Pelletier v. Endo Int'l PLC

316 F. Supp. 3d 846
CourtDistrict Court, E.D. Pennsylvania
DecidedJune 19, 2018
DocketCIVIL ACTION NO. 17–5114
StatusPublished
Cited by4 cases

This text of 316 F. Supp. 3d 846 (Pelletier v. Endo Int'l PLC) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pelletier v. Endo Int'l PLC, 316 F. Supp. 3d 846 (E.D. Pa. 2018).

Opinion

Savage, District Judge

In this private securities fraud action, we must appoint lead plaintiffs and lead counsel under 15 U.S.C.A. § 78u-4. In doing so, we are confronted with two competing principles for determining the lead plaintiffs-the presumptive lead plaintiff rule and the preference for appointing institutional investors. We must also choose the appropriate method for calculating who has the larger financial interest.

Even if we use the measure proposed by the two individuals seeking appointment, their aggregate financial interest is only minimally greater than the institutional investor. Under these circumstances, we conclude the institutional investor preference outweighs the presumptive lead plaintiff rule.

On November 14, 2017, Alexandre Pelletier filed a class action complaint asserting that the defendants, Endo International plc, its former and present CEOs, and its CFO violated Sections 10(b) and *84820(a) of the Exchange Act, 15 U.S.C. §§ 78j(b) and 78t(a), and Rule 10b-5, 17 C.F.R. § 240.10b-5. The complaint alleges that Par Pharmaceutical Holdings, Inc. ("Par"), a wholly-owned subsidiary of Endo, conspired with several other pharmaceutical companies to fix generic drug prices in violation of the federal antitrust laws. It alleges that Endo and its officers made false or misleading public statements and failed to disclose or actively concealed material adverse facts about Endo's business, operations, prospects and revenue, artificially inflating Endo's share prices. The complaint asserts a fraud-on-the-market theory of loss causation, alleging that each of three corrective disclosures made on November 3, 2016,1 March 1, 2017,2 and October 31, 20173 caused the market value of Endo's securities to drop.

Contemporaneously with filing his complaint, Pelletier caused notice of the pending class action to be published on PR Newswire. On January 16, 2018, two motions for appointment of lead plaintiffs and lead counsel were filed. Wayne A. Wingard and Nathan Joseph Dole moved for appointment as lead plaintiffs, and the appointment of Pomerantz LLP as lead counsel, and Pribanic and Pribanic LLC as liaison counsel.4 Park Employees' Annuity and Benefit Fund of Chicago (the "Fund") moved for appointment as lead plaintiff and the appointment of Bleichmar Fonti & Auld LLP as lead counsel.5

Analysis

A court must appoint a lead plaintiff whom it "determines to be most capable of adequately representing the interests of class members." 15 U.S.C.A. § 78u-4(a)(3)(B)(i). Determining "the most adequate plaintiff" requires a two-step process. First, the court must identify the presumptive lead plaintiff, the person or group having the largest financial interest. Second, it then determines whether the presumption has been rebutted by any member of the putative class. In re Cendant Corp. Litig., 264 F.3d 201, 262 (3d Cir. 2001) (citing 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I) & (II) ).

There are three criteria for identifying the presumptive lead plaintiff. First, the person or group selected must either have filed the complaint or made a timely motion in response to the published notice of the pending class action. 15 U.S.C. § 78u-4(a)(3)(A)(i)(I) & (II), § 78u-4(a)(3)(B)(iii)(I) & (II) ). Second, the court must identify the movant having the "largest financial interest in the relief sought by the class." 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)(bb). Third, the party with the largest financial interest must satisfy the adequacy and the typicality requirements of Rule 23.6

There is no dispute that the movants satisfy the first and third criteria. The disputed issue is who has the larger financial interest. The movants calculate their respective financial interest differently.

Largest Financial Interest

The three relevant factors in the financial interest analysis are: (1) the number of shares purchased during the class period; (2) the total net funds expended by the plaintiffs during the class period; and (3) the approximate losses suffered by the plaintiffs. Cendant , 264 F.3d at 262 (citing Lax v. First Merch. Acceptance Corp. , Nos. 97 C 2715, et seq. , 1997 WL 461036, at *5 (N.D. Ill. Aug. 11, 1997) ;

*849In re Olsten Corp. Sec. Litig. , 3 F.Supp.2d 286, 295 (E.D.N.Y. 1998) (citing Lax for these factors).

Calculated under the Lax-Olsten factors approved by Cendant and using LIFO and FIFO accounting methods, Wingard and Dole together claim an aggregate loss of $118,603, and the Fund's loss at $112,536.7 Thus, under this method, it appears the Wingard-Dole group's aggregated loss is $6,000.00 greater than the Fund's.

The Fund argues that the loss causation formula used in Dura Pharm., Inc. v. Broudo , 544 U.S. 336, 346-47, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), is the appropriate calculus. According to this formula, only those losses that are proximately caused by the defendant's fraud are recoverable. Consequently, losses incurred before disclosure of the relevant misrepresentation are not included in recoverable loss.

We agree with the Fund. What the plaintiffs lost is what they may recover. Including losses that were incurred before any disclosure could not have been caused by any disclosures and are not recoverable. Thus, those shares are not included in the "largest financial interest" calculus.

Under the Dura

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Bluebook (online)
316 F. Supp. 3d 846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pelletier-v-endo-intl-plc-paed-2018.