City of Livonia Employees' Retirement System v. Wyeth

284 F.R.D. 173, 83 Fed. R. Serv. 3d 820, 2012 U.S. Dist. LEXIS 134854, 2012 WL 4086474
CourtDistrict Court, S.D. New York
DecidedSeptember 18, 2012
DocketNo. 07 Civ. 10329(RJS)
StatusPublished
Cited by21 cases

This text of 284 F.R.D. 173 (City of Livonia Employees' Retirement System v. Wyeth) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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City of Livonia Employees' Retirement System v. Wyeth, 284 F.R.D. 173, 83 Fed. R. Serv. 3d 820, 2012 U.S. Dist. LEXIS 134854, 2012 WL 4086474 (S.D.N.Y. 2012).

Opinion

MEMORANDUM AND ORDER

RICHARD J. SULLIVAN, District Judge:

Lead Plaintiff Pipefitters Union Local 537 Pension Fund (“Pipefitters”) and named Plaintiff City of Livonia Employees’ Retirement System (collectively, “Plaintiffs”) bring this putative class action against Defendants Wyeth, Robert Essner, Joseph Mahady, Kenneth Martin, Bernard Poussot, Robert Ruffalo, Jr., and Ginger Constantine (“Defendants”), pursuant to § 10(b) of the Securities and Exchange Act of 1934,15 U.S.C. § 78j(b) (the “Exchange Act”); Rule 10b-5,17 C.F.R. § 240.10b-5, promulgated thereunder; and § 20(a) of the Exchange Act, 15 U.S.C. § 78t(a). Specifically, Plaintiffs allege that Wyeth defrauded class members by making materially false misstatements and omissions relating to the safety of a drug called Pristiq. Plaintiffs bring this action on behalf of investors who purchased Wyeth’s common stock during the period from June 26, 2006 through July 24, 2007 (the “Class Period”).

Before the Court is Plaintiffs’ motion for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion is granted.

I. Background

The Court presumes the parties’ familiarity with the specific facts of this case, as set forth in the Court’s September 29, 2010 Memorandum and Order denying Defendants’ motion to dismiss. City of Livonia Emps.’ Ret. Sys. v. Wyeth, No. 07 Civ. 10329(RJS), 2010 WL 3910265 (S.D.N.Y. Sept. 29, 2010). As a general matter, this action arises out of Plaintiffs’ claim that “Wyeth investors were damaged when they purchased or acquired Wyeth securities during the Class Period at prices that were artificially inflated by Defendants’ material misrepresentations and omissions concerning the Company’s leading drug candidate, Pris-tiq, for the treatment of pre-menopausal vasomotor symptoms (“VMS”).” (PI. Mem. 1.) Specifically, Plaintiffs assert that “during the Class Period, Defendants failed to disclose material adverse information about serious cardiovascular and hepatic adverse effects associated with the use of Pristiq.” (Id. at 1-2.) According to Plaintiffs, on July 24, 2007, “after the FDA refused to approve Pristiq for VMS, ... Defendants revealed ‘the potential for serious adverse cardiovascular and hepatic effects associated with the use of Pristiq.’ ” (Id. at 2 (quoting Compl. ¶ 107).) Following that announcement, Wyeth’s stock fell $5.70 per share. (Id. (citing Compl. ¶¶ 47,112,133).)

Plaintiffs filed the present motion on October 21, 2011. The motion was fully briefed as of March 13, 2012 and oral argument on the motion took place on May 10,2012.

II. Class Certification Standard

To be certified, a class must satisfy the four prerequisites of Rule 23(a): numerosity, commonality, typicality, and adequacy. Fed.R.Civ.P. 23(a); In re Salomon Analyst Metromedia Litig., 544 F.3d 474, 478 (2d Cir.2008). In addition, the class must also satisfy two additional requirements of Rule 23(b)(3), by demonstrating that “the questions of law or fact common to class members predominate over any questions affecting only individual members (‘predominance’), and that a class action is superior to other [177]*177available methods for fairly and efficiently adjudicating the controversy (‘superiority’).” Berks Cnty. Emps. ’ Ret. Fund v. First Am. Corp., 734 F.Supp.2d 533, 536 (S.D.N.Y.2010) (quoting In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 18 (1st Cir.2008)) (internal quotation marks omitted). A plaintiff moving for class certification must establish each of the Rule 23 requirements by a preponderance of the evidence. In re SLM Corp. Sec. Litig., 08 Civ. 1029(WHP), 2012 WL 209095, at *3 (S.D.N.Y. Jan. 24, 2012).

“Rule 23 is not a ‘mere pleading standard’; rather, ‘a party seeking class certification must affirmatively demonstrate his compliance with the Rule.’ ” In re Pfizer Inc. Sec. Litig., 282 F.R.D. 38, 43 (S.D.N.Y.2012) (quoting Wal-Mart Stores, Inc. v. Dukes, — U.S.-, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011)). Accordingly, a district court should “assess all of the relevant evidence admitted at the class certification stage.” Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir.2008) (internal quotation mark omitted). “Frequently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiffs underlying claim.” Wal-Mart, 131 S.Ct. at 2551. However, a motion for class certification following a denial of a motion to dismiss “is emphatically not an opportunity for a second round of review, at a higher standard, no less, of the substantive merits of plaintiffs’ underlying claims.” DeMarco v. Robertson Stephens Inc., 228 F.R.D. 468, 476 (S.D.N.Y.2005); accord Bombardier, 546 F.3d at 204 (noting that courts must “assure that a class certification motion does not become a pretext for a partial trial of the merits” (internal quotation mark omitted)). Thus, “[t]he only question” at the class certification stage “is whether [plaintiffs] may pursue those claims on behalf of a class of similarly situated persons, or whether they must do so as individuals.” In re Bank of Am. Corp. Sec., Derivative, & ERISA Litig., 281 F.R.D. 134, 141 (S.D.N.Y. 2012) (alteration in original) (quoting DeMarco, 228 F.R.D. at 476).

III. Discussion

Defendants do not dispute that Plaintiffs have met the Rule 23(a) numerosity, commonality, and superiority requirements. Rather, Defendants’ opposition to class certification turns on the assertions that: (1) Pi-pefitters lacks standing to pursue claims on behalf of the proposed class of plaintiffs; (2) Pipefitters is not a typical or adequate lead plaintiff under Rule 23(a); and (3) Plaintiffs have failed to demonstrate that common issues predominate under Rule 23(b)(3). The Court will address these arguments in turn.

A. Standing

“In a class action, ‘[t]he initial inquiry is whether the lead plaintiff individually has standing.’” Indergit v. Rite Aid Corp., 08 Civ. 9361(PGG), 2009 WL 1269250, at *3 (S.D.N.Y. May 4, 2009) (quoting Winer Family Trust v. Queen, 503 F.3d 319, 325-26 (3d Cir.2007)). Courts in this district have held that, to have standing, a class representative must have purchased the same securities as the class members it purports to represent. See In re Parmalat Sec. Litig., No. 04 MD 1653(LAK), 2008 WL 3895539, at *3 (S.D.N.Y. Aug.

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284 F.R.D. 173, 83 Fed. R. Serv. 3d 820, 2012 U.S. Dist. LEXIS 134854, 2012 WL 4086474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-livonia-employees-retirement-system-v-wyeth-nysd-2012.