United States District Court, D. New Jersey
ARMANDO DURIGON, individually and on behalf of all others similarly situated, Plaintiffs,
THE TORONTO-DOMINION BANK, et al., Defendants. JANET TUCCI, individually and on behalf of all others similarly situated, Plaintiffs,
THE TORONTO-DOMINION BANK, et al., Defendants.
M. ROSEN THE ROSEN LAW FIRM, PA On behalf of Plaintiff
Armando Durigon and Movants Diana Lawler, V Rao Dandamudi,
and Sujata Dandamudi in 17-1665.
DANIEL GREENBERG LITE DEPALMA GREENBERG, LLC On behalf of
Plaintiff Janet Tucci and Movant Ethan Silverman in 17-1735
and proposed liaison counsel for the class.
E. CECCHI CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO,
P.C. On behalf of Movant John Gilbert  in 17-1665.
M. LEMING WILLIAM M. TAMBUSSI BROWN & CONNERY, LLP On
behalf of Defendants The Toronto-Dominion Bank, Bharat
Masrani, Colleen Johnston, and Riaz Ahmed in 17-1665 and
POMERANTZ LLP JEREMY A. LIEBERMAN J. ALEXANDER HOOD II HUI M.
CHANG Counsel for Movant Ethan Silverman and proposed co-lead
counsel for the class.
POMERANTZ LLP PATRICK V. DAHLSTROM Counsel for Movant Ethan
Silverman and proposed co-lead counsel for the class.
GOLDBERG LAW PC MICHAEL GOLDBERG BRIAN SCHALL SHERIN
MAHDAVIAN Counsel for Movant Ethan Silverman and proposed
co-lead counsel for the class.
L. HILLMAN, U.S.D.J.
Opinion concerns two federal securities class actions filed
in this Court alleging violations of Section 10(b) of the
Securities Exchange Act of 1934 (the “Exchange
Act”) and Rule 10b-5, promulgated thereunder, and
Section 20(a) of the Exchange Act by Defendants. Ethan
Silverman moves for consolidation, appointment as lead
plaintiff, and approval of class counsel. For the reasons
that follow, the Court will grant the motion for
consolidation and will appoint Silverman as lead plaintiff of
the consolidated action. The Court will reserve its decision
on the approval of Pomerantz LLP and Goldberg Law PC as
co-lead counsel and Lite DePalma Greenberg, LLC as liaison
counsel pending supplemental briefing.
Court takes the following facts from the two complaints. On
December 3, 2015, The Toronto-Dominion Bank filed an annual
report on Form 40-F with the U.S. Securities and Exchange
Commission (SEC), announcing its financial and operating
results for the fiscal year that ended October 31, 2015. On
December 1, 2016, The Toronto-Dominion Bank filed an annual
report on Form 40-F with the SEC, announcing its financial
and operating results for the fiscal year that ended October
31, 2016. Certifications attached to the forms certified to
the accuracy of the financial information contained therein.
March 2017, CBC News published a report revealing that
unrealistic sales goals led Toronto-Dominion Bank employees
to engage in illegal conduct. Between December 3, 2015 and
this March 2017 publication, class members purchased
securities from The Toronto-Dominion Bank. The publication of
this report resulted in shares falling in value and in
damages to the class members.
complaint was filed in the 17-1665 action on March 12, 2017
by Plaintiff Armando Durigon, individually and on behalf of
all others similarly situated. A complaint was filed in the
17-1735 action on March 15, 2017 by Janet Tucci, individually
and on behalf of all others similarly situated. The complaints
allege various statements made by The Toronto-Dominion Bank
in SEC filings were “materially false and/or
misleading” and that they failed to disclose material
adverse facts. Specifically, the following is alleged:
(1) the Company's wealth asset growth and increased
fee-based revenue was spurred by a performance management
system that led to its employees breaking the law at their
customer's expense in order to meet sales targets;
(2) the Company illicitly increased customer's lines of
credit and overdraft protection amounts without their
(3) the Company illicitly upgraded customers to higher-fee
accounts without informing them;
(4) the Company lied to customers as to the risk of the
Company's products; and
(5) as a result, Defendants' statements about the
Company's business, operations, and prospects were
materially false and misleading and/or lacked a reasonable
basis at all relevant times.
complaints bring claims for violations of Section 10(b) of
the Exchange Act and Rule 10b-5, promulgated thereunder,
against all defendants and violations of Section 20(a) of the
Exchange Act against the individual defendants.
11, 2017 in the 17-1665 action, Diana Lawler, V Rao
Dandamudi, and Sujata Dandamudi moved for consolidation, for
appointment as lead plaintiffs, and for approval of class
counsel. Also on May 11, 2017 in the 17-1665 action, John
Gilbert moved to consolidate, for appointment as lead
plaintiff, and for approval of class counsel. Also on May 11,
2017 in the 17-1665 action and in the 17-1735 action,
Silverman moved for consolidation, appointment as lead
plaintiff, and for approval of class counsel.
22, 2017, Lawler, Dandamudi, and Dandamudi filed a notice of
non-opposition to Silverman's motion, stating they
“reviewed the competing lead plaintiff motions [and] do
not appear to have the largest financial interest as it
appears Movant Ethan Silverman has the largest financial
interest in this action.” Also on May 22, 2017, Gilbert
filed a notice of non-opposition indicating, based on his
review of the other motions, he does not have the largest
The Toronto-Dominion Bank, Bharat Masrani, Colleen Johnston,
and Riaz Ahmed do not oppose consolidation and take no
position on the motions to appoint lead plaintiffs and lead
counsel in both actions.
Court begins by addressing Silverman's motion to
consolidate. Federal Rule of Civil Procedure 42(a)
provides: “If actions before the court involve a common
question of law or fact, the court may . . . consolidate the
actions . . . .” “The [Private Securities
Litigation Reform Act (PSLRA)] . . . directs that cases
should be consolidated where there is ‘more than one
action on behalf of a class asserting substantially the same
claim or claims.'” In Re Lucent Techs. Sec.
Litig., 221 F.Supp.2d 472, 480 (D.N.J. 2001) (quoting 15
U.S.C. § 78u-4(a)(3)(B)(ii)).
decision as to whether consolidation is appropriate embraces
concerns of judicial economy, as well as judicial
Neither the PSLRA nor Rule 42 requires that pending suits be
identical before they can be consolidated. Rather, in
deciding whether to consolidate actions under Rule 42(a), it
must be considered “whether the specific risks of
prejudice and possible confusion [are] overborne by the risk
of inconsistent adjudications of common factual and legal
issues, the burden on the parties, witnesses, lawsuits, the
length of time required to conclude multiple lawsuits as
against a single one, and the relative expense to all
concerned of the single-trial, multiple-trial alternatives.
Id. (alteration in original) (quoting In re
Consol. Parlodel Sec. Litig., 182 F.R.D. 441,
444 (D.N.J. 1998)). “In the absence of an articulated
basis to assert confusion or prejudice, consolidation is
generally appropriate.” Id.
Court finds consolidation of these cases appropriate. The
complaints are brought against the same Defendants in both
actions: The Toronto-Dominion Bank, Masrani, Johnston, and
Ahmed. Both assert violations of Section 10(b) of the
Exchange Act and Rule 10b-5, promulgated thereunder, and
violations of Section 20(a) of the Exchange Act. Both
complaints also preliminarily define an identical class
consisting of people and ...