In Re: Groupon Derivative Litigation

Filing 10

Opinion and Order Signed by the Honorable Joan H. Lefkow on 7/31/2012:Mailed notice(mad, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

IN RE: GROUPON DERIVATIVE
LITIGATION

)
)
)
)

12-CV-5300
Judge Joan H. Lefkow

OPINION AND ORDER
This is a consolidated shareholder derivative action brought on behalf of nominal
defendant Groupon, Inc. (“Groupon” or “the company”) against certain executive officers and
members of its board alleging breach of fiduciary duty and abuse of control.1 Also pending in
this district is a class action brought against Groupon, certain executive directors, board
members and underwriters alleging various securities law violations. (In re Groupon, Inc.
Securities Litigation, Case No. 12-CV-2450). Defendants in the derivative action have moved to
stay proceedings pending the resolution of the related securities case. For the reasons set forth
herein, their motion (#51) will be granted in part and denied in part.

1

There six consolidated derivative actions include Monturano v. Lefkofsky, Case No. 12-CV2507; Wong v. Mason, Case No. 12-CV-2682; Potter v. Mason, Case No. 12-CV-3217; Martin v. Mason,
Case No. 12-CV-3412; Tipnis v. Mason, Case No. 12-CV-3792; and Lutz v. Mason, Case No. 12-CV3667. There are also two derivative actions pending in the Cook County Circuit Court, Orrego v.
Lefkofsky, Case No. 12-CH-12420, and Kim v. Lefkofsky, Case No. 12-CH-19431. Plaintiff and defendant
are negotiating a stay of the state actions pending further developments in the federal class action.

LEGAL STANDARD2
“[T]he power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for itself, for
counsel, and for litigants[.]” Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S. Ct. 163, 81 L. Ed.
153 (1936); see Tex. Indep. Producers & Royalty Owners Ass’n v. EPA, 410 F.3d 964, 980 (7th
Cir. 2004). In deciding whether to grant a stay, courts will “balance the competing interests of
the parties and the interest of the judicial system.” Markel Am. Ins. Co. v. Dolan, 787 F. Supp.
2d 776, 779 (N.D. Ill. 2011) (citing Landis, 299 U.S. at 254–55 (The court “must weigh
competing interests and maintain an even balance.”)). Courts generally consider three factors
when determining whether to grant a stay: (1) whether a stay will simplify the issues in question
and streamline the trial; (2) whether a stay will reduce the burden of litigation on the parties and
on the court; and (3) whether a stay will unduly prejudice or tactically disadvantage the
non-moving party. See, e.g., Genzyme Corp. v. Cobrek Pharm., Inc., No. 10 CV 112, 2011 WL
686807, at *1 (N.D. Ill. Feb. 17, 2011); Tap Pharm. Prods., Inc. v. Atrix Labs., Inc., No. 03 C
7822, 2004 WL 422697, at *1 (N.D. Ill. Mar. 3, 2004). “[I]f there is even a fair possibility that
the stay . . . will work damage to some one else,” the party seeking the stay “must make out a
clear case of hardship or inequity in being required to go forward.” Landis, 299 U.S. at 255; see,
e.g., Helferich Patent Licensing, LLC v. N.Y. Times Co., Nos. 10-cv-4387, 11-cv-6914, 11-cv7189, 11-cv-7395, 11-cv-7607, 11-cv-7647, 2012 WL 1813665, at *1 (N.D. Ill. May 8, 2012);

2

The court possesses subject matter jurisdiction over plaintiff’s claims under 28 U.S.C. § 1332
because plaintiff and defendants are citizens of different states and the amount in controversy exceeds
$75,000. Venue is proper in this district under 28 U.S.C. § 1391(b)(2) because a substantial portion of
the of the events or omissions giving rise to the claims occurred here.

2

Itex, Inc. v. Mount Vernon Mills, Inc., No. 08 CV 1224, 2010 WL 3655990, at *2 (N.D. Ill.
Sept. 9, 2010); Se-Kure Controls, Inc. v. Vanguard Prods. Grp., Inc., No. 02 C 3767, 2009 WL
5174701, at *1 (N.D. Ill. Dec. 18, 2009); Pfizer Inc. v. Apotex Inc., 640 F. Supp. 2d 1006, 1007
(N.D. Ill. 2009).3 The court has broad discretion in exercising its authority to stay. Trippe Mfg.
Co. v. Am. Power Conversion Corp., 46 F.3d 624, 629 (7th Cir. 1995).
BACKGROUND4
I.

The Parties
Plaintiff Theresa Monturano (“plaintiff”) brings this suit derivatively on behalf of

nominal defendant Groupon. Monturano is, and was at all relevant times, an owner and holder
of Groupon common stock.
Nominal defendant Groupon is a corporation founded in 2008 and incorporated under the
laws of Delaware with its principal office in Chicago. Groupon serves as a local commerce

3

Defendants argue that the standard for determining whether a stay is appropriate requires “only
that the Court ‘exercise [its] judgment’ by ‘weigh[ing] competing interests and maintain[ing] an even
balance.’” (Defs.’ Reply at 3 (citing Landis, 299 U.S. at 254–55; Market Am. Ins. Co. v. Dolan, 787 F.
Supp. 2d 776, 779 (N.D. Ill. 2011); GE Bus. Fin. Servs. Inc. v. Spratt, No. 08 C 6504, 2009 WL 1064608,
at *2 (N.D. Ill. Apr. 20, 2009))). Judges in this district have typically followed the more demanding
standard set forth in Landis, i.e., whether the movant makes a clear case of hardship or inequity. See
text, supra. Defendants cite Spratt for the position that “[w]here two federal courts with concurrent
jurisdiction are involved . . . the movant need not demonstrate a compelling need for a stay, . . . it must
demonstrate merely that the stay is appropriate.” 2009 WL 10646078, at *2. This quotation is taken
directly from Government of the Virgin Islands v. Neadle, 861 F. Supp. 1054, 1056 (M.D. Fla. 1994),
which explains that “[t]he party moving for a stay bears the burden of demonstrating that it is appropriate;
if a stay would create hardship for a party, however, then the movant must demonstrate that it would
suffer hardship or inequity from going forward.” Id. at 1055 (citing Landis, 299 U.S. 254–55). Dolan
also cites Landis but simply omits the “hardship or inequity” standard set forth in that case.
4

The following facts are taken from the complaints in the first filed derivative action, Monturano
v. Lefkofsky, Case No. 12-CV-2507, and the first filed class action, Zhang v. Groupon, Inc., Case No. 12CV-2450. While this decision was in its final editing stage, plaintiff filed a consolidated complaint.
(Case No. 12-CV-5300, Dkt. #7.) The court has reviewed the consolidated complaint. The amended
pleading does not affect the outcome of this motion.

3

marketplace, connecting merchants to consumers by offering goods and services at a discount
price via the Internet and email promotions.
The individual defendants are eight current or former executive officers and/or members
of Groupon’s board of directors. These individuals include: Eric P. Lefkofsky, co-founder and
executive chairman; Bradley A. Keywell, co-founder and director since 2008;5 Andrew D.
Mason, founder, chief executive officer, and director since 2008; Peter J. Barris, director since
2008; Kevin J. Efrusy, director since 2009; Mellody Hobson, director before Groupon’s initial
public offering (“IPO”) on November 4, 2011; Theodore J. Leonsis, director since 2009; and
Howard Schultz, director since 2011 (collectively “the individual defendants”) (collectively with
Groupon “defendants”).
II.

The Derivative Action
On April 5, 2012, plaintiff Monturano filed the first of six derivative actions against

Groupon and the individual defendants based on events surrounding the company’s IPO on
November 4, 2011. These cases were subsequently consolidated under the caption In re
Groupon Derivative Litigation. (See order at Case No. 12-CV-2507, Dkt. #45.) Plaintiff alleges
that the individual defendants breached their fiduciary duties (Count I) and abused their control
(Count II) by permitting Groupon to function with deficient accounting controls thereby harming
the company. These deficient controls came to light in the months proceeding and immediately
following Groupon’s IPO. The company filed its Form S-1 Registration Statement (“registration
statement”) with the Securities and Exchange Commission (“SEC”) on June 2, 2011. Between

5

The complaint alleges that Keywell was a director since 2006, but because the company was
not founded until 2008 the court assumes that this is an error.

4

that date and the date the company went public, it was forced to amend its SEC filings on two
separate occasions.
The first amendment occurred on August 10, 2011, after it was discovered that the
company’s registration statement contained an unconventional non-GAAP accounting metric
that permitted Groupon to exclude substantial expenses and allowed it to show a positive
operating income metric even though it was not profitable. The second amendment occurred on
September 23, 2011, after the SEC forced Groupon to restate its revenue for the first half of 2011
from $1.5 billion to $688 million. Despite these amendments, Groupon went public as
scheduled, selling 35 million shares at $20 per share.
Approximately three months later, Groupon released its first set of financial results,
reporting a net loss of $42.7 million for the fourth quarter and a $350.8 million net loss for the
full year 2011. On March 30, 2012, Groupon issued a press release revising its fourth quarter
revenue downward by $14.3 million and, according to The Financial Times, admitted that it had
identified a material weakness in its internal accounting controls. On this news, Groupon’s stock
dropped $3.10 to close at $15.28 per share on April 2, 2012. The next day, the Wall Street
Journal reported that the SEC was examining Groupon’s fourth quarter revisions. The first
derivative action followed two days later.

5

III.

The Securities Class Action
On April 3, 2012, the first of five securities class actions6 was filed by shareholders

against Groupon. These cases were subsequently consolidated under the caption In re Groupon,
Inc. Securities Litigation, and are currently pending in this district before Judge Charles R.
Norgle, Sr. (“the class action”). (Case No. 12-CV-2450.)
The class action plaintiffs allege that between November 4, 2011 and March 30, 2012
(the “class period”), Groupon issued materially false and misleading statements regarding the
company’s business practices and financial results and failed to disclose negative trends in the
company’s business. (Zhang v. Groupon, Inc., Case No. 12-CV-2450, Compl. ¶ 3.) As a result,
Groupon stock traded at artificially inflated prices during the class period, and once Groupon’s
misrepresentations were revealed, its shares dropped 41 percent from their class period high.
(Id. ¶¶ 3, 9.) The class action plaintiffs seek to recover against Groupon, certain executive
officers, board members and/or underwriters for violating (1) § 11 of the Securities Act of 1933
(“1933 Act”), 15 U.S.C. § 77k, for filing a false registration statement (Count I); (2) § 15 of the
1933 Act, 15 U.S.C. § 77o, for being culpable participants in the § 11 violation (Count II); (3) §
10(b) of the Securities Exchange Act of 1934 (“1934 Act”), 15 U.S.C. § 78j, and Rule 10b-5, 17
C.F.R. § 240.10b-5, for use of manipulative and deceptive devices (Count III); and (4) § 20(a) of
the 1934 Act, 15 U.S.C. § 78t, for aiding and abetting the § 10(b) violation (Count IV). All of
the individual defendants in the derivative action are also defendants in the class action.
IV.

The Status of the Derivative and Class Actions

6

The five consolidated securities class actions include Zhang v. Groupon, Inc., Case No. 12-CV2450; Roselli v. Groupon, Inc., Case No. 12-CV-2460; Einspahr v. Groupon, Inc., Case No. 12-CV-2547;
Pedrow v. Groupon, Inc., Case No. 12-CV-2791; and Cottrell v. Groupon, Inc., Case No. 12-CV-3129.

6

Both the derivative action and the class action are in their early stages, although the
derivative action has progressed slightly faster than its class action counterpart. In the class
action, lead plaintiffs’ counsel has yet to be appointed, although the issue is fully briefed and
pending before the court. A status hearing is set in that case for August 24, 2012. (Case No. 12CV-2450, Dkt. #101.) In the derivative action, the court appointed lead plaintiffs’ counsel on
May 30, 2012, and held a pretrial scheduling conference pursuant to Federal Rule of Evidence
16 on June 6, 2012. (Case No. 12-CV-2507, Dkt. #45 & #47.) On June 20, 2012, the derivative
defendants filed the present motion. (Id. Dkt. #51.)
ANALYSIS
Defendants argue that staying the derivative action is appropriate because it would
simplify the issues in question and streamline the trial, would reduce the burden of litigation on
the parties and the court, and would not unduly prejudice or tactically disadvantage plaintiff.
I.

Simplifying the Issues in Question and Streamlining the Trial
To determine whether staying the derivative action in favor of the class action would

simplify the issues in question and streamline the trial, it is helpful to understand the similarities
between the two types of lawsuits. As summarized by an article in the Notre Dame Law Review,
In a securities class action, the plaintiffs are shareholders alleging that a corporation
and its individual officers and directors violated the federal securities laws by
making false or misleading public statements. The defendants . . . are the
corporation and the corporation’s current or former officers and directors. The
corporation is directly liable for its own false or misleading statements and
vicariously liable for the false or misleading statements of its officers and directors.
Any recovery in the lawsuit goes to the corporation’s shareholders.

7

Jessica Erickson, Corporate Misconduct and the Perfect Storm of Shareholder Litigation,
84 NOTRE DAME L. REV. 75, 80–81 (Nov. 2008) (internal citations omitted). The role of the
corporation in a derivative action, however, is reversed.
In a derivative suit, the corporation is the functional plaintiff – the real party in
interest – and the allegations are that the corporation’s current or former officers and
directors breached their fiduciary duty to the corporation. Any recovery in a
derivative suit is returned to the corporation. As a result, shareholders may receive
an indirect benefit from a derivative suit because of their share of ownership in the
corporation, but they do not receive any direct financial benefit.
Id. at 81 (internal citations omitted); see generally 7 ALBA CONTE & HERBERT NEWBERG,
NEWBERG ON CLASS ACTIONS §§ 22:1–110 (4th ed. 2002). Defendants argue that staying the
derivative action until the class action is complete would simplify the derivative litigation
because if the class action claims are dismissed,7 then the question of whether the individual
defendants are liable for Groupon’s alleged securities violations is moot. Indeed, central to
plaintiff’s derivative claims is the allegation that Groupon has been seriously harmed by
“potential liability due to currently filed securities class actions,” and if the class action is
dismissed, then a significant portion of the derivative action falls away.8 (Monturano Compl.
¶ 40(d).)
Courts that have considered the interplay between derivative and securities actions have
often found that derivative claims “cannot be adjudicated in full (or even in large measure) until

7

Defendants state that the class action defendants intend to file a motion to dismiss promptly
after a lead plaintiff and lead counsel are appointed and a consolidated or amended complaint is filed.
(Defs.’ Mot. to Stay at 2.)
8

The alleged remaining harm to Groupon includes (1) costs incurred in responding to the SEC
probe; (2) costs incurred in compensation and benefits paid to defendants that breached their duties to the
company (although if the class claims are dismissed it may be more difficult for plaintiff to prove a
breach); (3) loss of market capital; and (4) loss of goodwill towards the company. (Monturano Compl.
¶ 40.)

8

the [securities class] [a]ction is tried.” Brudno v. Wise, No. Civ. A. 19953, 2003 WL 1874750,
at *4 (Del. Ch. Apr. 1, 2003); see also Rosenblum v. Sharer, No. CV 07-6140 PSG (PLAx),
2008 U.S. Dist. LEXIS 65353, at *25 (C.D. Cal. July 28, 2008) (noting that “if [the company] is
exonerated in the securities class action, then it is unclear what, if anything, would be left of the
derivative action”); Cucci v. Edwards, No. SACV 07-532 PSG (MLGx), 2007 WL 3396234, at
*2 (C.D. Cal. Oct. 31, 2007) (recognizing that “[i]f Defendants are successful on the motion to
dismiss the Securities Class Action complaint, Plaintiffs may have little basis for pursuing this
Shareholder Derivative Action”). In these circumstances, “the sensible ordering of events is for
the . . . [securities class] [a]ction to proceed first.” Brudno, 2003 WL 1874750, at *5.
Plaintiff argues that a stay is not warranted because the derivative action seeks relief for
ongoing harm and the class action does not. As such, the parties in the class action have less
incentive to proceed quickly. In addition, argues plaintiff, unlike the Brudno complaint, which
was a “placeholder indemnity action filed on [the company’s] behalf,” 2003 WL 1874750, at *1,
the present complaint seeks more than just indemnification from members of board; it also seeks
reforms to improve corporate governance. (See Monturano Compl. Prayer for Relief.) Thus,
proceeding promptly is of the utmost importance.
A resolution of the class claims would significantly simplify the central issue in the
derivative case, i.e., the scope of the individual defendants’ liability. At the same time, the
derivative action presents issues related to Groupon’s loss of market capital and goodwill that
are not dependent on the outcome of the class claims. One possible solution is to stay the
derivative action until Judge Norgle has had an opportunity to consider the sufficiency of the
class action complaint. If the class claims are disposed of on a motion to dismiss, then the scope

9

of the derivative action will be significantly limited. If the class claims are allowed to proceed,
then the need to adjudicate the non-dependent derivative claims and implement corporate
reforms may persuade this court that simultaneous proceedings are necessary. For the time
being, however, the court believes that this factor favors granting a stay. See Brenner v.
Albrecht, No. 6514-VCP, 2012 WL 252286, at *6 (Del. Ch. Jan. 27, 2012) (staying derivative
action in favor of class action where the relief sought by the derivative plaintiffs was “only
partially contingent on the outcome of the Securities Class Action”).
II.

Reducing the Burden of Litigation on the Parties and the Court
Defendants next argue that the derivative action should be stayed because the parties,

issues and allegations substantially overlap with those of the class action and judicial economy
favors a stay. Plaintiff counters that the derivative action is based on different law and facts and
the burden on the parties will not be lessened by a stay.
As for the similarity of the parties, both sets of plaintiffs are Groupon shareholders and
all eight of the individual defendants are named as defendants in the class action. The class
action also names fourteen underwriter defendants who are not parties to the derivative action,
and plaintiff argues that class proceedings as to these defendants will cause undue delay. This
delay can be remedied in part, however, by awarding plaintiff prejudgment interest on her
claims. See Brenner, 2012 WL 252286, at *7 (“As to delaying any recovery, the relief [plaintiff]
seeks in this derivative action is primarily monetary. Therefore, prejudgment interest can redress
any harm caused by the delay.”). Although the class action contains different plaintiffs and
additional defendants, the parties in both cases need not be perfectly aligned for the court to
issue a stay. See In re Ormat Techs., Inc., No. 3:10-cv-177-ECR-RAM, 2011 WL 3841089, at

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*5 (D. Nev. Aug. 29, 2011) (“We do not believe that the two actions must involve exactly the
same parties . . . in order for a stay [sic].”); In re Westell Techs., Inc. Derivative Litig., No. CIV.
A. 18533, 2001 WL 755134, at *2 (Del. Ch. June 28, 2001) (the parties in the two actions need
only be substantially or functionally identical to issue a stay). Here, all of the individual
defendants are facing class claims as is the nominal defendant Groupon. These parties are
sufficiently similar.
As for the similarity of the facts, both sets of plaintiffs rely on the same documents to
support their claims, including Groupon’s (1) registration statement and amendments thereto;9
(2) IPO prospectus, which contained financial representations about the company and a letter by
CEO Andrew Mason;10 (3) November 3, 2011 press release announcing the price of the IPO;11
(4) February 8, 2012 press release containing the company’s fourth quarter and full year 2011
financial results;12 and (5) March 30, 2012 press release announcing revisions to the company’s
fourth quarter and full year 2011 financial results.13 Both complaints also rely on articles
published on March 30, 2012 by The Financial Times,14 and Seeking Alpha15 critical of Groupon
and its accounting procedures. Finally, both sets of plaintiffs allege that the company reported a

9

See Monturano Compl. ¶¶ 24–26; Zhang Compl. ¶¶ 46.

10

See Monturano Compl. ¶¶ 27–29; Zhang Compl. ¶¶ 48–50.

11

See Monturano Compl. ¶ 30; Zhang Compl. ¶ 51.

12

See Monturano Compl. ¶ 32; Zhang Compl. ¶ 53.

13

See Monturano Compl. ¶ 34; Zhang Compl. ¶ 55.

14

See Monturano Compl. ¶ 36; Zhang Compl. ¶ 56.

15

See Monturano Compl. ¶ 37; Zhang Compl. ¶ 57.

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net forth quarter loss of $42.7 million on February 8, 2011,16 and that the company’s March 30,
2012 earnings revisions reduced fourth quarter revenue by $14.3 million,17 decreasing Groupon
stock by $3.10 per share to close at $15.28 per share on April 2, 2012.18
Plaintiff acknowledges that both complaints describe similar temporal events but argues
that the operative facts are different in each case. The operative facts in the class action include
whether false statements were made, and whether the officers, directors or underwriters who
made those statements acted with scienter; whereas the operative facts in the derivative action
include whether Groupon was susceptible to accounting problems, whether the company had an
ongoing problem with accounting controls and whether Groupon would be seriously harmed by a
lack of sufficient controls over accounting.
Despite plaintiff’s attempt to distinguish the operative facts, a review of the complaints
demonstrates that “both actions rest on the same or closely related transactions, happenings or
events, and thus will call for the determination of the same or substantially related questions of
fact.” Cucci, 2007 WL 3396234, at *2; see also In re Ormat Techs., Inc., 2011 WL 3841089, at
*5 (staying derivative action in favor of class action where “both lawsuits are based on
Defendants’ accounting practices and public financial statements in 2008 and 2009”);
Rosenblum, 2008 U.S. Dist. LEXIS 65353, at *25 (staying derivative action where plaintiffs
“will need to prove the same core factual allegations at issue in the securities class action”). In
addition, it is likely that both sets of plaintiffs will rely on similar witnesses as the individual

16

See Monturano Compl. ¶ 32; Zhang Compl. ¶ 53.

17

See Monturano Compl. ¶ 34; Zhang Compl. ¶ 55.

18

See Monturano Compl. ¶ 38; Zhang Compl. ¶ 58.

12

defendants’ testimony will be necessary to establish the relevant facts in both cases. See
Breault v. Folino, No. SACV010826 GLTANX, 2002 WL 31974381, at *2 (C.D. Cal. Mar. 15,
2002) (staying derivative action where derivative defendants would likely be called as witnesses
in the securities class action); accord In re Ormat Techs., Inc., 2011 WL 3841089, at *4. Given
the duplicative nature of the facts at issue, staying the present case in favor of the class action
would preserve judicial resources and reduce the litigation burden on the parties and the court.
As to the similarity of the allegations in the two actions, plaintiff argues that a stay is not
in order because the derivative claims differ from their class counterparts. To succeed on her
derivative claims, plaintiff must show that the individual defendants intentionally or recklessly
breached their duties to exercise reasonable care and prudent supervision over Groupon’s
management, policies and controls. The securities plaintiffs, on the other hand, must show that
Groupon’s registration statement contained an untrue statement of material fact and that the
securities defendants are liable for false and misleading statements.
Although the class and derivative actions are based on different legal claims, the
underlying issues are similar. Plaintiff must prove that certain alleged misstatements constitute a
breach of the individual defendants’ fiduciary duties, whereas the class action plaintiffs must
prove that these same statements constitute securities fraud. As defendants point out, these
alternate theories are merely two sides of the same coin, and courts have regularly stayed one
action in favor of the other despite the different nature of the claims. See, e.g, Ormat Techs.,
Inc., 2011 WL 3841089, at *5; Rosenblum, 2008 U.S. Dist. LEXIS 65353, at *25; Cucci, 2007
WL 3396234, at *2; Breault, 2002 WL 31974381, at *2; Brenner, 2012 WL 252286, at *7;
Brudno, 2003 WL 1874750, at *5; In re Westell Techs., Inc. Derivative Litig., 2001 WL 755134,

13

at *3. Given the similarity of the parties, issues and facts, this factor on a whole favors granting
defendants’ motion.19
III.

Whether a Stay Would Unduly Prejudice or Tactically Disadvantage Plaintiff
Defendants assert that a stay would not unduly prejudice or tactically disadvantage

plaintiff and is necessary to avoid extreme prejudice to the real party in interest, Groupon.
Plaintiff argues that if a stay is granted Groupon and its shareholders will be harmed by the
lengthy delay while the class claims are litigated. During this time, the company will continue to
function with deficient internal controls and without the full confidence of the financial markets.
Plaintiff is correct that staying the present action will delay her requested relief. The prejudice
inherent in such a delay can be minimized, however, by periodically evaluating the status of the
two cases and determining whether a stay is still warranted. Rather than stay the derivative
action pending the conclusion of the class action, which could take years, a more reasonable
approach is to stay the derivative action until the parties are at issue in the class action case.
Moreover, proceeding with the derivative action while the class action is pending may
prejudice Groupon’s defense to the securities claims. As recently explained by the Delaware
Court of Chancery,

19

Plaintiff cites Sonkin v. Barker, 670 F. Supp. 249 (S.D. Ind. 1987), to support her position that
staying the present case will not lessen the litigation burden on the parties or the court because plaintiff
makes allegations that are not encompassed by the class action; namely, whether the company incurred a
loss of market capital or goodwill as a result of the individual defendants’ actions. In Sonkin, the court
refused to dismiss or stay a derivative action in part because the derivative complaint “allege[d] damages
to [the company] beyond those attributable to [fraud and securities] proceedings yet [to be] concluded.”
Id. at 253. Unlike Groupon, however, the nominal defendant in Sonkin had already agreed to write off
losses of $2.7 billion before the defendant moved to stay the action. This write-off was part of the
damages that the derivative plaintiffs sought to recover and was not contingent on the other proceedings.
Id. at 252–53. Sonkin is distinguishable on its facts.

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it is not practical for two actors—[the derivative plaintiff] and [the Company’s]
board—to pursue divergent strategies in two simultaneous actions on behalf of the
same entity. . . . Prosecution of [the] derivative action would involve taking actions
designed to refute the merits of the Company’s defense of the Securities Class
Action, and vice versa. The Individual Defendants are likely witnesses in both cases,
but [the derivative plaintiff] must attempt to undermine their credibility while the
Company presumably will attempt to rely on their veracity. The potential for such
conflicts . . . creates a significant risk that prosecution of [the derivative] case will
prejudice [the Company].
Brenner, 2012 WL 252286, at *5–6. Other courts have similarly recognized this risk and
declined to allow the derivative action to proceed. See Cucci, 2007 WL 3396234, at *2
(“[P]rosecution of the Shareholder Derivative Action would likely conflict with [the company’s]
defense of the Securities Class Action, since the shareholder derivative Plaintiffs would need to
prove allegations that would seriously undermine [the company’s] defense of the class
action.”).20 Proceeding with the present action will also “divert [the company’s] financial and
management resources from the pending litigation[] against it.” Breault, 2002 WL 31974381, at
*2; accord In re Ormat Techs., Inc., 2011 WL 3841089, at *4. Given the significant overlap
between the two cases, and the potential prejudice to Groupon should the present action proceed,
the court concludes that Groupon would face hardship if forced to go forward at this juncture.
“As with any stay ruling,” however, “the court should remain flexible and open to revisiting the
situation as events develop.” Brudno, 2003 WL 1874750, at *5. This action is therefore stayed
pending a ruling in the class action on a motion to dismiss. Once Judge Norgle determines

20

Plaintiff also cites In re FirstEnergy Shareholder Derivative Litigation, 291 F.R.D. 584 (N.D.
Ohio Jan. 26, 2004) to support her position that she would be materially disadvantaged by a stay. The
issue in that case was whether the court should issue a protective order under Rule 26(c) staying the
derivative action “because the plaintiffs in the securities litigation will have access to the derivative
discovery and impermissibly use it to amend their complaint or oppose Defendants’ motion to dismiss.”
Id. at 587. The court declined to enter a protective order based on such “speculative harm.” Id. It did not
consider whether denying the motion would pose a conflict of interest to the company as a party to both
the derivative and class actions.

15

whether the class complaint has merit, both the court and the parties will be in a better position
to understand the scope of defendants’ potential liability.
CONCLUSION AND ORDER
For the foregoing reasons, defendants’ motion to stay the derivative action pending the
resolution of the related securities class action (#51) is granted in part and denied in part. This
action is stayed pending the resolution of a motion to dismiss in In re Groupon, Inc. Securities
Litigation, Case No. 12-CV-2450, and (if the case goes forward) the court has directed the
defendants to answer. Thereafter, the court and the parties may reevaluate the need for a stay.

Date: July 31, 2012

Enter:____________________________________
JOAN HUMPHREY LEFKOW
United States District Judge

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