Pension Fund v. Watson Pharmaceutica ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMPLOYERS-TEAMSTERS LOCAL NOS. 
175 & 505 PENSION TRUST FUND,
INTERNATIONAL UNION OF
OPERATING ENGINEERS, LOCAL 132
PENSION PLAN, and WEST VIRGINIA
LABORERS’ PENSION TRUST FUND, No. 04-56791
Pension-Fund Plaintiffs- D.C. Nos.
Appellants, CV-03-08236-AHM
v.  CV-03-08946-AHM
CV-03-09291-AHM
ANCHOR CAPITAL ADVISORS,
CV-03-09628-AHM
Lead Plaintiff-Appellee,
OPINION
and
WATSON PHARMACEUTICALS, INC.,
ALLEN CHAO, JOSEPH C. PAPA, FRED
WILKINSEN, and MICHAEL E. BOXER,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Argued and Submitted
November 17, 2006—Pasadena, California
Filed August 16, 2007
Before: Thomas G. Nelson and Jay S. Bybee, Circuit Judges,
and Kevin Thomas Duffy,* District Judge.
*The Honorable Kevin Thomas Duffy, Senior Judge, United States
District Court for the Southern District of New York, sitting by designa-
tion.
9973
9974 EMPLOYERS-TEAMSTERS v. WATSON PHARMACEUTICALS
Opinion by Judge Duffy
EMPLOYERS-TEAMSTERS v. WATSON PHARMACEUTICALS 9975
COUNSEL
Joseph D. Daley, Esq., William S. Lerach, Esq., Darren J.
Robbins, Esq., Eric Alan Isaacson, Esq., Daniel S. Drosman,
Esq., Lerach Coughlin Stoia Geller Rudman & Robbins LLP,
for appellant Pension Fund.
Christopher Kim, Esq., Lisa J. Yang, Esq., Lim Ruger and
Kim, for lead plaintiff-appellee Anchor Capital Advisors.
9976 EMPLOYERS-TEAMSTERS v. WATSON PHARMACEUTICALS
Sean M. Handler, Esq., Stuart L. Berman, Esq., Robin Win-
chester, Esq., Schiffrin & Barroway, LLP, for lead plaintiff-
appellee Anchor Capital Advisors.
Seth Aronson, Esq., Robert C. Vanderet, Esq., David I. Hur-
witz, Esq., J. Cacilia Kim, Esq., O’Melveny & Myers LLP,
for defendants-appellees Watson Pharmaceuticals, Inc., Allen
Chao, Joseph C. Papa, Fred Wilkinson, and Michael E. Boxer.
OPINION
DUFFY, District Judge:
Appellants, non-parties to the action below, bring this
appeal from the district court’s order granting lead plaintiff’s
motion to dismiss its claims in an uncertified securities class
action. Because Appellants never filed a complaint or for-
mally moved to intervene, they lack standing and we are
therefore precluded from reaching the merits of Appellants’
argument that they would have been the proper lead plaintiff
pursuant to the Private Securities Litigation Reform Act (the
“PSLRA”), 15 U.S.C. § 78u-4(a). Furthermore, lead plain-
tiff’s voluntary dismissal of its claims prior to class certifica-
tion renders this appeal of the interim lead plaintiff order
moot. Appellants’ argument that they could not file their own
complaint due to the proscription against “piggybacking” on
an original class action is also without merit. The appeal is
dismissed.
I. Facts
On November 12, 2003, Anchor Capital Advisors (“Anchor
Capital”) filed the first of four purported class actions in the
Central District of California against Watson Pharmaceuti-
cals, Inc. (“Watson Pharmaceuticals”) for alleged violations
of Sections 10(b) and 20(a) of the Securities Exchange Act of
EMPLOYERS-TEAMSTERS v. WATSON PHARMACEUTICALS 9977
1934. Appellants did not file a complaint or move to intervene
in any of the four district court actions. On February 9, 2004,
the district court consolidated the four actions and considered
the motions of various parties, including Appellants’, for
appointment of lead plaintiff pursuant to the PSLRA. The dis-
trict court preliminarily declared Anchor Capital as the lead
plaintiff based upon its loss of $3.2 million on behalf of its
investors, holding that it had sufficient authority to sue on
behalf of its clients and that it was the party with the largest
financial stake in the outcome of the litigation.1
Watson Pharmaceuticals moved to dismiss the complaint
for failure to plead fraud with the particularity required by
Fed.R.Civ.P. 9(b) and the PSLRA. On August 2, 2004, the
district court dismissed the complaint for failure to adequately
plead falsity and scienter. The order allowed Anchor Capital
the opportunity to re-plead, however, held that it would be
“unlikely that Plaintiffs will be able to amend to allege addi-
tional facts that will satisfy the heightened pleading require-
ments.” See Order Granting Motion to Dismiss the
Consolidated Complaint, August 2, 2004, at 27. In light of
this ruling, Anchor Capital informed the district court that it
would not file another amended complaint, instead requesting
that the individual uncertified actions be dismissed with preju-
dice. Appellants did not object to the dismissal or take any
1
Appellants argue that an investment advisor such as Anchor Capital
cannot be the appropriate lead plaintiff because it did not have express
written authority to sue on its clients’ behalf, a requirement articulated by
some—but not all—of the district courts that have weighed in on this
issue. See, e.g., Kaplan v. Gelfond, 240 F.R.D. 88 (S.D.N.Y. 2007); Smith
v. Suprema Specialties, Inc., 206 F. Supp. 2d 627, 634-35 (D.N.J. 2002).
On the other hand, as the district court found here, other courts have found
that an investment advisor has an interest in its own right to receive full
and fair disclosures regarding the true value of a company’s stock, and
therefore is a “purchaser” under the PSLRA with proper standing to pur-
sue litigation on behalf of its individual clients. See, e.g., Lehocky v. Tidel
Technologies, Inc., 220 F.R.D. 491, 501 (S.D. Tex. 2004); In re Rent-Way
Litig., 218 F.R.D. 101, 109 (W.D. Pa. 2003).
9978 EMPLOYERS-TEAMSTERS v. WATSON PHARMACEUTICALS
other action at that time. Accordingly, on September 2, 2004,
the district court dismissed the action with prejudice. On
appeal, Appellants now challenge the lead plaintiff ruling.
II. Discussion
a. Standing
[1] Standing is the threshold issue of any federal action, a
matter of jurisdiction because “the core component of stand-
ing is an essential and unchanging part of the case-or-
controversy requirement of Article III.” See Lujan v. Defend-
ers of Wildlife, 504 U.S. 555, 561 (1992). In this case,
because the class was never certified, Appellants were not
parties to the district court action and lack standing to bring
this appeal. Appellants were merely potential class members
in a potential class action suit. Despite ample opportunity to
do so, Appellants never filed a complaint, moved to intervene,
objected to the requested dismissal, or filed an amended com-
plaint after Anchor Capital notified the district court that it
would voluntarily dismiss its action. As articulated in Marino
v. Ortiz “only parties to a lawsuit, or those that properly
become parties, may appeal an adverse judgment.” Marino v.
Ortiz, 484 U.S. 301, 304 (1988).
Notwithstanding this principle, the main thrust of Appel-
lant’s argument is premised on Z-Seven Fund, which holds
that a class member must await final judgment before it is
permitted to appeal from a lead-plaintiff ruling. See Z-Seven
Fund v. Motorcar Parts & Accessories, 231 F.3d 1215, 1218-
19 (9th Cir. 2000). Appellants attempt to stretch the holding
of Z-Seven to imply that even putative members of a non-
certified class have standing to appeal a lead-plaintiff ruling
after judgment of dismissal has been entered. In light of
Marino, this cannot be the case.
[2] The denial of Appellants’ lead-plaintiff motion did not
leave them without a remedy. Most intuitive among their host
EMPLOYERS-TEAMSTERS v. WATSON PHARMACEUTICALS 9979
of options was to file a motion for intervention. Appellants
incorrectly argue that a motion for intervention would have
served no purpose after their lead-plaintiff motion was denied.
The standards governing motions for intervention and for lead
plaintiff status, however, could not be more different. At the
relevant time, permissive intervention merely required that:
[u]pon timely application anyone may be permitted
to intervene in an action: (1) when a statute of the
United States confers a conditional right to inter-
vene; or (2) when an applicant’s claim or defense
and the main action have a question of law or fact in
common . . . . In exercising its discretion the court
shall consider whether the intervention will unduly
delay or prejudice the adjudication of the rights of
the original parties.
See F.R.C.P. 24(b), amended by 2007 U.S. Order 07-30
(applying non-substantive changes to the requirements for
permissive intervention). On the other hand, a motion for lead
plaintiff status carries with it a more onerous burden: indeed,
the substance of this appeal is premised on the ability to prove
which prospective lead plaintiff is the most adequate by virtue
of having the highest financial stake in the outcome of the
case.
[3] Appellants argue that their motion for lead plaintiff sta-
tus was tantamount to a motion for intervention. This is sim-
ply not so. The plain language of the PSLRA states that:
Not later than 90 days after the date on which a
notice is published under subparagraph (A)(i), the
court shall consider any motion made by a purported
class member in response to the notice, including
any motion by a class member who is not individu-
ally named as a plaintiff in the complaint or com-
plaints, and shall appoint as lead plaintiff the
member or members of the purported plaintiff class
9980 EMPLOYERS-TEAMSTERS v. WATSON PHARMACEUTICALS
that the court determines to be most capable of ade-
quately representing the interests of class members
....
See 15 U.S.C. § 78u-4(a)(3)(B)(i). The plain language of this
statute is testament to the fact that a motion to be appointed
as lead plaintiff is not the same as a formal motion to inter-
vene. Appellants cite three cases in an unsuccessful attempt
to bolster their argument. See Griffin v. Paine Webber Inc., 84
F. Supp. 2d 508, 514 (S.D.N.Y. 2000); In re Lucent Techs.
Inc. Sec. Litig., 194 F.R.D. 137, 146 (D.N.J. 2000); Ravens v.
Iftikar, 174 F.R.D. 651, 659 (N.D. Cal. 1997). These cases
describe the purposes and procedures of obtaining lead plain-
tiff status pursuant to the PSLRA; however, none of these
cases stand for the proposition that simply making this motion
dispenses with the necessity of formally intervening.2
[4] In the alternative, Appellants cite Devlin v. Scardelletti
to argue that a non-named class member who fails to properly
intervene may nevertheless bring an appeal after a settlement
2
Appellants do not argue or explain why they believe these cases stand
for their position, instead choosing to rely on a single statement in Ravens
to support their argument: “the central purpose [of the lead-plaintiff notice
requirement] is to enable the member of the putative class with the ‘largest
financial interest in the relief sought by the class’ to make a rational deci-
sion whether to intervene.” See Ravens, 174 F.R.D. at 659. To be sure, the
notice requirement of the PSLRA is designed to ensure that the most ade-
quate plaintiff emerges to the position of representing the class. For this
goal to be achieved, it is necessary that all interested parties are informed
of their host of options, which include making a motion for lead plaintiff
status, opting out, and making a motion for intervention, among other
things. We do not think the language to which Appellants point, standing
alone, is enough to equate a motion for lead-plaintiff status under the
PSLRA with a formal motion for intervention. Indeed, in Ravens the court
went on to say that, “[u]nder Congress’ regime, qualified investors must
decide whether to intervene or compete for lead plaintiff appointment and
to negotiate attorney arrangements so that the class representative that
emerges is the ‘most capable of adequately representing the interests of
the class.’ ” Id. at 676 (emphasis added).
EMPLOYERS-TEAMSTERS v. WATSON PHARMACEUTICALS 9981
agreement has been entered. See Devlin v. Scardelletti, 536
U.S. 1, 6 (2002). This case is easily distinguishable. In Devlin
the class had been certified, and therefore the non-named
plaintiffs had standing to appeal, much like in Z-Seven. In this
case, on the other hand, the appellants were not members of
a certified class and therefore lack standing to appeal any
judgment in the case below.
b. Mootness
[5] Appellee’s voluntary dismissal of their claims before
the putative class was certified renders the appeal of the
interim lead plaintiff order moot. “[A] suit brought as a class
action must as a general rule be dismissed for mootness when
the personal claims of all named plaintiffs are satisfied and no
class has been properly certified.” See Zeidman v. J. Ray
McDermott & Co., Inc., 651 F.2d 1030, 1045 (5th Cir. 1981).
In these situations there is no longer a ‘case or controversy’
to be decided within the meaning of Article III of the Consti-
tution.
c. The Filing of an Additional Claim Would Not Have
Been Impermissible “Piggybacking”
[6] In American Pipe, the Court held that the commence-
ment of an original class suit tolls the running of the statute
of limitations for all purported members of the class until
class certification is denied. See American Pipe & Constr. Co.
v. Utah, 414 U.S. 538, 553 (1974). At that point, “class mem-
bers may choose to file their own action or to intervene as
plaintiffs in the pending action.” Crown, Cork & Seal Co.,
Inc. v. Parker, 462 U.S. 345, 354 (1983). In this case, when
the litigation clock again began to run the Appellants were
afforded a one-day opportunity to file their own complaint.
This time constraint was, of course, due to the original action
having been filed only one day before the statute of limita-
tions expired. This fact was known to the parties and their
supposedly sophisticated counsel, and they should have made
9982 EMPLOYERS-TEAMSTERS v. WATSON PHARMACEUTICALS
arrangements to be able to file their own action in a limited
time period if necessity required.
[7] There is case law suggesting that Appellants would
have been precluded from filing another class action. See
Robbin v. Fluor Corp., 835 F.2d 213, 213 (9th Cir. 1987). It
is also possible, however, that this rule only applies when the
appropriateness of the class action has been previously
rejected. See Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.
1987) (“the tolling doctrine enunciated in American Pipe does
not apply to permit a plaintiff to file a subsequent class action
following a definitive determination of the inappropriateness
of class certification.”)(emphasis added). Here the appropri-
ateness of a class action was never examined; instead the case
was voluntarily dismissed before the class was certified.
Regardless of whether Appellants would have been permitted
to file another class action, however, one thing remains clear:
the “piggybacking” prohibition would have in no way pre-
cluded them from filing their own individual action.
The argument that there was no time to file a new com-
plaint is also without merit. Appellants had ample opportunity
to file a motion for intervention throughout the pendency of
the original class action. Had they successfully intervened,
Appellants would have been parties and would have had
standing to appeal the lead-plaintiff order. Furthermore,
Appellants had a one-day window to file their own complaint
after the action was dismissed. While Appellants were admit-
tedly confined to a limited time frame, they are a sophisti-
cated party who was on notice of the situation and should
have been prepared to file a complaint when and if the action
was dismissed.
It is also worth noting that there is no evidence to suggest
that Appellants would have filed their own complaint initially.
While the PSLRA may have been drafted to avoid “hurried,
ill-researched complaints,” see Plaintiffs-Appellants’
Response to Order to Show Cause at 9, this statute certainly
EMPLOYERS-TEAMSTERS v. WATSON PHARMACEUTICALS 9983
was not intended to allow parties to benefit from tolling when
they would not have filed a complaint in the first place. This
statute was also certainly not intended to excuse sophisticated
parties from being diligent and keeping abreast of develop-
ments in the case, especially when the class is not certified.
III. Conclusion
Appellants lack standing to bring this appeal. The appeal is
DISMISSED.