Kim v. Advanced Micro Devices, Inc. et al

Filing 31

ORDER granting 17 Dagdigian and Clark's Motion to Appoint Lead Plaintiff and Lead Counsel; finding as moot 21 Anderson's Motion to Appoint Lead Plaintiff and Lead Counsel. Signed by Judge Edward J. Davila on 6/11/2018. (ejdlc3S, COURT STAFF) (Filed on 6/11/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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DOYUN KIM,

Case No. 5:18-cv-00321-EJD

Plaintiff,
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v.
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United States District Court
Northern District of California

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ADVANCED MICRO DEVICES, INC., et
al.,
Defendants.

ORDER GRANTING DARREL
DAGDIGIAN AND HOWARD CLARK’S
MOTION TO APPOINT LEAD
PLAINTIFFS AND APPROVE
SELECTION OF COUNSEL
Re: Dkt. Nos. 17, 21

I. INTRODUCTION
In this securities fraud class action Darrel Dagdigian and Howard Clark (“Movants”) move

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for appointment as lead plaintiffs and approval of their selection of The Rosen Law Firm, P.A. as

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lead counsel. Dkt. 17. Theodore Anderson (“Anderson”) also filed a motion for appointment as

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lead plaintiff and approval of lead counsel (Dkt. 21), although Anderson later filed a notice of non-

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opposition to the competing motion (Dkt. 30). The Court finds it appropriate to take the matters

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under submission for decision without oral argument pursuant to Civil Local Rule 7-1(b). Having

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reviewed the Movants’ submissions and for the reasons set forth below, the Court grants the

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motion of Darrel Dagdigian and Howard Clark for appointment as lead plaintiffs and approval of

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their selection of The Rosen Law Firm, P.A. as lead counsel.

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II. BACKGROUND

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Defendant Advanced Micro Devices, Inc. (“AMD” or the “Company”) manufactures

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semiconductor products, including microprocessors, embedded microprocessors, chipsets,

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graphics, video and multimedia products. Complaint, ¶ 2. The Complaint alleges that between

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Case No.: 5:18-cv-00321-EJD
ORDER GRANTING DARREL DAGDIGIAN AND HOWARD CLARK’S MOTION TO
APPOINT LEAD PLAINTIFFS AND APPROVE SELECTION OF COUNSEL
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February 21, 2017 and January 11, 2018 (the “Class Period”), Defendants made materially false

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and misleading statements regarding the Company’s business, operational and compliance

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policies. Id. at ¶ 4. More specifically, Defendants allegedly “made false and/or misleading

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statements and/or failed to disclose that: (i) a fundamental security flaw in AMD’s processor

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chips renders them susceptible to hacking; and (ii) as a result, AMD’s public statements were

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materially false and misleading at all relevant times.” Id. Plaintiffs allege that on January 3, 2018,

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an AMD spokesperson advised investors that AMD’s chips were vulnerable to one variant of the

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“Spectre” security flaw, but that there was “near zero risk” that AMD chips were vulnerable to a

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second Spectre variant. Id. at ¶6. On January 11, 2018, however, AMD issued a press release
acknowledging that its chips were susceptible to both variants of the Spectre security flaw. Id. at

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United States District Court
Northern District of California

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¶ 7. The price of AMD shares fell $0.12 or .99% to close at $12.02 on January 12, 2018. Id. at

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¶ 9.

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III. DISCUSSION

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The Private Securities Litigation Reform Act of 1995 (“PSLRA”) sets forth procedures for

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the selection of lead plaintiff in class actions brought under the Exchange Act. 15 U.S.C. § 78u-

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4(a)(3)(B). To aid the court in its determination, each proposed lead plaintiff must submit a sworn

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“certification” setting forth certain facts designed to assure the court that the plaintiff (1) has

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suffered more than a nominal loss, (2) is not a professional litigant, and (3) is otherwise interested

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and able to serve as a class representative. 15 U.S.C. § 78u-4(a)(2)(A). The plaintiff who files the

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initial action must publish notice to the class within 20 days after filing the action, informing class

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members of their right to file a motion for appointment as lead plaintiff. 15 U.S.C. § 78u-

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4(a)(3)(A). Any member of the purported class may move to serve as lead plaintiff. Id. The

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PSLRA requires the district court to determine who among the movants for lead plaintiff status is

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the “most adequate plaintiff” and establishes a rebuttable presumption that the “most adequate

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plaintiff” to serve as lead plaintiff is the “person or group of persons” that:

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(aa) has either filed the complaint or made a motion in response to a
Case No.: 5:18-cv-00321-EJD
ORDER GRANTING DARREL DAGDIGIAN AND HOWARD CLARK’S MOTION TO
APPOINT LEAD PLAINTIFFS AND APPROVE SELECTION OF COUNSEL
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notice;
(bb) in the determination of the court, has the largest financial
interest in the relief sought by the class; and
(cc) otherwise satisfies the requirements of Rule 23 of the Federal
Rules of Civil Procedure.

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15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). The presumption may be rebutted only upon proof that the

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presumptively most adequate plaintiff “will not fairly and adequately protect the interests of the

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class” or “is subject to unique defenses that render such plaintiff incapable of adequately

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representing the class.” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II).

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Movants in this case satisfy the foregoing criteria for appointment as lead plaintiffs. First,
Movants timely filed the instant motion and submitted the requisite sworn certifications. See

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United States District Court
Northern District of California

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Rosen Decl., Ex. 2. Second, Movants allege that they purchased 152,781 net shares during the

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Class Period and lost $177,526.65. See Rosen Decl., Ex. 3. Movants have the largest financial

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interest in this litigation. Third, Movants satisfy the requirements of Rule 23, Fed. R. Civ. P.

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When ruling on a motion for appointment as lead plaintiff, the main focus is on the typicality and

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adequacy requirements of Rule 23. In re Cavanaugh, 306 F.3d 726, 730 (9th Cir. 2002). Movants

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represent that their claims are typical of the members of the class and their interests are aligned

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with the proposed class. Motion, pp. 5-6. Accordingly, Movants have made the preliminary

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showing necessary under the PSLRA.

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Once the court has designated a lead plaintiff, that lead plaintiff “shall, subject to the

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approval of the court, select and retain counsel to represent the class.” 15 U.S.C. § 78u–

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4(a)(3)(B)(v). A court generally should accept the lead plaintiff's choice of counsel unless it

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appears necessary to appoint different counsel to “protect the interests of the class.” Id. at § 78u–

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4(a)(3)(B)(iii)(II)(aa). Here, Movants have selected The Rosen Law Firm, P.A., to represent them.

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The Rosen Law Firm, P.A. has significant experience securities fraud litigation and class actions

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(see Rosen Decl., Exh. 4) and therefore there is no reason to appoint different counsel to protect

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the proposed class.

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Case No.: 5:18-cv-00321-EJD
ORDER GRANTING DARREL DAGDIGIAN AND HOWARD CLARK’S MOTION TO
APPOINT LEAD PLAINTIFFS AND APPROVE SELECTION OF COUNSEL
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IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:

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1.

Darrel Dagdigian and Howard Clark are appointed as Lead Plaintiffs;

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2.

The Rosen Law Firm, P.A. is appointed as Lead Counsel;

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3.

No later than June 25, 2018, 2018, Lead Plaintiffs and Defendants shall confer and

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propose to the Court a new case management conference date, as well as a schedule for the

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filing of an amended complaint or other designation of the operative complaint, and the

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filing of Defendants’ response(s) thereto, including by motion to dismiss or otherwise; and

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4. No later than July 2, 2018, the parties shall file a joint report regarding the results of the

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meet and confer process or a stipulation and proposed order addressing the topics set forth

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United States District Court
Northern District of California

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in item 3 above.

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IT IS SO ORDERED.

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Dated: June 11, 2018
______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:18-cv-00321-EJD
ORDER GRANTING DARREL DAGDIGIAN AND HOWARD CLARK’S MOTION TO
APPOINT LEAD PLAINTIFFS AND APPROVE SELECTION OF COUNSEL
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