Lee v. Plug Power Inc. et al

Filing 19

MEMORANDUM - DECISION and ORDER: It is hereby ORDERED that in case 1:24-cv-406, the Motion of David Bruder and Randy Slipher for Consolidation, appointment as co-lead Plaintiffs, and approval of Pomerantz LLP as lead counsel (Dkt. No 17) is hereby G RANTED; and it is further ORDERED, that the Court will sign and docket separately the Bruder Groups Proposed Order in 1:24-cv-406 (Dkt. No. 17-1) consolidating the related actions, appointing co-lead Plaintiffs, and approving lead counsel; and it is further ORDERED, that the remaining motions for consolidation, appointing lead or co-lead Plaintiff, including # 12 Motion to Consolidate in this case, and Adote (Case#1:24-cv-406) Dkt. Nos. 11, 13, 14, 15, & 16 are hereby DENIED, and it is further ORDERED, that the Clerk of the Court serve a copy of this Decision and Order upon the parties to this action. SO ORDERED.Signed by Magistrate Judge Daniel J. Stewart on 11/22/2024. (tll)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ETE ADOTE, Individually and on Behalf of All
Others Similarly Situated,
Plaintiff,

1:24-CV-0406
(MAD/DJS)

v.
PLUG POWER INC., ANDREW MARSH, and
PAUL B. MIDDLETON,
Defendants.
DONGHO LEE, Individually and on Behalf of All
Others Similarly Situated,
Plaintiff,

1:24-CV-0598
(MAD/DJS)

v.
PLUG POWER INC., ANDREW MARSH, and
PAUL B. MIDDLETON,
Defendants.
APPEARANCES:

OF COUNSEL:

POMERANTZ LLP
Attorneys for Plaintiff Ete Adote,
Attorneys for David Bruder and
Randy Slipher
600 Third Avenue, 20th Floor
New York, NY 10016

JEREMY A. LIEBERMAN, ESQ.
JOSEPH A. HOOD, II ESQ

BRONSTEIN, GERWRTZ &
GROSSMAN, LLC
Attorneys for David Bruder and

PERETZ BRONSTEIN, ESQ.

.

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Randy Slipher
60 East 42nd Street, Suite 4600
New York, NY 10165
FARUQI & FARUQI, LLP
Attorneys for Librex Group SAL
685 Third Avenue, 26th Floor
New York, NY 10017

JAMES M. WILSON, JR. ESQ.

GLANCY PRONGAY & MURRY LLP
Attorneys for Gonzalez Penas
230 Park Ave., Suite 358
New York, NY 10169

BRIAN P. MURRAY, ESQ.

HOLZER & HOLZER, LLC
Attorneys for Gonzalez Penas
211 Perimeter Center Parkway, Suite 1010
Atlanta Georgia 30346

COREY D. HOLZER, ESQ.

LEVI & KORSINSKY, LLP
GREGORY M. NESPOLE, ESQ.
Attorneys for Scott Keenan and Jose Martinez
33 Whitehall Street, 17th Floor
New York, NY 10004
HAGENS BERMAN SOBOL
SHAPIRO, LLP
Attorneys for Plaintiff Dongho Lee and
Attorneys for Jason Buchinger
68 3rd Street, Suite 249
Brooklyn, NY 11231

NATHANIEL A. TARNOR, ESQ
STEVE W. BERMAN, ESQ.

PAWAR LAW GROUP P.C.
Attorneys for Hoa Quoc Vuong and
Nancy Vuong
20 Vesey Street, Suite 1410
New York, NY 10007

VIKRANT PAWAR, ESQ.

THE ROSEN LAW FIRM, P.A.
Attorneys for Hoa Quoc Vuong and
Nancy Vuong
275 Madison Avenue, 40th Floor
New York, NY 10016

PHILLIP KIM, ESQ.

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DLA PIPER LLP
Attorneys for Plug Power Inc.
1251 Avenue of the Americas
New York, NY 10020

JOHN H. CLARKE, JR. ESQ.
STEVEN M. ROSATO, ESQ.

BOIES, SCHILLER & FLEXNER LLP
Attorneys for Andrew Marsh and
Paul D. Middleton
30 South Pearl Street, 11th Floor
Albany, NY 12207

GEORGE F. CARPINELLO, ESQ.

DANIEL J. STEWART
United States Magistrate Judge
MEMORANDUM-DECISION and ORDER
Presently before the Court are five competing Motions, pursuant to Sections
21D(a)(3) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. §
78u-4(a)(3)(B), as amended by the Private Securities Litigation Reform Act of 1995
(the “PSLRA”), requesting that the Court (1) consolidate two related securities class
actions, (2) appoint the Movant(s) as lead plaintiff(s), and (3) approve each Movant’s
selection of lead counsel. Dkt. Nos. 11, 13, 14, 15, 16, & 17. 1 Oral argument on the
Motions was held on October 29, 2024.

For the reasons that follow, the Court

consolidates the actions, selects David Bruder and Randy Slipher as co-lead Plaintiffs,
and confirms their choice of counsel.
I.

Procedural History

These two purported class actions were commenced, respectively, on March 22,
2024 and April 30, 2024. See, 24-CV-406, Dkt. No. 1 (Adote Complaint) and 24-CV-

Unless otherwise noted, all references are to the docket in Adote, 24-CV-406. This decision also addresses the
Motion to Consolidate and Appoint Lead Counsel (Dkt. No. 12) filed in Lee. That Motion is Denied.
1

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598, Dkt. No. 1 (Lee Complaint). Because the allegations are mostly identical, the
Court references only the Adote Complaint.

The actions are brought as a federal

securities class actions against Plug Power, Inc. and certain of its top officials, including
CEO Andrew Marsh, and CFO Paul Middleton. Compl. The parties seek to recover
damages allegedly caused by Defendants’ violations of the federal securities laws
during the period of May 9, 2023, until January 16, 2024 (“the Class Period”). 2 Id. at ¶
1. The Complaint alleges that the Defendants made false and misleading statements
regarding Plug Power’s business, operations, and prospects, and as a result of the
Defendants’ wrongful acts and omissions, there was a precipitous decline in the market
value of the company’s securities, which resulted in significant losses to the Plaintiff
and other class members. Id. at ¶¶ 5-17. It was alleged that, among other things, Plug
Power misrepresented information concerning the infrastructure that was necessary to
build their green hydrogen production facilities.
II.

Id. at ¶ 5.

Motions to Consolidate

Rule 42(a) of the Federal Rules of Civil Procedure provides that “[i]f actions
before the court involve a common question of law or fact, the court may ... consolidate
the actions; or ... issue any other orders to avoid unnecessary cost or delay.” Fed. R.
Civ. P. 42(a). The district court has broad discretion to determine whether consolidation
is appropriate. Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990). In
determining whether consolidation should be ordered, the court must consider:

The class period for the Lee matter is slightly longer, beginning on March 1, 2023, and extending to January 16,
2024.

2

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“[W]hether 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
parties, witnesses, and available judicial resources posed by multiple lawsuits, the
length of time required to conclude multiple suits as against a single one, and the
relative expense to all concerned of the single-trial, multiple-trial alternatives.” Id.

In

cases involving common questions of law or fact, court’s generally favor consolidation
to expedite a trial, to reduce unnecessary cost, and to avoid repetition and confusion. Id.
at 1284. In the present case, all the moving parties have requested consolidation, and no
opposition to this proposal has been filed. See Dkt. No. 23 (“The defendants agree that
this action and the Lee action should be consolidated.”). After considering the factors
listed in Johnson, the Court grants the Motions to consolidate.
III.

Appointment of Lead Plaintiff
a. Standard

The PSLRA sets forth the following standard for selecting a lead plaintiff in a
federal securities class action: “the 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 (hereafter in this paragraph
referred to as the ‘most adequate plaintiff’).” 15 U.S.C. § 78u-4(a)(3)(B)(i). The PSLRA
establishes that courts shall adopt a presumption that the “most adequate plaintiff” is the
class member or group that:
(aa) has either filed the complaint or made a motion in response to a notice under
subparagraph (A)(i);
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(bb) in the determination of the court, has the largest financial interest in the
relief sought by the class; and
(cc) otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil
Procedure.
Id. § 78u-4(a)(3)(B)(iii).
The presumption can be rebutted “only upon proof” by a class member that the
movant for appointment as lead plaintiff: (1) “will not fairly and adequately protect the
interests of the class,” or (2) “is subject to unique defenses that render such plaintiff
incapable of adequately representing the class.” Id.
b. Submissions
Turning to the submissions, Librex Group SAL was the first entity to file for lead
plaintiff status. Dkt. No. 11. Salim Bichalini, Chairman and President of SAL, notes
that during the class period, his group purchased and traded Plug Power securities and,
as a result of the conduct alleged in the Complaint, suffered a substantial loss. Dkt.
Nos. 11-4, 11-5, & 11-6. The number of shares purchased by the Librex Group SAL
during the requisite time period was 16,000, with 2,000 shares being sold in June 2023.
Dkt. Nos. 11-4, 11-5. The expected loss was $27,300.
Next, Fernando Gonzalez Penas moves for permission to be lead plaintiff. Dkt.
No. 13. His counsel asserts that he has sustained the largest financial harm, which
amounted to approximately $85,729. Dkt. No. 13-1 at p. 6. This is based upon the
purchase and retention of 28,830 shares of common stock of Plug Power. Dkt. No. 13-6
at p. 2.

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Scott Keenan and Jose Martinez (the “Martinez Group”), through counsel, also
ask to be designated as co-lead plaintiffs. Dkt. No. 14. Keenan and Martinez are selfdescribed as “diverse” and “highly motivated investors with substantial financial
interests at stake.” Dkt. No. 14-6, at ¶¶ 5, 9. Martinez purchased 115,000 shares of
Plug Power stock and sold 13,400 shares during the class period. Dkt. No. 14-3. It is
asserted that his losses amounting to $466,174. Dkt. No. 14-4 at p. 3. For his part, Mr.
Keenan purchased 41,000 shares, and maintains that his LIFO and Dura LIFO loss is
calculated at $317,530. Id. Accordingly, the total loss for this group was represented to
be $754,547. Id.
Next up is the Motion by class member Jason Buchinger, a financial advisor
who, through the firm of Hagans Berman Sobel Schapiro LLC, also asks to be
designated as lead counsel. Dkt. No. 15. According to the information provided by the
movement, he purchased 44,000 shares of Plug Power stock during the class period and
calculated a loss of $350,229. Dkt. No 15-4 at p. 2.
Hoa Quoc Vuong and Nancy Vuong (the “Vuong sisters”) then moved for colead plaintiff status. Dkt. No. 16. The various purchases and sales of Plug Power stock
by the Vuong sisters are set forth at Dkt. No. 16-6. According to that spreadsheet, Hoa
Quoc Vuong asserts a loss of $417,710, and Nancy My Vuong had losses of $72,623.
Id. Thus, the total loss for the Vuongs amounted to $490,334. Id.; Dkt. No. 16-2 at p.
9.
The sixth and final group to file for lead plaintiff status is David Bruder and
Randy Slipher (the “Bruder Group”), represented by Pomerantz LLP and Brownstein,
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Gerwirtz & Grossman. Dkt. No. 17. According to the supplied spreadsheets, David
Bruder purchased 342,708 shares of Plug Power stock during the class period and
sustained a LIFO loss of $368,833. Dkt. No. 17-4 at p. 2. Randy Slipher purchased
87,000 shares of stock, with 73,000 of those shares being retained, and has a calculated
LIFO loss of $306,829. Thus, the total LIFO loss for the proposed co-lead plaintiffs
was $675,662. Dkt. No. 17-4. Counsel therefore argues that, combined, Bruder and
Slipher have the largest financial interest in the litigation, and that they could fairly and
most adequately represent the class. Dkt. No. 17-2, Mem of Law, at pp. 2-12.
After the last Motion seeking lead plaintiff status, the Court then received several
additional filings. First, the Martinez Group submitted a corrected financial loss chart,
which reduced their loss, calculated on a LIFO and Dura LIFO basis, from $754,547 to
$669,447. Dkt. No. 18. Next, Librex Group SAL, Fernando Gonzalez Penas, and Jason
Buchinger wrote in to advise the Court that they now recognize that they do not have
the largest financial interests in the litigation and were therefore effectively withdrawing
their Motions. Dkt. Nos. 24, 26, & 27. Those requests are granted.
Of the remaining Movants, additional memoranda were submitted in support of
their respective positions. Bruder and Slipher note in their June 11, 2024, Memorandum
of Law, that their total loss was $675,662, which therefore exceeds the MartinezKeenan group’s recalculated loss of $669,448, as well as the Vuong’s loss of $490,334.
Dkt. No. 28 at p. 2. They also maintain that they satisfy the adequacy and typicality
requirements of Rule 23, in that they purchased Plug Power securities at prices
artificially inflated by Defendants’ misrepresentations.
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Id.

Included with the

submissions was a joint declaration from both investors detailing their background, and
their readiness to be co-lead plaintiffs in an effective manner. Id. at p. 3. In addition to
their status as possessing the largest financial interests, the Bruder Group also highlight
the significant error in the loss calculations by the Martinez Group as a potential reason
for the rejection of their request to lead the action. Id. at p. 4.
Despite the foregoing, Scott Keenan and José Martinez assert that they, in fact,
have the largest financial interest, and are properly appointed as co-lead plaintiffs. Dkt.
No. 29 at p. 2. While the Martinez Group acknowledges that the courts in this Circuit
generally utilize the LIFO methodology, and also lists their clients combined LIFO loss
as below that of the Bruder group, they note that the other Olsten/Lax factors weigh in
their favor, and that the Court should consider what they deem “recoverable losses,”
which they calculate for themselves as $669,447, compared to $508,218 for the Bruder
group, and $319,499 for the Vuongs. Id. at pp. 2-8. Martinez and Keenan have also
submitted a joint affidavit indicating their willingness to serve in the lead plaintiff role,
and outlining both their backgrounds in the decision-making process that will be
employed, were they to be appointed. Dkt. No. 29-1.
The Vuong sisters submitted papers in opposition to the appointment of the
Martinez Group, and the Bruder Group, and in further support of their Motion. Dkt. No.
30. Their primary argument is that, even though their loss is less than the aggravated
loss of the other groups, those lead counsel Motions should be rejected because the
Martinez Group and the Bruder Group have been cobbled together in an ad hoc fashion
and are wholly lawyer-created, while the Vuong sisters represent a cohesive and organic
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grouping, a fact that should be controlling. Id. at pp. 3-9. In support of that argument,
they note that legal counsel apparently arranged for the Martinez and Bruder groupings,
and that there was no prelitigation contact between the co-lead plaintiffs. As for loss,
they note that the Vuongs’ combined loss of $400,000 is more than any of the individual
losses of any other person. Id. at p. 5. Finally, the Vuongs point out that Martinez
Group member Scott Keenan traded mostly in options, which makes him a poor class
representative. Id. at pp. 6-7.
At oral argument, counsel for the remaining Movants further clarified the various
positions before the Court.
c. Aggregation of Losses and Co-Lead Plaintiff Groupings
Turning first to the propriety of the co-lead plaintiff groupings, the Court notes
that historically the PSLRA was designed to guard against so-called “professional
plaintiffs” whose financial holdings were relatively insignificant. See Siegel v. Bos.
Beer Co., Inc., 2021 WL 5909133, at *3 (S.D.N.Y. Dec. 14, 2021).

To do that,

Congress encouraged class members with the largest loss to serve as lead plaintiff(s) in
private securities litigation; limited individuals to no more than five class action cases in
any three-year period; and barred any type of bonuses or referral fees for class
representatives. See 15 U.S.C. § 77z-1 & § 78u-4(a)(3)(B). The statute, however, does
contemplate and specifically provides that groups of individuals, with their collective
losses, may be selected as lead plaintiffs. In particular the PSLRA states that “the court
shall adopt a presumption that the most adequate plaintiff… is the person or group of
persons that[,]… in the determination of the court, has the largest financial interest in
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the relief sought by the class…”

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

added).
The Second Circuit has routinely permitted the aggregation of claims for
purposes of appointment of lead plaintiff.

As specially noted by Magistrate Judge

Roanne Mann in Cushman v. Fortress Biotech, Inc., 2021 WL 7449182, at *6
(E.D.N.Y. Mar. 24, 2021), aff’d, 2021 WL 1526172 (E.D.N.Y. Apr. 19, 2021):
[M]any courts in this Circuit have appointed lead plaintiff groups
comprised of individual investors assembled by their lawyers. See, e.g., In
re Sequans Commc'ns S.A. Sec. Litig., 289 F. Supp. 3d 416, 422-24
(E.D.N.Y. 2018) (collecting cases in which unrelated investors and
investors without preexisting relationships were approved as lead
plaintiffs); see also In re eSpeed, Inc. Sec. Litig., 232 F.R.D. 95, 99 &
n.18 (S.D.N.Y. 2005) (collecting cases and characterizing as “the majority
view” the notion that “unrelated investors may aggregate under certain
circumstances”). Courts approve these lead plaintiff groups upon finding
other indicia that demonstrate the group's ability to effectively manage the
demands of litigation. Peters v. Jinkosolar Holding Co., 2012 WL
946875, at *8 (S.D.N.Y. Mar. 19, 2012) (a lead plaintiff investor group
that “was formed with the assistance (if not at the instigation) of counsel”
was sufficiently cohesive where counsel provided a plan for
communication and decision-making between plaintiffs, and three of the
four investors’ losses were greater than those of the next largest investor);
In re Sequans, 289 F.Supp.3d at 424 (lead plaintiffs need not have “some
pre-existing, pre-litigation relationship”).
Id.
The Court has considered the concerns expressed by the Vuong sisters regarding
ad hoc groupings but believes that both the Bruder group and the Martinez group have
sufficiently established to the Court both a significant financial interest, as well as the
workable methodology for proceeding forward in the best interests of the class. In
particular, the proposed small group of two sophisticated and substantial investors
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represents a grouping that is both motivated and manageable. Therefore, the argument
to disqualify those two groupings is rejected.
d. Approximate Financial Loss
The next critical factor for the court to consider is the financial loss of each of the
three groups.

As noted above, the PSLRA requires courts to presume that the

plaintiff(s) with the largest financial interest should be the class representative, but the
statute offers no specific guidance for making that determination. Courts in the Second
Circuit have adopted the four “Olsten/Lax factors” to determine which plaintiff has the
largest financial interest: “(1) the [total] number of shares purchased during the class
period; (2) the number of net shares purchased during the class period; (3) the total net
funds expended during the class period; and (4) the approximate losses suffered during
the class period.” In re Olsten Corp. Sec. Litig., 3 F. Supp. 2d 286, 295 (E.D.N.Y.),
opinion adhered to on reconsideration sub nom. In re Olsten Corp., 181 F.R.D. 218
(E.D.N.Y. 1998) (citing Lax v. First Merchants Acceptance Corp., 1997 WL 461036, at
*5 (N.D. Ill. Aug. 11, 1997)). Courts agree that the most significant factor is factor 4;
the approximate loss suffered. As to that, the two primary accounting principles utilized
to calculate the approximate loss sustained by a proposed lead plaintiff in an action are
the First-In-First-Out (“FIFO”) or the Last-In-First-Out (“LIFO”). The “LIFO [method]
calculates losses by assuming that the first stocks to be sold are the stocks purchased
most recently prior to that sale. The alternative, ... [FIFO], assumes that the first stocks
to be sold are the stocks that were acquired first. Courts in both the Second Circuit and
nationwide prefer to use a LIFO calculation when assessing losses, rather than a FIFO
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methodology. Salim v. Mobile Telesys. 2019 WL 11095253, at *3 n.5 (E.D.N.Y. Sept.
11, 2019); Atanasio v. Tenaris S.A., 331 F.R.D. 21, 27 n.5 (E.D.N.Y. 2019) (noting
courts’ preference for the LIFO method, because FIFO “may exaggerate losses”)
(citation omitted).
Various spreadsheets have been provided to the Court in connection with these
Motions. In sum, it appears that the agreed to figures are as follows:
Bruder/Slipher

Martinez/Keenan

Vuong Sisters

Total # of Shares

429,708

156,000

208,911

Net Shares
Purchased

53,000

141,600

54,202

Net Funds
Expended

$864,238

$1,102,645

$614,265

Financial Loss
LIFO

$675,662

$669,447

$490,334

Utilizing the LIFO methodology, it is evident that the Bruder Group has
sustained the highest financial loss, and therefore they are presumed to be the
appropriate co-lead plaintiffs. Counsel for the Martinez Group, however, argues against
that position, and asserts that a different methodology should be utilized in this case,
one that would consider the actual recoverable loss based upon the date of the disclosure
of the alleged misstatements of Defendant Plug Power. In this regard, the Court notes
that the Martinez Group has changed their loss methodology throughout the course of
Motion practice. Initially they asserted largest loss on a LIFO basis, but then recognize

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that their financial calculations were an error and submitted a corrected loss sheet. Dkt.
No. 18. Pursuant to that new submission, they did not sustain the largest loss.
In response, the Martinez Group maintained that the Bruder Group’s loss was not
as much as they stated, as they failed to account for profits they made for sales of stock
during the class period. Counsel for the Bruder Group has established to the Court’s
satisfaction, however, that their loss calculations did in fact take into account any profits
made during the relevant period, and their numbers were not in error.
It was this point that the Martinez group argued that the correct methodology
should be based upon what they call “recoverable loss” which they now interpret to
mean any loss occurred after November 9, 2023. The Court disagrees and believes that,
in this particular case and for the reasons articulated at oral argument, the LIFO analysis
is appropriate. As an initial point, the changing numbers and methodologies employed
by the Martinez Group is a significant concern for the Court. As noted by Judge Mann
“[p]resenting new methodologies, loss calculations, or substantive allegations only in
opposition, after the PSLRA deadline for moving to be appointed lead Plaintiff has
closed, is the type of opportunism that is generally unfavored in appointing lead
plaintiffs” and “[t]his fact alone counsels in favor of adopting the LIFO methodology.”
Marquez v. Bright Health Grp., Inc, 2022 WL 1314812, at *6 (E.D.N.Y. Apr. 26, 2022).
Second, and as noted by counsel for both the Vuongs and the Bruder Group, there was
not one, but four separate corrective notices that are at issue in this case, and that
mitigates against the proposed Martinez Group methodology.

See, e.g. Pack v.

LuxUrban Hotels Inc., 2024 WL 3046258, at *6 (S.D.N.Y. June 18, 2024) (noting that
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courts in the Second Circuit have often appointed lead plaintiffs who “purchased a
corporation’s securities before and after a partial corrective disclosure”).
In sum, this Court concludes that the Bruder Group has the largest financial
interest and, under the relevant factors, is presumed to be the most adequate co-lead
Plaintiffs. In the Court’s view that presumption has not been overcome, nor has there
been a showing of any disqualifying factors.
e. Rule 23 Requirements
Under the PSLRA, to serve as lead plaintiff, the movant with the largest financial
interest must also satisfy the requirements of Rule 23 of the FRCP. See 15 U.S.C. §§
77z-1(a)(3)(B)(iii)(cc), 78u-4(a)(3)(B)(iii)(I)(cc). Rule 23(a) specifies four requirements
for certification of a class action: numerosity, commonality, typicality, and adequacy.
See Fed. R. Civ. P. 23(a). The Bruder Group has made the requisite preliminary
showing with respect to Rule 23(a)’s typicality requirement. Cases in the Second Circuit
have held that the typicality requirement is met where “each class member’s claim
arises from the same course of events, and each class member makes similar legal
arguments to prove the defendant's liability.” Brady v. Top Ships Inc., 324 F.Supp.3d
335, 350 (E.D.N.Y. 2018) (quoting In re Drexel Burnham Lambert Grp., Inc., 960 F.2d
285, 291 (2d Cir. 1992)). Similar to potential class members, the Bruder Group asserts
that they “(1) purchased Plug Power stock during the Class Period; (2) in reliance on
Defendants’ alleged misrepresentations or omissions; and (3) suffered harm. Dkt. No.
28, Bruder and Slipher Mem. of Law, at pp. 1-2. The Bruder Group, as the movants

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with the largest financial interest in this litigation, have therefore preliminarily
demonstrated typicality under Rule 23(a).
IV.

APPOINTMENT OF LEAD COUNSEL

The PSLRA also specifies the procedure to be followed for approving lead
counsel in putative class actions brought pursuant to federal securities laws. Under the
PSLRA, “[t]he most adequate plaintiff shall, subject to the approval of the court, select
and retain counsel to represent the class.” 15 U.S.C. §§ 77z-1(a)(3)(B)(v), 78u4(a)(3)(B)(v). While the selection is not absolute, “[t]he Court generally defers to the
plaintiff’s choice of counsel, and will only reject the plaintiff's choice ... if necessary to
protect the interests of the class.” Marquez v. Bright Health Grp., Inc., 2022 WL
1314812, at *10 (E.D.N.Y. Apr. 26, 2022) (quoting Rauch v. Vale S.A., 378 F.Supp.3d
198, 211 (E.D.N.Y. 2019)). Here, the Court is persuaded of the competency and skill of
Pomerantz LLP by their firm resume; their nationally recognized experience in
successfully litigating securities fraud claims; their preparation of the detailed
Complaint in this matter, their Motion papers, and the strong oral argument of Attorney
Lieberman before this Court.

The Court therefore approves the Bruder Group’s

selection of Pomerantz LLP to serve as lead counsel.

Armstrong v. Med. Properties

Tr., Inc., 2024 WL 3784445, at *5 (S.D.N.Y. Aug. 13, 2024).

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IV. CONCLUSION
WHEREFORE, it is hereby
ORDERED, that the Motion of David Bruder and Randy Slipher for
Consolidation, appointment as co-lead Plaintiffs, and approval of Pomerantz LLP as
lead counsel (Dkt. No 17) is hereby GRANTED; and it is further
ORDERED, that the Court will sign and docket separately the Bruder Group’s
Proposed Order (Dkt. No. 17-1) consolidating the related actions, appointing co-lead
Plaintiffs, and approving lead counsel; and it is further
ORDERED, that the remaining motions for consolidation, appointing lead or colead Plaintiff (Adote Dkt. Nos. 11, 13, 14, 15, & 16; Lee Dkt. No. 12) are hereby
DENIED, and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order
upon the parties to this action.
SO ORDERED.
Dated: November 22, 2024
Albany, New York

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