members, and distribute the Settlement proceeds, without seeking any additional

compensation.

Based on Plaintiffs’ Counsel’s hourly rates, the total combined “lodestar” is

$1,876,113.00 for work through April 1, 2019, meaning that the requested fee of

$1,615,000, if awarded, would represent a negative “multiplier” of 0.86 or be 86% of

Plaintiffs’ Counsel’s combined lodestar, notwithstanding that fees providing for a

multiple on counsel’s lodestar are frequently awarded. See Exs. 4-A, 5-A, 6-A, and 7.

Courts in Arizona have recognized that “the superior court has authority to use a

multiplier to enhance a lodestar in a common fund case” and that such multiplier “can be

used, primarily to compensate class counsel for the risks in undertaking and conducting

the litigation.” Charles I. Friedman, P.C., 213 Ariz. at 352, 353, 144 P.3d at 832, 833.

Indeed, in Charles I. Friedman, the Court of Appeals of Arizona found no abuse

of discretion in the superior court’s selection of a 3.42 multiplier, given the degree of risk

and the results obtained. Id. at 354, 834. Likewise, the Ninth Circuit has recognized that

attorneys in common fund cases are frequently awarded a multiple of their lodestar,

rewarding them “for taking the risk of nonpayment by paying them a premium over their

normal hourly rates for winning contingency cases.” Vizcaino, 290 F.3d at 1051 (citation

omitted). For example, the district court in Vizcaino approved a fee that reflected a

8 Plaintiffs’ Counsel have submitted individual firm declarations attesting to each

firm’s time and expenses in the Action.



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multiple of 3.65 times counsel’s lodestar. Id. The Ninth Circuit affirmed, holding that

the district court correctly considered the range of multiples applied in common fund

cases, and noting that a range of lodestar multiples from 1.0 to 4.0 are frequently

awarded. Id.; see also Steiner v. Am. Broad. Co., 248 F. App’x. 780, 783 (9th Cir. 2007)

(“[this multiplier] falls well within the range of multipliers that courts have allowed”)

(citation omitted).

Courts have noted that a percentage fee that falls below counsel’s lodestar supports

the reasonableness of the award. See, e.g., In re Portal Software, Inc. Sec. Litig., No. C-

03-5138 VRW, 2007 WL 4171201, at *16 (N.D. Cal. Nov. 26, 2007) (“negative

multiplier suggest[s] that the requested percentage based fee is fair and reasonable”); In

re Amgen Inc. Sec. Litig., Case No. CV 07-2536 PSG (PLAx), 2016 WL 10571773, at *9

(C.D. Cal. Oct 25, 2016) (same); In re Biolase, Inc. Sec. Litig., Case No. SACV 13-1300-

JLS (FFMx), 2015 WL 12720318, at *8 (C.D. Cal. Oct. 13, 2015) (same). Moreover, a

negative multiplier, like the negative multiplier here, means that Plaintiffs’ Counsel is

seeking to be paid “for only a portion of the hours that they expended on the action.”

Amgen, 2016 WL 10571773, at *9.

With respect to Plaintiffs’ Counsel’s hourly rates, which were used to calculate the

lodestar, they range from $400 to $985 for partners, $600 to $675 for of counsels, and

$375 to $675 for associates.9 See Exs. 4-A, 5-A, and 6-A. Plaintiffs’ Counsel’s blended

hourly rate for all attorneys is $608. ¶79.

It is respectfully submitted that the hourly rates used in Plaintiffs’ Counsel’s

lodestar calculation are reasonable in light of prevailing market rates for lawyers with

comparable levels of experience and expertise in securities litigation and other complex

9 The Supreme Court and other courts have held that the use of current rates is proper

since such rates compensate for inflation and the loss of use of funds. See Missouri v. Jenkins, 491 U.S. 274, 283-84 (1989); Rutti v. Lojack Corp. Inc., No. SACV 06-350 DOC JCX, 2012 WL 3151077, at *11 (C.D. Cal. July 31, 2012) (“it is well-established that counsel is entitled to current, not historic, hourly rates”) (citing Jenkins, 491 U.S. at 284).



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class action litigation. Lead Counsel submits that Plaintiffs’ Counsel’s rates are less than,

or comparable to, those used by peer defense-side law firms litigating matters of similar

magnitude. Sample defense firm rates in 2018, gathered by Labaton Sucharow from

bankruptcy court filings nationwide, often exceeded these rates. See ¶79; Ex. 8 (table

aggregating hourly rates of more than a dozen defense firms).

Accordingly, the amount of time and effort devoted to this Action by Plaintiffs’

Counsel and the efficient and effective management of the litigation confirm that the fee

award requested is reasonable.

2. Experience, Reputation, Ability of Counsel, and the Skill They Displayed in the Litigation

The skill, experience, reputation, and ability of the attorneys who prosecuted this

case also support the requested fee award. Courts have recognized that the “prosecution

and management of a complex national class action requires unique legal skills and

abilities.” In re Heritage Bond Litig., No. 02-ML-1475-DT (RCX), 2005 WL 1594389,

at *12 (C.D. Cal. June 10, 2005) (citation omitted). Lead Counsel Labaton Sucharow

LLP has earned a national reputation for excellence through many years of litigating

complex civil actions, particularly the prosecution of securities class actions. As set forth

in the firm résumés filed concurrently herewith, Plaintiffs’ Counsel’s experience,

resources, and high-quality attorneys have allowed them to obtain significant recoveries

throughout the country on behalf of their clients. See Exs. 4-C, 5-C, and 6-C.

The quality of opposing counsel is also important in evaluating the quality of the

work done by Plaintiffs’ Counsel. See, e.g., In re Equity Funding Corp. Sec. Litig., 438

F. Supp. 1303, 1337 (C.D. Cal. 1977). Plaintiffs’ Counsel were opposed in this Action

by experienced and skilled counsel from the law firms of Morgan, Lewis & Bockius LLP,

Beyers Farrell PLLC, O’Melveny & Myers LLP, Shearman & Sterling LLP, and Lewis

Roca Rothgerber Christie LLP, all excellent law firms with well-deserved reputations for

vigorous advocacy on behalf of their clients. In the face of such knowledgeable and

experienced opposition, Plaintiffs’ Counsel were able to develop a case that was



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sufficiently strong to persuade Defendants to settle the case for an amount that Lead

Counsel believe is highly favorable to the Settlement Class.

3. Awards Made in Similar Cases

Lead Counsel is applying for a fee award of 17% of the Settlement Fund. This

request is below the 25% benchmark followed by many courts in Arizona and on the

Ninth Circuit. See, e.g., Baptist Found. of Arizona, 2002 WL 34721554 (noting the 25%

“benchmark” percentage generally applicable to common fund cases). Indeed, in Charles

I. Friedman, P.C., the Court awarded a fee of 33% to a $104.6 million settlement, a much

larger settlement than the settlement here, and noted that the amount is not far “from the

range of benchmark percentages used in these types of actions.” 213 Ariz. at 355, 144

P.3d at 835 (noting how courts “apply a reasonable percentage method, setting a

benchmark percentage usually between 20 percent to 30 percent of the settlement”); see

also Larson v. Insys Therapeutics Inc., et al., No. 14-cv-01043-PHX-GMS, slip op. at 7

(D. Ariz. Dec. 7, 2015) (awarding 27.5% of $6.125 million settlement) (Ex. 12); Shapiro

v. Matrixx Initiatives, Inc., et al., No. CV-09-1479-PHX-ROS, slip op. at 2 (D. Ariz.

Sept. 6, 2013) (awarding 25% of $4.5 million settlement) (Ex. 12); In re Amkor Tech.

Inc. Sec. Litig., No. CV 07-00278, slip op. at 2 (D. Ariz. Nov. 18, 2009) (awarding 25%

of $11.25 million settlement fund) (Ex. 12); In re Amerco Sec. Litig., No. Civ-04-2182,

slip op. at 1 (D. Ariz. Nov. 2, 2006) (awarding 30% of $7 million settlement fund) (Ex.

12).

Moreover, well regarded empirical studies also support the overall reasonableness

of the requested 17% percentage fee. In a study by Professors Theodore Eisenberg, of

Cornell Law School, and Geoffrey Miller, of New York University, of attorneys’ fees

awarded in class action settlements from 1993 to 2008, the average fee in securities

settlements was 23% and the median was 25%. See Theodore Eisenberg & Geoffrey P.

Miller, Attorney Fees and Expenses in Class Action Settlements: 1993-2008, 7 J.

Empirical Legal Stud. 248, 262 (2010), Ex. 10. For settlements between $8.7 million and



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$14.3 million, the average fee was 23.8% and the median was 25%, with a standard

deviation of 8.1. Id. at 265. Similarly, in a study by Professor Brian Fitzpatrick,

Vanderbilt Law School, of every federal class action settlement in 2006 and 2007,

Professor Fitzpatrick found that the average fee award in securities settlements was

24.7% and the median was 25%. See Brian T. Fitzpatrick, An Empirical Study of Class

Action Settlements and Their Fee Awards, 7 J. Empirical Legal Stud. 811, 835 (2010),

Ex. 11. Additionally, a recent analysis by NERA Economic Consulting of securities class

action settlements found that during 2014-2018, the median attorneys’ fee award was

30% for settlements of between $5 million and $10 million. See Ex. 9 at 41.

In sum, the percentage fee requested here is reasonable and below percentage fee

awards in Arizona and in connection with similar settlements.

4. The Result Achieved

Courts have consistently recognized that the result achieved is an important factor

to be considered in making a fee award. Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)

(“most critical factor is the degree of success obtained”). Lead Counsel has achieved a

substantial recovery of $9.5 million for the benefit of the Settlement Class, which, as

explained above, represents a significant portion of likely recoverable damages. ¶¶6, 55.

5. The Risks of the Litigation

Plaintiffs’ Counsel undertook this Action on a contingent-fee basis, assuming a

significant risk that the Action would yield no recovery and leave them uncompensated.

It has long been recognized that attorneys are entitled to a premium when their

compensation is contingent in nature. See Vizcaino, 290 F.3d at 1048-50; see also

Charles I. Friedman, P.C., 213 Ariz. at 353, 141 P.3d at 833 (considering the risk of non-

payment in assessing the fee award); Baptist Found. of Arizona, 2002 WL 34721554

(noting in consideration of requested fee that counsel expended monetary resources and

risked hours of attorney time with no guarantee of recovery).

The Supreme Court has emphasized that private securities actions such as this



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provide “‘a most effective weapon in the enforcement’ of the securities laws and are ‘a

necessary supplement to [SEC] action.’” Bateman Eichler, Hill Richards, Inc. v. Berner,

472 U.S. 299, 310 (1985) (citation omitted). Indeed, there have been many class actions

in which plaintiffs’ counsel took on the risk of pursuing claims on a contingency basis,

expended thousands of hours and dollars, yet received no remuneration whatsoever

despite their diligence and expertise. See ¶¶84-87. Lead Counsel tried In re JDS

Uniphase Securities Litigation, Case No. C-02-1486 CW (EDL) (N.D. Cal. Nov. 27,

2007) through to a disappointing verdict for the defendants, receiving no compensation

and expending millions of dollars in time and expenses. ¶86. See also In re Oracle

Corp. Sec. Litig., No. C 01-00988 SI, 2009 WL 1709050 (N.D. Cal. June 19, 2009), aff’d,

627 F.3d 376 (9th Cir. 2010) (granting summary judgment to defendants after eight years

of litigation, and after plaintiff’s counsel incurred over $6 million in expenses and

worked over 100,000 hours, representing a lodestar of approximately $48 million). Lead

Counsel is aware of many other hard-fought lawsuits where, because of the discovery of

facts unknown when the case was commenced, changes in the law during the pendency

of the case, or a decision of a judge or jury following a trial on the merits, excellent

professional efforts by members of the plaintiff’s bar produced no fee for counsel. See,

e.g., Ward v. Succession of Freeman, 854 F.2d 780 (5th Cir. 1998) (reversing plaintiffs’

jury verdict for securities fraud); Robbins v. Koger Props., Inc., 116 F.3d 1441 (11th Cir.

1997) (reversing $81 million jury verdict and dismissing case with prejudice); Anixter v.

Home-Stake Prod. Co., 77 F.3d 1215 (10th Cir. 1996) (overturning plaintiffs’ verdict

obtained after two decades of litigation); ¶87. Even plaintiffs who get past summary

judgment and succeed at trial may find a judgment in their favor overturned on appeal or

on a post-trial motion. See, e.g., Glickenhaus & Co. v. Household Int’l, Inc., 787 F.3d

408 (7th Cir. 2015) (reversing and remanding jury verdict of $2.46 billion after 13 years

of litigation on loss causation grounds and error in jury instruction under Janus Capital

Grp., Inc. v. First Derivative Traders, 131 S.Ct. 2296 (2011)); ¶87.



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Here, because Lead Counsel’s fee was entirely contingent, the only certainty was

that there would be no fee without a successful result and that such result would only be

realized after significant amounts of time, effort, and expense had been expended. Unlike

counsel for the Defendants, who were paid and reimbursed for their out-of-pocket

expenses on a current basis, Plaintiffs’ Counsel have received no compensation for their

efforts during the course of the Action. Indeed, absent this Settlement, there was a

sizeable risk that, at the end of the day, Settlement Class Members, as well as their

counsel, would obtain no recovery. Plaintiffs’ Counsel has risked non-payment of

$98,598.40 in expenses and $1,876,113.00 in time worked on this matter, knowing that if

its efforts were not successful, no fees or expenses would be paid.

Furthermore, Lead Plaintiff faced, and Lead Counsel resisted, formidable defenses

to liability and damages, and therefore, the risk of further litigation, is also a

consideration the Court should weigh when approving the requested fee. See, e.g.,

Charles I. Friedman, P.C., 213 Ariz. at 353, 144 P.3d at 833 (noting that the “superior

court properly focused on the degree of risk and the results obtained in pretrial motions in

its award”); see also Vizcaino, 290 F.3d at 1048 (noting “[r]isk is a relevant

circumstance” in awarding attorneys’ fees); In re Pac. Enters. Sec. Litig., 47 F.3d 373,

379 (9th Cir. 1995) (finding that attorneys’ fees were justified “because of the complexity

of the issues and the risks”). Here, as set forth in detail in the Johnson Declaration and as

noted above in Section I.B.2, there is no question that Lead Plaintiff faced substantial

litigation risks if the Action had not settled.

6. The Reaction of the Settlement Class

A total of 71,145 copies of the Notice and Claim Form have been sent to potential

Settlement Class Members and the Court-approved Summary Notice was published in

Investor’s Business Daily and transmitted over the internet using PR Newswire. See

¶¶61-62; Ex. 3 at ¶¶2-10. In addition, the Stipulation and Notice, among other

documents, were posted to a website dedicated to the Action



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(www.SproutsSecuritiesLitigation.com). ¶63; Ex. 3 at ¶12. Although the objection

deadline will not run until May 10, 2019, to date no objections to the requested amount of

attorneys’ fees and expenses have been received.10

V. PLAINTIFFS’ COUNSEL’S EXPENSES ARE REASONABLE AND WERE NECESSARY TO ACHIEVE THE BENEFIT OBTAINED

Plaintiffs’ Counsel have incurred expenses in the aggregate amount of $98,598.40

in prosecuting the Action. See Exs. 4-B, 5-B, and 6-B. These expenses are outlined in

Plaintiffs’ Counsel’s individual fee and expense declaration submitted to the Court

concurrently herewith. Id.

“Attorneys who created a common fund are entitled to the reimbursement of

expenses they advanced for the benefit of the class.” Vincent v. Reser, No. 11-3572,

2013 WL 621865, at *5 (N.D. Cal. Feb. 19, 2013) (citation omitted). In assessing

whether counsel’s expenses are compensable in a common fund case, courts look to

whether the particular costs are of the type typically billed by attorneys to paying clients

in the marketplace. Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (“Harris may

recover as part of the award of attorney’s fees those out-of-pocket expenses that ‘would

normally be charged to a fee paying client.’”) (citation omitted).

Here, the expenses sought by Plaintiffs’ Counsel are of the type that are charged to

hourly paying clients and, therefore, should be paid out of the common fund. One of the

main expenses here relates to work performed by Lead Plaintiff’s consulting damages

experts ($17,860.00 or approximately 20% of total expenses). As discussed in the

Johnson Declaration, the services of Lead Plaintiff’s consulting damages experts were

necessary for preparing estimates of damages, analyzing causation issues, and assisting

with the preparation of the Plan of Allocation. ¶94. Lead Counsel received crucial

advice and assistance from these experts throughout the course of the Action and utilized

10 Counsel will address any objections to the request for attorneys’ fees and expenses

in their reply papers, which will be filed with the Court by May 24, 2019.



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these experts in order to efficiently frame the issues, gather relevant evidence, make a

realistic assessment of provable damages, and structure a resolution of the Action.

Plaintiffs’ Counsel was also required to travel in connection with this Action and

incurred costs related to working meals, lodging, and transportation, which total

$20,527.92 or approximately 20% of aggregate expenses. This primarily included travel

to court hearings, the mediation, and to PERS offices in Mississippi. Any first class

airfare was reduced to economy rates. Such expenses are reimbursable. See In re

Immune Response Sec. Litig, 497 F. Supp. 2d 1166, 1177 (S.D. Cal. 2007)

(reimbursement for travel expenses . . . is within the broad discretion of the Court).

Lead Counsel seeks $25,232.93 (26% of total expenses) in litigation support

services, which were needed to host the electronic documents produced by Defendants

and to produce Lead Plaintiff’s records to Defendants.

Computerized research totals $8,823.51. These are the charges for computerized

factual and legal research services, including LexisNexis, Westlaw, Thomson, and

PACER. These services allowed counsel to perform media searches on the Company,

obtain analysts’ reports and financial data for the Company, and conduct legal research.

It is standard practice for attorneys to use LEXIS/Nexis and Westlaw to assist them in

researching legal and factual issues and reimbursement is proper. See Immune Response,

497 F. Supp. 2d at 1177. Lead Counsel also paid $11,120.00 in mediation fees assessed

by the mediator in this matter.

The other expenses for which Lead Counsel seek payment are the types of

expenses that are necessarily incurred in litigation and routinely charged to clients billed

by the hour. These expenses include, among others, duplicating costs, long distance

telephone and facsimile charges, court fees, and postage and delivery expenses.

In sum, Plaintiffs’ Counsel’s expenses, in an aggregate amount of $98,598.40,

were reasonable and necessary to the prosecution of the Action and should be approved.



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VI. LEAD PLAINTIFF’S REQUEST FOR A SERVICE AWARD

Lead Plaintiff PERS seeks a service award of $25,050, which is proportional to the

time that it dedicated to serving as Lead Plaintiff in the Action and ensuring that the

Settlement Class was adequately represented. The service and time devoted to this

Action by PERS are set forth in the declaration filed concurrently herewith. See Ex. 1. at

¶¶4-5, 9-10. Such awards have been provided by Courts in Arizona. See, e.g., Sabet,

2001 WL 1246860, at *3 (awarding lead plaintiff a payment of $5,000). In fact, courts

“routinely award such costs and expenses both to reimburse the named plaintiffs for

expenses incurred through their involvement with the action and lost wages, as well as to

provide an incentive for such plaintiffs to remain involved in the litigation and to incur

such expenses in the first place.” Hicks v. Morgan Stanley & Co., No. 01 Civ. 10071

(RJH), 2005 U.S. Dist. LEXIS 24890, at *30 (S.D.N.Y. Oct. 24, 2005). See also Insys

Therapeutics Inc., No. 14-cv-01043-PHX-GMS, slip op. at 7 (awarding lead plaintiff

$2,500) (Ex. 12); Matrixx Initiatives, Inc., et al., No. CV-09-1479-PHX-ROS, slip op. at

2 (awarding lead plaintiff a compensatory award of $4,000) (Ex. 12).

CONCLUSION

For all the foregoing reasons, Lead Plaintiff respectfully requests that the Court

finally approve the proposed Settlement, approve the proposed Plan of Allocation, finally

approve certification of the Settlement Class for purposes of the Settlement only, and

approve the Fee and Expense Application.

DATED: April 25, 2019 CHRISTIAN ANDERSON PLC By: /s/ James S. Christian James S. Christian, 023614 5050 North 40th Street, Suite 320 Phoenix, Arizona 85018 [email protected] James W. Johnson (admitted pro hac vice) Michael H. Rogers (admitted pro hac vice) James T. Christie (admitted pro hac vice)



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LABATON SUCHAROW LLP 140 Broadway New York, New York 10005 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 Email: [email protected] [email protected] [email protected] [email protected] Counsel for Plaintiff Public Employees’ Retirement System of Mississippi Hart L. Robinovitch (AZ SBN 020910) ZIMMERMAN REED LLP 14646 North Kierland Blvd., Suite 145 Scottsdale, Arizona 85254 Telephone: 480.348.6400 Facsimile: 480.348.6415 [email protected] Liaison Counsel for Plaintiff Public Employees’ Retirement System of Mississippi

Copy of the foregoing sent via eFiling system to:

Hon. Roger Brodman Maricopa County Superior Court 101 W. Jefferson, #413 Phoenix, AZ 85003-2243

Copy of the foregoing emailed on April 25, 2019 to:

Maureen Beyers AZ Bar. No. 017134 Beyers Farrell PLLC 99 East Virginia Avenue, Suite 220 Phoenix, AZ 85004 (602) 603-1521 [email protected]



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Susan F. DiCicco (admitted pro hac vice) Brian A. Herman (admitted pro hac vice) Morgan Lewis & Bockius LLP 101 Park Avenue New York, NY 10178-6000 (212) 309-6000 [email protected] [email protected]

Attorneys for Defendants Sprouts Farmers Market, Inc., J. Douglas Sanders, Amin N. Maredia, Donna Berlinski, Andrew S. Jhawar, Shon Boney, Joseph Fortunato, Lawrence P. Molloy, Steven H. Townsend

Jonathan Rosenberg Abby F. Rudzin O’Melveny & Myers LLP 7 Times Square New York, NY 10036 [email protected] [email protected]

Seth Aronson O’Melveny & Myers LLP 400 South Hope Street Los Angeles, CA 90071 [email protected]

Counsel for AP Sprouts Holdings, LLC, AP Sprouts Holdings (Overseas), L.P.

Jamie L. Halavais Lewis Roca Rothgerber Christie LLP 201 East Washington Street Suite 1200 Phoenix,AZ 85004 [email protected]



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Adam S. Hakki Agnes Dunogue Shearman & Sterling LLP 599 Lexington Avenue New York, NY 10022 [email protected] [email protected] Counsel for Barclays Capital Inc., and Morgan Stanley & Co. LLC

By: /s/ James S. Christian James S. Christian

james s. christian (sbn 023614) christian anderson plc and memo re...iii motion for final approval...

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