Invacare Securities Class Action Settlement
www.InvacareSecuritiesClassActionSettlement.com

Frequently Asked Questions

  1. What is this case about?
  2. How do I know if I am affected by the Settlement? Who is included in the Settlement Class?
  3. What are Lead Plaintiff’s reasons for the Settlement?
  4. What might happen if there were no Settlement?
  5. How are Settlement Class Members affected by the action and the Settlement?
  6. How do I participate in the Settlement? What do I need to do?
  7. How much will my payment be?
  8. What payment are the attorneys for the Settlement Class seeking? How will the lawyers be paid?
  9. What if I do not want to be a member of the Settlement Class? How do I exclude myself?
  10. When and where will the Court decide whether to approve the Settlement? Do I have to come to the hearing? May I speak at the hearing if I don’t like the Settlement?
  11. What if I bought shares on someone else’s behalf?
  12. Can I see the Court file? Whom should I contact if I have questions?


1. What is this case about?

At all times relevant to this lawsuit, Invacare was a manufacturer and distributor of medical devices for use in the home and extended care settings, including custom manual and power wheelchairs, and manual and electric homecare beds. Invacare sold its products principally to home health care and medical equipment providers and distributors, and also served as a contractor to the Veterans Administration and other government agencies.

On May 24, 2013, a class action complaint was filed in the United States District Court for the Northern District of Ohio. In the Action, Lead Plaintiff alleged that Defendants made false and misleading statements about violations of FDA regulations and current Good Manufacturing Practices. The Complaint alleged that these statements and omissions caused the price of Invacare common stock to be artificially inflated and that the price declined when the truth was revealed.

On March 16, 2015, Lead Counsel and Defendants’ Counsel, and other participants, participated in a full- day mediation session before Jed Melnick, Esq., of JAMS Mediation. In advance of that session, the Parties submitted to Mr. Melnick detailed and confidential mediation statements and exhibits, which addressed the issues of both liability and damages. The session ended without any agreement being reached.

Over the course of the next week, Mr. Melnick conducted further discussions with the Parties and made a “Mediator’s Recommendation” to resolve the Action for $11 million, which the Parties accepted on March 24, 2015, subject to certain terms and conditions and the execution of a customary “long form” Stipulation and Agreement of Settlement and related papers. A copy of the Stipulation and Agreement of Settlement may be downloaded from the Court Documents page of this website.

On July 23, 2015, after a hearing, the Court preliminarily approved the Settlement, authorized the Notice to be disseminated to potential Settlement Class Members, and scheduled the Settlement Hearing to consider whether to grant final approval to the Settlement. The Court also denied as moot Lead Plaintiff’s motion for class certification, subject to re-filing if the proposed Settlement is not accomplished.

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2. How do I know if I am affected by the Settlement? Who is included in the Settlement Class?

If you are a member of the Settlement Class, you are subject to the Settlement, unless you timely request to be excluded. The Settlement Class consists of:

all persons and entities who or which purchased or otherwise acquired the publicly traded common stock of Invacare between February 27, 2009, and December 7, 2011, inclusive (the “Settlement Class Period”), and were allegedly damaged thereby.

Excluded from the Settlement Class are Defendants; members of the Immediate Family of each of the Individual Defendants; the Officers and/or directors of Invacare; any person, firm, trust, corporation, Officer, director or other individual or entity in which any Defendant has a controlling interest (a greater than 50% voting equity interest); and the legal representatives, agents, affiliates, heirs, successors-in-interest or assigns of any such excluded party. For purposes of this definition, the Invacare Retirement Savings Plan shall not be deemed an affiliate of any Defendant.

Also excluded from the Settlement Class are any persons and entities who or which exclude themselves by submitting a request for exclusion in accordance with the requirements set forth in the Notice and that is accepted by the Court.

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3. What are Lead Plaintiff’s reasons for the Settlement?

Lead Plaintiff 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 the claims against the Defendants through trial and appeals, as well as the very substantial risks they would face in establishing liability and damages. In particular, Lead Plaintiff recognizes that Defendants had significant arguments that their alleged misstatements were not materially misleading, and that they did not act with scienter. Lead Plaintiff also recognizes that Defendants had substantial arguments that the decline in Invacare’s stock price during the Class Period was not caused by revelations related to Lead Plaintiff’s allegations, and that even if some portion of the decline in Invacare’s stock price was caused by such revelations, damages were minimal. Had any of these arguments been accepted in whole or part, it could have eliminated or, at minimum, dramatically limited any potential recovery. Further, Lead Plaintiff would have had to prevail at several stages – motions for class certification and summary judgment, trial, and if it prevailed on those, on the appeals that were likely to follow. Thus, there were very 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, Lead Plaintiff and Lead Counsel believe that the proposed Settlement is fair, reasonable and adequate, and in the best interests of the Settlement Class. Lead Plaintiff and Lead Counsel believe that the Settlement provides a substantial benefit to the Settlement Class, namely $11,000,000.00 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 uncertainty, burden and expense of continued litigation. Accordingly, the Settlement may not be construed as an admission of any wrongdoing by Defendants.

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4. What might happen if there were no Settlement?

If there were no Settlement and Lead Plaintiff failed to establish any essential legal or factual element of the claims against Defendants, neither Lead Plaintiff nor the other members of the Settlement Class would recover anything from Defendants. Also, if Defendants were successful in proving any of their defenses, either at summary judgment, at trial or on appeal, the Settlement Class could recover substantially less than the amount provided in the Settlement, or nothing at all.

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5. How are Settlement Class Members affected by the Action and the Settlement?

If you are a Settlement Class Member, you are represented by Lead Plaintiff and Lead Counsel, unless you enter an appearance through counsel of your own choice at your own expense. You are not required to retain your own counsel, but if you choose to do so, such counsel must file a notice of appearance on your behalf and must serve copies of his or her appearance on the attorneys listed in the section entitled, “When and where will the Court decide whether to approve the Settlement?,” below.

If you are a Settlement Class Member and do not wish to remain a Settlement Class Member, you may exclude yourself from the Settlement Class by following the instructions in the section entitled, “What if I do not want to be a member of the Settlement Class? How do I exclude myself?,” below.

If you are a Settlement Class Member and you wish to object to the Settlement, the Plan of Allocation, or Plaintiffs' Counsel’s application for attorneys’ fees and reimbursement of Litigation Expenses, and if you do not exclude yourself from the Settlement Class, you may present your objections by following the instructions in the section entitled, “When and where will the Court decide whether to approve the Settlement?,” below.

If you are a Settlement Class Member and you do not exclude yourself from the Settlement Class, you will be bound by any orders issued by the Court. If the Settlement is approved, the Court will enter a judgment (the “Judgment”). The Judgment will dismiss with prejudice the claims against Defendants and will provide that, upon the Effective Date of the Settlement, Lead Plaintiff and each of the other Settlement Class Members (whether or not such person or entity submitted a Claim Form), on behalf of themselves, and their respective heirs, executors, administrators, 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 Plaintiffs’ Claim (as defined in the Notice, including, without limitation, any Unknown Claims) against the Defendants and the other Defendants’ Releasees (as defined in the Notice), and shall forever be enjoined from prosecuting any or all of the Released Plaintiffs’ Claims against any of the Defendants’ Releasees.

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6. How do I participate in the Settlement? What do I need to do?

To be potentially eligible for a payment from the proceeds of the Settlement, you must be a member of the Settlement Class and you must timely complete and return the Claim Form with adequate supporting documentation postmarked no later than December 22, 2015. A Claim Form was included with the Notice you may have received by mail. You may also obtain one from this website, or you may request that a Claim Form be mailed to you by calling the Claims Administrator toll free at 1-888-821-7768.

Please retain all records of your ownership of and transactions in Invacare common stock, as they may be needed to document your Claim. If you request exclusion from the Settlement Class or do not submit a timely and valid Claim Form, you will not be eligible to share in the Net Settlement Fund.

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7. How much will my payment be?

At this time, it is not possible to make any determination as to how much any particular Settlement Class Member may receive from the Settlement.

Pursuant to the Settlement, Defendants have agreed to pay or cause to be paid eleven million dollars ($11,000,000.00) in cash. The Settlement Amount has been deposited into an escrow account. The Settlement Amount plus any interest earned thereon is referred to as the “Settlement Fund.”

If the Settlement is approved by the Court and the Effective Date occurs, the “Net Settlement Fund” will be distributed to Settlement Class Members who submit valid Claim Forms, in accordance with the proposed Plan of Allocation or such other plan of allocation as the Court may approve. The proposed Plan of Allocation is located in the Notice, starting at paragraph 53.

The Net Settlement Fund is the Settlement Fund less (a) all federal, state and/or local taxes on any income earned by the Settlement Fund and the reasonable costs incurred in connection with determining the amount of and paying taxes owed by the Settlement Fund (including reasonable expenses of tax attorneys and accountants); (b) the costs and expenses incurred in connection with providing notice to Settlement Class Members and administering the Settlement on behalf of Settlement Class Members; and (c) any attorneys’ fees and Litigation Expenses awarded by the Court.

The Net Settlement Fund will not be distributed unless and until the Court has approved the Settlement and a plan of allocation, and the time for any petition for rehearing, appeal or review, whether by certiorari or otherwise, has expired.

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8. What payment are the attorneys for the Settlement Class seeking? How will the lawyers be paid?

Plaintiffs’ Counsel have not received any payment for their services in pursuing claims against the Defendants on behalf of the Settlement Class, nor have Plaintiffs’ Counsel been reimbursed for their out-of-pocket expenses. On or before October 15, 2015, Plaintiffs’ Counsel will apply to the Court for an award of attorneys’ fees on behalf of Plaintiffs’ Counsel in an amount not to exceed 25% of the Settlement Amount, plus interest in the amount of 25% of the interest earned by the Settlement Fund as of the date of the award (the remaining 75% of the interest earned shall remain with the Settlement Fund and be distributed to Authorized Claimants as part of the Net Settlement Fund). At the same time, Plaintiffs’ Counsel also intend to apply for reimbursement of Litigation Expenses incurred by Plaintiffs’ Counsel in an amount not to exceed $400,000.00, which may include an application for reimbursement of the reasonable costs and expenses incurred by Lead Plaintiff directly related to its representation of the Settlement Class. The Court will determine the amount of any award of attorneys’ fees or reimbursement of Litigation Expenses. Such sums as may be approved by the Court will be paid from the Settlement Fund. Settlement Class Members are not personally liable for any such fees or expenses. Attorneys’ fees and Litigation Expenses awarded by the Court to Plaintiffs’ Counsel are in addition to, and separate from, the Notice and Administration Costs that may be paid from the Settlement Fund as authorized by the Stipulation and the Court, including but not limited to, the fees, costs, and expenses incurred by the Claims Administrator in identifying and notifying members of the Settlement Class or in administering the Settlement.

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9. What if I do not want to be a member of the Settlement Class? How do I exclude myself?

Each Settlement Class Member will be bound by all determinations and judgments in this lawsuit, whether favorable or unfavorable, unless such person or entity mails or delivers a written Request for Exclusion from the Settlement Class, addressed to Invacare Securities Class Action Settlement as follows:

Invacare Securities Class Action – EXCLUSIONS
c/o GCG
P.O. Box 10209
Dublin, OH 43017-3909

The exclusion request must be received no later than October 29, 2015. You will not be able to exclude yourself from the Settlement Class after that date. Each Request for Exclusion must:

  1. state the name, address and telephone number of the person or entity requesting exclusion, and in the case of entities the name and telephone number of the appropriate contact person;
  2. state that such person or entity “requests exclusion from the Settlement Class in Government of Guam Retirement Fund v. Invacare Corporation, et al., Case No. 1:13CV1165”;
  3. state the number of shares of Invacare publicly traded common stock that the person or entity requesting exclusion purchased/acquired and/or sold during the Settlement Class Period (i.e., between February 27, 2009, and December 7, 2011, inclusive), as well as the dates and prices of each such purchase/acquisition and sale; and
  4. be signed by the person or entity requesting exclusion or an authorized representative.

A Request for Exclusion shall not be valid and effective unless it provides all the information called for in this paragraph and is received within the time stated above, or is otherwise accepted by the Court.

If you do not want to be part of the Settlement Class, you must follow these instructions for exclusion even if you have pending, or later file, another lawsuit, arbitration, or other proceeding relating to any Released Plaintiffs’ Claim against any of the Defendants’ Releasees.

If you ask to be excluded from the Settlement Class, you will not be eligible to receive any payment out of the Net Settlement Fund.

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10. When and where will the Court decide whether to approve the Settlement? Do I have to come to the hearing? May I speak at the hearing if I don’t like the Settlement?

Settlement Class Members do not need to attend the Settlement Hearing. The Court will consider any submission made in accordance with the provisions below even if a Settlement Class Member does not attend the hearing. You can participate in the Settlement without attending the Settlement Hearing.

The Settlement Hearing will be held on November 19, 2015 at 2:00 p.m., before the Honorable Christopher A. Boyko at the United States District Court for the Northern District of Ohio, Eastern Division, Courtroom 15B of the Carl B. Stokes United States Court House, 801 West Superior Avenue, Cleveland, Ohio 44113.

The Court reserves the right to approve the Settlement, the Plan of Allocation, Plaintiffs' 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.

Any Settlement Class Member who or which does not request exclusion may object to the Settlement, the proposed Plan of Allocation or Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses.

Objections must be in writing. You must file any written objection, together with copies of all other papers and briefs supporting the objection, with the Clerk’s Office at the United States District Court for the Northern District of Ohio at the address set forth below on or before October 29, 2015. You must also serve the papers on Lead Counsel and on Defendants’ Counsel at the addresses set forth below so that the papers are received on or before October 29, 2015

Clerk’s Office:

U.S. District Court N.D. Ohio, Eastern Division
Carl B. Stokes United States Court House
801 West Superior Avenue
Cleveland, Ohio 44113
Lead Counsel:

Bernstein Litowitz Berger & Grossmann LLP
Blair A. Nicholas, Esq.
Niki L. Mendoza, Esq.
12481 High Bluff Drive, Suite 300
San Diego, CA 92130
Defendants’ Counsel:

Calfee, Halter & Griswold LLP
Mitchell G. Blair, Esq.
1405 East Sixth Street
Cleveland, OH 44114

Any objection:

  1. must state the name, address and telephone number of the person or entity objecting and must be signed by the objector;
  2. must contain a statement of the Settlement Class Member’s objection or objections, and the specific reasons for each objection, including any legal and evidentiary support the Settlement Class Member wishes to bring to the Court’s attention; and
  3. must include documents sufficient to prove membership in the Settlement Class, including the number of shares of Invacare publicly traded common stock that the objecting Settlement Class Member purchased/acquired and/or sold during the Settlement Class Period (i.e., between February 27, 2009, and December 7, 2011, inclusive), as well as the dates and prices of each such purchase/acquisition and sale.

You may not object to the Settlement, the Plan of Allocation or Plaintiffs' Counsel’s motion for attorneys’ fees and reimbursement of Litigation Expenses if you exclude yourself from the Settlement Class or if you are not a member of the Settlement Class.

You may file a written objection without having to appear at the Settlement Hearing. You may not, however, appear at the Settlement Hearing to present your objection unless you first filed and served a written objection in accordance with the procedures described above, unless the Court orders otherwise.

If you wish to be heard orally at the hearing in opposition to the approval of the Settlement, the Plan of Allocation or Plaintiffs' Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses, and if you file and serve a timely written objection as described above, you must also file a notice of appearance with the Clerk’s Office and serve it on Lead Counsel and Defendants’ Counsel at the addresses set forth above so that it is received on or before October 29, 2015. Persons who intend to object and desire to present evidence at the Settlement Hearing must include in their written objection or notice of appearance the identity of any witnesses they may call to testify and exhibits they intend to introduce into evidence at the hearing. Such persons may be heard orally at the discretion of the Court.

You are not required to hire an attorney to represent you in making written objections or in appearing at the Settlement Hearing. However, if you decide to hire an attorney, it will be at your own expense, and that attorney must file a notice of appearance with the Court and serve it on Lead Counsel and Defendants’ Counsel at the addresses set forth in above so that the notice is received on or before October 29, 2015.

The Settlement Hearing may be adjourned by the Court without further written notice to the Settlement Class. If you intend to attend the Settlement Hearing, you should confirm the date and time with Lead Counsel.

Unless the Court orders otherwise, any Settlement Class Member who does not object in the manner described above will be deemed to have waived any objection and shall be forever foreclosed from making any objection to the proposed Settlement, the proposed Plan of Allocation or Plaintiffs' Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses. Settlement Class Members do not need to appear at the Settlement Hearing or take any other action to indicate their approval.

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11. What if I bought shares on someone else’s behalf?

If you purchased or otherwise acquired Invacare publicly traded common stock between February 27, 2009, and December 7, 2011, inclusive, for the beneficial interest of persons or organizations other than yourself, you must either (a) within seven (7) calendar days of receipt of the Notice, request from the Claims Administrator sufficient copies of the Notice and Claim Form (the “Notice Packet”) to forward to all such beneficial owners and within seven (7) calendar days of receipt of those Notice Packets forward them to all such beneficial owners; or (b) within seven (7) calendar days of receipt of the Notice, provide a list of the names and addresses of all such beneficial owners to Invacare Securities Class Action Settlement, c/o GCG, P.O. Box 10209, Dublin, OH 43017-3909.

If you choose the second option, the Claims Administrator will send a copy of the Notice and the Claim Form to the beneficial owners. Upon full compliance with these directions, such nominees may seek reimbursement of their reasonable expenses actually incurred, by providing the Claims Administrator with proper documentation supporting the expenses for which reimbursement is sought. Copies of the Notice and the Claim Form may also be obtained from this website, or by calling the Claims Administrator toll-free at (888) 821-7768.

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12. Can I see the Court file? Whom should I contact if I have questions?

This website 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 Northern District of Ohio, Eastern Division, Carl B. Stokes United States Court House, 801 West Superior Avenue, Cleveland, Ohio 44113.

Additionally, copies of the Stipulation and any related orders entered by the Court will be posted on this website under the Court Documents page.

Claims Administrator:

Invacare Securities Class Action Settlement
c/o GCG
P.O. Box 10209
Dublin, OH 43017-3909
1-888-821-7768
Lead Counsel:

Bernstein Litowitz Berger & Grossmann LLP
Blair A. Nicholas, Esq.
Niki L. Mendoza, Esq.
12481 High Bluff Drive, Suite 300
San Diego, CA 92130
1-866-648-2524
blbg@blbglaw.com

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

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