FISHER v. FENNEC PHARMACEUTICALS INC. et al

Filing 20

MEMORANDUM OPINION AND ORDER signed by JUDGE CATHERINE C. EAGLES on 05/09/2022, that the plaintiff's motion for appointment as lead plaintiff and approval of selection of counsel, Doc. 15 , is GRANTED as follows, as set out herein. (Bowers, Alexis)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JEFFREY D. FISHER, Individually
and on behalf of all others similarly
situated,
Plaintiff,
v.
FENNEC PHARMACEUTICALS
INC., ROSTISLAV RAYKOV, and
ROBERT ANDRADE,
Defendants.

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1:22-CV-115

MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
Plaintiff Jeffrey Fisher filed this securities class action lawsuit alleging Fennec
Pharmaceuticals Inc., Rostislav Raykov, and Robert Andrade violated §§ 10(b) and 20(a)
of the Securities Exchange Act of 1934 and related regulations. Mr. Fisher seeks
appointment as lead plaintiff and approval of Pomerantz LLP as lead counsel and Schiller
& Schiller, PLLC as liaison counsel for the putative class. The defendants take no
position on the motion. Because all requirements have been met and there is no evidence
suggesting either Mr. Fisher or his selected counsel will not adequately handle this
matter, the Court will appoint Mr. Fisher as lead plaintiff and approve his selection of
lead and liaison counsel.

I.

Appointment of Lead Plaintiff
The Private Securities Litigation Reform Act of 1995 governs securities class

actions and imposes procedural requirements for the appointment of lead plaintiff. See
15 U.S.C. § 78u-4(a)(3). Under the statute, the Court must appoint as lead plaintiff the
plaintiff whom the Court determines to be “most capable of adequately representing the
interests of class members . . . in accordance with” a number of provisions. § 78u4(a)(3)(B)(i). Among these are certain notice requirements, § 78u-4(a)(3)(A), and a
presumption in favor of a plaintiff who satisfies those requirements, has the largest
financial interest in the relief sought by the class, and satisfies the requirements of
Federal Rule of Civil Procedure 23. § 78u-4(a)(3)(B)(iii)(I).
The Court finds the following:
1. The PSLRA requires that, within 20 days after filing suit, a plaintiff must
publish a notice advising potential class members “of the pendency of the
action, the claims asserted therein, and the purported class period.” § 78u4(a)(3)(A)(i).
2. Mr. Fisher filed suit on February 9, 2022. The same day, Mr. Fisher’s counsel
published a notice via GlobeNewsWire informing class members of their right
to file motions for appointment as lead plaintiff, Doc. 16 at 10, Doc. 13-1 at 2–
3, satisfying the requirement of § 78u-4(a)(3)(A)(i). See Simmons v. Spencer,
No. 13-CV-8216, 2014 WL 1678987, at *2–3 (S.D.N.Y. Apr. 25, 2014)
(stating that GlobeNewsWire is “a widely circulated national business-oriented
publication or wire service” for § 78u–4(a)(3)(A)(i)'s purposes).
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3. The PSLRA allows any member of the putative class to file a motion to serve
as lead plaintiff no later than 60 days after the notice is published. § 78u4(a)(3)(A)(i)(II).
4. On April 11, 2022, 60 days after notice was published, Mr. Fisher filed this
motion to serve as lead plaintiff. Doc. 15.
5. The PSLRA provides that not more than 90 days after notice is published, the
court will consider the pending motions and appoint a lead plaintiff it
“determines to be most capable of adequately representing the interests of class
members.” § 78u-4(a)(3)(B)(i).
6. Not more than 90 days have passed since the notice was published.
7. In determining if Mr. Fisher is most capable of leading the class, the Court
must presume that the most adequate plaintiff is the person who (a) has filed
the complaint or made a motion in response to the notice; (b) has the largest
financial interest in the relief sought by the class; and (c) otherwise satisfies the
requirements of Fed. R. Civ. P. 23. § 78u-4(a)(3)(B)(iii)(I).
8. As to the first requirement, Mr. Fisher filed the complaint and timely moved to
serve as lead plaintiff.
9. As to the second requirement, Mr. Fisher purchased 1,050 shares of Fennec
securities, expended $10,406 on his purchases of Fennec securities, retained
1,050 of his shares of Fennec securities, and suffered losses of $5,635 in
Fennec securities during the class period. See Doc. 16 at 11; Doc. 16-1. There
is no evidence anyone has a larger financial interest in the relief sought.
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10. As to the third requirement, “[a] presumptive lead plaintiff need make only a
prima facie showing that it can satisfy the typicality and adequacy
requirements of Rule 23 to be appointed.” In re Cree, Inc., Sec. Litig., 219
F.R.D. 369, 372 (M.D.N.C. 2003). “The typicality requirement of the rule
requires that a lead plaintiff suffer the same injuries as the class as a result of
the defendant’s conduct and has claims based on the same legal issues.” Id.
“Adequate representation requires a finding that the purported class
representative and its attorney are capable of pursuing the litigation and that
neither has a conflict of interest with other class members.” Id. (citing Sosna v.
Iowa, 419 U.S. 393, 403 (1975)).
11. As to typicality, Mr. Fisher purchased Fennec securities during the class
period, see Doc. 16-1 at 2, and he claims he did so based on the same allegedly
misleading statements and omission of material facts the complaint highlights.
See Doc. 16 at 12–13.
12. As to adequacy, Mr. Fisher and his attorneys are willing and able to pursue the
litigation. Id. at 13–14. Mr. Fisher has certified that he is willing to participate
in this litigation and will represent the class’s interests actively and zealously.
See generally Doc. 16-5. The Court is unaware of any conflicts of interest or
antagonism between Mr. Fisher and the rest of the class. As discussed below,
the group has retained experienced, able counsel.
13. Once the requirements for the presumption of most adequate lead plaintiff are
met, the presumption may be rebutted only upon proof by a class member that
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the presumptively most adequate 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.” § 78u4(a)(3)(B)(iii)(II).
14. The Court is aware of no evidence that might rebut the presumption raised by
the foregoing.
Because Mr. Fisher satisfies the above requirements, the Court will appoint him as
lead plaintiff.
II.

Appointment of Lead Counsel
Under the PSLRA, “[t]he most adequate plaintiff shall, subject to the approval of

the court, select and retain counsel to represent the class.” § 78u-4(a)(3)(B)(v).
“Although deference should be given to the lead plaintiff’s selection of counsel, approval
of lead counsel is a matter within the court’s discretion.” Vaitkuviene v. Syneos Health,
Inc., 18-CV-29, 2018 WL 3460409, at *2 (E.D.N.C. May 29, 2018). In determining
whether to approve movant’s selection of lead counsel, the Court considers the quality
and cost of counsel, the “work counsel has done in identifying or investigating potential
claims in the actions, counsel’s experience in handling class actions and other complex
litigation and claims of the types asserted in the present action, counsel’s knowledge of
the applicable law, and the resources counsel will commit to representing the class.” In
re Cree, Inc., 219 F.R.D. at 373; see also Fed. R. Civ. P. 23(g).
The Court finds the following:

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1. Mr. Fisher has selected Pomerantz LLP as lead counsel and Schiller & Schiller,
PLLC as liaison counsel. Doc. 15.
2. Both firms appear experienced in the area of securities actions and class action
lawsuits. See Doc. 16 at 15–16, Doc. 16-2, Doc. 16-3.
3. According to its firm resume, Doc. 16-2, Pomerantz LLP has global experience
in securities litigation, corporate governance litigation, strategic consumer
litigation, and antitrust litigation. The specific lawyers who have entered
appearances have substantial experience in securities litigation.
4. According to its firm resume, Doc. 16-3, Schiller & Schiller, PLLC has
extensive litigation and class action experience, and its attorneys have
appeared in North Carolina courts for many shareholder class action cases.
5. Both firms are qualified, experienced, and capable of effectively prosecuting
this action on behalf of movant Mr. Fisher and the putative class.
6. There have been no objections to movant Mr. Fisher’s proposed appointment
of lead counsel.
The Court, in its discretion and subject to review when any motion for class
certification is filed, finds reasonable Mr. Fisher’s selection of counsel and finds that both
firms are capable of handling the litigation and representing the class.
CONCLUSION
Because all requirements have been met and the Court sees no reason to deny the
motion, the Court will grant Mr. Fisher’s request to serve as lead plaintiff and will
approve his choice of counsel.
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It is ORDERED that the plaintiff’s motion for appointment as lead plaintiff and
approval of selection of counsel, Doc. 15, is GRANTED as follows:
1. Movant Jeffrey Fisher is appointed as Lead Plaintiff for the class in this action;
2. Pomerantz LLP shall serve as Lead Counsel and Schiller & Schiller, PLLC as
Liaison Counsel in this action.
3. Lead Counsel shall have the following responsibilities and duties, to be carried
out either personally or through counsel whom Lead Counsel shall designate:
(a)

to coordinate the briefing and argument of motions;

(b)

to coordinate the conduct of discovery proceedings;

(c)

to coordinate the examination of witnesses in depositions;

(d)

to coordinate the selection of counsel to act as a spokesperson at
pretrial conferences;

(e)

to call meetings of the plaintiffs’ counsel as they deem necessary and
appropriate from time to time;

(f)

to coordinate all settlement negotiations with counsel for defendants;

(g)

to coordinate and direct the pretrial discovery proceedings and the
preparation for trial and the trial of this matter and to delegate work
responsibilities to selected counsel as may be required; and

(h)

to supervise any other matters concerning the prosecution,
resolution, or settlement of the action.

4. No motion, request for discovery, or other pretrial proceedings shall be
initiated or filed by any plaintiffs without the approval of Lead Counsel, so as
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to prevent duplicative pleadings or discovery by plaintiffs. No settlement
negotiations shall be conducted without the approval of Lead Counsel.
5. Lead Counsel shall have the responsibility of receiving and disseminating
Court orders and notices.
6. Lead Counsel shall be the contact between plaintiffs’ counsel and shall direct
and coordinate the activities of plaintiffs’ counsel.
7. Defendants shall effect service of papers on plaintiffs by serving a copy of
same on Lead Counsel by overnight mail service, electronic or hand delivery.
Plaintiffs shall effect service of papers on defendants by serving a copy of
same on defendants’ counsel by overnight mail service, electronic or hand
delivery.
8. During the pendency of this litigation, or until further order of this Court, the
parties shall take reasonable steps to preserve all documents within their
possession, custody, or control, including computer-generated and stored
information, and materials such as computerized data and electronic mail,
containing information which is relevant, or which may lead to the discovery
of information relevant, to the subject matter of the pending litigation.
SO ORDERED. This the 9th day of May, 2022.

__________________________________
UNITED STATES DISTRICT JUDGE

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