United States District Court, N.D. Indiana, South Bend Division
RAJESH M. SHAH, Individually and On Behalf of All Others Similarly Situated, Plaintiff,
ZIMER BIOMET HOLDINGS, INC., DAVID C. DVORAK, DANIEL P. FLORIN, and ROBERT J. MARSHALL, JR., Defendant.
OPINION AND ORDER
Michael G. Gotsch, Sr. United States Magistrate Judge
before this Court is the Motion for Appointment as Lead
Plaintiff and Approval of Selection of Counsel, filed by
Plaintiffs Rajesh Shah, Matt Brierley, and Eric Levy
(collectively “Movants”) on January 31, 2017.
[DE 14]. On February 14, 2017, Defendants, Zimmer
Biomet Holdings, Inc., David C. Dvorak, Daniel P. Florin, and
Robert J. Marshall, Jr. (collectively
“Defendants”) filed a response, in which they
asserted no position with respect to the motion, the legal,
or the factual claims therein, but reserved the right to
challenge class certification at an appropriate time. [DE
17]. On February 15, 2017, Movants filed a Notice of
Non-Opposition as their motion went unopposed by both the
Defendants and any potential class members.
brought this class action under the Private Securities
Litigation Reform Act of 1995 (“PSLRA”). The
PSLRA established new standards and procedures for selecting
Lead Plaintiffs and Lead Counsel in class actions alleging
violations of securities laws. The key PSLRA provisions
amended the Securities Exchange Act of 1934, and are also
referred to as Section 21D of the Securities Exchange Act of
the PSLRA, a plaintiff filing a new putative class action
alleging securities fraud must provide a national notice to
members of the proposed class informing them of the case, the
claims asserted, the relevant claims period, and their right
to move the court to serve as Lead Plaintiff. 15 U.S.C.
§ 78u-4(a)(3)(A)(i). The PSLRA also provides for
consolidation of parallel cases. 15 U.S.C. §
the national notice provides an opportunity for other
plaintiffs to step forward, and after the court consolidates
parallel actions, the court “shall” appoint
“the member or members of the purported plaintiff class
that the court determines to be most capable of adequately
representing the interests of class members.” 15
U.S.C. § 78u-4(a)(3)(B)(i). The Lead Plaintiff has
the power, subject to approval of the court, to select and
oversee lead counsel.
Appointment of Lead Plaintiff
PSLRA states that the Lead Plaintiffs need to have filed the
complaint or made a motion in response to the published
notice of class action, have the largest financial interests
in relief sought by the class, and satisfy Fed. R. Civ.
P. 23 requirements. See 15 U.S.C. §
78u-4(a)(3). Specifically the PSLRA highlights under Rule
23(a), a preliminary inquiry needs to show the Movants can
meet the “adequacy of representation” and
“typicality” requirements. See Winn v. Symons
Int'l Grp., Inc., No. IP 00-0310-C-B/S, 2001 WL
278113, at *4-5 (S.D. Ind. March 21, 2001) (addressing Rule
23 factors relevant to lead plaintiff selection process).
filing the pending action, the Movants published notice on
December 2, 2016, on Business Wire, a press release
distribution service. [DE 16-1]. Sixty days after
publication, the Movants timely filed the instant motion
asking the Court to appoint Lead Plaintiffs. At this time, no
other putative class members have come forth to consolidate
any parallel actions or object to the Movants' requested
appointment. Therefore, the Movants have satisfied the notice
requirement of the PSRLA. See Maiden v. Merge
Techs., Inc., No. 06-C-349, 2006 WL 3404777, at *2 (E.D.
Wis. Nov. 21, 2006).
the Movants purport to have the largest financial interest in
the relief sought by the class as required by 15 U.S.C.
§ 78u-4(a)(3)(B)(iii). The Movants claim to have
suffered financial losses of approximately $5, 473.38.
[DE 16-3]. The Court agrees that the Movant's
approximate financial loss shows they have a meaningful
financial interest at the very least. However, the
Movants' claims are uncontested at this time leading the
Court to conclude that the Movants have the largest financial
appointed Lead Plaintiffs at this early stage of litigation,
the Movants need only make a preliminary showing that they
have satisfied the Rule 23(a) requirements of typicality and
adequacy. Winn, 2001 WL 278113, at *5. Claims are
typical when they “arise[ ] from the same event or
practice or course of conduct that gives rise to the claims
of other class members.” Maiden, 2006 WL
3404777, at *4 (internal quotations omitted). Here, the
Movants claims are typical of the putative class because they
purchased a security interest in Zimmer at the artificially
inflated price during the class period just like all the
other putative class members. [See DE 16-2, DE
plaintiff satisfies the Rule 23(a)(4) adequacy requirement
“if (1) its claims are not antagonistic or in conflict
with those of the class; (2) it has sufficient interest in
the outcome of the case to ensure vigorous advocacy; and (3)
it is represented by competent, experienced counsel who be
able to prosecute the litigation vigorously.” In re
Groupon, Inc. Sec. Litig., No. 12 C 2450, 2012 WL
3779311, at *3 (N.D. Ill. Aug. 28, 2012). Here, there is no
evidence of any conflict or antagonism between the
Movants' claims and those asserted on behalf of the
putative class. Movants' substantial financial losses
create sufficient incentive to ensure vigorous advocacy. And
Movants have retained competent, experienced counsel.
Therefore, Movants satisfy the adequacy requirement.
the Movants have satisfied all statutory requirements in the