Case 1:17-cv WHP Document 10 Filed 08/28/17 Page 1 of 5 : : : : : : : : : : : : : : : : : : : : : : : : :

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1 Case 117-cv WHP Document 10 Filed 08/28/17 Page 1 of 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK NORMAND BERGERON, individually and on behalf of all others similarly situated, -against- Plaintiff, MAZOR ROBOTICS LTD., et al., Defendants. NICK ISE, individually and on behalf of all others similarly situated, -against- Plaintiff, MAZOR ROBOTICS LTD., et al., Defendants. WILLIAM H. PAULEY III, District Judge 17cv cv4422 MEMORANDUM & ORDER Nick Ise and Normand Bergeron each bring a federal securities class action lawsuit against Mazor Robotics Ltd. ( Mazor ), Ori Hadomi, Eliyahu Zehavi, and Sharon Levita. Zhimin He and Socorro Trujillo s move to consolidate the above-captioned actions and to appoint themselves as lead plaintiffs and The Rosen Law Firm, P.A. as lead counsel under the Private Securities Litigation Reform Act ( PSLRA ). Their motion is unopposed. For the following reasons, He and Trujillo are appointed lead plaintiffs, and The Rosen Law Firm, P.A. is appointed lead counsel. BACKGROUND On June 9, 2017, Bergeron commenced a class action lawsuit on behalf of a class of persons and entities who acquired Mazor s securities between November 8, 2016 and June 8,

2 Case 117-cv WHP Document 10 Filed 08/28/17 Page 2 of , both dates inclusive. The lawsuit alleges that between November 2016 and April 2017, Defendants made materially false or misleading statements and/or omissions in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. According to the complaint, Mazor s subsequent corrective disclosures caused the price of its securities to plummet. Ise filed his action three days after Bergeron, making substantially the same allegations against the same Defendants. Following publication of the notice required by 15 U.S.C. 78u-4(a)(3)(A), three sets of movants timely sought to appoint lead plaintiffs and lead counsel (1) Gavin Chandler, represented by Glancy Prongay & Murray LLP; (2) the Susan Nick Trust and James Ljutic, represented by Pomerantz LLP; and (3) Zhimin He and Socorro Trujillo, represented by The Rosen Law Firm, P.A. Thereafter, the Susan Nick Trust and Ljutic withdrew their motion, and Chandler chose not to oppose He and Trujillo s motion. DISCUSSION I. Consolidation Under the PSLRA, a court must decide whether to consolidate actions on behalf of a class asserting substantially the same claim or claims before selecting a lead plaintiff. 15 U.S.C. 78u-4(a)(3)(B)(ii). Rule 42 of the Federal Rules of Civil Procedure allows the court to consolidate actions that involve a common question of law or fact. Fed. R. Civ. P. 42(a)(2). Here, it is unsurprising that all movants seek consolidation of the actions, given that the named Defendants, proposed class, allegedly actionable statements and/or omissions, and theories of recovery in both actions are substantially the same. It follows that consolidation would serve the interests of judicial economy in avoiding duplicative discovery, motion practice, conferences, and trial. Accordingly, the above-captioned actions are consolidated. II. Appointment of Lead Plaintiffs and Lead Counsel Under the PSLRA, the court must appoint as lead plaintiff the member or 2

3 Case 117-cv WHP Document 10 Filed 08/28/17 Page 3 of 5 members of the purported class that it determines to be most capable of adequately representing the interests of class members. 15 U.S.C. 78u-4(a)(3)(B)(i). The PSLRA creates a rebuttable presumption that the most adequate plaintiff is the one who (aa) has either filed the complaint or made a motion in response to a notice under subparagraph (A)(i); (bb) in the determination of the court, has the largest financial interest in the relief sought by the class; and (cc) 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). In determining the plaintiff with the largest financial interest, courts consider the following factors (1) the number of shares purchased during the class period; (2) the number of net shares purchased during the class period; (3) the net funds expended during the class period; and (4) the approximate losses suffered. Phuong Ho v. NQ Mobile, Inc., Nos. 13-cv-7608, 13- cv-7685, 13-cv-7713, 13-cv-7637, 13-cv-8125, 2014 WL , at *1 (S.D.N.Y. Apr. 9, 2014). The magnitude of the loss is the most significant factor. Phuong Ho, 2014 WL , at *1. By all relevant metrics, He and Trujillo have the largest financial interest (1) they acquired 2,236 shares, compared to 577 shares for Chandler; (2) they expended $93,251.63, compared to a net expenditure of $22, for Chandler; and (3) their approximate loss of $17, dwarfs Chandler s approximate loss of $1, Accordingly, He and Trujillo are entitled to a presumption in favor of appointment as lead plaintiff[s] so long as they otherwise satisfy the requirements of Rule 23. Phuong Ho, 2014 WL , at *1. A proposed lead plaintiff must make a preliminary showing that it satisfies the typicality and adequacy requirements of Rule 23. Phuong Ho, 2014 WL , at *2; see also In re Oxford Health Plans, Inc. Sec. Litig., 182 F.R.D. 42, 49 (S.D.N.Y. 1998) ( Typicality and adequacy of representation are the only provisions relevant to a determination of lead plaintiff under the PSLRA. ). Typicality is satisfied where a plaintiff has suffered the same injuries as other class members as a result of the same wrongful conduct and has claims based on the same 3

4 Case 117-cv WHP Document 10 Filed 08/28/17 Page 4 of 5 legal issues. In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285, 291 (2d Cir. 1992). The adequacy prong concerns (1) whether the plaintiff s claims conflict with those of the class; and (2) whether class counsel is qualified, experienced, and generally able to conduct the litigation. Phuong Ho, 2014 WL , at *2. Here, He and Trujillo s moving papers are sufficient to suggest that they are able to satisfy the typicality and adequacy requirements of Rule 23. In sum, He and Trujillo are entitled to the rebuttable presumption that they are the most adequate plaintiffs. No other member of the purported plaintiff class has offered proof that they will not fairly and adequately protect the interests of the class or that they are subject to unique defenses that render [them] incapable of adequately representing the class. 15 U.S.C. 78u-4(a)(3)(B)(iii)(II). Thus, He and Trujillo are hereby appointed as lead plaintiffs. Moreover, He and Trujillo s counsel, The Rosen Law Firm, P.A., is experienced and competent. Accordingly, this Court appoints The Rosen Law Firm, P.A. as lead counsel. CONCLUSION Based on the foregoing, Chandler s motion is denied, and He and Trujillo s motion is granted. He and Trujillo are hereby appointed as lead plaintiffs, and The Rosen Law Firm, P.A. is appointed as lead counsel. It is further ordered that (1) The above-captioned actions are consolidated for all purposes under the caption In re Mazor Robotics Ltd. Securities Litigation, No. 17-cv (2) The docket in No. 17-cv-4387 shall constitute the Master Docket for this action. (3) Every pleading filed in the consolidated action shall bear the following caption UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK X In re MAZOR ROBOTICS LTD. Securities Master File No. 17-cv-4387 Litigation X 4

5 Case 117-cv WHP Document 10 Filed 08/28/17 Page 5 of 5 (4) The Clerk of Court is directed to terminate all pending motions. Dated August 28, 2017 New York, New York SO ORDERED WILLIAM H. PAULEY III U.S.D.J. 5