Friedman v. Rayovac Corp.

219 F.R.D. 603, 2002 U.S. Dist. LEXIS 27229, 2002 WL 32362657
CourtDistrict Court, W.D. Wisconsin
DecidedOctober 22, 2002
DocketNos. 02-C-308-C, 02-C-325-C, 02-C-370-C
StatusPublished
Cited by1 cases

This text of 219 F.R.D. 603 (Friedman v. Rayovac Corp.) is published on Counsel Stack Legal Research, covering District Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Friedman v. Rayovac Corp., 219 F.R.D. 603, 2002 U.S. Dist. LEXIS 27229, 2002 WL 32362657 (W.D. Wis. 2002).

Opinion

OPINION AND ORDER

CRABB, Chief Judge.

In these civil actions, plaintiffs allege that defendants violated federal securities law by artificially inflating the price of stock. In an order entered on September 23, 2002, I granted the motion of proposed class members Carol A. LoGalbo, Lawrence M. Cox, Eli Friedman and Harold C. Eck to consolidate case nos. 02-C-308-C, 02-C-325-C and 02-C-370-C and to be appointed as the lead plaintiffs for the proposed class. However, I stayed their motion to appoint three law firms as lead counsel and an additional firm as liaison counsel because they had provided no explanation why multiple lead counsel were necessary to serve the best interests of the class. I gave the lead plaintiffs until October 8, 2002, either to move to appoint a single law firm as lead counsel or provide information that would justify the need for multiple lead counsel.

In its response, the lead plaintiff group agreed to withdraw its motion to appoint Ademi & O’Reilly as liaison counsel but renewed its motion to appoint Milberg Weiss Bershad Hynes & Lerach, LLP, Cauley Geller Bowman & Coates, LLP and Fruchter & Twersky as lead counsel. For the reasons discussed below, the lead plaintiff group’s motion to appoint multiple lead counsel will be denied. The lead plaintiff group will have until November 7, 2002, to move to appoint one law firm as lead counsel.

To begin with, I agree with the lead plaintiff group that it has the responsibility under 15 U.S.C. § 78u-4(a)(3)(B)(v) to select and retain counsel for the proposed class and that the court should not engage in “micromanagement of the lead plaintiffs performance of his duty.” LoGalbo Group’s Memo., dkt. # 15, at 2-3. However, the lead plaintiffs choice of counsel is “subject to the approval of the court.” 15 U.S.C. § 78u-4(a)(3)(B)(v). As I noted in the September 23 opinion and order, when the lead plaintiff is an institutional investor, most courts have freely granted approval of the lead plaintiffs choice of counsel because in such a case the lead plaintiff will know more than the court about how to choose counsel that will best protect the interests of the class. In addition, an institutional investor generally will be equipped to exercise control over counsel and insure that counsel is serving the class and not his or her own interests. When the lead plaintiff is a small individual investor or a group of such investors, as in this case, there is a greater likelihood that it is not the lead plaintiff that has chosen counsel but rather counsel that has chosen the lead plaintiff. See House Conf. Rep. No. 104-369, at 35 reprinted in U.S.C.C.A.N. 730, 734 (1995); see also In re Network Associates, Securities Litigation, 76 F.Supp.2d 1017, 1032 (N.D.Cal.1999). This merits greater scrutiny by the court of the proposed lead counsel. One of the purposes of the Private Securities Litigation Reform Act is to insure that it is [605]*605the plaintiffs and not plaintiffs’ lawyers that are controlling the direction of litigation. In re Donnkenny, Inc. Securities Litigation, 171 F.R.D. 156, 157 (S.D.N.Y.1997). The concern for a small investor’s ability to control the lawsuit is further heightened when proposed lead counsel consists of multiple law firms in different parts of the country.

For these reasons and others explained in the September 23 opinion, I directed the lead plaintiff group to provide information to the court justifying the need for multiple lead counsel. Specifically, I stated that, “the lead plaintiff group should be prepared to explain why the resources and expertise of one law firm are insufficient as well as ‘describe the lines of authority among the proposed co-counsel, the responsibilities and duties of each, and efforts it has made to avoid problems such as loss of direction of the litigation, duplication of effort, lack of coordination and increase in costs.’” Opinion and order dated September 23, 2002, dkt. # 14, at 26 (quoting Memorandum of Securities Exchange Commission, Amicus Curiae, appended to In re Baan Co. Securities Litigation, 186 F.R.D. 214, 229 (D.D.C.1999)).

The lead plaintiff group has failed to address in any meaningful way the concerns raised in the September 23 opinion and order. It has not shown that this litigation is so complex that it requires multiple law firms or that any of the law firms have insufficient resources to provide quality representation. It is also has not provided any information with respect to how the law firms would act in a unified and cohesive manner, prevent duplication of services or remain responsive to the direction of the lead plaintiff group. Instead, it argues that “unless some impropriety can be shown to affirmatively disturb the lead plaintiffs choice of class counsel, that choice must be respected and confirmed.” LoGalbo Group’s Memo., dkt. # 15, at 3.1 disagree that the court must wait until there is proven misconduct to reject the lead plaintiffs choice of lead counsel. When lead plaintiff status is unopposed, as it was in this case, it is unlikely that anyone would draw the court’s attention to any “impropriety,” even if it existed. Further, the purpose of the act is to prevent litigation abuse, not act after it has already occurred. To accept the lead plaintiff group’s interpretation of the act would effectively prevent the court from exercising its authority to reject proposed counsel in all but the most egregious circumstances. The act contains no such requirement, and I decline to read one in.

The lead plaintiff group has cited cases in which courts granted the lead plaintiffs motion to appoint multiple lead counsel, but those cases contain little discussion regarding appointment of lead counsel and are not persuasive. Further, each involved large or institutional investors and therefore do not support the lead plaintiffs view that the court should blindly accept multiple lead counsel without any inquiry. See In re Oxford Health Plans, Inc. Securities Litigation, 182 F.R.D. 42 (S.D.N.Y.1998) (appointing as lead plaintiff group pension fund with losses of approximately $25 million, corporation with losses of approximately $2.75 million, and three individuals with losses of approximately $3.4 million, $3.1 million and $2 million); Pl Harrington Trust v. RehabCare Group, Inc., No. 4:02CV775 RWS (E.D.Mo. October 2, 2002) (appointing as lead plaintiff institutional investor with estimated losses over $2.4 million). In this case, no member of the lead plaintiff group is an institutional investor and no member has estimated losses of more than $1000 so they cannot be compared to the lead plaintiffs in Oxford Health Plans and PI Harrington.

The lead plaintiff group has not addressed the myriad cases in which courts have expressed skepticism or have rejected outright a lead plaintiffs motion to appoint multiple lead counsel. See, e.g., Richard MNI Bell v. Ascendant Solutions, Inc., No. Civ.A. 3:01-CV-0166, 2002 WL 638571 (N.D.Tex. April 17, 2002) (rejecting multiple lead counsel because lead plaintiff had failed to show that three law firms were required to manage case); Yousefi v. Lockheed Martin Corp., 70 F.Supp.2d 1061 (C.D.Cal.1999) (appointing one law firm rather than three as lead counsel because three law firms would be too difficult for lead plaintiff to control); In re Orbital Sciences Corp. Securities Litigation, 188 F.R.D.

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Bluebook (online)
219 F.R.D. 603, 2002 U.S. Dist. LEXIS 27229, 2002 WL 32362657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedman-v-rayovac-corp-wiwd-2002.