Tanne v. Autobytel, Inc.

226 F.R.D. 659, 2005 U.S. Dist. LEXIS 4883, 2005 WL 665252
CourtDistrict Court, C.D. California
DecidedMarch 15, 2005
DocketNos. CV04-8987 MMM (JWJx), CV0409551 MMM (PJWx)
StatusPublished
Cited by9 cases

This text of 226 F.R.D. 659 (Tanne v. Autobytel, Inc.) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tanne v. Autobytel, Inc., 226 F.R.D. 659, 2005 U.S. Dist. LEXIS 4883, 2005 WL 665252 (C.D. Cal. 2005).

Opinion

ORDER APPOINTING LEAD PLAINTIFF AND APPROVING LEAD COUNSEL

MORROW, District Judge.

This is a securities fraud action brought pursuant to the Securities Exchange Act of 1934 and the Private Securities Litigation Reform Act of 1995 (“PSLRA” or the “Reform Act”). On January 28, 2005, the court entered an order consolidating five related actions pursuant to the parties’ stipulation.1 Four plaintiffs have now moved for appointment as Lead Plaintiff, and for approval of their counsel as lead counsel.

I. FACTUAL BACKGROUND2

The plaintiff class encompasses investors who purchased or acquired the securities of Autobytel, Inc. between July 24, 2003 and October 21, 2004 (the “Class Period”).3 Autobytel, Inc. is a Delaware corporation with its principal place of business in Irvine, California. Autobytel is an automotive marketing services company that offers management tools that provide marketing, advertising, and customer relationship assistance to dealers and manufacturers, primarily through the Internet.4 Autobytel maintains three car-buying websites — Autobytel.com, Autoweb.com and CarS-mart.com.5 It also maintains an automotive research website whose address is Auto-Site.com.6 Autobytel owns AV, Inc., a provider of dealership lead management tools and dealer management system data ex[664]*664traction services.7 In April 2004, Autobytel acquired Stoneage Corporation, an internet automotive buying service and the owner of the Car.com website and iDriveonline, Inc. iDriveonline.com provides customer loyalty and retention marketing programs for the automotive industry.8

Plaintiffs allege that, throughout the Class Period, defendants failed to disclose that Autobytel had improperly recognized certain unapplied credits as revenue, that it had materially overstated results by $900,000, that its financial results violated generally accepted accounting principles, and that it lacked adequate internal controls.9

On October 21, 2004, Autobytel announced partial 2004 third quarter financial results, and postponed the earnings conference call and webcast scheduled for that afternoon.10 The company’s announcement was accompanied by an explanation that the Board Audit Committee was directing an internal review of the accounting treatment of certain unapplied credits recognized as revenue during the four quarters ending March 31, 2004.11 Plaintiffs contend that, following this announcement, Autobytel’s stock fell more than 21 % to close at $6.80 per share.12

Scott Tanne filed a class action complaint against Autobytel and certain of its officers and directors on October 29, 2004. Four other plaintiffs followed suit. The cases were consolidated on January 28, 2005, pursuant to the parties’ stipulation. Four plaintiffs now seek appointment as lead plaintiff and approval of their respective attorneys as lead counsel.

II. DISCUSSION

A. Legal Standard Governing Appointment of Lead Plaintiff

The Reform Act provides that within twenty days after the date on which a securities class action complaint is filed, “the plaintiff or plaintiffs shall cause to be published, in a widely circulated national business-oriented publication or wire service, a notice advising members of the purported plaintiff class—

(i) of the pendency of the action, the claims asserted therein, and the purported class period; and

(ii) that, not later than 60 days after the date on which the notice is published, any member of the purported class may move the court to serve as lead plaintiff of the purported class.” See 15 U.S.C. § 78u-4(a)(3)(A)®.

If more than one action is filed, only the plaintiff or plaintiffs in the first-filed action are required to publish notice. See 15 U.S.C. § 78u(4)(a)(3)(A)(ii). The Reform Act requires that within ninety days of the published notice,

“the 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 (hereafter ... referred to as the ‘most adequate plaintiff).... ” 15 U.S.C. § 78u-4(a)(3)(B)(i).

In selecting a lead plaintiff,

“the court shall adopt a presumption that the most adequate plaintiff in any private action ... is the person or group of persons that — (aa) has either filed the complaint or made a motion [for designation as lead plaintiff]; (bb) in the determination of the court, has the largest financial interest in the relief sought by the class; and (cc) 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).

This presumption may be rebutted

“only upon proof by a member of the purported plaintiff class that the presumptively most adequate plaintiff — (aa) will not fairly and adequately protect the interests of the class; or (bb) is subject to unique [665]*665defenses that render such plaintiff incapable of adequately representing the class.” 15 U.S.C. § 78u-4(a)(3)(B)((iii))(II).

Interpreting these statutes, the Ninth Circuit has held that the Reform Act “provides a simple three-step process for identifying the lead plaintiff” in a securities fraud case. In re Cavanaugh, 306 F.3d 726, 729 (9th Cir.2002). “The first step consists of publicizing the pendency of the action, the claims made and the purported class period.” Id. At the second step, “the district court must consider the losses allegedly suffered by the various plaintiffs,” and select as the “presumptively most adequate plaintiff ... the one who has the largest financial interest in the relief sought by the class and [who] otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure.” Id. at 729-30 (internal citations omitted). As a third and final step, the court must “give other plaintiffs an opportunity to rebut the presumptive lead plaintiffs showing that it satisfies Rule 23’s typicality and adequacy requirements.” Id. at 730.

The Cavanaugh court cautioned that “a straightforward application of the statutory scheme ...

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Bluebook (online)
226 F.R.D. 659, 2005 U.S. Dist. LEXIS 4883, 2005 WL 665252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tanne-v-autobytel-inc-cacd-2005.