In re Cable & Wireless, PLC

217 F.R.D. 372, 2003 U.S. Dist. LEXIS 23205, 2003 WL 22020601
CourtDistrict Court, E.D. Virginia
DecidedApril 21, 2003
DocketNo. CIV.A.02-1860
StatusPublished
Cited by15 cases

This text of 217 F.R.D. 372 (In re Cable & Wireless, PLC) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Cable & Wireless, PLC, 217 F.R.D. 372, 2003 U.S. Dist. LEXIS 23205, 2003 WL 22020601 (E.D. Va. 2003).

Opinion

ORDER

LEE, District Judge.

THIS MATTER is before the Court on the movants’ motions to be selected as lead plaintiff in accordance with the provisions of the Private Securities Litigation Reform Act of 1995 (“PSLRA”), and the opportunity to select the counsel of its choosing. This securities class action relates to a series of allegedly false and misleading statements made by C & W and some of its senior officers (“the Individual Defendants”), during the Class Period, August 6, 1999 to December 6, 2002, regarding the company’s August 6, 1999 sale of One 2 One (a mobile telecommunications subsidiary) to Deutsche Telecom. The issue before the Court is twofold: (1) whether any of the three movants 1, the Ontario Teachers’ Pension Plan (“OTPP”); the American Public Pension Funds (“APPF”), consisting of the Illinois State Universities Retirement System and the West Virginia Investment Management Board; or Alex Osinski is the most adequate plaintiff to serve as the lead plain[374]*374tiff under the PSLRA; and (2) whether the lead plaintiffs choice of counsel should be approved by the Court. For the reasons that follow, the Court holds that Alex Osinski and OTPP are the most adequate plaintiffs under the PSLRA, and they shall be appointed lead co-plaintiffs in this case. The Court further holds that each party’s selection of counsel is approved.

I. BACKGROUND

Defendant Cable & Wireless, PLC (“C & W”) is a British telecommunications company providing telephone, internet, cable television, multimedia, and data-transmission services. This is a securities fraud class action brought against C & W and the Individual Defendants for violations of Section 10(b) of the Securities Exchange Act of 1934 (“the Exchange Act”), 15 U.S.C. § 78j(b), and Securities and Exchange Commission (“SEC”) Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5, § 20(a) of the Exchange Act, and 15 U.S.C. § 78t(a).

The actions against the Defendants allege inflation of the value of C & W securities resulting from false statements made by the defendants regarding the company’s finances and defendants’ failure to disclose that C & W would have to set aside £1.5 billion in cash if the long-term rating of the company fell below a certain threshold. The parties also allege that C & W had billions of dollars of undisclosed lease commitments and losses on unrecorded assets. The lawsuits were filed on behalf of a putative class composed of purchasers of C & W’s common stock, traded on the London Stock Exchange (“LSE”), and purchasers of C & W’s American Depositary Receipts (“ADRs”), traded on the New York Stock Exchange (“NYSE”), during the Class Period.

On December 6, 2002, C & W received a downgrade of its long-term rating by Moody’s Investment Service, and consequently, C & W was obligated to place in escrow the previously undisclosed £1.5 billion. As a result of this disclosure, the price of C & W common stock, as traded on the LSE, fell from £0.84 to £0.48 on December 9, 2002. The price of the company’s ADRs’s, which are the equivalent of the ordinary shares in London, but are traded on the NYSE, also fell from $3.90 to $2.33 on December 9, 2002. Thereafter, on December 26, 2002, the first of ten complaints was filed in this action.2

II. STANDARD OF REVIEW-APPOINTMENT OF LEAD PLAINTIFF

Section 21D of the Exchange Act, as amended by the PSLRA, sets forth the procedure for selecting a lead plaintiff to oversee class actions brought under the federal securities laws.3 Specifically, § 21D(a)(3)(A)(i) provides that, within 20 days after a securities class action is filed:

[T]he plaintiff or plaintiffs shall cause to be published, in a widely circulated national business-oriented publication or wire service, a notice advising members of the purported plaintiff class-
(I) of the pendency of the action, the claims asserted therein, and the purported class period; and
(II) that, not later than 60 days after the date on which the notice is published, any member of the purported class may move the court to serve as lead plaintiff of the purported class.

15 U.S.C. § 78u-4(a)(3)(A)(i). Thus, class members who have filed a complaint or made a motion pursuant to § 21D(a)(3)(B) of the Exchange Act are eligible to be appointed lead plaintiff. See 15 U.S.C. § 78u-4(a)(3)(B). In this case, the appropriate notice was published, and each of the movants seeking selection as lead plaintiff has either filed a complaint or made a motion in response to the notice made under subpara-[375]*375graph (A)(i). Accordingly, each movant is eligible to be appointed lead plaintiff.

Section 21D(a)(3)(B)(i) states that the Court should consider any motions brought by plaintiffs or purported class members to appoint lead plaintiff within 90 days after publication of the public notice. 15 U.S.C. § 78u-4(a)(3)(B)(i).

The PSLRA provides that the Court “shall appoint as lead plaintiff the member or members of the purported plaintiff class that the court determines to be most capable of adequately representing the interests of class members” (hereinafter in this Order referred to as “the most adequate plaintiff’). 15 U.S.C. § 78u-4(a)(3)(B)(i). The Act creates a rebuttable presumption that the most adequate plaintiff should be the plaintiff which: (1) has brought the motion for appointment of lead counsel in response to the publication of notice; (2) has the “largest financial interest” 4 in the relief sought by the class; and (3) otherwise satisfies the requirements of Federal Rule of Civil Procedure 23.5 15 U.S.C. § 78u-4(a)(3)(B)(iii)(D(aa)-(ce).

The above presumption may only be rebutted by proof that the presumptive lead plaintiff (1) will not fairly and adequately protect the interests of the class or (2) is subject to “unique defenses” that render such plaintiff incapable of adequately representing the class. Id. § 78u-4(a)(3)(B)(iii)(II)(aa)-(bb). The lead plaintiff selected by the Court has the discretion to retain counsel of its choice to represent the class, subject to court approval. Id. § 78u-4(a)(3)(B)(v).

The Court will individually address each of the three movants’ request to be appointed lead counsel.

III. ANALYSIS

A. Alex Osinski

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Bluebook (online)
217 F.R.D. 372, 2003 U.S. Dist. LEXIS 23205, 2003 WL 22020601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cable-wireless-plc-vaed-2003.