Cortina v. Anavex Life Sciences Corp et al
MEMORANDUM OPINION AND ORDER re: 23 MOTION to Appoint Stanley Gunawan and Stephen Lin to serve as lead plaintiff(s). MOTION to Appoint Counsel Glancy Prongay & Murray LLP and Pomerantz LLP filed by Stanley Gunawan, Stephe n Lin, 54 MOTION for Leave to File Reply filed by Phillip Din, 20 MOTION to Appoint Lam Truong to serve as lead plaintiff(s) filed by Lam Truong, 17 MOTION to Appoint Counsel. MOTION to Appoint Phill ip Din, M.D. to serve as lead plaintiff(s) filed by Phillip Din: For the foregoing reasons, Truong's motion to be appointed lead plaintiff is GRANTED, and Din's motion is DENIED. As stated at the March 10, 2016 conference, w ithin one week of the date of this Order, Lead Plaintiff and Defendants shall submit a joint letter setting forth a proposed schedule for amending the Complaint and briefing any motion to dismiss. The Clerk of Court is directed to terminate Docket Nos. 17, 20, 23, and 54. (Signed by Judge Jesse M. Furman on 4/5/2016) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANAVEX LIFE SCIENCES CORP., et al.,
JESSE M. FURMAN, United States District Judge:
On December 30, 2015, Plaintiff Kevin Cortina filed a putative class action lawsuit on
behalf of purchasers of Anavex Life Sciences Corp. securities between May 17, 2013, and
December 28, 2015. (See Compl. (Docket No. 1) ¶ 1). His Complaint alleges violations of
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq., and
Rule 10b-5, promulgated thereunder. The same day that Cortina filed his Complaint, he also
published notice of the lawsuit, in accordance with the Private Securities Litigation Reform Act
(“PSLRA”), 15 U.S.C. § 78u-4(a)(3)(A). (See Docket Nos. 12-13). On February 29, 2016, three
motions were filed with respect to appointment of a lead plaintiff: one by Phillip Din (Docket
No. 17); one by Lam Truong (Docket No. 20); and one by Stanley Gunawan and Stephen Lin,
proceeding jointly (Docket No. 23). See 15 U.S.C. § 78u-4(a)(3)(A) (providing that, “not later
than 60 days after the date on which the notice is published, any member of the purported class
may move the court to serve as lead plaintiff of the purported class”). On March 10, 2016, the
Court held a conference with respect to the motions and denied Gunawan and Lin’s motion. (See
Docket No. 48 (Transcript)). The Court reserved judgment on the other two motions, in part
because the “90-day lookback period” used to calculate damages under the PSLRA — and thus
the sizes of Din’s and Truong’s losses — had not yet run its course. See 15 U.S.C. § 78u-4(e)(1).
The Court directed Din and Truong to submit a final calculation of the 90-day lookback period
value after that period had run, which they did on March 30, 2016. (Docket No. 53).
The PSLRA directs courts to presume that the most adequate lead plaintiff is the movant
who, “in the determination of the court, has the largest financial interest in the relief sought by
the class” and “otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil
Procedure.” 15 U.S.C. § 78u-4(a)(3)(B)(iii). The statute does not define “largest financial
interest,” but “courts have generally relied on” four factors identified in Lax v. First Merchants
Acceptance Corp., No. 97-CV-2715, 1997 WL 461036 (N.D. Ill. Aug. 11, 1997), commonly
known as “the Lax factors.” Richman v. Goldman Sachs Grp., Inc., 274 F.R.D. 473, 475
(S.D.N.Y. 2011); see, e.g., Hom v. Vale, S.A., No. 15-CV-9539 (GHW), 2016 WL 880201, at *3
(S.D.N.Y. Mar. 7, 2016); Foley v. Transocean Ltd., 272 F.R.D. 126, 127-28 (S.D.N.Y. 2011).
The four factors are: “(1) the number of shares purchased; (2) the number of net shares
purchased; (3) total net funds expended by the plaintiffs during the class period; and (4) the
approximate losses suffered by the plaintiffs.” Richman, 274 F.R.D. at 475. Courts tend to treat
the factors in ascending order of importance, with the number of shares purchased as the least
important and the size of the loss the most important, but each factor is “only a proxy — and an
imperfect one — for determining” which applicant for lead plaintiff has “the largest financial
interest.” Id. at 476.
In the present case, Din and Truong spill considerable ink over the size of Din’s losses —
in particular, over whether all of his stock sales count or some should be disregarded because
they predate the corrective disclosures alleged in the Complaint; over whether a news article that
arguably qualified as a partial corrective disclosure was disseminated to the public on November
9 or November 11, 2015; over whether the 90-day lookback period began on December 29 or 30,
2015; and over whether his losses should be calculated using the last-in-first-out (“LIFO”) or
first-in-first-out (“FIFO”) method. (See, e.g., Docket Nos. 18, 21, 29, 30, 38, 43-45, 54, and 55).
The Court need not resolve these disputes, however, because it finds that, even if all of them
were resolved in Din’s favor, the Lax factors ultimately weigh in Truong’s favor. With respect
to the fourth and arguably most important factor, Din suffered a financial loss that is at most
$1,132.04 greater than Truong’s loss — or roughly 3.5% of each movant’s total loss. (See
Movant Phillip Din, M.D.’s Reply Response Movant Lam Truong’s Resp. March 17, 2016
(Docket No. 54, Ex. A) 3). The “least important” factor, total shares purchased, also weighs in
Din’s favor, as he purchased 30,973 shares to Truong’s 6,764. (See Movant Lam Truong’s Resp.
Court’s Order Dated Mar. 10, 2016 (Docket No. 44) 4). But the second and third factors — net
shares purchased and net funds expended — heavily favor Truong: 6,764 net shares and $57,783
net funds for Truong versus 20 and $29,257 for Din. (Id.). Given that, at best, the total loss
factor only slightly favors Din (and, in actual fact, the factor might either tip in Truong’s favor or
be in near equipoise), and that the two net factors heavily favor Truong, the Court finds that
Truong has “the largest financial interest in the relief sought by the class.” See, e.g., Richman,
274 F.R.D. at 476 (noting that each factor is an “imperfect” proxy for determining financial
interest); Police & Fire Ret. Sys. of City of Detroit v. SafeNet, Inc., No. 06-CV-5797 (PAC),
2007 WL 7952453, at *2 (S.D.N.Y. 2007) (appointing as lead a plaintiff whose losses were
approximately 2% smaller than the losses of another movant based on the other Lax factors). 1
Din cites In re Gentiva Securities Litigation, 281 F.R.D. 108 (E.D.N.Y. 2012), for the
proposition that when “there are two or more ‘partial disclosures,’ the net shares purchased and
net expenditure numbers become irrelevant because they give the impression that investors who
sold after the first partial disclosure have not suffered a loss.” (Lead Pl. Movant Phillip Din’s
Suppl. Br. Further Supp. His Lead Pl. Mot. (Docket No. 45) 8 n.4). The Court does not read
Gentiva that way. The Court there rejected the argument that the net shares factor automatically
outweighs financial loss in a partial disclosure situation. It did not, however, hold that the net
numbers were irrelevant; in fact, the Court noted that when the difference in total loss is
marginal, as it is here, courts often weigh the other Lax factors more heavily. See Gentiva, 281
The Court also finds that Truong satisfies the requirements of Rule 23 of the Federal
Rules of Civil Procedure, substantially for the reasons stated in his opening brief. (See Mem.
Law Supp. Mot. Lam Truong Appointment Lead Pl. (Docket No. 21) (“Truong Mem.”) 6-9).
Significantly, as part of a PSLRA lead plaintiff motion, “[t]he moving plaintiff must make only a
preliminary showing that the adequacy and typicality requirements under Rule 23 have been
met.” Weinberg v. Atlas Air Worldwide Holdings, Inc., 216 F.R.D. 248, 252-53 (S.D.N.Y.
2003). Truong satisfies the typicality requirement, because he claims to have suffered losses
from Defendants’ alleged misconduct during the class period; he satisfies the adequacy
requirement, because his interests are aligned with those of the class and he has retained
experienced counsel. (See Truong Mem. 7-8). See also Weinberg, 216 F.R.D. at 253.
For the foregoing reasons, Truong’s motion to be appointed lead plaintiff is GRANTED,
and Din’s motion is DENIED. 2 As stated at the March 10, 2016 conference, within one week of
the date of this Order, Lead Plaintiff and Defendants shall submit a joint letter setting forth a
proposed schedule for amending the Complaint and briefing any motion to dismiss.
The Clerk of Court is directed to terminate Docket Nos. 17, 20, 23, and 54.
Dated: April 5, 2016
New York, New York
F.R.D. at 118. The Court went on to reject one of the lead plaintiff movants not just on the basis
of total financial loss, but also because it was an aggregated group of unrelated entities. Id. at
119-20. Gentiva therefore does not alter this Court’s analysis or conclusion.
On March 30, 2016, Din moved for leave to file an additional reply (which was attached
to the motion itself). (Docket No. 54). The Court considered the reply in connection with its
decision. Accordingly, Din’s motion is granted.
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