Vandevelde v. China Natural Gas, Inc.

277 F.R.D. 126, 2011 U.S. Dist. LEXIS 89637, 2011 WL 3555884
CourtDistrict Court, D. Delaware
DecidedAugust 12, 2011
DocketCiv. No. 10-728-SLR
StatusPublished
Cited by6 cases

This text of 277 F.R.D. 126 (Vandevelde v. China Natural Gas, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vandevelde v. China Natural Gas, Inc., 277 F.R.D. 126, 2011 U.S. Dist. LEXIS 89637, 2011 WL 3555884 (D. Del. 2011).

Opinion

MEMORANDUM OPINION

ROBINSON, District Judge.

I. INTRODUCTION

On August 26, 2010, plaintiff Maxwell Van-develde, individually and on behalf of all others similarly situated (collectively, “plaintiffs”), instituted the present securities class action against China Natural Gas, Inc. (“China Natural Gas”).1 (D.I. 1 at ¶¶ 1, 8) Before the court are two competing motions for appointment of lead plaintiff and approval of selection of lead counsel. Robert Skeway (“Skeway”)2 filed the “Skeway motion” on October 25, 2010. (D.I. 8) Richard Crippa (“Crippa”) filed the “Crippa motion” on October 26, 2010. (D.I. 5) For the foregoing reasons, Skeway’s motion (D.I. 8) is granted and Crippa’s motion (D.I. 5) is denied.

II. BACKGROUND

Plaintiffs allege that China Natural Gas failed to disclose material facts regarding its financial well-being which, in turn, led plaintiffs to purchase China Natural Gas common stock to their financial detriment during the time period of March 10, 2010 to August 19, 2010 (hereinafter the “class period”). (D.I. 1 at ¶¶ 41, 55-56) According to plaintiffs, China Natural Gas entered into a bank loan that required China Natural Gas to restructure a portion of its debt from long-term liabilities to short-term liabilities. (Id. at ¶¶27, 41) Plaintiffs further allege that China Natural Gas misclassifed this debt restructuring in an SEC filing in March of 2010. (Id. at ¶ 41) On August 20, 2010, China Natural Gas filed an amended SEC form, addressing its previous misrepresentation regarding the loan. (Id. at ¶ 50) Plaintiffs allege that the closing price for China Natural Gas shares “declined markedly” after the amended SEC filing.3 [131]*131(Id at ¶ 54) Plaintiffs raise claims for violations of Section 10(b)-5 of the Securities Act and Sections 10(b) and 20(a) of the Exchange Act.4 (Id at ¶¶ 65, 69)

During the class period, Skeway engaged in non-eonfidential communications with China Natural Gas’s public relations and investor relations firm, RedChip Companies, Inc. (“RedChip”). (D.I. 16, ex 1 at ¶ 5) Additionally, during the class period, Skeway posted on Yahoo! message boards about China Natural Gas stock prices, company productivity, and SEC investigations. (D.I. 14, exs. A-F)

A notice of the class action was published on September 2, 2010. (D.I. 7, ex. A; D.I. 10, ex. 1) Crippa and Skeway both timely filed motions to become lead plaintiff, pursuant to 15 U.S.C. § 78u-4(a)(3)(A)(i)(II),5 and both assert that they possessed stock in China Natural Gas during the class period. (D.I. 6 at 6; D.I. 9 at 5) Crippa alleges he suffered losses of over $16,000. (D.I. 6 at 6; D.I. 7, ex. B) Skeway alleges he expended net funds of $319,300.15 and suffered losses of $155,508.05. (D.I. 9 at 5; D.I. 10, ex. 3)

Crippa is moving for Robbins Umeda LLP to be appointed lead counsel and Bouchard Margules & Friedlander, P.A. to be appointed liaison counsel. (D.I. 5) Skeway is moving for the Rosen Law Firm, P.A. to be appointed lead counsel and Rigrodsky & Long, P.A. to be appointed liaison counsel. (D.I. 8) Per the court’s June 29, 2010 order (D.I. 18), both parties have submitted supplemental briefs describing in clearer detail the fee arrangements, retainer agreements, and the process of negotiations to reach said fees and retainers.

III. STANDARD OF REVIEW

Both the selection of a lead plaintiff, or the “most adequate plaintiff,” and the approval of a lead plaintiffs choice of lead counsel is “committed to the court’s discretion.” Dutton v. Harris Stratex Networks, Inc., Civ. No. 08-755, 2009 WL 1598408, at *2 (D.Del. June 5, 2009) (quoting In re Molson Coots Brewing Co. Sec. Litig., 233 F.R.D. 147, 150 (D.Del.2005)). Despite having this discretion, the court nevertheless must follow the procedures established in the Private Securities Litigation Reform Act (the “PSLRA”). See id.

Under the PSLRA, determining which movant qualifies as the lead plaintiff is a two-step process. See City of Roseville Emps. Ret. Sys. v. Horizon Lines Inc., Civ. No. 08-969, 2009 WL 1811067, at *1 (D.Del. June 18, 2009). First, the court identifies a presumptive lead plaintiff and, second, it determines whether the presumption has been rebutted. See In re Cendant Corp. Litig., 264 F.3d 201, 262 (3d Cir.2001); see also 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I) & (II). The court adopts the presumption that a particular plaintiff is the most adequate plaintiff when that movant: (1) “has either filed the complaint or made a motion in response to a notice,” (2) “in the determination of the court 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.” 15 U.S.C. § 78u-4(a)(3)(B)(i) & (iii)(I); see also City of Roseville, 2009 WL 1811067, at *1.

To identify the movant with the largest financial interest, “a court should con[132]*132sider, among other things: (1) the number of shares that the [m]ovant purchased during the putative class period; (2) the total net funds expended by the plaintiffs during the class period; and (3) the approximate losses suffered by the plaintiffs.” Cendant, 264 F.3d at 222. To meet the “otherwise satisfies” criterion, the movant must establish only a prima facie case of typicality and adequacy under traditional Rule 23 principles. Id. at 263. At this stage of the analysis, a court must make its prima facie finding independently and cannot consider whether the presumption has been rebutted by members of the purported class. See id. at 263-64.

IV. DISCUSSION

Both movants satisfy the first prong for presumptive lead plaintiff status as both made timely motions in response to a published notice. See 15 U.S.C. § 78u-4(a)(3)(B)(i) & (iii)(I). The court moves to the next prong — the determination as to which movant has the largest financial interest — and finds that Skeway presumptively satisfies this prong as his losses amount to over $155,000, and Crippa only claims losses amounting to $16,000. Upon finding that Skeway is the movant with the largest financial loss, the court will next address whether Skeway satisfies the prima facie requirements of Rule 23.

A. Typicality

“The typicality requirement is designed to align the interests of the class and the class representatives so that the latter will work to benefit the entire class through the pursuit of their own goals. However, typicality ... does not require that all putative class members share identical claims.”

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Cite This Page — Counsel Stack

Bluebook (online)
277 F.R.D. 126, 2011 U.S. Dist. LEXIS 89637, 2011 WL 3555884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vandevelde-v-china-natural-gas-inc-ded-2011.