The Derivative Action Settlement
At the same time, in conjunction with the Class Action settlement, the Company entered into an MOU (the “Derivative MOU”) providing for the settlement of the derivative action lawsuit currently pending in the Southern District of New York (the “SDNY”) captionedWitchko v. Schorsch, et al., No.1:15-cv-06043-AKH (the “Derivative Action”). The Derivative Action settlement will resolve the allegations brought by the derivative plaintiffs and is also subject to completing definitive documentation to be filed with the court. The Derivative Action settlement is subject to court approval and is conditioned on approval of the Class Action settlement. Each of thenon-VEREIT defendants that agreed to contribute to the settlement of the Class Action conditioned their contributions on complete releases from the Company of any claims the Company might have against those defendants (including any potential claims for contribution by VEREIT with respect to the claims asserted in the Class Action, along with complete releases of any claims asserted in the Derivative Action).
The Opt Out Action Settlements and Remaining Litigations
On September 6 and September 9, 2019, the Company also entered into settlement agreements and releases to settle the Opt Out Actions for a total of $27.0 million, which are not subject to court approval. Three additional derivative actions remain pending in courts other than the SDNY. The Company expects to seek dismissal of these actions based upon the settlement of the Derivative Action.
Management Commentary
Glenn J. Rufrano, Chief Executive Officer, stated, “VEREIT is pleased to enter into agreements that we expect will bring these litigations to a conclusion. The Company believes the settlements are in the Company’s best interest and that of its shareholders, as they eliminate the risk of adverse judgments at trial, put an end to timing uncertainties, and remove the burdens and costs of these litigations.”
Additional Information
The Company has been cooperating with the SEC staff’s investigation related to the matters at issue in the Class Action since its inception and continues to have discussions with the staff regarding a resolution of potential charges the SEC may bring against the Company. In addition, the Company has advised the SEC that the Company plans to seek recovery of approximately $34.0 million paid by the Company’s Former Manager and the Former CFO in connection with the previously announced settlement between them and the SEC,SEC v. AR Capital, LLC et al.,No.1:19-cv-06603-AT, for disgorgement and penalties. Any monies disbursed to the Company will be maintained by the Company and will not be paid as part of the settlements described above. There can be no assurance as to whether any of these funds will be disbursed to the Company, and the timing and substance of the ultimate resolution of these discussions is unknown.
There can be no assurance as to the timing of the court’s approval of the Class Action and Derivative settlements, whether such approvals will be obtained, or how these settlements may affect any potential future resolution of the remaining derivative lawsuits, the SEC matter, or the timing of any such resolution. The Company will be required to fund its contribution to the Class Action settlement, along with the cash value of any OP Units and dividends surrendered by the Former Manager and the Former CFO in order to satisfy their contributions to the Class Action settlement, ten days after the court grants preliminary approval of both the Class Action and Derivative settlements.
Audio Webcast Details
VEREIT will host a live audio webcast beginning at 5:00 p.m. ET today, Monday, September 9, 2019, to discuss the settlements. Access the audio webcast athttp://ir.vereit.com/. Participants should log in10-15 minutes early.