In re Host America Corp. Securities Litigation

236 F.R.D. 102, 2006 U.S. Dist. LEXIS 20791, 2006 WL 1031214
CourtDistrict Court, D. Connecticut
DecidedApril 10, 2006
DocketNo. 3:05 CV 1250(JBA)
StatusPublished
Cited by4 cases

This text of 236 F.R.D. 102 (In re Host America Corp. Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Host America Corp. Securities Litigation, 236 F.R.D. 102, 2006 U.S. Dist. LEXIS 20791, 2006 WL 1031214 (D. Conn. 2006).

Opinion

RULING ON MOTIONS FOR APPOINTMENT OF LEAD PLAINTIFF AND COUNSEL [Docs.## 19, 22, 25, 32, 33, 36, 37, 48]

ARTERTON, District Judge.

Before the Court are fourteen consolidated class action lawsuits against Host America Corporation (“Host America”), a Connecticut corporation that provides food service management, energy management conservation and pre-employment background screening, Energysync, an affiliate of a Host America subsidiary, and four individual defendants who are officers and/or directors of the defendant corporations. Seven groups and one individual originally moved to be appointed lead plaintiff and for their attorneys to be appointed lead counsel: the Haynes Group, the Host Investors Group, the Bigelow Group, Conlin’s Investor Group, the DMC Group, the Andreski Group, the Carolantic Group, and Jonathan Destler.1 See [Docs. ## 19, 22, 25, 32, 33, 36, 37, 48]. Of these, the Host Investors Group and the Bigelow Group have formally withdrawn their motions, see [Docs. ## 61, 62], and all but the DMC Group and the Carolantic Group have neglected to file opposition motions and thus apparently are no longer pursuing their motions.2 For the reasons discussed below, the Court appoints the Carolantic Group as lead plaintiff and approves its selection of Scott + Scott, LLC as lead counsel.

1. Factual Background

All complaints filed against defendants in this consolidated action contain similar claims, alleging that defendants violated Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b) and 78t(a), and Rule 10b-5 promulgated thereunder, by issuing a series of material misrepresentations. These include statements in a July 12, 2005 press release and a Form 8-K filed with the SEC announcing a deal with Wal-Mart for Wal-Mart to utilize Host America’s LightMasterPlus technology, thereby artificially inflating the price of Host America stock, buyers of which suffered losses when the misrepresentations were revealed, an SEC investigation was commenced, and trading of Host America securities was halted on July 22, 2005.

The complaints allege that statements made in July 2005 regarding a purported [104]*104agreement with Wal-Mart for the installation of its LightMasterPlus technology in ten Wal-Mart stores, characterizing this as the “first-phase roll out,” stating “the next phase will involve a significant number of stores,” and noting “[t]his is a major event for our company,” were materially false and misleading because the defendants knew, but failed to disclose: (1) that Host America’s relationship with Wal-Mart was limited to a test installation; (2) that Host America had no agreement for any subsequent installations in other Wal-Mart stores; and (3) that as a result of the foregoing, defendants’ statements were lacking in a reasonable basis at all relevant times.

II. Private Securities Litigation Reform Act

The Private Securities Litigation Reform Act (“PSLRA”) of 1995, 15 U.S.C. § 77z-l, was designed to end the “race to the courthouse” by plaintiffs’ lawyers and “encourage the most capable representatives of the plaintiff class to participate in class action litigation and to exercise supervision and control of the lawyers for the class.” H.R. Conf. Rep. 104-369, at 34, reprinted in 1995 U.S.C.C.A.N. 730, 733. Specifically, the law was “intended 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.” Id.

To these ends, the statute prescribes detailed procedures to be followed in the initial stages of securities class action cases. First, the plaintiff in the earliest-filed case must publish notice in “a widely circulated national business-oriented publication or wire service” regarding “the pendency of the action, the claims asserted therein, and the purported class period...” 15 U.S.C. § 77z-1(a)(3)(A)(i)-(ii). Attorneys for the plaintiff in the first-filed Host America matter, Yorks v. Host America Corp., 3:05cv1250, published such a notice on August 8, 2005, and therefore this element is not contested here.

Second, where there are several actions pending and there is a motion to consolidate, the court must decide that motion. 15 U.S.C. § 77z-l(a)(3)(B)(ii). This Court granted the motions to consolidate the fourteen Host America cases on September 22, September 28, and October 20, 2005, see [Docs. ## 5,12, 58].3

Third, “[a]s soon as practicable after such [consolidation] decision is rendered, the court shall appoint the most adequate plaintiff as lead plaintiff for the consolidated actions...” Id. § 77z — 1(a)(3)(B)(ii). To serve as lead plaintiff, the movant must file a sworn certified statement with the complaint stating that he or she reviewed and authorized the filing of the complaint; did not purchase the securities at the direction of counsel or in order to participate in a lawsuit; and is willing to serve as the lead plaintiff on behalf of the class. The plaintiff must also identify all of his or her transactions in the securities covered by the class period, and any other lawsuits in which the plaintiff has sought to serve as lead plaintiff in the last three years. The adequacy of the Carolantic Group’s statements are discussed below.

In determining the “most adequate plaintiff,” the statute creates a presumption in favor of “the person or group of persons that: — (aa) has either filed the complaint or made a motion [to be the lead plaintiff]; (bb) in the determination of the court, has the largest financial interest in the relief sought by the class; and (cc) otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure.” Id. § 77z-1 (a)(3)(B)(iii)(I). This presumption “may be rebutted only upon proof by a member of the purported plaintiff class that the presump[105]*105tively most adequate plaintiff — (aa) will not fairly and adequately protect the interests of the class; or (bb) is subject to unique defenses that render such plaintiff incapable of adequately representing the class.” Id. § 77z-l(a)(3)(B)(iii)(II).

As the Ninth Circuit explained, in choosing the most adequate plaintiff,

the district court must compare the financial stakes of the various plaintiffs and determine which one has the most to gain from the lawsuit. It must then focus its attention on that plaintiff and determine, based on the information he has provided in his pleadings and declarations, whether he satisfies the requirements of Rule 23(a), in particular those of ‘typicahty’ and ‘adequacy.’ If the plaintiff with the largest financial stake in the controversy provides information that satisfies these requirements, he becomes the presumptively most adequate plaintiff.

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Cite This Page — Counsel Stack

Bluebook (online)
236 F.R.D. 102, 2006 U.S. Dist. LEXIS 20791, 2006 WL 1031214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-host-america-corp-securities-litigation-ctd-2006.