1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 VICTOR J. NG, Case No. 21-cv-09497-HSG

8 Plaintiff, ORDER GRANTING DAMELIO’S MOTION FOR APPOINTMENT AS 9 v. LEAD PLAINTIFF AND DENYING REMAINING MOTIONS FOR 10 BERKELEY LIGHTS, INC., et al., APPOINTMENT 11 Defendants. Re: Dkt. Nos. 25, 38

12 13 Pending before the Court are two competing motions for appointment of lead counsel, filed 14 by the Berkeley Lights Investor Group (“BLI Investors”)1 and Michael Damelio. See Dkt. Nos. 15 25, 38. The Court finds this matter appropriate for disposition without oral argument and the 16 matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed below, the Court 17 GRANTS Mr. Damelio’s motion. Dkt. No. 25. 18 I. BACKGROUND 19 On February 7, 2022, the Court received six competing motions for appointment as Lead 20 Plaintiff in this putative securities class action. See Dkt. Nos. 21, 25, 26, 38, 41, 46. Only two 21 contenders’ motions remain pending: (1) BLI Investors, represented by Bragar Eagel & Squire, 22 P.C. and Bernstein Liebhard LLP; and (2) Michael Damelio, represented by Hagens Berman 23 Sobol Shapiro LLP. See Dkt. Nos. 25, 38. 2 24 25

26 1 BLI Investors is composed of Arsh Saini, as Director of Operations of Connectra Technologies, Inc., Sookham Singh, and Taiki Yamaguchi. 27 2 Movants Jubie Cho Pei Chan, Dong Liu, Glenn Kovary, and Pompano Beach Police & 1 II. APPOINTMENT OF LEAD PLAINTIFF 2 The Private Securities Litigation Reform Act (“PSLRA”) “instructs district courts to select 3 as lead plaintiff the one ‘most capable of adequately representing the interests of class members.’” 4 In re Cavanaugh,

, 729 (9th Cir. 2002) (quoting 15 U.S.C. § 78u-4(a)(3)(B)(i)). 5 “The ‘most capable’ plaintiff—and hence the lead plaintiff—is the one who has the greatest 6 financial stake in the outcome of the case, so long as he meets the requirements of Rule 23.” Id. 7 The Ninth Circuit interprets the PSLRA as establishing “a simple three-step process for 8 identifying the lead plaintiff pursuant to these criteria.” Id. 9 A. Notice Requirement 10 Step One consists of meeting the PSLRA’s notice requirement. Id. “The first plaintiff to 11 file an action covered by the [PSLRA] must post this notice ‘in a widely circulated national 12 business-oriented publication or wire service.’” Id. (quoting 15 U.S.C. § 78u-4(a)(3)(A)(i)). The 13 notice must be published within 20 days of the complaint’s filing. 15 U.S.C. § 78u-4(a)(3)(A)(i). 14 The notice must also alert putative class members “(I) of the pendency of the action, the claims 15 asserted therein, and the purported class period; and (II) that, not later than 60 days after the date 16 on which the notice is published, any member of the purported class may move the court to serve 17 as lead plaintiff of the purported class.” Id. 18 Here, notice was published in Business Wire on the same day that the complaint was filed. 19 Compare Dkt. No. 1 (“Compl.”), with Dkt. No. 25-4, Ex. C. This complied with the PSLRA’s 20- 20 day filing deadline, and Business Wire is a “widely circulated [inter]national business-oriented 21 news reporting service,” as required. See Cavanaugh, 306 F.3d at 729 (quoting 15 U.S.C. § 78u- 22 4(a)(3)(A)(i)). The notice specifically announced the filing of the action against Berkeley Lights, 23 Inc.; described the asserted claims under the Securities Exchange Act of 1934; described the class 24 as encompassing “purchasers of Berkeley Lights, Inc. (NASDAQ: BLI) common stock between 25 July 17, 2020 and September 14, 2021, inclusive”; and notified putative class members that any 26 motion to be appointed lead plaintiff must be filed no later than February 7, 2022. Id. 27 Accordingly, Step One’s requirements are met. 1 B. Largest Financial Stake in the Litigation 2 Step Two consists of identifying the presumptive lead plaintiff. See Cavanaugh,

at 729–30. There is a rebuttable presumption that the “most adequate plaintiff” is the one who 4 “(aa) has either filed the complaint or made a motion in response to a notice under subparagraph 5 (A)(i); (bb) in the determination of the court, has the largest financial interest in the relief sought 6 by the class; and (cc) otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil 7 Procedure.” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). Thus, once the filing requirement of subsection 8 (a)(3)(B)(iii)(I)(aa) is met, “the district court must compare the financial stakes of the various 9 plaintiffs and determine which one has the most to gain from the lawsuit.” Cavanaugh,

. 11 Here, Mr. Damelio argues that he has the highest total losses: $124,348.14. Dkt. No. 25 at 12 2; see also Dkt. No. 25-3, Ex. B; Dkt. No. 52 at 2–3. In their opposition brief, BLI Investors 13 respond that Mr. Damelio overstates his losses because he includes $31,236.85 from a joint 14 account, and he has not established that he has standing or consent to pursue claims for this 15 account. See Dkt. No. 54 at 3–4, 7; see also Dkt. No. 61 at 2–3. Without the losses from the joint 16 account, BLI Investors assert that Mr. Damelio’s financial interest drops to $93,111—below that 17 of the BLI Investors.3 18 In reply, however, Mr. Damelio clarified that he shares the joint account with his wife. See 19 Dkt. No. 60-2, Ex. A at ¶ 3. In his accompanying declaration, Mr. Damelio also confirmed that he 20 is authorized to bring an action on behalf of the joint account, and that his wife supports his 21 participation in the litigation to recover losses from the account. See

Mr. Damelio therefore 22 argues that he has a direct ownership interest in all losses flowing from the joint account. See Dkt. 23 No. 60 at 1–2. The Court finds that his declaration supports his ownership interest in the losses. 24 See Abadilla v. Precigen, Inc., No. 20-CV-06936-BLF,

, at *3 (N.D. Cal. Apr. 25 8, 2021) (appointing movant as lead plaintiff who included losses from joint account shared with 26

27 3 BLI Investors claim an aggregate loss of $117,381 (of which $76,361 is attributable to Connectra 1 movant’s wife). BLI Investors appear to acknowledge the sufficiency of Mr. Damelio’s 2 declaration because they do not repeat this argument in their sur-reply brief. See generally Dkt. 3 No. 70. The Court finds that Mr. Damelio has the largest financial stake, and is therefore the 4 presumptive lead plaintiff. 5 C. Typicality and Adequacy 6 A presumptive lead plaintiff also has the burden of setting forth a prima facie case that he 7 can satisfy the class representative requirements of Rule 23(a), typicality and adequacy. 15 U.S.C. 8 § 78u-4(a)(3)(B)(iii)(I); Cavanaugh,

. Competing movants can rebut this showing 9 by submitting evidence indicating that the presumptive lead plaintiff “will not fairly and 10 adequately protect the interests of the class” or “is subject to unique defenses that render such 11 plaintiff incapable of adequately representing the class.” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II). 12 Here, Mr. Damelio argues that he meets the adequacy and typicality requirements because 13 like the rest of the proposed class, he purchased shares in BLI during the class period and suffered 14 damages as a result of Defendants’ false or misleading statements or omissions. See Dkt. No. 25 15 at 6. There is no indication of any conflict between Mr. Damelio and other class members. BLI 16 Investors nevertheless raise several arguments that Mr. Damelio cannot satisfy the adequacy 17 requirement of Rule 23. See Dkt. No. 54 at 7–10. 18 First, BLI Investors argue that Mr. Damelio has failed to provide sufficient information 19 about his educational or investing background to establish his adequacy as lead plaintiff. See Dkt. 20 No. 54 at 7–8. In his initial motion, Mr. Damelio explained that he is a pharmacist who resides in 21 Castle Rock, Colorado. See Dkt. No. 25 at 2. To the extent BLI Investors claim that information 22 was insufficient, Mr. Damelio provided additional information about himself in his reply. See 23 Dkt. No. 60-2. He received a Bachelor of Arts degree from the University of South Florida, 24 graduating magna cum laude, and a Doctor of Pharmacy degree from the University of Florida. 25 Id. at ¶ 2. Mr. Damelio also explained that he has approximately eight years of experience making 26 his own investments. See id. The Court finds that Mr. Damelio has provided sufficient 27 background information addressing this concern as to his adequacy as lead plaintiff. 1 lead plaintiff on behalf of the wrong class. See Dkt. No. 54 at 10. Although the complaint defines 2 the putative class here as purchasers of “Berkeley Lights common stock,” Mr. Damelio references 3 Berkeley Lights “securities” in his motion. Compare Compl. at ¶¶ 1, 50, with Dkt. No. 25 at 2, 5– 4 6. Mr. Damelio notes, for example, that he incurred losses “in connection with Class Period 5 purchases of Berkeley Lights securities.” See Dkt. No. 25 at 2 (emphasis added). The Court does 6 not find this shorthand meaningfully relevant to Mr. Damelio’s adequacy. There does not appear 7 to be a question that Mr. Damelio himself purchased Berkeley Lights common stock, and he 8 confirmed in reply that he understands the scope of the putative class as currently drafted. See 9 Dkt. No. 60-2, Ex. A at ¶ 6. 10 Lastly, BLI Investors point out that Mr. Damelio signed his initial PSLRA certification 11 under 15 U.S.C. § 78u-4(a)(2) in October 2021—two months before the complaint was filed in 12 this case. See Dkt. No. 54 at 9–10; see also Dkt. No. 25-2, Ex. A (signed October 1, 2021). BLI 13 Investors reason that Mr. Damelio could not have reviewed the complaint at that time, as required 14 by the certification, because the complaint had not been filed yet. Id. They suggest, without any 15 explanation, that this will render him vulnerable to unique defenses. Id. And BLI Investors 16 further suggest that Mr. Damelio “is willing to serve his counsel, not the proposed class, including 17 by signing whatever his counsel asks him to.” See Dkt. No. 70 at 2. 18 In response, Mr. Damelio clarified that he understood at the time that his attorneys were 19 investigating “investors’ claims in contemplation of a complaint to be filed.” See Dkt. No. 60-2, 20 Ex. A at ¶ 4. He also confirmed that he has reviewed the current complaint in this action and 21 adopts the allegations as his own. See id. The Court finds that Mr. Damelio has provided a 22 reasonable explanation for the phrasing of his prior certification, and has remedied any 23 outstanding question about whether he has reviewed the complaint himself. There is no basis for 24 the Court to find that this arguably less than clear statement was made intentionally or in bad 25 faith.4 The Court finds that notwithstanding any technical errors, Mr. Damelio has met his burden 26 of establishing that he satisfies the class representative requirements of typicality and adequacy at 27 1 this stage. 2 IW. APPOINTMENT OF LEAD COUNSEL 3 Mr. Damelio has moved for approval of his selection of Hagens Berman Sobol Shapiro 4 || LLP as lead counsel. Dkt. No. 25 at 7; see also 15 U.S.C. § 78u-4(a)(3)(B)(v) (“The most 5 adequate plaintiff shall, subject to the approval of the court, select and retain counsel to represent 6 || the class.”). The Court defers to Mr. Damelio’s choice of lead counsel because his choice is not 7 “so irrational, or so tainted by self-dealing or conflict of interest, as to cast genuine and serious 8 || doubt on [his] willingness or ability to perform the functions of lead plaintiff” Cavanaugh, 306 9 || F.3d at 733; see also id. at 739 n.11 (noting that “Congress gave the lead plaintiff, and not the 10 || court, the power to select a lawyer for the class”). Hagens Berman has extensive experience as 11 counsel in securities class actions. See Dkt. Nos. 25-5, Ex. D at 31—32 (firm resume). The Court 12 || thus approves Mr. Damelio’s selection of counsel. 13 || Iv. CONCLUSION 14 Accordingly, the Court GRANTS Mr. Damelio’s motion. Dkt. No. 25. All pending 3 15 unwithdrawn motions are DENIED. See Dkt. Nos. 21, 26, 38, 41, 46. Mr. Damelio is appointed a 16 as lead plaintiff for the putative class, and Hagens Berman is approved as lead counsel for the 3 17 putative class. 18 The Court further sets a telephonic initial case management conference on June 14, 2022, 19 |) at 2:00 p.m. All counsel shall use the following dial-in information to access the call: 20 Dial-In: 888-808-6929; 21 Passcode: 6064255 22 || For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where at all 23 || possible, parties shall use landlines. The Court DIRECTS the parties to meet and confer and 24 submit a joint case management statement by June 7, 2022. 25 IT IS SO ORDERED. 26 || Dated: 5/25/2022 27 Abaapyrel § Mbt |). HAYWOOD S. GILLIAM, JR. 28 United States District Judge