In re Sequans Commc'ns S.A. Sec. Litig.
In re Sequans Commc'ns S.A. Sec. Litig.
Opinion of the Court
This is a putative consolidated class action brought on behalf of investors who purchased publicly traded securities of Sequans Communications S.A. ("Sequans") from April 29, 2016 through July 31, 2017. Plaintiffs Andrew Renner ("Renner") and Kevin Shillito ("Shillito") have brought claims pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 ("the Exchange Act") and Rule 10b-5 against Sequans and Georges Karam ("Karam"), Sequans's Chief Executive Officer, President, and Chairman of its Board of Directors; and Deborah Choate ("Choate"), Sequans's Chief Financial Officer. (Dkt. No. 1, Renner Compl. ¶¶ 1, 7-10).
Pending before the Court are the competing motions for appointment as Lead Plaintiffs.
Background
Renner filed his Complaint on August 9, 2017. One day later, Shillito filed a virtually identical complaint. (2:17-CV-4707, Dkt. No. 1). The Honorable Frederic Block consolidated *419both actions on September 29, 2017. (Dkt. No. 8).
The Renner Complaint alleges that on April 29, 2016, Sequans filed a Form 20-F for the fiscal year ending December 31, 2015 with the United States Securities and Exchange Commission ("SEC"), containing false financial results for the company. (Renner Compl. ¶ 15). The 20-F was signed by Karam, and contained certifications from both Karam and Choate, as required by the Sarbanes-Oxley Act of 2002 ("SOX") attesting to the accuracy of, among other things, the company's financial reporting, internal controls, and revenue recognition. (Id. ¶¶ 15-16). Another Form 20-F was filed by the company with the SEC on March 31, 2017 for the fiscal year ending December 31, 2016. (Id. ¶ 17). That Form 20-F also contained SOX certifications from Karam and Choate attesting to the accuracy of various statements contained therein, including about the company's revenue recognition. (Id. ¶¶ 17-18). Renner alleges that various statements in the Forms were materially false and misleading because, among other things, they failed to disclose that the company was improperly recognizing revenue. (Id. ¶¶ 19-23).
The Shillito Complaint contains nearly identical allegations. Filed against the same Defendants-Sequans, Karam, and Choate-it also alleges that on April 29, 2016, Sequans filed an annual Form 20-F for the fiscal year ending December 31, 2015, containing false financial results. (Shillito Compl. ¶ 22). Form 20-F was signed by Karam, and included necessary SOX certifications. (Id. ). Sequans filed a second 20-F on March 31, 2017, for the operating results of fiscal year ending December 31, 2016. (Id. ¶ 24). The second 20-F was again signed by Karam, and included SOX certifications attesting to the accuracy of the statements provided. (Id. ). The Shillito Complaint alleges that Sequans's statements in its 20-F submissions were materially false and misleading because "the Company was improperly recognizing revenue." (Id. ¶ 26).
The Renner Complaint contains two causes of action: (1) alleging a violation of Section 10(b) of the Exchange Act and Rule 10b-5, (Renner Compl. ¶¶ 34-43); and (2) alleging a violation of Section 20(a) of the Exchange Act, (id. ¶¶ 44-49). The Shillito Complaint contains the same two causes of action, alleging a violation of Section 10(b) of the Exchange Act and Rule 10b-5, (Shillito Compl. ¶¶ 41-50); and (2) alleging a violation of Section 20(a) of the Exchange Act, (id. ¶¶ 51-56). Both Complaints contain the same class periods of April 29, 2016 to July 31, 2017. (Renner Compl. ¶ 1; Shillito Compl. ¶ 1).
On October 10, 2017, three motions, each of which asked the Court to appoint the movant(s) as Lead Plaintiff, and designate lead counsel, were filed. The three Movants are: (1) Johal and McGee, (see Dkt. Nos. 9-11, 23-24, 32); (2) Searing, (see Dkt. Nos. 12-14); and (3) Retirement System, (see Dkt. Nos. 15-17, 19-21, 25, 34). After the motions were filed, Searing filed a "Notice of Non-Opposition" in which he indicated that he does not oppose the appointment of Johal and McGee as Lead Plaintiffs or to their choice of counsel. (Dkt. No. 18 at 1).
The Honorable Frederic Block asked this Court to decide the motions. (See Nov. 29, 2017 Minute Order).
Discussion
The Private Securities Litigation Reform Act ("PSLRA") requires that a plaintiff who files a complaint publish, in a widely circulated business oriented publication or wire service, a notice advising members of the purported class of "the pendency of the action, the claims asserted therein, and the purported class period"; and permits "not later than 60 days after *420the date on which the notice is published, any member of the purported class may move the court to serve as lead plaintiff[.]" 15 U.S.C. § 78u-4(a)(3)(A).
On August 9, 2017, counsel for Renner, from the Rosen Firm, caused a notice about the pendency of the action to be published in Business Wire . (See Declaration of Jeremy A. Lieberman dated October 17, 2017, Ex. A ("Lieberman Decl.") ). Business Wire "is a suitable vehicle for meeting the statutory requirement that notice be published." Pirelli Armstrong Tire Corp. Retiree Med. Benefits Tr. v. LaBranche & Co. ,
The 60-day period in which any member of the proposed class may apply for lead plaintiff status elapsed on October 10, 2017,
I. Lead Plaintiff
The PSLRA requires the Court to appoint as "lead plaintiff" the member of the class that the Court determines to be "most adequate plaintiff," i.e. the member the court determines to be "most capable of adequately representing the interests of class members." 15 U.S.C. § 78u-4(a)(3)(B)(i). The Court must "adopt a presumption that the most adequate plaintiff" "is the person or group of persons" that:
(1) "has either filed the complaint or made a [timely] motion" to be appointed as lead plaintiff(s);
(2) "in the determination of the court, has the largest financial interest in the relief sought by the class"; and
(3) "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). This presumption may be rebutted "only" by proof that the presumptively adequate plaintiff either "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." 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II).
None of the Movants filed either the Renner or the Shillito complaint, but each made a timely motion to be appointed as lead plaintiff. The Court therefore turns to the two remaining elements of the presumption.
A. Largest Financial Interest
In assessing the financial interests of parties competing for lead plaintiff status, the Court will generally consider "(1) the total number of shares purchased during the class period; (2) the net shares purchased during the class period (in other words, the difference between the number of shares purchased and the number of shares sold during the class period); (3) the net funds expended during the class period (in other words, the difference between the amount spent to purchase shares and the amount received for the sale of shares during the class period); and (4) the approximate losses suffered." In re Gentiva Sec. Litig .,
Under these criteria Johal and McGee have the largest financial interest. During the class period, they collectively suffered approximately $144,271 in losses, based on a total purchase of 193,695 shares of Sequans, costing $721,574, and while retaining 190,945 shares. (See Lieberman Decl., Ex. C). The net funds expended during the class period were $712,608.
Retirement System argues that its losses are comparable to those of Johal (whose claimed loss standing alone is $108,303) and greater than McGee's individually ($35,968), and given the PLSRA's alleged preference for institutional investors serving as lead plaintiffs, the financial interest element of the presumption test favors Retirement System, not Johal and McGee. Even disaggregating Johal and McGee's losses, Johal's losses are more than double those of Retirement System. This is a far larger discrepancy than in those cases cited by Retirement System, (see Dkt. No. 19, Retirement System's Response in Opposition ("Ret. Sys. Br.") at 6-8). E.g. , Randall v. Fifth St. Fin. Corp. , No. 15-CV-7759,
The raw differential can be misleading; a difference of $5000 in losses may be significant where two competing movants suffered losses of say, $500 and $5500. It is less significant where there two movants have suffered losses of say, $350,000 and $355,000. The difference in magnitude does to some degree help put the losses in a larger context.
Retirement System also argues that the PLSRA prefers institutional investors as lead plaintiffs, and then cites to cases where courts have chosen institutional investors over individuals when their losses are comparable. (See Ret. Sys. Br. at 6-8). It is true that several courts have found that the PSLRA's legislative history embodies a preference for institutional investors serving as lead plaintiffs. E.g. , In re Gentiva Sec. Litig .,
The Court therefore concludes that Johal and McGee have the largest financial interest in relief sought by the class.
B. Rule 23
The next step in identifying which plaintiff is entitled to the presumption is to "ensure that the person (or persons) with the largest financial interest 'otherwise satisfies the requirements of Rule 23.' " Maliarov v. Eros Int'l PLC , No. 15-CV-8956,
Typicality is satisfied "where the claims arise from the same course of events and each class member makes similar legal arguments to prove defendant's liability." In re Symbol Techs., Inc. Secs. Litig. , 05-CV-3923,
The adequacy requirement is satisfied where "(1) class counsel is qualified, experienced, and generally able to conduct the litigation; (2) the class members' interests are not antagonistic to one another; and (3) the class has a sufficient interest in the outcome of the case to ensure vigorous advocacy." In re Symbol Techs., Inc. Secs. Litig. ,
Johal and McGee are represented by two firms, Pomerantz and Rosen, and each appears to be qualified and experienced counsel who have litigated numerous class actions and the Court concludes they would generally be able to conduct this litigation. (See Lieberman Decl., Ex. D (Resume of Pomerantz firm) & Ex. E (Resume of Rosen firm) ). E.g. , In re Symbol Techs., Inc. Sec. Litig. ,
Neither of the two other Movants makes any argument to suggest otherwise. However, Retirement System makes a separate adequacy argument: that Johal and McGee are inadequate Lead Plaintiffs because they have "been cobbled-together for the sole purpose of aggregating losses in an attempt to obtain lead plaintiff appointment." (Ret. Sys. Br. at 2).
The PLSRA permits a "person or group of persons" to be appointed Lead Plaintiff. See 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). The majority of courts permit unrelated investors to join together as a group, and evaluate a motion to do so on a case-by-case basis, evaluating whether the grouping best serves the interest of the class. Accord Varghese v. China Shenghuo Pharm. Holdings, Inc .,
Retirement System does not question whether the size of a group of two individuals is too large to permit both Johal and McGee being named Lead Plaintiffs. With respect to the other two factors, Retirement System argues that the group was formed not as a result from any pre-existing relationship between Johal and McGee, *424but is simply the result of law firms attempting to have the Court name two firms as lead counsel. They point out that McGee's certification only authorizes one firm (Rosen) to file a complaint; Johal's certification does not reference any law firm; and neither certification references the other investor. (See Ret. Sys. Br. at 2-3).
The objection is without merit. It is not the case that where there are co-lead plaintiffs there must be some pre-existing, pre-litigation relationship between them. Howard Gunty Profit Sharing Plan v. CareMatrix Corp. ,
The cases cited by Retirement System do not counsel a different result. In Buettgen v. Harless ,
It is certainly possible to identify cases in which unrelated investors were deemed not to be adequate representatives and lead plaintiff designation was provided to another class member. That is the inexorable conclusion of a case-by-case approach.
Consequently, the Court concludes that Johal and McGee have satisfied the Rule 23 typicality and adequacy requirements, and with the largest financial loss, are entitled to a presumption that they are the most adequate plaintiffs.
C. Rebuttal of the Presumption
The presumption "may be rebutted only upon proof" that Johal and McGee "will not will not fairly and adequately protect the interests of the class" or are "subject to unique defenses that render [them] incapable of adequately representing the class." 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II). Retirement System's arguments about the improper relationship between Johal and McGee are, as explained above, without merit; in any event, they do not rise to the level, even if true, of suggesting that they could not fairly and adequately protect class members' interests. Nor has there been any suggestion that Johal and McGee are subject to unique defenses.
*426On January 29, 2018, Retirement System provided the Court with supplemental authority, Abouzied v. Applied Optoelectronics, Inc. , No. 17-CV-2399,
The Court therefore concludes that the presumption has not been rebutted, and Johal and McGee are hereby appointed as Lead Plaintiffs.
II. Lead Counsel
Under the PSLRA, "the most adequate plaintiff shall, subject to the approval of the court, select and retain counsel to represent the class." 15 U.S.C. § 78u-4(a)(3)(B)(v). Johal and McGee are represented by Pomerantz and Rosen. As discussed earlier, both are experienced in securities class action litigation, supra at 422, and have been appointed by District Judges in this Court to serve as Lead Counsel. See, e.g. , In re Blue Apron Holdings, Inc. Sec. Litig. , No. 17-CV-4846,
Conclusion
For the reasons stated, the Court appoints Kulwant Johal and Matthew McGee as Lead Plaintiffs and Pomerantz LLP and the Rosen Law Firm P.A. as Co-Lead Class Counsel. The other motions for appointment as Lead Plaintiff are denied.
SO ORDERED.
Shillito v. Sequans Communications S.A., et al. , 2:17-CV-4707 (E.D.N.Y.) ("Shillito Compl.").
Unless otherwise indicated, docket citations are to the lead case docket, No. 17-4665.
See Fed. R. Civ. P. 6(a)(1)(C) ("The following rules apply in computing any time period ... [w]hen the period is stated in days ... include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.").
Net funds expended during the class period is the difference between the amount spent to purchase shares ($721,574) and the amount received for the sale of shares during the class period ($8966). This calculation is based on the fact that McGee sold 2750 shares on 7/11/2017 and 7/12/2017, which are dates within the class period, and received $8966 from those sales. (See Lieberman Decl., Ex. C). Johal also sold Sequans shares, but only after the class period. (See
Net shares purchased during the class period is the difference between the shares purchased (193,695) and the number of shares sold during the class period (2750).
Searing concedes that Johal and McGee have the largest financial interest. (See Dkt. No. 18, Notice of Non-Opposition at 1.).
Retirement System also appends an unpublished order in which Judge Kaplan declined to follow the PSLRA presumption even though the moving party had $165,000 more in losses. It is evident that that decision was driven by the failure of the party with the largest loss to choose an experienced law firm. See Freedman v. Weatherford Int'l Ltd. , No. 12-CV-2121, at 2 (S.D.N.Y.) (order dated July 10, 2012). ("But much more important, Sacramento-Anchorage has chosen a large, well known, and able law firm that long has specialized in this sort of litigation. Dr. Siddiqui, on the other hand, has chosen a five-person law firm, the resume of which indicates that it has offices in Nassau County, New York, Beverly Hills, Bala Cynwyd and Cherry Hill, New Jersey (which suggests that it perhaps is spread rather thinly) and discloses only very limited experience in securities class action litigation."), attached as Ex. 1 to October 24, 2017 Decl. of Jay Eng in Support of Retirement System's Motion.
It is of no moment that the Joint Declaration was filed after the motion for lead counsel was filed, since the PSLRA does not impose a timing requirement on submissions. See In re Blue Apron Holdings, Inc. Sec. Litig. , No. 17-CV-4846,
Retirement System also cites to a variety of cases described as instances where courts rejected co-lead plaintiff groupings because there was no evidence about group decisionmaking or conflict resolution. (Ret. Sys. Br. at 9-10). Setting aside whether such a requirement exists under the PLSRA or Rule 23, those cases are inapposite or actually support Johal and McGee. For example, in Ross v. Abercrombie & Fitch Co. , the proposed co-lead plaintiffs did not submit any evidence about their relationship, and relied exclusively on the declaration of a lawyer representing the group.
Cases run both ways. Indeed, at least one of the cases cited by Retirement System, the Court approved the grouping of multiple entities as co-lead plaintiff, (see Ret. Sys. Br. at 9). E.g. , In re Cendant Corp. Litig .,
Reference
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- IN RE SEQUANS COMMUNICATIONS S.A. SECURITIES LITIGATION
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