In re Tronox, Inc. Securities Litigation
In re Tronox, Inc. Securities Litigation
Opinion of the Court
OPINION AND ORDER
I. INTRODUCTION
In this federal securities class action suit brought on behalf of all purchasers of Tronox Incorporated (“Tronox”), three movants seek the consolidation of all related actions, to be appointed lead plaintiff, and to approve their respective selections of counsel. For the reasons discussed below, the related actions are consolidated, LaGrange Capital Partners, LP and LaGrange Capital Partners Offshore Fund, Ltd. (together, “LaGrange”) are appointed lead plaintiff, and their selection of the law firm of Gold Bennett Cera & Sidener LLP (“Gold Bennett”) as lead counsel and Cohen Milstein Sellers & Toll PLLC (“Cohen Milstein”) as liaison counsel for the Class is approved.
A. Facts
Tronox is a corporation engaged in producing and marketing titanium dioxide — a white pigment used in a wide range of products to impart whiteness, brightness and opacity.
From the period of November 28, 2005 through January 12, 2009 (the “Class Period”), Tronox is alleged to have issued materially false and misleading public statements regarding the extent of Tro-nox’s environmental and tort liabilities and the sufficiency of its reserves for those liabilities.
On July 11, 2007, Tronox issued a press release that it had identified factors that would impact its second quarter 2007 earnings, which were to be announced on August I, 2007.
After August 1, 2007, Tronox continued to announce earnings losses related to environmental charges, causing further reductions in Tronox’s stock price. On February 13, 2008, Tronox announced during its fourth quarter of 2007 earnings call that its anticipated annual expenditure on environmental remediation would rise from the thirty-three million dollars to between forty and forty-five million dollars.
The first complaint in this action — styled Alaska Electrical Pension Fund v. Kerr-
B. Procedure
In response to the July 11, 2009 notice, three plaintiffs moved for appointment as lead plaintiff.
III. LEGAL STANDARD
In determining whom to appoint as lead plaintiff, the Private Securities Litigation Reform Act (“PSLRA”) sets forth a required procedure.
The first step establishes as presumptive lead plaintiff the “person or group of persons” who meet(s) the following three criteria; (1) the candidate must have “filed the complaint or made a motion in response to a notice;”
“At the lead plaintiff stage of the litigation, in contrast to the class certification stage, a lead plaintiff movant need only make a ‘preliminary showing that it satisfies the typicality and adequacy requirements of [Rule 23].’ ”
Once the presumptive lead plaintiff has been designated, the court conducts a second inquiry in which members of the class have the opportunity to rebut the chosen lead plaintiffs presumptive status. In order to rebut the designation, class members must prove either 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.”
IV. DISCUSSION
A. Consolidation
Federal Rule of Civil Procedure Rule 42(a) grants the Court discretion to consolidate “actions involving a common question of law or fact.”
B. Lead Plaintiff
The movants do not dispute that LaGrange properly moved for lead plaintiff appointment in response to the Class notice and possesses the largest financial interest in the litigation. LaGrange also otherwise meets the requirements of Rule 23. La-Grange purchased shares of Tronox during the Class Period and claims that it suffered damage as a result of Tronox’s artificially inflated stock price caused by defendants’ false and misleading statements and omissions. Therefore, LaGrange is typical of the
Having identified LaGrange as the presumptive most adequate plaintiff, the other movants have the opportunity to rebut this presumption. Only Alaska attempts to do so.
The cases cited by Alaska in support of its argument are unavailing due to the strength and extent of correction in the partial disclosures in those eases.
Alaska also argues that LaGrange should not be appointed lead plaintiff because LaGrange lacks Article III standing. For support, Alaska cites W.R. Huff Asset Management Co., LLC v. Deloitte & Touche, LLP
Alaska’s contention that LaGrange should not be appointed because it allegedly “lies at the center of a group of shadowy entities whose operations, existence and investment activities are hidden from public view and this Court’s review” is similarly unfounded.
Alaska also seeks, in the event that this Court considered appointing LaGrange lead plaintiff, limited discovery to ascertain the adequacy of LaGrange in light of Alaska’s claims regarding LaGrange’s trading patterns and corporate structure.
C. Appointment of Lead Counsel
The PSLRA provides that “[t]he most adequate plaintiff shall, subject to the approval of the court, select and retain counsel to represent the class.” 15 U.S.C. § 77z-l(a)(3)(B)(v). LaGrange has selected the law firm of Gold Bennett as lead counsel and Cohen Milstein as liaison counsel. As ascertained from each firm’s resume, and as stated earlier, both firms are qualified to litigate this action. Accordingly, the Court approves the selection of Gold Bennett as Lead Counsel and Cohen Milstein as liaison counsel.
V. CONCLUSION
The actions are hereby consolidated under the caption In re Tronox, Inc. Securities Litigation under docket number 09 Civ. 6220(SAS). LaGrange is appointed lead plaintiff in these actions. Gold Bennett is appointed lead counsel and Cohen Milstein is appointed liaison counsel. The Clerk of the Court is directed to close these motions (Docket Nos. 17, 20, and 23 in 09 Civ. 6220). A conference is scheduled for October 21, 2009 at 4:30 p.m.
SO ORDERED.
. The facts in this section are taken from the Complaints in the respective actions and are presumed true for purposes of this motion.
. See Complaint ¶ 11, Alaska Electrical Pension Fund v. Kerr-McGee Corp., No. 09 Civ. 6220 (S.D.N.Y. filed July 10, 2009) (“Alaska Compl.”); Complaint ¶ 11, Shi v. Kerr-McGee Corp., No. 09 Civ. 6490, 2009 WL 2220996 (S.D.N.Y. filed July 21, 2009) ("Shi Compl.”); Complaint ¶ 30, Barnes v. Kerr-McGee Corp., No. 09 Civ. 7116 (S.D.N.Y. filed Aug. 12, 2009) ("Barnes Compl.”).
. See Alaska Compl. ¶ 29; Shi Compl. 129; Barnes Compl. V 32.
. See id.
. See id.
. See Alaska Compl. 128; Shi Compl. ¶ 28; Barnes Compl. ¶ 55.
. See Alaska Compl. ¶ 67; Shi Compl. ¶ 67; Barnes Compl. ¶ 53.
. See Alaska Compl. ¶ 1; Shi Compl. ¶ 1; Barnes Compl. ¶ 1.
. Alaska Compl. ¶¶ 31, 40 (quoting the Registration Statement). Accord Shi Compl. ¶¶31; 40; Barnes Compl. ¶¶ 33, 45.
. See Alaska Compl. ¶¶ 29-68; Shi Compl. ¶¶ 28-68; Barnes Compl. ¶¶ 32-55.
. See Alaska Compl. ¶ 32; Shi Compl. ¶ 32; Barnes Compl. ¶ 45.
. See id.
. See id.
. See Alaska Compl. ¶ 61; Shi Compl. ¶ 61; Barnes Compl. ¶ 46.
. Alaska Compl. ¶61 (quoting 7/11/07 Tronox Press Release). Accord Shi Compl. ¶ 61; Barnes Compl. ¶ 46.
. See Alaska Compl. ¶ 61 (quoting 7/11/07 Tro-nox Press Release) (emphasis omitted); Shi Compl. ¶ 61; Barnes Compl. V 47.
. Alaska Compl. ¶ 62 (quoting S & P Announcement) (emphasis omitted). Accord Shi Compl. ¶ 62.
. See Alaska Compl. V 63; Shi Compl. ¶ 63; Barnes Compl. ¶ 48.
. See Alaska Compl. ¶ 63; Shi Compl. ¶ 63.
. See Alaska Compl. ¶ 64; Shi Compl. ¶ 64; Barnes Compl. ¶ 49.
. See Alaska Compl. ¶ 64; Shi Compl. ¶ 64; Barnes Compl. ¶ 50.
. See Alaska Compl. ¶ 65; Shi Compl. ¶ 65; Barnes Compl. ¶ 51.
. Alaska Compl. ¶ 65 (quoting J.P. Morgan Analyst Report) (emphasis omitted). Accord Shi Compl. ¶ 65.
. See Alaska Compl. V 66; Shi Compl. ¶ 66; Barnes Compl. ¶ 52.
. See Alaska Compl. ¶ 66; Shi Compl. ¶ 66.
. Alaska Compl. ¶ 67. Accord Shi Compl. ¶ 67; Barnes Compl. ¶ 53 ("On January 12, 2009, Tronox shocked investors when it issued a press release entitled Tronox’s U.S. Operations File Chapter 11.”) (quotation marks omitted).
. Alaska Compl. ¶ 67. Accord Shi Compl. ¶ 67; Barnes Compl. ¶ 55.
. Alaska Compl. ¶ 67. Accord Shi Compl. ¶ 67; Barnes Compl. ¶ 54.
. See Coughlin Stoia Geller Rudman & Robbins LLP Files Class Action Suit on Behalf of Purchasers of Tronox, Inc., Business Wire, July 10, 2009, Ex. C to the Declaration of Gerald H. Silk, counsel for Fire and Police Pension Association of Colorado and the San Antonio Fire and Police Pension Fund ("Fire and Police Pension Funds”) (“Silk Deck”).
. See Barroway Topaz Kessler Meltzer & Check, LLP Reminds All Tronox, Inc. investors of September 8, 2009 Lead Plaintiff Deadline, PR New-swire, August 31, 2009, Ex. D to Silk Deck
. A fourth movant, Oliver Shi, withdrew his application for lead plaintiff on September 18, 2009.
. See LaGrange Memorandum of Law in Support of Its Motion for Consolidation, Appointment as Lead Plaintiff, and Approval of Selection of Lead Counsel and Liaison Counsel for the Class ("LaGrange Mem.”) at 5.
. See Alaska Memorandum of Law in Support of Its Motion for Consolidation, Appointment as Lead Plaintiff and Approval of Lead Plaintiff's Selection of Lead Counsel ("Alaska Mem.”) at 5 (identifying its loss as "over $735,500”); La-Grange Memorandum of Law in Opposition to Motions Seeking Appointment as Lead Plaintiff and in Further Support of Their Motion for Appointment as Lead Plaintiff, Approval of Lead and Liaison Counsel and Consolidation of Related Actions at 1 (identifying Alaska's approximate losses as $1,165,906.35).
. See Fire and Police Pension Funds Memorandum of Law in Support of Their Motion for Appointment as Lead Plaintiff, Approval of Their Selection of Lead Counsel, and Consolidation of Related Cases (“Fire and Police Pension Funds Mem.”) at 5.
. See LaGrange Mem. at 1 (identifying class period as November 28, 2005 through January 12, 2009); Alaska Mem. at 1 (same); Fire and Police Pension Funds Mem. at 1 (same); Alaska Memorandum in Further Support of Its Motion for Consolidation, Appointment as Lead Plaintiff and Approval of Its Selection of Counsel, and in Opposition to Competing Motions ("Alaska Opp.”) at 1 ("LaGrange [] claims the largest financial interest among the movants ....”); Response of Fire and Police Pension Funds to Motions for Appointment as Lead Plaintiff ("Fire and Police Pension Funds Opp.”) at 1 (same).
. See 15 U.S.C. § 78u-4(a)(3)(B).
. Id. § 78u-4(a)(3)(B)(i).
. See id. § 78u-4(a)(3)(B)(iii).
. Id. § 78u-4(a)(3)(B)(iii)(I)(aa).
. Id. § 78u-4(a)(3)(B)(iii)(I)(bb).
. Id. § 78u-4(a)(3)(B)(iii)(I)(cc).
. Ellenburg v. JA Solar Holdings Co. Ltd., No. 08 Civ. 10475, 2009 WL 1033362, at *4 (S.D.N.Y. Apr. 17, 2009) (quoting In re SLM Corp. Sec. Litig., 258 F.R.D. 112, 115-16 (S.D.N.Y. 2009)) (alteration in original).
. Central States Southeast & Southwest Areas Health & Welfare Fund v. Merck-Medco Managed Care, LLC, 504 F.3d 229, 245 (2d Cir. 2007) (quoting Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001)).
. Glauser v. EVCI Ctr. Colleges Holding Corp., 236 F.R.D. 184, 189 (S.D.N.Y. 2006) (citing Dietrich v. Bauer, 192 F.R.D. 119, 124 (S.D.N.Y. 2000)).
. 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II)(aa), (bb).
. See In re Cavanaugh, 306 F.3d 726, 729 (9th Cir. 2002) ("While the words ‘most capable' seem to suggest that the district court will engage in a wide-ranging comparison to determine which plaintiff is best suited to represent the class, the statute defines the term much more narrowly.”).
. Fed.R.Civ.P. 42(a). See Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir. 1990).
. See Glauser, 236 F.R.D. at 189 (finding typicality where proposed lead plaintiff "like all class members” purchased the securities at issue during the proposed class period at prices allegedly artificially inflated by the defendants' false and misleading statements or omissions and suffered damage thereby).
. See LaGrange Certificate of Plaintiff, signed by Grange Johnson, managing member of La-Grange Capital Management LLC (general partner of LaGrange Capital Partners, LP), Ex. B to the Declaration of Thomas Bright, LaGrange’s counsel ("Bright Decl.”).
. See Resume of Gold Bennett, Ex. C to Bright Deck; Resume of Cohen Milstein, Ex. D to ; Bright Deck
. The Fire and Police Pension Funds support LaGrange's bid for appointment as lead plaintiff and state that the Funds' counsel "has conferred with counsel for LaGrange and it has been agreed that, should the Court appoint LaGrange, the [Funds] will serve as named plaintiffs and class representatives for bond claimants in this action, and that the [Funds'] counsel will work in this action under the authority of the Lead Plaintiff and Lead Counsel." Fire and Police Pension Funds Opp. at 1.
. See Schedule to LaGrange Certificate of Plaintiff, Ex. B to Bright Deck
. See Alaska Opp. at 6 (citing LaGrange's purchase of over 300,000 Tronox shares on the three consecutive days after Tronox’s February 13, 2008 announcement that it had a wider-than-expected quarterly loss for the fourth-quarter and Moody’s had placed Tronox under review for a possible ratings cut, downgrading it the following day); id. at 7 (citing LaGrange’s purchase of over 355,000 Tronox Class B shares in the two weeks following S & P's August 14, 2008 announcement that it had eliminated Tronox from its S & P SmallCap 600 index).
. See Alaska Opp. at 10.
. See, e.g., Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 179-80 (2d Cir. 1990) (holding that it was not an abuse of discretion for the district court to find the proposed class representative inappropriate -because its claim would be subject to the unique defenses of having purchased the securities despite having notice of, and investigated, the alleged fraud); In re Cardinal Health, Inc. Sec. Litig., 226 F.R.D. 298, 310 (S.D.Ohio 2005) (finding movant subject to a unique defense because it purchased its shares after the company’s public disclosures of investigations by the Securities and Exchange Commission and the United States Attorney’s Office for the Southern District of New York into the company's accounting methods); In re Enron Corp. Sec. Litig., 206 F.R.D. 427, 455 (S.D.Tex. 2002) (denying proposed lead plaintiff's motion to appoint where plaintiff relied in part upon an advisory firm with connections to the company and was possibly in possession of nonpublic information prior to purchasing the company's shares). Cf. In re Comverse Tech., Inc. Sec. Litig., No. 06 Civ.1925, 2008
. Alaska Compl. ¶ 67. Accord Shi Compl. ¶ 67; Barnes Compl. 1153 ("On January 12, 2009, Tronox shocked investors when it issued a press release entitled Tronox’s U.S. Operations File Chapter 11.").
. See, e.g., In re Comverse Tech., Inc. Sec. Litig., 2008 WL 820015, at *3 (rejecting opposing mov-ant’s argument that purchases after alleged partial disclosures created a unique defense where the partial disclosures were too "weak” to "counter-balance effectively” the company's previous false and misleading statements and "[tjhere are undoubtedly many members of the class of plaintiffs who, like [the lead plaintiff], purchased shares of [the company] only after the [partial disclosures]”); In re BearingPoint, Inc., Sec. Litig., 232 F.R.D. 534, 540 (E.D.Va. 2006) (holding plaintiff who purchased after an adverse disclosure was not atypical and certified plaintiff as class representative); In re Loewen Group, Inc. Sec. Litig., 233 F.R.D. 154, 163 (E.D.Pa. 2005) (rejecting the argument that class representatives who purchased all of their shares after a partial curative disclosure were subject to unique defenses); Dietrich v. Bauer, 192 F.R.D. 119, 125 n. 1 (S.D.N.Y. 2000) (finding proposed class representative satisfied typicality despite purchasing stock after partial curative disclosures where the disclosures did not concede the existence of the fraudulent schemes at issue in the litigation); In re Arakis Energy Corp. Sec. Litig., No. 95 Civ. 3431, 1999 WL 1021819, at *6 (E.D.N.Y. Apr. 27, 1999) (approving proposed class representative despite having purchased options in the last two days of the class period and after the issuer had disseminated to the public certain curative disclosures, noting that "a difference in the amount of damage, date, size, or manner of purchase, the type of purchaser, and even the specific document influencing the purchase will not render the claim atypical in most securities actions”); Lawrence v. Phillip Morris Co., No. 94 Civ. 1494, 1999 WL 51845, at *5-*6 (E.D.N.Y. Jan. 9, 1997) (finding representative plaintiff’s claim was not atypical even though plaintiff, unlike other class members, purchased securities after partial disclosure and drop in stock price).
. See Alaska Opp. at 8-9 (citing 549 F.3d 100 (2d Cir. 2008)).
. W.R. Huff, 549 F.3d at 103, 104 (quoting plaintiff’s second amended complaint at 1) (alteration in original).
. Alaska Opp. at 2 (quoting LaGrange Capital Partners, L.P. google search description, Ex. 3 to the Declaration of David A. Rosenfeld, Alaska's counsel, in Support of the Alaska Opp. ("Rosen-feld Opp. Decl”)).
. Tronox Inc., Report of Beneficial Ownership by LaGrange Capital Partners, L.P., (Schedule 13G/A) (Dec. 31, 2008), Ex. 2 to Rosenfeld Opp. Deck, at Item 4 n. 1-3. See also 9/09 Declaration of Frank LaGrange Johnson, managing member of LaGrange Capital Management LLC (general partner of LaGrange Capital Partners, LP), in Support of LaGrange's Motion for Appointment as Lead Plaintiff, Approval of Selection of Lead Counsel and Liaison Counsel, and Consolidation of Related Cases V 2 (LaGrange "can and will allege that they directly incurred the foregoing losses and have suffered injury-in-fact. The losses were sustained by [LaGrange], and not by an investment advisor or any other entity.”).
. Alaska Opp. at 2. See also id. at 15-17.
. See id. at 2.
. See, e.g., Corwin v. Seizinger, No. 07 Civ. 6728, 2008 WL 123846, at *3 n. 1, *5 (S.D.N.Y. Jan. 8, 2008) (appointing as lead plaintiff an investment firm established under Luxemburg 'law); Steinberg v. Ericsson LM Tel. Co., No. 07 Civ. 9615, 2008 WL 1721484, at *2-*3 (S.D.N.Y. Apr. 11, 2008) (denying motion for reconsideration of court’s appointment of a citizen of Belgium as lead plaintiff); Jolly Roger Offshore Fund Ltd. v. BKF Capital Group, Inc., No. 07 Civ. 3923, 2007 WL 2363610, at *5 (S.D.N.Y. Aug. 16, 2007) (appointing a hedge fund and its offshore partnership lead plaintiff).
. See Alaska Opp. at 18-19.
. See id.
. 15 U.S.C. § 77z-l (a)(3)(B)(iv).
. See, e.g., Ferrari v. Impath, Inc., No. 03 Civ. 1940, 2004 WL 1637053, at *7 (S.D.N.Y. July 20, 2004) (rejecting request for limited discovery of presumptive most adequate plaintiff where "not one iota of evidence” had been produced "to give the Court even a reasonable basis to authorize discovery").
. See In re The Reserve Fund Sec. and Derivative Litig., No. 09 MD 2011 (S.D.N.Y. Aug. 5, 2009), Ex. 15 to Rosenfeld Opp. Decl., slip op. at 1 (ordering limited discovery, without explanation, into whether the proposed lead plaintiff investor group "was formed in bad faith, was lawyer-instigated, or is likely to be lawyer-dominated”); In re Michaels Stores, Inc. Sec. Litig., No. 03 Civ. 0236 (N.D.Tex. Oct. 24, 2003), Ex. 16 to Rosenfeld Opp. Deck, slip op. at 2 (granting limited discovery where proposed lead plaintiff was an assistant manager of the issuer corporation and therefore may have been in possession of non
Reference
- Full Case Name
- In re TRONOX, INC. SECURITIES LITIGATION
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- Published