In re Fuwei Films Securities Litigation

247 F.R.D. 432, 2008 U.S. Dist. LEXIS 5482, 2008 WL 216289
CourtDistrict Court, S.D. New York
DecidedJanuary 24, 2008
DocketNo. 07 Civ. 9416(RJS)
StatusPublished
Cited by53 cases

This text of 247 F.R.D. 432 (In re Fuwei Films Securities Litigation) 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 Fuwei Films Securities Litigation, 247 F.R.D. 432, 2008 U.S. Dist. LEXIS 5482, 2008 WL 216289 (S.D.N.Y. 2008).

Opinion

MEMORANDUM AND ORDER

RICHARD J. SULLIVAN, District Judge:

Before the Court are two motions1 to consolidate two putative class actions brought under the federal securities laws by shareholders of Fuwei Films (Holdings) Co., Ltd. (“Fuwei”). The two actions are: Yao v. Fu-wei Films (Holdings) Co., Ltd., et al., No. 07 Civ. 9416(RJS) (“Yao”), and Rubin v. Fuwei Films Holdings Co., Ltd., et al., No. 07 Civ. 10323(RJS) (“Rubin ”). Also before the Court are two motions to appoint a lead plaintiff or [434]*434co-lead plaintiffs, and to approve lead plaintiffs selection of counsel in the actions.

For the reasons outlined below, the motions of Tonyaz, and Rubin and Leru to consolidate these two actions are GRANTED. Movant Nijat Tonyaz’s motion to be appointed lead plaintiff is GRANTED, and his motion for approval of lead counsel is GRANTED. The remaining motions of mov-ants Meira Rubin and Costachi Leru are DENIED.

I. Background

A. Facts

Both the Yao complaint (‘Yao Complaint”) and the Rubin complaint (“Rubin Complaint”) contain the same basic factual allegations. The plaintiffs allege that they are purchasers of shares of Fuwei, a Cayman Islands company with its principal place of business in China. (Yao Compl. ¶ 7; Rubin Compl. ¶ 9.) Fuwei specializes in producing various types of plastic “films,” used in an assortment of products in many industries, including, inter alia, consumer-based packaging, imaging, and electronics. Yao Compl. ¶ 8; Rubin Compl. ¶ 9.) Fuwei stock trades on the NASDAQ Global Market under the ticker “FFHL.” Yao Compl. ¶ 9; Rubin Compl. ¶ 10.) Pursuant to Fuwei’s Initial Public Offering (“IPO”), held in December 2006, Fuwei sold approximately 4.3 million shares at $8.28 per share for gross proceeds of $35,707,500. Yao Compl. ¶¶16, 23; Rubin Compl. ¶ 22.)

Plaintiffs allege that, in the months following the IPO, it was revealed that the Registration Statement and Prospectus filed in connection with the IPO were false and misleading and/or contained materially false representations and/or omissions. Yao Compl. ¶ 24; Rubin Compl. ¶ 23.) Specifically, plaintiffs allege, inter alia, that the Registration Statement and Prospectus failed to reveal that Fuwei acquired its main operating assets in violation of Chinese law. (Id.) Plaintiffs assert that while the issues resulting in the material misstatements and/or omissions existed and were known by Fuwei at the time of the IPO, and thus should have been disclosed in the IPO documents, they were not made public until Fuwei made two announcements, one on June 25, 2007 and one on October 16, 2007, that the Chinese authorities were investigating certain of the individual defendants. Yao Compl. ¶¶ 24-27; Rubin Compl. ¶¶ 27-29.) In addition, the Rubin Complaint alleges that Fuwei announced on November 12, 2007 that the company’s implementation of a third production line would be delayed due to a lack of financing related to the investigation. (Rubin Compl. ¶ 34.) Both complaints allege that these announcements precipitated multiple drops in the price of Fuwei stock, to the detriment of purchasers of Fuwei stock pursuant and traceable to the IPO. Yao Compl. ¶¶ 26, 28; Rubin Compl. ¶¶28, 30, 34-35.)

B. Procedural History

As discussed above, both complaints assert the same basic issues of fact and law, with some variation. The Yao Complaint was filed on October 19, 2007, by Yinglu Yao, individually and on behalf of all others similarly situated, asserting claims arising under §§ 11 and 15 of the Securities Act of 1933,15 U.S.C. §§ 77a et seq., against Fuwei, as well as four individual defendants — Xiaoan He, Jun Yin, Duo Wang, and Yongju Zhou — who are alleged to be officers, directors, or owners of Fuwei. Yao Compl. ¶¶ 7, 10-13.) The Yao Complaint asserts § 11 claims against all defendants as well as claims against the individual defendants arising under § 15 of the Securities Act. (Id. ¶¶ 29^14.)

The Rubin Complaint was filed on November 14, 2007, by Meira Rubin, individually and on behalf of all others similarly situated, and asserts claims arising under §§ 11, 12, and 15 of the Securities Act of 1933. (Rubin Compl. ¶¶ 45-67.) Like the Yao Complaint, the Rubin Complaint asserts claims against Fuwei, as well as three of the four individuals named in the Yao Complaint. (Id. ¶¶ 9, 11, 15-16.) However, the Rubin Complaint also names three additional officers and/or directors as defendants (id. ¶¶ 12-14), as well as three entities alleged to have been underwriters of the Fuwei IPO — Maxim Group LLC, Chardan Capital Markets, LLC, and WR Hambrecht & Co. LLC (id. ¶¶ 18-20).

On December 18, 2007, movants Tonyaz, Rubin and Leru, and Nazhand filed motions for consolidation, appointment as lead plaintiff, and approval of selection of counsel, in accordance with the requirement of the Pri[435]*435vate Securities Litigation Reform Act of 1995 (“PSLRA”) that motions for the appointment of lead counsel be made no more than 60 days after the publication of the first notice issued advising investors of the pendency of the action. See 15 U.S.C. §§ 78u-4(a)(3)(A) and (B). The motions were timely, given that the first notice to investors pertaining to this matter was published on October 19, 2007. (See Kim Decl. ¶ 2, Ex. 1.) As movant Nazhand withdrew his motion on January 10, 2008, the motions of movant Tonyaz and movants Rubin and Leru are the only motions that remain.

II. Consolidation

A. Standard for Consolidation

A court may consolidate two or more actions pursuant to Fed.R.Civ.P. 42(a) where the actions involve “a common question of law or fact.” See Fed.R.Civ.P. 42(a); see also Devlin v. Transp. Commc’ns Int’l Union, 175 F.3d 121, 130 (2d Cir.1999); Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir.1990). The trial court has broad discretion to consolidate actions under Rule 42(a), Johnson, 899 F.2d at 1284, and cases may be consolidated even where certain defendants are named in only one of the complaints. See Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. LaBranche & Co., Inc., 229 F.R.D. 395, 402 (S.D.N.Y.2004) (citations omitted). However, while a court may enter orders of consolidation “to avoid unnecessary costs or delay,” “Considerations of convenience and economy must yield to a paramount concern for a fair and impartial trial.” Johnson, 899 F.2d at 1284-85 (citations omitted).

B. Analysis

Consolidation of these two actions pursuant to Rule 42(a) is appropriate because the complaints are largely overlapping and raise common questions of law and fact. See Devlin, 175 F.3d at 130.

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247 F.R.D. 432, 2008 U.S. Dist. LEXIS 5482, 2008 WL 216289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-fuwei-films-securities-litigation-nysd-2008.