Category Archives: Lead Plaintiff/Lead Counsel

Third Place Winner Redux

The 10b-5 Daily should have known better than to call a securities decision “rare.”  For the second time in a month, an applicant with the third-highest claimed damages has been appointed lead plaintiff in a securities class action.  The reasoning behind this decision, however, is quite different and illustrates the many ways an applicant can be rejected.

As previously noted, under the PSLRA, the presumptive lead plaintiff in a securities class action is the applicant with the “largest financial interest in the relief sought by the class.”  The largest financial interest is measured by assessing the approximate losses suffered and, once the court makes that determination, the contest is usually over.  But not always.  The court also has to find that the applicant meets the typicality and adequacy requirements of Federal Rule of Civil Procedure 23.

In Gelt Trading Ltd. v. Co-Diagnostics, Inc., 2021 WL 913934 (D. Utah March 10, 2021), the court determined that the top three applicants for lead plaintiff had the following claimed losses: Co-Diagnostics Investor Group (two individual investors) – $233,131, Tejeswar Tadi – $158,800, and Gelt Trading – $117,740.  The court, however, had some questions surrounding the nature of the losses suffered by the Co-Diagnostics Investor Group and Tadi.

The original complaint filed by Gelt Trading proposed a class period of February 25, 2020 through May 15, 2020.   Gelt Trading subsequently filed an amended complaint, however, proposing a shorter class period of April 30, 2020 to May 14, 2020.  Courts often question whether changes like this have been made to game the lead plaintiff process and, as a result, apply the more inclusive class period in assessing approximate losses.  In this case, however, the court found that “neither the Co-Diagnostics Investor Group nor any other movant has identified any material misstatements made by Co-Diagnostics before April 30, 2020.”  As a result, the large majority of the Co-Diagnostics Investor Group’s claimed losses, which were based on share purchases made prior to April 30, 2020, could not be counted in assessing its application.

As for Tadi, his claimed losses were based entirely on a purchase of call options for Co-Diagnostics’ stock made on May 14, 2020 (the day before the alleged corrective disclosure that ended the proposed class period).  The court found, consistent with the decisions of a number of other courts, that Tadi’s option trading would bring factual issues into the case that were irrelevant to the other class members and would subject him to unique loss causation defenses (i.e., he failed the typicality requirement).

That left Gelt Trading, the filer of the original complaint, but also the party that changed the proposed class period.  The court rejected arguments by the other applicants that Gelt Trading should be excluded because (a) it failed to file a stock trading certificate with its original complaint (the filing was made in conjunction with the amended complaint) and (b) its changing of the class period was designed to favor its lead plaintiff application.  On the second point, the court noted that the change was made before the lead plaintiff applications were submitted.  Voila – another third place winner!

Holding: Consolidating cases and appointing Gelt Trading as lead plaintiff.

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Third Place Winner

Under the PSLRA, the presumptive lead plaintiff in a securities class action is the applicant with the “largest financial interest in the relief sought by the class.”  The largest financial interest is measured by assessing the approximate losses suffered and, once the court makes that determination, the contest is usually over.  But not always.  The court also has to find that the applicant meets the typicality and adequacy requirements of Federal Rule of Civil Procedure 23, including whether the proposed lead plaintiff and its counsel will vigorously fulfill their duties to the class.

In Wasa Medical Holdings v. Sorrento Therapeutics, Inc., 2021 WL 533518 (S.D. Cal. Feb. 12, 2021), the court determined that the top three applicants for lead plaintiff had the following claimed losses: Jing Li (represented by Pomerantz) $454,341, the SRNE Investor Group (represented by Kirby McInerney) $380,908, and Andrew Zenoff (represented by Robbins Geller) $195,500.  While Jing Li was the presumptive lead plaintiff, with the SRNE Investor Group a close second, the court had some doubts as to the adequacy of both of these applicants.

According to her declaration, Jing Li is a 47-year old housewife from Singapore who had been investing in the securities markets for three years.  The court expressed concern “about whether Li possesses the requisite experience to supervise this high-stakes litigation.”  In addition, Li’s submissions to the court contained some ambiguities and errors, including stating that she could only attest to her transactions in Sorrento common stock to “the best of her current knowledge” and initially failing to note that she also was represented by the The Schall Law Firm. 

So what about the SRNE Investor Group?  Both Li and Zenoff argued that the group was “an improper amalgamation of unrelated investors without any pre-existing relationship.”  The court agreed, finding that the Group’s declaration made it clear that the individual investors in the group did not know each other before being brought together by Kirby McInerney.  The court therefore found that both Li and the SRNE Investor Group failed to meet the adequacy requirement.

In contrast, Zenoff had a larger financial interest than any individual member of the SRNE Investor Group and is “the founder of three companies, and the inventor of a maternity nursing product, which has sold millions of units for the span of 24 years.”  He also has 20 years of investing experience.  The court named Zenoff as the lead plaintiff, making him a rare “third place winner” in these contests.

Holding: Consolidating cases and appointing Andrew Zenoff and Robbins Geller as lead plaintiff and lead counsel.

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Creating Your Own Losses

Under the PSLRA, the presumptive lead plaintiff in a securities class action is the applicant with the “largest financial interest in the relief sought by the class.”  The largest financial interest is measured by assessing the approximate losses suffered, with courts generally holding that losses suffered as the result of “in-and-out” stock transactions that took place before any misconduct was revealed do not count.

With this background in mind, the court in Topping v. Deloitte Touche Tohmatsu, 2015 WL 1427317 (S.D.N.Y. March 27, 2015) faced a novel procedural twist in assessing competing lead plaintiff applications.  The applicant with the largest claimed losses actually sold all of its holdings before the corrective public disclosure alleged in the original complaint was made.  While that would normally be disqualifying, shortly after the lead plaintiff deadline, the applicant’s counsel filed a “Corrected Complaint” adding allegations about an earlier, partial disclosure that occurred prior to the applicant’s sales.  In its lead plaintiff briefing, the applicant argued that based on the Corrected Complaint, it was not an in-and-out trader and should be appointed.

The court rejected this argument on two grounds.  First, the court found that it could not look to allegations in a corrected or amended complaint filed after the lead plaintiff application deadline in assessing which applicant has the largest claimed losses.  Not only would doing so undermine the timeliness of the lead plaintiff process by inviting additional briefing, but it would prejudice other class members who had relied on the original complaint in determining whether and how to make their lead plaintiff applications.   Second, even if the court were to consider the Corrected Complaint, the alleged partial disclosure did not reveal anything about the alleged fraud and could not be used to demonstrate loss causation.

Holding: Appointed applicant with second-largest claimed losses as lead plaintiff.


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Fire The Torpedoes

The class certification decision in In Diamond Foods, Inc. Sec. Litig., 2013 WL 1891382 (N.D. Cal. May 6, 2013) contains a number of interesting holdings.

(1) Market efficiency is an issue for the finder of fact – A rebuttable presumption of reliance based on the fraud-on-the-market theory is only available to plaintiffs if the company’s stock traded on an efficient market. Market efficiency means that the company’s stock price reflected all publicly available information, which is typically tested by examining a number of empirical factors. In Diamond Foods, the court noted that the Supreme Court and the Ninth Circuit have never addressed “whether market efficiency is an issue for the jury to determine in trial (or, where appropriate, summary judgment), or is a matter reserved for the judge.” The court concluded, however, that the majority of courts correctly “treat efficiency as an issue for the finder of fact.”

(2) Comcast decision inapplicable to securities class actions – In the Supreme Court’s recent Comcast decision, it held that class certification should be denied if damages are incapable of measurement on a classwide basis. The Diamond Foods court found that the Comcast holding was inapplicable to securities class actions, where it is widely accepted that an event study can be “used to identify the economic loss caused by alleged fraud.” Indeed, the defendant failed “to identify any specific complications that would make such a calculation impossible or ill-advised in this case.”

(3) Pay-to-play allegations insufficient to find proposed class representative inadequate – The lead counsel had made political contributions to Mississippi Attorney General Jim Hood, who controlled the lead plaintiff’s selection of counsel. The court found that none of the contributions, however, were made “after counsel were approved by the Court in June 2012.” While lead counsel also had made contributions to the Democratic Attorneys General Assocation in 2012, there did not appear be any “communication between the law firms and Attorney General Hood, or his office, regarding any expectation that the law firms contribute to DAGA or that such contributions would eventually make their way to Attorney General Hood.” Accordingly, the court held that “[d]efendant has not advanced a record adequate to torpedo this action based on a pay-to-play theory.”

Holding: Motion for class certification granted.

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The Back-Up Plan

In a securities class action brought against Central European Distribution Corp., the court received applications for lead plaintiff from Harry Nelis (an individual investor) and the Prosperity Subsidiary Group (a grouping of four institutional investors). Nelis was represented by Pomerantz Haudek, while the Prosperity Subsidiary Group was represented by Robbins Geller. Apparently recognizing that the Prosperity Subsidiary Group’s application was problematic, however, Robbins Geller also submitted a “response” to the court on behalf of another investor, a Puerto Rico public pension fund, in which the fund expressed an interest in being named lead plaintiff if the Prosperity Subsidiary Group was not selected.

In Grodko v. Central European Distribution Corp., 2012 WL 6595931 (D.N.J. Dec. 17, 2012), the court addressed this unusual lineup. The court found that the Prosperity Subsidiary Group had the largest alleged losses, but faced a unique defense based on loss causation. All of the investors in the group had sold their shares well before the disclosures that allegedly revealed the defendants’ fraud. Accordingly, the court denied the Prosperity Subsidiary Group’s application. While the Puerto Rico fund had the next largest alleged losses, Nelis argued that it should not be selected because (a) the Puerto Rico fund had failed to file a timely application for lead plaintiff, and (b) Robbins Geller was engaging in “unethical gamesmanship” based on its representation of multiple plaintiffs.

The court rejected Nelis’ arguments. First, the Puerto Rico fund had filed a complaint in the action. Under the language of the PSLRA, the court held that the filing of an initial complaint is sufficient to entitle the party to consideration as lead plaintiff. Second, the court noted that “Nelis has not cited any legal authority supporting his contention that counsel in a securities class action are necessarily behaving unethically when they represent multiple plaintiffs.” Indeed, Pomerantz Hudek also represented both Nelis and a different investor who had filed one of the initial complaints. Nor was there any apparent conflict of interest between Robbins Geller’s various clients.

Holding: Appointing the Puerto Rico fund as lead plaintiff and Robbins Geller as lead counsel.

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Clear Incentives

Two items on the relationship between investors and their counsel.

(1) The battle over the attorneys’ fees award in the Tyco securities litigation continues. At the heart of the dispute is whether lead counsel was bound by its contractual fee arrangement with the lead plaintiff, which provided for a much lower fee award, or could seek whatever level of fees the court would approve. Forbes has a column on the latest filings in the case.

(2) Judge Jed Rakoff is no stranger to securities litigation and is not known for holding back on his opinions. In City of Pontiac General Employees’ Retirement System v. Lockheed Martin Corp., 2012 WL 546475 (S.D.N.Y. Feb. 21, 2012), the judge took on the common practice of plaintiffs’ firms entering into “monitoring” agreements with institutional investors. Under these agreements, the plaintiffs’ firm (without charge) monitors the investments made by the institution to see if any securities class actions should be brought. If the plaintiffs’ firm recommends that a case be brought and the institution agrees, the plaintiffs’ firm will be the institution’s presumptive choice as counsel. Judge Rakoff noted that the practice “creates a clear incentive for the monitoring firm to discover ‘fraud’ in the investments it monitors,” which would appear to undermine the PSLRA’s goal of discouraging lawyer-driven litigation. Nevertheless, the court approved the proposed lead plaintiff and lead counsel, finding that it appeared that the institution had “the ability to properly exercise [its] role as lead plaintiff” and had affirmed at a hearing on the matter that it would play an active part in the litigation going forward.

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Double Check

In a strange story, a court in the S.D.N.Y. has dismissed the lead plaintiff from a securities class action brought against Smith Barney Fund Management and Citigroup Global Markets because, after six years of litigation, it was revealed that the entity had not actually purchased the securities at issue. The lawsuit, originally filed in 2005, alleges various misrepresentations by an investment advisor for certain Smith Barney mutual funds, which later were acquired by Citigroup. According to counsel for the plaintiffs, the relevant brokerage documentation erroneously showed that the Operating Local 639 Annuity Trust Fund had invested in one of the relevant mutual funds (when, in reality, its investment was in a similarly named fund).

The court, in an apparently scathing decision, cited “epic failures” by the attorneys on both sides of the case in not investigating the issue earlier. For its part, “[h]ad Smith Barney simply checked its records, it would have avoided six years of sparring with a phantom opponent.” Bloomberg and the WSJ Law Blog have articles on the decision.

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Timing Is Everything

(1) Given that the PSLRA has been in effect since 1995, federal courts of appeals have been spending a surprising amount of time lately addressing writs of mandamus on how to interpret the statute’s lead plaintiff provisions. Just last month, a Ninth Circuit panel held that a district court cannot reject the lead plaintiff’s proposed lead counsel and substitute lead counsel of the court’s own choosing. In In re Bard Associates, Inc., 2009 WL 4350780, (10th Cir. Dec. 2, 2009), the Tenth Circuit was asked to consider whether an investment advisor who applied to act as lead plaintiff, but did not obtain assignments of its clients’ claims until after its motion was filed, made a valid application. The panel found that the district court did not abuse its discretion when it rejected the investment advisor’s application on the grounds that the investment advisor had failed to establish its standing to sue as of the lead plaintiff application deadline.

(2) Settling a securities class action for $40 million is not that unusual. Settling a securities class action for $40 million after obtaining the dismissal of the case (and before any appellate ruling) is quite unusual. The D&O Diary and The American Lawyer have full coverage of Dell’s interesting settlement announced last week. It certainly seems hard to argue with lead counsel’s conclusion that it was “a very, very good result for the class . . . [p]articularly given the procedural posture of the case.”

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The Groves Of Academe

There is nothing unusual about a court reducing the requested attorneys’ fees as part of its approval of a securities class action settlement. That said, it is rarely accompanied by the written fireworks found in the recent opinion in the UnitedHealth Group options backdating case.

The case settled last year for $895 million (later increased by payments from individual defendants to a combined class fund of $925.5 million). In In re UnitedHealth Group PSLRA Litig., 2009 WL 2482029 (D. Minn. Aug. 11, 2009), Judge James Rosenbaum granted final approval to the settlement, but reduced the requested attorneys’ fees from $110 million (11.92% of common fund) to $64.785 million (7% of common fund).

The court was sharply critical of lead counsel’s reliance on the fee agreement with its client, which (a) had been entered into after the denial of the motion to dismiss, (b) was not the product of competitive bidding, and (c) had an escalating schedule that increased the percentage paid in attorneys’ fees as the recovery increased. The court found that it was not bound by the agreement and “any risk that declining percentages will force class action counsel to settle ‘too early and too cheaply’ is overstated.”

As for the lodestar check, the court rejected lead counsel’s calculation of its expended fees, finding that “the submissions reflect rates far beyond those charged in the Twin Cities market, as well as considerable time billed by staff which is properly counted as overhead.” Based on the court’s recalculation, the awarded fees resulted in a 6.5 multiplier. The court did graciously note in a footnote, however, that if lead plaintiff wished “to divide its aliquot portion of the recovery between itself and its lawyers as provided in their fee agreement, this Opinion should not be read to suggest any opposition.”

Thanks to Securities Docket for the link to the opinion.

Quote of note: “[Lead counsel] supports its request with the expert report of Professor Charles Silver, who asks, ‘Can judges do better than lead plaintiffs when it comes to setting fees?’ He believes not, because ‘[j]udges have neither better information, better access to markets, nor better incentives.’ His argument rests on Adam Smith’s premise that the self-regulated market knows best, and ‘prices are best set by buyers and sellers bargaining in a competitive environment.’ Seldom have the groves of academe and the ivory towers sheltered within their leafy bowers seemed farther from reality. A lecture on the virtues of the unrestrained free market sounds a bit hollow in light of the parties’, this Nation’s, and indeed the world’s, experiences with the beauties of self-regulated financial markets during a period remarkably coterminous with the existence of this case. The Court rejects the proffered expert’s opinion.”

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The Only Crap Game In Town

Senior District Judge Milton Shadur has a colorful history when it comes to applying the PSLRA’s lead plaintiff/lead counsel provisions. It just got a bit more colorful with his decision in Gorham v. General Growth Properties, Inc., 2009 WL 661303 (N.D. Ill. March 16, 2009).

In selecting a lead plaintiff in General Growth, the court was forced to choose between two individual investors, neither of whom had moved for lead plaintiff status within the requisite 60 days after publication of notice of the case. Investor A filed a complaint within the 60-day period, had a small loss, and entered into a high-cost fee arrangement with proposed lead counsel. Investor B only filed a complaint after the 60-day period, had a larger loss, and entered into a low-cost fee arrangment with proposed lead counsel. In pressing its application, Investor A argued that he was – in Judge Shadur’s phrasing – “the only crap game in town” because Investor B had not even filed a complaint within the first 60 days.

Judge Shadur found, however, that “any presumption that [Investor A] is the ‘most adequate plaintiff’ has been fully rebutted by the inferiority of his chosen counsel’s proposal for the fees to be charged to the class members out of any recovery.” Accordingly, the court appointed Investor B as lead plaintiff and his chosen counsel as lead counsel.

Quote of note: “This Court flatly rejects the prospect of having such a tiny wisp of a tail-[Investor A] with his minimal investment in General Growth-wag the very large dog of the plaintiff class. What [Investor A] has to lose in terms of his in-pocket recovery, if the class is successful in the litigation and if his own counsel’s formulation were to apply rather than the far more client-favorable formulation proffered by [Investor B’s counsel], is in the range of a few hundred dollars, while what the class would stand to lose under the [Investor A]-sponsored formula would be measured in millions of dollars.”

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