In re Royal Ahold N.V. Securities & Erisa Litigation

219 F.R.D. 343, 2003 U.S. Dist. LEXIS 24064, 2003 WL 23185858
CourtDistrict Court, D. Maryland
DecidedNovember 4, 2003
DocketNo. CIV. 1:03-MD-01539
StatusPublished
Cited by15 cases

This text of 219 F.R.D. 343 (In re Royal Ahold N.V. Securities & Erisa Litigation) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Royal Ahold N.V. Securities & Erisa Litigation, 219 F.R.D. 343, 2003 U.S. Dist. LEXIS 24064, 2003 WL 23185858 (D. Md. 2003).

Opinion

MEMORANDUM

BLAKE, District Judge.

The motions before the court are for the appointment of lead plaintiff in a securities class action, and for approval of the selected lead plaintiffs choice of counsel. The' question to be decided is which lead plaintiff movant satisfies the requirements set forth in the Private Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u-4(a)(3).

On February 24, 2003, Koninklijke Ahold N.V. (“Royal Ahold”) disclosed to the public that it had overstated its earnings for 2001 and its expected earnings for 2002 by over $500 million.1 The company also announced that certain transactions in its Argentine Disco unit were legally suspect. As a result of this news, the price of Royal Ahold securities plummeted. The Amsterdam public prosecutor opened a criminal investigation into Royal Ahold’s activities after raiding its headquarters, and the U.S. Department of Justice and the SEC began their own investigation after learning that Royal Ahold’s subsidiary, U.S. Foodservice, Inc., located in Columbia, Maryland, allegedly used promotional allowances to inflate profit.

Shortly after Royal Ahold’s announcement, a number of class action lawsuits were filed in several judicial districts on behalf of purchasers of Royal Ahold securities.2 The complaints alleged that Royal Ahold violated Sections 10(b) and 20(a) of the Securities and Exchange Act, 15 U.S.C. §§ 78j(b) and 78t(a), as well as Rule 10b-5, by issuing a series of false and misleading statements concerning its financial condition between early to mid-2001 and February 24, 2003.3

[348]*348On June 18, 2003, the Judicial Panel on Multidistriet Litigation (“MDL Panel”) entered an Order transferring to the District of Maryland twenty-one class action securities and ERISA actions for coordinated or consolidated pretrial proceedings, pursuant to 28 U.S.C. § 1407. Since then, additional related actions also have been transferred here.4 Briefing resumed on the motions of several groups of plaintiffs to be appointed lead plaintiff, pursuant to the PSLRA. Oral argument was heard on September 26, 2003. For the reasons explained below, the securities fraud actions will be consolidated, and the group consisting of The Public Employees Retirement Association of Colorado and Generic Trading of Philadelphia, LLC (“COPERA/Generic”) will be appointed lead plaintiff. Its selection of Entwistle & Cappucci LLP as counsel will be approved.

Preliminarily, the court must address the question of consolidation. The PSLRA requires that if more than one action on behalf of a class assei'ting substantially the same claim has been filed, and any party seeks to consolidate those actions, the court must decide the question of consolidation before turning to the appointment of a lead plaintiff. 15 U.S.C. 78u-4(a)(3)(B)(ii). The transfer by the MDL Panel was ordered in response to the motions of plaintiffs in eight actions brought in the Eastern District of Virginia to consolidate and coordinate the securities and ERISA actions for pre-trial purposes. At that time, none of the responding parties objected. In deciding whether to consolidate the securities actions, the court must apply Fed.R.Civ.P. 42 and determine whether the risks of prejudice and confusion from consolidation are outweighed by the risk of inconsistent adjudications, the burden on the parties, witnesses, and courts posed by multiple lawsuits, the length of time required to conclude multiple lawsuits, and the relative expense to all concerned. In re MicroStrategy Sec. Litig., 110 F.Supp.2d 427, 431 (E.D.Va.2000) (citing Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 193 (4th Cir.1982)). Consolidation is often appropriate in the case of multiple securities fraud actions that are based on the same public statements and reports. MicroStrategy, 110 F.Supp.2d at 431. Differences in class periods, parties, or damages among the suits do not necessarily defeat consolidation, so long as the essential claims and facts alleged in each case are similar. Id. In light of these principles, consolidation is appropriate here, where all plaintiffs base their losses on the same overstatements and inflation of profits alleged to have been made by Royal Ahold. Any differences in class period length or damages do not detract from the fact that all the actions involve common factual questions and allegations.

Once the actions are consolidated, the court is instructed by the PSLRA to appoint as lead plaintiff “the member or members of the purported plaintiff class” that the court finds “most capable of adequately representing the interests of class members.” 15 U.S.C. § 78u-4(a)(3)(B)(i). The statute creates a rebuttable presumption that the most adequate plaintiff is the person or group of persons that (1) has filed the complaint or made a motion for appointment in response to a notice to class members about the pendency of the suit; (2) has the “largest financial interest in the relief sought by the class”; and (3) otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure. § 78u — 4(a)(3)(B)(iii)(I). The presumption may be rebutted by proof from another class member that the presumptively most adequate plaintiff either (1) will not fairly and adequately protect the interests of the class; or (2) is subject to “unique defenses” that make that plaintiff incapable of adequately representing the class. § 78u-4(a)(3)(B)(iii)(II); see also Koos v. First Nat’l Bank of Peoria, 496 F.2d 1162, 1164 (7th Cir.1974) (holding that a named plaintiff is not a proper class representative “[w]here it is predictable that a major focus of the litigation will be on an arguable defense unique to the named plaintiff or a small subclass”).

At the hearing, the three movants with the most substantial claims to be appointed lead [349]*349plaintiff were Union Asset Management Holding AG and the General Retirement System of Detroit (“Union” and “Detroit General”); Central States, Southeast and Southwest Areas Pension Fund and SBA Artsenpensioenefondsen (“Central States” and “SBA”); and COPERA/Generic.5 All of the movants satisfied the requirement of having filed a complaint or filed a timely motion for appointment.

Which proposed lead plaintiff has the largest financial interest is a matter of some disagreement.

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Bluebook (online)
219 F.R.D. 343, 2003 U.S. Dist. LEXIS 24064, 2003 WL 23185858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-royal-ahold-nv-securities-erisa-litigation-mdd-2003.