Vivine H Wang v. The Bear Stearns Companies LLC et al

Filing 82

OPINION: For the above stated reasons, Plaintiff's motion for an order suggesting remand is denied re: 59 MOTION to Remand Motion for an Order Suggesting Remand by the District Court to the Judicial Panel on Multidistrict Litigation filed by Vivine H Wang. (Signed by Judge Robert W. Sweet on 7/7/2013) (cd)

UN
STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

- ------x
VI VINE WANG,
Plaintiff,

11 Civ. 5643
OPINION

-against-

THE BEAR STEARNS COMPANIES, INC. , et al.,
Defendants.

--------------x
A P PEA RAN C E S:

::;
Att

intiff

LAW FIRM
2100 North Broadway
Suite 300
Santa Anna, CA 92706
Jeremy A. Rhyne, Esq.

Mohammed K. Ghods, Esq.

William A. Stahr, Esq.

\,~

't

MCCABE & MACK LLP
63 Washington Street
P.O. Box 509
Poughkeepsie, NY 12602
By:
chard R. Duvall, Esq.

Attorneys for Defendant The Bear Stearns Companies
LLC, J.P. Morgan Securities LLC, J.P. Morgan Clearing
Corp., Joey Zhou, and Garrett Bland
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019
By:
Eric S. Goldstein, Esq.
Brad S. Carp,

Jessica S. Carey, Esq.

Jonathan Hurwitz, Esq.

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
4 T
s Square
New York, NY 10036-6522
By:
Jay B. Kasner, Esq.
Susan Saltz stein, Esq.
Atto

for Defendant Alan C. Greenbe

SCHULTE ROTH & ZABEL LLP
919 Third Avenue
New York, NY 10022
By: Alan R.
ickman, Esq.
Marguerite Gardiner,

Sweet, D.J.

aintiff Vivine Wang ("Wang" or "Plaintiff") has
moved for an order suggesting to the Judicial Panel on
Multidistrict Litigation (the "Panel") that Plaintiff's case be
remanded to its original transferor court in the Central
District of California.

Bas

on the conclusions set forth

below, the motion is denied.

Prior Proceedings

On March 29, 2011 the Plaintiff filed a complaint
("Complaint") in the Central District of California that
assert

, inter alia, claims for violations of federal

securities laws, as well as various common law and California
statutory claims, arising from the monetary losses she suf

red

as a result of the demise of Bear Stearns in 2008.

On August 15, 2011, over Plaintiff's objection, the
Panel transferred Plaintiff's case to this Court for coordinated
or consolidated pretrial proceedings with In re Bear S
Cos.
"Securities Action").

No. 08 Civ. 2793 (RWS)
The Court subsequently grant

2

(the

ainti

's request to have her action coordinated, rather than

consolidat

, with the Securities Action. See Dkt. No. 53.

On June 6, 2011, the Court entered a case management
order in the Securities Action which governed, among other
things, the discovery process for all consolidat
actions.

coordinat

207 (the "CMO").

or

See 08 M.D.L. 1963 (S.D.N.Y.), Dkt. No.

Pursuant to the CMO, "[a]ll documents produced

in the Securities Action shall be made available and be deemed
to have been produced in the Consolidated and Coordinated
Actions."
"[a]ll

CMO

~

17(a) (1).

In addition, the CMO stated that

scovery obtained by any party in the Securities Action,

Consolidated Actions, or Coordinated Actions shall be deemed
discovered in

1 Actions."

Id.

~

19.

In addition to common

discovery conducted by lead counsel, the CMO designated Boies,
Schiller & Flexner as Liaison Counsel to act on behalf of
plaintiffs with respect to issues unique to individual actions,
including conducting non-duplicative "unique" discovery.

Id.

~~

9-11, 17 (b) .

Lead

aintiff ("Lead Plaintiff") and defendants in

the Securities Action engaged in extensive fact discovery during
the course of 2011 and 2012, resulting in the production of over
nine million pages of documents.

However, during that period no
3

scovery

ct depositions were taken, and only limited expert
(in connection with Lead Plaintiff's motion

class

certification) was conducted.

The parties to the Securities Action began settlement
discussions in May 2012, and in June 2012, the Court granted
preliminary approval to the proposed settlement and approved the
notice to be sent to putat

settlement class members.

The

Securities Action claims administrator received 111 timely
requests for exclusion from the settlement class, including a
request from Plaintiff.

On November 29, 2012 a final order and

judgment was issued settling the Securit

s Action.

The instant motion was filed on February 7, 2013 and
was heard and mar

fully submitted on April 3, 2013.

Discussion

Once transferred and consolidated or coordinated by
order of the Panel, an action can be remanded to its court of
origin prior to t

completion of pretrial proceedings "only

upon a showing of good cause."

In re Int

__________

F. Supp. 556, 562 (S.D.N.Y. 1994)

~L-

Res.

__________

~

Inc.

_ _ _ __

(quoting In re South Cent
464 F. Supp. 388, 390

4

851
1

(J.P.M.L. 1978)).

The party seeking remand bears the burden of

establishing that remand is warranted.

In determining whet

Id.

r good cause exists for remand,

rally consider "whether the case will benefit from

courts

further coordinated proceedings as part of the MOL."
Br

restone

Inc.

~~~~~~~~~ ..~~~~----~

Ind. 2001)

In re

1196, 1197 (S.D.

128 F. Supp.

(citing In re Air Crash Disaster as Teneri fe

Cana

Islands on March 27, 1997, 461 F. Supp. 671, 672-73 (J.P.M.L.
1978) ).

Remand is not appropriate when continued consolidation

or coordination "will 'eliminate duplicative discovery, prevent
inconsistent pretrial rulings, and conserve the resources of the
parties, their counsel and the judiciary.'"

In re Merrill

Auction Rate Sec. Liti ., No. 09 MD 2030 (LAP), 2010 WL 2541227,
at *2 (S.D.N.Y. June 11, 2010)

Liti.

In re Herit

Bonds

217 F. Supp. 2d 1369, 1370 (J.P.M.L. 2002)).

With respect to the actions consolidated or
coordinated with the Securities Action

of which Plaintiff's

action is one - pretrial proceedings have not yet been
completed.
Lead Plaintiff

though extensive common discovery was conducted by
the Securities Action, significant pretrial

proceedings remain for those plaintiffs who chose to opt-out of
the settlement class, including fact depos
5

ions and expert

discovery.
Oppos

claration of Rachale C. Miller In Support of

See

ion to Vivine Wang's Motion for an Order Suggesting

Remand ("Miller Decl.")

~

8.

Plaintiff has contended that remand is nonetheless
warranted because she has sued entities and individuals who were
not

fendants in the Securit

s Action and because her

complaint asserts allegedly unique cIa

under the California

securities laws, and as a result necessitates
conduct her own unique discovery.

opportunity to

Plaintiff previously made the

same argument to the Panel in objecting to the trans
act

r of her

to this Court, and the Panel rejected her reasoning,

holding that "the presence of additional or differing legal
theories is not significant when

actions still arise from a

common factual core, in this instance, the financial crisis at
Bear Stearns
others."

March 2008 and its ef
Decl. Ex. A at 2.

Mil

on investors and

The Panel's reasoning is

equally applicable to Plaintiff's instant motion.
Plaintiff her

In addition,

f has previously acknowledged that "coordination

of discovery and other pre-trial activities wi

MOL 1963 would

appear to make some sense given that some of her claims mirror
those asserted in

cons

idat

class action complaint and

are based on some of the same evidence."
7.

6

Miller Decl. Ex. C at

The cases cited by Plaintiff are inapposite, as none
of them support granting a motion to remand to
court where, as

transferor

re, pretrial proceedings have not concluded.

In some of the cases, the court denied a motion for remand on
the ground that the cases in the MDL proceedings were still
moving forward.

See

e.

2010 WL

.

2541227, at *3-4; In re Patenaude, 210 F.3d 135, 146 (3d Cir.
2000).

In the other cases upon which Plaintiff relies, the

remand motions were granted on the express grounds that pretrial
proceedings on common issues had been completed, see In re
Activated Carbon-Based Hunting Clothing Marketing & Sales
~P_r~a~c~t~i~c_e~.s.~~~l~·~.,

840 F. Supp. 2d 1193, 1198 (D. Minn. 2012); In

re Air Crash Disaster, 461 F. Supp. At 672-73; In re A.H. Robins
Co.

"Dalkon Shield" IUD Prods.

453 F. Supp.

108, 109 (J.P.M.L. 1978);

352

F. Supp. 974, 975 (J.P.M.L. 1972), which of course is not true
here.

Plaintiff has also contended that remand is merit
due to the settlement of the Securities Action.

However, even

where "virtually all the actions with which [a] case was
consolidated have . . . been settled," remand is not required.
_I_n~r~e__~~,~.~~t~e~d=-~R~e~s~.~I~n~c~.

No. 92 Civ. 4555 (RWS), 1995 WL

7

234975, at *4

(S.D.N.Y. Apr. 21, 1995).

"The mere fact that

pretrial proceedings have been concluded in some or most of
transfe

cases does not justi

remand of other cases

Panel.

initially transferred by t

Even if the transferee

court had disposed of all but one trans

rred case,

Panel

may refuse to remand that single case to the transferor

strict

because discovery still remained to be completed in that case."
David F. Herr, Multidistrict

tion Manual § 10:7 (2012

--------------------~--~----------

.); see also In re CBS Color
1403, 1405 (J.P.M.L. 1972)

342 F. Supp.

(finding that it was not necessary to

remand an action "in which discovery is not yet comple
simply because all other consolidated cases in
court have

dismissed or terminat

Hol

trans

in some way"); In re
433 F. Supp. 1125, 1126

(J.P.M.L. 1977).

Moreover, "a

principle of the multi-dist

scheme involves the accrual of judi
fundamental assumption of t

mult

1 expertise.

ct

It is a

strict system that having

only one court sort out the facts of complex and multi-faceted
transactions and occurrences which have given rise to many
competing legal claims well serves t

goal of judi

1995 WL 234975, at *4.
action were remanded to the trans

8

1 economy.
If an

r court prior to the

completion of pretrial proceedings, the recipient court would be
red "to make its own way up [the] same learning curve,
res

ting in just that duplication of efforts t

multidist

ct system is designed to avoid."

the

Id.

Here, the Court has accrued significant familiar
with complex factual and legal issues that are relevant not only
to the Securit

s Action, but also to the opt-out actions

including that of
with

aintiff.

Numerous orders have been issued

to the Securities Action and the related

rivat

and ERISA class actions, as well as rulings on motions to
dismiss in all

class actions.

supervised extensive
anal

In addition,

Court

scovery in the Securities Action, and

ed the substance and strength of the asserted federal

securities claims in the course of approving the settlement.
See In re Bear Stearns Cos., Inc.,------~-----------------------Sec., Oer
ive and ERISA
Liti .

F. Supp. 2d ---, No. 08 MOL 1963 (RWS), 2012 WL

5465381, at **4-7 (S.D.N.Y. Nov. 9, 2012).
Court's retention of

Accordingly, the

instant action will serve the interests

of "conserv[ing] the resources of the parties, t
the judi
ef

r counsel and

ary" by preventing duplicative discovery and judicial
and avoiding inconsistent

2010 WL 2541227, at *3.

9

ings.

In re Merrill

Conclusion

For

above stated reasons, Plaintiff's motion for

an order suggesting remand is denied.

New York, NY
July
2013

7'

ROBERT W. SWEET
U.S.D.J.

10