In re Cree, Inc., Securities Litigation

219 F.R.D. 369, 2003 U.S. Dist. LEXIS 23244, 2003 WL 23014386
CourtDistrict Court, M.D. North Carolina
DecidedDecember 17, 2003
DocketNo. 1:03CV549
StatusPublished
Cited by26 cases

This text of 219 F.R.D. 369 (In re Cree, Inc., Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, M.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Cree, Inc., Securities Litigation, 219 F.R.D. 369, 2003 U.S. Dist. LEXIS 23244, 2003 WL 23014386 (M.D.N.C. 2003).

Opinion

MEMORANDUM OPINION

BULLOCK, United States Magistrate Judge.

At the November 25, 2003, status conference and motion hearing in this matter, the court considered the parties’ motion to consolidate the number of pending actions before the court involving common questions of law and fact and also reviewed several applications and proposed stipulations for appointment of one or more of the parties and attorneys as lead plaintiff and lead counsel.

Rule 42(a), Federal Rules of Civil Procedure, allows a court to consolidate actions if they involve a “common question of law or fact.” In exercising its discretion in such regard, the court should weigh the risk of prejudice and possible confusion versus the possibility of inconsistent adjudication of common factual and legal issues, the burden on the parties, witnesses, and judicial resources by multiple lawsuits, the length of time required to try multiple suits versus a single suit, and the relative expense required for multiple suits versus a single suit. Arnold v. Eastern Air Lines, 681 F.2d 186, 193 (4th Cir.1982). Presently pending before the court are 19 purported class action suits making substantially similar allegations which would impose a greater burden on all parties, witnesses, and judicial resources if each were maintained separately. Consolidation would avoid the possible inconsistent adjudication of common factual and legal issues and lessen the time and expense required for all parties. No party opposes consolidation of these cases. Therefore, the court will grant the Plaintiffs’ motion for consolidation and consolidate these actions pursuant to Rule 42(a), Federal Rules of Civil Procedure.

The Private Securities Litigation Reform Act of 1995 (PSLRA), 15 U.S.C. § 78u-4 et seq., which governs these actions, provides that the court shall appoint lead plaintiff for the consolidated action as soon as practicable after consolidation is determined. 15 U.S.C. § 78u-4(a)(3)(B)(ii). The inquiry used to appoint lead plaintiff for consolidation purposes is “not as searching as one triggered by a motion for class certification.” Switzenbaum v. Orbital Seis. Corp., 187 F.R.D. 246, 250 (E.D.Va.1999) (citations omitted). The entity appointed as lead plaintiff must be the member of the purported plaintiff class that the court determines to be most capable of adequately representing the interests of class members. 15 U.S.C. § 78u-4(a)(3)(B)(i). There is a rebuttable presumption that the most adequate plaintiff is the one who has filed a complaint or made a motion in response to a notice, who has the largest financial interest in the relief sought, and who otherwise satisfies Rule 23, Federal Rules of Civil Procedure. The presumption may be rebutted only by a member of the purported class, not by the defendant. 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II). Any rebuttal evidence must show that the presumptively most adequate plaintiff will not fairly represent the class or is subject to unique defenses.

The Teachers Retirement System of Louisiana (“TRSL”) is the presumptive lead plaintiff in this casé because it has filed a motion to consolidate and be appointed lead plaintiff, has the largest financial interest of all those bringing actions, and appears to satisfy Rule 23 typicality and adequate representation requirements. Other litigants have also sought lead plaintiff status, including the Louisiana State Employees Retirement System (“LSERS”), which holds the second largest financial interest. The Plaintiffs have proposed a stipulation that would provide for the appointment of both Louisiana employees’ groups as co-lead plaintiffs. However, the statutory presumption applies only to TRSL.

In determining whether the statutory presumption applies, the court must evaluate any proposed lead plaintiff to make sure it conforms to the mandates of the [372]*372PSLRA. See In re Waste Mgmt. Inc. Sec. Litig., 128 F.Supp.2d 401, 410 (S.D.Tex.2000). A presumptive lead plaintiff need make only a prima facie showing that it can satisfy the typicality and adequacy requirements of Rule 23 to be appointed. In re Cendant Corp. Litig., 264 F.3d 201, 263 (3d Cir.2001). The typicality requirement of the rule requires that a lead plaintiff suffer the same injuries as the class as a result of the defendant’s conduct and has claims based on the same legal issues. Weiss v. York Hosp., 745 F.2d 786, 810 n. 36 (3d Cir.1984). Adequate representation requires a finding that the purported class representative and its attorney are capable of pursuing the litigation and that neither has a conflict of interest with other class members. Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).

The affected class in this litigation appears to be one of moderate size, and the Plaintiffs have not identified, nor has the court determined, any reason why co-lead plaintiffs would be helpful or appropriate or why the presumptive lead plaintiff alone should not be appointed. A single lead plaintiff could reduce expenses and facilitate the control and prosecution of this litigation. Although 15 U.S.C. § 78u-4(a)(3)(B)(vi) provides that “[ejxcept as the court may otherwise permit” an entity may be a lead plaintiff in no more than five securities class actions during any three-year period, courts have excepted institutional investors from this restriction based on the legislative history of the PSLRA. See Smith v. Suprema Specialties, Inc., 206 F.Supp.2d 627, 640 (D.N.J.2002); Naiditch v. Applied Micro Circuits Corp., 2001 WL 1659115, at *3 (S.D.Cal. Nov. 5, 2001); In re Critical Path. Inc. Sec. Litig., 156 F.Supp.2d 1102, 1112 (N.D.Cal.2001).

Pursuant to the court’s request, counsel for TRSL has provided the court with information concerning TRSL’s pending litigation. It appears that TRSL has eight active securities fraud actions in which it is serving as lead or co-lead plaintiff and six individual/derivative actions pending. The earliest of these cases began in 1999. While this number is a matter of some concern, the court has been given no reason to believe that TRSL could not devote adequate time and resources to this case notwithstanding its involvement in other active cases. As noted, TRSL has approximately twice the financial interest in this litigation as that of the next largest investor.

Neither is the court persuaded that multiple lead plaintiffs are needed in this case. Although the statute allows the lead plaintiff to be a “person or group of persons” or class “member or group of members,” 15 U.S.C.

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219 F.R.D. 369, 2003 U.S. Dist. LEXIS 23244, 2003 WL 23014386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cree-inc-securities-litigation-ncmd-2003.