Brady v. Top Ships Inc.

324 F. Supp. 3d 335
CourtDistrict Court, E.D. New York
DecidedJuly 20, 2018
DocketNo. 17-CV-4987 (JFB) (SIL)
StatusPublished
Cited by17 cases

This text of 324 F. Supp. 3d 335 (Brady v. Top Ships Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brady v. Top Ships Inc., 324 F. Supp. 3d 335 (E.D.N.Y. 2018).

Opinion

*338Plaintiff Brady is represented by David Avi Rosenfeld and Samuel H. Rudman of Robbins Geller Rudman & Dowd, LLP, 58 South Service Road, Suite 200, Melville, New York 11747.

Plaintiff Narine is represented by J. Alexander Hood, Joseph Alexander Hood II, and Jeremy A. Lieberman of Pomerantz LLP, 600 Third Avenue, 20th Floor, New York, New York 10016; Patrick V. Dahlstrom of Pomerantz LLP, 10 South La Salle Street, Suite 3505, Chicago, Illinois; and Peretz Bronstein of Bronstein, Gewirtz & Grossman, LLC, 60 East 42nd Street, Suite 4600, New York, New York 10165.

The Top Ships Investor Group is represented by Jeremy A. Lieberman and J. Alexander Hood II of Pomerantz LLP (address above).

Nardiello and Wang are represented by David Avi Rosenfeld of Robbins Geller Rudman & Dowd, LLP (address above).

Defendant Top Ships and the Top Ships Officer Defendants and are represented by Jenny R. A. Pelaez, Jeremy Adler, and Michael G. Bongiorno of Wilmer Cutler Pickering Hale and Dorr LLP, 7 World Trade Center, 250 Greenwich Street, New York, New York 10007; and Peter Kolovos of Wilmer Cutler Pickering Hale and Dorr LLP, 60 State Street, Boston, Massachusetts 02109.

Defendants Murchinson Ltd. and Bistricer are represented by Noah Nehemiah Gillespie and Peter H. White of Schulte Roth & Zabel LLP, 1152 15th Street Northwest, Suite 850, Washington, D.C. 20005.1

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, United States District Judge *339Presently before the Court are two competing motions, pursuant to Section 21D of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. § 78u-4(a)(3)(B), as amended by the Private Securities Litigation Reform Act of 1995 (the "PSLRA"), requesting that the Court (1) consolidate two related securities class actions,2 (2) appoint the movant as lead plaintiff, and (3) approve the movant's selection of lead counsel. The pending motions were filed in the instant action, which was the first of the related actions filed-one by Moshe Onel, Amardeep Sidhu, and Joel Sofer (collectively, the "Top Ships Investor Group") (ECF Nos. 42-44),3 and the other by Mickey Nardiello and Zhenzhe Wang (collectively, "Nardiello and Wang") (ECF Nos. 45-47).

The Top Ships Investor Group and Nardiello and Wang filed their motions on behalf of a putative class of purchasers of TOP Ships Inc. ("Top Ships" or "the Company") securities4 during the period of defendants' alleged Exchange Act violations, spanning from January 17, 2017 to August 22, 2017 (the "Class Period").5 Defendants include Top Ships, as well as Top Ships's Chief Executive Officer, President, and director, Evangelos J. Pistiolis, and Top Ships's Chief Financial Officer and director, Alexandros Tsirikos (together with Pistiolis, the "Top Ships Officer Defendants"), and Top Ships's underwriter, Kalani Investments Limited ("Kalani"), a hedge fund behind Kalani, Murchinson Ltd. ("Murchinson"), and the head of Murchinson, Marc Bistricer (together with Kalani and Murchinson, the "Kalani Defendants"). (Brady Compl. ¶¶ 5-12; see also Narine Compl. ¶¶ 13-20.)

First, because the Court finds that the two putative class actions present common questions of law and fact, and that consolidation would serve the interests of judicial economy, the Court grants the motions to consolidate. Second, based on its determination *340that (1) the Top Ships Investor Group has the largest financial interest, (2) this group has made the requisite preliminary, prima facie showing that it otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure, and (3) the presumption under the PSLRA that the Top Ships Investor Group is "the most adequate plaintiff" to represent the class has not been rebutted, the Court appoints the Top Ships Investor Group as lead plaintiff. Finally, the Court approves the Top Ships Investor Group's selection of Pomerantz LLP ("Pomerantz") as lead counsel. See 15 U.S.C. § 78u-4(a)(3)(B)(v).

I. BACKGROUND

A. The Securities Class Actions

Plaintiff Christopher Brady filed his complaint in this action on August 23, 2017, and plaintiff Karon Narine filed his complaint in Narine on August 24, 2017. As discussed supra , the complaints name the same defendants, which include Top Ships, the Top Ships Officer Defendants, and the Kalani Defendants. According to the complaints, Top Ships is an "international provider of oil, petroleum products and chemicals transportation services." (Brady Compl. ¶ 5; Narine Compl. ¶ 2.)

Plaintiffs allege in both cases that, through acts taken in furtherance of the alleged schemes, defendants intended to, and succeeded in, deceiving the investing public and artificially manipulating the price of Top Ships common stock. (Brady Compl. ¶ 79; Narine Compl. ¶ 86.) Plaintiffs claim that defendants violated the Exchange Act and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5, in that they:

(a) employed devices, schemes, and artifices to defraud; (b) made untrue statements of material fact and/or omitted to state material facts necessary to make the statements not misleading; and (c) engaged in acts, practices, and a course of conduct which operated as a fraud and deceit upon the purchasers of Top Ships common stock....

(Brady Compl. ¶ 80; Narine Compl. ¶ 86.) Plaintiffs allege that the price of Top Ships common stock had dropped to only $1.31 per share by August 17, 2017, compared with a price of over $20,000 per share early in the Class Period. (Brady Compl. ¶¶ 65-66; Narine Compl. ¶¶ 71-72.) Plaintiffs explain that, at the August 17 share price, the Company "only had a market capitalization of about $2.5 million ... despite having raised tens of millions of dollars from investors since February 2017." (Brady Compl. ¶ 65; Narine Compl. ¶ 71.) Plaintiffs allege that "[t]his shocking erosion in shareholder value was the direct result of defendants' fraudulent scheme to manipulate the price of Top Ships common stock and induce purchases through the series of dilutive and manipulative stock offerings and reverse stock splits." (Brady Compl. ¶ 65; Narine Compl. ¶ 71.)

The complaints are nearly identical, describing the same alleged fraudulent schemes, acts, and events that occurred during the same class periods and allegedly resulted in the same stock price declines and damages to investors. Both complaints include the following claims: (1) violation of § 10(b) of the Exchange Act and Rule 10b-5 against all defendants (Brady Compl. ¶¶ 78-85; Narine Compl.

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324 F. Supp. 3d 335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brady-v-top-ships-inc-nyed-2018.