Weinstein et al v. McClendon et al

Filing 29

ORDER denying 10 Chesapeake Investor Group's Motion for Appointment as Lead Plaintiff, Approval of Co-Lead and Liaison Counsel, and Consolidation and 15 State Universities Retirement System of Illinois' Motion for Consolidation, Appoint ment as Lead Plaintiff and Approval of Lead Plaintiff's Selection of Lead Counsel; and granting in part and denying in part 9 Ontario Teachers' Motion for Consolidation, Appointment as Lead Plaintiff, and Approval of Selection of Counsel (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 7/20/2012. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DVORA WEINSTEIN and STEVEN S.
WEINSTEIN, Individually and On Behalf
of All Others Similarly Situated,
Plaintiffs,
vs.
AUBREY K. McCLENDON and
CHESAPEAKE ENERGY
CORPORATION,
Defendants.

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Case No. CIV-12-465-M

ORDER
Before the Court are the Ontario Teachers’ Pension Plan Board’s (“Ontario Teachers’”)
Motion for Consolidation, Appointment as Lead Plaintiff, and Approval of Selection of Counsel;
the Chesapeake Investor Group’s Motion for Appointment as Lead Plaintiff, Approval of Co-Lead
and Liaison Counsel, and Consolidation; and the State Universities Retirement System of Illinois’
Motion for Consolidation, Appointment as Lead Plaintiff and Approval of Lead Plaintiff’s Selection
of Lead Counsel, all filed June 25, 2012.1 On July 3, 2012, the State of Oregon, a part of the
Chesapeake Investor Group, filed a Notice of Non-Opposition to Motions for Appointment as Lead
Plaintiff, Approval of Lead Counsel, and Consolidation, noting its non-opposition to the
appointment of Ontario Teachers’ as lead plaintiff. On July 11, 2012, Ibi Amban Investment
Management Ltd., Clal Pension & Provident Fund Ltd., and the Arkansas Public Employees

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Shi Yan also filed a Motion to Consolidate Related Actions, to Be Appointed Lead Plaintiff
and to Approve Proposed Lead Plaintiff’s Choice of Counsel. On July 6, 2012, Shi Yan filed a
Notice of Withdrawal of Motion of Shi Yan to Consolidate Related Actions, to Be Appointed Lead
Plaintiff and to Approve Proposed Lead Plaintiff’s Choice of Counsel. In his notice, Mr. Yan
endorses Ontario Teachers’ motion to be appointed lead plaintiff.

Retirement System, the remaining part of the Chesapeake Investor Group, filed a Notice of NonOpposition to Motions for Appointment as Lead Plaintiff, Approval of Lead Counsel, and
Consolidation, noting their non-opposition to the appointment of Ontario Teachers’ as lead plaintiff.
On July 16, 2012, the State Universities Retirement System of Illinois filed its Response to
Competing Motions for Appointment as Lead Plaintiff. In its response, the State Universities
Retirement System of Illinois states that it recognizes that Ontario Teachers’ claims to have suffered
the greatest losses. Finally, on July 17, 2012, Ontario Teachers’ filed its response.
A.

Consolidation
In the above-referenced motions, the parties move to consolidate the instant action with a

second action, Operating Engineers Construction Industry and Miscellaneous Pension Fund v.
McClendon, et al., Case No. CIV-12-640-M (“Operating Engineers Case”). On June 25, 2012, the
Operating Engineers Case was voluntarily dismissed. Accordingly, the Court finds that the motions
to consolidate are now moot.
B.

Lead Plaintiff
The Private Securities Litigation Reform Act of 1995 (the “PSLRA”) sets forth a detailed

procedure for the selection of a lead plaintiff to oversee securities class actions brought pursuant to
the Federal Rules of Civil Procedure. See 15 U.S.C. § 78u-4(a)(3). First, the plaintiff who files the
initial action must, within 20 days of filing the action, publish a notice to the class informing class
members of their right to file a motion for appointment as lead plaintiff. 15 U.S.C. § 78u4(a)(3)(A)(i). Plaintiffs Dvora Weinstein and Steven S. Weinstein caused notice regarding this
action to be published on April 26, 2012 in PR Newswire, a widely-circulated, national, businessoriented news reporting wire service. Within 60 days after publication of the required notice, any

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member of the proposed class may file a motion with the court seeking to be appointed as lead
plaintiff, whether or not they have previously filed a complaint in the action. 15 U.S.C. § 78u4(a)(3)(A),(B). Thus, the deadline for filing a motion for appointment as lead plaintiff in this case
was June 25, 2012. All of the above-referenced motions were filed on June 25, 2012, and, thus,
were timely filed.
Next, under the PSLRA, this Court shall appoint as lead plaintiff the movant that the Court
determines to be the most capable of adequately representing the interests of class members. 15
U.S.C. § 78u-4(a)(3)(B)(i). In determining who is the “most adequate plaintiff,” the act provides
that:
the court shall adopt a presumption that the most adequate plaintiff
in any private action arising under this chapter is the person or group
of persons that –
(aa)

has either filed the complaint or made a motion in response to
a notice under subparagraph (A)(i);

(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.

15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). That presumption may only be rebutted in very limited
circumstances by “proof by a member of the purported class that the presumptively most adequate
plaintiff – (aa) will not fairly and adequately protect the interests of the class; or (bb) is subject to
unique defenses that render such plaintiff incapable of adequately representing the class.” 15 U.S.C.
§ 78u-4(a)(3)(B)(iii)(II).
Having carefully reviewed the submissions, and noting the non-oppositions filed to the
appointment of Ontario Teachers’ as lead plaintiff, the Court finds that Ontario Teachers’ should
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be appointed lead plaintiff in this action pursuant to 15 U.S.C. § 78u-4(a)(3)(B). Specifically, the
Court finds that Ontario Teachers’ satisfies all of the requirements for lead plaintiff, in that it has
timely filed a motion for appointment as lead plaintiff; it has the largest financial interest in the
outcome of this action; its claims are typical of those of the class; and it will fairly and adequately
protect the interests of the class.
C.

Choice of Counsel
The PSLRA vests authority in the lead plaintiff to select and retain counsel to represent the

class, subject to the Court’s approval. See 15 U.S.C. § 78u-4(a)(3)(B)(v). A court should not
disturb the lead plaintiff’s choice of counsel unless necessary to “protect the interests of the class.”
15 U.S.C. § 78u-4(a)(3)(B)(iii)(II)(aa). Having carefully reviewed Ontario Teachers’ motion, the
Court finds that Ontario Teachers’ selection of Labaton Sucharow LLP as lead counsel for the class
and Ontario Teachers’ selection of Richardson, Richardson, Boudreaux, Keesling, PLLC as local
counsel for the class should be approved.
D.

Conclusion
Accordingly, the Court DENIES the Chesapeake Investor Group’s Motion for Appointment

as Lead Plaintiff, Approval of Co-Lead and Liaison Counsel, and Consolidation [docket no. 10] and
the State Universities Retirement System of Illinois’ Motion for Consolidation, Appointment as
Lead Plaintiff and Approval of Lead Plaintiff’s Selection of Lead Counsel [docket no. 15] and
GRANTS IN PART and DENIES IN PART Ontario Teachers’ Motion for Consolidation,
Appointment as Lead Plaintiff, and Approval of Selection of Counsel [docket no. 9] as follows:
(1)

the Court DENIES Ontario Teachers’ motion for consolidation as MOOT;

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(2)

the Court GRANTS Ontario Teachers’ motion for appointment as lead plaintiff and
APPOINTS Ontario Teachers’ to serve as lead plaintiff in this action pursuant to 15
U.S.C. § 78u-4(a)(3)(B); and

(3)

the Court GRANTS Ontario Teachers’ motion for approval of selection of counsel
and APPROVES Ontario Teachers’ selection of Labaton Sucharow LLP as lead
counsel for the class pursuant to 15 U.S.C. § 78u-4(a)(3)(B)(v) and Ontario
Teachers’ selection of Richardson, Richardson, Boudreaux, Keesling, PLLC as local
counsel for the class. Lead counsel shall have the authority to speak for all plaintiffs
and class members in all matters regarding the litigation, including, but not limited
to, pre-trial proceedings, motion practice, trial, and settlement. Lead counsel shall
make all work assignments in such a manner as to facilitate the orderly and efficient
prosecution of this litigation, and to avoid duplicative or unproductive effort.
Additionally, lead counsel shall have the following responsibilities:
(a)

to brief and argue motions;

(b)

to initiate and conduct discovery, including, but not limited to, coordination
of discovery with defendants’ counsel, and the preparation of written
interrogatories, requests for admissions, and requests for production of
documents;

(c)

to direct and coordinate the examination of witnesses in depositions;

(d)

to act as spokesperson at pretrial conferences;

(e)

to call and chair meetings of plaintiffs’ counsel as appropriate or necessary
from time to time;

(f)

to initiate and conduct any settlement negotiations with defendants’ counsel;

(g)

to provide general coordination of the activities of plaintiffs’ counsel and to
delegate work responsibilities to selected counsel as may be required, in such
a manner as to lead to the orderly and efficient prosecution of this litigation
and to avoid duplication or unproductive effort;

(h)

to consult with and employ experts;

(i)

to receive and review periodic time reports of all attorneys on behalf of
plaintiffs, to determine if the time is being spent appropriately and for the
benefit of plaintiffs, and to determine and distribute plaintiffs’ attorneys’
fees; and

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(j)

to perform such other duties as may be expressly authorized by further order
of this Court.

IT IS SO ORDERED this 20th day of July, 2012.

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