ROOFER'S PENSION FUND, v. PAPA et al
OPINION AND ORDER Denying 68 Motion for Reconsideration for the Court's February 10, 2017 Order is Denied. Accordingly, the Clerk of the Court is directed to terminate the motion, etc. Signed by Magistrate Judge Leda D. Wettre on 8/18/2017. (JB, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ROOFERS’ PENSION FUND,
Individually and on Behalf of All Others
Civil Action No.
16-2805 (MCA) (LDW)
OPINION AND ORDER
PERRIGO CO., PLC et a!.,
Before the Court is the motion (ECF No. 6$) of Michael Wilson for reconsideration, under
Local Civil Rule 7.1(i), of the Court’s February 10, 2017 Order (ECF No. 64), which decided
various competing motions for appointment as lead plaintiff and for approval of lead counsel. The
Court having considered the parties’ filings on the motion, and for the reasons set forth below,
Wilson’s reconsideration motion is DENIED.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
Plaintiff Roofers’ Pension Fund commenced this putative class action in May 2016 and
alleged claims against defendants Perrigo Co., PLC (“Perrigo”), a pharmaceutical manufacturer,
and Joseph C. Papa, Perrigo’s former board chairman and CEO, for violation of sections 10(b) and
20(a) of the Securities Exchange Act of 1934, as well as rule lOb-5 promulgated thereunder.
(Compi., ECF No. 1). Briefly, the Complaint alleged that Pemgo and Papa made false statements
regarding Perrigo’s value and earnings outlook to induce Perrigo shareholders to reject a tender
offer by non-party Mylan N.y.
(ECF No. 1
Plaintiffs contend that these
misrepresentations constituted a fraud on the market and that shareholders relied on them in
retaining or acquiring Perrigo shares, to their detriment. (ECF No. 1
¶J 41, 50—70).
On July 18, 2016, four members of the putative plaintiff class filed motions seeking
appointment as lead plaintiff and approval of lead counsel:
Harel Insurance Company, Ltd.
(“Hard”); a group referring to itself as the Pethgo Institutional Investor Group (“PuG”),
composed of Migdal Insurance Company Ltd., Migdal Makefet Pension and Provident Funds Ltd.,
Clal Insurance Company Ltd., Clal Pension and Provident Ltd., Atudot Pension Fund for
Employees and Independent Workers Ltd., and Meitav DS Provident Funds and Pension Ltd; Dan
Kleinerman; and Michael Wilson. (See ECF Nos. 5, 6, 7, 8, 9). The competing movants timely
filed opposition papers on August 1, 2016 (ECF Nos. 17, 18, 19, 20), and reply papers on August
8, 2016 (ECF Nos. 23, 24, 25, 26).’ On January 27, 2017, without leave of the Court, Harel filed
a sur-reply characterized as a Supplemental Submission in Further Support of its motion, arguing
that PuG’s lead plaintiff motion should be denied because its co-lead counsel, Pomerantz LLP,
had taken inconsistent positions in different actions as to Kleinerman’s adequacy as a co-lead
plaintiff. (ECF No. 58). Both PuG and Kleinerman filed (also without Court leave) oppositions
to this supplemental filing. (ECF Nos. 61, 62).
On February 10, 2017, this Court granted the motion of PuG and denied the competing
motions, appointing PuG lead plaintiff and approving its choice of Pomerantz LLP and Bernstein
Litowitz Berger & Grossmann LLP as co-lead counsel and Lowenstein Sandier LLP as liaison
counsel.2 (ECF Nos. 64, 65). Assessing the motions under the provisions of the Private Securities
Additionally, Harel filed a motion to strike portions of Kleinerman’ s reply brief as raising new
arguments. (ECF No. 29). The Court denied this motion as moot, as it did not rely on any
arguments in Kleinerman’s reply brief in deciding the competing lead plaintiff motions. (See ECF
No. 64; ECF No. 65 at 19—20).
This Order also consolidated all existing and future related cases. (ECF Nos. 64, 65).
Litigation Reform Act of 1995 (“the PSLRA”), the Court identified PuG as the presumptive most
adequate plaintiff. (ECF No. 65 at 5—11). In reaching this determination, the Court first found
that PuG, of the parties seeking appointment as lead plaintiff, had the largest financial interest in
the action by any pertinent measure. (ECF No. 65 at 6—9). Second, the Court found that PuG
made a prima fade showing of its typicality and adequacy under Federal Rule of Civil Procedure
23 because, as a group of institutional investors, PuG had the incentive and experience to represent
the class, particularly in light of the presumptive suitability of institutional investors as lead
plaintiffs. (ECF No. 65 at 9—11).
The Court then found that the competing movants failed to demonstrate that PuG would
be an inadequate class representative or would be subject to unique defenses. (ECF No. 65 at 11—
1$). The Court rejected arguments by Harel and Kleinerman that the group making up PuG was
too large or otherwise composed in a manner detrimental to its ability to represent class interests.
(ECF No. 65 at 12—16). The Court found that the competing movants had failed to show that PuG
would be subject to unique defenses that could impede its ability to represent the plaintiff class.
(ECF No. 65 at 16—18). The Court additionally approved PuG’s selection of lead counsel, noting
the deference owed to a lead plaintiffs choice of counsel and finding PluG’ s selected counsel
suitable despite competing movants’ arguments that approval of multiple counsel would be
inefficient. (ECF No. 65 at 19).
Kleinerman subsequently objected to the february 10, 2017 Order. (ECF No. 67). United
States District Judge Madeline Cox Arleo adopted the Order in full on April 27, 2017. (ECF Nos.
II. MOTION AND ANALYSIS
Wilson now moves for reconsideration of the February 10, 2017 Order under Local Civil
Rule 7.1(i). (ECF No. 68). He argues that the Court, when deciding the competing lead plaintiff
motions, failed to consider properly the arguments Harel raised in its supplemental submission
regarding Pomerantz’s alleged conflicting positions as to Kleinerman. (ECF No. 68). Wilson
argues that the Court should have denied PuG’s motion and instead appointed Harel as lead
plaintiff and Wilson as lead plaintiff for a sub-class of put-option sellers. (ECF No. 68 at 1—2).
Both PuG and Kleinerman oppose Wilson’s motion. (ECF Nos. 74, 76).
Grounds for reconsideration are very limited, and the purpose of a reconsideration motion
is only to “correct manifest errors of law or fact or to present newly discovered evidence.” Blystone
v. Horn, 664 F.3d 397, 415 (3d Cir. 201 1); see also Moody v. Conroy, 680 F. App’x 140, 142 (3d
Cir. 2017); Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.
1999). A grant of reconsideration may be premised on one of three grounds: “(1) an intervening
change in the controlling law; (2) the availability of new evidence that was not available when the
court granted the motion.
; or (3) the need to correct a clear error of law or fact or to prevent a
manifest injustice.” Max’s Seafood Cafe, 176 F.3d at 677; see also Arrington v. McRae, 683 F.
App’x 108, 109 (3d Cir. 2017); Baldinger v. Fern, 674 F. App’x 204, 206 (3d Cir. 2016);
Wilson relies on the third category and alleges “that the Court committed clear error of law
and fact” by failing to consider Harel’s supplemental submission and the argument that
Pomerantz’s conflicting positions on Kleinerman rendered PuG inadequate to serve as lead
plaintiff. (ECF No. 68 at 2—4). Wilson asserts that the Court did not state that it had reviewed and
considered the supplemental submissions and did not address the arguments those submissions
raised. (ECF No. 68 at 3). Specifically, Wilson argues that Harel’s supplemental briefing brought
to the Court’s attention that Pomerantz argued in this case that Kleinerman was inadequate to serve
as lead counsel due to alleged “involvement in an insider trading scheme,” but subsequently, in
two unrelated actions, argued that Kleinerman would be a suitable co-lead plaintiff. (ECf No. 6$
at 3—4). Wilson argues that this demonstrated a unique defense that could be raised against PuG,
thus rendering it unsuitable to serve as lead plaintiff in this action. (ECF No. 68 at 3—4). PuG and
Kleinerman oppose the reconsideration motion, arguing that Wilson waived his arguments by not
raising them himself prior to the Court’s decision on the lead plaintiff motions and that Wilson
does not identify any clear error of law or facts. (See ECF Nos. 74, 76).
As noted by PuG in its opposition papers (ECF No. 74 at 1), the arguments that Wilson
alleges the Court erred in overlooking were raised in improper supplemental submissions to the
Court. Local Civil Rule 7.l(d)(6) states that “[n]o sur-replies are permitted without permission of
the Judge or Magistrate Judge to whom the case is assigned.” Accordingly, the Court typically
will not consider sur-replies that parties have filed without seeking and receiving leave to do so.
Young v. United States, 152 F. Supp. 3d 337, 352 (D.N.J. 2015); Marlas v. Bank ofAm., NA., Civ.
A. No. 14-4986 (RBK), 2015 WL 4064780, at *2 n.6 (D.N.J. July 1, 2015); Carroll v. Del. River
FortAuth., Civ. A. No. 13-2833 (JEI), 2014 WL 3748609, at *1 n.2 (D.N.J. July 29, 2014). Harel
filed the supplemental submission, raising the arguments that Wilson now contends the Court
improperly overlooked, on January 27, 2017, but it neither sought nor received leave of the Court
to make such a filing. (See ECF No. 58). Accordingly, it was within the discretion of the Court
to disregard that unpermitted and untimely filing, and it did so.
PuG and Kleinerman also argue that Wilson should be precluded from seeking
reconsideration based on arguments in Harel’s supplemental filing, as Wilson himself did not make
such arguments and Harel has not moved for reconsideration. (ECF No. 74 at 4—5 & n.2; ECF No.
76 at 7). In making this argument, PuG relies on the opinion in Shanahan v. Diocese of Camden,
Civ. A. No. 12-2898 (NLH), 2014 WL 1217859 (D.N.J. Mar. 21, 2014), in which United States
District Judge Noel L. Hillman stated that “a motion for reconsideration is not a vehicle for a
party to raise arguments that were effectively waived by being omitted from that party’s original
briefs.” Id. at *3 (quoting A & L Indus., Inc. v. F. Cipoltini, Inc., Civ. A. No. 12-7598 (SRC),
2013 WL 6145766, *1 (D.N.J. Nov. 21, 2013). While it is not clear from either the Shanahan
opinion or the opinion that it quotes that this sentence is meant to apply specifically to situations
where one party seeks reconsideration premised on the alleged oversight of another party’s
arguments, this Court nevertheless agrees that permitting Wilson to do so would seem at odds with
the fundamental and well-established principle that a party cannot raise arguments on
reconsideration that were not raised in the original motion. See P. Schoenfeld Asset Mgm ‘t LLC
v. Cendant Coip., 161 F. Supp. 2d 349, 352—53 (D.N.J. 2001). Wilson did not raise the arguments
in question until making this reconsideration motion; he did not join in Harel’s prior attempt to
raise them. Furthermore, Hare! did not move for reconsideration based on those arguments, nor
did it join Wilson’s motion for reconsideration. Permitting Wilson to seek reconsideration of
arguments he did not advance before the Court’s original decision would thus seem incongruous
with the purpose of reconsideration motions.
In any case, even had the Court considered the arguments advanced by Harel in its
attempted supplemental filing, these arguments would not have affected the Court’s decision on
the lead-plaintiff motion. As outlined above, PuG made a showing that it alleged the largest loss,
thus making it the presumptive most adequate lead plaintiff, and the other movants failed to make
a showing that PuG would not be an adequate lead plaintiff or would be subject to unique defenses.
There is no indication that Hare!’ s arguments regarding Pomerantz would have established that
PuG was inadequate or subject to a unique defense.
Furthermore, given the deference owed to a
lead plaintiffs choice of counsel, In re Cendant Corp. Litig., 264 F.3d 201, 273—74 (3d Cir. 2001),
the argument as to Pomerantz, even if properly presented, would not have impacted the approval
of it as co-lead counsel.
For the reasons stated above, Michael Wilson’s motion (ECF No. 68) for reconsideration
of the Court’s February 10, 2017 Order is DENIED. Accordingly, the Clerk of the Court is
directed to terminate the motion filed as ECF No. 6$.
Dated: August 1$, 2017
Leda Dunn Wettre
United States Magistrate Judge
Clerk of the Court
Hon. Madeline Cox Arleo, U.S.D.J.
Indeed, the very fact that PIIG’s response to Harel’s attempted supplemental filing identified
instances in which one of Harel’s counsel had similarly first opposed and subsequently supported
a potential lead plaintiff, makes clear that this purported defense would not be unique.
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