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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Richard Di Donato, Individually and On 

Behalf of all Others Similarly Situated,

Plaintiff, 

v. 

Insys Therapeutics, Inc.; et al.,

Defendants.

No. CV-16-00302-PHX-NVW

ORDER RE LITIGATION 

EXPENSES

This matter came on for hearings on Class Counsel’s motions for reimbursement 

of Litigation Expenses (Docs. 406, 425) filed in connection with the settlements achieved 

in the above-captioned action (“Action”) with defendants Darryl S. Baker and Michael L. 

Babich (the “Baker Settlement” and “Babich Settlement,” respectively) and Class 

Counsel’s motion for an award of attorneys’ fees (Doc. 410) filed in connection with the 

settlement achieved in the Action with defendant John N. Kapoor (the “Kapoor 

Settlement” and, together with the Baker and Babich Settlements, the “Settlements”).1

The Court having considered all matters submitted to it at the Settlement Fairness 

Hearings and otherwise; and it appearing that notice of each of the Settlements and 

1 The Court held a final hearing for each of the Settlements (collectively, the 

“Settlement Fairness Hearings”). The final hearing for the Baker Settlement was held on 

September 23, 2020, the final hearing for the Kapoor Settlement was held on October 15, 

2020, and the final hearing for the Babich Settlement was held on November 18, 2020.

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Settlement Fairness Hearings substantially in the forms approved by the Court were 

mailed to all Class Members who or which could be identified with reasonable effort, and 

that a summary notice of each of the Settlements and Settlement Fairness Hearings 

substantially in the forms approved by the Court was published in Investor’s Business 

Daily and transmitted over the PR Newswire pursuant to the specifications of the Court 

set forth in each of its Orders preliminarily approving the Settlements (Docs. 347, 373, 

402); and the Court having considered and determined the fairness and reasonableness of 

Class Counsel’s motions for reimbursement of Litigation Expenses and award of 

attorneys’ fees,

NOW, THEREFORE, IT IS HEREBY ORDERED granting Class Counsel’s 

motions (Doc. 406, 425 and 410).

IT IS FURTHER ORDERED THAT:

1. This Order incorporates by reference the definitions in: (i) the Stipulation 

and Agreement of Settlement Between Lead Plaintiff and Defendant Darryl S. Baker 

dated May 22, 2020 (Doc. 341-1); (ii) the Stipulation and Agreement of Settlement 

Between Lead Plaintiff and Defendant John N. Kapoor dated July 1, 2020 (Doc. 371-1); 

and (iii) the Stipulation and Agreement of Settlement Between Lead Plaintiff and 

Defendant Michael L. Babich dated July 21, 2020 (Doc. 399-1) (collectively, the 

“Stipulations”), and all terms not otherwise defined herein shall have the same meanings 

as set forth in the Stipulations.

2. The Court has jurisdiction to enter this Order and over the subject matter of 

the Action and all parties to the Action, including all Class Members.

3. Notice of Class Counsel’s motions for reimbursement of Litigation 

Expenses in connection with the Baker and Babich Settlements and Class’s Counsel’s 

motion for an award of attorneys’ fees in connection with the Kapoor Settlement was 

given to all Class Members who or which could be identified with reasonable effort. The 

forms and methods of notifying the Class of the motions for reimbursement of Litigation 

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Expenses and the motion for an award of attorneys’ fees satisfied the requirements of 

Rule 23 of the Federal Rules of Civil Procedure, the United States Constitution (including 

the Due Process Clause), the Private Securities Litigation Reform Act of 1995 (15 U.S.C. 

§§ 77z-1, 78u-4), as amended, and all other applicable law and rules, constituted the best 

notice practicable under the circumstances, and constituted due and sufficient notice to all 

persons and entities entitled thereto.

4. Reimbursement of Litigation Expenses from Baker Settlement - Class 

Counsel is hereby awarded $635,000.00 in reimbursement of Plaintiffs’ Counsel’s 

Litigation Expenses (which expenses shall be paid from the Settlement Fund created in 

the Baker Settlement), which sum the Court finds to be fair and reasonable. 

5. Class Representative Clark Miller is hereby awarded $15,000.00 from the 

Settlement Fund created in the Baker Settlement as reimbursement for his reasonable 

costs directly related to his representation of the Class.

6. Reimbursement of Litigation Expenses from Babich Settlement - Class 

Counsel is hereby awarded $75,000.00 in reimbursement of Plaintiffs’ Counsel’s 

Litigation Expenses (which expenses shall be paid from the Settlement Fund created in 

the Babich Settlement), which sum the Court finds to be fair and reasonable. 

7. Award of Attorneys’ Fees from Kapoor Settlement - Class Counsel is 

hereby awarded attorneys’ fees in the amount of 30% of the Settlement Fund created in 

the Kapoor Settlement, which sum the Court finds to be fair and reasonable. In 

accordance with the Stipulation for the Kapoor Settlement, any attorneys’ fees awarded 

by the Court shall be paid to Class Counsel from the Down Payment immediately upon 

award, and immediately from any other proceeds obtained through the Kapoor Settlement 

as those proceeds are received into the Escrow Account (without the need for additional 

Court Orders). Class Counsel shall allocate the attorneys’ fees awarded amongst 

Plaintiffs’ Counsel in a manner which it, in good faith, believes reflects the contributions 

of such counsel to the institution, prosecution, and settlement of the Action.

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8. In making the foregoing awards for reimbursement of Litigation Expenses 

and attorneys’ fees, the Court has considered and found that: 

(a) The Settlements will provide the Class with a collective recovery of 

no less than $2.95 million with the potential to increase to $12.25 million, and will 

resolve this Action in its entirety. Numerous Class Members who submit acceptable 

Claim Forms will benefit from the Settlements that occurred because of the efforts of 

Plaintiffs’ Counsel; 

(b) The requested expense amounts in connection with the Baker and 

Babich Settlements have been approved as reasonable by Class Representative; and the 

fee sought in connection with the Kapoor Settlement is based on a retainer agreement 

entered into between Class Representative and Class Counsel at the outset of Class

Representative’s involvement in the Action, and is supported by Class Representative;

(c) In the aggregate, more than 93,600 Postcard Settlement Notices and 

12,600 long-form Settlement Notice for the Settlements were mailed to potential Class 

Members and nominees, and the long-form Settlement Notices for the Settlements which 

included the Plan of Allocation were posted on the Website. Docs. 407-2, 411-2, 426-2. 

An additional 886 long-form Settlement Notices (including the Plan of Allocation) were 

downloaded from the Website. Docs. 423-1, 426-2. The notices for the Baker Settlement 

stated that Class Counsel would apply for reimbursement of Litigation Expenses in an 

amount not to exceed $650,000, which amount may include a request for reimbursement 

to Class Representative in an aggregate amount not to exceed $15,000; the notices for the 

Kapoor Settlement stated that Class Counsel would apply for an award of attorneys’ fees, 

inclusive of any remaining Litigation Expenses incurred by Plaintiffs’ Counsel in 

connection with the institution, prosecution, and resolution of the claims against 

Defendant Kapoor which were not sought to be reimbursed in connection with the Baker 

Settlement, in an amount not to exceed 30% of the Settlement Fund in the aggregate; and 

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the notices for the Babich Settlement stated that Class Counsel would apply for 

reimbursement of Litigation Expenses in an amount not to exceed $75,000;

(d) Plaintiffs’ Counsel conducted the litigation and achieved the 

Settlements with skill, perseverance, and diligent advocacy;

(e) The Action raised a number of complex issues;

(f) Had Plaintiffs’ Counsel not achieved the Settlements, there would 

remain a significant risk that Class Representative and the other members of the Class 

may have recovered less or nothing from Defendants after trial; 

(g) In the aggregate, Plaintiffs’ Counsel have expended $1,202,389.60 

in expenses and devoted more than 22,306 hours, with a collective lodestar value of 

$11,539,774.75, to achieve the Settlements; 

(h) The amounts of Litigation Expenses awarded from the Settlement 

Funds in the Baker and Babich Settlements are fair and reasonable and supported by the 

facts of the Action and the law, and the attorneys’ fees awarded from the Settlement Fund 

in the Kapoor Settlement are fair and reasonable and consistent with awards in similar 

cases; and

(i) Not a single Class Member has objected to the requests for 

reimbursement of Litigation Expenses in connection with the Baker and Babich 

Settlements or the request for an award of attorneys’ fees in connection with the Kapoor 

Settlement.

9. Any appeal or any challenge affecting this Court’s approval regarding any 

application for attorneys’ fees or reimbursement of Litigation Expenses shall in no way 

disturb or affect the finality of the Judgment.

10. Exclusive jurisdiction is hereby retained over the parties and the Class 

Members for all matters relating to this Action, including the administration, 

interpretation, effectuation, or enforcement of the Stipulations and this Order.

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11. In the event that the Settlements are terminated or the Effective Dates of the 

Settlements otherwise fail to occur, this Order shall be rendered null and void to the 

extent provided by the Stipulations.

Dated this 18th day of November, 2020.

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