In re Ribozyme Pharmaceuticals, Inc. Securities Litigation

192 F.R.D. 656, 2000 WL 533429
CourtDistrict Court, D. Colorado
DecidedMay 1, 2000
DocketNos. CIV. A. 99-B-2235, CIV. A. 99-B-2423, CIV. A. 00-B-02, CIV. A. 00-B-017
StatusPublished
Cited by24 cases

This text of 192 F.R.D. 656 (In re Ribozyme Pharmaceuticals, Inc. Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Ribozyme Pharmaceuticals, Inc. Securities Litigation, 192 F.R.D. 656, 2000 WL 533429 (D. Colo. 2000).

Opinion

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

This Order comes upon cross-motions for appointment of lead plaintiffs and lead counsel. Oral argument was heard on April 20, 2000. For the reasons set forth below, I grant the “Ribozyme Shareholders Group’s” motion for appointment of lead plaintiffs and lead counsel. The lead plaintiffs, therefore, are Mark Adler, Mitchell Gilbert, Barbara Brierre, and David Fasse/Jaqueline Jackson (jointly). Accordingly, I deny the motion of the “Ribozyme Lead Plaintiffs.”

I. Background

This is a class action on behalf of all persons who purchased or otherwise acquired the common stock of Ribozyme Pharmaceuticals, Inc. (“Ribozyme”) between the close of trading on November 15, 1999, and the close of trading on November 17,1999. The Plaintiffs claim that an “overstated,” “misleading,” and “premature” November 15 press release artificially raised the price of Ribozyme shares on November 16, 1999. The press release addressed a drug developed by Ribozyme called Angiozyme(TM). As a result of Ribozyme’s allegedly deceptive and illegal conduct, Plaintiffs purchased the shares at grossly inflated prices. Had they been aware of the company’s true condition, they allege they would have bought no shares at all. The price of Ribozyme’s common stock plummeted from a class period high of $22 per share to $9.3125 per share. Plaintiffs bring the following claims for relief: violation of § 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder; and violation of § 20(a) of the Exchange Act against Defendant Christoffersen.

Two groups of plaintiffs move to be appointed lead plaintiffs and for approval of their selected lead counsel. The first group, self-titled “Ribozyme Lead Plaintiffs,” is represented by Dyer Donnelly and Wolf Haldenstein, and is comprised of two plaintiffs: John Heisey and Ron Ishibashi. The second group, self-titled “Ribozyme Shareholders Group,” is represented by Hill & Robbins, Harold B. Obstfeld, and Beatie and Osborn. This second group is made up of four named members: Mark Adler, Mitchell Gilbert, Barbara Brierre, and David Fasse/Jaqueline Jackson (jointly).

II. Requirements for Appointment of Lead Plaintiffs

Section 21D(a)(3)(B) of the Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act of 1995 (“PSLRA”), establishes a procedure that governs the appointment of lead plaintiffs in “each private action arising under [the Exchange Act] that is brought as a plaintiff class action pursuant to the Federal Rules of Civil Procedure.” 15 U.S.C. § 78u-4(a)(1).

First, the plaintiff who files the initial action must publish notice to the class, within 20 days of filing the action, informing class members of their right to file a motion for appointment as lead plaintiff(s). 15 U.S.C. § 78u-4(a)(3)(A)(i). Here, the plaintiff in the Adler action published the notice on November 23,1999. Within 60 days after this publication, any person or group of persons who are members of the proposed class could apply to the Court for appointment as lead plaintiff, whether or not they have previously filed a complaint in the action. 15 U.S.C. § 78u-4(a)(3)(A) and (B).

Second, the PSLRA provides that, within 90 days of publication of the notice, the Court shall consider any motion made by a class member and shall appoint as lead plaintiff the member or members of the class that the Court determines to be most capable of adequately representing the interests of class [658]*658members. 15 U.S.C. § 78u-4(a)(3)(B). In determining the “most adequate plaintiff,” the PSLRA provides the following rebuttable presumption:

[T]he court shall adopt a presumption that the most adequate plaintiff in any private action arising under this chapter is the person or group of persons that—
(aa) has either filed the complaint or made a motion in response to a notice ...;
(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.
The presumption described ... may be rebutted only upon proof by a member of the purported plaintiff class that the presumptively 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.

15 U.S.C. § 78u-4(a)(3)(B)(iii).

A. Both Plaintiff Groups Satisfy the Requirements Under the PSLRA §§ (aa) and (cc) and Rule 23

The time period in which class members may move to be appointed lead plaintiffs expired on January 21, 1999. Both plaintiff groups timely moved for appointment. Furthermore, both groups have signed sworn certifications stating that they have reviewed the complaints and are willing to serve as representative parties on behalf of the class. Both groups have also selected and retained experienced and competent counsel to represent them and the class. All firms involved submitted their “resumes” and show that they are highly competent to undertake these matters. Neither group contests that the other group has not satisfied the rebuttable presumption requirement of subsection (aa).

Likewise, neither group contends that the other group has not satisfied the requirement of subsection (cc), invoking Rule 23. According to the PSLRA, the lead plaintiffs must “otherwise satisffy] the requirements of Rule 23 of the Federal Rules of Civil Procedure.” Rule 23(a) provides that a party may serve as a class representative only if four requirements are satisfied:

(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.

Rule 23(a). Of these four prerequisites to class certification, only two — typicality and adequacy — directly address personal characteristics of a class representative.

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Bluebook (online)
192 F.R.D. 656, 2000 WL 533429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ribozyme-pharmaceuticals-inc-securities-litigation-cod-2000.