ARSLANIAN v. ALLERGAN PLC et al

Filing 12

MEMORANDUM OPINION AND ORDER Granting (Civ. A. No. 16-9449, ECF No. 10 Motion); denying #2 Motion to Appoint Lead Plaintiff. ; denying #2 Motion to Consolidate Cases; withdrawing #3 Motion to Appoint Lead Plaintiff. ; denying #4 Motion to Appoint Lead Plaintiff. ; withdrawing #5 Motion to Consolidate Cases; denying #6 Motion to Appoint Lead Plaintiff. ; denying #7 Motion to Consolidate Cases; denying #7 Motion to Appoint Lead Plaintiff., etc. Signed by Magistrate Judge Leda D. Wettre on 2/1/17. (cm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

TIMOTHY M. FORDEN, Individually
and on Behalf of All Others Similarly
Situated,

Civil Action No.
16-9449 (SDW) (LDW)

Plaintiff,
v.
ALLERGAN PLC et at7.,
Defendants.

LINA ARSLANIAN, Individually and on
Behalf of All Others Similarly Situated,

Civil Action No.
17-2 ($DW) (LDW)

Plaintiff,
V.

ALLERGAN PLC et al.,

MEMORANDUM OPINION
AND ORDER

Defendants.

LEDA DUNN WETTRE. United States Magistrate Judge

Before the Court are the motions of putative class members Miami Fire Fighters’ Relief &
Pension Fund (Civ. A. No. 16-9449, ECF No. 3; Civ. A. No. 17-2, ECF No. 2), Edward Santangelo
(Civ. A. No. 16-9449, ECF No. 4; Civ. A. No. 17-2, ECF No. 3), Amalgamated Bank, as trustee
for LongView Collective Investment Fund (Civ. A. No. 16-9449, ECF No. 5), Michael Wilson
(Civ. A. No. 16-9449, ECF No. 6), Utah Retirement Systems and Fresno County Employees’
Retirement Association (Civ. A. No. 16-9449, ECF No. 7; Civ. A. No. 17-2, ECF No. 4), the
Northern Ireland Local Government Officers’ Superannuation Committee (Civ. A. No. 16-9449,

ECF No. 8; Civ. A. No. 17-2, ECF No. 6), $trathclyde Pension Fund (Civ. A. No. 16-9449, ECF
No. 9; Civ. A. No. 17-2, ECF No. 5), $junde AP-Fonden and Union Asset Management Holding
AG (Civ. A. No. 16-9449, ECF No. 10), Brian Leggett and Bryson Holdings, LLC (Civ. A. No.
16-9449, ECF No. 11), William Quartuccio (Civ. A. No. 16-9449, ECF No. 12; Civ. A. No. 17-2,
ECF No. 7), and Rick Ashman and Melvin Ashman (Civ. A. No. 16-9449, ECF No. 13), each
seeking consolidation of these two actions and each seeking appointment of the movant (or
movants) as lead plaintiff (or plaintiffs) in the consolidated action. As discussed below, several
movants filed submissions supporting the appointment of movants Sjunde AP-Fonden (“AP7”)
and Union Asset Management Holding AG (“Union”) as lead counsel. The only timely filed
opposition was submitted by AP7 and Union, who opposed all other competing motions. Having
considered the parties’ submissions, for the reasons set forth herein, and for good cause shown,
AP7 and Union’s motion for consolidation of these actions, for appointment of the movants as lead
plaintiffs, and for appointment of lead and liaison counsel is GRANTED. All other pending
motions, except those explicitly withdrawn, are DENIED.
I.

STANDARD AND ANALYSIS
a. Consolidation
Federal Rule of Civil Procedure 42 grants the Court discretion to consolidate actions that

“involve a common question of law or fact” in order to economize proceedings and avoid
duplicative efforts and potentially conflicting outcomes. Fed. R. Civ. P. 42(a); see In re TMILitig.,

193 F.3d 613, 724(3dCir. 1999),amendedby 199 F.3d 158 (3dCir. 2000). ThisCourthasfound
in considering such a motion that “[t]he savings of time and effort gained through consolidation
must be balanced against the inconvenience, delay or expense that might result from simultaneous
disposition of separate actions.” Norfolk S. Ry. Co. v. NY. Terminals, LCC, Civ. A. No. 14-cv-

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7664 (WJM), 2016 WL 7338531, at * 1 (D.N.J. Dec. 19, 2016) (quoting Liberty Lincoln Mercuiy,
Inc. v. ford Mktg. Corp., 149 F.R.D. 65, 81 (D.N.J. 1993)). It has also noted that consolidation is
appropriate in securities actions specifically “where the complaints are based on the same public
statements and reports,.. there are common questions of law and fact and the defendants will not
.

be prejudiced.” Garcia v. Intelligroup, Inc., Civ. A. Nos. 04-4980 (JCL), 04-5 129 (JCL), 04-5 133
(JCL), 04-5498 (JCL), 04-5922 (JCL), & 04-5923 (JCL), 2005 WL 6074922, at *2 (D.N.J. Aug.
10, 2005) (adopting report and recommendation of Magistrate Judge Mark Falk).
The Complaints in these two actions assert substantially the same claims. They both assert
putative class actions on behalf of all persons or entities who acquired the securities of Allegan plc
or Actavis plc between February 25, 2014 and November 3, 2016. (Compi., Civ. A. No. 16-9449,
ECF No. 1, at 2, 28; Compi., Civ. A. No. 17-2, ECF No. 1, at 2, 9—10). The defendants in each
action are essentially identical.’ (See Civ. A. No. 16-9449, ECF No. 1; Civ. A. No. 17-2, ECF No.
1). Each action asserts claims for violation of sections 10(b) and 20(a) of the Securities Exchange
Act of 1934, as well as rule lOb-5 promulgated thereunder. (Civ. A. No. 16-9449, ECF No. 1 at
2; Civ. A. No. 17-2, ECF No. 1 at 2). Furthermore, all movants have sought consolidation of these
two actions, and no opposition to consolidation has been filed.

Consequently, consolidation

appears manifestly appropriate.
b. Lead Plaintiff
As this is a securities class action, it is governed by the provisions of the Private Securities
Litigation Reform Act of 1995 (“the PSLRA”). 15 U.S.C.

§ 78u-4(a)(1). The PSLRA directs that

a court should appoint as lead plaintiff the movant “that the court determines to be most capable

The Arsianian complaint additionally includes Actavis plc as a captioned defendant, but notes
that Actavis plc “changed its corporate name to ‘Allergan plc” in June 2015. (Civ. A. No. 17-2,
ECF No. 1 at 3). Allergan plc is the first-named defendant in each action.
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of adequately representing the interest of class members” (termed the “most adequate plaintiff’).
15 U.S.C.

§ 78u-4(3)(B)(i). The PSLRA creates a presumption that the movant with the largest

financial interest in the relief sought is the most adequate plaintiff. 15 U.S.C.

§ 78u-4(3)(B)(iii)(I);

see In re Cendant Corp. Litig., 264 F.3d 201, 262—63 (3d Cir. 2001); Kettey v. Aerie Pharm., Inc.,

Civ. A. No. 15-3007 (AET), 2015 WI 4545654, at *1 (D.N.J. July 28, 2015); MTB mv. Partners,
LPv. Siemens Hearing Instruments, Inc., Civ. A. No. 12-340 (SDW), 2012 WI 12899112, at *2_
3 (D.N.J. May 18, 2012). This presumption may be rebutted, however, upon a showing that the
movant “will not fairly and adequately protect the interests of the class; or.

.

.

is subject to unique

defense that render such plaintiff incapable of adequately representing the class.” 15 U.S.C.

§

78u-4(3)(B)(iii)(II); MTB mv. Partners, 2012 WI 12899112 at *3 The PSLRA also requires that

a lead plaintiff satisfy the requirements of Federal Rule of Civil Procedure 23, namely that its
claims “are typical of the claims.
interests of the class.” 15 U.S.C.

.

.

of the class” and that it “will fairly and adequately protect the

§ 78u-4(3)(B)(iii)(I)(cc); Fed. R. Civ. P. 23(a).

AP7 and Union assert that their claimed losses of between $51.5 million and $55.1 million2
make them the presumptive most adequate plaintiffs. (Mem. of law in Supp., ECF No. io-i, at
2, 8; Gröttheim Certification, ECF No. 10-3; Fischer & Munz Certification, ECF No. 10-3; Cecchi
Decl., Ex. B, ECF No. 10-4). AP7 and Union also contend that, as experienced lead plaintiffs and
sophisticated institutional investors, their claims are typical of the class and they are well suited to
represent class interests. (ECF No. 10-1 at 3, 9—10).

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AP7 and Union claim $51,553,254.00 in losses on a last-in, first-out basis or $55,073,084.00
on a first-in, first-out basis. (Civ. A. No. 16-9449, Mem. of Law in Supp., ECF No. 10-1, at 2,
8).
All citations to AP7 and Union’s motion papers will be to entries on the docket of Forden, Civ.
A. No. 16-9449, unless otherwise noted.
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Movants Miami Fire fighters’ Relief & Pension Fund and Amalgamated Bank submitted
responses in support of the appointment of AP7 and Union as lead plaintiffs, acknowledging that
AP7 and Union had the largest reported loss. (Civ. A. No. 16-9449, ECF Nos. 16, 21). Movants
Santangelo, Wilson, Strathclyde Pension Fund, and Quartuccio withdrew their motions. (Civ. A.
No. 16-9449, ECF Nos. 14, 15, 17, 19; Civ. A. No. 1 7-2, ECF Nos. 9, 10). Joint movants Leggett
and Bryson Holdings, LLC filed a non-opposition, noting that they did not appear to have the
largest financial interests. (Civ. A. No. 16-9449, ECF No. 1$). Joint movants Utah Retirement
Systems and fresno County Employees’ Retirement Association filed a response noting that they
suffered the second-highest losses and expressing a willingness to act as lead plaintiffs, but
acknowledging AP7 and Union’s greater claim and expressly not opposing their motion. (Civ. A.
No. 16-9449, ECF No. 20; Civ. A. No. 17-2, ECF No. 11). The remaining movants filed no more
submissions, and the only opposition to any motion was filed by AP7 and Union, who opposed the
competing motions. (Civ. A. No. 16-9449, ECF No. 22).
Thus, the great majority of movants concede that AP7 and Union’s claims are the largest,
and there is no indication that any other plaintiffs claim would exceed that of AP7 and Union.4
Accordingly, AP7 and Union are the presumptive most adequate plaintiffs under 15 U.S.C.

§ 78u-

4. There is no evidence before the Court to rebut this presumption by suggesting that AP7 and
Union could not adequately protect class interests or that they would be subject to unique defenses.
Indeed, the majority of other movants concede that AP7 and Union can adequately represent their
interests. Additionally, it appears that AP7 and Union have claims that are typical of the putative

The Northern Ireland Local Government Officers’ Superannuation Committee asserted a loss
of $1,532,303.00. (Mem. of Law in Supp., Civ. A. No. 16-9449, ECF No. 8-1, at 3). The
Ashman movants asserted a collective loss in the range of $100,000 to $120,000. (Mem. of Law
in $upp., Civ. A. No. 16-9449, ECF No. 13-1, at 2).
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class, in that they suffered the same alleged injuries, allegedly as a result of the same conduct, and
assert the same claims. See MTB mv. Partners, 2012 WL 12899112 at *3• AP7 and Union seem
to have demonstrated an ability to represent class claims vigorously, and there is no indication of
any conflict with other class members, thus indicating that they will be able to fairly and adequately
represent the interests of the class as required under Federal Rule of Civil Procedure 23. See Id.
Accordingly, AP7 and Union have met their burden on their motion for appointment as lead
plaintiffs.
c. Lead Counsel
The PSLRA permits the lead plaintiff in securities litigation to select lead counsel, subject
to the Court’s approval. 15 U.S.C.

§ 78u-4(a)(3)(B)(v). AP7 and Union assert that their choice of

Kessler Topaz Meltzer & Check LLP and Motley Rice LLC as co-lead counsel and Carella, Byrne,
Cecchi, Olstein, Brody & Agnello, PC as liaison counsel is justified by each firm’s extensive
experience in securities litigation and in those specific roles. (ECF No. 10-1 at 13—16). No party
has opposed the selection of these firms by AP7 and Union, and several plaintiffs have specifically
supported their appointment. (See Civ. A. No. 16-9449, ECF Nos. 16, 19, 21). The Court agrees
that these firms have the requisite experience to represent lead plaintiffs adequately. Thus, the
Court approves AP7 and Union’s chosen counsel.
II.

CONCLUSION
For the reasons stated above, the motion of Sjunde AP-Fonden and Union Asset

Management Holding AG (Civ. A. No. 16-9449, ECF No. 10), seeking consolidation of these
actions, their appointment as lead plaintiffs, and appointment of their counsel as lead and liaison
counsel, is GRANTED.

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The motions of Miami Fire Fighters’ Relief & Pension Fund (Civ. A. No. 16-9449, ECF
No. 3; Civ. A. No. 17-2, ECF No. 2), Amalgamated Bank (Civ. A. No. 16-9449, ECF No. 5), Utah
Retirement Systems and fresno County Employees’ Retirement Association (Civ. A. No. 16-9449,
ECF No. 7; Civ. A. No. 17-2, ECF No. 4), Northern Ireland Local Government Officers’
Superannuation Committee (Civ. A. No. 16-9449, ECF No. 8; Civ. A. No. 17-2, ECF No. 6),
Leggett and Bryson Holdings, LLC (Civ. A. No. 16-9449, ECF No. 11), and Rick Ashman and
Melvin Ashman (Civ. A. No. 16-9449, ECF No. 13), to the extent not implicitly withdrawn, are
DENIED.
The motions of movants Santangelo (Civ. A. No. 16-9449, ECF No. 3; Civ. A. No. 17-2,
ECF No. 3), Wilson (Civ. A. No. 16-9449, ECF No. 6), Strathclyde Pension Fund (Civ. A. No.

16-9449, ECF No. 9; Civ. A. No. 17-2, ECF No. 5), and Quartuccio (Civ. A. No. 16-9449, ECF
No. 12; Civ. A. No. 17-2, ECF No. 7) are deemed WITHDRAWN.
Consequently, the Clerk of the Court is directed to TERMINATE the motions filed in Civ.
A. No. 16-9449 as ECF Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 and the motions filed in Civ. A.
No. 17-2 as ECF Nos. 2, 3, 4, 5, 6, and 7.
it is further ORDERED that counsel shall confer and shall file a joint letter on or before
February 17, 2017 advising of the next steps proposed to be taken in this litigation.

Dated: February 1, 2017

Leda Dunn Wettre
United States Magistrate Judge

Original:
cc:

Clerk of the Court
Hon. Susan D. Wigenton, U.S.D.J.
All Parties
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