Chamblee, et al. v. TerraForm Power, Inc., et al., 1:16-cv-08039-PKC
TerraForm Power Securities Litigation
1:16-MD-2742-PKC

Frequently Asked Questions

 

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  • You or someone in your family may have acquired TERP securities between July 18, 2014 through March 15, 2016, both dates inclusive.

  • The case is known as Chamblee, et al. v. TerraForm Power, Inc., et al., 1:16-cv-08039 (S.D.N.Y.) (the “Action”). The Court in charge of the case is the United States District Court for the Southern District of New York.

    The Action involves allegations that Defendants violated certain federal securities laws by making misrepresentations or omissions of material fact concerning TERP’s internal controls over financial reporting and risks to its growth strategy. The Second Amended Securities Class Action Complaint (the “Complaint”) alleges that the misstatements or omissions artificially inflated the price of TERP securities, and that the securities prices dropped in response to certain subsequent disclosures. Defendants have denied and continue to deny each, any and all allegations of wrongdoing, fault, liability or damage whatsoever asserted in the Action. The Settlement shall in no event be construed as, or deemed to be evidence of, liability, fault, wrongdoing, injury or damages, or of any wrongful conduct, acts or omissions on the part of any of the Released Parties, or of any infirmity of any defense, or of any damages to the Plaintiffs or any other Settlement Class Member. The Settlement resolves all of the claims in the Action, as well as certain other claims or potential claims, whether known or unknown.

  • In a class action, one or more persons and/or entities, called plaintiffs, sue on behalf of all persons and/or entities who have similar claims. All of these persons and/or entities are referred to collectively as a class, and these individual persons and/or entities are known as class members. One court resolves all of the issues for all class members, except for those class members who exclude themselves from the class.

  • Plaintiffs and Defendants do not agree regarding the merits of Plaintiffs’ allegations and Defendants’ defenses with respect to liability or the average amount of damages per share, if any, that would be recoverable if Plaintiffs were to prevail at trial on each claim. The issues on which Plaintiffs and the Defendants disagree include: (1) whether the challenged statements were materially false or misleading or otherwise actionable under federal securities law; (2) whether the Defendants acted with scienter; (3) whether the alleged disclosures were corrective disclosures; (4) the causes of the loss in the value of the securities; and (5) the amount of alleged damages, if any, that could be recovered at trial.

    This matter has not gone to trial and the Court has not decided in favor of either Plaintiffs or Defendants. Instead, Plaintiffs and Defendants have agreed to settle the case. Plaintiffs and Plaintiffs’ Counsel believe the Settlement is best for all Settlement Class Members because of the risks associated with continued litigation and the nature of the defenses raised by the Defendants. Among the reasons that Plaintiffs and Plaintiffs’ Counsel believe the Settlement is fair is the fact that there is uncertainty about whether they will be able to prove that any challenged statement was false or misleading, that the alleged misstatements and omissions actually caused the Settlement Class any damages, and the amount of damages, if any.

    Even if Plaintiffs were to win at trial, and also prevail on any on appeal, Plaintiffs might not be able to collect some, or all, of any judgment they are awarded. Moreover, while litigation of this type is usually expensive, it appears that, even if Plaintiffs’ allegations were found to be true, the total amount of damages to which Settlement Class Members would be entitled could be substantially reduced.

  • The Settlement Class consists of those persons who purchased the Class A common stock of TERP  from July 18, 2014 through March 15, 2016, both dates inclusive, except that excluded from the Settlement Class are: (i) Defendant TERP and all current and former officers and directors of TERP; (ii) Defendants Ahmad Chatila, Carlos Domenech Zornoza, Brian Wuebbels, Alejandro Hernandez, and Francisco Perez Gundin; (iii) blood relatives and household members of any such person excluded under (i); (iv) any entities affiliated with, controlled by, or more than 5% owned by, any person excluded under (i) and (ii); (v) the legal representatives, heirs, successors or assigns of any person excluded under (i) through (iv); (vi) Opt-Outs; and (vii) Persons who have no compensable damages.

  • Yes. Excluded from the Settlement Class are (i) Opt-Outs, i.e., those Persons who timely and validly request exclusion from the Settlement Class, and (ii) Defendants, the present and former officers and directors of TERP, and any subsidiary thereof, during the Settlement Class Period, and the immediate family members, legal representatives, heirs, successors or assigns of such excluded persons and any entity in which any excluded Person has or had a controlling interest.

  • If you are still not sure whether you are included, you can ask for free help. For more information, you can contact the Claims Administrator, JND Legal Administration, by phone at 1-888-551-9716 or write to JND Legal Administration, PO Box 6847, Broomfield, CO 80021 or visit the website at www.terraformpowersecuritieslitigation.com or fill out and return the Proof of Claim and Release Form.

  • a. What is the Settlement Fund?

    The proposed Settlement provides for Defendants’ insurers to pay fourteen million seven hundred fifty thousand dollars ($14,750,000) into a settlement fund (the “Settlement Fund”). The Settlement is subject to Court approval. Also, subject to the Court’s approval, a portion of the Settlement Fund will be used to pay attorneys’ fees with interest and reasonable litigation expenses to Plaintiffs’ Counsel, and any Award to Lead Plaintiffs. A portion of the Settlement Fund also will be used to pay taxes due on interest earned by the Settlement Fund, if necessary, and the costs of the claims administration, including the costs of printing and mailing this Notice and the costs of publishing notice. After the foregoing deductions from the Settlement Fund have been made, the amount remaining (the “Net Settlement Fund”) will be distributed to Settlement Class Members who submit timely, valid claims, according to the Plan of Allocation to be approved by the Court.

     b. What can you expect to receive under the proposed Settlement?
     
    Your share of the Net Settlement Fund will or may depend on: (i) the number of claims filed; (ii) the dates you purchased and sold TERP securities; (iii) the prices of your purchases and sales; (iv) the amount of administrative costs, including the costs of notice; and (v) the amount awarded by the Court to Plaintiffs’ Counsel for attorneys’ fees, costs, and expenses and to Plaintiffs.

    The Claims Administrator will determine each Settlement Class Member’s pro rata share of the Net Settlement Fund based upon each Settlement Class Member’s valid “Recognized Loss.” The Recognized Loss formula is not intended to be an estimate of the amount that a Settlement Class Member might have been able to recover after a trial; it also is not an estimate of the amount that will be paid to Settlement Class Members pursuant to the Settlement. The Recognized Loss formula is the basis upon which the Net Settlement Fund will be proportionately allocated to the Settlement Class Members with valid claims.

    The Net Settlement Fund will be distributed to Settlement Class Members who submit a Proof of Claim and Release Form and whose claims for recovery are allowed by the Claims Administrator pursuant to the terms of the Settlement Stipulation or by order of the Court under the below Plan of Allocation, which reflects Plaintiffs’ contention that because of the alleged misrepresentations made by Defendants, the price of TERP securities was artificially inflated during the relevant period and that certain subsequent disclosures caused changes in the inflated price of TERP securities. Defendants have denied and continue to deny these allegations and any and all allegations of wrongdoing, fault, and liability or damage whatsoever asserted in the Action. 

    See page 6 of the Notice for the Proposed Plan of Allocation.

  • To qualify for a payment, you must have sent in a form entitled “Proof of Claim and Release Form.” This Proof of Claim and Release Form is attached to this Notice. You may also obtain a Proof of Claim and Release Form on the Internet at www.terraformpowersecuritieslitigation.com. Read the instructions carefully, fill out the form, sign it in the location indicated, and mail the claim form together with all documentation requested in the form, must have been postmarked no later than January 5, 2018, to:

    TerraForm Power, Inc. Securities Litigation
    c/o JND Legal Administration
    P.O. Box 6847
    Broomfield, CO 80021
    Tel: 1-888-551-9716

    The Claims Administrator will process your claim and determine whether you are an Authorized Claimant.

  • Unless you excluded yourself from the Settlement Class by the January 5, 2018 deadline, you will remain a member of the Settlement Class and will be bound by the release of claims against Defendants and other Released Parties if the Settlement is approved. That means you and all other Settlement Class Members and each of their respective parent entities, associates, affiliates, subsidiaries, predecessors, successors, assigns, attorneys, immediate family members, heirs, representatives, administrators, executors, devisees, legatees, and estates will release (agreeing never to sue, continue to sue, or be part of any other lawsuit) as against Defendants and other Released Parties any and all claims which arise out of, are based upon or relate in any way to the purchase or acquisition of TERP securities during the Settlement Class Period. It means that all of the Court’s orders will apply to you and legally bind you. That means you will accept a share of the Net Settlement Fund as sole compensation for any losses you suffered in the purchase, acquisitions, sale or ownership of TERP securities during the Settlement Class Period. The specific terms of the release are included in the Stipulation. 

  • If you do not want to receive a payment from this Settlement, and you want to keep any right you may have to sue or continue to sue Defendants or other Released Parties on your own about the claims being released in this Settlement, then you must take steps to exclude yourself from the Settlement. To exclude yourself from the Settlement, you must have mailed a letter that (A) clearly indicates your name, address, phone number and e-mail contact information (if any) and states that you “request to be excluded from the Settlement Class in Chamblee, et al. v. TerraForm Power, Inc., et al., 1:16-cv-08039 (S.D.N.Y.)”, and (B) states the date, number of shares and dollar amount of each TERP securities purchase or acquisition during the Settlement Class Period, and any sale transactions, and (ii) the number of shares of TERP securities held by you as of March 15, 2016. In order to be valid, such request for exclusion must be submitted with documentary proof (i) of each purchase and, if applicable, sale transaction of TERP securities during the Settlement Class Period and (ii) demonstrating your status as a beneficial owner of the TERP securities. Any such request for exclusion must be signed and submitted by you, as the beneficial owner, under penalty of perjury. You must mail your exclusion request, to be received no later than January 5, 2018, to the Claims Administrator at the following address:

    TerraForm Power, Inc. Securities Litigation
    EXCLUSIONS
    c/o JND Legal Administration
    P.O. Box 6847
    Broomfield, CO 80021
    Tel: 1-888-551-9716

    You cannot exclude yourself by telephone or by e-mail.

    If you properly exclude yourself, you will not receive a payment from the Net Settlement Fund, you cannot object to the Settlement, and you will not be legally bound by the judgment in this case.

  • No. Unless you followed the procedure outlined in the Notice to exclude yourself, you give up any right to sue Defendants or other Released Parties for the claims being released in this Settlement. If you have a pending lawsuit related to any Released Claims, speak to your lawyer in that case immediately, since you must exclude yourself from this Settlement Class to continue your own lawsuit. 

  • The Court appointed Pomerantz LLP as Lead Counsel and The Rosen Law Firm, P.A. has served as additional counsel to the Class (collectively “Plaintiffs’ Counsel”), to represent you and the other Settlement Class Members. If you want to be represented by your own lawyer, you may hire one at your own expense. Contact information for Pomerantz LLP is provided below.

  • Plaintiffs’ Counsel have expended considerable time litigating this Action on a contingent fee basis, and have paid for the expenses of the case themselves. They have not been paid attorneys’ fees or reimbursed for their expenses in advance of this Settlement. Plaintiffs’ Counsel have done so with the expectation that, if they are successful in recovering money for the Settlement Class, they will receive attorneys’ fees and be reimbursed for their litigation expenses from the Settlement Fund, as is customary in this type of litigation. Plaintiffs’ Counsel will not receive attorneys’ fees or be reimbursed for their litigation expenses except from the Settlement Fund. Therefore, Plaintiffs’ Counsel will file a motion asking the Court at the Settlement Hearing to make an award of attorneys’ fees in an amount not to exceed 25% plus interest of the Settlement Amount ($3,687,500), reimbursement of litigation expenses of no more than $150,000 and an Award to Lead Plaintiffs collectively not to exceed $4,000 ($2,000 each). The Court may award less than these amounts. Any amounts awarded by the Court will come out of the Settlement Fund.

  • You can tell the Court you do not agree with the Settlement, any part of the Settlement, Plaintiffs’ Counsel’s motion for attorneys’ fees and expenses and application for an Award to Plaintiffs, and that you think the Court should not approve the Settlement, by mailing a letter stating that you object to the Settlement in the matter of Chamblee, et al. v. TerraForm Power, Inc., et al., 1:16-cv-08039 (S.D.N.Y.). Be sure to include (1) your name, address, and telephone number, (2) a list of all purchases and sales of TERP securities during the Settlement Class Period in order to show membership in the Settlement Class, (3) all grounds for the objection, including any legal support known to you or your counsel, (4) the name, address and telephone number of all counsel, if any, who represent you, including your former or current counsel who may be entitled to compensation in connection with the objection, and (5) the number of times you and/or your counsel has filed an objection to a class action settlement in the last five years, the nature of each such objection in each case, the jurisdiction in each case, and the name of the issuer of the security or seller of the product or service at issue in each case. Attendance at the Settlement Hearing is not necessary. Objectors wishing to be heard orally at the Settlement Hearing are required to indicate in their written objection (or in a separate writing that is submitted in accordance with the deadline and after instruction pertinent to the submission of a written objection) that they intend to appear at the Settlement Hearing and identify any witnesses they may call to testify or exhibits they intend to introduce into evidence at the Settlement Hearing. Be sure to serve copies of any objections, papers and briefs to each of the addresses listed below, to be received no later than January 5, 2018:

    COURT

    PLAINTIFFS’ COUNSEL

    COUNSEL FOR DEFENDANT TERRAFORM POWER, INC.

    Clerk of the Court

    United States District Court

    Southern District of New York

    500 Pearl Street

    New York, NY 10007

    Jeremy A. Lieberman

    POMERANTZ LLP

    600 Third Avenue, Floor 20

    New York, NY 10016

    Michael G. Bongiorno, Esq.

    WILMER CUTLER PICKERING

    HALE AND DORR LLP

    7 World Trade Center

    250 Greenwich Street

    New York, NY 10007

    COUNSEL FOR DEFENDANTS AHMAD CHATILA AND BRIAN WUEBBELS

    COUNSEL FOR DEFENDANT ALEJANDRO HERNANDEZ

    COUNSEL FOR DEFENDANTS CARLOS DOMENECH ZORNOZA AND FRANCISO PEREZ GUNDIN

    Sara B. Brody

    SIDLEY AUSTIN LLP

    555 California Street,

    Suite 2000

    San Francisco, CA 94104

    Daniel Bookin

    O’MELVENY & MYERS LLP

    Two Embarcadero Center

    28th Floor

    San Francisco, CA 94111

    Kevin J. O’Connor

    HINCKLEY ALLEN & SNYDER LLP

    28 State Street

    Boston, MA 02109

  • Objecting is simply telling the Court you do not like something about the Settlement or some portion thereof. You can object only if you stay in the Settlement Class. Requesting exclusion is telling the Court you do not want to be part of the Settlement Class and Settlement. If you exclude yourself, you cannot object to the Settlement because it no longer concerns you. If you stay in the Settlement Class and object, but your objection is overruled, you will not be allowed a second opportunity to exclude yourself.

  • The Court held a Settlement Hearing on January 31, 2018, at 2:00 P.M., at the United States District Court, Southern District of New York, 500 Pearl; Street, Courtroom 11D, New York, New York 10007.

    At this hearing, the Court approved the Settlement is fair, reasonable, and adequate and whether to approve the Settlement. If there are objections, the Court will consider them, and the Court will listen to people who have asked to speak at the hearing. The Court may also decide how much to pay Plaintiffs’ Counsel for attorneys’ fees and expenses and how much to award Lead Plaintiffs.

  • No. Plaintiffs’ Counsel will answer any questions the Court may have. However, you are welcome to attend at your own expense. If you have sent an objection, you do not need to be present at Court to talk about it. As long as you mail your written objection on time, the Court will consider it. 

  • If you do nothing, you will not receive a payment from the Settlement. However, unless you have excluded yourself, you will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Defendants or the Released Parties about the Released Claims (as defined in the Settlement Stipulation) ever again.

For More Information

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Address
TerraForm Power, Inc. Securities Litigation
c/o JND Legal Administration
P.O. Box 6847
Broomfield, CO 80021