Tuttle et al v. Sky Bell Asset Management LLC et al

Filing 317

ORDER PARTIALLY GRANTING MOTION FOR CLASS CERTIFICATION by Hon. William Alsup granting in part and denying in part 307 Motion to Appoint Counsel.(whalc2, COURT STAFF) (Filed on 2/10/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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EDGAR W. TUTTLE, ERIC BRAUN, THE BRAUN
FAMILY TRUST by its co-trustee ERIC BRAUN,
and WENDY MEG SIEGEL, on behalf of themselves
and all others similarly situated,

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ORDER PARTIALLY
GRANTING MOTION FOR
CLASS CERTIFICATION

Plaintiffs,

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No. C 10-03588 WHA

v.
SKY BELL ASSET MANAGEMENT, LLC, et al.,
Defendants.
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INTRODUCTION
A motion for class certification was earlier conditionally granted. Having satisfied the

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conditions set forth in that order, plaintiffs now move for certification of classes. After

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consideration of the record and a hearing, this order certifies three classes, appoints class counsel,

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and appoints a class representative for each class.

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STATEMENT

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This action began as a suit against 25 defendants. Six remain. Certification of the classes

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is sought only as to auditor defendant Rothstein Kass & Company, PC. The background has been

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set forth in previous orders (see Dkt. No. 264). This action is based on various state law theories.

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It is not a securities fraud case. Various limited partnership investment opportunities cratered.

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All of the investment opportunities were arranged and controlled by defendant Sky Bell Asset
Management, LLC. In turn, the investment funds invested in yet other funds ostensibly in

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accordance with the stated investment strategies. Each opportunity was a separate limited

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partnership and each went bad. Plaintiffs allege that the auditor should have discovered the

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various management wrongs.

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Plaintiffs move for certification of classes to be defined as follows (Br. 2):

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All persons who hold limited partnership interests in Agile Sky
Alliance Fund, LP; Night Watch Partners, LP; and/or PipeLine
Investors, LP. Excluded from the Classes are the Defendants, the
officers, directors, and agents of the Defendants, as well as
members of their families, heirs, successors or assigns, and any
entity in which Defendants have or had a controlling interest.

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1.

PRIOR ORDER CONDITIONALLY GRANTING
MOTION FOR CLASS CERTIFICATION.

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(Dkt. No. 207). Following consideration of full briefing, various supplemental submissions, and a
For the Northern District of California

United States District Court

A hearing on plaintiffs’ initial motion for class certification took place in October 2011
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hearing, an order conditionally granted plaintiffs’ motion (Dkt. No. 264). Three of the four
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proposed classes were conditionally certified, namely an Agile Sky class, Night Watch class, and
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PipeLine class, each consisting of persons or entities who acquired limited partnership interests in
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the respective limited partnerships. The fourth proposed class, consisting of persons or entities
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who acquired limited partnership interests in Wailea Partners, LP, was not certified, conditionally
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or otherwise.
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The order analyzed each of the Rule 23(a) requirements. It found numerosity lacking for
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the proposed Wailea class. Thus, all class claims against defendant McGladrey & Pullen, LLP,
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fell away, leaving Rothstein Kass as the only auditor defendant remaining in the action.
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Numerosity was found as to the proposed PipeLine, Night Watch, and Agile Sky classes based on
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counsel’s representations and documentation that, at a minimum, the limited partnerships had the
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following number of non-defendant investors: PipeLine had 93; Night Watch had 70; and Agile
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Sky had 40. Post order and recent submissions, however, now show that the PipeLine class has
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only 35 non-defendant investors. This shortfall will be addressed below. Commonality and
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typicality as to the three proposed classes were also found.
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As to adequacy, Mr. Eric Braun was found to be an adequate representative of the
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proposed PipeLine class. Mr. Edgar Tuttle was found to be an adequate representative of the
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proposed Night Watch class. A determination of the adequacy of the proposed representative for

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the Agile Sky class was not made. Instead, plaintiffs were permitted to amend their complaint to

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clarify whether the proposed representative for the Agile Sky class was the Braun Family Trust,

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or Mr. Braun, as co-trustee on behalf of the Braun Family Trust, as was suggested in the reply

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brief. This issue is resolved herein below.

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Gold Bennett Cera & Sidener LLP, plaintiffs’ counsel of record at the time, sought

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appointment as class counsel. After thorough review of their unsatisfactory record of

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performance in this action, the order concluded that Gold Bennett Cera & Sidener LLP, would be

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appointed class counsel only subject to satisfaction of the conditions set forth in that order,
namely, association of co-counsel “known to practice at the level customary for an investor class

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For the Northern District of California

United States District Court

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in this district” (Dkt. No. 264 at 10–11).

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As to Rule 23(b)(3), under which plaintiffs sought certification, the order found that there

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were “clear common issues of fact as to each of the proposed classes concerning the quality of the

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work performed by Rothstein Kass on its audits of the three limited partnerships at issue” (id. at

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9). The order presumed those issues would predominate and also found that a class action would

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probably be superior to multiple individual actions and that difficulty in managing the class action

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would be reduced, as the case had been narrowed to only one defendant.

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2.

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After the hearing on the motion for class certification, plaintiffs were permitted to amend

AMENDED CLAIMS FOR RELIEF.

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to cure various pleading defects. Plaintiffs filed a fourth amended complaint to make clear that

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claims three, four, and five were alleged by the Night Watch and PipeLine classes, not only the

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Agile Sky class.

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The fourth amended complaint now pleads five claims for relief. Certification is sought as

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to claims two, three, four, and five, all alleged against Rothstein Kass. The claims are as follows:

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claim two alleges aiding and abetting breaches of fiduciary duty; claim three alleges negligence;

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claim four alleges unjust enrichment; and claim five alleges for an accounting. This order does

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not adjudicate whether any such claims have merit.

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The order conditionally granting the motion for class certification specifically stated that

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classes would not be defined and certified until: (1) association of co-counsel “known to practice

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at the level customary for an investor class in this district”; (2) submission of a precise list of

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investors for the Agile Sky, PipeLine, and Night Watch classes, including names, addresses,

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amounts invested, and the date of investment; and (3) submission by counsel indicating the

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longest period of statute of limitations. These conditions have been satisfied.

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ANALYSIS
Rule 23(a) requires a court granting class certification to find: (1) numerosity of the class;
(2) commonality of legal or factual questions; (3) typicality of the named plaintiffs’ claims and
defenses; and (4) that the named plaintiffs and plaintiffs’ counsel can adequately protect the

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For the Northern District of California

United States District Court

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interests of the class. Certification under Rule 23(b)(3) requires that the court find “that the

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questions of law or fact common to class members predominate over any questions affecting only

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individual members, and that a class action is superior to other available methods for fairly and

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efficiently adjudicating the controversy.”

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The prior order left three main substantive issues to be resolved, pending submission of

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supplemental briefing: (1) choice of law regarding class claims; (2) adequacy of the proposed

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class counsel and proposed Agile Sky class representative; and (3) definition of the classes. In

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light of plaintiffs’ submission of a corrected list of investors, a fourth issue now needs to be

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discussed regarding numerosity as to the PipeLine class, next addressed.
NUMEROSITY.

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1.

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As stated, numerosity was found as to the PipeLine, Agile Sky, and Night Watch proposed

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classes, all based on the representations of counsel. The Court determined that at a minimum the

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PipeLine class would consist of 93 members.

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After the order conditionally granting the motion for class certification, counsel submitted

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a list of investors for the three proposed classes. By the Court’s count, the list identified the

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following number of non-defendant investors: PipeLine had only 35, not 93 as earlier

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represented; Night Watch had 80; and Agile Sky had 53. An order issued requiring counsel to

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explain the discrepancy in the number of prospective PipeLine class members previously
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proffered to the Court and the number identified in plaintiffs’ submission dated November 30,

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2011. Defendant Rothstein Kass responded that it had previously determined that there were 93

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PipeLine class members based on a physical count of K-1s sent to persons or entities who were

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investors in PipeLine in 2006, which was the last year it conducted an audit for PipeLine (Dkt.

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No. 311).

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In their response, counsel for plaintiffs indicated that after the conditional class

successor auditor to Rothstein Kass, who performed the audit for the year ended December 31,

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2008. Those records formed the basis of plaintiffs’ more recent corrective submission. Plaintiffs

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now state that as of December 1, 2008, the year in which the limited partners sustained damages

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For the Northern District of California

certification order, they obtained additional records from the PipeLine partnership and the

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United States District Court

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in connection with their respective Sky Bell partnership investments, there were only 39 limited

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partners in the PipeLine class, from which four must be deducted as affiliated with defendants.

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Defendant does not dispute this.

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It is regrettable that counsel’s previous submissions on the numerosity issues were so

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unreliable. Still, we will continue with class treatment given that we have come so far down the

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road of class certification (and given that defendant does not oppose) (Dkt. No. 307).

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2.

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Where certification of a nationwide class is sought, as it is here, there is the potential that

CHOICE OF LAW AND MANAGEABILITY.

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class treatment would be unmanageable if various state laws were applied to the claims. At the

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first hearing on the class certification motion, in an effort to address this potential problem of

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manageability, the Court inquired as to whether California law would apply to all claims.

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Defendant contended that it should not. Plaintiffs disagreed. Supplemental briefing was ordered

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to address this choice-of-law issue.

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The parties expressly agree that the negligence claim will be governed by California law

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(Dkt. Nos. 272 at 3; 279 at 10). As for the claim for aiding and abetting breaches of fiduciary

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duty, the parties disagree. Plaintiffs call for California law to apply. Defendant contends that

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Delaware law should apply to some, if not all, of the individual class members claims for aiding

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and abetting breaches of fiduciary duty. Resolution of this choice-of-law issue can be postponed,
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for at a minimum, we now know that there will not be a multiplicity of various state laws tied to

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the residency of individual class members. Therefore, most likely, there will not be a

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manageability problem on the issue of choice of law.

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With respect to the claim for an accounting, the calculus is more complicated. Plaintiffs

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state that California law applies. Defendant states that the law of residence of the individual

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members of the class applies and points specifically to the laws of Florida, Washington,

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Colorado, and New York, which defendant deems “the most prevalent among the states of

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plaintiffs’ residence” (Dkt. No. 272 at 2). Again, however, this issue can be postponed because

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even if four or five other state laws will need to be applied, a question not now resolved, it will be

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For the Northern District of California

United States District Court

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manageable.
With respect to the unjust enrichment claim, plaintiffs invoke California law and

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defendant remains silent, thereby acquiescing to application of California law. It is worth

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observing further that in the Court’s judgment, unjust enrichment is not a stand-alone “cause of

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action,” but instead, is a form of relief (that may be or may not be warranted after some other

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claim is established).

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With respect to the general issue of manageability, therefore, this order finds that the
action can be managed effectively as a class action.
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ADEQUACY OF PROPOSED CLASS COUNSEL AND
PROPOSED AGILE SKY CLASS REPRESENTATIVE.

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Rule 23(a)(4) requires that the “representative parties will fairly and adequately protect
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the interests of the class.” This requires that (1) the proposed representative plaintiffs and their
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counsel do not have any conflicts of interest with the proposed class and (2) that the named
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plaintiffs and their counsel will prosecute this action vigorously on behalf of the class. Hanlon v.
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Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998).
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A.

Proposed Agile Sky Class Representative.

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In their opening brief on the initial motion for class certification, plaintiffs proposed that
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the Braun Family Trust be named as class representative for the Agile Sky class. On reply,
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plaintiffs requested that Mr. Braun, who is co-trustee of the Braun Family Trust, serve as the class
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representative (Dkt. No. 236 at 6). To avoid potential standing issues that may be raised as to the
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Trust’s capacity to sue as a trust, plaintiffs were granted leave to amend their complaint to reflect

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that the Braun Family Trust would be suing by its co-trustee Mr. Braun. Plaintiffs so amended.

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The Braun Family Trust invested in the Agile Sky Alliance Fund, LP, and alleges harms

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resulting from Rothstein Kass’ audit of the limited partnership. Mr. Braun, as co-trustee of the

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Braun Family Trust, would be an adequate representative for the Agile Sky class.

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Mr. Braun was found to be an adequate representative of the proposed PipeLine class and
Mr. Tuttle was found to be an adequate representative of the proposed Night Watch class.

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B.

Proposed Class Counsel.

The order conditionally granting the motion for class certification required Gold Bennett
Cera & Sidener LLP, to associate co-counsel in order to be considered for appointment as class

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For the Northern District of California

United States District Court

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counsel. The firm of Cohen Milstein Sellers & Toll PLLC, was associated as co-counsel and

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requests to be appointed, together with Gold Bennett Cera & Sidener LLP, as class counsel.

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Cohen Milstein Attorneys Herbert E. Milstein (partner), Joshua S. Devore (partner), and Matthew

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B. Kaplan (associate) have entered appearances on behalf of plaintiffs. The Court expects

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Attorney Milstein to take an active role in managing this case.

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Review of the firm and new co-counsel’s resumes shows that the Cohen Milstein firm has

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represented individuals, small businesses, institutional investors, and employees in major class

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actions across the country, including in this district, and before this judge. Furthermore, the

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resumes of newly-joined co-counsel show that they are experienced securities class-action

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litigators.

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The previous order discussed the record of performance of Gold Bennett in this action in

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detail (Dkt. No. 264 at 10–11). Given their extensive work on this action to date, and thus, their

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familiarity with the facts, there will be some benefit to the classes to permitting Gold Bennett to

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serve as class counsel along with Cohen Milstein.

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The order finds the firms of Cohen Milstein and Gold Bennett will provide adequate

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representation to the classes and vigorously prosecute this action. Defendant does not challenge

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the adequacy of the above-named counsel to serve as class counsel (Dkt. Nos. 271 and 307).

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CONCLUSION
For all of the above-stated reasons, plaintiffs’ motion for class certification is GRANTED
IN PART AND DENIED IN PART.

The following Agile Sky class is CERTIFIED under Rule 23(b)(3) to pursue claims for an

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accounting, unjust enrichment, aiding and abetting breaches of fiduciary duty, and negligence

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against Rothstein Kass & Company, PC:

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For the Northern District of California

United States District Court

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All persons or entities that held a limited partnership interest in
Agile Sky Alliance Fund, LP, during the time period Rothstein
Kass & Company, PC, provided accounting services or conducted
audits of Agile Sky Alliance Fund, LP’s financial statements,
including anyone who has acquired claims against Rothstein Kass
& Company, PC, arising out of such accounting and auditing
services during said period. This class includes, without
limitation, the following persons or entities and their affiliates
and/or related persons or entities: Andrew Glassner; Braun Family
Trust (Eric Braun & Wendy Siegel Trust); Brooke T. McLaughlin;
Blair C. McLauglin; The Carrswold Partnership; The Bruce and
Lisa Cary Family Trust dtd 3/7/95; Charles Scull TTEE Theodore
C Scall ‘91 TRUST 05/30/91; Clark Family Trust; David F.
Kaplan; David Muckenhirn; Deustch Bank (Cayman), Ltd fbo
HSBC USA; Inc; DFK Limited Partnership; Elton B. Fox Trust;
NTC & Co. FBA Paul J. Kress IRA; NTC & Co. FBO Nathaniel I.
Durlach IRA; Frantzis Revocable Trust; Gary Marks d/o/t 10/7/96;
Geoff M. Gotsch Management Trust; Goldsmith Services LLC;
Henri S. Shatkin; James C. Sciaroni; Janet Cooper Trust dtd
9/25/95; Jeffrey Wolinsky; JMG Investment Trust (Josh Glazier,
Trustee); Jones Family Trust; Kimberly Taylor; Lefebvre, Jon;
Linda H. McLaughlin; M. Mehdi Akhavein; Margaret A. Cellucci;
Marie Kotik; Michael K. Leary Revocable Trust, dtd 7/9/92;
Neubieser Family Revocable Trust; Night Watch Partners LP;
NYROY* – Acct # 1516 Pledged to Royal Bank of Canada; Ozcar
Multi Strategies LLC Class C #13; Ozcar Multi Strategies, LLC
Class C #144; Peter M. Durlach; Phoenix Lake Partners Series E;
Pipeline Investors LP; Radetsky Family Trust; RBC Alternative
Assets L.P.; Richard L. & Patricia E. Bennett; Richard Maloof;
Christopher & Marni Ris Family Trust; Rosalind C. Barnett; NTC
& Co. FBO Samuel Rosenberg IRA; Sheilah J. Glover Revocable
Living Trust; Sovereign Inherent Return Fund, LP; Stephen G.
And Cathryn W. Schmidt; Steven K. Fox; Straus, Ari, & Molly;
Straus, Marc, & Livia; The Irrevocable Gifting Trust FBO Pamela
Anna Polland-Ernst; Thomas R. Thurston; Timothy McLaughlin;
and Throne, James, & Dorothy.

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Excluded from the Class are defendants, the officers, directors, and
agents of the defendants, as well as members of their families,
heirs, successors or assigns, and any entity in which defendants
have or had a controlling interest, and any of the above-named
individuals or entities who timely opt out.

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The following Night Watch class is CERTIFIED under Rule 23(b)(3) to pursue claims for

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an accounting, unjust enrichment, aiding and abetting breaches of fiduciary duty, and negligence

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against Rothstein Kass & Company, PC:

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For the Northern District of California

United States District Court

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All persons or entities that held a limited partnership interest in
Night Watch Partners, LP, during the time period Rothstein Kass
& Company, PC, provided accounting services or conducted audits
of Night Watch Partners, LP’s financial statements, including
anyone who has acquired claims against Rothstein Kass &
Company, PC, arising out of such accounting and auditing services
during said period. This class includes, without limitation, the
following persons or entities and their affiliates and/or related
persons or entities: Andres Edwards & Rochelle J Edwards TTEES
of the Edwards Family Trust 2002; Andrew Glassner; Brenda J
Scarborough; Bruce and Lisa Cary Family Trust; Bruce or
Caroline Frantzis TTEES Frantzis Revocable Trust dtd Apr 10,
1995; Carol Golden; Charles S. Scull; Charles Scull TTEE
Theodore C. Scull Trust 5/30/91; Charles Scull TTEE Theodore C.
Scull Trust 6/10/96; Charles Schwab & Co. FBO Michael K Leary
IRA; Christine Doan; Christopher & Marni Ris Family Trust dtd
10/20/99; Christopher Ris Custodian for Shallin E Ris UCAUTMA
until age 21; Clare McLaughlin (Wood); Clark Family Trust;
Commercial Associates LLC; Dale Borglum; David Muckenhirn;
Dean J. Radetsky, Custodian for Amara M. Radetsky CAUTMA til
age 25; Diane Vasiliou; Donald Barrick; Edgar and Mara Tuttle;
Elizabeth A Russell Rev Trust; Elizabeth Wright; Frederick and
Regina Bertrand; Goldsmith Services, LLC; Greg Carroll; Gregory
B. & Bobbe DAmbrosio Collins; The Jacob Liberman Revocable
Trust dtd 10/03/02; James C. Sciaroni; Janet Cooper Trust dtd
9/25/95 (c/o Michael Green, CPA); Jeffrey Wolinsky; Joe
Matulich & Stacy Stone; Jones Family Trust, dated 1/25/06;
Katherine Norby; Kathryn J. Harris; Linda H. McLaughlin; M & S
Capital Fund; Margaret A. Cellucci MPP (First Trust Corp. FBO);
Margaret A. Cellucci PSP; Margaret A. Cellucci Trust; Mark
Christiansen & Amy Lodato, JTWROS; Michael R. & Judi
Keenholtz Revocable Trust; Millennium TrustCo., LLC Ttee/Cust
FBO Michael Kevin Leary IRA 90R590010; Nadine M. Payn 2002
Trust; Nathaniel Durlach; NTC & Co. FBO Alfred Neubieser PRI
Account # 060000012427; NTC & Co. FBO Andrew Stephen
Andrew Glassner PRI Account # 031038027760; NTC & Co. FBO
Bruce M Cary PRI Account # 007901130002; NTC & Co. FBO
Carol Ann Golden PRI Account # 031050001072; NTC & Co.
FBO Dario Campanile PRI Account # 031038004707; NTC & Co.
FBO Deborah Braun PRI Account # 060000111798; NTC & Co.
FBO Joseph Matulich PRI Account # 060000003453; NTC & Co.
FBO Karin Smatt-Robbins PRI Account # 031038014300; Lisa B
Cary PRI Account # 007901130003; NTC & Co. FBO Nadine M.
Payn PRI Account # 060000091729; NTC & Co. FBO Norm
Gotsch PRI Account # 060000008820; NTC & Co. FBO Paul J.
Kress PRI Account # 031038029899; NTC & Co. FBO Richard E.
Russell PRI Account # 031038016562; NTC & Co. FBO Richard
L. Bennett PRI Account # 031038027773; NTC & Co. FBO Stacey
Stone PRI Account # 060000003452; NTC & Co. FBO Stacey
Stone PRI Account # 060000003472; NTC & Co. FBO Thomas
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Richard Thurston PRI Account # 003403210001; NTC & Co. FBO
Thomas Richard Thurston PRI Account # 031037998801; NTC &
Co. FBO Virginia De Bonis PRI Account # 060000011875;
Pamela Anna Polland-Ernst Revocable Trust dtd 12/15/98 as
amended; Peter Durlach; Radetsky Family Trust; Randal D.
Bensen & Aline S. Bensen Community Property; Richard Maloof;
Rosalind C. Barnett; Sarah Keenan Living Trust; Scott Thomas
Vallerga; Sheilah J Glover TTEE Shelia J Glover Revocable
Living Trust dtd 10/18/88; Sky Bell Asset Management, LLC;
Stephen G. And Cathryn W. Schmidt; Steven K. Fox; The
Neubieser Family Revocable Trust; Thomas Thurston; Trust A of
the Last Will and Testament of Don J Clark 02/11/82; Trust under
trust agreement of Andrew Braun dtd 10/16/98 for the benefit of
Deborah Braun.

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The following PipeLine class is CERTIFIED under Rule 23(b)(3) to pursue claims for an
For the Northern District of California

United States District Court

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Excluded from the Class are defendants, the officers, directors, and
agents of the defendants, as well as members of their families,
heirs, successors or assigns, and any entity in which defendants
have or had a controlling interest, and any of the above-named
individuals or entities who timely opt out.

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accounting, unjust enrichment, aiding and abetting breaches of fiduciary duty, and negligence
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against Rothstein Kass & Company, PC:
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All persons or entities that held a limited partnership interest in
PipeLine Investors, LP, during the time period Rothstein Kass &
Company, PC, provided accounting services or conducted audits of
PipeLine Investors, LP’s financial statements, including anyone
who has acquired claims against Rothstein Kass & Company, PC,
arising out of such accounting and auditing services during said
period. This class includes, without limitation, the following
persons or entities and their affiliates and/or related persons or
entities: Andrew Glassner; Bruce and Lisa Cary Family Trust;
Carol Golden; Carona Partners, Ltd.; Charles Schwab c/f Anthony
Cockcroft IRA # 8117-0784; Charles Scull TTEE Theodore C.
Scull Trust 6/10/96; Clark Family Trust; Dan Zak; Elton B. Fox
Trust; Energy Arts PSP – Bruce Frantzis; Gary Marks; Geoffrey
M. Gotsch Management Trust dtd 4/3/2006; Henry S. Shatkin;
James C. Sciaroni; Jeffrey Wolinsky; Linda H. McLaughlin;
Margaret A. Cellucci; Mark Christiansen & Amy Lodato,
JTWROS; Michael K. Leary Revocable Trust dtd 7/9/92, amended
10/31/95; Michael Sanderson; Night Watch Partners, LP; NTC &
Co. FBO Eric Alan Braun PRI Account # 031038011148; NTC &
Co. FBO Christopher Ris PRI Account # 031038003034; NTC &
Co. FBO Christopher Ris PRI Account # 060000083827; NTC &
Co. FBO Gregory B Collins PRI Account # 031038030747; NTC
& Co. FBO Mark Christiansen PRI Account #060000068440;
Orest Bilous Living Trust; Phoenix Lake Partners, LP – Series
E(2); Radetsky Family Trust; Ray Cote; Richard Maloof; Robert
Dupree IRA Charles Schwab & Co., Inc. Custodian; Sheilah J
Glover TTEE Sheilah J Glover Revocable Living Trust dtd
10/18/88; Sky Bell Asset Management, LLC; Steven K. Fox; The
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Neubieser Family Revocable Trust; Vevey Holdings Limited;
William Nelson; William M. Ernst Revocable Trust.

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Excluded from the Class are defendants, the officers, directors, and
agents of the defendants, as well as members of their families,
heirs, successors or assigns, and any entity in which defendants
have or had a controlling interest, and any of the above-named
individuals or entities who timely opt out.

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The class definitions shall apply for all purposes, including settlement. Eric Braun is
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APPOINTED as class representative of the PipeLine class. Edgar Tuttle is APPOINTED as class
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representative of the Night Watch class. Eric Braun, as co-trustee of the Braun Family Trust, is
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APPOINTED as class representative of the Agile Sky class.
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Pursuant to Rule 23(g), Attorneys Gwendolyn R. Giblin and Solomon B. Cera of the Gold
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Matthew B. Kaplan of the Cohen Milstein Sellers & Toll PLLC, firm are hereby APPOINTED as
For the Northern District of California

United States District Court

Bennett Cera & Sidener LLP, firm and Attorneys Herbert E. Milstein, Joshua S. Devore, and
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class counsel for all plaintiff classes. Gold Bennett Cera & Sidener LLP, and Cohen Milstein
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Sellers & Toll PLLC, must make a conscious effort to reduce and eliminate duplication of efforts.
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Counsel shall have until FEBRUARY 21, 2012, to vet the names listed as being included in
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the class and to advise the Court of any and all corrections.
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Plaintiffs have submitted a form of class notice and plan of dissemination. By FEBRUARY
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21, counsel shall submit an agreed-on form of class notice and plan of dissemination and time
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table. The class notice shall state the following very near the outset:
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Control of any and all claims that class members individually and
collectively have against Rothstein Kass & Company, PC, will be
transferred to the class representative and their counsel, except for
class members who opt out by the deadline. This means that if you
remain in the class and the class loses or receives a disappointing
outcome, you and all other class members will be stuck with that
outcome and cannot sue again. Therefore, you should think
carefully whether you wish control of your claim(s) against
Rothstein Kass to be controlled by the respective class
representatives and class counsel, as opposed to controlling the
claim(s) yourself. You should also be aware that if there is any
recovery, plaintiffs’ counsel will seek a percentage of this recovery
as a fee, over and above recovery of their amount of out-of-pocket
expenses. Defendant Rothstein Kass & Company, PC has stated
its intention to bring a motion for summary judgment. If this was
to occur, and if the motion was granted in full, there would not be
a trial and your claim(s) would be extinguished. It is also possible
that summary judgment could be granted as to some claims but not
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others, in which case, trial would proceed only on those claims that
survived summary judgment.

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IT IS SO ORDERED.

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Dated: February 10, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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