In re Petrobras Securities Litigation

193 F. Supp. 3d 313, 94 Fed. R. Serv. 3d 1640, 2016 U.S. Dist. LEXIS 82426, 2016 WL 3619424
District Court, S.D. New York·Decided June 24, 2016·No. 14-cv-9662 (JSR)·Published·Cited by 3 cases

Opinion

MEMORANDUM ORDER

JED S. RAKOFF, United States District Judge.

Defendants in this consolidated class action and numerous parallel individual actions seek a stay of all proceedings in all these actions until the Court of Appeals for the Second Circuit resolves their interlocutory appeal on the issue of class certification in the class action. Plaintiffs in both the class action and the individual actions oppose. Upon consideration of the parties’ letter briefing, which will be docketed with this Order, the Court denies defendants’ request for the reasons that follow, not least of which is the severe burden it will impose on this Court in managing a complex litigation of which the class action is but one, arguably secondary piece.

The general details of this case are set forth in the Court’s Opinion dated July 30, 2015, familiarity with which is here presumed. In brief, plaintiffs allege that defendant Petróleo Brasileiro S.A.—Petro-bras (“Petrobras”) was at the center of a multi-year, multi-billion dollar bribery and kickback scheme, in connection with which defendants, including various former officers and directors of Petrobras and its subsidiaries (the “Individual Defendants”), Petrobras’s independent auditor, Pricewat-erhouseCoopers Auditores Independentes (“PwC”), and the various underwriters of Petrobras’s debt offerings (the “Underwriter Defendants”), made false and misleading statements in violation of the Securities Act of 1933 (the “Securities Act”) and the Securities Exchange Act of 1934 (the “Exchange Act”).

On February 2, 2016, this Court certified two classés. See Opinion and Order dated Feb. 2, 2016, ECF No. 428. Beforehand, however, no fewer than 27 substantial entities, such as pension funds, institutional investors, and others, had “opted out” of the class action and brought their own, individual actions. Defendants, pursuant to Fed. R. Civ. P. 23(f), filed a motion in the Second Circuit for leave to- appeal from the class certification. On June 15, 2016, the Second Circuit granted' defendants’ Rule 23(f) petition and expedited their appeal. See Order dated June 15, 2016, Petroleo Brasileiro S.A. Petrobras v. Universities Superannuation Scheme Ltd., No. 16-463, 31 FCC Rcd. 3909 (2d Cir. June 15, 2016), ECF No. 120. None of this directly related, however, to the 27 parallel individual actions. Nevertheless, defendants now request a stay of proceedings in all these consolidated actions.

Although Fed. R, Civ. P. 23(f) allows a court of appeals to permit an appeal from an order, granting class certification, “[a]n appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.” Under the “traditional” standard for a stay, courts consider four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 426, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 [316]*316L.Ed.2d 724 (1987)). “The party requesting a stay bears the burden of showing that the circumstances justify [one].” Nken, 556 U.S. at 434, 129 S.Ct. 1749. In addition, in the Rule 23(f) context, the Second Circuit has stated that “a stay will not issue unless the likelihood of error on the part of the district court tips the balance of hardships in favor of the party seeking the stay.” Sumitomo Copper Litig. v. Credit Lyonnais Rouse, Ltd., 262 F.3d 134, 140 (2d Cir.2001).

Even if viewed solely in terms of the class action itself, a stay would not meet this standard. But when the stay request is coupled to a request to derail the entire litigation while the Second Circuit considers an issue that only relates to the class action, the arguments for a stay here become even less persuasive.

As to the class action, the first Nken factor is indeterminate here because this Court does not know the Second Circuit’s reasons for granting defendants’ petition. Defendants’ petition raised two issues: first, whether the certification of global classes violates the implicit and express requirements of Fed. R. Civ. P. 23 in light of Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010), and, second, whether plaintiffs satisfied their evidentiary burden to invoke the presumption of reliance under Basic Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). The Second Circuit generally only grants a Rule 23(f) petition when “(1) ... the certification order will effectively terminate the litigation and there has been a substantial showing that the district court’s decision is questionable, or (2) [when] the certification order implicates a legal question about which there is a compelling need for immediate resolution,” Sumitomo, 262 F.3d at 139. Here, the second issue raised by defendants is already the subject of two pending appeals before the Second Circuit, see In re Goldman Sachs Group, Inc., No. 16-250; Strougo v. Barclays PLC, No. 16-450, and so the certification may well have implicated a pressing legal question, which would not bear on defendants’ likelihood of success. But since this is just a matter of speculation, the first Nken factor weighs in favor of neither party.

The second Nken factor weighs in favor of plaintiffs because, even as to the class action itself, defendants will not be irreparably injured if a stay does not issue. Defendants claim that they will be injured in several ways. To begin with, defendants argue that, if the Second Circuit determines that this Court erred on the Morrison issue, the class action “may need to be retried in its entirety.” Defendants’ Letter dated June 22, 2016, at 2. But defendants do not explain why this would be the case. Were the class to be decertified on Morrison grounds, the named class plaintiffs, who are themselves large entities, represent that they would proceed as individual plaintiffs on their own sizeable claims even without representing the classes, and would therefore continue to trial (along with the 27 large opt-out entities) on what would be largely the same issues regardless of class certification.1 As such, defendants would not be irreparably injured without a stay, regardless of the Second Circuit’s ultimate resolution of the Morrison issue.

[317]*317Defendants also argue that, if the Second Circuit determines that this Court erred on the presumption of reliance issue, the scope of the trial will be significantly altered because “whole swaths of alleged misstatements that no individual or class plaintiff claims to have actually relied on would be eliminated.” Defendants’ Letter dated June 22, 2016, at 2. This is not correct.

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In re Petrobras Securities Litigation, 193 F. Supp. 3d 313, 94 Fed. R. Serv. 3d 1640, 2016 U.S. Dist. LEXIS 82426, 2016 WL 3619424 (S.D.N.Y. 2016).

193 F. Supp. 3d 313 (In re Petrobras Securities Litigation) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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