J. PAUL OETKEN, District Judge.
Plaintiff Waterford Township Police and Fire Retirement System ("Waterford") brought this putative class action against Ply Gem Holdings, Inc. ("Ply Gem"), the underwriters of its initial public offering, and several of its executives, pursuant to Sections 11 and 15 of the Securities Act, 15 U.S.C. §§ 770, 77k. Waterford published notice of the putative class action on Business Wire shortly after filing suit. See The Private Securities Litigation Reform Act ("PSLRA"), 15 U.S.C. § 77z-1(a)(3)(A)(i). In response, two
The PSLRA establishes a procedure to appoint a lead plaintiff in securities class actions. First, the plaintiff who filed the initial complaint must publish a notice informing class members of their right to move to be lead plaintiff within sixty days of the notice. 15 U.S.C. § 78u-4(a)(3)(A)(i). The Court then selects a lead plaintiff.
The PSLRA provides that:
15 U.S.C. § 78u-4(a)(3)(B)(i). To determine the "most adequate plaintiff"
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—(aa) will not fairly and adequately protect the interests of the class; or (bb) 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).
Macomb County concedes that The Triumvirate has the largest financial interest in the litigation and that The Triumvirate meets the requirements of the PSLRA in all other respects. Upon independent review, the Court agrees. But an issue remains. The Triumvirate, as its name would suggest, is three entities, not one.
Although the text of the PSLRA seems to allow it, there are two good reasons not to appoint joint lead plaintiffs. First, joint lead plaintiffs run counter to the purposes of the PSLRA, which seeks to avoid "lawyer-driven litigation." Appointing the lead plaintiff on the basis of financial interest, rather than first-come-first-serve, was intended to ensure that investors would control the litigation, not lawyers. See H.R. CONF. REP. No. 104-369, at 31-35 (1995). Allowing lawyers to combine otherwise unrelated entities as joint lead plaintiffs would encourage the lawyers to drive the litigation. See In re Donnkenny Inc. Sec. Litig., 171 F.R.D. 156, 158 (S.D.N.Y. 1997) (citing id. at 35) ("Congress hoped that the lead plaintiff would seek the lawyers, rather than having the lawyers seek the lead plaintiff."). Courts have, accordingly, rejected proposals for joint lead plaintiffs. E.g., id.; Weinberg v. Atlas Air Worldwide Holdings, Inc., 216 F.R.D. 248, 254 (S.D.N.Y. 2003); Roth v. Knight Trading Group, Inc., 228 F.Supp.2d 524, 531 (D.N.J. 2002); EZRA Charitable Trust v. Rent-Way, Inc., 136 F.Supp.2d 435, 444 (W.D. Pa. 2001). Second, joint lead plaintiffs risk the possibility—albeit a remote one—that the lead plaintiffs will disagree about a decision in the litigation. This contravenes the purposes of Rule 23. See Fed. R. Civ. P. 23. The Triumvirate has not offered any reason for appointing an aggregation of unrelated institutional investors as lead plaintiff(s), and the Court does not see one.
Therefore, the Court will appoint the single entity with the largest financial stake in the litigation as lead plaintiff. Macomb County claims a loss of $372,635; IBEW claims a loss of at least $460,000; Oklahoma Firefighters claims a loss of at least $110,000; and Strathclyde claims a loss of at least $500,000. Strathclyde wins. It is appointed lead plaintiff.
Under the PSLRA, the lead plaintiff chooses class counsel subject to the Court's approval. 15 U.S.C. §77z-1(a)(3)(B)(v). The Court ordinarily defers to the lead plaintiff's choice. See In re KIT Digital, Inc. Sec. Litig., 293 F.R.D. 441, 447 (S.D.N.Y. 2013). Strathclyde has chosen Robbins Geller, a well-known firm specializing in securities litigation. The firm does not have any conflicts of interest and the Court can see no reason why it will not fairly and adequately represent the class. Robbins Geller is appointed class counsel.
The Triumvirate's unopposed motion to consolidate the pending cases under Sections 11 and 15 of the Securities Act related to Ply Gem's IPO is granted.
For the foregoing reasons, Strathclyde is appointed lead plaintiff, Robbins Geller is appointed class counsel, and the actions (case numbers 14-CV-3577 and 14-CV-5283) are consolidated.
The Clerk of the Court is directed to close the motions at docket numbers 14 and 17, and to amend the caption on ECF to "In re Ply Gem Holdings, Inc., Securities Litigation."
SO ORDERED.