Holley v. Kitty Hawk Inc.

200 F.R.D. 275, 2001 U.S. Dist. LEXIS 4706, 2001 WL 443462
CourtDistrict Court, N.D. Texas
DecidedMarch 6, 2001
DocketNo. Civ.A.3:00CV0828P
StatusPublished
Cited by7 cases

This text of 200 F.R.D. 275 (Holley v. Kitty Hawk Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holley v. Kitty Hawk Inc., 200 F.R.D. 275, 2001 U.S. Dist. LEXIS 4706, 2001 WL 443462 (N.D. Tex. 2001).

Opinion

ORDER

SOLIS, District Judge.

Before this Court is the Proposed Kitty Hawk Lead Plaintiffs Motion for Appointment as Lead Plaintiffs and for Approval of Their Selection of Lead Counsel, filed June 19, 2000, Statement in Response to Proposed Kitty Hawk Lead Plaintiffs Motion for Appointment for Lead Plaintiff and for Approval of Their Selection of Lead Counsel, filed July 19, 2000, and Proposed Kitty Hawk Lead Plaintiffs’ Reply to the Defendants’ Statement in Response, July 25, 2000. The Court finds the notice in the case inadequate and orders Plaintiffs to act as specified herein, GRANTS provisionally the motion to appoint lead plaintiffs, GRANTS provisionally the motion to appoint co-lead counsel, and GRANTS provisionally the motion to appoint liaison counsel.

BACKGROUND

Before the Court is the consolidation of four securities class actions alleging violations under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 as amended by the Private Securities Reform Act of 1995, 15 U.S.C. §§ 78j(b) and 78t, and Rule 10b-5 promulgated thereunder (17 C.F.R. § 240.10b-5). Plaintiff Todd Holley originally filed this action individually and on behalf of all those who purchased common stock of Kitty Hawk Inc. (“Kitty Hawk”) between April 22, 1999 and April 11, 2000. Holley claims that the defendants disseminated materially false and misleading statements regarding Kitty Hawk.

Alpine Aviation, Inc., Abraham Mathew, David Anders, and David Reedy (“the Proposed Kitty Hawk Lead Plaintiffs”) and additional class members seek appointment as Lead Plaintiffs in the action pursuant to Section 21D(a)(3)(B) of the Exchange Act, as amended by the Private Securities Litigation Reform Act of 1995 (“PSLRA”). The same movants seek approval of the appointment of the law firms of Milberg Weiss Bershad Hynes & Lerach LLP (“Milberg Weiss”) and Cauley & Geller LLP as Co-Lead Counsel.

The PSLRA establishes a procedure governing the appointment of a lead plaintiff and lead counsel in private actions arising under the Securities Exchange Act that is brought by a plaintiff class action pursuant to the Federal Rules of Civil Procedure. 15 U.S.C. §§ 78u-4(a)(1) and (a)(3)(B)(i). The Court considers the requirements in turn.

A. Sworn Certifications

The PSLRA requires each potential lead plaintiff to certify the following: the plaintiff has reviewed the complaint and authorized its filing; the plaintiff did not purchase the security that is the subject of the complaint at the direction of plaintiffs counsel or in order to participate in any private action under the Securities Exchange Act; the plaintiff is willing to serve as a representative party on behalf of a class, including providing testimony at deposition and trial, if necessary; a listing of all the transactions of the plaintiff in the security in question during [277]*277the complaint’s class period; a listing of any other actions under the Act in which the plaintiff has sought to serve as lead plaintiff in the last three years; that the plaintiff will not accept any payment for serving as lead plaintiff beyond the plaintiffs pro rata share of any recovery, except as approved by the court in accordance with the provisions of the Act. 15 U.S.C. § 78u-4(a)(2)(A). All four proposed lead plaintiffs have completed the required certification.

B. Notice

1. Court’s Obligation to Consider Defendant’s “Statement in Response’’

15 U.S.C. § 78u—4(a)(3)(B)(i) provides that “the court shall consider any motion made by a purported class member in response to the notice____” Section 78u-4(a)(3)(B)(iii) instructs the court to adopt a presumption that the most adequate plaintiff is the group that either filed the complaint or made a motion in response to the notice of suit, has the largest financial interest in the relief sought by the class, and otherwise satisfies Fed.R.Civ.P. 23. Respondents to Plaintiffs Motion do not purport to be class members. Indeed, they are the defendants in this case. The plain language of the statutory provisions does not provide for the defendants to weigh in on who should represent the plaintiffs. Id. Courts agree that generally, Defendants cannot rebut the presumption of adequacy regarding Plaintiffs motion to serve as lead plaintiff. See Gluck v. CellStar Corp., 976 F.Supp. 542, 550 (N.D.Tex.1997) (“The statute is clear that only potential plaintiffs may be heard regarding appointment of a Lead Plaintiff.”); Fischler v. AmSouth Bancorporation, 1997 WL 118429 at *2 (M.D. Fla. Feb 7, 1997) (“The plain language of the PSLRA dictates only members of the plaintiff class may offer evidence to rebut the presumption in favor of the most adequate plaintiff.”); See Greebel v. FTP Software, 939 F.Supp. 57, 60 (D.Mass.1996). However, Defendants may challenge the failure of the named plaintiff to file a certification with the complaint or to serve notice to class members. Greebel, 939 F.Supp. at 60. While there is not a challenge to certification, Defendants have challenged the adequacy of Plaintiffs’ notice. The Court will consider Defendants’ argument on the grounds of inadequate notice. But see King v. Livent, Inc., 36 F.Supp.2d 187 (S.D.N.Y.1999) (finding court may consider Defendant’s arguments).

The Defendants do not have standing to lodge their remaining objections or statements. Thus, the Court at this time is not obliged to consider the portions of Defendants’ brief pertaining to purchase of shares beyond the alleged class period, any disparity in the proposed lead plaintiffs’ stakes, the “revolving door in and out of lead plaintiff status,” the prematurity of the motion, confusion among lead counsel, and the role of other counsel.

2. Adequacy of Notice

Under the PSLRA, within 20 days of filing a complaint under the Act, a notice must advise members of the proposed class “of the pendency of the action, the claims asserted therein, and the purported class period” as well as that “any member of the purported class may move the court to serve as lead plaintiff’ within 60 days after publication of the notice. 15 U.S.C. § 78u-4(a)(3)(A)(i). Preliminarily, Plaintiffs publication in Business Wire is a sufficient form of notice; other courts have so found, and in the absence of dispute, this Court agrees. See, e.g., Greebel, at 939 F.Supp. at 62-64; In re Lucent Technologies, Inc., Securities Litigation, 194 F.R.D. 137 (D.N.J.2000). Further, the notice was given the day after the complaint was filed.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Meijer, Inc. v. Abbott Laboratories
251 F.R.D. 431 (N.D. California, 2008)
Lane v. Page
250 F.R.D. 634 (D. New Mexico, 2007)
Pirelli Armstrong Tire Corp. v. LaBranche & Co.
229 F.R.D. 395 (S.D. New York, 2004)
Sofran v. Labranche & Co.
220 F.R.D. 398 (S.D. New York, 2004)
In re Universal Access, Inc.
209 F.R.D. 379 (E.D. Texas, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
200 F.R.D. 275, 2001 U.S. Dist. LEXIS 4706, 2001 WL 443462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holley-v-kitty-hawk-inc-txnd-2001.