DURIGON v. THE TORONTO-DOMINION BANK et al

Filing 33

OPINION FILED. Signed by Judge Noel L. Hillman on 12/13/17. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ARMANDO DURIGON, individually
and on behalf of all others
similarly situated,
Plaintiffs,

1:17-cv-1665 (NLH/JS)
OPINION 1

v.
THE TORONTO-DOMINION BANK, et
al.,
Defendants.

JANET TUCCI, individually and
on behalf of all others
similarly situated,

1:17-cv-1735 (NLH/JS)

Plaintiffs,
v.
THE TORONTO-DOMINION BANK, et
al.,
Defendants.

APPEARANCES:
LAUREN M. ROSEN
THE ROSEN LAW FIRM, PA
609 W. SOUTH ORANGE AVENUE
SUITE 2P
SOUTH ORANGE, NJ 07079
1

The Order accompanying this Opinion consolidates these two
related actions. The Court lists both case captions here as
this Opinion and accompanying Order will be filed under both
dockets in order to effect the consolidation and because they
resolve pending motions on both dockets.

On behalf of Plaintiff Armando Durigon and Movants Diana
Lawler, V Rao Dandamudi, and Sujata Dandamudi in 17-1665
BRUCE DANIEL GREENBERG
LITE DEPALMA GREENBERG, LLC
570 BROAD STREET
SUITE 1201
NEWARK, NJ 07102
On behalf of Plaintiff Janet Tucci and Movant Ethan
Silverman in 17-1735 and proposed liaison counsel for the
class
JAMES E. CECCHI
CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C.
5 BECKER FARM ROAD
ROSELAND, NJ 07068
On behalf of Movant John Gilbert 2 in 17-1665
SUSAN M. LEMING
WILLIAM M. TAMBUSSI
BROWN & CONNERY, LLP
360 HADDON AVENUE
WESTMONT, NJ 08108
On behalf of Defendants The Toronto-Dominion Bank, Bharat
Masrani, Colleen Johnston, and Riaz Ahmed in 17-1665 and
17-1735
POMERANTZ LLP
JEREMY A. LIEBERMAN
J. ALEXANDER HOOD II
HUI M. CHANG
600 THIRD AVENUE, 20TH FLOOR
NEW YORK, NY 10016
Counsel for Movant Ethan Silverman and proposed co-lead
counsel for the class
POMERANTZ LLP
PATRICK V. DAHLSTROM
TEN SOUTH LASALLE STREET, SUITE 3505
CHICAGO, ILLINOIS 60603
2

John Gilbert is incorrectly listed on the docket as a
plaintiff in the 17-1665 action. As explained more fully below,
Gilbert is a member of the putative class who has moved in the
17-1665 action to be named lead plaintiff in the consolidated
case. That motion [Doc. No. 17] has been withdrawn and will be
denied as moot.
2

Counsel for Movant Ethan Silverman and proposed co-lead
counsel for the class
GOLDBERG LAW PC
MICHAEL GOLDBERG
BRIAN SCHALL
SHERIN MAHDAVIAN
1999 AVENUE OF THE STARS, SUITE 1100
LOS ANGELES, CALIFORNIA 90067
Counsel for Movant Ethan Silverman and proposed co-lead
counsel for the class

HILLMAN, District Judge
This Opinion concerns two federal securities class actions
filed in this Court alleging violations of Section 10(b) of the
Securities Exchange Act of 1934 (the “Exchange Act”) and Rule
10b-5, promulgated thereunder, and Section 20(a) of the Exchange
Act by Defendants.

Ethan Silverman moves for consolidation,

appointment as lead plaintiff, and approval of class counsel.
For the reasons that follow, the Court will grant the motion for
consolidation and will appoint Silverman as lead plaintiff of
the consolidated action.

The Court will reserve its decision on

the approval of Pomerantz LLP and Goldberg Law PC as co-lead
counsel and Lite DePalma Greenberg, LLC as liaison counsel
pending supplemental briefing.
I.
The Court takes the following facts from the two
complaints.

On December 3, 2015, The Toronto-Dominion Bank

filed an annual report on Form 40-F with the U.S. Securities and

3

Exchange Commission (SEC), announcing its financial and
operating results for the fiscal year that ended October 31,
2015.

On December 1, 2016, The Toronto-Dominion Bank filed an

annual report on Form 40-F with the SEC, announcing its
financial and operating results for the fiscal year that ended
October 31, 2016.

Certifications attached to the forms

certified to the accuracy of the financial information contained
therein.
In March 2017, CBC News published a report revealing that
unrealistic sales goals led Toronto-Dominion Bank employees to
engage in illegal conduct.

Between December 3, 2015 and this

March 2017 publication, class members purchased securities from
The Toronto-Dominion Bank.

The publication of this report

resulted in shares falling in value and in damages to the class
members.
A complaint was filed in the 17-1665 action on March 12,
2017 by Plaintiff Armando Durigon, individually and on behalf of
all others similarly situated.

A complaint was filed in the 17-

1735 action on March 15, 2017 by Janet Tucci, individually and
on behalf of all others similarly situated. 3

The complaints

allege various statements made by The Toronto-Dominion Bank in
SEC filings were “materially false and/or misleading” and that

3

This Court has federal question jurisdiction over these
actions pursuant to 15 U.S.C. § 78aa(a).
4

they failed to disclose material adverse facts.

Specifically,

the following is alleged:
(1) the Company’s wealth asset growth and increased feebased revenue was spurred by a performance management
system that led to its employees breaking the law at
their customer’s expense in order to meet sales targets;
(2) the Company illicitly increased customer’s lines of
credit and overdraft protection amounts without their
knowledge; (3) the Company illicitly upgraded customers
to higher-fee accounts without informing them; (4) the
Company lied to customers as to the risk of the Company’s
products; and (5) as a result, Defendants’ statements
about the Company’s business, operations, and prospects
were materially false and misleading and/or lacked a
reasonable basis at all relevant times.
The complaints bring claims for violations of Section 10(b) of
the Exchange Act and Rule 10b-5, promulgated thereunder, against
all defendants and violations of Section 20(a) of the Exchange
Act against the individual defendants.
On May 11, 2017 in the 17-1665 action, Diana Lawler, V Rao
Dandamudi, and Sujata Dandamudi moved for consolidation, for
appointment as lead plaintiffs, and for approval of class
counsel.

Also on May 11, 2017 in the 17-1665 action, John

Gilbert moved to consolidate, for appointment as lead plaintiff,
and for approval of class counsel.

Also on May 11, 2017 in the

17-1665 action and in the 17-1735 action, Silverman moved for
consolidation, appointment as lead plaintiff, and for approval
of class counsel. 4

4

None of the individuals who initially moved to be named
lead plaintiff, including Silverman, were named as plaintiffs in
5

On May 22, 2017, Lawler, Dandamudi, and Dandamudi filed a
notice of non-opposition to Silverman’s motion, stating they
“reviewed the competing lead plaintiff motions [and] do not
appear to have the largest financial interest as it appears
Movant Ethan Silverman has the largest financial interest in
this action.”

Also on May 22, 2017, Gilbert filed a notice of

non-opposition indicating, based on his review of the other
motions, he does not have the largest financial interest.
Defendants The Toronto-Dominion Bank, Bharat Masrani,
Colleen Johnston, and Riaz Ahmed do not oppose consolidation and
take no position on the motions to appoint lead plaintiffs and
lead counsel in both actions.
II.
The Court begins by addressing Silverman’s motion to
consolidate. 5

Federal Rule of Civil Procedure 42(a) provides:

either of the complaints. The movants are merely members of the
class. Pursuant to 15 U.S.C. § 78u-4(a)(3)(A)(i)(II),
plaintiffs are required to publish a notice advising class
members that “any member of the purported class may move the
court to serve as lead plaintiff of the purported class.” Under
§ 78u-4(a)(3)(B)(iii)(I)(aa), the presumptively most adequate
plaintiff is the person who “has either filed the complaint or
made a motion in response to a notice under subparagraph (A)(i)”
and has satisfied subsections (bb) and (cc).
Silverman is represented by the same counsel as the named
plaintiff in the 17-1735 action. Lawler, Dandamudi, and
Dandamudi are represented by the same counsel as the named
plaintiff in the 17-1665 action. Gilbert has separate counsel.
5
Pursuant to 15 U.S.C. § 78u-4(a)(3)(B)(ii), where
more than one action on behalf of a class asserting
6

“If actions before the court involve a common question of law or
fact, the court may . . . consolidate the actions . . . .”

“The

[Private Securities Litigation Reform Act (PSLRA)] . . . directs
that cases should be consolidated where there is ‘more than one
action on behalf of a class asserting substantially the same
claim or claims.’”

In Re Lucent Techs. Sec. Litig., 221 F.

Supp. 2d 472, 480 (D.N.J. 2001) (quoting 15 U.S.C. § 78u4(a)(3)(B)(ii)).
“The decision as to whether consolidation is appropriate
embraces concerns of judicial economy, as well as judicial
discretion.”

Id.

Neither the PSLRA nor Rule 42 requires that pending
suits be identical before they can be consolidated.
Rather, in deciding whether to consolidate actions under
Rule 42(a), it must be considered “whether the specific
risks of prejudice and possible confusion [are]
overborne by the risk of inconsistent adjudications of
common factual and legal issues, the burden on the
parties, witnesses, lawsuits, the length of time
required to conclude multiple lawsuits as against a
single one, and the relative expense to all concerned of
the single-trial, multiple-trial alternatives.
Id. (alteration in original) (quoting In re Consol. Parlodel

substantially the same claim or claims arising under
this title has been filed, and any party has sought to
consolidate those actions . . . , the court shall not
make the [most adequate plaintiff] determination . . .
until the decision on the motion to consolidate is
rendered.
Courts frequently decide these motions together, as this Court
does here.
7

Sec. Litig., 182 F.R.D. 441, 444 (D.N.J. 1998)).

“In the

absence of an articulated basis to assert confusion or
prejudice, consolidation is generally appropriate.”

Id.

The Court finds consolidation of these cases appropriate.
The complaints are brought against the same Defendants in both
actions: The Toronto-Dominion Bank, Masrani, Johnston, and
Ahmed.

Both assert violations of Section 10(b) of the Exchange

Act and Rule 10b-5, promulgated thereunder, and violations of
Section 20(a) of the Exchange Act.

Both complaints also

preliminarily define an identical class consisting of people and
entities who purchased or acquired securities from The TorontoDominion Bank between December 3, 2015 and March 9, 2017.
“A common question of law or fact shared by all of the
cases is a prerequisite for consolidation.”
Parlodel Litig., 182 F.R.D. at 444.

In re Consolidated

The Court finds an

abundance of common questions of law and fact.

The complaints

focus on the same misleading statements made by Defendants to
the public, which will be the focal point of the litigation.
The Court finds the most efficient way to resolve these
questions is by consolidating these actions.

The Court does not

find any specific risks of prejudice or confusion.
the Court will consolidate these actions.

8

Accordingly,

III.
Silverman moves to be appointed lead plaintiff in this
purported class action, which is unopposed by other class
members at this time.

Even where a motion to appoint lead

plaintiff is unopposed, “[a] preliminary, fact-specific inquiry
is nonetheless necessary under Rule 23 to determine whether the
presumptively most adequate plaintiff will nevertheless betray
the interests of the class.”

In re Party City Sec. Litig., 189

F.R.D. 91, 106 (D.N.J. 1999).
15 U.S.C. § 78u-4(a)(3)(B)(i) provides that a court “shall
appoint as lead plaintiff 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 . . . in
accordance with this subparagraph.”

The following analysis is

required:
(I)

In general. Subject to subclause (II),
for purposes of clause (i), the court
shall adopt a presumption that the most
adequate plaintiff in any private action
arising under this title is the person or
group of persons that –
(aa) has either filed the complaint
or made a motion in response to
a notice under subparagraph
(A)(i);
(bb) in the determination of the
court,
has
the
largest
financial
interest
in
the
relief sought by the class; and

9

(cc) otherwise
satisfies
the
requirements of Rule 23 of the
Federal
Rules
of
Civil
Procedure.
(II) Rebuttal evidence.
The presumption
described in subclause (I) may be
rebutted only upon proof by a member of
the purported plaintiff class that the
presumptively most adequate plaintiff —
(aa) will not fairly and adequately
protect the interests of the
class; or
(bb) is subject to unique defenses
that render such plaintiff
incapable
of
adequately
representing the class.
Id. § 78u-4(a)(3)(B)(iii).
Federal Rule of Civil Procedure 23(a) also governs the
appointment of lead plaintiff.

It provides, in pertinent part:

One or more members of a class may sue or be sued as
representative parties on behalf of all members only if:
(1)

the class is so numerous that joinder of
all 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.

The Third Circuit in In re Cendant Corp. Litigation, 264
F.3d 201 (3d Cir. 2001) outlines the steps a court must follow

10

in appointing lead plaintiff as required under 15 U.S.C. § 78u4(a)(3)(B) and Federal Rule of Civil Procedure 23(a).

The Court

applies that analysis here.
A. The Largest Financial Interest Requirement
“In appointing a lead plaintiff, the court’s first duty is
to identify the movant that is presumptively entitled to that
status.

The process begins with the identification of the

movant with ‘the largest financial interest in the relief sought
by the class.’”

Id. at 262.

In making this determination,

“courts should consider, among other things: (1) the number of
shares that the movant purchased during the putative class
period; (2) the total net funds expended by the plaintiffs
during the class period; and (3) the approximate losses suffered
by the plaintiffs.”

Id.

During the proposed class period, Silverman (1) purchased
15,000 shares, (2) expended $780,002, and (3) suffered a loss of
$49,669.

The other movants who subsequently withdrew their

motions for appointment as lead plaintiff recognized Silverman’s
financial interest was greater than theirs.
similarly.

The Court finds

Based on the information before it, the Court finds

Silverman has the largest financial interest in the relief
sought by the purported class.

11

B. Federal Rule of Civil Procedure 23 Requirements
“Once the court has identified the movant with ‘the largest
financial interest in the relief sought by the class,’ it should
then turn to the question whether that movant ‘otherwise
satisfies the requirements of Rule 23 of the Federal Rules of
Civil Procedure,’ and is thus the presumptively most adequate
plaintiff.”
(cc)).

Id. (quoting 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)

This “inquiry . . . should be confined to determining

whether the movant has made a prima facie showing of typicality
and adequacy.”

Id. at 263.

This assessment “should be a

product of the court’s independent judgment,” but “need not be
extensive.”

Id. at 263-64.

“In conducting the initial inquiry as to whether the movant
with the largest losses satisfies the typicality and adequacy
requirements, the court may and should consider the pleadings
that have been filed, the movant’s application, and any other
information that the court requires to be submitted.”
264.

Id. at

“When making these determinations, courts should apply

traditional Rule 23 principles.”

Id.

[I]n inquiring whether the movant has preliminarily
satisfied the typicality requirement, they should
consider whether the circumstances of the movant with
the largest losses “are markedly different or the legal
theory upon which the claims [of that movant] are based
differ[] from that upon which the claims of other class
members will perforce be based.”
In assessing whether the movant satisfies Rule 23’s
adequacy requirement, courts should consider whether it
12

“has the ability and incentive to represent the claims
of the class vigorously, [whether it] has obtained
adequate counsel, and [whether] there is [a] conflict
between [the movant’s] claims and those asserted on
behalf of the class.”
Id. (alterations in original) (quoting Hassine v. Jeffes, 846
F.2d 167, 177, 179 (3d Cir. 1988)).

“In making the initial

adequacy assessment in this context, courts should also . . .
inquire whether the movant has demonstrated a willingness and
ability to select competent class counsel and to negotiate a
Id. 6

reasonable retainer agreement with that counsel.”

First addressing typicality, the Court finds Silverman’s
claim typical of the rest of the purported class.

It does not

appear Silverman’s case relies on a different legal theory or
that the circumstances regarding Silverman’s loss are markedly
different than the rest of the purported class.

It appears to

this Court that the focus of this case will be on the actions of
Defendants in making allegedly misleading statements to the

6

At this stage,
the question . . . is not whether the court would
“approve” that movant’s choice of counsel or the terms
of the retainer agreement or whether another movant may
have chosen better lawyers or negotiated a better fee
agreement; rather, the question is whether the choices
made by the movant with the largest losses are so
deficient as to demonstrate that it will not fairly and
adequately represent the interests of the class, thus
disqualifying it from serving as lead plaintiff at all.

In re Cendant Corp. Litig., 264 F.3d at 266.
13

public at large.

It does not appear Silverman’s damages arise

from anything unique or particular to him alone.

Like the rest

of the class, Silverman’s damages stem from his purchase of
securities in reliance on the alleged misstatements and
omissions of Defendants.
As to adequacy, Silverman appears to have both the ability
and incentive to represent the purported class vigorously.
Further, Silverman has obtained what this Court finds to be
adequate counsel experienced in federal securities litigation
with a record of favorable verdicts for clients in the past.
Finally, there does not appear to be a conflict between
Silverman’s claims and those of the purported class. 7
Accordingly, the Court finds Silverman has satisfied the
Rule 23 requirements and is presumed the most adequate
plaintiff.
C. Presumption Not Rebutted
“Once a presumptive lead plaintiff is located, the court
should then turn to the question whether the presumption has
been rebutted.”

Id. at 268.

[T]he presumption “may be rebutted only upon proof by a
member of the purported plaintiff class that the
presumptively most adequate plaintiff – (aa) will not
fairly and adequately protect the interests of the
class; or (bb) is subject to unique defenses that render
7

The Court does not find the lack of information before it
regarding the negotiation of a retainer agreement prevents this
Court from finding Silverman satisfied the adequacy requirement.
14

such plaintiff incapable of adequately representing the
class.”
Id. (quoting 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II)).

Under the

statute, “only class members may seek to rebut the presumption,
and the court should not permit or consider any arguments by
defendants or non-class members.”

Id.

“[O]nce the presumption

is triggered, the question is not whether another movant might
do a better job of protecting the interests of the class than
the presumptive lead plaintiff; instead, the question is whether
anyone can prove that the presumptive lead plaintiff will not do
a ‘fair[] and adequate[]’ job.”

Id. (alterations in original).

“If no class member succeeds in rebutting the presumption,
then the district court should appoint the presumptive lead
plaintiff as the lead plaintiff.”

Id.

There is presently no

challenge to the appointment of Silverman as lead plaintiff.
Accordingly, the presumption of adequacy stands.

See, e.g., In

re Party City Sec. Litig., 189 F.R.D. at 112 (“Absent such a
challenge, the presumption of adequacy will generally
survive.”); Zuckerman v. Foxmeyer Health Corp., No. 96-2258,
1997 WL 314422, at *2 (N.D. Tex. Mar. 26, 1997) (“No purported
class member has presented evidence to rebut this presumption.
Therefore, the Court will appoint the movants as lead
plaintiffs.”).
As Silverman appears to have the largest financial

15

interest, has satisfied the Rule 23 requirements, and the
presumption that Silverman is the most adequate plaintiff has
not been rebutted, the Court will appoint Silverman as lead
plaintiff in this consolidated action.
IV.
Finally, the Court addresses the appointment of lead
counsel.

15 U.S.C. § 78u-4(a)(3)(B)(v) provides: “The most

adequate plaintiff shall, subject to the approval of the court,
select and retain counsel to represent the class.”

As the Court

finds Silverman is the most adequate plaintiff, this task falls
to him.

Silverman moves for approval of his selection of the

law firms of Pomerantz LLP and Goldberg Law PC as co-lead
counsel and for the firm of Lite DePalma Greenberg, LLC to serve
as liaison counsel for the purported class.

While the motion to

approve these firms as lead counsel and liaison counsel is
unopposed, this Court has a separate, independent obligation to
assess Plaintiff’s selection on behalf of the class.
There is “a strong presumption in favor of approving a
properly-selected lead plaintiff’s decisions as to counsel
selection and counsel retention.”
264 F.3d at 276.

In re Cendant Corp. Litig.,

“When a properly-appointed lead plaintiff asks

the court to approve its choice of lead counsel and of a
retainer agreement, the question is not whether the court
believes that the lead plaintiff could have made a better choice
16

or gotten a better deal.”

Id.

Rather, “the court’s inquiry is

appropriately limited to whether the lead plaintiff’s selection
and agreement with counsel are reasonable on their own terms.”
Id.
In making this determination, courts should consider:
(1) the quantum of legal experience and sophistication
possessed by the lead plaintiff; (2) the manner in which
the lead plaintiff chose what law firms to consider; (3)
the process by which the lead plaintiff selected its
final choice; (4) the qualifications and experience of
counsel selected by the lead plaintiff; and (5) the
evidence that the retainer agreement negotiated by the
lead plaintiff was (or was not) the product of serious
negotiations between the lead plaintiff and the
prospective lead counsel.
Id.

“The ultimate inquiry is always whether the lead

plaintiff’s choices were the result of a good faith selection
and negotiation process and were arrived at via meaningful armslength bargaining.”

Id.

The Court initially notes that all three firms appear to be
qualified to represent the purported class in this case.
However, the Court finds it cannot approve Silverman’s selection
of class counsel at this time, as the Court has not been
provided with sufficient information regarding Silverman’s legal
experience; Silverman’s process in finding, considering, and
ultimately selecting the three law firms; or any negotiations or
agreements made between the law firms and Silverman.
Accordingly, the Court is unable to determine whether
Silverman’s choice was “the result of a good faith selection and
17

negotiation process” that was “arrived at via meaningful armslength bargaining.”

Id.

This Court also questions whether it is appropriate to
appoint two law firms as co-lead counsel in this case.

“The

PSLRA . . . does not expressly prohibit the lead plaintiff from
selecting more than one law firm to represent the class.”

In re

Nice Sys. Sec. Litig., 188 F.R.D. 206, 222 (D.N.J. 1999).

“In

certain situations, the appointment of multiple lead counsel may
better protect the interests of the plaintiff class.

Where a

single firm lacks the resources or expertise to prosecute an
action, for example, the approval of multiple lead counsel may
expedite litigation.”

Id.

However, “[t]he potential for duplicative services and the
concomitant increase in attorneys’ fees works against the
approval of multiple lead counsel.”

In re Milestone Sci. Sec.

Litig., 183 F.R.D. 404, 418 (D.N.J. 1998).

While “[t]otal

attorneys’ fees and expenses awarded by the court to counsel for
the plaintiff class shall not exceed a reasonable percentage of
the amount of any damages and prejudgment interest actually paid
to the class,”

15 U.S.C. § 78u-4(a)(6), this “does nothing to

assuage concern about multiple counsel,” as it “does not
guarantee the reasonableness of fees or the non-duplication of
services.”

In re Milestone Sci. Sec. Litig., 183 F.R.D. at 418.

Silverman has not articulated why it is necessary to have
18

multiple firms representing the purported class.

He has further

not demonstrated how services will be divided, nor has he
provided assurances that there will not be duplication of
services and additional fees.

Cf. In re Microstrategy Sec.

Litig., 110 F. Supp. 2d 427, 440-41 (E.D. Va. 2000) (finding a
“desire to proceed with two law firms as lead counsel was
reasonable” where there were “pre-existing relationships with
the[] firms,” “the two firms ha[d] already worked together in
other litigation,” and the “firms s[ought] only to share
resources and divide labor”); Clair v. DeLuca, 232 F.R.D. 523,
527 (W.D. Pa. 2006) (allowing appointment of two firms as lead
counsel “based on the extensive list of duties for lead counsel
outlined in Lead Plaintiff’s proposed order of court . . . and
on the allegation that the number of Class members may be ‘in
the thousands’”).
While the Court finds this to be a complex matter likely
requiring significant legal resources, and while the Court
recognizes Silverman is not requesting two large law firms to
represent the purported class, the Court requires more
information on the necessity of two law firms as co-lead counsel
before it can approve such an arrangement.
The Court finds similar deficiencies in the request for
appointment of liaison counsel.

Nothing has been briefed

regarding a specific need for liaison counsel.
19

Nor has a

description of proposed duties and responsibilities for liaison
counsel been provided.

See, e.g., Clair, 232 F.R.D. at 527-28

(declining to appoint liaison counsel where “[no] resume [wa]s
provided for” the firm, there was no “description of that firm’s
proposed duties as liaison counsel,” and where there was an
“absence of an explanation of why liaison counsel [was] required
or what their duties might be”).
Within complex litigation, such liaison or local counsel
are
routinely
responsible
for
“essentially
administrative matters, such as communications between
the court and other counsel (including receiving and
distributing notices, orders, motions, and briefs on
behalf of the group), convening meetings of counsel,
advising parties of developments in the case, and
otherwise assisting in the coordination of activities
and positions. Such counsel may act for the group in
managing
document
depositories
and
in
resolving
scheduling conflicts. Liaison counsel will usually have
offices in the same locality as the court.”
In re Sprint Corp. Sec. Litig., 164 F. Supp. 2d 1240, 1244 (D.
Kan. 2001) (quoting Manuel for Complex Litigation (Third) §
20.221 (1995)).

Courts have found “qualified lead counsel

should surely be capable of performing the ministerial tasks
typically assigned to liaison counsel.”

Clair, 232 F.R.D. at

527-28.
In light of these concerns, the Court will reserve its
decision on approval of class counsel.

Silverman is directed to

re-brief his application for approval of class counsel with
particular emphasis on the necessity for two law firms serving

20

as co-lead class counsel and separate liaison counsel.
Silverman is also directed to brief the steps taken in selecting
his chosen firms and details of any retainer agreements entered
into and any negotiations regarding such retainer agreements.
An appropriate Order will be entered.

Date: December 13, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

21