Public Employees' Retirement System v. Millennial Media, Inc.

87 F. Supp. 3d 563
CourtDistrict Court, S.D. New York
DecidedFebruary 10, 2015
DocketNos. 14 Civ. 7923(PAE), 14 Civ. 8330 (PAE)
StatusPublished
Cited by12 cases

This text of 87 F. Supp. 3d 563 (Public Employees' Retirement System v. Millennial Media, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Public Employees' Retirement System v. Millennial Media, Inc., 87 F. Supp. 3d 563 (S.D.N.Y. 2015).

Opinion

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

In fall 2014, the above two putative class actions were filed, under the federal securities laws, on behalf of all purchasers of Millennial Media, Inc. (“MM”) securities between March 28, 2012 and May 7, 2014. In each, plaintiffs claim that MM and the individual defendants (directors, officers, and executives of MM) made false and misleading statements about the company’s technological capacities and outlook, which artificially inflated the prices of MM stock. They further allege that, when the stock’s price later dropped sharply over a series of dates, harming shareholders, it did so in response to disclosures as to MM’s disappointing earnings and its deteriorating outlook, which operated as corrective disclosures of MM’s earlier false and misleading statements.

Pending before the Court are two sets of motions. One, which is unopposed, is to consolidate these related actions. The other consists of motions from five investors, each seeking appointment as lead plaintiff (or co-lead plaintiff) and appointment of their respective attorneys as lead counsel (or co-lead counsel). These five movants are: (1) the Public Employees’ Retirement System of Mississippi (“Mississippi”), a pension plan; (2) the “Selz Funds,” four separate investment vehicles overseen by Bernard Selz (he is settlor, director, or managing member of each); (3) Marvin Christensen and Michelle Dayan (“Christensen”); (4) Chu-Ying Tou and Jien-Ning Kang (“Kang”); and (5) Travis Ostroviak (“Ostroviak”).1 Mississippi and the Selz Funds have also proposed to serve together as co-lead plaintiffs and to have their respective attorneys appointed as co-lead counsel.

For the reasons that follow, the Court (1) consolidates these two actions, (2) appoints Mississippi and the Selz Funds as co-lead plaintiffs, and (3) appoints as co-lead counsel the respective attorneys for Mississippi and for the Selz Funds: Bernstein Litowitz Berger & Grossman LLP, Labaton Sucharow LLP, and Gold Bennett Cera & Sidener LLP.

1. Background2

Defendant MM is a digital advertising company that provides services to developers and advertisers. Mississippi Compl. ¶¶ 5-6; Ostroviak Compl. ¶¶ 4-5. Its advertising services focus on the mobile computing segment. These include smart-phones that run the operating systems for the iPhone and the Android. Mississippi Compl. ¶ 5; Ostroviak Compl. ¶ 4.

Central to MM’s business model has been the promise that its technology “provides an easy and effective way for developers of applications for mobile devices to [567]*567integrate [MM’s] advertising mechanism into their software, and track and generate accurate reports of results for advertisers’ campaigns.” Mississippi Compl. ¶ 6; Os-troviak Compl. ¶ 5. Plaintiffs allege that, for years, MM publicly “touted its proprietary technology and data platform, referred to as ‘MYDAS,’ as a solution for both application developers and advertisers,” and touted MYDAS as enabling “(1) the easy and effective integration of Millennial Media advertising into mobile applications by developers; and (2) the flexible targeting and accurate reporting of advertising campaigns for advertisers.” Mississippi Compl. ¶7; Ostroviak Compl. ¶ 6.

Plaintiffs allege that MM’s statements in its public filings, and public statements by its executives, were materially false. They allege that, contrary to MM’s representations, MYDAS and its technological features “were either not yet functional or were not sufficiently functional to comport with them descriptions” as set forth in public filings. Mississippi Compl. ¶ 59; see also Ostroviak Compl. ¶ 90. As a result, MM’s products performed poorly; “the Company had little meaningful ability to track and report end-user clicks, leading to significant over-billing, which in turn led the Company’s core customers to abandon Millennial Media.” Mississippi Compl. ¶ 8(b); Ostroviak Compl. ¶ 7(b).

The class period spans from March 28, 2012 through May 7, 2014. Mississippi Compl. ¶ 1; Ostroviak Compl. ¶ 1. Several dates are significant to these motions.

On or about March 28, 2012, MM held its initial public offering (the “IPO”), through which it sold 11.7 million shares, yielding gross proceeds of $152 million. Mississippi Compl. ¶ 2; Ostroviak Compl. ¶ 2. On or about October 24, 2012, MM commenced a second stock offering (the “Secondary Offering”), through which it sold an additional 11.5 million shares, yielding gross proceeds of $162 million. Mississippi Compl. ¶ 2; Ostroviak Compl. ¶ 2. In connection with both of these offerings, MM filed a registration statement and a prospectus with the U.S. Securities and Exchange Commission (the “SEC”), in which it touted MYDAS’s capabilities. Mississippi Compl. ¶¶ 56-58; Ostroviak Compl. ¶¶ 29-81;- 45-47.

On February 19 and August 13, 2018, MM issued press releases announcing MM’s acquisitions of Metaresolver, Inc. and Jumptap, Inc., respectively. These announcements prompted MM’s share price to drop, because the need for these acquisitions was taken to reveal shortcomings with MM’s existing platform. Mississippi Compl. ¶¶ 9-10; Ostroviak Compl. ¶¶ 8-9.

On May 7, 2014 — the final day of the class period — after the markets closed, MM issued a press release reporting disappointing revenue for the first quarter of 2014 and projecting “dour revenue guidance for the coming quarter.... Additionally, the Company revealed that its Chief Financial Officer,” Michael Avon, would step down later that year. Mississippi Compl. ¶ 13; Ostroviak Compl. ¶ 12. The following day, MM’s stock price fell more than 37%. Mississippi Compl. ¶ 13; Os-troviak Compl. ¶ 12. In total, the stock price fell more than 86% during the class period. Mississippi Compl. ¶ 14; Ostrov-iak Compl. ¶ 13.

On September 30, 2014, Mississippi filed a Complaint, see 14 Civ. 7923, Dkt. 1, and published a notice of this action on Globe Newswire, a “widely circulated national business-oriented wire service,” Dkt. 45, Ex. A, at 4 (citing 15 U.S.C. § 78u-4(a)(3)(A)®). On October 17, 2014, Os-troviak filed a Complaint, as well. 14 Civ. 8330, Dkt. 1.

[568]*568II. Consolidation

A. Legal Standards

Federal Rule of Civil Procedure 42(a) provides that, “[i]f actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay.”

Rule 42(a) “empowers a trial judge to consolidate actions for trial when there are common questions of law or fact,” and where consolidation will avoid needless costs or delay. Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir.1990); see also Devlin v. Transp. Commc’ns Int’l Union, 175 F.3d 121, 130 (2d Cir.1999). “Typically, considerations of judicial economy favor consolidation, but ‘the benefits of efficiency can never be purchased at the cost of fairness.’ ” M & T Mortg. Corp. v. White, No. 04 Civ. 4775(WFK)(VVP), 2012 WL 715896, at *1 (E.D.N.Y. Feb. 14, 2012) (quoting Malcolm v.

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87 F. Supp. 3d 563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/public-employees-retirement-system-v-millennial-media-inc-nysd-2015.