In re Facebook, Inc.

922 F. Supp. 2d 475, 2013 U.S. Dist. LEXIS 19626, 2013 WL 525191
CourtDistrict Court, S.D. New York
DecidedFebruary 13, 2013
DocketMDL No. 12-2389; Case No. 12 Civ. 6439
StatusPublished
Cited by17 cases

This text of 922 F. Supp. 2d 475 (In re Facebook, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Facebook, Inc., 922 F. Supp. 2d 475, 2013 U.S. Dist. LEXIS 19626, 2013 WL 525191 (S.D.N.Y. 2013).

Opinion

OPINION & ORDER

SWEET, District Judge.

Plaintiff Michael Zack (“Zack” or the “Plaintiff’) has moved to remand the proposed class action, on behalf of himself and other similarity situated individuals, to the Supreme Court for the State of New York, New York County (the “State Court”), pursuant to 28 U.S.C. § 1447(c). Plaintiff originally filed a complaint in State Court on behalf of all investors, charging the NASDAQ OMX Group, Inc. and the NASDAQ Stock Market LLC (collectively “NASDAQ” or the “Defendants”) with negligence under New York law in the design of their systems and conduct during the May 18, 2012 initial public offering («IPO”) 0f Facebook, Inc. (“Facebook”). Defendants removed this action to the Southern District of New York and Plaintiff now moves to remand the case back to State Court.

Upon the facts and conclusions set forth below, the motion is denied.

I. Prior Proceedings

The facts and prior proceedings underlying this action are set out in this Court’s May 9 Opinion, In re Facebook. IPO Secs. & Derivative Litig., 288 F.R.D. 26 (S.D.N.Y.2012), familiarity with which is assumed. Accordingly, only a brief recapitulation of the relevant facts will be provided here.

This action is one of eleven class actions filed against NASDAQ relating to the Facebook IPO (collectively, the “NASDAQ Actions”).1 The NASDAQ Actions were [477]*477filed on behalf of retail investors who contended that their orders to purchase or sell Facebook stock were not properly executed or confirmed as a result of systems issued experienced by NASDAQ on the day of the Facebook IPO.

Plaintiff, a New York citizen, commenced his original action on June 26, 2012 by filing a complaint in the Supreme Court of the State of New York on behalf of all investors, of any citizenship, whose orders were allegedly affected by NASDAQ’s systems issues on the date of Face-book’s IPO. (Original Compl. ¶ 48). On July 16, 2012, NASDAQ removed that action to the Southern District of New York under Section 4 of the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d), and on the basis of federal questions concerning NASDAQ’s obligations and privileges as a self-regulatory organization (“SRO”) under the Securities Exchange Act of 1934 (the “Exchange Act”) (No. 12-CV-5466-RWS, Dkt. No. 1). 0'n July 25, 2012, Plaintiff voluntarily dismissed that action pursuant to Rule 41(a)(l)(A)(i) of the Federal Rules of Civil Procedure.

On August 7, 2012, Plaintiff filed the instant action in New York state court, hmiting the class to all persons or entities resident in New York State and who “sought to purchase and/or sell shares of Facebook during the early stages of its IPO process, and suffered damages from order execution problems.” (Compl. ¶ 3). On August 23, 2012, NASDAQ moved to remove the case, asserting that the action “raises issues of federal law” under the Exchange Act “and is thus subject to federal question jurisdiction under 28 U.S.C. § 1331.” (No. 12-cv-6439-RWS, Dkt. No. 1, ¶ 4). On September 24, 2012, Plaintiff timely filed his motion to remand this action to New York state court.

On September 20, 2012, the United States Judicial Panel on Multidistrict Litigation (the “MDL Panel”) held a hearing to determine whether the pending 41 filed actions should be transferred to the Southern District of New York. On October 4, 2012, the MDL Panel issued a transfer order, finding that the “Southern District of New York is an appropriate transferee district for pretrial proceedings in this litigation,” and reasoning that “[m]uch of the relevant discovery will be located in New York, including most discovery relating to alleged NASDAQ trading errors and discovery from the underwriter defendants, many of whom are located in New York.” In re Facebook. IPO Secs. & Derivative Litig., 899 F.Supp.2d 1374, 1376-77 (J.P.M.L.2012). The cases were assigned to this Court for coordination or consolidation of the pretrial proceedings. Id.

On October 10, 2012, this Court issued a Practice & Procedure Order Upon Transfer Pursuant to 28 U.S.C. § 1107 (the “October 10 Order”), governing the practices and procedures for the 41 related actions filed against NASDAQ, the Facebook defendants, and certain underwriter defendants. On October 26, 2012, this Court issued an order denying without prejudice “any of the actions transferred to this Court by the MDL Panel or removed to this Court[.]” (the “October 26 Order”). [478]*478Pre-trial conferences were held on November 7 and 14, 2012, in which a briefing schedule was set for all remand motions.

Plaintiff accordingly re-filed the instant motion to remand on November 14, 2012 and it was marked fully submitted on December 12, 2012,

II. Facts

NASDAQ is a major American stock exchange and a SRO registered with the U.S. Securities and Exchange Commission (the “SEC”) to operate as a national securities exchange pursuant to Section 6 of the Exchange Act. See In the Matter of the Application of The NASDAQ Stock Mkt. LLC for Registration as a Nat’l Sec. Exchange.; Findings, Opinion, and Order of the Comm’n, SEC Rel. No. 34-53128 (Jan. 13, 2006), 71 Fed. Reg. 3550 (Jan. 23, 2006). It has operated as a for-profit publicly traded company since 2000.

After engaging in a competitive bidding process with the New York Stock Exchange (“NYSE”), NASDAQ won the right to host the eagerly anticipated IPO of Facebook. On May 18, 2012, Facebook offered 421 million shares of its common stock to the public at $38.00 per share on the NASDAQ stock exchange, thereby valuing the total size of the IPO at more than $16 billion. The IPO was initially set to open at 11:00 a.m. Eastern Standard Time under the NASDAQ ticker symbol “FB,” but was delayed.

According to the Complaint, the “opening was delayed due to malfunctions in NASDAQ’s automated system for processing order cancellations and matching orders, which prevented certain trades from processing properly.” (Compl. ¶ 25). Normally, trades and cancellations placed by retail investors through brokerage services execute nearly immediately. (Id. ¶ 26). However, given the size of Face-book’s offering, coupled with the heavy demand among retail investors, the auction software could not keep up with the rush of last minute modifications. (Id. ¶ 28).

More specifically, according to NASDAQ’s proposal to amend Rule 4626,2 starting at 11:05:10 a.m., having proceeded with the Display-Only period and the Quote-Only period, NASDAQ experienced system difficulties during the NASDAQ Halt and Imbalance Cross Process (the “Cross”), until 11:30 a.m. See Notice of Filing of Proposed Rule Change to Amend Rule 1626 — Limitation of Liability, SEC Rel. No. 34-67507 (July 26, 2012), 77 Fed. Reg. 45,706, 45,709 (Aug. 1, 2012) (“Accommodation Proposal”) (attached to Graifman Decl. Dkt. No. 13).

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Bluebook (online)
922 F. Supp. 2d 475, 2013 U.S. Dist. LEXIS 19626, 2013 WL 525191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-facebook-inc-nysd-2013.