Potter v. Valeant Pharmaceuticals International, Inc. et al

BRIEF in Opposition

D.N.J.July 2, 2018

SEEGER WEISS LLP CHRISTOPHER A. SEEGER DAVID R. BUCHANAN 55 Challenger Road, 6th Floor Ridgefield Park, NJ 07660 Telephone: 973-639-9100 973-639-9393 (fax) Local Counsel ROBBINS GELLER RUDMAN & DOWD LLP JAMES E. BARZ FRANK A. RICHTER 200 South Wacker Drive, 31st Floor Chicago, IL 60606 Telephone: 312/674-4674 312/674-4676 (fax) Lead Counsel for Plaintiffs [Additional counsel appear on signature page.] UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY In re VALEANT PHARMACEUTICALS INTERNATIONAL, INC. SECURITIES LITIGATION This Document Relates To: ALL ACTIONS. ) ) ) ) ) ) ) ) ) Master No. 3:15-cv-07658-MAS-LHG CLASS ACTION LEAD PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO TIMBER HILL’S MOTION FOR RELIEF FROM CONSOLIDATION ORDER Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 1 of 36 PageID: 8209 TABLE OF CONTENTS Page - i - I. INTRODUCTION ........................................................................................... 1 II. FACTUAL BACKGROUND .......................................................................... 1 III. ARGUMENT ................................................................................................... 4 A. Consolidation Is Proper Because the Cases Present Common Questions ............................................................................................... 4 B. The Consolidated Action Already Encompasses All of Timber Hill’s Claims .......................................................................................... 8 1. Equity Securities Include Derivatives ......................................... 8 2. Courts Routinely Reject Requests to Fracture Class Actions ...................................................................................... 10 3. Timber Hill’s Notice Should Be Withdrawn ............................ 14 C. Timber Hill Is Two Years Too Late to Seek to Lead the Class .......... 16 1. Timber Hill Offers No Justification for Its Failure to Timely Seek to Lead the Class.................................................. 16 2. Even if Timber Hill Had Timely Moved for Lead Plaintiff, It Does Not Possess the Largest Financial Interest ....................................................................................... 19 D. Lead Plaintiff TIAA Is Adequate to Represent the Entire Class ........ 20 1. TIAA’s Interests Are Aligned with the Derivative Traders’ ..................................................................................... 20 2. There Is No Inter-Class Conflict ............................................... 23 3. Timber Hill’s Damages Argument Is a Red Herring ................ 24 IV. CONCLUSION .............................................................................................. 26 Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 2 of 36 PageID: 8210 TABLE OF AUTHORITIES Page - ii - CASES Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) .............................................................................................. 7 Aronson v. McKesson HBOC, Inc., 79 F. Supp. 2d 1146 (N.D. Cal. 1999) ................................................................ 22 Basile v. Pershing Square, No. 8:14-cv-02004-DOC-KESx (C.D. Cal.) ..................................................................................................... 12, 13 Carrieri v. Jobs.com Inc., 393 F.3d 508 (5th Cir. 2004) ................................................................................ 9 China Agritech, Inc. v. Resh, No. 17-432, 2018 WL 2767565 (U.S. June 11, 2018) ........................................................................................... 17 Constance Sczesny Tr. v. KPMG LLP, 223 F.R.D. 319 (S.D.N.Y. 2004) ........................................................................ 22 Eisenberg v. Gagnon, 766 F.2d 770 (3d Cir. 1985) ................................................................................. 7 Fein v. Valeant Pharm. Int’l, Inc., No. 3:15-cv-07809-MAS-LHG (D.N.J. Oct. 30, 2015) ....................................................................................... 2, 4 Friedman v. Quest Energy Partners LP, 261 F.R.D. 607 (W.D. Okla. 2009) ............................................................. 24, 25 Gordon v. Dailey, No. CV 14-7495, 2018 WL 1509080 (D.N.J. Mar. 27, 2018) ...................................................................................... 8, 9 Great Rivers Co–op. of Se. Iowa v. Farmland Indus., Inc., 198 F.3d 685 (8th Cir. 1999) ................................................................................ 9 Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 3 of 36 PageID: 8211 Page - iii - Handwerger v. Ginsberg, No. 73 CIV. 4832, 1975 WL 343 (S.D.N.Y. Jan. 2, 1975) ....................................................................................... 24 Hevesi v. Citigroup Inc., 366 F.3d 70 (2d Cir. 2004) ................................................................................. 10 In re Bank of Am. Corp. Sec., Derivative & Emp’t Ret. Income Sec. Act (ERISA) Litig., No. 09 MDL 2058 (DC), 2010 WL 1438980 (S.D.N.Y. Apr. 9, 2010) .................................................................... 10, 11, 12, 20 In re Cardinal Health, Inc. Sec. Litig., 226 F.R.D. 298 (S.D. Ohio 2005) ....................................................................... 11 In re Cendant Corp. Litig., 182 F.R.D. 144 (D.N.J. 1998) ....................................................................... 11, 21 In re Cendant Corp. Litig., 182 F.R.D. 476 (D.N.J. 1998) ....................................................................... 21, 23 In re Cendant Corp. Litig., 264 F.3d 201 (3d Cir. 2001) ......................................................................... 19, 23 In re Cent. European Distrib. Corp. Sec. Litig., No. CIV. A. 11-6247 JBS-KMW, 2012 WL 5465799 (D.N.J. Nov. 8, 2012) ............................................................ 6 In re CenturyLink Sales Practices & Sec. Litig., MDL No. 18-298, 2018 WL 1902725 (D. Minn. Apr. 20, 2018) .............................................................................passim In re Consol. Parlodel Litig., 182 F.R.D. 441 (D.N.J. 1998) ............................................................................... 7 In re Enron Corp. Sec., Derivative & “ERISA” Litig., 238 F. Supp. 3d 799 (S.D. Tex. 2017), reconsideration denied, No. CV H-02-0851, 2017 WL 3671241 (S.D. Tex. Aug. 25, 2017) ........................... 9 Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 4 of 36 PageID: 8212 Page - iv - In re Enron Corp. Sec. Litig., 206 F.R.D. 427 (S.D. Tex. 2002) ...................................................... 11, 17, 24, 26 In re Global Crossing, Ltd. Sec. Litig., 313 F. Supp. 2d 189 (S.D.N.Y. 2003) .......................................................... 11, 12 In re Honeywell Int’l Inc. Sec. Litig., 211 F.R.D. 255 (D.N.J. 2002) ............................................................................. 24 In re Lucent Techs. Inc. Sec. Litig., 221 F. Supp. 2d 472 (D.N.J. 2001) ..................................................................... 23 In re Milestone Sci. Sec. Litig., 187 F.R.D. 165 (D.N.J. 1999) ............................................................................. 20 In re Orbital Scis. Corp. Sec. Litig., 188 F.R.D. 237 (E.D. Va. 1999) ................................................................... 23, 24 In re Schering-Plough Corp. Sec. Litig., No. CIV.A. 01-0829, 2003 WL 25547564 (D.N.J. Oct. 10, 2003) ......................................................................................... 24 In re ShengdaTech, Inc. Sec. Litig., No. 11 CIV. 1918 TPG, 2011 WL 6110438 (S.D.N.Y. Dec. 6, 2011) ............................................................................... 15, 24 In re Signet Jewelers Ltd. Sec. Litig., No. 1:16-cv-06728-JMF, slip op. (S.D.N.Y. Dec. 27, 2017) ............................................................................. 15, 16 In re Waste Mgmt., Inc. Sec. Litig., 128 F. Supp. 2d 401 (S.D. Tex. 2000) ................................................................ 10 In re WorldCom, Inc. Sec. Litig., 294 F. Supp. 2d 392 (S.D.N.Y. 2003) ................................................................ 21 In re XM Satellite Radio Holdings Sec. Litig., 237 F.R.D. 13 (D.D.C. 2006) ................................................................. 10, 22, 23 Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 5 of 36 PageID: 8213 Page - v - Johnson v. J.C. Penney Co., No. 6:14-CV-722, 2015 WL 12780596 (E.D. Tex. June 10, 2015) ............................................................................. 10, 22 Kaplan v. Gelfond, 240 F.R.D. 88 (S.D.N.Y. 2007) ........................................................................ 5, 8 Kuper v. Quantum Chemical Corp., 145 F.R.D. 80 (S.D. Ohio 1992) ................................................................... 25, 26 Lax v. First Merchs. Acceptance Corp., No. 97 C 2716, 1997 WL 461036 (N.D. Ill. Aug. 11, 1997) ..................................................................................... 17 Okla. Law Enforcement Ret. Sys. v. Adeptus Health Inc., No. 4:17-cv-00449, 2017 WL 3780164 (E.D. Tex. Aug. 31, 2017) .................................................................................. 17 Richman v. Goldman Sachs Grp., Inc., 274 F.R.D. 473 (S.D.N.Y. 2011) .................................................................. 20, 21 Skwortz v. Crayfish Co., No. 00 CIV. 6766 (DAB), 2001 WL 1160745 (S.D.N.Y. Sept. 28, 2001) ................................................................................... 17 Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., No. 05 CIV. 1898 (SAS), 2005 WL 1322721 (S.D.N.Y. June 1, 2005) ................................................................................ 14, 15 Telxon Corp. Sec. Litig., 67 F. Supp. 2d 803 (N.D. Ohio 1999) ................................................................ 15 Topping v. Deloitte Touche Tohmatsu CPA, 95 F. Supp. 3d 607 (S.D.N.Y. 2015) ............................................................ 16, 17 Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 6 of 36 PageID: 8214 Page - vi - STATUTES, RULES AND REGULATIONS 15 U.S.C. §78c(a)(10) ...................................................................................................... 8, 13 §78u-4(a)(3)(A)(i) ............................................................................................... 16 §78u–4(a)(3)(A)(ii) ............................................................................................. 15 §78u–4(a)(3)(B)(i) ............................................................................................. 19 §78u–4(a)(3)(B) (iii)(I) ....................................................................................... 19 §78u-4(a)(3)(B)(iii) ............................................................................................. 16 Federal Rules of Civil Procedure 42(a) ...................................................................................................................... 5 42(a)(2) ................................................................................................................. 5 42(a)(3) ................................................................................................................. 8 SECONDARY AUTHORITIES H.R. Conf. Rep. No. 104-369 (1995), reprinted in 1995 U.S.C.C.A.N. 730 .................................................................. 11 S. Rep. No. 104-98 (1995), reprinted in 1995 U.S.C.C.A.N. 679 .................................................................. 10 Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 7 of 36 PageID: 8215 - 1 - Lead Plaintiff TIAA opposes Plaintiff Timber Hill’s Motion for Relief from Consolidation Order (“ECF No. 322-1”) and states: I. INTRODUCTION Timber Hill’s case should be consolidated because the derivatives traders it purports to represent are already part of the class for which TIAA has been appointed Lead Plaintiff. Over two and a half years ago, multiple law firms published notices informing investors in Valeant “securities” of the lead plaintiff deadline in this case. Several candidates applied, and this Court appointed TIAA Lead Plaintiff pursuant to the PSLRA. Notably, one of the candidates sought to represent purchasers of Valeant options but withdrew after noting that TIAA was presumptively the most adequate Lead Plaintiff since it suffered the largest losses. Because TIAA purchased stock, debt, and options in Valeant, it can fairly and adequately represent the entire class. Indeed, when TIAA filed its amended complaint, it identified the class as purchasers of “equity securities,” which by statute includes options. Timber Hill is therefore far too late to seek to lead the class, having missed the deadline by over two years. Thus, its case should be consolidated. II. FACTUAL BACKGROUND On October 22, 2015, counsel for Lead Plaintiff, Robbins Geller Rudman & Dowd LLP (“Robbins Geller”), filed the first securities class action on behalf of Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 8 of 36 PageID: 8216 - 2 - plaintiff Laura Potter against Valeant and its executives, alleging that defendants engaged in various deceptive practices, including price gouging and the use of a secret network of Valeant-controlled pharmacies to boost prices and increase the volume of Valeant drugs prescribed to patients. See ECF No. 1 (the “Consolidated Action”). Pursuant to the PSLRA, Robbins Geller timely published a notice informing Valeant investors of the action and the December 21, 2015 lead plaintiff motion deadline. See ECF No. 22-3. Over the course of the next eight days, three additional plaintiffs filed similar securities class actions against Valeant and its executives, including one that was filed on behalf of purchasers or acquirers of all “Valeant securities.” See, e.g., Fein v. Valeant Pharm. Int’l, Inc., No. 3:15-cv- 07809-MAS-LHG (D.N.J. Oct. 30, 2015), ECF No. 1 at 2. Before the 60-day PSLRA lead plaintiff deadline, numerous law firms published approximately 15 additional notices clearly informing investors in Valeant “securities” of the deadline to seek lead plaintiff appointment in this Court. See, e.g., ECF No. 23-6. Approximately ten parties and their counsel, including TIAA and Robbins Geller, moved for lead plaintiff appointment. See ECF Nos. 20-30. Among these movants was Soyean Chin, who sought to represent “an options subclass.” ECF No. 20-3 at 1. Recognizing that TIAA clearly had the largest financial interest in the litigation and that options are securities, Ms. Chin subsequently filed a notice supporting TIAA’s motion for lead plaintiff. ECF No. 39 at 2. Unlike the timely Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 9 of 36 PageID: 8217 - 3 - lead plaintiff movants, Timber Hill and its counsel did nothing: they did not move for lead plaintiff appointment, did not oppose consolidation, and did not oppose TIAA’s lead plaintiff motion. On May 31, 2016, this Court consolidated the related securities class actions against Valeant and its executives, appointed TIAA as Lead Plaintiff, and approved TIAA’s selection of Robbins Geller as Lead Counsel. ECF No. 67 (“Consolidation Order”). The Consolidation Order instructed that “[a]ll securities class actions subsequently filed in, or transferred to, this District shall be consolidated into this action.” Id. at 1. Less than a month later, TIAA and additional plaintiff City of Tucson together with and on behalf of the Tucson Supplemental Retirement System (“Tucson”) filed a detailed, 280-page Consolidated Complaint on behalf of investors in Valeant “equity securities and senior notes.” ECF No. 80 at 1 (“Consolidated Complaint”). The Consolidated Complaint included claims pursuant to both the Securities Act of 1933 and the Securities Exchange Act of 1934. Following extensive briefing by the parties and oral argument, the Court largely denied defendants’ motions to dismiss. ECF No. 216. Since then, the parties have engaged in document discovery, numerous meet and confers, additional motion practice, and TIAA has served subpoenas on more than 100 third parties. Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 10 of 36 PageID: 8218 - 4 - On June 6, 2018, two and a half years after the PSLRA deadline passed, Timber Hill filed a securities class action complaint that is entirely duplicative of TIAA’s Consolidated Complaint. Timber Hill LLC v. Valeant Pharm. Int’l, Inc., No. 3:18-cv-10246-MAS-LHG, ECF No. 1. The Timber Hill complaint contains neither new allegations nor distinct legal claims, as it essentially copies Lead Plaintiff’s complaint. Moreover, it is brought on behalf of derivatives traders – i.e., purchasers and sellers of Valeant put and call options, which are equity securities – whose claims are entirely subsumed by the Consolidated Action and TIAA’s Consolidated Complaint. Put simply, the putative class Timber Hill seeks to represent is already represented by TIAA, who also purchased Valeant options and suffered the largest financial loss of any lead plaintiff movant. Pursuant to the Consolidation Order, the Court properly instructed the Clerk of the Court to consolidate the Timber Hill action into the Consolidated Action. ECF No. 318. On June 18, 2018, Timber Hill objected to consolidation and sought relief from the Court’s order. ECF No. 322. Timber Hill’s request for relief should be denied. III. ARGUMENT A. Consolidation Is Proper Because the Cases Present Common Questions The Court properly consolidated Timber Hill’s subsequently filed securities class action into the Consolidated Action because Timber Hill’s complaint presents Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 11 of 36 PageID: 8219 - 5 - common questions of fact and law. As is common in cases governed by the PSLRA, this Court entered a Consolidation Order after appointing TIAA as the Lead Plaintiff. The Consolidation Order instructs that “[a]ll securities class actions subsequently filed in . . . this district,” like the Timber Hill action, “shall be consolidated” into the Consolidated Action “absent an order of the Court.” ECF No. 67 (Consolidation Order). Applying that order, on June 11, 2018, the Court consolidated the Timber Hill action into the Consolidated Action. See ECF No. 318 (June 11, 2018 Letter Order stating that Civil Action No. 18-cv-10246 is consolidated into Civil Action No. 15-cv-7658). Consolidation of the recently filed Timber Hill action was appropriate under Rule 42(a) because, as Timber Hill acknowledges, its claims are nearly identical to TIAA and Tucson’s, raising the same issues of fact and law. ECF No. 322-1 at 5 (“Timber Hill recognizes that the issues presented in the two actions overlap.”); see Fed. R. Civ. P. 42(a)(2) (“If actions before the court involve a common question of law or fact, the court may . . . consolidate the actions.”); see also Kaplan v. Gelfond, 240 F.R.D. 88, 91 (S.D.N.Y. 2007) (noting that even “[d]ifferences in causes of action, defendants, or the class period do not render consolidation inappropriate if the cases present sufficiently common questions of fact and law, and the differences do not outweigh the interests of judicial economy served by consolidation”); In re CenturyLink Sales Practices & Sec. Litig., MDL No. 18-298, Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 12 of 36 PageID: 8220 - 6 - 2018 WL 1902725, at *4 (D. Minn. Apr. 20, 2018) (consolidation is appropriate where “the same legal theories [are asserted] against the same defendants for the same class period based on the same fraud”).1 Largely reproducing TIAA and Tucson’s Consolidated Complaint, the Timber Hill action relies on the same allegations that the same defendants violated the same federal securities laws through the same “fraudulent scheme and wrongful course of business pursuant to which Valeant and its senior insiders used a network of secretly controlled pharmacies, deceptive pricing and reimbursement practices, and fictitious accounting to misrepresent Valeant’s business.” Compare ECF No. 80 at ¶3 with Timber Hill, ECF No. 1 at ¶1 (“This action arises from a massive fraudulent scheme perpetrated by Valeant, its senior executives and those working in concert with them to artificially inflate Valeant’s revenues and purported profits through, among other things, a clandestine pharmacy network, deceptive drug pricing and reimbursement practices, and fictitious accounting.”). Moreover, Timber Hill’s complaint copies approximately 170 paragraphs of the Consolidated Complaint almost verbatim.2 1 All emphasis is added and all citations are omitted unless otherwise noted. 2 Compare, e.g., ECF No. 80 at ¶¶203-226 with Timber Hill, ECF No. 1 at ¶¶228-250; ECF No. 80 at ¶¶283-313 with Timber Hill, ECF No. 1 at ¶¶324-356; ECF No. 80 at ¶¶539-543 with Timber Hill, ECF No. 1 at ¶¶451-462. Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 13 of 36 PageID: 8221 - 7 - In its attempt to skirt the Consolidation Order, Timber Hill relies on the factually distinct decision in In re Cent. European Distrib. Corp. Sec. Litig., No. CIV. A. 11-6247 JBS-KMW, 2012 WL 5465799, at *10 (D.N.J. Nov. 8, 2012). There, the court decided not to consolidate actions with “stark” differences and “no subject matter overlap whatsoever.” Id. at *4 (noting that the two actions’ claims relied on completely different misstatements and omissions and required different evidence to prove). Had it consolidated those actions, the court would have excluded the claims of one set of plaintiffs. Here, by contrast, the Court faces no such dilemma because the Consolidated Action already states the same claims, relies on the same misstatements and omissions, and covers the same class of investors that Timber Hill now seeks to represent. Thus, by denying Timber Hill’s motion, the Court would still “ensure that all claims receive sufficient attention from representatives with interest in prosecuting them.” Id. at *10. Timber Hill also cites a factually distinct products liability case, In re Consolidated Parlodel Litigation, for the proposition that “consolidation may be inappropriate where individual issues predominate.” In re Consol. Parlodel Litig., 182 F.R.D. 441, 444 (D.N.J. 1998). Timber Hill, however, overlooks U.S. Supreme Court precedent stating that individual issues do not predominate in securities fraud cases like this one. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997) (“Predominance is a test readily met in . . . securities fraud . . . .”); Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 14 of 36 PageID: 8222 - 8 - see also Eisenberg v. Gagnon, 766 F.2d 770, 786-87 (3d Cir. 1985) (individual issues do not predominate in securities fraud cases involving claims with “identical investments, prepared by the same defendants, and containing the same alleged omissions and misrepresentations”). While Timber Hill is right that the Court has the power to issue “orders to avoid unnecessary cost or delay” (Fed R. Civ. P. 42(a)(3); ECF No. 322-1 at 5), it fails to appreciate that the Court already accomplished this more than two years ago with the Consolidation Order. “Given the overlapping questions of law and fact presented in the cases before us, litigating a multitude of separate actions would only ensure the duplication of effort amongst parties and the needless expenditure of judicial resources.” Kaplan v. Gelfond, 240 F.R.D. 88, 92 (S.D.N.Y. 2007); see also CenturyLink, 2018 WL 1902725, at *4 (finding that consolidating such similar actions “will result in substantial judicial economy and avoid the inconvenience, expense, and prejudice from having the parties litigate two identical class actions”). Since the cases overlap, Timber Hill’s motion should be denied and its case should be consolidated. B. The Consolidated Action Already Encompasses All of Timber Hill’s Claims 1. Equity Securities Include Derivatives Consolidation is appropriate here because Lead Plaintiff purchased options and thus already represents the class of derivatives traders that Timber Hill seeks to Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 15 of 36 PageID: 8223 - 9 - represent. Timber Hill’s motion conspicuously ignores that the federal securities laws expressly define equity securities to include put and call options and other derivative investments: “The term ‘security’ means any note, stock, treasury stock, security future, security-based swap, bond, debenture, . . . [and] any put, call, straddle, option, or privilege on any security . . . .” 15 U.S.C. §78c(a)(10); see also Gordon v. Dailey, No. CV 14-7495, 2018 WL 1509080, at *5 (D.N.J. Mar. 27, 2018) (same); Carrieri v. Jobs.com Inc., 393 F.3d 508, 525 (5th Cir. 2004) (“[C]ourts are clear that stock options, or the rights to exercise the stock option, are properly classified as equity security interests.”); CenturyLink, 2018 WL 1902725, at *4 (“the PSLRA’s ‘definition of “security” [is] sufficiently broad to encompass virtually any instrument that might be sold as an investment’”) (quoting Great Rivers Co–op. of Se. Iowa v. Farmland Indus., Inc., 198 F.3d 685, 698 (8th Cir. 1999)).3 Following its appointment as Lead Plaintiff, TIAA, with additional named plaintiff Tucson, filed the Consolidated Complaint on June 24, 2016, asserting §§10(b) and 20(a) claims on behalf of a class that includes purchasers of all “Valeant equity securities.” ECF No. 80 at 1. By statute, definition and case law, these claims undoubtedly include the putative class of derivatives traders that 3 See also In re Enron Corp. Sec., Derivative & “ERISA” Litig., 238 F. Supp. 3d 799, 832 (S.D. Tex. 2017), reconsideration denied, No. CV H-02-0851, 2017 WL 3671241 (S.D. Tex. Aug. 25, 2017) (“It is undisputed that a stock option is a security.”). Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 16 of 36 PageID: 8224 - 10 - Timber Hill now seeks to represent. For this reason, which Timber Hill does not address in its motion, the Timber Hill action was properly consolidated and its motion should be denied. 2. Courts Routinely Reject Requests to Fracture Class Actions Because under the PSLRA the lead plaintiff is in charge of determining the class period and claims, federal courts routinely deny attempts by “niche plaintiffs” like Timber Hill to carve out a separate class and splinter the class action litigation. See, e.g., In re Bank of Am. Corp. Sec., Derivative & Emp’t Ret. Income Sec. Act (ERISA) Litig., No. 09 MDL 2058 (DC), 2010 WL 1438980, at *2 (S.D.N.Y. Apr. 9, 2010) (denying option investor’s motion to represent a putative separate options class and consolidating the actions); Johnson v. J.C. Penney Co., No. 6:14-CV- 722, 2015 WL 12780596, at *3 (E.D. Tex. June 10, 2015) (same); In re XM Satellite Radio Holdings Sec. Litig., 237 F.R.D. 13, 20 (D.D.C. 2006) (denying option investor’s motion to represent an options subclass); In re Waste Mgmt., Inc. Sec. Litig., 128 F. Supp. 2d 401, 432 (S.D. Tex. 2000) (same); cf. CenturyLink, 2018 WL 1902725, at *5 (“Appointing different lead plaintiffs for stock versus debt holders is not called for . . . .”). Courts reject attempts like Timber Hill’s to multiply litigation by filing allegedly separate securities claims because Congress created the PSLRA’s lead plaintiff provisions to “empower one or several investors with a major stake in the Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 17 of 36 PageID: 8225 - 11 - litigation to exercise control over the litigation as a whole,” rather than to parse a class into an unmanageable number of separate classes. Hevesi v. Citigroup Inc., 366 F.3d 70, 82 n.13 (2d Cir. 2004) (quoting S. Rep. No. 104-98, at 4 (1995), reprinted in 1995 U.S.C.C.A.N. 679, 683)); see also In re Cendant Corp. Litig., 182 F.R.D. 144, 148 (D.N.J. 1998) (“representation by a disparate group of plaintiffs, each seeking only the protection of its own interests, could well hamper the force and focus of the litigation”).4 Moreover, TIAA is the paradigmatic institutional investor envisioned by the PSLRA. See H.R. Conf. Rep. No. 104-369, at 34 (1995), reprinted in 1995 U.S.C.C.A.N. 730, 733 (“[W]ith pension funds accounting for $4.5 trillion or nearly half of the institutional assets, in many cases the beneficiaries of pension funds – small investors – ultimately have the greatest stake in the outcome of the lawsuit.”); see also In re Cardinal Health, Inc. Sec. Litig., 226 F.R.D. 298, 311 (S.D. Ohio 2005) (“[T]he PSLRA prefers pension funds.”). In Bank of America, for example, an options investor just like Timber Hill untimely moved to be appointed lead plaintiff for a putative options class because 4 See also In re Global Crossing, Ltd. Sec. Litig., 313 F. Supp. 2d 189, 204-05 (S.D.N.Y. 2003) (noting that requiring additional lead plaintiffs for all potential classes or subclasses of holders of different categories of securities would cause “the premature breakdown of the action into an unmanageable number of separate cases”); In re Enron Corp. Sec. Litig., 206 F.R.D. 427, 451 (S.D. Tex. 2002) (denying motions by options, debt, and preferred holders to appoint separate lead plaintiffs for each type of securities investment because “splintering the action or appointing multiple Lead Plaintiffs to represent specialized interests, especially in light of the common facts and legal issues here, would undermine the purpose of the PSLRA”). Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 18 of 36 PageID: 8226 - 12 - there, unlike here, the lead plaintiff’s amended complaint did not include claims covering options purchasers. In re Bank of Am. Corp. Sec., Derivative & Emp’t Ret. Income Sec. Act (ERISA) Litig., No. 09 MDL 2058 (DC), 2010 WL 1438980, at *2 (S.D.N.Y. Apr. 9, 2010). Rejecting this attempt to create a niche sub-class, the court explained that “[p]ermitting other plaintiffs to bring additional class actions now, with additional lead plaintiffs and additional lead counsel, would interfere with Lead Plaintiffs’ ability and authority to manage the Consolidated Securities Actions.” Id. at *3 (stating that the option investors “are free to pursue their claims as individual cases – but not as class actions”). Similarly, bondholders in CenturyLink filed a separate securities class action on behalf of purchasers of a single CenturyLink senior note, but they did so two weeks after the PSLRA lead plaintiff deadline expired. CenturyLink, 2018 WL 1902725, at *2. The niche plaintiff’s complaint asserted “the same misconduct against the same defendants during the same time period and violati[ons of] the same federal statutes as the previously consolidated complaints.” Id. The court found “no need to appoint separate leadership to assert the claims that [lead plaintiff] has already been appointed to pursue,” noting that, like here, “the consolidated actions assert claims on behalf of investors in all ‘CenturyLink securities.’” Id. at *4-*5. The court further explained that “[a]ppointing two rival lead plaintiffs, particularly where one [the appointed lead plaintiff] suffered Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 19 of 36 PageID: 8227 - 13 - exponentially greater losses than the other [the niche plaintiff] would lead to ‘undermining the goal of a cohesive leadership and management group.’” Id. (quoting Global Crossing, 313 F. Supp. 2d at 204). The reasoning of these authorities applies directly to Timber Hill. Timber Hill’s reliance on Basile v. Pershing Square, an insider trading case under §20A, is misplaced. Basile v. Pershing Square, No. 8:14-cv-02004-DOC- KESx (C.D. Cal.), ECF No. 318 at 26-27. First, in their class certification motion, the plaintiffs in Basile included “only common-stock sellers in their class definition.” Basile, ECF No. 264 (citing ECF No. 138, Plaintiff’s Second Amended Complaint (“SAC”) at ¶191) (emphasis in original); 15 U.S.C. §78c (a)(10). So unlike here, the Basile plaintiffs did not seek to represent a class of securities investors, which by definition includes options investors. Second, as Timber Hill acknowledges, Basile was an insider trading case, which “involved a potentially limited fund based on the damages cap established by Section 20A of the Securities Exchange Act of 1934.” ECF No. 322-1 at 2 n.1. Because of that limitation on damages, the Basile defendants opposed class certification on the grounds that the plaintiffs there failed to join a necessary party – derivatives traders. Basile, ECF No. 264. Notably, it was only after the Basile defendants opposed class certification that Timber Hill filed an action arising out of that case. Those concerns, however, are simply not present here: there is no limited pool of Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 20 of 36 PageID: 8228 - 14 - damages, Timber Hill is not asserting a §20A claim, and the class TIAA and Tucson seek to represent includes, by legal definition, Timber Hill. See ECF No. 1 at 1; Timber Hill, ECF No. 1 at 1; 15 U.S.C. §78c(a)(10). Thus, Basile is inapposite and, for this additional reason, Timber Hill’s motion should be denied. 3. Timber Hill’s Notice Should Be Withdrawn Timber Hill should be required to withdraw its purported PSLRA notice of the lead plaintiff deadline for its putative class of derivative traders. As discussed, Timber Hill has largely copied the allegations and seeks to represent the same plaintiffs and securities already encompassed in the Consolidated Action.5 Compare, e.g., ECF No. 80 at ¶¶203-226 with Timber Hill, ECF No. 1 at ¶¶228- 250; ECF No. 80 at ¶¶283-313 with Timber Hill, ECF No. 1 at ¶¶324-356; ECF No. 80 at ¶¶539-543 with Timber Hill, ECF No. 1 at ¶¶451-462.6 Moreover, 5 E.g., compare ECF No. 80 at ¶3 (“This case arises out of a fraudulent scheme and wrongful course of business pursuant to which Valeant and its senior insiders used a network of secretly controlled pharmacies, deceptive pricing and reimbursement practices, and fictitious accounting to misrepresent Valeant’s business operations and financial performance.”) with Timber Hill, ECF No. 1 at ¶1 (“This action arises from a massive fraudulent scheme perpetrated by Valeant, its senior executives and those working in concert with them to artificially inflate Valeant’s revenues and purported profits through, among other things, a clandestine pharmacy network, deceptive drug pricing and reimbursement practices, and fictitious accounting.”). 6 These paragraphs are merely illustrative of Timber Hill’s counsel’s cut-and-paste method of pleading; the list is not exhaustive. Also compare ECF No. 80 at ¶¶60-67 with Timber Hill, ECF No. 1 at ¶¶48-55; ECF No. 80 at ¶¶159-164 with Timber Hill, ECF No. 1 at ¶¶213-221; ECF No. 80 at ¶¶251-263 with Timber Hill, ECF No. 1 at ¶¶288-305; ECF No. 80 at ¶¶420-423 with Timber Hill, ECF No. 1 at ¶¶402-404. Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 21 of 36 PageID: 8229 - 15 - Timber Hill missed the deadline under the PSLRA by over two years. See infra at §C. Yet when it filed its complaint, Timber Hill published a new notice, which will only create confusion. This new notice was wholly unnecessary because “only the plaintiff or plaintiffs in the first filed action shall be required to cause notice to be published” when, as here, a later action asserts substantially the same claim as a first-filed action. 15 U.S.C. §78u–4(a)(3)(A)(ii); see also Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., No. 05 CIV. 1898 (SAS), 2005 WL 1322721, at *2 (S.D.N.Y. June 1, 2005) (noting that courts will not reopen the lead plaintiff appointment process unless there are “entirely new factual and legal allegations against Plaintiffs” such that “entire classes of potential lead plaintiffs are left out of the notice procedure”). Indeed, the only apparent difference between the Consolidated Complaint and the Timber Hill complaint is that Timber Hill’s purports to extend the class period by a few months. This difference is insufficient to warrant reopening the lead plaintiff process, and Timber Hill makes no arguments in this regard. See In re ShengdaTech, Inc. Sec. Litig., No. 11 CIV. 1918 TPG, 2011 WL 6110438, at *3 (S.D.N.Y. Dec. 6, 2011) (“Courts, however, disfavor republication of notice under PSLRA when a class period is extended beyond the period contained in the first- filed securities class action.”); see also Teamsters Local 445, 2005 WL 1322721, at Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 22 of 36 PageID: 8230 - 16 - *2 (noting that republication is not warranted “[i]n cases encompassing the same claims and securities, but [with] somewhat different class periods”); Telxon Corp. Sec. Litig., 67 F. Supp. 2d 803, 818 (N.D. Ohio 1999) (“[N]ew notices need not be filed when an amended complaint asserting a different class period is filed.”). The duplicity of the Timber Hill action presents additional justification for denying its motion for relief from the Consolidation Order. It also supports ordering Timber Hill and its counsel to withdraw their notice to ensure putative class members are not confused. See Order, In re Signet Jewelers Ltd. Sec. Litig., No. 1:16-cv-06728-JMF, ECF No. 100 (S.D.N.Y. Dec. 27, 2017) (“Signet Text Only Order”) (consolidating untimely complaint and vacating notice that purported to establish new lead plaintiff deadline for later-filed action). C. Timber Hill Is Two Years Too Late to Seek to Lead the Class 1. Timber Hill Offers No Justification for Its Failure to Timely Seek to Lead the Class Timber Hill cannot avoid the consequence of missing the Lead Plaintiff deadline by two years by seeking to carve out a subset of plaintiffs that are already part of the putative class. There is no question that the PSLRA governs the Timber Hill securities class action. And the PSLRA requires lead plaintiff motions and other related pleadings to be filed “not later than 60 days” from the date notice is published. 15 U.S.C. §78u-4(a)(3)(A)(i) and (B)(iii). Courts strictly apply this Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 23 of 36 PageID: 8231 - 17 - rule to “preclude . . . consideration of a financial loss asserted for the first time in a complaint, or any other pleading, for that matter, filed after the sixty (60) day window has closed.” Topping v. Deloitte Touche Tohmatsu CPA, 95 F. Supp. 3d 607, 619 (S.D.N.Y. 2015); see also Signet Text Only Order (consolidating untimely complaint and vacating notice that purported to establish new Lead Plaintiff deadline for later-filed action); CenturyLink, 2018 WL 1902725, at *5-*6 (finding a new lead plaintiff motion for a niche plaintiff time-barred because the PSLRA deadline had passed); Okla. Law Enforcement Ret. Sys. v. Adeptus Health Inc., No. 4:17-cv-00449, 2017 WL 3780164, at *4 (E.D. Tex. Aug. 31, 2017) (same). In denying motions like Timber Hill’s, courts emphasize the “plain language of the statute,” which reflects Congress’s intent to appoint lead plaintiffs promptly. Topping, 2015 WL 1499657, at *8; see also Lax v. First Merchs. Acceptance Corp., No. 97 C 2716, 1997 WL 461036, at *4 (N.D. Ill. Aug. 11, 1997) (noting Congress intended “to have lead plaintiffs appointed as soon as practicable”); cf. China Agritech, Inc. v. Resh, No. 17-432, 2018 WL 2767565, at *2 (U.S. June 11, 2018) (noting that the PSLRA “evinces a . . . preference . . . embodied in legislation providing for early notice and lead-plaintiff procedures” and agreeing Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 24 of 36 PageID: 8232 - 18 - that Congress intended “all interested parties to apply to serve as lead plaintiff at the early stages of the case”).7 As noted, proper notice was issued by Lead Counsel over two years ago and resulted in several lead plaintiff motions being filed. ECF No. 1; ECF No. 22-1 at 7. During the 60-day notice period, numerous law firms published approximately 15 additional notices addressed to investors in Valeant “securities,” informing them of the lead plaintiff motion deadline. See, e.g., Rosen Notice, ECF No. 23-6 (Valeant “securities”); see also Declaration of Christopher A. Seeger filed herewith (“Seeger Decl.”), Ex. A (collecting 15 notices, published by various law firms, informing investors in Valeant “securities” of the lead plaintiff deadline in the Consolidated Action). Together, these multiple securities class action complaints and published notices provided Timber Hill and other derivative investors with ample and adequate notice that the Court-appointed Lead Plaintiff would be pursuing claims on behalf of all investors in Valeant “securities.” As a result, several movants filed seeking lead, including one that specifically sought to represent derivative traders, but subsequently withdrew in light of TIAA’s larger losses. ECF No. 20-3 7 See also Enron, 206 F.R.D. at 439-40 (stating that the PSLRA “is unequivocal and imposes precise time requirements; therefore all motions for appointment of Lead Plaintiff must be filed within sixty days of the published notice”); Skwortz v. Crayfish Co., No. 00 CIV. 6766 (DAB), 2001 WL 1160745, at *5 (S.D.N.Y. Sept. 28, 2001) (“The mandatory nature of the 60-day requirement follows from the structure of the PSLRA itself.”). Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 25 of 36 PageID: 8233 - 19 - at 1; ECF No. 39 at 2. Thus, the statutory deadline for all lead plaintiff motions, regardless of the type of security, closed on December 21, 2015. Timber Hill missed the deadline and cannot evade the consequence of its delay by seeking to represent a portion of the class. So, Timber Hill’s motion should be denied. 2. Even if Timber Hill Had Timely Moved for Lead Plaintiff, It Does Not Possess the Largest Financial Interest Even if Timber Hill had sought lead plaintiff appointment by the December 21, 2015 PSLRA deadline, its motion still would have failed. Put simply, Timber Hill does not possess the largest financial interest because TIAA’s $90 million in losses, which includes over $1 million in losses from options investments, is much larger. Compare ECF No. 22-5 with Timber Hill, ECF No.1-1 at 2-726. Importantly, the documents Timber Hill submitted to the Court to date do not show a loss on its $36 million total contract price for options. See Timber Hill, ECF No. 1-1 at 2-726 (total cost from option purchases of $36,326,752 and total proceeds from option sales of $39,222,789, showing an apparent gain of $2,896,037). Thus, even had Timber Hill timely moved, it would not have been appointed lead plaintiff. See ECF No. 22-1 at 10 (“To the best of its counsel’s knowledge, there are no other plaintiffs with a larger financial interest. Therefore, TIAA-CREF satisfies the PSLRA’s prerequisite of having the largest financial interest.”); see also ECF No. 39 (showing a timely lead plaintiff movant seeking to represent an Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 26 of 36 PageID: 8234 - 20 - options class supporting TIAA’s motion for appointment as Lead Plaintiff because TIAA “has the largest financial interest”); In re Cendant Corp. Litig., 264 F.3d 201, 222 (3d Cir. 2001) (noting the PSLRA’s presumption that “the most adequate plaintiff is the movant that ‘has the largest financial interest in the relief sought by the class’”) (quoting 15 U.S.C. §78u–4(a)(3)(B)(i) & (iii)(I)). For this additional reason, Timber Hill’s motion should be denied. D. Lead Plaintiff TIAA Is Adequate to Represent the Entire Class 1. TIAA’s Interests Are Aligned with the Derivative Traders’ The Court’s Consolidation Order appointed TIAA as Lead Plaintiff for all securities class actions subsequently filed in this District. ECF No. 67 at 1. The Court previously recognized TIAA as the most adequate plaintiff by granting TIAA’s motion to represent a class who purchased “Valeant securities” during the Class Period. ECF No. 22-1 at 1, 5-6. And because the federal securities laws define “securities” to include options, see supra §III.B.1, the derivatives traders’ claims Timber Hill now brings are already encompassed within the Consolidated Action the Court has empowered TIAA to manage “as a whole.” See Bank of Am., 2010 WL 1438980, at *1-*2; see also In re Milestone Sci. Sec. Litig., 187 F.R.D. 165, 176 (D.N.J. 1999) (“lead plaintiff has significant responsibilities and duties, including the management of the direction of the case”). Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 27 of 36 PageID: 8235 - 21 - Moreover, TIAA’s interests are aligned with options traders’ because, in addition to its massive stock losses, TIAA lost approximately $1 million from its transactions in options securities. See Seeger Decl., Ex. B. TIAA, therefore, has standing and incentive to pursue these claims, which it has already asserted in the Consolidated Complaint. ECF No. 80 at 1. Contrary to Timber Hill’s argument, this Circuit has recognized that TIAA’s significant financial interest and obvious self-interest are more than sufficient to ensure adequate representation for the entire class, including derivatives traders like Timber Hill. See Cendant Corp., 182 F.R.D. 476, 478 (D.N.J. 1998) (“The Public Pension Fund Investors have significant holdings in each type of security held by the putative plaintiff class and have suffered enormous losses. It is unrealistic to assume that they would not travel every avenue that could potentially enhance their potential recovery.”); see also Richman v. Goldman Sachs Grp., Inc., 274 F.R.D. 473, 476 (S.D.N.Y. 2011) (denying option investor’s request to be appointed lead plaintiff and rejecting argument that “the Institutional Investors have no financial incentive to litigate on behalf of the proposed options class”). By filing the Consolidated Complaint, which asserts claims for all Valeant securities, including options, TIAA has “fulfilled its obligation to assess the causes of action available to the class, to plead those claims in the consolidated amended complaint, and to identify as named plaintiffs any additional class representatives Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 28 of 36 PageID: 8236 - 22 - that were necessary to assert the claims.” In re WorldCom, Inc. Sec. Litig., 294 F. Supp. 2d 392, 422 (S.D.N.Y. 2003). Although Timber Hill might wish to manage the class litigation differently than TIAA, and “the resolution of this case could ultimately favor holders of one type of security over the others,” courts have recognized that “every warrior in this battle cannot be a general.” Cendant, 182 F.R.D. at 148 (noting that the alternative, “representation by a disparate group of plaintiffs, each seeking only the protection of its own interests, could well hamper the force and focus of the litigation”); see also XM Satellite Radio, 237 F.R.D. at 20 (“options purchasers . . . might perhaps seek a different litigation strategy to maximize their recovery, [but] this argument has been rejected by courts as a basis for creating a subclass of purchases of call option contracts”). Lead Plaintiff TIAA is therefore more than adequate to represent all purchasers of Valeant securities, including those who traded in options. See CenturyLink, 2018 WL 1902725, at *5 (“the interests of the class are fully protected and there is no need to appoint separate leadership” when the court- appointed lead plaintiff has identified a plaintiff with standing to assert niche claims); see also Johnson, 2015 WL 12780596, at *2-*3 (finding a putative options class adequately represented by the consolidated action when court- appointed lead plaintiffs had standing to sue for options). For this reason, Timber Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 29 of 36 PageID: 8237 - 23 - Hill’s motion should be denied and its action should remain consolidated with this case. 2. There Is No Inter-Class Conflict Timber Hill’s unsupported and speculative argument that a purported “conflict” prevents Lead Plaintiff from adequately representing options investors is unavailing and has been rejected by courts all over the country, including the Third Circuit. See Cendant, 264 F.3d at 245 (rejecting speculative and unsupported accusations of inter-class conflict); see also Constance Sczesny Tr. v. KPMG LLP, 223 F.R.D. 319, 324-25 (S.D.N.Y. 2004) (“conclusory assertions of inadequacy are . . . insufficient to rebut the statutory presumption under the PSLRA without specific support in evidence of the existence of an actual or potential conflict of interest”); CenturyLink, 2018 WL 1902725, at *5 (rejecting a niche plaintiff’s unsupported assertion that lead plaintiff had a conflict of interest with noteholders); Aronson v. McKesson HBOC, Inc., 79 F. Supp. 2d 1146, 1151 (N.D. Cal. 1999) (finding niche plaintiffs’ “speculations about possible conflicts” insufficient to overcome the PSLRA’s “presumption that one lead plaintiff can vigorously pursue all available causes of action against all possible defendants under all available legal theories”) (emphasis in original); XM Satellite Radio, 237 F.R.D. at 20 (rejecting an option investor’s conjecture that his interests “may be inimical to Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 30 of 36 PageID: 8238 - 24 - those of stockholders” and denying his request to be appointed lead plaintiff for options purchasers class). Differences in the class period do not represent a class conflict when the complaints’ allegations, as here, involve the same facts and law. See In re Lucent Techs. Inc. Sec. Litig., 221 F. Supp. 2d 472, 483 (D.N.J. 2001) (finding that complaints with “different (but overlapping) class periods do[] not, on [their] own, create a conflict”); see also In re Cendant Corp. Litig., 182 F.R.D. at 478 (noting that “Courts which have addressed the issue have held that differing class periods alone will not defeat consolidation or create a conflict” and citing cases). 3. Timber Hill’s Damages Argument Is a Red Herring Potential differences in damages do not undermine consolidation here because they are not a barrier to class certification. See, e.g., In re Honeywell Int’l Inc. Sec. Litig., 211 F.R.D. 255, 262 (D.N.J. 2002) (certifying class and stating that damages conflicts do not “prevent certification of the proposed class or of the proposed Plaintiffs as its representatives”); see also In re Schering-Plough Corp. Sec. Litig., No. CIV.A. 01-0829, 2003 WL 25547564, at *8 (D.N.J. Oct. 10, 2003) (certifying class and describing damages conflicts as irrelevant at that stage); In re Orbital Scis. Corp. Sec. Litig., 188 F.R.D. 237, 239 (E.D. Va. 1999) (consolidating securities class action where “shareholders and the optionholders appear to share a similar interest in recovering from the Defendants, and the fact that the amount of Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 31 of 36 PageID: 8239 - 25 - their damages may differ does not pose a disabling risk of prejudice or confusion because separate claims for payment could be processed if liability were found”); Enron, 206 F.R.D. at 437-88 (rejecting claims of a conflict between common and preferred shareholders or between common shareholders and debt holders); Handwerger v. Ginsberg, No. 73 CIV. 4832, 1975 WL 343, at *2 (S.D.N.Y. Jan. 2, 1975) (no conflict between debt and stock holders because both sought to recover damages as a result of misrepresentations). That Timber Hill purports to extend the end of the class period by four months does not alter the consolidation analysis either (and, as noted above, it does not require new notice under the PSLRA). See ShengdaTech, 2011 WL 6110438, at *2 (rejecting the claim that an expanded class period is sufficient to avoid consolidation). Indeed, failing to consolidate related actions with different class periods would undermine the PSLRA’s lead plaintiff provision, as it would require courts to appoint a new lead plaintiff for every alleged additional disclosure, splintering the litigation into separate actions. Timber Hill’s reliance on Friedman v. Quest Energy Partners LP here is misguided. No federal court has cited Quest Energy Partners for Timber Hill’s dubious proposition that independent representation is required where two “classes are competing for recovery from a common set of defendants,” and the case is otherwise distinguishable. 261 F.R.D. 607, 610 (W.D. Okla. 2009). There, the Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 32 of 36 PageID: 8240 - 26 - two timely class actions not only involved “materially different” claims, but they also sought different remedies under different laws against different defendants. Id. at 611. Finding a conflict between those disparate actions, the court emphasized that one class sought only a rescissory remedy under §11 of the Securities Act; if granted, this remedy would significantly diminish the other class’s ability to recover for its claims, which it asserted only under §§10(b) and 20(a) of the Exchange Act. Id. Thus, the perceived conflict in Quest Energy Partners has no relevance to the instant case, in which all plaintiffs seek the same remedies from the same defendants under the same laws.8 For these reasons, “the litigation should proceed as a unified class with a strong Lead Plaintiff.” Enron, 206 F.R.D. at 451. Timber Hill’s motion, which would interfere with TIAA’s ability and authority to manage the Consolidated Action, should be denied. IV. CONCLUSION Timber Hill’s securities class action complaint is more than two years too late, and Timber Hill offers no justification for its untimeliness. Further, Timber Hill seeks to represent a class of investors already adequately represented by the 8 Kuper v. Quantum Chemical is even less compelling. In that ERISA case, plaintiffs’ counsel sought to represent simultaneously two separate class plaintiffs in two different actions that made “competing claims” against the same defendant in two different courts. Kuper v. Quantum Chemical Corp., 145 F.R.D. 80, 83 (S.D. Ohio 1992). Because the propriety of class counsel representing a single class of plaintiffs in one action, as here, was not disputed in Kuper, the case is inapt. Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 33 of 36 PageID: 8241 - 27 - Court-appointed Lead Plaintiff, TIAA. For these reasons, Timber Hill’s motion should be denied. DATED: July 2, 2018 SEEGER WEISS LLP CHRISTOPHER A. SEEGER DAVID R. BUCHANAN s/ Christopher A. Seeger CHRISTOPHER A. SEEGER 55 Challenger Road, 6th Floor Ridgefield Park, NJ 07660 Telephone: 973-639-9100 973-639-9393 (fax) cseeger@seegerweiss.com dbuchanan@seegerweiss.com Local Counsel ROBBINS GELLER RUDMAN & DOWD LLP DARREN J. ROBBINS TOR GRONBORG X. JAY ALVAREZ MATTHEW I. ALPERT DEBASHISH BAKSHI 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) ROBBINS GELLER RUDMAN & DOWD LLP JAMES E. BARZ FRANK A. RICHTER 200 South Wacker Drive, 31st Floor Chicago, IL 60606 Telephone: 312/674-4674 312/674-4676 (fax) Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 34 of 36 PageID: 8242 - 28 - ROBBINS GELLER RUDMAN & DOWD LLP JACK REISE ROBERT J. ROBBINS KATHLEEN B. DOUGLAS 120 East Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Telephone: 561/750-3000 561/750-3364 (fax) ROBBINS GELLER RUDMAN & DOWD LLP JOHN C. HERMAN Monarch Tower, Suite 1650 3424 Peachtree Road, N.E. Atlanta, GA 30326 Telephone: 404/504-6500 404/504-6501 (fax) Lead Counsel for Plaintiffs Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 35 of 36 PageID: 8243 - 29 - CERTIFICATE OF SERVICE I hereby certify that, on July 2, 2018, the Lead Plaintiff’s Memorandum of Law in Opposition to Timber Hill’s Motion for Relief from Consolidation Order, Declaration of Christopher A. Seeger In Support of Lead Plaintiff’s Memorandum of Law in Opposition to Timber Hill’s Motion for Relief from Consolidation Order, and Exhibits attached hereto were filed electronically via the CM/ECF system which will sent notification to all counsel of record Dated: July 2, 2018 /s/ Christopher A. Seeger Christopher A. Seeger SEEGER WEISS LLP 55 Challenger Road 6th Floor Ridgefield Park, New Jersey 07660 Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 36 of 36 PageID: 8244