Sating v. Rayonier Inc. et al
Filing
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ORDER granting 36 Motion for Appointment as Lead Plaintiff and Approval of Lead Counsel. The Pension Trust Fund for Operating Engineers and the Lake Worth Firefighters' Pension Trust Fund are appointed as Lead Plaintiff. Saxena White P.A. and Berstein Litowitz Berger & Grossmann LLP are approved as Lead Counsel. 49 Agreed Motion for Briefing Schedule is granted in part and denied in part. Consolidated complaint due by 4/7/2015; defendants' answer or motion to dismiss due by 5/15/20 15; Lead Plaintiff's response to motion to dismiss due by 6/15/2015; defendants' reply due by 7/15/2015. The case is set for hearing on the motion to dismiss on 8/25/2015, at 10:00 a.m. in Jacksonville Courtroom 10D before Judge Timothy J. Corrigan. The Clerk is directed to terminate any attorney who has not sought leave to appear pro hac vice or registered for electronic filing. Signed by Judge Timothy J. Corrigan on 2/25/2015. (BJB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
In re Rayonier Inc. Securities
Litigation
Case No. 3:14-cv-1395-J-32JBT
ORDER
This case is before the Court on the Motion of the Pension Trust Fund for
Operating Engineers’s (“Operating Engineers”) and the Lake Worth Firefighters'
Pension Trust Fund (“Lake Worth”) for Appointment as Lead Plaintiff and Approval
of Their Selection of Lead Counsel (Doc. 36), their Supplemental Brief (Doc. 57), and
the parties’ Agreed Motion for Briefing Schedule (Doc. 49). The motion for
appointment and supplemental brief ask the Court to jointly appoint Operating
Engineers and Lake Worth as lead plaintiff pursuant to 15 U.S.C. § 78u-4(a)(3)(B)(i)
of the Private Securities Litigation Reform Act of 1995 (PSLRA) and to approve their
selection of lead counsel to represent the class. No other motion for appointment as
lead plaintiff or opposition to this motion for appointment has been filed. (See Doc. 48.)
I.
APPOINTMENT OF LEAD PLAINTIFF
The PSLRA provides for the appointment as lead plaintiff of “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 (hereafter in this paragraph
referred to as the ‘most adequate plaintiff’) in accordance with this subparagraph.” 15
U.S.C. § 78u-4 (a)(3)(B)(i). Even when a motion for appointment as lead plaintiff is
unopposed, the court must still make this determination on its own. 15 U.S.C. § 78u4(a)(3)(B)(i); Biver v. Nicholas Fin., Inc., No. 8:14-cv-250-T-33TGW, 2014 WL 1763211,
at *2 (M.D. Fla. Apr. 30, 2014). The PSLRA directs the court to adopt the rebuttable
presumption that the most adequate plaintiff is “the person or group of persons” that:
(aa) has either filed the complaint or made a motion [to serve as lead
plaintiff];
(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.
15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). This presumption may be rebutted by proof that the
proposed lead plaintiff “will not fairly and adequately protect the interests of the class”
or “is subject to unique defenses that render such plaintiff incapable of adequately
representing the class.” Id. at § 78u-4(a)(3)(B)(iii)(II).
The PSLRA also includes a restriction against “professional plaintiffs” serving
as lead plaintiffs:
Except as the court may otherwise permit, consistent with the purposes
of this section, a person may be a lead plaintiff, or an officer, director, or
fiduciary of a lead plaintiff, in no more than 5 securities class actions
brought as plaintiff class actions pursuant to the Federal Rules of Civil
Procedure during any 3-year period.
Id. § 78u-4(a)(3)(B)(vi). At the Court’s request, the movants filed a supplemental brief
addressing the application of this restriction in this case. (Doc. 57.)
Upon due consideration, the Court finds that Operating Engineers and Lake
Worth are “the most adequate plaintiff” and satisfy the requirements of the PSLRA.
They are the only persons to have filed a motion for appointment as lead plaintiff. See
15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)(aa). Their estimated combined losses are
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approximately $573,771. 1 (Doc. 36 at 6.) The Court has no evidence that any other
person has a larger financial interest in the case. See 15 U.S.C. § 78u4(a)(3)(B)(iii)(I)(bb). The Court also finds that Operating Engineers and Lake Worth
otherwise satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure.
Id. § 78u-4(a)(3)(B)(iii)(I)(aa). They are therefore entitled to the rebuttable
presumption that they are the most adequate plaintiff. Id. § 78u-4(a)(3)(B)(iii)(I). The
Court has been presented with no proof rebutting the presumption.
Moreover, the Court agrees with the movants that, to the extent the restriction
on professional plaintiffs in subsection (vi) might apply, Operating Engineers is not
the kind of entity Congress intended to restrict from serving as lead plaintiff. See Dees
v. Colonial Bancgroup, Inc., No. 2:09cv104, 2009 WL 1285424, at *1-2 (M.D. Ala. May
7, 2009). Finally, the materials submitted in support of the motion and the
supplemental brief indicate that the joint appointment of Operating Engineers and
Lake Worth does not conflict with the purposes of appointing a lead plaintiff in a
securities class action. The Court therefore concludes that Operating Engineers and
Lake Worth should be appointed lead plaintiff.
II.
SELECTION OF LEAD COUNSEL
The PSLRA also provides that the “most adequate plaintiff shall, subject to the
approval of the court, select and retain counsel to represent the class.” 15 U.S.C. §
Aggregating losses has been permitted by other courts in this District and
within the Eleventh Circuit. See Eastwood Enters. v. Farha, Nos. 8:07-cv-1940-T24MSS, 8:07-cv-1993-T-24TBM, 2008 WL 687351, at *2 (M.D. Fla. Mar. 11, 2008)
(discussing motions for joint appointment as lead plaintiff and aggregation of losses).
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78u-4(a)(3)(B)(v). Courts have found that the district court “should generally employ
a deferential standard in reviewing the lead plaintiff’s choices.” In re Cendant Corp.
Litig., 264 F.3d 201, 274 (3d Cir. 2001); see also Cohen v. U.S. Dist. Court for the N.
Dist. of Cal., 586 F.3d 703, 712 (9th Cir. 2009) (“[W]e hold that if the lead plaintiff has
made a reasonable choice of counsel, the district court should generally defer to that
choice.”). Upon due consideration, the Court determines that Saxena White P.A. and
Berstein Litowitz Berger & Grossmann LLP both have substantial experience in
securities class actions, and therefore defers to Operating Engineers’s and Lake
Worth’s selection of the firms as lead counsel.
III.
BRIEFING SCHEDULE
Finally, the Court has reviewed the parties’ agreed motion for entry of a
schedule for filing a consolidated complaint and briefing any motion to dismiss. The
parties propose an exceedingly extended briefing schedule, with the motion to dismiss
not being fully briefed until the end of September. (Doc. 49 at 2.) During this time,
discovery would be presumably be stayed. See 15 U.S.C. § 78u-4-(b)(3)(B).
The Court recognizes that the heightened pleading standards imposed by the
PSLRA means many securities cases are resolved at the pleading stage. See 15 U.S.C.
§ 78u-4(b)(1)-(2). But the parties’ proposal is too extended. Upon due consideration,
the Court will set a briefing schedule as requested, but will set the deadlines it deems
appropriate.
Accordingly, it is hereby
ORDERED:
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1.
The Motion of the Pension Trust Fund for Operating Engineers and the
Lake Worth Firefighters' Pension Trust Fund for Appointment as Lead Plaintiff and
Approval of Their Selection of Lead Counsel (Doc. 36) is GRANTED.
2.
The Pension Trust Fund for Operating Engineers and the Lake Worth
Firefighters’ Pension Trust Fund are APPOINTED as Lead Plaintiff.
3.
Lead Plaintiff’s selection of Saxena White P.A. and Berstein Litowitz
Berger & Grossmann LLP as Lead Counsel is APPROVED.
4.
No motion, request for discovery, or other pretrial proceeding shall be
initiated or filed by any plaintiff without the approval of Lead Counsel, so as to prevent
duplicative pleadings or discovery. No settlement negotiations should be conducted
without the approval of Lead Counsel.
5.
The Agreed Motion for Briefing Schedule (Doc. 49) is GRANTED in part
and DENIED in part. The Court sets the following preliminary case schedule:
a.
On or before April 7, 2015, Lead Plaintiff shall file a Consolidated
Complaint.
b.
On or before May 15, 2015, defendants shall file any answer or
motion to dismiss the Consolidated Complaint.
c.
On or before June 15, 2015, Lead Plaintiff shall file any opposition
to the motion to dismiss.
d.
On or before July 15, 2015, defendants shall file any reply brief in
support of the motion to dismiss, not to exceed fifteen pages in length.
e.
The motion to dismiss is SET for HEARING on August 25, 2015,
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at 10:00 a.m., before the undersigned in the United States Courthouse,
Courtroom 10D, 300 North Hogan Street, Jacksonville, Florida. 2 The Court
intends to discuss scheduling for the remainder of the case at the June 17, 2015
hearing.
f.
The requirements of Local Rule 4.04(b) are suspended until
further order of the Court.
6.
The Clerk is DIRECTED to terminate any attorney who has not yet
sought leave to appear pro hac vice and/or registered for electronic filing with the
Middle District of Florida.
DONE AND ORDERED at Jacksonville, Florida this 25th day of February,
2015.
bjb
Copies to:
Counsel of record
All persons entering the Courthouse must present photo identification to
Court Security Officers. Although cell phones, laptop computers, and similar electronic
devices are not generally allowed in the building, counsel are permitted to bring those
items with them upon presentation to Court Security Officers of a Florida Bar card or
Order of special admission pro hac vice.
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