Nesterenko v. Bolt Biotherapeutics, Inc.
This text of Nesterenko v. Bolt Biotherapeutics, Inc. (Nesterenko v. Bolt Biotherapeutics, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 OLEG NESTERENKO, Case No. 24-cv-03985-JSC Plaintiff, 8 ORDER RE: MOTION FOR 9 v. APPOINTMENT AS LEAD PLAINTIFF AND APPROVAL OF LEAD COUNSEL 10 BOLT BIOTHERAPEUTICS, INC., et al., Re: Dkt. No. 17 Defendants. 11 12 13 Plaintiff Oleg Nesterenko brings this putative securities class action against Defendant Bolt 14 Biotherapeutics, Inc. for making materially false and misleading statements and omissions in 15 violation of the Securities Exchange Act. (Dkt. No. 1.)1 Before the Court is Gabe Galioto’s 16 unopposed motion for appointment as lead plaintiff and approval of his selection of lead counsel. 17 (Dkt. No. 17.) Having carefully considered the briefing, the Court concludes oral argument is 18 unnecessary, seeCiv. L. R. 7-1(b), and GRANTS the unopposed motion. Mr. Galioto has 19 demonstrated the largest financial interest in the litigation and made a prima facieshowing he is 20 an adequate class representative. The hearing set for October 10, 2024 is vacated. 21 DISCUSSION 22 Plaintiff alleges two claims against Bolt and its top officials under §§ 10(b) and 20(a) of 23 the Securities Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5. (Dkt. No. 1 ¶ 1.) On July 2, 24 2024, pursuant to section 78u-4(a)(3)(A), Plaintiff’s counsel published a notice of the action. 25 (Dkt. No. 5-1.) Mr. Galioto seeks appointment as lead plaintiff pursuant to section 78u- 26 4(a)(3)(B)(i) and approval of his selection of counsel pursuant to section 78u-4(a)(3)(B)(v). (Dkt. 27 1 No. 17.) Defendants Bolt, Randall C. Schatzman, William P. Quinn, and Edith Perez filed a 2 statement of non-opposition. (Dkt. No. 21.) 3 I. APPOINTMENT AS LEAD PLAINTIFF 4 The Court must appoint “as lead plaintiff the member or members of the purported 5 plaintiff class that the court determines to be most capable of adequately representing the interests 6 of class members.” 15 U.S.C. § 78u-4(a)(3)(B)(i). The Exchange Act presumes “the most 7 adequate plaintiff” is the individual who (1) “has either filed the complaint or made a motion in 8 response to a notice”; (2) “has the largest financial interest in the relief sought by the class”; and 9 (3) “otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure.” 10 Id. § 78u-4(a)(3)(B)(iii)(I). This presumption “may be rebutted only upon proof by a member of 11 the purported plaintiff class that the presumptively most adequate plaintiff” (1) “will not fairly and 12 adequately protect the interests of the class; or” (2) “is subject to unique defenses that render such 13 plaintiff incapable of adequately representing the class.” Id. § 78u-4(a)(3)(B)(iii)(II). 14 Mr. Galioto filed a timely “motion in response to a notice” for appointment as lead 15 plaintiff, thereby satisfying the first element of the section 78u-4(a)(3)(B)(iii)(I) presumption. 16 (Dkt. No. 17.) No competing motions were filed. (Dkt. No. 22.) 17 The second element of the presumption is to be the plaintiff “who has the greatest financial 18 stake in the outcome of the case.” In re Cavanaugh, 306 F.3d 726, 729 (9th Cir. 2002) (quoting 19 15 U.S.C. § 78u-4(a)(3)(B)(i)). When there are multiple movants, “the court may select 20 accounting methods that are both rational and consistently applied” to determine which plaintiff 21 has the greatest financial stake. Id. at 730 n.4. Mr. Galioto incurred losses of approximately 22 $57,723 on his purchase of 10,000 shares of Bolt stock between February 5, 2021 and May 14, 23 2024 (the Class Period). (Dkt. No. 18-1 at 2.) No other party has come forward to assert a larger 24 stake. So, Mr. Galioto has satisfied the second element by showing the greatest financial stake in 25 the outcome of this case. 26 The final element of the presumption is to “otherwise satisf[y] the requirements of Rule 23 27 of the Federal Rules of Civil Procedure,” which demands “a prima facie showing of adequacy and 1 will adequately represent a class by answering two questions: (1) do the movant and its ‘counsel 2 have any conflicts of interest with other class members’ and (2) will the movant and its ‘counsel 3 prosecute the action vigorously on behalf of the class?’” Id. at 899-900 (quoting Ellis v. Costco 4 Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011)). “At this step, the process is not adversarial, 5 so the Rule 23 determination should be based on only the movant’s pleadings and declarations.” 6 Id. at 899. Mr. Galioto asserts “[t]here is no evidence of antagonism or conflict between [his] 7 interests and those of the Class.” (Dkt. No 17 at 13.) And given his “significant financial interest 8 in the claims,” Mr. Galioto attests he is “committed to ensuring the litigation is litigated as 9 zealously and efficiently as possible.” (Dkt. No. 18-4 at 3.) So, Mr. Galioto has fulfilled Rule 10 23’s adequacy requirement. 11 As to Rule 23’s typicality requirement, “[t]he test . . . is whether other members have the 12 same or similar injury, whether the action is based on conduct which is not unique to the named 13 plaintiffs, and whether other class members have been injured by the same course of conduct.” 14 Hessefort v. Super Micro Computer, Inc., 317 F. Supp. 3d 1056, 1061 (N.D. Cal. 2018). Mr. 15 Galioto contends that “like other Class members,” he “purchased or otherwise acquired Bolt 16 securities during the Class Period at prices alleged to have been artificially inflated by Defendants’ 17 misrepresentations or omissions and was damaged upon the disclosure of those misrepresentations 18 and/or omissions that drove Bolt’s share price downward.” (Dkt. No. 17 at 12-13.) Because Mr. 19 Galioto’s claims “are based on the same legal theory and arise from the same events and course of 20 conduct as the Class’s claims,” (Id. at 13), Mr. Galioto has fulfilled Rule 23’s typicality 21 requirement. See City of Dearborn Heights Act 345 Police & Fire Ret. Sys. v. Align Tech., Inc., 22 No. 12-CV-06039-LHK, 2013 WL 2368059, at *4 (N.D. Cal. May 29, 2013) (finding typicality 23 when, “like all other members of the purported class, the [plaintiff] purchased [Defendants’] 24 common stock during the Class Period, allegedly in reliance upon Defendants’ purported false and 25 misleading statements, and alleged[ly] suffered damages as a result.”). So, Mr. Galioto has 26 satisfied the presumption’s third element. 27 Because Mr. Galioto satisfies all three elements of § 78u-4(a)(3)(B)(iii)(I)’s presumption 1 adequate plaintiff. Accordingly, the Court APPOINTS Mr. Galioto as class representative. 2 II. APPROVAL OF SELECTION OF COUNSEL 3 Mr. Galioto selected Pomerantz LLP to serve as lead counsel for the class.2 (Dkt. Nos. 17 4 at 10; 18-4 at 2.) “[I]f the lead plaintiff has made a reasonable choice of counsel, the district court 5 should generally defer to that choice.” Cohen v. U.S. Dist. Ct. for N. Dist. of California, 586 F.3d 6 703, 712 (9th Cir. 2009). Accordingly, the Court APPOINTS Pomerantz LLP as lead counsel.
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