Houghton v. Leshner ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AMANDA HOUGHTON, et al., Case No. 22-cv-07781-WHO 8 Plaintiffs, ORDER APPOINTING LEAD 9 v. PLAINTIFF AND LEAD COUNSEL 10 ROBERT LESHNER, et al., Re: Dkt. No. 47 Defendants. 11 12 Plaintiffs Amanda Houghton, Charles Douglas, and Susan Franklin (“Plaintiffs”) move 13 under 15 U.S.C. § 77z-1(a)(3),1 seeking appointment as Lead Plaintiff and approval of their 14 selection of Gerstein Harrow LLP and Fairmark Partners LLP as Lead Counsel for a class of 15 people who purchased COMP, a cryptocurrency asset.2 See Complaint, (Dkt. No. 1) ¶¶ 4, 188. 16 This matter is appropriate for resolution on the papers and the hearing on March 15, 2023 is 17 hereby VACATED. See Civ. L.R. 7-1(b). 18 Plaintiffs have satisfied the PSLRA notice requirement3and are the only plaintiff or 19 plaintiff group who has moved for appointment. Under the PSLRA, there is rebuttable 20 presumption that Plaintiffs are the “most adequate” given that they filed the Complaint, made a 21 motion for appointment, and appear to satisfy Fed. R. Civ. Proc. 23 requirements.4 22 1 Private Securities Litigation Reform Act or “PSLRA.” 23 2 The plaintiffs seek appointment under the PSLRA to represent the following class: “all people 24 who purchased or obtained COMP on or after December 8, 2021, while excluding from the class Defendants; corporate officers, members of the boards of directors, and senior executives of 25 Defendants; members of their immediate families and their legal representatives, heirs, successors or assigns; and any entity in which Defendants have or had a controlling interest.” Compl., ¶ 188. 26 3 See Declaration of Jason Harrow (Dkt. No. 47-1) ¶ 4. 27 1 No other plaintiff or plaintiff group has come forward to be appointed. However, the 2 defendants who have appeared in this action oppose the appointment of these Plaintiffs.5 These 3 “Partner Defendants” argue, assuming without admitting and reserving their rights to challenge 4 whether the PSLRA governs COMP or this case,6 that Plaintiffs are inadequate under the PSLRA 5 because their financial interest in COMP is negligible. The Partner Defendants allege that the 6 Plaintiffs combined spend to purchase COMP tokens was only $80. Oppo. at 2. 7 The Partner Defendants rely on a few cases where district courts have rejected proposed 8 PSLRA Lead Plaintiffs, given the proposed Leal Plaintiff’s minimal investment. See, e.g., 9 McCormack v. Dingdong (Cayman) Ltd., 2022 WL 17336586, at *5 (S.D.N.Y., 2022) (denying 10 unopposed appointment of a plaintiff who had suffered only $500 in losses, where plaintiff 11 submitted only “a pro forma certification that includes no details about his background, years of 12 investing experience, or other indicia of sophistication,” where plaintiff’s particular losses might 13 not be recoverable, and where the PSLRA notice was deficient); Guo v. Tyson Foods, Inc., 2022 14 WL 5041798, at *5 (E.D.N.Y. Sept. 30, 2022) (denying motion for appointment of lead counsel 15 where two movants together alleged a “nominal” “combined total loss of $323.20”); Bosch v. 16 Credit Suisse Grp. AG, Inc., 2022 WL 4285377, at *6 (E.D.N.Y. Sept. 12, 2022) (a plaintiff did 17 18 (I) In general Subject to subclause (II), for purposes of clause (i), the court shall adopt a presumption that the most adequate plaintiff in any private action arising under this subchapter is 19 the person or group of persons that-- (aa) has either filed the complaint or made a motion in response to a notice under 20 subparagraph (A)(i); (bb) in the determination of the court, has the largest financial interest in the relief sought 21 by the class; and (cc) otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil 22 Procedure. (II) Rebuttal evidence 23 The presumption described in subclause (I) may be rebutted only upon proof by a member of the purported plaintiff class that the presumptively most adequate plaintiff-- 24 (aa) will not fairly and adequately protect the interests of the class; or (bb) is subject to unique defenses that render such plaintiff incapable of adequately 25 representing the class. 26 5 Defendants who have appeared are alleged to be “Partner Defendants” who control more than 50% of the COMP tokens. Defendant Compound DAO (a general partnership) has not appeared 27 in this action. Comp. ¶ 2. 1 not “preliminarily satisfy the adequacy requirement of Rule 23(a)” where the plaintiff claimed 2 only $621 in losses and therefore “lack[ed] a sufficient financial interest in the outcome of the case 3 to incentivize him to monitor counsel’s performance and control the litigation on behalf of the 4 putative class.”). The Partner Defendants contend appointment of Plaintiff with their minimal 5 fiscal interest is contrary to the purposes of the PSLRA and makes these Plaintiffs atypical and 6 inadequate as better suited larger, institutional investors would better represent the class. 7 Plaintiffs point, instead another recent decision. Nayani v. LifeStance Health Group, Inc., 8 2022 WL 16985717, at *3 (S.D.N.Y., 2022). There, the Hon. Jed Rakoff appointed a Lead 9 Plaintiff who pleaded only $385 in damages (over a plaintiff who suffered 608 in damages but was 10 subject to a unique defense). He rejected the defendants’ argument that plaintiffs with small or 11 modest alleged loses should not be appointed Lead Plaintiffs under the PSLRA, as that argument 12 “is at odds with both the text and the purpose of PSLRA, not to mention one of the main purposes 13 of aggregate litigation itself. Even if all moving plaintiffs have only a small financial interest at 14 stake, one of the movants might nonetheless satisfy Rule 23’s adequacy requirement if he 15 demonstrates his willingness and ability to represent the interests of the class.” Id at *5. The 16 court was satisfied that the plaintiff with an alleged loss of $385 was otherwise adequate under 17 Rule 23 because he selected a “well-known player in securities class actions,” had demonstrated a 18 willingness and ability to supervise counsel on behalf of the class, and had experienced 19 negotiating with and managing attorneys. Id.; see also Fagen v. Enviva Inc., 2023 WL 1415628, 20 at *3 (D.Md., 2023) (appointing movant with “relatively modest” $781 in losses where plaintiff 21 attested to “his investing experience, his motivation to recover losses experienced by himself and 22 the class, his understanding of the responsibilities of a lead plaintiff, his commitment to working 23 with counsel and attending matters related to the prosecution of this litigation on behalf of the 24 class”). 25 Here I find that the Plaintiffs are not disqualified by the small size of their alleged losses. 26 Indeed, Plaintiffs explain why – given the design of the DAO and the alleged majority ownership 27 of the Partner Defendants and decentralized distribution, Compl. ¶¶ 76, 176 – institutional or other 1 the Plaintiffs nominally satisfy Rule 23’s typicality and adequacy requirements. While the 2 declarations from Plaintiffs are identical and pro forma, no other argument and no evidence has 3 || been raised by the Partner Defendants or anyone else regarding these Plaintiffs’ adequacy. 4 On this record and at this juncture, I find Amanda Houghton, Charles Douglas, and Susan 5 || Franklin (“Plaintiffs”) are facially adequate for appointment as Lead Plaintiff. I also approve of 6 || Plaintiffs selection of Gerstein Harrow LLP and Fairmark Partners LLP as Lead Counsel. 7 || Plaintiffs’ counsel have outlined their experience in cryptocurrency and complex class action 8 litigation. See generally Harrow Decl., 47-1. The Partner Defendants have not raised any reason 9 why that counsel might not competently represent Lead Plaintiff and the class and I see none. 10 A Case Management Conference is set for April 11, 2023, at 2:00 p.m. The Joint Case 11 Management Conference Statement shall be filed by April 4, 2023. It shall include, among other 12 || things, a proposed trial calendar. 13 IT IS SO ORDERED. || Dated: March 13, 2023 16 . 5 liam H. Orrick | nited States District Judge 18 19 20 21 22 23 24 25 26 27 28