United States District Court, N.D. California
ORDER CONSOLIDATING CASES, APPOINTING LEAD PLAINTIFF,
AND APPROVING SELECTION OF LEAD COUNSEL RE: DKT. NO.
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE
before the Court is movant Louisiana Sheriffs' Pension
& Relief Fund's (“Louisiana Sheriffs”)
motion to consolidate related cases Meerain Ali v. Intel
Corporation, et al., 18-cv-00507-YGR
(“Ali”), and Louisiana Sheriffs'
Pension & Relief Fund v. Intel Corporation, et al.,
18-cv-01460-YGR (“Louisiana Sheriffs”)
(together, the “Related Actions”), for
appointment of lead plaintiff, and for approval of selection
of lead counsel. (Dkt. No. 10 (“Motion”).)
Intel Corporation (“Intel”) investors Meerain Ali
and Daniel E. Tavares (together, the “Individual
Investor Group”) oppose the motion with respect to
appointment of lead plaintiff and approval of lead counsel,
but do not dispute that consolidation is
warranted. For the reasons set forth below, Louisiana
Sheriffs' motion is
to the Private Securities Litigation Reform Act of 1995 (the
“PSLRA”), the Court must decide whether to
consolidate the Related Actions prior to selecting a lead
plaintiff. See 15 U.S.C. § 78u-4(a)(3)(B)(ii).
Federal courts have “broad discretion . . . to
consolidate cases pending in the same district.”
Inv'rs Research Co. v. U.S. Dist. Court for Cent.
Dist. of Cal., 877 F.2d 777, 777 (9th Cir. 1989);
see also Fed. R. Civ. P. 42(a)(2) (noting that a
district court “may” consolidate actions if they
“involve a common question of law or fact”).
Further, the PSLRA contemplates consolidation where
“more than one action on behalf of a class asserting
substantially the same claim or claims . . . has been filed .
. . .” 15 U.S.C. § 78u-4(a)(3)(B)(ii).
Court concludes that consolidation is warranted here.
Ali and Louisiana Sheriffs bring claims
against substantially similar defendants, and both allege
violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, and Rule 10b-5 promulgated thereunder,
based upon the same types of misstatements by Intel and
certain of its senior officers regarding the security and
performance of Intel's processors. (Compare Ali
Compl., Dkt. No. 1, with Louisiana Sheriffs Compl.,
Dkt. No. 1.) Though the class period in the two actions have
different start dates-July 27, 2017 for Ali and
October 27, 2017 for Louisiana Sheriffs-both class
periods end on January 4, 2018, and both putative classes
involve, at a minimum, all persons who purchased Intel stocks
during the relevant class periods. The Related Actions thus
present questions of law and fact that overlap almost
the Related Actions should be consolidated.
APPOINTMENT OF LEAD PLAINTIFF
PSLRA instructs district courts “to select as lead
plaintiff the one ‘most capable of adequately
representing the interests of class members.'”
In re Cavanaugh, 306 F.3d 726, 729 (9th Cir. 2002)
(quoting 15 U.S.C. § 78u-4(a)(3)(B)(i)). And the
“most capable” plaintiff is generally “the
one who has the greatest financial stake in the outcome of
the case, so long as he meets the requirements of [Federal
Rule of Civil Procedure] 23.” Id. “In
other words, the district court must compare the financial
stake of the various plaintiffs and determine which one has
the most to gain from the lawsuit. It must then focus its
attention on that plaintiff and determine, based on the
information [it] has provided in [its] pleadings and
declarations, whether [it] satisfies the requirements of Rule
23(a), in particular those of ‘typicality' and
‘adequacy.'” Id. at 730.
Sheriffs and the Individual Investor Group each contends that
it is the most appropriate lead plaintiff. To discern
whether the different class periods impacted the analysis of
who should be named lead plaintiff, the Court ordered
additional briefing and considers the same here.
(See Dkt. No. 32.) In that regard, Louisiana
Sheriffs' submitted declaration certifies that it
suffered losses of approximately $67, 658 on its investments
in Intel stock during the period of July 27, 2017 through
January 4, 2018 on both a last-in, first-out
(“LIFO”) and a first-in, first-out
(“FIFO”) basis. (See Dkt. No. 37-1
¶ 3.) The Individual Investor Group's asserted loss
is $1, 232. (See Opposition at 2, 6.) Thus,
Louisiana Sheriffs' financial interest in the litigation
is multiples greater than that of the Individual Investor
Group. The Court also notes that Louisiana
Sheriffs maintains that the shorter class period is the
appropriate period for the consolidated action. The Court
need not resolve that issue at this juncture other than to
ensure that it appoints the appropriate lead plaintiff.
for present purposes, Louisiana Sheriffs appears to have made
a prima facie showing of typicality and adequacy
under Rule 23(a). The typicality requirement is readily
satisfied as Louisiana Sheriffs' claims arise out of the
same events and are based on the same legal theories as the
claims of other class members. See Hanlon v. Chrysler
Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)
(“[R]epresentative claims are ‘typical' if
they are reasonably co-extensive with those of absent class
members; they need not be substantially identical.”).
The Court is similarly satisfied that Louisiana Sheriffs will
adequately represent the interests of class members because,
based on the Firm resume of Bernstein Litowitz Berger &
Grossmann LLP (“Bernstein Litowitz”)
(see Dkt. No. 10-7), Louisiana Sheriffs'
attorneys appear competent, there is no suggestion of any
antagonistic interests or collusive action, and, as the
plaintiff with the highest financial interest, Louisiana
Sheriffs has a strong incentive to pursue vigorously a
substantial recovery for all putative class
members. See Takeda v. Turbodyne Techs.,
Inc., 67 F.Supp.2d 1129, 1135 (C.D. Cal. 1999)
(“The Ninth Circuit has held that representation is
‘adequate' when counsel for the class is qualified
and competent, the representative's interests are not
antagonistic to the interests of absent class members, and it
is unlikely that the action is collusive.”) (citing
in re N. Dist. of Cal., Dalkon Shield IUD Prods. Liab.
Litig., 693 F.2d 847, 855 (9th Cir. 1982)).
the Court finds that Louisiana Sheriffs is the appropriate
APPROVAL OF SELECTION OF LEAD COUNSEL
78u-4(a)(3)(B)(v) provides: “The most adequate
plaintiff shall, subject to the approval of the court, select
and retain counsel to represent the class.” Here,
Louisiana Sheriffs has selected Bernstein Litowitz to serve
as lead counsel. (Motion at 10.) Louisiana Sheriffs
represents that Bernstein Litowitz is “among the
preeminent securities class action law firms in the
country” and served as lead counsel in a case involving
“one of the largest recoveries in securities class
action history.” (Id.) Because Louisiana
Sheriffs has made a “reasonable choice of counsel,
” the Court will “defer to that choice.”
See Cohen v. U.S. Dist. Court for N. Dist. of Cal.,
586 F.3d 703, 712 (9th Cir. 2009).