IN RE CENTRAL EUROPEAN DISTRIBUTION CORP. SECURITIES LITIGATION, No. 1:2011cv06247 - Document 60 (D.N.J. 2012)
Court Description: OPINION. Signed by Chief Judge Jerome B. Simandle on 8/22/2012. (dmr)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY STEAMFITTERS LOCAL 449 PENSION FUND, Individually and on Behalf of All Others Similarly Situated, : No. Civil Action 11 6247 (JBS/KMW) No. Civil Action 11-7085 (JBS/KMW) Plaintiff, v. CENTRAL EUROPEAN DISTRIBUTION CORPORATION, et al., Defendants. TIN SCHULER, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. CENTRAL EUROPEAN DISTRIBUTION CORPORATION, et al., Defendants. OPINION APPEARANCES: Steven J. Toll Daniel S. Sornmers Julie C. Reiser S. Douglas Bunch Cohen, Milstein, Sellers & Toll, 1100 New York Avenue, NW Suite 500 West Washington, DC 20005 -and- PLLC Michael Benjamin Eisenkraft Cohen, Milstein, Sellers & Toll, PLLC 88 Pine Street 14th Floor New York, NY 10005 -andMark R. Rosen Barrack, Rodos, & Bacine One Gateway Center Suite 2600 Newark, NJ 07102 Attorneys for Movants Arkansas Public Employees Retirement and Fresno County Employees Retirement Association Tina Moukoulis Deborah Gross Law Office of Bernard M. Gross, PC John Wanamaker Building Suite 450 Juniper and Market Streets Philadelphia, PA 19107 -and Darren Robbins Tricia McCormick Robbins Geller Rudman & Dowd LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Attorneys for Movant the Prosperity Group Kenneth J. Cesta Hoagland, Longo, Moran, Dunst & Doukas, LLP 40 Paterson St. New Brunswick, NJ 08901 -andRobert J. Del Tufo Skadden, Arps, Slate, Meagher & Flom, LLP Four Times Square New York, NY 10036 Attorneys for Defendant Central European Distribution Corporation Diane P. Sullivan Weil Gotshal & Manges LLP 301 Garnegie Center Suite 303 Princeton, NJ 08540 Attorney for Defendants Christopher Biederman and William V. Carey 2 Chief Judge: SIMANOLE, I. INTRODUCTION These cases are federal securities class actions brought by shareholders in the Central European Distribution Corporation under § 10(b) U.S.C. and 20(a) § 78j(b) thereunder. of the Securities Exchange Act, and 78t(a), 15 and Rule l0b-5 promulgated Presently various parties are vying to be appointed as lead plaintiffs, together with lead counsel, Private Securities Litigation Reform Act 78u-4 (a) (1) and pursuant to the ( PSLRA ), 15 U.S.C. § (a) (3) (B) (I). This matter comes before the Court on review of the Report and Recommendation ( R & R ) Williams on June 13, 2012. filed by Magistrate Judge Karen M. [Docket Item 49.] The R & R addresses the following motions: Motions to Appoint Lead Plaintiff, Appoint Counsel, and Consolidate Related Actions filed by the Arkansas Public Employees Retirement System and the Fresno County Employees Retirement Association December 23, 2011 (collectively Arkansas ) on [Docket Item 4]; and Motions to Consolidate Cases, Appoint Lead Plaintiff, and Appoint Counsel filed by the This opinion involves two cases, Steamfitters Local 449 Pension Fund v. Central European Distribution Corp., Civ. No. 116247 commenced on October 24, 2011 and Schuler v. Central European Distribution Corp., Civ. No. 11-7085 commenced on November 15, 2011. As discussed infra, these cases will be consolidated. The filings on the two dockets relating to the motions currently at issue are identical. Therefore, the Court will only reference docket items on the first-filed case, Civ. No. 11-6247, unless otherwise noted. 3 Prosperity Group on December 23, The R & R recommends that 2011 (1) the Court should consolidate Steamfitters Local 449 Pension Fund v. Distribution Corp., 2011, No. and Schuler v. Civ. No. [Docket Item 9]. Central European 11-6247 commenced on October 24, Central European Distribution Corp., 11-7085 commenced on November 15, 2011; (2) Civ. Arkansas Motion for Appointment as Lead Plaintiff should be granted, and the Prosperity Group s competing Notion for Appointment as Lead Plaintiff should be denied; and (3) Arkansas selection of Cohen Milstein Sellers & Toll PLLC as lead counsel and Barrack Rodos & Bacine as liaison counsel should be approved. The Motion for Consolidation is unopposed and meritorious. The principal dispute lies with the competing motions to appoint lead plaintiff. The Court accepts the Magistrate Judge s recommendation that Arkansas should be appointed lead plaintiff because the Prosperity Group is subject to unique defenses. Prosperity Group has not objected to Arkansas counsel, choices regarding and the Court accepts the Magistrate Judge s recommendation to approve Arkansas selection of Cohen Milstein Sellers & Toll as lead counsel and Barrack Rodos & Bacine as liaison counsel. II. BACKGROUND A. The Factual Background Plaintiff Steamfitters Local 449 Pension Fund filed a 4 Complaint against the Central European Distribution Corporation ( CEDC ), Christopher Biedermann, and William Carey in the District of New Jersey on October 24, 2011. [Docket Item 1.] Plaintiff Tim Schuler filed a Complaint against the same Defendants on November 15, 1.] 2011. [Civ. No. 11-7085, Docket Item The two complaints make similar factual and legal allegations. Defendant William V. Carey was, Chairman, Chief Executive Officer, No. 11-6247, Compl. ¶ 14.) at all relevant times, and President of CEDC. (Civ. Defendant Christopher Biedermann was, at all relevant times, Vice President and Chief Financial Officer of CEDC. (Id. ¶ 15.) The action is a federal securities action on behalf of purchasers of CEDC common stock between August 5, February 28, 2011 (the class period ). 2010 and ( ¶ 1.) CEDC operates primarily in the alcohol beverage industry. ¶ 2.) It is one of the largest vodka producers in the world and has the largest integrated spirit business in Central and Eastern Europe. ¶ 2.) The Complaint alleges, essentially, that Defendants issued materially false and misleading statements regarding CEDC s business and prospects that deceived the public, artificially inflated the price of CEDC publicly traded securities, and caused the Plaintiff and other members of the public to purchase the 5 stock at artificially inflated prices. (j ¶ 16.) Specifically, Defendants allegedly failed to disclose double digit declines in CEDC s vodka portfolio, growing loss of market share, impairment charge that CEDC recorded late, 2 an adverse effects from a new product launch, and an excise tax issue impacting production in Russia. (Id. ¶3I 24, 29, 31.) Plaintiff Tim Schuler s Complaint also alleges that CEDC s financial statements violated federal regulations by failing to comply with Generally Accepted Accounting Principles ( GAAP ) . (Civ. No. 11-7085, Compl. ¶J[ 32-34.) B. Jurisdiction and Venue The Court has jurisdiction over this action because it arises under the Securities Exchange Act of 1934. 6247, Compl. ¶ 1.) under 28 U.S.C. (Civ. No. 11- The Court has subject matter jurisdiction § 1331. Venue is proper because many of the alleged acts and practices of which Plaintiff complains occurred in this district. (Id. ¶ 10.) In addition, Defendant CEDC is a Delaware corporation with its principal executive offices located An 2 impairment charge is often defined as: A specific reduction on a company s balance sheet that adjusts the value of a company s goodwill. Due to accounting rules, a company must monitor and test the value of its goodwill, to determine if it is overvalued. If it is, the company must issue an impairment charge on its balance sheet, to take into account the reduced value of the goodwill. In re Thornburg Mortcj., Inc. Sec. Litig., 695 F. Supp. 2d 1165, 1210 No.15 (D.N.M. 2010). 6 in Mt. Laurel, New Jersey. (Civ. Action 11-7085, Compl. ¶ 13.) C. Procedural History i. The Motions at Issue Presently before the Court are the following motions: Notions to Appoint Lead Plaintiff, Appoint Counsel, and Consolidate Related Actions filed by Arkansas on December 23, 2011 [Docket Item 4]; and Motions to Consolidate Cases, Appoint Lead Plaintiff, and Appoint Counsel filed by the Prosperity Group on December 23, 2011 [Docket Item 9]. The Motions to Consolidate are unopposed. The Motions to Appoint Lead Plaintiff have generated fierce debate. 3 ii. The Two Movants for Appointment as Lead Plaintiff In this section, the Court describes both lead plaintiff movants and the arguments each made in its briefing describing why it believes it is the most meritorious lead plaintiff. a. On December 23, The Prosperity Group 2011, the Prosperity Group filed a Motion for Appointment as Lead Plaintiff and requested approval of its selection of Robbins Geller Rudman & Dowd LLP and the Law Offices of Bernard M. Item 10.] Gross, P.C. as lead counsel for the class. [Docket The Prosperity Group is one of the largest Russia For 3 ease of reference, because the briefing history is extensive and complicated, the Court created an appendix with a chart listing the docket number, filing date, full title, and abbreviated title for each brief. The Court will use the abbreviated titles to reference and cite the briefs. 7 focused investors in the world. (Prosperity Group s Lead Plaintiff Memorandum, at 2.) It purchased over 1.1 million shares of CEDC common stock during the class period and alleges resultant losses of almost $13 million. (j at 3.) Arkansas has acknowledged that the Prosperity Group suffered more losses than any other investor. (E.g. Arkansas Reply to Prosperity Group s Opposition re Lead Plaintiff, at 1.) The Prosperity Group consists of nine related investment entities: Prosperity Capital Management Limited ( PCM ) is the discretionary investment manager for the Russian Prosperity Fund, the Prosperity Cub Fund, the Prosperity Quest Fund, and the Prosperity Russia Domestic Fund Limited (collectively, the PCM Managed Funds ). (Prosperity Group s Lead Plaintiff Memorandum, at 1, no.2.) Each of the PCM Managed Funds has a wholly owned subsidiary (collectively, the wsubsidiaries9: Protsvetaniye Holdings Limited is a wholly owned subsidiary of the Russian Prosperity Fund; Medvezhonok Holdings Limited is a wholly owned subsdiary of the Prosperity Cub Fund; Lancrenan Investments Limited is a wholly owned subsidiary of the Prosperity Quest Fund; and Roselia Limited is a wholly owned subsidiary of Prosperity Domestic Russia Fund. (jj The following chart elucidates this structure: 8 The Prosperity Group PCM Collectively, the PCM Managed Funds PCM s managing director Oliver Sinton executed a certification on December 15, 2011 ( Sinton Cert. ) stating that the Prosperity Group is competent to serve as lead plaintiff. [Docket Item 11-1.] Sinton certified that each of the PCM Managed Funds and the Subsidiaries authorized PCM, discretionary investment manager, 9 in its capacity as to pursue any claims, demands, or causes of action arising from the purchases of CEDC common stock . . . . (Sinton Cert. not an assignment of title. 31, Mar. 27, ¶ 9.) This grant of authority was (Docket Item 50 1, oral arg. tr. at 2012.) The entities that actually purchased or owned CEDC stock, and thus suffered losses, Subsidiaries. 31.) during the class period are the (Sinton Cert. ¶ 6; see also oral arg. tr. at 29- The Subsidiaries are therefore the only entities within the Prosperity Group that were injured by Defendants actions. PCM has authority to bring a lawsuit, ownership interest in the claims. oral arg. tr. at 29-31.) (Sinton Cert. alleged but it has no ¶ 9; see also The PCM Managed Funds have neither authority to bring lawsuits nor title to the claims. (Oral arg. tr. at 31.) Arkansas opposed the Prosperity Group s Motion for Appointment as Lead Counsel and asserted that the Prosperity Group was subject to unique defenses that would preclude sufficient performance as lead plaintiff. asserted that (1) Specifically, Arkansas PCM lacked standing because it had no ownership interest in the underlying claims and therefore had not suffered an injury-in-fact; (2) the PCM Managed Funds had neither standing nor authority to sue because they had no title to the claims and no power of attorney; (3) the Subsidiaries did not have authority to sue because they had delegated their authority to PCM; 10 (4) the Prosperity Group contained too many entities and was too large to effectively manage the litigation; and (5) the Prosperity Group s ownership stakes and board seats at some of Russia s largest vodka retailers made it subject to unique defenses regarding its knowledge of CEDC s alleged misrepresentations. (Arkansas Opposition to Prosperity Group s Appointment as Lead Plaintiff.) b. Arkansas The second, and only other, movant for lead Plaintiff status was the Arkansas Public Employees Retirement System and the Fresno County Employees Retirement Association (collectively Arkansas ), which timely moved to be appointed lead plaintiff on December 23, 2011. [Docket Item 4.] Arkansas alleged losses during the class period totaled $1,122,132.00. (Arkansas Lead Plaintiff Memorandum, at 2.) Gail Stone, the Executive Director of the Arkansas Public Employees Retirement System, and Becky Van Wyk, the Assistant Retirement Administrator of the Fresno County Employees Retirement Association, executed a certification on December 22, 2011, describing Arkansas competence to serve as lead plaintiff. [Docket Item 7.] Arkansas also moved the Court to approve its selection of Cohen Milstein Sellers & Toll PLLC as Lead Counsel and Barrack, Rodos & Bacine as Liaison Counsel. [Docket Item 4.] In its Opposition to Arkansas Appointment as Lead Plaintiff, the Prosperity Group did not challenge the typicality 11 or adequacy of Arkansas claims, did not present any unique defenses to which Arkansas might be subject, challenge Arkansas counsel selections. and did not It simply asserted that it is the presumptive lead plaintiff because it has the largest financial loss and meets the requirements of Rule 23 (a) It noted . that its losses were more than 10-times larger than the other lead plaintiff movant (Prosperity Group s Opposition to Arkansas Appointment as Lead Plaintiff, at 2 (emphasis omitted)) and that its claims were typical and adequate. iii. The Magistrate Judge s Report and Recommendation On March 27, 2012, Magistrate Judge Williams held oral argument regarding these motions and, the Report and Recommendation on June 13, ( R & R ) 2012, she filed [Docket Item 49] that is presently before the Court. The R & R recommended that the Court should consolidate the two actions proposed for consolidation: Pension Fund v. Central European Distribution Cop, 6247 commenced on October 24, European Distribution Corp., November 15, Steamfitters Local 449 2011. 2011, and Schuler v. Civ. No. Civ. No. 11- Central 11-7085 commenced on The R & R found that consolidation was appropriate because [b]oth actions allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act . . . and make identical claims against the same defendant for the same actions during the same period of time. 12 (R & R at 5.) The R & R also recommended that Arkansas Motion for Appointment as Lead Plaintiff should be granted, and the Prosperity Group s Motion for Appointment as Lead Plaintiff should be denied because the Prosperity Group was subject to unique defenses regarding its standing. The R & R found that under the Private Securities Litigation Reform Act s ( PSLRA ) procedure for appointing a lead plaintiff, the Prosperity Group would be the presumptive lead plaintiff because it suffered the most financial losses and made a prima facie showing of adequacy and typicality. (j at 22-23.) The R & R disregarded Arkansas argument that the Prosperity Group was too large to effectively manage the litigation, finding that the Prosperity Group was composed of close knit, cohesive investors. (.I at 24, No. 10.) The R & R also disregarded Arkansas argument that PCM had access to inside information about Russian vodka retailers, finding that Arkansas ha[d] not presented adequate proof to substantiate its allegations. . . . (IdJ But the R & R still found that Arkansas should be appointed lead plaintiff because the Prosperity Group would be subject to unique defenses regarding its standing: [I]t would be unwarranted to subject class members to a risk of prejudice stemming from the Prosperity Group s unique Article III standing issues, and . . . any presumption in favor of the Prosperity 13 Group has been rebutted. . . ( at 28.) . In addition to finding that the Prosperity Group was subject to unique defenses regarding its standing, the R & R also found that the Prosperity Group lacked standing under Article III of the United States Constitution. (R & R at 17.) It noted that, an investment advisor without title to the underlying claim, had not suffered an injury-in-fact. at 16-17.) as PCM The R & R summarized recent developments in standing law in securities cases, discussed infra, and found that plaintiffs must have legal title to, or some type of proprietary interest in, the claim they are litigating in order to satisfy the minimum requirement for injury-in-fact. (I at 16.) It also determined that the PCM Managed Funds lacked both title to the claims and authority to sue; and, while the Subsidiaries had legal title, they lacked authority to sue because they had delegated their power to sue to PCM. (j at 17-18.) The R & R concluded [b]ecause PCM and the Funds do not have Article III standing, and the Subsidiaries have apparently delegated their ability to sue to PCM, whole, the Court finds that the Prosperity Group, cannot satisfy the Article III constitutional requirements of standing. Funds as a () The R & R clarified that PCM s and the clear lack of standing is a sufficient basis to find that the Prosperity Group, & R at 18, No. 6.) as a whole, In other words, 14 lacks Article III standing. the R & R s finding that the (R Subsidiaries may have standing did not change its holding that five of the Prosperity Group s nine entities lacked standing. The Magistrate Judge also declined to appoint some of the Prosperity Group entities in lieu of the group as a whole. & The R R noted that permitting the Prosperity Group to modify its leadership structure or composition at this stage would be akin to permitting a post-filing assignment for the purpose of curing deficient standing, against. . . . a course of action specifically advised (j) In addition, it found that the Subsidiaries lacked the authority to sue because they had apparently delegated their ability to sue to PCM. . . ( at 17.) The R & R then examined Arkansas potential to act as lead plaintiff and found that it satisfied typicality and adequacy requirements and that Arkansas s financial interest in the litigation should ensure vigorous advocacy on behalf of the class. at 29.) The R & R also approved Arkansas selection of Cohen Milstein as lead counsel and Barrack Rodos as liaison counsel, finding that these law firms are sufficiently experienced in securities class action litigation. 30.) . . . at The Magistrate Judge thus recommended that the Court appoint Arkansas to be lead plaintiff. (R & R at 30.) iv. Objections to the Report and Recommendation and Subsequent Briefing On June 28, 2012, the Prosperity Group filed Objections to the Report and Recommendation. [Docket Item 50.] 15 The Prosperity Group objected to Judge Williams illogical conclusion that neither the investment manager nor its affiliated investment entities possess standing. (Prosperity Group s Objections to R & R, at i.) It argued that, if the Court refused to appoint the Prosperity Group, then the Subsidiaries should be appointed because they suffered the largest financial losses and have authority to bring suit. (j at 7-8.) The Prosperity Group asserted that its inclusion of both PCM and its affiliated PCM Managed Funds and Subsidiaries ensured that it would satisfy standing requirements regardless of recent developments in standing law. (fl,.. at 5 6.) In addition, it asserted that case law allows the Court to appoint some, but not all, members of a lead plaintiff group, thus showing that the Court should appoint the Subsidiaries. (fl. at 10.) On July 12, 2012, Arkansas filed a reply brief supporting the Magistrate Judge s findings in the R & R. [Docket Item 54.] Arkansas noted the Prosperity Group s Objections did not address the R & R s finding that class members should not be subject to the expense of litigating defenses unique to the Prosperity Group. (Arkansas Response to Prosperity Group s Objections to R & R, at 23.) Arkansas also argued that the Prosperity Group cannot, at this stage, move to appoint the Subsidiaries as lead plaintiff because the Prosperity Group did not move to appoint the 16 Subsidiaries as lead plaintiff before the December 23, filing deadline. (Arkansas Objections to R & R, 2011 Response to Prosperity Group s at 18-19.) Arkansas noted that the statutory deadline for filing a lead plaintiff motion has expired and filing one now is strictly prohibited. (j at 19.) It also noted that the Prosperity Group did not move to appoint the Subsidiaries alone, as opposed to the Subsidiaries together with the PCM managed funds, as lead plaintiff until it filed objections to the R & R. () And Arkansas argued that the Subsidiaries never submitted the certification required under the PSLRA and that the Sinton certification, and the Prosperity Group, filed on behalf of PCM does not contain the mandatory representations that the PSLRA would require from the Subsidiaries. (Id. On July 24, at 3, 2012, no.2.) the Prosperity Group filed a letter with the Court requesting permission to file a reply to Arkansas Response to the Prosperity Group s Objections. 4 [Docket Item 57.] The Federal Rules of Civil Procedure permit written objections to a magistrate judge s report and recommendation and responses to those objections, but they do not mention replies. Fed. R. Civ. P. 72 (b) (2) The Prosperity Group requested leave to file a reply. The Court reviewed the Prosperity Group s proposed Reply [Docket Item 57-1] and quoted from it in this Opinion. Leave is therefore granted. In its letter, the Prosperity Group also requested oral argument before the Court. On July 27, 2012, Arkansas filed a letter in response and, inter alia, suggested that another oral argument is unnecessary. [Docket Item 58.] The Court agrees. There were three rounds of briefing before Magistrate Judge Williams held oral argument on March 27, 2012 and, including the Prosperity Group s reply, three rounds of . 17 Attached to the letter was the Prosperity Group s Reply. Item 57-1.] In its Reply, [Docket the Prosperity Group argued that [t]here can be no legitimate question that the Subsidiaries timely moved to be appointed lead plaintiff because the Subsidiaries have always been included as part of the Prosperity Group. (Prosperity Group s Reply re R & R, at 2..) In addition, it argued that there is no question that the Subsidiaries timely submitted the certification required by the PSLRA because Sinton was authorized to sign the certification on behalf of all the entities comprising the Prosperity Group. . . . (j at 10.) further explained that the Subsidiaries have no employees, Mr. Sinton conducts all operations on their behalf. It and ( at 10 11.) III. DISCUSSION The Court will now proceed to its analysis of Judge Williams Report and Recommendation. The Court will adopt all of the Magistrate Judge s recommendations regarding the motions at briefing after Judge Williams filed the R & R. In addition, the Court has reviewed the oral argument transcript and sees no need to subject the parties, many of whom traveled great distances to attend on March 27th, to another oral argument on the same issues. The Judge reviewing an R & R does not normally convene a second hearing, as Local Civil Rule 72.1(c) (2) provides in relevant part: The Judge, however, need not normally conduct a new hearing and may consider the record developed before the Magistrate Judge, making his or her own determination on the basis of that record. The Judge may also receive further evidence, recall witnesses, or recommit the matter to the Magistrate Judge with instructions. 18 issue. But it will not adopt the Magistrate Judge s findings that the Prosperity Group lacks standing and that the Subsidiaries lack authority to sue; those issues are not ripe for review and deciding them is beyond the scope of the motions before the Court. A. Standard of Review The standard of review of a magistrate judge s determination depends upon whether the motion is dispositive or non dispositive. With non-dispositive motions decided under 28 U.S.C. § 636(b) (1) (A), the district court may modify the magistrate s order only if the district court finds that the magistrate s ruling was clearly erroneous or contrary to law. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1120 statute outlining magistrate judges (3d Cir. authority, 28 U.S.C. distinguishes between regular pretrial matters, magistrate judge may decide, 1986). The § 636, which a and those dispositive matters which have a preclusive effect on the parties, about which the magistrate judge may only make a recommendation to the court. N.L.R.B. v. Frazier, 966 F.2d 812, 816 (3d Cir. 1992). This distinction ensures that Article III judges retain adjudicatory power over dispositive motions. jçj With respect to dispositive motions decided under 28 U.S.C. § 636(b) (1) (B), the district court must review the magistrate judge s report and recommendation de novo. 28 U.S.C. 19 § 636(b) (1) (C). Whether the subject matter of a motion is dispositive or non-dispositive can be unclear. One court has found that motions to appoint lead plaintiff, appoint counsel, all non dispositive. Litig., 2006) In re Comverse Tech., 06-CV-1849 NGG RER, ( The parties 1 and consolidate are Inc. 2006 WL 3511375 *2 Derivative (E.D.N.Y. non-dispositive motions to . . . Dec. 5, appoint a lead plaintiff and lead counsel were thus properly addressed by [Magistrate] Judge Reyes. ). listed under the 28 U.S.C. In addition, these motions are not § 636 list of dispositive motions and they do not seem to have preclusive effects: None of these motions will preclude any party s right to seek relief from Defendants. And there have been District of New Jersey cases in which magistrate judges have appointed interim class counsel before class certification occurred. E.g, Agostino v. Quest Diagnostics Inc., 256 F.R.D. Verizon Wireless Services, 2008) * 437, LLC, 446 (D.N.J. 248 F.R.D. 2009); Waudby v. 173, 175 (D.N.J. Such appointment seems similar to the motions at issue here. But not all dispositive motions are listed under 28 U.S.C. 636. For example, motions to remand are not listed, but they are dispositive in the Third Circuit. 142, § 145 (3d Cir. 1998) . In re U.S. Healthcare, 159 F.3d Motions to appoint lead counsel and lead plaintiff resemble class certification motions to the extent that they consider issues of typicality and adequacy under Rule 23, 20 and 28 U.S.C. 636(b) (1) (A) lists a motion to dismiss or permit the maintenance of a class action as a dispositive motion subject to de novo review. civil Rule 72.1(a) (2) 28 U.S.C. 636(b) (1) (A); (listing class certification motions as dispositive), Schnall v. Amboy Nat l Bank, 17879 July 12, (D.N.J. see also Local 2002) 2002 U.S. Dist. LEXIS (district court reviewed magistrate judge s Report and Recommendation assessing class certification motion) . In short, it is unclear whether motions to appoint lead plaintiff and lead counsel are dispositive or non dispositive, and arguments could be made both ways. The Court need not conclusively decide here whether motions to appoint lead plaintiff and lead counsel are dispositive or non-dispositive because, even if they are non-dispositive, a magistrate judge s legal conclusions on a non-dispositive motion will be reviewed de novo. Doe v. Hartford Life & Acc. Ins. Co., 237 P.R.D. Ltd. v. 545, 548 (D.N.J. Teva Pharmaceuticals USA, 2009) 2006); Inc., see also Eisai Co., 629 F. Supp. (legal conclusions reviewed de novo) . 2d 416, 424 (D.N.J. Judge Williams made legal conclusions about case law regarding standing and unique defenses in securities class action litigation, and the Court must review those conclusions de novo. In addition, the District Court must make a de novo determination of those portions of the magistrate judges s report to which a litigant has objected. 21 28 U.S.C. § 636(b) (1) (C); Fed.R.Civ.P. 72(a); Local Civil Rule 72.1(c) (2). The Prosperity Group has objected to Magistrate Judge Williams recommendation, lead plaintiff thus necessitating de novo review. The Court must also review Judge Williams findings that the Prosperity Group lacks standing and that the Subsidiaries lack authority to sue under the de novo standard because those determinations would have preclusive effects. B. Analysis i. Motion to Consolidate The Court accepts the Magistrate Judge s recommendation to consolidate Steamfitters Local 449 Pension Fund v. European Distribution Corp., October 24, Corp., Civ. No. 2011 and Schuler v. Civ. No. Central 11-6247 commenced on Central European Distribution 11-7085 commenced on November 15, 2011. This recommendation is meritorious and unopposed. The short caption for the consolidated action will hereafter be In re Central European Distribution Corp. cv-6247 Securities Litigation, Civ. No. 11- (JBS-KMW) ii. Cross-Motions to Appoint Lead Plaintiff The Court adopts the Magistrate Judge s recommendation to appoint Arkansas as lead plaintiff and deny the Prosperity Group s motion for appointment as lead plaintiff. Even though the Prosperity Group is the presumptive lead plaintiff, to unique defenses that will prejudice the class. 22 it is subject a. The Process for Appointing a Lead Plaintiff The Private Securities Litigation Reform Act ( PSLRA ) outlines a process for selecting a lead plaintiff with the goal of finding a lead plaintiff who can vigorously prosecute the class interests. F.3d 173, 192 See e.g. (3d Cir. In re Cendant Corp. 2005) Sec. Litig., 404 ( [T]he PSLRA strives to ensure that the lead plaintiff will have both the incentive and the capability to supervise its counsel in the best interests of the class ) . Appointing a lead plaintiff involves a two-step process: the court first identifies the presumptive lead plaintiff, and then determines whether any member of the putative class has rebutted the presumption. In re Cendant Corp. 201, 262 (3d Cir. Litig., 264 F.3d 2001). The Court must adopt a presumption that the most adequate plaintiff is the person or group . . . that . . . has the largest financial interest in the relief sought by the class; and otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure. 15 U.S.C. 78u 4 (a) (3) (B) (iii) lead plaintiff, . For purposes of identifying the presumptive the Court must determine whether the movant with the largest financial interest has made a prima facie showing of typicality and adequacy. In re Cendant Corp. 201, 263 § (3d Cir. 2001) . Litig., 264 F.3d If the movant with the largest financial interest makes that prima facie showing, 23 it will be the presumptive lead plaintiff. Once a presumptive lead plaintiff is identified, the Court then determines whether the presumption has been rebutted. The presumption may be rebutted upon proof that the presumptively most adequate plaintiff 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) (bb). The Third Circuit has recognized the challenge presented by a defense unique to a class representative the representative s interests might not be aligned with those of the class, and the representative might devote time and effort to the defense at the expense of issues that are common and controlling for the class. Beck v. Maximus, Inc., 457 F.3d 291, 297 (3d Cir. 2006). A proposed class representative is neither typical nor adequate if the representative is subject to a unique defense that is likely to become a major focus of the litigation. at 301. There is no requirement at this early stage to prove a defense, only to show a degree of likelihood that a unique defense might play a significant role at trial. . . . The point is not to adjudicate the case before it has even begun, but rather to protect the absent class members from the expense of litigating defenses applicable to lead plaintiffs but not to the class as a whole. In re Netflix, Inc., Dist. LEXIS 59465 26, (N.D. Cal. Apr. 24 Sec. Litig., 2012) . 2012 U.S. If the presumptive lead plaintiff is subject to unique defenses that are likely to become a major focus at litigation, then the presumption is rebutted and the Court must identify another lead plaintiff. b. The Prosperity Group Is the Presumptive Lead Plaintiff, But It Is Subject to Unique Defenses The Court accepts the Magistrate Judge s finding that the Prosperity Group is the presumptive lead plaintiff. It suffered the most financial losses and it made a prima facie case of adequacy and typicality. (R & R at 23.) But Arkansas has successfully rebutted the presumption by showing that the Prosperity Group is subject to unique defenses. In order to have Article III standing, adequately establish, a plaintiff must inter alia, an injury in fact (i.e., a concrete and particularized invasion of a legally protected interest). Sprint Communications Co., Inc., 554 U.S. 269, 273 74 L.P. v. APCC Services, (2008). District courts in the Third Circuit have previously allowed investment advisors to bring suits on behalf of their clients. E.g. Marden v. 2007); 1, Select Medical Corp., 246 F.R.D. 480 (E.D.Pa see also Prosperity Group s Lead Plaintiff Memorandum at no.2. But recent case law has challenged the premise that an investment advisor has standing, finding instead that an investment advisor has not suffered an injury-in-fact. The Supreme Court recently held that an assignee has standing because it has legal title to the claim, and therefore it has legal title 25 to the injury-in-fact that occurred. v. APCC Servs., Inc., 554 U.S. 269 Sprint Communic ns Co., (2008). After Sprint, Second Circuit decided whether an investment advisor, L.P. the who has authority to make investment decisions and a power of attorney, has standing to bring securities lawsuits when it does not own the underlying securities. W.R. Deloitte & Touche LLP, Huff Asset Mgmt. 549 F.3d 100, 103 (2d Cir. Co., LLC v. 2008). The Huff court held that an investment advisor did not have such authority: Sprint makes clear that the minimum requirement for an injury-in-fact is that the plaintiff have legal title to, proprietary interest in, Court continued, or a the claim. .j at 108. And the Huff a mere power-of-attorney . . . does not confer standing to sue in the holder s own right because a power-ofattorney does not transfer an ownership interest in the claim. contrast, By an assignment of claims transfers legal title or ownership of those claims and thus fulfills the constitutional requirement of an injury-in-fact. Ici. The Eastern District of Pennsylvania recently assessed Huff and Sprint and decided that [w]hile Second Circuit decisions are not binding authority, apply its reasoning. Court precedent, . the Court finds Huff persuasive and will . . [T]his Court is bound to apply Supreme which now suggests plaintiffs must have some type of proprietary interest in the claim they are litigating. In re Herley Indus. Secs. Litig., 26 2009 U.S. Dist. LEXIS 91600, *l7_18 (E.D. Pa. Sept. and the Court agrees, 30, 2009) . The Prosperity Group argues, that Herley is not controlling. Group s Reply re R & R, at 11.) But Herley acknowledges that there are recent developments in standing law, developments that began with the Supreme Court s decision in Sprint, that is binding. (Prosperity a decision This Court cannot ignore these developments simply because the Third Circuit has not considered them, particularly when the Court must decide whether standing is a unique defense that is likely to play a major role in litigation, regardless of the outcome. There is no greater impediment to a Plaintiff s ability to prosecute a case than a lack of standing. The issue of standing raises constitutional concerns which are no less critical merely because a case involves a class of plaintiffs. In re Herley Indus. Sept. Secs. 30, Litig., 2009 U.S. actually purchased or owned CEDC stock, arg. tr. are the Subsidiaries. at 29 31.) injury-in-fact. Pa. the only entities that and thus incurred any (Sinton Cert. ¶ 6; see also oral They are the only entities who suffered an PCM has authority to bring a lawsuit, Subsidiaries have not assigned their claims to it. ¶ 9; (E.D. 2009) In terms of the Prosperity Group, losses, *11 Dist. LEXIS 91600, see also oral arg. but the (Sinton Cert. tr. at 29-31.) The PCM Managed Funds have neither authority to bring lawsuits nor title to the claims. 27 (Oral arg. tr. at 31.) Essentially, at least five Prosperity Group members are subject to unique defenses regarding their standing. The Prosperity Group noted, in its memorandum supporting its lead plaintiff motion, that: [S]everal courts have held that the investment entities actually holding the purchased securities are the proper entities with standing to pursue securities claims. Consequently, in an abundance of caution, PCM together with the PCM Managed Funds and the PCM Managed Funds subsidiaries have moved for appointment as lead plaintiff. (Prosperity Group s Lead Plaintiff Memorandum at 2 no.3.) The Prosperity Group distinguished itself from other cases in which investment advisors were found to lack standing because, in this case, the Prosperity Group included both the investment advisor and the wunderlying entities. (Oral arg. tr. at 28.) The Court is not persuaded, however, that the presence of entities that have standing will cure other entities standing deficiencies. The Court cannot prejudice the class members by subjecting them to the time and expense of litigating these unique defenses. As a result, the Court finds that the Prosperity Group cannot be lead plaintiff; the Court adopts the Magistrate Judge s recommendation to deny the Prosperity Group s Motion to be Appointed Lead Plaintiff. 28 a. The Subsidiaries Are Also Subject to Unique Defenses The Court also finds that the Subsidiaries would be subject to unique defenses if they were appointed as lead plaintiff in lieu of the Prosperity Group as a whole. Arkansas has noted that the Subsidiaries did not timely file a motion for appointment as lead plaintiff and did not file the certification required by the PSLRA. & R, (Arkansas at 19, Response to Prosperity Group s Objections to R 3 no.2.) The Court is not persuaded by the Prosperity Group s argument that the Subsidiaries timely filed. The first indication that the Prosperity Group was moving to appoint some, all, of its entities came on January 27, Group s Reply to Arkansas suggested that [i]f the Court the Prosperity Group first . . . finds that PCM lacks then the Funds and Subsidiaries have standing to assert the claims, and should be appointed Lead Plaintiff. (Prosperity Group s Reply to Arkansas Plaintiff, at 6.) 2012 in the Prosperity Opposition Regarding Lead Plaintiff [Docket Item 33]. At that point, standing to sue, Opposition Re Lead This request came well after the December 23, 2011 filing deadline, and it included the PCM Managed Funds, have neither title to claims nor authority to sue. at 31.) but not who (Oral arg. The Prosperity Group s first suggestion that the Subsidiaries, and the Subsidiaries alone, should be appointed lead plaintiff came in its Objections to the R & R, 29 which were tr. filed on June 28, at 8.) 2012. (Prosperity Group s Objections to R & R, The Prosperity Group argues that the 60-day deadline is not a barrier because the Subsidiaries are part of the Prosperity Group, which did timely file. (Prosperity Group s Reply re R & R, at 2.) The question here is whether, plaintiff, if the Subsidiaries were lead they would be subject to unique defenses regarding timely filing. The Court finds that they would. The PSLRA mandates that class members must move for appointment as lead plaintiff not later than 60 days after the date on which the notice is published. 15 U.S.C. to one court, 78U-4(a) (3) (A) (i) (II). According [t]he PSLRA is unequivocal and allows for no exceptions. All motions for lead plaintiff must be filed within sixty (60) days of the published notice for the first-filed action. Friedman v. 612 (W.D. Okla. 2009) Quest Energy Partners LP, . 261 F.R.D. 607, The Prosperity Group does not allege that the Subsidiaries and the Prosperity Group are the same entity, and it seems clear that they are not. The Prosperity Group includes five entities other than the Subsidiaries. The Court cannot assume that the Subsidiaries met the filing deadline simply because the Prosperity Group did. This would present an unusual issue of first impression in this Circuit, on which could go either way. Therefore, the decision the Court finds that the Subsidiaries are subject to a unique defense regarding untimely 30 filing. In addition, the Court is not persuaded by the Prosperity Group s argument that the Sinton Certification encompasses the Subsidiaries. Under the PSLRA, a lead plaintiff movant must submit a sworn certification that (i) states that the plaintiff has reviewed the complaint and authorized its filing; (ii) states that the plaintiff did not purchase the security that is the subject of the complaint at the direction of plaintiff s counsel or in order to participate in any private action arising under this chapter; (iii) states that the plaintiff is willing to serve as a representative party on behalf of a class . . .; (iv) sets forth all of the transactions of the plaintiff in the security that is the subject of the complaint during the class period specified in the complaint; (v) identifies any other action under [the PSLRA], filed during the 3-year period preceding the date on which the certification is signed by the plaintiff, in which the plaintiff has sought to serve as a representative party on behalf of a class; and (vi) states that the plaintiff will not accept any payment for serving as a representative party on behalf of a class beyond the plaintiff s pro rata share of any recovery. . 15 U.S.C. 78u-4(a)(2). The Sinton certification does not make the requisite declarations on behalf of the Subsidiaries. For example, it states, The 2CM Managed Funds and the 2CM Managed Funds Subsidiaries are (collectively) willing to serve as representative parties. . . . (Sinton cert. ¶ 9.) It does not establish that the Subsidiaries alone are willing to serve as representative parties. It also states that 2CM itself will not accept any payment for serving as a representative party . 31 . . (j. ¶ II), but, once again, encompass the Subsidiaries. this Certification does not It certifies that PCM has not sought to serve as a representative party for a class in an action under federal securities laws within the past three years, (id. ¶ 12), but this declaration does not establish that the Subsidiaries have not done so, nor would the certification be expected to address the Subsidiaries qualifications since it is apparent that their selection as separate lead plaintiff was not sought at that time. The Prosperity Group argues that Mr. Sinton has the authority to conduct operations for the Subsidiaries, assertion may be true. But, once again, and that the Court s inquiry here is whether the Subsidiaries would be subject to unique defenses. The PSLRA has specific requirements for lead plaintiff certifications, and the Court finds that there is substantial likelihood that the Subsidiaries would be subject to a unique defense regarding invalid or lack of certification because the validity of their purported certification is fairly debatable. The Court must ensure that the lead plaintiff will not prejudice the class by subjecting the class to the delay, expense, and uncertainty of litigating unique defenses. Because the Subsidiaries are subject to unique defenses regarding untimely filing and lack of certification, would not be in the class their appointment best interest; the Court must look to 32 the other movant. d. Arkansas Will Be Lead Plaintiff The Court accepts the R & R s finding that Arkansas are typical and adequate. (R & R at 29..) The Prosperity Group has not alleged that Arkansas is subject to unique defenses, it made any other challenge to Arkansas plaintiff. In fact, claims nor has ability to serve as lead none of the Prosperity Group s Objections pertained to the merits of Arkansas motion to be lead plaintiff. (Prosperity Group s Objections to R & R.) The Prosperity Group 1n 5 its Objections to the R & R, the Prosperity Group argued that the Court should appoint the Subsidiaries because the Court has the ability to appoint one or more, but not all, members of a lead plaintiff group. . . . (Prosperity Group s Objections to R & R, at 10.) The Court does not dispute that, in appropriate circumstances, it could choose to exercise this power. The Court has indeed considered doing so. But here, the Court finds that the Subsidiaries are subject to unique defenses that would make them inappropriate lead plaintiffs. In addition, the Court finds that it is inappropriate for the Prosperity Group to object to the Magistrate Judge s failure to sua sponte appoint the Subsidiaries when the Prosperity Group had not moved to appoint them. The Prosperity Group moved, in the alternative, to appoint the Subsidiaries together with the PCM Managed Funds in its Reply to Arkansas Opposition re Lead Plaintiff. Its first suggestion that the Subsidiaries alone should be appointed came in the Objections to the R & R, and not in any submission prior to it. The Court agrees with other District of New Jersey courts that have held that parties must raise all of their arguments when they are before the Magistrate Judge: Common sense and efficient judicial administration dictate that a party should not be encouraged to make a partial presentation before the magistrate on a major motion, and then make another attempt entirely when the district judge reviews objections to an adverse recommendation issued by a magistrate. Lithuanian Commerce Corp., Ltd. v. Sara Lee Hosiery, 177 F.R.D. 205, 211 (D.N.J. 1997) (quoting Jordan v. Tapper, 143 F.R.D. 567, 571 (D..N.J. 1992)) 33 - Ct Y CD H Ct 0 to 0 CD Ct E CD CD Z Ct Y CD Z C 0 C CD Ct F 0 F to to z F - to H CD H P1 Ct F 0 :z IZ CD Ct a F - 5 P1 to Ct CD Ct 0 C 0 C) 0 Hi CD rot H H 0 P1 to Z 0 P1 CD Ct F H F 0 Ct Z CD Hi C H F Ct Y F - 0. 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The Court recognizes that there is a conflict between the Second Circuit s decision in Huff and many district court decisions in the Third Circuit (most of which precede Huff and Herley). The Third Circuit Court of Appeals has not decided the question of whether an investment advisor who lacks title to claims has standing. The Court does not decide this question here. At this point, it is enough to simply note the legal developments with the Sprint, a result of these cases, Huff, and Herley line of cases. As standing is a unique defense to which the Prosperity Group is subject and which would require substantial attention at litigation, thus detracting from the class best interests. The Prosperity Group argued that allowing Arkansas to become the lead Plaintiff would be unfair because the standing law is unclear. It said the R & R unfairly compels a movant to speculate as to whether a district court will follow the decisional authority of various district judges in this Circuit or the decision of a panel of a court of appeals outside this Circuit. [G]uessing incorrectly precludes a movant s appointment as lead plaintiff. (Prosperity Group s Objections to R & R, at 6.) The Court has sympathy for litigants navigating an uncertain legal landscape, but the objective here is to determine which plaintiff will best serve the class interests. The lead plaintiff is not the sole client in a PSLRA class action; instead, 35 the lead plaintiff serves as a fiduciary for the entire class. In re Cendant Corp. Sec. Litig., 404 F.3d 173, 198 (3d Cir. 2005). The Court cannot prioritize the Prosperity Group over the class as a whole where there is every likelihood that defenses unique to the Prosperity Group will be raised, to the detriment of the overall interests of the class. The Court must not prejudice the class interests by subjecting the class to the time and expense of addressing arguably meritorious defenses unique to the lead plaintiff. v. The Subsidiaries Authority to Sue The R & R also found that the Subsidiaries lacked authority to sue CEDC because they had apparently delegated their ability to sue to PCM. (R & R at 17.) But the R & R also refrain[ed] from making any conclusive determination regarding whether the Subsidiaries delegation to PCM of the authority to sue subsequently precludes the Subsidiaries from the ability to bring a claim . . ., at 18 no.6) . The Court declines to adopt the R & R s findings regarding the Subsidiaries authority to sue. The Prosperity Group objected to the finding that the Subsidiaries lacked the authority to sue, asserting that there was no authority or proof to show that the Subsidiaries somehow lost their authority to sue by granting power of attorney. (Prosperity Group s Objections to R & R at 16.) The Prosperity Group further argued that clients who suffered losses have authority to bring claims and an agent s authority is coextensive 36 with the principal s authority. at 17.) Based on the pleadings, briefing, and exhibits, the Court cannot adopt the R & R s finding that the Subsidiaries lack legal authority to sue. The Court is not convinced that the Subsidiaries grant of authority constituted a wholesale and irrevocable relinquishment of their authority to sue that left them without that power, but the Court need not conclusively decide that question here. unique to the Subsidiaries, It suffices to note that the issue is is not shared with class members, and therefore constitutes a non-frivolous unique defense that would prejudice the class. The Court must decide which movant should be lead plaintiff. Answering that question requires determining whether the movants are subject to unique defenses. The unique defense analysis yields a conclusive answer without delving into the specifics of the relationship between the Subsidiaries and PCM or the Subsidiaries grant to PCM of authority to sue. Both the Prosperity Group and the Subsidiaries are subject to unique defenses that would prejudice the class and, as a result, Arkansas must be appointed lead plaintiff. Iv. CONCLUSION The Court adopts the recommendations from the Report and Recommendation filed by Magistrate Judge Karen M. Williams on June 13, 2012 regarding appointment of lead plaintiff and lead 37 counsel. [Docket Item 49.] Appoint Counsel, The Motions to Appoint Lead Plaintiff, and Consolidate Related Actions filed by the Arkansas Public Employees Retirement System and the Fresno County Employee s Retirement Association (collectively, December 23, are hereby granted. Arkansas 2011 [Docket Item 4] will be lead plaintiff, Arkansas ) on and its selection of Cohen Milstein as lead counsel and Barrack Rodos as liaison counsel is approved. The Prosperity Group s competing motion to become lead plaintiff and appoint counsel filed on December 23, denied. 2011 [Docket Item 9] is The Court does not adopt the Report and Recommendation to the extent it suggested that Prosperity Group lacks standing and that the Subsidiaries lack authority to sue, which issues lie beyond the scope of the present motions. The two actions, Steamfitters Local 449 Pension Fund v. Central European Distribution Corp., on October 24, Corp., 2011, Civ. No. consolidated. and Schuler v. Civ. No. 11-6247 commenced Central European Distribution 11-7085 commenced on November 15, 2011 are now The caption for the consolidated action will hereafter be In re Central European Distribution Corp. Litigation, Civ. No. ll-cv-6247 Securities (JBS-KMW) The accompanying Order will be entered. August 22, 2012 s/ Jerome B. Date Simandle JEROME B. SIMANDLE Chief U.S. District Judge 38 APPENDIX Chart of Briefs Filed Civ. No. 116247, Docket No. Date Filed Full Brief Title Party Abbreviated Title 5 12/23/1 1 Memorandum in Support of Motion of the Arkansas Public Employees Retirement System and the Fresno County Employees Retirement Association for Appointment as Lead Plaintiff, Appointment of Lead Counsel, and Consolidation of Motions Arkansas Public Employees Retirement System and Fresno County Employees Retirement Association ( Arkansas ) Arkansas Lead Plaintiff Memorandum 10 12/23/1 1 Memorandum of Law in Support of the Prosperity Group s Motion for Consolidation of the Related Actions, Appointment as Lead Plaintiff, and Approval of its Selection of Lead Counsel Prosperity Group Prosperity Group s Lead Plaintiff Memorandum 21 1/10/12 The Prosperity Group s Opposition to the Competing Motion for Appointment as Lead Plaintiff Prosperity Group Prosperity Group s Opposition to Arkansas Appointment as Lead Plaintiff 22 1/10/12 Memorandum in Further Support of Motion of the Arkansas Public Employees Retirement System and the Fresno County Employees Retirement Association for Appointment as Lead Plaintiff, Appointment of Lead Counsel and Consolidation of Related Actions, and in Opposition to the Competing Motion Arkansas Arkansas Opposition to Prosperity Group s Appointment as Lead Plaintiff 32 1/27/12 Reply Memorandum in Further Support of Motion of the Arkansas Public Employees Retirement System and the Fresno County Employees Retirement Association for Appointment as Lead Plaintiff, Appointment of Lead Counsel and Consolidation of Related Actions, and in Opposition to the Competing Motion Arkansas Arkansas Reply to Prosperity Group s Opposition re Lead Plaintiff 33 1/27/12 Reply Memorandum in Further Support of the Prosperity Group s Motion for Appointment as Lead Plaintiff and Approval of its Selection of Lead Counsel Prosperity Group Prosperity Group s Reply to Arkansas Opposition re Lead Plaintiff 03/27/12 6/1 3/12 Oral Argument Before Magistrate Judge Karen M. Williams Magistrate Judge Williams Report and Recommendation 39 R & R 50 6/28/12 The Prosperity Group s Objections to the Report and Recommendation of US. Magistrate Karen M. Williams on Motion for Appointment as Lead Plaintiff and Approval of Selection of Counsel Prosperity Group Prosperity Group s Objections to R&R 54 7/12/12 Memorandum of Law in Support of Magistrate Judge Williams June 12, 2012 Report and Recommendation to Grant Arkansas and Fresno s Motion for Appointment as Lead Plaintiff, Appoint Cohen Milstein as Lead Counsel and Barrack Rodos as Liaison Counsel, Consolidate the Related Actions, and Deny the Prosperity Groups Competing Motion Arkansas Arkansas Response to Prosperity Group s Objections to R&R 57 7/24/12 Reply in Further Support of the Prosperity Group s Objections to the Report and Recommendation of U.S. Magistrate Karen M. Williams on Motion for Appointment as Lead Plaintiff and Approval of Selection of Counsel Prosperity Group Prosperity Group s Reply re R&R 58 7/27/12 Letter from Daniel S. Somers responding to July 24, 2012 letter and proposed reply brief from Tina Moukoulis Arkansas 40
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