Bailey v. Esperion Therapeutics, Inc. et al

Filing 21

ORDER granting 14 Motion for Appointment of Lead Counsel. Signed by District Judge Robert H. Cleland. (WBar)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
_____________________________________________________________________
KEVIN BAILEY,
on behalf of himself,
and all others similarly situated,
Plaintiffs,
v.

Case No. 18-11438

ESPERION THERAPEUTICS, INC.,
TIMOTHY M. MAYLEBEN, and RICHARD B. BARTRAM,
Defendants.
_______________________________________/
ORDER GRANTING THE MOTION FOR
APPOINTMENT OF LEAD PLAINTIFFS AND APPROVAL OF COUNSEL
This class action claim was brought by Plaintiff Kevin Bailey pursuant to Sections
10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated
thereunder. (Dkt. #1). Defendants are biopharmaceutical company Esperion
Therapeutics, Inc. (“Esperion”) and some of its key officers. (Dkt. #1, PageID 4). The
complaint alleges that Defendants made materially false and misleading statements
between February 22, 2017 and May 1, 2018 (the “class period”), as a result of which
purchasers of Esperion securities suffered significant losses. (Dkt. #1).
In its revised order setting deadlines, the court set July 6, 2018 as the date by
which motions for lead plaintiff were to be filed, in accordance with 15 U.S.C. § 78u4(a)(3). (Dkt. #12). On July 6, two such motions were filed. One motion for appointment
as lead plaintiff was filed by Mahmood Khan (Dkt. #13), and another was filed by
Manuele Aldi Scarpatetti and Aurelio Scarpatetti (the “Scarpatettis”) (Dkt. #14).

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Subsequently, Mahmood Khan filed a notice of his non-opposition to the competing lead
plaintiff motion (Dkt. #17) and withdrew his motion (Dkt. #20).
Pending before the court is the Scarpatettis’ (now unopposed) motion for
appointment of lead plaintiffs and approval of counsel (Dkt. #14). For the reasons set
forth below, the court will grant the motion.
I. DISCUSSION
A. Appointment of Lead Plaintiffs
Under Rule 23, a party may serve as a class representative only if the following
requirements are satisfied:
“(1) the class is so numerous that joinder of all the members is impracticable; (2)
there are questions of law or fact common to the class; (3) the claims or
defenses of the representative parties are typical of the claims or defenses of the
class; and (4) the representative parties will fairly and adequately protect the
interests of the class.”
Fed. R. Civ. P. 23(a). When appointing lead plaintiffs to a class action suit, the court
adopts the presumption that the party filing a complaint or motion in response to a
notice, which has the largest financial interest in the relief sought as a class, and
otherwise satisfies the requirements of Rule 23 is the most adequate plaintiff. 15 U.S.C.
§ 78u-4(a)(3)(B)(iii)(I). This presumption can be rebutted by a member of the purported
class offering proof that the presumptively most adequate plaintiff either “will not fairly
and adequately protect the interests of the class” or “is subject to unique defenses.” 15
U.S.C. § 78u-4(a)(3)(B)(iii)(II).
In this case, the class of investors misled by Defendants’ alleged failure to
disclose material facts about Esperion’s business and financial condition is too
numerous to make joinder practicable. The class shares common questions of law and
fact, as they all purchased Esperion securities during the class period. The Scarpatettis
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claims are typical of the class in that they suffered the same injury as a result of the
change in security prices. (Dkt. # 14). Indeed, the Scarpatettis suffered a substantial
financial loss of $631,642. (Dkt. #14, PageID 121). Provided the Scarpatettis’ financial
interest in the result of this case, and the lack of opposition to their status as the “most
adequate” plaintiffs, it is the court’s determination that the Scarpatettis will fairly and
adequately protect the interests of other class members.
Notice of this class action was published on May 07, 2018 over Globe Newswire.
(Dkt. #15-1). The Scarpatettis filed their motion for appointment as lead plaintiffs on July
6, 2018, within the 60 day period dictated by 15 U.S.C. §78u-4(a)(3)(A)(i)(II). (Dkt. #14).
Following Mahmood Khan’s notice of his non-opposition (Dkt. #17), there is no longer
any opposition to the appointment of the Scarpatettis as lead plaintiffs. Nor is there
opposition to the Scarpatettis having the largest financial interest in relief by the class
(Dkt. #17, PageID 186).
Accordingly, the Scarpatettis have satisfied the requirements for appointment as
lead plaintiffs.
B. Selection of Counsel
The court must approve of lead plaintiffs’ selection of counsel to represent the
class. 15 U.S.C. §78u-4(a)(3)(B)(v). Considering the law firm of Pomerantz LLP has
experience in the area of securities litigation and class actions (Dkt. #14) and there is no
opposition to the selection of this firm as counsel, the court approves the Scarpatettis’
selection of Pomerantz LLP as counsel in this case.

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II. CONCLUSION
For the foregoing reasons, the Scarpatettis’ motion will be granted. Manuele Aldi
Scarpatetti and Aurelio Scarpatetti will be appointed as lead plaintiffs for the class, and
the law firm of Pomerantz LLP will be approved as lead counsel. Accordingly,
IT IS ORDERED that the Scarpatettis’ motion to appoint lead plaintiffs and
approve lead counsel (Dkt. # 14) is GRANTED.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: September 20, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, September 20, 2018, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
S:\Cleland\Cleland\JUDGE'S DESK\C2 ORDERS\18-11438.BAILEY.Grant.LeadPlaintiff.docx

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