Stone v. Agnico-Eagle Mines Ltd.

280 F.R.D. 142, 2012 WL 386354
CourtDistrict Court, S.D. New York
DecidedFebruary 6, 2012
DocketNos. 11-CV-7968 (JPO), 11-CV-8466 (JPO)
StatusPublished
Cited by10 cases

This text of 280 F.R.D. 142 (Stone v. Agnico-Eagle Mines Ltd.) 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
Stone v. Agnico-Eagle Mines Ltd., 280 F.R.D. 142, 2012 WL 386354 (S.D.N.Y. 2012).

Opinion

MEMORANDUM AND ORDER

J. PAUL OETKEN, District Judge.

Before the Court are two putative class action suits brought on behalf of investors who claim to have suffered damages in connection with purchases of Agnico-Eagle Mines Ltd. (“AEM”) securities as a result of Defendants’ alleged misconduct in violation of the Securities Exchange Act of 1934 (the “Exchange Act”) and rules promulgated thereunder. On January 6, 2012, motions were filed by Randall Humphreys (No. 11 Civ. 7968, Dkt. No. 13) and Forsta APFonden (“API”) (No. 11 Civ. 7968, Dkt. No. 20) for consolidation of the above-captioned cases and, pursuant to Section 21D of the Private Securities Litigation Reform Act of 1995 (“PSLRA”), appointment as lead plaintiff and approval of proposed lead counsel.1 See 15 U.S.C. § 78u-4(a)(3)(B). On January 23, 2012, Humphreys and AP 1 filed opposition papers in response to each other’s motions, and on January 31, 2012, each filed reply papers.2

Humphreys’s response and reply papers present various arguments why API, despite having the largest interest of any movant in the relief sought in these cases, is inadequate to serve as lead plaintiff. The Court heard argument on Humphreys and API’s motions on February 2, 2012. For the reasons set for the below, the actions are consolidated, API is appointed lead plaintiff, and the firm of Bernstein Litowitz Berger & Grossmann LLP is approved as lead counsel.

1. Consolidation

A court may consolidate two more suits pursuant to Federal Rule of Civil Procedure 42(a) where the actions involve “a common question of law or fact.” Fed. R.Civ.P. 42(a); see also Devlin v. Transp. Commc’ns Int’l Union, 175 F.3d 121, 130 (2d Cir.1999). A trial court enjoys broad discretion to consolidate actions under Rule 42(a). Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir.1990) (citations omitted). A [144]*144court may consolidate cases “to avoid unnecessary costs or delay,” but “[considerations of convenience and economy must yield to a paramount concern for a fair and impartial trial.” Id. at 1284-85 (citations omitted).

Consolidation of these actions is appropriate under Rule 42(a) because the factual allegations and legal claims made in the complaints overlap and raise common questions of law and fact. See Devlin, 175 F.3d at 130. Both complaints assert causes of action under the Exchange Act in connection with allegedly false or materially misleading statements made on behalf of AEM. (Compare No. 11 Civ. 7968, Dkt. No. 1 at ¶ 51 (alleging that AEM’s “statements and filings during the Class Period were materially false and misleading because they failed to disclose and misrepresented that the Goldex Mine ... was experiencing significant structural problems that would eventually require the closing of the mine in October 2011”) with No. 11 Civ. 8466, Dkt. No. 1 at ¶2 (alleging that AEM “failed to disclose material adverse facts regarding the Company’s overall operational and financial condition that were caused by significant geo-physical problems in its mining operations and gold production at its Goldex mine located in Val d’Or, Quebec, Canada”)). The two complaints name exactly the same defendants. (No. 11 Civ. 7968, Dkt. No. 1 at ¶¶ 11-15; No. 11 Civ. 8466, Dkt. No. 1 at ¶¶ 11-15.) No one has opposed the motions to consolidate filed by Humphreys and API (along with several other former movants). For these reasons, the suits are hereby consolidated.

II. Appointment of Lead Plaintiff

The PSLRA instructs that a district court “shall 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). The PSLRA directs the Court to adopt the rebut-table presumption that the “most adequate” plaintiff is the person or group of persons that (1) filed the complaint or, as Humphreys and API each did here, made a motion in response to a notice of suit as outlined in the PSLRA, (2) has the largest financial interest in the relief sought by the class, and (3) otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure. Id. This presumption may be rebutted only upon “proof’ that the presumptively most adequate 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.” Id.

Humphreys asserts losses of approximately $3.4 million (No. 11 Civ. 7968, Dkt. No. 16-3 at 24), and API asserts losses of approximately $3.6 million (No. 11 Civ. 7968, Dkt. No. 22 at Ex. B). With the largest asserted interest in the relief sought by these cases, API is presumptively the most adequate plaintiff under the PSLRA, so long as it satisfies the requirements of Federal Rule of Civil Procedure 23. Humphreys raises several challenges to API’s appointment as lead plaintiff on the grounds that API lacks standing; that API’s purchases of AEM securities on the Toronto Stock Exchange in addition to its U.S. purchases may make API vulnerable to unique defenses; and that courts in API’s home country of Sweden may not enforce a ruling of this Court, making API atypical of the purported class. (No. 11 Civ. 7968, Dkt. No. 29.) Each of these arguments is addressed below.

A. Standing

Humphreys argues that API may lack standing to pursue claims on behalf of the class because the losses asserted in API’s certification (No. 11 Civ. 7968, Dkt. No. 22 at Ex. B) may not be losses of API itself but of API’s clients. That argument is entirely contradicted by the declaration of Jan Matej, API’s General Counsel. (No. 11 Civ. 7968, Dkt. No. 36 at Ex. A.) Matej avers that “API owns all of the investments that it purchases and holds those investments in the name of [itself]. When API’s investments lose money, [API] itself suffers the financial loss. At all times, API maintains exclusive control over the money that it receives through the salary contributions of all employees in Sweden. No contributing employee or beneficia[145]*145ry of [API] is given any discretion over how API invests [its] money.” Id. at ¶ 4.

API’s assertion that it owns its investments is sufficient to establish its standing, notwithstanding speculative allegations by Humphreys. See Teran v. Subaye, Inc., No. 11 Civ. 2614(NRB), No. 11 Civ. 3886(NRB), 2011 WL 4357362, at *6 (S.D.N.Y. Sept.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
280 F.R.D. 142, 2012 WL 386354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stone-v-agnico-eagle-mines-ltd-nysd-2012.