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Wertz v. Laplanche

United States District Court, N.D. California

July 1, 2016

NICOLE WERTZ, Individually and on Behalf of All Others Similarly Situated, Plaintiff,

          Nicole Wertz, Plaintiff, represented by Jacob Allen Walker, Block & Leviton LLP & Lesley Elizabeth Weaver, Block & Leviton LLP.


          WILLIAM ALSUP, District Judge.

         All motions to appoint lead plaintiff shall be heard on AUGUST 15, 2016, AT 10:00 A.M. in Courtroom 8, 19th Floor, 450 Golden Gate Avenue, San Francisco, California. As opposed to "group" candidates, the Court wishes to evaluate the qualifications of single investors, either institutional investors or individuals, to serve as lead plaintiff. See In re Network Assocs., Inc., Sec. Litig., 76 F.Supp.2d 1017, 1019-27 (N.D. Cal. 1999). The Court is particularly interested in considering single investors with large losses and in evaluating their experience in managing litigation. Any "group" of movants must narrow its candidates to one or two single investors and file answers to the appended questionnaire by AUGUST 1, 2016, including the certification called for therein. Each candidate must attend the hearing on AUGUST 15, 2016, and be prepared to answer questions.

         All motions to appoint lead plaintiff must be timely filed under 15 U.S.C. 78u-4(a)(3) and must be supplemented by the appended questionnaire and certification. All opposition briefs shall be filed and served by AUGUST 1, 2016. Any reply briefs shall be filed and served by AUGUST 8, 2016, and shall not exceed ten pages. Each party shall submit only one opposition brief, responding to all other pending motions, and only one reply brief. All questionnaires and other submissions shall be served on all counsel named on the Court's certificate of service.

         Applications for class counsel shall be deferred until after the lead plaintiff has been appointed.

         IT IS SO ORDERED.



         The Court appreciates your interest in serving as the lead plaintiff in this lawsuit. You must personally read this statement of duties of the lead plaintiff and how class counsel will be selected and approved. It is important for you to understand that the lead plaintiff will have to take an active role in managing the lawsuit. You could not, if selected, simply leave the case for counsel to handle.

         In 1996, our Congress enacted a statute known as the Private Securities Litigation Reform Act (PSLRA). The PSLRA seeks to place a real investor, not a lawyer, in charge of any securities class action. To do this, the PSLRA created a statutory position of responsibility called "the lead plaintiff." This officer acts as a fiduciary for all members of the proposed class and must manage the case to obtain the largest recovery for the proposed class consistent with good faith and meritorious advocacy.

         Over the course of the litigation, the lead plaintiff must take affirmative steps to keep himself or herself reasonably informed on the progress and status of the case, including its strengths and weaknesses, the prospects for settlement, and the resources invested in the suit or proposed to be invested. With respect to each major litigation decision-such as important motions, settlement discussions and trial preparation-the lead plaintiff shall have the authority and responsibility to manage the case and to direct class counsel, after, of course, receiving the advice of class counsel. The lead plaintiff shall meet in person with counsel periodically, shall attend all major hearings and mediation sessions, and shall attend trial. And, of course, the lead plaintiff must give deposition and trial testimony. No settlement will be approved by the Court without the lead plaintiff's careful recommendation in favor of it. Reasonable travel, telephone and business expenses incurred as a result of the lead plaintiff duties may be reimbursed as expenses from any recovery or may be advanced by class counsel.

         The first obligation of the lead plaintiff will be to select and propose class counsel for court approval, an important choice that will warrant care and due diligence. No decision by the lead plaintiff is more important than the selection of class counsel. Like any other important decision by a fiduciary, the decision should be preceded by due diligence. The extent of such due diligence will be a matter of judgment based on the facts and circumstances. Significantly, even if you have already retained a lawyer for yourself in this matter, if you are selected as the lead plaintiff, you would assume a higher responsibility, and would then be obligated to undertake due diligence appropriate to the higher responsibility. In selecting class counsel, you could not automatically keep your present lawyer.

         In selecting class counsel, the lead plaintiff has an obligation to assess the trial and securities track records of the specific lawyer candidate who would perform the actual work for the class. This requires evaluation of particular, individual lawyers. In exercising due diligence, it is also important to compare fees and expenses proposed by the candidates, i.e., to comparison shop. In securities class actions, class counsel are usually awarded a fee (plus all reasonable expenses) from the recovery. Only the leftover residue is distributed to the class. The greater the fees and expenses, therefore, the less will be available for the investors. It is not uncommon for fees and expenses, plus the costs of administration and distribution, to reduce the individual plaintiffs' recovery to a few cents per share. In the Court's experience, excellent candidates will differ substantially in their up-front fee proposals. In one large recent securities case, for example, the fee proposals of excellent candidates varied from as low as eight percent to over twenty-five percent of the eventual recovery. The lead plaintiff has an obligation to the investor class to take such potential savings into account.

         Depending upon the facts and circumstances, the Court may require the lead plaintiff to evaluate competitive proposals from various lawyers seeking the job of class counsel. (If so, the Court would post an order soliciting proposals and arrange for the proposals to be delivered to the lead plaintiff.) It is important to the Court, in evaluating the qualifications of lead-plaintiff candidates, to know in advance that the lead plaintiff candidate is fully prepared to carry out his or her lead plaintiff responsibilities, as outlined above, and to fully ...

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