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Brown v. Papa Murphy's Holdings Inc.

United States District Court, W.D. Washington, Tacoma

September 9, 2019

EVAN BROWN, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
v.
PAPA MURPHY'S HOLDINGS INC., et al, Defendant.

          ORDER ON PLAINTIFF'S MOTION FOR APPOINTMENT AS LEAD PLAINTIFF AND APPROVAL OF COUNSEL

          J. RICHARD CREATURA, UNITED STATES MAGISTRATE JUDGE

         This case has been referred to this Court pursuant to General Order 02-19. This matter is before the Court on plaintiff's Motion for Appointment as Lead Plaintiff and Approval of Counsel. Dkt. 15.

         This putative class action alleges claims occurring under Section 14(e) and 20(a) of the Securities Exchange Act of 1934 (“the Exchange Act”). The Private Securities Litigation Reform Act of 1995 (“PSLRA”) provides that, inter alia, the Court is required to appoint a Lead Plaintiff to represent the purported class. See 15 U.S.C. § 78u-4(a)(3). Having properly issued a notice providing members of the purported plaintiff class with the information required pursuant to the PSLRA, plaintiff now moves for appointment as lead plaintiff in this matter. 15 U.S.C. § 78u-4(a)(3)(A)-(B); Dkt. 5.

         The Court “shall appoint as lead plaintiff the member or members of the purported plaintiff class that the court determines to be the most capable of adequately representing the interests of class members[, ]” or the “most adequate plaintiff.” 15 U.S.C. § 78u-4(a)(3)(B)(i). The Court presumes that the most adequate plaintiff is the member who has either filed the complaint or made a motion in response to a notice; in the determination of the court, has the largest financial interest in the relief sought by the class; and 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)(aa)-(cc); see also In re Cavanaugh, 306 F.3d. 726, 729 (9th Cir. 2002).

         Here, it appears that no other member has moved for lead plaintiff in this action. Plaintiff advised the Court that two other members previously filed actions arising from the same allegations, but subsequently voluntarily dismissed their claims. As such, plaintiff as the largest financial interest. Regarding the Rule 23 requirements, the Ninth Circuit has held that, at this stage, the only a preliminary showing of “typicality” and “adequacy” are required. See Cavanaugh, 306 F.3d. at 730; Fed.R.Civ.P. 23(a)(3)-(4).

         Typicality requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class[.]” Fed.R.Civ.P. 23(a)(3). The typicality requirement can be satisfied where “other members have the same or similar injury, . . . and [] other class members have been injured by the same course of conduct.” Ruiz Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1141 (9th Cir. 2016) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). At this stage, it appears that plaintiff satisfies the typicality requirement, as the injury to all putative class members arose from the same conduct-defendants' alleged material misleading Recommendation Statement. See Dkt. 1 at 2.

         To fulfill the adequacy requirement, the lead plaintiff must “fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). This rule can be satisfied when “counsel for the class is qualified and competent, the representative's interests are not antagonistic to the interests of absent class members, and it is unlikely that the action is collusive.” Miller v. Ventro Corp., 2001 U.S. Dist. LEXIS 26027, *44 (N.D. Cal. November 28, 2001) (internal citations omitted). As the only class member actively pursuing this claim, it does not appear that plaintiff's interests are adverse to the class.

         Although appointment of counsel is subject to the court's approval, the PSLRA “clearly leaves the choice of class counsel in the hands of the lead plaintiff.” Cavanaugh, 306 F.3d. at 734. Plaintiff's selected counsel, Monteverde and Associates, appear to possess the requisite experience in litigating complex class action cases, including securities and merger related cases.

         Accordingly, plaintiff's Motion for Appointment as Lead Plaintiff and Approval of Counsel (Dkt. 15) is hereby GRANTED as follows:

         1) Pursuant to 15 U.S.C. § 78u-4(a)(3)(B), Evan Brown is appointed as Lead Plaintiff; and

         2) Pursuant to 15 U.S.C. § 78u-4(a)(3)(B)(v), Evan Brown's selection of Monteverde & Associates PC (“Monteverde”) is approved and Monteverde is appointed Lead Counsel, and his selection of Breskin, Johnson & Townsend PLLC (“Breskin Johnson & Townsend”) is approved and Breskin Johnson & Townsend is appointed as Liaison Counsel. As Lead Counsel, Monteverde shall have the following responsibilities and duties on behalf of Lead Plaintiff and the putative class:

(a) preparing all pleadings;
(b) briefing and argument of any and all ...

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