Case 1:14-cv WHP Document 41 Filed 05/08/15 Page 1 of 5

Transcription

1 Case 1:14-cv WHP Document 41 Filed 05/08/15 Page 1 of 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x MICHAEL FREEDMAN, Plaintiff, :uc SUNY DOCUMENT ELECTRONICALLy FILED DOC#: DATE FILED:/ -against- 14cv9357 MOL GLOBAL, INC. et al., Defendants x WAYNE JEWELL, Plaintiff, -against- 1 4cv9493 MEMORANDUM & ORDER MOL GLOBAL, INC. etal., Defendants x WILLIAM H. PAULEY III, District Judge: Various plaintiffs in these federal securities class actions against MOL Global, Inc. move for appointment as lead plaintiff and lead counsel under the Private Securities Litigation Reform Act ("PSLRA"). Following publication of the required notice, seven separate individuals and entities filed motions. Five of them later withdrew their motions or otherwise chose not to oppose another movant. 1 As a result, two presumptive plaintiffs vie for appointment: (1) the Lembaga Tabung Amanah Pekerja (the "TAP Retirement Fund"), represented by Kirby McInerney, LLP; and (2) Marc DeForest, represented by Levi & 1 These were the ACG Group, LLC, represented by Robbins Arroyo, LLP; Robert Mackey represented, by Glancy Binkow & Goldberg, LLP; Wayne Jewell, represented by Robbins Geller Rudman & Dowd, LLP; John Rezk, represented by Faruqi & Faruqi, LLP; and the MOLG Investor Group, represented by Pomerantz, LLP. 1

2 Case 1:14-cv WHP Document 41 Filed 05/08/15 Page 2 of 5 Korsinsky, LLP. For the following reasons, the TAP Retirement Fund is appointed lead plaintiff, and Kirby McInerney, LLP is appointed lead counsel. DISCUSSION I. Consolidation Under the PSLRA, a court must decide whether to consolidate related actions prior to selecting a lead plaintiff. 15 U.S.C. 78u-4(a)(3)(B)(ii). The parties agree these actions should be consolidated. The complaints allege securities laws violations by MOL Global, Inc. and others, on behalf of purchasers of MOL Global shares from October 9, 2014 through November 20, 2014, or those whose purchases are traceable to the Registration Statement and Prospectus issued in connection with the company's IPO. While minor differences in class definitions exist, the complaints arise out of the same course of conduct by the same defendants. See, e.g., In re Facebook, Inc., IPO Sec. and Derivative Litig., 288 F.R.D. 26, (S.D.N.Y 2012). Consolidation serves the interests of judicial economy. II. Appointment of Lead Plaintiff The PSLRA requires a court to "appoint the most adequate plaintiff as lead plaintiff for the consolidated actions" as soon as practicable after consolidation. 15 U.S.C. 78u-4(a)(3)(B)(iii). The statute creates a rebuttable presumption that the lead plaintiff should be the plaintiff who: (a) has either filed a complaint or moved for lead plaintiff status; (b) has the largest financial interest in the relief sought; and (c) otherwise satisfies the typicality and adequacy requirements of Federal Rule of Civil Procedure U.S.C. 78u-4(a)(3)(B)(iii)(I). The plaintiff with the greatest financial interest in the litigation is entitled to a presumption in favor of appointment as lead plaintiff so long as that plaintiff otherwise satisfies the requirements

3 Case 1:14-cv WHP Document 41 Filed 05/08/15 Page 3 of 5 of Rule 23. Baydale v. Am. Express Co., 09 Civ (WHP), 2009 WL , at *2 (S.D.N.Y. Aug. 14, 2009). The TAP Retirement Fund is an institutional investor, maintained for the benefit of citizens and permanent residents of Brunei employed in the public and private sectors. The TAP Retirement Fund purchased 198,283 MOL Global shares during the class period, suffering damages of $ 1,398,289 far larger than any other movant making it the presumptive lead plaintiff. Marc DeForest, a competing movant, purchased 58,400 shares of MOL Global and suffered damages of $340,500. He objects to appointment of the TAP Retirement Fund. See Baydale, 2009 WL , at *2 ("Other members of the purported class may try to rebut the statutory presumption by showing that the lead plaintiff will not fairly and adequately protect the interests of the class or is incapable of adequately representing the class because of unique defenses."). DeForest argues that the Lembaga Tabung Amanah Pekerja ("LTAP") is akin to an outside investment advisor seeking to sue on behalf of a separate entity the retirement fund itself Tabung Amanah Pekerja ("TAP"). Cf. W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100 (2d Cir. 2008). Thus, he asserts LTAP lacks standing to prosecute claims on behalf of the class. DeForest's argument is not persuasive. The TAP Retirement Fund's papers do not distinguish between "LTAP" and "TAP." And according to the TAP Retirement Fund's sworn declaration, "LTAP" and "TAP" refer to the same entity; LTAP is the Board of Directors of TAP, and entrusted with the authority to handle the fund's affairs and pursue its legal rights. See Norliah Decl. J 3, 4. Indeed, the present action is distinguishable from the case law cited by DeForest in which a separate outside investment advisor sought to sue

4 Case 1:14-cv WHP Document 41 Filed 05/08/15 Page 4 of 5 on the investments held by another entity. Pipefitters Local No. 636 Defined Benefit Plan v. Bank of Am. Corp., 275 F.R.D. 187 (S.D.N.Y. 2011) (holding that a Swedish pension fund manager lacked standing to sue because it did not hold any Bank of America shares). Further, Norliah Binti Haji Kula, the Managing Director of the TAP Retirement Fund and a member of its Board of Directors, asserts he has the authority to sign the certification on behalf of the TAP Retirement Fund. See Norliah Decl. 5. DeForest also argues that the TAP Retirement Fund is an inadequate lead plaintiff because under Brunei law, judgments rendered against it might not be enforceable in Brunei. DeForest's objections are speculative, and any res judicata concerns are unfounded where, as here, the MOL Global shares were purchased on a domestic exchange. See Foley v. Transocean Ltd., 272 F.R.D. 126, 133 (S.D.N.Y. 2011) ("While in some contexts courts have identified rc judicata concerns in not appointing foreign investors as lead plaintiffs, this has been explicitly rejected when the foreign lead plaintiff movants are suing as a result of purchases made on a domestic securities exchange."). Thus, DeForest fails to rebut the PSLRA's presumption that the TAP Retirement Fund should act as lead plaintiff. III. Appointment of Lead Counsel The TAP Retirement Fund's counsel, Kirby McInerney LLP, is competent and experienced. Accordingly, this Court grants Kirby McInerney LLP's motion to be appointed as lead counsel.

5 Case 1:14-cv WHP Document 41 Filed 05/08/15 Page 5 of 5 CONCLUSION For the foregoing reasons, the TAP Retirement Fund is appointed lead plaintiff, and Kirby McInerney, LLP is appointed lead counsel. These actions are consolidated under the caption, "In re MOL Global, Inc. Securities Litigation, No. 14 Civ " Dated: May 8, 2015 New York, New York SO ORDERED: WILLIAM H. PAULEY III U.S.D.J. All Counsel of Record. 5