Sallustro v. CannaVest Corp.

93 F. Supp. 3d 265, 2015 WL 1262253
CourtDistrict Court, S.D. New York
DecidedMarch 19, 2015
DocketNos. 14 Civ. 2900(PGG), 14 Civ. 3079(PGG)
StatusPublished
Cited by64 cases

This text of 93 F. Supp. 3d 265 (Sallustro v. CannaVest Corp.) 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
Sallustro v. CannaVest Corp., 93 F. Supp. 3d 265, 2015 WL 1262253 (S.D.N.Y. 2015).

Opinion

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, District Judge.

Pending before the Court are five motions to appoint lead plaintiff, approve lead counsel, and consolidate two putative class actions brought under the federal securities laws by shareholders of CannaVest Corp. (“CannaVest” or the “Company”). Sallustro v. CannaVest Corp., Case No. 14 Civ. 2900(PGG); Siciliano v. CannaVest Corp., Case No. 14 Civ. 3079(PGG).1 For the reasons stated below, these actions will be consolidated, Steve Schuek’s motion to be appointed lead plaintiff will be granted, and the four competing motions for lead plaintiff status will be denied.2

BACKGROUND

CannaVest is a publicly traded company headquartered in Las Vegas, Nevada whose shares are listed on the OTC Bulletin Board under the symbol “CANV.” (Cmplt. (Dkt. No. 2) ¶¶ 7-8) CarinaVest’s primary business is the manufacture, marketing, and sale of consumer products containing industrial hemp-based compounds, including the hemp plant extract eannabi-diol (“CBD”). (Id. ¶ 7)

On April 3, 2014, CannaVest filed a Form 8-K with the SEC stating that it had misreported its financial condition on Form 10-Qs for the quarters ending March 31, 2013, June 30, 2013, and September 30, 2013, and that it intended to issue corrective disclosures for those quarters. (Id. ¶ 28) In trading that day, shares of CannaVest stock fell $7.30 per share, or more than 20%, to close at $25.30 per share. (Id. ¶ 29)

On April 14, 2014, CannaVest filed an Amended Form 8-K in which it disclosed, inter alia, that it had overstated its goodwill by more than 1300% and its sales by more than 17%. (Id. ¶¶ 30, 32) After this second disclosure, the Company’s stock declined $4.49 per share, or 19.5%, to close at $18.51 per share. (Id. ¶ 31)

The complaints in these actions were filed on April 23, 2014 (the “Sallustro Complaint”) and April 29, 2014 (the “Siciliano Complaint”). The Class Period is defined in both complaints as May 20, 2013 through April 3, 2014. (Sallustro Cmplt. (Dkt. No. 2) ¶ 1; Siciliano Cmplt. (14 Civ. 3079, Dkt. No. 2) ¶ 1)

1. CONSOLIDATION

All movants, seek consolidation of these actions, and the Court has received no objection to the requests for consolidation.

[269]*269Fed.R.Civ.P. 42(a) provides that a district court may consolidate “actions before the court involv[ing] a common question of law or fact.” Fed.R.Civ.P. 42(a). “ ‘A determination on the issue of consolidation is left to the sound discretion of the Court,’ ” In re UBS Auction Rate Sec. Litig., No. 08 Civ. 2967(LMM), 2008 WL 2796592, at *1 (S.D.N.Y. July 16, 2008) (quoting Albert Fadern Trust v. Citigroup Inc., 239 F.Supp.2d 344, 347 (S.D.N.Y.2002)), and involves weighing considerations of convenience, judicial economy, and cost reduction while ensuring that the “paramount concern for a fair and impartial trial” is honored. Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir.1990).

Here, consolidation is plainly appropriate. Both cases arise from the same alleged misrepresentations made by Canna-Vest in its Form 10-Qs for the quarters ending March 31, 2013, June 30, 2013, and September 30, 2013. (Sallustro Cmplt. (Dkt. No. 2) ¶¶ 21-27; Siciliano Cmplt. (14 Civ. 3079, Dkt. No. 2) ¶¶20~ 26) Moreover, the parties assert similar claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and the complaints name the same defendants.3 (Sallustro Cmplt. (Dkt. No. 2) ¶¶ 1-2; Siciliano Cmplt. (14 Civ. 3079, Dkt. No. 2) ¶¶ 1-2) Accordingly, pursuant to Rule 42(a), these two actions — as well as any other related CannaVest class actions hereafter filed in or hereafter transferred to this Court — will be consolidated.

The actions shall be referred to collectively as In re: CannaVest Corp. Securities Litigation, No. 14 Civ. 2900(PGG) (the “Consolidated CannaVest Corp. Class Action”). The Clerk of Court shall file a copy of this Order in the separate file for each of the above-captioned CannaVest Corp. class action cases. Unless otherwise ordered by this Court, future filings in any CannaVest Corp. class action case herein consolidated shall be filed and docketed only under docket number 14 Civ. 2900(PGG). All counsel who have entered appearances in the above-captioned class action cases shall be deemed to have entered an appearance in the Consolidated CannaVest Corp. Class Action under the docket number 14 Civ. 2900(PGG). All motions for admission pro hac vice and all orders granting such motions in the above-captioned actions shall also be deemed filed in the Consolidated CannaVest Corp. Class Action under the docket number 14 Civ. 2900(PGG).

Counsel is directed to alert the Clerk of Court to the filing or transfer of any case that might properly be consolidated as part of this litigation. Any class action involving substantially related questions of law and fact hereafter filed in or transferred to this Court shall be consolidated under the master file number assigned to this case.

Every pleading filed in the Consolidated CannaVest Corp. Class Action under the docket number 14 Civ. 2900(PGG) shall bear the following caption:

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

IN RE: CANNAVEST CORP. SECURITIES LITIGATION

14 Civ. 2900(PGG)

[270]*270The Court’s consolidation order does not make any person, firm, or corporation a party to any action in which the person or entity has not been named, served, or added as such in accordance with the Federal Rules of Civil Procedure.

II. APPOINTMENT OF LEAD PLAINTIFF

A. Presumptive Lead Plaintiff: Largest Financial Interest
1. Legal Standard

The Private Securities Litigation Reform Act of 1995 (“PSLRA”) directs the Court to “appoint as 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 class members.” 15 U.S.C. § 78u-4(a)(3)(B)(i). The PSLRA creates a “[rjebuttable presumption” that “the most adequate plaintiff ... is the person or group of persons” that “has the largest financial interest in the relief sought by the class,” provided that such person or group “otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civií Procedure.’ ” Id. § 78u-4(a)(3)(B)(iii)(I)(aa)-(cc). This presumption may be rebutted upon a showing that the presumptive lead plaintiff “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.

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Bluebook (online)
93 F. Supp. 3d 265, 2015 WL 1262253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sallustro-v-cannavest-corp-nysd-2015.