Kniffin v. Micron Tech., Inc.
Kniffin v. Micron Tech., Inc.
Opinion of the Court
Various plaintiffs in three federal securities class actions against Micron Technology, Inc. ("Micron") and its officers (the "Individual Defendants") move to consolidate the actions and for appointment as lead plaintiff and lead counsel under the Private Securities Litigation Reform Act of 1995 ("PSLRA"). Following publication of the required notice, nine separate parties filed motions. Three presumptive plaintiffs remain: (1) Novriyanto Lius and Thomas Fish (the "Lius/Fish Group"), represented by Glancy Prongay & Murray LLP; (2) Dhiru Patel, Cetin Kayaer, and Alexandru Vintu (the "Micron Investor *262Group"), represented by Levi & Korsinsky, LLP; and (3) James Ferraro and the Ferraro Family Foundation, Inc. (the "Ferraro Group"), represented by the Rosen Law Firm. For the reasons that follow, the actions are consolidated, Thomas Fish is appointed lead plaintiff, and Glancy Prongay & Murray LLP is appointed lead counsel.
I. Consolidation
"Under the PSLRA, a court must decide whether to consolidate related actions prior to selecting a lead plaintiff." Phuong Ho v. NQ Mobile, Inc.,
II. Appointment of Lead Plaintiff
A. Legal Standard
"The PSLRA requires courts to 'appoint the most adequate plaintiff as lead plaintiff for the consolidated actions' as soon as practicable after consolidation." Lu v. Jumei Int'l Holding Ltd.,
B. Disaggregation of the Unrelated Investor Groups
The PSLRA provides that a "group of persons" may be appointed lead plaintiff. 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). "The majority of courts, including those in this District, ... permit[ ] unrelated investors to join together as a group seeking lead-plaintiff status on a case-by-case basis, if such a grouping would best serve the class." Varghese v. China Shenghuo Pharm. Holdings, Inc.,
Accordingly, a proposed group must proffer an evidentiary showing that unrelated members of a group will be able to function cohesively and to effectively manage the litigation apart from their lawyers before its members will be designated as presumptive lead plaintiffs. Factors that courts have considered when evaluating whether a group's members will function cohesively and separately from their lawyers include evidence of: (1) the existence of a pre-litigation relationship between group members; (2) involvement of the group members in the litigation thus far; (3) plans for cooperation; (4) the sophistication of its members; and (5) whether the members chose outside counsel, and not vice versa.
*263Phuong Ho,
Here, the Lius/Fish and Micron Investor Groups are both comprised of unrelated investors. Their declarations do not persuade this Court that they will be able to function cohesively. Neither group's members have a preexisting relationship, and while this factor is not dispositive, "courts have typically required that plaintiffs lacking such a relationship present a more compelling showing." Elstein v. Net1 UEPS Techs., Inc.,
C. Greatest Financial Interest
To determine which movant has the greatest financial interest and is therefore afforded the rebuttable presumption under the PSLRA, courts in this district consider the Lax/Olsten factors: "(1) the number of shares purchased, (2) the number of net shares purchased, (3) the total net funds expended during the class period, and (4) the plaintiff's approximate losses." Khunt,
The Lius/Fish and Micron Investor Groups provide the following calculations (the "Calculations"), as reflected in the following chart:
Total Net Shares Net Funds LIFO Adjusted Movant Shares Purchased Expended Losses LIFO Purchased on Shares LossesLius/Fish Grp.273,450100,000$6,435,547$5,192,018$2,455,528Lius 173,450 0 $424,875 $2,775,939 $39,450 Fish 100,000 100,000 $6,010,671 $2,416,078 $2,416,078Micron Investor Grp.1,035,519136,400$8,637,341$4,356,046$2,219,724Patel 1,002,319 103,400 $6,645,922 $3,005,383 $911,484 Kayaer 33,000 33,000 $1,991,880 $840,421 $805,692 Vintu 200 0 $(460.00) $510,242 $502,548 Ferraro 167,500 167,500 $7,347,504 $1,326,806 $1,326,806
*264(See Ferraro Grp.'s Memo. (ECF No. 17 ), Ex. 3; Korsinsky Decl. (ECF No. 30 ), Ex. B; Portnoy Decl. (ECF No. 34 ), Ex. C.)
All parties adopt the "last in, first out" ("LIFO") method in calculating their losses, consistent with the "overwhelming trend in this district and nationwide." Bo Young Cha v. Kinross Gold Corp.,
The Lius/Fish and Ferraro Groups both adjusted their LIFO losses, but the Micron Investor Group did not. During oral argument, the Micron Investor Group contended only that it did not believe this adjustment was "necessary." (April 23, 2018 Oral Arg. Tr., at 12:3.) But aside from its general unwillingness to employ this methodology, the Micron Investor Group offers no reason why this Court should depart from the growing consensus among judges in this district that Dura-adjusted LIFO losses are the appropriate metric. See, e.g., Maliarov v. Eros Int'l PLC,
Further complicating matters, the Ferraro Group disputes some of the Calculations. Specifically, the Ferraro Group takes issue with the Lius/Fish Group's assertion that in adjusting its losses, it excluded both losses and gains on securities bought and sold prior to the corrective disclosure. The Ferraro Group contends that exclusion of gains is improper and as a result, the Lius/Fish Group's reported losses are artificially inflated. The Lius/Fish Group argues that the Ferraro Group has no legal authority justifying a distinction between losses and gains and that including gains would have a distorting effect. However, the Lius/Fish Group also does not point to any authorities endorsing its approach.
Ultimately, the Court need not resolve this debate. Neither the Ferraro Group nor Fish's losses individually are affected by Dura adjustments, as neither party sold any shares during the class period, and therefore harvested no pre-disclosure gains or losses. (See Ferraro Grp.'s Memo., Ex. 3; Portnoy Decl., Ex. C.) And the Ferraro Group conceded during oral argument that Fish has the highest individual losses. (Apr. 23, 2019 Oral Arg. Tr., at 7:8-14.)
The Ferraro Group also encourages this Court to evaluate the parties' financial interests not by approximate losses, but rather by net shares purchased. However, the Ferraro Group endorsed the approximate losses approach in its opening brief and cites no precedent in this circuit endorsing a departure from the customary focus on approximate losses. And in any *265event, the difference of 67,500 net shares between Fish and the Ferraro Group is outweighed by the disparity in their losses-at nearly $ 2.5 million, Fish's losses are almost double those of the Ferraro Group. And judges in this district ultimately accord more weight to approximate losses in comparable circumstances. See, e.g., Foley v. Transocean, Ltd.,
Finally, the Ferraro Group contends that if this Court disaggregates the investor groups, it should not permit Fish to serve as individual lead plaintiff. This argument ignores the longstanding practice in this district of considering the largest shareholder of a rejected group "as if he had moved to be appointed as lead plaintiff alone." Varghese,
D. Rule 23 Requirements
A lead plaintiff movant must also make a "preliminary showing that it satisfies the typicality and adequacy requirements of [ Rule 23 ]." Baydale v. Am. Express Co.,
This Court is satisfied with Fish's preliminary showing that his claims are typical and adequate. (See Portnoy Decl., Ex. C.) With nearly $ 2.5 million in losses, he clearly "has a sufficient interest in the outcome of the case to ensure vigorous adequacy." City of Monroe Emps.' Ret. Sys. v. Hartford Fin. Servs. Grp., Inc.,
*266Seidel v. Noah Educ. Holdings Ltd.,
III. Appointment of Lead Counsel
Fish's counsel, Glancy Prongay & Murray LLP, is competent and experienced. Accordingly, this Court grants Glancy Prongay & Murray LLP's motion to be appointed lead counsel.
CONCLUSION
For the foregoing reasons, Thomas Fish is appointed lead plaintiff, and Glancy, Prongay & Murray LLP is appointed lead counsel. These actions are consolidated under the caption, "In re Micron Technology, Inc. Securities Litigation, No. 19 Civ. 678." Lead counsel is directed to file an amended consolidated complaint by June 14, 2019. Any application for a pre-motion conference addressed to the pleading should be filed by July 10, 2019. All other motions to be appointed lead plaintiff and lead counsel are denied, and the Clerk of Court is directed to terminate all pending motions.
SO ORDERED:
Jakobsen, the only case from this district that the Ferraro Group cites, did not reach this issue, as the court concluded that "[t]here are no separate motions to appoint any member of the [investor group] as lead plaintiff on an individual basis ... [so] this Court does not consider whether each individual member of the [group] could be appointed as lead plaintiff." Jakobsen,
Reference
- Full Case Name
- Vance KNIFFIN, individually and on behalf of all others similarly situated v. MICRON TECHNOLOGY, INC., Kjell Rojvall, individually and on behalf of all others similarly situated v. Micron Technology, Inc., Davin M. Pokoik, individually and on behalf of all others similarly situated v. Micron Technology, Inc.
- Cited By
- 9 cases
- Status
- Published