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LERACH COUGHLIN STOIA GELLERRUDMAN & ROBBINS LLP
JEFFREY W . LAWRENCE ( 166806)BING Z. RYAN (228641 )100 Pine Street, Suite 2600San Francisco , CA 94111Telephone : 415/288-4545415/288-4534 (fax)jlawrence@lerachlaw [email protected]
- and -WILLIAM S. LERACH (68581)JEFFREY D. LIGHT (159515)BRIAN O. O'MARA (229737)655 West Broadway , Suite 1900San Diego , CA 9210 1Telephone : 619/231-1058619/231-7423 (fax)[email protected] effl@lerachlaw . combomara@lerachlaw .com
Co-Lead Counsel for Plaintiffs
FEDERMAN & SHERWOODWILLIAM B. FEDERMAN120 N. Robinson, Suite 2720Oklahoma City, OK 73102Telephone : 405/235-1560405/239-2112 (fax)wfederman@aol .com
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNI A
SAN JOSE DIVISION
In re THORATEC CORP . SECURITIES )LITIGATION )
This Document Relates To : )
ALL ACTIONS. )
Master File No . 5 :04-cv-03168-RM W
CLASS ACTION
DECLARATION OF JEFFREY W .LAWRENCE IN SUPPORT OF LEADPLAINTIFF'S MOTION FOR FINALAPPROVAL OF CLASS ACTIONSETTLEMENT AND PLAN OFALLOCATION OF SETTLEMENTPROCEEDS ; AND LEAD COUNSEL'SMOTION FOR AN AWARD OFATTORNEYS' FEES ANDREIMBURSEMENT OF EXPENSE S
DATE: November 17, 2006TIME: 9:00 a .m.COURTROOM : The Honorabl e
Ronald M. Whyte
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TABLE OF CONTENTS
Page
I. PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
II . BACKGROUND OF THE ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III . FACTUAL INVESTIGATION AND DISCOVERY CONDUCTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
IV. SETTLEMENT NEGOTIATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
V. TERMS OF THE SETTLEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
VI. ANALYSIS OF THE FACTORS AFFECTING SETTLEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
VII. THE PLAN OF ALLOCATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
VIII . ATTORNEYS' FEES AND REIMBURSEMENT OF EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
IX. EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
X. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 7
DECL OF JEFFREY W. LAWRENCE IN SUPPORT OF MOTION FOR FINAL APPROVAL OF - j -CLASS ACTION SETTLEMENT AND AWARD OF FEES EXPENSES - 5 :04-cv-03168-RMW
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I, Jeffrey W. Lawrence, declare :
1 . I am a member of the law firm of Lerach Coughlin Stoia Geller Rudman & Robbin s
LLP ("Lerach Coughlin"), one of the law firms appointed by the Court as Lead Counsel for the Lead
Plaintiff and the Class, along with Federman & Sherwood . I was personally involved in all aspects
of the prosecution and settlement of the Litigation . The information set forth in this Declaration is
based on my personal knowledge and, if called to testify, I could and would competently testify
about these matters .
2 . This Declaration is submitted in support of the Court 's consideration of the fairness ,
reasonableness and adequacy of the settlement of the Litigation on the terms and conditions reflected
in the Stipulation of Settlement dated as of August 8, 2006 (the "Stipulation") ; the fairness of the
Plan of Allocation ; and the application of counsel for the Lead Plaintiff for an award of attorneys'
fees and reimbursement of expenses . The Stipulation provides for the payment of $3,375,000 which
has been deposited into escrow and is earning interest . This settlement, if approved by the Court,
will resolve the captioned action against all defendants . The defendants are Thoratec Corporation
("Thoratec" or the "Company"), D . Keith Grossman, M . Wayne Boylston and Jeffrey Nelson .
3 . This declaration sets forth the nature of the claims asserted, the principal proceedings
to date, the legal services provided by Lead Counsel, the settlement negotiations, and also
demonstrates why the settlement and Plan of Allocation are fair and in the best interests of the Class,
and why the application for attorneys' fees and expenses is reasonable and should be approved by
the Court .
1 . PRELIMINARY STATEMENT
4 . This case was carefully investigated and has been vigorously litigated since its
commencement. Lead Counsel reviewed and analyzed voluminous publicly filed documents,
financial reports, analysts' reports and press releases concerning Thoratec . In addition, Lead
Counsel and their in-house investigators spent hundreds of hours in locating and interviewing
numerous witnesses to develop evidence in order to provide the highly particularized level of detail
required for securities fraud pleadings in this Circuit . Lead Counsel also consulted with severa l
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I medical experts as well as damage experts, thoroughly researched the law pertinent to the claims and
defenses asse rted , and engaged in ongoing communications with the court-appointed Lead Plaintiff.
5 . These extensive efforts resulted in a detailed, comprehensive 90-paragraph complaint
describing the alleged fraud perpetrated on the Class . Defendants filed a motion to dismiss all
claims and Lead Plaintiff filed an opposition to the motion to dismiss . While the motion was
pending, defendants contacted Lead Counsel to discuss settlement . Several months after these
discussions began, the Court granted defendants' motion to dismiss with leave to amend . On June
15, 2006, after additional investigation, Lead Plaintiff filed a First Amended Consolidated Complaint
for Violation of the Federal Securities Laws ("First Amended Complaint") . After the Court issued
its order, counsel for the parties engaged in a previously arranged mediation of Lead Plaintiffs
claims on June 22, 2006, in front of the Honorable Nicholas H . Politan (Ret .) . Settlement
negotiations were arduous with extensive discussions among counsel for the parties at the mediation
session, and several private discussions between counsel for the parties taking place weeks before
the mediation .
6. Lead Counsel, in consultation with Lead Plaintiff, believe that even with additiona l
facts uncovered in their investigation that there was a substantial risk that all or significant portions
of the case could be dismissed with prejudice for failing to meet the heightened pleading standards
for securities actions, and that even if the First Amended Complaint was sustained and the case
proceeded to trial, there was a risk that the recoverable damages could be drastically reduced, or
even eliminated, resulting in no recovery for the Class .
7. In sum, this settlement is the product of extensive investigation, and aggressive
litigation and negotiation and takes into account the significant risks specific to this case . It was
negotiated on both sides by experienced counsel with a firm understanding of the strengths and
weaknesses of their clients' respective claims and defenses . The settlement confers an immediate
and substantial benefit on the Class and eliminates the risk of continued litigation under
circumstances where a favorable outcome was at great risk . It is respectfully submitted that under
these circumstances the settlement is in the best interest of the Class and should be approved as fair,
reasonable and adequate . The Court should also approve the Plan of Allocation of settlement
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proceeds and award attorneys' fees in the amount of 25% of the Settlement Fund for Lead Counsel's
efforts in creating this substantial benefit on behalf of the Class . In addition, counsel seek
reimbursement of expenses incurred in the prosecution of the Litigation in the amount of
$163,644.79. Counsel also seeks an award of $10,000 .00 for Lead Plaintiffs time and expenses in
representing the Class .
II. BACKGROUND OF THE ACTIO N
8 . In August 2004, Lerach Coughlin filed class action complaints in the United States
District Court for the Northern District of California against the defendants, alleging violations of
§ § 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule I Ob-5 promulgated thereunder,
on behalf of certain of its clients and a proposed class of persons who purchased Thoratec publicly
traded securities during the period April 28, 2004 through June 29, 2004 (the "Class Period") .
9 . This matter was brought as a securities fraud class action against Thoratec and its to p
I officers during the Class Period : D. Keith Grossman, Thoratec's President and CEO, M. Wayne
Boylston, Thoratec's Senior Vice President and CFO, and Jeffrey Nelson, Thoratec's President o f
the Cardiovascular Division .
10. Lead Plaintiff alleged that from April 28, 2004 through June 29, 2004, defendant s
were able to drive Thoratec's stock price up 25% and complete a Private Placement Notes Offering
raising over $143 million, by convincing the market that the Company's revenues for 2004 would be
between $190 and $200 million based upon the sale of 400 HeartMate units for Destination Therapy
("DT"). By projecting placement of 400 DT units in 2004, defendants told the market that Thoratec
had, and thus could, generate substantial income .
11 . Lead Plaintiff asserted that defendants had actual knowledge by April 27, 2004 that
Thoratec could not place 400 DT units or even 200 units by year's end and thus knew there was no
reasonable basis for the projection . To begin with, defendants only placed 42 DT units in all of
2003 . In 1 Q04 they placed 42 . Although that first quarter was a large step up from 2003, it was well
below the 100+ per quarter sales needed to achieve the 400 unit projection announced on April 27,
2004 . Indeed, given that the sales cycle was, by defendants' acknowledgment, 9-18 months, there
was no basis to believe that these multiples could be reached. Worse yet, the projection was made 1
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month into the second quarter in which only 34 units were ultimately sold. Even assuming that al l
134 units had been sold by April 27, 2004, Thoratec would have had to sell at least 85 DT additiona l
units in the balance of the second quarter .
12. Lead Plaintiff alleged that defendants knew Thoratec's DT sales numbers in real time
and that they admitted as much. During the April 27, 2004 conference call, analysts repeatedly
asked whether defendants were sure of the numbers and defendants consistently responded that they
were. At a minimum, defendants knew that sales were not accelerating to the 120 units per quarter
that Thoratec would need to reach 400 units after the slow 42 unit sales in 1 Q04 .
13 . Lead Plaintiff also asserted that there were additional facts known to defendants tha t
made achieving the projected sales impossible . In 2003, defendants had estimated the market for DT
to be as large as 100 ,000 patients annually in the United States alone . By 2004, medical
professionals had revised that to a small fraction , "probably 200 implants for destination therapy"
through 2006 . Thus, even with its purpo rted "monopoly" status , Thoratec 's DT target population
was extremely limited . Moreover , its LVAD DT had nearly 2-1/2 times more incidences of adverse
events than other optimum medical treatments which, even in 2004 , caused doctors to seek
additional testing to evaluate the therapy . Finally, in a study published in April 2004 , Blue Cross
and Blue Shield Association ("Blue Shield") concluded that implant therapy resulted in over
$800,000 in increased medical costs . In short, the size of the DT market , the expense referred to in
the Blue Shield study, the problems with the devices , and the fact that many of the hospitals were not
prescribing the devices , all added to the strong inference that defendants actually knew their 400 unit
projection was impossible to achieve and thus made without reasonable basis .
14. Lead Plaintiff alleged that the motive for the fraud became evident shortly after th e
April 27, 2004 conference call . On May 17, 2004, Thoratec announced a private placement of $125
million in Notes and sold a total of $143 million in Notes (including $18 .7 over-allotment) on June
8, 2004 . Defendants sought to keep the stock price up until the Notes Offering, which began on May
17, 2004, was completed .
15. Lead Plaintiff also alleged that on June 29, 2004, exactly three weeks later ,
defendants acknowledged what they had known since at least April 2004 : that the Company woul d
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not sell 400 DT units in 2004 and therefore had to cut its projection to 200 units . With that
admission, on June 30, 2004, Thoratec's stock lost $3 .68 per share, or 25%, in trading of over
11,000,000 shares . Ultimately, the Company failed to meet even its lowered projection, selling only
171 units by end of 2004 - 15% lower than even its reduced projection .
16. On November 24, 2004, the Court ordered the complaints consolidated under th e
I caption In re Thoratec Corp. Securities Litigation, Master File No. 5:04-cv-03168 -RMW. The
Court appointed Craig Toby as Lead Plaintiff and approved his selection of the law firms of Lerac h
Coughlin and Federman & Sherwood, as Lead Counsel in the Litigation .
17. On January 18, 2005, Lead Plaintiff filed a Consolidated Complaint for Violation o f
the Federal Securities Laws adding a significant amount of information obtained from his ongoin g
investigation .
18. On March 4, 2005, defendants filed a motion to dismiss all claims against all of th e
defendants. On April 18, 2005, Lead Plaintiff filed an opposition to defendants' motion to dismis s
and filed a corrected opposition to motion to dismiss on April 21, 2005 . Defendants filed their repl y
on May 23, 2005 and this Court heard arguments from the parties on June 17, 2005 .
19 . Several months after the motion was submitted, the parties began to discus s
I settlement . Those discussions resulted in scheduling a mediation for June 22, 2006 .
20 . On May 11, 2006, the Court granted defendants' motion to dismiss and gave plaintif f
leave to amend his complaint . On June 15, 2006, after additional investigation, Lead Plaintiff filed a
First Amended Complaint . The parties went to mediation on June 22, 2006 .
1 111 . FACTUAL INVESTIGATION AND DISCOVERY CONDUCTE D
21 . Counsel for Lead Plaintiff conducted an extensive investigation into the alleged frau d
perpetrated by defendants, including a detailed analysis of the claims of the Class and the possible
defenses defendants would raise in their motions to dismiss . The investigation included, inter alia,
reviewing and analyzing thousands of pages of Thoratec's public filings, annual reports, analyst
reports, press releases, conference call transcripts, media reports, consultation with medical industry
experts, and other public statements by the Company. In addition, Lead Counsel consulted with
medical and damage experts .
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22. The work related to the pre-filing investigation , review, drafting and final preparation
and filing of the complaints was labor-intensive. In that regard, Lead Plaintiff and Lead Counsel
were confronted with the requirements of Rule 9(b) of the Federal Rules of Civil Procedure, and the
heightened pleading standard imposed by the Private Securities Litigation Reform Act of 1995
("PSLRA") mindful of the fact that in this post-PSLRA environment, a greater percentage of cases
are being dismissed than ever before, amid defendants' constant attempts to push the envelope and
contours of the Ninth Circuit's In re Silicon Graphics Sec. Litig., 183 F.3d 970 (9th Cir. 1999)
decision. Moreover, because this case primarily involved forward-looking statements, the PSLRA
required Lead Plaintiff to plead a strong inference of actual knowledge on the part of defendants .
23 . In the face of this formidable challenge and a heightened risk of dismissal Lea d
Counsel spared no expense and marshaled considerable resources and time in the research,
investigation and uncovering of additional facts to meet the requirements of post-PSLRA pleading
standards . Hundreds of hours were spent by Lead Counsel and investigators in analyzing Thoratec's
financial reports and other public statements, finding and investigating other information about the
Company, its employees and its customers, interviewing witnesses, and otherwise analyzing the
facts, transactions and occurrences giving rise to the scheme to defraud that is described in the
complaints . Lead Counsel participated in the investigative effort, and counsel regularly discussed
the results of their investigative efforts with each other, their investigative team and with the Lead
Plaintiff. This collaborative effort greatly improved Lead Plaintiff s understanding of the fraud, and
resulted in many new avenues of inquiry being developed as the investigation moved forward .
24. Numerous witnesses were located and numerous issues were investigated as a resul t
of these efforts. Lead Counsel and their investigators conducted numerous detailed interviews with
former Thoratec employees and other medical professionals with knowledge of the facts giving rise
to this action . The information derived from these interviews related to all aspects of Thoratec's DT
device and its marketability and sales . The information obtained from these witnesses helped inform
and confirm the legal analysis of Thoratec's public statements, and lead to further avenues of
inquiry .
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25 . Lead Counsel's in-house investigators spent hundreds of hours locating and
developing the factual evidence that provided the backbone of Lead Plaintiff's detailed complaints .
I Lead Counsel spent many of hundreds of hours more in analyzing that evidence and directing furthe r
I investigative efforts necessary to establish detailed evidence of the fraud .
26 . Other investigative avenues were also pursued . Extensive background information
was developed about the Company, the industry, and the individual defendants, to assist Lead
Plaintiff in fully understanding the context in which the fraud arose . Other litigation involving the
defendants was also reviewed . Extensive legal and factual research was conducted to develop
additional potential bases of liability . Damage experts were consulted to obtain reliable estimates of
the potential recovery for the Class, and extensive analysis of potential loss causation issues was
undertaken .
27 . In sum, counsel for Lead Plaintiff diligently, skillfully and effectively pursued an d
obtained the facts needed to develop this case, as well as to ensure that the settlement is fair ,
adequate and reasonable .
IV. SETTLEMENT NEGOTIATIONS
28 . The parties negotiated this settlement over the course of several months. Lead
Counsel are actively engaged in complex federal civil litigation, particularly the litigation of
securities class actions . We believe that our reputations as attorneys who are unafraid to zealously
carry a meritorious case through the trial and appellate levels gave us a strong position in engaging
in settlement negotiations with defendants, even under the difficult and challenging circumstances
presented here .
29. Settlement negotiations began with several telephonic settlement discussions ,
allowing further insight into the parties' respective positions on the issues in the case, in which
defense counsel candidly discussed the strengths and weaknesses of their positions . Following these
initial telephonic meetings, the parties continued to discuss issues pertaining to the merits of the
case, and both sides prepared, exchanged, and discussed preliminary damage estimates reflecting
their assessment of the potential recovery by the Class .
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30. Formal negotiations between the parties commenced with a mediation before Judge
Politan on June 22, 2006, in New York City . The parties engaged in extensive discussions with each
other and the mediator , including detailed discussions regarding an assessment of the evidence that
would suppo rt their claims, and their calculations of the potential damages to be recovered . Prior to
the mediation , the part ies exchanged detailed mediation statements which highlighted the strengths
and weaknesses of the part ies' respective claims and defenses . After these extensive negotiations,
during which each party had a full oppo rtunity to hear and evaluate the position of the other, the
part ies re-evaluated their respective positions and were able to reach an agreement-in-principle on
the primary terms of a settlement, which formed the basis for the Stipulation .
31 . After further negotiations over the terms of the settlement, the parties signed and file d
the Stipulation requesting that the Court preliminarily approve the settlement . On September 8,
2006, the Court signed the Order Preliminarily Approving Settlement and Providing for Notice . The
Order preliminarily approved the settlement as set forth in the Stipulation and directed that notice be
given to Class Members .
32. Lead Plaintiff was involved throughout the settlement process and exchanged idea s
I and information with Lead Counsel prior to and during the mediation .
V. TERMS OF THE SETTLEMEN T
33 . As set forth in the Stipulation, the settlement provides for the resolution of th e
Litigation with respect to all defendants, in exchange for the payment of Three Million Thre e
Hundred Seventy-Five Thousand Dollars ($3,375, 000) (the "Sett lement Fund")
34. The settlement also provides opt-out rights for those who do not wish to participate i n
the settlement or objection rights for those who do not believe that all aspects of the settlement ar e
fair, reasonable, and adequate .
VI. ANALYSIS OF THE FACTORS AFFECTING SETTLEMEN T
35 . This se ttlement is the result of extensive arm's - length and mediator -assisted
negotiations between experienced counsel with direct involvement of the Lead Plaintiff. In view of
the extensive investigation conducted and the discussions that occurred during the settlement
negotiations, Lead Counsel have been able to identify the issues that are critical to the outcome of
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this case. Lead Counsel have considered the risks of litigation, the likelihood of getting past the
pleading stage and, if successful, the substantial risk, expense and length of time to prosecute the
litigation through trial and the inevitable subsequent appeals . Lead Counsel have also considered the
certain and immediate monetary benefit provided for by the settlement in light of the risk, expense,
delay and uncertainty of continued litigation. The Lead Plaintiff was a participant in this assessment
and was consulted with and kept apprised concerning the settlement negotiations . Lead Counsel
have concluded that the settlement presented to the Court for approval is fair and reasonable and
should be approved .
36. Our opinion is based on our understanding of the relevant facts, the nature of thi s
case , and our experience in litigating securities fraud class actions post -PSLRA. The factors taken
into account in reaching our opinion include : The substantial risks in pleading a strong inference of
scienter (here , actual knowledge ) to this Court' s satisfaction at the pleading stage and, if successful,
proving scienter at trial ; the substantial risks of proving actionable damages relating to some po rt ions
of the alleged fraud ; and the certainty of an immediate recovery versus the expense , delay and
substantial uncertainty of any recovery after years of litigation .
37. The Ninth Circuit has suggested that a district court evaluating the fairness of a
proposed class action settlement may consider some or all of the following factors: (a) the strength
of the plaintiffs' case ; (b) the complexity, expense and likely duration of the litigation; (c) the risk of
maintaining class action status through the trial ; (d) the amount offered in settlement ; (e) the stage of
the proceedings and the amount of discovery completed ; (f) the experience and views of class
counsel ; and (g) the reaction of the class to the settlement. Based on an analysis of these factors, the
terms of the settlement before the Court are fair, reasonable and adequate and should be approved .
38. While each of these factors militates in favor of approval, the settlement in large par t
reflects an objective analysis of the strength of Lead Plaintiff' s case balanced against the risks of
further litigation , including an evaluation of the amount offered in sett lement as measured against the
potential damages that could be recovered at the conclusion of litigation, taking into account
significant risks that could have reduced the amount of recoverable damages even after a successful
result on liability .
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39. For example, with respect to the first factor, defendants' own admission that Thorate c
could not sell 400 units by year-end and thus had no reasonable basis for their projection, provided a
very strong indication of fraud, as such actions could only have resulted from deliberate misconduct .
However, throughout the litigation, defendants have vigorously argued that Lead Plaintiff failed to
adequately allege that any of the statements were false, defendants' statements were not false when
made and Lead Plaintiff failed to adequately allege scienter . While Lead Plaintiff does not concede
that he would have been unable to establish that defendants knowingly made false and misleading
statements, we recognize that significant difficulties would be encountered in attempting to do so,
particularly given the stringent standards for pleading, and proving, scienter in this Circuit and this
Court's ruling on defendants' motion to dismiss .
40. While the settlement was reached before defendants filed their second motion t o
dismiss, they clearly indicated their intention to do so and an extension of time for them to file such
motion was granted to permit settlement discussions to continue . Even without the benefit of those
motions, it became clear during settlement discussions that defendants were prepared to mount a
vigorous defense to this action, and that the highly experienced counsel they had retained to
represent them in this proceeding would not let any of Lead Plaintiff's allegations go untested .
Defendants indicated they would again move to dismiss on grounds that the First Amended
Complaint failed to state a claim, or failed to meet the heightened pleading requirements of the
PSLRA. Based on experience in this and similar cases, Lead Counsel expected that defendants'
motion to dismiss would present some of the same arguments they made in their first motion to
dismiss including, among others : (a) that Lead Plaintiff's complaint fails to conform to the
requirements of Rule 9(b) by failing to adequately describe all the false statements ; (b) that the
complaint fails to plead facts giving rise to a strong inference of scienter because (i) the false
statements are not alleged to have been made with actual knowledge of falsity, (ii) the allegations
regarding defendants' positions and access to certain information are insufficient to state a claim,
(iii) the allegations of a generic motive is not sufficient ; (d) that the false statements are protected by
the Safe Harbor, or were rendered immaterial by risk warnings or other disclosures ; and (e) that the
complaint fails to state a claim under §20(a) because no primary IOb-5 claim was pled .
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41 . While Lead Plaintiff is confident that this Litigation has merit, the Class Member s
were nevertheless at risk of having their claims dismissed and thus obtaining no recovery because
the stringent pleading requirements imposed by the Ninth Circuit on Lead Plaintiff make it very
difficult to meet the "strong inference of scienter" standard, particularly where, as here, the standard
is actual knowledge .
42. The second factor, the complexity , expense, and likely duration of the litigation, also
supports settlement . Assuming Lead Plaintiff survived the pleading stage, the claims involve
complex legal and factual issues that would require expensive expert testimony to prove . The case
would have continued several more years at a substantial cost and, in light of the type of legal issues
raised, would have been appealed by the losing side . Considering the time value of money, the
certainty of many additional years of litigation in the absence of this settlement, the risk of either no
recovery, or a smaller recovery after many years of costly litigation, this settlement is well within the
range of reasonableness .
43 . Pursuant to the third factor, the Court should consider that this litigation has not ye t
been certified as a class action . While the defendants have agreed to certification as part of th e
I settlement, if this settlement is not approved, the Lead Plaintiff must undergo the long and expensiv e
process of obtaining class certification .
44. The fourth factor, the amount offered in settlement, also militates in favor of th e
settlement . The settlement represents an immediate and certain recovery for Class Members and is
especially reasonable when viewed against the inherent uncertainties of surviving a motion to
dismiss in this Circuit . The claims in this litigation involve complex issues related to damages,
requiring extensive expert consultation and testimony . Although Lead Plaintiff s damage estimates
were in excess of the settlement amount, proving those damages were the result of the alleged fraud
would be difficult .
45 . During settlement negotiations, defendants presented analyses which showed that the
Class did not suffer any damages or in the alternative that the potential damages were significantly
lower than the amount of damages claimed by Lead Plaintiff. If the Court or a jury found in favor of
defendants' arguments regarding loss causation or damages, any recovery for the Class would be
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jeopardized. Thus, even if Lead Plaintiff was successful at trial on all other elements of liability,
proving the extent of the loss caused by defendants' conduct, still remained a large risk . Measured
against these risks, the $3 .375 million offered in settlement represents a very good recovery on
behalf of the Class .
46. The fifth factor, the extent of discovery completed and the stage of the proceedings ,
also supports the settlement . Even though the PSLRA precluded formal discovery, by the time the
parties entered into an agreement to settle this Litigation, Lead Plaintiff and Lead Counsel had ample
information in our possession through Lead Counsel's pre- and post- filing investigation, numerous
interviews of former employees, and finally, the parties' extensive negotiations that allowed us to
evaluate the strengths and weaknesses of the claims of the Class .
47. The sixth factor for the Court to consider is the experience and views of counsel . The
settlement which is before the Court was formulated by counsel who are among the most
experienced class action attorneys in the country . The Court has had the opportunity to evaluate the
experience and ability of Lead Counsel, who have demonstrated their competence to the Court
during this and other litigation . Furthermore, a presumption of correctness is said to attach to a class
settlement reached in arm's-length negotiations between experienced and capable counsel . Here, the
parties were assisted by Judge Politan who presided over and assisted the parties in reaching the
settlement before the Court .
48 . With respect to the seventh factor, this Court should find that the Class Member s
overwhelmingly support the settlement . Notice of this proposed settlement, in the form approved by
the Court, was mailed to over 8,000 potential Class Members, and a summary notice was published
in Investor's Business Daily on October 2, 2006 . The Notice of Pendency and Proposed Settlement
of Class Action (the "Notice") advised Class Members that October 23, 2006, was the last day to
object to any aspect of the settlement . As of the date preceding filing of this Declaration, not a
single Class Member has filed an objection to the settlement, the Plan of Allocation, or Lead
Counsel's request for an award of attorneys' fee and expenses or Lead Plaintiffs request for
reimbursement of expenses and only four requests for exclusion have been received .
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VII. THE PLAN OF ALLOCATION
49 . The proposed Plan of Allocation (the "Plan") contained in the Notice provides ho w
the Settlement Fund, less any funds used to pay taxes, claims administration costs and court
approved fees and expenses (the "Net Settlement Fund"), shall be distributed to Authorized
Claimants. Counsel for Lead Plaintiff prepared the Plan after careful consideration and consultation
with its economic consultants .
50 . The Plan was fully disclosed in the Notice sent to Class Members and, as of the filin g
of this Declaration, there have been no objections to the Plan . The loss amounts under the Plan are
based on the estimated level of alleged artificial inflation in the price of Thoratec securities during
the Class Period . Differences in treatment of claims are made with respect to (a) the type of security
bought or sold, and (b) the timing of such transactions .
VIII. ATTORNEYS' FEES AND REIMBURSEMENT OF EXPENSE S
51 . Lead Counsel have not received any payment for their services in prosecuting thi s
Litigation nor have they been reimbursed for their out-of-pocket expenses incurred in the
prosecution of the Litigation .
52 . Counsel for Lead Plaintiff respectfully request the Court to award attorneys' fees of
25% or $843,750 of the Settlement Fund and $163,644 .79 in expenses incurred in litigating the
action plus interest . As discussed in the accompanying Memorandum in Support of Lead Counsel's
Motion for an Award of Attorneys' Fees and Reimbursement of Expenses, the requested fee is the
"benchmark" in the Ninth Circuit and is consistent with established precedent in this District, and
throughout the Ninth Circuit, as well as in federal courts throughout the country . The requested
amount is less than Lead Counsel's lodestar . Lead Counsel spent over 2,400 hours in the
prosecution of this Litigation with a resulting lodestar of $875,199 .25 .
53 . The contingent nature of the Litigation and the financial burden carried by Lead
Counsel supports the request for fees . Counsel for Lead Plaintiff undertook all of the risks of this
Litigation on a contingent fee basis - the risks of surviving dispositive motions, obtaining
cert ification and proving liability and damages - at the same time that they faced the significant risk
that they would litigate this case for years, expend many thousands of hours, at great expense, and
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I never be paid . In undertaking this responsibility, counsel for Lead Plaintiff was obligated to assur e
that sufficient resources were devoted to the case, whatever turn it took .
54 . Because of the nature of a contingent practice where cases are predominantly "bi g
cases" lasting several years, not only do contingent litigation firms have to pay regular overhead, but
they also have to advance the expenses of the litigation . With an average lag time of three to four
years for these cases to conclude, the financial burden on contingent counsel is far greater than on a
firm that is paid on an ongoing basis .
55. The above does not even take into consideration the possibility of no recovery. As
discussed above, from the outset this litigation presented a number of unique risks and uncertainties
which could have prevented any recovery whatsoever . It is wrong to assume that a law firm
handling complex contingent litigation such as this always wins . Tens of thousands of hours have
been expended in losing efforts . The factor labeled by the courts as "the risks of litigation" is not an
empty phrase .
56. There are numerous cases where plaintiffs' counsel in contingent cases, after th e
expenditure of thousands of hours, have received no compensation . It is unfortunate, but true, that
plaintiffs' counsel who litigate cases in good faith and receive no fees are often the most diligent
members of the plaintiffs' bar . It is only the knowledge by defendants and their counsel that the
leading members of the plaintiffs' securities bar are actually prepared to, and will, force a resolution
on the merits and go to trial, that permits meaningful settlements in actions such as this .
57. There have been many hard fought lawsuits where, because of the discovery of facts
unknown when the case was commenced, or 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 of members
of the plaintiffs' bar produced no fee for counsel .
58 . For example, there has been a recent trend toward dismissal of actions with prejudic e
at the pleading stage . Indeed , many recent federal appellate reports are filled with opinions
affirming dismissals with prejudice in securities cases . See, e.g., Rosenzweig v. Azurix Corp., 332
F.3d 854 (5th Cir . 2003) ; Emplrs. Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox
Co., 353 F .3d 1125 (9th Cir . 2004) ; In re Silicon Graphics Sec. Litig., 183 F .3d 970 (9th Cir . 1999) ;
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In re Read-Rite Corp . Sec. Litig., 335 F.3d 843 (9th Cir . 2003) ; Schiller v. Physicians Res . Group,
Inc., 342 F .3d 563 (5th Cir . 2003) ; Gompper v. VISX, Inc ., 298 F.3d 893 (9th Cir . 2002) ; Wilkes v .
Versant Object Tech. Corp., No. 01-17493, 2003 U.S . App . LEXIS 1539 (9th Cir . Jan . 23, 2003) ;
Zishka v . Am. Pad & Paper Co., No. 02-10120, 2003 U .S . App. LEXIS 15560 (5th Cir . Aug. 4,
2003) ; Romine v. Acxiom Corp., 296 F .3d 701 (8th Cir . 2002) ; Seinfeld v. Bartz, 322 F.3d 693 (9th
Cir. 2003) ; Abrams v. Baker Hughs, Inc., 292 F.3d 424 (5th Cir . 2002) ; ABC Arbitrage v. Tchuruk,
291 F .3d 336 (5th Cir . 2002) ; DSAMGlobal Value Fund v. Altris Software, Inc., 288 F.3d 385 (9th
Cir. 2002) ; Lipton v . PathoGenesis Corp., 284 F.3d 1027 (9th Cir . 2002) ; In re Vantive Corp . Sec.
Litig., 283 F.3d 1079 (9th Cir . 2002) ; Ronconi v. Larkin, 253 F .3d 423 (9th Cir . 2001) ; City of
Philadelphia v . Fleming Cos., 264 F.3d 1245 (10th Cir . 2001) ; Kalnit v. Eichler, 264 F.3d 131 (2d
Cir. 2001) ; Oran v. Stafford, 226 F.3d 275 (3d Cir . 2000) ; Yourish v. California Amplifier, 191 F.3d
983 (9th Cir . 1999) ; In re Advanta Corp . Sec. Litig., 180 F .3d 525 (3d Cir. 1999) ; Phillips v . LCI
Int'l, Inc ., 190 F.3d 609 (4th Cir . 1999) ; In re Comshare, Inc. Sec. Litig., 183 F.3d 542 (6th Cir .
1999) ; Suna v. Bailey Corp., 107 F .3d 64 (1st Cir . 1997) ; Chill v . General Electric Corp., 101 F.3d
263 (2d Cir. 1996) ; In re Syntex Corp . Sec. Litig., 95 F.3d 922 (9th Cir . 1996) ; Gross v . Summa
Four, 93 F.3d 987 (1st Cir . 1996) ; Glassman v . Computervision Corp ., 90 F.3d 617 (1st Cir . `1996) ;
In re Stac Elecs. Sec. Litig., 89 F.3d 1399 (9th Cir . 1996) ; Epstein v. Washington Energy Co., 83
F .3d 1136 (9th Cir. 1996) ; Lovelace v . Software Spectrum, 78 F.3d 1015 (5th Cir . 1996) ; San
Leandro Emergency Medical Group Profit Sharing Plan v . Philip Morris Cos ., 75 F.3d 801 (2d Cir.
1996) ; Acito v. IMCERA Group, 47 F.3d 47 (2d Cir . 1995) .
59. The many appellate decisions affirming summary judgments and directed verdicts fo r
defendants show that surviving a motion to dismiss is no guaranty of recovery . See Green v. Nuveen
Advisory Corp ., 295 F.3d 738 (7th Cir . 2002) ; In re Digi Int'l, Inc . Sec. Litig., No. 00-3162, 2001
U.S . App. LEXIS 15095 (8th Cir. July 5, 2001) ; Geffon v. Micrion Corp., 249 F .3d 29 (1st Cir.
2001) ; Oran v. Stafford, 226 F.3d 275 (3d Cir . 2000) ; Greebel v. FTP Software, Inc ., 194 F.3d 185
(1st Cir . 1999) ; Longman v. Food Lion, Inc., 197 F .3d 675 (4th Cir . 1999) ; Phillips v . LCIInt'l, Inc.,
190 F .3d 609 (4th Cir . 1999); In re Comshare, Inc . Sec. Litig., 183 F.3d 542 (6th Cir . 1999) ; Levitin
v. PaineWebber, Inc ., 159 F.3d 698 (2d Cir. 1998) ; Silver v . H&R Block, 105 F.3d 394 (8th Cir.
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1997). Moreover, even plaintiffs who succeed at trial may find their judgment overturned on appeal .
See, e.g., Anixter v . Home-Stake Prod. Co., 77 F.3d 1215 (10th Cir . 1996) (overturning plaintiffs'
verdict obtained after two decades of litigation) ; Backman v. Polaroid Corp ., 910 F.2d 10 (1st Cir .
1990) (en banc) (reversing plaintiffs' verdict for securities fraud and ordering entry of judgment for
defendants) ; Ward v. Succession of Freeman, 854 F.2d 780 (5th Cir . 1988) (reversing plaintiffs' jury
verdict for securities fraud) ; Robbins v. Koger Props., Inc ., 116 F.3d 1441 (11th Cir . 1997) (same) .
60. Losses such as those described above are exceedingly expensive . The fees that are
awarded are used to cover enormous overhead expenses incurred during the course of the litigation
and are taxed by federal, state and local authorities . Moreover, changes in the law through
legislation or judicial decree can be catastrophic, frequently affecting contingent counsel's entire
inventory of pending cases . These are real threats .
61 . Courts have repeatedly held that it is in the public interest to have experienced an d
able counsel enforce the securities laws and regulations pertaining to the duties of officers and
directors of public companies. Vigorous private enforcement of the securities and corporation laws
can only occur if the private plaintiffs can obtain parity in representation with that available to large
institutional interests. If this important public policy is to be carried out, the courts should award
fees which will adequately compensate private plaintiffs' counsel, taking into account the risks
undertaken with a clear view of the economics of a securities class action .
62. When we undertook to act for the Lead Plaintiff in this matter, it was with th e
knowledge that we would spend many hours of hard work against some of the best defense lawyers
in the United States with no assurance of ever obtaining any compensation for our efforts . We were
aware that the only way we would be compensated was to achieve a successful result . The benefits
conferred on the Class by this settlement are particularly noteworthy in that a Settlement Fund worth
$3 .375 million was obtained despite the existence of substantial risks of no recovery.
63 . Public policy considerations also support the requested fee award where counsel fo r
lead plaintiffs have taken on the contingent fee risk in a complex securities action . Society has a
meaningful stake in encouraging attorneys who undertake cases like the instant matter because
without attorneys willing to take on these massive class actions , the vast majority of the investors
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would go without a remedy. Counsel for Lead Plaintiff shouldered the risk of committin g
substantial resources to the litigation of this action, and of working long hours in a heavily contested
matter, notwithstanding significant uncertainty as to whether the action would ultimately succeed .
IX. EXPENSES
64. Counsel for Lead Plaintiff request reimbursement of out-of-pocket expenses incurred
to date in connection with the prosecution of the Litigation . These expenses include paying damag e
and liability consultants, several medical and cardiovascular experts, investigative services ,
mediation expenses , photocopying of documents, on-line research, messenger services , postage ,
express mail and next day delivery, long distance telephone and facsimile expenses, transportation ,
meals and travel directly related to the prosecution of this Litigation . The aggregate expenses of
Lead Counsel are $163,644 .79. No objections were received regarding the proposed expense figur e
of $300,000 .00 set forth in the Notice. These expenses were reasonable in amount and were
necessarily incurred for the successful prosecution of the Litigation .
X. CONCLUSION
65 . For the reasons set forth above, and in the accompanying memoranda, I respectfull y
submit that (i) the settlement is fair, reasonable and adequate and should be approved ; (ii) the Plan of
Allocation represents a fair method for distributing the Net Settlement Fund among Class Members
and should be approved ; and (iii) the application for attorneys' fees and reimbursement of expenses
as well the expenses of Lead Plaintiff should be granted .
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I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct . Executed this 9th day of November, 2006, at Francisco, California .
W. LAWRENC E
S :\Sculemcnt\Thoratec .set\DEC LAWRENCE 00033084 .do c
DECL OF JEFFREY W. LAWRENCE IN SUPPORT OF MOTION FOR FINAL APPROVAL O F
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CERTIFICATE OF SERVIC E
I hereby certify that on November 10, 2006 , I electronically fi led the foregoing with the
Clerk of the Cou rt using the CM/ECF system which will send notification of such filing to the e-mail
addresses denoted on the a ttached Electronic Mail Notice List, and I hereby certify that I have
mailed the foregoing document or paper via the United States Postal Service to the non-CM/ECF
part icipants indicated on the attached Manual Notice List .
I further certify that I caused this document to be forwarded to the following designated
Inte rnet site at : http://securities . lerachlaw .com/ .
s/ JEFFREY D. LIGHTJEFFREY D. LIGHT
LERACH COUGHLIN STOIA GELLERRUDMAN & ROBBINS LLP
655 West Broadway , Suite 1900San Diego , CA 92101Telephone : 619/231-1058619/231-7423 (fax)E-mail :JeffL@lerachlaw .com
Mailing Information for a Case 5 :04-cv-03168-RMW
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• Paul J. [email protected]
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