Rabin v. John Doe Market Makers

254 F. Supp. 3d 754, 2015 U.S. Dist. LEXIS 77497
CourtDistrict Court, E.D. Pennsylvania
DecidedJune 16, 2015
DocketCivil Action No. 15-551
StatusPublished
Cited by4 cases

This text of 254 F. Supp. 3d 754 (Rabin v. John Doe Market Makers) 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
Rabin v. John Doe Market Makers, 254 F. Supp. 3d 754, 2015 U.S. Dist. LEXIS 77497 (E.D. Pa. 2015).

Opinion

MEMORANDUM

McHUGH, District Judge.

I. Introduction

Now before me in this purported securities class action are motions by two parties who wish to be appointed as lead plaintiff for a class of investors.

Plaintiff I. Stephen Rabin (“Rabin”) is an individual investor and filed the original Complaint in this action. He describes himself as “an attorney who actively invests in the options market and is familiar with securities markets.” Rabin’s Memorandum in Further Support of his Motion for Appointment as Lead Plaintiff at 10. Plaintiff Rabin’s Complaint alleges a complex conspiracy among certain market participants to use special market privileges to unfairly extract dividend payments from stocks. I will briefly summarize the extensive allegations in Rabin’s Complaint.

The Complaint focuses on alleged actions of certain “market makers.” A market maker is a dealer who plays a quasi-regulatory role in a market, promoting liquidity in the market by promising to be able to engage in transactions with other brokers or dealers at quoted prices. Com[757]*757plaint ¶ 1 n. 1; 17 C.F.R. § 240.15c3-1(c)(8). Market makers enjoy certain privileges because of their quasi-regulatory status.

The Complaint alleges the market makers used these privileges to unfairly manipulate certain options trades. As Plaintiffs put it,'“[a]n option is a contract to buy or sell a specific underlying security.” Complaint ¶ 15. A particular kind of option is called a “call;” it “gives the holder (the ‘buyer’) the right, but not the obligation, to buy 100 shares of the underlying security ... at a specified price.” Complaint ¶ 19. An entity may both sell and buy options. An entity that has sold more than it has bought has taken a “short” position; the reverse is a “long” position. Complaint ¶ 20. Sellers receive a premium fee for writing and selling an option. Complaint ¶ 21.

When a party exercises an option to acquire the security to which the option relates, she sends a notice to the Options Clearing Corporation (OCC). Complaint ¶ 24. The OCC randomly selects a broker/dealer that wrote the kind of option being exercised and assigns to the broker/dealer the obligation to satisfy the option. If a party has exercised an option and become an owner of a security within a certain minimum amount of time before that security pays a dividend, the party will receive the dividend.

According to the Complaint, some percentage of options holders regularly fail to exercise their options. Those options are not assigned by the OCC, and therefore some sellers are not required to deliver the security on which the unassigned option is based. Complaint ¶ 27. An option seller who does not have to deliver a security because the option was not assigned can collect a dividend paid by that security. The Complaint avers, “[t]he measure of these unexercised options is the contract’s ‘open interest.’ ” Complaint ¶ 27.

Certain market makers, the Complaint alleges, have used privileges provided by their status, such as the ability to simultaneously buy and sell the same numbers of options, to unfairly win a large share of the open interest. These market makers have allegedly executed transactions with each other buying and selling large numbers of options in matched trades. The trades are many times larger than the rest of the pool of outstanding options, and because of their disproportionate size, the large trades make it likely that the market makers will be assigned by the OCC most of the “open interest” and collect most of the security’s dividend while exposing themselves to little or no risk. Complaint ¶ 28.

Plaintiff Rabin argues that this practice injures “retail investors” such as himself who had also purchased options because their share of the “open interest” is diminished by the market makers’ large matched trades. Rabin argues that the market makers have violated federal securities laws and that the retail investors injured by the trades are a class entitled to relief.

II. Procedure

Rabin filed a Complaint alleging violations of Section 10(b) of the Exchange Act and Rule 10b-5 as well as unjust enrichment. The Private Securities Litigation Reform Act (PSLRA) required Rabin, after .filing the Complaint, to publicize a notice of the action and afford other potential members' of the purported class the opportunity to file their own motions to be appointed as lead plaintiff. 15 U.S.C. § 78u-4; Manual for Complex Litigation (Fourth) § 31.3 (2004). In this case, only one other party filed such a motion: Freshwater Global Alpha Fund, L.P. (“Freshwater”). Freshwater is an institutional investor. Plaintiff Rabin has also filed a motion to be appointed as lead [758]*758plaintiff for the class action. Both parties have also asked the court to appoint their current counsel as lead counsel for the class.

III. Discussion

The Third Circuit has explained that the PSLRA “establishes a two-step process for appointing a lead plaintiff: the court first identifies the presumptive lead plaintiff, and then determines whether any member of the putative class has rebutted the presumption.” In re Cendant Corp. Litig., 264 F.3d 201, 262 (3d Cir.2001).

a. Lead Plaintiff

i. The Presumptive Lead Plaintiff

Federal law identifies three requirements that a party must satisfy- to become the presumptive lead plaintiff. First, the party “has either filed the complaint or made a motion in response to a notice under subparagraph (A)(i);” the party “has the largest financial interest in the relief sought by the class; 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)(I). Both mov-ants here satisfy the first requirement. Rabin filed the original Complaint, and Freshwater, filed its motion for appointment as lead counsel in response to the notice that Rabin publicized. I must focus then on identifying the party with the greatest financial interest. Once I have identified the party with the largest financial interest, I must determine if that party also satisfies Rule 23’s requirements. If the party both has the greatest interest and satisfies Rule 23, that party will be the presumptive lead plaintiff. To make this determination, I “may and should consider the pleadings that have been filed, the movant’s application, and any other information that the court requires to be submitted.” Cendant, 264 F.3d at 264.

1. Financial Interest

Many factors can be relevant in determining the 'size of a party’s “financial interest in the relief sought by the class.” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)(bb). The Third Circuit in Cendant articulated three:

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Bluebook (online)
254 F. Supp. 3d 754, 2015 U.S. Dist. LEXIS 77497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rabin-v-john-doe-market-makers-paed-2015.