SHAH et al. v. ZIMMER BIOMET HOLDINGS, INC., et al.
ZIMMER BIOMET HOLDINGS SECURITIES LITIGATION
3:16-cv-00815-PPS-MGG

Frequently Asked Questions

 

Expand/Collapse All
  • The Court directed that the Notice be mailed to you because you or someone in your family or an investment account for which you serve as a custodian may have purchased or acquired ZBH Common Stock or Call Options or written or sold ZBH Put Options during the Settlement Class Period.  The Court has directed us to send you the Notice because, as a potential Settlement Class Member, you have a right to know about your options before the Court rules on the proposed Settlement.  Additionally, you have the right to understand how this class action lawsuit may generally affect your legal rights.  The Court has approved the Settlement and the Plan of Allocation, the claims administrator selected by Plaintiffs and approved by the Court will make payments pursuant to the Settlement after any objections and appeals are resolved.

    The purpose of the Notice is to inform you of the existence of this case, that it is a class action, how you might be affected, and how to exclude yourself from the Settlement Class if you wish to do so.  It is also being sent to inform you of the terms of the approved Settlement, and of a hearing to be held by the Court to consider the fairness, reasonableness, and adequacy of the Settlement, the approved Plan of Allocation and the motion by Lead Counsel for an award of attorneys’ fees and reimbursement of Litigation Expenses (the “Settlement Hearing”).  See paragraph 84 of the Notice for details about the Settlement Hearing.

    The issuance of the Notice is not an expression of any opinion by the Court concerning the merits of any claim in the Action, and the Court still has to decide whether to approve the Settlement.  The Court approved the Settlement and a plan of allocation. Payments to Authorized Claimants will be made after any appeals are resolved and after the completion of all claims processing.  Please be patient, as this process can take some time to complete.

  • ZBH designs, manufactures and markets orthopedic reconstructive products; sports medicine, biologics, extremities and trauma products; spine, bone healing, craniomaxillofacial and thoracic products; dental implants; and related surgical products.  ZBH was the product of a $13.4 billion merger between cross-town medical device competitors Legacy Zimmer and Legacy Biomet.  The Action arises out of alleged material misrepresentations and omissions concerning the success of the merger and ZBH’s expected financial performance made during the June 7, 2016 through November 7, 2016, inclusive, Settlement Class Period.

    On December 2, 2016, this Action was filed in the United States District Court for the Northern District of Indiana.  

    On April 3, 2017, the Court appointed Rajesh M. Shah, Matt Brierley, and Eric Levy as lead plaintiffs in the Action pursuant to the Private Securities Litigation Reform Act of 1995 (“PSLRA”).  The Court also approved lead plaintiffs’ selection of Glancy Prongay & Murray LLP as Lead Counsel and atz & Korin, PC (now known as Katz Korin Cunningham, PC) as Liaison Counse for the putative class.

    On June 16, 2017, lead plaintiffs filed and served their Amended Class Action Complaint for Violation of the Federal Securities Laws, which was corrected on June 28, 2017 (the “CAC”).  The CAC asserted claims against: (i) ZBH and the Officer Defendants under Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5 promulgated thereunder; (ii) the Officer Defendants under Section 20(a) of the Exchange Act; (iii) the Defendants and J.P. Morgan Securities LLC and Goldman, Sachs & Co. LLC (collectively, the “Underwriter Defendants”) under Section 11 of the Securities Act of 1933 (the “Securities Act”); (iv) ZBH and the Underwriter Defendants under Section 12(a)(2) of the Securities Act; and (v) the Individual Defendants under Section 15 of the Securities Act.  

    On October 5, 2017, lead plaintiffs and plaintiff UFCW Local 1500 voluntarily dismissed the Underwriter Defendants without prejudice.  On that same day, the lead plaintiffs and plaintiff UFCW Local 1500 filed and served a Second Amended Class Action Complaint for Violations of the Federal Securities Laws (the “SAC”).  The SAC asserted the same claims as the CAC, excluding the claims asserted against the Underwriter Defendants, and adding claims against KKR Biomet LLC, TPG Partners IV, L.P., TPG Partners V, L.P., TPG FOF V-A, L.P., TPG FOF V-B, L.P., TPG LVB Co-Invest LLC, TPG LVB Co-Invest II LLC, GS Capital Partners VI Fund, L.P., GS Capital Partners VI Parallel, L.P., GS Capital Partners VI Offshore Fund, L.P., GS Capital Partners VI GmbH & Co. KG, Goldman Sachs BMET Investors, L.P., Goldman Sachs BMET Investors Offshore Holdings, L.P., PEP Bass Holdings, LLC, Private Equity Partners 2004 Direct Investment Fund L.P., Private Equity Partners 2005 Direct L.P., Private Equity Partners IX Direct L.P., and GS LVB Co-Invest, L.P. (the “PE Defendants”) under Section 20(A) of the Exchange Act and Section 12(a)(2) of the Securities Act.

    On December 20, 2017, multiple motions to dismiss were filed by the Defendants and the PE Defendants; included in defendants’ motion was also a request to strike portions of the SAC pursuant to Fed. R. Civ. P. 12 (f).  On March 13, 2018, lead plaintiffs and plaintiff UFCW Local 1500 served their papers in opposition and, on May 18, 2018, the various defendants served their reply papers.  On September 26, 2018, the Court entered its Opinion and Order that granted in part, and denied in part, the defendants’ motions.  Based on the Court’s Order, the claims against the PE Defendants were dismissed. 

    On October 9, 2018, Defendants filed a Motion to Amend the Court’s September 26, 2018 Opinion and Order to Include a Certification under 28 U.S.C. § 1292(b) and Motion to Stay Proceedings Pending Appeal (the “1292 Motion”).  Lead plaintiffs and plaintiff UFCW Local 1500 opposed the 1292 Motion on October 30, 2018, and on November 13, 2018, the Defendants filed their reply.  On November 27, 2018, Defendants filed a notice of supplemental authority relevant to their pending 1292 Motion, which plaintiffs responded to on the same day. On November 28, 2018, plaintiffs requested leave to file a sur-reply to the 1292 Motion, which was granted by the Court and deemed filed on November 29, 2018.  Defendants filed a response to this sur-reply on December 6, 2018.  On January 17, 2019, plaintiffs requested leave to file a supplemental submission on January 17, 2019.  Defendants filed a response to this request on January 22, 2019.  On January 28, 2019, the Court heard oral argument on the 1292 Motion, and on February 20, 2019, denied Defendants’ 1292 Motion.

    On November 12, 2018, Defendants filed and served an answer to the SAC, which was amended on November 14, 2018.

    On March 4, 2019, plaintiffs filed an unopposed motion to add Mr. Castillo as a named plaintiff to the action.  The Court granted this motion on March 14, 2019 and ordered Plaintiffs to file a “revised” version of the Second Amended Complaint reflecting the interlineation of Mr. Castillo as a named plaintiff.  Plaintiffs revised the Second Amended Complaint as ordered on March 21, 2019 (the “Operative Complaint”).

    On April 11, 2019, plaintiffs moved for class certification, together with the declaration of Daniel R. Fischel regarding market efficiency.  On June 7, 2019, plaintiffs filed and served an unopposed motion to relieve Mr. Levy of his duties to serve as a lead plaintiff and to withdraw his application to serve as a class representative, which the Court granted on June 13, 2019.  In May and June 2019, Defendants deposed each of the Plaintiffs, Plaintiffs’ market efficiency expert, as well as two third-party investment managers.  On June 20, 2019, Defendants filed and served their papers in opposition to the motion for class certification, together with an expert report of Vinita Juneja, Ph.D.  On August 6, 2019, Plaintiffs deposed Dr. Juneja.  On August 20, 2019, Plaintiffs filed and served their reply papers in further support of their motion for class certification, together with a rebuttal declaration of Professor Fischel.

    From October 2018 through December 2019, counsel for Plaintiffs and Defendants completed extensive fact discovery.  Plaintiffs’ Counsel reviewed and analyzed more than 1.2 million pages of documents produced by Defendants and third parties.  At the time the settlement was reached, the Parties were nearing the completion of document discovery and preparing for fact depositions.

    In the summer of 2019, while Plaintiffs were actively pursuing fact discovery, the Parties agreed to participate in private mediation.  The Parties selected the Honorable Daniel Weinstein (Ret.) and Jed D. Melnick, Esq. to serve as mediators.  The Parties exchanged extensive mediation statements and exhibits that addressed, among other things, issues related to liability and damages. The Parties participated in a full-day mediation session in New York on September 17, 2019. The session ended without an agreement to settle and the Parties continued with discovery.

    The Parties agreed to engage in another mediation session to re-visit whether a settlement could be reached, with Judge Weinstein and Mr. Melnick again serving as mediators.  The Parties exchanged detailed mediation statements and exhibits on the issues of liability and damages in advance of another full-day mediation session, which occurred on December 12, 2019.  The mediation session ended with Judge Weinstein and Mr. Melnick presenting a mediators’ recommendation that the Action be settled for $50,000,000.  The Parties accepted the mediator’s proposal.  

    Based on the investigation and mediation of the case and Plaintiffs’ direct oversight of the prosecution of this matter and with the advice of their counsel, each of the Plaintiffs has agreed to settle and release the claims raised in the Action pursuant to the terms and provisions of the Stipulation, after considering, among other things, (a) the substantial financial benefit that Plaintiffs and the other members of the Settlement Class will receive under the approved Settlement; and (b) the significant risks and costs of continued litigation and trial.  

    Defendants are entering into the Stipulation solely to eliminate the uncertainty, burden and expense of further protracted litigation.  Defendants have determined that it is desirable and beneficial to them that the Action be settled in the manner and upon the terms and conditions set forth in the Stipulation.  Each of the Defendants has denied and continues to deny any wrongdoing, expressly deny that Plaintiffs have asserted any valid claims as to any of them, and expressly deny any and all allegations of fault, liability, wrongdoing or damages whatsoever.  Defendants have asserted and continue to assert that their conduct was at all times proper and in compliance with all applicable provisions of law, and believe that the evidence developed to date supports their position that they acted properly at all times and that the Action is without merit.  In addition, Defendants maintain that they have meritorious defenses to all claims alleged in the Action.  Similarly, the Stipulation shall in no event be construed or deemed to be evidence of or an admission or concession on the part of any Plaintiff of any infirmity in any of the claims asserted in the Action, or an admission or concession that any of the Defendants’ defenses to liability had any merit.  The Stipulation shall in no event be construed or deemed to be evidence of or an admission or concession on the part of any of the Defendants, or any other of the Defendants’ Releasees (defined in ¶ 37 of the Notice), with respect to any claim or allegation of any fault or liability or wrongdoing or damage whatsoever, or any infirmity in the defenses that the Defendants have, or could have, asserted.

    On May 21, 2020, the Court preliminarily approved the Settlement, authorized the Notice to be disseminated to potential Settlement Class Members, and scheduled the Settlement Hearing to consider whether to grant final approval to the Settlement.

  • If you are a member of the Settlement Class, you are subject to the Settlement, unless you timely request to be excluded.  The Settlement Class consists of:  

    all persons or entities who, between June 7, 2016 and November 7, 2016, inclusive, purchased or otherwise acquired ZBH Common Stock and/or Call Options, and/or wrote ZBH Put Options, and were damaged thereby.

    Included in the Settlement Class are all persons or entities who purchased or otherwise acquired ZBH common stock pursuant to and/or traceable to ZBH’s public offering on or around June 13, 2016 and/or ZBH’s public offering on or around August 9, 2016 and were damaged thereby. 

    Excluded from the Settlement Class are: (i) Defendants, the PE Defendants, and the Underwriter Defendants; (ii) members of the Immediate Families of each of the Individual Defendants; (iii) the parents, subsidiaries, assigns, successors and predecessors of ZBH, the PE Defendants, and the Underwriter Defendants; (iv) any persons who served as partners, control persons, officers, and/or directors of ZBH, the PE Defendants, and the Underwriter Defendants during the Settlement Class Period and/or at any other relevant time; (v) Defendants’ liability insurance carriers; (vi) any firm, trust, corporation, or other entity in which any Defendant, Underwriter Defendant or PE Defendant has or had a controlling interest; and (vii) the legal representatives, heirs, successors-in-interest or assigns of any such excluded party; provided, however, that any Investment Vehicle shall not be excluded from the Settlement Class.  Also excluded from the Settlement Class are any persons or entities who or which exclude themselves by submitting a request for exclusion in accordance with the requirements set forth in the Notice.  See “What If I Do Not Want To Be A Member Of The Settlement Class?  How Do I Exclude Myself,” on page 25 of the Notice.

    PLEASE NOTE:  RECEIPT OF THE NOTICE DOES NOT MEAN THAT YOU ARE A SETTLEMENT CLASS MEMBER OR THAT YOU WILL BE ENTITLED TO RECEIVE PROCEEDS FROM THE SETTLEMENT.  IF YOU ARE A SETTLEMENT CLASS MEMBER AND YOU WISH TO BE ELIGIBLE TO PARTICIPATE IN THE DISTRIBUTION OF PROCEEDS FROM THE SETTLEMENT, YOU ARE REQUIRED TO SUBMIT THE CLAIM FORM THAT IS BEING DISTRIBUTED WITH THE NOTICE AND THE REQUIRED SUPPORTING DOCUMENTATION AS SET FORTH THEREIN POSTMARKED OR SUBMITTED ONLINE NO LATER THAN OCTOBER 19, 2020.

  • Plaintiffs and Lead Counsel believe that the claims asserted against Defendants have merit.  They recognize, however, the expense and length of continued proceedings necessary to pursue their claims against the remaining Defendants through trial and appeals, as well as the very substantial risks they would face in establishing liability and damages.  Plaintiffs and Lead Counsel recognized that Defendants had numerous avenues of attack that could preclude a recovery as to the various alleged misrepresentations and omissions.  For example, they would assert that none of the alleged misstatements were materially false and misleading and that they did not make any materially misleading omissions, let alone with the requisite state of mind to support the securities fraud claims alleged.  Additionally, Plaintiffs’ motion for class certification was fully briefed and pending at the time the Settlement was reached.  The Court’s decision on whether to certify a class could have greatly impacted Plaintiffs’ and the Settlement Class’s potential recovery.  Plaintiffs also face challenges with respect to establishing loss causation and class-wide damages.  Plaintiffs recognize that Defendants have substantial arguments that the declines in the price of ZBH Common Stock during the Settlement Class Period were not caused by revelations concerning the alleged misconduct.  Had any of these arguments been accepted in whole or part, they could have eliminated or, at a minimum, dramatically limited any potential recovery.  Further, Plaintiffs would have had to prevail at several stages – motion for summary judgment and trial – and if they prevailed at those stages, they would also have to prevail at the appeals that were likely to follow.  Thus, there were very significant risks attendant to the continued prosecution of the Action. 

    In light of these risks, the amount of the Settlement and the immediacy of recovery to the Settlement Class and based on their investigation, prosecution and mediation of the case, Plaintiffs and Lead Counsel believe that the approved Settlement is fair, reasonable and adequate, and in the best interests of the Settlement Class.  Plaintiffs and Lead Counsel believe that the Settlement provides a substantial benefit to the Settlement Class, namely $50,000,000 in cash (less the various deductions described in the Notice), as compared to the risk that the claims in the Action would produce a smaller, or no recovery after summary judgment, trial and appeals, possibly years in the future.

    Defendants have denied the claims asserted against them in the Action and deny having engaged in any wrongdoing or violation of law of any kind whatsoever.  Defendants have agreed to the Settlement solely to eliminate the uncertainty, burden and expense of further protracted litigation.  Accordingly, the Settlement may not be offered against any of the Defendants’ Releasees as evidence of, or construed as, or deemed to be evidence of any presumption, concession, or admission by any of the Defendants’ Releasees with respect to the truth of any fact alleged by Plaintiffs or the validity of any claim that was or could have been asserted or the deficiency of any defense that has been or could have been asserted in this Action or in any other litigation, or of any liability, negligence, fault, or other wrongdoing of any kind of any of the Defendants’ Releasees or in any way referred to for any other reason as against any of the Defendants’ Releasees, in any civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of this Stipulation.  In addition, the Settlement may not be construed against any of the Releasees as an admission, concession, or presumption that the consideration to be given hereunder represents the amount which could be or would have been recovered after trial.

  • If there were no Settlement and Plaintiffs failed to establish any essential legal or factual element of their claims against Defendants, neither Plaintiffs nor the other members of the Settlement Class would recover anything from Defendants.  Also, if Defendants were successful in proving any of their defenses, either at summary judgment, at trial or on appeal, the Settlement Class could recover substantially less than the amount provided in the Settlement, or nothing at all.

  • As a Settlement Class Member, you are represented by Plaintiffs and Lead Counsel, unless you enter an appearance through counsel of your own choice at your own expense.  You are not required to retain your own counsel, but if you choose to do so, such counsel must file a notice of appearance on your behalf and must serve copies of his or her appearance on the attorneys listed in the section entitled, “When And Where Will The Court Decide Whether To Approve The Settlement?,” below.

    If you are a Settlement Class Member and do not wish to remain a Settlement Class Member, you may exclude yourself from the Settlement Class by following the instructions in the section entitled, “What If I Do Not Want To Be A Member Of The Settlement Class?  How Do I Exclude Myself?,” below.

    If you are a Settlement Class Member and you wish to object to the Settlement, the Plan of Allocation, or Lead Counsel’s application for attorneys’ fees and reimbursement of Litigation Expenses, and if you do not exclude yourself from the Settlement Class, you may present your objections by following the instructions in the section entitled, “When And Where Will The Court Decide Whether To Approve The Settlement?,” below.

    If you are a Settlement Class Member and you do not exclude yourself from the Settlement Class, you will be bound by any orders issued by the Court, whether or not you submit a Claim Form.  The Settlement has been approved, the Court has entered a judgment (the “Judgment”).  The Judgment will dismiss with prejudice the claims against Defendants and the other Defendants’ Releasees, and will provide that, upon the Effective Date of the Settlement, Plaintiffs and each of the other Settlement Class Members, on behalf of themselves, and their respective current and former heirs, executors, administrators, predecessors, successors, officers, directors, agents, parents, affiliates, subsidiaries, employees, attorneys, assignees and assigns in their capacities as such, will be deemed to have, and by operation of law and of the judgment shall have, fully, finally and forever compromised, settled, released, resolved, relinquished, waived and discharged each and every Released Plaintiffs’ Claim (as defined in ¶ 36 of the Notice) (including Unknown Claims) against the Defendants and the other Defendants’ Releasees (as defined in ¶ 37 of the Notice) whether or not such Settlement Class Member executes and delivers the Proof of Claim Form, and shall forever be barred and enjoined from commencing, instituting, prosecuting or continuing to prosecute any action or other proceeding in any court of law or equity, arbitration tribunal or administrative forum, asserting any or all of the Released Plaintiffs’ Claims against any of the Defendants’ Releasees.  This Release shall not apply to any of the Excluded Claims (as that term is defined in ¶ 36 of the Notice).

    “Released Plaintiffs’ Claims” means all claims, rights, duties, controversies, obligations, demands, actions, debts, sums of money, suits, contracts, agreements, promises, damages, losses, judgments, liabilities, allegations, arguments and causes of action of every nature and description, whether known claims or Unknown Claims, whether arising under federal, state, local, common, statutory, administrative or foreign law or any other rule or regulation, at law or in equity, whether class or individual in nature, whether fixed or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, whether matured or unmatured, that Plaintiffs or any other member of the Settlement Class (i) asserted in any complaint filed in this Action including the CAC, the SAC and the Operative Complaint; or (ii) could have asserted in any forum that arise out of or are related to any of the allegations, transactions, facts, matters, events, disclosures, statements, occurrences, representations or omissions involved, set forth, or referred to in any complaint filed in this Action including the CAC, the SAC and the Operative Complaint and that relate to, directly or indirectly, the purchase or sale or other acquisition, disposition, or holding of any ZBH Securities during the Settlement Class Period.  Released Plaintiffs’ Claims do not include (i) any claims relating to the enforcement of the Settlement, (ii) any claims asserted in Green v. Begley et al., Case No. 2019-0455-AGB (Del. Ch.); Detectives Endowment Association Annuity Fund v. Begley et al., Case No. 2019-0584-AGB (Del. Ch.); consolidated case caption In re Zimmer Biomet Holdings, Inc. Derivatives Litigation, Consol. C.A. No 2019-0455 (Del. Ch.); Karp v. Begley et al., Case No. 1:19-cv-01855-LPS (D. Del); DiGaudio v. Begley et al., Case No. 1:19-cv-01926-LPS (D. Del.); and consolidated case caption In re Zimmer Biomet Holdings, Inc. Federal Derivative Litigation, No. 2019-cv-01855 (D. Del.); and (iii) any claims of any person or entity who or which submits a request for exclusion that is accepted by the Court (collectively, “Excluded Claims”).

    “Defendants’ Releasees” means Defendants, PE Defendants, Underwriter Defendants, each of their respective parents, subsidiaries and affiliates, and each of their respective current and former employees, officers, directors, agents, parents, affiliates, subsidiaries, attorneys, advisors, members, partners, principals, controlling shareholders, accountants, auditors and insurers and reinsurers of each of the foregoing, in their capacities as such; and the successors, predecessors, assigns, assignees, estates, spouses, heirs, executors, trusts, trustees, administrators, and legal or personal representatives of the foregoing, in their capacities as such.

    “Unknown Claims” means any Released Plaintiffs’ Claims which any Lead Plaintiff or any other Settlement Class Member does not know or suspect to exist in his, her or its favor at the time of the release of such claims, and any Released Defendants’ Claims which any Defendant, Underwriter Defendant or PE Defendant does not know or suspect to exist in his, her, or its favor at the time of the release of such claims, which, if known by him, her or it, might have affected his, her or its settlement and release, or might have affected his, her or its decision(s) with respect to this Settlement, including, but not limited to, whether or not to object to this Settlement or to the release of any Released Claims.  With respect to any and all Released Claims, the Parties stipulate and agree that, upon the Effective Date of the Settlement, Plaintiffs, Defendants, Underwriter Defendants and PE Defendants shall expressly waive, and each of the other Settlement Class Members shall be deemed to have waived, and by operation of the Judgment or the Alternate Judgment, if applicable, shall have expressly waived, any and all provisions, rights, and benefits conferred by California Civil Code § 1542 and any law of any state or territory of the United States, or principle of common law or foreign law, which is similar, comparable, or equivalent to California Civil Code §1542, which provides:

    A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.

    Plaintiffs, Defendants, Underwriter Defendants and PE Defendants acknowledge that they may hereafter discover facts in addition to or different from those which he, she, it or their counsel now knows or believes to be true with respect to the subject matter of the Released Claims, but the Plaintiffs, Defendants, Underwriter Defendants and PE Defendants shall expressly settle and release, and each Settlement Class Member, upon the Effective Date, shall be deemed to have, and by operation of the Judgment shall have, fully, finally and forever settled and released any and all Released Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, which now exist, or heretofore have existed, upon any theory of law or equity now existing or coming into existence in the future, including but not limited to, conduct which is negligent, intentional, with or without malice, or a breach of any duty, law or rule, without regard to the subsequent discovery or existence of such different or additional facts.  Plaintiffs, Defendants, Underwriter Defendants and PE Defendants acknowledge, and each of the other Settlement Class Members shall be deemed by operation of law to have acknowledged, that the inclusion of “Unknown Claims” in the definition of Released Plaintiffs’ Claims and Released Defendants’ Claims was separately bargained for and a key element of the Settlement.

    The Judgment will also provide that, upon the Effective Date of the Settlement, Defendants, Underwriter Defendants and PE Defendants, on behalf of themselves, and their respective current and former heirs, executors, administrators, predecessors, successors, officers, directors, agents, parents, affiliates, subsidiaries, employees, attorneys, assignees and assigns in their capacities as such, will be deemed to have, and by operation of law and of the judgment shall have, fully, finally and forever compromised, settled, released, resolved, relinquished, waived and discharged each and every Released Defendants’ Claim (as defined in ¶ 40 of the Notice) (including Unknown Claims) against Plaintiffs and the other Plaintiffs’ Releasees (as defined in ¶ 41 of the Notice), and shall forever be barred and enjoined from commencing, instituting, prosecuting or continuing to prosecute any action or other proceeding in any court of law or equity, arbitration tribunal or administrative forum, asserting any or all of the Released Defendants’ Claims against any of the Plaintiffs’ Releasees.

    “Released Defendants’ Claims” means all claims and causes of action of every nature and description, whether known claims or Unknown Claims, whether arising under federal, state, common or foreign law, that arise out of or relate in any way to the institution, prosecution, or settlement of the claims asserted in the Action against the Defendants.  Released Defendants’ Claims do not include: (i) any claims relating to the enforcement of the Settlement; (ii) any claims against any person or entity who or which submits a request for exclusion from the Settlement Class that is accepted by the Court; (iii) any claims arising out of or relating to the Underwriter Defendants’ rights to indemnification by the Defendants, pursuant to any agreements between the Defendants and the Underwriter Defendants, or any Underwriter Defendants’ rights pursuant to any agreements among any of the Underwriter Defendants to indemnification inter se; or (iv) any claims arising out of or relating to the PE Defendants’ rights to the indemnification by the Defendants, pursuant to any agreements between the Defendants and the PE Defendants.

    “Plaintiffs’ Releasees” means Plaintiffs, Plaintiffs’ Counsel, all other plaintiffs in the Action, their respective attorneys, and any other Settlement Class Member, and their respective current and former officers, directors, agents, parents, affiliates, subsidiaries, successors, predecessors, assigns, assignees, employees, and attorneys, in their capacities as such.

  • To be eligible for a payment from the proceeds of the Settlement, you must be a member of the Settlement Class and you must timely complete and return the Claim Form with adequate supporting documentation postmarked or submitted online no later than October 19, 2020.  A Claim Form was included with the Notice, or you may obtain one from this website maintained by the Claims Administrator, or you may request that a Claim Form be mailed to you by calling the Claims Administrator toll free at 1-888-670-1171.  Please retain all records of your ownership of and transactions in ZBH Common Stock, ZBH Call Options, and ZBH Put Options, as they may be needed to document your Claim.  If you request exclusion from the Settlement Class or do not submit a timely and valid Claim Form, you will not be eligible to share in the Net Settlement Fund. 

  • At this time, it is not possible to make any determination as to how much any individual Settlement Class Member may receive from the Settlement.

    Pursuant to the Settlement, Defendants have agreed to cause to be paid fifty million dollars ($50,000,000) in cash.  The Settlement Amount will be deposited into an Escrow Account.  The Settlement Amount plus any interest earned thereon is referred to as the “Settlement Fund.”  If the Settlement is approved by the Court and the Effective Date occurs, the “Net Settlement Fund” (that is, the Settlement Fund less (a) all taxes, fees, levies, duties, tariffs, imposts, and other charges of any kind (including any interest or penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any governmental authority (including, but not limited to, any local, state and federal taxes) on the Settlement Fund (including any income earned by the Settlement Fund) and the reasonable costs incurred in connection with determining the amount of and paying taxes owed by the Settlement Fund (including reasonable expenses of tax attorneys and accountants); (b) the reasonable costs and expenses incurred in connection with providing notice to Settlement Class Members and administering the Settlement on behalf of Settlement Class Members; and (c) any attorneys’ fees and Litigation Expenses awarded by the Court) will be distributed to Settlement Class Members who submit valid Claim Forms, in accordance with the approved Plan of Allocation or such other plan of allocation as the Court may approve. 

    The Net Settlement Fund will not be distributed unless and until the Court has approved the Settlement and a plan of allocation, and the time for any petition for rehearing, appeal or review, whether by certiorari or otherwise, has expired.

    Neither Defendants nor any other person or entity that paid any portion of the Settlement Amount on their behalf are entitled to get back any portion of the Settlement Fund once the Court’s order or judgment approving the Settlement becomes Final.  Defendants’ Releasees shall not have any liability, obligation or responsibility for the administration of the Settlement (including but not limited to investment and maintenance of monies deposited into the Escrow Account), determination or payment of any Taxes, the payment of attorneys’ fees or Litigation Expenses, or providing notice to Settlement Class Members), the disbursement of the Net Settlement Fund or the plan of allocation.

    Approval of the Settlement is independent from approval of a plan of allocation.  Any determination with respect to a plan of allocation will not affect the Settlement, if approved.  The Settlement and the Plan of Allocation have been approved.

    Unless the Court otherwise orders, any Settlement Class Member who fails to submit a Claim Form postmarked or submitted online on or before October 19, 2020 shall be fully and forever barred from receiving payments pursuant to the Settlement, but will in all other respects remain a Settlement Class Member and be subject to the provisions of the Stipulation, including the terms of any Judgment entered and the releases given.  This means that each Settlement Class Member releases the Released Plaintiffs’ Claims (as defined in ¶ 36 of the Notice) against the Defendants’ Releasees (as defined in ¶ 37 of the Notice) and will forever be barred and enjoined from commencing, instituting, prosecuting or continuing to prosecute any action or other proceeding in any court of law or equity, arbitration tribunal or administrative forum, asserting  any or all of the Released Plaintiffs’ Claims against any of the Defendants’ Releasees whether or not such Settlement Class Member submits a Claim Form.

    Participants in and beneficiaries of a plan covered by ERISA (“ERISA Plan”) should NOT include any information relating to their transactions in ZBH Common Stock, ZBH Call Options, and ZBH Put Options held through the ERISA Plan in any Claim Form that they may submit in this Action.  They should include ONLY those shares or options that they purchased or acquired outside of the ERISA Plan.  Claims based on any ERISA Plan’s transactions in ZBH Common Stock, ZBH Call Options, and ZBH Put Options during the Settlement Class Period may be made by the plan’s trustees.  To the extent any of the Defendants or any of the other persons or entities excluded from the Settlement Class are participants in the ERISA Plan, such persons or entities shall not receive, either directly or indirectly, any portion of the recovery that may be obtained from the Settlement by the ERISA Plan.

    The Court has reserved jurisdiction to allow, disallow, or adjust on equitable grounds the Claim of any Settlement Class Member.

    Each Claimant shall be deemed to have submitted to the jurisdiction of the Court with respect to his, her or its Claim Form.

    Only Settlement Class Members will be eligible to share in the distribution of the Net Settlement Fund.  Persons and entities that are excluded from the Settlement Class by definition or that exclude themselves from the Settlement Class pursuant to request will not be eligible to receive a distribution from the Net Settlement Fund and should not submit Claim Forms.  The only securities that are included in the Settlement are the ZBH Common Stock, ZBH Call Options, and ZBH Put Options.

  • Plaintiffs’ Counsel have not received any payment for their services in pursuing claims against the Defendants on behalf of the Settlement Class, nor have Plaintiffs’ Counsel been reimbursed for their out-of-pocket expenses.  Before final approval of the Settlement, Lead Counsel will apply to the Court for an award of attorneys’ fees for all Plaintiffs’ Counsel in an amount not to exceed 33 ⅓% of the Settlement Fund.  At the same time, Lead Counsel also intends to apply for reimbursement of Litigation Expenses in an amount not to exceed $1,900,000, which may include an application for reimbursement of the reasonable costs and expenses incurred by Plaintiffs directly related to their representation of the Settlement Class.  The Court will determine the amount of any award of attorneys’ fees or reimbursement of Litigation Expenses.  Such sums as may be approved by the Court will be paid from the Settlement Fund.  Settlement Class Members are not personally liable for any such fees or expenses.  The Settlement has been approved.

  • Each Settlement Class Member will be bound by all determinations and judgments in this lawsuit, whether favorable or unfavorable, unless such person or entity mails or delivers a written Request for Exclusion from the Settlement Class, addressed to Shah et al. v. Zimmer Biomet Holdings, Inc. et al., EXCLUSIONS, c/o JND Legal Administration, P.O. Box 91367, Seattle, WA 98111.  The exclusion request must have been received no later than August 13, 2020.  You will not be able to exclude yourself from the Settlement Class after that date.  Each Request for Exclusion must (a) state the name, address and telephone number of the person or entity requesting exclusion, and in the case of entities the name and telephone number of the appropriate contact person; (b) state that such person or entity “requests exclusion from the Settlement Class in Shah et al. v. Zimmer Biomet Holdings, Inc. et al., Case No. 3:16-CV-00815”; (c) identify and state the number of shares of ZBH Common Stock, Call Options, and/or ZBH Put Options that the person or entity requesting exclusion purchased/acquired and/or sold during the Settlement Class Period (i.e., between June 7, 2016 and November 7, 2016, inclusive), as well as the dates and prices of each such purchase/acquisition and sale; and (d) be signed by the person or entity requesting exclusion or an authorized representative.  A Request for Exclusion shall not be valid and effective unless it provides all the information called for in this paragraph and is received within the time stated above, or is otherwise accepted by the Court.

    If you do not want to be part of the Settlement Class, you must follow these instructions for exclusion even if you have pending, or later file, another lawsuit, arbitration, or other proceeding relating to any Released Plaintiffs’ Claim against any of the Defendants’ Releasees.

    If you ask to be excluded from the Settlement Class, you will not be eligible to receive any payment out of the Net Settlement Fund.

    Defendants have the right to terminate the Settlement if valid requests for exclusion are received from persons and entities entitled to be members of the Settlement Class in an amount that exceeds an amount agreed to by Lead Plaintiffs and Defendants.

  • Settlement Class Members do not need to attend the Settlement Hearing.  The Court will consider any submission made in accordance with the provisions below even if a Settlement Class Member does not attend the hearing.  You can participate in the Settlement without attending the Settlement Hearing.  

    The Settlement Hearing was held on September 13, 2020.  The Court approved the Settlement, the Plan of Allocation, Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses and/or any other matter related to the Settlement at or after the Settlement Hearing without further notice to the members of the Settlement Class.

    Any Settlement Class Member who or which does not request exclusion may object to the Settlement, the approved Plan of Allocation or Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses.  Objections must be in writing.  You must file any written objection, together with copies of all other papers and briefs supporting the objection, with the Clerk’s Office at the United States District Court for the Northern District of Indiana at the address set forth below on or before August 13, 2020.  You must also serve the papers on Lead Counsel and on Defendants’ Counsel at the addresses set forth below so that the papers were received on or before August 13, 2020.

     

    Clerk’s Office
    United States District Court
    Northern District of Indiana
    Clerk of the Court
    United States Courthouse
    5400 Federal Plaza
    Suite 4400
    Hammond, IN 46320
     

    Lead Counsel
    Glancy Prongay &
    Murray LLP

    Kara M. Wolke, Esq.
    1925 Century Park East,
    Suite 2100
    Los Angeles, CA 90067
    Email:
    kwolke@glancylaw.com
     

    Defendants’ Counsel
    Morgan Lewis &
    Bockius LLP

    Troy S. Brown, Esq.
    1701 Market Street
    Philadelphia, PA 19103
    Email:
    troy.brown@morganlewis.com
     

    Any objection: 

    (a) must state the name, address and telephone number of the person or entity objecting and must be signed by the objector; 

    (b) must clearly identify the case name and number (Shah et al. v. Zimmer Biomet Holdings, Inc. et al., Case No. 3:16-CV-00815);

    (c) must contain a statement of the Settlement Class Member’s objection or objections, and the specific reasons for each objection, including any legal and evidentiary support the Settlement Class Member wishes to bring to the Court’s attention; and

    (d) must include documents sufficient to prove the objector’s membership in the Settlement Class, including the number of shares of ZBH Common Stock, Call Options, and/or Put Options that the objecting Settlement Class Member purchased, acquired and sold during the Settlement Class Period (i.e., between June 7, 2016 and November 7, 2016, inclusive), as well as the dates and prices of each such purchase/acquisition and sale.

    You may not object to the Settlement, the Plan of Allocation or Lead Counsel’s motion for attorneys’ fees and reimbursement of Litigation Expenses if you exclude yourself from the Settlement Class or if you are not a member of the Settlement Class.

    If you object to the Settlement or the request for attorneys’ fees and/or reimbursement of Litigation Expenses, you subject yourself to the jurisdiction of the District Court in this matter and consent to being deposed in your district of residence and producing in advance of a deposition any responsive documents to a discovery request prior to the Settlement Hearing.

    You may file a written objection without having to appear at the Settlement Hearing.  You may not, however, appear at the Settlement Hearing to present your objection unless you first file and serve a written objection in accordance with the procedures described above, unless the Court orders otherwise.

    If you wish to be heard orally at the hearing in opposition to the approval of the Settlement, the Plan of Allocation or Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses, and if you timely file and serve a written objection as described above, you must also file a notice of appearance with the Clerk’s Office and serve it on Lead Counsel and Defendants’ Counsel at the addresses set forth above so that it was received on or before August 13, 2020.  Persons who intend to object and desire to present evidence at the Settlement Hearing must include in their written objection or notice of appearance the identity of any witnesses they may call to testify and exhibits they intend to introduce into evidence at the hearing.  Such persons may be heard orally at the discretion of the Court.

    You are not required to hire an attorney to represent you in making written objections or in appearing at the Settlement Hearing.  However, if you decide to hire an attorney, it will be at your own expense, and that attorney must file a notice of appearance with the Court and serve it on Lead Counsel and Defendants’ Counsel at the addresses set forth in ¶ 85 of the Notice so that the notice was received on or before August 13, 2020.

    Unless the Court orders otherwise, any Settlement Class Member who does not object in the manner described above will be deemed to have waived any objection and shall be forever foreclosed from making any objection to the approved Settlement, the approved Plan of Allocation or Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses.  Settlement Class Members do not need to appear at the Settlement Hearing or take any other action to indicate their approval.

  • If you purchased or otherwise acquired ZBH Common Stock and/or Call Options, and/or wrote ZBH Put Options between June 7, 2016 and November 7, 2016, inclusive, for the beneficial interest of persons or organizations other than yourself, you must either (a) within seven (7) calendar days of receipt of the Notice, request from the Claims Administrator sufficient copies of the Notice and Claim Form (the “Notice Packet”) to forward to all such beneficial owners and within seven (7) calendar days of receipt of those Notice Packets forward them to all such beneficial owners; or (b) within seven (7) calendar days of receipt of theNotice, provide a list of the names and addresses of all such beneficial owners to Shah et al. v. Zimmer Biomet Holdings, Inc. et al., c/o JND Legal Administration, P.O. Box 91367, Seattle, WA 98111.  If you choose the second option, the Claims Administrator will send a copy of the Notice and the Claim Form to the beneficial owners.  Upon full compliance with these directions, such nominees may seek reimbursement of their reasonable expenses actually incurred, up to a maximum of $0.50 per Notice Packet mailed; $0.05 per Notice Packet transmitted by email; or $0.10 per name, mailing address, and email address (to the extent available) provided to the Claims Administrator, by providing the Claims Administrator with proper documentation supporting the expenses for which reimbursement is sought.  Copies of the Notice and the Claim Form may also be obtained from this website maintained by the Claims Administrator, or by calling the Claims Administrator toll-free at 1-888-670-1171.

  • The Notice contains only a summary of the terms of the approved Settlement.  For more detailed information about the matters involved in this Action, you are referred to the papers on file in the Action, including the Stipulation, which may be inspected during regular office hours at the Office of the Clerk, United States District Court for the Northern District of Indiana, United States Courthouse, 5400 Federal Plaza, Hammond, IN 46320.  Please visit the Court’s website at https://www.innd.uscourts.gov/ or call the Clerk’s Office at (260) 423-3000 to determine whether the Court is open due to the exigent circumstances created by COVID-19 and Related Coronavirus.  Additionally, copies of the Stipulation and any related orders entered by the Court will be posted on this website maintained by the Claims Administrator.

    All inquiries concerning the Notice and the Claim Form should be directed to:
     

    Shah et al. v.
    Zimmer Biomet Holdings, Inc. et al.
    c/o JND Legal Administration
    P.O. Box 91367
    Seattle, WA 98111
    1-888-670-1171
    www.ZimmerBiometSecuritiesLitigation.com


    and/or
     

    Kara M. Wolke, Esq.
    GLANCY PRONGAY &
    MURRAY LLP
    1925 Century Park East, Suite 2100
    Los Angeles, CA 90067
    (888) 773-9224
    settlements@glancylaw.com

    DO NOT CALL OR WRITE THE COURT, THE OFFICE OF THE CLERK OF THE COURT, DEFENDANTS OR THEIR COUNSEL REGARDING THE NOTICE.

For More Information

Visit this website often to get the most up-to-date information.

Mail

Shah et al. v. Zimmer Biomet
Holdings, Inc. et al.
c/o JND Legal Administration
P.O. Box 91367
Seattle, WA 98111