United States District Court, N.D. California
ORDER APPOINTING LEAD COUNSEL RE: DKT. NO. 4
WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE
Complaint in this case and the complaints in two cases
consolidated with it allege that defendants' merger
disclosures were inadequate under federal law. Pursuant to
the provisions of the Securities Exchange Act of 1934, as
amended by the Private Securities Litigation Reform Act of
1995 (the “PSLRA”), plaintiff Sanchez moves for
his appointment as lead plaintiff and appointment of his
counsel, Monteverde & Associates PC, as lead
counsel. Dkt. No. 4. Plaintiff submits
evidence that he complied with the requirements of the PSLRA,
including publication of a notice regarding this case. Dkt.
No. 4-2. Neither of the other plaintiffs in the consolidated
cases has moved for appointment or objected to plaintiff
object. Dkt. No. 11. They argue that because Sanchez failed
to serve his Complaint within 90 days as required under
Federal Rule of Civil Procedure 4(m) and had taken no steps
to serve the Complaint (e.g., had not provided
waivers to defense counsel) as of the date of defendants'
Opposition (February 5, 2018), plaintiff Sanchez is
inadequate and his failure to properly prosecute his case
indicates he will not vigorously protect the interests of the
class he seeks to represent. Defendants, in their Opposition
and proposed Sur-Reply,  also argue that plaintiff's
counsel's filing of at least sixteen inadequate disclose
cases arising out of corporate mergers within the past four
months - where plaintiffs pleaded their intent to seek
preliminary injunctions to stop the proposed mergers absent
corrected disclosures but never sought injunctive relief in
any of those cases - shows that plaintiff's counsel are
not able or prepared to vigorously litigate each case they
have filed. Instead, defendants characterize this suit (and
the others) as “frivolous disclosure” suits
intended only to secure quick nuisance settlements.
surprisingly, plaintiff objects to those characterizations
(and the proposed Sur-Reply) and instead points to the
millions of dollars in class member relief secured by
plaintiff's counsel's firm in securities cases.
Plaintiff also argues that defendants in this case were
“impliedly served” through their counsel's
actions in this case and that even if defendants were not
timely served, I should use my discretion to provide
plaintiff an extension.
juncture, whether Sanchez's case is frivolous or
otherwise in violation of Rule 11 is not fully before me.
Similarly, whether or not Sanchez's failure to seek an
injunction to stop the merger and whether that indicates a
failure of counsel, either to adequately prosecute the case
or under Rule 11, is not fully before me. The issue squarely
before me is whether to appoint Sanchez as lead plaintiff and
Monteverde & Associates as lead counsel. Whether or not
defendants were adequately served, while not raised in a
motion, is arguably before me given Sanchez's request for
an extension. Dkt. No. 26.
sympathetic to defendants' frustrations - with plaintiffs
failure to timely serve and their belief this case is the
latest in a line of frivolous filings - but defendants do not
suggest a resolution to the problem I face: if not Sanchez,
then who? I have three consolidated cases pending before me.
Only one plaintiff has moved for appointment, as required
under the PSLRA. Therefore, I GRANT plaintiffs motion and
appoint plaintiff Sanchez as lead plaintiff and Monteverde
& Associates as lead counsel. Given the back and forth
between counsel about this and the consolidated cases,
including plaintiffs demands and requests for acceptance of
service, I also find good cause exists and GRANT plaintiff an
extension of time to complete service on defendants.
Plaintiff shall effectuate service on defendants on or before
March 5, 2018.
expect plaintiff to vigorously litigate this case and will
consider, if and when raised, any motion for Rule 11 or other
sanctions based on the initial filing or subsequent
prosecution of this now-consolidated case.
This case was consolidated with
two others on February 6, 2018. Dkt. No. 13.
Pursuant to Civil Local Rule
7-1(b) this matter is appropriate for determination on the
papers and the February 28, 2018 hearing is
 Defendants' request leave to
file a Sur-Reply. Dkt. No. 30. That request is DENIED.
Defendants had the opportunity to raise the arguments
presented in their Sur-Reply in their Opposition but failed
to do so. However, I will take notice of the arguments made
therein and plaintiff's responses thereto in his
Opposition to the proposed Sur-Reply.
Plaintiff has apparently taken
steps to formally serve defendants, following the filing of