In re Pfizer Inc. Securities Litigation

282 F.R.D. 38, 2012 WL 1059671
CourtDistrict Court, S.D. New York
DecidedMarch 29, 2012
DocketNos. 04 Civ. 9866(LTS)(HBP), 05 MD 1688(LTS)
StatusPublished
Cited by26 cases

This text of 282 F.R.D. 38 (In re Pfizer Inc. 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 Pfizer Inc. Securities Litigation, 282 F.R.D. 38, 2012 WL 1059671 (S.D.N.Y. 2012).

Opinion

Opinion

LAURA TAYLOR SWAIN, District Judge.

In these putative class actions that have been consolidated in this Court by order of the Judicial Panel of Multidistrict Litigation, Lead Plaintiff Teachers’ Retirement System of Louisiana (“TRSL”) brings this action on behalf of investors (“Plaintiffs”) who purchased or acquired Pfizer, Inc. (“Pfizer”) stock between October 31, 2000, and October 19, 2005 (the “Class Period”), against [42]*42Pfizer and corporate officers Henry McKin-nell, John LaMattina, Karen Katen, Joseph Feczko, and Gail Cawkwell (together, the “Individual Defendants” and, with Pfizer, “Defendants”), Plaintiffs allege that Defendants violated the federal securities laws by concealing the results of studies concerning two Pfizer drugs, Celebrex and Bextra, and making misstatements and omissions in their public filings and statements concerning the company. Now before the Court is Plaintiffs’ motion for: 1) certification as a class action, with a proposed main class consisting of all persons who purchased or otherwise acquired Pfizer stock between October 31, 2000 and October 19, 2005 (the “Class,” and the “Class Period”); 2) certification of a sub-class consisting of all persons who purchased stock contemporaneously with sales of Pfizer stock by Individual Defendants on certain dates (the “20A Subclass”); 3) appointment of TRSL and named plaintiffs Christine Fleckles (“Fleckles”), Julie Perusse (“Perusse”) and Alden Chace (“Chace”) (together, the “Individual Plaintiffs” and, with TRSL, the “Proposed Class Representatives”) as class representatives; and 4) appointment of Grant & Eisenhofer as Class Counsel. The Court has reviewed thoroughly all of the parties’ submissions and, for the following reasons, Plaintiffs’ motion is granted in its entirety.

Background

Between December 15, 2004, and June 21, 2005, several securities fraud actions were filed against Pfizer, alleging that Pfizer and its officers and directors had violated Sections 10(b), 20(a), and 20A of the Securities Exchange Act of 1934 by making material misstatements and omissions concerning the safety of two drugs, Celebrex and Bextra. On June 16, 2005, the Judicial Panel on Mul-tidistrict Litigation consolidated a total of 29 of these related actions for pretrial proceedings in the Southern District of New York, as In re: Pfizer Inc. Securities, Derivative & ERISA Litigation, 05 MD 01688. On October 21, 2005, Judge Richard Owen appointed TRSL as Lead Plaintiff, and Grant & Eisen-hofer as Lead Counsel in the securities actions. Kessler Topaz Meltzer & Check, LLP (“Kessler Topaz”), formerly known as Schiff-rin & Barroway, serves as additional counsel.

On February 16, 2006, TRSL filed a Consolidated Class Action Complaint (“CCAC”). Defendants moved to dismiss the CCAC and, on July 1, 2008, the Court granted in part and denied in part the motion to dismiss (the “July Opinion”). In particular, the Court relied on statements in the CCAC allegedly made by four named former Pharmacia employees (the “Quoted Former Employees”), to find that Plaintiffs had adequately pleaded scienter. On July 16, 2008, Defendants filed a motion for reconsideration, arguing that the Court erred in finding that Plaintiffs had adequately pleaded scienter. The Court denied this first motion for reconsideration on September 4, 2008.

The Court subsequently directed the parties to conduct discovery, in order to determine whether reliable scientific evidence existed during the relevant period that showed that Celebrex or Bextra was associated with increased cardiovascular risk. After the parties had exchanged substantial amounts of expert discovery, Defendants moved under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to preclude Lead Plaintiffs from offering the testimony or opinions of their experts. Lead Plaintiff similarly move to preclude one of Defendants’ experts from offering testimony. In October 2009, the Court held a five-day Daubert hearing. Following the hearing, the Court denied the parties’ respective motions. Discovery continued, with both parties obtaining large numbers of documents and conducting multiple depositions.

Lead Plaintiff filed this motion for class certification on March 16, 2011. While this motion was pending, Defendants filed a second motion for reconsideration of the Court’s July Opinion and dismissal of the CCAC, based on new evidence that Defendants contended showed that the statements attributed to the Quoted Former Employees in the CCAC were not accurately presented and were insufficient to plead scienter. On March 22, 2012, the Court denied that motion for reconsideration. Plaintiffs also moved for leave to amend the complaint, seeking to [43]*43conform their pleadings to the evidence produced in discovery. The Court granted Plaintiffs’ motion on March 22,2012.

Familiarity with the facts and arguments raised in Defendants’ Motion for Reconsideration and Plaintiffs’ Motion for Leave to Amend, both of which involved issues that are also raised in the instant motion practice, is presumed.

DISCUSSION

I. Standard of Review

To certify a class, the Court must find, by a preponderance of the evidence, that the proposed class action “meets both the preconditions of Rule 23(a) and falls into one of the categories found in Rule 23(b).” Koss v. Wackenhut Corp., No. 03 Civ. 7679, 2009 WL 928087 (S.D.N.Y. Mar. 30, 2009); see also In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 41-42 (2d Cir.2006). Rule 23 is not a “mere pleading standard”; rather, “a party seeking class certification must affirmatively demonstrate his compliance with the Rule.” Wal-Mart Stores, Inc. v. Dukes, - U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). Although district courts are “afforded substantial leeway in deciding issues of class certification,” Attenborough v. Constr. & Gen. Bldg. Laborers’ Local 79, 238 F.R.D. 82, 92 (S.D.N.Y.2006), a court “may not certify a class without making a ruling that each Rule 23 requirement is met ... [and] all ... evidence must be assessed as with any other threshold issue.” McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 221 (2d Cir.2008).

II. Rule 23(a) requirements

A class may be certified only if it satisfies the following prerequisites: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a).

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