Oklahoma Firefighters Pension & Retirement Systems v. Rayonier Advanced Materials, Inc. et al

Filing 23

ORDER granting 12 The Motion of Oklahoma Firefighters Pension & Retirement System and the Pension Trust Fund for Operating Engineers for Appointment as Lead Plaintiff and Approval of Their Selection of Lead Counsel; denying 8 The Motion of Fr ank J. Ferraro to Be Appointed Lead Plaintiff and to Approve Proposed Lead Plaintiff's Choice of Counsel; denying 11 Motion of Local 295 IBT Employer Group Pension Trust and Welfare Funds for Appointment as Lead Plaintiff and Approval of Sele ction of Lead Counsel. Oklahoma Firefighters Pension & Retirement System and the Pension Trust Fund for Operating Engineers are appointed as Lead Plaintiff. Lead Plaintiff's selection of Saxena White P.A. and Grant & Eisenhofer P.A. as Lead Cou nsel is approved. Amended complaint due by 9/11/2015; defendants' answer or motion to dismiss due by 10/26/2015; Lead Plaintiff's response to motion to dismiss due by 12/10/2015; defendants' reply due by 1/11/2016. The case is set for hearing on the motion to dismiss on 3/1/2016, at 10:00 a.m. in Jacksonville Courtroom 10D before Judge Timothy J. Corrigan. Discovery and the requirements of Local Rule 4.04(b) remain stayed. The Clerk should terminate Frank J. Ferraro, Local 295, and their counsel as parties receiving notice. Signed by Judge Timothy J. Corrigan on 8/10/2015. (BJB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
OKLAHOMA FIREFIGHTERS
PENSION & RETIREMENT
SYSTEMS, Individually and on Behalf
of all Others Similarly Situated,
Plaintiff,
v.

Case No. 3:15-cv-546-J-32PDB

RAYONIER ADVANCED
MATERIALS, INC., PAUL G.
BOYNTON, FRANK A. RUPERTO,
and BENSON K. WOO,
Defendants.
ORDER
This proposed securities class action is before the Court on three different
motions to be appointed lead plaintiff and to have the proposed lead plaintiff’s choice
of counsel approved. (Docs. 8, 11, 12.) Since the motions were filed, two of the movants
have indicated that they do not oppose the joint motion of the Oklahoma Firefighters
Pension & Retirement System (“OFP”) and the Pension Trust Fund for Operating
Engineers (“Operating Engineers”), though the two other movants stand ready to
serve if needed. (Docs. 18, 19.) OFP and Operating Engineers, meanwhile, have
reaffirmed their position that they and their chosen counsel are the most appropriate
lead plaintiffs and lead counsel to prosecute this action. (Doc. 20.)
I.

APPOINTMENT OF LEAD PLAINTIFF
The Private Securities Litigation Reform Act of 1995 (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. § 78u4(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. Id.; 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.

2

Id. § 78u-4(a)(3)(B)(vi).
Upon due consideration, the Court finds that OFP and Operating Engineers are
“the most adequate plaintiff” and satisfy the requirements of the PSLRA. OFP filed
the initial complaint in this matter (Doc. 1), counsel for OFP and Operating Engineers
timely published notice of this action (Doc. 14-1), and then OFP and Operating
Engineers timely filed their joint motion for appointment as lead plaintiff (Doc. 12).
15 U.S.C. § 78u-4(a)(3)(A)(i); see id. § 78u-4(a)(3)(B)(iii)(I)(aa). Their estimated
combined losses are approximately $2,193,886, 1 which is more than either of the two
other movants. (Compare Doc. 14-3, with Doc. 10-2, and Doc. 13-2.) The Court has no
evidence that any other person has a larger financial interest in the case. See 15 U.S.C.
§ 78u-4(a)(3)(B)(iii)(I)(bb). The Court also finds that OFP and Operating Engineers
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 concludes that, to the extent the restriction on professional
plaintiffs in subsection (vi) might apply due to frequent service as lead plaintiff in
other securities class actions, neither OFP nor Operating Engineers is the kind of
entity Congress intended to restrict from serving as lead plaintiff. See Dees v. Colonial

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).
1

3

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 indicate that the joint
appointment of OFP and Operating Engineers does not conflict with the purposes of
appointing a lead plaintiff in a securities class action. The Court therefore concludes
that OFP and Operating Engineers 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. § 78u4(a)(3)(B)(v). The 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 Grant & Eisenhofer P.A. both have
substantial experience in securities class actions, and therefore defers to OFP and
Operating Engineers’s selection of the firms as lead counsel. 2
III.

BRIEFING SCHEDULE
Finally, the Court has reviewed defendants’ proposed schedule (Doc. 4) and will

adopt a similar schedule for filing an amended complaint and for briefing any motion
to dismiss the amended complaint. 3 Discovery will remain stayed until any motion to

The Court will direct the Clerk to terminate movants Frank J. Ferraro and
Local 295 and their counsel as parties receiving notice in this case.
2

3

Defendants’ Local Rule 3.01(g) certification indicated that counsel for OFP did
4

dismiss is resolved, and the requirements of Local Rule 4.04(b) will remain suspended
until further order.
Accordingly, it is hereby
ORDERED:
1.

The Motion of Oklahoma Firefighters Pension & Retirement System and

the Pension Trust Fund for Operating Engineers for Appointment as Lead Plaintiff
and Approval of Their Selection of Lead Counsel (Doc. 12) is GRANTED. The Motion
of Frank J. Ferraro to Be Appointed Lead Plaintiff and to Approve Proposed Lead
Plaintiff’s Choice of Counsel (Doc. 8) and the Motion of Local 295 IBT Employer Group
Pension Trust and Welfare Funds for Appointment as Lead Plaintiff and Approval of
Selection of Lead Counsel (Doc. 11) are DENIED.
2.

Oklahoma Firefighters Pension & Retirement System and the Pension

Trust Fund for Operating Engineers are APPOINTED as Lead Plaintiff.
3.

Lead Plaintiff’s selection of Saxena White P.A. and Grant & Eisenhofer

P.A. 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 Court sets the following preliminary case schedule:
a.

On or before September 11, 2015, Lead Plaintiff shall file an

not oppose the proposed schedule when it was filed. (Doc. 4 at 4.)
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amended complaint.
b.

On or before October 26, 2015, defendants shall file any answer

or motion to dismiss the amended complaint. Any motion to dismiss shall not
exceed twenty-five pages. 4
c.

On or before December 10, 2015, Lead Plaintiff shall file any

opposition to the motion to dismiss, not to exceed thirty-five pages.
d.

On or before January 11, 2016, defendants shall file any reply

brief in support of the motion to dismiss, not to exceed fifteen pages.
e.

The anticipated motion to dismiss is SET for HEARING on

March 1, 2016, at 10:00 a.m., before the undersigned in the United States
Courthouse, Courtroom 10D, 300 North Hogan Street, Jacksonville, Florida. 5
The Court intends to discuss scheduling for the remainder of the case at the
hearing.
6.

Discovery remains stayed, without prejudice to any party filing a motion

explaining why particularized discovery is necessary to preserve evidence or prevent
undue prejudice.
7.

The requirements of Local Rule 4.04(b) remain suspended until further

order of the Court.
Defendants have indicated that they intend to file a single, joint motion to
dismiss the amended complaint of no more than twenty-five pages.
4

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.
5

6

8.

The Clerk is DIRECTED to terminate movants Frank J. Ferraro, Local

295, and their counsel as parties receiving notice in this case.
DONE AND ORDERED at Jacksonville, Florida this 10th day of August,
2015.

bjb
Copies to:
Counsel of record

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