United States District Court, D. New Jersey
CITY OF WARREN GENERAL EMPLOYEES' RETIREMENT SYSTEM, Plaintiff,
CELGENE CORP., INC., et al., Defendants. CHARLES H. WITCHCOFF, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
CELGENE CORP., INC., et al., Defendants.
OPINION & ORDER.
Michael Vazquez, U.S.D.J..
matter comes before the Court by way multiple motions to
appoint lead plaintiff and class counsel, in addition to
motions to consolidate. D.E. 9, 10, 14, 17, 20, 21, 22, 23,
24 in Civ. No 18-4772; D.E. 10 in Civ. No. 18-8785. The Court
reviewed the submissions made in support and in opposition,
and considered the motions without oral argument pursuant to
Federal Rule of Civil Procedure 78(b) and Local Civil Rule
78.1(b). For the reasons stated below, the motion filed by
Plaintiff AMF Pensionsforsakring AB ("AMF"), D.E.
24 in Civ. No. 18-4772, is GRANTED. The
remaining motions, D.E. 9, 10, 14, 17, 20, 21, 22, 23 in Civ.
No. 18-4772 and D.E. 10 in Civ. No. 18-8785 are
March 29, 2018, Plaintiff City of Warren General
Employees' Retirement System ("Warren") filed a
class action complaint seeking remedies under the Securities
Exchange Act of 1934 (the "1934 Act"). Warren
alleged that Defendants Celgene Corporation
("Celgene") and certain Celgene officers made false
statements that concealed adverse information and misled
investors about Celgene's current and prospective
business. Warren brought suit on behalf of all persons or
entities who purchased Celgene common stock between September
12, 2016 and February 27, 2018. Warren Compl. ¶ 1, D.E.
1, No. 18-4772.
3, 2018, Plaintiff Charles H. Witchcoff also filed a class
action complaint under the 1934 Act against Celgene and
certain Celgene executives, alleging that Celgene and certain
Celgene executive officers made false statements concerning
Celgene's current and long-term financial outlook.
Witchcoff brought suit on behalf of all persons and entities
who purchased or acquired Celgene common stock between
January 12, 2015 and February 27, 2018. Witchcoff Compl.
¶l, No. 18-8785.
29, 2018, ten separate motions were filed in the Warren case
and one was filed in the Witchcoff matter; each sought to
consolidate the two cases, and appoint a lead plaintiff and
class counsel. D.E. 9, 10, 13, 14, 17, 21, 22, 23, 24 in Civ.
No. 18-4772; D.E. 10 in Civ. No. 18-8785. By June 18, 2018,
however, every movant except AMF had withdrawn its motion or
filed a notice of non-opposition to AMF's motion. D.E.
25, 26, 27, 29, 30, 31, 32, 33, 34 in Civ. No. 18-4772; D.E.
11 in Civ. No. 18-8785. As a result, only AMF's motion
remains. D.E. 24, 35 in Civ. No. 18-4772.
Private Securities Litigation Reform Act ("PSLRA")
provides that "[i]f more than one action on behalf of a
class asserting substantially the same claim or claims
arising under this chapter has been filed," a court must
decide the motion to consolidate before appointing a lead
plaintiff. 15 U.S.C. § 78u-4(a)(3)(B)(ii). Accordingly,
the Court will address this issue first.
to Federal Rule of Civil Procedure 42(a), cases may be
consolidated if they involve "a common question of law
or fact." Here, the two suits at issue rely on the same
public statements and reports regarding Celgene's
pipeline products, name similar defendants, and assert claims
arising out of § 10(b) (and the corresponding Rule
10b-5) and § 20(a) of the 1934 Act. The two matters
clearly involve common questions of law and fact, and
consolidation will promote efficiency and avoid unnecessary
costs or delay. See, e.g., Garcia v. Intelligroup,
Inc., No. 04-4980, 2015 WL 6074922, at *2 (D.N.J. Aug.
10, 2015) (consolidating securities class actions because the
cases arose from the same set of facts, and "[e]ach of
the Related Actions [was] filed pursuant to various
provisions of the federal securities law, and name[d] the
same or similar defendants"). As a result, AMF's
motion to consolidate is GRANTED.
TO APPOINT LEAD PLAINTIFF
to the PSLRA, a court must "appoint as lead plaintiff
the member or members of the purported class that the Court
determines to be the most capable of adequately representing
the interests of the class members." 15 U.S.C. §
78u-4(a)(3)(B). Further, courts "adopt a presumption
that the most adequate plaintiff is the person or group of
persons that "has the largest financial interest in the
relief sought by the class; and otherwise satisfies the
requirements of Rule 23 of the Federal Rules of Civil
Procedure." Id. § 78u-4(a)(3)(B)(iii). In
deciding a motion to appoint a lead plaintiff, a court should
limit its inquiry to the typicality and adequacy prongs of
Rule 23(a), "and defer examination of the remaining
requirements until the Lead Plaintiff moves for class
certification." Sapir v. Averback, No. 14-7331,
2015 WL 858283, at *2 (D.N.J. Feb. 26, 2015) (citing
Hoxworth v. Blinder, Robinson & Co., 980 F.2d
912, 924 (3d Cir. 1992)). The presumption may be rebutted if
the presumptively lead 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." 15 U.S.C. §
the presumptive lead Plaintiff here. AMF allegedly lost $25,
072, 826 as a result of Celgene's material misstatements
and omissions. AMF maintains that this is the largest known
financial interest in the relief sought by the class
(AMF's Br. at 7-8), and no other party that filed a
motion to be appointed lead plaintiff asserted that it lost a
comparable amount. See D.E. 35 in Civ. No. 18-4772.
Moreover, AMF also satisfies the requirements of Rule 23(a)
based on the information currently available. Namely, AMF,
like other members of the proposed class, seeks to recover
the losses it allegedly incurred as a result of
Defendants' misrepresentations and omissions. In
addition, given its substantial financial losses, it is
interested in vigorously pursuing the claims asserted against
Defendants. See AMF Br. at 8-10. Consequently, AMF
satisfies the typicality and adequacy requirements of Rule
23(a). Finally, no party has made any argument suggesting
that AMF will not fairly and adequately protect the class
interests, or that it would be subject to any unique
defenses. Consequently, AMF's motion to be appointed lead
plaintiff is GRANTED.
TO APPOINT LEAD COUNSEL
PSLRA also states that "[t]he most adequate plaintiff
shall, subject to the approval of court, select and retain
counsel to represent the class." 15 U.S.C. §
78u-4(a)(3)(B)(v). In this instance, AMF has selected and
retained Kessler Topaz Meltzer & Check LLP ("Kessler
Topaz") to serve as Lead Counsel, and Carella Byrne
Cecchi Olstein Brody & Agnello, PC ("Carella
Byrne") and Seeger Weiss, LLP ("Seeger Weiss")
to serve as Co-Liaison Counsel for the class. AMF's Br.
at 10. Kessler Topaz specializes in prosecuting complex class
actions and is currently serving as lead or co-lead counsel
in several securities class actions. Carella Byrne and Seeger