IN RE DOLE FOOD COMPANY, INC. STOCKHOLDER LITIGATION
Submitted: February 2, 2017
M. Grant, Nathan A. Cook, Kimberly A. Evans, Michael T.
Manuel, GRANT & EISENHOFER, P.A., Wilmington, Delaware;
Randall J. Baron, A. Rick Atwood, Jr., David T. Wissbroecker,
Edward M. Gergosian, Maxwell Huffman, ROBBINS GELLER RUDMAN
& DOWD LLP, San Diego, California; Marc A. Topaz, Lee D.
Rudy, Michael C. Wagner, Justin O. Reliford, KESSLER TOPAZ
MELTZER & CHECK, LLP, Radnor, Pennsylvania; Class
Clayton Athey, PRICKETT, JONES & ELLIOTT, P.A.,
Wilmington, Delaware; Counsel for Defendants David H. Murdock
and DFC Holdings, LLC.
L. Silverstein, Elena C. Norman, James M. Yoch, Jr., YOUNG
CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware;
Counsel for Dole Food Company, Inc.
LASTER, Vice Chancellor.
November 1, 2013, Dole Food Company, Inc. ("Dole"
or the "Company") completed a going-private
transaction structured as a single-step merger. The merger
consideration of $13.50 per share was distributed to
Dole's stockholders of record, including Cede & Co.,
the nominee of the Depository Trust Company
("DTC"). In turn, DTC distributed the merger
consideration to its participant members based on the
information about their positions that was reflected in
DTC's centralized ledger.
plaintiffs sued Dole's fiduciaries on behalf of a class
comprising the holders of shares of Dole common stock who
were unaffiliated with the defendants. In December 2015, the
parties settled the case for consideration of $2.74 per share
stipulation provided for the settlement proceeds to be
distributed to class members through a traditional claims
process. There were 36, 793, 758 shares in the class. At the
conclusion of the claims process, however, claimants had
submitted facially valid claims for 49, 164, 415 shares.
diligent efforts, the settlement administrator and class
counsel could not resolve the discrepancy. Class counsel
moved to modify the allocation procedure to authorize the
settlement proceeds to be distributed to class members using
the same payment mechanism used to distribute the merger
consideration. This decision grants their motion.
to a Stipulation and Agreement of Settlement dated December
7, 2015, the plaintiffs agreed to settle the claims they were
pursuing against the defendants in return for a payment of
$2.74 per share plus interest. The stipulation defined the
class as follows:
[A]ll record holders and beneficial owners of common stock of
Dole during the period commencing June 11, 2013 and ending
November 1, 2013, together with their successors and assigns.
Excluded from the Class are Defendants, and each of their
affiliates, legal representatives, heirs, successors in
interest, transferees and assigns. Also excluded from the
Class are [ten petitioners in the related appraisal action
(the "Appraisal Petitioners")], except to the
extent any such Appraisal Petitioners owned shares of Dole
common stock at the Closing that were not the subject of a
perfected appraisal demand.
750, ¶ 1(d). The parties stipulated in the pre-trial
order that holders of 54, 084, 157 shares of Dole common
stock were unaffiliated with the defendants. Dkt. 648, ¶
6. For purposes of the class definition, holders of 17, 290,
399 shares were "Appraisal Petitioners." Dkt. 787
at 1.n.2. The class therefore comprised holders of 36, 793,
February 10, 2016, the court approved the settlement. The
stipulated form of final order provided that the
"Settlement Administrator shall make distributions to
Settlement Payment Recipients in the manner and subject to
the conditions set forth in the Stipulation." Dkt. 780,
defendants paid the settlement amount on March 28, 2016.
Including interest, the total payment was $115, 793, 059.57.
Counsel deducted from this amount the awards that the court
approved for attorneys' fees and expenses.
Data served as the Settlement Administrator. Beginning on
December 11, 2015, A.B. Data mailed notices and claim forms
to potential class members, brokers, and other nominees. In
total, A.B. Data mailed 24, 322 notice packets. A.B. Data
disseminated a summary notice via PR Newswire and
published the summary notice in the Investor Business
Daily. The notices instructed class members to submit
claims to A.B. Data by April 11, 2016. A.B. Data set up a
telephone hotline and a website to assist potential class
total, A.B. Data received 4, 662 claims: (i) 874 from paper
filers and (ii) 3, 788 from e-filers. Paper filers are
typically individuals or small holders who submit claims by
mailing back the claims forms and providing hard copies of
supporting documents. E-filers are typically institutional
investors. They may be involved in hundreds or thousands of
transactions during the class period, and they submit their
claims using a computerized system.
uploading the paper claims and merging them with the
electronic claims to create a single database, A.B. Data
reviewed the claims for deficiencies. A.B. Data identified
deficiencies for 411 paper claims and 2, 547 electronic
claims. A.B. Data mailed letters to the paper filers that
identified the deficiencies and asked for additional
information. A.B. Data mailed letters to the e-filers that
instructed them to review an Excel spreadsheet that A.B. Data
emailed separately with details about their deficiencies. If
a claimant cured a deficiency, then A.B. Data updated its
conclusion of the claims process, claimants had submitted
facially eligible claims for 49, 164, 415 shares. That figure