Frias v. Dendreon Corp.

835 F. Supp. 2d 1067, 2011 WL 6330179, 2011 U.S. Dist. LEXIS 145762
CourtDistrict Court, W.D. Washington
DecidedDecember 19, 2011
DocketCase Nos. C11-1291JLR, C11-1294JLR, C11-1568JLR
StatusPublished
Cited by4 cases

This text of 835 F. Supp. 2d 1067 (Frias v. Dendreon Corp.) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frias v. Dendreon Corp., 835 F. Supp. 2d 1067, 2011 WL 6330179, 2011 U.S. Dist. LEXIS 145762 (W.D. Wash. 2011).

Opinion

ORDER ON MOTIONS FOR CONSOLIDATION, APPOINTMENT OF LEAD PLAINTIFF, AND APPROVAL OF LEAD COUNSEL

JAMES L. ROBART, District Judge.

I. INTRODUCTION

Before the court are two motions for appointment of lead plaintiff and approval of lead counsel in the above captioned matters: (1) the motion of San Mateo County Employees Retirement Association (“SamCERA”) (Dkt. # 13), and (2) the motion of Dendreon Investor Group (“the Frankel Investor Group”) (Dkt. # 18). Several other putative lead plaintiffs also moved for appointment, however, the court denied those motions during the December 14, 2011 hearing because none of the other putative lead plaintiffs were able to demonstrate that they had a financial interest in the relief sought by the putative class that was greater than either SamCERA or the Frankel Investor Group. (See Dec. 14, 2011 Min. Entry (Dkt. # 49).) Having reviewed the motions of the parties and all papers filed in support and opposition thereto, having heard the oral argument of counsel on December 14, 2011, and being fully advised, the court GRANTS SamCERA’s motion for appointment as lead counsel and approval of lead counsel (Dkt. # 13), and DENIES the Frankel Investor Group’s motion (Dkt. # 18).

II. PRELIMINARY MATTERS

At the December 14, 2011 hearing, the court also granted the pending motions for consolidation of the above captioned matters. {See Dec. 14, 2011 Min. Entry.) From now on, every pleading in these consolidated matters shall bear the following caption:

' UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
In re: DENDREON CORPORATION MASTER DOCKET NO. C 11-1291 JLR CLASS ACTION LITIGATION (consolidated with Nos. C 11-1294JLR and C _ 11-1568JLR)
This Document Relates To:

[1070]*1070When a pleading or other court paper filed in the consolidated action is intended to apply to all actions, the words “All Actions” shall appear immediately after the words “This Document Relates To:” in the above caption. When a pleading or other paper is intended to apply to only one or some, but not all of the consolidated actions, the party filing the document shall indicate the action(s) to which the document applies by last name of the named plaintiff(s) and the docket number(s). The files of these consolidated actions shall be maintained in one file under the Master Docket No. C 11-1291 JLR. All counsel who have been granted pro hac vice admission in any one of these consolidated actions shall be deemed to be admitted pro hac vice, without further filings, in Master Docket No. C 11-1291 JLR.

III. FACTUAL AND PROCEDURAL BACKGROUND

As discussed above, there are three putative shareholder class action cases (Nos. C 11-1291 JLR, C 11-1294JLR, and C 11-1568JLR) concerning the Dendreon Corporation, which are presently pending in the Western District of Washington, and which have previously been consolidated by the court. Dendreon is a biotechnology company that engages in the discovery, development, and commercialization of therapeutics to enhance cancer treatment or therapy. One of Dendreon’s products is Provenge, which is a cancer treatment. The three cases involve allegations that Dendreon’s board of directors and/or Dendreon touted (in public filings, press releases, and/or communications with analysts) Dendreon’s sales and business prospects with respect to Provenge without a reasonable basis to do so.

Pending before the court were several motions which all put forward competing entities for lead plaintiff and lead counsel. Because all but two of the entities have either filed no response to the motions of other putative lead plaintiffs or have admitted that they do not have losses which exceed either the Frankel Investor Group or SamCERA (see Dkt. ## 31, 32), the Frankel Investor Group and SamCERA are the only entities which are presently in the running for lead plaintiff. (See SamCERA Mot. (Dkt. # 13); Frankel Mot. (Dkt. # 18).) Although there are disputes concerning how the two groups have calculated their financial interest in the litigation,1 SamCERA is claiming losses of between $1,895,393.73 2-$l,963,933.07,3 and the Frankel Investor Group is claiming losses, collectively, of between $2,582,766.13-$2,763,952.57 (depending on how the class period is calculated).4

[1071]*1071The Frankel Investor Group consists of seven individuals (three individuals and two married couples) who were introduced to one another through their counsel “at their request.” (Supp. Berman Decl. (Dkt. # 36) Ex. A (Joint Decl. of Investor Group) ¶ 2.) Except for the spouses in the two married couples, there is no indication of the existence of any pre-litigation relationship between any of the members of the Frankel Investor Group, and counsel for the Frankel Investor Group admitted this at oral argument. The members of the Frankel Investor Group, nonetheless, describes themselves as a “small, cohesive group” who “intend to work closely and cooperatively ... to oversee the litigation.” (Id. ¶ 3.) Interestingly, they have agreed that where unanimity of decision-making is not possible, they “will allow majority rule to prevail, with three out of five votes being the majority.” (Id. ¶4.) Susan Frankel and Cynthia Estelle both agree to “have one combined vote with [their] spouse in the decision-making structure of the group.” (Id. ¶¶ 7, 10.) This raises a question regarding what happens if these two sets of spouses do not agree regarding how their votes should be cast. If the other three or four votes are split, and either one or both spousal groups cannot decide how their joint vote should be cast, then it is possible that the investor group will be unable to reach a 3-vote majority. The group has appointed Mr. Frankel as an emergency decision-maker where there is insufficient time to consult the full group (id. ¶ 16), but this power would not enable him to make a decision for the group in the event of the type of deadlock described above.

The Frankel Investor Group is also seeking to have two law firms appointed as co-lead counsel: Kahn Swick & Foti, LLC and Hagens Berman Sabol Shapiro LLC. (Id. ¶¶ 13, 18.) There is no indication that either counsel will serve in a predominate role over the other. The Frankel Investor Group’s request to appoint two law firms as lead counsel also raises issues with regard to the management of the putative class action.

Pursuant to the California Government Code, SamCERA was founded in 1944 by the Board of Supervisors to provide retirement, disability, and death benefits to employees of the County of San Mateo. (David Decl. (Dkt. # 34-1) ¶ 2.) SamCERA selects its securities monitoring counsel through a formal and comprehensive selection process. (Id. ¶ 4.) It selected its proposed lead counsel, Bernstein Litowitz Berger & Grossman LLP (“Bernstein Litowitz”), through a formal “request for proposal” process. (Id. ¶¶ 6-8.) SamCERA has entered into a legal services agreement with Bernstein Litowitz. (Id. ¶ 9.) SamCERA also seeks appointment of Keller Rohrbaek LLP (“Keller Rohrback”) as liaison counsel.

IV. ANALYSIS

A. Governing Law

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Bluebook (online)
835 F. Supp. 2d 1067, 2011 WL 6330179, 2011 U.S. Dist. LEXIS 145762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frias-v-dendreon-corp-wawd-2011.