United States District Court, N.D. California
ORDER AFFORDING OPPORTUNITY TO FILE SURREPLY;
VACATING JANUARY 10, 2020 HEARING
M. Chesney United States District Judge.
the Court are the following motions, each filed December 20,
2019: (1) Motion "for Appointment as Lead Plaintiff and
Approval of Lead Counsel," filed by David Sterrett
("Sterrett"); (2) Motion "for Appointment as
Lead Plaintiff, and Approval of His Selection of Lead
Counsel," filed by Lyndon Maither ("Maither");
and (3) Motion "for Appointment as Lead Plaintiff and
Approval of Lead Counsel," filed by Ajay Malhotra and
Andre Ling Bin Zulkifli ("Malhotra/Zulkifli").
Sterrett has filed opposition to Maither's motion, to
which Maither has replied, and Maither has filed opposition
to Sterrett's motion, to which Sterrett has replied.
Malhotra/Zulkifli have filed a statement of non-opposition to
the motions filed by the other movants. Having read and
considered the papers filed in support of and in response to
the above-referenced motions, the Court, as set forth below,
finds it appropriate to afford Maither a limited opportunity
to file a surreply in response to new material provided in
support of Sterrett's reply.
instant complaint, Malhotra, on behalf of a putative class,
alleges claims under Sections 11 and 15 of the Securities
Act. The movants seek appointment as lead plaintiff for such
the Private Securities Litigation Reform Act, a district
court "shall appoint as lead plaintiff the member or
members of the purported plaintiff class that the court
determines to be most capable of adequately representing the
interests of class members." See 15 U.S.C.
§ 77z-1(a)(3)(B)(i). "The 'most capable'
plaintiff - and hence the lead plaintiff - is the one who has
the greatest financial stake in the outcome of the case, so
long as he meets the requirements of Rule 23 [of the Federal
Rules of Civil Procedure]," see In re
Cavanaugh, 306 F.3d 726, 729 (9th Cir. 2002), "in
particular, those of 'typicality' and 'adequacy,
'" see id. at 730 (quoting Rule 23).
it is undisputed that Sterrett has the greatest loss.
(See Heikali Decl. Ex. C (asserting Sterrett's
losses are $43, 441.90); Gilmore Decl. Ex. C (asserting
Maither's losses are between $15, 200.39 and $19,
951.65).) Additionally, there is no dispute, and the Court
finds, Sterrett's claims are typical of those of the
class members, in that, like other putative class members,
(1) he purchased shares in defendant Sonim Technologies, Inc.
("Sonim") after defendants allegedly made false and
misleading statements about Sonim's financial picture and
(2) he continued to own such shares on the date Sonim's
share price allegedly fell in response to certain truthful
disclosures made by defendants. See Hanlon v. Chrysler
Corp., 150 F.3d 1011, 1020 (9th Cir. 1998) (holding
"representative claims are 'typical' if they are
reasonably co-extensive with those of absent class
respect to adequacy, Sterrett relies on the statements in his
"Certification of Proposed Lead Plaintiff" filed in
support of his motion, and, in particular, on his statements
therein that he has selected experienced counsel to represent
him,  he did not purchase the subject securities
at the direction of counsel, and he is willing to serve as a
representative plaintiff and to provide testimony in support
of the class claims. (See Heikali Decl. Ex. B.) In
opposition to Sterrett's motion, Maither argues
Sterrett's showing nonetheless is deficient in that
Sterrett did not provide in his motion "even the most
basic background information about himself."
(See Maither's Opp. at 2:1-2.) Although Sterrett
contends such additional information is not required at this
stage of the litigation, he has filed in support of his reply
a declaration in which he sets forth information about his
background, which facts, read in connection with the showing
made in his motion, appear sufficient to show Sterrett would
be an adequate representative. As those additional facts were
not, however, provided prior to the reply, Maither has not
had an opportunity to respond.
if Maither wishes to file a surreply, limited to three pages
in length exclusive of exhibits, Maither shall file such
response no later than January 15, 2020, as of which date,
unless the parties are otherwise advised, the motions will
IS SO ORDERED.
The hearing scheduled for January 10,
2020, is hereby VACATED.
According to its resume, Faruqi &
Faruqi, LLP, the firm selected by Sterrett, has extensive
experience representing plaintiffs in class action securities