Case 1:22-cv-03026-ALC-GWG Document 23 Filed 09/02/22 Page 1 of 14
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`---------------------------------------------------------------X
`MARC BAIN RASELLA,
`
`
`
`:
`individually and on behalf of all others similarly
`:
`situated,
`
`
`
`
`
`
`
`
`
`
`
`
`
`:
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`
`:
`
`-v.-
`
`
`
`
`
`
`
`
`
`
`
`
`
`:
`ELON R. MUSK,
`
`
`
`
`
`
`
`
`
`
`
`
`:
`
`
`
`Defendant.
`
`
`---------------------------------------------------------------X
`GABRIEL W. GORENSTEIN, United States Magistrate Judge
`
`
`
`OPINION AND ORDER
`
`
`22 Civ. 3026 (ALC) (GWG)
`
`
`
`
`
`
`
`
`
`Plaintiff Marc Bain Rasella has sued defendant Elon R. Musk for securities fraud under
`
`15 U.S.C. § 78j(b) and 17 C.F.R. § 240.10b-5 in connection with Musk’s alleged failure to
`
`timely disclose his acquisition of shares in Twitter, Inc. (“Twitter”) in early 2022. See
`
`Complaint, filed Apr. 12, 2022 (Docket # 1) (“Comp.”). Amalgamated Bank, as Trustee for the
`
`LongView LargeCap 500 Index VEBA Fund, LongView LargeCap 500 Index Fund, LongView
`
`Large Cap 1000 Index Value Fund, and LongView Broad Market 3000 Index Fund
`
`(“Amalgamated Bank”) and Oklahoma Firefighters Pension and Retirement System (“Oklahoma
`
`Firefighters”) have each moved for appointment as lead plaintiff pursuant to the Private
`
`Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u-4(a)(3)(B), and Federal
`
`Rule of Civil Procedure 23.1 For the reasons explained below, Oklahoma Firefighters’ motion is
`
`granted, and Amalgamated Bank’s motion is denied.
`
`
`1 See Motion to Appoint Amalgamated Bank to Serve as Lead Plaintiff and Appoint
`Lead Counsel, filed June 13, 2022 (Docket # 6) (“Amalgamated Bank Mot.”); Memorandum of
`Law in Support, filed June 13, 2022 (Docket # 7) (“Amalgamated Bank Mem.”); Memorandum
`of Law in Opposition, filed June 27, 2022 (Docket # 18) (“Oklahoma Firefighters Opp.”); Reply
`Memorandum of Law, filed July 5, 2022 (Docket # 19) (“Amalgamated Bank Reply”).
`
`
`

`

`Case 1:22-cv-03026-ALC-GWG Document 23 Filed 09/02/22 Page 2 of 14
`
`I.
`
`
`
`
`
`BACKGROUND
`
`A.
`
`Plaintiffs’ Allegations
`
`Musk “is the founder of Tesla and SpaceX, and according to Forbes, is the richest person
`
`in the world.” Comp. ¶ 16. In January 2022, Musk began purchasing Twitter shares. Id. ¶ 19.
`
`By March 14, Musk had acquired more than 5% of Twitter stock. Id. Thus, 17 C.F.R.
`
`§ 240.13d-1(a) required Musk to file a “Schedule 13” with the Securities and Exchange
`
`Commission (“SEC”) by March 24, revealing that his ownership interest exceeded 5%. Id.
`
`¶¶ 19-20. Musk did not file a Schedule 13 until April 4, however, by which point Musk had
`
`acquired a 9.1% ownership interest in Twitter. See id. ¶ 21. Once Musk filed the Schedule 13,
`
`the price of Twitter shares rose approximately 27%. See id. ¶ 22. By failing to disclose that his
`
`ownership interest exceeded 5%, Musk was able to acquire Twitter shares at artificially low
`
`prices between March 24 and April 4. See id. ¶ 24. Rasella and other putative class members
`
`sold Twitter shares during this period and therefore “missed the resulting share price increase,”
`
`instead selling at artificially low prices. Id. ¶ 23. According to plaintiff, Musk’s conduct
`
`violated Section 10(b) of the Exchange Act of 1934, 15 U.S.C. § 78j(b) and SEC Rule 10b-5, 17
`
`C.F.R. § 240.10b-5. See id. ¶ 41.
`
`
`
`B.
`
`Procedural History
`
`Rasella filed the complaint in this action on April 12, 2022. See Comp. On June 13,
`
`2022, Oklahoma Firefighters, Amalgamated Bank, and an individual named Partha Pratim Palit
`
`
`Oklahoma Firefighters’ Motion for Appointment as Lead Plaintiff and Approval of its
`Selection of Lead Counsel, filed June 13, 2022 (Docket # 8) (“Oklahoma Firefighters Mot.”);
`Memorandum of Law in Support, filed June 13, 2022 (Docket # 9) (“Oklahoma Firefighters
`Mem.”); Declaration of Avi Josefson in Support, filed June 13, 2022 (Docket # 10) (“Josefson
`Decl.”); Proposed Order, filed June 13, 2022 (Docket # 11); Response in Opposition, filed June
`27, 2022 (Docket # 17) (“Amalgamated Bank Opp.”); Reply Memorandum of Law, filed July 5,
`2022 (Docket # 20) (“Oklahoma Firefighters Reply”).
`
`

`

`Case 1:22-cv-03026-ALC-GWG Document 23 Filed 09/02/22 Page 3 of 14
`
`moved for appointment as lead plaintiff. See Amalgamated Bank Mot.; Oklahoma Firefighters
`
`Mot.; Motion to Appoint Partha Pratim Palit to Serve as Lead Plaintiff, filed June 13, 2022
`
`(Docket # 12). Palit subsequently filed a notice of non-opposition to the competing motions.
`
`See Notice of Non-Opposition, filed June 24, 2022 (Docket # 16).
`
`II.
`
`
`
`DISCUSSION
`
`A.
`
`Governing Law
`
`The PSLRA directs a court 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). One of the key presumptions in
`
`the statute is that the most adequate plaintiff is the person who “has the largest financial interest
`
`in the relief sought by the class.” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)(bb).
`
`Congress enacted the PSLRA in 1995
`
`in response to perceived abuses in securities fraud class actions.
`The purpose behind the PSLRA was to prevent “lawyer-driven”
`litigation, and to ensure that “parties with significant holdings in
`issuers, whose interests are more strongly aligned with the class of
`shareholders, will participate in the litigation and exercise control
`over the selection and actions of plaintiffs’ counsel.”
`
`Weltz v. Lee, 199 F.R.D. 129, 131 (S.D.N.Y. 2001) (quoting In re Oxford Health Plans, Inc.,
`
`Sec. Litig., 182 F.R.D. 42, 43-44 (S.D.N.Y. 1998)).
`
`As one court has explained,
`
`The theory of these provisions was that if an investor with a large
`financial stake in the litigation was made lead plaintiff, such a
`plaintiff . . . would be motivated to act like a “real” client, carefully
`choosing counsel and monitoring counsel’s performance to make
`sure that adequate representation was delivered at a reasonable
`price.
`In re Razorfish, Inc. Sec. Litig., 143 F. Supp. 2d 304, 307 (S.D.N.Y. 2001). See also Barnet v.
`
`Elan Corp., 236 F.R.D. 158, 161 (S.D.N.Y. 2005) (“In other words, by enacting the PSLRA,
`
`

`

`Case 1:22-cv-03026-ALC-GWG Document 23 Filed 09/02/22 Page 4 of 14
`
`Congress sought to encourage class members with the largest purported losses to act as lead
`
`plaintiffs in private securities litigation.”). “In accordance with this policy, the PSLRA provides
`
`for extensive judicial involvement in the process of selecting a lead plaintiff and lead counsel in
`
`a securities class action. The [PSLRA] carefully sets forth the procedure for doing so and the
`
`criteria to be applied.” Peters v. Jinkosolar Holding Co., 2012 WL 946875, at *4 (S.D.N.Y. Mar.
`
`19, 2012).
`
`First, “within twenty days of filing a putative class action, the plaintiff must publish ‘in a
`
`widely circulated national business-oriented publication or wire service,’ a notice to the class,
`
`informing the members of the class of the pendency of the action, and their right to file a motion
`
`for appointment as lead plaintiff.” Id. (quoting 15 U.S.C. § 78u-4(a)(3)(A)(i)). Next, “within
`
`sixty days of publication of the notice, any member or members may apply to the court to be
`
`appointed as lead plaintiff(s).” Id. (citing 15 U.S.C. § 78u-4(a)(3)(A)(i)). Finally, “within ninety
`
`days of the publication of the notice, the Court shall consider any motion made by a purported
`
`class member in response to the notice.” Id. (citing 15 U.S.C. § 78u-4(a)(3)(B)(i)).
`
`As noted above, the PSLRA directs courts “to appoint as lead plaintiff the member or
`
`members of the purported class that is or are the ‘most capable of adequately representing the
`
`interests of class members,’ referred to in the statute as the ‘most adequate plaintiff.’” Id.
`
`(quoting 15 U.S.C. § 78u-4(a)(3)(B)(i)). The PSLRA creates a “presumption” that the “most
`
`adequate plaintiff” is the “person or group of persons” that (1) “has either filed the complaint or
`
`made a motion in response to a notice under subparagraph (A)(i)”; (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).
`
`

`

`Case 1:22-cv-03026-ALC-GWG Document 23 Filed 09/02/22 Page 5 of 14
`
`While the PSLRA does not specify how the “largest financial interest in the relief sought
`
`by the class” is to be measured, 15 U.S.C. § 78u-4(a)(3(B)(iii)(I)(bb), “[f]inancial loss . . . is the
`
`most important” consideration. Varghese v. China Shenghuo Pharm. Holdings, Inc., 589 F.
`
`Supp. 2d 388, 395 (S.D.N.Y. 2008) (citations omitted); accord Crass v. Yalla Grp. Ltd., 2021
`
`WL 5181008, at *5 (S.D.N.Y. Nov. 8, 2021). Where the alleged harm arises from a fraudulently
`
`induced sale of shares, the following factors are pertinent to determining loss:
`
`(1) the total number of shares [sold] during the class period;
`(2) the net shares [sold] during the class period (in other words, the
`difference between the number of shares [sold] and the number
`of shares [purchased] during the class period;
`(3) the net funds [obtained] during the class period (in other words,
`the difference between the . . . amount received for the sale of
`shares during the class period [and the amount spent to
`purchase shares during the class period]); and
`(4) the approximate losses suffered.
`Kaplan v. Gelfond, 240 F.R.D. 88, 93 (S.D.N.Y. 2007) (citations omitted).2
`
`
`
`Additionally, the PSLRA requires that the lead plaintiff satisfy the requirements of Fed.
`
`R. Civ. P. 23. 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)(cc). Under Rule 23,
`
`[o]ne or more members of a class may sue or be sued as
`representative parties on behalf of all members only if:
`(1) the class is so numerous that joinder of all
`members is impracticable;
`(2) there are questions of law or fact common to the
`class;
`(3) the claims or defenses of the representative
`parties are typical of the claims or defenses of the
`class; and
`
`
`2 Because the four-factor test assumes the harm to plaintiffs arose from a fraudulently
`induced purchase of shares, see id., we have adjusted the language in the first three factors to
`reflect the harm alleged in this case: the sale of shares at artificially low prices, see Comp. ¶¶ 19-
`24.
`
`

`

`Case 1:22-cv-03026-ALC-GWG Document 23 Filed 09/02/22 Page 6 of 14
`
`(4) the representative parties will fairly and
`adequately protect the interests of the class.
`Fed. R. Civ. P. 23(a). However, “[i]n practice, a potential lead plaintiff need only make a
`
`‘preliminary showing’ that it satisfies the ‘typicality’ and ‘adequacy’ requirements of Rule 23 in
`
`order to satisfy the PSLRA.” Peters, 2012 WL 946875, at *11 (citing Janbay v. Canadian Solar,
`
`Inc., 272 F.R.D. 112, 120 (S.D.N.Y. 2010); In re Cendant Corp. Litig., 264 F.3d 201, 264 (3d
`
`Cir. 2001)). As a recent decision from this district explained,
`
`Lead plaintiffs’ claims are typical where “each class member’s
`claim arises from the same course of events, and each class
`member makes similar legal arguments to prove the defendant’s
`liability.” Sgalambo v. McKenzie, 268 F.R.D. 170, 173-74
`(S.D.N.Y. 2010) (citations omitted). A lead plaintiff is adequate
`where it “does not have interests that are antagonistic to the class
`that he seeks to represent and has retained counsel that is capable
`and qualified to vigorously represent the interests of the class that
`he seeks to represent.” Glauser v. EVCI Ctr. Colls. Holding Corp.,
`236 F.R.D. 184, 189 (S.D.N.Y. 2006) (citing Dietrich v. Bauer,
`192 F.R.D. 119, 126 (S.D.N.Y. 2000)).
`Crass, 2021 WL 5181008, at *6.
`
`Once the “most adequate plaintiff” is determined, that plaintiff is deemed the
`
`presumptive lead plaintiff, and will be appointed lead plaintiff unless another class member
`
`offers “exacting proof,” In re Facebook, Inc., IPO Sec. & Derivitive Litig., 288 F.R.D. 26, 39-40
`
`(S.D.N.Y. 2012), “that the presumptively most adequate plaintiff” (1) “will not fairly and
`
`adequately protect the interest of the class”; or (2) “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).
`
`As discussed further below, the statute contains a separate provision, sometimes known
`
`as the “professional plaintiff bar,” which provides:
`
`Except as the court may otherwise permit, consistent with the
`purposes of this section, a person may be a lead plaintiff, or an
`officer, director, or fiduciary of a lead plaintiff, in no more than 5
`
`

`

`Case 1:22-cv-03026-ALC-GWG Document 23 Filed 09/02/22 Page 7 of 14
`
`securities class actions brought as plaintiff class actions pursuant to
`the Federal Rules of Civil Procedure during any 3-year period.
`15 U.S.C. § 78u-4(a)(3)(B)(vi).
`
`
`
`B.
`
`
`
`Application
`
`1.
`
`Presumptive Lead Plaintiff
`
`Both Amalgamated Bank and Oklahoma Firefighters have satisfied the PSLRA’s
`
`procedural requirements. See 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)(aa). On April 12, the same day
`
`the complaint was filed, counsel for Rasella published a notice in Globe Newswire, alerting
`
`investors to the action and informing them that the deadline to seek appointment as lead plaintiff
`
`was June 13, 2022. See Notice of Pendency, annexed as Ex. B to Josefson Decl. (Docket # 10-
`
`2). On June 13, 2022, Amalgamated Bank and Oklahoma Firefighters filed the instant motions.
`
`See Amalgamated Bank Mot.; Oklahoma Firefighters Mot. Because Amalgamated Bank and
`
`Oklahoma Firefighters have both “made a motion in response to a notice under” 15 U.S.C.
`
`§ 78u-4(a)(3)(A)(i), they have both satisfied the first requirement of § 78u-4(a)(3)(B)(iii)(I).
`
`Amalgamated Bank and Oklahoma Firefighters have also satisfied the requirements of
`
`Fed. R. Civ. P. 23. See 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)(cc). Both entities’ claims “are typical
`
`of the class because their claims and injuries arise from the same conduct from which the other
`
`class members’ claims and injuries arise” — namely, Musk’s acquisition of Twitter shares before
`
`the belated filing of the Schedule 13 with the SEC on April 4, 2022. Oxford Health Plans, 182
`
`F.R.D. at 50 (citations omitted); accord Crass, 2021 WL 5181008, at *6; see Comp. ¶¶ 19-24.
`
`Moreover, the “adequacy” requirement is satisfied because both entities have “retained counsel
`
`that is capable and qualified to vigorously represent the interests of the class [they] seek[] to
`
`represent,” see Bernstein Litowitz Berger & Grossmann LLP Firm Resume, annexed as Ex. C to
`
`Josefson Decl. (Docket # 10-3) (“Bernstein Litowitz Firm Resume”); The Rose Law Firm P.A.
`
`

`

`Case 1:22-cv-03026-ALC-GWG Document 23 Filed 09/02/22 Page 8 of 14
`
`Biography, annexed as Ex. 4 to Amalgamated Bank Mem. (Docket # 7-4), and there is no
`
`evidence that either movant “ha[s] interests that are antagonistic to the class [they] seek to
`
`represent,” Glauser, 236 F.R.D. at 189 (S.D.N.Y. 2006).
`
`Finally, as to financial interest, Oklahoma Firefighters sold 14,367 Twitter shares during
`
`the class period while Amalgamated Bank sold 1,351 shares. See Oklahoma Firefighters Opp. at
`
`1. In its reply, Amalgamated Bank does not contest that Oklahoma Firefighters suffered the
`
`greater loss. See Amalgamated Bank Reply at 1. Thus, Oklahoma Firefighters has the “largest
`
`financial interest in the relief sought by the class,” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)(bb), and is
`
`the presumptive lead plaintiff.
`
`
`
`2.
`
`“Professional Plaintiff” Bar
`
`Amalgamated Bank does not argue that there exists “rebuttal evidence” within the
`
`meaning of 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II), that Oklahoma Firefighters “will not fairly and
`
`adequately protect the interests of the class,” or that Oklahoma Firefighters are “subject to
`
`unique defenses that render [it] incapable of adequately representing the class.” Id. Instead,
`
`Amalgamated Bank points to the PSLRA’s “professional plaintiff” bar, 15 U.S.C. § 78u-
`
`4(a)(3)(B)(vi), contending that because Oklahoma Firefighters “served as a lead plaintiff or co-
`
`lead plaintiff in six different securities class actions over the last three years,” Oklahoma
`
`Firefighters should not be permitted to do so again. Amalgamated Bank Reply at 1-3;
`
`Amalgamated Bank Opp. at 2-3. As already noted, the PSLRA’s “professional plaintiff bar”
`
`provides that “[e]xcept as the court may otherwise permit, consistent with the purposes of this
`
`section, a person may be a lead plaintiff . . . in no more than 5 securities class actions
`
`brought . . . during any 3-year period.” 15 U.S.C. § 78u-4(a)(3)(B)(vi).
`
`

`

`Case 1:22-cv-03026-ALC-GWG Document 23 Filed 09/02/22 Page 9 of 14
`
`Because the statute directs us to act “consistent with the purposes of this section,” id., we
`
`turn to the PSLRA’s legislative history. The Senate Report to the PSLRA noted that in securities
`
`class actions,
`
`[l]awyers typically rely on repeat, or ‘professional’ plaintiffs who,
`because they own a token number of shares in many companies,
`regularly lend their names to lawsuits. Even worse, investors in
`the class usually have great difficulty exercising any meaningful
`direction over the case brought on their behalf. The lawyers can
`decide when to sue and when to settle based largely on their own
`financial interests, not the interest of their purported clients.
`S. Rep. No. 104-98, at 6 (1995), as reprinted in 1995 U.S.C.C.A.N. 679, 685.
`
`
`
`The House Conference Report concurred:
`
`Professional plaintiffs who own a nominal number of shares in a
`wide array of public companies permit lawyers readily to file
`abusive securities class action lawsuits. Floor debate in the Senate
`highlighted that many of the “world's unluckiest investors”
`repeatedly appear as lead plaintiffs in securities class action
`lawsuits . . . . These individuals do not adequately represent other
`shareholders . . . .
`H.R. Conf. Rep. No. 104-369, at 32-33 (1995), as reprinted in 1995 U.S.C.C.A.N. 730, 731-32.
`
`
`
`As to the “professional plaintiff bar,” the House Conference Report explained that
`
`[i]nstitutional investors seeking to serve as lead plaintiff may need
`to exceed this limitation and do not represent the type of
`professional plaintiff this legislation seeks to restrict. As a result,
`the Conference Committee grants courts discretion to avoid the
`unintended consequences of disqualifying institutional investors
`from serving more than five times in three years. The Conference
`Committee does not intend for this provision to operate at cross
`purposes with the “most adequate plaintiff” provision.
`Id. at 35 (emphasis added).
`
`The statute bars a person from exceeding the 5-in-3 limit, “[e]xcept as the court may
`
`otherwise permit, consistent with the purposes of this section.” Id. Thus, courts have repeatedly
`
`excepted institutional investors from § 78u-4(a)(3)(B)(vi) in order to reflect the statute’s
`
`purposes as we have just described them. See, e.g., Ragan v. AppHarvest, Inc., 2021 WL
`
`

`

`Case 1:22-cv-03026-ALC-GWG Document 23 Filed 09/02/22 Page 10 of 14
`
`5909116, at *8 n. 6 (S.D.N.Y. Dec. 13, 2021); Iron Workers Local No. 25 Pension Fund v.
`
`Credit-Based Asset Servicing and Securitization, LLC, 616 F. Supp. 2d 461, 467 (S.D.N.Y.
`
`2009); In re Pfizer Inc. Sec. Litig., 233 F.R.D. 334, 338 n.4 (S.D.N.Y. 2005); In re Boeing Co.
`
`Aircraft Sec. Litig., 2019 WL 6052399, at *8 (N.D. Ill. Nov. 15, 2019); In re Extreme Networks
`
`Inc. Sec. Litig., 2016 WL 3519283, at *6-9 (N.D. Cal. June 28, 2016); In re Fannie Mae Sec.
`
`Litig., 355 F. Supp. 2d 261, 264 (D.D.C. 2005); In re Vicuron Pharms., Inc. Sec. Litig., 225
`
`F.R.D. 508, 512 (E.D. Pa. 2004). We agree with these decisions, and in particular with Extreme
`
`Networks’s statement that “[b]ecause § 78u-4(a)(3)(B)(vi) is to be applied ‘consistent with the
`
`purposes of this section,’ any interpretation that the 5-and-3 cap applies to institutional investors
`
`would contravene the very purpose for which the professional plaintiff bar was enacted.” 2016
`
`WL 3519283, at *7. Indeed, Congress recognized that “increasing the role of institutional
`
`investors in class actions will ultimately benefit shareholders and assist courts by improving the
`
`quality of representation in securities class actions.” Id. (quoting H.R. Conf. Rep. 104-369, at
`
`34).
`
`The burden to rebut the presumption that Oklahoma Firefighters should be appointed lead
`
`plaintiff rests with Amalgamated Bank. See Constance Sczesny Trust v. KPMG LLP, 223
`
`F.R.D. 319, 324 (S.D.N.Y. 2004). As just explained, the statute gives the Court discretion to
`
`exempt a person from the “professional plaintiff” provision through the language “[e]xcept as the
`
`court may otherwise permit.” 15 U.S.C. § 78u-4(a)(3)(B)(vi). An exception is justified in this
`
`case because, as we have described, application of the rule would be inconsistent with the
`
`“purposes,” id., of the professional plaintiff bar. See H.R. Conf. Rep. No. 104-369, at 34
`
`(“increasing the role of institutional investors in class actions will ultimately benefit shareholders
`
`and assist courts by improving the quality of representation in securities class actions”); id. at 35
`
`

`

`Case 1:22-cv-03026-ALC-GWG Document 23 Filed 09/02/22 Page 11 of 14
`
`(“The Conference Committee does not intend for [the ‘professional plaintiff’ bar] to operate at
`
`cross purposes with the ‘most adequate plaintiff’ provision.”). Unlike Cunha v. Hansen Natural
`
`Corp., 2009 WL 2029797 (C.D. Cal. July 13, 2009), cited by Amalgamated Bank, see
`
`Amalgamated Bank Opp. at 2; Amalgamated Bank Reply at 2, Amalgamated Bank has offered
`
`no evidence that Oklahoma Firefighters “have over-extended their resources in securities
`
`litigation,” Cunha, 2009 WL 2029797, at *3, or otherwise “would be unable to efficiently
`
`function as lead plaintiff,” Extreme Networks, 2016 WL 3519283, at *9.3 Oklahoma
`
`Firefighters is involved in 14 shareholder litigations, far fewer than the 21 in Cunha, 2009 WL
`
`2029797, at *7, and along with its outside general counsel, Oklahoma Firefighters possess the
`
`resources and capabilities necessary to litigate the instant case. See Declaration of Chase
`
`Rankin, annexed as Ex. A to Josefson Reply Decl. (Docket # 21-1) (“Rankin Decl.”), ¶¶ 6-9.
`
`Other than the number of litigations in which Oklahoma Firefighters is involved, Amalgamated
`
`Bank offers nothing to suggest that Oklahoma Firefighters is not up to serving as lead plaintiff.
`
`Amalgamated Bank thus has not rebutted the presumption in § 78u-4(a)(3)(B)(iii)(I) that
`
`Oklahoma Firefighters should be the lead plaintiff in this action. See generally Bach v.
`
`
`3 The remaining cases cited by Amalgamated Bank, Knurr v. Orbital ATK, Inc., 220 F.
`Supp. 3d 653, 662-63 (E.D. Va. 2016); Aronson v. McKesson HBOC, Inc., 79 F. Supp. 2d 1146,
`1156-57 (N.D. Cal. 1999); In re Alamosa Holdings, Inc. Sec. Litig., 2004 WL 578439, at *1
`(N.D. Tex. Mar. 4, 2004), rely on reasoning that is inconsistent with the statute’s express
`invocation of congressional purpose and with the underlying congressional purpose itself.
`Indeed, Aronson has been rejected on this basis. See In re Extreme Networks, 2016 WL
`3519283, at *5 (“[I]n the decade and a half since Aronson, all [cases in the Northern District of
`California] have held that § 78u-4(a)(3)(B)(vi) is not a bar to institutional investors — and with
`good reason.”). Notably, Alamosa, 2004 WL 578439, at *1, does not consider the institutional
`investor issue, conducting no analysis of legislative history at all. As for Knurr, 220 F. Supp. 3d
`at 662-63, we disagree with its suggestion that such discretion should not be employed merely
`because another institutional investor with a lesser financial interest is available to serve as lead
`plaintiff.
`
`
`

`

`Case 1:22-cv-03026-ALC-GWG Document 23 Filed 09/02/22 Page 12 of 14
`
`Amedisys, 2010 WL 4318755, at *5 (M.D. La. Oct. 22, 2010) (rejecting similar lack of resources
`
`argument).
`
`
`
`3.
`
`Amalgamated Bank’s Request for Appointment as Co-Lead Plaintiff
`
`Amalgamated Bank requests in the alternative to be appointed co-lead plaintiff, noting
`
`that Elon Musk is “one of the richest people in the world with vast resources at his disposal” and
`
`contending that Oklahoma Firefighters is “spread too thin” because of its other litigations to
`
`handle the case alone. Amalgamated Bank Opp. at 2; accord Amalgamated Bank Reply at 2-3.
`
`Oklahoma Firefighters opposes the request. See Oklahoma Firefighters Reply at 9-10.
`
`As an initial matter, we harbor significant “doubt that is appropriate under the PSLRA to
`
`appoint co-lead plaintiffs where the plaintiffs have not filed a joint motion to be appointed
`
`together.” Basile v. Valeant Pharm Int’l, Inc., 2015 WL 13652714, at *2 (C.D. Cal. May 5,
`
`2015). “While the PSLRA allows a group to serve as lead plaintiff, it also consistently refers to
`
`the lead plaintiff and most adequate plaintiff in the singular, suggesting that the district court
`
`should appoint only one lead plaintiff, whether an individual or a group.” Cohen v. U.S. Dist.
`
`Court for the N. Dist. of Cal., 586 F.3d 703, 711 n.4 (9th Cir. 2009) (citing Cendant, 264 F.3d at
`
`223 n.3). Further, [t]he appointment of multiple lead plaintiffs would also tend to run counter to
`
`the sequential inquiry . . . for selection of lead plaintiff.” Id.
`
`Separately, the contention that Amalgamated Bank is “spread too thin” relies on
`
`impermissible speculation. There is no reason to doubt Oklahoma Firefighters’ representation
`
`that it possesses the experience and resources necessary to competently litigate this case on its
`
`own through outside counsel. See Rankin Decl. ¶¶ 6-9.
`
`Furthermore, the authorities cited by Amalgamated Bank, see Amalgamated Bank Opp.
`
`At 3-4; Amalgamated Bank Reply at 3, are inapposite. In both Simmons v. Spencer, 2014 WL
`
`

`

`Case 1:22-cv-03026-ALC-GWG Document 23 Filed 09/02/22 Page 13 of 14
`
`1678987, at *6 (S.D.N.Y. Apr. 25, 2014), and Janbay, 272 F.R.D. at 120-21, a co-plaintiff
`
`structure was utilized to avoid anticipated conflicts of interest, which do not exist here.
`
`Notwithstanding Amalgamated Bank’s professed desire to benefit the class members
`
`through its appointment as co-lead plaintiff, see Amalgamated Bank Reply at 3, we find that
`
`“rejecting co-lead plaintiffs and counsel in this action better serves the interests of the investors
`
`in this case” because the use of co-lead plaintiffs, each represented by its own counsel, is “likely
`
`to increase unnecessarily attorney’s fees and expenses,” In re J. Ezra Merkin & BDO Sideman
`
`Sec. Litig., 2010 WL 11597482, at *2 (S.D.N.Y. Jan. 28, 2010), or “result in unnecessary
`
`disagreement” among co-counsel, Kuriakose v. Fed. Home Loan Mortg. Co., 2008 WL 4974839,
`
`at *9 (S.D.N.Y. Nov. 24, 2008).
`
`Accordingly, Amalgamated Bank’s request for appointment as co-lead plaintiff is denied.
`
`
`
`
`
`4.
`
`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. § 78u-4(a)(3)(B)(v).
`
`Because we grant Oklahoma Firefighters’ Motion for Appointment as Lead Plaintiff, we must
`
`consider Oklahoma Firefighters’ request to appoint its attorneys from Bernstein Litowitz Berger
`
`& Grossmann LLP as lead counsel. The PSLRA “evidences a strong presumption in favor of
`
`approving a properly-selected lead plaintiff’s decisions as to counsel selection and counsel
`
`retention.” In re Adelphia Commc’ns Corp. Sec. & Derivative Litig., 2008 WL 4128702, at *2
`
`(S.D.N.Y. Sept. 3, 2008) (citation omitted), aff’d sub nom. Victor v. Argent Classic Convertible
`
`Arbitrage Fund L.P., 623 F.3d 82 (2d Cir. 2010). Here, Oklahoma Firefighters has provided
`
`evidence that its chosen firm, Bernstein Litowitz, “has extensive experience serving as lead
`
`counsel in securities class actions.” Oklahoma Firefighters Mem. at 9 (citing Bernstein Litowitz
`
`

`

`Case 1:22-cv-03026-ALC-GWG Document 23 Filed 09/02/22 Page 14 of 14
`
`Firm Resume). Indeed, it has been represented that Bernstein Litowitz “is among the few law
`
`firms with experience successfully prosecuting claims for securities fraud under Section 10(b) of
`
`the Exchange Act on behalf of investors who were harmed by selling (rather than purchasing)
`
`shares of a company’s stock at prices that were artificially depressed (rather than inflated) by
`
`violations of the federal securities laws.” Id. at 10. Based on these representations, we approve
`
`Oklahoma Firefighters’ selection of Bernstein Litowitz as lead counsel.
`
`IV.
`
`CONCLUSION
`
`For the foregoing reasons, Oklahoma Firefighters’ Motion for Appointment as Lead
`
`Plaintiff (Docket # 8) is granted, and Amalgamated Bank’s Motion to Appoint (Docket # 6) is
`
`denied. Oklahoma Firefighters’ request to appoint Bernstein Litowitz Berger & Grossmann LLP
`
`as lead counsel is granted.
`
`
`
`SO ORDERED.
`
`Dated: September 2, 2022
`
`New York, New York
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`