Franke v. Bridgepoint Education, Inc. et al, No. 3:2012cv01737 - Document 77 (S.D. Cal. 2015)
Court Description: ORDER granting Plaintiffs' 70 Amended Motion to Certify Class. Court appoints City of Atlanta General Employees Pension Fund and Teamsters Local 677 Health Services & Insurance Plan as class representatives, and appoints their counsel, Robbins Geller Rudman & Dowd LLP, as class counsel. Signed by Judge Jeffrey T. Miller on 1/15/2015. (jah)
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Franke v. Bridgepoint Education, Inc. et al Doc. 77 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 In re BRIDGEPOINT EDUCATION, INC. SECURITIES LITIGATION 11 CASE NO. 12-cv-1737 JM (JLB) ORDER GRANTING MOTION FOR CLASS CERTIFICATION 12 13 This order addresses Plaintiffs’ motion for class certification. (Doc. No. 70.) 14 The motion was fully briefed, and the court determined that the matter was suitable 15 for resolution without oral argument pursuant to Local Civil Rule 7.1.d.1. For the 16 reasons set forth below, the court grants Plaintiffs’ motion to certify the proposed 17 class for the period between May 3, 2011, and July 13, 2012; appoints Plaintiffs as 18 class representatives; and appoints their counsel as class counsel. 19 BACKGROUND 20 A. Consolidation of Cases and Appointment of Lead Plaintiffs 21 This case is a putative securities-fraud class action against Bridgepoint 22 Education, Inc. (“Bridgepoint”), and three of its officers, Andrew Clark, Daniel 23 Devine, and Jane McAuliffe (collectively, “Defendants”). Donald Franke filed the 24 initial complaint on July 13, 2012. (Doc. No. 1.) Several similar lawsuits followed. 25 On motion by the parties, the court consolidated this case with Sacharczyk v. 26 Bridgepoint Education, Inc., No. 12-cv-1759, and Stein v. Bridgepoint Education, 27 Inc., No. 12-cv-1841, and appointed two pension plans, City of Atlanta General 28 Employees Pension Fund, and Teamsters Local 677 Health Services & Insurance -1- 12cv1737 Dockets.Justia.com 1 Plan (collectively, “Plaintiffs”), as lead plaintiffs pursuant to the Private Securities 2 Litigation Reform Act (“PSLRA”). (Doc. No. 21.) 3 B. The Operative Complaint1 4 On December 21, 2012, Plaintiffs filed a consolidated complaint. (Doc. 5 No. 26.) They asserted claims for violations of three provisions of the Securities 6 Exchange Act of 1934: (1) securities fraud, under § 10(b) and Rule 10b-5; 7 (2) control-person liability, under § 20(a); and (3) insider trading, under § 20A. 8 (Id. ¶¶ 232–56.) 9 According to the consolidated complaint, Bridgepoint is a for-profit post- 10 secondary education company that owns and operates Ashford University 11 (“Ashford”). (Id. ¶ 19.) Ashford’s main campus is in Clinton, Iowa, but the vast 12 majority of its students attend classes exclusively online. (Id. ¶¶ 19, 37.) In 2011, 13 Bridgepoint’s revenue was $933 million, over 90% of which came from Title IV 14 federal funds. (Id. ¶¶ 37, 41.) Maintaining accreditation with a Department of 15 Education recognized accreditor is a prerequisite for receiving Title IV funds and, 16 hence, essential to Bridgepoint’s financial health. (Id. ¶¶ 32, 41.) 17 In 2010, the Higher Learning Commission of the North Central Association 18 of Colleges and Schools (“HLC”), Ashford’s only accreditor, announced a 19 “substantial presence” requirement, which would become effective on July 1, 2012. 20 (Id. ¶¶ 43,79.) Under the new requirement, institutions accredited by HLC would 21 be required to have a majority of their educational administration activities, 22 business operations, and leadership located substantially in the 19-state north23 central region of the country. (Id. ¶ 43.) Although Ashford is in Iowa, the majority 24 of Bridgepoint’s operations are located in San Diego, California, so Ashford would 25 not qualify for accreditation under the new requirement. (Id.) Accordingly, 26 Ashford sought accreditation from the Western Association of Schools and Colleges 27 28 1 The facts in this section are drawn from the complaint and are not to be taken as proven. -2- 12cv1737 1 (“WASC”), whose jurisdiction includes California. (Id.) 2 In letters dated May and June 2011, WASC informed Ashford that it was 3 eligible to pursue accreditation, and it identified the areas the school would need to 4 address to demonstrate substantial compliance with WASC standards. (Id. ¶¶ 49, 5 83.) WASC’s concerns included inadequate student retention and completion, 6 insufficient student-progress tracking, an insufficient core of full-time faculty 7 members, and the lack of an empowered and independent governing board. 8 (Id. ¶ 49.) 9 According to Plaintiffs, beginning with a press release on May 3, 2011, 10 Defendants made a series of false and misleading statements and omissions about 11 the quality of education at Ashford, Bridgepoint’s efforts to address the problem 12 areas WASC had identified, the likelihood that WASC would grant accreditation, 13 and Bridgepoint’s financial forecasts. (Id. ¶¶ 83–193.) 14 On July 3, 2012, WASC sent Ashford an action letter denying the school’s 15 application for initial accreditation and detailing the numerous ways in which the 16 school had failed to demonstrate substantial compliance with WASC accreditation 17 standards, including in the problem areas noted in the May and June 2011 letters. 18 (Id. ¶¶ 55, 57–75.) 19 According to Plaintiffs, the truth emerged in two disclosures Defendants 20 made soon after receiving WASC’s denial. (Id. ¶¶ 76–82.) First, on July 9, 2012, 21 Bridgepoint filed a Form 8-K with the Securities and Exchange Commission 22 notifying investors that WASC had denied Ashford’s application for initial 23 accreditation and that the denial was based on the school’s failure to demonstrate 24 substantial compliance with WASC standards. (Id. ¶¶ 76, 78.) Later that day, 25 Bridgepoint issued a press release reporting that accreditation had been denied 26 and that it planned to appeal and reapply. (Id. ¶ 77.) Following this news, 27 Bridgepoint’s stock fell $7.25 per share, to close at $14.23 per share that evening, 28 a decline of nearly 34% on high volume of 7.8 million shares. (Id. ¶ 80.) -3- 12cv1737 1 Second, on July 13, 2012, Bridgepoint filed a Form 8-K reporting that HLC, 2 Ashford’s only accreditor, had put the school on “special monitoring status” 3 because of the WASC denial, and that Ashford risked losing its accreditation with 4 HLC. (Id. ¶ 81.) The notice read as follows: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 On July 12, 2012, Bridgepoint Education’s subsidiary, Ashford University, received a letter from [HLC] requiring Ashford University to provide certain information and evidence of compliance with HLC accreditation standards. HLC is a regional accrediting body . . . and is the principal accreditor of Ashford University and its programs. The HLC letter relates to the recent visiting team report and action letter received by the University from [WASC] on July 5, 2012. The letter requires that Ashford University submit a report to HLC no later than August 10, 2012 that will be followed by an Advisory Visit that will occur no later than October 9, 2012. The University’s report must demonstrate that the University remains in compliance with the HLC’s Criteria for Accreditation and include: (i) evidence that Ashford University meets the HLC Criteria for Accreditation relating to the role and autonomy of the University’s governing board and its relationship with Bridgepoint Education, including the role of faculty in overseeing academic policies and the integrity and continuity of academic programs, (ii) evidence that Ashford University’s resource allocations are sufficiently aligned with educational purposes and objectives in the areas of student completion and retention, the sufficiency of full-time faculty and model for faculty development, and plans for increasing enrollments, and (iii) evidence demonstrating that Ashford University has an effective system for assessing and monitoring student learning and assuring academic vigor. The letter states that HLC’s President will present the report of the Advisory Visit team and the President’s recommendation to the HLC Board for action at its February 2013 meeting. At that meeting, the HLC Board may act to continue accreditation, with or without further monitoring, continue accreditation under sanction or “Show Cause” order, or withdraw accreditation. The letter further states that Ashford University would be scheduled for a HLC Board Committee Hearing prior to any Board action to withdraw accreditation. HLC policies also provide for a right to appeal any Board action to withdraw accreditation. 23 (Id.) Following this news, Bridgepoint stock fell $3.20 per share to close at $9.77 24 per share that evening, a decline of nearly 25% on high volume of 6.7 million 25 shares. (Id. ¶ 82.) 26 C. The Motion to Dismiss 27 In February 2013, Defendants moved to dismiss the complaint for failure 28 to state a claim. (Doc. No. 28.) In September 2013, after extensive briefing, the -4- 12cv1737 1 court entered a written order granting the motion in part and denying it in part. 2 (Doc. No. 39.) 3 In the order, the court concluded that the only allegations that supported a 4 claim for relief regarded Ashford’s alleged misrepresentations or omissions about 5 its efforts to improve student retention and completion and student-progress 6 tracking. (Id. at 26–29.) Bridgepoint had emphasized throughout the class period 7 that it had implemented student-support initiatives in 2010 and 2011 and that 8 student persistence had improved. (Id. at 27.) But WASC had found that a 9 “concerted and systematic approach to improve retention, persistence and 10 completion, with evidence-based plans, targets, and time lines, [were] not in place 11 and the impact of recent changes cannot yet be measured.” (Id. at 28.) These facts 12 supported a plausible claim regarding student-persistence and tracking initiatives 13 because WASC’s finding suggested that Defendants could not have concluded that 14 student persistence was improving, and Defendants’ comments could have led an 15 investor to assume that Bridgepoint was analyzing Ashford’s student persistence 16 and finding that the numbers had actually improved. (Id. at 28–29.) The court 17 dismissed the remaining claims and granted Plaintiffs leave to file an amended 18 complaint, (id. at 46), but they did not do so. 19 Accordingly, at this point, the consolidated complaint remains the operative 20 complaint, and the only remaining claims are for securities fraud under § 10(b) and 21 Rule10b-5 and control-person liability under § 20(a), both related to the alleged 22 misrepresentations regarding student-persistence and tracking. 23 D. The Instant Motion for Class Certification 24 There was some delay in this case so that the parties would have an 25 opportunity to resolve discovery issues and address the impact of Halliburton Co. 26 v. Erica P. John Fund, Inc., — U.S. —, 134 S. Ct. 2398 (2014), which held that 27 defendants in a securities-fraud action “must be afforded an opportunity before 28 class certification to defeat the presumption [of reliance] through evidence that an -5- 12cv1737 1 alleged misrepresentation did not actually affect the market price of the stock.” Id. 2 at 2417. On August 6, 2014, Plaintiffs filed the instant amended motion for class 3 certification. (Doc. No. 70.) Defendants opposed the motion on October 7, (Doc. 4 No. 72), and Plaintiffs replied on November 19, (Doc. No. 75). The matter, which 5 was originally set for hearing on December 8, was taken under submission 6 on December 1. 7 8 LEGAL STANDARDS “The class action is an exception to the usual rule that litigation is conducted 9 by and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. 10 Dukes, — U.S. —, 131 S. Ct. 2541, 2550 (2011) (internal quotation marks omitted). 11 To come within the exception, a putative class-action plaintiff must provide facts 12 sufficient to show that the claim meets the requirements of Federal Rule of Civil 13 Procedure 23. See Comcast Corp. v. Behrend, — U.S. —, 133 S. Ct. 1426, 1432 14 (2013). Under Rule 23(a), a class may be certified only if “(1) the class is so 15 numerous that joinder of all members is impracticable; (2) there are questions of law 16 or fact common to the class; (3) the claims or defenses of the representative parties 17 are typical of the claims or defenses of the class; and (4) the representative parties 18 will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). 19 Additionally, the party seeking certification must show that the action 20 satisfies at least one of the three subsections of Rule 23(b). In this case, Plaintiffs 21 seek certification under Rule 23(b)(3), which requires the court to find that “the 22 questions of law or fact common to class members predominate over any questions 23 affecting only individual members, and that a class action is superior to other 24 available methods for fairly and efficiently adjudicating the controversy.” Fed. R. 25 Civ. P. 23(b)(3). 26 “[C]ertification is proper only if the trial court is satisfied, after a rigorous 27 analysis,” that these requirements are satisfied. Comcast, 133 S. Ct. at 1432 28 (internal quotation marks omitted). “Such an analysis will frequently entail overlap -6- 12cv1737 1 with the merits of the plaintiff’s underlying claim.” Id. (internal quotation marks 2 omitted). But “Rule 23 grants courts no license to engage in free-ranging merits 3 inquiries at the certification stage.” Amgen, Inc. v. Conn. Ret. Plans & Trust Funds, 4 — U.S. —, 133 S. Ct. 1184, 1194–95 (2013). “Merits questions may be considered 5 to the extent—but only to the extent—that they are relevant to determining whether 6 the Rule 23 prerequisites for class certification are satisfied.” Id. at 1195. 7 DISCUSSION 8 Plaintiffs move to certify a class consisting of all persons who purchased 9 Bridgepoint common stock between May 3, 2011, and July 13, 2012, excluding 10 Defendants, directors and officers of Bridgepoint, and their families and affiliates. 11 (Doc. No. 70-1 at 1 & n.1.) Defendants do not oppose class certification generally, 12 but they contend that the class period must end on July 9, 2012, because Plaintiffs 13 cannot show predominance after that date. (Doc. No. 72.) The court addresses this 14 issue and the other Rule 23 requirements below. 15 A. Rule 23(a) Requirements 16 1. 17 Rule 23(a)(1) requires that the class be “so numerous that joinder of all Numerosity 18 class members is impracticable.” Fed. R. Civ. P. 23(a)(1). Plaintiffs assert, and 19 Defendants do not dispute, that Bridgepoint had more than 51.3 million shares of 20 common stock outstanding during the proposed class period, a reported trading 21 volume of more than 160.4 million shares, and an average reported daily trading 22 volume of more than 529,000 shares. (Doc. No. 70-1 at 7–8.) Joinder of individual 23 class members of a class this size would undoubtedly be impracticable. 24 2. 25 Rule 23(a)(2) requires that “there are questions of law or fact common to the Commonality 26 class.” Fed. R. Civ. P. 23(a)(2). For this inquiry, “even a single common question 27 will do.” Wal-Mart Stores, 131 S. Ct. at 2556 (brackets and internal quotation 28 marks omitted). Here there are a number of common questions, including whether -7- 12cv1737 1 Bridgepoint made false statements, whether those statements were material, whether 2 they were intentionally false, and whether they caused class members’ losses. 3 3. 4 Rule 23(a)(3) requires that “the claims or defenses of the representative Typicality 5 parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). 6 “[R]epresentative claims are ‘typical’ if they are reasonably coextensive with those 7 of absent class members; they need not be substantially identical.” Hanlon v. 8 Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). Here, Plaintiffs’ claims arise 9 from the same events and conduct that gave rise to the claims of other class 10 members. They are, therefore, typical of the class. 11 4. 12 Rule 23(a)(4) requires that “the representative parties will fairly and Adequacy of Representation 13 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Resolution 14 of two questions determines legal adequacy: (1) do the named plaintiffs and their 15 counsel have any conflicts of interest with other class members and (2) will the 16 named plaintiffs and their counsel prosecute the action vigorously on behalf of the 17 class?” Hanlon, 150 F.3d at 1020. 18 Plaintiffs assert, and the court agrees, that these requirements are met. As 19 Plaintiffs point out, there is no antagonism because all class members have allegedly 20 suffered losses due to the same conduct, and they are institutional investors who 21 have every incentive to actively litigate this case. Plaintiffs submitted declarations 22 attesting to their commitment to vigorously litigating this case, and their counsel, 23 Robbins Geller Rudman & Dowd LLP, has documented its experience in litigating 24 securities-fraud class actions. 25 B. Rule 23(b)(3) Requirements 26 Rule 23(b)(3) requires “that the questions of law or fact common to class 27 members predominate over any questions affecting only individual members, and 28 that a class action is superior to other available methods for fairly and efficiently -8- 12cv1737 1 adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). 2 1. 3 The predominance analysis “focuses on the relationship between the common Predominance 4 and individual issues.” Hanlon, 150 F.3d at 1022. “When common questions 5 present a significant aspect of the case and they can be resolved for all members of 6 the class in a single adjudication, there is clear justification for handling the dispute 7 on a representative rather than on an individual basis.” Id. 8 To recover damages for violation of § 10(b) and Rule 10b-5, a private 9 plaintiff must prove “(1) a material misrepresentation or omission by the defendant; 10 (2) scienter; (3) a connection between the misrepresentation or omission and the 11 purchase or sale of a security; (4) reliance upon the misrepresentation or omission; 12 (5) economic loss; and (6) loss causation.” Halliburton, 134 S. Ct. at 2407 (internal 13 quotation marks omitted). 14 In the typical securities-fraud case, as in this case, the factual and legal issues 15 related to most of these elements are common to the class, so the requirements for 16 class certification are usually “readily met.” Amchem Prods., Inc. v. Windsor, 521 17 U.S. 591, 625 (1997). Typically, the only individualized issue is damages, which, 18 alone, cannot defeat class treatment under Rule 23(b)(3). See Leyva v. Medline 19 Indus., Inc., 716 F.3d 510, 514 (9th Cir. 2013). 20 The main sticking point in securities-fraud class actions is reliance. To avoid 21 the need to prove the reliance of individual investors, plaintiffs in securities-fraud 22 class actions ordinarily show reliance by establishing “fraud on the market,” which 23 gives rise to a rebuttable presumption of reliance. Halliburton, 134 S. Ct. at 2408. 24 The premise is that “the price of a security traded in an efficient market will reflect 25 all publicly available information about a company,” so that “a buyer of the security 26 may be presumed to have relied on that information in purchasing the security.” 27 Amgen, 133 S. Ct. at 1190. 28 To establish the presumption, a plaintiff must show “(1) that the alleged -9- 12cv1737 1 misrepresentations were publicly known, (2) that they were material, (3) that the 2 stock traded in an efficient market, and (4) that the plaintiff traded the stock 3 between the time the misrepresentations were made and when the truth was 4 revealed.” Halliburton, 134 S. Ct. at 2408. The defendant may rebut the 5 presumption, for example, “by appropriate evidence, including evidence that the 6 asserted misrepresentation (or its correction) did not affect the market price of 7 the defendant’s stock,” id. at 2414 (internal quotation marks omitted), or “by 8 showing that the market was already aware of the truth behind the defendant’s 9 supposed falsehoods and thus that those falsehoods did not affect the market price 10 (the so-called ‘truth-on-the-market’ defense), or . . . that a particular plaintiff would 11 have bought the stock without relying on the integrity of the market price.” Conn. 12 Ret. Plans & Trust Funds v. Amgen, Inc., 660 F.3d 1170, 1174 (9th Cir. 2011). 13 To make use of the presumption at the class certification stage, however, “[t]he 14 only elements a plaintiff must prove . . . are whether the market for the stock was 15 efficient and whether the alleged misrepresentations were public.” Id. at 1177. 16 In this case, Plaintiffs have shown that Defendants’ alleged misrepresen- 17 tations and omissions were publicized in various releases, statements, and on 18 Bridgepoint’s website, and they provided an expert report demonstrating that 19 Bridgepoint common stock traded in an efficient market over the course of the class 20 period. (Doc. No. 70-3.) The court is satisfied, based on the report, that the market 21 was efficient, and Defendants have not offered any contrary evidence or otherwise 22 suggested that the market was inefficient. Accordingly, Plaintiffs have adequately 23 established the prerequisites for invoking the presumption at this stage. 24 Defendants contend, however, that the class period must end on July 9, 25 2012, because the July 13 disclosure was unrelated to student persistence, and the 26 July 9 disclosure fully revealed the alleged truth related to student persistence, 27 so that “Plaintiffs cannot use the fraud-on-the-market presumption of reliance to 28 establish predominance for any investors who purchased Bridgepoint stock after - 10 - 12cv1737 1 July 9, 2012.” (Doc. No. 72.) 2 The court is not persuaded two reasons. First, it is not clear that the July 13 3 disclosure was entirely unrelated to student persistence, as part of the message 4 was that HLC was concerned that Ashford’s resource allocations were not 5 “sufficiently aligned with educational purposes and objectives in the areas of 6 student completion and retention.” (Emphasis added.) Second, as Plaintiffs point 7 out, a truth-on-the-market defense cannot be used to rebut the presumption of 8 reliance at the class-certification stage because the defense “is a method of refuting 9 an alleged representation’s materiality,” and it is well established that “a plaintiff 10 need not prove materiality at the class certification stage to invoke the 11 presumption.” Amgen, 660 F.3d at 1177 (affirming the district court’s refusal to 12 consider a truth-on-the-market defense at the class- certification stage), aff’d, 133 13 S. Ct. at 1203. Halliburton did not change that. See Halliburton, 134 S. Ct. at 2416 14 (“[M]ateriality . . . should be left to the merits stage, because it does not bear on the 15 predominance requirement of Rule 23(b)(3).”); see also Aranaz v. Catalyst Pharm. 16 Partners, Inc., 302 F.R.D. 657, 669–71 (S.D. Fla. 2014) (rejecting the applicability 17 of the truth-on-the-market defense at class certification post-Halliburton for this 18 reason). 19 Accordingly, for now, the class period is May 3, 2011, through July 13, 2012. 20 If it is later shown that the presumption does not apply after July 9, 2012, the court 21 can modify the class period at that time. See Fed. R. Civ. P. 23(c)(1)(C) (“An order 22 that grants or denies class certification may be altered or amended before final 23 judgment.”). 24 2. 25 Whether a class action is the superior method of litigation depends on Superiority 26 (1) the class members’ interests in individually controlling the prosecution or 27 defense of separate actions; (2) the extent and nature of any litigation concerning 28 the controversy already begun by or against class members; (3) the desirability or - 11 - 12cv1737 1 undesirability of concentrating the litigation of the claims in the particular forum; 2 and (4) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3). 3 In this case, given the identical claims shared by members of the class, 4 the relatively small size of the typical claim, and the geographical dispersion of 5 the class members, a class action is superior to individual litigation. See Epstein v. 6 MCA, Inc., 50 F.3d 644, 668 (9th Cir. 1995) (shareholder claims based on identical 7 facts and law fit Rule 23’s requirements “like a glove”), rev’d on other grounds sub 8 nom. Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367 (1996). 9 C. 10 Appointment of Class Representatives Plaintiffs ask to be appointed as class representatives. This inquiry, which 11 is governed by Rule 23, is distinct from the inquiry regarding their appointment 12 as lead plaintiffs under the PSLRA. See In re Chiron Corp. Sec. Litig., 2007 WL 13 4249902, at *13 (N.D. Cal. Nov. 30, 2007) (reviewing authorities on the issue). 14 The court has concluded that Plaintiffs will adequately represent the class under 15 Rule 23’s requirements. Accordingly, the court appoints City of Atlanta General 16 Employees Pension Fund and Teamsters Local 677 Health Services & Insurance 17 Plan as class representatives. 18 D. Appointment of Class Counsel 19 Rule 23(g) requires the court to appoint class counsel when certifying a 20 case as a class action. The court must consider “(i) the work counsel has done in 21 identifying or investigating potential claims in the action; (ii) counsel’s experience 22 in handling class actions, other complex litigation, and the types of claims asserted 23 in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources 24 that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g). Having 25 reviewed their submissions, the court is satisfied that Plaintiffs’ counsel should 26 serve as class counsel. Accordingly, the court appoints Robbins Geller Rudman 27 & Dowd LLP as class counsel. 28 /// - 12 - 12cv1737 1 2 CONCLUSION The court GRANTS Plaintiffs’ motion for class certification, (Doc. No. 70). 3 The court appoints City of Atlanta General Employees Pension Fund and Teamsters 4 Local 677 Health Services & Insurance Plan as class representatives, and appoints 5 their counsel, Robbins Geller Rudman & Dowd LLP, as class counsel. 6 IT IS SO ORDERED. 7 DATED: January 15, 2015 8 9 Hon. Jeffrey T. Miller United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 - 12cv1737
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