Notice of Dismissal of On Deck Capital, Inc. Litigation and Agreement Upon Attorney's Fees

Mar 12, 2021 2:16 PM ET


Notice is hereby provided to all persons who held shares of On Deck Capital, Inc. ("On Deck" or the "Company") common stock at any time during the period from and including July 28, 2020 through October 13, 2020.

The purpose of this Notice is to inform you about developments with respect to the putative class action lawsuit captioned Doaty v. Breslow, et al., C.A. No. 2020-0763-MTZ (the "Action"), including the dismissal of the Action and an agreement to pay attorneys' fees and expenses to counsel for Plaintiff in the Action.

On July 28, 2020, the Company entered into an Agreement and Plan of Merger with Enova International, Inc. ("Enova") pursuant to which, On Deck shareholders would receive 0.12 cents per share in cash and 0.092 of a share of Enova common stock for each share of On Deck held (the "Merger"). On August 25, 2020, the Company filed with the Securities and Exchange Commission ("SEC") a form S-4 registration statement containing a preliminary proxy statement (the "Proxy") in connection with the stockholder vote on October 7, 2020 relating to the Merger.

On September 4, 2020, Plaintiff Conrad Doaty, a purported stockholder of the Company, filed the Action and named as defendants members of the Company's Board of Directors (the "Board"). The complaint alleged, among other things, that the Board violated its fiduciary duties under Delaware law by failing to provide all material information in the Proxy required for stockholders to cast an informed vote regarding the Merger. As relief, the complaint sought, among other things, an injunction against the Merger, damages and an award of attorneys' and experts' fees.

On September 10, 2020, Plaintiff filed a motion for expedited proceedings and a motion for a preliminary injunction.

The Company and the other defendants have denied that they committed any violation of law or engaged in any of the wrongful acts that were or could have been alleged in the Action, and expressly maintain that they diligently and scrupulously complied with their fiduciary and other legal duties.

After the complaint was filed, the Company and its Board determined to provide additional disclosures to the Proxy to address the allegations in the Action in a Form 8-K, filed with the SEC on September 28, 2020 (the "Supplemental Disclosures"). On October 16, 2020, the Court approved a stipulation under which the Plaintiff voluntarily dismissed the Action. The Court retained jurisdiction solely for the purpose of adjudicating the anticipated application of Plaintiff's counsel for an award of attorneys' fees and reimbursement of expenses in connection with the Action (the "Fee and Expense Application"). Following negotiations, the Company, while denying any and all liability, and maintaining that the Proxy already contained all material information required for stockholders to cast an informed vote regarding the Merger prior to the Supplemental Disclosures, agreed to pay $275,000 to Plaintiff's counsel for attorneys' fees and expenses in full satisfaction of the anticipated Fee and Expense Application. The Court has not been asked to review, and will pass no judgment on, the payment of attorneys' fees and expenses or their reasonableness.

Attorneys for Plaintiff and Defendants may be contacted as follows:

Juan E. Monteverde
The Empire State Building
350 Fifth Avenue, Suite 4405
New York, NY 10118
Tel: (212) 971-1341
[email protected]
Attorneys for Plaintiff

Stefan Atkinson, P.C.
Dan Cellucci
Sam Sullivan
601 Lexington Avenue
New York, NY 10022
(212) 446-4800
Attorneys for Defendants

Thomas P. Cimino, Jr.
Brian W. Ledebuhr
222 N. LaSalle Street
Suite 2600
Chicago, IL 60601
(312) 609-7500
Attorneys for Buyer Enova International, Inc.

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