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KESSLER TOPAZ

MELTZER & CHECK, LLP

Andrew L. Zivitz

azivitz@ktmc.com 

Johnston de F. Whitman, Jr. 

jwhitman@ktmc.com

Jonathan F. Neumann

jneumann@ktmc.com

280 King of Prussia Road

Radnor, PA 19087

Telephone: (610) 667-7706

Facsimile: (610) 667-7056

-andJennifer L. Joost

jjoost@ktmc.com

One Sansome Street, Suite 1850

San Francisco, CA 94104

Telephone: (415) 400-3000

Facsimile: (415) 400-3001

Lead Counsel for Lead Plaintiff, Class 

Representative, and the Class

BONNETT, FAIRBOURN,

FRIEDMAN & BALINT, P.C.

Francis J. Balint, Jr.

fbalint@bffb.com

Andrew S. Friedman

afriedman@bffb.com

2325 E. Camelback Road, Suite 300

Phoenix, AZ 85016

Telephone: (602) 274-1100

Facsimile: (602) 274-1199

Liaison Counsel for Lead Plaintiff, Class 

Representative, and the Class

[Additional Counsel listed on signature page.]

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Richard Di Donato, Individually and On 

Behalf of All Others Similarly Situated,

Plaintiff,

v.

Insys Therapeutics, Inc.; Michael L. 

Babich; Darryl S. Baker; and John N. 

Kapoor,

Defendants.

No. 16-cv-00302-NVW

CLASS ACTION

SUPPLEMENT TO CLASS 

REPRESENTATIVE’S MOTION FOR 

PRELIMINARY APPROVAL OF 

SETTLEMENT WITH DEFENDANT 

MICHAEL L. BABICH

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i

TABLE OF CONTENTS

Page

I. MR. BABICH’S CURRENT ASSETS.................................................................... 1

II. THE SOURCE OF FUNDING FOR THE PROPOSED SETTLEMENT .............. 1

III. MR. BABICH’S POTENTIAL TO PAY A GREATER AMOUNT....................... 2

A. Mr. Babich’s Ability to Pay .......................................................................... 2

B. The Plaintiff Class’s Risk of Recovering Less Than the Settlement Amount, 

Even After Securing a Jury Verdict Against Mr. Babich ............................. 4

1. A Jury Verdict Will Likely Cause Mr. Babich to Become Insolvent, 

Triggering the Arizona Attorney General’s Right to Enforce 

Immediately a $642 Million Stipulated Judgment Against Mr. 

Babich ................................................................................................ 5

2. A Jury Verdict for the Plaintiff Class Will Likely Cause the Federal 

Government to Execute Immediately Upon the $74 Million in 

Combined Forfeiture and Restitution Amounts that Mr. Babich 

Owes................................................................................................... 7

IV. CONCLUSION ........................................................................................................ 7

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ii

TABLE OF AUTHORITIES

Page(s)

Cases

In re Amgen Inc. Sec. Litig.,

2016 WL 10571773 (C.D. Cal. Oct. 25, 2016).............................................................. 4

Anixter v. Home-Stake Prod. Co.,

77 F.3d 1215 (10th Cir. 1996) ....................................................................................... 4

In re Apple Comput. Sec. Litig.,

1991 WL 238298 (N.D. Cal. Sept. 6, 1991)...............................................................4-5

In re BankAtlantic Bancorp, Inc. Sec. Litig.,

2011 WL 1585605 (S.D. Fla. Apr. 25, 2011), aff’d on other grounds, 

688 F.3d 713 (11th Cir. 2012) ....................................................................................... 4

Larson v. Harman-Mgmt. Corp.,

2019 WL 7038399 (E.D. Cal. Dec. 20, 2019) ............................................................3-4

In re Mego Fin. Corp. Sec. Litig.,

213 F.3d 454 (9th Cir. 2000) ......................................................................................... 3

Robbins v. Koger Props. Inc.,

116 F.3d 1441 (11th Cir. 1997) ..................................................................................... 4

Schaffer v. Litton Loan Servicing, LP,

2012 WL 10274679 (C.D. Cal. Nov. 13, 2012)............................................................. 3

Statutes

ARS §§ 13-2301, et. seq...................................................................................................... 5

ARS §§ 44-1521, et seq....................................................................................................... 5

Other Authorities

United States of America v. Babich, et al., 

No. 1:16-cr-10343-ADB (D. Mass.)...................................................................... 1, 2, 7

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1

Pursuant to the Court’s July 24, 2020 Order (Doc. 400), the Court-appointed Class

Representative (together with the Plaintiff Class, “Plaintiffs”) and Defendant Michael L. 

Babich (“Mr. Babich” or the “Settling Defendant” and, together with Class 

Representative, the “Settling Parties”) hereby respectfully submit this supplement 

(“Supplement”) to Class Representative’s motion for preliminary approval of the 

proposed settlement of the above-captioned action (“Action”) between Class 

Representative and Mr. Babich. Doc. 399.

1

I. MR. BABICH’S CURRENT ASSETS

As of June 2020, Mr. Babich had approximately $23.1 million in assets, consisting 

of approximately $21.6 million in marketable and unmarketable securities, a significant 

portion of which is substantially illiquid, and $1.5 million in cash assets. See Declaration 

of Russell Piccoli (“Piccoli Decl.”), ¶ 5, attached as Exhibit 1 to the Declaration of 

Johnston de F. Whitman, Jr. (“Whitman Decl.”).

As set forth in Class Representative’s Motion for an Order Preliminarily 

Approving Settlement with Michael L. Babich (the “Preliminary Approval Motion”) 

(Doc. 399), Mr. Babich’s current assets are offset by, among other things, his unsatisfied 

forfeiture and restitution obligations—in excess of $74 million—imposed as a result of 

his guilty plea in United States of America v. Babich, et al., No. 1:16-cr-10343-ADB 

(D. Mass.) (“Criminal Action”). Furthermore, as discussed below, Mr. Babich is 

currently defending numerous other pending matters that collectively seek more than

$3 billion in damages (the “Concurrent Litigation”). See infra Section III.A.

II. THE SOURCE OF FUNDING FOR THE PROPOSED SETTLEMENT

Mr. Babich intends to fund the Settlement Amount by paying cash from the 

approximately $1.5 million in cash assets that he currently holds. Piccoli Decl., ¶¶ 5,7.

 

1 All terms with initial capitalization not otherwise defined herein shall have the 

meanings ascribed to them in the Stipulation and Agreement of Settlement Between Lead 

Plaintiff and Defendant Michael L. Babich dated July 21, 2020 (the “Stipulation”). 

Doc. 399-1.

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III. MR. BABICH’S POTENTIAL TO PAY A GREATER AMOUNT

Mr. Babich is not in a position to pay more to settle this matter given his current 

financial condition, as constrained by the $74 million in unsatisfied forfeiture and 

restitution obligations arising from the Criminal Action and the more than $3 billion in 

exposure from the cases comprising the Concurrent Litigation. As the Court recognized, 

“settlements must always leave defendants better off than a total liquidation of assets.” 

Doc. 400 at 2. Here, the proposed Settlement payment that Mr. Babich has agreed to 

make must be evaluated in light of: (i) his ability to pay, not only based upon his assets 

counterbalanced by his unsatisfied liabilities discussed above, but also considering his 

financial exposure to the Concurrent Litigation; and (ii) the appreciable risk that, even if 

Plaintiffs prevailed following a time-consuming and expensive trial, given Mr. Babich’s 

constrained assets and existing financial obligations to federal and state regulators, the 

Plaintiff Class would recover less than the Settlement Amount (or nothing), because they 

would likely be relegated to pursuing claims against Mr. Babich’s bankruptcy estate

alongside (at best) state and federal regulators, among others, that already have stipulated

judgments against Mr. Babich.

A. Mr. Babich’s Ability to Pay

As stated in the Preliminary Approval Motion, Mr. Babich’s unsatisfied forfeiture 

and restitution obligations to the federal government exceed his current net worth by 

more than $49 million. Doc. 399 at 9-10. These federal judgments present a direct 

restraint on Mr. Babich’s ability to pay a greater amount here.

Moreover, the Settling Parties have attached as Exhibit 2 to the Whitman Decl. a 

document addressing the cases comprising the Concurrent Litigation, together with 

damages estimates, which exceed $3 billion in the aggregate. Mr. Babich’s ability to pay 

more to fund a settlement of Plaintiffs’ claims against him in the Action is constrained by 

his collective financial exposure from and his ongoing need to fund a defense of the 

claims against him in the Concurrent Litigation. Piccoli Decl., ¶¶ 8-9. Additionally, a 

payment from Mr. Babich greater than the costs of defending the claims against him in 

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this Action could create a run on Mr. Babich’s currently negative net worth from the 

plaintiffs suing him in the Concurrent Litigation. Id., ¶ 9. If successful, these claims 

would lead Mr. Babich into bankruptcy. Id.

Given these circumstances, Mr. Babich’s position is that the $250,000 Settlement 

Amount, representing his counsel’s estimated cost of defending Mr. Babich through the 

conclusion of this matter, was the maximum settlement payment that Mr. Babich could 

make. Piccoli Decl., ¶ 8. In this regard, Mr. Babich viewed paying any greater Settlement 

Amount and trying the case to verdict in Plaintiffs’ favor as presenting a roughly 

equivalent risk of insolvency for Mr. Babich. Id., ¶ 10. For Plaintiffs, their alternative to 

accepting the Settlement Amount to resolve the Action as to Mr. Babich was to try the 

case, at great expense;

2

and, if successful, pursue their judgment against Babich alongside

other creditors, including the State of Arizona, in Babich’s likely inevitable bankruptcy 

filing. Id., ¶¶ 13-14; see also infra Section III.B.

The proposed Settlement provides an immediate cash payment for the benefit of 

the Class, as opposed to the likelihood of recovering less or nothing following a costly 

trial and lengthy appeals process. In this regard, “[i]t is well-settled law that a cash 

settlement amounting to only a fraction of the potential recovery does not per se render 

the settlement inadequate or unfair.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 

(9th Cir. 2000) (citation omitted). “Estimates of what constitutes a fair settlement figure 

are tempered by factors such as the risk of losing at trial, the expense of litigating the 

case, and the expected delay in recovery (often measured in years).” Schaffer v. Litton 

Loan Servicing, LP, 2012 WL 10274679, *11 (C.D. Cal. Nov. 13, 2012); see also, e.g., 

Larson v. Harman-Mgmt. Corp., 2019 WL 7038399, at *6-7 (E.D. Cal. Dec. 20, 2019)

 

2 Plaintiffs’ cost of trying the case would far exceed the cost to Mr. Babich. Among 

other things, Plaintiffs have retained three expert witnesses, at least two of which are 

certain to testify at trial, while Mr. Babich has none. Additionally, as Class Counsel 

neither resides nor maintains offices in Phoenix, there would be considerable costs 

securing CDC-compliant travel, lodging, and office space for a minimum of three weeks 

in preparing for and presenting at trial.

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(preliminarily approving settlement representing less than 0.1% of potential statutory 

damages).

Moreover, the proposed Settlement, combined with the settlements reached in the 

Action with Defendants Darryl S. Baker and John L. Kapoor, will provide the Class with 

a collective payment of no less than $2.95 million, with the potential to increase to up to 

$12.25 million, comprising a favorable aggregate recovery for the Class. See Doc. 399 

at 13-14.

B. The Plaintiff Class’s Risk of Recovering Less Than the Settlement Amount, 

Even After Securing a Jury Verdict Against Mr. Babich

It is well-established that the proposed Settlement must be considered alongside 

the risk that the jury would find in Mr. Babich’s favor following a costly trial, as well as 

the risk that any such verdict would be affirmed in a time-consuming post-verdict appeal. 

See Doc. 399 at 12-13; see also Doc. 400 at 1 (among the factors considered in evaluating 

a proposed settlement is “the cost of continued prosecution of the case”); In re Amgen 

Inc. Sec. Litig., 2016 WL 10571773, at *3 (C.D. Cal. Oct. 25, 2016) (“A trial of a 

complex, fact-intensive case like this could have taken weeks, and the likely appeals of 

rulings on summary judgment and at trial could have added years to the litigation.”).

While Plaintiffs’ Counsel believes that Plaintiffs’ claims against Mr. Babich are 

meritorious and supported by admissible evidence, Mr. Babich’s counsel, on the other 

hand, believes that he can prevail at trial (Piccoli Decl., ¶ 11), and numerous other 

securities class actions with sound claims have proceeded to trial with the class 

recovering nothing. See, e.g., In re BankAtlantic Bancorp, Inc. Sec. Litig., 2011 WL 

1585605 (S.D. Fla. Apr. 25, 2011) (overturning jury verdict for plaintiff class, and 

granting judgment as a matter of law to defendants), aff’d on other grounds, 688 F.3d 713 

(11th Cir. 2012); Robbins v. Koger Props. Inc., 116 F.3d 1441 (11th Cir. 1997) (jury 

verdict of over $81 million for plaintiffs against accounting firm reversed on appeal); 

Anixter v. Home-Stake Prod. Co., 77 F.3d 1215 (10th Cir. 1996) (overturning securities 

class action jury verdict for plaintiffs in case filed in 1973 and tried in 1988); In re Apple 

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Comput. Sec. Litig., 1991 WL 238298 (N.D. Cal. Sept. 6, 1991) (after jury rendered a 

verdict for plaintiffs following an extended trial, the court overturned the verdict).

In addition to the omnipresent risk of losing at trial, however, Plaintiffs here also 

face a far more relevant and demonstrable risk that they would likely secure little or no 

financial recovery even after obtaining a jury verdict in their favor at trial.

1. A Jury Verdict Will Likely Cause Mr. Babich to Become 

Insolvent, Triggering the Arizona Attorney General’s Right to 

Enforce Immediately a $642 Million Stipulated Judgment 

Against Mr. Babich

On July 19, 2019, the State of Arizona, through Arizona Attorney General Mark 

Brnovich, filed a complaint in the Superior Court of the State of Arizona in and for 

Maricopa County against Mr. Babich and others alleging violations of both the Arizona 

Consumer Protection Act, Arizona Revised Statutes (“ARS”) §§ 44-1521, et seq., and the 

Arizona RICO statute, ARS §§ 13-2301, et. seq., in connection with alleged acts and 

omissions by Mr. Babich in marketing Subsys. Case No. CV2019-010695 (the “AZAG 

Action”). On June 26, 2020, Mr. Babich entered into a Stipulated Consent Judgment (the 

“AZAG Judgment”) to resolve the claims alleged against him in the AZAG Action. 

See Whitman Decl. at Ex. 3.

3 Among other things, the AZAG Judgment provides for 

judgment in the amount of $599.2 million against Mr. Babich as a civil penalty and 

judgment in the amount of $45 million against Mr. Babich as disgorgement. Id. at p. 6.

Of the combined $644,200,000 in penalties and disgorgement, Mr. Babich agreed to pay 

$2,000,000, or 0.31%. Piccoli Decl., ¶ 8.E.

The AZAG Judgment also provides that if Mr. Babich files for bankruptcy under 

Title 11 of the United States Code within 120 days of Mr. Babich’s payment of the 

$2,000,000 reflected therein, then such payment will not be recognized as satisfying 

Mr. Babich’s $644,200,000 in penalties and disgorgement if any creditor, such as 

 

3 The AZAG complaint and the AZAG Judgment also name as a defendant 

Mr. Babich’s wife, Natalie Levine, on the alleged basis that Ms. Levine benefitted from 

the alleged misconduct through her marital community with Mr. Babich. 

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Plaintiffs here, files a petition for relief against Mr. Babich’s estate. Whitman Decl. at 

Ex. 3 at pp. 6-7. In such instance, the State of Arizona would have a claim as to the 

remaining $642,000,000 in penalties and disgorgement under the AZAG Judgment. In 

any event, the AZAG Judgment further provides that the State of Arizona reserves its 

right to pursue the remaining $642,000,000 in penalties and disgorgement under the 

AZAG Judgment if Mr. Babich files for bankruptcy protection at any time. Id. at 7. 

Given that the trial of Plaintiffs’ claims against Mr. Babich in this Action is 

anticipated to conclude during the first week of September 2020, a decision in Plaintiffs’ 

favor would be almost certainly be rendered within 120 days of Mr. Babich’s June 26, 

2020 partial payment of penalties and disgorgement under the AZAG Judgment.4

Mr. Babich’s counsel has represented that if Plaintiffs obtain a judgment from this Court,

then Mr. Babich is likely to promptly file for bankruptcy protection. Piccoli Decl., ¶ 10. 

In such instance, Plaintiffs’ ability to collect any portion of the trial judgment in this case 

will, at best, be competing with the State of Arizona’s claim to $642,000,000, and 

Plaintiffs will in all likelihood recover nothing after prevailing at trial.5 Even if 

Mr. Babich files for bankruptcy later than approximately October 23, 2020, Plaintiffs will 

be competing with the State of Arizona, the federal government (as discussed below in 

Section III.B.2), and other claimants (as discussed above in Section III.A) to try to obtain 

a portion of a trial judgment secured here.

 

4 The 120-day period referenced in the AZAG Judgment will run on or about 

October 23, 2020.

5 Mr. Babich has also entered into a Stipulation for Judgment (the “Alabama 

Stipulation”) in a case that the Mobile County Board of Health brought against him and 

other defendant parties in the Circuit Court of Mobile County, Alabama. See Whitman 

Decl. at Ex. 4. Pursuant to the Alabama Stipulation, Mr. Babich has agreed to have 

judgment entered against him in the amount of $750 million. Id. If the Alabama Court 

approves the Alabama Stipulation, then Mobile County will have a $750 million claim 

against Mr. Babich if he files for bankruptcy protection. Piccoli Decl., ¶ 13.

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2. A Jury Verdict for the Plaintiff Class Will Likely Cause the 

Federal Government to Execute Immediately Upon the 

$74 Million in Combined Forfeiture and Restitution Amounts 

that Mr. Babich Owes

Based upon the approximately $74 million in outstanding and unsatisfied 

forfeiture and restitution amounts that Mr. Babich owes in connection with the Criminal 

Action, Plaintiffs believe that it is likely that the federal government would seek to 

collect on those same outstanding amounts in the event that the jury renders a verdict in 

Plaintiffs’ favor in this Action. This action by the federal government, in response and in 

addition to a judgment in Plaintiffs’ favor, is almost certain to cause Mr. Babich to file 

for bankruptcy. Piccoli Decl., ¶ 11. In this instance, Plaintiffs’ claims against Mr. 

Babich’s estate would be, at best, competing with the State of Arizona’s and the federal 

government’s aggregate claims of approximately $716 million,6all but assuring that 

Plaintiffs would receive nothing from a trial victory in this Action.

IV. CONCLUSION

For all of the foregoing reasons and those detailed in Class Representative’s 

Preliminary Approval Motion, the Settling Parties respectfully request that the Court 

grant preliminary approval of the Settlement and enter the proposed Preliminary 

Approval Order. The Settling Parties are available to respond to any further questions the 

Court may have regarding the Settlement.

DATED: July 29, 2020 Respectfully Submitted,

KESSLER TOPAZ 

MELTZER & CHECK, LLP

s/ Johnston de F. Whitman, Jr.

Andrew L. Zivitz (admitted Pro Hac Vice)

azivitz@ktmc.com

Johnston de F. Whitman, Jr. (admitted Pro Hac Vice)

jwhitman@ktmc.com

Jonathan F. Neumann (admitted Pro Hac Vice)

 

6 As noted above, if the court in Mobile, Alabama approves the Alabama 

Stipulation, then Plaintiffs would be, at best competing with aggregate claims of at more 

than $1.4 billion against Mr. Babich’s bankruptcy estate.

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jneumann@ktmc.com

280 King of Prussia Road

Radnor, PA 19087

Telephone: (610) 667-7706

Facsimile: (610) 667-7056

-andJennifer L. Joost (admitted Pro Hac Vice)

jjoost@ktmc.com

One Sansome Street, Suite 1850

San Francisco, CA 94104

Telephone: (415) 400-3000

Facsimile: (415) 400-3001

Lead Counsel for Lead Plaintiff, Class Representative, 

and the Class

BONNETT, FAIRBOURN, 

FRIEDMAN & BALINT, P.C.

Francis J. Balint, Jr.

fbalint@bffb.com

Andrew S. Friedman

afriedman@bffb.com

2325 E. Camelback Road, Suite 300

Phoenix, AZ 85016

Telephone: (602) 274-1100

Facsimile: (602) 274-1199

Liaison Counsel for Lead Plaintiff, Class 

Representative, and the Class

RUSSELL PICCOLI, PLC

s/ Russell Piccoli with permission

Russell Piccoli, No. 004492

rp@winazlaw.com

701 North 44th Street

Phoenix, AZ 85008

Telephone: (480) 429-3000

LANG & KLAIN, P.C. 

s/ William G. Klain with permission 

Zachary W. Rosenberg, No. 033719

zrosenberg@lang-klain.com

William G. Klain, No. 015851

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wklain@lang-klain.com

6730 N. Scottsdale Rd., Suite 101

Scottsdale, AZ 85253

Telephone: (480) 534-4900

Facsimile: (480) 970-5034

Attorneys for Defendant Michael L. Babich

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CERTIFICATE OF SERVICE

I hereby certify that on July 29, 2020, I electronically transmitted the foregoing 

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a 

Notice of Electronic Filing to those persons who are CM/ECF registrants:

David Rosenbaum

drosenbaum@omlaw.com

OSBORN MALEDON PA

2929 N. Central Ave.,

21st Floor

Phoenix, AZ 85012

Telephone: 602-640-9000

Facsimile: 602-640-9050

George J. Coleman

gjc@slwplc.com

Michael K. Foy

mkf@slwplc.com

SALMON, LEWIS & 

WELDON, P.L.C.

2850 E. Camelback Road, 

Suite 200

Phoenix, AZ 85016

Telephone: 602-801-9060

Facsimile: 602-801-9070

William Klain

wklain@lang-klain.com

Jason Clark

jclark@lang-klain.com

Zachary Rosenberg

zrosenberg@lang-klain.com

LANG & KLAIN, PC

6730 N. Scottsdale Road

Suite 101

Scottsdale, AZ 85253

Telephone: 480-534-4900

Facsimile: 480-970-5034

Bahram Seyedin-Noor

bahram@altolit.com

Bryan Ketroser

bryan@altolit.com

Jared Kopel

jared@altolit.com

Ian Browning

ian@altolit.com

ALTO LITIGATION

4 Embarcadero Center,

Suite 1400

San Francisco, CA 94111

Telephone: 415-779-2586

Facsimile: 866-654-7207

Brian T. Kelly

bkelly@nixonpeabody.com

Matthew L. McLaughlin

mmclaughlin@nixonpeabody.com

George J. Skelly

gskelly@nixonpeabody.com

NIXON PEABODY LLP

Exchange Place

53 State St.

Boston, MA 02109

Telephone: 617-345-1000

Facsimile: 617-345-1300

Russell Piccoli

rp@winazlaw.com

RUSSELL PICCOLI PLC

701 N. 44th St.

Phoenix, AZ 85008

Telephone: 480-429-3000

Facsimile: 480-429-3100

s/ Johnston de F. Whitman, Jr.

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