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Monroe County Employees' Retirement System v. The Southern Co.

United States District Court, N.D. Georgia, Atlanta Division

August 22, 2019

MONROE COUNTY EMPLOYEES' RETIREMENT SYSTEM and ROOFERS LOCAL NO. 149 PENSION FUND, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
v.
THE SOUTHERN COMPANY, THOMAS A. FANNING, ART P. BEATTIE, EDWARD DAY, VI, G. EDISON HOLLAND, JR., JOHN C. HUGGINS, AND THOMAS O. ANDERSON, Defendants.

          OPINION AND ORDER GRANTING MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS REPRESENTATIVES AND CLASS COUNSEL

          WILLIAM M. RAY, II, UNITED STATES DISTRICT JUDGE.

         This is a federal securities fraud class action brought against defendant The Southern Company (the “Southern Company” or the “Company”) and Individual Defendants Thomas A. Fanning, Art P. Beattie, Edward Day, VI, G. Edison Holland, Jr., John C. Huggins, and Thomas O. Anderson (collectively the “Defendants”). Roofers Local No. 149 Pension Fund (the “Roofers Local No. 149”) and Monroe County Employees' Retirement System (the “Monroe County” and, together with Roofers Local No. 149, the “Plaintiffs”), as putative class representatives, seek damages for Defendants' alleged violations of Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. §78j(b), Rule 10b-5 promulgated thereunder, and Section 2');">20(a) of the Exchange Act. The operative complaint in this action is the Consolidated Complaint for Violations of the Federal Securities Laws, filed on June 12');">2, 2');">2017. [Doc. 2');">28] (the “Complaint”).

         This matter is before the Court on Plaintiffs' Motion for Class Certification. [Doc. 77] (the “Plaintiffs' Class Certification Motion”). The motion has been fully briefed, and with the benefit of oral argument on May 2');">21-2');">22');">2, 2');">2019, the Court enters the following Order.

         I. FACTUAL BACKGROUND

         A detailed description of the allegations in this case is set forth in the March 2');">29, 2');">2018, Order granting in part and denying in part Defendants' motion to dismiss the Complaint. [Doc. 43] (“MTD Order”). To summarize, Plaintiffs allege the following:

In January 2');">2009, Mississippi Power Company (“Mississippi Power”), a wholly-owned subsidiary of Southern Company, announced that it was planning to construct a “clean coal” power plant in Kemper County, Mississippi (the “Kemper Plant”). ¶33.[1] During 2');">2009, the U.S. Internal Revenue Service (“IRS”) certified the allocation of $133 million in tax credits to Mississippi Power for the construction of the Kemper Plant so long as Defendants completed the plant by its proposed commercial operation date in May 2');">2014 (the “May 2');">2014 COD”). ¶¶4, 35. In June 2');">2010, the Mississippi Public Service Commission (“PSC”), which regulates Mississippi public utilities, authorized the acquisition, construction, and operation of the Kemper Plant and approved a ratepayer-funded allowance to finance the $2');">2.88 billion construction costs incurred through the May 2');">2014 COD. ¶¶32');">2, 36. The PSC's authorization provided that any costs incurred beyond $2');">2.88 billion or subsequent to the May 2');">2014 COD could not be passed on to Mississippi Power's ratepayers. ¶36. In addition, the South Mississippi Electric Power Association made a $150 million deposit toward a 15% ownership interest in the Kemper Plant, which Southern Company was required to repay with interest if the plant was not completed by the May 2');">2014 COD. ¶¶12');">2, 172');">2. Lastly, Southern Company had a contract with Treetop Midstream Services, LLC (“Treetop”), whereby Treetop would purchase the CO2');">2 by-product generated by the Kemper Plant and construct a pipeline to offload the CO2');">2 by-product, again provided that the plant was timely constructed. ¶12');">2. As such, it was imperative that the Kemper Plant be completed on time. ¶5.

         Plaintiffs allege that throughout the construction process, Defendants repeatedly assured the public and investors that construction of the Kemper Plant was “‘on target, '” “‘on schedule, '” “‘70 percent complete, '” “‘75 percent complete, '” “exceedingly well-built and well organized, ” reaching specific component milestones, and would be completed by the May 2');">2014 COD.[2');">2" name="FN2');">2" id="FN2');">2">2');">2] Monroe Cty. Emps.' Ret. Sys. v. S. Co., No. 1:17-CV-2');">241-MHC, 2');">2018 WL 1558577, at *7-*2');">23 (N.D.Ga. Mar. 2');">29, 2');">2018); see also ¶¶116, 118-119, 12');">22');">2-12');">23, 12');">25-12');">27, 130, 132');">2-137, 140-141, 143, 145, 149-151, 153, 155, 158 (detailing the remaining alleged false statements).

         Plaintiffs allege that Defendants knew or recklessly disregarded that their Class Period statements were misleading or omitted information necessary to make their statements not misleading. Plaintiffs allege that from the outset and continuing through the end of the Class Period, Defendants knew or recklessly disregarded that the Kemper Plant was not “on schedule” or “on target, ” was not “70 percent” or “75 percent complete” when they so stated; that construction was not “well organized”; that specific component milestones had not been achieved; and that the “[t]he May 2');">2014 COD was impossible to achieve.” See, e.g., ¶12');">24(e) (alleging Defendants' May 15, 2');">2012');">2 statement that “we'll have the first heat to the gasifier in October of next year” (¶116) was false and misleading in part because Defendants knew or recklessly disregarded that “[t]he May 2');">2014 COD was impossible to achieve due to major delays in the installation of the gasifier”); Monroe Cty. Emps.' Ret. Sys. v. S. Co., 333 F.Supp.3d 1315, 132');">24 (N.D.Ga. 2');">2018) (finding Plaintiffs' allegations of scienter sufficient, as “‘[Brett] Wingo [a former employee and whistleblower] said that as soon as he learned in February 2');">2012');">2 that there were refractory failures on the gasifier, he knew that there was “no way in hell” that Southern Company could meet the May 2');">2014 deadline'”) (emphasis in original) (quoting ¶61); see also ¶¶115(e), 131(f)-(h), 144(f)-(h), 159(f)-(h) (alleging all of Defendants' Class Period misstatements were misleading in part because Defendants knew or recklessly disregarded that “[t]he May 2');">2014 COD was impossible to achieve”).

         Considering Defendants' motion to dismiss, Judge Cohen held that “Plaintiffs' Complaint is replete with allegations of facts which, if found to be true, demonstrate that the statements were false or misleading.” Monroe Cty., 2');">2018 WL 1558577, at *2');">22');">2. For example, while Defendants misleadingly stated “that the gasifier was installed as of September 13, 2');">2012');">2, ” “the first gasifier was not delivered until January of 2');">2013.” Id. Plaintiffs also presented internal Company emails to the Court at the May 2');">22');">2, 2');">2019, hearing that Plaintiffs contend support the Complaint's allegations. For example, an April 2');">2012');">2 email to defendant Anderson discussed a “revised completion date” for the Kemper Plant and noted that, as of April 2');">2012');">2, the Kemper Plant was “not on time and [was] over budget.” [Doc. 12');">28-14] (“Plaintiffs' Ex. 11”) at 4. The email to defendant Anderson also discussed what steps, if any, were being “tak[en] to bring the project back on schedule.” Id. Further, in June 2');">2012');">2, Wingo informed his superior that a change in materials “[would] result in a 40 week delay” and emphasized that “there [was] no getting around it.” Id. at 5. Plaintiffs allege that Defendants continued to make false and misleading statements regarding the construction of the Kemper Plant and actively sought to conceal the true state of the construction. See, e.g., id. at 7 (August 8, 2');">2012');">2, email from defendant Day instructing his employees that nothing regarding the Kemper Plant schedule should be shared publicly and that any schedule or budget information should be approved by Defendants Day, Huggins, and Anderson before public dissemination).

         Finally, Plaintiffs allege that when Defendants could no longer conceal the schedule and construction issues at the Kemper Plant, they disclosed what they had known from the very start of the Class Period - the Kemper Plant was not “on schedule” or “on track” and the May 2');">2014 COD was impossible to achieve. ¶45. In fact, as of the filing of the Complaint in June 2');">2017, “Defendants announced that the Kemper Plant was not yet fully commercially operable and would cost nearly three times its original construction cost limit.” Monroe Cty., 2');">2018 WL 1558577, at *1. Since then, Defendants have announced that the Kemper Plant will never operate as a “clean coal” facility. [Doc. 12');">28-14 at 10]. In addition to the other government and private investigations into the Kemper Plaint, in April 2');">2019, Defendants disclosed that the Department of Justice had opened an investigation concerning the Kemper Plant. Id. at 11.

         II. PROCEDURAL BACKGROUND

         On April 11, 2');">2017, the Court appointed Roofers Local No. 149 as Lead Plaintiff and Robbins Geller Rudman & Dowd LLP (“Robbins Geller”) as Lead Counsel. [Doc. 2');">22');">2]. On June 12');">2, 2');">2017, Plaintiffs filed their Complaint alleging that between April 2');">25, 2');">2012');">2, and October 30, 2');">2013, Defendants violated Sections 10(b) and 2');">20(a) of the Exchange Act by issuing false and misleading statements about the construction of the Kemper Plant.

         On March 2');">29, 2');">2018, the Court granted in part and denied in part Defendants' motion to dismiss [Doc. 43] (“MTD Order”). On April 6, 2');">2018, the Court granted Defendants' motion for clarification of the MTD Order to clarify that Defendants' motion to dismiss Plaintiffs' Section 2');">20(a) claim was denied as to all Defendants and that all of the Individual Defendants remained in the case. [Doc. 47]. On April 2');">26, 2');">2018, Defendants moved for reconsideration of the MTD Order. [Doc. 51]. On May 2');">23, 2');">2018, Defendants moved for certification of the MTD Order, pursuant to 2');">28 U.S.C. §12');">292');">2(b), and requested a stay pending appeal. [Doc. 57]. On August 10, 2');">2018, the Court denied Defendants' motion for reconsideration and Defendants' motion for interlocutory appeal and stay. [Doc. 68].

         On September 2');">24, 2');">2018, Plaintiffs moved for class certification and for appointment of class representatives and class counsel. [Doc. 77]. In support of their motion, Plaintiffs submitted the expert opinion of Professor Steven P. Feinstein, Ph.D., CFA (“Professor Feinstein”), on market efficiency and damages. On February 4, 2');">2019 [Doc. 77-2');">2], Defendants opposed class certification and moved to exclude certain of Professor Feinstein's opinions under Federal Rule of Evidence 702');">2. [Docs. 106, 109]. In support of their submissions, Defendants submitted the opinions of Professor Paul A. Gompers, Ph.D. (“Professor Gompers”) [Doc. 106-2');">2]. On March 2');">29, 2');">2019, Plaintiffs moved to exclude the opinions of Professor Gompers [Doc. 114].

         On May 2');">21-2');">22');">2, 2');">2019, the Court conducted an evidentiary hearing on Plaintiffs' motion for class certification and the parties' competing motions to exclude. During the hearing, the Court heard testimony from Professor Feinstein and Professor Gompers and oral argument on Plaintiffs' motion for class certification and the competing motions to exclude.

         On June 12');">2, 2');">2019, the Court denied Defendants' motion to exclude the opinions of Professor Feinstein and denied Plaintiffs' motion to exclude the opinions of Professor Gompers. [Doc. 138] (“Daubert Order”).

         The Court now turns to Plaintiffs' Class Certification Motion. Plaintiffs seek certification of a Class consisting of:

All persons who purchased or otherwise acquired The Southern Company common stock between April 2');">25, 2');">2012');">2 and October 30, 2');">2013, inclusive (the “Class Period”), and were damaged thereby.

[Doc. 77-1 at 1] (Plaintiffs' Memorandum in Support of Plaintiffs' Motion for Class Certification).[3] Roofers Local No. 149 and Monroe County also seek appointment as Class Representatives and the appointment of Robbins Geller as Class Counsel. Id. For the reasons that follow, Plaintiffs' Class Certification Motion is granted.

         III. Legal Standard

         “The district court has broad discretion in determining whether to certify a class.” Washington v. Brown & Williamson Tobacco Corp., 2');">2d 1566');">959 F.2');">2d 1566, 1569 (11th Cir. 1992');">2). “Before a district court may grant a motion for class certification, a plaintiff seeking to represent a proposed class must establish that the proposed class is adequately and clearly ascertainable.” Little v. T-Mobile USA, Inc., 2');">2');">691 F.3d 1302');">2, 1304 (11th Cir. 2');">2012');">2) (internal quotation marks omitted). Plaintiffs, as the party seeking class certification, must prove they have satisfied the requirements in Rule 2');">23(a) and at least one of the requirements in Rule 2');">23(b). Rule 2');">23(a) requires Plaintiff to show:

(1) the class is so numerous that joinder of all members is impracticable;
(2');">2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 2');">23(a). These requirements are known as “the prerequisites of numerosity, commonality, typicality, and adequacy of representation.” Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 156 (1982');">2). Plaintiffs assert that all four prerequisites are satisfied. [Doc. 77-1 at 11-17]. Defendants do not contend otherwise. [Doc. 106].

         Once the party seeking certification has shown the requirements of Rule 2');">23(a) are satisfied, the party must show that the putative class meets at least one of the three requirements of Rule 2');">23(b). Here, Plaintiffs seek certification by Rule 2');">23(b)(3), which requires “that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 2');">23(b)(3). Those two requirements are known as the “predominance” and “superiority” requirements. Amchem Prods., Inc. v. Windsor, 2');">21 U.S. 591');">52');">21 U.S. 591, 615 (1997). Defendants contest only predominance. [Doc. 106 at 8].

         Plaintiffs, as the party seeking class certification, must demonstrate by a preponderance of the evidence that the putative class meets the requirements of Rule 2');">23. Thompson v. Jackson, 2');">2018 WL 5993867 (N.D.Ga. 2');">2018) (quoting Brown v. Electrolux Home Prods., Inc., 2');">22');">25');">817 F.3d 12');">22');">25, 12');">233 (11th Cir. 2');">2016)). “All else being equal, the presumption is against class certification because class actions are an exception to our constitutional tradition of individual litigation.” Id. Moreover, the Court is required to perform a “rigorous analysis” of the elements of Rule 2');">23(a) and (b). Comcast Corp. v. Behrend, 2');">27');">569 U.S. 2');">27, 35 (2');">2013).

         IV. DISCUSSION

         A. Rule 2');">23(a)

         1. Numerosity

         To satisfy the numerosity requirement of Rule 2');">23(a)(1), a movant must show that “the class is so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 2');">23(a)(1). “‘Impracticable' does not mean ‘impossible'; plaintiffs need only show that it would be extremely difficult or inconvenient to join all members of the class.” In re Domestic Air Transp. Antitrust Litig., 137 F.R.D. 677, 698 (N.D.Ga. 1991) (citing 3 Newberg, Newberg on Class Actions, §18.03 at 455 (1985)). It is not necessary for the plaintiff to “‘allege the exact number. . . of purported class members.'” In re NetBank, Inc., 2');">259 F.R.D. 656');">2');">259 F.R.D. 656, 664 (N.D.Ga. 2');">2009) (numerosity satisfied for stock listed on the NASDAQ with more than 46 million shares outstanding). The numerosity requirement is “generally assumed to have been met in class action suits involving nationally traded securities.” Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2');">2d 1030, 1039 (5th Cir.1981); see also Thorpe, 2');">2016 WL 4006661, at *6 (numerosity found for NYSE-traded stock with average weekly trading volume of 3.13 million shares).

         Defendants do not dispute numerosity. Further, Plaintiffs have furnished evidence demonstrating that Southern Company's average number of shares outstanding during the Class Period was 872');">2.5 million. [Doc. 77-2');">2, ¶80] (Report on Market Efficiency by Professor Steven P. Feinstein, Ph.D., CFA, dated Sept. 2');">24, 2');">2018 (“Feinstein Rpt.”)). The average weekly trading volume for Southern shares during the Class Period was 2');">22');">2.5 million. Id., ¶50. Thus, the Court finds Plaintiffs have satisfied their burden under the numerosity requirement. In re Vesta Ins. Grp., Inc., Sec. Litig., No. 98-AR-1407-S, 1999 WL 34831475, at *1 (N.D. Ala. Oct. 2');">25, 1999) (finding numerosity satisfied on average weekly trading volume of 345, 000 shares on the NYSE).

         2');">2. Commonality

         Rule 2');">23(a)(2');">2) requires a showing that “questions of law or fact” are common to the class. “The Eleventh Circuit has noted that the Rule 2');">23(a)(2');">2) commonality requirement is a ‘low hurdle.'” Thorpe, 2');">2016 WL 4006661, at *6. “‘Rule 2');">23 does not require that all the questions of law and fact raised by the dispute be common.'” NetBank, 2');">259 F.R.D. at 664 (emphasis in original) (quoting Cox v. Am. Cast Iron Pipe Co., 784 F.2');">2d 1546, 1557 (11th Cir. 1986)). “‘“[E]ven a single [common] question”' will do.” Wal-Mart, 564 U.S. at 359; see also In re HealthSouth Corp. Sec. Litig., 2');">257 F.R.D. 2');">260');">2');">257 F.R.D. 2');">260, 2');">274 (N.D. Ala. 2');">2009) (Commonality's “minimal standard merely requires an identity of some factual or legal matter among members of the class.”). “‘Generally, where plaintiffs allege that the action is a result of a unified scheme to defraud investors, the element of commonality is met.'” NetBank, 2');">259 F.R.D. at 664 (collecting cases).

         Defendants do not dispute commonality. In addition, Plaintiffs allege that all Class members have been harmed as a result of a common course of conduct arising from a common set of material misrepresentations and omissions that Defendants made during the Class Period. Thus, there is a well-defined community of interest in the questions at issue, which include, inter alia:

1. Whether Defendants violated the 1934 Act;
2');">2. Whether Defendants omitted and/or misrepresented material facts;
3. Whether Defendants knew or recklessly disregarded that their statements were false and misleading; and
4. Whether Defendants' statements and/or omissions artificially inflated the price of Southern Company common stock and the extent and appropriate measure of damages.

         Each of the above questions focuses on Defendants' conduct and its Class-wide impact, “are susceptible to class-wide proof, ” and, thus, “demonstrate[] commonality.” Internap, 2');">2012');">2 WL 12');">2878579, at *3; see also Local 703, I.B. v. Regions Fin. Corp., 2');">282');">2 F.R.D. 607');">2');">282');">2 F.R.D. 607, 612');">2 (N.D. Ala. 2');">2012');">2) (commonality satisfied where “plaintiffs allege a single scheme which violated federal securities law”), vacated in part and aff'd sub nom. in relevant part, Local 703, I.B. of T. Grocery & Food Emps. Welfare Fund v. Regions Fin. Corp., 2');">2 F.3d 12');">248');">762');">2 F.3d 12');">248 (11th Cir. 2');">2014); Cheney v. Cyberguard Corp., 2');">213 F.R.D. 484');">2');">213 F.R.D. 484, 490 (S.D. Fla. 2');">2003) (finding commonality where allegations that defendants “perpetrated a massive fraudulent scheme against investors through uniform misrepresentations and omissions in filings made with the SEC, in press releases, and in other documents”). Thus, Plaintiffs have shown that this case presents common questions of law and fact.

         3. Typicality

         Rule 2');">23(a)(3) requires that the class representative's claims or defenses be “typical” of the claims or defenses of the putative class. A class “representative's claim is typical if there is a ‘nexus between the class representative's claims or defenses and the common questions of fact or law which unite the class.'” In re Wells Real Estate Inv. Tr., Inc. Sec. Litig., No. 1:07-CV-862');">2-CAP, 2');">2009 WL 10688777, at *3 (N.D.Ga. Sept. 16, 2');">2009) (quoting Kornberg v. Carnival Cruise Lines, Inc., 2');">2d 1332');">2');">741 F.2');">2d 1332');">2, 1337 (11th Cir. 1984)). A sufficient nexus exists where “‘the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.'” NetBank, 2');">259 F.R.D. at 665 (quoting Kornberg, 741 F.2');">2d at 1337). “‘The typicality requirement may be satisfied despite substantial factual differences . . . when there is a strong similarity of legal theories.'” Regions, 762');">2 F.3d at 12');">259-60 (quoting Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1357 (11th Cir. 2');">2009)).

         Here, as with the other Rule 2');">23(a) requirements, Defendants do not dispute typicality. Further, the proposed class representatives - Roofers Local No. 149 and Monroe County - purchased Southern Company common stock during the Class Period, as did all putative Class members. See Plaintiffs' Class Certification Motion; [Doc. 77-5] (“Roofers Local No. 149 Declaration”); [Doc. 77-6 (“Monroe County Declaration”). As a result, Plaintiffs' claims are founded on the same alleged facts and legal theories as the claims of all other Class members - i.e., Defendants' Class Period false statements and omissions and their effect on Southern Company's stock price. Moreover, the injury Plaintiffs suffered is alleged to be the same as the injury suffered by all members of the putative Class. ¶¶2');">22');">25-2');">22');">26; [Doc. 77-2');">2., ¶¶173-179]; Internap, 2');">2012');">2 WL 12');">2878579, at *5 (typicality found where “Plaintiffs, as a class, allege that Defendants issued a number of false and misleading statements . . . that artificially inflated the share price of [defendant]'s stock”). Thus, Plaintiffs have shown their claims are typical of those of the Class.

         4. Adequacy

         Rule 2');">23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Courts in the Eleventh Circuit examine a two-prong test for adequacy: “‘(1) whether any substantial conflicts of interest exist between the representatives and the class[, ] and (2');">2) whether the representatives will adequately prosecute the action.'” Dickens v. GC Servs. Ltd. P'ship, 2');">29');">706 Fed.Appx. 52');">29, 535 (11th Cir. 2');">2017) (quoting Valley Drug, 350 F.3d at 1189).

         Defendants do not challenge the adequacy requirement, and the Court finds Plaintiffs are adequate. First, there are no substantial or fundamental conflicts of interest between Plaintiffs and the Class. Thorpe, 2');">2016 WL 4006661, at *8 (“Minor conflicts alone will not defeat class representatives' claim to class certification; rather, the conflict must be fundamental, which goes to the specific issues in controversy.”) (citing Valley Drug, 350 F.3d at 1189). Like other potential Class members, Roofers Local No. 149 and Monroe County purchased Southern Company common stock at market prices during the Class Period and were allegedly injured by the same alleged material misrepresentations and omissions that injured all proposed Class members. Plaintiffs' interests in establishing Defendants' liability and maximizing the recovery are aligned with the interests of absent Class members. See Roofers Local No. 149 Declaration and Monroe County Declaration. [Doc. 77-5 and Doc. 77-6].

         Furthermore, Roofers Local No. 149 and Monroe County have demonstrated their willingness and ability to serve as class representatives. Plaintiffs have supervised and monitored the progress of the litigation, have participated in discussions with Lead Counsel concerning case developments, have reviewed Court filings, understand their duty to the Class and are committed to vigorously prosecuting this action to maximize recovery for all Class members. Id. In other words, Plaintiffs have demonstrated a willingness to assert and defend the interests of putative Class members. See NetBank, 2');">259 F.R.D. at 666 (“‘[A] principal factor in determining the appropriateness of class certification is the forthrightness and vigor with which the representative party can be expected to assert and defend the interests of the members of the class.'”) (quoting Kirkpatrick, 82');">27 F.2');">2d at 72');">26). Thus, the Court finds that Roofers Local No. 149 and Monroe County are adequate.

         In addition, Rule 2');">23(g)(1) provides that “a court that certifies a class must appoint class counsel.” Plaintiffs request that the Court appoint their chosen Lead Counsel, Robbins Geller, as Class Counsel. In appointing class counsel, the Court considers counsel's work “in identifying or investigating potential claims in the action, ” “counsel's experience in handling class actions, ” “counsel's knowledge of the applicable law, ” and “the resources that counsel will commit to representing the class.” Rule 2');">23(g)(1)(A)(i)-(iv).

         Robbins Geller is well qualified to prosecute this case on behalf of Plaintiffs and the other members of the Class. Robbins Geller attorneys have extensive securities litigation experience and have successfully prosecuted numerous securities fraud class actions on behalf of injured investors. See, e.g., Regions, 2');">282');">2 F.R.D. at 616 (“[C]ourts have referred to Plaintiffs' chosen counsel, Robbins, Geller, as ‘one of the most successful law firms in the securities class actions . . . in the country.'”); [Doc. 77-4] (describing Robbins Geller's extensive history of successful securities fraud matters). Robbins Geller has already undertaken a vigorous prosecution of this action, including conducting an extensive investigation of the claims, defeating Defendants' motion to dismiss and motion for reconsideration of the Court's order on the motion to dismiss, engaging in discovery, and vigorously litigating class certification. Accordingly, Robbins Geller fulfills the requirements of Rule 2');">23(g) and is adequate Class Counsel.

         In conclusion, the Court finds that Plaintiffs have satisfied all of the Rule 2');">23(a) requirements.

         B. Rule 2');">23(b)(3)

         Plaintiffs seek certification pursuant to Rule 2');">23(b)(3), which requires a showing that common questions of fact or law predominate over any individual questions and that maintaining the action as a class action is superior to other available methods for adjudicating the controversy. Rule 2');">23(b)(3).

         1. Predominance

         Rule 2');">23(b)(3) requires “that the questions of law or fact common to class members predominate over any questions affecting only individual members.” This requirement “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods. v. Windsor, 2');">21 U.S. 591');">52');">21 U.S. 591, 62');">23 (1997). “‘It is not necessary that all questions of fact or law be common, but only that some questions are common and that they predominate over individual questions.'” Internap, 2');">2012');">2 WL 12');">2878579, at *6. “‘[P]redominance is a test readily met' in [securities fraud] cases such as this.” Id. at *8 (quoting Amchem, 52');">21 U.S. at 62');">25); see also Miller, 186 F.R.D. at 688 (predominance met where “claims of each member of the class arise out of this same set of operative facts”).

         “Considering whether ‘questions of law or fact common to class members predominate' begins, of course, with the elements of the underlying cause of action.” Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804 (2');">2011) (“Halliburton I”) (quoting Rule 2');">23(b)(3)). “The elements of a private securities fraud claim based on violations of § 10(b) and Rule 10b-5 are: ‘(1) a material misrepresentation or omission by the defendant; (2');">2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.'” Id.

         Despite the many common issues identified above as part of the Rule 2');">23(a) analysis, Defendants contend that individual issues regarding reliance and damages predominate over any common ...


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