Plaintiff, Presently before the Court are several competing motions for appointment as lead

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1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK X MARCO PETERS, Individually and on Behalf of All Others Similarly Situated, Plaintiff, JINKOSOLAR HOLDING CO., LTD., XIANDE LI, KANGPING CHEN, XIANHUA LI, WING KEONG SlEW, HAITAO JIN, ZIBIN LI, STEVEN MARKSCHEID, LONGGEN ZHANG, CREDIT SUISSE SECURITIES (USA) LLC, OPPENHEIMER & CO. INC., ROTH CAPITAL PARTNERS, LLC, and COLLINS STEWART LLC, Defendants. 11 Civ (JPO) MEMORANDUM AND ORDER X J. PAUL OETKEN, District Judge: Presently before the Court are several competing motions for appointment as lead plaintiff in a securities class action under Section 211)(a)(3)(B) of the Securities Exchange Act of 1934, 15 U.S.C. 78u-4(a)(3)(B), as amended by the Private Securities Litigation Reform Act of 1995 ("PSLRA" or the "Act"). Specifically, before the Court are motions for appointment as lead plaintiff by the JinkoSolar Investor Group (Dkt. No. 19); the Individual Investor Group (Dkt. No. 22); Lin Wu (Dkt. No. 25); Abdullah al Mabmud, Azriel Shusterman, and Dr. Ronald Snyder (the "Mahmud Group") (Dkt. No. 29); and W.J. Chiang (Dkt. No. 32). Each movant for lead plaintiff status also moves for the appointment of its chosen counsel as lead counsel. In addition, before the Court is an amended motion to be appointed lead plaintiff by the JKS Group (Dkt. No. 41), a group consisting of members of the Individual Investor Group and the Mahmud Group (specifically, Vaughn Leroy Meyer, Richard Matkevich, Abdullah Al Mahmud, and

2 Azriel Shusterman), which was filed upon the Court's request at a conference held January 12, 2012; and a Motion for Reconsideration of the Court's order of January 12, 2012, or for Certification Under 28 U.S.C. 1292(b), by Lin Wu (Dkt. No. 42). For the reasons set forth below, the JKS Group's amended motion to be appointed as lead plaintiff is granted, and Bernstein Liebhard LLP and Zamansky & Associates, LLC, are appointed as co-lead counsel for the class. All other motions for appointment as lead plaintiff are denied. Lin Wu's motion for reconsideration or for certification under 28 U.S.C. 1292(b) is also denied. I. Background This action was commenced on October 11, 2011 with the filing of a class action complaint against JinkoSolar Holding Co., Ltd. ("JinkoSolar"); as well as several of its officers and directors, including Xiande Li, Kangping Chen, Xianhua Li, Wing Koen Siew, Haitao Jin, Zibin Li, Steven Markscheid, and Longgen Zhang; and several entities that served as underwriters for certain offerings of securities by JinkoSolar, including Credit Suisse Securities (USA) LLC, Oppenheimer & Co., Inc., Roth Capital Partners, LLC, and Collins Stewart LLC (collectively, the "Defendants"). The complaint was brought by Marco Peters ("Plaintiff') on behalf of a putative class of investors who purchased or otherwise acquired JinkoSolar New York Stock Exchange-traded American Depository Shares ("ADS5") between May 13, 2010 and September 21, 2011 (the "Class Period"), either in or traceable to a May 13, 2010 Initial Public Offering or otherwise on the open market, and were damaged thereby. The complaint alleges that Defendants made materially false and misleading statements concerning JinkoSolar's compliance with local environmental regulations at its solar cell manufacturing plant in Hongxiao, Haining City in Zhejiang Province, People's Republic of China, in violation of (i) Sections 11, 12(a)(2), and 15 2

3 of the Securities Act of 1933 (the "Securities Act") and (ii) Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Securities Exchange Commission ("SEC") Rule lob-s promulgated thereunder. On October 11, 2011, in accordance with the requirements of the PSLRA, 15 U.S.C. 78u-4(a)(3)(A)(i), Plaintiff caused to be published a notice of the pendency of this action through the Business Wire. (See Declaration of Jacob H. Zamansky in Support of the Motion to Appoint Individual Investor Group, Ex. 1, Notice (Dkt. No. 24).) The notice set a deadline of December 12, 2011 for motions for appointment as lead plaintiff. (Id.) On December 12, 2011, the JinkoSolar Investor Group, the Individual Investor Group, Lin Wu, the Mahmud Group, and W.J. Chiang each filed motions to be appointed lead plaintiff and for approval of their respective choices for lead counsel. On December 23, 2011, the Court issued an Order setting a hearing on these motions for January 11, 2012 (later adjourned to January 12, 2012) and ordering any submissions in opposition to any motion for appointment as lead plaintiff to be filed no later than January 5, (Dkt. No. 35.) On January 3, 2012, W.J. Chiang withdrew his motion for appointment as lead plaintiff (Dkt. No. 36), and on January 5, 2012, the JinkoSolar Investor Group filed a notice of nonopposition to the competing lead plaintiff motions (Dkt. No. 37). On January 5, 2012, Lin Wu filed a memorandum of law in opposition to the competing lead plaintiff motions. (Dkt. No. 40.) Neither the Individual Investor Group nor the Mahmud Group filed papers in opposition. However, on January 5, 2012 a new group, the JKS Group (the "Group"), comprising individual members of the Individual Investor Group and the Mahmud Group, filed a memorandum of law in support oftheirjoint motion to be appointed lead plaintiffs. (Dkt. No. 38.) On January 10, 2012, Lin Wu submitted a letter to the Court challenging the JKS Group's eligibility to be appointed lead plaintiff on the grounds that the Group's application was untimely

4 and, in any event, runs afoul of the policy behind the PSLRA to curb lawyer-driven litigation. On January 11, 2012, the JKS Group submitted a letter in response. On January 12, 2012, the Court held a conference and heard argument on the various motions (the "January 12 Conference"). At the January 12 Conference, the Court expressed the view that the JKS Group would be permitted to move for appointment as lead plaintiff but requested that, as a "housekeeping" measure, the JKS Group file a formal motion to be appointed as lead plaintiff so that, if the group was ultimately appointed lead plaintiff, there would be an actual motion for the Court to grant. Lin Wu requested that, if the Court allowed the JKS Group to file its motion, that the Court certify that decision for an interlocutory appeal pursuant to 28 U.S.C. 1292(b) ("Section 1292(b)"). The Court stated that it would consider the request. On January 18, 2012, Lin Wu filed a motion for reconsideration of the Court's order granting the JKS Group permission to file its motion to be appointed lead plaintiff, or for certification of that decision for interlocutory appeal under Section 1292(b). II. Motion for Reconsideration The JKS Group argues that Mr. Wu's motion for reconsideration is premature, because the Court has not yet ruled on the competing motions for lead plaintiff. This is true, but as Mr. Wu explains, he is actually moving for reconsideration of the Court's decision from the bench at the January 12 Conference that the JKS Group would be permitted to file an amended motion to be appointed lead plaintiff. Mr. Wu's motion for reconsideration is not premature, but it is nevertheless denied. Reconsideration is viewed as an "extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." In re Health Mgnit. Sys. Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) (citations and quotation marks omitted). The Second Circuit has explained that "[t]he standard for granting such a motion is strict, and 4

5 reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Courts in this district have held that "[r]econsideration is appropriate only where there is 'an intervening change of controlling law, newly available evidence, or the need to correct a clear error or prevent manifest injustice." Sutherland v. Ernst & Young LLP, No. 10 Civ. 3332, 2012 WL , at * 1 (S.D.N.Y. Jan. 17, 2012) (quoting Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F. 3d 147, 167 (2d Cir. 2003)). Here, Mr. Wu's only argument for why the Court must reconsider its order is that his motion papers identify three relevant cases from this District "that he did not have an opportunity to fully present at the hearing before the Court issued its January 12, 2012 Order." (Lin Wu's Reply Mem. of Law in Support of Motion for Reconsideration (Dkt. No. 49) at 2.) Mr. Wu offers no explanation for why he lacked the opportunity to present these cases in his earlier submissions to the Court or at the January 12 Conference. He was on notice of these issues since January 5, 2012 when the JKS Group filed its papers in opposition to the competing lead plaintiff motions. He submitted a letter to the Court containing extensive citations to similar case law and had the opportunity to add any other authorities or arguments at the January 12 Conference. Thus, Mr. Wu's motion fails to meet the strict standards for granting a motion for reconsideration. However, given the somewhat convoluted procedural posture of the lead plaintiff appointment process in this case, the motion for reconsideration is the first time that many issues that are relevant to the Court's resolution of the lead plaintiff motions were formally briefed for the Court. Thus, the Court will consider the arguments raised in Mr. Wu's motion for

6 reconsideration in its review of the competing lead plaintiff motions, even though the motion for reconsideration itself is denied. III. Appointment of Lead Plaintiff Under the PSLRA At the January 12 Conference, the Court expressed the preliminary view that the JKS Group would be permitted to move for appointment as lead plaintiff and would likely be the presumptive lead plaintiff. The Court reaffirms that decision and provides more extensive explanation of its decision here. A. Policy and Procedure Under the PSLRA As summarized by a decision in this district, 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." Welt v. Lee, 199 F.R.D. 129, 131 (S.D.N.Y ) (quoting In re Oxford Health Plans, Inc., Sec. Litig., 182 F.R.D. 42, (S.D.N.Y. 1998) ("Oxford 1")) (quotation marks omitted). As Judge Rakoff explained in another decision, 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., PLC, 236 F.R.D. 158, 161 (S.D.N.Y. 2005) ("In other words, by enacting the PSLRA, Congress sought to encourage class members with the largest purported losses to act as lead plaintiffs in private securities litigation."). 6

7 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 Act carefully sets forth the procedure for doing so and the criteria to be applied. The first step in the process is that, 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. 15 U.S.C. 78u-4(a)(3)(A)(i). 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. The Act further provides that 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. 15 U.S.C. 78u-4(a)(3)(B)(i). Under the PSLRA, the court is 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. The PSLRA establishes a rebuttable 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). This presumption may be rebutted "only upon proof by a member of the purported plaintiff class 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). Finally, as to the selection of lead counsel, the PSLRA states that "[t]he most adequate plaintiff shall, 7

8 subject to the approval of the court, select and retain counsel to represent the class." 15 U.S.C. 78u-4(a)(3)(13)(v). B. Largest Financial Interest The PSLRA does not specify how the "largest financial interest in the relief sought by the class" is to be measured. Courts in this District generally look at the following factors to determine financial interest: (1) the total number of shares purchased during the class period; (2) the net shares purchased during the class period (in other words, the difference between the number of shares purchased and the number of shares sold during the class period); (3) the net funds expended during the class period (in other words, the difference between the amount spent to purchase shares and the amount received for the sale of 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). It is well settled that "[f]inancial loss, the last factor, is the most important element of the test." Varghese v. China ShenghuoPharni. Holdings, Inc., 589 F. Supp. 2d 388, 395 (S.D.N.Y. 2008) (citing Reimer v. Anibac Fin. Group, Inc., Nos. 08 Civ. 411 et al., 2008 WL , at *3 (S.D.N.Y. May 9, 2008)). There is not a significant dispute about the potential lead plaintiffs' respective financial interests here. Each potential lead plaintiff or plaintiffs submitted certifications attesting to the number of shares they purchased and sold, and what their recoverable losses would be. Of the movants still vying for lead plaintiff status, Lin Wu showed recoverable losses of approximately $43,183 (See Declaration of Albert Y. Chang in Support of Motion of Lin Wu for Appointment as Lead Plaintiff and Approval of Selection of Lead Counsel, Ex. C (Dkt. No. 28)), while the JKS Group showed recoverable losses totaling approximately $515,527. (Joint Declaration of Vaughn Leroy Meyer, Richard Matkevich, Abdullah Al Mahmud, and Azriel Shusterman ("JKS Group Dec."), Ex. A (Dkt. No. 39).) (Mr. Meyer showed losses of approximately $244,495, Mr.

9 Shusterman showed losses of approximately $121,698, Mr. Mahmud showed losses of approximately $120,785 and Mr. Matkevich showed losses of approximately $28,549.) Based upon the financial interests alone, the JKS Group would be the presumptive lead plaintiff. C. Opposition Arguments Notwithstanding the fact that the JKS Group has the largest aggregate financial interest in the case, Mr. Wu challenges the group's motion for appointment as lead plaintiff based on two separate, but related, arguments. First, Mr. Wu argues that the composition of the JKS Group runs afoul of the PSLRA's policy to curb lawyer-driven litigation because the group provides no explanation for its formation or how it will act as a cohesive group in managing the litigation. Thus, Mr. Wu argues, the JKS Group is not entitled to presumptive lead plaintiff status. Second, Wu argues that the JKS Group's motion for appointment as lead plaintiff was untimely under the PSLRA, thereby rendering the Group ineligible to be appointed lead plaintiff. 1. Appropriateness of a Group of Individual Investors as Lead Plaintiff The PSLRA itself plainly contemplates the appointment of a group of individuals as lead plaintiff. The Act directs the 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) (emphasis added). It also defines the "most adequate plaintiff' as the "person or group ofpersons that... [inter al/a] in the determination of the court, has the largest financial interest in the relief sought by the class... 78u-4(a)(3)(B)(iii)(I)(emphasis added). See In re Tarragon Corp. Sec. Litig., No. 07 Civ. 7972, 2007 WL , at *2 (S.D.N.Y. Dec. 6, 2007) ("The issue is not whether losses or holdings may be aggregated by members of a group seeking to become the lead plaintiff; indisputably, they may."). However, as courts have recognized, the Act is silent as to the 9

10 relationship, if any, that the members of the group must have with one another. See Goldstein v. Puda Coal, Inc., No. 11 Civ. 2598, 2011 WL , at *6 (S.D.N.Y. Dec. 6, 2011) (citing Varghese, 589 F. Supp. 2d at 392). Courts have expressed particular concern when potential lead plaintiff groups appear to have been "cobbled together" for the sake of the litigation. Razorfish, 143 F. Supp. 2d at 308. Some courts analyze this issue in the context of whether the presumptive lead plaintiff can "otherwise satisf[y] the requirements of Rule 23." 15 U.S.C. 78u-4(a)(3)(B)(iii)(I). See, e.g., Goldstein, 2011 WL , at *67. Other courts, however, have refused to recognize such "cobbled together" groups entirely. See Razorfish, 143 F. Supp. 2d at 308; In re Pfizer Inc. Sec. Litig., 233 F.R.D. 334, 337 (S.D.N.Y. 2005); In redonnkennyinc. Sec. Litig., 171 F.R.D. 156, (S.D.N.Y. 1997). As Judge Jones explained in a recent decision, "the majority of courts 'have adopted an intermediate position, permitting unrelated investors to join together as a group seeking leadplaintiff status on a case-by-case basis." Goldstein, 2011 WL , at * 6 (quoting Varghese, 589 F. Supp. 2d at 392): Although courts will resist appointing as lead plaintiff a group that is simply an artifice cobbled together by cooperating counsel for the obvious purpose of creating a large enough grouping of investors to qualify as lead plaintiff, a group consisting of persons that have no pre-litigation relationship may be acceptable as a lead plaintiff candidate so long as the group is relatively small and therefore presumptively cohesive. Goldstein, 2011 WL , at * 6 (quoting Janbay v. Canadian Solar, Inc., et al., 272 F.R.D. 112, 119 (S.D.N.Y. 2010)) (quotation marks omitted). Many courts examine the nature of the proposed grouping at the threshold level. In other words, in order for a potential lead plaintiff group "to enjoy the rebuttable presumption that the statute confers," the group must first show "some evidence that the members of the group will 10

11 act collectively and separately from their lawyers." In re Tarragon, 2007 WL , at *2. See also Varghese, 589 F. Supp. 2d at 392 ("[A] group must proffer an evidentiary showing that unrelated members of a group will be able to function cohesively and to effectively manage the litigation apart from their lawyers before its members will be designated as presumptive lead plaintiffs."). Thus, based on a review of the cases dealing with lead plaintiff groups of unrelated investors, three basic factors are relevant to the inquiry: (1) the size of the group; (2) the relationship between the parties; and (3) any evidence that the group was formed in bad faith (in other words, that it is a mere "artifice cobbled together by cooperating counsel for the obvious purpose of creating a large enough grouping of investors to qualify as 'lead plaintif RazorfIsh, 143 F. Supp. 2d at 308). See Barnet, 236 F.R.D. at 162. Courts have not defined a precise number of group members that would qualify the group as "relatively small and therefore presumptively cohesive." Goldstein, 2011 WL , at *6. However, courts appear to generally agree that a group comprising five or fewer members is appropriate. See In re Cendant Corp. Litig., 264 F.3d 201, 267 (3d Cir ) (agreeing with the SEC's position that "courts should generally presume that groups with more than five members are too large to work effectively"); Weltz, 199 F.R.D. at 133 (noting that "there exists a point at which the Act's express purpose of placing the control of securities class actions with a small and finite number of plaintiffs (as opposed to plaintiffs' counsel) becomes wholly undermined by the sheer size of the proposed plaintiff group," and citing decisions rejecting lead plaintiff groups of over 100 class members). Courts also look for evidence that the group will be able to function cohesively, which can include evidence regarding "why the individual members chose to work as a group; how the group intends to function collectively, including how they plan to communicate; the protocol the 11

12 group will use to address disagreements; background information regarding individual members of the group; and the members' willingness to accept the role and responsibilities of lead plaintiff." Goldstein, 2011 WL , at *7 See Janbay, 272 F.R.D. at (approving group that submitted evidence that the members are "sophisticated individuals who have demonstrated their intent to participate directly in this litigation and their willingness and ability to serve as class representatives" and that "they have a detailed decision-making structure in place, with established methods for communication amongst themselves and with counsel"); Varghese, 589 F. Supp. 2d at 392 (listing factors for evaluating cohesiveness: "(1) the existence of a pre-litigation relationship between group members; (2) involvement of the group members in the litigation thus far; (3) plans for cooperation; (4) the sophistication of its members; and (5) whether the members chose outside counsel, and not vice versa"). Here, the JKS Group is composed of four members, and so is not so large as to be per se not cohesive. See Welt, 199 F.R.D. at 133. The group's formation was somewhat unusual in that it is composed of members of different groups that earlier filed separate motions for appointment as lead plaintiff. The group submitted a sworn declaration explaining that [a]fter the filing of the original lead plaintiff motions, members of the JKS Group realized that the two groups with which they initially moved each had investors with massive losses, and, as groups, had losses that were close. Thus, Movants, who include the three single largest losses out of all competing movants, decided, rather than fight it out and risk appointment as lead plaintiff of an investor with a smaller loss who may lack the same motive to achieve a good result, to band together and litigate this action together. (JKS Group Dec. at 5 (Dkt. No. 39).) The group was formed on a conference call with all group members participating on December 22, (Id. 6.) According to the declaration, each member of the group is a "knowledgeable and active investor." (Id. J 1-4.) The group states that it is "able and willing to act cohesively as a group to protect the interests of the proposed class, independently of counsel," "understands the 12

13 responsibilities of monitoring counsel to ensure that counsel is acting in the group's and the proposed class's best interests," and "understands that it may petition the court at any time to replace chosen counsel if, in [the group's] sole discretion, counsel is not acting in the best interest of the group and the proposed class." (Id. J 8-10.) Each group member will have one vote on "all major issues affecting the litigation," and the members state that they "each understand that they have the right to contact each other independently of counsel if needed to discuss the case and the conduct of counsel." (Id. J 6, 11.) This declaration meets the standards outlined by the case law for demonstrating cohesiveness. Although it is apparent that the group was formed with the assistance (if not at the instigation) of counsel, it is equally apparent that the group was not formed in order to manufacture a high enough financial interest to beat out any other competing lead plaintiffs. Not only do the aggregate losses of the JKS Group dwarf those of Mr. Wu, but so do the individual losses of three out of the four members of the group. Indeed, Messrs. Meyer, Mabmud, and Shusterman had the three largest loss amounts of any other individual (whether in a group or otherwise) that moved for appointment as lead plaintiff in this case. Even in decisions refusing to recognize a group of individuals as a lead plaintiff, courts frequently base the decision on the fact that the group was assembled "for the obvious purpose of creating a large enough of grouping of investors to qualify as 'lead plaintiff." Razorfish, 143 F. Supp. 2d at 308; see also Pfizer, 233 F.R.D. at 337 ("Nothing before the Court indicates that this aggregation is anything other than an attempt to create the highest possible 'financial interest' figure under the PSLRA."); cf Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. LaB ranche & Co., Inc., 229 F.R.D. 395, 410 (S.D.N.Y. 2004) (refusing to allow potential lead plaintiff to supplement its filings to assert additional losses after the expiration of the sixty-day period, because that plaintiff failed to show that "its belated attempt to increase the size of its losses is 13

14 anything other than an attempt to manipulate the size of its losses based on information available to it at the time of its original lead plaintiff motion" (citation and quotation marks omitted)). That is plainly not the case here. Some decisions rejecting aggregate groups have instead appointed the individual group member with the largest loss as sole lead plaintiff, see In re Donnkenny, 171 F.R.D. at , but the Court sees little that would be gained by that approach here. There is no reason to suspect that Mr. Meyer would be any more likely to "control" counsel if he were sole lead plaintiff than if he were joined by three other individuals, so long as the group can function cohesively. Given that the PSLRA favors the appointment of class members with the largest financial interests in the litigation, it is clear why a group that is able to obtain lead plaintiff status only by aggregating the much smaller losses of a number of class members potentially runs afoul of the policy behind the statute. But where the group comprises the class members with, far and away, the largest financial interest of any individual or group (that has otherwise come forward), then the policy is not disserved by allowing those individuals to join together. See Reimer, 2008 WL , at *4 (appointing group of pension funds as lead plaintiff where each individual member of the group had a greater financial interest than competing lead plaintiff, concluding that the funds' "wish to combine their efforts in the litigation as opposed to making separate lead plaintiff motions does not diminish the fact that they have a greater financial interest than" the competing lead plaintiff); Barnet, 236 F.R.D. at 162 (noting that "even were the Court to deconstruct the Group, two of its individual members would still have the 'largest financial interest"). 14

15 2. Timeliness Mr. Wu argues, both in the letter he submitted prior to the hearing, and more expansively in his motion for reconsideration, that the JKS Group is ineligible to be appointed lead plaintiff because the group's motion does not comply with the requirements of the PSLRA. In particular, Mr. Wu argues, the group neither filed the complaint, nor made a timely motion in response to the notice of the pendency of the action. The PSLRA provides that all lead plaintiff motions must be made within sixty days of the date on which the notice is published. 15 U.S.C. 78u-4(a)(3)(A)(i). The JKS Group did not move for appointment in this configuration until, at the earliest, January 5, 2012, when the group filed its papers in opposition to the competing lead plaintiff motions, or, if not, on January 12, 2012, when the group filed its formal amended motion in response to the court's request at the January 12 hearing. In either case, both of those dates were well after the sixty day deadline, which was December 12, Mr. Wu argues that courts must apply the timeliness requirements of the PSLRA strictly, and points out that courts have disqualified plaintiffs even for missing the sixty-day deadline by one day. See Skwortz v. Crayfish Co., Ltd., Nos. 00 Civ et al., 2001 WL , at *5 (S.D.N.Y. Sept. 28, 2001); see also In re Telxon Corp. Sec. Litig., 67 F. Supp. 2d 803, 818 (ND. Ohio 1999) ("The 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. The plain language of the statute precludes consideration of a financial loss asserted for the first time in a complaint, or any other pleading, for that matter, filed after the sixty (60) day window has closed."). Courts have particularly refused to recognize reconfigured groups that were formed after the sixty-day deadline when it appears that the group was formed in order to create the 15

16 largest financial interest in order to secure lead plaintiff status. See, e.g., In re XAv[ Satellite Radio Holdings Sec. Litig., 237 F.R.D. 13, (D.D.C. 2006). However, courts in this District and elsewhere have allowed amended motions by groups that were configured after the sixty-day deadline where each member of the newly-formed group had previously filed a timely motion. See, e.g., Schulman v. Lunienis, Ltd, Nos. 02 Civ et al., 2003 WL , at *4 (S.D.N.Y. June 18, 2003).1 InRozenbooni v. Van DerMoolen Holding, N. V., No. 03 Civ. 8284, 2004 WL (S.D.N.Y. Apr. 14, 2004), the court acknowledged that "Fun situations where a coalition is formed among some but not all movants after the running of the statutory 60 days, the procedural propriety of permitting such an arrangement may raise additional concerns in light of the PSLRA's strict filing requirements." Id. at *4 The court noted in particular the potential problems "if persons seeking appointment as lead plaintiff were allowed to manipulate the size of their financial loss by enlarging the class period or adding additional persons to a 'group' in supplemental filings." Id. (quoting Telxon, 67 F. Supp. 2d at 819). Nevertheless, the court allowed two individuals who had filed timely motions as individuals to join together as a group after the 60-day deadline. Id. at 5. The court noted that although it was widely accepted that the PSLRA was designed to favor institutional investor plaintiffs, no such institutional investor was available, and neither plaintiff indicated any experience serving as a lead plaintiff in a previous action. Thus, the court concluded that appointing the two individuals as co-lead plaintiffs "may help to ensure stability in the litigation and perhaps the exercise of greater control over the action's progress." Id. 1 Other decisions ultimately denied the newly-formed groups' motions to be appointed lead plaintiff on other grounds, but did not disqualify the newly-formed group from seeking lead plaintiff status based on timeliness issues. See Sgalambo v. McKenzie, 268 F.R.D. 170, 173 n.20 (S.D.N.Y. 2010) (noting that "post-motion efforts to group movants to aggregate their lossess violates the strict sixty day deadline to file a motion for lead plaintiff appointment established by the [PSLRA]," but allowing post-motion joining of two unrelated entities that had separately filed timely motions, although ultimately appointing other entity with larger financial interest as lead plaintiff (emphasis added)); Newman v. Eagle Bldg. Tech., 209 F.R.D. 499, 501 n. 1 (S.D. Fla. 2002) (allowing two individual parties who had filed timely motions to file amended motion where they joined together as one group). 16

17 Here, the JKS Group members plainly did not join up in order to "manipulate the size of their financial loss." Teixon, 67 F. Supp. 2d at 819. Indeed, as mentioned above, three out of the four members of the group already have far and away the largest financial losses of any other potential lead plaintiff. Moreover, each member of the JKS Group was part of a group that filed a timely motion to be appointed lead plaintiff. In light of these facts, the Court holds that the JKS Group is not barred from moving to serve as lead plaintiff because of untimeliness. Mr. Wu argues that this case is distinguishable from cases like Schulman, because there, the newly formed group was composed of members who had filed timely motions in their own names to be appointed lead plaintiff, whereas here, the JKS Group is composed of individuals who had previously moved as parts of other groups. (Lin Wu's Memorandum of Law in Support of Motion for Reconsideration ("Mem. Recons.") (Dkt. No. 43) at 3-4.) However, the Court agrees with the JKS Group's contention that this is a distinction without a difference. Mr. Wu does not offer any explanation for why this distinction should matter. if parties who previously filed timely motions may, in certain circumstances, join together after the deadline, so long as the formation of the new group was not an effort to manipulate the process and manufacture the largest financial interest, then it makes no material difference if those individuals originally filed individually or as part of different groups. Even if the Court were inclined to reject the motion of the newly configured group as untimely, Mr. Wu would be no better served. Both the Individual Investors Group and the Mahmud Group had far larger financial losses than Mr. Wu. Given that reality, the Court sees little reason to prohibit the two presumptive "winning" parties from joining together as one when doing so is consistent with the PSLRA, as it has been interpreted in this District. D. The JKS Group Otherwise Satisfies Rule 23 of the Federal Rules 17

18 The final requirement of the PSLRA is that a potential lead plaintiff "otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure." 15 U.S.C. 78u- 4(a)(3)(13)(iii)(I). Rule 23 provides that a case may be brought as a class action 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 (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23. In 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. Janbay, 272 F.R.D. at 120; see also Cendant, 264 F.3d at 264 ("[B]oth the statutory structure and the legislative history suggest that the court's initial inquiry as to whether the movant with the largest loss satisfies the typicality and adequacy requirements need not be extensive."). The typicality requirement is satisfied when the class members' claims "arise[] from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir. 1992). However, courts also hold that the lead plaintiff's claims "need not be identical" to the claims of the class to satisfy this requirement. Skwortz, 2001 WL , at *6. Here, the claims of the JKS Group are based on losses suffered as investors in JinkoSolar ADSs as a result of alleged material misstatements by Defendants. These claims arise out of the same course of events and will involve the same legal arguments as the claims of the class as a whole. Thus, typicality has been established for purposes of the PSLRA. In order to satisfy the adequacy requirement, a potential lead plaintiff must show that "(1) class counsel is qualified, experienced, and generally able to conduct the litigation; (2) there is 18

19 no conflict between the proposed lead plaintiff and the members of the class; and (3) the proposed lead plaintiff has a sufficient interest in the outcome of the case to ensure vigorous advocacy." Foley v. Transocean Ltd., eta,?., 272 F.R.D. 126, 131 (S.D.N.Y. 2011). The Court addressed most of these concerns in the discussion above concerning the JKS Group's showing that their grouping was cohesive and that the group members' large financial interest in the litigation will motivate them to vigorously pursue a good result for the class. The Court does not find that there is any conflict between the JKS Group and the members of the class. The Court also finds that the JKS Group has retained counsel that is "qualified, experienced, and generally able to conduct the litigation." Id. Both of the law firms representing the JKS Group have extensive experience, and demonstrated success, prosecuting cases similar to the instant case. Thus, the JKS Group has made the requisite showing of adequacy under Rule 23 to satisfy the PSLRA. E. Rebuttal Arguments The PSLRA provides that the presumptive lead plaintiff may be unseated "only upon proof by a member of the purported plaintiff class 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). No arguments have been made that the JKS Group is subject to any unique defenses that would prevent it from adequately representing the class. 2 Mr. Wu's arguments that the JKS Group will not fairly and adequately protect the interests of the class have been addressed above. Thus, the presumptive lead plaintiff status of the JKS Group has not been rebutted. 2 As counsel for the JKS Group acknowledged at the January 12 Conference, the Individual Investor Group, as it was originally constituted, potentially was subject to certain loss causation defenses as a result of the timing of the purchases and sales of group member Marco Peters. However, Mr. Peters is not a part of the JKS Group. 19

20 III. Lead Counsel Appointment 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). "The PSLRA evidences a strong presumption in favor of approving a properly-selected lead plaintiff's decisions as to counsel selection and counsel retention." Varghese, 589 F. Supp. 2d at 398 (citation and quotation marks omitted). The JKS Group has selected as co-lead counsel the law firms of Bernstein Liebhard LLP ("Bernstein") and Zamansky & Associates, LLC ("Zamansky"). Both firms have submitted resumes demonstrating extensive experience and success prosecuting cases similar to this one, and so the JKS Group's choice of co-lead counsel is approved. The Court is cognizant of the fact that when the Mahmud Group originally moved to be appointed lead plaintiff, the group's selected counsel was Bernstein alone. The JKS Group does not provide specific explanation for why two law firms are now necessary to prosecute this case. However, given the policy of the PSLRA to allow lead plaintiffs to select their own counsel, the Court will approve the JKS Group's selection. "This is done with the understanding that there shall be no duplication of attorney's services and that the use of co-lead counsel will not in any way increase attorney's fees and expenses." Oxford I, 182 F.R.D. at 50 (citing Donnkenny, 171 F.R.D. at 158). IV. Certification Under 1292(b) At the January 12 Conference, Mr. Wu requested that if the Court allows the JKS Group to file a motion for appointment as lead plaintiff after the sixty-day deadline, then the Court certify that decision for interlocutory appeal under Section 1292(b). Mr. Wu renews that request in his motion for reconsideration. 20

21 Section 1292(b) allows a district judge to certify an order that is not otherwise appealable for interlocutory appeal when that order (1) "involves a controlling question of law"; (2) "as to which there is substantial ground for difference of opinion"; and (3) "an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. 1292(b). "The determination of whether Section 1292(b) certification is appropriate under the above standards is in the discretion of the district court." Primavera Familienstifung v. Ask/n, 139 F. Supp. 2d 567, (S.D.N.Y. 2001). Indeed, "district court judges have broad discretion to deny certification even where the statutory criteria are met." Century Pac., Inc. v. Hilton Hotels Corp., 574 F. Supp. 2d 369,370 (S.D.N.Y. 2008) (citation omitted). An interlocutory appeal under Section 1292(b) is "a rare exception to the final judgment rule that generally prohibits piecemeal appeals," Koehler v. Bank ofbermuda Ltd, 101 F.3d 863, 865 (2d Cir. 1996), and should be used only in "exceptional cases where early appellate review might avoid protracted and expensive litigation." Tyco Int'l, Ltd. v. Kozlowski, No. 02 Civ. 7317, 2011 WL , at * 1 (S.D.N.Y. May 24, 2011) (citation and quotation marks omitted). See also Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Americas, 426 F. Supp. 2d 125, 127 (S.D.N.Y. 2005) ("The Court of Appeals repeatedly has emphasized that a district court is to 'exercise great care in making a 1292(b) certification." (quoting WestwoodPharm., Inc. v. Nat'l Fuel Gas Distrib. Corp., 964 F.2d 85, 89 (2d Cir. 1992))); Sec. and Exch. Comm 'n v. Credit Bancorp, Ltd., 103 F. Supp. 2d 223, 226 (S.D.N.Y. 2000) ("Section 1292(b) was not intended to open the floodgates to a vast number of appeals from interlocutory orders in ordinary litigation or to be a vehicle to provide early review of difficult rulings in hard cases." (internal citations omitted)). Mr. Wu fails to demonstrate the exceptional circumstances to warrant an interlocutory appeal here. 21

22 Mr. Wu's request for certification must be denied first and foremost because he cannot show that certification will "materially advance the ultimate termination of the litigation." 28 U.S.C. 1292(b). Courts have held that immediate appeal advances the ultimate termination of litigation if the "appeal promises to advance the time for trial or to shorten the time required for trial." Consub Delaware LLC v. Schahin Engenharia Liniitada, 476 F. Supp. 2d 305, 310 (S.D.N.Y. 2007) (citation omitted). An immediate appeal here would have neither effect. At best, allowing Mr. Wu to appeal the Court's order allowing the JKS Group to file a motion after the sixty-day deadline will not substantially delay the ultimate termination of the litigation, but the Court is doubtful of even that. Even if the case proceeds while the appeal is being considered, the Court anticipates that the parties would request the delay of discovery or other deadlines while a cloud of uncertainty as to who the lead plaintiff will be hovers over the case. Either way, simply failing to delay the litigation is insufficient to meet the third prong of the Section 1292(b) test. Judge Brieant declined to certify an interlocutory appeal for just that reason under circumstances similar to these. See In re Oxford Health Plans, Inc., 182 F.R.D. 51, 53 (S.D.N.Y. 1998) ("Oxford Ii"). In Oxford J, the court appointed three co-lead plaintiffs under the PSLRA. 182 F.R.D. at 49. One of the appointed co-lead plaintiffs requested certification of the question whether the court had discretion to appoint unrelated parties as co-lead plaintiffs. Three weeks later, the Court issued Oxford II, denying the request, primarily because the court had already "determined which plaintiffs [would] control the litigation and the case [was] ready to proceed under that structure," thus, the court concluded, "rather than advancing the litigation, certification would substantially delay it F.R.D. at 53. That logic is fully applicable to this case. 22

23 In any event, even if the third prong were met, Mr. Wu also cannot meet the other two prongs of the Section 1292(b) requirements, showing a "controlling question of law as to which there is substantial ground for difference of opinion." 28 U.S.C. 1292(b). The Second Circuit has not precisely defined a "controlling question of law," but has suggested that the court should consider whether "reversal of the district court's opinion could result in dismissal of the action; reversal of the district court's opinion, even though not resulting in dismissal, could significantly affect the conduct of the action; or, the certified issue has precedential value for a large number of cases." PrimaveraFanillienstifung, 139 F. Supp. 2d at 570 (citingklinghoffer v. S.N.C. AchilleLauro, 921 F.2d 21, (2d Cir. 1990)). Substantial ground for difference of opinion exists "when there is conflicting authority on the question, or the question is particularly difficult and of first impression for the circuit." Tyco, 2011 WL , at *5 (citation omitted). The Second Circuit has cautioned, however, that "the mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate a substantial ground for difference of opinion." In reflor, 79 F.3d 281, 284 (2d Cir. 1996). Mr. Wu argues that the question whether the PSLRA's sixty-day deadline must be "strictly applied" is a "controlling question of law." (Mem. Recons. at 6.) Mr. Wu certainly cannot show that reversal of the Court's order would result in dismissal of the action. And although the selection of a lead plaintiff certainly "affects the conduct" of an action, it is not clear that reversal of this order would result in a substantially different result for the case. Even if the Court refused to recognize the JKS Group, the two groups whose members compose the JKS Group (the Individual Investor Group and the Mahmud Group) each had vastly larger financial interests in the case than Mr. Wu. And even if the Court went as far as the minority view expressed in Donnkenny, 171 F.R.D. at , and refused to allow any groups to serve as 23

24 lead plaintiffs, three of the individual members of the JKS Group had much higher losses than Mr. Wu. 3 Nevertheless, the Court agrees that the question whether a court may relax the sixty-day filing deadline to allow a reconfigured group to seek appointment as lead plaintiff when the members of that group had previously filed timely motions for appointment is a purely legal question that has not been addressed by the Second Circuit. The Court will also assume arguendo that clear guidance from the Circuit on this question would be of some use to district courts in applying the PSLRA. The problem is that Mr. Wu has not shown a substantial ground for disagreement on the precise question at issue. The Court requested that the JKS Group file a motion after the sixtyday deadline as a housekeeping matter, but each of the members of the group also filed timely motions for appointment and the reconfiguration of the group was plainly not an attempt to manufacture the largest financial interest in the case. This decision is fully consistent with all of the authority that Mr. Wu cites. In Skwortz, the court refused to allow a lead plaintiff to file an initial motion on the sixty-first day, a wholly different situation from the one here WL , at 5. In Sgalanibo, the court noted in passing that a group combining two lead plaintiffs could not have joined together after the deadline to "have their losses aggregated for the purposes of calculating the movant with the 'largest financial interest in the relief sought," because "post-motion efforts to group movants to aggregate their losses violates the strict sixty day deadline to file a motion for lead plaintiff appointment" under the PSLRA. 268 F.R.D. at 173 n.20. But the court considered the group's motion and only declined to appoint the group lead plaintiff because it did not have the largest financial interest in the case, not because the In fact, W.J. Chiang, who withdrew his motion, also had slightly higher losses than Mr. Wu, as did the JinkoSolar Investor Group, which filed a notice of non-opposition to the competing lead plaintiff motions but stated that the group stood ready to step in as lead plaintiff if the presumptive lead plaintiffs were ultimately not appointed. (Dkt. No. 37.) Thus, Mr. Wu is, in fact, last in line of all of the parties that filed motions for lead plaintiff status. 24

25 group was formed after the deadline. Id. at 174. In Pirelli, the court refused to allow a potential lead plaintiff to supplement its loss figures after it had already filed its motion and after the sixtyday deadline because the movant's effort was an "attempt to manipulate the size of its losses based on information available to it at the time of its original lead plaintiff motion." 229 F.R.D. at 410. Although this decision speaks broadly about the importance of the deadlines mandated by the PSLRA, it is inapposite to the decision here. In the two cases from this district that confronted the actual issue before the Court whetherlead plaintiff candidates who filed timely motions may group together after the deadline thecourts' decisions are consistent with this Court's order. See Schulman, 2003 WL , at *4; Rozenbooni, 2004 WL , at 5. Thus, even if the Court were to find that there is a "controlling question of law" here, it is not one "as to which there is substantial ground for difference of opinion." 28 U.S.C Given the "great care" that the District Court must take in exercising its discretion to certify an order pursuant to Section 1292(b), Aristocrat Leisure, 426 F. Supp. 2d at 127, the Court declines to certify an appeal of the order here. Mr. Wu argues that fairness concerns compel an interlocutory appeal because "unless he is granted immediate appellate review, Mr. will lose his statutory right to control a class action in which he has tens of thousands of dollars at stake" and would have little "recourse on appeal of a final judgment" to unwind the entire litigation to allow him to start over as lead plaintiff. (Mem. Recons. 8-9.) In response to this concern, the Court notes that even if fairness weighed in favor of certification of an interlocutory appeal, the Court cannot certify a decision if the requirements of Section 1292(b) are not met. And, in any event, Mr. Wu's fairness argument is undercut by the fact that even if he were to prevail on appeal, there are several other groups and individuals who would be before him in line to be appointed as lead plaintiff. 25