Case 1:21-cv-10017-IT Document 27 Filed 03/02/21 Page 1 of 6
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`Civil Action No. 21-cv-10017-IT
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`LEONARD SHAPIRO, Individually and on behalf *
`of all others similarly situated,
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`Plaintiff,
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`v.
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`BIOGEN INC., MICHEL VOUNATSOS,
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`JEFFREY D. CAPELLO, MICHAEL R.
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`MCDONNELL, ALFRED W. SANROCK JR.,
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`and SAMANHA BUDD HAEMERLEIN,
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`Defendants.
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`__________________________________________*
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`ORDER APPOINTING LEAD PLAINTIFF
`AND ON APPOINTMENT OF COUNSEL
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`March 2, 2021
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`TALWANI, D.J.
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`Before the court is Nadia Shash’s Unopposed Motion to Appoint Counsel and Appoint
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`Lead Plaintiff [#8]. For the reasons set forth below, the motion is GRANTED IN PART and
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`DENIED WITHOUT PREJUDICE IN PART.
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`I. Relevant Background
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`The Class Action Complaint [#1] in this case was filed by Leonard Shapiro. The
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`Complaint alleges Defendant Biogen Inc. and several of its employees violated federal securities
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`laws by making allegedly false or misleading statements in relation to the development of a new
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`Alzheimer’s drug, aducanumab. Compl. ¶¶ 17–27 [#1]. The Complaint seeks to represent all
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`persons other than Defendants who purchased or otherwise acquired common shares of Biogen
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`stock between October 22, 2019, and November 6, 2020 (the “Class Period”). Id. ¶ 1.
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`Case 1:21-cv-10017-IT Document 27 Filed 03/02/21 Page 2 of 6
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`Pursuant to the Private Securities Litigation Reform Act (“PSLRA”), 15 U.S.C. § 78u-4,
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`Shapiro moved to be appointed lead plaintiff and for the court to approve his selection of lead
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`counsel. See Shapiro Mot. [#4]. Nadia Shash and Biogen Investor Group (a group composed of
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`three individuals who individually held Biogen stock during the Class Period) filed similar
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`motions. See Shash Mot. [#8]; Biogen Invest. Grp. Mot. [#9].
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`Biogen Investor Group subsequently filed a Notice [#14] stating that, upon review of the
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`competing motions, it did not hold the largest financial interest in the relief sought by the class.
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`See 15 U.S.C. § 78u-4 (a)(3)(B)(iii)(I)(bb) (setting forth that the most adequate plaintiff is
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`presumptively the person or group of persons having the largest financial interest). Accordingly,
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`Biogen Investor Group stated that it did not oppose Shash and Shapiro’s competing motions.
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`Shapiro initially opposed Shash’s motion, see Opposition [#15], but subsequently
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`withdrew his motion to be appointed lead plaintiff. See Shapiro Notice of Withdrawal [#25].1
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`Accordingly, the court treats Shash’s motion as unopposed.
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`Finally, Shapiro filed a Notice of Voluntary Dismissal [#26] stating that the action “is
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`voluntarily dismissed without prejudice . . . solely as to his claims.”
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`II.
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`Legal Standard
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`Pursuant to the PSLRA, the court is required to “appoint as lead plaintiff the member or
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`members of the purported plaintiff class that the court determines to be most capable of
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`adequately representing the interests of class members.” 15 U.S.C. § 78u-4(a)(3)(B)(i). By law,
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`the most adequate plaintiff is presumed to be the individual or group of individuals that meet the
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`1 Shapiro cited a recently issued decision in a first-filed related matter, Menashe v. Biogen Inc.,
`2:20-cv-10399-JVS (C.D. Cal. Feb. 24, 2021), granting, over Shapiro and Biogen Investor
`Group’s opposition, Shash’s motion to be appointed lead plaintiff and have her counsel be
`appointed lead counsel. See Shapiro Notice of Withdrawal [#25].
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`2
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`following three requirements: (1) the filing of the complaint or the making a timely motion to be
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`lead plaintiff; (2) having the largest financial interest in the relief sought; and (3) otherwise
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`satisfying Rule 23 of the Federal Rules of Civil Procedure. 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I).
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`This presumption “may be rebutted only upon proof by a member of the purported plaintiff class
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`that the presumptively most adequate plaintiff [(1)] will not fairly and adequately protect the
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`interests of the class; or [(2)] is subject to unique defenses that render such plaintiff incapable of
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`adequately representing the class.” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II).
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`III. Discussion
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`Here, Shash is entitled to a presumption that she is the most adequate plaintiff. First,
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`Shash’s motion was timely.2 Second, it is undisputed that Shash has the largest financial interest
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`in the relief sought. See Biogen Invest. Grp. Notice [#14]; Shapiro Opp’n [#15]. Third, Shash has
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`put forth a prima facie showing of typicality and adequacy in relation to the claims of the
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`proposed class. See In re Cendant Corp. Litig., 264 F.3d 201, 263 (3d Cir. 2001) (concluding that
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`the district court’s inquiry into whether a plaintiff with the largest financial stake is entitled to the
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`presumption “should be confined to determining whether the movant has made a prima facie
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`showing of typicality and adequacy”). Shash’s claims are plainly typical of the class where she,
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`like the members of the proposed class, purchased shares of Biogen during the class period and
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`was allegedly injured as a result of false and misleading statements made by the Defendants. See
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`Exhibit 2 to Baker Decl., PSLRA Certification [#12-2]; Bowers v. Tesaro Inc., No. 18-CV-
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`2 Pursuant to 15 U.S.C. § 78u-4(a)(3)(B)(i), the motion must be filed not later than 90 days after
`the plaintiff shall cause to be published, in a widely circulated national business-oriented
`publication or wire service, a notice advising members of the purported plaintiff class. Here, that
`notice was filed by Shash’s counsel on November 13, 2020, following the filing of the first-filed
`and substantially similar action in the Central District of California. See Exhibit 1 to Baker Decl.,
`PSLRA Early Notice [#12-1].
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`3
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`10086-ADB, 2018 WL 2089358, at *2 (D. Mass. May 4, 2018) (“The ‘burden in proving
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`typicality requires that the named plaintiff’s claims arise from the “same events or course of
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`conduct” and involve the same legal theory as do the claims of the rest of the class.”’) (quoting
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`In re Lernout & Hauspie Sec. Litig., 138 F. Supp. 2d 39, 46 (D. Mass. 2001)). Shash has also
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`demonstrated prima facie adequacy where she has common interests and no apparent conflict
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`with the rest of the class and has selected class counsel that are, on their face, qualified,
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`experienced, and able to conduct this litigation.3 See In re Lernout, 138 F. Supp. 2d at 46 (“To
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`meet the adequacy requirement, plaintiffs must demonstrate that they have common interests and
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`an absence of conflict with the class members and that the plaintiffs’ attorneys are qualified,
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`experienced and vigorously able to conduct the litigation.”); see also Order on Appointment of
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`Lead Plaintiff and Lead Counsel in Menashe v. Biogen Inc., 2:20-cv-10399-JVS, ECF No. 30, at
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`7 (C.D. Cal. Feb. 24, 2021) (finding that Shash had made a sufficient preliminary showing of
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`being an adequate and typical plaintiff).
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`Having concluded that Shash is entitled to a presumption that she is the “most adequate
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`plaintiff” and in the absence of any remaining challenges to her appointment,4 the court finds that
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`Shash should be appointed lead plaintiff. See State Univs. Ret. Sys. of Illinois v. Sonus
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`Networks, Inc., No. 06-cv-10040-MLW, 2006 WL 3827441, at *8 (D. Mass. Dec. 27, 2006) (“At
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`this point in the analysis, ‘the question is not whether another movant might do a better job of
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`protecting the interests of the class than the presumptive lead plaintiff; instead, the question is
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`3 See Exhibit 4 to Baker Decl., Rosen Law Firm Resume [#12-4].
`4 Shapiro’s Opposition 9–10 [#15], before it was withdrawn, contended that Shash was neither
`adequate nor typical because Shash had failed to offer a sworn declaration setting forth the
`credentials asserted in her motion (i.e., that she has been investing for ten years, is a CEO of a
`company, and is also a licensed attorney with an M.B.A.). The court does not find the omission
`of a sworn affidavit in this instance to be disqualifying in light of Shash’s obligation to only
`make a prima facie showing.
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`4
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`whether anyone can prove that the presumptive lead plaintiff will not do a fair[ ] and adequate[ ]
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`job.’”) (quoting In re Cendant Corp., 264 F.3d at 268).
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`What remains is the question of lead counsel. The PSLRA provides that lead counsel
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`shall be selected by lead plaintiff “subject to the court’s approval.” 15 U.S.C. § 78u4(a)(3)(B)(v).
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`“While the Court should not be a rubberstamp, it should give the lead plaintiff[’s] choice some
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`weight.” In re Lernout, 138 F. Supp. 2d at 46–47. Here, Shash has selected the Rosen Law Firm,
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`P.A. as lead counsel and has submitted a document containing biographies of the Rosen Law
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`Firm’s attorneys and a list of cases that attorneys from the Rosen Law Firm have worked on
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`demonstrating the law firm’s extensive experience representing clients in similar maters. See
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`Exhibit 4 to Baker Decl., Rosen Law Firm Resume [#12-4]. However, Shash’s request that the
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`court appoint a law firm, rather than individual attorneys, raises the question of whether a law
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`firm may serve as counsel where it may not enter appearances, or file pleadings pursuant to Fed.
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`R. Civ. P. 11. Furthermore, it is not apparent how the court can evaluate the qualifications of the
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`Rosen Law Firm to act as counsel to lead plaintiff where the Rosen Law Firm has made no
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`commitment as to who in the firm will be responsible for this litigation. Accordingly, Shash’s
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`motion is denied without prejudice as to the appointment of lead counsel. Shash may renew her
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`motion by identifying the individual attorneys Shash seeks to have appointed. In the alternative,
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`Shash may move again for the appointment of the Rosen Law Firm, but must provide authority
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`for the proposition that the PSLRA, Federal Rules of Civil Procedure, and/or applicable ethical
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`rules contemplate and provide for the appointment of law firms, as opposed to individual
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`attorneys, as lead counsel. The court does not anticipate finding persuasive court orders that
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`appoint law firms as counsel without specifically addressing the issue.
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`IV. Conclusion
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`For the reasons set forth above, Nadia Shash’s Unopposed Motion to Appoint Counsel
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`and Appoint Lead Plaintiff [#8] is GRANTED IN PART and DENIED WITHOUT PREJUDICE
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`IN PART. The court appoints Nadia Shash as lead plaintiff pursuant to the PSLRA but the court
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`denies without prejudice Ms. Shash’s request to appoint the Rosen Law Firm, P.A. as lead
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`counsel. In light of the Notice of Voluntary Dismissal [#26] filed by Shapiro, Shash is ordered to
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`file an amended complaint in this action no later than March 23, 2021. The Clerk is instructed to
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`terminate Shapiro’s Motion for Appointment as Lead Plaintiff and Approval of Lead Counsel
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`[#4] and the Biogen Investor Group’s Motion for Appointment as Lead Plaintiff and Approval of
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`Lead Counsel [#9] as withdrawn. Shash’s Motion for Leave to File a Reply [#17] and Request
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`for Judicial Notice [#24] are denied as moot.
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`IT IS SO ORDERED.
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`Date: March 2, 2021
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`/s/ Indira Talwani
`United States District Judge
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