Out of Court Settlement

Frequently Asked Questions*

• Q.What is a class action?

  A.A class action is a lawsuit in which a large number of people (the “class”) have suffered similar harm from the defendant(s)’ unlawful conduct and the plaintiff(s), also known as the “class representative,” stands in for the entire group of similarly injured persons for the duration of the lawsuit and prosecutes the lawsuit on behalf of the entire class. As such, any result obtained by the class representative in the class action lawsuit applies to all of the members of the class. Class action lawsuits are an efficient legal procedure when it would be impractical or expensive for each similarly harmed individual in the class to file their own lawsuit. Class actions enable shareholders to seek recovery from defendant corporations that have much greater resources without having to bear the financial risk.

• Q.What is a securities class action?

  A.Securities class action lawsuits typically allege that defendant(s), typically corporations that issue publicly-traded securities and their officers, misrepresented or concealed material information, which caused the securities to trade at artificially inflated prices when class members purchased the securities. The class members suffer losses when the previously-concealed information is disclosed, and the price of the securities declines. These actions charge the defendants with violations of the Securities Act of 1933 and/or the anti-fraud provisions of the Securities Exchange Act of 1934.

• Q.What is a class period?

  A.A class period is a specified time period during which the injury to the class is alleged to have occurred. In a securities class action, this is the period during which the securities in question traded at artificially inflated prices as a result of the misrepresentations or omissions complained of. The class period proposed in a securities fraud class action may change during the course of the litigation as a result of new evidence obtained or rulings by the court.

• Q.How long do securities class actions take to litigate?

  A.A typical securities class action often takes several years to litigate. The actual time it takes to resolve a specific case varies, depending on the complexity of the case, the issues involved, the procedural stage at which the suit is resolved, and other factors.

• Q.What is a lead plaintiff in a securities class action?

  A.The lead plaintiff is the investor that prosecutes the suit on behalf of the other investors. This plaintiff eventually seeks to be appointed as the class representative of the class. Federal securities laws permit any investor who purchased or acquired the covered securities during the class period to seek appointment as lead plaintiff of a securities class action lawsuit within sixty (60) days of the first press release announcing the first filed securities class action. An individual investor, an institutional investor, or groups of investors can seek to be appointed as lead plaintiff.
  
  Courts generally appoint as lead plaintiff the movant(s) with the greatest financial interest in the relief sought by the proposed class. The lead plaintiff generally can select a law firm of its choice to litigate the securities class action lawsuit as lead counsel for the class. Courts generally appoint the lead plaintiffs’ chosen law firm as lead counsel.

• Q.How do I sign up to be a potential lead plaintiff?

  A.If you are interested in seeking lead plaintiff appointment, you can contact Kirby McInerney via email at investigations@kmllp.com or submit a contact form via the firm’s website. Critically, the decision to seek lead plaintiff appointment is time sensitive. Class members have sixty (60) days after a securities fraud class action lawsuit is filed to request the court for appointment as lead plaintiff.

• Q.What are the benefits and responsibilities of serving as lead plaintiff in a securities class action?

  A.If you have incurred a substantial loss as a result of purchasing the securities covered by a securities class action, acting as a lead plaintiff provides you an opportunity to take an active role in the litigation of the case and to represent the shareholders in the class. The lead plaintiff must stay apprised of the litigation by overseeing court-appointed lead counsel and remaining informed about the progress of the litigation. If the litigation advances into discovery, the lead plaintiff will be required to participate in discovery and potentially provide documents and testimony relating to the investment in question. You will be able to participate in making critical decisions regarding the litigation, including whether to settle the action and at what amount, and the formula to be used in determining how any settlement proceeds are divided among class members.
  
  An investor’s ability to share in any potential future recovery is not dependent upon serving as lead plaintiff of the securities class action lawsuit. The lead plaintiff is entitled to receive a pro rata share of any classwide settlement or trial recovery. However, as provided for by the Private Securities Litigation Reform Act of 1995, the court will sometimes compensate the lead plaintiff with an additional monetary award for their time and efforts in overseeing the case.

• Q.How do I know if I am eligible to participate in a securities class action?

  A.Any person who purchased the security at issue during the class period is eligible to participate. The attorneys at Kirby McInerney can quickly investigate the facts and advise you on your potential claim, as a lead plaintiff or a class member. Your rights are the same whether you later sold at a loss or have held some or all of your shares in the hope that the price will recover.

• Q.How do I join a class action if I do not want to be lead plaintiff?

  A.If you do not want to be lead plaintiff, you do not need to take any action at the outset of the litigation in order to participate in the class action as you may remain an absent class member. In the event that the lawsuit is certified by the court as a class action, all members of the class will receive mailed notice informing them of the steps that they will need to take in order to share in any classwide recovery.

• Q.Do I have to be a U.S. citizen to participate in a class action?

  A.You do not need to be a U.S. citizen to participate in a securities class action. However, you must have transacted in the security at issue in the U.S., or on a U.S. exchange.

• Q.How will I be notified of a potential recovery if I choose not to be a lead plaintiff in the action?

  A.If you are a member of the class, at the point of a classwide settlement or trial recovery, a court-appointed administrator will mail out notifications to class members relating to your claim and the case status. Because securities class actions often take several years, you should be sure to retain your records so that you can provide documentation of your purchases in the event of a settlement or trial recovery.

• Q.If I sold my shares in the company being sued, can I still participate in a securities class action?

  A.To participate in a securities class action, you generally are not required to continue to hold shares of the company after the class period expires. Your standing to participate in the securities class action is derived from your purchase and/or acquisition of shares during the alleged class period. But your decision to sell or otherwise dispose of securities following the class period may impact your damages. Likewise, selling your securities potentially limits your ability to assert other types of claims, including but not limited to shareholder derivative claims.

• Q.What does it cost to be involved in a class action?

  A.Kirby McInerney litigates its class action cases on a contingency fee basis. This means we only get paid if we win the case at trial or if there is a settlement. The Firm does not receive any form of monetary compensation from a client at the outset of litigation or if the lawsuit is unsuccessful in recovering money for investors. Instead, the Firm’s fees are paid out of the recovery if there is a successful resolution to the case and a settlement or judgment is achieved. Attorneys’ fees may vary based on the size of the recovery, the duration and complexity of the litigation, and other factors. Kirby McInerney also generally advances all out-of-pocket costs and court expenses on behalf of its clients. Attorneys’ fees and expense reimbursement requests are subject to court approval. This system helps ensure that many investors with small losses can easily afford to bring class actions to assert their rights.

• Q.Will my out-of-pocket loss equal my damages?

  A.Generally, no. Your out-of-pocket losses usually will be greater than recoverable damages. Recoverable damages are affected by the time you purchased and sold your shares, the price of the stock after the class period, and other individual circumstances. Usually, class members are awarded damages that are proportional to the actual individualized harm they suffered.

• Q.I am a small investor. What do I need to do?

  A.As a small investor, if you purchased securities covered by a securities class action during the class period, your rights may already be protected by other investors with more significant losses who have already filed a securities class action. Kirby McInerney’s attorneys are available if you have any further questions about your rights as an investor.

• Q.How can I speak with a Kirby McInerney attorney about a potential securities class action or a pending case?

  A.You can contact Kirby McInerney via email at investigations@kmllp.com or submit a contact form via the Firm’s website.

• Q.Can I be a whistleblower?

  A.Anyone with reliable, useful information about fraud committed against the government or investors might be a whistleblower. Whistleblowers can be insiders or outsiders, and high executives or entry-level employees. What matters most is the quality of their information. Kirby McInerney’s whistleblower team can evaluate your claim and help you decide whether to file a whistleblower claim.

• Q.What whistleblower programs are there?

  A.Kirby McInerney is experienced in each of the primary programs available to whistleblowers: (1) the federal and state False Claims Acts, which allow whistleblowers to file lawsuits on behalf of the government to seek recoveries from frauds committed against the government; (2) the IRS whistleblower program, which allows whistleblowers to report federal tax violations, including non-fraudulent underpayments; (3) the SEC whistleblower program, which allows whistleblowers to report violations of the securities laws; and (4) the CFTC whistleblower program, which relates to reporting violations of the Commodity Exchange Act.

• Q.What can I do to report tax violations?

  A.There are two main avenues to report tax violations. For federal tax violations, a whistleblower can file a claim with the IRS whistleblower program. Those claims can be about any type of federal tax violation, in any amount, even if the violations were made by mistake. Some states and the District of Columbia allow tax frauds to be raised under their False Claims Acts. New York State’s False Claims Act allows whistleblowers to bring claims about large tax frauds that have harmed the state or local governments in New York. Washington, DC allows similar claims. Illinois’ False Claims Act allows claims about sales tax and some other tax violations. Several other states also permit tax whistleblower cases.

• Q.Should I be a whistleblower?

  A.You should discuss with counsel the pros and cons of being a whistleblower in light of the claims you wish to raise. Some items to consider are the strength and value of the claims, the extent to which the available whistleblower programs allow for your anonymity, any involvement you may have had in the misconduct, the length of time the claims may be pending, and the potential for retaliation.

• Q.How do I know if I have a good whistleblower claim?

  A.The best whistleblower claims lay out reliable evidence that demonstrates the defendant’s liability. While that evidence will be different in each case, you should put yourself in the shoes of a government investigator and ask how you would use the evidence you have and how you would collect additional evidence to win the case. You should discuss your claims with experienced counsel to evaluate their strength.

• Q.How quickly must I act to bring a whistleblower claim?

  A.You should move quickly to find out if you have a good whistleblower claim. Most claims are subject to statutes of limitations, some of which are quite short. You should consult with experienced counsel right away to discuss which whistleblower programs might apply and what the timing considerations are.

• Q.Who can I tell about my potential whistleblower claims?

  A.You should speak to experienced counsel about the claims before disclosing them to anyone else. Several whistleblower programs have rules limiting claims that were publicly disclosed before the whistleblower submissions are made, and some have rules about maintaining the confidentiality of the claims once they are filed.

• Q.What awards are available to whistleblowers?

  A.Generally, a whistleblower whose claim is successful can receive an award of between 15% to 30% of the government’s or investors’ monetary recovery as a result of the claims. Note that there are some variations in the percentage awards in different whistleblower programs.

• Q.If the government turns down the claims, can I pursue them?

  A.Under the False Claims Act, a whistleblower can proceed with claims that the government declines. If successful, the whistleblower will generally receive an award of between 25% and 30% of the government’s monetary recovery (as compared to an award of 15% to 25% where the government intervenes). The other major whistleblower programs do not allow for the whistleblower to continue a case that the government chooses not to pursue.

• Q.Can I remain anonymous as a whistleblower?

  A.The answer depends on which whistleblower program you are in. The SEC and CFTC whistleblower programs allow whistleblowers represented by counsel to submit claims without disclosing their names, and the programs promise a high degree of confidentiality even when the whistleblower’s name is disclosed. The IRS whistleblower program requires that the whistleblower be identified to the IRS, but the IRS also promises a high degree of confidentiality. For whistleblower claims under the False Claims Act, the cases are filed under seal, but a whistleblower should expect that his or her name will eventually be disclosed.

• Q.How long do whistleblower claims take?

  A.Whistleblower claims can take a long time, often several years, while the government investigates and potentially pursues the claims. Depending upon which whistleblower program the claim is made under, the whistleblower may or may not be given substantive information about the government’s progress on the claims.

• Q.What should I look for in a whistleblower attorney?

  A.The whistleblower lawyer is going to be the person who advocates for your claim to the government investigators, often for several years, and potentially pursues False Claims Act claims if the government turns the case down and you choose to continue with the claims. You should consider hiring an attorney with whom you are comfortable, and who has experience analyzing, presenting, and pursuing whistleblower claims.

• Q.Do I have to pay you for your legal services?

  A.We represent whistleblowers on a contingency fee basis. That means that we will be paid only if the case results in a recovery. We will set out the terms of our fees in a written engagement agreement with you.

* These "Frequently Asked Questions" are provided by Kirby McInerney LLP for educational and informational purposes only and is not intended and should not be construed as legal advice.