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Stanford University Law School
- Securities Class Action Clearinghouse
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MILBERG WEISS BERSHAD
HYNES & LERACH LLP
WILLIAM S. LERACH (68581)
600 West Broadway, Suite 1800
San Diego, CA 92101
Telephone: 619/231-1058
- and
REED R. KATHREIN (139304)
JEFFREY W. LAWRENCE (166806)
DAVID R. STICKNEY (188574)
222 Kearny Street, 10th Floor
San Francisco, CA 94108
Telephone: 415/288-4545
SPECTOR & ROSEMAN, P.C.
ELLEN GUSIKOFF STEWART (144892)
600 West Broadway, Suite 1800
San Diego, CA 92101
Telephone: 619/338-4514
BARRACK, RODOS & BACINE
EDWARD M. GERGOSIAN (105679)
600 West Broadway, Suite 1700
San Diego, CA 92101
Telephone: 619/230-0800
[Proposed] Co-Lead Counsel for Plaintiffs
[Additional counsel appear on signature page.]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
FRANK DECARLO, et al., On Behalf of Themselves
and All Others Similarly Situated,
Plaintiffs,
vs.
VIVUS INC., et al.,
Defendants.
___________________________________
No. C-98-1364-MHP
CLASS ACTION
DATE: July 27, 1997
TIME: 2:00 p.m.
CTRM: Honorable Marilyn
Hall Patel
THE KOSOR PLAINTIFFS' GROUP'S NOTICE OF MOTION, MOTION AND
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO BE APPOINTED LEAD PLAINTIFF PURSUANT TO SECTION 21D(a)(3)(B)
OF THE SECURITIES EXCHANGE ACT OF 1934 AND FOR APPROVAL OF
LEAD PLAINTIFF'S CHOICE OF COUNSEL
I. INTRODUCTION
II. PROCEDURAL BACKGROUND
III. SUMMARY OF ACTIONS
IV. THE PROPOSED LEAD PLAINTIFFS ARE THE MOST ADEQUATE PLAINTIFFS UNDER THE EXCHANGE ACT
A. The Kosor Plaintiffs' Group Has The Largest Financial Interest In The Related Actions
B. The Kosor Plaintiffs' Group Is Qualified Under Rule 23
1. The Claims Of The Kosor Plaintiffs' Group Are Typical Of The Claims Of The Class
2. The Kosor Plaintiffs' Group Will Fairly And Adequately Represent The Interests Of The Class
V. THIS COURT SHOULD APPROVE THE KOSOR PLAINTIFFS' GROUP'S CHOICE OF COUNSEL
VI. CONCLUSION
TO: ALL PARTIES AND THEIR COUNSEL OF RECORD HEREIN
NOTICE IS HEREBY GIVEN that on July 27, 1998 at 2:00 p.m., or as soon thereafter as this motion may be heard before the Honorable Marilyn Hall Patel in Courtroom 11 of this Court,(1) located at 450 Golden Gate Avenue, 16th Floor, San Francisco, CA, plaintiffs in the Kosor Plaintiffs' Group identified in Exhibit A to the Declaration of David R. Stickney ("Stickney Decl."), filed herewith (collectively, "Movants" or the "Kosor Plaintiffs' Group"), who purchased Vivus Incorporated ("Vivus" or the "Company") securities between May 2, 1997 and December 9, 1997 ("Class Period") will, and hereby do, move this Court for an order granting the Kosor Plaintiffs' Group's Motion to Be Appointed Lead Plaintiff and For Approval of Lead Plaintiff's Choice of Counsel.(2)
This motion is brought pursuant to §21D of the Securities Exchange Act of 1934 ("Exchange Act") on the grounds that Movants have timely filed and are the "most adequate plaintiffs." In addition, Movants seek the Court's approval of their selection of Milberg Weiss Bershad Hynes & Lerach LLP ("Milberg Weiss"), Spector & Roseman, P.C. ("Spector & Roseman"), and Barrack, Rodos & Bacine ("Barrack Rodos") as Co-Lead Counsel for the class pursuant to 15 U.S.C. §78u-4(a)(3)(B)(v).
This Motion is based upon this Notice, the accompanying Memorandum of Points and Authorities, the Stickney Decl., the pleadings and other files and records in each of these actions, and such other written or oral arguments as may be permitted by the Court at the hearing on this Motion.
Movants submit this memorandum in support of their motion for: (1) the appointment of the Kosor Plaintiffs' Group as Lead Plaintiff; and (2) the approval of the Kosor Plaintiffs' Group's choice of counsel.
Exchange Act §21D establishes the procedure for the selection of lead plaintiffs in securities class actions. Specifically, within 20 days after the filing of an action governed by the Private Securities Litigation Reform Act of 1995 ("PSLRA"),
the plaintiff or plaintiffs shall cause to be published, in a widely circulated national business-oriented publication or wire service, a notice advising members of the purported plaintiff class --
(I) of the pendency of the action, the claims asserted therein, and the purported class period; and
(II) that, not later than 60 days after the date on which the notice is published, any member of the purported class may move the court to serve as lead plaintiff of the purported class.
15 U.S.C. §78u-4(a)(3)(A)(i).
Exchange Act §21D(a)(3)(B) directs the Court to consider any motions to serve as lead plaintiff by not later than 90 days after the date of publication, or as soon as practicable after the Court decides any pending motion to consolidate any actions asserting substantially the same claim or claims.(3) Under this provision of the Exchange Act, the Court "shall" appoint the "most adequate plaintiff" to serve as lead plaintiff and shall presume that plaintiff is the person, or group of persons, that:
(aa) has either filed the complaint or made a motion in response to a notice . . . ;
(bb) in the determination of the court, has the largest financial interest in the relief sought by the class; and
(cc) otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure.
15 U.S.C. §78u-4(a)(3)(B)(iii). Here, the Kosor Plaintiffs' Group constitutes class members who collectively purchased 1,454,956 shares of Vivus stock between May 2, 1997 and December 9, 1997, suffering over $16.5 million in losses. See Movants' Purchases, Sales and Losses Charts, Stickney Decl., Ex. A. By virtue of the Kosor Plaintiffs' Group's collective losses, it believes that it has the largest financial interest in the relief sought by the class. The Kosor Plaintiffs' Group also seeks the Court's approval of their choice of counsel. Movants have retained highly experienced and nationally recognized law firms to zealously advance the interests of the class in this litigation.
Presently pending in this district are five related securities class action lawsuits:
Abbreviated Case Name Case Number Date Filed
1. Cramblit-IRA v. Vivus,Inc. C-98-1026-SBA March 16, 1998
Plaintiffs: Jay L.
Cramblit-IRA, Joseph G. Fabick,
and Joseph G. Fabick-IRA
2. Steiner v. Vivus, Inc. C-98-01351-WHO April 3, 1998
Plaintiff: Paul A. Steiner
3. Decarlo v. Vivus, Inc. C-98-1364-MHP April 6, 1998
Plaintiffs: Frank DeCarlo,
Dominick F. Imprescia, Paul
Knasin, Lynne A. Ippolito-IRA,
Irwin J. Anger, and
Benjamin D. Cooper
4. Wilson v. Vivus. Inc. C-98-1809-JL May 5, 1998
Plaintiff: Barbara Wilson
5. Kosor v. Vivus, Inc. C-98-1837-FMS May 6, 1998
Plaintiff: John Kosor
The Cramblit-IRA, Steiner, DeCarlo, Wilson, and Kosor actions allege claims for violations of Exchange Act (and Rule 10b-5 promulgated thereunder) on behalf of purchasers of Vivus's securities during the Class Period.(4)
On March 16, 1998, plaintiffs filed the Cramblit-IRA action. The Cramblit-IRA Plaintiffs published early notice to class members on March 20, 1998 on Business Wire, as required by Exchange Act 21D(a)(3)(A)(i). Stickney Decl., Ex. B. The notice advised purchasers of Vivus stock of the existence of this lawsuit and the nature of the defendants' fraudulent statements which artificially inflated Vivus's stock. The notice also advised class members of their right to move the court for lead plaintiff appointment within 60 days. See Stickney Decl., Ex. B.(5)
The Kosor Plaintiffs' Group has filed this Motion in a timely manner (i.e., prior to the expiration of the 60-day period from the publication of the Cramblit-IRA notice). Thus, pursuant to the Exchange Act §21D(a)(3)(B), the Court shall decide this Motion within 90 days from the date of early notice publication, which, in this case, requires the Court to issue its ruling by June 18, 1998. 15 U.S.C. §78u-4(a)(3)(B)(i).(6)
Like the Cramblit-IRA action, the Steiner, DeCarlo, Wilson, and Kosor are securities class actions commenced by investors who purchased Vivus's securities between May 2, 1997 and December 9, 1997. In each of the actions, plaintiffs allege that defendants violated §§10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder.
Plaintiffs allege that, pursuant to a scheme to artificially inflate the price of Vivus's common stock, defendants made a series of false and misleading statements to the investment community during the Class Period about Vivus and the market demand for MUSE, Vivus's only product.(7) When the truth about Vivus's financial and business condition was revealed, the price of its common stock declined precipitously. Investors lost tens of millions, while Vivus's insiders profited through insider trading selling over 235,000 of their own shares for aggregate proceed of over $6.7 million.(8)
The "most adequate plaintiff" provision of the PSLRA provides that a court
shall appoint as lead plaintiff the member or members of the purported plaintiff class that the court determines to be most capable of adequately representing the interests of class members (hereafter in this paragraph referred to as the "most adequate plaintiff") in accordance with this subparagraph.
15 U.S.C. §78u-4(a)(3)(B)(i) (emphasis added). The Exchange Act requires the Court to adopt a rebuttable presumption
that the most adequate plaintiff in any private action arising under this chapter is the person or group of persons that --
* * *
(bb) in the determination of the court, has the largest financial interest in the relief sought by the class . . . .
15 U.S.C. §78u-4(a)(3)(B)(iii)(I) (emphasis added).
Thus, the statutory language explicitly provides that a "member or members" of the class or a "person or group of persons" may combine to constitute "the largest financial interest" and thereby jointly serve as the "most adequate plaintiff." Id. According to the statute's plain language, individual plaintiffs may aggregate their losses in order to serve as the lead plaintiff. In re Diamond Multimedia Sys., Inc., Sec. Litig., No. C-96-2644-SBA, slip op. at 2-4 (N.D. Cal. Jan. 13, 1997) (proposed lead plaintiffs can pool together their shares to form the largest financial interest) (Stickney Decl., Ex. C).(9)
During the Class Period, the Kosor Plaintiffs' Group collectively purchased 1,454,956 shares of Vivus stock at prices artificially inflated by defendants' false and misleading statements. As a result, the Kosor Plaintiffs' Group collectively suffered losses of over $16.5 million. See Movants' Purchases, Sales and Losses Charts, Stickney Decl., Ex. A.(10) The Kosor Plaintiffs' Group believes that it has the largest financial interest in the outcome of this litigation, and, therefore, is presumed to be the most adequate group of plaintiffs. 15 U.S.C. §78u-4(a)(3)(B)(iii)(I)(b).
In addition to having a very large financial stake in the litigation, the Kosor Plaintiffs' Group is otherwise qualified to represent the proposed class. Each member of the Kosor Plaintiffs' Group has signed and filed a sworn certification of his or her own review and authorization of the Complaint and is willing to serve as a representative party on behalf of the class.(11) The Kosor Plaintiffs' Group also has selected and retained counsel highly experienced in prosecuting securities class actions to represent it. See the firm résumés of Milberg Weiss, Spector & Roseman and Barrack Rodos, attached as Exs. J-L to the Stickney Decl. Accordingly, Movants satisfy the prerequisite for appointment as lead plaintiff pursuant to §21D(A)(3)(B).
Exchange Act 21D(a)(3)(B)(iii)(I)(cc) provides that, in addition to possessing the largest financial interest in the outcome of the litigation, the lead plaintiff or plaintiffs must also "otherwise satisf[y] the requirements of Rule 23 of the Federal Rules of Civil Procedure." With respect to the qualifications of the class representative, Rule 23(a) requires that the claims be typical of the claims of the class and that the representative fairly and adequately protect the interests of the class.
As detailed below, each member of the Kosor Plaintiffs' Group satisfies the typicality and adequacy requirements of Rule 23(a).
The typicality requirement of Rule 23(a)(3) is satisfied when the named plaintiffs have: (1) suffered the same injuries as the absent class members; (2) as a result of the same course of conduct by defendants; and (3) their claims are based on the same legal issues. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992); Haley v. Medtronic, Inc., 169 F.R.D. 643, 649 (C.D. Cal. 1996); In re Cirrus Logic Sec. Litig., 155 F.R.D. 654, 657 (N.D. Cal. 1994); Shields v. Smith, [1992 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶97,001, at 94,376 (N.D. Cal. Aug. 18, 1992); In re Activision Sec. Litig., 621 F. Supp. 415 (N.D. Cal. 1985). Here, the same course of conduct caused the Movants to suffer the same injuries as absent class members. The questions of law and fact common to the members of the class include the following:
(a) Whether the federal securities laws were violated by defendants;
(b) Whether defendants omitted and/or misrepresented material facts;
(c) Whether defendants knew, had reason to know or recklessly disregarded that their statements were false and misleading or failed to have a reasonable basis for those statements;
(d) Whether the price of Vivus stock was artificially inflated during the Class Period; and
(e) The extent of damage sustained by class members and the appropriate measure of damages.
There is a well-defined community of interest in the questions of law and fact involved in this case. Thus, the claims asserted by the Kosor Plaintiffs' Group are typical of the claims of the members of the proposed class. Each of the Movants alleges, as do the members of the class, that defendants violated the Exchange Act by publicly disseminating a series of false and misleading statements about Vivus during the Class Period. Each of the Movants acquired Vivus securities at prices inflated by defendants' misrepresentations and omissions and was damaged thereby. Typicality exists here because the claims asserted by the Kosor Plaintiffs' Group are based on the same legal theory and arise "from the same event or course of conduct giving rise to the claims of other class members." In re United Energy Corp. Solar Power Modules Tax Shelter Inv. Sec. Litig., 122 F.R.D. 251, 256 (C.D. Cal. 1988); accord Blackie v. Barrack, 524 F.2d 891, 902-03 & n.19 (9th Cir. 1975).
The interests of the Kosor Plaintiffs' Group are clearly aligned with the members of the proposed class. There is no antagonism between the interests of the individuals in the Kosor Plaintiffs' Group and the proposed class members. As detailed above, the claims of the Kosor Plaintiffs' Group share substantially similar questions of law and fact with the members of the proposed class, and Movants' claims are typical of the members of the class. The members of the Kosor Plaintiffs' Group have amply demonstrated their adequacy as class representatives by signing certifications, filed with the Court, affirming their willingness to serve as class representatives. In addition, the Kosor Plaintiffs' Group has selected counsel highly experienced in prosecuting securities class actions, such as the present actions, to represent it.
The PSLRA vests authority in the lead plaintiff to select and retain lead counsel, subject to court approval. See §21D(a)(3)(B)(v). Thus, the Court should not disturb the lead plaintiff's choice of counsel unless "necessary to protect the interests of the plaintiff class." 15 U.S.C. §78u-4(a)(3)(B)(iii)(II)(aa). Movants have selected the law firms of Milberg Weiss, Spector & Roseman and Barrack Rodos to serve as Co-Lead Counsel. These firms possess extensive experience in the area of securities litigation and have successfully prosecuted numerous securities fraud class actions on behalf of injured investors. See Stickney Decl., Exs. J-L.
For all the foregoing reasons, the Kosor Plaintiffs' Group respectfully requests that the Court: (a) appoint it as Lead Plaintiff for the class in the consolidated actions, pursuant to §21D(a)(3)(B) or, alternatively, appoint Amber Arbitrage, Wendell Hestor, First Financial Trust, Lloyd McGowen, Edward Eisner, Timothy L. Mullins, Thomas Yankush and John Soda as Lead Plaintiff;(12) and (b) approve its choice of Milberg Weiss, Spector & Roseman and Barrack Rodos as Co-Lead Counsel for the class in the consolidated actions.
DATED: May 19, 1998
Respectfully submitted,
MILBERG WEISS BERSHAD
HYNES & LERACH LLP
WILLIAM S. LERACH
600 West Broadway, Suite 1800
San Diego, CA 92101
Telephone: 619/231-1058
MILBERG WEISS BERSHAD
HYNES & LERACH LLP
REED R. KATHREIN
JEFFREY W. LAWRENCE
DAVID R. STICKNEY
______________________________
DAVID R. STICKNEY
222 Kearny Street, 10th Floor
San Francisco, CA 94108
Telephone: 415/288-4545
SPECTOR & ROSEMAN, P.C.
ELLEN GUSIKOFF STEWART
600 West Broadway, Suite 1800
San Diego, CA 92101
Telephone: 619/338-4514
BARRACK, RODOS & BACINE
EDWARD M. GERGOSIAN
600 West Broadway, Suite 1700
San Diego, CA 92101
Telephone: 619/230-0800
[Proposed] Co-Lead Counsel for Plaintiffs
KAUFMAN, MALCHMAN, KIRBY
& SQUIRE, LLP
IRA M. PRESS
919 Third Avenue, 11th Floor
New York, NY 10022
Telephone: 212/371-6600
SCHIFFRIN CRAIG &
BARROWAY, LLP
RICHARD S. SCHIFFRIN
ANDREW L. BARROWAY
Three Bala Plaza East
Suite 400
Bala Cynwyd, PA 19004
Telephone: 610/667-7706
BERNSTEIN LIEBHARD & LIFSHITZ
MEL E. LIFSHITZ
274 Madison Avenue
New York, NY 10016
Telephone: 212/779-1414
LAW OFFICES OF LAWRENCE G.
SOICHER
LAWRENCE G. SOICHER
300 Park Avenue, 20th Floor
New York, NY 10022
Telephone: 212/980-7000
COHEN, MILSTEIN, HAUSFELD
& TOLL, P.L.L.C.
STEVEN J. TOLL
MATTHEW J. IDE
KRISTOPHER A. KINKADE
999 Third Avenue, Suite 3600
Seattle, WA 98104
Telephone: 206/521-0080
BERMAN, DeVALERIO, PEASE
& TABACCO
JOSEPH J. TABACCO, JR.
425 California Street
Suite 2025
San Francisco, CA 94104
Telephone: 415/433-3200
REINHARDT & ANDERSON
RANDALL H. STEINMEYER
E-1000 First National
Bank Building
332 Minnesota Street
St. Paul, MN 55101
Telephone: 612/227-9990
SAVETT FRUTKIN PODELL &
RYAN, P.C.
ROBERT P. FRUTKIN
325 Chestnut Street, Suite 700
Philadelphia, PA 19106
Telephone: 215/923-5400
LAW OFFICES OF HAROLD OBSTFELD
HAROLD OBSTFELD
260 Madison Avenue, 19th Floor
New York, NY 10016
Telephone: 212/696-1212
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ, LLP
FRANCIS M. GREGOREK
BETSY C. MANIFOLD
600 West Broadway, Suite 1800
San Diego, CA 92101
Telephone: 619/338-4599
STEVEN E. CAULEY, P.A.
STEVEN E. CAULEY
Suite 218, Cypress Plaza
2200 N. Rodney Parham Road
Little Rock, AR 72212
Telephone: 501/312-8500
FINKELSTEIN & KRINSK
JEFFREY R. KRINSK
501 West Broadway, Suite 1250
San Diego, CA 92101
Telephone: 619/238-1333
RABIN & PECKEL LLP
MARVIN L. FRANK
275 Madison Avenue
New York, NY 10016
Telephone: 212/682-1818
GILMAN AND PASTOR
EDWARD L. MANCHUR
One Boston Place
28th Floor
Boston, MA 02108
Telephone: 617/589-3750
LAW OFFICES OF CHARLES J.
PIVEN, P.A.
CHARLES J. PIVEN
111 South Calvert Street
Suite 2700
Baltimore, MD 21202
Telephone: 410/332-0030
Attorneys for Plaintiffs
VIVUS\LSN00640.BRF
DECLARATION OF SERVICE BY MAIL
PURSUANT TO NORTHERN DISTRICT LOCAL RULE 23-2(c)(2)
I, the undersigned, declare:
1. That declarant is and was, at all times herein mentioned, a citizen of the United States and a resident of the County of San Francisco, over the age of 18 years, and not a party to or interested in the within action; that declarant's business address is 222 Kearny Street, 10th Floor, San Francisco, California 94108.
2. That on May 19, 1998, declarant served the THE KOSOR PLAINTIFFS' GROUP'S NOTICE OF MOTION, MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO BE APPOINTED LEAD PLAINTIFF PURSUANT TO SECTION 21D(a)(3)(B) OF THE SECURITIES EXCHANGE ACT OF 1934 AND FOR APPROVAL OF LEAD PLAINTIFF'S CHOICE OF COUNSEL by depositing a true copy thereof in a United States mailbox at San Francisco, California in a sealed envelope with postage thereon fully prepaid and addressed to the parties listed on the attached Service List and that this document was forwarded to the following designated Internet site at:
http://securities.milberg.com
3. That there is a regular communication by mail between the place of mailing and the places so addressed.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 19th day of May, 1998, at San Francisco, California.
______________________________
DEBORAH R. DASH
1. Movants have made this motion in each of the five related cases that have been filed. See infra, at 4. Movants believe that the only hearing on this motion will be in Cramblit-IRA, the first-filed case, before the Honorable Saundra Brown Armstrong. Nevertheless, because Cramblit-IRA has not yet been related or consolidated with Steiner, DeCarlo, Wilson or Kosor, movants have noticed motions in those cases to follow the hearing in Cramblit-IRA.
2. The Kosor Plaintiffs' Group consists of Amber Arbitrage, Wendell Hestor, First Financial Trust, Lloyd McGowen, Edward Eisner, Timothy L. Mullins, Thomas Yankush and John Soda and an additional 450 purchasers of Vivus's stock who have executed certifications and consented to be lead plaintiffs. In addition, the Kosor Plaintiffs' Group includes purchasers of Vivus stock options. The PSLRA specifically authorizes class members, regardless of whether they have filed a complaint, to move to be appointed as lead plaintiffs. 15 U.S.C. §78u-4(a)(3)(B). The Movants are more fully identified in the charts entitled "Movants' Purchases, Sales and Losses," attached as Exhibit A to the Stickney Decl.
3. The Kosor Plaintiffs' Group respectfully refers the Court to its Motion to Consolidate Cases for All Purposes, submitted herewith. See n.4, infra.
4. Filed concurrently with this motion are motions to consolidate the Cramblit-IRA, DeCarlo, Steiner, Wilson, and Kosor actions, which are to be heard and decided by this Court prior to this motion. These actions generally allege the same violative conduct by defendants to artificially inflate the price of Vivus securities by making false and misleading statements about Vivus's current and prospective earnings and revenues, with only minor differences in the alleged wrongful conduct. These minor differences, which will be resolved upon consolidation, are addressed more fully in the memoranda in support of plaintiffs' motions to consolidate these actions.
5. Numerous additional notices were published after March 16, 1998, including a notice purportedly on behalf of purchasers of call options and sellers of put options of Vivus. Section 21D(a)(3)(A)(ii) provides that if more than one action on behalf of a class asserting substantially the same claims is filed, only plaintiffs in the first-filed action are required to publish the notice. The claims brought on behalf of options purchasers allege the same violative conduct by defendants and are substantially the same claims as those filed by stock purchasers. The Kosor Plaintiffs' Group has moved to consolidate those claims.
6. The 90-day period for the selection of lead plaintiff is calculated from the date of the publication of the first notice. As detailed above, the Kosor Plaintiffs' Group has, concurrent with the filing of this motion, appropriately filed motions to consolidate each of the five related actions. Pursuant to §21D(a)(3)(B)(ii) of the Exchange Act, this Court is required to decide the consolidation motions prior to making a determination on any motion for appointment of lead plaintiff. Consequently, due to the additional requirement that the Court make a determination on motions for the appointment of lead plaintiff not later than 90-days from the date of the early notice publication, the Kosor Plaintiffs' Group urges this Court to decide the consolidation motions as soon as possible, and in any event, not later than June 18, 1998.
7. Defendants are comprised of Vivus, Inc., Leland F. Wilson, Virgil A. Place, David C. Yntema, Julian S. Gongolli, Samuel D. Colella, Richard L. Casey, Peter Barton Hutt, William L. Smith and Neil Gesundheit. Although not all of the pending actions name all of these defendants, the differences will be resolved when a consolidated complaint is filed in this action.
8. Movants, in the interest of brevity, respectfully refer the Court to the Summary of Pending Actions contained in the Kosor Plaintiffs' Group's memoranda, filed concurrently herewith, in support of the motion to consolidate the Cramblit-IRA, Steiner, DeCarlo, Wilson, and Kosor actions.
9. See also City Nominees Ltd., et al. v. Macromedia, Inc., et al., No. C-97-3521-SC, Order re Motion to Appoint Lead Plaintiff, at 5-7 (N.D. Cal. Jan. 23, 1998) (same); In re Read-Rite Corp. Sec. Litig., No. C-97-20059-RMW, Order Granting Plaintiffs' Motion for Appointment of Lead Plaintiff and Lead Counsel, at 4-5 (N.D. Cal. May 23, 1997) (same); Malin v. IVAX Corp., et al., Case No. 96-1843-CIV-Moreno, Order Granting Malin/Ferretti/Pennsylvania Pension Fund Plaintiffs Group's Motion for Appointment as Lead Plaintiff and Order Approving Lead Plaintiffs' Choice of Counsel, at 4-8 (S.D. Fla. Nov. 1, 1996) (holding the plaintiff group with the largest number of shares is the most adequate plaintiff under the PSLRA); Zuckerman v. Foxmeyer Health Corp., et al., No. 3:96-CV-2258-T, Order Granting Motion to Withdraw Motion and Granting Joint Motion for Appointment of Lead Plaintiffs and Lead Counsel, at 5 (N.D. Tex. Mar. 28, 1997) (eleven individual plaintiffs with the largest financial interest collectively appointed lead plaintiff); Chan, et al. v. Orthologic Corp., et al., No. Civ. 96-1514 PHX RCB, Order, at 13 (D. Ariz. Dec. 19, 1996) (plaintiffs from five separate actions collectively appointed lead plaintiff); Powers, et al. v. Eichen, et al., Civ. No. 96-1431-B(AJB), Order Granting Plaintiffs' Motion to be Appointed Lead Plaintiffs Pursuant to §21D(a)(3)(B) of the Securities Exchange Act of 1934 and for Appointment of Lead Plaintiffs' Lead Counsel, at 1 (S.D. Cal. Nov. 15, 1996) (nine individual plaintiffs collectively appointed lead plaintiff). Stickney Decl., Exs. D-I.
10. The chart provides details of each of the Movants' transactions in Vivus's stock during the Class Period, including the losses suffered. For Vivus's stock that was not sold by Movants before it collapsed on December 10, 1997, the loss is the difference between the purchase price and the December 9, 1997 stock closing price. In addition, the Kosor Plaintiffs' Group includes 450 additional class members who incurred losses in connection with transactions in Vivus options.
11. To ease the burden on the Court, the Kosor Plaintiffs' Group submitted the 458 individual certifications only in Cramblit-IRA, the first-filed action. Movants respectfully refer the Court to Exhibit B of the Declaration of David R. Stickney in Support of (1) the Kosor Plaintiffs' Group's Motion to Be Appointed Lead Plaintiff Pursuant to Section 21d(a)(3)(b) of the Securities Exchange Act of 1934 and for Approval of Lead Plaintiff's Choice of Counsel; and (2) Motion to Consolidate for All Purposes Five Related Actions Against Vivus, Inc. for Violations of the Securities Exchange Act of 1934, filed on May 19, 1998, in Cramblit-IRA v. Vivus, Inc., No. C-98-1026-SBA (N.D. Cal. March 16, 1998).
12. Alternatively, for ease of case management, all Movants support the appointment of these eight individuals as Lead Plaintiff. These individuals collectively lost $9,912,444.50.