Johnson v. Tellabs, Inc.

214 F.R.D. 225, 2002 U.S. Dist. LEXIS 18394, 2002 WL 31163670
CourtDistrict Court, N.D. Illinois
DecidedSeptember 27, 2002
DocketNo. 02 C 4356
StatusPublished
Cited by8 cases

This text of 214 F.R.D. 225 (Johnson v. Tellabs, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Tellabs, Inc., 214 F.R.D. 225, 2002 U.S. Dist. LEXIS 18394, 2002 WL 31163670 (N.D. Ill. 2002).

Opinion

MEMORANDUM OPINION AND ORDER

ST. EVE, District Judge.

This is a complex securities fraud case brought as a putative class action against Tellabs, Inc., Michael Birck, and Richard C. Notebaert.1 The case involves alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5. The purported class includes all persons who purchased Tellabs stock during the approximate six month period from December 11, 2000 through June 19, 2001. Four plaintiffs have filed motions seeking appointment as lead plaintiff and lead counsel in this action: (1) Makor Issues & Rights, Ltd. (“Makor Issues”); (2) the Bordelove Proposed Lead Plaintiffs (the “Bordelove Plaintiffs”); (3) the Carrier Group; and (4) Daniel Dawdy.

On September 17, 2002, the parties appeared before the Court on their motions seeking appointment as lead plaintiff and approval of lead counsel. At that time, the Court directed each party to supplement their motions with additional information concerning their suitability as lead plaintiff and their selection for lead counsel, including: (1) the total shares of Tellabs stock purchased during the proposed class period; (2) the net shares of Tellabs stock they purchased during the proposed class period; (3) the net amounts spent on Tellabs stock during the proposed class period; (4) the amount of losses suffered during the class period; (5) anticipated fees from proposed lead counsel; and (6) a description from proposed lead counsel of anticipated staffing. Pursuant to the Court’s order, Makor Issues and the Bordelove Plaintiffs made supplemental filings with the requested information. The Carrier Group withdrew its application, and Daniel Dawdy failed to submit the supplemental information.

For the reasons set forth below, the Court grants Makor Issues’ motion to serve as lead plaintiff, and approves Makor Issues’ selection of Millberg Weiss Bershad Hynes & Lerach LLP as lead counsel and Miller Faucher and Cafferty LLP as liaison counsel.

ANALYSIS

I. SELECTION OF LEAD PLAINTIFF.

The Private Securities Litigation Reform Act of 1995 (“PSLRA”) provides guidelines for the appointment of a lead plaintiff in a securities class action. The PSLRA requires that the Court “appoint as a lead plaintiff the member or members of the purported plaintiff class that the court determines to be most capable of adequately representing the interests of the class member.” 15 U.S.C. § 78u-4(a)(3)(B)(i).

The PSLRA establishes a rebuttable presumption that the “most adequate plaintiff’ is the one who “has either filed the complaint or made a motion in response to a notice,” “has the largest financial interest in the relief sought,” and “otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure.” 15 U.S.C. 78u-4(a)(3)(B)(iii)(aa); (bb); and (cc). This presumption may be rebutted, however, if a member of the purported class establishes that the “presumptively most adequate plain[228]*228tiff will not fairly and adequately protect the interests of the class or is subject to unique defenses that render such plaintiff incapable of adequately representing the class.” 15 U.S.C. § 78u-4(a)(3)(B)(iv).

In this case, Makor Issues most sufficiently meets the requirement for lead plaintiff under the PSLRA and is therefore appointed as lead counsel. Mayo v. Apropos Technology, Inc., No. 01 C 8406, 2002 WL 193393 at *3-4 (N.D.Ill. Feb.7, 2002).

A. Timely Filings.

On July 2, 2002, the plaintiff published the required notice informing the class members of their right to file a motion for appointment as lead plaintiff, and thus, motions for appointment as lead counsel were due by September 3, 2002. See 15 U.S.C. 77z-l(a)(3)(A)(i)(II). Makor Issues filed its motion for appointment as lead plaintiff on September 3, 2002, and its motion was, therefore, timely.

B. Largest Financial Interest.

Based on the present record, Makor Issues has the largest financial interest in the relief sought. Specifically, Makor Issues contends that it purchased 237,846 shares of Tellabs stock during the purported class period. The total purchase price for these shares was $6,687,713. In contrast, the Bordelove plaintiffs purchased 18,500 shares of Tellabs stock at a total purchase price of $679,288. In addition, Makor Issues claims losses of $1,072,364 from its purchase of Tellabs stock during this period, compared to the Borde-love Plaintiffs claimed reported losses of $386,016.2 Because it purchased more shares, expending more money and has the greatest claimed losses, Makor Issues is the plaintiff with the largest financial interest in the case.

C. The Requirements of Rule 23.

Finally, Makor Issues has also satisfied its burden by making a preliminary showing that it satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure. See 15 U.S.C. 78u-M(a)(3)(B)(iii)(I)(cc). Rule 23(a) provides that a party may serve as a class representative “only if: (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 and 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). In selecting the lead plaintiff under the PSLRA, however, typicality and adequacy of representation are the only relevant considerations. Lax v. First Merchants Acceptance Corp., 1997 WL 461036 at *6 (N.D.Ill. Aug.11, 1997) (‘“[a] wide-ranging analysis under Rule 23 is not appropriate and should be left for consideration of a motion for class certification. This inquiry, therefore, focuses on ... typicality and adequacy.’ ”) (brackets in original; citation omitted).

Under Rule 23(a), the plaintiffs claims are typical if they “arise[] from the same event or practice or course of conduct that gives rise to the claims of class members and his or her claims are based on the same legal theory.” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir.1992) (quotations omitted). The claims of the class representative need not be identical to satisfy the typicality requirement. Typicality exists, however, even if there are some factual distinctions between the claims of the named plaintiff and those of other class members.

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214 F.R.D. 225, 2002 U.S. Dist. LEXIS 18394, 2002 WL 31163670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-tellabs-inc-ilnd-2002.