DocketNumber: Case No. 18–cv–00838–JST; Case No. 3:18–cv–00850–JST
Citation Numbers: 317 F. Supp. 3d 1056
Judges: Tigar
Filed Date: 5/25/2018
Status: Precedential
Modified Date: 7/25/2022
In these securities class actions, the Court now considers motions for consolidation and for appointment as lead plaintiff and approval of selected counsel for a securities class action. The New York Hotel Trades Council & Hotel Association of New York City, Inc. Pension Fund ("NYHTC") filed one motion. ECF No. 12. The Oklahoma Police Pension and Retirement System ("Oklahoma Pension") filed the second. ECF No. 29. The Court will grant NYHTC's motion and appoint the pension fund as lead plaintiff, and their selected counsel. The Court will also consolidate the two related cases: Hessefort v. Super Micro Computer, Inc. No 3:18-cv-838 and United Union of Roofers, Waterproofers & Allied Workers Local Union No. 8 WBPA Fund v. Super Micro Computer, Inc. No. 3:18-cv-850.
I. BACKGROUND
This is a federal securities class action on behalf of persons who purchased or *1059otherwise acquired shares of Defendant Super Micro Computer Inc.'s securities between August 5, 2016 and January 30, 2018. ECF No. 12 at 2.
Originally, four parties filed motions seeking appointment as lead plaintiff and approval of their selection of counsel. ECF Nos. 12, 17, 25, 29. Two of the parties subsequently withdrew or chose not to oppose, leaving NYHTC and the Oklahoma Pension as the remaining competing plaintiffs. ECF Nos. 33, 34.
II. LEGAL STANDARD
The Private Securities Litigation Reform Act of 1995 ("PSLRA") provides that "[n]ot later than 20 days after the date on which the complaint is filed," the plaintiff shall publish a notice alerting members of the purported class of the pendency of the action, the claims asserted, and the purported class period. 15 U.S.C. § 78u-4(3)(a)(i). The notice should also inform potential class members that "not later than 60 days after the date on which the notice is published, any member of the purported class may move the court to serve as lead plaintiff of the purported class." Id. § 78u-4(3)(a)(i)(II).
Under the PSLRA, "[t]he 'most capable' plaintiff-and hence the lead plaintiff-is the one who has the greatest financial stake in the outcome of the case, so long as [the proposed lead plaintiff] meets the requirements of Rule 23" of the Federal Rules of Civil Procedure. In re Cavanaugh ,
After the Court determines who the presumptive lead plaintiff is, other plaintiffs in the class are provided with "an opportunity to rebut the presumptive lead plaintiff's showing that it satisfies Rule 23's typicality and adequacy requirements." Cavanaugh ,
"The most adequate plaintiff shall, subject to the approval of the court, select and retain counsel to represent the class." 15 U.S.C. § 78u-4(a)(3)(B)(v). "[I]f the lead plaintiff has made a reasonable choice of counsel, the district court should generally defer to that choice," and "should not reject a lead plaintiff's proposed counsel merely because it would have chosen differently." Cohen v. U.S. Dist. Court for N. Dist. of California ,
III. DISCUSSION
A. Consolidation
Under the PSLRA, the Court must decide whether to consolidate related actions *1060prior to selecting a plaintiff. 15 U.S.C. § 78u-4(a)(3)(B)(ii).
NYHTC argues the Court should consolidate the cases under Federal Rule of Civil Procedure Rule 42(a) because both involve "virtually identical factual and legal issues." ECF No. 12 at 5. The Oklahoma Pension argues the case should be consolidated for similar reasons. ECF No. 29-1 at 18. No party opposes the motions to consolidate. ECF No. 37 at 7 n.1.
Rule 42(a) provides that a court may consolidate cases which "involve a common question of law or fact." Fed. R. Civ. P. 42(a). "In determining whether or not to consolidate cases, the Court should 'weigh the interest of judicial convenience against the potential for delay, confusion and prejudice.' " Zhu v. UCBH Holdings, Inc. ,
These related cases address nearly identical factual issues and legal claims. Given this factual and legal overlap, judicial convenience and a just resolution of the parties' claims would be best served through consolidation. The Court grants the motions for consolidation.
B. Largest Financial Interest
NYHTC argues it is the most adequate plaintiff because it sustained $180,622 in losses. ECF No. 12 at 7. The Oklahoma Pension sustained $172,826 in losses. ECF No. 29-1 at 8. The Oklahoma Pension argues that the difference in losses is de minimis and therefore should not control the selection of lead plaintiff. ECF No. 36 at 3, 7-8. Neither has the Court found persuasive authority, nor have the parties provided any to the Court, suggesting that the Court should not determine that a plaintiff has largest financial share when its lead is small. To the contrary, courts in this circuit have concluded that any financial difference is meaningful in determining a lead plaintiff. See, e.g. , Hall v. Medicis Pharm. Corp. , No. CV08-1821PHX-GMS,
C. Rule 23
Once a movant has demonstrated that it has the largest financial interest, it need only make a prima facie showing of *1061its typicality and adequacy. See Cavanaugh ,
NYHTC argues that it is a typical plaintiff because it purchased Super Micro securities and suffered harm when defendants' alleged misconduct was revealed, and it "is not aware of any conflicts between its claims and those asserted on behalf of the putative class and is not subject to any unique defenses." ECF No. 12 at 8. As for adequacy, NYHTC argues that it is a sophisticated institutional investor with a substantial interest in the litigation. Id. at 7-8.
According to the Oklahoma Pension, a post-disclosure stock purchase by NYHTC raises "potential concerns" regarding NYHTC's "ability to adequately represent the proposed class." ECF No. 36 at 4. Super Micro announced on August 29, 2017 that it would not timely file its Form 10-K, and NYHTC purchased 1,581 shares the next day, incurring $11,000 in losses. Id. at 3. According to the Oklahoma Pension, this post-disclosure purchase subjects NYHTC to unique defenses. Id.
The weight of authority is substantially against Oklahoma Pension's argument and "favor[s] the position that the purchase of stock after a partial disclosure is not a per-se bar to satisfying the typicality requirement." In re Connetics Corp. Sec. Litig. ,
Moreover, even as compared to the few cases which have concluded that post-disclosure purchases defeated typicality, NYHTC purchased a much smaller percentage-less than 5% of its total shares-after the disclosure than did other plaintiffs *1062who were disqualified. See In re Valence Tech. Sec. Litig. , No. C 95-20459 JW,
D. Selection of Counsel
"Once a lead plaintiff is chosen, that plaintiff may select its counsel, subject to approval of the court." Suntech Power Holdings Co. ,
CONCLUSION
The Court grants the motions to consolidate the cases. The Court also grants NYHTC's motion for appointment as lead counsel and approval of selection of counsel. The Court denies the Oklahoma Pension's motion for appointment as lead plaintiff and approval of selection of counsel.
IT IS SO ORDERED.
The court related the two cases on May 8, 2018.
There is currently a difference between the class periods in the two related cases, which will be resolved upon the filing of a consolidated complaint. ECF No. 12 at 2 n.1.
Similarly, the case on which the Oklahoma Pension heavily relies, Erickson v. Snap, Inc. , 2:17-cv-3679-SVW-AGR (C.D. Cal. Sept. 18, 2017), ECF No. 54 at 4, involved a 60% purchase after a disclosure.