The Court directed that the Postcard Notice be mailed to you because you or someone in your family or an investment account for which you serve as a custodian may have purchased or otherwise acquired Endurance common stock during the Settlement Class Period. The Court also directed that the Notice be posted online at www.EnduranceSecuritiesLitigation.com and mailed to you upon request to the Claims Administrator. The Court directed us to disseminate the Notices because, as a potential Settlement Class Member, you have a right to know about your options before the Court ruled on the proposed Settlement. Additionally, you had the right to understand how this class action lawsuit may generally affect your legal rights. 

The purpose of the Notice was to inform you of the existence of this case, that it is a class action, how you might be affected, and how to exclude yourself from the Settlement Class if you wish to do so. It was also being sent to inform you of the terms of the proposed Settlement, and of a hearing to be held by the Court that considered the fairness, reasonableness, and adequacy of the Settlement, the approved Plan of Allocation, and the motion by Lead Counsel for an award of attorneys’ fees and reimbursement of Litigation Expenses (the “Settlement Hearing”).

Payments to Authorized Claimants have been made.

Endurance provides web solutions for small businesses, including domains, website builders, web hosting, and other subscription-based and non-subscription-based products and services. This case involves Defendants’ representations concerning Endurance’s non-GAAP metrics, including: (a) subscriber count; (b) average revenue per subscriber; (c) products per subscriber; and (d) the number of subscribers paying $500 or more for Endurance’s products and services. Plaintiffs allege that Defendants touted these metrics to create an impression of future revenue growth, but in fact, certain of the metrics reported by Defendants were misstated and Defendants also omitted data necessary to render their statements not misleading.

On May 4, 2015, Plaintiff Christopher Machado initiated this action by filing a class action complaint in the United States District Court for the District of Massachusetts, alleging violations of the federal securities laws and asserting claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (“Exchange Act”), 14 U.S.C. §§ 78j(b), 78t(a), and Securities and Exchange Commission Rule 10b-5, 17 C.F.R. 240.10b-5.

By Order dated September 11, 2015, the Court appointed Christopher Machado as Lead Plaintiff and approved Lead Plaintiff’s selection of Glancy Prongay & Murray LLP as Lead Counsel for the class. The Court further approved Lead Plaintiff’s selection of Block & Leviton LLP as Liaison Counsel.

Following the filing of Lead Plaintiff’s first and second amended complaints and motion to dismiss briefing related to the second amended complaint, on June 30, 2017, Lead Plaintiff and Plaintiff Michael Rubin filed and served their Third Amended Class Action Complaint (the “TAC”).

Among other things, the TAC alleged that Defendants published materially false and misleading figures regarding certain non-GAAP metrics, which misled shareholders with respect to Endurance’s growth rate and growth potential.  According to the TAC, the alleged misrepresentations proximately caused class member losses as the inaccuracy of the non-GAAP metrics became clear and the Company’s true growth rate and potential became known. 

The TAC alleged both fraud claims under the Exchange Act and non-fraud claims under the Securities Act of 1933 on behalf of persons or entities that purchased or acquired Endurance common stock. 

On August 29, 2017, Defendants served a motion to dismiss the TAC.  Plaintiffs served their papers in opposition on October 30, 2017.  On December 14, 2017, Defendants Endurance and Hari Ravichandran filed separate replies in support of dismissal.  Defendant Tivanka Ellawala’s reply brief followed on December 15, 2017. 

While the Parties believe in the merits of their respective positions, they also recognized the benefits that would accrue if they could reach an agreement to resolve the Action.  They began to discuss the possibility of exploring whether a settlement could be reached through a mediation process.  The Parties selected former California Superior and Supreme Court Judge Daniel Weinstein (Ret.) (“Judge Weinstein”) as mediator.  On January 12, 2018, the Parties filed a joint motion requesting that the Court stay proceedings, and not rule on Defendants’ motion to dismiss, until after the Parties participated in a mediation before Judge Weinstein.  On February 21, 2018, the Court granted the Parties’ motion and stayed the case. 

In advance of the mediation, Endurance provided Lead Counsel with requested document discovery, which consisted of 40,594 documents, equating to 205,699 pages.  Moreover, the Parties exchanged, and provided to Judge Weinstein, detailed mediation statements and exhibits addressing the issues of both liability and damages.

On February 23, 2018, the Parties participated in an in-person, all-day mediation before Judge Weinstein.  The matter was not resolved that day, but the Parties continued to negotiate with the assistance of Judge Weinstein over the course of the next several weeks, which culminated in an agreement in principle to settle the Action.  Among other things, Plaintiffs agreed to settle and release all claims asserted against Defendants in the Action in return for a cash payment by or on behalf of Defendants of $18,650,000 for the benefit of the Settlement Class.

Based upon their investigation, prosecution and mediation of the case, and their review of documents produced by Defendants, Plaintiffs and Lead Counsel have concluded that the terms and conditions of the Settlement are fair, reasonable and adequate to Plaintiffs and the other members of the Settlement Class, and in their best interests.  Based on the investigation and mediation of the case and Plaintiffs’ direct oversight of the prosecution of this matter, and with the advice of counsel, Plaintiffs have agreed to settle and release the claims raised in the Action pursuant to the terms and provisions of the Stipulation, after considering, among other things, (a) the substantial financial benefit that Plaintiffs and the other members of the Settlement Class will receive under the proposed Settlement; and (b) the significant risks and costs of continued litigation and trial. 

Defendants are entering into the Settlement solely to eliminate the uncertainty, burden and expense of further protracted litigation.  Each of the Defendants denies any wrongdoing, and the Settlement shall in no event be construed or deemed to be evidence of or an admission or concession on the part of any of the Defendants, or any other of the Defendants’ Releasees, with respect to any claim or allegation of any fault or liability or wrongdoing or damage whatsoever, or any infirmity in the defenses that the Defendants have, or could have, asserted.  Similarly, the Stipulation shall in no event be construed or deemed to be evidence of or an admission or concession on the part of Plaintiffs of any infirmity in any of the claims asserted in the Action, or an admission or concession that any of the Defendants’ defenses to liability had any merit.

On January 2, 2019, the Court preliminarily approved the Settlement, authorized the Postcard Notice to be mailed to potential Settlement Class Members and the Notice to be posted online and mailed to potential Settlement Class Members upon request, and scheduled the Settlement Hearing to consider whether to grant final approval to the Settlement.

On August 9, 2019, the Court granted Lead Counsel $6,216,667 in attorneys' fees, as well as $7,000 service award fee for Lead Plaintiffs'. The Settlement itself was then approved by the court on September 13, 2019. Authorized claimants have since been paid following two rounds of distributions. 

The Settlement Class consists of:

all persons and/or entities who or which purchased or otherwise acquired Endurance common stock during the period of October 25, 2013 through December 16, 2015, inclusive, including all persons and/or entities who or which purchased or otherwise acquired Endurance common stock pursuant and/or traceable to the registered public offering conducted on or about October 25, 2013, and who were injured thereby.

Excluded from the Settlement Class are: (a) Defendants; (b) members of the Immediate Families of each of the Individual Defendants; (c) the subsidiaries and affiliates of Endurance; (d) any person or entity who is, or during the Class Period was, a chief executive officer, executive vice president, senior vice president, chief financial officer, principal accounting officer (or if there is no such accounting officer, the controller), director, or controlling person of Endurance; (e) any entity in which any Defendant has a controlling interest; and (f) the legal representatives, heirs, successors and assigns of any such excluded party; provided, however, that any Investment Vehicle shall not be excluded from the Settlement Class.  Also excluded from the Settlement Class are any persons or entities who or which exclude themselves by submitting a request for exclusion, in accordance with the requirements set forth in the Notice, that was accepted by the Court.

Plaintiffs and Lead Counsel believe that the claims asserted against Defendants have merit. They recognize, however, the expense and length of continued proceedings necessary to pursue their claims against Defendants through trial and appeals, as well as the very substantial risks they would face in establishing liability and damages. Plaintiffs and Lead Counsel also recognize that Defendants have numerous avenues of attack that could preclude a recovery as to Defendants’ allegedly false and misleading statements. For example, Defendants would assert that the statements were not false, material, or made with the requisite state of mind to support the securities fraud claim alleged. Even if those hurdles to establishing liability were overcome, Defendants would assert that the statements at issue did not cause a loss and would hotly contest the existence and amount of any damages that could be attributed to the allegedly false statements. To receive any recovery, Plaintiffs would have to prevail at several stages, including overcoming Defendants’ motion to dismiss and likely Defendants’ motions for summary judgment. If Plaintiffs’ claims made it to trial and Plaintiffs prevailed, appeals would likely follow. Thus, there were significant risks attendant to the continued prosecution of the Action.

In light of these risks, the amount of the Settlement and the immediacy of recovery to the Settlement Class, Plaintiffs and Lead Counsel believe that the proposed Settlement is fair, reasonable and adequate, and in the best interests of the Settlement Class.  Plaintiffs and Lead Counsel also believe that the Settlement provides a substantial benefit to the Settlement Class, namely $18,650,000 in cash (less the various deductions described in the Notice), as compared to the risk that the claims in the Action would produce a smaller or no recovery after summary judgment, trial and appeals, possibly years in the future.

Defendants have denied the claims asserted against them in the Action and deny having engaged in any wrongdoing or violation of law of any kind whatsoever. Defendants have agreed to the Settlement solely to eliminate the burden and expense of continued litigation. Accordingly, the Settlement may not be construed as an admission of any wrongdoing by Defendants.

As a Settlement Class Member, you have been represented by Plaintiffs and Lead Counsel, unless you entered an appearance through counsel of your own choice at your own expense. Please note that the deadlines for filing a notice of appearance, exclusion requests, and objections have passed. 

All Settlement Class Members who did not exclude themselves from the Settlement Class are bound by any orders issued by the Court.

Plaintiffs and Defendants acknowledge, and each of the other Settlement Class Members and each of the other Defendants’ Releasees shall be deemed by operation of law to have acknowledged, that the foregoing waiver was separately bargained for and a key element of the Settlement.

The Judgment, which dismissed with prejudice the claims against Defendants and will provide that, upon the Effective Date of the Settlement, Plaintiffs and each of the other Settlement Class Members, on behalf of themselves, and each of their respective heirs, executors, successors, and assigns in their capacities as such, will have fully, finally and forever compromised, settled, remised, released, resolved, relinquished, waived and discharged each and every Released Plaintiffs’ Claim against the Defendants and the other Defendants’ Releasees and shall forever be barred and enjoined from prosecuting any or all of the Released Plaintiffs’ Claims against any of the Defendants or the Defendants’ Releasees.

“Released Plaintiffs’ Claims” means all individual, representative and class claims, causes of action or rights of recovery of every nature and description, whether known claims or Unknown Claims, direct or indirect, asserted or unasserted, foreseen or unforeseen, matured or unmatured, contingent or vested, whether arising under federal, state, local, statutory, common, foreign or other law, rule or regulation, that Plaintiffs or any other member of the Settlement Class (a) asserted in the TAC, or (b) could have asserted or could in the future assert in any court or forum based upon, relating to or arising from the allegations, transactions, facts, matters or occurrences, errors, representations, actions, failures to act or omissions that were alleged, set forth, or referred to in the TAC and that relate in any way, directly or indirectly, to the holding, purchase, or sale of Endurance common stock during the Settlement Class Period. Released Plaintiffs’ Claims do not include: (a) any claims relating to the enforcement of the Settlement; (b) any claims that as of the date hereof are or were asserted in McGee et al. v. Constant Contact, Inc. et al., Case No. 15 Civ. 13114 (MLW) (D. Mass.); and (c) any claims of any person or entity who or which submits a request for exclusion that is accepted by the Court.

“Defendants’ Releasees” means Defendants, their predecessors, successors, past, present and future parents, subsidiaries and affiliates, and their respective past or present general partners, limited partners, principals, members, officers, directors, trustees, employees, agents, servants, attorneys, accountants, auditors, underwriters, investment advisors, insurers, co-insurers, reinsurers and related or affiliated entities of the foregoing, in their capacities as such.

“Unknown Claims” means any Released Plaintiffs’ Claims which any Plaintiff or any other Settlement Class Member does not know or suspect to exist in his, her or its favor at the time of the release of such claims, and any Released Defendants’ Claims which any Defendant or any other Defendants’ Releasees does not know or suspect to exist in his, her or its favor at the time of the release of such claims, which, if known by him, her or it, might have affected his, her or its decision(s) with respect to this Settlement.  With respect to any and all Released Claims, the Parties stipulate and agree that, upon the Effective Date of the Settlement, Plaintiffs and Defendants shall expressly waive, and each of the other Settlement Class Members and each of the other Defendants’ Releasees shall be deemed to have waived, and by operation of the Judgment or the Alternate Judgment, if applicable, shall have expressly waived, any and all provisions, rights, and benefits conferred by any law of any state or territory of the United States, or principle of common law or foreign law, which is similar, comparable, or equivalent to California Civil Code §1542, which provides:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

Plaintiffs and Defendants acknowledge, and each of the other Settlement Class Members and each of the other Defendants’ Releasees shall be deemed by operation of law to have acknowledged, that the foregoing waiver was separately bargained for and a key element of the Settlement.

The Judgment will also provided that, upon the Effective Date of the Settlement, Defendants, on behalf of themselves, and their respective legal representatives, heirs, executors, predecessors, successors, and assigns in their capacities as such, will have fully, finally and forever compromised, settled, released, resolved, relinquished, waived and discharged each and every Released Defendants’ Claim against Plaintiffs and the other Plaintiffs’ Releasees and shall forever be barred and enjoined from prosecuting any or all of the Released Defendants’ Claims against any of the Plaintiffs’ Releasees.

Released Defendants’ Claims” means all individual, representative and class claims, causes of action or rights of recovery of every nature and description, whether known claims or Unknown Claims, whether direct or indirect, asserted or unasserted, foreseen or unforeseen, matured or unmatured, contingent or vested, whether arising under federal, state, local, statutory, common, foreign or other law, rule or regulation that arise out of or relate in any way to the institution, prosecution, or settlement of the claims against Defendants.  Released Defendants’ Claims do not include any claims relating to the enforcement of the Settlement or any claims against any person or entity who or which submits a request for exclusion from the Settlement Class that was accepted by the Court.

“Plaintiffs’ Releasees” means Plaintiffs, all other plaintiffs in the Action, their respective attorneys, and all other Settlement Class Members, and each of the foregoing’s predecessors, successors, past, present and future parents, subsidiaries and affiliates, and the respective past or present general partners, limited partners, principals, members, officers, directors, trustees, employees, agents, servants, attorneys, accountants, auditors, underwriters, investment advisors, insurers, co-insurers, reinsurers and related or affiliated entities of the forgoing, in their capacities as such.

THE DEADLINE TO FILE A CLAIM HAS PASSED. 

Pursuant to the Settlement, Defendants agreed to pay or caused to be paid $18,650,000 in cash. The Settlement Amount was deposited into an escrow account. The Settlement Amount plus any interest earned thereon is referred to as the “Settlement Fund.” The “Settlement Fund” was distributed to Settlement Class Members who submitted valid Claim Forms, in accordance with the court approved Plan of Allocation.

Neither Defendants nor any other person or entity that paid any portion of the Settlement Amount on their behalf are entitled to get back any portion of the Settlement Fund. Defendants shall not have any liability, obligation or responsibility for the administration of the Settlement, the disbursement of the Net Settlement Fund or the plan of allocation.

The Court has reserved jurisdiction to allow, disallow, or adjust on equitable grounds the Claim of any Settlement Class Member.

Only Settlement Class Members, i.e., persons and entities who purchased or otherwise acquired Endurance common stock during the Settlement Class Period and were injured as a result of such purchases or acquisitions, were eligible to share in the distribution of the Net Settlement Fund. Persons and entities that were excluded from the Settlement Class by definition or that excluded themselves from the Settlement Class pursuant to request were not eligible to receive a distribution from the Net Settlement Fund. 

Payments to all authorized Claimants have been made. 

The court has granted approval of Lead Counsel's request for $155,370.34 in expenses, in addition to service award totaling $7,000 for Lead and Named Plaintiffs. 

THE DEADLINE TO EXCLUDE YOURSELF HAS PASSED.

THE SETTLEMENT HEARING HAS PASSED. The Settlement Hearing was held on September 13, 2019 at 10:00 a.m., before the Honorable George A. O’Toole, Jr. at the United States District Court for the District of Massachusetts, John Joseph Moakley United States Courthouse, Courtroom 9, 3rd Floor, 1 Courthouse Way, Boston, Massachusetts 02210. The Court reserved the right to approve the Settlement, the Plan of Allocation, Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses and/or any other matter related to the Settlement at or after the Settlement Hearing without further notice to the members of the Settlement Class.

This Notice contains only a summary of the terms of the proposed Settlement. For more detailed information about the matters involved in this Action, you are referred to the papers on file in the Action, including the Stipulation, which may be inspected during regular office hours at the Office of the Clerk, United States District Court for the District of Massachusetts, John Joseph Moakley United States Courthouse, 1 Courthouse Way, Boston, Massachusetts 02210. Additionally, copies of the Stipulation and any related orders entered by the Court will be posted on the website in the important documents section maintained by the Claims Administrator.

All inquiries concerning the Notice and the Claim Form should be directed to the Claims Administrator or Lead Counsel at:
 

DO NOT CALL OR WRITE THE COURT, THE OFFICE OF THE CLERK OF THE COURT, DEFENDANTS OR THEIR COUNSEL REGARDING THE NOTICE.

The Settlement and Plan of Allocation were approved by the Court on September 13, 2019. The first distribution was sent out to all authorized claimants on March 2, 2021. A second distribution took place on July 21, 2022, which paid all claimants whose payments calculated to at least $10.00 under the court approved Plan of Allocation.