GAINEY McKENNA & EGLESTON Announces Proposed Class Action Settlement on Behalf of Purchasers of Symantec Corporation n/k/a Gen Digital Inc. Common Stock in the Symantec Corporation Employee Stock Purchase Plan - GEN

WILMINGTON, Del., Sept. 04, 2024 (GLOBE NEWSWIRE) -- GAINEY McKENNA & EGLESTON announces that the Superior Court of the State of Delaware has approved the following announcement of a proposed class action settlement that would benefit purchasers of Symantec Corporation n/k/a Gen Digital Inc. common stock in the Symantec Corporation Employee Stock Purchase Plan (NASDAQ: GEN):

NOTICE OF CLASS ACTION DETERMINATION,
PROPOSED SETTLEMENT AND HEARING

If you purchased or otherwise acquired the publicly traded common stock of Symantec Corporation¹ n/k/a/ Gen Digital Inc. (“Gen Digital,” “Symantec” or the “Company”) in the Symantec Corporation Employee Stock Purchase Plan (“ESPP” or “Plan”) between May 22, 2015 and May 10, 2018 (“Relevant Period”), you may be a member of the Settlement Class (“Class” or “Class Member”) and eligible to receive payment from a class action settlement (the “Settlement”).²

Under law, the Superior Court of the State of Delaware has authorized this notice.

• On August 5, 2024 The Honorable Vivian L. Medinilla of the Superior Court of the State of Delaware (the “Court”) preliminarily approved the Settlement and ordered that this Notice be sent to Class Members.
• If approved by the Court, the settlement will provide $850,000, plus any interest earned (the “Settlement Fund”), less expenses, to those persons who purchased or otherwise acquired Symantec publicly traded common stock in the Plan during the Relevant Period pursuant to the ESPP.
• Attorneys for the Plaintiff in the above captioned action (“Plaintiff’s Counsel”) intend to ask the Court for an award of attorneys’ fees of not more than one-third of the Settlement Fund, for all law firms that were involved in the action on behalf of Plaintiff and the Class, and reimbursement of case-related expenses of not more than $10,000 (“Fee and Expenses”). Plaintiff’s Counsel is seeking reimbursement of Fee and Expenses because the attorneys provided, on a contingent basis, legal services, and advanced expenses for the prosecution of the above-captioned action, and believe their efforts made it possible for Class Members to achieve the Settlement. After Plaintiff’s Counsel’s requests are filed with the Court, they will be posted to the settlement website at www.strategicclaims.net/ESPPSettlement/.
• The law firms that were involved on behalf of the Plaintiff were “Plaintiff’s Counsel,” which means the law firm of Gainey McKenna & Egleston of New York, New York, and Bielli & Klauder, LLC of Wilmington, Delaware.
• The claims asserted against Gen Digital, and Frank E. Dangeard, Geraldine B. Laybourne, David L. Mahoney, Robert S. Miller, Suzanne M. Vautrinot, and V. Paul Unruh (collectively, the “Defendants”) arise under Section 11 of the Securities Act of 1933 (the “Securities Act”), and the Settlement resolves those claims.
• If you are a member of the Class and are entitled to receive a share of the distribution of the Net Settlement Fund, a check will be sent to you at the last address on file with the Plan. If you have changed your address, contact the Claims Administrator at the address noted below.
• This is a non-opt-out class action Settlement. If you are a Class Member, your legal rights will be affected. Therefore, you should read this Notice carefully.
  

INQUIRIES

Please do not contact the Court regarding this notice. All inquiries concerning this Notice, or any other questions by Class Members should be directed to:

COMMON QUESTIONS AND ANSWERS CONCERNING THE SETTLEMENT

1.      Why did I get this Notice?

You or someone in your family may have purchased or otherwise acquired Symantec common stock pursuant to the ESPP during the Relevant Period.

2.      What is this lawsuit about?

The case is known as Kukard v. Symantec Corporation, et al., C.A. No. N18C-07-117-VLM-CCLD (the “Action”), and the Court in charge of the case is the Superior Court of the State of Delaware.

This is an action brought by Bret Kukard (“Plaintiff”) purportedly derivatively and in the alternative as a class action on behalf of the Symantec Corporation Employee Stock Purchase Plan (“ESPP or “Plan”) on behalf of all persons who purchased or otherwise acquired Symantec common stock between May 22, 2015 and May 10, 2018 (“Relevant Period”) in the Plan. Plaintiff alleges violations under Section 11 of the Securities Act of 1933 (“Securities Act”) related to the Company’s disclosures concerning its internal controls over financial reporting against Gen Digital and Frank E. Dangeard, Geraldine B. Laybourne, David L. Mahoney, Robert S. Miller, Suzanne M. Vautrinot, and V. Paul Unruh.

Plaintiff claims that Defendants are liable under Section 11 of the Securities Act by reason of material misrepresentations and omissions in documents incorporated by reference in the Registration Statement. Specifically, Plaintiff alleges that the Plan’s Registration Statement, along with other documents it incorporated by reference, failed to disclose that: (i) the Company’s internal controls over financial reporting were materially weak and deficient; (ii) the Company’s later disclosed “reporting of certain Non-GAAP measures including those that could impact executive compensation programs” would lead to heightened regulatory scrutiny by the SEC; and (iii) as a result, certain of the Company’s public statements were materially false and misleading.

On July 13, 2018, Plaintiff filed a complaint (“Complaint”), C.A. No. N18C-07-117-VLM-CCLD, in the Superior Court of the State of Delaware, See Dkt. No. 1.

On August 2, 2018, by mutual agreement, the Parties agreed to stay the Action pending the filing of the Company’s Annual Report on Form 10-K for the fiscal year ended March 30, 2018. Dkt. No. 7. The Court granted the Stay on August 9, 2018. See Dkt. No. 8. The Company subsequently filed its Annual Report for the fiscal year ended March 30, 2018 on October 26, 2018. Following the filing of the Company’s Annual Report, the Parties met and conferred on October 31, 2018 and agreed that the stay remain in effect pending the outcome of a related securities class action in the Northern District of California (“Federal Securities Action”). See Dkt. No. 11. Following a successful motion to dismiss and subsequent filing of an amended complaint in the Federal Securities Action, the Parties agreed again to stay the Action pending the outcome of the Federal Securities Action and renewed the stay on several occasions. See Dkt. Nos. 12–17, 19, 24–28.

While the Action was stayed, in an effort to conserve judicial resources and attempt to settle the Action, the Parties engaged in settlement negotiations, including a mediation, which was held on May 3, 2022. See Dkt. Nos. 19, 24–28. Although a resolution was not reached immediately at the mediation, the Parties continued to engage in arms-length negotiations and reached an agreement in principle to settle the Action on October 23, 2023, subject to the negotiation of a Stipulation of Settlement and approval by the Court.

3.      Why is this a class action?

In a class action, one or more persons and/or entities, called the Class Representative(s), 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. The Class Representative appointed by the Court in the Action is Bret Kukard.

4.      Why is there a Settlement?

The Class Representative and Defendants do not agree regarding the merits of the Class Representative’s allegations with respect to liability or the amount of damages that would be recoverable if the Class Representative were to prevail on his claims at trial. The issues on which the Class Representative and Defendants disagree include: (a) whether Defendants violated Section 11 of the Securities Act; (b) whether Defendants published false and misleading statements; (c) whether Defendants’ conduct was the cause of the Class Members’ alleged damages; and (d) the amount of damages, if any, suffered by the Class Members.

This matter has not gone to trial and the Court has not decided in favor of either the Class Representative or Defendants. Instead, the Class Representative and Defendants participated in arms-length negotiations, including mediation presided over by a neutral party, Phillips ADR, and as a result, the Parties have agreed to settle the Action. The Class Representative and Plaintiff’s Counsel believe the Settlement is best for all Class Members because of the risks associated with continued litigation and the nature of the defenses raised by Defendants. Even if the Class Representatives were to win at trial, Defendants could file an appeal whose outcome would be uncertain and which appeal could affect the collectability of any judgment previously obtained.

5.      How do I know if I am part of the Settlement?

To be a Class Member, you must have been an employee or ex-employee of the Company who purchased or otherwise acquired Symantec publicly traded common stock in the Plan during the Relevant Period, from May 22, 2015 and May 10, 2018, pursuant to the ESPP, and suffered financial damages as a result.

6.      What does the Settlement provide?

(a)      What is the Settlement Fund?

The proposed Settlement calls for the Company to create a Settlement Fund (the “Settlement Fund”) in the amount of $850,000. 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 Plaintiff’s Counsel’s attorneys’ Fee and Expenses, and any case contribution award granted to the Class Representative. A portion of the Settlement Fund also will be used to pay taxes due on any interest earned by the Settlement Fund, if necessary, any tax expenses, and any notice and claims administration expenses permitted by the Court. After the foregoing deductions from the Settlement Fund have been made, the amount remaining (the “Net Settlement Fund”) will be distributed to Class Members who are entitled to share in the Net Settlement Fund.

(b)      What can you expect to receive under the proposed Settlement?

Your share of the Net Settlement Fund will or may depend on the recognized loss as to each share of Symantec common stock you purchased in the Plan during the Relevant Period, less the amount of required taxes and tax expenses, and administrative costs incurred in connection with the Settlement, including the costs of notice, and the amount awarded by the Court for Plaintiff’s Fee and Expenses and any case contribution award granted to the Class Representative.

The Net Settlement Fund will be distributed to Class Members according to the Plan of Allocation. If you are a member of the Class and are entitled to receive a share of the distribution of the Net Settlement Fund, a check will be sent to you at the last address on file with the Plan. If you have changed your address, contact the Claims Administrator at the address noted herein.

PROPOSED PLAN OF ALLOCATION OF THE NET SETTLEMENT FUND

For each Class Member, the Claims Administrator shall determine the approximate recognized loss (“Recognized Loss”) as to each share of Symantec common stock you purchased in the Plan during the Relevant Period, less the amount of required taxes and tax expenses, and administrative costs incurred in connection with the Settlement, including the costs of notice, and the amount awarded by the Court for Plaintiff’s Fee and Expenses and any case contribution award granted to the Class Representative.

In the event that a Plan participant’s account was transferred, in whole or in part, to a beneficiary (including an alternate payee) during the Relevant Period, the participant and the transferee beneficiary shall be treated as a single Class Member for the purpose of determining a Recognized Loss. The Recognized Loss shall then be allocated between the participant and beneficiary according to the proportion of the Recognized Loss attributable to the holdings of the participant and beneficiary.

The Recognized Losses of the Class Members as calculated above will be totaled to yield the loss of the Plan as a whole over the Relevant Period (the “Plan’s Loss”).

The Claims Administrator shall calculate each Class Member’s “Preliminary Fractional Share” of the Plan’s Loss by dividing each Class Member’s Recognized Loss by the Plan’s Loss.

The Claims Administrator shall then calculate each Class Member’s “Preliminary Dollar Recovery” of the Net Settlement Fund by multiplying the Class Member’s Preliminary Fractional Share by the Net Settlement Fund.

The Claims Administrator shall identify all Class Members whose Preliminary Dollar Recovery is less than five dollars ($5.00) (the “Minimum Amount”). The Settling Parties in their discretion reserve their right to propose a modified Minimum Amount if further review of the data of the Plan so indicates.

All Class Members whose Preliminary Dollar Recovery is more than zero dollars ($0) but less than five dollars ($5.00) will be deemed to have a final share equal to zero dollars ($0) and will not receive a Settlement distribution.

The Claims Administrator shall then, after noting all Class Members whose Preliminary Dollar Recovery is less than the Minimum Amount, recalculate the Preliminary Fractional Shares and the Preliminary Dollar Recoveries so as to arrive at the “Final Fractional Share” and the “Final Dollar Recovery” for each Class Member entitled to a Preliminary Dollar Recovery above the Minimum Amount. The sum of the Final Dollar Recoveries must equal the Net Settlement Fund.

DISTRIBUTION OF THE ALLOCATED AMOUNTS.

A.        As soon as practicable after the calculations made above and after the Effective Date of Settlement, Plaintiff’s Counsel shall direct the Escrow Agent to transfer the Net Settlement Fund to the Claims Administrator for distribution.

B.        Distribution to Class Members. As promptly as reasonably possible after transfer of the Net Settlement Fund to the Claims Administrator, the Claims Administrator shall mail to each Class Member a check for his or her Final Dollar Recovery. You may elect to receive an electronic payment instead of a check. If you choose an electronic payment, you must go to the Claims Administrator’s website at www.strategiccclaims.net/ESPPSettlement/ and complete an electronic payment form.

C.        If any Class Member with a Final Dollar Recovery cannot be located despite reasonable efforts, such Class Member’s Final Dollar Recovery shall be available for a redistribution to other Class Members if economically feasible in accordance with the Stipulation, or administered in accordance with the procedures of the Plan regarding participants who cannot be located. If any Class Member with a Final Dollar Recovery is deceased, such Class Member’s Final Dollar Recovery shall be administered in accordance with the procedures of the Plan regarding deceased participants.

        Payment pursuant to the Plan of Allocation approved by the Court shall be conclusive against all Class Members. No person or entity shall have any claim against Defendants, Related Parties, the Class Representative, Plaintiff’s Counsel, the Plan Administrator, or the Claims Administrator or other agent designated by Class Counsel, based on the distributions made substantially in accordance with the Stipulation and the Settlement contained therein, the Plan of Allocation, or further orders of the Court. All persons involved in the review, verification, calculation, tabulation, or any other aspect of the processing of the Net Settlement Fund in connection with the Settlement, or otherwise involved in the administration or taxation of the Settlement Fund or the Net Settlement Fund, shall be released and discharged from any and all claims arising out of such involvement, and all Class Members, whether or not they are to receive payment from the Net Settlement Fund, will be barred from making any further claim against the Net Settlement Fund beyond the amount allocated to them as provided in any distribution orders entered by the Court.

7.      How do I get a payment?

If you are a member of the Class and are entitled to receive a share of the distribution of the Net Settlement Fund, a check will be sent to you at the last address on file with the Plan or to any new address you submitted to the Claims Administrator through the Claims Administrator’s website at www.strategiccclaims.net/ESPPSettlement/, or you may elect to receive your share via an electronic transfer. If you have changed your address or choose an electronic transfer, you must complete a change of address form or an electronic payment form on the Claims Administrator’s website at www.strategicclaims.net/ESPPSettlement/.

8.      Can I exclude myself from the Settlement?

In some class actions, class members have the opportunity to exclude themselves from a Settlement. This is sometimes referred to as “opting out” of a Settlement. You do not have the right to exclude yourself from the Settlement in this Action. This Action was conditionally certified for settlement purposes under Super. Ct. Civ. R. 23 as a “non-opt out” class action. Therefore, it is not possible for Class Members to exclude themselves from the Settlement. As a Class Member, you will be bound by any judgments or orders that are entered in the Action for all claims that were or could have been asserted in the Action or are otherwise released under the Settlement.

Although you cannot opt out of the Settlement, you can object to the Settlement and ask the Court not to approve the Settlement. For more information on objections, see Question 12 below.

Further detail and information about the Settlement is set forth in the Stipulation of Settlement, which is available at www.strategicclaims.net/ESPPSettlement/.

9.      Since I cannot exclude myself, can I sue Defendants for the same thing later?

No, if the Settlement is given final approval, all Class Members give up any right to sue Defendants or Related Parties for the claims that this Settlement resolves. If you have a pending lawsuit involving the same issues as involved in this action, speak to your lawyer in that case immediately.

10.      Do I have a lawyer in this case?

The Court has appointed Gainey McKenna & Egleston as Class Counsel to represent the Class Members for the purposes of this Settlement. You have the option to retain your own separate counsel at your own cost and expense. You need not retain your own separate counsel to object or appear at the Settlement Fairness Hearing.

11.      How will the lawyers be paid?

Plaintiff’s Counsel assert that they have expended considerable time litigating this Action on a contingent fee basis, have paid for the expenses of the Action themselves, and have not been paid any attorneys’ fees in advance of this Settlement. Plaintiff’s Counsel have done so with the expectation that if they are successful in recovering money for the Class, they will receive attorneys’ fees and be reimbursed for their expenses from the Settlement Fund. Plaintiff’s Counsel will not receive attorneys’ fees or be reimbursed for their expenses except from the Settlement Fund.

Therefore, Plaintiff’s Counsel will file a motion asking the Court at the Settlement Fairness Hearing to make an award of attorneys’ fees in an amount not to exceed one-third (1/3) of the Settlement Fund, and for reimbursement of expenses in an amount not to exceed $10,000 in total, together with a case contribution award to the Class Representative. The Court may award less than these amounts. Any amounts awarded by the Court will come out of the Settlement Fund. After Plaintiff’s Counsel’s motion is filed with the Court, it will be posted to the settlement website at www.strategicclaims.net/ESPPSettlement/.  

12.      How do I tell the Court that I do not like the Settlement?

You can tell the Court you do not agree with the Settlement, any part of the Settlement, or Plaintiff’s Counsel’s Fee and Expense Application, and that you think the Court should not approve the Settlement, by filing a letter with the Court stating that you object to the Settlement in the matter of Kukard v. Symantec Corporation, et al., C.A. No. N18C-07-117-VLM-CCLD (Del. Super. Ct.). Be sure to include: (1) your name, (2) your address, (3) your telephone number, (4) your signature, (5) a statement containing all of the reasons you object to the Settlement, and (6) documents sufficient to prove that you are a Class Member, namely, that you purchased or otherwise acquired Symantec common stock in the Plan during the Relevant Period, the number of shares of Symantec common stock you held, as well as the dates and prices of each purchase, acquisition, and/or sale of Symantec common stock. You must also include copies of any documents that you wish the Court to consider. Be sure to mail a copy of the objection to the Clerk of the Court at the address listed below and to mail or email copies of the objection to Plaintiff’s and Defendants’ Counsel at the addresses listed below by no later than November 13, 2024, so the Court will consider your views:

13.      When and where will the Court decide whether to approve the Settlement?

The Court will hold a Settlement Fairness Hearing in person on December 4, 2024 at 1:00 p.m., before The Honorable Vivian L. Medinilla, at the Superior Court of the State of Delaware, 500 North King Street, Wilmington, Delaware 19801. If the date or method of holding the Settlement Fairness Hearing is changed, the new information will be posted to the settlement website at www.strategicclaims.net/ESPPSettlement/.

At this Settlement Fairness Hearing, the Court will consider whether 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 award Plaintiff’s Counsel for attorneys’ fees, expenses and a case contribution award for the Class Representative.

If you wish to attend the Settlement Fairness Hearing and be heard orally in opposition to the Settlement, the Plan of Allocation, and/or the application for Fee and Expenses, you are required to indicate in your written objection, submitted as described in response to Question 12 above, that you intend to appear at the Settlement Fairness Hearing. Your written objection must identify any witnesses you may call to testify or exhibits you intend to introduce into evidence at the Settlement Fairness Hearing.

14.      Do I have to come to the Settlement Fairness Hearing?

No. Plaintiff’s Counsel will answer any questions the Court may have. You are, however, welcome to attend at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you file and mail your written objection and it is received on time, the Court will consider it.

15.      What happens if I do nothing at all?

If you do nothing, and the Settlement is granted final approval by the Court, you will receive a payment from the Net Settlement Fund if you are entitled to one under the Plan of Allocation and the Settlement will bind you. You will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Defendants or Related Parties in connection with Released Claims.

Dated: August 8, 2024

SUPERIOR COURT OF THE STATE OF DELAWARE

¹         On November 4, 2019, the Company filed an amendment to its certificate of incorporation with the Delaware Secretary of State changing its name from “Symantec Corporation” to “NortonLifeLock Inc.” On November 7, 2022, the Company again filed an amendment to its certificate of incorporation changing its name from “NortonLifeLock Inc.” to “Gen Digital Inc.”
²         This Notice of Class Action Determination, Proposed Settlement, and Hearing (“Notice”) incorporates by reference the definitions in the Stipulation of Settlement (the “Stipulation”) dated as of June 26, 2024, and all capitalized terms used, but not defined herein, shall have the same meanings as in the Stipulation. The Stipulation with its supporting exhibits is posted on the Claims Administrator’s website at www.strategicclaims.net/ESPPSettlement/.