In re Cendant Corp. Litigation

182 F.R.D. 144, 1998 U.S. Dist. LEXIS 13989, 1998 WL 598337
CourtDistrict Court, D. New Jersey
DecidedSeptember 8, 1998
DocketNo. CIV.A. 98-1664
StatusPublished
Cited by76 cases

This text of 182 F.R.D. 144 (In re Cendant Corp. Litigation) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Cendant Corp. Litigation, 182 F.R.D. 144, 1998 U.S. Dist. LEXIS 13989, 1998 WL 598337 (D.N.J. 1998).

Opinion

WALLS, District Judge.

The 1995 Private Securities Litigation Reform Act (“PSLRA” or “Reform Act”) was enacted by Congress to curb perceived abuses in the litigation process — widespread initiation and manipulation — of securities class-actions by “professional” plaintiffs and lawyers. Acknowledging the value of private securities litigation, see Gluck v. Cellstar Corp., 976 F.Supp. 542, 544 (N.D.Tex.1997), Congress also recognized that under the pri- or regime, “[c]ourts traditionally appoint[ed] lead plaintiff and lead counsel in class action lawsuits on a first come, first serve basis.” S.Rep. No. 104-98 (1995) reprinted in U.S.C.C.A.N. 679. This encouraged a “race to the courthouse” among parties seeking lead-plaintiff status and spawned a cottage-industry of specialized securities litigation firms that “researched potential targets for these suits, enlisted plaintiffs, controlled the course of the litigation, and often negotiated settlements that resulted in huge profits for the law firms with only marginal recovery for the shareholders.” Gluck, 976 F.Supp. at 544 (citing S.Rep. No. 104-98 at 687)

To stem this unhealthy trend, the Reform Act establishes a presumption that among the parties seeking to lead the class, the persons or group of persons with “the largest financial interest in the relief sought by the class” is the “most adequate plaintiff’ to do so. 15 U.S.C. § 77z-l(a)(3)(B)(iii)(I)1 That plaintiff then selects counsel to represent the class. 15 U.S.C. § 77z-l(a)(3)(B)(v). The goal of this scheme is to “increase the likelihood that parties with significant holdings in issuers, whose interests are more strongly aligned with the class of shareholders, will participate in the litigation and exercise control over the selection and actions of plaintiffs counsel.” H.R.Rep. No. 104-369 at 32 (1995) reprinted in 1996 U.S.C.C.A.N. at 731. Its underlying assumption is that the plaintiff or plaintiff group with the strongest financial interest will pursue the claims with the greatest vigor and will have both the interest [146]*146and the clout to engage qualified counsel at the best rates for the class. The court is then charged with ensuring that the reality of the case accords with these assumptions. Thus, the lead plaintiff presumption is rebut-table, 15 U.S.C. § 77z — 1 (a)(3)(B)(iii)(I), and that party’s selection of counsel subject to court approval. 15 U.S.C. § 77z-l(a)(3)(B)(v).

This matter comes before the Court by the motions of fifteen plaintiffs or plaintiff groups for appointment as lead plaintiff in this shareholder class action. Each movant also seeks to have its chosen attorneys selected as lead counsel, and some motions were made for appointment of liaison counsel. The Court heard oral argument on this matter on August 4, 1998.2 For the reasons that follow, the Court designates Welch & Forbes as lead plaintiff for the claims filed on behalf of the holders of “Feline Prides” derivative products, and the Public Pension Fund Investors as lead plaintiffs for the claims of all other shareholders. Lead counsel shall be determined through a process of competitive bidding, after which each lead plaintiffs present counsel, if a participant in the bidding and otherwise qualified, shall be afforded the opportunity to meet the lowest bids on their respective claims. The motion for appointment of liaison counsel is denied.

Background

Defendant Cendant Corporation is one of the world’s largest providers of consumer and business services. Among other things, the company provides access shopping, automobile and dining services, mortgage services and real estate brokerage services. Cendant was formed on or about December 18, 1997 when its predecessor, CUC International, Inc. (“CUC”) merged with HFS, Inc. Under the terms of the merger, all outstanding shares of HFS common stock were exchanged for CUC shares and the merged entity took the name “Cendant.”

On April 15, 1998, after the stock market closed, Cendant announced that it had uncovered substantial accounting irregularities in a former CUC business unit — now part of the merged entity. As a result of this revelation, the company announced that it would have to restate its reported annual and quarterly net income and earnings per share for 1997 and possibly for earlier periods as well. The market reacted to the news with predictable disfavor. On the day after the announcement, Cendant’s stock price plummeted 46 percent. In the ensuing days, a flurry of shareholder suits were filed in this and other districts against Cendant, its directors, and various other relevant parties. To date, there are upwards of 64 such actions. With the exception of the single shareholder derivative action, the cases either have been or are in the process of being consolidated.

Plaintiffs in the various actions fall into one or more of four categories: (1) former holders of CUC shares; (2) former holders of HFS stock; (3) purchasers of Cendant stock; and (4) holders of Feline Prides (“Prides”)— a derivative security based on Cendant common stock. All of the actions sound in fraud. The Prides-holders, who purchased the security pursuant to a registration statement and prospectus, allege violations of Sections 11, 12(a)(2), 15 and 22 of the Securities Act of 1933 (the “Securities Act” or “’33 Act”). Shareholders of Cendant common stock, having acquired their holdings both on the open market as well as pursuant to the Joint Proxy Statement/Prospectus of CUC and HFS, charge defendants with violations of Sections 10(b), 14(a) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act” or “ ’34 Act”) and violations of Sections 11, 12, 15 and 22 of the ’33 Act. Fifteen plaintiffs or groups of plaintiffs filed motions for appointment as lead plaintiff. Each mov-ant also sought to have its attorney or attorneys selected as lead counsel for the class.

Discussion

I. Selection of Lead Plaintiff

The PSLRA instructs the Court to “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 the class members.” 15 U.S.C. § 77z-l(a)(3)(B)(i). To this end, the statute sets forth

a presumption that the most adequate plaintiff in an private action arising under this subchapter is the person or group of persons that—
(aa) has either filed the complaint or made a motion in response to a notice under [147]*147subparagraph (A)(i);3
(bb) in the determination of the court, has the largest financial interest in the relief sought by the class; and
(ce) otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure.

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Bluebook (online)
182 F.R.D. 144, 1998 U.S. Dist. LEXIS 13989, 1998 WL 598337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cendant-corp-litigation-njd-1998.