City of Hollywood Firefighters' Pension Fund v. ASML Holding N.V. et al

Filing 56

MEMORANDUM AND ORDER granting (27) Motion to Consolidate Cases ; granting (27) Motion to Appoint ; granting (27) Motion to Appoint Counsel ; denying (29) Motion to Appoint Counsel ; denying (29) Motion to Appoint ; denying (36) Motion to Conso lidate Cases ; denying (36) Motion to Appoint ; denying (36) Motion to Appoint Counsel ; denying (11) Motion to Appoint ; denying (16) Motion to Appoint ; denying (16) Motion to Appoint Counsel ; denying (16) Motion to Consolidate Cases ; den ying (21) Motion to Consolidate Cases ; denying (21) Motion to Appoint ; denying (21) Motion to Appoint Counsel in case 1:24-cv-08664-NRB. The caption of the consolidated actions shall hereinafter be "In re ASML Holding N.V. Securities Liti gation." All relevant filings and submissions shall be maintained as one file under No. 24 Civ. 8664 (NRB). Any other securities actions now pending or later filed in this district that arise out of or are related to the same fact s as alleged in the above cases shall be consolidated with these Actions for all purposes. Accordingly, the Police and Fire Funds are well-suited to serve as lead plaintiffs. Bernstein Litowitz and Kessler Topaz have extensive experience pros ecuting securities class actions, and the Court has no reason to believe that either firm will not adequately represent the interests of the class. Accordingly, the Court approves their selection as lead counsel. For the foregoing reasons, the Act ions are consolidated, the Police and Fire Funds are appointed as lead plaintiffs, and Bernstein Litowitz and Kessler Topaz are appointed as lead counsel. Lead plaintiffs shall file an amended complaint within 45 days of this Order, and de fendants shall respond to the complaint within 45 days of the filing of the amended complaint, either by responsive pleading or a motion to dismiss. If defendants move to dismiss the amended complaint, lead plaintiffs will have 45 days to file an opposition brief, after which defendants will have 25 days to file a reply brief. The Clerk of Court is respectfully directed to terminate the motions pending at ECF Nos. 11, 16, 21, 27, 29, and 36. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 3/6/2025) Filed In Associated Cases: 1:24-cv-08664-NRB, 1:24-cv-09908-NRB (tg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------X
CITY OF HOLLYWOOD FIREFIGHTERS’
PENSION FUND, Individually and On
Behalf of All Others Similarly
Situated,
Plaintiff,

MEMORANDUM AND ORDER
24 Civ. 8664 (NRB)

- against ASML HOLDING N.V., CHRISTOPHE FOUQUET,
ROGER DASSEN, and PETER WENNINK,
Defendants.
--------------------------------------X
ANAS MATAR, Individually and On
Behalf of All Others Similarly
Situated,
Plaintiff,

24 Civ. 9908 (NRB)

- against ASML HOLDING N.V., CHRISTOPHE FOUQUET,
ROGER DASSEN, and PETER WENNINK,
Defendants.
--------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
The above-captioned class actions (the “Actions”) are brought
against ASML Holding N.V. and its executives, Christophe Fouquet,
Roger Dassen, and Peter Wennink, alleging violations of Sections
10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C.
§§ 78j(b) and 78t(a), and Rule 10b-5 promulgated thereunder by the
Securities and Exchange Commission, 17 C.F.R. § 240.10b-5.

City

of Hollywood Firefighters’ Pension Fund v. ASML Holding N.V., et

1

al., No. 24 Civ. 8664 (NRB); Anas Matar v. ASML Holding N.V., et
al., No. 24 Civ. 9908 (NRB).
Six applicants filed motions seeking to consolidate these
cases, be appointed as lead plaintiff, and appoint their attorneys
as lead counsel.

For the reasons set forth below, we consolidate

the Actions, appoint the City of Hollywood Firefighters’ Pension
Fund

(“Hollywood

Firefighters”),

City

of

Hollywood

Police

Officers’ Retirement System (“Hollywood Police”), City Pension
Fund for Firefighters and Police Officers in the City of Miami
Beach (“Miami Beach F&P”), City Pension Fund for Firefighters and
Police Officers (“Detroit P&F”) (collectively, the “Police and
Fire Funds”) as lead plaintiffs, and appoint Bernstein Litowitz
Berger & Grossmann LLP (“Bernstein Litowitz”) and Kessler Topaz
Meltzer & Check LLP (“Kessler Topaz”) as lead counsel.
DISCUSSION
I.

Consolidation of the Actions
Because the Actions filed against ASML “contain the same

factual and legal issues,” we consolidate them under Rule 42(a) of
the Federal Rules of Civil Procedure.

Atwood v. Intercept Pharm.,

Inc., 299 F.R.D. 414, 415 (S.D.N.Y. 2014).

The caption of the

consolidated actions shall hereinafter be “In re ASML Holding N.V.
Securities Litigation.”

All relevant filings and submissions

shall be maintained as one file under No. 24 Civ. 8664 (NRB).

Any

other securities actions now pending or later filed in this
2

district that arise out of or are related to the same facts as
alleged in the above cases shall be consolidated with these Actions
for all purposes.
II.

Appointment of Lead Plaintiff
Six applicants filed timely motions seeking to be appointed

as lead plaintiff and appoint their attorneys as lead counsel.1
In the two weeks that followed, three of those applicants filed
notices stating that they did not oppose the competing motions.2
Accordingly, three lead plaintiff candidates remain, namely:
(i) Shahram Afshani, Sandra Afshani, and Parviz Afshani (together,
the “Afshanis”); (ii) the Police and Fire Funds; and (iii) the
Northern California Pipe Trades Trust Funds (“NCPTTF”).3 Following
our review of the applicable legal standard, we

address

the

application of each candidate in turn.

1 The Court received timely motions to be appointed lead plaintiff from:
(1) Anas Matar, represented by Bleichmar Fonti & Auld LLP (ECF Nos. 11-15); (2)
Robert Lowinger and The Condor Group, LLC, represented by Bernstein Liebhard,
LLP (ECF Nos. 29-31); (3) New York Hotel Trades Council & Hotel Association of
New York City, Inc. Pension Fund, City of Birmingham Retirement and Relief
System, and Howard County Master Trust, represented by Robbins Geller Rudman &
Dowd LLP (ECF Nos. 34, 36-39); (4) the Police and Fire Funds, represented by
Bernstein Litowitz Berger & Grossman LLP and Kessler Topaz Meltzer & Check LLP
(ECF Nos. 26-28, 33, 35); (5) Shahram Afshani, Sandra Afshani, and Parviz
Afshani (together, the “Afshanis”), represented by Hagens Berman Sobol Shapiro,
LLP (ECF Nos. 21-25); and (6) the Northern California Pipe Trades Trust Funds
(“NCPTTF”), represented by Block & Leviton LLP (ECF Nos. 16-20).
2 The Court received notices of non-opposition from: (1) Matar (ECF No.
41); (2) Lowinger and The Condor Group, LLC (ECF No. 42); and (3) New York Hotel
Trades Council & Hotel Association of New York City, Inc. Pension Fund, City of
Birmingham Retirement and Relief System, and Howard County Master Trust (ECF
No. 43).
3 The three remaining lead plaintiff candidates subsequently responded
and replied to each other’s motions. See ECF Nos. 44-54.

3

a. Legal Standard
Under the Private Securities Litigation Reform Act of 1995
(the “PSLRA”), the Court must appoint “the most adequate plaintiff”
as lead plaintiff.

15 U.S.C. § 78u–4(a)(3)(B)(i).

The Court is

to presume that the “most adequate plaintiff” is the person or
group of persons that: (i) “in the determination of the court, has
the largest financial interest in the relief sought by the class”;
and (ii)”otherwise satisfies the requirements of Rule 23 of the
Federal

Rules

of

Civil

Procedure.”

15

U.S.C.

§

78u–

4(a)(3)(B)(iii)(I)(bb)-(cc).
The PSLRA does not specify how a court should assess a party’s
financial interest in the litigation.

However, courts typically

look to four factors: “(1) the 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[.]”

In re eSpeed,

Inc. Sec. Litig., 232 F.R.D. 95, 100 (S.D.N.Y. 2005) (citation
omitted).

“Pursuant to the PSLRA, the presumptive lead plaintiff

is the investor with the largest financial interest in the outcome
of the action[.]”

Cook v. Allergan PLC, No. 18 Civ. 12089 (CM),

2019 WL 1510894, at *1 (S.D.N.Y. Mar. 21, 2019).
In determining whether a person or group of persons satisfies
the

requirements

of

Rule

23,

“typicality

and

representation are the only provisions relevant.”
4

adequacy

of

Shi v. Sina

Corp., et al., No. 05 Civ. 2154 (NRB), 2005 WL 1561438, at *2
(S.D.N.Y. July 1, 2005) (quoting In re Oxford Health Plans, Inc.
Sec. Litig., 182 F.R.D. 42, 49 (S.D.N.Y. 1998)).

The “typicality

[requirement] is satisfied” where the proposed lead plaintiff’s
claims “arise from the same conduct from which the other class
members’ claims and injuries arise.”

Teran v. Subaye, Inc., No.

11 Civ. 2614 (NRB), 2011 WL 4357362, at *5 (S.D.N.Y. Sept. 16,
2011) (citation omitted).

“The adequacy requirement is satisfied

where: (1) class counsel is qualified, experienced, and generally
able to conduct the litigation; (2) there is no conflict between
the proposed lead plaintiff and the members of the class; and (3)
the proposed lead plaintiff has a sufficient interest in the
outcome of the case to ensure vigorous advocacy.”

Foley v.

Transocean Ltd., 272 F.R.D. 126, 131 (S.D.N.Y. 2011).
“Once

it

is

determined

who

among

the

movants

seeking

appointment as lead plaintiff is the presumptive lead plaintiff,
the presumption can be rebutted only upon proof by a member of the
purported class that the presumptive lead plaintiff will not fairly
and adequately protect the interests of the class or is subject to
unique defenses that render such plaintiff incapable of adequately
representing the class.”

Freudenberg v. E*Trade Fin. Corp., No.

07 Civ. 10400, 2008 WL 2876373, at *3 (S.D.N.Y. July 16, 2008)
(citing 15 U.S.C. § 78u–4(a)(3)(B)(iii)(II)) (internal quotations
omitted).
5

b. The Afshani Family
The Afshanis claim the largest financial interest in this
litigation, asserting that they suffered $1,629,762.39 in losses.
See ECF No. 25-2 at 2.

Although the Police and Fire Funds contend

that the Afshanis’ options trading and short selling may have
resulted in lower losses than they assert, ECF No. 47 at 10-12,
the Court need not address this argument because the Afshanis do
not satisfy the requirements of Rule 23 and thus would not be an
appropriate lead plaintiff for the proposed class.
As the Police and Fire Funds note, the Afshanis are atypical
because

their

losses

arose

transactions and short sales.4

primarily

from

options-related

See ECF No. 47 at 12-17.

If the

Court were to appoint the Afshanis as lead plaintiff, it is likely
that their options trading and short selling would become a focal
point at class certification, with unique questions raised about
their

resulting

losses.

Accordingly,

because

factual

issues

unique to the Afshanis “would likely threaten to become the focus
of the litigation,” the Court declines to appoint the Afshanis as
lead plaintiff.

Andrada v. Atherogenics, Inc., No. 05 Civ. 00061

(RJH), 2005 WL 912359, at *5 (S.D.N.Y. Apr. 19, 2005) (internal
quotations and citation omitted); see also Allergan, 2019 WL
1510894, at *2 (determining that proposed lead plaintiff with
losses arising from options trading “very likely would introduce

4 The Afshanis do not deny that a large majority of their losses are
attributable to options trading. See ECF No. 46 at 4-6.

6

factual

issues

irrelevant

to

stockholder

class

members,

like

strike price, duration, maturity, volatility, and interest rates,
and . . . could subject the class to unique defenses, causing
unnecessary

conflict”)

(internal

quotations

and

citations

omitted).
c. The Police and Fire Funds
The

Police

$1,488,214.35.

and

Fire

Funds

assert

See ECF No. 33-2 at 2-6.

total

losses

of

Although the Afshanis

contend that these claimed losses improperly exclude approximately
$450,000 in gains from pre-class shares held and sold in the class
period, ECF No. 46 at 8, an assertion which the Police and Fire
Funds dispute, ECF No. 54 at 4-6, the Court need not determine
which party’s calculation is correct.

Even if the Court were to

accept the Afshanis’ position and add the alleged $450,000 in gains
to the Police and Fire Funds’ losses, those losses would remain
significantly higher than those reported by NCPTTF, the only other
remaining lead plaintiff candidate. 5
Moreover, the Police and Fire Funds are typical of the class,
as they “purchased or otherwise acquired ASML ordinary shares,”
Hollywood Firefighters, ECF No. 1 ¶ 1, and claim to have suffered
losses as a result

of defendants’ allegedly wrongful conduct.

5
The Afshanis contend that, after accounting for the Hollywood
Firefighters’ alleged gains, the Police and Fire Funds’ total losses would be
$1,036,270.20. ECF No. 46 at 8. NCPTTF claims only $607,027.47 in losses.
See ECF No. 18-3 at 3.

7

See

Foley,

272

F.R.D.

at

131

(“The

typicality

threshold

is

satisfied where the claims arise from the same conduct from which
the other class members' claims and injuries arise.”) (internal
quotation marks and citation omitted).
The Police and Fire Funds also appear to be adequate lead
plaintiffs.
investors

They
who

demonstrating

are

an

experienced

group

of

institutional

Joint

Declaration

have

submitted

a

sworn

their

commitment

and

ability

direct

this

litigation jointly and in the best interests of the class.

See

ECF No. 33-3.
dollars,

to

Importantly, having lost more than a million

the

Police

and

Fire

Funds

have

an

“vigorous[ly] advoca[te]” on behalf of the class.

incentive

to

Foley, 272

F.R.D. at 131.
Although the Afshanis contend that the Police and Fire Funds
cannot adequately serve as lead plaintiffs because they are an
“artificial group” lacking a “pre-existing relationship[,]” ECF
No.

46

at

permitted

9,
by

cooperation
the

PSLRA,

between
15

institutional

U.S.C.

§

investors

is

78u-4(a)(3)(B)(iii)(I).

However, “courts regularly require proposed lead plaintiff groups
to

demonstrate

their

ability

to

function

as

a

cohesive

independent unit to protect the interests of the class.”

and

In re

Petrobras Sec. Lit., 104 F. Supp. 3d 618, 622 (S.D.N.Y. 2015).
Relevant factors in this analysis include “whether [the group’s
members] have cooperated effectively thus far” and “whether they
8

have a coherent plan for dividing responsibilities, resolving
conflicts, and managing the litigation.”

Id. (citing Varghese v.

China Shenghuo Pharm. Holdings, Inc., 589 F. Supp. 2d 388, 392
(S.D.N.Y. 2008)).
The

Court

recognizes

these

concerns

and

has

carefully

reviewed the documents made available to the Court by the Police
and

Fire

Funds,

including

the

parties’

Joint

Prosecution

Agreement, reviewed in camera, and Joint Declaration, ECF No. 333.

The Court is satisfied that its concerns about duplicative

efforts

and

cohesiveness

have

been

thoroughly

addressed.6

Accordingly, the Police and Fire Funds are well-suited to serve as
lead plaintiffs.
d. NCPTTF
Because

the

remaining

candidate,

NCPTTF,

claims

only

$607,027.47 in losses, ECF No. 18-3 at 3, it does not have the
largest financial interest in the outcome of this litigation.
Moreover, in light of our determination that the Police and Fire
Funds are well-suited to serve as lead plaintiffs, we need not
examine NCPTTF’s application any further.

We note that courts routinely appoint cohesive groups of class members
as lead plaintiff. See, e.g., Reimer v. Ambac Fin. Grp., Inc., No. 08 Civ. 411
(NRB), 2008 WL 2073931, at *3-*5 (S.D.N.Y. May 9, 2008) (appointing group of
pension funds); Baxter v. MongoDB, Inc., No. 24 Civ. 5191 (GHW), 2024 WL 4753605,
at *7 (S.D.N.Y. Nov. 12, 2024) (appointing group of pension funds).
6

In this regard, it is helpful to remember that awards of attorneys’ fees
generally constitute a percentage of the recovery, after due consideration to
the lodestar. This reality clearly operates as a disincentive for class counsel
to engage in unnecessary or duplicative work.

9

III. Appointment of Lead Counsel
The Police and Fire Funds have moved to designate their
selected law firms, Bernstein Litowitz and Kessler Topaz, as lead
counsel.

The PSLRA “evidences a strong presumption in favor of

approving a properly-selected lead plaintiff’s decisions as to
counsel selection and counsel retention.”

In re Adelphia Commc’ns

Corp. Sec. & Deriv. Litig., No. 03 MDL 1529 (LMM), 2008 WL 4128702,
at *2 (S.D.N.Y. Sept. 3, 2008) (internal quotation marks and
citation omitted). However, the lead plaintiff’s choice of counsel
is “subject to the approval of the court.”

15 U.S.C. § 78u-

4(a)(3)(B)(v).
Bernstein

Litowitz

and

Kessler

Topaz

have

extensive

experience prosecuting securities class actions, and the Court has
no reason to believe that either firm will not adequately represent
the interests of the class.

Accordingly, the Court approves their

selection as lead counsel.
CONCLUSION
For the foregoing reasons, the Actions are consolidated, the
Police and Fire Funds are

appointed

as lead plaintiffs, and

Bernstein Litowitz and Kessler Topaz are appointed as lead counsel.
Lead plaintiffs shall file an amended complaint within 45
days of this Order, and defendants shall respond to the complaint
within 45 days of the filing of the amended complaint, either by
responsive pleading or a motion to dismiss.
10

If defendants move to

dismiss the amended complaint, lead plaintiffs will have 45 days
to file an opposition brief, after which defendants will have 25
days to file a reply brief.
The Clerk of Court is respectfully directed to terminate the
motions pending at ECF Nos. 11, 16, 21, 27, 29, and 36.
SO ORDERED.
Dated:

New York, New York
March 6, 2025
_____________________________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

11