Frequently Asked Questions
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|1.||Why am I receiving this settlement notice?|
The Court caused this settlement notice to be sent to people who may have purchased or acquired Dynavax common stock between April 26, 2012 and June 10, 2013, both dates inclusive. The Court caused this settlement notice to be sent out because, if you purchased or acquired those securities during that period, you have a right to know about the proposed Settlement of a class action lawsuit, and about all of your options, before the Court decides whether to approve the Settlement.
|2.||What is this lawsuit about?|
This lawsuit (the “Action”) is a class action alleging violations of the federal securities laws by the Dynavax Defendants and the Symphony Defendants. The Court has appointed Khaled Khalafallah (“Lead Plaintiff”) to serve as Lead Plaintiff in the Action and has appointed the law firm Faruqi & Faruqi, LLP to serve as Lead Counsel on behalf of the class.
The Second Amended Class Action Complaint (“Complaint”), which was filed in the Action on September 10, 2014, alleges that the Dynavax Defendants violated the Securities Exchange Act of 1934 by making three categories of misleading statements and omissions during the Class Period: (a) Dynavax failed to disclose that it had not validated its manufacturing processes and controls prior to filing its Biologic License Application (“BLA”) for its drug HEPLISAV with the U.S. Food and Drug Administration (“FDA”); (b) Dynavax failed to disclose that following a pre-approval inspection of one of Dynavax’s manufacturing facilities the FDA issued a Form 483; and (c) after the FDA denied approval of the HEPLISAV BLA, Dynavax misrepresented that the FDA left the door completely open for approval of a more limited indication based on the current safety database. As alleged in the Complaint, on February 25, 2013, the FDA issued a Complete Response Letter denying approval of the HEPLISAV BLA. Several months later, on June 10, 2013, Dynavax announced that the FDA would require additional patients in the HEPLISAV safety database before it will grant approval of HEPLISAV for any indication.
The Complaint also alleges that the Symphony Defendants violated the Securities Exchange Act of 1934 by engaging in insider trading (or controlling a party that engaged in insider trading), selling 6 million shares of Dynavax common stock, worth $28 million, while in possession of material non-public information.
The Complaint alleges that investors who purchased or otherwise acquired publicly-traded Dynavax common stock during the Settlement Class Period suffered damages, as alleged therein.
Following the filing of the Complaint, Defendants moved to dismiss the claims asserted against them. By order dated February 20, 2015, the Court denied the motion to dismiss in part and granted it in part. While the Court allowed some of Lead Plaintiff’s claims to move forward, the Court has made no substantive determinations on the merits of the claims against Defendants.
|3.||What should I do if my address changes, or if this notice was sent to the wrong address?|
If this notice was sent to you at the wrong address, or if your address changes in the future, please send prompt written notification of your correct address to the Claims Administrator at the following address:
In re Dynavax Technologies Corp. Sec. Litig.
P.O. Box 10196
Dublin, OH 43017-3196
|4.||How do I know whether I am part of the Settlement?|
The Court has preliminarily certified for purposes of the Settlement a class that consists of, subject to certain exceptions identified below, the following individuals and entities:
Lead Plaintiff and Ron Franklin as well as all persons who purchased or otherwise acquired Dynavax common stock during the period between April 26, 2012 and June 10, 2013, both dates inclusive, and who allege to have been damaged thereby.
|5.||Are there exceptions to being included?|
Yes. Excluded from the Class are Defendants, members of their immediate families, any firm, trust, partnership, corporation, officer, director, or other individual or entity in which a Defendant has a controlling interest or which is related to or affiliated with any of the Defendants, and the legal representatives, heirs, successors-in-interest or assigns of such excluded persons.
Also excluded from the Class are any persons or entities who exclude themselves by submitting a timely request for exclusion in accordance with the requirements set forth in this Notice.
|6.||I’m still not sure whether I am included.|
If you are still not sure whether you are included, you can ask for help, which will be provided to you at no cost. You can call the Claims Administrator toll free at 1-855-907-3230, or write to the Claims Administrator at the address stated in the answer to Question #4 above.
|7.||How and when was the Settlement reached?|
Lead Plaintiff reached an agreement-in-principle with Defendants regarding the Settlement on April 18, 2016.
|8.||What does the Settlement provide?|
In the Settlement, Defendants agree to cause $4,500,000 to be paid to the Class (the“Settlement Amount”). The Settlement Amount is to be paid into escrow within fifteen (15) business days after the Court’s preliminary approval of the Settlement.
The Settlement shall become effective when and if each of the following conditions is met: (a) the Court has entered a final judgment approving the Settlement, and (b) any appeals from that judgment have been finally resolved, or the time has expired in which to file such appeals (the “Effective Date”).
If the Settlement is approved by the Court, then as of the Effective Date of the Settlement all members of the Class will be deemed to have released all claims against the Defendant Releasees (as defined below) that arise out of or relate to the allegations in the Complaint. This means that, upon the Effective Date, all Class members will be permanently barred from asserting any of the claims described above against Defendants. In addition, upon the Effective Date, Defendants will be precluded from suing the Lead Plaintiff, members of the Class, or Lead Counsel in connection with the Action.
|9.||How much will payment be?|
The Plan of Allocation set forth below explains how each Class Member’s “Recognized Loss” will be calculated. The amounts to be distributed to individual Class members will depend on a variety of factors, including: the number of other Class members who submit valid proof of claim forms; the amount of common stock you purchased; the prices and dates of those purchases; and the prices and dates of any sales of your common stock. The manner of dividing the settlement proceeds has not yet been determined. Depending upon which securities you purchased and the timing of your transactions, you may be entitled to recover for all, none, or only some of the claims asserted in the Complaint.
The amount to be distributed to Class members on a per share basis will depend on future Court proceedings and factual and legal analysis, and it is therefore only possible to make an approximate estimate of the amount of any such distribution at the present time.
|10.||What do I have to do to receive a share of the Settlement?|
To qualify for a settlement payment from the proceeds of the Settlement, you must send in a Proof of Claim form. A Proof of Claim form is enclosed with this settlement notice. You also may get a Proof of Claim form on the internet at www.DyanvaxSecuritiesLitigation.com, or by calling the Claims Administrator. Read the instructions carefully, fill out the form, include all the documents the form asks for, sign the form, and mail it postmarked no later than the extended claims filing deadline of March 22, 2017.
|11.||When will I receive my payment?|
Lead Plaintiff does not anticipate being able to distribute the settlement proceeds to members of the Class until at least 12 months from now. Distribution may be delayed in the interest of the Class in order to minimize the number and cost of distributions during the course of the Action.
Any settlement payments from the Settlement proceeds are also contingent upon the Court approving the Settlement and on such approval becoming final and no longer subject to any appeals.
The Net Settlement Amount will be kept in an interest-bearing account until it is ready for distribution, and the accrued interest will be added to the principal that will be distributed to the Settlement Class.
|12.||What am I giving up to get a payment or stay in the Class?|
Unless you exclude yourself, you will remain a Settlement Class Member, and that means that, if the Settlement is approved, you will give up all “Released Claims” you may have against the Defendants and other “Defendant Releasees”.
|13.||What if I want to be excluded from the Settlement?|
To exclude yourself from the Settlement, you must send a letter by mail to the Claims Administrator saying that you want to be excluded from In re Dynavax Technologies Corp. Sec. Litig. Be sure to include your name, address, telephone number; the last four digits of your Social Security Number or Taxpayer Identification Number; a list stating the number of Dynavax common stock purchased and sold between April 26, 2012 and June 10, 2013, and the dates and prices of each purchase and sale; as well as your signature. Mail your exclusion request postmarked no later than January 9, 2017, to:
In re Dynavax Technologies Corp. Sec. Litig.
P.O. Box 10196
Dublin, OH 43017-3196
If you request exclusion on behalf of any person or entity other than yourself (such as, for example, a trust, a minor, or a pension fund), you also must state the basis of your legal authority to make a request for exclusion on behalf of that person or entity.
You cannot exclude yourself on the phone or by e-mail. If you do not follow the above procedures – including meeting the postmark deadline – you will not be excluded from the Class, and you will be bound by all of the orders and judgments entered by the Court regarding the Settlement. You must exclude yourself even if you already have a pending case against Defendants based on the claims being released.
If you ask to be excluded, you will not get any payment from the Settlement, you cannot object to the Settlement, and you will not be legally bound by anything that happens in this lawsuit. You might be able to sue Defendants in the future.
|14.||If I don’t exclude myself, can I sue Defendants for the same thing later?|
No. Unless you exclude yourself, you give up any right to sue Defendants for the claims that the Settlement resolves. If you have a pending lawsuit, speak to your lawyer in that case immediately. You must exclude yourself from this Class to continue your own lawsuit.
|15.||If I exclude myself, can I get money from the Stipulation?|
No. Only Class members who do not exclude themselves will be eligible to recover money in the Settlement.
|16.||Do I have a lawyer in this case?|
The Court has appointed the law firm of Faruqi & Faruqi, LLP as Lead Counsel to represent Lead Plaintiff and all other Settlement Class members in the Action. If you have any questions about the proposed Settlement, you may contact Lead Counsel as follows: Richard W. Gonnello, Faruqi & Faruqi, LLP, 685 Third Avenue, 26th Floor, New York, NY 10017.
If you want to be represented by your own lawyer, you may hire one at your own expense.
|17.||How do I tell the Court that I don’t like the Settlement?|
If you are member of the Class and you do not exclude yourself, you can object to the Settlement or any part of it, including Lead Counsel’s application for attorneys’ fees, and give reasons why you think the Court should not approve it. Please note, the Court may not change or modify the terms of the Settlement, it may only approve or deny the Settlement in its entirety. To object, you must send a letter or other filing saying that you object to the proposed Settlement and/or the attorneys’ fee application in In re Dynavax Technologies Corp. Sec. Litig., No 3:13-CV-2796-CRB. Be sure to include your name, address, telephone number, signature, and the reasons for your objection, as well as a list of your purchases and sales of Dynavax common stock made during the Settlement Class Period, including the dates, the number of securities purchased or sold, the price(s) paid or received per security for each such purchase or sale, and whether you continue to hold the securities at the time your objection is submitted. Your written objection must be filed with the clerk of the United States District Court for the Northern District of California, postmarked no later than January 9, 2017. The address is:
CLERK OF THE COURT
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
450 Golden Gate Avenue
San Francisco, CA 94102
Any member of the Class who does not object in the manner provided above will be deemed to have waived all objections to the Settlement and to Lead Counsel’s application for attorneys’ fees.
|18.||What’s the difference between objecting and requesting exclusion?|
Objecting is simply telling the Court that you do not like something about the Settlement. You can object only if you are a Class member.
Excluding yourself is telling the Court that you do not want to be part of the Class for purposes of the Settlement. If you exclude yourself, you have no basis to object, because the case no longer affects you. If you do not exclude yourself, you will be bound by the Settlement and all orders and judgments entered by the Court regarding the Settlement, regardless of whether the Court accepts or denies your objection.
|19.||When and where will the Court decide whether to approve the Settlement?|
The Court has scheduled a hearing on the proposed Settlement for February 3, 2017 at 10:00 a.m., before the Honorable Charles R. Breyer in Courtroom 6, 17th Floor, in the U.S. District Court for the Northern District of California, United States Courthouse, 450 Golden Gate Avenue, San Francisco, CA, 94102. At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate, and will consider Lead Counsel’s application for attorneys’ fees. If there are objections, the Court will consider them. At or after the hearing, the Court will decide whether to approve the Settlement.
Please note that the date of the Court hearing is subject to change without further notice. If you plan to attend the hearing, you should check with Lead Counsel to be sure no change to the date and time of the hearing has been made.
|20.||Do I have to come to the hearing?|
No. Lead Counsel will answer any questions the Court might have. But you are welcome to come at your own expense. If you send an objection, you do not have to come to the Court to talk about it. As long as you mailed your written objection so it was received by the deadline, it will be before the Court when the Court considers whether to approve the Settlement. You may also pay your own lawyer to attend the hearing, but attendance is not necessary.
|21.||May I speak at the hearing?|
If you are a Class member who has not asked to be excluded from the Class, you may ask the Court for permission to speak at the hearing. To do so, you must send a letter or other paper called a “Notice of Intention to Appear at Fairness Hearing in In re Dynavax Technologies Corp. Sec. Litig.” Be sure to include your name, address, telephone number, and your signature. Your Notice of Intention to Appear must be filed with the Clerk of the Court and sent to the counsel listed above in the answer to Question #19, postmarked no later than January 9, 2017. You cannot speak at the hearing if you have asked to be excluded from the Class.
|22.||What happens if I do nothing at all?|
If you do nothing in response to this settlement notice, you will remain a member of the Class and will be bound by the Settlement. You will not be able to start, continue, or be part of any other lawsuit or arbitration against Defendants based on the claims in the Action. If you do not submit a Proof of Claim, you will not receive a payment from the Settlement.
|23.||Are there more details about the Settlement?|
This settlement notice contains only a summary of the proposed Settlement. The complete Settlement is set out in a Stipulation and Agreement of Settlement dated September 7, 2016. You may request a copy of the Stipulation in writing to In re Dynavax Technologies Corp. Sec. Litig., c/o GCG, P.O. Box 10196, Dublin, OH 43017-3196. There may be a charge for copying and mailing the Stipulation. Copies of the Stipulation may be obtained for free at www.DynavaxSecuritiesLitigation.com.
|24.||How do I get more information?|
You can also call the Claims Administrator toll free at 1-855-907-3230, write to the Claims Administrator at the above address, e-mail the Claims Administrator at questions@DynavaxSecuritiesLitigation.com or visit the website at www.DynavaxSecuritiesLitigation.com, where you will find a copy of the Stipulation, the Complaint, and certain other documents relating to the Action and the Settlement. Anyone interested in more detail regarding the Action is invited to visit the Office of the Clerk of the United States District Court for the Northern District of California at the United States Courthouse, 450 Golden Gate Avenue, San Francisco, CA, 94102, during regular business hours, or by accessing the court docket in this Action through the Court’s Public Access to Court Electronic Records system (“PACER”) at https://ecf.cand.uscourts.gov to review the Stipulation, the pleadings, and the other papers maintained there in Case No. 3:13-cv-02796-CRB.
March 22, 2017
Proof of Claim Submission Deadline
January 9, 2017
January 9, 2017
February 3, 2017
Counsel’s Contact Information