POTTER v. VALEANT PHARMACEUTICALS INTERNATIONAL, INC. et al

BRIEF in Opposition

D.N.J.February 5, 2019

1526336_1 SEEGER WEISS LLP CHRISTOPHER A. SEEGER DAVID R. BUCHANAN 55 Challenger Road, 6th Floor Ridgefield Park, NJ 07660 Telephone: 212/584-0700 212/584-0799 (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 Judge Michael A. Shipp Magistrate Judge Lois H. Goodman LEAD PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS AND MOTION TO STRIKE Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 1 of 21 PageID: 12964 TABLE OF CONTENTS Page - i - 1526336_1 I. INTRODUCTION ........................................................................................... 1 II. FACTUAL BACKGROUND .......................................................................... 1 III. ARGUMENT ................................................................................................... 3 A. Defendants’ Motion to Dismiss Is Moot ............................................... 5 1. The Court Already Denied Defendants’ Motion to Dismiss the Only Operative Complaint ...................................... 5 2. Defendants’ Motion Undermines the PSLRA and the Purposes of Consolidation .......................................................... 8 B. Defendants’ Motion to Strike Timber Hill’s Class Allegations Is a Premature Attack on Class Certification ...................................... 10 IV. CONCLUSION .............................................................................................. 14 Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 2 of 21 PageID: 12965 TABLE OF AUTHORITIES Page - ii - 1526336_1 CASES Bd. of Educ. of Twp. High Sch. v. Climatemp, Inc., No. 79 C 3144, 1981 WL 2033 (N.D. Ill. Feb. 20, 1981) ..................................................................................... 13 Brody v. Homestore, Inc., No. CV02-08068-FMCJWJX, 2003 WL 22127108 (C.D. Cal. Aug. 8, 2003) ..................................................................................... 13 Clark v. McDonald’s Corp., 213 F.R.D. 198 (D.N.J. 2003) ............................................................................. 12 Columbus-Am. Discovery Grp., Inc. v. Unidentified, Wrecked & Abandoned Sailing Vessel, No. 2:87cv363, 2014 WL 12570170 (E.D. Va. July 9, 2014) ......................................................................................... 7 Gray v. BMW of N. Am., LLC, 22 F. Supp. 3d 373 (D.N.J. 2014) ....................................................................... 10 Hasher v. Corzine, No. 07-1212 (DMC), 2008 WL 11338671 (D.N.J. June 4, 2008) ............................................................................................ 9 Hevesi v. Citigroup Inc., 366 F.3d 70 (2d Cir. 2004) ................................................................................... 8 In re Paulsboro Derailment Cases, No. 13-784, 2014 WL 1371712 (D.N.J. Apr. 8, 2014) .......................................................................................... 12 In re Qwest Commc’ns Int’l, Inc. Sec. Litig., 283 F.R.D. 623 (D. Colo. 2005) ........................................................................... 8 Jack LaLanne Fitness Ctrs. v. Jimlar, Inc., 884 F. Supp. 162 (D.N.J. 1995) ............................................................................ 6 Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 3 of 21 PageID: 12966 Page - iii - 1526336_1 Merino v. Wells Fargo & Co., No. 16-7840 (ES)(MAH), 2017 WL 3908670 (D.N.J. Sept. 6, 2017) ......................................................................................... 12 Mladenov v. Wegmans Food Mkts., Inc., 124 F. Supp. 3d 360 (D.N.J. 2015) ..................................................................... 12 Park v. TD Ameritrade Tr. Co., No. 10-cv-02599-PAB-KMT, 2011 WL 1770838 (D. Colo. May 10, 2011) ....................................................................................... 5 Q+Food LLC v. Mitsubishi Fuso Truck of Am., Inc., No. 14-6046 (MAS)(DEA), 2015 WL 4603678 (D.N.J. July 30, 2015) ......................................................................................... 10 Read v. Input/Output, Inc., No. CIV.A. H-05-0108, 2005 WL 2086179 (S.D. Tex. Aug. 26, 2005) ................................................................................... 13 Superior Performers, Inc. v. Phelps, No. 1:15CV134, 2015 WL 13650060 (M.D.N.C. May 5, 2015) ...................................................................................... 5 Tietsworth v. Sears, Roebuck & Co., 720 F. Supp. 2d 1123 (N.D. Cal. 2010) .............................................................. 13 Uniloc v. Apple, Inc., No. 18-cv-00364-PJH, 2018 WL 1640267 (N.D. Cal. Apr. 5, 2018) ....................................................................................... 5 Weske v. Samsung Elecs., Am., Inc., 934 F. Supp. 2d 698 (D.N.J. 2013) ..................................................................... 10 Widjaja v. YUM! Brands, Inc., No. CV-F-09-1074 OWW/DLB, 2009 WL 3462040 (E.D. Cal. Oct. 22, 2009) ....................................................... 7 Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 4 of 21 PageID: 12967 Page - iv - 1526336_1 Zarichny v. Complete Payment Recovery Servs., Inc., 80 F. Supp. 3d 610 (E.D. Pa. 2015) .................................................................... 12 STATUTES, RULES AND REGULATIONS Federal Rule of Civil Procedure Rule 12 .................................................................................................................. 8 Rule 12(b) ............................................................................................................. 1 Rule 13(a) .............................................................................................................. 7 Rule 23 ................................................................................................................ 11 Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 5 of 21 PageID: 12968 - 1 - 1526336_1 I. INTRODUCTION Nearly two years after this Court largely denied their motions to dismiss this action’s only operative complaint (the “Consolidated Complaint”), defendants move again to dismiss the same allegations in a subsequently filed complaint (the “Timber Hill Complaint”) that has been consolidated into the class action. ECF No. 393. The Court should deny defendants’ motion. First, defendants’ motion to dismiss is moot because the Timber Hill case has been consolidated into the lead plaintiff’s class action along with all other “securities class actions subsequently filed in, or transferred to, this District.” ECF No. 67 at 1. The Timber Hill Complaint is not the operative pleading and it required no answer or Federal Rule of Civil Procedure 12(b) motion from defendants. Defendants have already (unsuccessfully) moved to dismiss and indeed answered the same allegations in the only operative pleading – the Consolidated Complaint. And second, the Court should also deny defendants’ motion to strike Timber Hill’s class allegations because such a motion is premature before class certification. II. FACTUAL BACKGROUND On October 22, 2015, Lead Counsel, Robbins Geller Rudman & Dowd LLP (“Robbins Geller”), filed the first securities class action on behalf of plaintiff Laura Potter against Valeant Pharmaceuticals International, Inc. (“Valeant”) and its executives, alleging that defendants engaged in various deceptive practices, including Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 6 of 21 PageID: 12969 - 2 - 1526336_1 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”). Thereafter, three other securities class action complaints were filed. See Chen v. Valeant Pharm. Int’l, Inc., No. 3:15-cv-07679- MAS-LGH; Yang v. Valeant Pharm. Int’l, Inc., No. 3:15-cv-07746-MAS-DEA; Fein v. Valeant Pharm. Int’l, Inc., No. 3:15-cv-07809-MAS-LHG. On May 31, 2016, this Court consolidated the related securities class actions against Valeant and its executives, appointed Teachers Insurance and Annuity Association of America (“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. ECF No. 80. The Consolidated Complaint included claims pursuant to both the Securities Act of 1933 and the Securities Exchange Act of 1934. On April 28, 2017, following extensive briefing by the parties and oral argument, the Court largely denied defendants’ motions to dismiss. ECF No. 216. Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 7 of 21 PageID: 12970 - 3 - 1526336_1 Almost two years later, on June 6, 2018, Timber Hill filed a securities class action complaint that was 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 contained neither new allegations nor distinct legal claims, as it essentially copied the Consolidated Complaint. 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. Timber Hill timely objected to consolidation and sought relief from the Court’s order. ECF No. 322. The Court denied Timber Hill’s motion for relief from consolidation on November 7, 2018. ECF No. 392. Nevertheless, Timber Hill filed executed waivers of service for the Timber Hill Complaint on November 30, 2018. Timber Hill, No. 3:18-cv-10246-MAS-LHG, ECF Nos. 6-10. Defendants then moved to dismiss and strike the class allegations from the Timber Hill Complaint on January 14, 2019. ECF No. 407. Defendants’ motion should be denied. III. ARGUMENT The Timber Hill Complaint is inoperative and not the proper subject of a motion to dismiss or strike because the Court has consolidated it into the class action. ECF Nos. 318, 392. Thus, defendants’ motion to dismiss the Timber Hill Complaint and strike its class allegations ignores the Court’s orders and unnecessarily multiplies Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 8 of 21 PageID: 12971 - 4 - 1526336_1 the litigation. Defendants attempt to evade this by seeking to strike the class allegations, which in their view would effectively convert the Timber Hill action into an opt-out case, and then they seek to dismiss it. But Timber Hill never sought to opt- out of the class litigation, and defendants cannot force it out in order to get additional bites at the apple. The Court already denied defendants’ motions to dismiss the Consolidated Complaint, lead plaintiff’s class certification briefing is underway, and any challenges to limitations or class certification must be addressed in the Consolidated Action, not in the Timber Hill case. ECF No. 216. Lead plaintiff, therefore, respectfully asks the Court to deny defendants’ motion to dismiss the inoperative Timber Hill Complaint as moot and to deny defendants’ motion to strike as premature. Defendants acknowledge that their brief “does not address TIAA’s class action allegations” but “only relates to [Timber Hill’s] complaint.” ECF No. 407-1 at 7 n.5. Defendants further acknowledge that the Consolidated Action’s claims are timely, citing the Potter complaint filed by Robbins Geller as an example of a “reasonably diligent plaintiff” who filed within the statute of limitations. See id. at 10-11. Thus, ruling on these motions is a pointless exercise and wasteful of judicial resources, and the Court should deny defendants’ motions. Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 9 of 21 PageID: 12972 - 5 - 1526336_1 A. Defendants’ Motion to Dismiss Is Moot The Court should find defendants’ motion to dismiss to be moot because it already denied defendants’ first motions to dismiss the same allegations in the Consolidated Action’s only operative complaint. Defendants’ motion to dismiss a subsequent non-operative complaint consolidated into the class action – by incorrectly declaring it an opt-out – is also improper because it is incompatible with the purpose of the Private Securities Litigation Reform Act of 1995 (“PSLRA”) and the Court’s Consolidation Order. 1. The Court Already Denied Defendants’ Motion to Dismiss the Only Operative Complaint Motions to dismiss non-operative complaints are moot. See Park v. TD Ameritrade Tr. Co., No. 10-cv-02599-PAB-KMT, 2011 WL 1770838, at *1 (D. Colo. May 10, 2011) (denying motion to dismiss a non-operative complaint as moot); Uniloc v. Apple, Inc., No. 18-cv-00364-PJH, 2018 WL 1640267, at *2 (N.D. Cal. Apr. 5, 2018) (same); Superior Performers, Inc. v. Phelps, No. 1:15CV134, 2015 WL 13650060, at *1 (M.D.N.C. May 5, 2015) (same). Here, the Court consolidated multiple actions into the Consolidated Action and appointed TIAA lead plaintiff over two years ago, directing that “[a]ll securities class actions subsequently filed in, or transferred to, this District shall be consolidated into this action.” ECF No. 67 at 1. Defendants never moved to dismiss any of the complaints in the other actions that were consolidated. The Court then largely denied Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 10 of 21 PageID: 12973 - 6 - 1526336_1 defendants’ motions to dismiss the Consolidated Complaint, which defendants subsequently answered. ECF Nos. 216, 230-236. Pursuant to its Consolidation Order, the Court consolidated the individual Timber Hill action into the Consolidated Action on June 11, 2018, denying Timber Hill’s Motion for Relief From Consolidation Order. ECF Nos. 318, 392.1 In support of consolidating the Timber Hill action, the Court found “[t]here is no legitimate dispute as to whether the Timber Hill matter and [the Consolidated Action] include common questions of law or fact,” noting that “Timber Hill appears to concede this point when it ‘recognizes that the issues presented in the two actions overlap’” and concluded that “the Timber Hill matter is ripe for consolidation.” ECF No. 392 at 10 n.5 (quoting ECF No. 322-1 at 5). Timber Hill’s putative class action complaint is therefore not operative in the Consolidated Action. Because the Timber Hill Complaint is not operative, defendants do not need to answer or otherwise plead in response to it. Defendants know that their motion is unnecessary and wasteful because they never answered or otherwise pled in response to all the other complaints that were previously consolidated. Thus, defendants’ successive motion to dismiss a non-operative class complaint is moot. ECF Nos. 167, 216; accord Jack LaLanne Fitness Ctrs. v. Jimlar, Inc., 884 F. Supp. 162, 164 (D.N.J. 1 Lead plaintiff’s First Amended Consolidated Complaint (ECF No. 352) is the case’s operative complaint. Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 11 of 21 PageID: 12974 - 7 - 1526336_1 1995) (noting that consolidation makes dismissal of second filed action inappropriate in a Fed. R. Civ. P. 13(a) compulsory counterclaim context) (citing cases); see also Widjaja v. YUM! Brands, Inc., No. CV-F-09-1074 OWW/DLB, 2009 WL 3462040, at *1 n.1 (E.D. Cal. Oct. 22, 2009) (denying as moot and improper a duplicate motion to dismiss overlapping actions where the court had ordered them consolidated); Columbus-Am. Discovery Grp., Inc. v. Unidentified , Wrecked & Abandoned Sailing Vessel, No. 2:87cv363, 2014 WL 12570170, at *3 (E.D. Va. July 9, 2014) (denying duplicative motions to dismiss as moot and “inapplicable” after consolidating related actions). As this Court well knows, there are other opt-out cases which represent individual actions, outside the class case, for which the Court has ruled on many motions to dismiss. But the Timber Hill Complaint purports to be a class action, and it was properly consolidated as a result. To evade the Court’s Consolidation Order, defendants seek to strike the class action allegations and then describe the Timber Hill action as an “opt out” case. ECF No. 407-1 at 14. Defendants’ attempt to circumvent the Consolidation Order is apparently designed to allow defendants additional briefing and argument. But the Timber Hill Complaint is a purported class action case which, unlike the pending opt-out cases, was properly consolidated into the Consolidated Action. ECF Nos. 318, 392. Thus, defendants’ attempt to convert it into an opt-out should be denied. Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 12 of 21 PageID: 12975 - 8 - 1526336_1 2. Defendants’ Motion Undermines the PSLRA and the Purposes of Consolidation Non-lead plaintiffs like Timber Hill have only a “passive role” in the litigation under the PSLRA. In re Qwest Commc’ns Int’l, Inc. Sec. Litig., 283 F.R.D. 623, 625 (D. Colo. 2005). The PSLRA grants the lead plaintiff control “over the litigation as a whole” and thereby limits the actions non-lead plaintiffs can take. Hevesi v. Citigroup Inc., 366 F.3d 70, 82 n.13 (2d Cir. 2004) (citing S. Rep. No. 104-98, at 4 (1995), reprinted in 1995 U.S.C.C.A.N. 679, 683).2 Here, lead plaintiff perfected service when it filed executed waivers of service of summons on July 7, 2016. ECF Nos. 90-96. Moreover, defendants stipulated to service of a single consolidated, operative complaint in the case. ECF No. 86. Thus, Timber Hill’s November 30, 2018 execution of waivers of service was superfluous and did not warrant an answer or motion under Fed. R. Civ. P. 12 by defendants, who had already moved to dismiss and then answered the only operative complaint in the Consolidated Action. ECF Nos. 164-169, 230-236. If the Court were to consider defendants’ second motion to dismiss anything but moot, it would effectively be allowing Timber Hill to skirt the PSLRA and this Court’s Consolidation Order, in an attempt to regain some control over the consolidated litigation by executing forceless waivers of service. Similarly, it would 2 Emphasis is added and citations are omitted throughout unless otherwise indicated. Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 13 of 21 PageID: 12976 - 9 - 1526336_1 also allow defendants an opportunity to test the waters on any potential additional disputes by raising them in the Timber Hill matter prior to resolution of class certification in the Consolidated Action. The motion to dismiss should therefore be denied as improper because allowing it would undermine the lead plaintiff provisions of the PSLRA. Moreover, it would result in duplication and inefficiency. As this Court stated: “The purpose of consolidation is ‘to provide for judicial efficiency by streamlining pretrial proceedings, minimize duplication of effort, and avoid conflicting outcomes in cases involving similar legal and factual issues.’” ECF No. 392 at 3 (quoting Hasher v. Corzine, No. 07-1212 (DMC), 2008 WL 11338671, at *2 (D.N.J. June 4, 2008)). Defendants’ instant motions repudiate this purpose by compounding the proceedings. For example, if the Court entertains these motions directed at the Timber Hill Complaint, it may encourage defendants to file motions directed at the other consolidated actions in order to test the waters on other arguments that were already addressed, or that defendants failed to raise, in the Consolidated Action. Such conduct defeats the fundamental purpose of consolidation and should be shut down, not encouraged, as this litigation is already massive given the Consolidated Action and more than 20 opt-out cases on the Court’s docket. Defendants’ motion to dismiss should therefore be denied as moot and improper in light of consolidation. Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 14 of 21 PageID: 12977 - 10 - 1526336_1 B. Defendants’ Motion to Strike Timber Hill’s Class Allegations Is a Premature Attack on Class Certification The Court should also deny defendants’ motion to strike Timber Hill’s class allegations because such a motion is premature before class certification. “Motions to strike class allegations from a pleading are disfavored because a motion for class certification is a more appropriate vehicle for arguments about class propriety.” Gray v. BMW of N. Am., LLC, 22 F. Supp. 3d 373, 386 (D.N.J. 2014) (denying defendants’ motion to strike class allegations and calling it “premature” at the pleading stage). Indeed, “‘numerous cases in this District have emphatically denied requests to strike class allegations at the motion to dismiss stage as procedurally premature.’” Q+Food LLC v. Mitsubishi Fuso Truck of Am., Inc., No. 14-6046 (MAS)(DEA), 2015 WL 4603678, at *7 (D.N.J. July 30, 2015) (Shipp, J.) (quoting Weske v. Samsung Elecs., Am., Inc., 934 F. Supp. 2d 698, 707 (D.N.J. 2013)). First, as the Court correctly observed, Timber Hill’s class allegations are “taken nearly verbatim from the Consolidated Complaint.” ECF No. 392 at 10 n.5. As discussed supra at 5-7, the Court has already denied defendants’ motion to dismiss these claims in the Consolidated Complaint, so it is improper to move two years later to strike them before the Court rules on class certification. Defendants’ argument that Timber Hill “is attempting to proceed with a class action without being appointed as a lead plaintiff” misses the mark. ECF No. 407-1 at 7. Defendants ignore that the Court denied Timber Hill’s motion for relief from the Consolidation Order, which Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 15 of 21 PageID: 12978 - 11 - 1526336_1 renders the Timber Hill Complaint subordinate and makes clear that Timber Hill is not going to be leading any class action. ECF No. 392. Rather, defendants’ true purpose in trying to strike the Timber Hill class allegations is so defendants can call it an opt- out case and then ask this Court to rule on the motion to dismiss. That attempt fails for the reasons noted. See supra at 5-7. Second, defendants are attempting to test the waters on class certification issues not yet before the Court. Defendants’ brief explicitly disavows any Fed. R. Civ. P. 23 arguments until class certification. ECF No. 407-1 at 9 n.6.3 Nevertheless, defendants argue that “‘the requirements for maintaining a class action cannot be met.’” ECF No. 407-1 at 7. By wading into class certification issues, defendants seek a Timber Hill ruling that they will then attempt to bootstrap into the Consolidated Action. By manufacturing a purported need to litigate class issues against Timber Hill, who is not the lead plaintiff, defendants disregard the Court’s statements that “the derivatives traders’ interests will be protected during the pretrial period” and that it “will be able to better evaluate the impact of the putative class definition on derivatives traders when the Lead Plaintiff moves for class certification.” ECF No. 392 at 12. Defendants’ attempt to strike class allegations should therefore be rejected as an 3 In their first motion to dismiss these claims, defendants never argued that class treatment was inappropriate or that the requirements for maintaining a class action cannot be met in this action. ECF No. 167. Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 16 of 21 PageID: 12979 - 12 - 1526336_1 improper attempt to preempt lead plaintiff’s class certification motion and the Court’s subsequent ruling on it. The cases defendants rely on show that moving to strike class allegations before discovery is improper. See In re Paulsboro Derailment Cases, No. 13-784 (RBK/KMW), 2014 WL 1371712, at *3, *8 (D.N.J. Apr. 8, 2014) (denying motion to strike class allegations and noting that “‘[i]f the viability of a class depends on factual matters that must be developed through discovery, a motion to strike will be denied pending the full-blown certification motion’”); see also Merino v. Wells Fargo & Co., No. 16-7840 (ES)(MAH), 2017 WL 3908670, at *6 (D.N.J. Sept. 6, 2017) (denying motion to strike class allegations as premature before class certification). The cases defendants cite that do grant motions to strike are easily distinguishable because the defects were so obvious that discovery was irrelevant. See, e.g., Mladenov v. Wegmans Food Mkts., Inc., 124 F. Supp. 3d 360, 369 (D.N.J. 2015) (striking consumer class allegations where the only records plaintiffs could rely on would not support class certification); see also Zarichny v. Complete Payment Recovery Servs., Inc., 80 F. Supp. 3d 610, 624 (E.D. Pa. 2015) (striking class allegations in a consumer protection case where “plaintiff’s class definitions create impermissible fail-safe classes” but noting that “we may only grant a motion to strike class action allegations if class treatment on the face of the complaint leaves little doubt they are not viable”); Clark v. McDonald’s Corp., 213 F.R.D. 198, 205 n.3, Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 17 of 21 PageID: 12980 - 13 - 1526336_1 221-24 (D.N.J. 2003) (finding defendant classes and subclasses not certifiable where defendants were not acting in furtherance of a common practice or policy and noting that striking class action allegations prior to discovery is only appropriate “in those rare cases where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met”).4 For these reasons, defendants’ motion to strike Timber Hill’s class allegations should be denied as premature and therefore improper. 4 See also Read v. Input/Output, Inc., No. CIV.A. H-05-0108, 2005 WL 2086179, at *2 (S.D. Tex. Aug. 26, 2005) (striking class allegations where no one moved for appointment as lead plaintiff and stating “[t]here is no reason for this case to proceed as a class action when, evidently, none of the plaintiffs are interested in pursuing their class action allegations”); Brody v. Homestore, Inc., No. CV02-08068-FMCJWJX, 2003 WL 22127108, at *6 (C.D. Cal. Aug. 8, 2003) (striking class allegations without prejudice where plaintiff did not file a certification with the complaint or satisfy other procedural and notice requirements); Tietsworth v. Sears, Roebuck & Co., 720 F. Supp. 2d 1123, 1146 (N.D. Cal. 2010) (striking class allegations where some members of putative class had no standing to sue); Bd. of Educ. of Twp. High Sch. v. Climatemp, Inc., No. 79 C 3144, 1981 WL 2033, at *4 (N.D. Ill. Feb. 20, 1981) (striking class claims where numerosity was not satisfied). Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 18 of 21 PageID: 12981 - 14 - 1526336_1 IV. CONCLUSION For the foregoing reasons, defendants’ motion to dismiss and motion to strike should be denied. DATED: February 5, 2019 Respectfully submitted, 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: 212/584-0700 212/584-0799 (fax) cseeger@seegerweiss.com dbuchanan@seegerweiss.com Local Counsel ROBBINS GELLER RUDMAN & DOWD LLP DARREN J. ROBBINS ROBERT R. HENSSLER JR. CHRISTOPHER R. KINNON 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 19 of 21 PageID: 12982 - 15 - 1526336_1 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) ROBBINS GELLER RUDMAN & DOWD LLP 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) Lead Counsel for Plaintiffs Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 20 of 21 PageID: 12983 CERTIFICATE OF SERVICE I hereby certify that, on February 5, 2019, the Lead Plaintiff’s Opposition to Defendants’ Motion to Dismiss and Motion to Strike was filed electronically via the CM/ECF system which will send notification to all counsel of record. Dated: February 5, 2019 /s/ Christopher A. Seeger Christopher A. Seeger SEEGER WEISS LLP 55 Challenger Road 6th Floor Ridgefield Park, New Jersey 07660 cseeger@seegerweiss.com - 16 - Case 3:15-cv-07658-MAS-LHG Document 416 Filed 02/05/19 Page 21 of 21 PageID: 12984