NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA. ORDER v. Freeport-McMoran Incorporated, et al., Defendants.

Transcription

1 Case :-cv-00-djh Document Filed 0// Page of 0 0 NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Dean Magro, et al., No. CV--00-PHX-DJH Plaintiffs, ORDER v. Freeport-McMoran Incorporated, et al., Defendants. This is a putative class action for securities fraud brought pursuant to the Securities Exchange Act of as amended by the Private Securities Litigation Reform Act of ( the PSLRA or the Reform Act ). Pending before the Court are two competing motions wherein the movants are each seeking appointment as Lead Plaintiff pursuant to section u (a)() of the PSLRA. The movants also are seeking Court approval of their respective counsel as Lead Counsel and Liaison Counsel in accordance with section u (a)()(b)(v) of that Act. Taken in the order of filing, the first motion is by Powszechne Towarzystwo Emerytalne PZU Spólka Akcyjna ( PZU ) (Doc. ). PZU, which is seeking appointment as Lead Plaintiff, is an institutional investor which manages and operates a Polish open pension fund. (Doc. - at, -). PZU purchased common stock from defendant Freeport-McMoran Incorporated ( Freeport ) on behalf of the fund during the Class Period, i.e., between February, 0 and January, 0. (Id. at, 0); (Doc. - at ). Further, PZU is seeking approval of

2 Case :-cv-00-djh Document Filed 0// Page of 0 0 the law firm of Levi & Korsinsky LLP as Lead Counsel and the law firm of Goldman & Zwillinger PLLC as Liaison Counsel. In the second motion, four individual investors, Paul Kim, Malik M. Ghanayem, and James E. and Patricia Henry ( Freeport Group ), also are seeking appointment as Lead Plaintiff (Doc. ). Likewise, the Freeport Group is seeking approval of the law firm of Pomerantz LLP as Lead Counsel and the law firm of Martin & Bonnett PLLC as Liaison Counsel. Having determined that oral argument is unnecessary, the Court rules as follows. I. Background Freeport has mining operations world-wide. The present case involves Freeport s mining operations in Indonesia, where, in 0, some % of [Freeport s] gold production and one-sixth of its copper output came from [Freeport s] operations in a specific Indonesian mineral district. (Doc. at, ). James Moffett, Freeport s cofounder and former Chief Executive Officer ( CEO ), played a key role in developing [Freeport s] Indonesian operations, and often led negotiations for Freeport with Indonesian legislators and officials[.] (Id. at, ). In this development role, the complaint alleges that Mr. Moffett appointed Maroef Sjamsuddin ( Sjamsuddin ), a retired Air Vice Marshal of the Indonesian Air Force and deputy chief of Indonesia s National Intelligence Agency, to head Freeport Indonesia, despite Sjamsuddin s lack of experience in mining. (Id. at, ). The complaint further alleges that [t]hroughout the Class Period, defendants made materially false and misleading statements regarding the Company s business, operational and compliance policies. (Doc. at, ). Specifically, defendants made false and/or misleading statements and/or failed to disclose that: (i) Sjamsuddin had discussed, with senior officials in the Indonesian government, bribing Indonesian government officials in return for an extension of Freeport s right to operate in the country; (ii) that Freeport had violated the Foreign Corrupt Practices Act ( FCPA ); and (iii) as a result of the foregoing, Freeport s public statements were materially false and misleading at all relevant times. (Id. at -, ). - -

3 Case :-cv-00-djh Document Filed 0// Page of 0 0 On November, 0, the Financial Times reported the news, initially reported by the Jakarta Globe that Freeport had pledged its full cooperation in an impending inquiry by the Indonesian House of Representatives probe into its Speaker[ s] solicitation of bribes from Freeport. (Doc. at, -). On this news, that same day, Freeport s stock fell.%. (Id. at, 0). About a week later an Indonesian magazine published an interview with the Speaker regarding his dealings with Freeport Indonesia. (Id. at -, ). In this interview, the Speaker disclosed that he believed that Mr. Sjamsuddin had attempted to blackmail and entrap him. (Id. at, ). On the publication date of this article, Freeport stock fell.%. (Id. at, ). The next day, on November, 0, the blog Indonesian Development Monitoring reported that Indonesia s State-Owned Enterprise Workers Union intended to request that the U.S. Department of Justice ( DOJ ) investigate Freeport for potential violations of the FCPA, by engaging in what we believe is likely... bribery of high-level government official and Chief of House Speaker in Indonesia to renew[] the Freeport mining contract. (Id. at, ). On December, 0, testifying before an Indonesian parliamentary committee regarding [the Speaker s] solicitation of bribes from Freeport, Sjamsuddin stated that he had turned over his recording of the conversation with [the Speaker] to his superiors at Freeport to show [his] integrity and transparency before the recording was turned over to the Indonesian government. (Id. at, ). Following this news, on that same day, Freeport stock fell.%. (Id. at, ). Thereafter, in fairly quick succession, Messrs. Moffett and Sjamsuddin resigned. (Id. at, and ). After each resignation, Freeport stock fell again. (Id. at, and ). This lawsuit is being brought on behalf of all persons other than defendants who purchased or otherwise acquired Freeport securities during the Class Period, seeking to recover damages caused by defendants violations of the federal securities laws and to pursue remedies under 0(b) and 0(a) of the Securities Exchange Act of (the - -

4 Case :-cv-00-djh Document Filed 0// Page of 0 0 Exchange Act ) and Rules 0b- promulgated thereunder against defendants Freeport; Richard C. Adkerson, Freeport s Vice Chairman, CEO and President during the relevant times; and Kathleen L. Quirk, Freeport s Chief Financial Officer, Executive Vice President and Treasurer during the relevant times. (Doc. at, ;, -). The complaint alleges two counts. In the first, it alleges violations of section 0(b) of the PLSRA and Rule 0b- promulgated thereunder against all three defendants. The second count, against the individual defendants only alleges violations of section 0(a) of the PLSRA. Further, the complaint alleges that [a]s a result of defendants wrongful acts and omissions, and the precipitous decline in the market value of the Company s securities, Plaintiff and other Class members have suffered significant losses and damages. (Id. at, 0). II. Discussion Originally, there were five movants vying to be appointed Lead Plaintiff and to have their respective counsel serve as Lead and Liaison Counsel. Since the filing and review of these motions Abraham Kiswani withdrew his, conceding that he does not possess the largest financial interest among the various movants. (Doc. at :-). Two others have filed Notices of Non-Opposition. In its Notice, the City of Birmingham Retirement and Relief System ( Birmingham ) recognized that it also does not possess the largest financial interest in the relief sought by the class[] as the PSLRA requires. (Doc. at :-) (internal quotation marks omitted). Without any factual or legal basis, Birmingham then generally challenges PZU s adequacy as lead plaintiff. Thus, Birmingham does not oppose the appointment of Robert Beeman, Thomas Lee, and Sharon Jamie [( the Beeman Group )] as Lead Plaintiff and its selection of Counsel. (Id. at :-). Despite the foregoing, after reviewing PZU s reply, the Beeman Group submitted its own Notice of Non-Opposition as to PZU. (Doc. ). PZU asks this Court to disregard[] Birmingham s Notice and strongly implies that it should be construed as a withdrawal of Birmingham s motion. (Doc. at, n. ). The Court will so construe this Notice. As PZU accurately points out, there is authority, - -

5 Case :-cv-00-djh Document Filed 0// Page of 0 0 albeit scant, for adopting this procedure. See Knox. v. Yingli Green Energy Holding Co., F.Supp.d,, n. (C.D.Cal. 0) (construing movant s Notice of Non- Opposition to the appointment of another as lead plaintiff as withdrawal of the movant s own request for such appointment); In re Spectranetics Corp. Secs. Litig., 00 BL at * (D.Colo. 00) (two movants effect[ively] withdrew their motions for appointment of lead plaintiff and approval of selection of counsel given their filing of a notice of non-opposition and a memorandum of non-opposition). Even if the Court did not construe Birmingham s Notice as a withdrawal, such Notice would have no bearing on the pending motions. See In re Vonage Initial Pub. Offering Sec. Litig., 00 WL, at * n. (D.N.J. 00) ( no authority exists for the Court to favor one potential lead plaintiff based upon the support of another potential lead plaintiff). This reasoning is even more compelling here where Birmingham is supporting a putative lead plaintiff, the Beeman Group, which has, effectively, withdrawn its own motion and is now supporting another potential plaintiff - PZU. The Beeman Group s Notice was filed in response to PZU s reply and this District does not allow sur-replies. Therefore, the Court does not have the benefit of knowing PZU s position with respect to this particular Notice. Perhaps PZU would take the same position as it did with respect to Birmingham, but perhaps not given that now the Beeman Group is supporting PZU. Irrespective, the Court also will construe the Beeman Group s Notice as a withdrawal of the Group s motion. The Court will do so based upon the above cited authority. As it did with Birmingham s Notice, however, the Court declines to favor PZU as lead plaintiff based upon the Beeman Group s Notice. See Vonage, 00 WL, at * n.. The Court thus is left with the two competing motions of PZU and the Freeport Group. Freeport Group did not file a response to PZU s motion. LRCiv.(i) provides Citing to three cases, one of which is inapplicable, PZU claims that [n]otices of non-opposition are routinely treated as withdrawals[.] (Doc. at, n.). The Court s research, admittedly non-exhaustive, did not reveal any authority to the contrary. By the same token, however, the two applicable cited cases have not been cited since. Thus, it can hardly be said, that courts routinely proceed in this way. - -

6 Case :-cv-00-djh Document Filed 0// Page of 0 0 in part that if counsel does not serve and file the required answering memoranda,... such non-compliance may be deemed a consent to the... granting of the motion and the Court may dispose of the motion summarily. LRCiv..(i) (emphasis added). Relying upon this Rule, PZU is requesting that the Court deny the Freeport Group s motion. In the exercise of its discretion, the Court will not deem the Freeport Group s failure to file a response to be consent to the granting of PZU s motion. To do otherwise would be paradoxical; it would mean that the Freeport Group would be consenting to PZU s appointment as lead plaintiff at the same time that it is seeking to be appointed lead plaintiff. A. PSLRA Framework The PSLRA sets forth a simple three step process for identifying the lead plaintiff thereunder. In re Cavanaugh, 0 F.d, ( th Cir. 00). Succinctly put, the three steps are as follows. At step one, notice must be provided. U.S.C. u-(a)()(a). At step two, the Court must choose the plaintiff who has the greatest financial stake in the outcome of the case[,] and determine whether that plaintiff satisfies Rule (a) s typicality and adequacy requirements. See Cavanaugh, 0 F.d at. At step three, other plaintiffs are given an opportunity to rebut the presumptive lead plaintiff s showing that it satisfies [those] Rule [(a)]... requirements. Id. at 0 (citing U.S.C. u-(a)()(b)(iii)(ii)). If the other plaintiffs do not adequately rebut the Court's initial determination, then the Court should appoint the presumptive lead plaintiff to be the actual lead plaintiff. In re MGM Mirage Sec. Litig., 00 WL, at * (D. Nev. 00). On the other hand, [i]f the plaintiff with the greatest stake does not satisfy the Rule (a) criteria, then the Court must repeat the inquiry with regard to the next-largest financial stakeholder. Id. at *..... In setting forth the details of this framework, the Court has borrowed heavily from Teamsters Local Pension and Welfare Fund v. Apollo Group, 00 WL (D.Ariz. 00), and at times it is quoting practically verbatim therefrom. For ease of reading, many of the citations to Apollo Group are omitted. As will become readily apparent, Apollo Group also heavily informs this Court s analysis. - -

7 Case :-cv-00-djh Document Filed 0// Page of 0 0. Notice The first plaintiff to file an action covered by the Reform Act must, within 0 days of filing, cause to be published, in a widely circulated national business-oriented publication or wire service, a notice[.] U.S.C. u (a)()(a)(i). Such notice shall... advis[e] members of the purported plaintiff class... of the pendency of the action, the claims asserted therein, and the purported class period[.] U.S.C. u (a)()(a)(i)(i). The undisputed purpose of the PSLRA's notice requirement is to ensure that the most adequate plaintiff emerges to the position of representing the class. Anchor Capital Advisors, F.d at, n.. To that end, class members who want to be appointed lead plaintiff must make a motion within 0 days of that statutorily mandated publication. See U.S.C. u (a)()(a)(i)(ii). Any class member, regardless of whether he has filed a complaint, may move for appointment as lead plaintiff. Ferrari v. Gisch, F.R.D., 0 (C.D.Ca.00) (citing U.S.C. u (a)()(b)(i)). If more than one action is filed, only the plaintiff in the first filed action is required to publish notice. See U.S.C. u-()(a)()(a)(ii). However, [e]ach prospective lead plaintiff must provide a sworn certification representing inter alia that he or she has read the complaint, did not purchase the security at the direction of counsel or in order to participate in any private action, and is willing to serve as a representative party. Richardson v. TVIA, Inc., 00 WL, at * (N.D.Cal. 00) (citing U.S.C. u (a)()(a)(i) (iii)). On January, 0, the Pomerantz law firm and the Martin & Bonnett law firm, representing the Freeport Group, filed a class action complaint naming Dean Magro as plaintiff. Simultaneously with the filing of that complaint, Pomerantz issued a press release through Globe Newswire[.] (Doc. 0 at, n. ) (citation omitted). Mirroring the language of U.S.C. -u(a)()(a)(i), PZU states that Globe Newswire is a widely circulated national business-oriented service. (Doc. 0 at, n. ) (citation Apton Decl n (Doc. at, ). To support this statement, PZU cites to the declaration of attorney Adam - -

8 Case :-cv-00-djh Document Filed 0// Page of 0 0 omitted). This press release advises of the filing of this lawsuit and provides a brief factual background of the alleged securities fraud, as well as identifying the class period in accordance with U.S.C. u-(a)()(a). It also informs any shareholder who purchased Freeport securities during the Class Period that they had until March, 0, by which to ask the Court for appointment as class Lead Plaintiff. (Doc. - at ). Based upon the foregoing, the PLSRA s notice requirements are met on this record. Thereafter movants each timely brought their respective motions for appointment as lead plaintiff and approval of lead and liaison counsel. They also provided the statutorily mandated certifications. (Doc. - at -; Doc. - at -). Thus, the movants each have satisfied the threshold requirement to serve as lead plaintiff. See Zhu v. UCBH Holdings, Inc., F.Supp.d 0, 0 (N.D.Cal. 00).. Financial Stake Turning to the issue of which movant is the most capable of adequately representing the interests of the class members[,] Anchor Capital, F.d at, (quoting U.S.C. u (a)()(b)(i)), the district court must consider the losses allegedly suffered by the various plaintiffs[.] Cavanaugh, 0 F.d at. Recognizing that the PSLRA narrowly defines most capable [,] the Ninth Circuit has held that [t]he most capable plaintiff-and hence the lead plaintiff-is the one who has the greatest stake in the outcome of the case, so long as [it] meets the requirements of Rule. Id. (footnote omitted). In this regard, [t]he district court must compare the financial stakes of the various plaintiffs and determine which one has the most to gain from the lawsuit. Id. at 0 (footnote omitted). The significance of this inquiry is evident from the Cavanaugh Court's admonition that a straightforward application of the M. Apton and exhibit C thereto, which is a copy of the press release. Nowhere in the Apton declaration or, not surprisingly, in the press release does it actually state that the Globe Newswire is a widely-circulated national business-oriented wire service. See Doc. 0 at, n.. Presumably this is so. See Francisco v. Abengoa, S.A., 0 WL 00, at * (S.D.N.Y. 0) (As the PLSRA requires, Plaintiff s counsel, which is also PZU s counsel, published notice over Globe Newswire... announcing that a securities class action had been filed against Abengoa and the individual defendants, and advising Abengoa shareholders of the time frame for filing a motion for appointment as lead plaintiff.). - -

9 Case :-cv-00-djh Document Filed 0// Page of 0 0 [PSLRA s] statutory scheme provides no occasion for comparing plaintiffs with each other on any basis other than their financial stake in the case. Id. at (emphasis added). The Ninth Circuit has not prescribed a particular method for calculating a plaintiff's financial interest but has directed that courts may select accounting methods that are both rational and consistently applied. Robb v. Fitbit Inc., 0 WL, at * (N.D. Cal. 0) (quoting Cavanaugh, 0 F.d at 0 n.). Courts often look to the Olsten-Lax factors for guidance. Id. (citing See, e.g., Richardson v. TVIA, Inc., 00 WL, at * (N.D. Cal. 00) (citing In re Olsten Corp. Sec. Litig., F. Supp. d, (E.D.N.Y. ); Lax. v. First Merchants Acceptance Corp., WL 0, at * (N.D. Ill. )). Under this test, courts examine: () the number of shares purchased during the class period; () the number of net shares purchased during the class period; () the total net funds expended during the class period; and () the approximate losses suffered. Id. The last of these factors typically carries the most weight. Id. (citing In re Diamond Foods, Inc., Sec. Litig., F.R.D. 0, 0 (N.D. Cal. 0)). Once the Court has calculated which putative Lead Plaintiff has the greatest financial interest, it must... focus its attention on that plaintiff and determine, based on the information [it] has provided in [its] pleadings and declarations, whether [it] satisfied the requirements of Rule (a), in particular those of typicality and adequacy. Cavanaugh, 0 F.d at 0 (footnote omitted) (emphasis in original). If the plaintiff with the largest financial stake in the controversy provides information that satisfies these requirements, he becomes the presumptively most adequate plaintiff. Id. (emphasis added). On the other hand, [i]f the plaintiff with the greatest financial stake does not satisfy the Rule (a) criteria, the court must repeat the inquiry, this time considering the plaintiff with the next-largest financial stake, until it finds a plaintiff who is both willing to serve and satisfied the requirements of Rule. Id. This process must be repeated sequentially until all challenges have been exhausted. Id. at (citation and footnote omitted). - -

10 Case :-cv-00-djh Document Filed 0// Page 0 of 0 0 Comparing PZU s losses with those of the Freeport Group, it is readily apparent from their respective loss charts that the former has the largest financial stake in this litigation. The Freeport Group, comprised of three individual investors, claims losses of $0,.00. (Doc. at :) (citation omitted). This amount is paltry in comparison to PZU, a large institutional investor, which is claiming losses of approximately $. million[.] (Doc. 0 at :0); see also Doc. at, ; and exh. A thereto (Doc. -) (chart calculating PZU s losses). Given these approximate losses, obviously PZU is the most adequate plaintiff. See U.S.C. u (a)()(b)(iii)(i). PZU s claimed losses are not dispositive of the issue of presumptive Lead Plaintiff, however, as earlier mentioned. Thus, the Court will next, as it must, focus its attention on PZU to see whether it satisfies the typicality and adequacy requirements of Fed.R.Civ.P.. See Cavanaugh, 0 F.d at 0 ( Once it determines which plaintiff has the biggest stake, the court must appoint that plaintiff as lead, unless it finds that he does not satisfy the typicality or adequacy requirements. ) The Court will limit its analysis under Rule because [a] wide ranging analysis is not appropriate to determine whether [PZU] has made a prima facie showing that [it] satisfies the requirements of Rule [. ] See Tanne v. Autobytel, Inc., F.R.D., (C.D.Cal.00). Indeed, examination of the other two factors under Rule, numerosity and the existence of common questions of law or fact, is deferred until the lead plaintiff moves for class certification[ ] under that Rule. Richardson, 00 WL, at *. a. Rule (a) i. Typicality Rule (a)() requires that the claims or defenses of the representative parties are typical of the claims or defenses of the class. Fed.R.Civ.P. (a)(). Under that Rule's permissive standards, representative claims are typical if they are reasonably coextensive with those of absent class members; they need not be substantially identical. Staton v. Boeing Co., F.d, ( th Cir. 00) (quoting Hanlon v. Chrysler Corp., 0 F.d 0, 00 ( th Cir. )). Typicality does not mean that the claims of the class representative[s] must be identical or substantially identical to - 0 -

11 Case :-cv-00-djh Document Filed 0// Page of 0 0 those of the absent class members. Id. (quoting Herbert B. Newberg & Alba Conte, Newberg on Class Actions,. at 0 (d ed.)) (other citation mitted). Thus, [t]he test for typicality[,] as the Ninth Circuit defines it, is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same conduct. Ellis v. Costco Wholesale Corp., F.d 0, ( th Cir. 0) (quoting Hanon v. Dataproducts Corp., F.d, 0 ( th Cir. )). That test is easily met here. PZU, as with the other putative class members, purchased Freeport stock during the Class Period. And, also just like the other putative class members, PZU was adversely affected by the allegedly false and misleading statements Defendants made which, in turn, allegedly caused a precipitous decline in the market value of [Freeport] securities. See Doc. at, 0. Further, PZU, as well as the other putative class members, allegedly suffered significant financial losses and damages as a result of Defendants' violations of the securities laws. ii. Adequacy Having found that PZU s claims are typical of the putative class, the Court will next briefly consider whether PZU can will fairly and adequately protect the interests of the class[] in accordance with Fed.R.Civ.P. (a)(). To determine whether PZU meets this standard, [the Court] ask[s] two questions: () Do the representative plaintiffs and their counsel have any conflicts of interest with other class members, and () will the representative plaintiffs and their counsel prosecute the action vigorously on behalf of the class? Staton, F.d at (quoting Hanlon, 0 F.d at 00) (other citations omitted). The typicality requirement, too, is easily met here. There is no evidence that [PZU] is in any way antagonistic to, or has a conflict with, any putative member of the class. See Apollo Group, 00 WL, at *. The same is true with respect to PZU s retained Lead Counsel, Levi & Korsinsky and Liaison Counsel, Goldman & Zwillinger. What is more, given the sizeable alleged financial losses (over $[] million), plainly [PZU] has a more than sufficient interest in the outcome of th[is] case to ensure - -

12 Case :-cv-00-djh Document Filed 0// Page of 0 0 vigorous advocacy. Id. (quoting Ferrari, F.R.D. at 0 (citation omitted)). The Court thus easily finds that PZU has made the necessary preliminary showing that it meets the typicality and adequacy factor[s]. See Zhu, F.Supp.d at 0 (citation omitted). Given that PZU is the plaintiff with the largest financial losses by far, and because it satisfies both the typicality and adequacy requirements, it is the presumptively most adequate plaintiff[,] and hence is entitled to lead plaintiff status[.] See Cavanaugh, 0 F.d at 0 (internal quotation marks and footnote omitted) and.. Rebuttal The third step under Cavanaugh is that a court must give other plaintiffs an opportunity to rebut the presumptive lead plaintiff's showing that it satisfies Rule 's typicality and adequacy requirements. Cavanaugh, 0 F.d at 0. The Cavanaugh Court stressed the fact [t]hat the presumption is rebuttable does not mean that it may be set aside for any reason that the court may deem sufficient. Id. at n.. Rather, the statute provides that the presumption may be rebutted only upon proof... that the presumptively most adequate plaintiff does not satisfy the adequacy or typicality requirements of Rule. Id. (quoting U.S.C. u (a)()(b)(iii)(ii)) (emphasis added). Just as in Apollo Group, the record in the present case is completely void of any such proof. Apollo Group, 00 WL, at *. Thus, after engaging in the mandatory sequential statutory process, the court is left with the firm conviction that [PZU] is the most capable of adequately representing the interests of the class members. Id. (quoting U.S.C. u (a)()(b)(i)). Consequently, the Court grants PZU s motion for appointment as Lead Plaintiff under the PSLRA. III. Lead & Liaison Counsel Following the appointment of Lead Plaintiff, the Reform Act mandates that [that] [P]laintiff shall, subject to the approval of the court, select and retain counsel to represent the class. Apollo Group, 00 WL at * (quoting U.S.C. u(a)()(b)(v)) (emphasis added). A court may disturb the lead plaintiff's choice of counsel only if it appears necessary to protect the interests of the class. Id. (quoting - -

13 Case :-cv-00-djh Document Filed 0// Page of 0 0 Tanne, F.R.D. at (citing U.S.C. u-(a)()(b)(iii)(ii)(aa)). Just as in Apollo Group, there is no need to disturb [PZU s] choice of [Levi & Korsinsky] to serve as [L]ead [C]ounsel. See id. As Levi & Korsinsky s firm resume reflects, it possesses the requisite degree of experience and qualifications to adequately represent the interests of the putative class. See Doc. - at -. Thus, this Court, like many others... before it, finds that Levi & Korsinsky is qualified to serve as Lead Counsel of the class. See Francisco, 0 WL 00 at * (citation omitted); see also Doc. - at - (listing securities fraud class actions where the Levi law firm has been appointed Lead or Co- Lead Counsel). As a result, the Court approves the PZU s selection of Levi & Korsinsky to serve as Lead Counsel. The Court is keenly aware of its fairly circumscribed role in approving a Lead Plaintiff s selection of Lead Counsel and, necessarily, approving Lead Counsel s selection of Liaison Counsel. Nonetheless, at this juncture the Court declines to approve Lead Counsel s selection of Goldman & Zwillinger PLLC as Liaison Counsel because there is nothing in the record akin to Levi & Korsinsky s firm resume showing that the Goldman law firm is qualified to serve in that capacity in this securities fraud class action. Therefore, the Court denies Lead Plaintiff s motion without prejudice to renew to the extent it is seeking to have the Goldman & Zwillinger law firm approved as Liaison Counsel. IV. Conclusion For the reasons set forth herein, IT IS HEREBY ORDERED: () GRANTING the Motion by Powszechne Towarzystwo Emerytalne PZU Spólka Akcyjna for Appointment as Lead Plaintiff (Doc. 0); () GRANTING the Motion by Powszechne Towarzystwo Emerytalne PZU Spólka Akcyjna for Approval of Levi & Korsinsky LLP to serve as Lead Counsel (Doc. 0); () DENYING without prejudice to renew the Motion by Powszechne Towarzystwo Emerytalne PZU Spólka Akcyjna for Approval of Goldman & Zwillinger - -

14 Case :-cv-00-djh Document Filed 0// Page of 0 0 PLLC to serve as Liaison Counsel (Doc. 0); () DENYING all other Motions to Appoint Lead Plaintiff and Approval of Lead Counsel (Docs.,, and ). Dated this th day of August, 0. Honorable Diane J. Humetewa United States District Judge - -