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Lewis Wilder , Et Al. V. News Corporation, Et Al. 11-CV-04947

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Lewis Wilder , Et Al. V. News Corporation, Et Al. 11-CV-04947 Case 1:11-cv-04947-PGG Document 31 Filed 06/05/12 Page 1 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK LEWIS WILDER, as Trustee for the Lewis Wilder ECF CASE Revocable Trust, 12/10/20 10, individually and on behalf of all others similarly situated 11 Civ. 4947 (PGG) Plaintiff, - against - USDC SDNY NEWS CORPORATION, DOCUMENT K. RUPORT MURDOCH, et al., ELECTRONICALL\ FILED Defendants. DATE FILED: JpJ1511Th PAUL G. GARDEPHE, U.S.D.J.: This is a securities class action brought by Plaintiff Lewis Wilder ("Wilder") on behalf of purchasers of News Corporation's common stock between March 3, 2011 and July 11, 2011 (the "Class Period"), alleging violations of the Securities Exchange Act of 1934. (Cmplt. ¶J 11-14) The action arises from alleged phone hacking by employees of News of the World, a now-defunct newspaper formerly owned by News Corp., and the financial fallout from the scandal. (Cmplt. ¶IJ 1-5) Wilder - as trustee of the Lewis Wilder Revocable Trust - and the Avon Pension Fund, Administered by Bath & North East Somerset Council ("Pension Fund") have filed competing motions for appointment as lead plaintiff. (Dkt. Nos. 6, 11) Wilder alleges that he invested $5,271.00 during the Class Period and suffered a loss of $5,271.00. (Wilder Br. 6) The Pension Fund alleges that it purchased more than $5.5 million in News Corp. shares during the Class Period and suffered a loss of more than $600,000. (Pension Fund Br. 6) For the reasons stated below, the Pension Fund's motion will be granted and Wilder's motion will be denied. Case 1:11-cv-04947-PGG Document 31 Filed 06/05/12 Page 2 of 4 DISCUSSION I. LEGAL STANDARD The Private Securities Litigation Reform Act of 1995 ("PSLRA") requires district courts to appoint as lead plaintiff the "member or members of the purported plaintiff class that 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); Sgalambo v. McKenzie, 268 F.R.D. 170,173 (S.D.N.Y. 20 10) (citing 15 U.S.C. §78u-4(a)(3)(B)) Under the PSLRA, there is a rebuttable presumption that the most adequate lead plaintiff is "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;' (2) the candidate must have 'the largest financial interest in the relief sought by the class,' and (3) the candidate must 'otherwise satisfly] the requirements of Rule 23 of the Federal Rules of Civil Procedure." Sgalambo, 268 F.R.D. at 173. "At the lead plaintiff stage of the litigation, in contrast to the class certification stage, 'a proposed lead plaintiff need only make a 'preliminary showing' that it will satisfy the typicality and adequacy requirements of Rule 23." Id. (citing In re Bank of America Corp. Sec. Deny. & ERISA Litig., 258 F.R.D. 260, 268 (S.D.N.Y. 2009) (quoting Kaplan v. Gelfond, 240 F.R.D. 88, 94 (S.D.N.Y. 2007)). "Typicality is established where the claims of the [head [p]laintiff arise from the same course of conduct that gives rise to the claims of the other class members, where these claims are based on the same legal theory, and where the class members and [head [p]laintiff were injured by the same conduct." Glauser v. EVCI Ctr. Colls. Holding Corp., 236 F.R.D. 184,188-89 (S.D.N.Y. 2006) (citing Dietrich v. Bauer, 192 F.R.D. 119,124 (S.D.N.Y. 2000)). "The adequacy requirement is satisfied where the proposed [head [p]laintiff does not have interests that are antagonistic to the class that he seeks to represent and has Case 1:11-cv-04947-PGG Document 31 Filed 06/05/12 Page 3 of 4 retained counsel that is capable and qualified to vigorously represent the interests of the class. ." Id. at 189 (citing Dietrich, 192 F.R.D. at 126) "That the presumption is rebuttable does not mean that it may be set aside for any reason that the court may deem sufficient." Goldberger v. PXRE Group, Ltd, 2007 WL 980417, at *2 (S.D.N.Y. Mar. 30, 2007) (citing Cavanaugh v. U.S. Dist. Ct. for the N. Dist. of Cal., 306 F.3d 726, 729 n. 2 (9th Cir. 2002)). "Rather, the presumption can be rebutted 'only upon proof by a member of the purported plaintiff 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." Id. at *2..3 (citing 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II)). II. ANALYSIS Wilder "does not dispute that [the Pension Fund] purports to have the largest financial interest in the relief sought by the class" (Wilder Resp., Dkt. No. 16, at 1), nor has he offered proof that the Pension Fund will be an inadequate lead plaintiff. Goldberger, 2007 WL 980417, at *2.3 (citing 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II)) Moreover, the Pension Fund has made the "preliminary showing" of typicality and adequacy necessary under Rule 23 at this stage of the proceedings. Sgalambo, 268 F.R.D. at 173. The Pension Fund purchased News Corp. common stock during the Class Period, and therefore its claims "arise from the same course of conduct that gives rise to the claims of the other class members." Glauser, 236 F.R.D. at 189. Given that there is no evidence that the Pension Fund is subject to unique defenses or seeks anything inconsistent with the relief sought by other class members, this Court finds further finds that the Pension Fund will adequately represent the class. 3 Case 1:11-cv-04947-PGG Document 31 Filed 06/05/12 Page 4 of 4 Because the Pension Fund meets all three statutory requirements - it has moved for selection as lead plaintiff, it has the largest financial interest, and it meets the requirements of Rule 23 - this Court will appoint the Pension Fund as lead plaintiff. Wilder's application to be appointed as lead plaintiff will be denied. Finally, 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). "The court should generally employ a deferential standard in reviewing the lead plaintiffs choices." In re Smith Barney Transfer Agent Litigation, 2006 WL 991003, at * 6 (S.D.N.Y. Apr. 17, 2006) (citation omitted). The Pension Fund moves to have its counsel, Robbins Geller Rudman & Dowd LLP ("Robbins Geller"), appointed as lead counsel. Robbins Geller is highly experienced in securities class actions (see Rosenfeld Decl., Exh. D), and this Court finds that the firm is capable of adequately representing the class in this action. Accordingly, Robbins Geller will be appointed to serve as lead counsel. CONCLUSION For the reasons stated above, the Pension Fund's motion for appointment as lead plaintiff, and for the appointment of Robbins Geller Rudman & Dowd LLP as lead counsel, is GRANTED. Wilder's motion for appointment as lead plaintiff is DENIED. The Clerk of the Court is directed to terminate the motions (Dkt. Nos. 6, 11). Dated: New York, New York June 4, 2012 SO ORDERED. L-J / ~ ,A j, j, Paul G. Gardephe United States District Judge .
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