Bushansky v. Remy International, Inc.

262 F. Supp. 3d 742
CourtDistrict Court, S.D. Indiana
DecidedAugust 16, 2017
DocketCase No. 1:15-cv-01361-TWP-TAB; Case No. 1:15-cv-01343-TWP-TAB; Case No. 1:15-cv-01385-TWP-TAB
StatusPublished
Cited by13 cases

This text of 262 F. Supp. 3d 742 (Bushansky v. Remy International, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bushansky v. Remy International, Inc., 262 F. Supp. 3d 742 (S.D. Ind. 2017).

Opinion

ENTRY ON PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, CLASS CERTIFICATION, AND APPLICATION FOR AWARD OF ATTORNEYS’ FEES AND EXPENSES

TANYA WALTON PRATT, JUDGE

This matter is before the Court on a Motion for Final Approval of Class Action Settlement, Class Certification, and Application for Award of• Attorneys’ Fees and Expenses filed by Plaintiffs Stephen Bush-ansky (“Bushansky”), Maxine Phillips (“Phillips”), and Jason Garcia (“Garcia”) (collectively “Plaintiffs”), (Filing No. 24).1 The Plaintiffs, shareholders of Defendant Remy International, Inc. (“Remy”), each allege that Remy and Remy’s Board of Directors (“Board”)2 (collectively “Defendants”) caused a materially incomplete and misleading Form Schedule 14A Proxy Statement to be filed with the Securities Exchange Commissioner (“SEC”) in violation of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C.A. §§ 78n(a), 78t(a), as well as 17 C.F.R. § 240.14a-9. Plaintiffs seek to represent a certain class of individuals who own public stock in Remy. On October 13, 2016, Sean Griffith (“Objector”), an interested party and shareholder of Remy, filed an objection in each of the three class actions. (Filing No. 27.) For the following reasons, Plaintiffs’ .Motion for Final Approval of Class Action Settlement, Class Certification, and Application for Award of Attorneys’ Fees and Expenses is DENIED.

I. BACKGROUND

The following facts derive from the Plaintiffs’ complaints, Plaintiffs’ and Objector’s briefs, and affidavits submitted in support of, and objection to, the request for final approval, as well as Plaintiffs’ and Objector’s findings of fact and conclusions of law.

A. Factual Background

Remy, a Delaware corporation, is a major manufacturer, remanufacturer, and supplier of automobile components. Borg-Warner Inc. (BorgWarner) is an American worldwide automotive industry components and parts supplier. On July 13, 2015, Remy announced that it entered an acquisition agreement with BorgWarner and Remy’s shareholders would receive $29.50 in exchange for each share of Remy common stock. (Filing No. 40 at 2.) On August 3, 2015, Remy filed a Preliminary Proxy Statement on Schedule 14A with the SEC (the “Preliminary Proxy”). Id. On August 18, 2015, Remy filed.a Definitive Proxy Statement on Schedule 14A with the SEC (the “Definitive Proxy”), Id. Remy distributed the Definitive Proxy to its shareholders, which contained certain disclosures regarding Remy’s acquisition, as well as [745]*745summaries of Remy’s financial projections from 2015 to 2019, among other things. The financial summaries included a discounted cash flow analysis3 and an unlev-ered free cash flow calculation (“UFCF”)4 conducted by UBS Securities LLC (“UBS Securities”), Remy’s financial advisor.

Shortly after Remy filed the Definitive Proxy with the SEC, Plaintiffs.filed three putative, essentially identical, class action complaints. Phillips v. Remy International Inc., 1:15-cv-1343 (filed on August 25, 2015); Bushansky v. Remy International Inc., 1:15-cv-1361 (filed on August 27, 2015); Garcia v. Remy International Inc., 1:15-cv-1385 (filed on September 1, 2015). The primary purpose of all three class actions was to elicit disclosure from Defendants regarding the merger and Definitive Proxy materials in order to better, .inform shareholders prior to their vote. On August 31, 2015, less than one week after Phillips and Bushansky .filed their Complaints and one day prior to Garcia’s Complaint, Plaintiffs sent a written settlement demand to Defendants. On September 11, 2015, within two weeks after Plaintiffs filed their Complaints, the parties entered into a Memorandum of Understanding (“MOU”), which set forth a settlement agreement between Plaintiffs and Defendants. Id. As part of the MOU, Defendants agreed to file various supplemental disclosures with the SEC before September 22, 2015 — the day Remy’s shareholders met to approve the merger — in exchange for a release from liability for any other related claims on behalf of a proposed class of Remy’s shareholders. Id. at 14.

On September 14-15, 2015, Defendants filed supplemental disclosures with' the SEC. One week 'later, on September 22, 2015, 99.1% of Remy’s shareholders voted in favor5 of the merger. (Filing No. 20 at 9.) The merger closed, and Remy became a wholly owned subsidiary of BorgWamer on November 10, 2015. (Filing No. 40 at 13.) Thereafter, Defendants provided •Plaintiffs with discovery to confirm the fairness and adequacy of the settlement agreement, including a non-public financial presentation by UBS Securities to. the Board, as well as the Board’s meeting minutes. Id. On June 24, 2016, Plaintiffs conducted a confirmatory deposition of Vi-jay Kumra, a UBS Securities representative and financial advisor to Remy. Plaintiffs concluded that the class settlement was fair and adequate.

B. Procedural Background

On July 22, 2016, Plaintiffs sought preliminary approval of the disclosure settlement agreement, and on July 27, 2016, the Court granted Plaintiffs’ request. (Filing No. 23.) In early October 2016, Plaintiffs requested final approval of the settlement, class certification, and an award of attorneys’ fees and expenses in the amount of $409,844.50. (Filing No. 24.) On October 13, 2016, Objector asked the Court to deny [746]*746Plaintiffs’ request for final approval of the settlement, class certification, and Plaintiffs’ attorneys’ fees and expenses, asserting- the supplemental disclosures were not plainly material, and they provided no benefit to Remy’s stockholders, among other things. (Filing No. 27.) Thereafter, on November 2, 2016, the Court conducted a Settlement Hearing regarding Plaintiffs’ request for final approval of class action settlement, class certification, and award of attorney fees.

The Court found the following class to be proper:

A non-opt-out class that includes: any and all record and beneficial holders of Remy common stock, their respective successors in interest, successors, predecessors in interest, predecessors, representatives, trustees, executors, administrators, heirs, assigns or transferees, immediate and remote, and any person or entity acting for or on behalf -of, or claiming under, any of them, and each of them, together with then’ predecessors and successors and assigns, who held Remy. common stock at any time between and including July 13, 2015 and November 10, 2015, but excluding Defendants, their subsidiaries or other affiliates, their assigns, members of their immediate families, officers of Remy, and the legal representatives, heirs, successors, or assigns of any such excluded person.

(Filing No. 40 at 31). In addition, the Court concluded Plaintiffs gave adequate notice,6 Thereafter, Plaintiffs and Objector submitted proposed findings of fact and cbndusions of law on the issues remaining before the Court — specifically, whether the proposed settlement and Plaintiffs’ attorneys’ fees are adequate and fair.

Having considered the papers submit-' ted, including but not limited to the oral argument of counsel, and all other evidence of record, the Court DENIES the motion for final approval.

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Bluebook (online)
262 F. Supp. 3d 742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bushansky-v-remy-international-inc-insd-2017.