United States District Court, D. New Jersey
TIMOTHY M. FORDEN, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
ALLERGAN PLC et al., Defendants. LINA ARSLANIAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
ALLERGAN PLC et al., Defendants.
MEMORANDUM OPINION AND ORDER
Dunn Wettre United States Magistrate Judge.
the Court are the motions of putative class members Miami
Fire Fighters' Relief & Pension Fund (Civ. A. No.
16-9449, ECF No. 3; Civ. A. No. 17-2, ECF No. 2), Edward
Santangelo (Civ. A. No. 16-9449, ECF No. 4; Civ. A. No. 17-2,
ECF No. 3), Amalgamated Bank, as trustee for LongView
Collective Investment Fund (Civ. A. No. 16-9449, ECF No. 5),
Michael Wilson (Civ. A. No. 16-9449, ECF No. 6), Utah
Retirement Systems and Fresno County Employees'
Retirement Association (Civ. A. No. 16-9449, ECF No. 7; Civ.
A. No. 17-2, ECF No. 4), the Northern Ireland Local
Government Officers' Superannuation Committee (Civ. A.
No. 16-9449, ECF No. 8; Civ. A. No. 17-2, ECF No. 6),
Strathclyde Pension Fund (Civ. A. No. 16-9449, ECF No. 9;
Civ. A. No. 17-2, ECF No. 5), Sjunde AP-Fonden and Union
Asset Management Holding AG (Civ. A. No. 16-9449, ECF No.
10), Brian Leggett and Bryson Holdings, LLC (Civ. A. No.
16-9449, ECF No. 11), William Quartuccio (Civ. A. No.
16-9449, ECF No. 12; Civ. A. No. 17-2, ECF No. 7), and Rick
Ashman and Melvin Ashman (Civ. A. No. 16-9449, ECF No. 13),
each seeking consolidation of these two actions and each
seeking appointment of the movant (or movants) as lead
plaintiff (or plaintiffs) in the consolidated action. As
discussed below, several movants filed submissions supporting
the appointment of movants Sjunde AP-Fonden ("AP7")
and Union Asset Management Holding AG ("Union") as
lead counsel. The only timely filed opposition was submitted
by AP7 and Union, who opposed all other competing motions.
Having considered the parties' submissions, for the
reasons set forth herein, and for good cause shown, AP7 and
Union's motion for consolidation of these actions, for
appointment of the movants as lead plaintiffs, and for
appointment of lead and liaison counsel is GRANTED. All other
pending motions, except those explicitly withdrawn, are
STANDARD AND ANALYSIS
Rule of Civil Procedure 42 grants the Court discretion to
consolidate actions that "involve a common question of
law or fact" in order to economize proceedings and avoid
duplicative efforts and potentially conflicting outcomes.
Fed.R.Civ.P. 42(a); see In re TMI Litig., 193 F.3d
613, 724 (3d Cir. 1999), amended by 199 F.3d 158 (3d
Cir. 2000). This Court has found in considering such a motion
that "[t]he savings of time and effort gained through
consolidation must be balanced against the inconvenience,
delay or expense that might result from simultaneous
disposition of separate actions." Norfolk S. Ry. Co.
v. N.Y. Terminals, LCC, Civ. A. No. 14-cv- 7664 (WJM),
2016 WL 7338531, at *1 (D.N.J. Dec. 19, 2016) (quoting
Liberty Lincoln Mercury, Inc. v. Ford Mktg. Corp.,
149 F.R.D. 65, 81 (D.N.J. 1993)). It has also noted that
consolidation is appropriate in securities actions
specifically "where the complaints are based on the same
public statements and reports, ... there are common questions
of law and fact and the defendants will not be
prejudiced." Garcia v. Intelligroup, Inc., Civ.
A. Nos. 04-4980 (JCL), 04-5129 (JCL), 04-5133 (JCL), 04-5498
(JCL), 04-5922 (JCL), & 04-5923 (JCL), 2005 WL 6074922,
at *2 (D.N.J. Aug. 10, 2005) (adopting report and
recommendation of Magistrate Judge Mark Falk).
Complaints in these two actions assert substantially the same
claims. They both assert putative class actions on behalf of
all persons or entities who acquired the securities of
Allegan pic or Actavis pic between February 25, 2014 and
November 3, 2016. (Compl., Civ. A. No. 16-9449, ECF No. 1, at
2, 28; Compl., Civ. A. No. 17-2, ECF No. 1, at 2, 9-10). The
defendants in each action are essentially
identical. (See Civ. A. No. 16-9449, ECF No.
1; Civ. A. No. 17-2, ECF No. 1). Each action asserts claims
for violation of sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, as well as rule 10b-5 promulgated
thereunder. (Civ. A. No. 16-9449, ECF No. 1 at 2; Civ. A. No.
17-2, ECF No. 1 at 2). Furthermore, all movants have sought
consolidation of these two actions, and no opposition to
consolidation has been filed. Consequently, consolidation
appears manifestly appropriate.
is a securities class action, it is governed by the
provisions of the Private Securities Litigation Reform Act of
1995 ("the PSLRA"). 15 U.S.C. § 78u-4(a)(1).
The PSLRA directs that a court should appoint as lead
plaintiff the movant "that the court determines to be
most capable of adequately representing the interest of class
members" (termed the "most adequate
plaintiff'). 15 U.S.C. § 78u-4(3)(B)(i). The PSLRA
creates a presumption that the movant with the largest
financial interest in the relief sought is the most adequate
plaintiff. 15 U.S.C. § 78u-4(3)(B)(iii)(I); see In
re Cendant Corp. Litig., 264 F.3d 201, 262-63 (3d Cir.
2001); Kelley v. Aerie Pharm., Inc., Civ. A. No.
15-3007 (AET), 2015 WL 4545654, at *1 (D.N.J. July 28, 2015);
MTB Inv. Partners, LP v. Siemens Hearing Instruments,
Inc., Civ. A. No. 12-340 (SDW), 2012 WL 12899112, at
*2-3 (D.N.J. May 18, 2012). This presumption may be rebutted,
however, upon a showing that the movant "will not fairly
and adequately protect the interests of the class; or... is
subject to unique defense that render such plaintiff
incapable of adequately representing the class." 15
U.S.C. § 78u-4(3)(B)(iii)(II); MTB Inv.
Partners, 2012 WL 12899112 at *3. The PSLRA also
requires that a lead plaintiff satisfy the requirements of
Federal Rule of Civil Procedure 23, namely that its claims
"are typical of the claims ... of the class" and
that it "will fairly and adequately protect the
interests of the class." 15 U.S.C. §
78u-4(3)(B)(iii)(I)(cc); Fed.R.Civ.P. 23(a).
Union assert that their claimed losses of between $51.5
million and $55.1 millionmake them the presumptive most adequate
plaintiffs. (Mem. of Law in Supp., ECF No. 10-1,
2, 8; Grottheim Certification, ECF No. 10-3; Fischer &
Munz Certification, ECF No. 10-3; Cecchi Decl., Ex. B, ECF
No. 10-4). AP7 and Union also contend that, as experienced
lead plaintiffs and sophisticated institutional investors,
their claims are typical of the class and they are well
suited to represent class interests. (ECF No. 10-1 at 3,
Miami Fire Fighters' Relief & Pension Fund and
Amalgamated Bank submitted responses in support of the
appointment of AP7 and Union as lead plaintiffs,
acknowledging that AP7 and Union had the largest reported
loss. (Civ. A. No. 16-9449, ECF Nos. 16, 21). Movants
Santangelo, Wilson, Strathclyde Pension Fund, and Quartuccio
withdrew their motions. (Civ. A. No. 16-9449, ECF Nos. 14,
15, 17, 19; Civ. A. No. 17-2, ECF Nos. 9, 10). Joint movants
Leggert and Bryson Holdings, LLC filed a non-opposition,
noting that they did not appear to have the largest financial
interests. (Civ. A. No. 16-9449, ECF No. 18). Joint movants
Utah Retirement Systems and Fresno County Employees'
Retirement Association filed a response noting that they
suffered the second-highest losses and expressing a
willingness to act as lead plaintiffs, but acknowledging AP7
and Union's greater claim and expressly not opposing
their motion. (Civ. A. No. 16-9449, ECF No. 20; Civ. A. No.
17-2, ECF No. 11). The remaining movants filed no more
submissions, and the only opposition to any motion was filed
by AP7 and Union, who opposed the competing motions. (Civ. A.
No. 16-9449, ECF No. 22).
the great majority of movants concede that AP7 and
Union's claims are the largest, and there is no
indication that any other plaintiffs claim would exceed that
of AP7 and Union.Accordingly, AP7 and Union are the
presumptive most adequate plaintiffs under 15 U.S.C. §
78u-4. There is no evidence before the Court to rebut this
presumption by suggesting that AP7 and Union could not
adequately protect class interests or that they would be
subject to unique defenses. Indeed, the majority of other
movants concede that AP7 and Union can adequately represent
their interests. Additionally, it appears that AP7 and Union
have claims that are typical of the putative class, in that
they suffered the same alleged injuries, allegedly as a
result of the same conduct, and assert the same claims.
See MTB Inv. Partners, 2012 WL 12899112 at *3. AP7
and Union seem to have demonstrated an ability to represent
class claims vigorously, and there is no indication of any
conflict with other class members, thus indicating that they
will be able to fairly and adequately represent the interests
of the class as required under Federal Rule of Civil
Procedure 23. See Id. Accordingly, AP7 and Union
have met their burden on their motion for appointment as lead
PSLRA permits the lead plaintiff in securities litigation to
select lead counsel, subject to the Court's approval. 15
U.S.C. § 78u-4(a)(3)(B)(v). AP7 and Union assert that
their choice of Kessler Topaz Meltzer & Check LLP and
Motley Rice LLC as co-lead counsel and Carella, Byrne,
Cecchi, Olstein, Brody & Agnello, PC as liaison counsel
is justified by each firm's extensive experience in
securities litigation and in those specific roles. (ECF No.
10-1 at 13-16). No party has opposed the selection of these
firms by AP7 and Union, and several plaintiffs have
specifically supported their appointment. (See Civ.
A. No. 16-9449, ECF Nos. 16, 19, ...