Case 1:13-cv-07132-TPG Document 12 Filed 03/25/14 Page 1 of 5
tPDCSDNY DOCUMENT UNITED STATES DISTRICT COURT ELECmONICA:ix P1St) SOUTHERN DISTRICT OF NEW YORK i _Jl ------x jDATEF1LED:ZV('t I
- MARVIN PEARLSTEIN, individually and on behalf of all others similarly situated, 13 Civ. 7060 (TPG) Plaintiff,
- against -
BLACKBERRY LIMITED (formerly known as RESEARCH IN MOTION LIMITED), THORSTEN HEINS, and BRIAN BIDUKKA,
Defendants. ------x
BENYAMIN KOHANIM, individually and on behalf of all others similarly situated, 13 Civ. 7132 (TPG) Plaintiff,
- against -
BLACKBERRY LIMITED, et al.,
Defendants. ------x
VU TRAN, individually and on behalf of all others similarly situated, 13 Civ. 7972 (TPG) Plaintiff,
- against -
BLACKBERRY LIMITED, et al., ORDER
Defendants.
------x - Case 1:13-cv-07132-TPG Document 12 Filed 03/25/14 Page 2 of 5
Before the court are three separate but related class-action lawsuits
against BlackBerry Limited, the telecommunications company known best for
its line of BlackBerry mobile devices. Plaintiffs allege that Blackberry
published a series of materially false and misleading statements regarding the
company's financial projections and the new BlackBerry 10 device. Pursuant
to Federal Rule of Civil Procedure 42(a), plaintiffs now move to consolidate the
cases and to appoint a lead plaintiff and lead counsel pursuant to the Private
Securities Litigation Reform Act ("PSLRA"), 15 U.S.C. § 78u-4.
For the reasons stated more fully in court on March 14, 2014, the court
(1) grants the motion to consolidate the actions filed as 13 Civ. 7060 (TPG), 13
Civ. 7132 (TPG), and 13 Civ. 7972 (TPG); appoints Todd Cox and Mary Dinzik
as lead plaintiff; and appoints Kahn, Swick & Foti, LLC as lead counsel.
Consolidation
The court may consolidate cases "[i]f actions before the court involve a
common question of law or fact." Fed. R. Civ. P. 42(a). Federal courts have
routinely consolidated securities class actions in order to expedite pretrial
proceedings and minimize the expenditure of time and money by all parties.
See e.g . , Primavera Familienstiftung v. Askin, 173 F.R.D. 115, 129 (S.D.N.Y.
1997).
These three actions arose out of the same facts and present the same
questions of law. The complaints recite the relevant facts and law almost Case 1:13-cv-07132-TPG Document 12 Filed 03/25/14 Page 3 of 5
verbatim. Accordingly, the court consolidates cases 13 Civ. 7060 (TPG), 13 Civ.
7132 (TPG), and 13 Civ. 7972 (TPG).
Lead Plaintiff
The PSLRA directs the court to appoint as lead plaintiff the class member or members "most capable of adequately representing the interests of the class members." 15 U.S.C. § 78u-4(3)(B)(i). The most adequate plaintiff is the
"person or group of persons" that (1) "has the largest financial interest in the relief sought by the class," and (2) "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).
Although the plaintiff who experienced the greatest financial loss is the presumptive lead plaintiff, this presumption may be rebutted upon proof that the presumptive lead plaintiff "will not fairly and adequately protect the interest 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).
All parties agree that Linda Chang, one of the members of the Blackberry
Limited Investor Group, experienced the greatest loss. However, Chang currently resides in Hong Kong. As a result, the court is concerned that Chang would not be able to meaningfully manage the litigation from abroad. This means that Chang's lawyers would likely control the litigation—precisely the opposite of Congress' intent in enacting the PSLRA. See Masters v. Wilhelmina
Model Agency, Inc., 473 F.3d 423, 437 (2d Cir. 2007) (The PSLRA "was
3 Case 1:13-cv-07132-TPG Document 12 Filed 03/25/14 Page 4 of 5
designed to reform abusive securities class action litigation and to exercise
supervision and control of the lawyers for the class") (citing H.R. REP. NO. 104-
369, at 32 (1995) (Conf. Rep.). In other words, Chang may not be able to
adequately protect the interest of the class.
Todd Cox and Mary Dinzik collectively experienced the second-greatest
loss. They co-own the stock at issue and have been in a committed
partnership for many years. Additionally, Cox is a sophisticated investor based
in Houston, Texas. Cox thus has the incentive and the ability to exercise
supervision and control of the class' lawyers. In light of these attributes, the
court appoints Cox and Dinzik as lead plaintiff.
Lead Counsel
Under the PSLRA, "[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. § 78u-4(a)(3)(B)(v).
As their counsel, Cox and Zinzik have selected Kahn Swick & Foti, LLC.
The law firm has experience litigating complex securities matters, and there is
no reason to doubt its competency in handling these cases. Therefore, the
court approves Kahn Swick & Foti, LLC as lead counsel
Conclusion
The court (1) grants the motions to consolidate the three related cases,
(2) appoints Cox and Dinzik as lead plaintiff, and (3) appoints Kahn Swick &
Foti, LLC as lead counsel.
rd Case 1:13-cv-07132-TPG Document 12 Filed 03/25/14 Page 5 of 5
SO ORDERED.
Dated: New York, New York March 25, 2014
Thomas P. Griesa U. S. District Judge